The StandDown Texas Project

Problems with Eyewitness ID

The Atlantic posts, "Why Police Lineups Will Never Be Perfect," by Virginia Hughes.

Eyewitness testimony is hugely influential in criminal cases. And yet, brain research has shown again and again that human memory is unreliable: Every time a memory is recalled it becomes vulnerable to change. Confirming feedback—such as a detective telling a witness she “did great”—seems to distort memories, making them feel more accurate with each recollection. Since the start of the Innocence Project 318 cases have been overturned thanks to DNA testing. Eyewitness mistakes played a part in nearly three-quarters of them.

For three decades psychology researchers have been searching for ways to make eyewitness identifications more reliable. Many studies have shown, for example, the value of “double-blind” lineups, meaning that neither the cop administering the lineup nor the witness knows which of the photos, if any, is the suspect.

But injecting science into the justice system is tricky. For one thing, most criminal investigations happen at a local level. The U.S. has roughly 16,000 law enforcement agencies and few nationally mandated standards. The other big problem is the nature of science itself: Evidence for a given idea builds gradually, as scientists try to replicate others’ work. It can take years or even decades for a clear picture to emerge, and in the meantime scientists may vigorously disagree. While they argue, cases are opened and closed, and people, sometimes the wrong people, go to prison.

Some helpful guidance came today from the National Academy of Sciences. Last year the Academy asked a panel of top scientists to review technical reports and expert testimony about eyewitness identifications and make some solid recommendations. The resulting 160 page report offers many concrete suggestions for carrying out eyewitness identifications. For example, the Academy recommends using double-blind lineups and standardized witness instructions, and training law enforcement officials on the fallibility of eyewitness memory.

The report, Identifying the Culprit: Assessing Eyewitness Identification is published by National Academies Press.

Related posts are in the eyewitness identification category index.

Christian Science Monitor Q&A with James Liebman

"'The Wrong Carlos': Was an innocent man executed?" features a Q&A with principal author James Liebman, at the Christian Science Monitor.  It's by Randy Dotinga.

By design, this book is not a masterpiece of storytelling. It won't keep readers up past their bedtimes or give them chills through thought-provoking prose.

Instead, "The Wrong Carlos" carefully lays out the basic facts of a botched murder investigation and prosecution. Many more details of the case are available on the book's website, providing perhaps the most extensive accessible record of an American death penalty case.

In an interview, lead author and law professor James Liebman talks about what went wrong, how his team uncovered the truth, and what this case means for the debate over the death penalty.
 
Q: What convinced you to investigate a specific death penalty case?
 
In 2000 and 2002, we published a big study which showed there was a huge amount of adjudicated errors found in capital cases in the United States by state and federal courts. Essentially, two-thirds of all death verdicts reviewed over a quarter century had been overturned based on serious error.

Proponents say the system is working, and we don't have to worry about the ultimate error of someone being innocent. There's another interpretation. If an airline company or a car company had this level of error, nobody would want to go near them. If there's this much smoke, there's got to be fire.

So we wanted to examine a particular case to see if we could determine the risk of executing the innocent. We went from a statistical study where we were just counting outcomes to making a judgement call about which cases would be interesting to look at.

Earlier coverage of the book begins at the link.  Related posts are in the books category index.

Dotinga conducted a similar interview with Evan Mandery, earlier this month.

The Wrong Carlos Now Available as a Book

The Wrong Carlos: Anatomy of a Wrongful Execution by James S. Liebman and the Columbia DeLuna Project is now available in hardcover and softcover from Columbia University Press.

Here's part of the publisher's blurb:

In 1989, Texas executed Carlos DeLuna, a poor Hispanic man with childlike intelligence, for the murder of Wanda Lopez, a convenience store clerk. His execution passed unnoticed for years until a team of Columbia Law School faculty and students almost accidentally chose to investigate his case and found that DeLuna almost certainly was innocent. They discovered that no one had cared enough about either the defendant or the victim to make sure the real perpetrator was found. Everything that could go wrong in a criminal case did. This book documents DeLuna’s conviction, which was based on a single, nighttime, cross-ethnic eyewitness identification with no corroborating forensic evidence. At his trial, DeLuna’s defense, that another man named Carlos had committed the crime, was not taken seriously. The lead prosecutor told the jury that the other Carlos, Carlos Hernandez, was a “phantom” of DeLuna’s imagination. In upholding the death penalty on appeal, both the state and federal courts concluded the same thing: Carlos Hernandez did not exist.

The evidence the Columbia team uncovered reveals that Hernandez not only existed but was well known to the police and prosecutors. He had a long history of violent crimes similar to the one for which DeLuna was executed. Families of both Carloses mistook photos of each for the other, and Hernandez’s violence continued after DeLuna was put to death. This book and its website reproduce law-enforcement, crime lab, lawyer, court, social service, media, and witness records, as well as court transcripts, photographs, radio traffic, and audio and videotaped interviews, documenting one of the most comprehensive investigations into a criminal case in U.S. history.

You'll find more at the Carlos DeLuna category index, including coverage of the 2012 announcement of The Wrong Carlos website.

New Hampshire Senate Judiciary Committee Recommends Repeal

"Senate panel endorses death penalty repeal measure," is the AP report by Lynne Tuohy, via the Greenfield Time.

The New Hampshire Senate Judiciary Committee is recommending passage of a bill to repeal the state's death penalty.

The 3-2 vote Thursday sets the stage of a potentially historic vote by the Senate to repeal the state's centuries-old death penalty.

The committee voted 2-2 Tuesday with one member absent. The tie vote would have sent a message to the Senate that it ought to be killed.

The committee reconsidered the issue Thursday, in deference to Democrat Donna Soucy of Manchester, who missed Tuesday's meeting due to a family medical issue.

The full Senate is expected to take up the measure on April 17.

Earlier coverage from New Hampshire begins at the link.

Kansas Editorial in Face of Appeals Speed-Up Legislation

Today's Topeka Capital-Journal publishes the editorial, "Death penalty appeals process shouldn't be brief."

Nine inmates in state prisons are under death sentences, but none has exhausted his appeals, a condition that many find unacceptable given the time that has elapsed since some of them were sentenced to death.

A bill that would limit to 3 1/2 years the time inmates have to appeal their death sentences to the Kansas Supreme Court has been approved by the Senate and moved to the House, where it will get a hearing in the House Corrections and Juvenile Justice Committee.

While few really harbor doubts about the guilt of those who now are on death row in the state, the limited time frame proposed for appeals is awfully short. If the seemingly interminable appeals process now in place is one extreme, a 3 1/2 year time frame for cases to reach the Supreme Court may be the other extreme.

Surely, there is room for compromise that will speed justice but not rush it.

Rushing justice can lead to mistakes, which include executing the wrong person. Investigations undertaken in recent years have found multiple cases in which the wrong person was convicted of a crime that carried the death penalty. And while the right people may now be on death row in Kansas, a system that encourages speed opens itself to mistakes. Our justice system is not infallible.

"Advocates fight to block death penalty bill," is the AP report, via the Garden City Telegram.

Kansas death penalty opponents said Wednesday a bill that would shorten the appeals process amounts to a "leaky Band-Aid" on a broken system.

At issue is a bill approved by the Senate last month that would set a limit of three and six months for the appeals to be prepared by attorneys, argued and decided by the seven-member Kansas Supreme Court. There is currently no time limit.

Some legislators and the Kansas Coalition Against the Death Penalty argued Wednesday that the changes would increase the chances an innocent person will be executed and that the cases are too complex to rush through the system.

"It is just a fact that death penalty cases take a long time," said Ronald Wurtz, a retired public defender and former chief of the Kansas Death Penalty Defense Unit. "However, judicial review takes so long because American capital sentences are so fraught with error that seriously undermines their reliability."

Five death penalty cases were reversed on their appeal by the Kansas Supreme Court. All death sentences are automatically appealed to the seven-member court. Kansas reinstated the death penalty in 1994 but has not carried out any executions.

The Capital-Journal also reports, "Prairie Village native puts face on death penalty debate," by Andy Marso.

For more than two decades Tom Goldstein proclaimed his innocence as he was shuttled from one California prison to another after a murder conviction.

Inmates laughed and pointed out others around them who were "innocent, too." Counselors yelled at him. His initial appeal attempt was denied.

And:

It took 24 years, but the truth finally came out in Goldstein's case. An investigation into another murder trial revealed that a jailhouse informant used in both cases had lied under oath when he testified against Goldstein. Subsequent legal action showed that the detectives who investigated the murder had coerced the lone eyewitness into picking Goldstein out of a lineup.

Goldstein, a U.S. Marine Corps veteran who served in Vietnam, still lives in California, but he grew up in Prairie Village. Opponents of the Kansas death penalty made him the face of their cause Wednesday as they spoke against a bill to speed up the appeals process for death row inmates.

Earlier coverage of the Kansas legislation begins at the link.

Austin American-Statesman Editorial Lauds ABA Report

Today's Austin American-Statesman publishes the editorial, "Recommended death penalty reforms deserve consideration."

The American Bar Association released a report this week assessing Texas’ death penalty laws, procedures and practices. The state has improved the way it pursues the death penalty, the report says, but the administration of capital punishment in Texas hardly can be called accurate and fair.

Far from pointing out the obvious, however, the report recommends ways Texas lawmakers can reform the state’s death penalty system. Legislators would do well to consider the recommendations.

Members of the team that assessed the death penalty in Texas presented the report Wednesday. They were joined by Anthony Graves, who was wrongly convicted in 1992 of participating in the murder of six family members in Somerville. His conviction was overturned in 2006, and he was declared innocent in 2010.

“We have a failed system from top to bottom. I am encouraging all branches of our government to read this, examine this and implement this,” Graves said of the report. “Had this study been done 20 years ago, I probably wouldn’t” have been convicted.

And:

The state should clarify its criteria for evaluating and determining the intellectual disabilities of defendants, something it has failed to do even though the U.S. Supreme Court declared the execution of defendants with intellectual disabilities unconstitutional in 2002.

And the state should abandon its use of “future dangerousness.” Texas juries weighing whether to sentence someone to death must first decide whether the person poses a future danger to society. This is a nearly impossible task, and experience has shown it is one subject to manipulation by bad science and racial bias.

“Jurors are left to comprehend ‘probability,’ ‘criminal acts of violence,’ and ‘society’ so broadly that a death sentence would be deemed warranted in virtually every capital murder case,” the report says.

The primary purpose of the association’s recommended reforms is to eliminate wrongful convictions in death penalty cases. Wrongful convictions not only send an innocent person to death row, but as the report points

Th Houston Press posts "American Bar Association to Texas: Your Administration of the Death Penalty is Woefully Inept," by Calvin TerBeek.

 The report opens with this salvo:

"In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state. For example, since 1992, Texas has paid over $60 million to those it has wrongfully imprisoned--money that could have been applied more effectively to find the "right guy" the first time around. In addition, the state and federal courts must spend significant time and resources correcting errors in capital cases--errors that could have been prevented--to the detriment of the vast majority of Texans who rely on the justice system every day. Indeed,preventing error is often far less expensive than correcting error."

It gets worse: from 1989 to 2012, 47 (!) Texas death row inmates have been exonerated via DNA testing or the discovery of new evidence. But yet, almost unbelievably, Texas does not require "indefinite preservation" of DNA/biological evidence for violent felony crimes. (Dallas County's District Attorney has been the exception to this rule and has been remarkably open to getting it right).

What is more, Texas is behind the times on eyewitness identifications, a problem I highlighted in an article for the Law & Psychology Review back in 2007 (which has been cited by Connecticut Supreme Court). Texas courts routinely allow in unreliable eyewitness identifications which have repeatedly been shown to problematic. No matter, Texas prosecutors just want their conviction. But, according to the report, Texas leads the nation in wrongful convictions and exonerations in criminal cases generally.

Earlier coverage of the ABA Texas report begins at the link.  

The ABA Texas Death Penalty Assessment is at the link; also available, more on the American Bar Association Death Penalty Due Process Project and other state death penalty assessments.

Additional News Coverage of the Texas Assessment

The ABA Texas Death Penalty Assessment is at the link.

The updated AP report is, "Report heaps new criticism on state death penalty," by Paul J. Weber.  It's via the Longview News-Journal.

A man who spent 18 years on death row in Texas before being exonerated by DNA evidence joined former Gov. Mark White on Wednesday in presenting a report that calls for lawmakers to pursue reforms in the nation’s most active death penalty state.

The new report from the American Bar Association urges the state to strengthen standards for eyewitness identification and require video recordings of suspect interrogations. The 500-page report also recommends reducing barriers to post-conviction DNA testing.

White, who served as governor from 1983 to 1987, oversaw 19 executions during his term. He helped unveil the report along with Anthony Graves, who was wrongfully convicted in the slayings of six family members.

“It reminds us that ultimately the death penalty becomes a very, very personal situation,” White said.

Texas executed its 500th inmate this summer. It has accounted for nearly 40 percent of the more than 1,300 executions carried out since 1977, when a Utah inmate became the first U.S. prisoner executed following the Supreme Court’s clarification of death penalty laws. Virginia is a distant second, nearly 400 executions behind.

And:

The report does praise the state for making some “significant improvements” in capital punishment cases in recent years. The most well-known is the Michael Morton Act, named in honor of a Texas man who spent 25 years in prison for a crime he did not commit. The law signed by Gov. Rick Perry mandates that prosecutors statewide share case files that can help the defense.

But the report asks that the state do even more for inmates post-conviction. Among the recommendations are requiring the state Board of Pardons and Paroles to conduct public hearings in any case in which clemency is sought.

"Study cites flaws in Texas death penalty system," is by Chuck Lindell in the Austin American-Statesman.

An intensive two-year study of the death penalty in Texas, sponsored by the American Bar Association, found a system that is riddled with flaws and shortcomings, undermining confidence that innocent defendants will be spared lethal injection in the nation’s leading state for executions.

The almost 500-page report, distributed to state political leaders Wednesday, did not call for a moratorium on executions. Instead, it offered a long list of recommendations intended to improve fairness and accuracy in capital murder cases.

“What we found, time and time again, is Texas fell short,” said Paul Coggins, a former federal prosecutor from Dallas and a study team member. “We’re simply out of step with the better practices in other states.”

Texas is the 12th state to be examined by the bar association’s death penalty review project since 2006.

And:

Before a death sentence can be given, Texas jurors must determine that the convicted murderer poses a future danger to society — a process that opens the courtroom to junk science, speculation and racial bias, the report said.

“That’s totally reading tea leaves,” Coggins said. “It has no scientific basis, yet it’s powerful, powerful testimony.”

Texas should join most states in abandoning the question of future danger, or at the very least clarify the term for jurors who continue to struggle with its meaning, the report recommended.

The Dallas Morning News posts, "Report urges reform of Texas’ death penalty system," by Brittney Martin.

“What we found time and time again is that Texas fell short,” said team member and former U.S. Attorney Paul Coggins. “We’re simply out of step with the better practices in other states.”

Their 500-page report, released today, examines every step of the process from evidence gathering and testing to final clemency hearings. The team recommended changes at almost every level. Recommendations include ensuring all procedures are science-based, educating juries, recording interrogations, and increasing training for trial judges and attorneys.

Anthony Graves became the 12th death row inmate to be exonerated in Texas after 18 years in prison.

“We have a failed system from top to bottom,” Graves said. “I am your living flaw.”

"Report: Texas death penalty system needs overhaul," is YNN Austin coverage by LeAnn Wallace.  That is Time Warner Cable's 24-hour local news channel.  There is video at the link.

Formerly on death row, Anthony Graves calls himself living proof that the system is flawed.

"I had two execution dates,” Graves said. “I was almost murdered by the state of Texas. Had this been in place, you probably wouldn't even know my name today."

Graves spent 18 years in prison, 12 of which were spent on death row. He was exonerated after a fifth circuit court said the prosecutor intentionally withheld evidence that could have helped his case.

Since then, Graves has been working to prevent future cases like his.

"If you are serious about justice in our state, then you will read this and you will implement this and you will stand up for justice for us as a society," he said.

Texas public radio stations also covered the news conference.  All have audio at their respective links.  "Report: Texas Executions Conducted Under Broken System," is by Carrie Powell for Austin's KUT-FM.

“The report finds that Texas’s system not only falls short of [American Bar Association] benchmarks, but reflects outlier practices, rejection of best available science, and a significant absence of transparency to foster public confidence in the system’s fairness,” says Jennifer Laurin, committee chairwoman and law professor at UT-Austin.Specific problematic practices identified by the committee include:

• Confessions filmed without context or credibility
• Prosecutors not disclosing evidence that proves innocence
• Unerfunded and ill-equipped crime laboratories
• Refusal to allow new DNA testing of convicts following sentencing

The committee claims that these poor practices cause unnecessary harm to both the wrongfully accused and the general public. According to Paul Coggins, former U.S. Attorney for the Northern District of Texas, the state has paid out $60 million to wrongfully convicted individuals since 1992.

Dallas' KERA-FM posts, "Death Penalty System In Texas Needs Reform, Lawyer Group Says," by Eric Aasen.

The report is part of a six-year effort by the American Bar Association to examine how sates that offer the death penalty “ensure fairness and minimize the risk of executing the innocent.”

The association says it has conducted assessments of the death penalty systems in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee and Virginia.

"Study Finds Shortcomings In Texas Death Penalty System," by Pat Hernandez for KUHF-FM, Houston.

The Texas Capital Punishment Assessment team was made up of former judges, prosecutors, elected officials and legal scholars, like Professor Jennifer Laurin at the University of Texas School of Law. She chaired the team that prepared the report:
 
"The structural features of our system insulate and exacerbate predictable missteps at early stages."   

Since 1989, there have been 132 Texas executions overturned, including those of 12 people who were on death row, like Anthony Graves. He was exonerated and released in 2010 after spending 14 years on death row, for a crime he did not commit.

"There are many people in prison for many different reasons. Some because they're innocent and just couldn't afford a competent attorney to represent their rights during trial." 

Former Texas Gov. Mark White, was another member of the assessment team. 19 executions occurred during his term as governor. He said the goal of the report was not to call into question the use of the death penalty in Texas, but to ensure that it is implemented fairly.

Earlier coverage of the ABA Texas report begins with the preceding post.

The ABA Death Penalty Due Process Project has more information and links to other state assessments.

The Verdict on Capital Punishment System

That's the title of an editorial in today's Roanoke Times.  It's subtitled, "Virginia should take up the bar association’s reforms to ensure a fair and accurate death penalty system."

The American Bar Association spent two years studying Virginia’s death penalty and came up with a dozen recommendations that would lift the state’s thumb off the scale of justice.

The group does not address whether states should have a death penalty. Rather, the ABA acknowledges that prudence requires capital punishment to be administered justly. And all should favor ensuring that those the commonwealth executes truly merit the irrevocable penalty.

That cannot be said today. The Virginia Death Penalty Assessment Team weighed Virginia’s ways against the bar association’s protocols and found it deficient. Most of the recommended reforms would not cost the state much in the way of funding, but would require procedural changes.

And:

Virginia has, in recent years, gotten a few things right with capital cases: accreditation of crime laboratories and medical examiner offices and certification of their employees, and establishing regional capital defender offices that offer more experienced and qualified trial attorneys.

But Virginia still has at least a dozen reforms remaining before resting its case that it runs a fair and accurate death penalty system. Until then, reasonable doubt remains.

Earlier coverage of the Virginia report begins at the link.

The ABA Virginia Assessment on the Death Penalty is available at the link.  You can also get more information on the ABA's Death Penalty Due Process Project and view other state assessments.

Continuing Editorial Support for ABA Virginia Assessment

Today's Charlottesville Daily Progress publishes the editorial, "A matter of life, death sentences."

Once the death penalty has been implemented, it is tragically too late to discover a flaw in the verdict.

That’s why Virginia must make sure that evidence-gathering and prosecution are impeccably accurate and fair — in all cases, of course, but especially in death penalty cases.

As we’ve already pointed out, many Virginia law enforcement agencies have failed to voluntarily adopt best practices when conducting lineups and gathering eyewitness evidence (“Improving eyewitness evidence,” The Daily Progress, Aug. 29). As a result, evidence collection could be flawed and verdicts could be wrong.

Now comes a report citing eyewitness evidence and other potential problems in death penalty cases, where accuracy, prudence and fair practices are especially vital.

The American Bar Association’s Death Penalty Assessment Project lists improved eyewitness evidence protocols as a top priority. The assessment team was made up of prominent and respected experts knowledgeable about Virginia law.

The ABA Virginia Assessment on the Death Penalty is available at the link.  You can also get more information on the ABA's Death Penalty Due Process Project and view other state assessments.

Earlier coverage of the Virginia report begins at the link.

ABA Virginia Assessment Released

The American Bar Association Death Penalty Due Process Project has released its Virginia Assessment on the Death Penalty.

The assessment is conducted by a state-based team responsible for collecting and analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of capital punishment in Virginia. It is the Virginia Assessment Team’s responsibility to determine whether the state is in compliance with the ABA Protocols and make any other additional recommendations it feels are needed to improve the fairness and accuracy of Virginia’s death penalty system.

"Report cites flaws in Virginia death penalty," is the AP report filed by Larry O'Dell, via the Roanoke Times.

A panel of legal experts says Virginia lawmakers should make several changes to ensure fairness and accuracy in the state's death penalty system.

The Virginia Death Penalty Assessment Team announced results of its two-year study Thursday in Richmond. The study is part of an American Bar Association initiative to examine procedures in a dozen states that have capital punishment.

The panel says one of the biggest problems in Virginia is an overly restrictive state appeals process. It recommends giving inmates more time to appeal and providing funding for their lawyers to hire experts.

The Richmond Times-Dispatch reports, "Study urges fairness reforms in death penalty cases," by Frank Green.

A two-year study of Virginia’s death penalty to improve fairness and accuracy calls for safeguards in the use of suspect lineups and more access by defense lawyers to information to help them prepare cases.

The recommendations are among more than a dozen in the study sponsored by the American Bar Association and released this morning.

A top change urged by the Virginia Death Penalty Assessment Team is to require law enforcement agencies to adopt the Virginia Department of Criminal Justice Services’ model eyewitness identification policy for suspect photo and live lineups.

Misidentification played a role in the wrongful convictions of 18 Virginians later proven innocent in non-death penalty cases. Although the model policy was released in 2011, a recent survey by the University of Virginia Law School found few police departments had adopted it.

According to the Virginia department of Corrections, Virginia has executed 110 killers – 31 by electrocution and 79 by lethal injection since the U.S. Supreme Court allowed capital punishment to resume in 1976.

The toll is second nationally only to Texas, which has executed 503. But in Virginia three out of four persons sentenced to death since 1976 have been executed -- a higher rate than even in Texas, which has carried out roughly half its death sentences.

And:

The assessment team was chaired by John Douglass, a former federal prosecutor and dean of the University of Richmond Law School where he still teaches.

The panel also included Richmond Commonwealth's Attorney Michael Herring, who won a death sentence against Ricky Gray; Mark L. Earley, a former Virginia attorney general whose office defended many death sentences on appeal; and Craig Cooley, a Richmond lawyer who has represented clients in 70 capital murder trials including Lee Boyd Malvo, one of the two Maryland to Virginia snipers.

The report is the result of the ABA’s Death penalty Assessment project which since 2003 has studied and reported on the death penalty in 10 other states.

Earlier coverage of ABA state assesments begins at the link.  The Death Penalty Due Process Project was formerly called the Moratorium Implementation Project.

Related posts are in the ABA category index.

Additional Coverage of the Jimmy Dennis Case

The U.S. District Court Memorandum in Dennis v. Wetzel is available in Adobe .pdf format.

The BLT - Blog of Legal Times - posts, "‘Shaky’ Eyewitness Identification Dooms Murder Conviction,"
by Matthew Huisman.

A Pennsylvania federal judge has vacated the murder conviction of a man who’s spent more than 20 years on death row, saying the government built the case around “shaky” eyewitness identification and withheld evidence.

The prisoner, James Dennis, was represented by a team of lawyers from Arnold & Porter, which provided pro bono service in the long fight to exonerate Dennis.

"The Commonwealth of Pennsylvania has committed a grave miscarriage of justice in convicting Dennis and sentencing him to die for this crime," Judge Anita Brody of U.S. District Court for the Eastern District of Pennsylvania wrote.

And:

In 1999, a team from Arnold & Porter—counsels Ryan Guilds and Rebecca Gordon, staff attorneys Amy Rohe and Meghan Martin, associate Ingrid Epperly and partner James Cooper—took Dennis' state habeas appeal as a pro bono case.

"Most of us were first years when we took the case back in 1999," Guild said. The Arnold & Porter attorneys got new discovery and looked into the original charges. In all, they found evidence of inadequate representation by trial counsel and alleged prosecutorial misconduct.

“It's truly overwhelming for the lawyers who have been on this case and it has served as the backbone for our pro bono work,” Guild said.  He added that the team would continue to represent Dennis and encouraged young lawyers to take pro bono cases like Dennis’.

Earlier coverage of Jimmy Dennis' case begins at the link.

21 Years After Death Sentence, Philadelphia Conviction Overturned

"Citing 'miscarriage of justice,' U.S. judge overturns Phila. murder conviction," is by John P. Martin for the Philadelphia Inquirer.  Here's an extended excerpt from the beginning:

A federal judge on Wednesday overturned the 1992 conviction of a Philadelphia man she said had been unjustly sentenced to die for a murder he probably didn't commit.

In a scathing ruling, Judge Anita B. Brody said city police and prosecutors ignored, lost or "covered up" evidence that James "Jimmy" Dennis wasn't the man who fatally shot a high school student for her gold earrings near the Fern Rock transit station in 1991.

The judge also chided Dennis' trial lawyer for ignoring leads and doing just the "bare minimum" to defend him.

"The Commonwealth of Pennsylvania has committed a grave miscarriage of justice," Brody concluded in her 40-page opinion. She ordered the state to retry Dennis within six months - or set him free.

The ruling marks a stunning victory in a 20-year-legal battle for Dennis, now 42, who has always maintained his innocence and whose cause drew supporters worldwide, even as he lost appeal after appeal.

For most of the past two decades, Dennis has remained on death row at the State Correctional Institute in Waynesburg. In March 2011, Gov. Corbett signed his death warrant. But a federal judge later stayed the execution.

The killing of Chedell Ray Williams, a 17-year-old Olney High School student, for a $450 pair of earrings outraged city officials, and drew a spotlight to what had been a surge in violence over jewelry. In Williams' memory, area high schools organized a "No Gold Day," encouraging staff and students to leave their gold jewelry at home.

According to witnesses, two men had approached the girl on the day of the killing, and then fled in a car with a third man.

But Dennis, then a 21-year-old aspiring singer, was the only suspect ever arrested or charged in the case. He claimed he was taking a SEPTA bus from his father's home at the time of the killing, an alibi later corroborated by another bus rider.

Police never recovered a weapon or the earrings, and developed no forensic evidence tying Dennis to the scene. Instead, he was convicted largely on the testimony of three eyewitnesses to the killing.

"PA man on death row for 21 years wins new trial," is AP coverage by Maryclaire Dale, via the San Francisco Chronicle.

A federal judge says a Philadelphia man on death row for 21 years was convicted on "scant evidence," and has overturned his conviction for killing a teen girl for her earrings.

Senior U.S. District Judge Anita Brody calls the case against James Dennis "a grave miscarriage of justice" and says authorities withheld evidence.

She has ordered Dennis to be released from prison unless prosecutors retry him within six months. A spokeswoman for the Philadelphia District Attorney's Office says they are reviewing Wednesday's ruling.

Earlier coverage from Philadelphia begins at the link.  It's too early to call it an official exoneration, but in time, the Dennis case will likely wind up in the death row exoneration column.

Texas Eyewitness ID Reforms

"Innocence Project to Grade Witness Lineup Policies," is Brandi Grissom's latest post at the Texas Tribune.

The Innocence Project of Texas is preparing to grade about 1,200 law enforcement departments statewide on their compliance with a law that requires police agencies to adopt eyewitness identification policies.

“Unless somebody is really grading their papers, nobody knows whether the law is really being implemented,” said Scott Henson, a policy consultant for the Innocence Project. 

Last year, Texas legislators approved a measure that required police agencies to adopt policies meant to prevent faulty eyewitness identification in criminal cases. Under the law, departments were required to adopt a written policy by Sept. 1. Last week, the Innocence Project sent the departments letters requesting copies of their lineup policies.

Faulty eyewitness identifications are the leading cause of wrongful convictions, according to the New York-based Innocence Project. In 297 DNA exonerations across the nation, the Innocence Project reported, mistaken identifications contributed to 75 percent of the wrongful convictions.

In Texas, faulty eyewitness identification contributed to wrongful convictions in 40 of the 52 DNA exonerations, according to the National Registry of Exonerations.

And:

Legislators instructed the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy on eyewitness identification that departments could use as a template.

That policy sets out guidelines for conducting lineups in a way that does not suggest to witnesses whom they should select. Those guidelines are the criteria against which the Innocence Project of Texas plans to judge the policies that departments have adopted, Henson said.

Among other things, the criteria include ensuring that the person presenting the photos does not know who the suspect is, asking witnesses how confident they are that the person they identified is the same one they saw at the crime scene, giving witnesses instructions that include letting them know the perpetrator may not be among the choices presented, showing potential suspects sequentially instead of simultaneously, and choosing subjects for the lineup who have similar characteristics to one another and to the suspect described.

The LEMIT Model Policy is available in Adobe .pdf format.  More information on eyewitenss identification is also available from LEMIT.

Earlier coverage of the Texas eyewitness ID standards begins at the link.

Related posts are in the eyewitness identification index.

New Jersey's Lead in Eyewitness ID Issues

"New Jersey Court Issues Guidance for Juries About Reliability of Eyewitnesses," is the New York Times report by Benjamin Weiser.  Here's an extended excerpt:

Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the “troubling lack of reliability in eyewitness identifications,” it issued instructions on Thursday for judges to give jurors to help them better evaluate such evidence in criminal trials.

A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.

Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.

And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.”

“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.

The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.

“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”

The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.

Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.

The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.

“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.

“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”

Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.

Earlier coverage of eyewitness identification reforms from New Jersey begins at the link.

Related posts are in the eyewitness identification index.

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.

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.

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.

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.

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.

Dallas County Records 31st & 32nd Exonerations

"Two more Dallas County men cleared after serving decades for rape they didn’t commit," is the title of Jennifer Emily's Dallas Morning News report.

Raymond Jackson and James Williams returned to the same Dallas County courtroom Monday where they were wrongly convicted of rape nearly 30 years ago.

This time, though, court was in session to clear their names.

State District Judge Susan Hawk and District Attorney Craig Watkins shook their hands and apologized for the miscarriage of justice. Hawk declared the men “actually innocent” in the 1983 kidnapping, rape and shooting of a Canadian woman.

“To say I’m sorry is not enough,” Hawk said to the beaming Jackson, 67, and Williams, 54. “But I hope you both have very full and happy lives.”

They are the 31st and 32nd men to be exonerated in Dallas County since 2001. Dallas County has had so many exonerations because, unlike in other jurisdictions, evidence was preserved at the county crime lab, sometimes dating back to the late 1970s.

And:

An all-white jury sent the men, who are black, to prison based on eyewitness testimony, which has been proven notoriously unreliable in recent years. Most DNA exonerations in Dallas County and around the country involve the victims or witnesses wrongly identifying defendants as the perpetrator.

Jackson and Williams had alibis, but the jury did not believe them. They were sentenced to 99 years in prison.

Related posts are in the exoneration and wrongful incarceration indexes.

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.

Andrew Cohen on An Ohio Arson Case

Andrew Cohen posts, "Is Ohio Keeping Another Innocent Man on Death Row?" at the Atlantic.  It's an indepth examination of an arson case with a list of problems.  Here's the beginning of this must-read:

Last year, the execution of Troy Davis captured most of the attention, and generated most of the debate, on the topic of capital punishment in America. Davis was put to death by lethal injection in Georgia three quarters of the way through a year that saw  a general decline in support for (and implementation of) the death penalty. This year, just a few weeks in, there's an early candidate for such a spotlight: a death row inmate in Ohio whose case raises many of the same questions about fair trials and justice that surrounded the Davis case.

In fact, you could argue that the capital murder case against Tyrone Noling is even weaker than the one against Troy Davis. And you could argue that the capital punishment regime in Ohio is just as arbitrary and capricious as it is most anywhere else. In 1996, Noling was convicted of murdering Cora and Bearnhardt Hartig, an elderly couple, at their home in 1990. At first, though, there was no physical evidence linking Noling to the crime. Not a gun. Not any blood. Not any money or loot. And at first, there were no witnesses against him, either.

Frustrated prosecutors then gave the case to an investigator named Ron Craig and everything changed. Noling was indicted in 1992, but prosecutors soon had to drop the charges against him after he passed a polygraph case -- and after his co-defendant at the time changed his mind and refused to incriminate him. Just so we are straight, in 1992, there was no physical evidence linking Noling to the crime, he had passed a lie detector test, and witnesses were already turning on the investigator.

But a few years later -- under threat from Craig, they now say -- a few folks stepped forward to testify against Noling. They placed him at the crime scene and they testified that he had confessed to killing the Hartigs. Noling's jury deliberated for about day before returning guilty verdicts. Noling was quickly sentenced to death. The state's website duly notes that Noling arrived at its death row on February 21, 1996. He has maintained his innocence ever since.

There are several legitimate reasons why Noling deserves a new trial, especially in a state with a long history of wrongful capital convictions. There are a lot of flawed capital convictions all over the country -- pick a state, any state, where the death penalty is still a priority for prosecutors and you'll find such a case. But a closer look at this case reveals virtually all of the system's main flaws at one time and in one place. The only thing missing from the story is racial bias, which likely would have only made things worse. (As of September 30, 2011, there were 148 inmates on Ohio's death row, 65 of them white males like Noling.)

And:

Congress harshly tipped the balance against defendants like Noling when it passed the Anti-Terrorism and Effective Death Penalty Act in 1996. "Effective," it turns out, meant rejecting meaningful appeals like Noling's on procedural grounds. For example, without the AEDPA and the way it has been interpreted by the Supreme Court, the 6th Circuit last June might have given Noling the new trial he's been asking for. So is the Clinton-era AEDPA constitutional when applied in cases like this? How can that be? 

Ohio, Texas, Louisiana, it doesn't matter: when it comes to states defending soiled capital convictions, the arguments are always the same. Serious prosecutorial errors are excused. Hypothetical jurors, the ones from whom material exculpatory evidence was hidden at trial, are assumed to vote guilty. Witnesses who recant are said to be lying now, not at trial. The impact of poor defense work is minimized. Ohio thinks it is defending the honor of the 1996 conviction. Instead, it's defending what's been revealed to be a sham. Why? And at what cost?

Thomson Reuters notes the Cohen post in, "An Ohio prisoner could rally death penalty opponents,"  by Carlyn Kolker.

This year's cause célèbre, says The Atlantic's Andrew Cohen, should be Tyrone Noling, an Ohio man who was convicted of murder and who is one of 148 inmantes on death row in that state. "A closer look at this case reveals virtually all of the [criminal justice] system's main flaws at one time and in one place," writes Cohen. Noling's attorneys last week petitioned the U.S. Supreme Court to hear their case challenging his sentence. Here are some of the flaws that Cohen says exist in Ohio's capital case against Noling:

-All of the major witnesses who testified in Noling's case have since recanted, says Cohen.

-Prosecutors, 13 years after Noling's original trial, handed over exculpatory evidence.

-There is a lack of DNA evidence linking Noling to the crime.

-The state of Ohio will not agree to a new trial, despite Nolting's claims that he has discovered new evidence.

Cohen sums up the case this way: "Ohio things it is defending the honor of the 1996 conviction. Instead, it's defending what's been revealed to be a sham. Why? And at what cost?"

Another Ohio capital arson case had a February 22nd execution date.  It has been cancelled due to problems with Ohio's lethal injection protocol; earlier coverage of the two stories at the links.

You can also find more on the site from Andrew Cohen.

Perry v. New Hampshire Ruling

The Supreme Court opinion in Perry v. New Hampshire is available in Adobe .pdf format.

The inital AP report is, "Court rules against man convicted by eyewitness ID."

The Supreme Court has declined to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, ruling against a New Hampshire man who was convicted of theft.

The court voted 8-1 Wednesday to turn away Barion Perry's claim that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police.

Judges already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, juries can weigh the reliability of eyewitness testimony.

Justice Sonia Sotomayor wrote a dissenting opinion.

Earlier coverage of Perry v. Newhampshire begins at the link.  Related posts are in the eyewitness identification index.

NAACP Speaks Out in Georgia, Also

"NAACP tells Ga. lawmakers to end death penalty," is the AP filing datelined Atlanta, via the Rockdale Citizen.

The Georgia chapter of the NAACP is asking state lawmakers to end capital punishment.

NAACP state president Edward Dubose said at a rally Monday that execution is murder. State Sen. Vincent Fort has said he will file legislation to end capital punishment.

Dubose cited the case of Troy Davis, who was convicted of killing an off-duty policeman in Savannah and executed last year. Davis' case attracted worldwide attention amid claims from his supporters that Davis was innocent and that there was too much doubt for an execution.

"Georgia lawmakers begin work immediately," is by Walter C. Jones of Morris News Service.  It's via the Augusta Chronicle.

Unlike most opening days of the General Assembly, the Senate got right to work debating substantive legislation Monday.

And:

Outside, two hundred or so supporters of Amnesty International and the National Association for the Advancement of Colored People rallied against the death penalty. Many held posters or wore buttons with a photo of Troy Davis, a Savannah man executed last year for killing an off-duty policeman.

“If they can do it to him, they could do it to any of us,” said Rep. Sharon Beasley-Teague, D-Red Oak.

As in most years, legislation is pending calling for a halt to capital punishment, but the bills never come up for a vote in committee. This year, Senate Democratic Whip Vincent Fort of Atlanta announced plans to introduce legislation that would prohibit a death sentence based solely on eyewitness testimony.

Related posts are in the abolition and state legislation indexes; also coverage of the Troy Davis case.

Connecticut Examining Eyewitness ID Changes

"Rethinking The Police Lineup; State Task Force Begins Rewriting The Rules," is the title of Daniela Altimari's Hartford Courant report.  It appeard October 20.

Eyewitness identification used to be the gold standard in criminal cases, but confidence in it has wavered as, increasingly, DNA is used to overturn convictions that were based on such evidence.

Recognizing the fallibility of witness identification, state lawmakers formed a task force to find ways to improve the reliability of that familiar staple of police work, the lineup.

At its first meeting, the task force Wednesday heard from Gary L. Wells, a professor at Iowa State University and a national expert on eyewitness identification. Wells has studied ways to improve the process, including presenting members of a lineup one at a time instead of as a group.

Wells, who testified for more than two hours, said eyewitness identification is far less reliable than most people believe. He cited a study by the Innocence Project, which found that 75 percent of people later exonerated by DNA evidence were misidentified as a suspect by an eyewitness.

The Daily Stamford coverage was, "State Panel Studies Accuracy of Police Lineups," by Anthony Buzzeo.

A state task force studying eyewitness police lineups recently heard an expert discuss ways to reduce false identification of suspects, State Rep. Gerald Fox III said in the release.

“Eyewitness identification is a critical law enforcement tool, but we have also learned that mistakes made during suspect lineups play a significant role in wrongful convictions,” said the Stamford Democrat, head of the legislature’s Judiciary Committee.

The specialist, Prof. Gary Wells of Iowa State University, outlined the findings of his published study on sequential vs. simultaneous lineups.

In the former, eyewitnesses view suspects, or photos of suspects, one at a time. In the latter, which are used by many police departments today, the witness sees all the suspects together. The task force is weighing the practical implications of a state law mandating sequential lineups, the release said.

The task force, headed by former Connecticut Supreme Court Justice David Borden, will submit recommendations to the Judiciary Committee by April 1, 2012, the release said.

Related posts are in the eyewitness identification index.  There are also resources in the left-column webroll, including a link to Gary Wells' website.

Texas Eyewitness ID Standards in Draft Form

The Houston Press notes, "Eyewitness Testimony & Police Lineups: Have Your Voice Heard."  It's by Richard Connelly.

​Texas is trying to develop a model statewide policy on eyewitness testimony and the use of police lineups -- like, you know, the cop in charge can't point out a suspect to the witness with his eyes and subtle pointing, that kind of thing.

And they want your input.

The Bill Blackwood Law Enforcement Management Institute of Texas is charged with developing the policy; they have a draft online.

And:

"The proposed policy is based on scientific research in the field and was developed in collaboration with law enforcement agencies and special interest organizations across Texas," the group says.

If you want to e-mail your comments and suggestions on the policy, the address to use is [email protected].

The model policy process was mandated in legislation that passed during the 2011 of the Texas Legislature as HB 215.  Earlier coverage of the legislation begins at the link.  In turn, that legislation was a recommendation of the Timothy Cole Advisory Panel of Wrongful Convictions.

Related posts are in the eyewitness identification index.

 

Perry v. New Hampshire at the Supreme Court

"Court takes up case on eyewitness identification," is Mark Sherman's initial AP report on oral arguments in the case of Perry v. New Hampshire (link to the SCOTUSblog case file, with all briefing.)

The Supreme Court appeared resistant Wednesday to increasing constitutional safeguards against the use of some eyewitness testimony at criminal trials, despite mounting evidence that eyewitness identification plays a crucial role in cases in which people were wrongly convicted.

The justices heard arguments in a case that deals with a narrow slice of the issue of eyewitness identification.

Judges already can bar testimony when the police do something to influence a witness to identify a suspect. In a case from New Hampshire, a man who was convicted of theft based on eyewitness testimony wants the court to extend the power of judges to exclude testimony when identifications are made under any suggestive circumstances, even when the police are not involved.

But taking the police out of the picture raised many questions among the justices across the bench.

Justice Antonin Scalia asked, "Why is unreliable eyewitness identification any different from unreliable anything else? So shouldn't we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?"

Justice Ruth Bader Ginsburg peppered Richard Guerriero, the public defender representing Barion Perry at the Supreme Court, with questions about why the court should add to existing protections that include the ability to cross-examine a witness and ask the judge to tell jurors about problems with eyewitness identification.

"Why aren't all those safeguards enough?" Ginsburg said.

And:

The justices suggested that the normal trial process should be sufficient and the juries should be able to weigh evidence, including the efforts of defense lawyers to discredit it. "You're just usurping the province of the jury, it seems," Justice Anthony Kennedy said.

A decision should come in the next few months.

Lyle Denniston has posted, "Argument recap: Eyewitnesses discredited? Hardly," at SCOTUSblog.  Here's the beginning from the dean of Supreme Court correspondents:

A remarkable scene unfolded in the Supreme Court Wednesday morning: despite piles of studies indicating that eyewitnesses often cannot be believed, despite a string of Supreme Court precedents saying that it is a serious constitutional problem, and despite a lawyer’s repeated efforts to show that it is a truly unique problem, the Justices acted largely as if it might not be a constitutional problem at all — or, if it is, it is one that juries can be trusted to neutralize.  Such, it appears, is the consequence of precedents, most more than three decades old, no longer having devoted defenders on this bench.

To be sure, the Court very likely will decide this case, Perry v. New Hampshire (10-8947), without overruling any of the eyewitness case precedents going back to 1957, but the question from here on could well be whether the Court may diminish the significance of those prior holdings by distinguishing them, little by little, case by case.  There is a very simple way to end the Perry case, and most of the Justices seemed attracted to that.  But the entire tone and content of the Perry argument suggested that something more basic was going on — a casting aside of the Due Process Clause as a barrier to unreliable criminal evidence, a project that Justice Antonin Scalia seemed eager to lead.

The transcript of the oral arguments is now available in Adobe .pdf format at the Court's website.

Earlier coverage of Perry v. New Hampshire is at the link; related posts in the eyewitness identification index.

More on eyewitness ID from the states will be in the next post.

Dallas DA Says Life Sentence Appropriate in Reed Case

"Man found guilty of Braniff flight attendant’s 1978 murder won’t face death penalty," is the title of Jennifer Emily's report in today's Dallas Morning News.

For a third time in three decades, a Dallas County jury on Thursday found Jonathan Bruce Reed guilty in the slaying of 26-year-old Braniff Airlines flight attendant Wanda Jean Wadle.

But, this time, prosecutors announced after the verdict that they would not seek a death sentence for Wadle’s 1978 murder.

Prosecutors had said they would ask jurors for the death penalty if they found Reed guilty. The reasons for the change were unclear.

Dallas County District Attorney Craig Watkins declined an interview request but said in a statement that the life sentence “was appropriate” in order to “to maintain the credibility we have established with the citizens of Dallas County.”

The statement did not address the reasons for no longer seeking the death sentence. Watkins declined to elaborate through a spokeswoman.

And:

State District Judge John Creuzot sentenced Reed to life in prison.

Creuzot had ruled earlier this year that prosecutors could not seek the death penalty because Reed could not properly present enough evidence to jurors about why he deserves a life sentence instead of death. Several witnesses who could have testified about Reed’s own troubled upbringing have died, and some records have been lost in the decades since the case began.

The DA’s office appealed that decision and the Texas Court of Criminal Appeals sided with prosecutors.

Because Wadle was murdered in 1978, Reed is already eligible for parole. If the crime were committed today, he would be sentenced to life without parole because of a change in the law.

Wadle’s family and friends say they will fight against Reed ever being released from prison.

At the Dallas Oberverer Robert Wilonsky posts, "Craig Watkins On Why Man Found Guilty of Murder, For Third Time, Won't Get Death."

Watkins's office sent an explanation:

Today, a Dallas County jury found Jonathan Bruce Reed, guilty of capital murder. The Dallas County District Attorney's Office initially pursued this case with the intent to seek the death penalty. However, after Reed was convicted, the District Attorney's Office withdrew its attempt to seek the ultimate punishment and agreed to a life sentence in the Texas Department of Corrections.

"It was never a question as to guilt or innocence in this 33-year-old case," said Craig Watkins, Dallas County District Attorney. "We have been dealing with this case since 1978, and in order to maintain the credibility we have established with the citizens of Dallas County over the last four years, we concluded that a life sentence was appropriate."

The U.S Fifth Circuit Court of Appeals overturned Reed's conviction in 2009. Earlier coverage of the Reed case is at the links.

Much More Commentary on Troy Davis' execution

There continues to be a great deal of commentary on Troy Davis' execution.  Here are links, with some excerpts.  The editorials include:

Charlotte (NC) Observer - "Wilcoxson, Davis show need to end executions."

South Florida Sun-Sentinel - "Use caution in executions."

The Jackson (MS) Clarion-Ledger carries an editorial column, "Events call to rethink the death penalty," by David Hampton, the paper's Editorial Director.

The columns and syndicated columns include, Ross Douthat's, "Justice After Troy Davis," in the New York Times.

IT’S easy to see why the case of Troy Davis, the Georgia man executed last week for the 1989 killing of an off-duty police officer, became a cause célèbre for death penalty opponents. Davis was identified as the shooter by witnesses who later claimed to have been coerced by investigators. He was prosecuted and convicted based on the same dubious eyewitness testimony, rather than forensic evidence. And his appeals process managed to be ponderously slow without delivering anything like certainty: it took the courts 20 years to say a final no to the second trial that Davis may well have deserved.

For many observers, the lesson of this case is simple: We need to abolish the death penalty outright. The argument that capital punishment is inherently immoral has long been a losing one in American politics. But in the age of DNA evidence and endless media excavations, the argument that courts and juries are just too fallible to be trusted with matters of life and death may prove more effective.

If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty. It will be because they’re afraid of executing the innocent.

The Washington Post carries E.J.Dionne's, " Only conservatives can end the dp."

Every so often, one capital case makes a public spectacle of the American machinery of death. Last week, it was the controversy over Troy Davis, who was executed in Georgia after years of impassioned argument, organizing and litigation.

I honor those who worked so hard to save Davis’s life because they forced the nation to deal with the imperfections and, in some instances, brutalities of the criminal justice system.

Yet after all the tears are shed, the repeal of capital punishment is still a political question. Can the politics of this question change? The answer is plainly yes.

In the Miami Herald, Leonard Pitts writes, "On death penalty, confidence does not replace truth."

They killed Troy Davis Wednesday night.

He went to his death still proclaiming his innocence of the 1989 murder of a Savannah, Ga., police officer. Davis was convicted on “evidence” that boiled down to the testimony of nine eyewitnesses, seven of whom later recanted.

But Spencer Lawton, who originally prosecuted the case, would not want you to worry your head about that. Hours before Davis was put to death, Lawton was quoted by CNN as saying he had no doubts about the case and was confident Davis was the killer. How much do you want to bet the prosecutors of Fain, Brewer, Krone or any of those hundreds of others would have said the same thing, expressed the same confidence? Without that confidence, the whole house of cards comes tumbling down.

Meaning the death penalty, a flimsy edifice erected on the shaky premise that we always get it right, that human systems always work as designed, that witnesses make no mistakes, that science is never fallible, that cops never lie, that lawyers are never incompetent.

You have to believe that. You have to make yourself believe it. Otherwise, how do you sleep at night?

So of course a prosecutor speaks confidence. What else is he going to speak? Truth? Truth is too big, too dangerous, too damning. Truth asks a simple question: In what field of endeavor have we always gotten it right? And you know the answer to that.

"Troy Davis and blind justice, Texas style," by Mike Littwin in the Denver Post.

What makes the Troy Davis execution different from most executions is that you have heard so much about it.

Every so often, a death-penalty case makes the headlines. Not usually. Certainly not always. In some places — like Texas, where Rick Perry -- has presided over more than 200 executions -- it's almost routine.

In fact, on the same day Davis was executed in Georgia, Lawrence Brewer, an admitted white supremacist, was executed in Texas for his part in the infamous dragging death of James Byrd Jr., a black man.

There were at least two newsworthy items from Brewer's execution:

Several of Byrd's children were quoted as saying they didn't believe anything was accomplished by executing Brewer. "You can't fight murder with murder," Ross Byrd, a son, told Reuters. "Life in prison would have been fine. I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."

The Seattle Times' Lynne Varner writes "The death penalty: Are we getting it right?"  It's via the Sacramento Bee.

"Casey Anthony is found not guilty by reasonable doubt but Troy Davis is executed despite tremendous and widespread doubt," was one of the most salient tweets during an evening in which Troy Davis was the biggest topic on Twitter.

This execution wasn't justice. My sympathies to the family of officer Mark MacPhail, but this wasn't even the retribution they were seeking.

It is these kinds of miscarriages of justice that strengthen calls for abolishing the death penalty.

The Birmingham News has, "How many innocent people have to die for revenge?"  It's by Joey Kennedy.

How many innocent men and women is it worth killing to maintain a capital punishment system as flawed as Alabama's? One? Ten? How many? If it were your brother -- or you -- would the collateral damage be worth it to maintain a system that kills people, really for no other reason than revenge?

We don't need capital punishment to keep citizens safe. Life without parole does that. We don't need capital punishment as a deterrent. Study after study has shown the death penalty is no deterrent. Indeed, the states with the most aggressive capital punishment laws have the highest murder rates. States without the death penalty have the lowest murder rates.

Killing somebody might be sweet revenge, for a victim's family, for the angry public. But should the state, should the government, be in the revenge business? Should we? And this thing called "closure," is it really what we think it is? Can killing a horrible person who took a life in a heinous crime really give us closure? Does it bring back our loved one? No. We still have that hole in our hearts, in our souls, that will never be filled, no matter how much revenge we exact.

Oakland Tribune contributing columnist Byron Williams writes, "Davis case is an unfathomable constitutional tragedy," via the Contra Costa Times.

In the Wichita Falls Times Record News, Deanna Watson writes, "Even the smallest sliver of doubt should preclude harshest sentence."

The Los Angeles Daily News: "Friendly fire: Execution examination," by Jonathan Dobrer and Earl Ofari Hutchinson.

Maine's Lewiston Sun Journal: "Death penalty conundrum goes on," by Doug Rooks.

The Colombus Ledger-Enquirer of Georgia: "Davis case indicts death penalty," by Theresa El-Amin.

Earlier coverage of Troy Davis' execution begins at the link.

News Coverage of Troy Davis' Execution

In this post, I'll link to news coverage; commentary in the next post.

"Davis Is Executed in Georgia," by Kim Severson for the New York Times.

Proclaiming his innocence, Troy Davis was put to death by lethal injection on Wednesday night, his life — and the hopes of supporters worldwide — prolonged by several hours while the Supreme Court reviewed but then declined to act on a petition from his lawyers to stay the execution.

Mr. Davis, 42, who was convicted of murdering a Savannah police officer 22 years ago, entered the death chamber shortly before 11 p.m., four hours after the scheduled time. He died at 11:08.

This final chapter before his execution had become an international symbol of the battle over the death penalty and racial imbalance in the justice system.

“It harkens back to some ugly days in the history of this state,” said the Rev. Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.

Mr. Davis remained defiant at the end, according to reporters who witnessed his death. He looked directly at the members of the family of Mark MacPhail, the officer he was convicted of killing, and told them they had the wrong man.

“I did not personally kill your son, father, brother,” he said. “All I can ask is that you look deeper into this case so you really can finally see the truth.”

He then told his supporters and family to “keep the faith” and said to prison personnel, “May God have mercy on your souls; may God bless your souls.”

The latest updating AP filing is, "Carter: Execution exposes flaws in death penalty," by Greg Bluestein.

Former President Jimmy Carter said in a statement to The Associated Press on Thursday he hopes Davis' execution "will spur us as a nation toward the total rejection of capital punishment."

"If one of our fellow citizens can be executed with so much doubt surrounding his guilt, then the death penalty system in our country is unjust and outdated," Carter said.

Davis was executed late Wednesday night for the 1989 murder of off-duty Savannah police officer Mark MacPhail. His supporters say he was the victim of mistaken identity, while prosecutors and MacPhail's family said justice was finally served after four years of delays..

"If one of our fellow citizens can be executed with so much doubt surrounding his guilt, then the death penalty system in our country is unjust and outdated," said Carter, who urged Georgia's pardons board to block the execution.

Davis was scheduled to die at 7 p.m., but the hour came and went as the U.S. Supreme Court apparently weighed the case. More than three hours later, the high court said it wouldn't intervene. The justices did not comment on their order rejecting Davis' request for a stay.

Hundreds of thousands of people signed petitions on Davis' behalf and he had prominent supporters. His attorneys said seven of nine key witnesses against him disputed all or parts of their testimony, but state and federal judges repeatedly ruled against him - three times on Wednesday alone.

When asked Thursday on NBC's "Today" show if he thought the state had executed an innocent man, civil rights leader the Rev. Al Sharpton said: "I believe that they did, but even beyond my belief, they clearly executed a man who had established much, much reasonable doubt."

The Atlanta Journal-Constitution has extensive coverage, including, "Davis appeals fail; executed for ‘89 murder," by Bill Rankin and Rhonda Cook.

This week, Davis’ legal team mounted an aggressive effort to try and stop the execution. It first asked the state Board of Pardons and Paroles to grant Davis clemency, a request that was denied Tuesday.

The lawyers, joined by U.S. congressmen, former Department of Corrections officials and the Innocence Project, asked the parole board to reconsider. The board denied that as well.

Davis’ lawyers next asked the Department of Corrections to let Davis take a polygraph test, but they were rebuffed at the prison gate on Wednesday morning.

“We came here to try and prove Mr. Davis is innocent and unfortunately we were denied that opportunity by the Department of Corrections,” said Stephen Marsh, one of Davis’ lawyers, after he was turned away from the prison in Jackson, about 50 miles south of Atlanta.

Davis’ supporters even called for President Barack Obama to stop the execution, though only the state parole board or a court could do so. At a Monday news conference, White House spokesman Jay Carney, when asked about Davis’ case, declined to weigh in.

“Well, as you know, the president has written that he believes the death penalty does little to deter crime but that some crimes merit the ultimate punishment,” Carney said. He referred questions about the pending Davis execution to the U.S. Justice Department.

The case was one of the most popular topics throughout Wednesday on the social media Twitter site.

Journal-Constitution journalist Rhonda Cook witnessed the execution and writes, "Watching an execution: AJC reporter was inside the death chamber."

Warden Carl  Humphrey began the process by reading the execution order signed by Chatham County Judge Penny Haas Freesmann. "The court having sentenced defendant Troy Anthony Davis on the third day of September, 1991, to be executed….”

Then he asked Davis if he has any final words.

Yes, the condemned man said and he raised his head so he could look at Mark MacPhail Jr., who was an infant when his father was murdered, and William MacPhail, the dead officer’s brother.

“I’m sorry for your loss,” Davis said.

Mark MacPhail, who was leaning forward, and his uncle did not move. They stared at the man who killed their loved one.

“I did not personally kill your son, father and brother,” Davis said. “I am innocent. “

He asked his family and friends to continue to search for the truth.

And to the prison officials he said “may God have mercy on your souls. May God bless your souls.”

He then lowered his head. He turned down an offer for a prayer.

Within minutes, Troy Anthony Davis slipped out of consciousness and in 14 minutes he was dead.

A three-drug cocktail ended his life. First pentobarbital put Davis in a drug-induced coma. The paralytic pancuronium bromide was second. Potassium chloride stopped Davis’ heart.

“The court ordered execution of Troy Anthony Davis was carried out in accordance with the laws of the state of Georgia,” the warden announced.

Curtains in the death chamber were closed and we were quickly ushered out.

The AJC also has a timeline of the night, "Troy Davis, from gurney, proclaims innocence before execution."

Six retired corrections officials, including Allen Ault, the former director of the prison system, also asked the board to reconsider its decision. "We write to you today with the overwhelming concern that an innocent person could be executed in Georgia tonight," they wrote in a letter.

But the parole board, in a brief statement released this morning, said it would not reconsider its decision to deny clemency.

"Troy Davis’ Lawyer: The State of Georgia Legally Lynched An Innocent Man," by James Crugnale at Mediaite.

Following the controversial execution of Troy Davis, his lawyers spoke out passionately about what they perceived as a grave injustice and characterized his punishment as a “legalized lynching.”

“I witnessed something that was horrible, a tragedy,” Davis’ lawyer Thomas Ruffin Jr. said. “This night, the state of Georgia legally lynched a brave, a good and indeed, an innocent man,”

“He made clear in very calm and honest way that he didn’t kill officer Mark MacPhail,” Ruffin added. “He addressed the family and made clear that he didn’t have a gun on the night of August 18, 1989. He called upon the MacPhail family, his family and friends and all of those who have want what’s right to prevail and what’s wrong to be crushed.”

Jason Ewart, who also represented Davis during the case added that he hoped his death would not be in vain and that the death penalty would be reformed as a result of his case.

“This case struck a chord in the world, and as a result the legacy of Troy Davis doesn’t die tonight,” Ewart said. “Our sadness, the sadness of his friends and his family, is tempered by the hope that Troy’s death will lead to fundamental legal reforms so we will never again witness, with inevitable regret, the execution of an innocent man as we did here tonight.”

Earlier coverage of the Troy Davis case begins at the link; commentary on the execution, in the next post.

Troy Davis

"Request for Lie Detector Test for Davis Is Denied," is an updating report at the New York Times written by Kim Severson.

An official of the N.A.A.C.P. said on Wednesday that the vote by the Georgia parole board to deny clemency to Troy Davis was so close that he hoped there might still be a chance to save him from execution at 7 p.m.

Edward O. DuBose, president of the Georgia chapter, said the organization had “very reliable information from the board members directly that the board was split 3 to 2 on whether to grant clemency.”

“The fact that that kind of division was in the room is even more of a sign that there is a strong possibility to save Troy’s life,” he said.

The N.A.A.C.P said it had been in contact with the Department of Justice on Wednesday, in the hope that the federal government would intervene on the basis of civil rights violations, meaning irregularities in the original investigation and at the trial.

At the same time, hundreds of people were starting to gather at the prison in Jackson, about an hour’s drive south of Atlanta, where Mr. Davis is scheduled to die by lethal injection.

Earlier in the day, his lawyers asked the state for one more chance to spare him: a lie detector test.

But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr. Davis’s clemency after a daylong hearing Monday, quickly responded that there would be no reconsideration of the case, and the polygraph test was abandoned.

Mr. Davis’s supporters were also reaching out to the prosecutor in the original case, asking that he persuade the original judge to rescind the death order. Benjamin T. Jealous, head of the National Association for the Advancement of Colored People, who planned to visit Mr. Davis on Wednesday, was trying to ask President Obama for a reprieve.

The Innocence Project, which has had a hand in the exoneration of 17 death-row inmates through the use of DNA testing, sent a letter to the Chatham County district attorney, Larry Chisolm, urging him to withdraw the execution warrant against Mr. Davis, although there is no DNA evidence at issue in the case.

The updating AP report is, "Ga inmate's execution nears; protests worldwide." It's by Greg Bluestein.

Troy Davis supporters in the U.S. and Europe were trying just about anything to spare him from lethal injection Wednesday evening for killing an off-duty Georgia policeman, a crime he and others have insisted for years that he did not commit.

Supporters planned vigils around the world. They'll be outside Georgia's death row prison in Jackson and at U.S. embassies in Europe.

The 42-year-old's most realistic, though slim, chance for reprieve is through the courts, and his lawyers are trying. His backers have tried increasingly frenzied measures: offering for Davis to take a polygraph test, urging prison workers to strike or call in sick, posting a judge's phone number online, urging people to call and ask him to put a stop to the 7 p.m. execution. They've even considered a desperate appeal for White House intervention.

"We're trying everything we can do, everything under the law," said Chester Dunham, a civil rights activist and talk show host protesting in Savannah, where in 1989, prosecutors say Davis fatally shot 27-year-old Mark MacPhail.

Davis' supporters include former President Jimmy Carter, Pope Benedict XVI and a former FBI director, the NAACP, as well as conservative figures. The U.S. Supreme Court even gave him an unusual opportunity to prove his innocence last year, but ultimately didn't hear the merits of the case.

"Rep. John Lewis Laments Denial of Clemency for Troy Davis," is from the State Column.

Rep. John Lewis (D-Georgia) released the following statement on the denial of clemency for Davis:

“This is a sad, grim day in Georgia.  It was so encouraging that over one million people signed petitions, that law-and-order officials like former FBI Director Williams Sessions and former Rep. Bob Barr, a conservative Republican from Georgia, Pope Benedict XVI in the Vatican, President Jimmy Carter, even believers in the death penalty saw the error in executing a man who might be innocent.

“But somehow those cries were not enough. Today we have confirmed that the administration of law in Georgia is more important than the search for justice, that the letter of the legal codes holds more power than the insistence of the truth, and that the outstretched hands of mercy, of leniency and forgiveness are not a viable part of the judicial system in our state.

“We have come a great distance in Georgia, but today we have demonstrated we still have a great distance to go before we build a society based on simple justice that values the dignity and the worth of every human being.  We are not there yet.  I am deeply saddened and deeply disappointed by this decision, but in light of all I have seen through the years, it does not surprise me.

“I send my deepest prayers and sympathy to Troy Davis and his family, especially his sister Martina Correia, his nephew, and his mother who passed not long ago.  I thank them for their long-hard 20-year struggle to speak the truth and the chance they gave our state to bear witness to the truth.  My prayers are also with the family of police officer Mark McPhail whose life was senselessly taken years ago.  They too have suffered because justice was not done.  I hope all those involved will find peace.  I hope they will find true peace, a peace that humanity cannot give, but is only granted in the highest realms of heaven.”

Former Republican Congressman Bob Barr has written, "Ruling to execute Troy Davis violates core principles," at CNN.

Only the Georgia Board of Pardons and Paroles stood between life and death for Troy Anthony Davis, and the core principles of American jurisprudence should have been the board's guide. But the board ignored those principles in denying Davis clemency.

Davis was convicted in 1991 of the 1989 murder of Savannah police officer Mark MacPhail. But the trial included no physical evidence to support his conviction. The prosecution produced no murder weapon, no DNA evidence and no surveillance tapes.

He was sentenced to death on the basis of nine so-called eyewitnesses, who testified in the trial. Seven of those witnesses, however, have since recanted or materially changed their stories. The jury, for instance, relied on two people who did not witness the crime but who testified that Davis had confessed to the shooting. Since then, both have said they were lying.

The Georgia Board of Pardons and Paroles declared in 2007 that it "will not allow an execution to proceed in this state unless and until its members are convinced that there is no doubt as to the guilt of the accused."

And in the Davis case, a significant measure of doubt remained.

And:

I support the death penalty, and have for a long time. And I am not making a judgment as to whether Davis is guilty or innocent. But surely the citizens of Savannah and the state of Georgia want justice served on behalf of MacPhail, the police officer.

Imposing a death sentence on the skimpiest of evidence does not serve the interest of justice. The Georgia Board of Pardons and Paroles did not honor the standards of justice on which all Americans depend by granting clemency. In doing so, it will allow a man to be executed when we cannot be assured of his guilt.

That was the final admirable principle standing between Davis and his scheduled death by lethal injection Wednesday. And the parole board did not uphold it.

At Huffington Post, Russell Simmons writes, "Unbelievable That Troy Davis Is Set To Die At 7PM Tonight!"

Our system of justice is SUPPOSED to convict a citizen when there is beyond a reasonable doubt. Especially when it comes to the brutal business of the government taking a man's life. A man, a black American man, Troy Davis, is about to be killed in Georgia, tonight, Wednesday, September 21, 2011 at 7:00 pm for the alleged 1989 murder of police officer (here is the 411 on Troy). There IS reasonable doubt of this man's guilt. A witness testified that another man confessed to the murders. Multiple jurors recanted their original verdicts. Former FBI director William Sessions called for the death sentence -- by definition permanent -- to be commuted. The Atlanta Journal-Constitution argued that the basis of the guilty verdict is now in doubt. This is America! We don't ask people to prove their innocence! It is supposed to work the other way.

If you can't prove guilt beyond a reasonable doubt then you CAN'T kill this man. This case has the world's attention. Is our bloodlust so great that we have to ignore all statements of doubt by those who have looked long and hard at the case and apply the cruelest punishment of all -- death -- which can never be remedied? This man is about to be murdered. Make no mistake: every death sentence is a premeditated murder. Regardless of how we justify it, the execution of a prisoner is a state sanctioned, premeditated murder. And in this country it needs to stop. Make your voices heard.

Earlier coverage of Troy Davis' case begins at the link.

Georgia Parole Board Denies Troy Davis Clemency

"Georgia Pardons Board Denies Clemency for Death Row Inmate," is the title of Kim Severson's post at the New York Times.

Troy Davis, whose death row case ignited an international campaign to save his life, has lost what appeared to be his last attempt to avoid death by lethal injection on Wednesday.

Rejecting pleas by Mr. Davis’s lawyers that shaky witness testimony and a lack of physical evidence presented enough doubt about his guilt to spare him death, the Georgia State Board of Pardons and Paroles ruled on Tuesday morning that Mr. Davis, 42, should die for killing Mark MacPhail, an off-duty police officer, in a Savannah parking lot in 1989.

“He has had ample time to prove his innocence, and he is not innocent,” said Mr. MacPhail’s widow, Joan MacPhail-Harris. “We have laws in this land so that there is not chaos. We are not killing Troy because we want to. We’re trying to execute him because he was punished.”

She, Mr. MacPhail’s mother and the couple’s two grown children were tearful after the hearing on Monday, pleading exhaustion.

“I’m not for blood. I’m for justice,” said his mother, Anneliese MacPhail. “We have been through hell, my family.”

The case has been a slow and convoluted exercise in legal maneuvering and death penalty politics. It has included last-minute stays and a rare Supreme Court decision.

Because Georgia’s governor has no power to stay executions, the parole board was the last hope for Mr. Davis.

“I don’t see any avenues to the Supreme Court,” said Anne S. Emanuel, a law professor at Georgia State University who has formally reviewed the case and found it too weak to merit the death penalty. “There’s nothing else apparent.”

The last-ditch effort to spare Mr. Davis’s life produced a widespread reaction among people who believe there was too much doubt to execute him.

More than 630,000 letters asking the board to stay the execution were delivered by Amnesty International last Friday. The list of people asking that the Georgia parole board offer clemency included President Jimmy Carter, Archbishop Desmond Tutu, 51 members of Congress, entertainment figures like Cee Lo Green and death penalty supporters, including William S. Sessions, a former F.B.I. director.

On Friday, more than 3,000 people gathered at the Ebenezer Baptist Church, in the heart of Martin Luther King Jr.’s former neighborhood, for a prayer vigil and protest.

Bill Rankin writes, "Parole board denies clemency for Troy Davis," for the Atlanta Journal-Constitution.

The state Board of Pardons and Paroles on Tuesday denied clemency for Troy Anthony Davis after hearing pleas for mercy from Davis' family and calls for his execution by surviving relatives of a murdered Savannah police officer.

"I am utterly shocked and disappointed at the failure of our justice system at all levels to correct a miscarriage of justice," Brian Kammer, one of Davis' attorneys, said Tuesday after the decision was announced.

Davis' case has already taken more unexpected turns than just about any death-penalty case in Georgia history and his innocence claims have attracted international attention. Its resolution was postponed once again when the parole board late Monday announced it would not be making an immediate decision as to whether Davis should live or die.

Davis, 42, is scheduled to be put to death by lethal injection on Wednesday at 7 p.m. at the state prison in Jackson. He was sentenced to death for the 1989 murder of off-duty Savannah Police Officer Mark Allen MacPhail.

On Monday, Davis' lawyers said they believed they'd made their case that there is too much doubt in the case. But members of MacPhail's family expressed confidence the board would deny clemency.

After Davis' lawyers made their three-hour presentation, attorney Stephen Marsh emerged from the hearing and said, "We believe we have established substantial doubt in this case."

Earlier coverage of Troy Davis' case begins at the link.

American Judicature Society Eyewitness ID Test Complete

"A Test of the Simultaneous vs. Sequential Lineup Methods," is the AJS report being released today.  It's available in Adobe .pdf format.  Here's the summary:

Since 2008, the AJS Center for Forensic Science and Public Policy, in collaboration with the Innocence Project, the Police Foundation, and the Center for Problem-Oriented Policing, have been engaged in an effort to examine eyewitness identification procedures in the field, namely the reliability of simultaneous versus sequential lineups administered under double-blind conditions using laptop computers. 

The analysis of over 850 lineups collected across four sites: the Austin (TX) Police Department, the Charlotte-Mecklenburg (NC) Police Department, the Tucson (AZ) Police Department, and the San Diego (CA) Police Department has been completed.

Today's New York Times reports, "Changes to Police Lineup Procedures Cut Eyewitness Mistakes, Study Says."  It's written by John Schwartz.

The push for procedures to help overcome the weaknesses of eyewitness identifications gains support with a new study being released on Monday that sees significant advantages in techniques promoted by many experts and a growing number of police departments.

The new report, based on actual cases in the field, suggests that photographs presented one by one by a person not directly connected with a case significantly reduced identifications of fillers (people known not to be the suspect) from 18 percent in simultaneous lineups to 12 percent in sequential ones.

And while a 2006 study cited by opponents of the sequential technique suggested that witnesses make fewer selections over all in sequential lineups than in simultaneous ones, the new report showed that the sequential approach leads to just as many picks of suspects as do the simultaneous techniques if conducted as they commonly are in the field, with the witnesses getting an opportunity to view the images a second time if they request it.

A large number of researchers have found that having the images presented by someone with no knowledge of the case, in a “double-blind” lineup, can reduce subtle and even unintentional influences on witnesses that can lead to mistaken identifications. Further research has suggested that presenting the images one at a time, instead of all at once, alleviates what some call “comparison shopping” by witnesses and causes them to rely more on their memory than the comparison.

A number of states and law enforcement agencies have followed suit with changes that include a requirement of double-blind, sequential lineups. Many departments have declined to change, however, in part because much of the previous research was performed in the laboratory and not in real-life investigations. They also cited the highly publicized 2006 study and others that cast doubt on the efficacy of sequential lineups.

The new report was planned and carried out in the wake of the 2006 study, which the authors of the new report have argued was flawed. And its findings, based largely on cases in Austin, Tex., with cooperation from police departments in San Diego, Tucson and Charlotte, N.C., suggest that “the sequential procedure should catch fewer innocent suspects in its net.”

The new study shows that “we have the tools to reduce eyewitness error, to protect the innocent and help law enforcement apprehend the guilty,” said Barry Scheck, co-director of the Innocence Project, a sponsor of the report along with the American Judicature Society and the Police Foundation.

“I think it’s wonderful,” said Rosemary Lehmberg, the district attorney for Travis County, which includes Austin. “It’s the first time I have seen a study that has the potential to convince folks that double-blind sequential can really help cut down on mistaken identity.”

Others are not convinced. Art Acevedo, Austin’s police chief, said his department was not ready to fully embrace sequential lineups and would allow officers to use both methods. The study is “a great starting point,” he said, “but we’re not at the finish line yet.”

And:

The fallibility of eyewitness identification is well known; 75 percent of the more than 250 convictions overturned based on DNA evidence involved mistaken identifications. A landmark decision last month by the New Jersey Supreme Court cited this “troubling lack of reliability” in setting new rules for addressing those weaknesses in New Jersey courtrooms.

While the court took a strong stand that lineups should be conducted by law enforcement agents with no interest in or knowledge of the case to avoid the potential for influencing witnesses, the justices were more guarded in their view of sequential lineups, writing that “there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either procedure.”

Gary L. Wells, a professor of psychology at Iowa State University and lead author of the new report, said in a statement, “Sequential presentation is not a silver bullet for the mistaken identification problem, but can lead to fewer innocent suspects being misidentified when the lineups are conducted double-blind.”

The AP report is, "Study aims to alter the way police conduct lineups," by Nedra Pickler.  It's also available via the Seattle Post-Intelligencer.

A new study says those lineups you see on television crime dramas and often used in real-life police departments are going about it all wrong.

The study released Monday by the American Judicature Society is part of a growing body of research during the past 35 years that questions the reliability of eyewitness identifications under certain circumstances. That research has been taken more seriously in recent years with the evolution of DNA evidence clearing innocents of crimes they were convicted of committing, often based on eyewitness testimony.

The new study finds witnesses should not look at a group of people at once to pick a perpetrator. Instead, they should look at individuals one-by-one with a detective who doesn't know which is the real suspect - known as a double-blind lineup to avoid giving witnesses unintentional cues - preferably on a computer to ensure appropriate random procedures are used and to record the data.

The study found witnesses using the sequential method were less likely to pick the innocents brought in to fill out the lineup. The theory is that witnesses using the sequential lineup will compare each person to the perpetrator in their memory, instead of comparing them to one another side-by-side to see which most resembles the criminal.

And:

Wells estimates that between 20 and 25 percent of 16,000 law enforcement agencies in the United States are using the sequential and double-blind procedures. He said those reforms have been made in the last decade, with some key departments including Denver and Dallas coming on board just this year. "There's still a long ways to go," he said. He said he hoped this study would help push reforms forward.

Earlier coverage of changes in eyewitness id practices begins at the link; more on the August New Jersey Supreme Court ruling is also available.  More on Gary Wells at his Iowa State University website.

Related posts are in the eyewitness identification index. There is an eyewitness identification webroll in the left-column.

An Update on the Troy Davis Case

"Should Davis be executed? No: Questions about his guilt continue to plague his conviction," is the title of William S. Sessions' OpEd in today's Atlanta Journal-Constitution.

In 2007, the Georgia State Board of Pardons and Paroles issued a stay of execution for Davis and took the admirable position that it would “not allow an execution to proceed in this State unless and until its members are convinced that there is no doubt as to the guilt of the accused.”

Because this case continues to be permeated by doubt, the Board of Pardons and Paroles’ stance continues to be the right one. In reality, there will always be cases, including capital cases, in which doubts about guilt cannot be erased to an acceptable level of certainty. The Davis case is one of these, and it is for cases like this that executive clemency exists.

Those responsible for clemency play a vital role in ensuring our legal system includes a measure of compassion and humanity. The death penalty should not be carried out, and Davis’ sentence should be commuted to life.

Democracy Now! host Amy Goodman's latest syndicated column is, "Troy Davis, victim of judicial lynching; Troy Davis faces execution on 21 September, despite seven of nine non-police witnesses recanting. Where is the justice in that?"  It's via the Guardian.

In the most recent Republican presidential debate in Tampa, Florida, when CNN's Wolf Blitzer asked, hypothetically, if a man who chose to carry no medical insurance, then was stricken with a grave illness, should be left to die, cheers of "Yeah!" filled the hall. When, in the prior debate, Governor Rick Perry was asked about his enthusiastic use of the death penalty in Texas, the crowd erupted into sustained applause and cheers. The reaction from the audience prompted debate moderator Brian Williams of NBC News to follow up with the question, "What do you make of that dynamic that just happened here, the mention of the execution of 234 people drew applause?"

That "dynamic" is why challenging the death sentence to be carried out against Troy Davis by the state of Georgia on 21 September is so important. Davis has been on Georgia's death row for close to 20 years, after being convicted of killing off-duty police officer Mark MacPhail in Savannah. Since his conviction, seven of the nine non-police witnesses have recanted their testimony, alleging police coercion and intimidation in obtaining the testimony. There is no physical evidence linking Davis to the murder.

Last March, the US supreme court ruled that Davis should receive an evidentiary hearing, to make his case for innocence. Several witnesses have identified one of the remaining witnesses who has not recanted, Sylvester "Redd" Coles, as the shooter. US District Judge William T Moore Jr refused, on a technicality, to allow the testimony of witnesses who claimed that, after Davis had been convicted, Coles admitted to shooting MacPhail. In his August court order, Moore summarised, "Mr Davis is not innocent."

One of the jurors, Brenda Forrest, disagrees. She told CNN in 2009, recalling the trial of Davis, "All of the witnesses – they were able to ID him as the person who actually did it." Since the seven witnesses recanted, she says: "If I knew then what I know now, Troy Davis would not be on death row. The verdict would be not guilty."

Today, supporters of Troy Davis submitted well over 600,000 petition signature calling for clemency.

USA Today reports, "Ga. death-row case shows power of social media."  It's written by Melanie Eversley.

A social media campaign to stop an execution in Georgia next week is drawing support from hundreds of thousands of people around the world.

Celebrities, Nobel laureates and national leaders have joined the NAACP, Amnesty International and the grassroots group Change.org to urge Georgia authorities to grant clemency to Troy Davis, who is scheduled to die by lethal injection Wednesday. They are flooding Twitter with several tweets a minute, signing online petitions and, starting today, planning to rally around the country.

And:

The latest effort, triggered when a new execution date was set last week, includes celebrities John Legend, Mia Farrow and the Indigo Girls. All are tweeting under #TooMuchDoubt, a search term devised by Amnesty International and the NAACP. Davis supporters also have created Facebook pages.

"In the moment, when our nation stumbles toward complete failure of its justice system, we have to give every citizen the opportunity to express their outrage and their intention that the state not do this in their name," NAACP President Benjamin Todd Jealous says. "When the state executes an innocent person, every citizen is implicated in that act."

The tweets ask the public to contact the Georgia State Board of Pardons and Paroles — the group with the authority to halt Davis' death — and to urge the panel to grant clemency. They also ask people to sign one of three petitions the groups are circulating online.

"I think the key thing we are trying to express to the Georgia authorities is there are just so many doubts," says Laura Moye, death penalty abolition campaign director for Amnesty International USA.

The board is scheduled to meet Monday to consider the case. If it does not grant clemency, there is no official next legal step, but "we are not going to stand by quietly if that is what happens," Moye says. The NAACP also is calling on Chatham County, Ga., District Attorney Larry Chisolm to move to withdraw the death warrant, Jealous says.

Representatives from Amnesty International and the NAACP presented four petitions with more than 600,000 signatures to the state parole board Thursday. An online petition sponsored by Davis' sister, Kimberly Davis, and Change.org has collected more than 233,000 signatures.

This is what more than 650,000 petition signatures look like.

Troy Davis' case has caught the attention of people around the world.  Alice Kim, Director of the Public Square at the Illinois Humanities Council, is no stranger to the issue of capital punishment.  She's worked tirelessly to keep Illinois exonerees connected and to provide forums for them to bear witness.  At her Dancing the Dialectic blog, she's posted, "'I need a poem' for Troy Davis."  Here's a brief excerpt:

"I need a poem, need a poem, a master poem, once and for all, I need a poem to destroy poetry and break these iron bars." I fall in love with these words every time I read them, words written by exonerated death row prisoner and poet Delbert Tibbs. Today, I repeat these words for Troy Davis.

I want there to be a poem so powerful, so magical, so momentous that it can save Troy's life. He is scheduled to be executed thirteen days from today on Wednesday, September 21 at 7pm in Georgia. It is possible that these next thirteen days will be his last. If business as usual is not interrupted then a legal lynching will take place. But Troy has survived three previous execution dates because of doubts about his guilt, and I want to hope that Troy will be spared from execution a fourth time, that the power of the people will be the poetry that can save his life.

It seems that her post is, at least partially, inspired by Delbert Tibbs' "I Need a Poem."  Delbert Tibbs' story is told in the play, "The Exonerated;" he's the anchor of the play.  He was exonerated from death row in Florida and lives in Chicago.  He's a national treasure.  Everyone should get to hear Delbert speak his poetry.

Earlier coverage of Troy Davis' case begins at the link.

Execution Date Set in Troy Davis Case

"Troy Anthony Davis' execution set for Sept. 21," is the Atlanta Journal-Constitution report by Bill Rankin.

The Georgia Department of Corrections has set the execution of Troy Anthony Davis for 7 p.m. on Sept. 21.

The agency set the time and date a day after a Chatham County judge signed a death warrant for Davis, who was convicted of killing an off-duty Savannah police officer in 1989.

Davis' appeals are exhausted. He is expected to once again ask the Georgia Board of Pardons and Paroles to grant him clemency. The board has previously denied that request.

Davis, 41, was convicted of killing Officer Mark Allen MacPhail as MacPhail ran to the aid of a homeless man being pistol-whipped outside a Burger King.

The case has attracted international attention because a number of key prosecution witnesses either recanted or backed off their trial testimony. Other witnesses have come forward and said another man at the scene told them he was the actual killer.

The AP filing is, "Troy Davis execution date set for Sept. 21," by Greg Bluestein.  It's via the Savannah Morning News.

Davis has exhausted his appeals, but his attorney Jason Ewart has said they plan to ask the Georgia Board of Pardons and Paroles for clemency. The five-member panel has the power to commute or postpone executions, but rarely does so.

The order, which was provided to the Associated Press by Davis' defense attorney Brian Kammer, sets a window between Sept. 21 and Sept. 28 for the execution. The Georgia Attorney General's office confirmed the order but didn't elaborate.

Davis has long said he could prove he was wrongly convicted of the killing of Mark MacPhail. The officer was working off-duty at a Savannah bus station when he was shot twice while rushing to help a homeless man who had been attacked. Eyewitnesses identified Davis as the shooter at his trial, but no physical evidence tied him to the slaying. Davis was convicted of the murder in 1991 and sentenced to death.

The U.S. Supreme Court in 2009 agreed he should have the rare chance to argue he was innocent before a federal judge. It was the first time in at least 50 years that the court had granted an American death row inmate such an innocence hearing.

During two days of testimony in June 2010, U.S. District Judge William T. Moore Jr. heard from two witnesses who said they falsely incriminated Davis and two others who said another man had confessed to being MacPhail's killer in the years since Davis' trial.

But Moore concluded in August that several of the witnesses had already backed off their incriminating statements during the 1991 trial — so it wasn't new evidence — and that others simply couldn't be believed. He ruled that while the evidence casts some additional doubt on the conviction, "it is largely smoke and mirrors" and not nearly strong enough to prove Davis' innocence.

Davis appealed, but the 11th Circuit Court of Appeals refused to hear the challenge in November. The U.S. Supreme Court rejected it in March.

Amnesty International, which has long championed Troy Davis' case, issued a statement, "Troy Davis: clemency urged in case 'riven with doubt' after execution set."

Amnesty International has urged the Board of Pardons and Parole in the US state of Georgia to grant clemency to death row inmate Troy Anthony Davis after a judge ordered that his execution will take place later this month (between 21-28 September).

 

Troy Davis, 42, has been on death row since being convicted in 1991 of the killing of an off-duty policeman Mark Allen MacPhail, who was shot in Savannah, Georgia in 1989.

 

Davis has always protested his innocence and there are longstanding doubts about the fairness of his trial. There is no physical evidence linking Davis to the crime and seven out of nine prosecution witnesses later recanted or changed their initial testimonies in sworn affidavits.

 

Amnesty International USA Executive Director Larry Cox said:

 

“The board stayed Davis’ execution in 2007, stating that capital punishment was not an option when doubts about guilt remained.

 

“Since then two more execution dates have come and gone, and there is still little clarity, much less proof, that Davis committed any crime.

 

“Amnesty International respectfully asks the board to commute Davis’ sentence to life and prevent Georgia from making a catastrophic mistake.”

 

Since the launch of its 2007 report, “Where Is the Justice for Me? The Case of Troy Davis, Facing Execution in Georgia”, Amnesty has campaigned intensively for clemency for Davis.

 

On 12 April 2011 Amnesty issued an “Urgent Action” to its membership on his behalf and more than 300,000 signatures have been gathered for Davis since the Georgia Board of Pardons and Paroles last considered clemency. Following an “evidentiary hearing” last summer, a former FBI director William Sessions renewed his support for the inmate, and Nobel laureates Jimmy Carter, Archbishop Desmond Tutu and Jose Ramos Horta have recently appealed to the board for clemency

Earlier coverage of the Troy Davis case begins at the link.

Eyewitness ID Practices - Changing in Many Jurisdictions

Today's New York Times reports, "Police Lineups Start to Face Fact: Eyes Can Lie."  It's written by Erica Goode and John Schwartz.

The decision by New Jersey’s Supreme Court last week to overhaul the state’s rules for how judges and jurors treat evidence from police lineups could help transform the way officers conduct a central technique of police work, criminal justice experts say.

In its ruling, the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.

“No court has ever taken this topic this seriously or put in this kind of effort,” said Gary L. Wells, a professor of psychology at Iowa State University who is an expert on witness identification and has written extensively on the topic.

Other courts are likely to follow suit, and in November the United States Supreme Court will take up the question of identification for the first time since 1977.

But changing how the nation’s more than 16,000 independent law enforcement agencies handle the presentation of suspects to witnesses will be no easy task, many experts say.

Around the country, the notion of change has met with resistance from police officers who remain skeptical about the research and bridle at the idea that they could affect the responses of witnesses, even unintentionally, which studies find is how most influence occurs.

In many communities, lineups are conducted in the same way they have been for decades, although typically these days they involve photos, not actual people. According to some estimates, only about 25 percent to 30 percent of jurisdictions have police departments that have revised their policies to protect the integrity of lineup procedures.

And:

Model policies for changing lineup procedures have been created by professional organizations like the International Association of Chiefs of Police, and in 1999, the National Institute of Justice released guidelines that were sent to every police department in the United States.

But the process of reform, Dr. Wells said, is “all over the place, it’s very spotty.” He added that he suspected many police departments simply deposited the federal guidelines, which he helped develop, “into their round files.”

Some large departments, like those in Dallas and Denver, have already made changes, often under the leadership of an administrator eager to keep up to the national standard or after DNA exonerations revealed mistaken identifications.

In Dallas, for example, detectives take elaborate precautions to make sure that identifications remain untainted and that they will stand up in court.

Witnesses are sent to a special unit of the Police Department devoted entirely to lineups, where they are read instructions and shown photographs by trained lineup officers who have no relationship to the cases.

Photos are presented one at a time instead of all together, and the witnesses then indicate how confident they are in their judgments. The whole process is videotaped, so that it can be viewed by defense lawyers and by the court, if necessary.

Lt. David Pughes, commander of the department’s homicide unit, said 5,000 lineups had been conducted in this manner since April 2009, when the policy was instituted, a major departure from the days when the investigating officers in criminal cases conducted lineups and no consistent procedures were followed.

Initially, Lieutenant Pughes said, the new practices were resisted by detectives, who felt that their integrity was being challenged.

“The only way to overcome that was through an elaborate training program that talked about memory and physiology and all different types of things,” he said. After the training, he added, “I could see that the lights were going on.”

More on Gary Wells' research on memory at his university website.

The Times article has a sidebar, "5 Suggested Techniques to Aid in Identifying Suspects."

ThomsonReuters Legal News posts, "NJ decision on eyewitness identification could have broad impact," by Carlyn Kolker.

The decision was hailed by criminal justice groups such as the Innocence Project. Though the court's ruling has no binding influence outside of New Jersey, other state courts could take the opinion into consideration, said Kip Cornwell, a law professor at Seton Hall University in Newark.

States including California and New Mexico have grappled with reforming their witness identification guidelines, as the advent of new social science data has prompted criticism from criminal defense bar on mis-identifications.

A task force in New York convened by New York State Chief Judge Jonathan Lippman made several recommendations earlier this year to police groups and prosecutors about witness identification, as well as to judges about juror instructions. The state's district attorneys association also developed new guidelines about photo identifications and lineups in 2010.

Wednesday's New Jersey Supreme Court opinion, State v. Larry R. Henderson, stemmed from a case in which an eye-witness testimony was the primary evidence in a homicide trial. Before the trial, the witness said a detective was "nudging" him to identify the defendant.

Earlier coverage of the New Jersey Supreme Court ruling begins with the preceding post.  Related posts are in the eyewitness identification index.

What Did They Really See?

That's the title of a New York Times editorial regarding the New Jersey Supreme Court ruling on eyewitness identification. It appeared in the Saturday edition.

In a landmark decision this week, the New Jersey Supreme Court set new guidelines for how courts and juries must assess eyewitness identification of criminal suspects. The laudable decision applies only in New Jersey but could have a national impact. It provides a thorough, science-based explanation of how eyewitness evidence can become tainted and offers a judicious template for the United States Supreme Court and other states to follow.

Eyewitness identification has been a subject of hundreds of studies over the last three decades, showing that memory and perception can be highly unreliable. Of the 273 people freed from prison with DNA evidence by The Innocence Project in cases reshaping this area of law, three out of four were convicted with false identifications.

In a unanimous opinion, Chief Justice Stuart Rabner noted that misidentification is the leading cause of wrongful convictions across the country. He wrote: “The changes outlined in this decision are significant because eyewitness identifications bear directly on guilt or innocence. At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.”

And:

The Supreme Court is scheduled to hear a major case about eyewitness identification in November, the first on this issue since that 1977 decision. The Roberts court should pay close attention to the well-grounded decision reached by the Rabner court in New Jersey.

Chicago Tribune columnist Steve Chapman writes, "Injustice, in plain sight."

It's a dismally familiar tale: a victim making an eyewitness identification that later turns out to be horribly mistaken. This type of mistake is universally known as the most common cause of false convictions. Yet law enforcement authorities, courts and juries continue to treat it as pure gold.

But change is on the way in New Jersey, where last week, the state Supreme Court ran out of patience with a method that puts so many innocents behind bars. It mandated new rules that will help to prevent errors while giving defendants more avenues to expose them.

The justices said that "courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications" and "juries must receive thorough instructions tailored to the facts of the case to be able to evaluate the identification evidence they hear."

Like other evidence, it must be subject to careful scrutiny and challenge. The burden of disproof will still fall on the accused, but it will be easier to meet. Chances are good that, as a result, some blameless individuals will be spared.

It's the least the courts can do, and it's something the U.S. Supreme Court will get to consider this fall, hearing the first major case on the issue since 1977. Since then, the fallibility of eyewitness evidence has been confirmed by a mounting pile of data.

And:

We all know it's dangerous to believe everything we hear. The criminal justice system ought to acknowledge that the same holds for what we see.

Earlier coverage of this month's New Jersey Supreme Court ruling begins at the link.

On November 2, the U.S. Supreme Court will hear oral arguments in the case of Perry v. New Hampshire; earlier coverage, at the link.  The SCOTUS Blog case file contains all briefing.

Related posts are in the eyewitness identification index.  In the next post, more on eyewitness ID practices.

The Innocence Project on the New Jersey Ruling

"New Jersey Supreme Court Issues Landmark Decision Mandating Major Changes in the Way Courts Handle Identification Procedures," is the title of a news release issued by the Innocence Project.

Today the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries.  The new changes, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.   

“Today the New Jersey Supreme Court has said that the legal architecture set by the U.S. Supreme Court 30 years ago to evaluate identification evidence must be renovated. This is a decision that will ultimately affect every state and federal court in the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The court has recognized the tremendous fallibility of eyewitness identifications, and based on the most thorough review of scientific research undertaken by a court, has set up comprehensive and practical guidelines for how judges and juries should handle this important evidence.”

The court’s decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables that affect an eyewitness identification. The court noted that this more extensive scrutiny will require enhanced jury instructions on factors that increase the risk of misidentification. These factors include: 

• Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.
• Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.
• Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect.  Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.
• Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.
• Whether the witness was under a high level of stress.
• Whether a weapon was used, especially if the crime was of short duration.
• How much time the witness had to observe the event.
• How far the witness was from the perpetrator and what the lighting conditions were.
• Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.
• Whether the perpetrator possessed characteristics that would make it harder to make an identification.  Was he or she wearing a disguise?  Did the suspect have different facial features at the time of the identification?
• The length of time between the crime and identification. 
• Whether the case involved cross-racial identification.

To provide courts with these more enhanced jury instructions, the court gave the Criminal Practice Committee and the Committee on Model Criminal Jury Charges 90 days to submit proposed revisions to the current jury instructions on eyewitness identification, specifically directing them to consider the model jury instructions submitted by the Innocence Project.

The court’s decision stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson. Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an extensive inquiry into witness identification procedures currently used by law enforcement was necessary.

The New Jersey Supreme Court appointed a Special Master to review the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.  In addition to the parties to the litigation, the court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by the Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010. 

The court remanded the Henderson case back to the trial court for further review in accordance with the decision. The decision will apply to all future cases, but will not be applied retroactively with the exception of the companion case, State v. Chen, in which the court held that suggestive identification procedures that resulted from private actors would also be subject to court scrutiny to ensure the reliability of the identification.  

Download today’s decision here. 

Download the legal findings that the Innocence Project submitted to the court, which includes the model jury instructions.

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. Additional information about eyewitness misidentification is available here.

News coverage of the New Jersey Supreme Court ruling inState v. Henderson is in the preceding post.

Sweeping Changes in Eyewitness ID Ordered in New Jersey

The New Jersey Supreme Court ruling in State v. Henderson is available in Adobe .pdf format.

Today's New York Times reports, "In New Jersey, Rules Are Changed on Witness IDs."  It's written by Benjamin Weiser.

The New Jersey Supreme Court, acknowledging a “troubling lack of reliability in eyewitness identifications,” issued sweeping new rules on Wednesday making it easier for defendants to challenge such evidence in criminal cases.

The court said that whenever a defendant presents evidence that a witness’s identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification.

When such disputed evidence is admitted, the court said, the judge must give detailed explanations to jurors, even in the middle of a trial, on influences that could heighten the risk of misidentification. In the past, judges held hearings on such matters, but they were far more limited.

The decision applies only in New Jersey, but is likely to have considerable impact nationally. The state’s highest court has long been considered a trailblazer in criminal law, and New Jersey has already been a leader in establishing guidelines on how judges should handle such testimony.

Stuart J. Rabner, the court’s chief justice, wrote in a unanimous 134-page decision that the test for reliability of eyewitness testimony, as set out by the United States Supreme Court 34 years ago, should be revised.

The new rules come at a time of increased scrutiny of the eyewitness identification issue among lawyers, law enforcement officers and the scientific community. The opinion noted that task forces have been formed to recommend or put into effect new procedures to improve reliability.

The State Supreme Court’s ruling was seen as significant because it was based in part on an exhaustive study of the scientific research on eyewitness identification, led by a special master, a retired judge, who held hearings and led a review of the literature on the issue. The special master, Geoffrey Gaulkin, estimated that more than 2,000 studies related to the subject had been published since the Supreme Court’s original 1977 decision, the court noted.

“Study after study revealed a troubling lack of reliability in eyewitness identifications,” Chief Justice Rabner wrote. “From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real.

“Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.”

"N.J. Supreme Court rules in favor of tighter restrictions on eyewitness testimony in court," by MaryAnn Spoto in the Newark Star-Ledger.

New Jersey's standards for eyewitness testimony in the courtroom are unreliable and can encourage police misconduct, the state Supreme Court said Wednesday in ordering a revision of investigative and court practices.

The highly anticipated decision is the first formal recognition by the state’s courts of three decades of scientific studies concluding that memory isn’t as reliable as initially believed and that investigators as well as private citizens continue to taint the identification process.

The unanimous 134-page ruling, which relied in part on a study conducted by a retired state appellate judge recommending tighter restrictions on eyewitness testimony, is likely to have far-reaching consequences beyond New Jersey, which has been at the forefront in establishing guidelines for identifying suspects.

“This is a highly significant decision,” said Alan Zegas, a defense attorney from Chatham who represented a defendant in one of the two cases on which the Wednesday’s ruling was based. “The opinion called into question the reliability of eyewitness testimony, which is something that has long been questioned by forensic scientists.

“The issue of reliable identification has been litigated in probably every court across the country,” he added, “but having reached the highest court in New Jersey — which is very highly respected — the two decisions will influence what occurs in other states.”

Although the court kept intact the tradition of lineups and photo arrays of suspects, it ordered judges to hold pretrial hearings if there is evidence of suggestive identification methods. The ruling also directs trial judges to give jurors more instruction on how eyewitness testimony can be influenced.

The AP filing is, "NJ court says witness ID process flawed, orders changes to how such evidence is presented," via the Washington Post.

The ruling is being closely watched because New Jersey has long been at the forefront in identification standards. In 2001, the state became the first to establish police guidelines for lineups designed to prevent mistaken suspect identifications. Other states followed suit.

“There is no question this case will have an effect on every state and federal court in the country,” said Barry Scheck, co-founder of the Innocence Project, a New York legal center specializing in overturning wrongful convictions.

Because New Jersey has already updated guidelines for police on how to conduct lineups and other methods for witness identifications, the ruling will have a greater impact in New Jersey courtrooms.

Just as important as the ruling, Scheck said, was a yearlong review ordered by the state Supreme Court of procedures used by police when they ask witnesses to identify suspects.

Scheck, who presented testimony during the hearings that called for stricter ID standards, called the review the “most extensive examination of social science in the area of eyewitness identification that has been done, using the leading experts around on witness IDs and psychology.”

The review found that a test, created in 1977 and used by courts in 48 states and the federal system, to assess the reliability of witness identification is flawed and inadequate — a finding the court appeared to cement in its ruling Wednesday.

“A vast body of scientific research about human memory has emerged,” wrote Supreme Court Chief Justice Stuart Rabner in a unanimous ruling, which encompassed two cases. “That body of work casts doubt on some commonly held views relating to memory.”

Nationally, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75 percent of the 273 convictions overturned through DNA testing, according to the Innocence Project, and three of the five exoneration cases in New Jersey involved misidentification.

And:

Because New Jersey already had guidelines in place for police on how to conduct eyewitness identifications and line-ups, the ruling will have a more practical effect in changing the courtroom procedure for challenging those IDs.

New Jersey uses what’s called a sequential blind lineup, a widely praised technique designed to reduce mistakes by witnesses when trying to identify suspects. In sequential blind lineups, mug shots are shown one at a time. Detectives displaying the photos don’t know who the suspect is, which means they can’t intentionally or accidentally tip off witnesses.

Some other states and cities — Dallas, Boston, Minneapolis and Denver, along with North Carolina — use sequential blind lineups or some variation. However, most police departments use a so-called six-pack or other traditional method where a witness views several people or photographs at one time.

Some of the new science presented during the hearings showed that witnesses are likely to stay committed to the first mug shot they pick — even if it’s wrong. It also showed how identifying witnesses who identify someone from a different race increases the chance of misidentification and how the presence of a weapon can distract witnesses from remembering details about a perpetrator.

Michelle Sahn writes, "Changes ordered in witness ID cases.  Stems from Monmouth attempted murder conviction," for the Asbury Park Press.

A pair of decisions – issued Wednesday in separate cases stemming from a Monmouth County attempted murder conviction and a Camden County homicide – said that in certain cases, pretrial hearings are necessary to determine whether an eyewitness identification has been tainted by suggestiveness.

The court also said the instructions given to jurors by trial judges about eyewitness testimony should be revised.

“Study after study revealed a troubling lack of reliability in eyewitness identifications,” the court said in its decision on the Camden County case. “From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.”

The court said the current standards do not offer “an adequate measure for reliability or sufficiently deter inappropriate police conduct.”

The justices also said those measures overstate a jury’s ability to “evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”

The Monmouth County case involved an eyewitness identification made outside the presence of police officers.

And:

On Wednesday, in its decision stemming from that Camden reckless manslaughter conviction, the court said if defendants can show some evidence of suggestiveness, which could lead to mistaken identification, then a pretrial hearing should be held.

But in cases where there is no police action involved in the identification process – such as the Ocean Township attempted murder case – defendants must meet a higher burden to trigger a hearing. In those cases, defendants must show there were “highly suggestive circumstances,” not simply suggestive conduct, that could lead to mistaken identification, the court ruled Wednesday.

The next post will contain a news release issued by the Innocence Project.  Related posts are in the eyewitness identification index.

Perry v. New Hampshire - Looking at Eyewitness Identification

Adam Liptak's latest Sidebar column in today's New York Times is, "34 Years Later, Supreme Court Will Revisit Eyewitness IDs."  Here's an extended excerpt from the beginning of the article:

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

The unreliability of eyewitness identification is matched by its power.

“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

The American Psychological Association, in a friend-of-the-court brief in the new Supreme Court case, said “research shows that juries tend to ‘over believe’ eyewitness testimony.”

Experts in the field are pleased that the Supreme Court will again consider the place of eyewitness evidence in the criminal justice system.

“It is exciting that the court has actually taken an eyewitness ID case for the first time in many years,” Professor Garrett said, “even if it might be the wrong case on the wrong issue.” The justices are likely to rule only about which kinds of eyewitness identifications warrant a closer look from judges — just those made after the police used improperly suggestive procedures or all problematic ones?

The larger and more important question of what that closer look should involve is probably not in play in the case, Perry v. New Hampshire, No, 10-8974.

The SCOTUS Blog case file for Perry v. New Hampshire contains all briefing.  Related posts are in the eyewitness identification index. 

Earlier coverage of Brandon Garrett, author of the recently published, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, begins at this link.

Getting It Right

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

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

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

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

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

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

The High Cost of Wrongful Convictions

That's the title of a new report on Illinois exonerations issued today by the Better Government Association and the Center on Wrongful Convictions at Northwestern University.

Wrongful convictions of men and women for violent crimes in Illinois have cost taxpayers $214 million and have imprisoned innocent people for 926 years, according to a seven-month investigation by the Better Government Association and the Center on Wrongful Convictions.

The joint investigation, which tracked exonerations from 1989 through 2010, also determined that while 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 59 other felonies.

"I am astounded," said former U.S. Attorney Thomas Sullivan, who chaired the Capital Punishment Reform Committee established by the Illinois General Assembly. "Those are astounding numbers in terms of total years in prison and dollars spent."

Moreover, the 94 felonies in that crime spree may be just a fraction of the total number of crimes committed by the actual perpetrators. The investigation found that the 85 exonerations left 35 murders, 11 rapes, and two murder-rapes with no identified perpetrators and thus no way to add up their accumulated crimes.

While the BGA/CWC study revealed that almost all of the wrongful convictions were caused by multiple factors, the cause most commonly alleged was government error and misconduct by police, prosecutors, and forensic officials.

The investigation was conducted by the non-profit, non-partisan BGA and the Center on Wrongful Convictions, a non-profit organization, based at Northwestern University School of Law, which has been instrumental in the exoneration of 23 innocent men and women in Illinois.

The investigation’s findings are based on the cases of 83 men and two women who were charged with murder, attempted murder, rape, kidnapping, and armed robbery, and who were exonerated between the years 1989 (chosen because it is the start of the DNA-exoneration era in Illinois) and 2010.

"Wrongful convictions cost Illinois $214 million," is the title of the AP report, via the Munster (IN) Times.

A new investigation has found that the wrongful convictions of 85 people have cost Illinois taxpayers $214 million.

The seven-month investigation by the Chicago-based Better Government Association and the Center on Wrongful Convictions at Northwestern University's law school found the bulk of the cost -- $156 million -- was settlements and judgments paid to those exonerated.

"While the BGA/CWC study revealed that almost all of the wrongful convictions were caused by multiple factors, the cause most commonly alleged was government error and misconduct by police, prosecutors, and forensic officials," the groups said in a report published on the BGA website.

The groups predict the cost of wrongful convictions will rise because 16 civil lawsuits filed by exonerated individuals still need to be settled or go to trial, including some by men who allege torture by officers under a decorated former Chicago police lieutenant.

Former Lt. Jon Burge was convicted last year of federal perjury and obstruction of justice charges for lying about torture. Suspects for decades had alleged that Burge and his officers tortured them into confessing to crimes ranging from armed robbery to murder.

The Chicago News Cooperative post is, "Adding Up the Costs of Wrongful Convictions," by Kari Lydersen.

A few days later, the cashier picked Jerry Miller out of a police lineup. Miller, who had never been arrested before, had been stopped by an officer in the area several days earlier while seeking a job at a doughnut shop. The officer thought he resembled the composite sketch of the rapist.

Miller was convicted of rape, robbery and aggravated kidnapping and spent 25 years in prison. Robert Weeks, the man later linked to the rape by DNA evidence, went on to rape or assault four more women, injure police officers in three other attacks and commit other robberies and beatings over 23 years.

Weeks was eventually convicted of two of the rapes and sentenced to life in prison. Miller received $6.3 million in the settlement of a lawsuit against the city.

Miller’s case is one of 85 analyzed in a sweeping report being released Monday by the Better Government Association and the Center on Wrongful Convictions at Northwestern University School of Law.

The association, a nonprofit watchdog and advocacy group, said the study was the first to document the economic and social costs of the 85 convictions in the state that were overturned between 1989 — the advent of modern DNA testing — and 2010. In all, the study said, those wrongful convictions have cost Illinois taxpayers $214 million, and the amount will probably increase to $300 million once 16 pending lawsuits are settled.

“The public pays in multiple ways” for errors or willful misconduct by law enforcement officials, said John Conroy, a veteran reporter, association senior investigator and co-writer of the report. “The whole community pays when the real criminal is left on the street and goes out and commits other felonies.”

The perpetrators of crimes for which others were convicted went on to commit at least 94 more felonies, including 14 murders and 11 sexual assaults, according to the study. It said 83 men and 2 women spent a total of 926 years behind bars for crimes they did not commit.

And:

In 81 of the 85 cases, the study found what it said was either misconduct or error by state officials — in 66 cases by the police, in 44 by prosecutors and in 29 by forensic specialists.

“These aren’t garbage men; these are highly trained police officers and prosecutors who passed bar exams and took an oath on the Bible to do their jobs,” said Andy Shaw, executive director of the association. “But they didn’t.”

In Miller’s case, his lawyers alleged police misconduct, including suppression of a photo lineup in which the parking garage cashier and another witness may have identified people other than Miller. The lawyers also said the state crime lab’s early DNA testing was erroneous and was contradicted by independent experts.

Related posts are in the cost, exoneration, and report indexes.