The StandDown Texas Project

4th Circuit Allows Justin Wolfe Retrial - Updated

"Fed. appeals court allows capital murder retrial of Wolfe; lower court had ordered him freed," is the AP report, via the Washington Post.

A federal appeals court will allow Virginia to pursue a capital murder case against an alleged drug kingpin from northern Virginia.

In a 2-1 ruling, the 4th U.S. Circuit Court of Appeals in Richmond overturned a federal judge in Norfolk who had ordered a halt to the prosecution of Justin Wolfe and his immediate release. The judge said misconduct by prosecutors in Prince William County made it impossible for Wolfe to get a fair trial.

But a majority on the appellate court disagreed. They ruled that a new trial can be done fairly. A dissenting judge said the misconduct was so bad that freeing Wolfe was the only proper outcome.

Wolfe was sent to death row in 2002 for a drug-related murder, but his original conviction and sentence were overturned.

The U.S. Court of Appeals for the Fourth Circuit ruling in Wolfe v. Clarke is available in Adobe .pdf format.

AP has expanded its original coverage.  It's available as, "4th Circuit allows capital retrial of alleged drug kingpin," via the Daily Record.

U.S. District Judge Raymond Jackson said misconduct by prosecutors in Prince William County made it impossible for Wolfe to get a fair trial.

But a majority on the appellate court disagreed. Judges Robert Bruce King and Allyson Kay Duncan ruled that a new trial can be done fairly. They wrote that Jackson “fashioned an overbroad remedy and thereby abused (his) discretion by precluding the Commonwealth from retrying Wolfe.”

A dissenting judge, Stephanie Thacker, said the misconduct was so bad that freeing Wolfe was the only proper outcome. She reeled off a long list of examples of misconduct, including failures by Prince William County Commonwealth’s Attorney Paul Ebert to disclose evidence that would have undermined the credibility of the state’s star witness — Owen Barber, the triggerman in Petrole’s death who initially testified that Wolfe hired him to do the killing.

Barber subsequently changed his story several times, and Thacker said prosecutors compounded their misconducting by visiting Barber in jail last year and pressuring him to go back to his original story implicating Wolfe.

“The Commonwealth’s misconduct has continued far too long, and the cumulative misconduct permeating this case has tainted it in such a way that it is doubtful Wolfe will receive a fair and just trial. Enough is enough,” Thacker wrote.

And:

While Wednesday’s ruling allows the state to prosecute Wolfe, the majority judges said Wolfe’s allegations of prosecutorial misconduct may be grounds for an appeal if he is convicted in a retrial.

Earlier coverage of Justin Wolfe's case begins at the link.

9th Circuit Revives Wrongful Conviction Lawsuit

The U.S. Court of Appeals for the Ninth Circuit ruling in Goldstein v. County of Los Angeles is available in Adobe .pdf format.

"Appeals panel revives former inmate's suit against L.A. County," is Maura Dolan's Los Angeles Times report.

A man convicted of murder largely on the basis of a jailhouse informant's perjured testimony may attempt to hold Los Angeles County liable for his 24 years in prison, a federal appeals court ruled Wednesday.

A three-judge panel of the U.S. 9th Circuit Court of Appeals revived a lawsuit by Thomas Goldstein, who was released from prison in 2004 after a district judge found that informant Edward Fink had lied on the stand.

Fink, a heroin addict and felon, frequently received favors from prosecutors for testifying against defendants. His testimony against Goldstein earned him a reduced sentence.

Fink claimed that Goldstein told him in jail that he had a killed a man over money. On cross-examination, Fink lied when he said he had received no benefit for his testimony in that or other cases. The judge overturned Goldstein's conviction, and Los Angeles County prosecutors declined to retry him.

And:

Judge Stephen Reinhardt, one of the 9th Circuit panelists, agreed with Wednesday's decision but wrote separately to point out that California had executed Tommy Thompson in 1998 on a murder and rape conviction "based on Fink's perjured testimony."

"It is unlikely that Thompson was death-eligible for his part in the crime, if he was guilty at all of any offense …," wrote Reinhardt, appointed by former President Carter. "Although Thompson was executed as a result of Fink's perjury (as well as the other unfortunate judicial matters…) the innocent Mr. Goldstein was fortunate enough to avoid that fate."

The San Francisco Chronicle coverage is, "Lawsuit revived in wrongful murder term," by Bob Egelko.

In a separate opinion, one judge said the same informant's perjured testimony in another case led to the 1998 execution of a man who was probably ineligible for the death penalty and may have been innocent.

The ruling Wednesday involved Thomas L. Goldstein, a former Marine who had no criminal record when he was convicted of fatally shooting John McGinest in an alley near Goldstein's Long Beach home in 1979.

And:

Goldstein, who is now in his mid-60s, has sought damages against former District Attorney John Van de Kamp, the city of Long Beach and Los Angeles County, claiming they were responsible for his wrongful prosecution and conviction.

The U.S. Supreme Court dismissed his case against Van de Kamp in 2009, ruling unanimously that prosecutors are immune from damages for wrongful convictions. Long Beach settled with Goldstein for nearly $8 million in 2010, and on Wednesday the Ninth U.S. Circuit Court of Appeals reinstated his suit against the county.

The suit alleges that the district attorney's office had failed to train Goldstein's prosecutors to notify defense lawyers that an informant had been promised leniency. In a 3-0 ruling, the appeals court said the county can be held responsible for the misconduct of its prosecutors, reversing a federal judge's ruling that district attorneys are agents of the state.

One member of the panel, Judge Stephen Reinhardt, said Fink's "perjured testimony" had also been crucial to the conviction and execution of Thomas Thompson for a 1981 rape and murder in Orange County.

"L.A. County May Be Liable for Shaky Snitch," by Tim Hull for Courthouse News Service.

A man who spent 24 years in prison based largely on the testimony of a drug-addicted snitch may have a case against Los Angeles County, the 9th Circuit ruled Wednesday.

California district attorneys work for the county, not the state, when "adopting and implementing internal policies and procedures related to the use of jailhouse informants," and therefore are not necessarily immune from civil rights claims, the federal appeals court in Pasadena found.

The ruling breathes new life into the long-running case of Thomas Goldstein, a man tried and convicted for a murder in Long Beach in 1979. With no other evidence against the former Marine save shaky eyewitness testimony that was later recanted, prosecutors relied heavily on the word of jailhouse snitch Edward Fink, whom circuit Judge Sidney Thomas described as "aptronymic." In other words, aptly named.

"Federal appeals court rules wrongly convicted man's lawsuit against LA County can resume," is the AP filing, via the Republic.

While the case was pending the U.S. Supreme Court ruled prosecutors could not be held liable in such cases, so a district court dismissed Goldstein's suit.

But on Wednesday the Ninth U.S. Circuit Court of Appeals ruled it could move forward, saying the issue was not prosecutors' misconduct but an administrative failure by the county, which should have established an index of informants and favors to share with defense attorneys.

Thomas Goldstein's case is noted in this earlier post.

Mississippi Supreme Court Stays Willie Manning Execution

The state Supreme Court order in Manning v. Mississippi is available in Adobe .pdf format.

The Jackson Clarion-Ledger posts, "Mississippi death row inmate Manning gets reprieve."  It contains reporting from the Associated Press.

The Mississippi Supreme Court has issued a stay of execution for Willie Jerome Manning, set to be executed on Tuesday at 6 p.m.

The high court voted eight to one, with Justice Michael Randolph objecting.

Manning was given two death sentences for the 1992 slayings of Jon Steckler and Tiffany Miller, two college students. His attorneys had asked the state Supreme Court on Monday to stop his execution and allow him to seek DNA testing of evidence.

The U.S. Justice Department had sent letters saying FBI testimony on testing of bullet and hair evidence in the case had been overreaching for technology at the time.

Attorney General Jim Hood had opposed the request for a stay, saying it is just a delay tactic and that there was a “mountain of evidence” against Manning, including a confession to his cousin.

Manning's lawyers said in a filing with the Mississippi Supreme Court that the execution should be stopped based on the Justice Department's admission and previous disclosures about testimony that it says exceeded the limits of science.

Earlier coverage of Willie Manning's case begins at the link.

A Stunning Error in Mississippi

That's the title of Lincoln Caplan's post at the New York Times Taking Note blog on the case of Willie Manning.

Mississippi is scheduled to execute Willie Manning on Tuesday for his 1994 conviction for two murders. Mr. Manning is seeking DNA testing of hair, fingernail scrapings and other evidence connected to the crimes. His lawyers argue that no physical evidence links him to the crimes and that DNA testing could prove him innocent and identify another killer.

But last week, by 5-4, the Mississippi Supreme Court approved the state’s motion to proceed with the execution, having denied Mr. Manning’s motion for DNA testing last month by the same vote.

And:

Last week, the Justice Department provided extraordinary grounds for the state to allow DNA testing in the Manning case. In a letter to the prosecution and defense, the department said that testimony of an F.B.I. analyst who was a key prosecution witness “exceeded the limits of the science and was, therefore, invalid.”

That analyst testified that he could match a hair found at the crime scene to an individual with “a relatively high degree of certainty” and that the hair fragments collected from a victim’s car “came from an individual of the black race.” The Justice Department concluded that it was “error for an examiner to testify that he can determine that the questioned hairs were from an individual of a particular racial group.”

The F.B.I. has now offered to do the DNA testing requested by Mr. Manning, who is black.  One dissenting opinion from the Mississippi Supreme Court said, “In asking the jury to convict Manning, an African American, of the murder of two white students, the prosecution seems to have placed great emphasis on the fact that hair samples, originating from an African American” were found in the car. The prosecution, however, did not connect the hair to Mr. Manning. Clearly, the Justice Department’s letter makes the emphasis placed on the hair samples deeply problematic.

The updated AP post is, "Miss. inmate awaits word on execution," by Jack Elliott Jr.  It's via the San Francisco Chronicle.

Willie Jerome Manning awaited word Tuesday on whether the state will execute him later in the day.

Manning's lawyers have asked the Supreme Court to halt the execution to allow time for testing of DNA, which they say will clear him of the 1992 slayings of two Mississippi State University students.

The execution is scheduled for 6 p.m. Tuesday at the state prison in Parchman.

The Supreme Court, in separate rulings, has declined to grant Manning time for the tests and to stop his execution.

A spokesman for Gov. Phil Bryant said the governor has not decided whether to block the execution.

"Mississippi death row inmate seeks stay of execution based on FBI forensic errors," by Spencer S. Hsu for the Washington Post.

Hours from execution, a Mississippi inmate renewed appeals Monday to retest DNA evidence in his conviction for the 1992 killings of two college students after the FBI acknowledged forensic errors in the case.

Lawyers for Willie Jerome Manning, 44, asked the Mississippi Supreme Court to stay his death by lethal injection, set for 6 p.m. Tuesday, after the FBI conceded over the weekend that one of its agents improperly claimed at Manning’s 1994 trial that hairs at the crime scene came from an African American. Manning his black; the victims were white.

As the high court considered Manning’s request for a stay, Gov. Phil Bryant (R) weighed a separate defense request to stay the execution filed after federal authorities conceded that the FBI agent exaggerated his ability to trace hairs to an African American.

Democracy Now posts, "Mississippi to Execute Willie Manning Tonight After Rejecting DNA Tests & FBI’s Admission of Error."

Earlier coverage of Willie Manning's case begins at the link.

Update on the Mississippi Case of Willie Manning

Sunday's McComb Enterprise-Journal published the editorial, "Don’t execute before DNA test."

"Death row inmate deserves DNA testing before May 7 execution," is the title of an OpEd written by Innocence Project co-founders Barry Scheck and Peter Neufeld, published in the Jackson Clarion-Ledger.

Last week the Mississippi Supreme Court in a 5-4 decision denied Willie Manning the opportunity to do DNA testing that could prove he is innocent of the crime that landed him on death row. Tragically, Manning is scheduled to be executed on Tuesday and may never get the opportunity to do the testing that could prove whether he is innocent as he has always maintained.

We urge Gov. Phil Bryant to issue a stay so the testing can be done. While people can differ on whether the death penalty is an appropriate form of punishment, nearly everyone would agree that it should be used only in those cases where we are certain of guilt. DNA testing could provide that certainty or prove, as Manning insists, that he is innocent. It could also, as the Mississippi Supreme Court judges noted in their dissent, provide the identity of alleged second perpetrator who has never been caught.

Eighteen people who served time on death row have been exonerated by DNA evidence since it became available two decades ago. One of those men, Kennedy Brewer, was convicted in Mississippi. Like Manning, Brewer was convicted based on circumstantial evidence and unvalidated forensic science. In Brewer’s case, the prosecution relied on widely discredited bite mark testimony, and in Manning’s case the prosecution presented hair microscopy, which because of its unreliability will be subject to a recently announced FBI nationwide review. The DNA evidence in Brewer’s case proved his innocence and identified the real perpetrator who confessed to the crime and another murder for which someone had been wrongly convicted and sentenced to life. Fortunately, that man, Levon Brooks, was also exonerated.

The Associated Press files, "Suit filed to preserve evidence in Mississippi death row case of Willie Jerome Manning."  It's via the Mississippi Press.

An advocacy group and the brother of an inmate scheduled for execution Tuesday have filed a lawsuit to preserve evidence in the case for additional testing, whether the man is put to death or not.

The lawsuit was filed Friday in Oktibbeha County Chancery Court, a day after the FBI said there were flaws in the "microscopic hair comparison analysis testimony or laboratory report" in the case of Willie Jerome Manning.

The agency offered to do DNA testing.

Manning, now 44, was sentenced to death in the 1992 slayings of two students. Manning says he's innocent and that hair found in one victim's car was not proved to be his.

The Innocence Project of Mississippi and Manning's brother filed the suit, which seeks a temporary restraining order that would prevent the destruction of evidence in the case.

A Jackson attorney who represents the Mississippi Innocence Project in the lawsuit said the group wants to preserve the evidence for DNA and other testing.

"We're hoping to get this evidence tested and let the truth come out," Robert McDuff said Sunday. "Hopefully, the governor or the courts will stay the execution so we can determine prior to the execution what the DNA shows. But even if they don't, there are a lot people who still want to see the evidence tested to determine once and for all who is responsible for this crime."

"Mississippi Inmate’s Bid for DNA Tests Is Denied With Tuesday Execution Set," is the New York Times report by Campbell Robertson.

The State of Mississippi has denied requests for DNA testing of evidence made by a prisoner set to be executed on Tuesday, potentially setting up what experts said would be a rare case in recent years in which a person is put to death with such requests unmet.

The Mississippi Supreme Court, in a 5-to-4 decision, ruled in April that the existing evidence tying Willie Jerome Manning to the murder of two college students in 1992 was so strong that the findings of DNA tests would not make a difference.

Lawyers for Mr. Manning say that there are flaws in the prosecution’s case, which is almost entirely circumstantial, but that at the very least tests of the available physical evidence should be conducted before his execution. They are now lobbying the governor.

Richard C. Dieter, the executive director of the Death Penalty Information Center, said that fights over testing were not uncommon but that if testing were not eventually allowed before the execution, “that would be very rare indeed.”

“Today I think it’s become increasingly rare not to go through the whole bank of tests because of what’s at stake,” Mr. Dieter said.

The Washington Post reports, "Justice Dept. admits flaws in forensic testimony in Mississippi death-row case," by Spencer S. Hsu.

The Justice Department has acknowledged flaws in forensic testimony by the FBI that helped convict a man in the 1992 slayings of two Mississippi State University students, and federal officials have now offered to retest the DNA in the case.

The extraordinary admission and offer come just days before the man is scheduled to die by lethal injection on Tuesday and present a quandary for Mississippi officials about whether to stop the execution of Willie Jerome Manning, 44.

Manning’s lawyers asked Gov. Phil Bryant (R) for a stay. Bryant spokesman Mick Bullock said in a written statement Friday that the governor is reviewing the facts of the case.

Federal officials found Manning’s case as part of a broad review of the FBI’s handling of scientific evidence in thousands of violent crimes in the 1980s and 1990s.

The Justice Department announced last summer an effort to correct past errors in forensic hair examinations before 2000 — at least 21,000 cases — to determine whether agents exaggerated the significance of purported hair “matches” in lab reports or trial testimony.

The reviews were prompted by a series of articles in The Washington Post that found that the Justice Department ignored warnings about widespread problems in cases that relied on hair identification.

Manning’s case presents a difficult first test of the Justice Department review. Last week, the Mississippi Supreme Court denied a request by Manning’s lawyers to reexamine a rape kit, fingernail scrapings, hairs and fingerprint evidence in the case, ruling narrowly that even if Manning’s DNA was absent, that would not be enough to overturn his 1994 conviction.

Andrew Cohen posts, "A Ghost of Mississippi: The Willie Manning Capital Case," at the Atlantic.

The cornerstone of the edifice of capital punishment in America -- the building block upon which public support for the death penalty rests -- is the accuracy of the result. Ask any pollster and she will tell you that the more convinced Americans are about the accuracy of a capital conviction, they more likely they are to support the execution of the condemned. Conversely, the more concerned Americans are about the reliability of capital cases, the less inclined they are to endorse the death penalty. The relevant question is not: "Did you get the right guy?" Instead it is: "Exactly how sure are you that you got the right guy?"

The answer to that question, in the case of Willie Jerome Manning of Mississippi, surely is: "Not very sure." There is no physical evidence linking Manning to the 1992 murders of two Mississippi State University students. The "jailhouse informant" who once told trial jurors that Manning "confessed" to the crime, has since recanted, telling defense lawyers he thought he would receive "consideration" from prosecutors for incriminating Manning. And Mississippi officials now are refusing to test DNA and fingerprints found at the crime scene -- evidence which did not directly incriminate Manning before, has never been tested using modern procedures, and which might definitely resolve the case one way or the other.

There is more. Although there was incriminating evidence against him at trial, Manning has always maintained his innocence. And jury selection during his 1994 trial -- wherein a black man was accused of murdering two white people in the Deep South -- was marked by the sort of racial attitudes over peremptory challenges that has since caused the United States Supreme Court, in Miller-El v. Dretke and Snyder v. Louisiana, to caution state lawyers about coming into appellate courts with "unreasonable" justifications for excluding black jurors from cases involving black defendants. Over and over again, Manning's prosecutors excluded black jurors from his trial, sometimes for no other reason than that they read "black" magazines.

Earlier coverage of Willie Manning's case begins at the link.  There is also more on his case is at the Justice 4 Willie website.

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.

The Willie Manning Case in Mississippi

"Death row inmate opposes setting execution date," is the AP report by Jack Elliott Jr, via the San Francisco Chronicle.

Death row inmate Willie Jerome Manning has told the Mississippi Supreme Court that he has more arguments to make, meaning now is not the time to be setting an execution date sought by the attorney general's office.

Manning was recently denied an appeal by the U.S. Supreme Court in the deaths of two college students. The attorney general's office asked the Mississippi court to schedule the execution for April 24.

In a brief filed Monday, Manning's attorney said there are issues pending before the state high court. Manning is seeking a new trial, arguing that a jailhouse informant had recanted his testimony; that Manning's trial attorney was ineffective; and that blacks were improperly kept off his trial jury.

The Northeast Mississippi Daily Journal reports, "Willie Jerome Manning next in line on death row."  It's by Patsy R. Brumfield.

Willie Jerome Manning could become Mississippi’s next convicted murderer to be executed, if his further appeals are not effective.

Manning is accused in two sets of murders, although this death sentence is for only the 1992 fatal shootings of two Mississippi State University students, Pamela Tiffany Miller, 23, of Madison and Jon Stephen Steckler, 19, of Natchez.

He also was convicted in another double murder, but a trial judge delayed a decision on appeals issues until late June.

The state Attorney General’s Office recently asked the Mississippi Supreme Court to set Manning’s execution date after the U.S. Supreme Court declined to consider his case.

But earlier this week, Manning’s legal team told the appeals court he has more arguments to make, so it’s not the time to set a date for him to die.

And:

Manning is one of Mississippi’s 48 prisoners on Death Row for murder, some with other associated crimes. Two are women. Thirteen are Northeast Mississippi cases.

Earlier coverage of Willie Manning's case begins at the link.  More on his case is at the Justice 4 Willie website.

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.

Ohio Supreme Court to Review Controversial Case

As 2012 was winding down, Andrew Cohen was already peering into 2013, "The Law: 10 Days to Watch in 2013," at the the Atlantic.

January 8: The Ohio Supreme Court will hear oral argument in a capital case that touches upon virtually every failing you ever see in a capital case. There is no physical evidence against Tyrone Noling, convicted of murdering an elderly man and woman in their Ohio home in 1990. All of the primary witnesses against him have recanted their testimony, and there are allegations of coercive interrogation tactics on the part of the police. Meanwhile, prosecutors withheld evidence at trial. And yet today they continue to refuse to allow DNA testing of a cigarette butt found at the scene of the crime that might exonerate the defendant. Noling's execution has been stayed. His lawyers say he deserves a new trial.

Today's Akron Beacon Journal publishes the editorial, "Growing doubt."

On Tuesday, the Ohio Supreme Court will hear arguments in the case of Tyrone Noling, a resident of death row, found guilty in 1996 of murdering an elderly Atwater Township couple. Noling and his attorney want the justices to grant DNA testing of the crime scene, in particular, a cigarette butt found on the driveway. The court will weigh rather narrow questions of interpretation and jurisdiction. What should concern Ohioans more broadly is the mounting information that casts doubt on the Noling conviction.

Actually, doubt has been warranted from the beginning. Noling and three other young men did conducted thefts from cars and two home robberies in April 1990. The killing of Cora and Bearnhardt Hartig, shot at their kitchen table? The Portage County sheriff investigated, and concluded about Noling and friends: “It just didn’t fit.”

No physical evidence has been found linking Noling to the crime scene. Noling had picked up a .25 caliber handgun, the kind of weapon used in the killing. But markings on the bullets excluded his gun. Little at the scene resembled the robberies involving Noling in Alliance.

What changed after the sheriff’s assessment? The prosecutor’s office put an investigator on the trail. He eventually gained confessions from the three friends, pointing the finger at Noling. Their testimony proved persuasive enough at trial, even though one recanted on the witness stand. The others recanted later, sharing their descriptions of the coercion, threats and other methods of manipulation employed by the investigator.

And:

Ideally, in view of the growing and substantial doubt, Tyrone Noling would receive a new trial. A jury would weigh the full array of evidence. For now, he deserves the requested DNA testing. Hard to believe the prosecution fails to see the value in answering the question about Daniel Wilson. In death penalty cases, the state must take great care in ensuring the correct outcome. It doesn’t want to be in the position of committing its own murder, of executing the wrong man.

WAKR-AM posts, "Portage Death Row Inmate Gets Supreme Court Review."

A Portage County death row inmate is getting an Ohio Supreme Court review that he hopes will set him free.

Tyrone Noling wants DNA re-testing of evidence - a cigarette butt - that could point instead to a now-executed prisoner, in the shooting deaths of Bearnhardt and Cora Hartig, both 81, at their home in in Atwater in 1990.

Noling tried to get the testing under a new law passed in 2010, but was denied any new motions since earlier calls for retesting were denied. Noling is current serving his sentence at the Chillicothe Correctional Institution's Death Row.

It's that denial which is being reviewed by Ohio's top court on Tuesday.

"Ohio’s top court to hear Alliance man’s case," by Shane Hoover for the Canton Repository.

The Ohio Supreme Court has issued a summary of the issues involved, "Does 2010 Law Require Court to Consider New Request for Postconviction DNA Testing Despite Denial of Earlier Request?"

The law blog Legally Speaking Ohio posts, "Oral Argument Preview: How Many DNA Tests Can A Prisoner Get? State v. Tyrone Noling (Parts I & II)

Latest Developments in the Justin Wolfe Case

The Federal District Court order in Wolfe v. Clarke is available in Adobe .pdf format.

The Washington Examiner posts an editorial, "Capital case exposes prosecutorial misconduct."

Before Prince William County prosecutors made headlines in the Beltway sniper case, they helped send former Chantilly High School football player Justin Wolfe to Virginia's death row for the March 2001 murder of Danny Petrole, a community college student and the son of a retired Secret Service agent. Petrole was also the kingpin of one of the largest drug rings ever uncovered in Northern Virginia.

But now a federal judge in Norfolk has ordered Wolfe's release, raising disturbing questions about prosecutorial misconduct in capital cases.

In 2011, U.S. District Judge Raymond Jackson overturned Wolfe's conviction, ruling that prosecutors wrongly withheld exonerating evidence. Last August, a three-judge appellate panel agreed.

And:

In Wolfe's case, Prince William fell far short of acceptable prosecutorial standards. Disciplinary action should be taken against all involved in this shocking miscarriage of justice.

"Attorney general’s office to appeal order barring retrial," is by Frank Green for the Richmond Times-Dispatch. 

The Virginia Attorney General’s Office will appeal a federal judge’s order barring the retrial of Justin Wolfe in a 2001 capital murder in Prince William County.

On Wednesday, U.S. District Judge Raymond A. Jackson of Norfolk ordered Wolfe freed from jail within 10 days and barred any retrial in the murder-for-hire of Daniel Petrole Jr., his marijuana supplier.

A spokesman for the attorney general’s office said Thursday that an appeal of Jackson’s retrial order will be filed. Raymond Morrogh, the Fairfax County commonwealth’s attorney and the appointed special prosecutor in the case, said a stay will be sought to halt any release of Wolfe pending a new trial.

Wolfe, 31, is being held at the Prince William County Jail.

Last year Jackson, citing prosecutorial misconduct, threw out Wolfe’s conviction and gave the state 120 days to retry him. On Wednesday, Jackson ruled that the 120-day period had expired and ordered Wolfe released.

Jackson also barred any retrial of Wolfe that would require the testimony of Owen Barber IV, the triggerman and the state’s star witness at Wolfe’s 2002 trial.

Last week, the Times-Dispatch reported, "Judge orders release of former death-row inmate."  It was also written by Frank Green.

A federal judge Wednesday ordered the release within 10 days of former death row inmate Justin Wolfe who was convicted of the 2001 murder-for-hire of Daniel Petrole Jr.

In addition, U.S. District Judge Raymond A. Jackson barred any retrial of Wolfe for Petrole’s death that would require the testimony of Owen Barber IV, the triggerman and key witness in Wolfe’s 2002 Prince William County trial.

A spokesman for the Virginia Attorney General’s office could not be reached for comment Wednesday but Kimberly Irving, one of Wolfe’s lawyers, said she expects the state to appeal Jackson’s ruling.

Last year Jackson tossed out Wolfe’s conviction and death sentence citing prosecutorial misconduct and gave the state 120 days to retry him. On Wednesday, Jackson found the state had exceeded the deadline.

Jackson’s order also held that a Sept. 11 visit to Barber in prison by Prince William County authorities has rendered a new trial involving Barber unfair to Wolfe.

Irving said she believes Jackson’s ruling means that even if authorities decide they could retry Wolfe in Petrole’s slaying without Barber’s testimony, they would still be barred because Wolfe could not use Barber as a defense witness.

Earlier coverage of Justin Wolfe's case begins at the link.

News Coverage of Justin Wolfe's Virginia State Court Hearing

"Judge hears accusations of prosecutorial misconduct in Va. death-penalty case," is the AP report, via the Washington Post.

No one was more instrumental in putting then-20-year-old Justin Wolfe on death row than his one-time associate, Owen Barber IV.

And no one was more crucial a decade later in getting Justin Wolfe off death row than Barber, who eventually recanted the testimony against Wolfe that was integral to Wolfe’s capital murder conviction.

Now lawyers on both sides are trying to figure out what story Barber will tell next, and a judge must decide whether prosecutors were improperly trying to sway Barber back to their side during a jailhouse visit in September.

A Prince William County judge heard evidence Tuesday on defense lawyers’ motion to toss out the new murder charges against Wolfe. The lawyers claim prosecutors threatened Barber with the death penalty if he continued to disavow his original testimony. The judge will hear further arguments later this week.

And:

Now, with Wolfe’s retrial scheduled for Jan. 2, attention is focused on a two-hour jailhouse visit to Barber by Prince William County prosecutors Paul Ebert and Richard Conway. The judge heard a nearly two-hour recording of the visit Tuesday.

In the meeting, prosecutors make it clear to Barber that recanting his trial testimony violates the terms of his plea bargain, and they could bring capital charges against Barber. It’s also clear from the recording that Barber had no idea that his recantation could potentially put him on death row.

But prosecutors and the defense interpret the meeting differently. The defense argues the visit is a thinly veiled threat to Barber that he must either testify the way the government wants or face execution.

Inside NoVa (Northern Virginia) posts, "Defense attorneys play jailhouse recording in Wolfe case," by Amanda Stewart.

A meeting Prince William county prosecutors had with Owen Barber, a key witness in the Justin Wolfe capital murder case, at a state prison in September was again at the center of pretrial hearings in the case Tuesday.

Wolfe’s defense attorneys played a recording of that visit during a hearing in Prince William Circuit Court to persuade Judge Mary Grace O’Brien that prosecutors acted improperly.

Defense attorneys argued that Prince William Commonwealth’s Attorney Paul Ebert, Assistant Commonwealth’s Attorney Richard Conway and Prince William police Detective Sam Newsome’s jailhouse interview with Barber in September amounted to prosecutorial misconduct and so the charges against Wolfe should be dismissed.

Days after that meeting, Ebert recused himself and his office, and Fairfax County Commonwealth’s Attorney Raymond Morrogh was appointed to serve as special prosecutor in the case.

And:

More hearings in the case will be heard Friday.

Earlier coverage of Justin Wolfe's case begins at the link.

Coverage of Hearing in the Justin Wolfe Case

"Va. prosecutors defend actions in capital retrial; defense wants case tossed out," is the AP report, via the Washington Post.

Prosecutors on Tuesday disputed allegations that they threatened a key witness in the death-penalty retrial of an alleged drug dealer whose original capital conviction was overturned on accusations of prosecutorial misconduct.

Defense attorneys for Justin Wolfe want a judge to dismiss the renewed charges against their client. Specifically, they say prosecutors in Prince William County engaged in further misconduct this September when they visited their one-time star witness, Owen Barber, in a Virginia prison.

Barber testified against Wolfe a decade ago, admitting he was the triggerman in a murder-for-hire scheme allegedly orchestrated by Wolfe against another drug dealer, Daniel Petrole. Barber’s testimony was instrumental in convicting Wolfe, who landed on death row.

But Barber eventually recanted his testimony, and a federal judge overturned Wolfe’s conviction and death sentence, sending the case back to Prince William County for a retrial.

And:

The jailhouse interview will be the subject of a full hearing Dec. 18 in Manassas. It was mentioned only briefly during a hearing Tuesday in Prince William Circuit Court that dealt with other pretrial matters.

The federal judge who overturned Wolfe’s conviction, U.S. District Judge Raymond Jackson, is also interested in the jailhouse interview. He is holding a hearing Thursday in Norfolk on a defense motion to dismiss the retrial on the grounds that prosecutors failed to retry Wolfe in the 120-day time frame that he allotted them when he remanded the case. But in an order Jackson filed Monday, he indicated that he also wants to explore the circumstances surrounding the jailhouse interview.

Earlier coverage of Justin Wolfe's case begins at the link.

New Developments in Justin Wolfe Case in Virginia

"Va. judge hears motions seeking dismissal of death penalty retrial," is the AP report, via the Washington Post.

A judge will again hear arguments seeking to toss out capital murder charges against an alleged northern Virginia drug dealer whose initial death sentence was overturned on accusations of prosecutorial misconduct.

A hearing is scheduled Tuesday in Manassas in the retrial of Justin Wolfe. He was convicted a decade ago of orchestrating a murder for hire of a fellow drug dealer.

But federal courts overturned the conviction and death sentence after ruling that prosecutors failed to turn over key evidence and after the alleged hitman recanted his testimony.

The case is being retired by a special prosecutor, Fairfax County Commonwealth’s Attorney Ray Morrogh.

A hearing is also scheduled for Thursday in federal court in Norfolk seeking to dismiss the retrial on different grounds.

Earlier coverage of Justin Wolfe'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.

An Update From Virginia on the Justin Wolfe Case

"Wolfe again seeks end to death-penalty retrial," is the AP report by Matthew Barakat.  It's via the San Francisco Chronicle.

A key witness who recanted his testimony in a death-penalty case was told by prosecutors that he could face the same punishment himself if he does not go back to his original story, according to defense lawyers.

The allegation about witness Owen Barber is contained in a motion that seeks to dismiss the capital retrial of Justin Wolfe, whose original conviction and death sentence were overturned after a decade on death row on accusations of prosecutorial misconduct.

The motion contains details of a jailhouse discussion in September between prosecutors and Barber, their one-time star witness who avoided the death penalty by testifying against Wolfe in 2001. Initially, Barber, the triggerman in the shooting of rival drug dealer Daniel Petrole, said he was acting on behalf of Wolfe. Barber later recanted, leading a federal judge to overturn the conviction.

In court papers, Wolfe's defense lawyers describe parts of the jailhouse conversation. They say that Barber maintained that his original testimony implicating Wolfe was false. Prosecutors then tell Barber that the case is back at "square one" and that Barber himself could face death penalty charges if he failed to uphold his original testimony, according to the motion.

And:

More broadly, the defense argues that the retrial amounts to a vindictive prosecution because the new charges are harsher than those originally filed against Wolfe, including an additional death-penalty count based on an allegation of a "continuing criminal enterprise."

"It is constitutionally impermissible to add new charges against someone who's been declared innocent by a federal court," said defense lawyer Edward MacMahon.

A judge will likely hold a hearing on the motion in coming weeks.

Lawyers are also seeking to have the case tossed out in federal court, arguing that state prosecutors failed to follow a federal judge's order to either retry Wolfe in 120 days or grant his unconditional release.

Earlier coverage of Justin Wolfe'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.

83rd Texas Legislature Convenes January 8

The 140-day legislative session will convene on January 8th and adjourn on May 27th.  Pre-filing of bills has begun.

"Bill Would Restrict Informant Testimony in Death Cases," is Brandi Grissom's Texas Tribune post on one of the pre-filed bills.  Here's an extended excerpt from this must-read:

Anthony Graves was wrongly convicted and sent to death row in 1994 based largely on the testimony of an alleged accomplice in the fiery murders of six people. The accomplice, while on the execution gurney, admitted he was the lone killer. Ten years later, in 2010, Graves was exonerated. 

Like Graves, Muneer Deeb, Michael Toney and Robert Springsteen were sentenced to death after trials that involved the testimony of their cellmates or alleged accomplices. Their convictions were all overturned. 

State Rep. Harold Dutton, D-Houston, has filed a bill, HB 189, that aims to prevent wrongful death sentences in cases that involve unreliable testimony from alleged accomplices or jailhouse snitches who receive a reward for implicating someone else. 

“What we have found is that there have been people who, for their own self-interest, have basically fabricated testimony about other folks, and as a consequence that person has been found guilty,” Dutton said. 

Criminal justice reform advocates said the measure is a critical next step in Texas’ efforts to prevent wrongful convictions. Critics of the measure, though, argue that current rules already protect defendants against unreliable testimony and that eliminating such accomplice or informant testimony could tie prosecutors’ hands.

Under HB 189, prosecutors in death penalty cases would be unable to use testimony from informants or from alleged accomplices of the defendant if the evidence were obtained in exchange for immunity, leniency or any other special treatment. The measure would also make testimony from cellmates of the defendant inadmissible unless the conversation was recorded. 

“Odd as it may sound, Texas is at the vanguard of snitch testimony,” said Alexandra Natapoff, a law professor at Loyola Law School Los Angeles, and author of the Snitching Blog. Texas was one of first states to require the corroboration of jailhouse informant testimony and drug snitches, she said. And Dutton’s bill would make Texas among the first states to prohibit prosecutors from offering criminals benefits for their testimony. 

A 2004 Northwestern University study of wrongful convictions found that informants played a major role in more than 45 percent of overturned death sentences nationwide.

More on HB 189, including the text, is at the link.  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 informant/snitch testimony, state legislation and Texas Legislature category indexes

An Update on the Justin Wolfe Case in Virginia

"Prosecutors accused of bias in capital case retrial; defense wants special prosecutor off case," is the AP report, via the Washington Post.

Defense attorneys on Wednesday accused prosecutors in Fairfax and Prince William counties of bias in their efforts to retry a former death-row inmate whose conviction and sentence were overturned by a federal court.

Attorneys for Justin Wolfe sought to put on evidence at an acrimonious hearing in Prince William Circuit Court to have special prosecutor Ray Morrogh disqualified from the case.

The defense alleges that Morrogh, the commonwealth’s attorney in Fairfax County, is essentially in cahoots with Prince William County Commonwealth’s Attorney Paul Ebert, who first convicted Wolfe. Morrogh and Ebert are friends who have collaborated on cases before, including the 2003 prosecutions of the D.C. snipers, John Allen Muhammad and Lee Boyd Malvo.

Ebert recused himself from Wolfe’s retrial when the federal court that overturned the conviction accused Ebert of prosecutorial misconduct. Ebert successfully petitioned the judge to have Morrogh named as his replacement.

The defense alleges that Morrogh’s friendship with Ebert calls into question whether Morrogh would confront the accusations of impropriety against Ebert, who was accused by a federal judge of deliberately withholding evidence of Wolfe’s innocence. The defense has claimed that Morrogh’s overriding interest will be to vindicate his friend at any cost by obtaining another capital conviction.

And:

A federal appeals court earlier this year upheld a judge’s decision to toss out Wolfe’s conviction and death sentence in the slaying of his marijuana supplier, Daniel Petrole, in a 2001 case that exposed the workings of an elaborate drug ring in wealthy northern Virginia. The court ruled that prosecutors wrongly withheld evidence from Wolfe’s attorneys that discredited the government’s star witness — triggerman Owen Barber IV. who later recanted his testimony that Wolfe was involved in Petrole’s killing.

WUSA-TV reports, "Justin Wolfe of Manassas, Va., convicted in murder-for-hire case, back in court for pre-trial hearing."  It's by Peggy Fox.

Judge Mary Grace O'Brien rejected the defense subpoena to force Paul Ebert and Richard Conway to testify in today's hearing. The motion under review today and continuing is whether special prosecutor Fairfax County Commonwealth's Attorney Ray Morrogh should be removed. Ebert, after recusing himself from the case, recommended Morrogh for the job and Judge Obrien made the appointment.

The defense believes Morrogh cannot be impartial in the retrial because of his close relationship with Ebert.

"Letter urges removal of special prosecutor in Prince William," is an earlier AP report by Larry O'Dell.  It appeared in the October 25 edition of the Richmond Times-Dispatch.

Fifty-nine former judges, prosecutors and other attorneys sent a Prince William County judge a letter Wednesday advocating the removal of the special prosecutor in a high-profile murder-for-hire case.

A federal appeals court this year upheld a judge's decision to toss out Justin Wolfe's conviction and death sentence in the slaying of his marijuana supplier, Daniel Petrole.

The court ruled that prosecutors wrongly withheld evidence from Wolfe's attorneys that would have discredited their star witness - triggerman Owen Barber IV, who later recanted his testimony.

And:

The letter was filed along with court papers by Wolfe's lawyers, Edward Ungvarsky and Kimberly Irving, alleging that Morrogh has been improperly collaborating with Ebert and his aides as he prepares for the retrial.

They also say Ebert orchestrated the appointment of Morrogh, his longtime friend, prompting "public concern and loss of confidence in the integrity of court proceedings."

Earlier coverage of Justin Wolfe'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.

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.

Justin Wolfe Case Update

"Va. prosecutor preparing to retry man whose death penalty conviction was overturned," is the AP filing, via the Washington Post.

A Prince William County prosecutor says his office is preparing to retry a former death row inmate whose conviction was overturned on accusations of government misconduct.

Justin Wolfe was recently released from Virginia’s death row and transferred to the Manassas jail. He had been sentenced to death for a drug-related slaying in 2001.

Earlier this year, though, a federal judge tossed out his conviction and death sentence. A federal appeals court said prosecutors wrongly withheld information from Wolfe’s lawyers that would have helped him at trial.

At a status hearing Monday in Manassas, a judge set a Friday bail hearing for Wolfe. After the hearing, senior Prince William prosecutor Rick Conway told reporters that preparations are under way for a retrial.

Earlier coverage of Justin Wolfe'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.

Justin Wolfe Moves Step Closer to Full Exoneration

"Va. won't appeal decision vacating death sentence," is Larry O'Dell's AP breaking news report, via the Richmond Times-Dispatch.

The Virginia attorney general's office said today it will not appeal a court's ruling exonerating a death row inmate convicted of hiring another man to kill his marijuana supplier.

Justin Michael Wolfe was sentenced to death for the 2001 slaying of Daniel Petrole Jr. in a case that exposed a multimillion-dollar drug ring run by young people barely out of high school in the affluent northern Virginia suburbs. A three-judge panel of the 4th U.S. Circuit Court of Appeals last month upheld a judge's decision vacating the 31-year-old's conviction and sentence because prosecutors withheld evidence that would have discredited their star witness -- the triggerman, who later recanted his testimony.

Attorney General Kenneth Cuccinelli's office did not oppose a ruling today finalizing the appellate court's decision.

"In our opinion, further litigation would not change the result," Cuccinelli spokeswoman Caroline Gibson wrote in an email to The Associated Press.

She referred further questions to the Prince William County prosecutor's office, which will determine whether to retry Wolfe. Commonwealth's Attorney Paul Ebert did not immediately respond to a voice mail message.

Technically, the attorney general's office still has until mid-November to appeal to the U.S. Supreme Court, but Wolfe's attorney was encouraged by the developments.

"We are optimistic this means the attorney general's office is not going to pursue further appeals, and the only question is whether the commonwealth's attorney is going to allow Justin to return home or retry him," attorney Ashley Parrish said.

He added that he will ask for Wolfe's release from prison "at the appropriate time."

And:

Wolfe would become the first wrongfully convicted inmate freed from Virginia's death row since DNA evidence cleared Earl Washington in 2000.

Wolfe was convicted largely based on the testimony of Owen Barber IV, who in 2005 recanted his story that Wolfe hired him to kill Petrole. After a four-day evidentiary hearing last year, U.S. District Judge Raymond A. Jackson found Barber's recantation credible and ruled that prosecutors improperly suppressed several pieces of evidence.

The appeals court zeroed in on one piece of withheld evidence: a report by a detective who flew to California to bring Barber back to Virginia. The report said the officer told Barber he might avoid the death penalty if he implicated Wolfe in the slaying. Barber later agreed to plead guilty to first-degree murder and testify against Wolfe in exchange for a life sentence.

Appeals Court Judge Robert King wrote that the report "is indubitably impeaching, in that it establishes a motive not only for Barber to implicate someone else, but to point the finger specifically at Wolfe."

Earlier coverage of Justin Wolfe'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.

 

Virginia Will Not Seek En Banc Review of 4th Circuit Justin Wolfe Ruling

"State declines 1 of 2 appeal options in murder-for-hire case," is the AP report, via the Salisbury Times.

The Virginia attorney general’s office has eliminated one of its two options for appealing a court’s decision vacating a death row inmate’s conviction and sentence.

Justin Wolfe was convicted of hiring someone to kill his marijuana supplier in 2001. A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled Aug. 16 that Wolfe’s conviction should be vacated and he should be freed from prison because prosecutors withheld evidence that would have discredited their key witness — the triggerman who testified against Wolfe, but later recanted.

Thursday was the deadline if the attorney general’s office wanted to appeal the panel’s decision to the full federal appeals court. Brian Gottstein, a spokesman for Attorney General Ken Cuccinelli, said that option was ruled out.

However, he said no decision has been made on whether to appeal to the U.S. Supreme Court. The deadline for that is mid-November.

The state also could accept the panel’s decision and either let Wolfe go free or retry him.

Wolfe’s attorney, Ashley Parrish, said he was pleased with the decision not to seek a rehearing in the appeals court.

“We hope it’s an indication they don’t intend to seek further review from the Supreme Court and will reach the right decision of letting Justin Wolfe go home to his family,” Parrish said.

Earlier coverage of Justin Wolfe'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.

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 Justin Wolfe Case

"Ending the pursuit of an innocent man," is the editorial in today's Virginian-Pilot.

In 2001, aggressive Prince William County prosecutors concealed critical evidence that would have helped Justin Michael Wolfe's defense against a murder charge. They withheld eight pieces of material evidence, persuaded the real killer to implicate Wolfe to get a lighter sentence, then argued successfully to put 19-year-old Wolfe on death row.

On Thursday, a three-judge panel of the U.S. Court of Appeals documented the behavior by prosecutors and police. The court upheld a federal judge's decision to vacate Wolfe's convictions and death sentence.

Rather than seek a rehearing in federal court or a retrial in Prince William County, the state should stop its years-long persecution of Wolfe and set him free.

And:

A police report, hidden from Wolfe's attorneys until a judge forced disclosure years later, shows that a detective planted the idea that Barber could finger Wolfe as the one who ordered the killing. In exchange for his testimony, the detective said, Barber - who actually pulled the trigger - might avoid the death penalty.

It's unconscionable that the public safety officials who are supposed to seek justice on behalf of Virginians have done so much to prevent attorneys, judges, a jury - and the man whose life was on the line - from seeing all the evidence.

Wolfe, now 31, came within two weeks of being executed in 2005.

The editorial also calls for Virginia to abolish capital punishment:

The 11-year hell that Wolfe and his family - and the family of Petrole, who was 21 when he was gunned down - have endured is one more example of why Virginia should stop sentencing people to die. The chance of making an error, of killing an innocent, is too great.

Earlier coverage of Justin Wolfe'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.

Delma Banks Accepts Life Sentence

"Death Row Inmate's Sentence Reduced to Life," is the title of Brandi Grissom's Texas Tribune post.

Delma Banks Jr., who has been on death row for three decades, on Wednesday accepted a life sentence and will be eligible for parole in 2024 under an agreement with Bowie County prosecutors.

Banks, 53, was convicted of the 1980 shooting death of 16-year-old Richard Whitehead. The U.S. Supreme Court overturned Banks’ death sentence in 2004, finding that Bowie County prosecutors who tried the case suppressed evidence and deliberately covered up their mistakes for decades. A trial to decide a new sentence for Banks was scheduled for October.

Bowie County District Attorney Jerry Rochelle told the Texarkana Gazette that Whitehead’s family wanted the case to end.

And:

Almost 20 years after the trial, in 1999, a federal judge forced Bowie County to open its case records. Banks’ lawyers discovered a transcript showing that Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Banks, he said. Prosecutors allowed Cook and Farr to lie in court and never told jurors that their information was false, the U.S. Supreme Court found.

The AP filing is, "30-year-old death row case ends with plea deal."  It's via the Sacramento Bee.

One of Texas' longest-serving death row inmates has avoided execution for a slaying more than three decades ago with a sentencing agreement that makes him eligible for parole in 12 years.

Delma Banks arrived on death row in 1980 for stealing the car and fatally shooting a teenager six months earlier near Texarkana in far northeast Texas.

Banks long argued his trial for killing 16-year-old Wayne Whitehead was unfair, contending prosecutors withheld information that a witness during his punishment trial was a paid police informant.

The U.S. Supreme Court upheld 53-year-old Banks' conviction but agreed he should have a new punishment hearing.

The Texarkana Gazette reports the plea agreement was reached Wednesday.

In 2003, Banks got within 10 minutes of his scheduled execution before the Supreme Court stopped it.

Earlier coverage of Delma Banks' case begins at the link.  Related posts are in the prosecutorial misconduct index.

More on the U.S. Supreme Court's 2004 ruling in Banks v. Dretke, is via Oyez.

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.

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.

New California Law on Corroboration

"Law requires corroboration of cellmate's testimony," is the title of Bob Egelko's report in the San Francisco Chronicle.

Testimony by jailhouse informants will no longer be enough to convict criminal defendants in California under hotly contested legislation signed Monday by Gov. Jerry Brown.

SB 687 by Sen. Mark Leno, D-San Francisco, applies to cases in which an inmate, often in exchange for leniency, testifies that a cellmate confessed to a crime. The bill, effective next year, will require prosecutors to corroborate that testimony.

Similar laws are in effect in 17 other states. But Gov. Arnold Schwarzenegger vetoed the same proposal twice at the urging of the California District Attorneys Association, which also opposed Leno's bill.

The prosecutors' group argued that there was no need for such a law, since judges already tell juries to consider an informant's testimony with caution. The association also said a ban on uncorroborated informant testimony would make jailhouse crimes harder to prosecute.

But Leno said informant testimony is often self-serving and unreliable and can lead to convictions of the innocent. Defense lawyers and civil-liberties advocates who supported SB687 were joined by the district attorneys of San Francisco and Los Angeles, who say a requirement of corroboration, already in effect in their offices, actually leads to stronger prosecutions.

Leno praised Brown's action, saying, "Without the safeguards created in this legislation, the potential for the miscarriage of justice when informant testimony is involved is just too high."

The informant measure was one of several proposed by a statewide commission, headed by former Attorney General John Van de Kamp, that the state Senate established in 2004 to look into the causes of wrongful convictions.

More on SB 687, via the California State Legislature website.

Alexandra Natapoff posts, "California passes jailhouse informant corroboration law," at Snitching Blog.

Governor Brown just signed important new legislation requiring corroboration before a jailhouse informant can testify. SF Chronicle story here: Law requires corroboration of cellmate's testimony. California joins Texas, Illinois, Massachusetts, Idaho, and several other states that require safeguards to counteract the well-documented unreliability of jailhouse snitch testimony. Here is part of the bill:

A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant.

I'm adding Snitching Blog to the More Criminal Justice Web Resources webroll in the left-column.  It's a fantastic resource.  Thanks to Saor Stetler for forwarding.

Related posts are in the informant / snitch testimony index.

Agreement in Tarrant County Resentencing

"Death sentence will likely change for woman in Mansfield slayings," is the title of Melody McDonald's report in today's Fort Worth Star-Telegram.

Six years ago, convicted killer Chelsea Richardson became the first woman in Tarrant County to be sentenced to death.

But in all likelihood, Richardson, 27, will soon be leaving Death Row.

After nearly four years of legal battling, Richardson's appellate attorney and the Tarrant County district attorney's office agreed that the former prosecutor on her case withheld evidence and that she should get a new punishment hearing -- and a life sentence.

The agreement marks the second time in three years that the district attorney's office has agreed to change the outcome of a death penalty case handled by ex-prosecutor Mike Parrish. In both cases, Parrish -- who retired in 2008 amid the controversy -- committed prosecutorial misconduct by withholding evidence that could have been useful to the defense.

"This office will not be a party to the infliction of death as a punishment when there is even an appearance of impropriety on the part of a prosecutor who formerly worked in this office," District Attorney Joe Shannon said. "If the death penalty is to be used, it must be obtained legally, fairly and honestly and without the hint of a possible injustice."

And:

This week, Richardson's attorney, Bob Ford, and Assistant District Attorneys Chuck Mallin and Steve Conder submitted a legal document with their agreement to state District Judge Steven Herod of Eastland County, who was appointed to hear the appeal. If Herod agrees with their conclusions, he will make a recommendation to the Texas Court of Criminal Appeals, the only entity that can order a new punishment hearing.

If the appellate court agrees to the new punishment hearing, both sides then plan to enter into an agreement, and Richardson will receive a life sentence -- a deal that will finally bring the case to a close.

In May 2005, Richardson received a death sentence after she was convicted of capital murder in the slayings of her boyfriend's parents, Rick and Suzanna Wamsley of Mansfield. Authorities said Richardson; her boyfriend, Andrew Wamsley; and friend Susana Toledano killed the couple in 2003 so Andrew Wamsley could inherit his parents' $1.56 million estate.

Toledano -- who did most of the shooting and stabbing -- struck a deal with prosecutors and received a life sentence in exchange for pleading guilty to murder and testifying against Wamsley and Richardson. Wamsley went to trial, was convicted of capital murder and received a life sentence. Richardson, portrayed by prosecutors as the mastermind, also took her chances with a jury, who convicted her of capital murder and sentenced her to death.

And:

Ford's argument centered on the credibility of Parrish, whom he called a "weasel" and a "certified cheat." Ford argued that Parrish failed to give notes by psychologist Randy Price to Richardson's defense team. Price's notes could have suggested that Toledano, not Richardson, was the mastermind.

To bolster his argument, Ford reminded Herod about Parrish's misconduct in another case, which prompted the Texas Court of Criminal Appeals in 2008 to overturn the conviction of Death Row inmate Michael Toney, who had been convicted for a 1995 bombing that killed three people. In that case, the district attorney's office also agreed that Parrish committed prosecutorial misconduct when he failed to turn over to the defense 14 documents containing exculpatory or impeaching evidence.

Toney was released from prison but died in a car wreck before prosecutors decided whether to retry him. Parrish, meanwhile, received a private reprimand by the State Bar of Texas for his conduct in Toney's case.

Coverage of Michael Toney's case begins at the link.  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.

Related posts are in the prosecutorial misconduct index.

The Delma Banks Hearing

"Second Death Penalty Fight Begins in Banks Case," is the title of Brandi Grissom's Texas Tribune post.

Delma Banks Jr. sat attentively in his yellow jumpsuit in the courtroom inside the Bi-State Justice Building on Monday as lawyers and experts debated how to make his second face-off with the death penalty a fairer fight than his first.

Thirty years after Banks was first sent to death row, his hair is gray and his face is rounder than when he first sat before a jury as a 21-year-old. Across the courtroom sat prosecutor James Elliott, his long-time antagonist, now white-haired after three decades of fighting to keep Banks on death row. At 52, Banks is facing the same Bowie County district's attorney office that sent him to death row in 1980 for the shooting death of 16-year-old Richard Whitehead. The same office that the U.S. Supreme Court ruled in 2004 committed misconduct when it tried Banks, suppressing evidence and intentionally hiding its mistakes. Banks’ sentence was overturned, and now he and Elliott, one of the original prosecutors, are once again in the same courtroom fighting for their own versions of justice.

A new trial to decide whether Banks should be executed for the 1980 murder is scheduled for October. At a pre-trial hearing on Monday, lawyers for Banks asked Judge Nathan E. White to consider a slew of motions that they argued are crucial to ensure that Banks gets a fair trial, including disqualifying Bowie County prosecutors from representing the state. They also asked the judge to remove the death penalty as an option in Banks’ case and to order a new trial to determine whether he committed the murder. White did not rule on the motions Monday, but the court heard arguments from the lawyers on both sides and from defense experts, setting the stage for the court battles to come.

And:

George Kendall, a New York-based attorney now representing Banks, told the court that Elliott’s comments to the news media, along with the original misconduct, should disqualify him and the entire Bowie County district attorney’s office from the Banks case. “Mr. Banks has been treated very shabbily,” he said. “The prosecution can be a vigorous advocate for the state’s case, but it can’t transcend and not comply with ethical standards and rules of law.”

In court Monday, Elliott refused to take the witness stand as requested by Banks’ lawyers. “I have no intention of testifying,” Elliott told the judge. “I don’t believe it’s proper.”Arguing against the motion, Elliott said that during the original trial he had not known that Farr was a paid informant or that Cook’s testimony had been coached. He said he “didn’t go hunting the press” to talk about Banks’ case but was defending himself against accusations he had prosecuted an innocent man. And finally, Elliott said, he should not be removed from the case because he promised Whitehead’s father he would see it through. “I intend to keep my promise to that dead boy’s father,” Elliott said. “I have lived with this case since its inception. I would respectfully ask the court let me see it through.”

Banks’ lawyers also asked the court to stop the state from seeking the death penalty because so much time has elapsed since the crime. Defense lawyers are required to present mitigating evidence during the punishment phase of a capital trial to help jurors decide whether the convicted person ought to get life or death. That evidence typically includes family, friends, acquaintances, teachers and others who can help the jury understand what the convicted person’s life was like and what might have led up to the crime at hand. Mitigation expert Danalynn Recer, founder of the Gulf Region Advocacy Center in Houston, told the court that finding people and records to tell the story of Banks’ pre-prison life would be nearly impossible given the passage of time.  

“There’s very little that’s been left after all these years,” Recer said, explaining that 82 of Banks’ family members have died since he went to prison in 1980. More than 80 of his neighbors from the tiny town of Nash have died. Most of his teachers and principals are dead, and so are many of his classmates. “Those are the folks who are able to give the jury reasons to choose life,” she said.

Also:

Judge White made no ruling on the motions Monday, but he said the only issue he had questions about was the motion calling for a new guilt-innocence trial. He indicated he was not inclined to disqualify Elliott or the Bowie County district attorneys office from the case.

The article notes that another hearing is scheduled for next month.

Earlier coverage of the Delma Banks case is at the link.  Related posts are in the prosecutorial misconduct index.

More on the U.S. Supreme Court's 2004 ruling in Banks v. Dretke, is via Oyez.

The Case of Delma Banks

Texas Tribune journalist Brandi Grissom writes, "30-Year-Old Capital Case Returns to Court, With Defense Alleging Bias." for the New York Times

For the second time in three decades, a Texas court is preparing to decide whether Delma Banks Jr. should be executed for the 1980 shooting death of 16-year-old Richard Whitehead.

The United States Supreme Court overturned Mr. Banks’s death sentence in 2004, finding that the Bowie County prosecutors who tried the case suppressed evidence and deliberately covered their mistakes for decades.

“It’s really a remarkable tale of misconduct — just about every kind of thing the prosecution could do that was improper,” said Robert C. Owen, co-director of the Capital Punishment Center at the University of Texas School of Law, who was one of Mr. Banks’s appellate lawyers.

Now, the same district attorney’s office — including one of the same prosecutors who was involved in the original trial — is again seeking the death penalty for Mr. Banks. Despite the Supreme Court’s rebuke, James Elliott, who has been a prosecutor on the case for more than 30 years, has maintained that he will pursue Mr. Banks until he “gets what he deserves.”

At a hearing Monday in a Bowie County state district court, Mr. Banks’s lawyers will ask Judge Nathan E. White to disqualify Mr. Elliott and the local district attorney’s office from the case and to assign different lawyers to represent the state.

“Mr. Elliott’s misbehavior proves that he cannot serve as a disinterested prosecutor and is laboring under a conflict of interest that will prevent Mr. Banks from receiving a fair trial,” lawyers wrote in court documents.

Mr. Banks, who is black and was 21 when the crime was committed, was convicted of killing Mr. Whitehead, who was white, so he could take off with his car. The police found Mr. Whitehead’s body in a park near Texarkana and soon discovered that Mr. Banks had been with him on the last night he was seen alive.

There were no witnesses to the killing and no physical evidence linking Mr. Banks to it. The prosecution’s case relied largely on the testimony of Robert Farr and Charles Cook, both admitted drug users; Mr. Cook also had convictions for robbery by assault and forgery.

And:

In 1999 — almost 20 years after the trial — a federal judge forced Bowie County to open its case records, and Mr. Banks’s lawyers discovered a transcript showing that Mr. Cook’s testimony had been extensively rehearsed and coached. They also learned that the police had paid Mr. Farr, an informant who had an unreliable record, $200 for his role in the investigation.

Mr. Farr, in an affidavit, said he was afraid that the police would arrest him on drug charges. In exchange for the money, and to avoid jail, he agreed to set up Mr. Banks, he said, persuading him to drive to Dallas to get a gun.

Prosecutors allowed Mr. Cook and Mr. Farr to lie in court and never told jurors that their information was false, the Supreme Court found. Mr. Cook denied on the stand that anyone had helped him with his testimony, and Mr. Farr said he had not been paid for his help in the case. During closing arguments, Mr. Elliott told jurors that they should believe Mr. Cook and Mr. Farr.

In arguments before the Supreme Court, state lawyers did not dispute that Mr. Cook had been coached and that Mr. Farr was paid for his help. But they said Mr. Banks’s lawyers were at fault for not uncovering the information sooner.

The Supreme Court ruled that without the testimony of Mr. Cook and Mr. Farr, Mr. Banks might not have been sentenced to death. “It has long been established that the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice,’ ” Justice Ruth Bader Ginsburg wrote in the court’s majority opinion.

Mr. Elliott declined to comment last week about the case. “We’re in litigation,” he said. “The newspaper is the wrong place to be trying cases — it just is. So I can’t give any comment.”

A slightly different version, "Death Row Inmate Faces Same Prosecutors Who Committed Misconduct," at posted at the Tribune.

Banks’ lawyers are also asking the court to throw out the guilty verdict and order a new trial. They contend that the perjured testimony of Cook and Farr and the prosecutors’ withholding of facts also affected their client's ability to defend himself. “Because of the state’s purposeful suppression and misconduct, Mr. Banks was surely denied the full defense available to him,” his lawyers argue in court pleadings.

Owen, of the Capital Punishment Center, said police and prosecutorial errors raised serious questions about whether Banks had actually committed the murder. “In a case where the evidence of guilt is so very thin, and the misconduct by the prosecution is so far-reaching and well-documented,” he said, “there’s no reason for any court to have any confidence the conviction is solid.”

Related posts are in the prosecutorial misconduct index.

More on the U.S. Supreme Court's 2004 ruling in Banks v. Dretke, is via Oyez.

48 Hours on Anthony Graves' Exoneration

"Students help free wrongfully convicted man," is the title of the CBS News program, "48 Hours Mystery" segemtn on Anthony Graves.  Richard Schlesinger reports; the segment is produced by Lourdes Aguiar, Jenna Jackson and Jennifer Simpson Ashmawy.  In addition to the video, you can also read the transcript of the report.

Here's the beginning:

Before the early morning hours of Aug. 18, 1992, the police in Somerville, Texas found six bodies in the burned rubble of what used to be the Davis home.

"This was such a horrific event in that town and continues to be an event that really haunts the people of Somerville..." Texas Monthly reporter Pam Colloff told "48 Hours Mystery." "This was a family that almost everyone in town knew, liked, respected."

The victims: A grandmother, her daughter, and four grandchildren who were staying with them.

Colloff is still moved by the fact that the family never had a chance.

"There was Bobbie Davis, the grandmother to the four children who was bludgeoned and then stabbed to death," Colloff explained. "There was 16-year-old Nicole, her daughter, who was a high school student and athlete, who was bludgeoned and shot. And then there were the four grandchildren. They were 9-year-old Denitra, 6-year-old Brittany, 5-year-old Lea'Erin and 4-year-old Jason."

Glenda Rutledge is Lea'Erin and Brittany's mother.

"And my daughters, "Rutledge sighed, "were exotically beautiful. Beautiful...They were my legacy..." she continued in tears. "I was so looking forward to the chance to get it right... You know, to raise strong, sure, confident, successful women. You know, I wanted to do that so bad."

Rutledge's ex-husband, Keith Davis, lost almost his entire family that night.

"I mean these were little babies, and - and my mother, who... you know, who we adored, who was the center of our life," he said.

He was convinced it was a random crime.

"I just couldn't imagine someone from that area harming anyone in my family, 'cause we had never...we didn't have any enemies, we hadn't been in any trouble," said Davis.

Roy Rueter lived and worked not from the murders. Five days after the crimes, he remembers hearing there was a break in the case.

"I could hear the radio and the news would always come up..." he recalled. "And - it was early in the morning and they came up and they said, you know, arrest had been made...and they said uh - Anthony Charles Graves, age 27."

Anthony Graves was one of Rueter's best friends. Graves had worked for him for a while at his machine shop and the two became so close that Graves had even been in Rueter's wedding party.

"And it just it just freaked me out," he told "48 Hours Mystery" correspondent Richard Schlesinger. "But my immediate thing was, yeah, right. No way. And what - you know, what - what could possibly be going on here, you know?"

"You didn't believe it?" Schlesinger asked Rueter.

"Well of course not. Absolutely not."

Rueter knew Anthony Graves as a gentle man, a father of three. He was now hearing his friend was a murderer - of women and children.

"In my heart, my convictions were that's impossible," he said. "Anthony would never do that. Anthony would never - hurt or raise a hand to a woman. And especially not a child, especially the way he loved his children."

And when Graves was arrested, he seemed equally stunned.

Earlier coverage begins with a preview of the 48 Hours report.  All coverage is in the Anthony Graves index.

Claude Jones - Looking Backwards, Looking Forward

"The DNA non-redemption," is the title of a Los Angeles Times editorial.  It appeared in the Saturday edition.

In 1990, a Texas jury convicted Claude Jones, a career criminal, of murdering Allen Hilzendager.

Jones and another ex-convict, Danny Dixon, had stopped their truck at Hilzendager's liquor store in Point Blank, Texas. One of the men got out, entered the store and shot Hilzendager. Jones blamed Dixon and Dixon blamed Jones, but Jones was eventually convicted of pulling the trigger on the basis of one person's testimony (subsequently recanted) and on one piece of physical evidence: a strand of hair found inside the store and identified as Jones' by a crime lab expert. That hair tipped the balance between life and death, because Texas law requires corroborating physical evidence in a capital case. Dixon is serving a life sentence; Jones was put to death in 2000.

This month, however, a DNA test determined that the hair did not belong to Jones after all; it belonged to the victim. With no physical evidence, there is now no legal basis for Jones' death sentence.

Some may argue that this miscarriage of justice was an aberration. But Texas' rapid pace of executions, coupled with its abysmal standards for effective representation for defendants, have long made the likelihood of wrongful executions exceedingly high. The state offers a prime example of why the death penalty, which requires 100% accuracy, is so difficult to mete out fairly.

Innocence Project Co-Founder Barry Scheck wrote the OpEd, "Capital Punishment and Human Fallibility," for the weekend edition of the Wall Street Journal.

On Friday, Dec. 7, 2000, as the world waited for a decision from the Florida Supreme Court on whether the recount of that state's presidential ballot should continue, Texas Governor and soon-to-be President George W. Bush was provided with a final memo from his Counsel's Office on the fate of death-row inmate Claude Jones.

He was advised to reject Jones's application for a 30-day reprieve because there was "no doubt about guilt." Jones had received "full and fair process" in the courts, and "Jones' hair matched a hair found at the crime scene."

Incredibly, Mr. Bush was not told that lawyers for Jones had requested the 30-day reprieve so that a mitochondrial DNA test could be performed on this hair, the key piece of evidence in the case and the only piece of physical evidence tying him to the crime scene. Jones was executed by lethal injection that day.

Earlier this month, after six years of litigation, that hair was finally tested. On Nov. 11, Mitotyping Technologies, a private lab in State College, Pa., found that it did not come from Claude Jones, but from the victim of the crime. If this DNA test had been done in December 2000, Claude Jones would not have been executed, and his conviction would likely have been reversed.

The case might have been dismissed altogether because the hair "match" was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to meet a requirement of Texas law that the accomplice testimony used to convict Jones be corroborated.

And:

There is growing bipartisan recognition that there are a set of reforms that can make the criminal-justice bureaucracy more accurate, accountable and cost-effective. We can learn from our mistakes, including those made in the hours before Claude Jones's execution. Sen. Jim Webb (D., Va.), along with 39 co-sponsors including Sens. Lindsey Graham (R., S.C.) and Orrin Hatch (R., Utah), is sponsoring a bill already approved by the House to establish a National Criminal Justice Reform Commission.

The Webb bill would lay out a blueprint of best practices that have proven effective, including ways to reduce prison populations without endangering public safety and investigative procedures that protect the innocent while enhancing the capability of law enforcement to apprehend the guilty. And it would also help prevent wrongful convictions, including in death-penalty cases, by evaluating past procedures and recommending improvements and guidelines. But if the bill is not passed in this brief lame-duck session, it will almost certainly perish, another casualty of partisan gridlock.

Earlier coverage of the Claude Jones case begins with the post, "Why the Claude Jones Case Matters."

Leonard Pitts Revisits the Anthony Graves Exoneration

"Death Row backers blind to injustice," is the title of the award-winning columnist's latest.  His syndicated column is via the Miami Herald, his home paper.  In this excerpt, Pitts is referring to Pamela Colloff's Texas Monthly examination of the case, published last month.

Colloff’s story drew outraged media attention, including from yours truly. But the attention that mattered was that of the current DA, Bill Parham, who undertook his own investigation. He was unequivocal in explaining his decision to drop charges. ‘‘There’s not a single thing that says Anthony Graves was involved in this case,” he said. “There is nothing.”

One hopes people who love the death penalty are taking note. So often, their arguments in favor of that barbarous frontier relic seem to take place in some alternate universe where cops never fabricate evidence and judges never make mistakes, where lawyers are never inept and witnesses never commit perjury. So often, they behave as if in this one critical endeavor, unlike in every other endeavor, human beings somehow get it right every time.

I would not have convicted Anthony Graves of a traffic violation on the sort of evidence Sebesta offered. Yet somehow, a jury in Texas convicted him of murder and sent him to die.

When you pin them on it, people who love the death penalty often retreat into sophistic nonsense. Don’t end the death penalty, someone told me, just enact safeguards to ensure the innocent are never sentenced. Yeah, right. Show me the safeguard that guarantees perfection.

Those who propose to tinker with the death penalty until it is foolproof remind me of the addict attempting to negotiate with his addiction, desperately proffering minor concessions that will allow him to continue indulging in this thing that is killing him. But there comes a day when you simply have to kick the habit.

Earlier coverage of Anthony Graves' exoneration is a the link.  Pamela Colloff's October 2010 Texas Monthly profile is "Innocence Lost."  Pitts' earlier column is noted at the link.

Innocence Case to Get Evidentiary Hearing in Virginia

"Hearing set in Norfolk for Va. death row inmate," is the AP report by Dena Potter.  It's via the Virginian Pilot.

A Virginia death row inmate who claims he was wrongly convicted in the murder-for-hire of his marijuana supplier will try to convince a Norfolk federal judge this week that he is innocent.

An evidentiary hearing for Justin Michael Wolfe is scheduled to begin today to consider another man's claim that he alone killed 21-year-old Daniel Petrole Jr. in 2001. The judge also will consider sworn statements from others who say shooter Owen Barber IV told them he acted alone in killing Petrole.

Barber was the key witness in Wolfe's 2002 trial, which exposed a high-end marijuana distribution ring in the wealthy suburbs of Northern Virginia. Barber agreed to plead guilty to first-degree murder and testify against Wolfe in exchange for a life sentence.

Barber recanted his testimony in 2005, but then changed his story again five months later and insisted his testimony at Wolfe's trial had been truthful.

U.S. District Judge Raymond A. Jackson in Norfolk granted the evidentiary hearing in February, saying there was enough evidence "to raise doubt in a reasonable juror's mind about the circumstances of the night of the murder."

An earlier mention of Wolfe relates to prison conditions in Virginia.

The Anthony Graves Exoneration - More Coverage

Sunday's Houston Chronicle featured two news articles.  First, "A mother always knows," by Cindy George.

Doris Curry often points to a framed poster in her front room of footprints in the sand, an illustration that shows how a believer can be carried by God through trying times.

It's her quickest explanation for how she found the strength to endure her first-born's 18 years locked up on a wrongful conviction, some of which was spent on Texas death row.

What's even harder to understand is how she faced life in a small town like Brenham, where almost everyone knew that her son, Anthony Graves, was a convicted murderer believed to be involved in the slayings of six people. On Wednesday, her 45-year-old son was released and declared innocent by special prosecutors. His family enjoyed a celebratory feast at home on Saturday.

"I have faith and hope, and that's how I fought that war," said Curry, now 62, who always believed her son was innocent.

It's a journey that cost Graves his freedom and required incredible sacrifice from his family — particularly his mother.

And:

Curry has spent most of her life taking care of people. She had Anthony Graves at 17 and by 19 was supporting two children with a job at Dairy Queen. A workforce program allowed her to get hired as a caretaker at the Brenham State School. By her mid-20s, she had five children and later took in her ill sister's four kids.

The wrongful charges against her son weren't the first time she experienced injustice. Curry's brother was killed in 1970, and her estranged husband was murdered in the early 1980s.

She quit her job in November 1992 to cash in her retirement savings for Graves' legal defense. One administrator "thought they shouldn't hire me back because I could be threatening to the people who work there ­­- like I did something," Curry remembered.

At work, she wondered about the suspicious looks. Some people would question her about her son's case - and not in a supportive way.

"One secretary asked me: 'If your son didn't do it, how come he's not out?' And some people whispered, thinking that he was guilty. I could tell people were talking about me, and it made me uncomfortable."

Dr. Vineeth John, associate professor of psychiatry at The University of Texas Health Science Center at Houston, said the concept of shame becomes "even more painful" when relatives are convinced of their loved one's innocence.

"Many people are not prepared to tackle an event of such magnitude that brings so much social ostracism," John said. "This is a woman with a resilient mind-set surrounded by a loving family who helped her retain a sense of hope."

Safiya Ravat writes, "Slain victims' relatives looking for peace."

After almost two decades of attending trials, hearing intricate details of how his mother, two daughters, sister, niece and nephew were stabbed, killed and set ablaze in 1992, Keith Davis and his family hope to find peace after the exoneration of Anthony Graves, the only remaining suspect convicted in the murders.

Graves, 45, who spent the last 18 years in prison for the murders of Davis' six family members, was released Wednesday after prosecutors in a retrial filed a motion to dismiss charges against Graves due to lack of substantial evidence.

The exoneration brought a mix of emotions to relatives of the victims, some of who spoke out for the first time Saturday.

A few were outraged, believing Graves to be a guilty man set free. Others, like Davis, stood by the justice system's verdict.

"If Anthony Graves is innocent, then he very well should be released," Davis said. He, along with his brother and sister, believe that Graves' exoneration was appropriate due to the lack of evidence.

Davis admits that though there was no physical evidence against Graves from the very beginning, he did believe him to be guilty for many years.

"For 18 years it was embedded in us to believe that he was guilty," Davis said.

But after sitting through numerous trials against both Graves and co-defendant Robert Carter, who was executed in 2000 for the murders, Davis began to notice patterns that cast doubt into his mind about Graves' involvement.

Next, let me return to Friday's coverage.  It starts with a Dallas Morning News editorial, "Death-row case underscores fallibility."

Let us recount the grave injustices inflicted upon Anthony Graves. He has spent the last 18 years behind bars, including 12 on death row, for a murder he did not commit. Prosecutors never established a plausible motive linking him to the 1992 deaths of six people who were shot, bludgeoned and stabbed to death in Sommerville, Texas, near Bryan. And prosecutors hid crucial exculpatory evidence that would have helped exonerate Graves.

On Wednesday, Burleson County District Attorney Bill Parham conceded that Graves "is an innocent man" and obtained his release. "There is nothing that connects Anthony Graves to this crime," he said after completing a five-month investigation of his predecessor's seriously flawed handiwork. "I did what I did because that's the right thing to do."

Graves is, no doubt, overjoyed today as he relishes his first hours of freedom and the ability to hug his mother whenever he wants. But if Graves harbors resentment and outrage over former District Attorney Charles Sebasta's egregious behavior in this case, he is absolutely justified. Graves owes his freedom in no small part to the work of University of St. Thomas journalism students, the Texas Innocence Project and Texas Monthly magazine.

Nothing excuses what prosecutors and investigators did in a blind pursuit of a conviction, an expansive account of which appeared in Texas Monthly's October issue.

The other Friday news coverage includes, "Team overturning Graves case blasts ex-DA," by Brian Rogers for the Houston Chronicle, and, "An army of believers," by Jeannie Kever.

Earlier coverage begins with this post.

Anthony Graves Exoneration - Additional Coverage

This morning's Houston Chronicle has expanded coverage in, "Prisoner ordered free from Texas' death row," by Brian Rogers.

After 18 years of incarceration and countless protestations of innocence, Anthony Graves finally got a nod of approval from the one person who mattered Wednesday and at last returned home — free from charges that he participated in the butchery of a family in Somerville he did not know and free of the possibility that he would have to answer for them with his life.

The district attorney for Washington and Burleson counties, Bill Parham, gave Graves his release. The prosecutor filed a motion to dismiss charges that had sent Graves to Texas' death row for most of his adult life. Graves returned to his mother's home in Brenham no longer the "cold-blooded killer," so characterized by the prosecutor who first tried him, but as another exonerated inmate who even in the joy of redemption will face the daunting prospect of reassembling the pieces of a shattered life.

"He's an innocent man," Parham said, noting that his office investigated the case for five months. "There is nothing that connects Anthony Graves to this crime. I did what I did because that's the right thing to do."

An attorney for Graves, Jimmy Phillips Jr., said his client was released from Burleson County Jail, where he had been awaiting a retrial, at about 5:30 p.m.

Graves immediately went to see his mother in Brenham and reportedly spent the night near Austin. "The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man, and he's home."

Graves called his mother to tell her he was coming home. Doris Curry left the house to pick up her youngest son, and by the time she returned home, Graves was already there, surrounded by family and friends.

"I hugged him and I hugged him and I cried and we both cried and we hugged and we cried," Curry said. "He said: 'Mama, it's over. Mama, 18 years we've fought this fight a long time. It's over. Justice has been done for me.' "

And:

Graves' appellate attorneys, Jay Burnett and Roy Greenwood, knew it was far less. They soon were convinced their client had no knowledge of or participation in the crime, just as he had claimed since the moment of his arrest.

Over the years, there was increasing evidence raised to doubt the validity of the conviction. Students in a University of St. Thomas journalism class worked with The Innocence Project at the University of Houston to review the Graves case in detail.

Nicole Casarez, the journalism professor who taught the class, and one of her students interviewed Carter's brother, whose affidavit along with other evidence they gathered helped persuade the 5th Circuit Court of Appeals to order a hearing, which eventually led to the new trial.

"I think the dismissal motion filed this morning says it best: There is no credible evidence to inculpate this defendant," Casarez said Wednesday night. "I’m just thrilled that it has finally come to this. I think it was a lot of people working very hard, perhaps even divine intervention, so that it all worked out today."

The 5th U.S. Circuit Court of Appeals overturned Graves’ conviction in 2006. A three-judge panel said he deserved a new trial after ruling that prosecutors elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

Graves eventually was returned to county jail with a bond set at $1 million, and Parham began to reassemble the case and review the evidence. He hired former Harris County assistant district attorney Kelly Siegler as a special prosecutor. Siegler soon saw that making a case against Graves was all but impossible.

Jordan Smith posts, "Anthony Graves Freed," at the Austin Chronicle.

And finally, on Wednesday, after nearly two decades behind bars, Graves was released from jail and all charges against him in connection with the Somerville murders were dropped. Importantly, prosecutors declared Graves actually innocent of the crime – a declaration that should help him collect some compensation for all the years of wrongful incarceration.

Finally.

The state's case against Anthony Graves was tenuous at best. For starters, there was no evidence to suggest he had anything to do with the crime – and there was ample evidence that he wasn't anywhere near the Somerville home the night the family was murdered. But the state ignored every single sign that their case was crap – even after the Fifth Circuit told them it was. Instead, prosecutors decided to retry Graves – intimating at one point that they were willing to use now discredited junk science in order to railroad the man.

Interestingly, although the case was fraught with problems, it never received the kind of media attention it deserved. We've written about it a number of times in the Chronicle, but it wasn't until last month, when Texas Monthly writer Pamela Colloff's story on the case was published that the entire tale was laid out in one place.

It's hard to imagine that the Colloff story didn't have some impact on the decision to finally free Graves. Regardless of the reasons behind the release, it was a move that was long, long overdue.

The list of stories on the case from our archives is here.

Earlier coverage begins with the preceding post from last night.  Pamela Colloff's October 2010 Texas Monthly profile is "Innocence Lost."

Leonard Pitts Looks at the Anthony Graves Case

The Pulitizer Prize-winning syndicated columist writes, "Justice, delayed and denied."  It's via the Miami Herald, Pitts' home paper.

It was once a staple plot of TV westerns: There's been a vicious killing. Everybody knows who did it -- or thinks they know -- and the posse wants to string the varmint up. No need for the bother of a trial. The crime was outrageous, people are furious. So get the rope, find a tree.

Watching, you'd be glad we've moved beyond frontier justice, glad the howling of the mob can no longer stampede us into condemning an innocent man.

Anthony Graves would beg to differ. In 1992, he was arrested for a multiple murder that roiled the tiny Texas town of Somerville. A 45-year-old woman, her 16-year-old daughter and four children, all younger than 10, had been beaten, stabbed and shot to death and their home torched.

No physical evidence linked Graves to the crime. He had no motive to butcher six strangers. Three witnesses placed him at home at the time of the murders.

And in the end, it didn't matter. Graves was convicted and sentenced to die solely on the word of one Robert Carter, father of one of the murdered children.

And:

The tale is recounted in the new issue of Texas Monthly magazine. To read Pamela Colloff's report is to be sobered by the degree to which public outrage still drives death penalty decisions.

It was an awful crime, and people needed to see someone punished for it. Indeed, Somerville mayor Tanya Roush told the Austin American Statesman her town was impatient with the idea of a trial. ``They're saying, `Bring back the hangin' tree, and save the taxpayers' money.' ''

``There was a lot of pressure in this community to get convictions,'' says Colloff. ``No one stopped along the way and said, `Hey, wait a minute. Does this case make any sense?' It just kept moving forward.''

And because it did, Anthony Graves -- 26 when he was arrested, 45 now -- has lost years he can never get back. He may yet lose his life. What has happened and is happening to him is obscene.

Earlier coverage of the Anthony Graves' case begins here.  Colloff's magnificent article, "Innocence Lost," in the current issue of Texas Monthly is noted here.

Dallas Morning News on the Anthony Graves Case

"Murder conviction chock full of holes," is the title of an editorial in today's Dallas Morning News.

For anyone with an interest in prosecutorial misconduct and capital punishment, the October issue of Texas Monthly contains required reading – a chilling account alleging deceit and abuse in pursuit of a murder conviction. The article, available today, should make even ardent supporters of the death penalty shudder to consider how an egregiously flimsy and unproven case nearly ended the life of Anthony Graves before a federal appeals court intervened and ended his 18-year residence on death row.

Even more troubling is that Graves, 45, still sits in jail awaiting a new trial in a 1992 murder case in which six people, including a teenager and four children, were shot, bludgeoned and stabbed to death and their house set afire in Sommerville, near Bryan. Robert Carter, absentee father of one of the victims, emerged as a key suspect after he appeared at their funeral with bandages covering burns on his face. Various investigative blunders led to Graves' identification as a second suspect, though he had no association with the victims and no motive. No evidence linked him to the slayings, while substantial evidence and motives pointed to Carter's guilt.

And:

This newspaper has examined numerous questionable cases over the years, and evidence of prosecutorial malfeasance, among other important factors, convinces us that this state's use of the death penalty is too error-prone, and the result too permanent, to be justifiable.

Anthony Graves defied the odds and had an ill-gotten conviction thrown out, but his ongoing ordeal reminds us how extremely fallible our justice system can be.

Coverage of the must-read TM article is here.

Innocence Lost

That's the title of Pamela Colloff's 14,000 word examination of the case of Anthony Graves, noted yesterday. 

It's subtitled, "Since August 23, 1992, Anthony Graves has been behind bars for the gruesome murder of a family in Somerville. There was no clear motive, no physical evidence connecting him to the crime, and the only witness against him recanted, declaring again and again before his death, in 2000, that Graves didn’t do it. If he didn’t, the truth will come out. Won’t it?" 

Here's a small excerpt from this must-read:

Graves, who had moved back to Brenham from Austin that spring after getting laid off from an assembly line job at Dell, was picked up before noon at his mother’s apartment and brought to the Brenham police station in handcuffs. In the station’s booking room, a surveillance camera captured the half hour that passed as the 26-year-old—who was never told why he was being detained—waited, bewildered. He repeatedly asked an officer who busied himself with paperwork what he was being held for, but he was informed that he would have to wait until a magistrate arrived to read him the charges. Graves turned his attention to another officer, who he hoped would be more forthcoming, but the man feigned ignorance. “You don’t know neither?” Graves said, sighing. “I wish somebody would tell me what’s going on.” When the justice of the peace finally appeared, Graves jumped to his feet, eager for information.

“You’re Anthony Charles Graves?” asked the justice of the peace, glancing up from the warrant that she held before her. She was flanked by two police officers.

“Yes, ma’am,” he said.

“Anthony, this is going to be your warning of rights,” she said. Her delivery was matter-of-fact: “You’re charged with the offense of capital murder.”

“Who?” he said, dumbfounded. He stared back at her blankly.

“An affidavit charging you for this offense has been filed in court,” she continued. As she read him his Miranda rights, he watched her in disbelief. “At this time, no bond has been set,” she said. “Do you understand what I’ve told you, Anthony?”

Graves held up his hands in protest. “Capital murder?” he said, incredulous. “Me? Wh-wh-who murdered? I mean—”

A man wearing a white Western hat interrupted him. “You’ll have a chance to talk to the officers who are actually working the case,” he said.

“This is a big mistake,” Graves said, his voice rising. “Capital murder?” Dubious, he turned to the police officer who had brought him down to the station. “This is a joke,” he said, breaking into a grin, as if he were suddenly on to the elaborate prank that he seemed certain was being played on him. “Somebody’s messing with me, right?” The officer, who did not smile back, ordered him to have a seat.

Graves studied the copy of the arrest warrant that the judge had handed to him, trying to make sense of it. He repeated the words “capital murder” eighteen times, enunciating each syllable as if doing so would help him better grasp their meaning. “This is a big mistake,” he repeated. “This has got to be straightened out today.” Finally, before he was led down the hall to talk to the Rangers, he slapped the side of his head and cried out, “Am I dreaming?”

And:

On September 6, 2006, Graves walked off of death row. But there was no celebration beyond the floodlights and the coils of concertina wire, no crush of television reporters shouting questions, no tearful embrace with his mother, whom he had been allowed to touch just once during his fourteen years of incarceration. Instead, Graves walked out of his six-by-ten-foot concrete cell and into the arms of Burleson County sheriff’s deputies, who transported him back to the county jail in Caldwell, where he would await retrial. The Fifth Circuit’s ruling had not exonerated him, and he still faced the original criminal charges that had been filed against him in 1992. In the eyes of Burleson County, he remained a murderer, and a child killer at that. Judge Towslee’s successor—his daughter, Judge Reva Towslee-Corbett—set his bail at $1 million.

The article notes that his new trial is currently scheduled for February 2011.

Earlier coverage begins here.

Texas Monthly to Spotlight Anthony Graves' Case

The October issue should be available online tomorrow.

"Texas Monthly to feature Graves case," is the post today at the Brenham Banner.

The murder conviction of Anthony Graves is being featured in the October issue of Texas Monthly magazine.

The 20-page article, called “Innocence Lost,” details the arrest and conviction of Graves, a Brenham native, for the brutal murders of six Somerville residents in 1992.

Graves was found guilty of murder by a jury in Brazoria County in 1994 and was sentenced to death.

The 14,000-word story was written by Pamela Colloff, who spent months researching the case and talking to people involved, including Graves, who remains in the Burleson County jail awaiting a new trial.

“It was definitely the most complicated story I have ever written in 15 years of writing crime stories,” Colloff said.

And:

The article says: “Since August 23, 1992, Anthony Graves has been behind bars for the gruesome murder of a family in Somerville. There was no clear motive, no physical evidence connecting him to the crime, and the only witness against him recanted, declaring again and again before his death, in 2000, that Graves didn’t do it.

“If he didn’t, the truth will come out, won’t it?’

Robert Carter, who was also convicted in the murders and was put to death by lethal injection May 31, 2000, originally implicated Graves but later recanted, including a statement in the execution chamber that “it was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court.”

San Antonio Express-News columnist Cary Clack writes, "A matter of life and death in Texas."

Texas is a state known not only for its high volume of death-row inmates but for questions about the guilt of some of those condemned.

The most well-known of these inmates is Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three daughters in Corsicana in 1991. Considerable evidence suggests that the fire was accidental and Willingham innocent. In July, the Texas Forensic Science Commission said in a preliminary report that the arson investigators used flawed science. On Friday, the commission will meet in Dallas to address the case.

Earlier this year, the U.S. Supreme Court stayed the execution of Henry Skinner for the 1993 murder of three people in Pampa until crucial DNA testing can be conducted.

There are reasons to believe that Willingham and Skinner may not have committed the crimes they were convicted of, but there's also evidence that lends credence to their convictions. In the most controversial of death-row cases, reasonable people can look at the evidence and come to different conclusions about guilt or innocence.

Then there's the case of Anthony Graves. In 1994, Graves was convicted and sentenced to die for six horrific murders in the Central Texas town of Somerville. The victims were Bobbie Davis, her teenage daughter and four grandchildren, ages 9, 6, 5 and 4.

The only thing that incriminated Graves - the only thing - was the word of the man who was eventually executed for the murders and who, until the final moments of his life, insisted that he'd lied about Graves' involvement.

In the October issue of Texas Monthly, which will be on newsstands Thursday, Pamela Colloff has written a masterfully reported and exhaustively detailed 14,000 word story about the Graves case.

I've read dozens of accounts of death-row inmates who claim to have been falsely convicted and may have intriguing evidence to support their claims. After reading Colloff's story - the magazine's second longest in 30 years - Graves' case is the only one in which I'm left 100 percent certain of the innocence of the convicted.

There was no physical evidence connecting Graves to the crime. He didn't know the victims, unlike Robert Carter, the man who was executed for the crimes and who was the father of the youngest child, yet who initially claimed that he was only in the car while Graves stabbed, shot and bludgeoned the victims. At least three people can attest to where Graves was while the murders were being committed.

The night before Carter testified against Graves, he was taking sole responsibility for the crimes, but he still incriminated him in court the next day. For years, in letters, conversations and sworn testimony, Carter insisted that Graves was innocent. While lying on the gurney as he was about to be executed in 2000, his last words, after apologizing to the victims' family, was, "It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court."

Earlier coverage of Anthony Graves begins with this post.

The Latest on Kevin Keith

Supporters of Kevin Keith have started a petition urging clemency in his case.  I've embedded an action box in the right column for those who would like to sign.  You can also sign the petition at this LINK.

Kevin Keith is scheduled for execution on September 15 despite overwhelming evidence of his innocence. More information about Kevin's case, including a case summary and supporting briefs that have been filed by the National Innocence Network and eyewitness experts, can be found at KevinKeith.org

Earlier this month the U.S. Supreme Court refused to examine Kevin Keith's case; coverage begins with this post.

At the Supreme Court

The Court today rejected petitions to examine two death penalty cases.  In the Kevin Keith case from Ohio, the AP reports, "Court won't hear inmate's claim of innocence," via Google News.

The Supreme Court won't hear an Ohio man's arguments that he will be wrongfully executed for fatally shooting three people.

The high court on Tuesday refused to hear Kevin Keith's appeal. Keith is scheduled to be executed in September.

Keith's lawyers wanted justices to review the evidence in the killing of three people in a 1994 shooting in northern Ohio.

They say courts have never heard evidence that could exonerate him. That includes an alternate suspect who boasted he was going to carry out the killings, an enlarged photo of Keith used during a picture lineup and witnesses who say Keith was elsewhere.

Keith's attorneys have issued the following statement:

"We are disappointed that the U.S. Supreme Court has declined to hear Mr. Keith's appeal.   However, the Court's denial is not an indication of how strong the facts are supporting Mr. Keith's innocence claim involving faulty eyewitness identification and an alternative suspect.   Less than 1% of all petitions are accepted, and as the Supreme Court rules state, a petition is rarely granted when the problem is that the lower court decided the facts wrong.  Indeed, no court has ever had the entirety of the new evidence of Mr. Keith's innocence before it, nor has it ever been presented to a jury. Since Mr. Keith's execution is scheduled for this September 15th, his fate may rest in the hands of the Ohio Board of Pardons and Paroles and Governor Strickland, who we trust will do everything they can to ensure that an innocent person is not executed in our State."

Earlier coverage of the Kevin Keith case begins with this post.

The Court also refused to review a federal death sentence.  The AP report is, "High Court Turns Down Appeal In Rogue Juror Case," via WJZ-TV

The Supreme Court on Tuesday rejected an appeal from a federal death row inmate who said his death sentence should have been thrown out because of a juror's misconduct.

The justices did not comment in turning down Brandon Basham, who was sentenced to death for kidnapping and killing 44-year-old Alice Donovan in 2002. The foreman on Basham's jury was held in contempt of court by the trial judge after it was learned that she called five news organizations and made 71 other calls to two fellow jurors, despite repeated warnings from the judge to refrain from discussing the case with anyone.

In the case from South Carolina, U.S. District Judge Joseph F. Anderson Jr. found that the behavior of juror Cynthia Wilson, was so outrageous that he held her in contempt of court, ordering her to return $2,500 of her juror's pay and perform 120 hours of community service. Anderson said he would have put Wilson in jail for six months if she did not have four children at home.

But when Basham asked for his death sentence to be thrown out as a result of Wilson's conduct, Anderson refused, and the 4th U.S. Circuit Court of Appeals in Richmond, Va., backed him up.

The case had attracted some attention lately because Solicitor General Elena Kagan -- now the nominee to replace Justice John Paul Stevens -- opposed Supreme Court review.  An earlier AP report was titled, "Kagan: No need for court review of rogue juror," via Google News.

And when Basham took his plea to the Supreme Court, Solicitor General Elena Kagan agreed that the judge had made the correct call. The high court, to which Kagan has since been nominated, could say as early as Tuesday whether it will hear Basham's case.

It is no surprise that the government is seeking to preserve what it already has won, especially after the time and expense of a capital punishment trial.

Basham's guilt in a brutal, senseless crime is not in dispute, as even his lawyers concede. Basham was convicted by a jury and Chadrick Fulks pleaded guilty to kidnapping and killing 44-year-old Alice Donovan during a two-week crime spree after the pair escaped from a Hopkins County, Ky., jail in 2002. Fulks also has been sentenced to death.

They also have pleaded guilty to killing 19-year-old Marshall University student Samantha Burns in West Virginia.

The claim that Basham is raising at the Supreme Court deals only with the actions of juror Wilson, a nurse from Lyman, S.C., in the penalty phase of his trial.

The court has previously ruled that the presence of a biased juror is so serious that it requires a verdict to be thrown out.

Basham and the government disagree over whether Wilson actually was biased and tried improperly to sway other jurors who might not have favored a death sentence.

Wilson testified that her calls to the media were intended to spur stories that women shopping alone should be careful, since Donovan was abducted from a Wal-Mart parking lot and Burns from a mall in Huntington, W.Va.

But Basham said the testimony from Wilson, her husband and a television news producer Wilson called suggested that she was interested in publicity for herself and was also worried that some jurors might not vote for a death sentence.

More on the Kevin Keith Case

"Evidence of innocence: Kevin Keith sits on Ohio's death row as the eyewitness case against him continues to erode," is the title of an editorial in Akron Beacon Journal.  It appeared in Friday's edition.

The successful prosecution of Kevin Keith relied heavily on the account of an eyewitness. Richard Warren testified in the Crawford County Common Pleas Court that Keith sprayed gunfire in a Bucyrus apartment, killing three people and wounding three others (including Warren). No forensic evidence conclusively linked Keith to the crime. He even had an alibi. So the Warren testimony proved critical in sending Keith to death row 16 years ago.

Now that testimony has begun to fall apart, new attorneys for Keith uncovering fresh evidence since they joined the case three years ago. The attorneys have asked the U.S. Supreme Court for relief, Keith facing an execution date in September. On Tuesday, they also filed a motion in Crawford County for a new trial. They have discovered new information in an unrelated lawsuit that concerns the Bucyrus Police Department destroying tape recordings of the station's incoming telephone calls.

Questions long have been raised about the way Warren arrived at identifying Keith. Warren initially insisted that he didn't know the shooter. He explained that the shooter wore a mask. Yet he eventually pointed to Keith. Why? Police officers said a nurse attending Warren in the hospital called the station to say that Warren had identified the attacker as ''Kevin.'' The police then put together a photo lineup of ''Kevins,'' from which Warren selected Keith.

Put aside that the lineup was biased, the photo of Keith larger and darker than the others. The police testified that a nurse ''Amy Gimmets'' made the call to the station. Yet Gimmets never testified at the trial. Another nurse, John Foor, took the stand, telling the court that he called the police to relay that Warren wrote down the name of ''Kevin'' as the attacker.

And:

What is evident is that the police had Kevin Keith in their sights from the start. Did they maneuver to plant the thought with Warren? The new attorneys for Keith have uncovered strong information about a far more likely suspect. All this explains why the Ohio Innocence Project has taken up Keith's cause, why he deserves relief from the Supreme Court and a new trial in Crawford County.

Earlier coverage of the case begins here.

The Justice Project on Snitch Testimony

The Justice Project's John Terzano posts, "Jailhouse Snitches Sabotage Justice with Unreliable Evidence," at Fire Dog Lake.

Jailhouse "snitch" and informant witnesses often provide incriminating testimony during criminal proceedings in exchange for reduced sentences or other benefits. This practice provides powerful incentives for witnesses to lie, and makes their testimony notoriously unreliable. Despite this fact, police and prosecutors often use this highly unreliable form of evidence to secure convictions. The danger of this kind of testimony is not theoretical: in-custody informant testimony is a leading cause of documented wrongful convictions and a factor in over fifteen percent of the DNA exoneration cases nationally.

Because snitch testimony is so risky, it is imperative that such evidence be subjected to careful scrutiny and safeguards. Illinois has led the way by requiring pretrial reliability hearings in homicide cases, in which the state must demonstrate that a jailhouse snitch’s proffered testimony is credible before it can be presented to the jury. Other important safeguards include mandatory, automatic pretrial disclosures of information related to jailhouse snitch testimony, including witness compensation arrangements and other information bearing on witness credibility. States should also require corroboration of statements made by jailhouse snitches. The Justice Project’s common-sense reforms designed to protect the system from unreliable snitch testimony can be found in In-custody Informant Testimony: A Policy Review.

There is an emerging consensus among criminal justice experts on the need for reform. Alexandra Natapoff, a leading national expert on the issue, recently published a new book, Snitching: Criminal Informants and the Erosion of American Justice, which extensively details the threat that snitch testimony poses to the criminal justice system. Natapoff also outlines the need for new safeguards to prevent snitches from undermining justice.