The StandDown Texas Project

Updated Coverage From Boston

MSNBC posts, "Sentence the Boston bomber to meaninglessness, by University of St. Thomas Law School Professor Mark Osler.  He's a former federal prosecutor.

Understandably, there are already calls for the execution of Dzhokhar Tsarnaev, who is now charged with the bombings of the Boston Marathon. He is alleged to have planned and executed the horrific bombings with his brother, Tamerlan, who died in a subsequent shootout with police.

Tsarnaev undoubtedly deserves the most severe sentence available if he is found guilty (and it is hard to imagine another outcome). However, that sentence, for this defendant, is not execution. From everything we know about Tsarnaev, his principal fear is not death. After all, he walked the streets with a ticking time bomb strapped to his back, engaged the police in a shootout, and likely tried to kill himself as he was being captured. None of these actions are consistent with a man who bears a deep fear of death.

Rather, what someone like Tsarnaev probably fears most is meaninglessness.

Osler is a regular contributor at HuffPost.

"Will Prosecutors in the Boston Marathon Bombing Case Seek the Death Penalty?" is by Matt Vasilogambros for National Journal.

Federal officials will likely seek the death penalty for the surviving suspect of the Boston Marathon bombings, potentially making him the first terrorist to be executed since Timothy McVeigh nearly 12 years ago.

For a man who is suspected of killing three people, including an 8-year-old boy, and with plans to carry out further attacks in New York City, the death penalty only seems justified, some former prosecutors say.

This will be a textbook example of when the death penalty is used against federal terrorism suspects, said former Clinton Justice Department official Beth Wilkinson, one of Washington's most promiment attorneys and the woman who successfully argued for the execution of McVeigh for carrying out the Oklahom City bombing in 1995. 

And:

One of the biggest differences between this case and the one against McVeigh, Wilkinson said, is that it seems Tsarnaev is cooperating and talking with officials, whereas the Oklahoma City bomber exercised his right to remain silent through the entire trial. 

Not all former Justice Department officials think prosecutors should take this route. Joseph DiGenova, who was appointed by Ronald Reagan to be the U.S. attorney for the District of Columbia, said he would try to get Tsarnaev to plead guilty and avoid execution.

“If I was a prosecutor, I would want to get a deal so that he tells us everything we need to know in exchange taking the death penalty off the table and getting a full acceptance of responsibility,” he said.

"Boston suspect's defense team gets major boost," is the AP report by Denise Lavoie.  It's via Huffington Post.

The defense team representing the Boston Marathon bombing suspect got a major boost Monday with the addition of Judy Clarke, a San Diego lawyer who has won life sentences instead of the death penalty for several high-profile clients, including the Unabomber and the gunman in the rampage that injured former Arizona Rep. Gabrielle Giffords.

Clarke's appointment was approved Monday by U.S. Magistrate Judge Marianne Bowler.

The judge denied, at least for now, a request from Miriam Conrad, the public defender of 19-year-old suspect Dzhokhar Tsarnaev, to appoint a second death penalty lawyer, David Bruck, a professor at Washington and Lee University School of Law.

And:

Harvard Law School professor Alan Dershowitz said the decision to put Clarke on Dzhokhar Tsarnaev's defense team shows "they are going to litigate hard against the death penalty."

"They are not going to put on a jihadi defense," he said. "The client wants to live, and he wants to avoid the death penalty. They are not going to say, `I want to die, I want to join my brother.' "

The order appointing Clarke is available in Adobe .pdf format, via Politico.

Additional coverage of the appointment includes:

"Death penalty expert is appointed to Tsarnaev defense team," by Martin Finucane for the Boston Globe.

"Olympics Bomb Lawyer Chosen to Defend Suspect in Boston Bombing," by Erik Larson for Bloomberg News.  It's via the San Francisco Chronicle.

ReutersLegal posts, "Death penalty expert Clarke joins defense of Boston bomb suspect," by Terry Baynes.

Earlier coverage of the Boston Marathon boming case begins at the link.

Last Friday, Clarke gave the keynote address at the Loyola Law School Los Angeles, Fidler Institute on Criminal Justice's annual symposium.  AP Special Correspondent Linda Deutsch covered Clarke's speech.  The report is via ABC News.

The names of her past clients — Susan Smith, Unabomber Theodore Kaczynski and most recently, Tucson shooter Jared Loughner — run like a list of the most reviled in American criminal history. But she did not say whether she would add to that list the latest name in the news: The suspect in the Boston Marathon bombing.

Clarke was reticent throughout her keynote speech and declined to take questions from the audience. Instead, she talked about how she had been "sucked into the black hole, the vortex" of death penalty cases 18 years ago when she represented Smith, who drowned her two children.

"I got a dose of understanding human behavior and I learned what the death penalty does to us," she said. "I don't think it's a secret that I oppose the death penalty. "

She saved Smith's life and later would do the same for Kaczynski, Loughner and the Atlanta Olympics bomber Eric Rudolph. All received life sentences instead of death.

Before an audience of lawyers, judges and law students at Loyola Law School's annual Fidler Institute, Clarke shared her approach in handling death penalty cases.

"The first clear way death cases are different is the clients," said Clarke, now a visiting professor at Washington and Lee University School of Law in Virginia. "Most have suffered from serious severe trauma, unbelievable trauma. We know that from brain research. Many suffer from severe cognitive development issues that affect the core of their being."

Friday

I'll be out of the office Friday afternoon.

The University of Texas School of Law Capital Punishment Center is sponsoring a symposium, "Mass Incarceration and the Death Penalty."  Here's more:

The Capital Punishment Center’s symposium, “Mass Incarceration and the Death Penalty,” will provide a rare opportunity for scholars, lawyers, and interested members of the public to engage in an extended dialogue about some of the most pressing, nuanced, and timely criminal justice issues in a setting that is both rigorous and relaxed. Thanks to the generosity of the Center’s sponsors, the symposium is free and open to the public. Please join us on March 22-23, 2013 in the Law School’s Eidman Courtroom.

Keynote address by Erwin Chemerinsky.

News Coverage of the New Hampshire Symposium

"N.H. officials discuss plan for first execution in 70-plus years," is Lynne Tuohy's AP report, via SeaCoast Online.

New Hampshire — which last executed an inmate more than 70 years ago, by hanging — would likely carry out an execution in a prison gymnasium rather than construct a costly death chamber for its lone death row prisoner, Corrections Commissioner William Wrenn said Wednesday.

Addressing a symposium on the death penalty at the University of New Hampshire School of Law, Wrenn said he and his staff are "dusting off" execution protocols from the 1930s but the $1.8 million needed to build a lethal injection chamber isn't in the cards in a state where inmates are so rarely condemned to death.

The symposium offered a rare, behind-the-scenes look at the case of Michael Addison, sentenced to death in 2008 for gunning down Manchester Police Officer Michael Briggs following a violent crime spree. If the state's highest court upholds his conviction and death sentence, Addison could be the first convict executed in New Hampshire since 1939.

Wrenn said Addison doesn't really live on "death row" because the state no longer has one. He is housed in the state prison's maximum security unit, living alongside other convicts.

And:

Panelists made it clear Addison's case threw a curve at a state criminal justice system that had no modern-day experience with capital litigation.

Attorney Chris Keating, who supervised Addison's defense, said there was no legal "infrastructure" in place for a death penalty case — no bank of motions built from other cases, no expertise and a severe dearth of resources to handle the astronomical costs of such a case. He likened it to being told to build a nuclear bomb for the first time.

Also:

Former Attorney General Phil McLaughlin was the only panelist willing to address a question about whether race — Addison is black, his victim white — contributed to his death sentence.

He contrasted Addison's sentence with that of John Brooks — a wealthy, white businessman convicted of paying others to kill a handyman he thought had stolen from his family. The same year Addison was sentenced to death a jury gave Brooks a life sentence.

"I cannot imagine how any conscientious citizen could not be riveted by the contrast," said McLaughlin, who cast a dissenting vote on a panel that voted in December 2010 to retain the death penalty.

New Hampshire Public Radio posts, "State Criminal Justice Officials Discuss Death Penalty Challenges," By Ryan Lessard.

Top-ranking officials from the New Hampshire criminal justice system gathered to discuss the logistical and political challenges the state would face if it had to implement capital punishment for the first time in more than 70 years.

Chief Justice Tina Nadeau of the New Hampshire Superior Court says the task of trying a capital case is daunting for a state with no relevant experience.

“It’s sort of like due process on steroids. So, everything gets litigated, everything is weighed, everything is researched and everything is considered thoughtfully.”

Earlier coverage of the New Hampshire symposium begins at the link.  Also available, coverage of Michael Addison's case.

Today in New Hampshire

"N.H. death penalty is focus of symposium," is the AP report filed by Lynne Tuohy.  It's via SeaCoast Online.

The attorney for the only inmate on death row in New Hampshire — a state that last carried out an execution in 1939 — will be among the panelists addressing the logistical and social ramifications of the state’s death penalty during a symposium at the University of New Hampshire School of Law.

The symposium Wednesday will feature the chief superior court judge; the corrections commissioner and Michael Addison’s lawyer, David Rothstein, among others.

Addison was sentenced to death in 2008 for gunning down Manchester Police Officer Michael Briggs in 2006, as Briggs attempted to arrest him for robbery. His case is on appeal to the New Hampshire Supreme Court.

If his sentence is upheld, Addison could become the first person executed in New Hampshire since 1939.

The Supreme Court heard a full day of arguments on his sentence and appeal in November. Senior Assistant Attorney General Jeffery Strelzin said after the arguments he thinks it could take the court a year or more to rule, based on the number of issues raised and the thousands of pages of briefs and transcripts.

 The University of New Hampshire School of Law has details,"UNH Law to Host Symposium on New Hampshire Death Penalty."

The UNH Law Diversity Action Coalition, UNH National Lawyers Guild student group, and the law school’s Social Justice Institute will host a symposium on Feb. 13 titled “The New Hampshire Death Penalty in the Era of Addison: Community Voices on Capital Punishment.”

“The event aims to orient the Concord community to the issues surrounding the death penalty,” says Kerstin Cornell, a UNH Law student and one of the event’s organizers. “It is an objective symposium that seeks to provide the community with information during a time when it isespecially pertinent.”

Marquette University Conference on Restorative Justice to Feature UT Prof

"Restorative justice conference explores death penalty vs. life without parole," is by Annysa Johnson of the Milwaukee Journal Sentinel.

The death penalty vs. life without parole and their effects on victims' families and their communities will be the topic of the 2013 Restorative Justice Conference at Marquette University Law School Feb. 21-22.

Speakers will include Marilyn Peterson Amour, associate professor in the School of Social Work at the University of Texas, who co-authored a 2012 study comparing the impact of sentences meted out in Texas and Minnesota. You can read more on that Marquette Law Review piece here.

The conference explores the effects of both sanctions through the personal stories of survivors, prosecutors, defense lawyers, victims' advocates, and judges. The conference is based on a groundbreaking study by Marilyn Armour of victims' families in Texas (affected by the death penalty) and Minnesota (affected by life without the possibility of parole) and the implications of these punishments for healing.

Marqutte Univesrsity Law School posts, "Restorative Justice Conference: The Death Penalty versus Life Without Parole."  The conference will be held at the Milwaukee campus on February 21st & 22nd.

The death penalty. Life without the possibility of parole. These are society's harshest punishments. But how do they affect the victims' families? Is one more healing than the other? Is there ever closure? And what is the ripple effect on the community?

Marquette Law School's Restorative Justice Conference on February 21–22, 2013, will examine the impact of both sanctions through the personal stories of survivors, prosecutors, defense lawyers, victims' advocates, and judges. The conference is based on a groundbreaking study by Marilyn Armour of victims' families in Texas (affected by the death penalty) and Minnesota (affected by life without the possibility of parole) and the implications of these punishments for healing.
Cost

There is no fee for the Keynote Kickoff event on Thursday. Friday conference fee is $20 per person (includes continental breakfast and lunch on conference day). Marquette University students and employees may attend at no charge but must, like others, register.

The complete conference schedule is at the link.

Related posts are in the restorative justice category index.

Three More North Carolina Cases Get RJA Review

"Racial Justice Act witness Barbara O'Brien says statistics show blacks excused more than whites in capital cases," is by Paul Woolverton for today's Fayetteville Observer.

A university researcher testified on Tuesday that race influenced prosecutors' decisions to reject black jurors from serving on three of Cumberland County's most notorious murder trials.

Between 1990 and August 2010, the race of potential jurors "was a significant factor" in whether prosecutors struck them from death penalty cases, Michigan State University law professor Barbara O'Brien testified at a Racial Justice Act hearing for the three defendants.

The three defendants, Christina Walters, Quintel Augustine and Tilmon Golphin, are on death row. They are attempting to use the N.C. Racial Justice Act to prove racism was a factor that led to their death sentences.

If they win, their sentences will be converted to life in prison without parole.

And:

O'Brien co-authored a statistical study of North Carolina death penalty cases. It says prosecutors have a pattern of using peremptory challenges to block blacks from serving on the juries of capital murder trials. The U.S. Supreme Court has ruled that potential jurors may not be struck peremptorily because of their race.

O'Brien testified that race was a significant factor in prosecutors' jury selection decisions statewide, locally and in the three defendants' trials. The results "support an inference of intentional discrimination" on the part of the prosecutors, she said.

Statewide, black jurors were twice as likely to be dismissed, she said. They also were twice as likely to be dismissed in Golphin's trial, she said.

At Walters' trial, blacks were struck 3.6 times as often, O'Brien said, and 3.7 times as often during Augustine's trial.

Prosecutors sometimes seat death-penalty qualified jurors who still express reservations about it.

Statewide, O'Brien said, 9.7 percent of black jurors with death penalty reservations were approved by prosecutors versus 26.4 percent of non-black jurors.

In Cumberland County blacks with reservations about the death penalty were seated by prosecutors 5.9 percent of the time, versus 26.3 percent of the time for non-black jurors with such reservations, O'Brien said.

O'Brien analyzed the jury selection patterns both under the Racial Justice Act of 2009 and a the more restrictive version that lawmakers passed this summer after a convicted murderer from Fayetteville used the 2009 law to get off death row.

There is dispute over which version of the law applies to Walters, Golphin and Augustine, so O'Brien analyzed their cases under both versions of the law. Under both standards, she said, she found racial bias.

Earlier coverage of the trial, which started Monday, includes:

"Racial Justice Act hearing: Defense focuses on picks for jury," from the Tuesday Fayetteville Observer, also by Woolverton.

The AP filing, "Opening statements in Racial Justice Act cases," Monday evening, via the Greenville Daily Reflector.

This week's hearing marks the second test of the Racial Justice Act, which lawmakers heavily revised this session. Earlier this year, Marcus Reymond Robinson became the first prisoner removed from death row under the law.

The landmark 2009 law allowed death row prisoners to use statistics to show that racial bias influenced their sentences, but the Republican-led General Assembly overrode Gov. Beverly Perdue's veto this summer to roll back much of the law.

"Judge hears three NC Racial Justice Act cases," by Bryan Mims for WRAL-TV.

Today's Wilmington Star reports, "Unresolved challenges put death penalty on hold in N.C."  It's by Brian Freskos.

North Carolina has not executed an inmate in six years because issues with the state medical board and unresolved litigation have led to a de facto moratorium. So while the state continues to pay for costly capital trials, no one is actually being put to death.

New Hanover County District Attorney Ben David, who is also president of the N.C. Conference of District Attorneys, said the moratorium has become a point of concern among prosecutors. "Any decision to move forward (with the death penalty) has to include a frank discussion with the victim's family about the realistic possibility of the punishment being carried out," he said.

And:

With 46 executions since 1976, North Carolina had been among the most active users of capital punishment, according to data from the nonprofit Death Penalty Information Center, based in Washington, D.C.

But recent years have seen a turnaround. Even before the state's moratorium took hold, executions had grown exceedingly rare for several reasons. The number of death sentences handed out has trended downward since 2000, dropping from 18 that year to three in 2007, according to Isaac Unah, a political science professor at the University of North Carolina at Chapel Hill.

The decline coincides with the state's creation of the Office of Indigent Defense Services, which scholars say is the single biggest contributor to the drop.

The office has led to enhancements in the way poor defendants are represented.

Earlier coverage of the North Carolina Racial Justice Act begins at the link.  Related posts are in the race index.

Connecticut Supreme Court to Examine Repeal Impact

"State Supreme Court To Consider If Death Penalty Repeal Should Affect Current Cases," is Alaine Griffin's breaking news report in the Hartford Courant.

The state Supreme Court has agreed to take up the issue of whether the recent repeal of Connecticut's death penalty can apply only to future crimes.

In a ruling Thursday, the state's highest court granted a request by Eduardo Santiago, whose death sentence was overturned in June, for written briefs and arguments on a legal filing that raises questions about the repeal's impact on those who committed capital crimes before the new law was passed.

The new law abolishes the death penalty for future capital crimes committed in Connecticut but allows executions for those who committed similar crimes before April, when the repeal took effect.

Thursday's ruling was issued as five of the 11 inmates on Connecticut's death row continue to fight their death sentences in a landmark habeas corpus trial being held at Northern Correctional Institution in Somers where death row is housed. The issue in that case is whether the death penalty has been implemented in a racially and geographically biased way.

It was not known early Friday whether Thursday's ruling would affect the trial.

Before the trial began, the inmates tried unsuccessfully to raise the issue of the repeal's impact on their death sentences. The judge said claims stemming from the repeal raise legal questions distinct from the evidence being presented at the habeas trial.

The Supreme Court on Thursday gave attorneys for Santiago until Nov. 13 to file briefs. The state will then have 60 days to respond. A hearing could be held sometime early next year.

Courant reporter Griffin has been covering the racial bias trial.  Her latest article is, "Witness: "Strikingly Large" Disparities In Death Penalty Cases."

A key witness for five death row inmates challenging the fairness of their death sentences testified Wednesday that there are "strikingly large" disparities along racial and geographic lines when it comes to the death penalty in Connecticut.

Stanford Law Prof. John J. Donohue III testified that minority defendants whose victims were white were three times more likely to receive a death sentence than white defendants whose victims were white.

Donohue reviewed 205 death-eligible cases in Connecticut from 1973 to 2007, including 141 in which the defendants were charged with capital felony, which made execution possible.

Where defendants are prosecuted is significant, too, Donohue testified, saying that one judicial district stood out - Waterbury. Those eligible for death there were sentenced at much higher rates than defendants tried elsewhere in state, he testified.

Donohue said former Waterbury State's Attorney John A. Connelly was "outspoken" about the death penalty and he was "criticized for his overzealousness." So, Donohue said, "looking at Waterbury was a natural thing to do."

In Waterbury, between 1973 and 2007, of the 12 death penalty eligible cases that were examined, four resulted in a death sentence, for a 33.3 percent rate. During that time, there were 193 death eligible cases in other areas of the state that were examined. Of those, five, or 2.6 percent, resulted in a death sentence.

Both Waterbury cases in which the defendant was a minority and the victim was white resulted in death sentences. In the rest of the state, two of 32 cases in which the defendant was a minority and the victim was white resulted in a death sentence, for a rate of 6.3 percent.

Donohue said he looked closely at the "egregiousness" or atrociousness of each crime, identifying the number of victims, who the victims were, how much a victim suffered and the culpability of the defendant. He said he concluded that the administration of the death penalty in Connecticut does not correspond to the egregiousness of the crime.

Earlier coverage from Connecticut and Connecticut's repeal of the death penalty begins at the links. Coverage of Eduardo Santiago's case is also available.

Related posts are in the geographic disparity and race indexes

You can also view the abstract of John Donohue's study, Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution.

Today's California Roundup

"LA judge refuses to order one-drug executions," is the AP filing by Linda Deutsch.  It's via the Silicon Valley Mercury News.

A judge turned down a bid Monday by the Los Angeles County district attorney to order the immediate execution of two death row prisoners by a new single-drug injection method.

Superior Court Judge Larry Paul Fidler said he did not have jurisdiction to order the procedure that has never been used in California.

Executions in the state have been on hold for years while appellate courts consider the legality of the three-drug protocol now in place.

There are currently 725 prisoners on death rows in California, where voters will consider a ballot initiative in November that would replace the death penalty with life in prison without possibility of parole.

At Monday's hearing, Los Angeles County District Attorney Steve Cooley suggested a virtual end-run around the current logjam in the 9th U.S. Circuit Court of Appeals over the way executions are done.

Deputy District Attorney Michelle Hanisee said the three drugs used previously are no longer available, and a pharmaceutical company plans to stop making one of them.

The decision by Judge Fidler came as San Mateo County District Attorney Steve Wagstaffe asked a judge to set an execution date for Robert Fairbank, who was sent to death row for the murder of a San Francisco woman in 1985. A judge is expected to consider Wagstaffe's request in October.

And:

Proposition 34, the upcoming ballot initiative, argues that California has spent $4 billion on a dysfunctional capital punishment system that has resulted in just 13 executions since the death penalty was reinstated in 1978. For a brief period beginning in 1972, the death penalty was held as unconstitutional in the state and death sentences were commuted to life.

In his remarks in court, Fidler referred to the upcoming ballot measure and said the people of California will have the opportunity to decide the future of capital punishment.

"If they set aside the death penalty, that's it," he said. "Then they're expressing what their will is at this time in society, and that they don't want it to take place."

If they reject the ballot proposition, the death penalty for those who have exhausted their legal remedies "will have to be done in an efficient manner," Fidler said.

KPCC-FM, Southern California Public Radio, posts, "Court won't force California to resume executions," by Rina Palta.

On Monday, Los Angeles Superior Court Judge Larry Fidler denied L.A. County's request for the state to execute two longtime Death Row inmates who've exhausted all of their legal appeals.

For decades, Mitchell Sims and Tiequon Cox have sat on California's male Death Row at San Quentin State Prison in Marin County. That's why earlier this year, the Los Angeles County District Attorney's Office asked a judge to step in and order the state of California to set execution dates for the men. The state, argued Assistant District Attorney Michele Hanisee, has dragged its feet on its legal obligation to carry out the death penalty in California.

The state has been mired in litigation over its lethal injection process for years. On Monday, Hanisee argued that instead of resolving the lawsuits, the "state is going as slow as they can and calling it progress." 

Fidler agreed - but he said that as a criminal trial judge, he lacked the authority to override a civil court order in Marin County or the California State Legislature's direction that a long administrative process is necessary to vet any lethal injection method. 

Attorneys for the inmates argued that the process is lenghty and arduous because it needs to be.

"I see why the state wants to take its time," said Attorney John Grele. "Because they did it so abysmally wrong the first time."

What happens next, Fidler said, depends on the results of the November elections. Voters will decide then on a ballot initiative to end the death penalty in California.

And:

Earlier this year, Governor Jerry Brown instructed California's Department of Corrections and Rehabillitation to pursue a single-drug protocol. Lawyers for the state say it has complied. During previous hearings on this case, a consultant to the department testified that the state has written and tested at San Quentin a single-drug protocol. But Goldman did not know when CDCR would begin the official rule-writing process that would allow that protocol to become a law. He estimated that process could take about 10 months once it's started. 

In court Monday, Judge Fidler wondered aloud about why the state continues to appeal court rulings against a three-drug process it apparently couldn't carry out anyway, instead of fast-tracking a new, one-drug process. 

"Though they may be interesting," he said, "we're not going to drag out this litigation to discover some facts."

"L.A. Judge Says No to Executions; Study Shows Death Penalty Will Cost State Billions," is the KCET-TV report by Brian Frank.

Two major developments relating to Prop 34 on Monday. First, a judge in the Los Angeles Superior Court denied the county's request to move forward with the executions of two Death Row inmates. California is currently locked in litigation over its method of execution, a three-drug lethal injection process that a court has ruled constitutes cruel and unusual punishment. Earlier this year the district attorney's office asked a judge to set an execution date for two inmates at San Quentin State Prison in Marin County, anyway. But as KPCC reported, L.A. County Judge Larry Fidler said...

...that as a criminal trial judge, he lacked the authority to override a civil court order in Marin County or the California State Legislature's direction that a long administrative process is necessary to vet any lethal injection method.

At the same time, a new study released Monday concluded that under the state's current criminal justice system it would cost taxpayers between $5 billion and $7 billion more to execute a prisoner than it would to carry out a sentence of Life Without Parole.

Judge Arthur L. Alarcón and Paula M. Mitchell, the authors of the study, reported that by 2050...

"...roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."

Earlier coverage from California, including the Los Angeles District Attorneys effort to restart execution and Prop. 34 news, begins at the link.

More on Prop. 34 at SAFE Caliornia.

Last year, Judge Alarcon and Mitchell wrote, "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," also for the Loyola Los Angeles Law Review.  Coverage of the earlier Alarcon-Mitchell law review article is at the link.

Considering Death Row for Organs

That's the title of Brandi Grissom's report for the Texas Tribune and the Southwest regional edition of the New York Times.  Here's the beginning:

Before Gov. John Kitzhaber of Oregon established a moratorium on his state’s death penalty last year, Christian Longo, a death row inmate, started a campaign to allow the condemned to donate their organs.

Mr. Longo argued that a new execution protocol that many states — including Texas — have adopted leaves inmates’ organs viable for transplantation.

“While I can potentially help in saving one life with a kidney donation now, one preplanned execution can additionally save from 6 to 10 more lives,” Mr. Longo wrote in a plea that Oregon officials denied.

No state allows death row inmates to donate their organs. Although Texas recently abandoned a three-drug cocktail in favor of a single-drug method for execution, the Texas Department of Criminal Justice said it did not intend to change its policy. There are 11,000 Texans on the organ transplant waiting list.

Criminal justice and medical experts say that the idea of recovering organs from willing convicted murderers is fraught with moral, ethical and medical challenges that make it unlikely to ever be an option.

“It’s complicated in ways that are very messy and very fuzzy,” said Richard C. Dieter, executive director of the nonprofit Death Penalty Information Center.

The Criminal Justice Department allows offenders in the general prison population to donate organs, like kidneys, while they are alive in certain cases and after death if they complete a donor form.

The prospect of death row organ donation, though, prompts several questions, said Dr. David Orentlicher, a co-director of the Hall Center for Law and Health at Indiana University’s Robert H. McKinney School of Law. Is an inmate giving free and informed consent, or is he hoping to win favorable treatment? Would a donation affect jurors in murder cases who are weighing the death penalty versus life sentences? Or prosecutors deciding whether to seek the death penalty? Or governors deciding whether to grant clemency?

More From Missouri

Today's Kansas City Star reports, "Missouri’s one-drug execution plan draws some critical looks."  It's written by Tony Rizzo.

Even widespread use of lethal injection as an alternative to methods such as the gas chamber, the gallows or electrocution provided only a humane veneer to what essentially is an inhumane act: the taking of another person's life.

Some death-penalty experts, both pro and con, even argue that the firing squad's bullet to the heart is as quick and pain-free as any other killing method.

"Any manner of killing someone," Deborah Denno, a law professor at Fordham University in New York, "is going to involve some kind of pain."

The constitutional question is what level of pain is acceptable before it morphs into "cruel and unusual."

That has clogged the courts and delayed for years executions for convicted killers such as Nunley and Taylor.

"It's wrong to equate humane with painless," said New York Law School professor Robert Blecker. "Some people deserve a quick but painful death."

Today, that ongoing debate centers squarely on Missouri.

And:

While Denno opposes the death penalty and Blecker advocates it, the two professors share the belief that there is a feasible alternative.

"We agree that if you're going to have the death penalty, probably the most appropriate method is the firing squad," Blecker said.

The state of Utah has carried out three executions by firing squad since 1977, most recently in 2010, and Denno said in none of those cases was any undue suffering reported.

"It's probably as painless a method as we have," she said.

Denno also sees it as a more honest approach to carrying out a death sentence.

"You can't have it both ways," she said. "You can't execute people while pretending that they're just falling asleep."

For Blecker, one of the most galling aspects of execution by lethal injection is the resemblance to a medical setting. He made a critique on that point in his essay "Killing Them Softly: Meditations on a Painful Punishment of Death."

"AG Koster Fighting State Supreme Court Over Execution Hold-Ups," is the MissouriNet post by Austin Robertson.  It's via KTTS-FM.

The debate over the death penalty is back in the spotlight in Jefferson City. Attorney General Chris Koster is pressing the state supreme court to act on a pending lawsuit concerning death row inmates.

Proposals have been made in the legislature for a death penalty moratorium, or even a repeal. But Koster doesn't think the latter is very likely, based on his time serving in the Senate and seeing his colleagues deal with the issue.

Koster argues there are times when the death penalty is appropriate. He's fighting a lawsuit by inmates on death row. The suit claims a drug used for lethal injection causes undue pain, and therefore fits the criteria for cruel and unusual punishment.

Earlier coverage of Missouri lethal injection issues begins at the link.

Timothy McVeigh and the Myth of Closure

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

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

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

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

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

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

NYU Press has more on the book.

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

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

Opinion Roundup

West Virginia's Charleston Gazette carries the editorial, "Pro-death: Ugly spectacle," today.

The death penalty degrades any society that inflicts it. States that kill people are less humane. Texas is almost the world capital of executions, and former Gov. George W. Bush boasted of his large number of termination warrants. He even mocked a woman who was put to death.

Now another Texas case from just before Bush's tenure -- evidently the erroneous execution of an innocent man -- is spotlighted in a book-length report in Columbia University's Human Rights Law Review. The account by Columbia law professor James Liebman says:

Carlos DeLuna was a young parolee with the mental level of a child. One night in 1983, DeLuna said, he saw a thug he knew stab a Corpus Christi store clerk to death with a lock-blade buck knife. As sirens approached, DeLuna ran, fearful of police.

When he was found hiding under a pickup truck a mile away, DeLuna had no blood on him, even though the murder scene was soaked with blood as the female clerk wrestled with the killer.

And:

Liebman concludes that the low-IQ DeLuna almost certainly was wrongly executed for someone else's murder. But we wonder whether Texas officials really care, in a state where prejudice against Hispanics is strong.

This fall, Californians will vote in an attempt to ban the death penalty. We certainly hope they take the humanitarian step that West Virginia took a half-century ago. We're proud that the Mountain State stopped killing prisoners.

Pro-death sentiment is held chiefly by hard-right conservative Americans. But we wonder if they, too, are beginning to lose their desire for executions.

Most modern democracies have ended the barbaric, medieval practice of putting people to death. It's a brutal remnant from the dark past. Where it remains, it's inflicted almost entirely on the poor and downgraded minorities. It doesn't belong in any advanced, educated, fair society.

Earlier coverage of the Columbia Human Rights Law Review article begins at the link; also available, earlier coverage of the SAFE California ballot initiative.  You can read the complete Columbia Human Rights Law Reviewl article at The Wrong Carlos.

Illinois attorney Spencer Aronfeld posts, "How Florida's Death Penalty Is Killing Us," at Huffington Post.  Here's the beginning:

Since 1979 Florida has executed 72 human beings. Most spent more than a decade on death row waiting to be killed. According to the Florida Department of Corrections the average death row inmate is 44 years old at the time of his execution, while they were only 30 years of age at the time of the alleged offense that led to their conviction.

Florida also executes women. Judy Bunoano was the first woman Florida executed in 1998. She died in an electric chair. Currently there are four women on death row.

After Bunonano's execution, Florida started offering lethal injections as an optional means. The executions are performed by an unnamed "private citizen" that gets paid $150.00 for each execution.

Tragically, not everyone who has been on Florida's death row was actually guilty. In fact, Florida reverses more death sentences than any other state in the country, releasing 23 death row inmates based upon post-conviction evidence of their innocence.

Now is the time that Florida must reform its criminal justice system by taking a closer look at what Florida's death penalty says about us as a civilization, as well as the 401 people who are currently on Florida's death row. Some argue and believe that having Florida's death penalty somehow discourages murder. Yet, the statistics tell another story. For instance, in 2010 the average murder rate in states with death penalties was 4.6 per 100,000 while the average murder rate for states without the death penalty was only 2.9 per 100,000.

More on Florida death penalty issues at the links.

You Can't Fix the Death Penalty

That's the title of an OpEd in today's Los Angeles Times written by Columbia Law prof James Liebman.  It's subtitled, "Carlos DeLuna's execution shows that a faster, cheaper death penalty is a dangerous idea."

Californians will vote this fall on an initiative to abolish the death penalty. Proponents of the measure say it is necessary because capital punishment is too costly. Opponents argue that costs can be cut by streamlining the system.

But whether one is for or against capital punishment, trying to make the process cheaper and quicker is a terrible — and dangerous — idea.

Recently, my coauthors and I published the results of an extensive four-year investigation into the Texas execution of Carlos DeLuna, a young Latino man with a childlike intellect who was convicted of murder. His case flew through the courts. The entire process, from arrest to lethal injection, took only six years, or half the national average for capital cases.

It now seems virtually certain, however, that DeLuna was innocent. Only a more careful — and consequently longer and more expensive — prosecution and appeals process might have prevented the tragedy.

And:

The flaws in the system that condemned DeLuna — faulty eyewitness testimony, poor legal representation and evidence withheld from the defense — continue to put innocent people at risk of execution. Cameron Willingham, David Spence, Ruben Cantu, Larry Griffin, Gary Graham and Troy Davis are among those executed despite evidence that they were not guilty. What we don't know is how many more, like Carlos DeLuna, have fallen through the cracks without ever being noticed.

DeLuna's case disproves the myth that we can save the death penalty by generating more "quick and dirty" executions. The death penalty is broken. At great effort and expense, states such as California have tried every measure to fix it, but they have failed. The only solution is to end it.

You can read the complete Columbia Human Rights Law Review article at The Wrong Carlos.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link.  Earlier coverage of the SAFE California ballot initiative is also available

Robyn Blumner on 'The Wrong Carlos'

Syndicated columnist Robyn Blumner writes, "When the state kills the innocent," for the Tampa Bay Times.  It's also available as, "Innocents have been executed via the Columbus Dispatch and Tribune Media Services.  It's a must-read.

If you’re reading this in a comfortable, middle-class home, what happened to Carlos DeLuna almost certainly could never happen to you.

But everyone should care about DeLuna’s story because it lays bare America’s broken “machinery of death,” to quote former U.S. Supreme Court Justice Harry Blackmun. After decades on the bench, Blackmun finally stopped upholding death sentences. He said the potential for error is too great in a system “fraught with arbitrariness, discrimination, caprice and mistake.”

DeLuna was a poor Hispanic nobody with a criminal record who was executed in Texas for a crime he didn’t commit. The system in Texas does not go out of its way for people like DeLuna. He was put to death in 1989 for the 1983 knife slaying of Wanda Lopez at a convenience store where she worked in Corpus Christi.

When DeLuna was arrested a short time after the murder, there wasn’t even a microscopic drop of blood on his clothes or shoes, despite a crime scene where Lopez’s blood was splattered on walls and pooled on the floor. A man’s bloody footprint at the scene was never measured by detectives to find a match.

Had police, prosecutors or defense lawyers done their job, they would have uncovered evidence pointing to another man. Carlos Hernandez was a knife-toting violent felon who told multiple witnesses that he had committed the Lopez crime. Hernandez died in prison in 1999 of cirrhosis of the liver.

And:

In 2006, Supreme Court Justice Antonin Scalia argued that because mistaken convictions have been uncovered, America’s death penalty is justified. He declared with relish that the system of procedural safeguards actually works because no innocent person, “not one,” has been wrongfully put to death. If there has been, Scalia wrote, “we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

Excuse us, Justice Scalia, but here are two: Carlos DeLuna and Cameron Todd Willingham. These are two men whose stories should lead all of us to conclude, as Justice Blackmun did, that America’s death-penalty experiment has failed.

The National Association of Criminal Defense Lawyers interviews Columbia Law prof. James Liebman in a podcast.  You can listen at the link.

Earlier coverage Carlos DeLuna and the Columbia HRLR acticle is at the link.  You can read the full article at The Wrong Carlos.

Death Penalty Perils

That's the title of an editorial in today's Houston Chronicle on the case of Carlos DeLuna.

We have noted before, as have other observers, that the death penalty in Texas is all too often plagued by errors and failings, and defendants, whether guilty or innocent, have most likely been executed on the strength of faulty evidence. We concluded therefore that rather than risk executing an innocent person, we should abolish the death penalty.

Last week, we were confronted by compelling evidence that in all likelihood, the unthinkable had happened and the state of Texas had indeed executed an innocent man: Carlos DeLuna, put to death in 1989 for the stabbing death of Wanda Lopez at a Corpus Christi convenience store.

As detailed by the Chronicle's Allan Turner ("Report: Texas executed wrong man in '83 killing," Page A1, May 15,) the Columbia Human Rights Law Review, produced by Columbia University law students, devoted its spring issue to a meticulously researched, 400-page article showing that DeLuna was most probably innocent.

And:

Texas has made significant changes in the past few years, one of them being the adoption of a life without parole sentencing option in capital cases. This in itself takes away a major incentive for the death sentence. But the fact is, we can never rule out human failings and errors. We need to follow the example of a growing number of states and repeal our death penalty law. Its risks far outweigh its benefits.

PBS' NewsHour examined the DeLuna case last night in, "Carlos DeLuna Case: the Fight to Prove an Innocent Man Was Executed," featuring an interview with Columbia Law prof Jim Liebman.  There is video at the link.

RAY SUAREZ: From the very beginning, it seems like things didn't add up. Was there ever any evidence connecting Carlos DeLuna to the gas station and the killing of Wanda Lopez?

JAMES LIEBMAN: There wasn't a shred of forensic in evidence this case. Even though the crime scene was a very small, confined area that was just doused in blood, because the victim was bleeding to death from her knife wound, there wasn't a drop of blood, not even a microscopic drop of blood on Carlos DeLuna or his clothing.

We know because we found the photograph 20 years later that the person who committed the crime left a footprint in blood, very deep blood, almost like stepping in mud. But Carlos DeLuna's shoes didn't have a drop of blood on them.

Earlier coverage of the Carlos DeLuna case and the Columbia HRLR article begins at the link.  All coverage is in the Carlos DeLuna category index.

A Tragic Injustice

That's the title of an editorial in today's Buffalo News, subtitled, "New statistics should prod the state to act against wrongful convictions."  It begins today's roundup of coverage on the National Registry of Exonerations.

The problem of wrongful conviction is, we suspect, worse than most people ever thought. A new archive compiled at two universities shows that more than 2,000 people have been exonerated in the past 23 years after being falsely convicted of serious crimes. Those are only the ones who have been cleared. Who knows how many more are watching their lives slip away in prisons where they do not belong?

The problem of wrongful conviction is an under-appreciated catastrophe. Beyond the tragic unfairness of years lost behind bars is the financial and emotional impact on families and society and the hard fact that when the wrong person is in prison, the real criminal remains on the loose.

It would be one thing if nothing could be done about this problem, but there is plenty that can be done. New York just can’t bring itself to do it.

And:

New York combines one of the nation’s worst records on wrongful conviction—two recent cases occurred in Erie County—with one of the worst records at responding appropriately. It knows the problem and it knows what it needs to do. It just won’t do it.

Some of the measures supported by the Innocence Project in New York City, and adopted in other states, include changes in lineup procedures to diminish the frequency of misidentification by witnesses, and recording interrogations to guard against false confessions, an odd phenomenon that occurs with disturbing frequency.

New York’s resistance to reform goes largely unexplained, though some critics believe it is because many voters would perceive such measures as being unfriendly to police and of benefit to criminals. But the opposite is true.

Convicting the right person not only avoids putting innocent people in prison, but ensures that the real criminal isn’t out creating more victims.

"Registry tracks wrongful convictions," is the Lawrence Journal World report by Shaun Hittle.

Jordan Smith posts, "The Problem of Wrongful Conviction," at the Austin Chronicle.

Facing South, the website of the Institute for Southern Studies, posts, "Exonerations highlight criminal injustice in the South."

Earlier coverage of the Registry begins at the link.

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.

Continued Coverage - 'The Wrong Carlos'

Former Texas Governor Mark White writes, "Texas must take steps to ensure guilt in capital cases."  His OpEd appears in the Houston Chronicle.  White currently co-chairs the Constitution Project's Death Penalty Committee.

As governor of Texas during the early 1980s, I oversaw 19 executions. I was certain that the executions I oversaw involved guilty individuals, based on the best information available at the time, just as I am sure my successor was certain of guilt in the execution of Carlos DeLuna.

But now, a comprehensive investigation by Columbia University law professor James Liebman and his students suggests that Texas may well have executed the wrong Carlos.

And:

While Texas has certainly taken some steps forward since 1989 with regard to eyewitness identification reform and other innocence-related issues, the problems that plagued DeLuna's case continue to plague criminal - including capital - convictions in our state and across the nation. DeLuna's case should give us all pause as we realize that the possibility of executing an innocent individual is very real. And it should strengthen our resolve to ensure that convictions, particularly capital convictions, are accurate.

If we are going to continue to execute individuals, we must be absolutely certain of those individuals' guilt. Texas must implement best practices when it comes to criminal investigations and trials.

The eyewitness identification reform bill that the Legislature passed last year is one positive step, and I'm hopeful that jurisdictions around the state fully adopt and implement best practices in accordance with the legislation. Texas must also go beyond the steps it has already taken to examine other areas in need of reform, such as providing adequate defense counsel for the poor, reforming crime labs and revising the rules governing what evidence prosecutors must turn over to the defense.

I continue to believe some crimes are so heinous, some actions so abhorrent, that society is justified in demanding the perpetrator's life be forfeit. But I also believe if Texas is going to continue to impose the death penalty, we must take every possible precaution to ensure there is never another Carlos DeLuna.

San Antonio's alt-weekly, SA Current, has an interview with Columbia Law professor Jim Liebman, "Columbia Law School team publishes anatomy of a wrongful South Texas execution."  It's conducted by Michael Barajas.

Until the day Texas executed him in 1989, Carlos DeLuna insisted another Carlos stabbed and killed 24-year-old Wanda Lopez at a Corpus Christi gas station in February 1983. At trial, prosecutors dismissed the idea, calling the other Carlos “a phantom” that didn't exist.

More than two decades after DeLuna's execution, Columbia University law school professor James Liebman and a team of his students have gathered a trove of evidence they claim shows DeLuna was innocent of the crime, publishing the findings last week in a 400-page e-book and in the Columbia Human Rights Law Review's spring issue.

And, one of the questions and answer:

What's the impact of an investigation like this? What can it teach us when looking at capital cases today?

I think the most important thing is to make us recognize the risk we take. There is a real risk of executing the innocent in these capital cases, and that's why it's so important that this case is no different from many, many others we see. It's not an unusual case. Nobody had identified it anywhere near the time of execution as one that we ought to be worried about. There are a dime a dozen cases like this. And so right now where there's a big debate taking place across this country, when a number of states have abolished [the death penalty], with California's big referendum coming up, people should be asking the question: What do we get out of this penalty that we don't get out of, for instance, life without parole? And with what risk and at what cost? We feel this book really demonstrates the risk and the cost: the worst kind of risk out there. We feel it demonstrates that there is a very real risk even in this kind of run-of-the-mill case.

There's nothing about this case where you can say, “Oh we don't do it that way anymore,” or, “That just doesn't happen anymore.” As I say, the defense attorneys were not the strongest in the world but this is not the worst case of ineffective assistance out there. You see similar cases out there everyday across the country, Texas and elsewhere. Prosecutors did not turn over all of the evidence, but there are many cases where you see even worse examples of that. The appeals were quick, but that's not unusual. Like I said, in many ways this is a very run-of-the-mill kind of case even for today. It's the way cases go today. And so the real risk of an innocent person being executed that we found in this case is a real risk that the system continues to take as long as it's prepared to execute people.

"Texas killed the wrong Carlos," is a New York Daily News OpEd written by Shawn Crowley and Andrew Markquart.  Both participated in the Columbia HRLR project, Los Tocayos Carlos,

Other details about the shoddy investigation shocked us. The witness told police the man fleeing the station after Lopez’s murder looked like a transient, wore a disheveled sweatshirt and had a mustache. Police records show that the clean-shaven DeLuna wore a white dress shirt and dress pants that night.

According to the witness, the attacker violently wrestled with Lopez as she bled to death, casting a mist of blood spatter, streaks and pools all over the tiny clerk’s area. But forensic analysis showed that DeLuna’s body, clothes, shoes and fingernails had no blood on them.

The Corpus Christi D.A.’s office has since lost the physical evidence from the investigation. Lost along with it was the potential for the kind of DNA analysis that has exonerated nearly 300 prisoners in recent years.

All of this happened not in the 1920s or even the ’50s, but in the ’80s. And the flaws in our system that led to DeLuna’s death have not been mended. Readers can review our work and decide for themselves what happened. But we are convinced: America must come to grips with the reality of wrongful execution — and decide whether we value the death.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link.  All coverage is in the Carlos DeLuna category index.

Additional Coverage, The Wrong Carlos

Today's San Antonio Express-News carries the editorial, "DeLuna case shows flaws in system."

Many people assume that the more serious the criminal case is, the more meticulously it is investigated and prosecuted. If the state is going to send someone to prison for life or to the death chamber, it's often believed, the case against him must be rock solid.

As the increasing number of DNA exonerations demonstrates, that's not always so. According to the Innocence Project, 289 people have been exonerated of serious crimes in the United States on the basis of DNA evidence since 1989. Texas leads the nation with 44 such exonerations.

One involved Michael Blair, who served 14 years on death row before he was exonerated in 2008. The most recent involves Michael Morton, who served 25 years of a life sentence for the murder of his wife, while the actual murderer was free and went on — authorities believe — to commit a second murder.

Now an investigation by the Columbia Human Rights Law Review presents a compelling argument that the state of Texas put the wrong man to death in 1989 when it executed Carlos DeLuna for the murder of Corpus Christi convenience store clerk Wanda Lopez. The DeLuna case joins those of Cameron Willingham, Claude Jones and Ruben Cantu in offering strong evidence that deeply flawed death penalty cases get through the criminal justice system, with all its checks and balances and all its avenues of appeal.

And:

But if Texas is going to reserve the right to exact the ultimate sanction, the state's criminal justice system will have to do a better job of ensuring that those who end up on death row are actually guilty of their crimes.

Houston Chronicle columnist Patricia Kilday Hart writes, "Can't count on eyewitnesses to ID criminals."

"Why do journalists care so much about criminals?" That was the simple question posed in an email I recently found in my inbox. The author didn't tell me the grounds for her premise, but it arrived right after a column I had written about providing lawyers for poor people accused of crimes. I thought about the email this week after reading Chronicle reporter Allan Turner's story about Carlos DeLuna, who was executed by the state of Texas for a 1983 robbery-murder in Corpus Christi that he almost certainly did not commit.

And:

During the last session of the Texas Legislature, a bill by Sen. Rodney Ellis, D-Houston, was passed into law requiring the Law Enforcement Management Institute of Texas at Sam Houston State University to adopt a model policy for police lineups, to reduce the possibility of injecting error into the process.

The bill was recommended by the Timothy Cole Innocence Commission, named for a Texas Tech University student who was convicted of a rape he did not commit and died in prison of an asthma attack before he was exonerated by DNA evidence. The rape victim in the case was shown Cole's picture repeatedly until she selected it, and a police officer congratulated her for her selection.

Earlier this year, LEMIT finalized its model policy. Among the recommendations: Eyewitnesses should be shown suspects' photos one at a time, instead of all together. That, the experts say, reduces subconscious pressure to select a person who looks most like the criminal. Each suspect stands alone.

That's not how the Houston Police Department currently conducts photo lineups. According to a 2009 policy, photo spreads are shown to witnesses.

When LEMIT took testimony regarding its recommendations, Houston police Detective Mark Holloway argued there wasn't enough research to abandon photo spreads in favor of showing the photos sequentially (one-at-a-time) to witnesses.

But a prestigious think tank, the American Judicature Society, says otherwise. In a recent survey of research, the AJS concluded that "decades of laboratory research" show that the "sequential procedure reduces mistaken identifications with little or no reduction in accurate identifications."

Earlier coverage of Carlos DeLuna and the Columbia HRLR investigation begins at the link.  All coverage is in the Carlos DeLuna category index.

Continued Coverage of the National Registry of Exonerations

The National Registry of Exonerations is a great resource that's getting continued media attention.

CNN posts, "More than 2,000 wrongfully convicted people exonerated in 23 years, researchers say."  It has graphics and interactive components.

More than 2,000 people have been exonerated of serious crimes since 1989 in the United States, according to a report by college researchers who have established the first national registry of exonerations.

Researchers say their registry is the largest database of these types of cases and showcases some of the major issues with the criminal justice system, including that the leading causes of wrongful convictions are perjury, faulty witness identification and misconduct by prosecutors.

"No matter how tragic they are, even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails," says a report released by the authors. "If that were the extent of the problem we would be encouraged by these numbers. But it’s not. These cases merely point to a much larger number of tragedies that we do not know about."

Read the report (PDF) | Exonerations by state and county (PDF)

The registry itself, which looks deeply into 873 specific cases of wrongful conviction, examined cases based on court documents as well as from groups that have long documented wrongful convictions. That group of wrongfully convicted spent more than 10,000 total years in prison, according to the report, with an average of 11 years each.

"2000 and Growing: Revealing Statistics in Exoneration Study," is Ashby Jones' WSJ Law Blog post.

With increasing frequency, it seems, we get wind of DNA exonerations. Someone who’s served several years in prison gets released after DNA evidence either proves that he wasn’t at the scene of the crime — or puts someone else there in his stead.

It raises the question: Just how many exonerations (due to DNA evidence or otherwise) happen in the U.S.?

The answer, it turns out, is over 2,000 in the last 23 years, according to a study out Monday from the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University.

The study is part of a broader effort at the schools to build a registry of exonerations to chart just how often it happens, and in what contexts.  “It used to be that almost all the exonerations we knew about were murder and rape cases. We’re finally beginning to see beyond that,” said Michigan Law professor Samuel Gross, editor of the registry and an author of the report.

"National Registry Of Exonerations: More Than 2,000 People Freed After Wrongful Convictions," by Michael McLaughlin at Huffington Post.

Some tales of wrongful conviction are well known, like the case of amateur boxer Dewey Bozella.

Bozella was found guilty in 1983 for the murder of an elderly woman. New York police and prosecutors pressed second-degree murder charges propped up by the testimony of witnesses who eventually recanted their testimony. It wasn't until 2007 that Bozella's attorneys discovered major discrepancies and evidence pointing to another suspect, leading to Bozella's release in 2009.

But many stories involving tainted evidence, malingering law enforcement and mistaken eyewitness identification never become common knowledge. The cases outlined on the new National Registry of Exonerations are likely just a fraction of the wrongful imprisonment cases in the United States, researchers told The Huffington Post.

More than 2,000 inmates and ex-cons have been exonerated since 1989, according to the database that aims to track all wrongful convictions in the United States. More than 100 had been sentenced to death.

"This is a beginning," said University of Michigan Law School professor Samuel Gross, one of the database's creators. "One of my great hopes is that this will lead us to learn more about exonerations."

The database, which was developed with members of Northwestern University's Center on Wrongful Conviction, focused on 873 individual cases. The researchers also identified 13 major police scandals that falsely netted 1,170 other people, although these are not included in the database because they are the results of a collective exoneration based on problems in individual agencies.

"Texas Among Top 3 States in Total Exonerations," is by Brandi Grissom and Ryan Murphy for the Texas Tribune.  The report contains a list of all Texas exonerees on the Registry.

The report's lead authors said the project is an unprecedented examination of the scope of wrongful convictions that shows they are far more prevalent than once thought. In Texas, according to the report, there have been 87 exonerations involving crimes ranging from robbery to murder. Only Illinois, with 110, and New York, with 88, had more.

“It used to be that almost all the exonerations we knew about were murder and rape cases. We’re finally beginning to see beyond that,” Michigan law professor Samuel Gross, editor of the registry and an author of the report, said in a news release. “This is a sea change.”

The report, which includes an online searchable database with details on about nearly 900 of the exonerations, details for the first time wrongful convictions in 58 cases involving drugs, taxes, white-collar and other nonviolent crimes; 102 exonerations for child sex abuse convictions; and 129 exonerations of defendants who were convicted of crimes that never happened.

The authors created a separate category for group exonerations, which includes cases of massive law enforcement corruption in Dallas and in Tulia that led to more than 40 exonerations.

The authors note, however, that their work does not encompass all of the wrongful convictions that have happened in the last two decades. Many more cases, they wrote, are probably undiscovered as the wrongfully convicted remain behind bars, die in prison or lack the money to prove their innocence.

They point to the numbers. For instance, in Dallas County, with about 2.4 million people, there have been 36 exonerations. Meanwhile, Bexar County, where the population exceeds 1.7 million, has had none.

"No matter how tragic they are, even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails. If that were the extent of the problem we would be encouraged by these numbers. But it’s not. These cases merely point to a much larger number of tragedies that we do not know about," the report states.

David A. Love writes, "How America's death penalty murders innocents," for the Guardian's Comment Is Free.  He's the executive director of Witness to Innocence.

The US criminal justice system is a broken machine that wrongfully convicts innocent people, sentencing thousands of people to prison or to death for the crimes of others, as a new study reveals. The University of Michigan law school and Northwestern University have compiled a new National Registry of Exonerations – a database of over 2,000 prisoners exonerated between 1989 and the present day, when DNA evidence has been widely used to clear the names of innocent people convicted of rape and murder. Of these, 885 have profiles developed for the registry's website, exonerationregistry.org.

The details are shocking. Death row inmates were exonerated nine times more frequently than others convicted of murder. One-fourth of those exonerated of murder had received a death sentence, while half of those who had been wrongfully convicted of rape or murder faced death or a life behind bars. Ten of the inmates went to their grave before their names were cleared.

The leading causes of wrongful convictions include perjury, flawed eyewitness identification and prosecutorial misconduct. For those who have placed unequivocal faith in the US criminal justice system and believe that all condemned prisoners are guilty of the crime of which they were convicted, the data must make for a rude awakening.

"The most important thing we know about false convictions is that they happen and on a regular basis … Most false convictions never see the light of the day," said University of Michigan law professors Samuel Gross and Michael Shaffer, who wrote the study.

"Nobody had an inkling of the serious problem of false confessions until we had this data," said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University. 

The unveiling of the exoneration registry comes days after a groundbreaking study from Columbia law school Professor James Liebman and 12 students. Published in the Columbia Human Rights Law Review, the study describes how Texas executed an innocent man named Carlos DeLuna in 1989. DeLuna was put to death for the 1983 murder of Wanda Lopez, a young woman, at a gas station. Carlos Hernandez, who bragged about committing the murder and bore a striking resemblance to DeLuna, was named at trial by DeLuna's defence team as the actual perpetrator of the crime. But DeLuna's false conviction is merely the tip of the iceberg, as the database suggests.

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

Wrongful Convictions: A New Exoneration Registry Tests Stubborn Judges

That's Andrew Cohen's latest post at the Altantic looking at the impact of the National Registry of Exonerations.  It's a must-read.

Last Monday, investigators, lawyers, and writers at the Columbia Human Rights Law Review published a groundbreaking book-length piece chronicling how Texas executed an innocent man in 1989. The piece is remarkable for how deep down its authors dug to establish how and why Carlos DeLuna was executed for a crime that Carlos Hernandez almost certainly committed. Old news, proclaimed Texas prosecutors (on Twitter, no less) last week, and to a certain extent they are right. It's hard to get people focused upon a case that's a generation old. It's what has happened since DeLuna that matters.

And that's why this Monday brings such another important contribution to the debate over criminal justice in America. Early this morning, a vital new entity, the National Registry of Exonerations, published its first-ever report that picks up where the DeLuna case left off. The study results are grim: By one measure, at least 2,000 people have been falsely convicted of serious crimes in America since 1989. If Columbia Law School dug to the depths in a single case, the Registry has scanned wide the horizon in hundreds of cases to reveal both the progress made and the scope of the problem that remains.

A joint project administered by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University, the Registry profiled 873 specific cases of exoneration from 1989 through March 1, 2012. Not surprisingly, most of the men and women who were wrongfully convicted (61 percent) were black or Hispanic. As a group, the 873 exonerated defendants spent more than 10,000 years in prison -- an average of more than 11 years each. And of the 873 exonerees, nearly half, 416 to be exact, were wrongly convicted of murder. Of those, 101 were sentenced to death.

How does this happen? Why are there so many wrongful convictions when there is so much at stake for both the defendants and the victims and when we pride ourselves on a legal system designed to ensure meaningful judicial review? The reasons are legion. It matters where you are convicted, for example, and the color of your skin matters too. And it matters who your police and prosecutors and judges are. The report reveals that in a whopping 56 percent of murder-case exonerations the initial convictions was based upon "official misconduct." Carlos DeLuna, we know, was not alone.

The Registry tells us that there have been 102 exonerations of child abuse convictions, 58 exonerations in cases of non-violent crimes and 135 exonerations of defendants who actually confessed to crimes they didn't commit. It tells us more than I can list here, which is why it is so well worth reading.

Earlier coverage the Registry begins at the link.

An Examination of Capital Punishment in Delaware

"Use of death penalty spikes; Criticized study also alleges racial disparity," is the Wilmington News Journal report written by Sean O'Sullivan.

A 1991 change that shifted final responsibility for imposing a death sentence from the jury to a judge resulted in a dramatic spike in the number of death sentences in Delaware and put the state far above the national average for imposing capital punishment.

Delaware has the third highest death-sentencing rate in the United States.

In their study, five Cornell University law professors also allege that when the convicted killer is black and the victim is white, the rate at which Delaware imposes the death penalty is far higher than in eight other states they examined.

The Delaware Attorney General’s Office strongly disputes the study’s conclusions – particularly the ones regarding race – saying the authors used flawed methodologies to reach questionable and inflammatory conclusions.

And the fact that the number of death sentences handed down since 1991 has increased doesn’t necessarily indicate a problem, said Deputy Attorney General Paul R. Wallace. As the study authors note, that appeared to be the goal of the 1991 change.

A third finding that the study’s authors noted – but were at a loss to explain – is that homicide defendants in Kent County receive death sentences at a higher rate than defendants in New Castle or Sussex counties.

And:

The 41-page study, titled “The Delaware Death Penalty: An Empirical Study,” is scheduled to be published by the Iowa Law Review in the fall. The authors include Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Martin T. Wells and Valerie P. Hans, a professor emeritus at the University of Delaware.

They found that, generally, between 1 percent and 3 percent of all murders end with a death sentence in other states. But in Delaware, the rate exceeded 20 percent of all homicides in some years.

Before 1991, Delaware’s rate of imposing death was high but it “did not materially differ from other states,” the authors state.

It was only after the 1991 change, which made the jury’s decision a nonbinding recommendation and gave the final say on death to judges, that the state’s rate soared above the national average, they said.

Delaware’s rate of imposing death sentences did decline following a 2002 change in the law mandated by the U.S. Supreme Court requiring juries to unanimously find the existence of an aggravating circumstance before the death penalty can be imposed. But even then, the state’s rate has remained above the national average by a significant margin and above pre-1991 levels, according to the study.

The authors also conclude that race appears to play a significant role in the imposition of the death penalty when a black defendant is convicted of killing a white person.

“Black defendants who kill white victims are seven times more likely to receive the death penalty as are black defendants who kill black victims. Moreover, black defendants who kill white victims are more than three times as likely to be sentenced to death (186.7 per thousand homicides) as are white defendants who kill white victims (26.1 per thousand homicides),” wrote the authors.

An earlier version of The Delaware Death Penalty: An Empirical Study is available at SSRN.

Coverage from Delaware begins at the link.

Initial News Coverage of the National Registry of Exonerations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

National Registry of Exonerations

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

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

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

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

Continued News Coverage of 'The Wrong Carlos'

The Week posts, "The Carlos DeLuna case: Definitive proof that Texas executed an innocent man?"

Is this irrefutable proof that an innocent man was put to death?
Yes, says Andrew Cohen at The Atlantic. After this definitive report, "no one can ever say again with a straight face that America doesn't execute innocent men. No one." This was a failure of the police, the courts, the local media, and the community. "If a new trial was somehow able to be conducted today, a jury would acquit DeLuna," Richard Dieter of the Death Penalty Information Center tells The Huffington Post. And yet, it's hard to say this proof is irrefutable. "We don't have a perfect case where can agree that we have an innocent person who's been executed, but by weight of this investigation, I think we can say this is as close as a person is going to come."

What lessons can we draw from this case?
Before this case, Liebman says, I believed botched capital punishment cases were mostly high-profile murders in which harried cops made mistakes. "Now, I think the worst cases are those that likely happen every day, in which no one cares that much about the defendant or the victim." Justice is fallible, says The Atlantic's Cohen. And "on the day, sooner than you think, when the United States Supreme Court again outlaws the death penalty, the justices will almost certainly cite the DeLuna case as one of the prime reasons why."

Time posts, "Did Texas Execute an Innocent Man?"  It's by Erica Ho.

The report, Los Tocayos Carlos: An Anatomy of a Wrongful Execution, published by the Columbia Human Rights Law Review, was put together by Columbia Law School professor James Liebman, head of the team that investigated the case. It reviews the string of likely missteps that led to DeLuna’s execution. To begin with, he was in the wrong place at the wrong time: DeLuna happened to visit the gas station that night, Feb. 4, 1983. But while reports described the killer as a Hispanic male wearing a grey flannel shirt, DeLuna was wearing a white dress shirt the night of the attack. Despite the bloody crime scene, no blood was found on DeLuna’s body or clothes. The prosecution’s case rested mainly on the shaky testimony of a single eyewitness. All this was complicated, the report says, by botched police procedures, an ineffective defense attorney and the unwillingness of the prosecution to consider a second suspect. And the report claims there was plenty of doubt even at the time as to whether DeLuna was the culprit.

"Groundbreaking Study Questions Execution of Possibly-Innocent Texas Man," by Collean Curry at ABC News.

A brutal murder, two similar-looking suspects, and a death sentence.

For Jim Liebman, these three ingredients became the catalyst for exposing one of the judicial system's greatest risks: executing an innocent person.

In a new book-length study written by Liebman, a Columbia law professor, and six of his students and published in the Columbia Human Rights Law Review, the decision to execute Carlos De Luna for the 1983 murder of a Corpus Christi gas station attendant is called into question again and again.

"This case, because it is such an everyday case, a very commonplace case, an 'everycase' if you've got problems in this kind of case that no one was paying attention to. It contributes to the wider debate about what the risks [of the death penalty] are to human life," Liebman told ABC News.

"Columbia law article says Texas executed the wrong Carlos," by Isolde Raftery at MSNBC.

The article, which took six years, one professor and 12 students to produce, reads like a true-crime novel. It begins: “Wanda Lopez died at work at a Sigmor Shamrock gas station in Corpus Christi, Texas on February 4, 1983. She was twenty-four. Wanda’s only brother, Richard Vargas, heard her say her last words, but they gave him no solace or peace. They just made him angry.

"Texas 'executed an innocent man', report claims," is the BBC News report.

"Wrong man executed: Columbia Law School challenges 23-year-old Texas verdict," at CNN.

"Did Texas Execute an Innocent Man?" at the Takeaway.

"Law School Report Questions Texas Use of Death Penalty in 1983 Corpus Christi Murder," by David Martin Davies for Texas Public Radio News.

"'When human life is on the line'," by Dick Polman at WHYY-FM Newsworks.

"Carlos DeLuna And Cameron Todd Willingham: The Sad Similarities," by Jason Linkins at Huffington Post.

"Did These Columbia Law Students and Their Professor Prove That Texas Executed An Innocent Man?" by Christopher Danzig at Above the Law.

The Columbia Human Rights Law Review (HRLR)  article is Los Tocayos Carlos,

Earlier coverage of Carlos DeLuna and the HRLR article begins with the preceding post.  All coverage is in the Carlos DeLuna category index.

Editorials on the DeLuna Case and Columbia Report

"Carlos DeLuna death case is unnerving," is the editorial in today's Dallas Morning News.

A bizarre reality is imbedded in the public’s attitudes toward the death penalty: Most Americans support it, yet most also allow for the possibility that innocent people can or have been executed.

This suggests one of two things. Either the nation is callous to the idea of fatal error, which we pray is not the truth, or there’s never been a case that has sufficiently aroused the public by putting a face on an innocent victim of a state death chamber.

Could that have changed this week?

The execution of Carlos DeLuna took place 22 years and five months ago, but his path from the streets of Corpus Christi to death row has been freshly examined by a major law school project at Columbia University (reprising work, in greater depth, done by the Chicago Tribune in 2006). The findings should nauseate those who trust that only the greatest care, the most professional police work, the most rigorous jury and appellate review take place before someone is strapped to the gurney and allowed one last say.

And:

We might tell ourselves that today’s technology-savvy public would demand a higher level of proof, that no one would look back in wonder about a current death verdict.

But today’s public also admits that they believe somewhere, something is likely to break down in the system. This newspaper opposes the death penalty for that very reason.

"Another man wrongly executed," is the Philadelphia Inquirer editorial.

With nearly 300 people across the nation exonerated after being sentenced to death, the risk of executing an innocent person is a reality in the 33 states, including Pennsylvania, where capital punishment remains legal.

That risk alone should be enough to persuade responsible elected officials to scrap the death penalty — as Connecticut did in April, following the lead of Illinois, New Mexico, and New Jersey.

There can be no more compelling reason for taking that step than evidence that the wrong person has been executed for a crime.

And that’s exactly what Columbia University law professor James Liebman and five of his students provided this week with their book-length exploration of the 1983 murder for which a Texan, Carlos DeLuna, was put to death in 1989.

The Columbia Human Rights Law Review (HRLR)  article is Los Tocayos Carlos,

More news coverage of the report will be linked in the next post.  Earlier coverage of Carlos DeLuna and the HRLR article begins at the link.  All coverage is in the Carlos DeLuna category index.

Two Interviews With Jim Liebman

The Texas Tribune posts, "James Liebman: The TT Interview," conducted by Brandi Grissom.  There is video at the link.

Now, more than two decades after DeLuna's execution, Columbia University law school professor James Liebman and a team of students have uncovered evidence they say proves that Carlos DeLuna was innocent, and that Carlos Hernandez not only was real but was probably the real killer. They released their findings in a book-length monograph and website published by the Columbia Human Rights Law Review on Tuesday.

"I'm convinced that no jury could possibly have convicted Carlos DeLuna beyond a reasonable doubt on the evidence here. That's absolutely clear," Liebman said in a videotaped interview with the Tribune from Columbia University in New York. Liebman discussed the lengthy in-depth investigation that the team conducted, which he said revealed that Hernandez had a long history of violent crimes, that police worked too fast, that important leads were never followed and that, in the end, even DeLuna's execution may have been botched. "Everything that could go wrong, did go wrong," he said.

And:

Carlos DeLuna protested his innocence until his death. At his execution, the Rev. Carroll Pickett, the death house chaplain, said DeLuna asked if he could call him Daddy and held the pastor's hand as long as he could.

"I fully believe that Carlos DeLuna was an innocent man, and I will always believe that," Pickett said.

At the Guardian, Ed Piklington writes, "Wrongful execution of Carlos DeLuna: highlights from our Reddit discussion."

Issue 3: How did a Columbia investigator uncover in a day what Texas police weren't able to find in six years?

Liebman: If you don't look hard, you won't find, and I fear that this is a case where the responsible people didn't look hard because they believed that they had quickly arrested the right man. As sometimes happens, minds closed before the evidence was in.

Pilkington: Yes. When I read that I nearly fell off my chair.

Issue 4: Will public opinion be affected?

Liebman: There is a vibrant debate about the death penalty in the US just now and the public is paying close attention. We wrote this article so it could provide information on that debate to the public in a very accessible way. I have faith in the facts and in the public's ability to make reasoned judgments on matters of policy over time. And it takes time. In fact, public opinion on the opinion has changed dramatically over the past 15 years in the US and it has had an impact. Juries are imposing one-third as many death sentences each year now, compared to 1999.

Earlier coverage of the case of Carlos DeLuna and the Columbia HRLR article begins with the preceding post.  All coverage is in the Carlos DeLuna category index.

Additional Coverage of the DeLuna Report

Reuters posts, "Capital mistake?" by Terry Baynes.

In his career as a Columbia Law professor, James Liebman has penned his share of technical law review articles arguing against capital punishment. But to illustrate how the justice system could execute an innocent man, Liebman wanted a more visceral reaction from readers. To get it, he teamed up with a group of his students and after some extensive research, homed in on the case of Carlos DeLuna, a poor Hispanic with an IQ of 72 who was executed in Texas in 1989 for the stabbing death of a gas station clerk in Corpus Christi.

The resulting narrative reads like more like Norman Mailer's "Executioner's Song" than your typical Columbia Human Rights Law Review entry. The journal published the article today, along with an innovative interactive website that allows readers to review every piece of evidence in the case online, from police audiotape and trial transcripts to crime scene photos and video interviews. "Presented that way, people can make a judgment for themselves," said Liebman.

"Report says Texas executed an innocent man," is the UPI report.

A 400-page article in Columbia University's Columbia Human Rights Law Review asserts Texas convicted and executed the wrong man in a 1983 killing.

The article examines the arrest, prosecution and 1989 execution of Carlos DeLuna in the death of Wanda Lopez, 24, who was fatally stabbed during a robbery at a Corpus Christi gas station, the Houston Chronicle reported.

In prosecuting, DeLuna, the state bypassed Carlos Hernandez, a man who the article said had bragged about killing Lopez and laughed about DeLuna being convicted of the crime.

Today's Houston Chronicle reports, "Eyewitness procedure flawed in DeLuna murder case, lawmakers say," by Allan Turner.  It's also available at the Hearst sister-paper, the San Antonio Express-News.

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

"Columbia Human Rights Law Review releases study on Corpus Christi man executed in 1989," by Michelle Villarreal in the Corpus Christi Caller Times.

Carlos DeLuna, executed in 1989 for the murder of a Corpus Christi woman, was innocent, a 400-page report released Tuesday states.

The Columbia Human Rights Law Review report detailed the events of his July 1983 trial for the death of Wanda Lopez and how he was wrongly executed.

Columbia Law School professor James Liebman and students conducted the study to contribute to a public debate of the death penalty specifically arguing that it is an ineffective form of punishment, Liebman said.

The DeLuna case was chosen after Liebman did a study on courts across the country and how they handled legal error. Executions piqued his interest and he started looking at Texas death penalty cases.

“One of the very first cases we came across was the Carlos DeLuna case, who said all along that another man murdered the woman,” Liebman said.

Slate posts, "Report: Texas Executed Innocent Man," by Rachael Levy.

Carlos DeLuna maintained his innocence from the moment he was arrested in 1983 for the stabbing death of a young Texas woman right up until he was executed six years later. On Monday, a Columbia University professor and a group of law students offered what appears to be definitive proof that DeLuna's mistaken-identity claims were the real deal and that an innocent man was put to death.

"10 Shocking Bits From Book About How Texas Executed an Innocent Man," by Ben Jacobs at Daily Beast.  Here's the Beast's first bit:

Ignored By 911

Wanda Lopez was a divorced single mother and high-school dropout who worked the 3–10 p.m. shift behind the register at the Sigmor Shamrock gas station and convenience store. It was in a rough neighborhood in Corpus Christi, located next to a strip club called Wolfy’s. At 8:09 p.m., she called 911 in a panic. She immediately asked “[C]an you have an officer come to 2602 South Padre Island Drive? I have a suspect with a—a knife inside the store ... He’s a Mexican. He’s standing right here at the counter.” Instead, the 911 operator, Jesse Escochea, who wasn’t supposed to be answering calls and just picked up the phone because everyone else was occupied, quizzed her for 77 seconds because he thought she had “an attitude.” He didn’t dispatch a police car until after Lopez had been fatally stabbed in her chest while asking for help. It later emerged that the reason for her “attitude” was that she had previously called 911 about the same man loitering outside the door and was told to immediately call back if the man entered. If the regular 911 operator had answered, help would have come right away and Wanda Lopez might not have been stabbed.

"Did Texas Execute an Innocent Man?" is Jordan Smith's Austin Chronicle report.

It’s been 23 years since Carlos De Luna was executed by lethal injection for the 1983 attempted robbery and murder of Wanda Lopez at a Corpus Christi gas station; this week, a book-length law review article was released that meticulously deconstructs the case – and makes it almost undeniable that Texas has executed an innocent man.

In the years since De Luna’s execution, serious questions have been raised about whether De Luna was actually responsible for the crime. This week, the Columbia University School of Law’s Human Rights Law Review publishes “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” dedicating the entire issue to unfolding the De Luna case with an eye toward what went wrong – and what the ramifications are for Texas and beyond. Indeed, the article, by Professor James Liebman and a group of law students, presents the strongest evidence yet that the state of Texas has convicted and killed an innocent man, Carlos De Luna, and failed completely to catch the real killer, Carlos Hernandez, despite compelling evidence that pointed directly to his guilt. De Luna, who repeatedly claimed innocence, was executed in 1989. “Two things are clear right off the bat,” says Liebman. “One, on the evidence [that we now have, it is clear] Carlos De Luna could never have been convicted” because there’s simply too much doubt. “Two, if that evidence had been put [to use to prosecute] Carlos Hernandez, there is no doubt [Hernandez] would have been convicted.”

Kristin Houle posts, "Did Texas Execute an Innocent Man?" at Burnt Orange Report.  She's the executive director of the Texas Coalition to Abolish the Death Penalty.

Everything that could go wrong in a death penalty case did so for Carlos DeLuna, a poor Hispanic man with childlike intelligence who maintained his innocence from the time of his arrest to his execution just six years later.  Among the many issues calling into question the reliability of DeLuna's conviction are:

- A single cross-ethnic eyewitness identification conducted at night, at the crime scene, while the suspect was in the back seat of a police squad car;
- No corroborating forensics and a sloppy crime scene investigation;
- Grossly inadequate representation at the trial and appellate levels, including failure of his court-appointed attorneys - one of whom had never tried a criminal case in court, let alone a capital murder case - to present any witnesses or mitigating evidence during the sentencing phase; and
- Prosecutorial failure to turn over potentially exculpatory evidence to the defense.

"New book aims to show executed man was innocent," by Melanie Eversley at USA Today.

"Questions About Another Texas Execution: Was Wrong Man Condemned?" is by Mark Memmott at NPR.

Lucy Steigerwald posts "Columbia Professor and Students Reveal Texas Justice Executed the Wrong Man in 1989," at Reason.

"Human Rights Law Review Reveals Troubling Picture of Wrongful Execution," by Jeremy Leaming at ACS.

A Routine Execution in Texas

That's the title of an editorial in today's New York Times concerning the case of Carlos DeLuna.  It begins today's extensive coverage of the Columbia Human Rights Law Review (HRLR) article, Los Tocayos Carlos,

Carlos DeLuna, who was executed in 1989 by the state of Texas, was almost certainly wrongly convicted of stabbing a young woman to death with a knife in a gas station robbery in Corpus Christi. Carlos Hernandez, who died in a Texas prison while serving time for stabbing someone else, almost certainly killed the young woman and repeatedly told others that he had committed the murder.

This case is the subject of an extraordinary project at Columbia Law School, which this week released a book-length account — called “Los Tocayos Carlos,” or the namesake Carlos — detailing the errors in the investigation and prosecution of Mr. DeLuna from the moment of his arrest.

Texas has executed 482 people since it reinstated the death penalty in 1982, four times the number of any other state. A grievous injustice was very likely done in the DeLuna case. But the errors documented by Prof. James Liebman and his team are routinely found in other capital cases in Texas and other states.

In 2006, The Chicago Tribune presented evidence casting doubt on Mr. DeLuna’s conviction, based largely on Professor Liebman’s initial research. This account, based on new evidence and a 30-month inquiry, supports an even firmer conclusion that Texas executed an innocent man.

Earlier coverage of the Carlos DeLuna case and the HRLR article begins at the link.  Additional news coverage will be linked in the next post.

Prejean Papers Featured in DePaul University Exhibit

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

Andrew Cohen on the DeLuna Case

"Yes, America, We Have Executed an Innocent Man," is Andrew Cohen's post at the Atlantic.  He begins his report on Carlos DeLuna and the Columbia Human Rights Law Review article with a 2006 Supreme Court death penalty case.

Even for Justice Antonin Scalia, the crassest of the current United States Supreme Court justices, it was a particularly callous piece of writing. In 2006, in a case styled Kansas v. Marsh, the Court's five conservatives had just upheld a portion of Kansas' capital punishment law. The statute was interpreted to direct a sentence of death even if a jury found the "aggravating" and "mitigating" sentencing factors in equilibrium -- "equipoise," the Court lyrically called it. A tie, in other words, would mean death, not life.

For the majority, Justice Clarence Thomas had bent over backward to overturn a ruling by the Kansas Supreme Court that had declared the law unconstitutional. The High Court's four liberal justices had voted to uphold the Kansas ruling. Justice John Paul Stevens, the Ford appointee, chastised Thomas for reaching out so aggressively to overturn a state court on a matter of state law. And Justice David Souter, the Bush I appointee, wrote about how such "equipoise" necessarily precluded a death sentence.

Mocking the rationale of both, and unsatisfied with the scope of Justice Thomas' majority opinion, Justice Scalia wrote a concurrence he will have to live with the rest of his life. As he sought to destroy Justice Souter's argument about the doubts reasonable people have about the accuracy and reliability of America's death penalty regime, Justice Scalia described a criminal justice system unfamiliar to anyone who has ever covered a murder case, read a book about one, or watched television news.

And:

At 11 p.m Monday, the Columbia University Human Rights Review published and posted its Spring 2012 issue -- devoted entirely to a single piece of work about the life and death of two troubled and troublesome South Texas men. In explaining to their readers why an entire issue would be devoted to just one story, the editors of the Review said straightly that the "gravity of the subject matter of the Article and the possible far-reaching policy ramifications of its publication necessitated this decision."

The article is titled "Los Tocayos Carlos: Anatomy of a Wrongful Execution" and it was written by James S. Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, Lauren Rosenberg and Daniel Zharkovsky. Los Tacayos can be translated from Spanish as "namesakes" and the two men at the heart of the story were, indeed, named Carlos DeLuna and Carlos Hernandez.. On December 7, 1989, this intense piece establishes beyond any reasonable doubt, Texas executed the former for a murder the latter had committed.

The Review article is an astonishing blend of narrative journalism, legal research, and gumshoe detective work. And it ought to end all reasonable debate in this country about whether an innocent man or woman has yet been executed in America since the modern capital punishment regime was recognized by the Supreme Court in 1976. The article is also a clear and powerful retort to Justice Scalia in Kansas v. Marsh: Our capital cases don't have nearly the procedural safeguards he wants to pretend they do.

Earlier coverage of Carlos DeLuna and the HRLR article begins at the link.

The Wrong Carlos

The current issue of Columbia Human Rights Law Review (HRLR) examines the case of Carlos DeLuna, executed by Texas in 1989.  In 2006, the Chicago Tribune ran a three-part series, demonstrating that DeLuna was likely innocent of the crime for which was convicted and executed. 

The HRLR article is Los Tocayos Carlos, and it breaks new ground in investigating the case; all that went wrong, from the intital police response to a 911 call until Carlos DeLuna's execution.  The full report - contained at an interactive website - is a must read.

Here's a roundup of the news coverage this morning.  "Texas executed wrong man, report claims," by Allan Turner for the Houston Chronicle.

At 24, Wanda Lopez was savvy to the pitfalls of her crime-infested Corpus Christi neighborhood. A divorced high school dropout with a child to support, she knew well the perils of her solo night job at a nearby gas station. When a customer warned that a man with a knife lurked outside the store, she immediately telephoned police.

What happened next that February night in 1983 - a robbery, frenzied struggle and fatal stabbing - continues to resonate with questions about how well police, prosecutors and defense lawyers performed their jobs.

On Tuesday, the Columbia Human Rights Law Review will devote its spring issue to a 400-page article asserting that the state convicted the wrong man, bypassing a potential suspect who had bragged of killing Lopez.

The critique is the latest in which death penalty opponents seek to prove that Texas, with 482 executions since 1982, killed an innocent man.

And:

The journal article, "Los Tocayos Carlos: Anatomy of a Wrongful Execution," grew out of a 2003 student project to examine Texas capital cases in which a single eyewitness account was key to conviction.

"This case changed my whole view," said Columbia Law professor and project sponsor James Liebman. "I had thought the problem cases were ones where you have an out-of-town defendant, a scary person who commits a really bad crime that grabs the whole community. The police are under so much pressure to find someone that something goes wrong. Now, I think the worst cases are those that likely happen every day in which no one cares that much about the defendant or the victim."

"Wrong man was executed in Texas, probe says," is by Chantal Valery of AFP.

He was the spitting image of the killer, had the same first name and was near the scene of the crime at the fateful hour: Carlos DeLuna paid the ultimate price and was executed in place of someone else in Texas in 1989, a report out Tuesday found.

Even "all the relatives of both Carloses mistook them," and DeLuna was sentenced to death and executed based only on eyewitness accounts despite a range of signs he was not a guilty man, said law professor James Liebman.

Liebman and five of his students at Columbia School of Law spent almost five years poring over details of a case that he says is "emblematic" of legal system failure.

DeLuna, 27, was put to death after "a very incomplete investigation. No question that the investigation is a failure," Liebman said.

The report's authors found "numerous missteps, missed clues and missed opportunities that let authorities prosecute Carlos DeLuna for the crime of murder, despite evidence not only that he did not commit the crime but that another individual, Carlos Hernandez, did," the 780-page investigation found.

The report, entitled "Los Tocayos Carlos: Anatomy of a Wrongful Execution," traces the facts surrounding the February 1983 murder of Wanda Lopez, a single mother who was stabbed in the gas station where she worked in a quiet corner of the Texas coastal city of Corpus Christi.

"Everything went wrong in this case," Liebman said.

That night Lopez called police for help twice to protect her from an individual with a switchblade.

"They could have saved her, they said 'we made this arrest immediately' to overcome the embarrassment," Liebman said.

Forty minutes after the crime Carlos DeLuna was arrested not far from the gas station.

Texas News Service reports, "New Website Documents “Wrongful” Texas Execution," by Peter Malof.

A treasure trove for true-crime fans is being touted as near-proof that the state of Texas executed an innocent man. Available online starting today: police photos, court files, taped witness interviews, 911 recordings, and a novel-syle report about a Corpus Christi murder in 1983.

The website comprises the largest single public collection of information about a criminal case, according to the Columbia Law School professor and his students who posted the results of their 18-month study, published in the University's Human Rights Law Review.

Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, predicts the report will give pause to even the most steadfast supporters of capital punishment.

"There not only is substantial evidence that the state of Texas executed the wrong person, but also that law enforcement knowingly turned a blind eye to the real perpetrator."

The website - "TheWrongCarlos.net" - portrays the arrest and conviction of Carlos DeLuna as a case of mistaken identity. He always maintained that another "Carlos" who looked strikingly similar was responsible for the convenience-store murder of single mother Wanda Lopez.

The Guardian posts, "The wrong Carlos: how Texas sent an innocent man to his death," by Ed Pilkington.

A few years ago, Antonin Scalia, one of the nine justices on the US supreme court, made a bold statement. There has not been, he said, "a single case – not one – in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred … the innocent's name would be shouted from the rooftops."

Scalia may have to eat his words. It is now clear that a person was executed for a crime he did not commit, and his name – Carlos DeLuna – is being shouted from the rooftops of the Columbia Human Rights Law Review. The august journal has cleared its entire spring edition, doubling its normal size to 436 pages, to carry an extraordinary investigation by a Columbia law school professor and his students.

The book sets out in precise and shocking detail how an innocent man was sent to his death on 8 December 1989, courtesy of the state of Texas. Los Tocayos Carlos: An Anatomy of a Wrongful Execution, is based on six years of intensive detective work by Professor James Liebman and 12 students.

Starting in 2004, they meticulously chased down every possible lead in the case, interviewing more than 100 witnesses, perusing about 900 pieces of source material and poring over crime scene photographs and legal documents that, when stacked, stand over 10ft high.

What they discovered stunned even Liebman, who, as an expert in America's use of capital punishment, was well versed in its flaws. "It was a house of cards. We found that everything that could go wrong did go wrong," he says.

"Another innocent executed?" is by Rania Khalek at Salon.

Death-penalty abolitionists long believed that the execution of an innocent person would turn the public against capital punishment. But that conviction has recently been shaken. First, there was Cameron Todd Willingham, who, after his 2004 execution in Texas, was found to have been likely innocent of killing his three small daughters. Nearly a decade later, Georgia executed Troy Davis despite widespread doubts about his guilt.

A new investigative report by the Columbia Human Rights Law Review (CHRLR) reveals that Carlos DeLuna, who was executed by the state of Texas in 1989, was likely innocent as well. The full report, titled “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” can be viewed at CHRLR’s newly launched interactive website where readers can view all of the evidence cited in the article.

Earlier coverage is in the Carlos DeLuna category index.  Journalists have also pointed to Ruben Cantu and Todd Willingham as likely innocents executed by Texas.

Another Academic Tribute to David Baldus

"Race and the Death Penalty: A Tribute to the Life and Work of David C. Baldus," is the title of a program at the University at Albany on Friday, April 20.  It will mark the the addition of the Baldus' personal papers to the National Death Penalty Archive, at UAlbany.

Here's the program announcement:

The University at Albany 's School of Criminal Justice and the University Libraries are pleased to invite the public and the University community to an event to be held on Friday, April 20 at 3:30 in the Standish Room, on the third floor of the Science Library, to announce the addition of the personal papers of the late David C. Baldus, Joseph B. Tye Professor at the University of Iowa College of Law, to the National Death Penalty Archive.

David Baldus's research and scholarship on the influence of race in the administration of the death penalty are unparalleled.  His study of racial disparities in the application of Georgia's death penalty served as the foundation of the landmark Supreme Court case, McCleskey v. Kemp (1987).  In that decision, by vote of 5-4, the justices upheld Georgia's death penalty law against constitutional challenge despite dramatic race-of-victim differences in capital charging and sentencing decisions that were revealed by "the Baldus study."  The McCleskey decision was issued a quarter century ago, on April 22, 1987.  Speakers at the April 20 event will reflect on the legacy of McCleskey v. Kemp and issues involving race and capital punishment as they recognize David Baldus's enduring commitment to equal justice under law and comment on the significance of including his papers within the National Death Penalty Archive.  Speakers will include:

Professor Catherine Grosso, Michigan State College of Law
Dr. Alice Green, Center for Law and Justice
Mr. David Kaczynski, New Yorkers for Alternatives to the Death Penalty
Mr. Brian Keough, M.E. Grenander Department of Special Collections and Archives, University at Albany
Professor James Acker, School of Criminal Justice, University at Albany

Discussion and a question-and-answer session will follow.  Refreshments will be available.  The event is free and open to the public.  For additional information, contact: Brian Keough at bkeough@albany.edu.

Last October, The University of Iowa College of Law held an Academic Conference and Tribute to honor his work and life; archived video is at the link.  Earlier coverage of David Baldus and his work is also available.

Examining When Justice Goes Awry

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

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

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

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

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

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

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

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

Study: Prosecutors Not Disciplined for Misconduct

That's the title of Brandi Grissom's Texas Tribune post on a forum on prosecutorial misconduct held yesterday tat UT Law.

In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

None of those prosecutors has ever been disciplined.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.

At a symposium today at the University of Texas at Austin, exonerees Michael Morton of Texas and John Thompson of Louisiana, along with lawyers and legal scholars, will discuss the need for increased accountability for prosecutors nationally and in Texas. The symposium is part of a national accountability campaign by the New York-based Innocence Project.

And:

“There’s no disincentive for a prosecutor to do it unless he or she has an internal moral code themselves,” Ridolfi said. In a study of California cases, her organization reported that from 1997 to 2009, courts found 707 instances of prosecutorial misconduct. There were just six instances in which prosecutors were disciplined.

As more inmates are being freed based on DNA evidence, Ridolfi said, more cases of misconduct are being identified. Although it is often the same prosecutors who repeatedly engage in misconduct, she said, the problem reflects poorly on the entire justice system.

“It’s basically bringing down the integrity of all the district attorneys’ offices,” she said.

In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.

"New Research Illustrates Lack of Accountability for Prosecutors in Texas," is the news release issued by the Innocence Project and Prosecutorial Oversight.  Here's the beginning:

New research released today by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas. The research will be addressed at a symposium today at the University of Texas School of Law that will include panelists with backgrounds from all aspects of the criminal justice system addressing systemic and legal approaches for reducing prosecutorial error and misconduct.

The Austin event marks the second stop on a national tour organized by the Prosecutorial Oversight coalition, which includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas; the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.

“No one is disputing that prosecutors have tremendous responsibility, and the vast majority do a good job under difficult circumstances.  But now that the Supreme Court has given prosecutors almost complete immunity for their actions, we need to develop systems of accountability for dealing with those prosecutors who violate their ethical obligations,” said Jennifer Laurin, Assistant Professor, University of Texas School of Law.

The research released today was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.  The group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.

From 2004 to 2008, courts found that prosecutors committed error in 91 cases.  Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.”  In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction.  From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.

There's much more at Prosecutorial Oversight.  Earlier coverage of the cases of Michael Morton and John Thompson begins at the links.  Related posts are in the prosecutorial misconduct index.

Bryan Stevenson at TED

Bryan Stevenson, leader of the Alabama-based Equal Justice Initiative, has a TED Talk, "We need to talk about an injustice."  It's a much-watch.

In an engaging and personal talk -- with cameo appearances from his grandmother and Rosa Parks -- human rights lawyer Bryan Stevenson shares some hard truths about America's justice system, starting with a massive imbalance along racial lines: a third of the country's black male population has been incarcerated at some point in their lives. These issues, which are wrapped up in America's unexamined history, are rarely talked about with this level of candor, insight and persuasiveness.

Bryan Stevenson is the founder and executive director of the Equal Justice Initiative, fighting poverty and challenging racial discrimination in the criminal justice system

One takeaway:

"We have a system of justice in [the US] that treats you much better if you're rich and guilty than if you're poor and innocent. Wealth, not culpability, shapes outcomes.”

He will be the keynote speaker at a UT Law symposium later this month in Austin, Lynching and the Death Penalty, noted at the link.

Friday

I'll be out of the office much of Friday, attending "Barriers and Innovationas in Civil Rights Litigation Since 9/11: Practical and Theoretical Perspectives." 

The conference is co-sponsored by the William Wayne Justice Center for Public Interest Law and the American Constiution Society Austin and UT Law chapters.

A Profile of Christina Swarns

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

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

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

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

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

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

And:

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

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

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

Lynching and The Death Penalty

That's the title of a symposium at the University of Texas School of Law, set for March 23 & 24, 2012.

The symposium will focus on the historical link between lynching and the death penalty, their similarities and differences, and the enduring role of lynching and race discrimination in contemporary capital litigation.

Keynote address by Bryan Stevenson: Lynching, Racial History and Death Penalty Disqualification.

Presented by: Capital Punishment Center
Sponsor: William Wayne Justice Center for Public Interest Law
Student Organization Sponsor: Texas Journal on Civil Liberties & Civil Rights

More information, including the full program of Lynching and the Death Penalty, is at the link.  It will be held in the Eidman Courtroom at the UT Law.

Friday March 23rd

12:30 – 12:45    Welcoming Remarks

12:45 – 1:15:    Keynote address:  Bryan Stevenson

1:30 – 3:15:      Panel One:  Lynching, a General Historical Perspective
This panel will discuss the practice of lynching in the United States during the late 19th and early 20th centuries, including its social and political significance, its role in maintaining racial caste, and its connection to other practices (including criminal punishment).

Philip Dray, New York University, Institute for the Humanities
Grace Hale, University of Virginia, Departments of History and American Studies
Amy Louise Wood, Illinois State University, Department of History
George C. Wright, Prairie View A&M University
            Moderator:  William Forbath, University of Texas School of Law

3:15-3:30    Coffee Break

3:30 – 5:00:      Panel Two: The Relationship between Lynching and the Death Penalty during the Lynching Era
This panel will focus on the relationship between lynching and capital punishment during the era of active lynching, including the similarities/dissimilarities of those practices, the extent to which capital punishment and lynching served as “substitutes” for each other, and the connection between lynching reform movements and criminal justice policies.

Carol Steiker, Harvard Law School
Jordan Steiker, University of Texas School of Law
Margaret Vandiver, University of Memphis, Criminology and Criminal Justice
    Moderator:  Cary Franklin, University of Texas School of Law


Saturday March 24th

8:45-10:15:    Panel Three: Lynching’s Legacy and Contemporary Capital Practice
This panel will discuss the extent to which contemporary capital punishment is influenced by, understood through, or reflective of the practice of American lynching.

Sherrilyn Ifill, University of Maryland School of Law
David Oshinsky, University of Texas, Department of History
Rob Owen, University of Texas School of Law
Frank Zimring, University of California Berkeley, School of Law
            Moderator:  Justin Driver, University of Texas School of Law


10:30-12:00:     Panel Four: Lynching and Contemporary Litigation
This panel will examine the continuing role of race discrimination in general and lynching in particular on contemporary American criminal justice, focusing on  the significance of past lynching practices - as an integral part of community histories of racism - in contemporary capital litigation.

Maurie Levin, University of Texas School of Law
Bryan Stevenson, Executive Director, Equal Justice Initiative
Christina Swarns, Director, Criminal Justice Project, NAACP Legal Defense Fund
            Moderator:  Jim Marcus, University of Texas School of Law

The Florida Symposium

"Legal experts focus on Florida's death penalty," is the AP report on yesterday's symposium.  It's by Bill Kaczor, via Florida Today.  A slightly different version is available from the St. Augustine Record.  Here's an extended excerpt:

A panel that included legal experts, academics and lawmakers on Monday renewed a push for changes to try to make Florida’s death penalty more just and prevent innocent people from being executed.

Participants’ views about their chances of success ranged from hopeful to despairing in a state that leads the nation with 23 death row inmates who have been exonerated.

“It seems to be a problem that may not be able to be solved,” said former State Attorney Harry Shorstein of Jacksonville. “What the public doesn’t understand is how expensive this litigation has been over the years.”

Shorstein, who participated by telephone, supports the death penalty but said he’s troubled with the lack of movement toward fixing its problems.

Florida State University’s law school sponsored the forum to mark the fifth anniversary of an American Bar Association study that criticized the state’s death penalty procedures and made a number of recommendations.

One was that juries be unanimous in recommending death sentences. Florida is the only death penalty state that lets juries make sentencing decisions or recommendations by a simple majority. Florida judges have the final say but must give great weight to jury recommendations.

State Sen. Thad Altman for a second year is sponsoring a bill (SB 772) that would require unanimous findings of aggravating factors as well as death sentence recommendations. His legislation failed without so much as a committee hearing earlier this year.

“I’m hoping ... we can at least get a hearing,” the Viera Republican told other panel members. “I don’t think that’s asking too much.”

The panel’s moderator, Mark Schlakman, senior program director at Florida State’s Center for the Advancement of Human Rights, was more optimistic.

Schlakman noted the new bill would apply only to crimes committed after Oct. 1, 2012. Prosecutors had been worried about it being retroactive to existing cases.

Also, since the last legislative session, U.S. District Judge Jose E. Martinez in Miami has ruled Florida’s death sentence law is unconstitutional because jury recommendations don’t have to be unanimous. The state is appealing. “Irrespective of where the appeal goes, it underscores the concern about that process,” Schlakman said in an interview.

Some lawmakers have opposed changes because they were afraid that might result in more appeals. Martinez’ ruling shows the opposite may be the case, Schlakman said.

In a prerecorded video presentation, former Florida Supreme Court Justice Raoul Cantero said the high court as long ago as 2005 had urged unanimous jury recommendations.

The Florida News Service posts, "Symposium Advocates Unanimous Jury Verdicts in Death Penalty Cases," by Mike Vasilinda.

Meeting in the shadow of the state capitol, judges, lawyers, prosecutors and others debated how the death penalty is imposed.

“It’s the least that we can ask, that before we give the ultimate sentence to someone, that we require a unanimous verdict,” Sen. Thad Altman (R-Brevard) said.

At 24, Florida leads the nation in death row exonerations. Faulty eyewitness testimony is often the blame.

“The mind is not like a tape recorder,” Mike Minerva with the Innocence Project said. “It does not retain whatever images the person thought that they had

The experts say one of the biggest determinants of who gets death is simply which county your tried in.

Judge O.H. Eaton is a retired circuit judge from Seminole County with doubts.  For 15 years he has taught a required class for judges that qualifies them for murder cases.

“That whether a person lives or dies has more to do with the judicial assignment than the facts of the case,” Eaton said. “Now, if that doesn’t show you that we’ve got a broken system, I don’t know what does.”

Yesterday's preview begins coverage from Florida; coverage of the Florida ABA Assessment is also available.  A 2009 symposium at the FSU law school also examined issues raised in the ABA review.

In Florida

Today's Miami Herald carries the AP filing, "Legal experts focus on Florida death penalty."

Legal experts are taking a look at Florida's death penalty and preventing the execution of innocent people.

A panel including former Florida Supreme Court Justice Raoul Cantero, lawyers and legislators will focus on those issues Monday at Florida State University's law school in Tallahassee.

The panel also will include Florida State President Emeritus Talbot "Sandy" D'Alemberte.

Also a former American Bar Association president, D'Alemberte, led efforts to create the Florida Innocence Commission.

The panel is examining wrongful convictions and making recommendations on how to prevent them in the future.

The Center for the Advancement of Human Rights has issued a news release, "The Death Penalty: Evolving Issues in Florida," listing the participants.

"Flawed death-penalty processes need review," is the Tallahassee Democrat editorial from Saturday's paper.  Here's an extended excerpt:

On Monday at Florida State University, the Center for the Advancement of Human Rights will host a forum meant to shift the conversation about capital punishment — from whether it's good public policy to its fiscal implications and integrity.

Five years ago, the American Bar Association released its Florida Death Penalty Assessment Team report, which raised serious concerns about the fairness and impartiality of Florida's death penalty process. It called for a complete review of legislative, executive and judicial branch involvement.

The report didn't support or oppose capital punishment, nor was it directed to the method of execution. But it did reveal enough cases in which the wrong Death Row inmate was executed to raise concerns about the administration of justice. Yet little has changed.

It is this unnerving gray area that participants in the forum hope to explore when they meet Monday in the rotunda of the FSU College of Law. The event, from 9:30 to 11:30 a.m., involves work of the ABA, the Constitution Project, which is a Washington-base bipartisan policy think tank, and participation by members of the Florida Bar's criminal law and public interest law sections as well as FSU's chapter of Amnesty International.

The need for a comprehensive review of Florida's capital punishment processes is almost irrefutable, in light of the flaws and shortcomings varying from inadequate legal representation to racial disparities, demonstrating that the death penalty is used more often when the victim is white than when the victim is black or another minority.

Florida has been on the brink of really looking at its capital punishment system and making more certain that the wrong person isn't put to death — and, of significant public concern, that the real criminal doesn't remain uncaptured and unpunished.

Yet the Florida Commission on Capital Cases, which had made recommendations on how to safeguard the integrity of the law, help unclog the appeals system and perhaps save money, was itself eliminated in May to save state budget dollars.

Some slight movement is suggested in legislation that's being considered — for instance, to require unanimous jury recommendations for the death penalty — and Florida TaxWatch may study the financial implications.

But more focus is needed, considering that Florida has eventually exonerated more death-sentenced inmates than any other state — sometimes after DNA evidence or confessions by the real killers proved the injustice, but posthumously in some cases, too.

Earlier coverage of Florida capital punishment issues begins at the link.  Coverage of the Florida ABA Assessment is also available.  A 2009 symposium at the law school also examined these issues.

David Baldus Academic Conference & Tribute Online

The University of Iowa College of Law has released podcasts of the David Baldus Academic Conference and Tribute. 

The Baldus Academic Conference and Tribute are available online. 

The event was held October 20, 2011.  The program and list of speakers is at the link.

Earlier coverage of the Baldus program and the Batson at 25 symposium is at the link.

Our ‘Broken System’ of Criminal Justice

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

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

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

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

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

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

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

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

And:

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

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

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

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

Karlan on Capital Punishment

Stanford Law School's Pamela Karlan posts, "The Cost of Death," at the Boston Review.  It's an excellent reminder that capital punishment serves as the tip of the iceberg of America's criminal justice system.  Problems we see in death penalty cases are generally present throughout the criminal justice system.

Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended.

And:

Because the Court and Congress convinced themselves that death row inmates were dragging out the process of post-conviction appeals, they have dramatically restricted the ability of all defendants to seek habeas corpus, the primary vehicle for bringing constitutional challenges against state court convictions. The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) create a procedural obstacle course that prevents federal courts from addressing the merits of a defendant’s constitutional claims. For example, in the first week of the current Supreme Court term, the Court heard oral argument in the case of Cory Maples, a death row inmate in Alabama who so far has been unable to get the federal courts to hear his claim that his trial lawyer was ineffective at his sentencing. The reason? The volunteer lawyers who later represented him moved on to new jobs, and when the state court ruled against his claim, there was no one at their former law firm to receive the letter announcing the decision. The letter was stamped “Return to Sender,” and the deadline for appeal passed before anyone noticed. As a result, federal courts accepted the state’s argument that Maples had “defaulted” his claims.

A fortnight before, the Court stayed the execution of Duane Buck, whose death sentence Texas seeks to insulate from federal review despite the fact that, under questioning from a prosecutor, a psychologist told the jury that being black “increases [Buck’s] future dangerousness”—a necessary element for a death sentence under that state’s law.

Cases such as these—not to mention the recent execution of Troy Davis, which spurred worldwide protests—receive focused attention both inside and outside the Court. The Court’s rules single out capital cases for special treatment, directing that the notation “CAPITAL CASE” appear at the beginning of any such request for review and mandating that the government, which often waives its right to reply, file a response. The clerk’s office has a special staff attorney charged with overseeing the voluminous, often last-minute filings in death penalty cases. The justices and their law clerks often scrutinize the filings with great care. The bar has also responded: death row inmates typically receive superb legal assistance before the Supreme Court. Former Bush Administration Solicitor General Gregory Garre is now representing Maples. Current Solicitor General Donald Verrilli previously represented several death row inmates pro bono before the Court.

But the concentration on capital cases comes at a cost. Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases. Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh. Criminal law and procedure scholars such as Robert Weisberg of Stanford and Douglas Berman of Ohio State have described how the Court’s concern with death leads it to shortchange the constitutional claims of defendants facing lesser punishments. Berman has calculated that about one in ten thousand state felony sentences is a death sentence, yet the Court devotes more resources to reviewing death sentences than to reviewing claims in all other criminal cases combined. And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes—for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants—it has set virtually no limits on the severity of prison sentences. In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed. With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.

Karlan's column on law is a regular feature of Boston Review.

Related posts are in the Supreme Court index.

Friday

I'll be at the Batson at 25 Symposium, most of the day.

Black, Brown and Invisible: Minorities on Death Row

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

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

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

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

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

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

The book is Mexicans on Death Row by Ricardo Ampudia.

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

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

The event on Twitter is:

#blackbrowndeathrow

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

An Update of the Iowa Batson Symposium & Baldus Tribute

Oranizers at the University of Iowa College of Law have announced details of an Academic Conference and Tribute Honoring the late David C. Baldus, Joseph B. Tye Professor of Law (1935-2011).  The event will be held Thursday, October 20, prior to the law school's Batson at 25 symposium.

Here's the schedule for the tribue to David Baldus:

Academic Conference
1 p.m.     Welcome: Gail B. Agrawal, Dean and F. Wendell Miller Professor of Law, University of Iowa College of Law
Speaker: The Honorable James E. Baker, United States Court of Appeals for the Armed Forces

1:20 p.m. First Panel
- Jeffrey A. Fagan, Professor of Law and Epidemiology, Columbia University
- Samuel R. Gross, Thomas and Mabel Long Professor of Law, University of Michigan
- Sheri Lynn Johnson, Professor of Law Cornell University
Moderator: L. Song Richardson, Associate Professor of Law, American University

2:40 p.m. Second Panel
- William J. Bowers, Director, The Capital Jury Project, SUNY Albany
- George Woodworth, Professor Emeritus of Statistics and Actuarial Science, University of Iowa
- Neil Vidmar, Russell M. Robinson II Professor of Law and Professor of Psychology, Duke University
Moderator: Emily Hughes, Professor and Bouma Fellow in Law, University of Iowa College of Law

Tribute
Levitt Auditorium, Boyd Law Building

4 p.m.     Welcome: Gail B. Agrawal, Dean and F. Wendell Miller Professor of Law, University of Iowa College of Law

Presenters:
- Dr. Lyell Henry, Professor Emeritus of Political Science, Mount Mercy University
- George Woodworth, Professor Emeritus of Statistics and Actuarial Science, University of Iowa
- Catherine Grosso, Associate Professor of Law, Michigan State University
- Marcella David (vocal solo), Professor of Law and Associate Dean for International and Comparative Law Programs, University of Iowa College of Law
- Ann Laquer Estin, Aliber Family Chair, University of Iowa College of Law
 
Reception
5 p.m.     Reception in Boyd Law Building Lobby

Registration is now open for the Batson at Twenty-Five: Perspectives on the Landmark, Reflections on Its Legacy symposium.  It begins the evening of Thursday, October 20, and continues Friday, October 21 in Iowa City.

Earlier coverage of the two related events begins at the link.

Justice Ginsburg Discusses Death Penalty at UC-Hastings

"Ruth Bader Ginsburg: Death Penalty, Gender Equality and That Elephant Ride With Scalia," is by Ariane de Vogue for ABC News.  Here's an extended excerpt:

The typical 78-year-old woman who found herself having to slide down an emergency chute of an aircraft might decide to cancel her trip and head home to a hot bath.

But two-time cancer survivor Justice Ruth Bader Ginsburg is not your typical woman.

After the pilot ordered the evacuation of Ginsburg’s plane before takeoff last week in Washington, D.C., she continued on a different plane to San Francisco. She had been invited to  give a wide-ranging talk on the intricacies of constitutional law.

At  the University of California Hastings College of Law, Professor Joan C. Williams sat down with  Ginsburg Thursday and touched on issues ranging from the constitutionality of the death penalty, gender equality and her ride on an elephant with conservative Justice Antonin Scalia.

Asked about the death penalty, Ginsburg told the audience that earlier in the evening she had been getting calls from the court because of an emergency application filed by death-row inmate Duane Buck.

“There was an execution scheduled for 7 o’clock in Texas,” she said. “It has been stayed.”

Ginsburg said dealing with such applications “is the hardest part of the job I do.”

But she went on to explain why she hadn’t taken a position that the death penalty is unconstitutional in every circumstance. It is a position taken by some former members of the Supreme Court bench.

She did not take such a stance, she explained, in order to be able to have a voice at the table when death penalty disputes come up. Had she taken the position similar to former Justice William J. Brennan or Justice Thurgood Marshall, she said, “I would have no voice in what is going on. I would not be able to make things perhaps a little bit better. ”

Death penalty decisions, she said, are a “dreadful part of the business.”

Asked by the moderator if she had one thing she’d like to accomplish before leaving the bench, she said, “I probably would go back to the day when the Supreme Court said that the death penalty cannot be administered with an even hand,” noting that such an opportunity is unlikely to arrive.

Ginsburg was referring to a 1972 decision that invalidated capital punishment laws and led to a temporary moratorium on the death penalty. The court voted to reinstate the death penalty in 1976.

The AP filing is, "San Francisco Speech: Supreme Court Justice Talks Death Penalty, Gay Rights At U.C. Hastings," by Paul Elias.  It's via Huffington Post.

The court's oldest justice spent most of the night at the University of California, San Francisco's Hastings School of Law discussing her gender equality cases when she was a lawyer, as well as important cases and legal issues that came before her on the high court.

With prompting from Hastings professor Joan Williams, Ginsburg said she found the death penalty "the hardest part of the job."

Ginsburg said, if given her druthers, she would "go back to the day to when the Supreme Court said the death penalty can't be applied with an even hand."

Nonetheless, she said she stays engaged with death penalty cases – rather than automatically voting against the death penalty as her former colleague Justice John Paul Stevens did – so she can "a voice in what's going on."

Ginsburg was appointed to the federal appeals court in 1980 by President Jimmy Carter and the Supreme Court by President Bill Clinton in 1993.

She said that even though the court often divides 5-4 on high-profile legal questions before it, she and her colleagues enjoy a collegial relationship. Ginsburg said she even travels the world with her philosophical opposite, Justice Antonin Scalia.

"Scalia is my biggest buddy at the opera," she said.

Related posts are in the Supreme Court index.

Webcast Today

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

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

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

The webcast will be available here.

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

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

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

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

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

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

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

An Update from California

Today's Sacramento Bee reports, "Group announces bid to eliminate death penalty in California."  It's written by Sam Stanton.

Organizers say they will push for a ballot measure to focus the public's attention on the high cost of keeping inmates on death row – $4 billion since 1978, according to one estimate – and offer guarantees that condemned prisoners could never win release from prison.

"It is time to replace California's dysfunctional and horribly costly death penalty," former Los Angeles County District Attorney Gil Garcetti said at a Sacramento news conference. "The death penalty in California is broken and it is unfixable."

Garcetti was joined by former San Quentin Warden Jeanne Woodford, who presided over four executions; Sacramento attorney Don Heller, who wrote the 1978 initiative that restored the death penalty in the state; and crime victims who said the money spent on death row should be used to fight crime.

Under the plan offered by the group, which calls itself Savings Accountability and Full Enforcement, or SAFE, condemned inmates would be given life without the possibility of parole and would be required to work in prison.

Contending that $184 million is spent annually in California on the death penalty, the group said the initiative would take savings from abolishing it and instead spend $30 million a year in the first three years on unsolved murder and rape cases.

"Proposed measure would ditch death penalty, redirect savings," is the title of Josh Richman's Oakland Tribune report, via the Silicon Valley Mercury News.

With an East Bay lawmaker's death-penalty abolition bill withdrawn for lack of legislative support, its backers Monday announced a 2012 ballot measure campaign -- but with a new wrinkle.

In addition to abolishing the death penalty, the measure would draw $100 million from the state's General Fund over the next four fiscal years -- the projected savings from ditching death row -- for a special fund that the attorney general would disburse to local police to help solve more homicides and rapes.

For example, the money could be spent on faster processing of rape evidence; improving DNA testing capability; increasing staffing in homicide and sex crime units; and relocation of witnesses, among other things. The proposed measure's backers hope they will entice more conservatives by juxtaposing what they say is a wasteful death-penalty system with a public safety priority on which the money could be better spent.

"California has by far the largest and most expensive death row in the nation," Taxpayers for Justice spokesman James Clark told media members during a conference call Monday. With 714 inmates, California's death row is more than twice the size of the next closest state's and costs about $184 million a year beyond the cost of life imprisonment.

And:

With the November 2012 general presidential election expected to bring high turnout, particularly among women and minorities, "it's time to put this issue back before the voters," Clark said.

Critics of Hancock's bill include the California District Attorneys Association and Crime Victims United of California. Scott Thorpe, executive director of the district attorneys association, said Monday that his group does not take stances on proposed initiatives until they qualify for the ballot.

The AP filing is, "Former LA prosecutor backs ending CA death penalty," by Don Thompson.  It's via the San Francisco Chronicle.

Former Los Angeles County District Attorney Gil Garcetti has joined an effort to end California's death penalty.

An initiative proposed for the November 2012 ballot would replace capital punishment with life prison terms. A recent study estimated the state spends $184 million annually on death penalty cases and incarceration.

The former prosecutor said at a Monday news conference that the ballot measure would devote $100 million over three years to law enforcement from money the state could save by ending capital punishment.

The ballot measure would also require murderers to work behind bars, with their earnings going into a victim compensation fund.

"Initiative could replace death penalty with life in prison without parole," by Sarah Burns for the Daily Californian.

A coalition of law enforcement personnel, crime victim advocates and exonerated ex-criminals announced a ballot initiative Friday that would replace the California death penalty with life in prison without parole.

After the death penalty bill proposed by State Senator Loni Hancock, D-Berkeley, was withdrawn Thursday because it did not have enough support in the Assembly Committee on Appropriations to move forward,  supporters of the SAFE California Act are trying to put it on the November 2012 popular ballot.

Hancock’s spokesperson Larry Levin said the death penalty bill, which was meant for the Legislature, was inspired by a study published in the Loyola of Los Angeles Law Review in June by Loyola Law School Professor Paula M. Mitchell and U.S. 9th Circuit Judge Arthur L. Alarcon. According to the study, capital punishment has cost California taxpayers over $4 billion since it was reinstated in 1978, a figure that led the authors to call California’s system “the most expensive and least effective death penalty law in the nation.”

Levin attributes the bill’s failure to the short timeline between its inception and when it was scheduled to be put up to vote Thursday.

“We didn’t have enough time to build up the momentum and the community pressure from the districts and the education process to make it happen so fast,” he said.

Considering the financial findings of the June study and that Hancock’s bill was unsuccessful at making it through the Legislature, SAFE California Spokesperson Erin Mellon said the group Taxpayers for Justice decided they needed to take the death penalty issue directly to the voters and formed the SAFE California Campaign.

Earlier coverage of the California ballot initiative begins at the link.

The Alarcon-Mitchell law review article, "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," is available in Adobe .pdf format.