The StandDown Texas Project

An Update on HB 215 - Eyewitness ID Reform

HB 215, which was passed by the 82nd Regular Session of the Texas Legislature, is on the governor's desk awaiting final action.

Jordan Smith writes, "False Memories: The Perils of Eyewitness IDs," for the Crime Report.  This lengthy must-read starts with the recent exoneration of Johnny Pinchback in Dallas County:

Pinchback is the 44th Texas inmate to be exonerated based on DNA evidence, and among the vast majority of Texas exonerees who were originally sent to prison based on a faulty eyewitness identification.

"In Texas, flawed identifications are a very serious problem; 86% of the state's...DNA exonerations involved a mistaken eyewitness identification," says Houston Democratic state Sen. Rodney Ellis, a veteran lawmaker with a passion for criminal justice issues who sits on the board of the New York-based Innocence Project.

"While the wrong man was incarcerated, the real perpetrator [is] on the street, free to commit more crimes and harm more victims."

Many lawyers and criminal justice advocates agree that faulty eyewitness IDs are a big problem in Texas.  Yet, as the number of exonerated inmates continues to grow (Pinchback is the second man exonerated this year),  there has been little consensus on how to address the issue.

Texas lawmakers last month passed a measure that Ellis and his allies say will go a long way to reducing the number of mistaken IDs, by requiring police departments across the state to adopt policies that govern live and photo lineups based on best practices gleaned from years of research into human memory.

"I truly believe this bill will increase public safety, reduce wrongful convictions and ultimately reduce the amount of money the state spends to compensate the wrongfully convicted," Ellis wrote in an email to TCR.

But not everyone agrees.

Defense attorney Jeff Blackburn, founder and general counsel for the Innocence Project of Texas, believes the measure (Texas House Bill 215) "standing alone, will accomplish approximately nothing."

In fact, disagreement among advocates about the right way to approach the problem of mistaken IDs― by requiring police departments to adopt procedures, but without including any sanctions for noncompliance―leaves many criminal justice reformers wondering whether the new Texas law will actually do anything to curb the problem.

The problem is not confined to Texas.  Nationally, at least 75% of more than 250 wrongful convictions involves "at least one mistaken eyewitness identification," says Steve Saloom, policy director of the Innocence Project in New York, which fights similar cases across the country. "(We) want to see improved eyewitness ID procedures at all times, everywhere."

Part of the problem of mistaken identifications lies in the fact that many police agencies do not have standardized best-practice policies regarding  the conduct of live and photo lineups that are based on best practices.  There is no reason why such policies can’t be applied, notes Saloom, considering there have been more than three decades of research on the "fallibility of human memory."

Earlier coverage of eyewitness id reform in Texas begins at the link

Dallas Morning News Editorial - The Lege

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

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

And:

Getting it right on criminal justice

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

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

The governor should sign these bills.

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

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

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

Texas Eyewitness ID Reform Heads to Governor's Desk

"Texas Senate OKs bill standardizing eyewitness procedures to help prevent wrongful convictions," is the title of Erin Mulvaney's report in today's Dallas Morning News.

Men who spent time in prison for crimes they didn’t commit have pleaded with lawmakers throughout the legislative session: Improve the criminal justice system so others don’t lose years of their lives to mistakes like they did.

For months, much of that legislation appeared to be stalled, falling under the radar as lawmakers struggled with the budget and other matters. But several measures passed the Senate on Wednesday, aiming to change identification procedures and adopt other provisions sought by criminal justice advocates.

One key bill poised to become law would streamline eyewitness identification procedures by suggesting uniform standards for police departments. About 75 percent of wrongful convictions have been due to mistaken eyewitness identification, including 38 in Texas. A 2008 Justice Project study shows that only 12 percent of police departments in the state have written policies or guidelines for lineups.

Of the 45 Texas exonerations, 22 were Dallas County cases, far more than any other jurisdiction.

“Further delay is justice denied,” said Sen. Rodney Ellis, D-Houston. “We know the problems; we know the solutions. Let’s pass these bills to prevent tragedies from happening in the future.”

Another provision — attached as an amendment to a separate House bill — by Sen. Royce West, D-Dallas, would expand post-conviction DNA testing.

The Senate also passed a comprehensive bill by Ellis to help those wrongfully convicted after they are freed. It would help them obtain health insurance, adopt standards for attorney’s fees and ease the path for receiving state compensation.

The bills the Senate cleared still need approval from the House and may face a long wait behind other bills as the session enters its final 10 days. But Ellis said he was confident that the measures would be palatable to the lower chamber.

But other changes appear caught up in legislative deadlines and lawmakers’ ambivalence. Among them are requirements to record police interrogations for certain violent crimes and to create an Innocence Commission to investigate past cases of wrongful convictions.

The AP report is, "Senate bill aims to reduce wrongful convictions," by Sommer Ingram.  It's via the Fort Worth Star-Telegram.

Law enforcement agencies would be required to standardize eyewitness identification procedures under legislation passed Wednesday by Texas senators in hopes of reducing wrongful convictions in the state.

The bill would require written policies relating to how agencies conduct procedures for photographs and lineups. Agencies would be encouraged to develop blind procedures, where the person administering a lineup doesn't know who the suspect is.

In the state that leads the nation in exonerations based on DNA evidence, lawmakers have been working for years to fine-tune procedures so fewer Texans are put behind bars for crimes they didn't commit.

Eyewitness identification is the leading cause of wrongful convictions, with 80 percent of wrongful convictions involving eyewitness identification error, according to The Innocence Project, a nonprofit working to free wrongfully incarcerated people.

Eyewitness identification reform is the result of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was convicted of a rape he did not commit in 1986 and died in 1999 while serving his 25-year sentence.

"(The bill) enacts a simple best practice to ensure we have reliable evidence in our courtrooms to ensure the conviction of the guilty and the protection of the innocent," said Sen. Rodney Ellis, the bill's sponsor.

The House already has passed an identical bill authored by Rep. Pete Gallego, D-Alpine. The bill now goes to Gov. Rick Perry's desk before it can become law.

Brandi Grissom posts, "Eyewitness ID Reform Headed to Perry's Desk," at the Texas Tribune.

The Senate today approved a measure that would reform the way law enforcement officers conduct identification lineups, a measure that criminal justice advocates hope will mean fewer wrongful convictions in the future. Under HB 215, police across the state would be required to adopt best practices for photo lineups and live lineups.

"It enacts a simple best practice to ensure we have reliable evidence in our courtrooms to ensure the conviction of the guilty and the protection of the innocent," said state Sen. Rodney Ellis, D-Houston.

In Texas, 38 of the 44 exonerees who were cleared based on DNA evidence were initially convicted with erroneous eyewitness testimony, Ellis said. Nationwide, about 75 percent of the 266 exonerations were a result of eyewitness mistakes.

The Tim Cole Advisory Panel recommended changes to eyewitness identification practices in police departments. And a Justice Project report from November 2008 showed that only 12 percent of police departments in Texas even have written policies or guidelines for conducting lineups.

Dave Mann updated the post, "Senate Could Pass Eyewitness ID Reform on Wednesday," at the Texas Observer.

Sen. Rodney Ellis just passed the eyewitness reform bill through the Senate without objection. It took all of three minutes. Bill headed to the governor.

And:

Under the legislation, the Bill Blackwood Law Enforcement Management Institute of Texas would develop a set of best practices to prevent flawed lineup procedures. Policy experts have done extensive study of this area. It’s no secret how lineups can be rigged or how to set up a good one. Texas law enforcement agencies would be strongly encouraged—though not required—to follow these procedures. And if they don’t follow the best practices, they may have to reveal that failure at trial.

There was fresh evidence last week of the need for these reforms. Johnny Pinchback was freed from prison after DNA tests showed he wasn’t the man who sexually assaulted two teenage girls in Dallas in 1984. Both victims misidentified Pinchback as their attacker from a photo spread. Pinchback would spend nearly 27 years in prison for a crime he didn’t commit, while the actual rapist went free.

And, of course, there’s the most famous case—Tim Cole’s. Texas has exonerated dozens of men in recent years, and several of them have offered moving testimony this session in support of the bill. But it was Cole’s tragic story—his wrongful conviction in Lubbock and subsequent death in prison before he could be exonerated—that perhaps more than any other has helped spur recent reforms to the criminal justice system. HB 215 might prevent others from suffering Cole’s and Pinchback’s fates.

Earlier coverage of the legislation begins at the link.  More on House Bill215, including the text as passed, at the link.

At the Texas Legislature

"Ellis Urges Lawmakers to Act on Innocence Bills," is the title of Aziza Musa's post at the Texas Tribune.

Charles Chatman spent 27 years in prison for rape after a woman misidentified him in a photo lineup. After DNA testing helped clear his name, a state court ordered his release in 2008. On Tuesday, he and other former prisoners who have been exonerated joined state Sen. Rodney Ellis, D-Houston, in urging House lawmakers to act quickly to pass bills that could help put an end to wrongful convictions. House committees have until May 21 to take testimony on Senate bills. 

"The clock is ticking," said Ellis, who has filed two innocence bills this session, both of which passed the Senate in March but have not made it out of the House Criminal Jurisprudence Committee. "There are less than three weeks left in this session, so further delay is justice denied."

Rep. Pete Gallego, D-Alpine, the chairman of the House Jurisprudence Committee, said he's not purposely holding up any legislation; he said some of his own bills haven't even made it out of the committee. He argued getting bills voted out in the 31-member Senate is much easier than in the 150-member House, particularly given how tense deliberations are in the lower chamber these days.

"Even being able to navigate them out of calendars" is a feat, Gallego said. "Relationships are fragile; tensions are high."

One of Ellis' bills would require police departments to adopt a written eyewitness identification procedure; the other would allow post-conviction DNA testing with the latest technology if DNA samples were not previously obtained from the prisoner.

The state of Texas has had more wrongful convictions — at least 44 have been identified — than any other state, and about 86 percent of them are due to misidentification, Ellis said. He filed a similar bill last session, but it stalled behind other legislation in the House. A similar House eyewitness ID bill was heard in the Senate Criminal Justice Committee late Tuesday.

And:

Cory Sessions, policy director for the Innocence Project of Texas, accused legislators of playing political games and demanded that they pass the innocence bills. Sessions is the brother of Timothy Cole, who was posthumously exonerated for a rape he was convicted of in 1986. Cole died of an asthma attack in 1999 while serving his sentence.

Earlier coverage of the Texas legislation begins at the link. The Timothy Cole Advisory Panel on Wrongful Convictions made a series of legislative recommendations dealing with root causes of wrongful convictions.

Texas Opinion Roundup

"The best eyewitness is an accurate one," is the title of a Fort Worth Star-Telegram editorial.

It's a common perception that an eyewitness to a crime surely provides the best evidence. It's also a misperception.

Memory can be influenced by many factors, and flaws can be reinforced so that someone becomes convinced they saw something quite different from what they actually did.

That's significant because, of more than 44 people in Texas who've been proved innocent through DNA testing, 85 percent were convicted partly or mainly because of eyewitness identifications.

Nationally, about three-quarters of the 266 DNA exonerations involved convictions based on eyewitness IDs that proved to be wrong, according to the Innocence Project. The Texas Legislature this year has an opportunity to start correcting this clear flaw in the criminal justice system.

The state Senate on March 16 approved SB121, which would require police departments to develop written policies for handling photo and live lineups. It also would direct the Blackwood Law Enforcement Management Institute at Sam Houston State University to develop model standards and training materials for improving procedures.

The House on March 31 approved HB215, which was amended to include the same language as the Senate version.

Efforts to pass the legislation died in the 2009 session, but there doesn't appear to be opposition this time.

And:

"Eyewitness reform is a very simple, straightforward change to help create a smarter, more just system," Sen. Rodney Ellis, D-Houston, said after the Senate bill passed.

He's right. Getting prosecutions and convictions right the first time punishes the guilty, protects the innocent, saves taxpayers money and builds trust in the system.

Earlier coverage of the eyewitness id reform legislation is at the post; related posts are in the eyewitness identification category.

Lisa Graybill, Legal Director of the ACLU of Texas posts, "Review of unfair death penalty sentencing as important as innocence," at the Dallas Morning News Death Penalty blog.  Here are excerpts from this must-read:

Though death sentences and executions have declined in recent years in Texas, the state remains the national leader in executions. The Dallas County District Attorney's Office, under Craig Watkins's leadership, should be commended for taking a serious look at the questionable procedures and shoddy evidence routinely used in the past that have plagued former administrations and led to scores of wrongful convictions. But Dallas County still remains a leader among Texas counties in seeking and receiving death sentences and is on track to replace Harris County as the infamous "capital of capital punishment." Its recent handling of decades-old capital cases, including the resentencing trials of Ronald Chambers and Fernando Garcia and the retrial of Jonathan Bruce Reed now taking place, reveal serious shortcomings in its consideration of capital cases and decisions to seek death and its total unwillingness to review the unfair sentencing practices it inherited.

The case of Ronald Chambers, who was once dubbed the "Dean of Death Row" and was the longest serving inmate on Texas' death row at the time of his death, provides a telling example. Mr. Chambers, an African-American man, passed away last November in the Dallas County Jail awaiting his fourth capital sentencing trial for the 1975 murder of Michael McMahan, a white man. He had been tried three times before, in 1975, 1985, and 1992. Following each trial, his case was reversed due to clear, egregious constitutional errors, most recently in 2007 because his jury in his third trial had no mechanism to give meaningful consideration to his mitigating evidence.

The State's own misconduct and refusal to concede these errors or reform its own troubling practices over the 35-plus year history of the case resulted in years of needless delay in Mr. Chambers' appeals. Though the State was willing to spend enormous time and resources over decades fighting his appeals, it was totally unwilling to acknowledge that Mr. Chambers was a model prisoner who would not be a future danger and thus was ineligible for the death penalty under Texas law.

And:

Craig Watkins has also chosen to continue to pursue death against another capital defendant who was, like Mr. Chambers, granted a resentencing trial decades after his conviction because his jury did not have an adequate vehicle to give meaningful consideration to his mitigating evidence. Fernando Garcia was first convicted and sentenced to death in 1989. He, too, faces the very same challenges as Mr. Chambers and Mr. Reed in investigating and presenting mitigating evidence over 20 years after his conviction and sentence of death. Mr. Garcia has offered to accept a plea of stacked life sentences ensuring that he will never leave prison if the State agrees to stop seeking death against him. Against this contaminated historical backdrop, Craig Watkins should accept the offer.

Since his election in 2006, District Attorney Craig Watkins has made a very public commitment to reform. He deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past. In seeking death sentences against Mr. Chambers, Mr. Reed, and Mr. Garcia, however, he has not distanced himself from the misconduct left at his door by former administrations. A true commitment to justice and integrity requires not only taking a look at the sad legacy of wrongful convictions, but bringing the same level of scrutiny to the unfair and troubled sentencing practices of the past. He had the opportunity to do so in Mr. Chambers' case, but of course, for Mr. Chambers it is now too late. However, Mr. Watkins still has an opportunity to consider the tainted legacy and extend his promise of reform to sentencing in other capital cases, starting with the retrial of Jonathan Bruce Reed and the resentencing trial of Fernando Garcia. He should do so.

Related posts are in the future dangerousness and sentencing indexes; more on Ronald Chambers, at the link.

 

Notes From the Texas Legislature

"Bill to reduce wrongful convictions passes House," is the title of the AP report by Jay Root, via the Fort Worth Star-Telegram.  The legislation is HB 215.

The Texas House, aiming to reduce the number of wrongful convictions, approved legislation Wednesday that would require law enforcement agencies to begin standardizing the way eyewitnesses identify criminal suspects.

The unanimously approved bill would require police to adopt written policies to determine how they conduct photographic or live lineups. Agencies would be encouraged, but not required, to develop blind procedures whereby the person administering a live lineup doesn't know who the suspect is. Judges still would be given wide discretion on what evidence to admit in court.

Rep. Pete Gallego, D-Alpine, said he sponsored the bill to cut down on the leading cause of wrongful convictions. Misidentification of suspects by eyewitnesses is responsible for 75 percent of the convictions overturned by DNA evidence, according to The Innocence Project, a non-profit working to free wrongfully incarcerated people.

"What it attempts to do is standardize how these things are done, and provide model polices, because a lot of people don't know how to do it, and to proactively look for ways to do a better job at lineups," Gallego said.

And:

The bill grows out of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was wrongly convicted of a rape he did not commit in 1986 and died of complications from asthma in 1999 while serving his 25-year sentence.

The legislation faces another perfunctory vote in the House and is expected to move to the Senate as early as Thursday. If passed, it would apply to lineups conducted after Sept. 1, 2012.

The Austin American-Statesman's Postcard blog has, "Death-penalty trigger increase gets OK," posted by Mike Ward.

Legislation that would raise the age from 6 to 10 for which a child killer can be charged with the death penalty was approved this morning by the Texas Senate.

Senate Bill 377 by state Sen. Joan Huffman, R-Houston, would bring Texas closer in line with other states, most of which have age 12 as the age-based trigger for capital murder charges.

If victims are under that age, a murderer can be more readily charged with capital murder.

For several years, Texas has had the youngest age — at 6.

To be clear, this is a death penalty expansion bill. Currently, a person can be charged with capital murder if the victim is six years of age or younger.  This expands death penalty eligibility to killing a child age 10 or below.

In her Houston Chronicle column, Peggy Fikac writes, "Confirmation process may favor one Bradley."

One Bradley’s loss may be another one’s gain.

It looks like speak-his-mind prosecutor John Bradley’s appointment as head of the Forensic Science Commission will end with this legislative session.

But Bradley’s brother, the equally blunt David Bradley, may benefit if Senate Democrats also block State Board of Education Chair Gail Lowe’s appointment.

What’s more, if Gov. Rick Perry were to name David Bradley to replace Lowe after this regular session ends, senators might not get a chance to weigh in on the appointment until the 2013 regular session (barring a special session).

Perry’s appointments of Lowe and John Bradley are in trouble because a two-thirds Senate vote is needed to confirm nominees. There are 19 Senate Republicans and 12 Democrats.

A couple of Republicans have joined Democrats in opposing John Bradley. Senate Nominations Chair Bob Deuell, R-Greenville, said all the Republicans would vote for Lowe. But that’s not enough. Without a Senate vote, the appointees’ terms end when the session does in May.

David Bradley, a State Board of Education member from Beaumont, is a possible Lowe replacement. He’s a leader of conservatives who’ve made controversial social studies changes that even a conservative group said exaggerates biblical influence. Bradley once tried to insert President Barack Obama’s middle name, Hussein, in a reference to him in history standards.

Earlier coverage of the Texas eyewitness identification legislation and the John Bradley nomination, at the links.

An Update on the Troy Davis Case

"High court rejects appeal from Troy Davis," is the AP report via the Atlanta Journal-Constitution.

The Supreme Court has rejected an appeal from Georgia death row inmate Troy Davis, clearing the way for the state to resume planning for Davis' execution.

The justices on Monday refused to order the federal appeals court in Atlanta to examine Davis' case and they declined to do so themselves. In 2009, the high court ordered a federal judge to examine evidence Davis said would show he was innocent of the 1989 killing for which he has been sentenced to death.

But the judge decided last year that Davis had failed to clear his name.

At the moment, executions are on hold in Georgia after federal agents seized the state's supply of a key lethal injection drug.

The Supreme Court Order List is available in Adobe .pdf format.

Amnesty International USA has issued a statement, "Amnesty International Deeply Disappointed by Supreme Court’s Decision Rejecting Troy Davis Appeal."

Laura Moye, Amnesty International USA (AIUSA) death penalty abolition campaign director, issued the following statement in response to the U.S. Supreme Court’s decision today to reject Troy Davis’ appeal of the federal district court’s ruling that Davis did not prove his innocence:

“Amnesty International is extremely disappointed that the Supreme Court rejected Troy Davis’ appeal. It appears that the justice system is comfortable allowing someone to be executed when there are lingering doubts about guilt in the case. No objective person could confidently determine that Davis is guilty beyond a reasonable doubt from the evidence available now in his case. That leaves an ominous cloud hanging over an irreversible sentence such as the death penalty.

“Because there was no physical evidence linking Davis to the murder, nor was there physical evidence exonerating him, the case rested on a group of witnesses whose credibility was readily accepted for conviction, but so easily rejected in the appeals process.

“The Georgia Board of Pardons and Paroles, as the final fail-safe, has the opportunity to commute his sentence to life and prevent the possibility of executing an innocent person.”

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

New Book

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related posts are in the books index.

Odessa American Editorial on Eyewitness ID Procedures

"Eyewitness standards a good idea," is the editorial in today's Odessa American.  It's a reprint of last week's Austin American-Statesman editorial.

We’d like to think the legislation would glide as easily through the House. That has proved difficult in previous years as it lacked a Republican champion and was seen by too many as being soft on crime.

Ellis has tried every session since 2005 to pass the bill. In 2009, it died before getting to the House floor. It’s different this session; the bill has garnered strategic support of veteran Dallas Republican Will Hartnett, who told The Dallas Morning News he plans to add his name to a companion bill in the House. That’s terrific. Rep. Pete Gallego, D-Alpine, is the lead sponsor.

“It’s true that Republican candidates often campaign on being tough on crime, and anything that could be perceived as softening law enforcement with regard to criminals can be subject to scrutiny in Republican circles,” Hartnett told the Morning News. “But my job in Austin is to do the best thing for justice, not necessarily what is politically best.”
He is right.

The national Innocence Project reports that incorrect witness identifications are the most common element in all wrongful convictions later overturned by DNA evidence. About 75 percent of the 266 DNA exonerations in the country were because of faulty eyewitness evidence, the group reports.

And:

Continuing with the same faulty system that essentially allows police departments to conduct shoddy lineups hurts everyone.

Such a system denies victims the justice they deserve, robs innocent people of their freedom and permits the real criminals to escape punishment and continue committing crimes against society.

Earlier coverage of the reform measure begins at the link; related posts are in the eyewitness identification category.

Waco's KXXV-TV reports, "Waco Police department model for bill to cut down wrongful convictions."  It's by Mark Wiggins.  Here's an extended excerpt:

The most common method of getting an identification from a witness has long been the "line-up," where a witness is asked to point out the suspect from a battery of side-by-side photos of various individuals.

Research into the way humans remember faces and visual details is raising questions over how effective such methods are at identifying the correct subject and not an innocent person.

Dr. Charles Weaver is a Professor of Psychology and Neuroscience at Baylor University whose expert testimony has been used to analyze eyewitness identification for over a decade.  Weaver says part of the problem with traditional lineups is that witnesses may be unintentionally influenced by factors other than their memory.

"We really store just a few bits and pieces of what happened, and then reconstruct a lot of the details," says Weaver.  "It's in the reconstruction that often times we'll get things wrong."

In 1999, the National Institute of Justice issued a study addressing that very problem, and listed a model set of parameters for conducting a more reliable lineup.  After a series of high-profile acquittals in Dallas that resulted from DNA evidence, many police departments updated their policies for photo line-ups.

The model policy is also the same one practiced by the Waco Police Department.  In order to minimize unintended influence over a witness, detectives unfamiliar with the case are assigned to conduct a "sequential presentation" of images. 

Before the presentation, witnesses are informed that the suspect may or may not be among the photos shown.  Photos are then shown one at a time, as opposed to all at once, to discourage making subconscious comparisons that aren't based on memory.

Waco Police spokesman Steve Anderson says the sequential presentation process raises the level of certainty that a witness must have before identifying a person as a criminal.

"It may be harder to pick out the person, but the last thing you want is to put an innocent person behind bars," says Anderson.

A new bill in the Texas Legislature would require every law enforcement agency in Texas to codify their eyewitness identification process.  Departments would have to either adapt a model like Waco's, or one that conforms to standards determined by the Bill Blackwood Law Enforcement Management Institute of Texas in Huntsville.

Eyewitness ID Reform Active in Florida

"Revamped photo lineup rules aim to end ID errors in Florida,"  is the report by John Torres and Jim Ash for Florida Today.

The kind of photo lineup that was used to send Crosley Green to death row in 1991 is exactly the kind of law enforcement tactic the Florida Innocence Commission would like to see eliminated.

The commission, which studies wrongful convictions, voted Monday to endorse a controversial bill that would set minimum standards for police lineups in the future.

The bill by Sen. Joe Negron, a commission member and powerful Republican from Port St. Lucie, would require police to use a third party unfamiliar with the case to administer photo lineups.

"I think it's our job to boldly transform how we do eyewitness identifications in the state of Florida," Negron said.

Green, 53, was arrested in 1989 and charged in the kidnapping and murder of Chip Flynn in Mims. He has claimed his innocence for more than 20 years and is seeking a new trial. He originally was sentenced to death but later was re-sentenced to life in prison. Green's trial attorney, Rob Parker, now a prosecutor, objected to the photo lineup, which he said was unfairly presented.

Green's photo was significantly darker and smaller than the other photos and was located in the middle of the top row.

Keith Harrison, a Washington D.C-based attorney working to win Green a new trial, said the photo lineup was akin to placing a bull's eye over Green's face.

The new photo lineup proposal also would require police to tell a witness that the lineup may or may not include a photo of the actual suspect. The idea is to reach a "double blind" standard that would prevent police from coaching the witness, subtly or not.

The commission voted 12-8 to endorse Negron's bill. Among those voting in favor were Leon CountyPublic Defender Nancy Daniels, Brevard Circuit Judge J. Preston Silvernail and Orange Chief Circuit Judge Belvin Perry, the commission chairman. The panel only has the power to recommend legislation, but its endorsement carries considerable weight.

The Orlando Sentinel reports, "Florida Innocence Commission to cops: Fix photo-lineup problems."  It's written by Rene Stutzman.

Florida's Innocence Commission on Monday made its first big decision: It voted to put its weight behind a bill that would force police agencies to make photo lineups more error-proof.

For a government meeting, it was a day of wild swings.

Would the commission order cops to make specific changes or let them follow a set of guidelines that they had drafted and were free to ignore?

Early in the day, commissioners were on track to adopt the mandates. Just before lunch, though, they changed direction, and then reversed course again in the afternoon when state Sen. Joe Negron, R-Palm Beach, walked into the room.

Last month, Negron introduced a bill that would require cops to make drastic changes in the way they conduct lineups. Its most controversial element: a requirement that photo lineups be shown to witnesses by someone who doesn't know which one is the suspect.

"This commission was set up to do something bold," Negron told commissioners. "I think it's our job to totally transform the way we do lineups in this state."

He gave a stirring firsthand account of defending a man who had been falsely convicted.

"There is a time and a place for everything," Negron said. "I would rather stop convicting innocent people by July of this year."

Commissioners then voted 12-8 in favor of his plan.

It was a surprising and bitter defeat for Florida law-enforcement agencies, which had worked for months to put together a hurry-up set of their own reforms — none of them mandatory but many similar to what Negron favors.

Earlier coverage of the Florida Innocence Commission begins at the link.  Related posts are in the eyewitness identification category.

Eyewitness ID Reform Moving Forward in Texas Legislature

Rick Casey's latest Houston Chronicle column is, "Eyewitness bill 'a good start,' but ..."

Brandon Garrett, a professor at the University of Virginia's School of Law, has a two-part message for Houston State Sen. Rodney Ellis.

The first part is that Ellis has made "a good start" with his bill to cut down the number of wrongful convictions in Texas by improving the way police obtain witness identifications. The bill passed the Senate Wednesday 30-0.

The second part is that unless we're careful, Ellis' bill could make things worse.

Garrett's book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, will be published next month by Harvard University Press. Garrett spent more than four years poring over the trial transcripts and other documents relating to the first 250 convicts cleared by DNA evidence. He wanted to find out what went wrong.

By far the greatest error — in 190 of the 250 cases - was misidentification of the suspect by eyewitnesses. The most important thing to understand about eyewitnesses, says Garrett, is that the memory is not only fallible but, more importantly, malleable.

Garrett was able to obtain trial transcripts in 161 of the 190 cases that involved erroneous eyewitness identifications. In 125 of those, or 78 percent, "there was evidence that police contaminated the eyewitness identifications."

In virtually all the cases, witnesses testified at trial that they were certain of their identifications.

But in 92 cases, more than half, they had expressed doubt at the time they first made the identifications.

Garrett says that in the vast majority of cases police don't intentionally "contaminate" the identifications.

"Sometimes you're trying to encourage rape victims who are reluctant to look at a lineup," he said this week. "Police may have no idea that they are making statements that can increase the confidence of a witness even if they are wrong."

And:

Ellis has been trying to pass this reform for years, and his bill is weakened by compromises sought by police and prosecutors.

The Legislature should pass it, and look closely at it again in two years.

"Establish eyewitness standards," is the Austin American-Statesman editorial.  It appeared in the Friday edition.

We certainly understand why Senate Bill 121, which would set statewide standards for eyewitness identification procedures in criminal investigations, is getting broad and bipartisan support. It would put in place standards to guide police departments in photo lineups or in-person lineups to make sure that those who committed crimes are held accountable.

In other words, the legislation would reduce the chances of witnesses fingering innocent people who are subsequently convicted on such evidence and sent to prison. That is a good thing that we all should get behind. The Texas Senate did that this week, voting unanimously to approve the legislation authored by Sen. Rodney Ellis, D-Houston. The bill was co-authored by Sen. John Carona, R-Dallas.

The bill was negotiated or endorsed by district attorneys, defense lawyers, members of the Texas Supreme Court, the Texas Court of Criminal Appeals, police departments and Gov. Rick Perry's office.

And:

At the Texas Legislature this month, we witnessed the painful stories of wrongly convicted defendants who endured prison for decades because witnesses falsely identified them as the culprits. Texas has 44 DNA exonerations, and 38 of those are largely or exclusively because of incorrect witness identifications.

That happened to Cornelius Dupree Jr., who was imprisoned at age 19 and spent 30 years in Texas' toughest prisons for a rape and robbery he didn't commit. He was ultimately cleared and released based on DNA tests. Had Dallas County not preserved evidence, Dupree still would be behind bars.

He urged Texas senators to approve the legislation, as did Cory Session, the brother of Timothy Cole, who served 13 years in prison for a rape he didn't commit and died in jail before he could be exonerated.

Session told lawmakers the bill would have prevented his brother from being incarcerated.

Earlier coverage of the legislation begins at the link.

More on Tim Cole's wrongful conviction and posthumous exoneration, here.  Earlier coverage of the Task Force on Indigent Defense, Texas Criminal Justice Integrity Unit, and the Timothy Cole Advisory Panel on Wrongful Convictions, at the links.

Eyewitness ID Reform Measure Passes House Committee

"Eyewitness ID legislation aims to prevent conviction of the innocent in Texas," is the Dallas Morning News report written by Erin Mulvaney.

A bill meant to streamline eyewitness identification procedures, approved Tuesday by a House committee, would bring the state a step closer to fixing a key problem with the criminal justice system, advocates said.

Under the legislation, police departments would have to adopt uniform standards for eyewitness identification.

The House Criminal Jurisprudence Committee approved the bill unanimously after hearing from criminal justice officials and emotional testimony from half a dozen exonerees from Dallas, who spent years in prison for crimes they did not commit. The measure will now go to the full House for consideration.

“This bill has special importance for Dallas County, has tremendous public interest and support,” said Rep. Will Hartnett, R-Dallas. “It deserves a head start to get it passed and out of the House.”

The exonerees made emotional appeals to lawmakers. James Giles, a Dallas man exonerated in 2007, told the lawmakers that he was picked out of a lineup and accused of rape, although he had never seen the victim before. He spent 10 years in prison and 14 years as a registered sex offender on parole.

“[The victim] picked me out of all the guys in the photo book she was given,” Giles said. “The system will work, but it takes one person to say what is right and, believe you me, everyone will follow.”

Policies for gathering eyewitness identification would have to be based on scientific research on memory, along with relevant policies and guidelines developed by the federal government and other states. Policies would have to address the selection of photographs, lineup filler photographs or participants and instruction given to witnesses. The Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University would create a model policy to be distributed to local law enforcement agencies.

Texas has had 42 exonerations, 38 in cases that had been based on false eyewitness identification. The tally accelerated when the Legislature created a clear pathway for requesting DNA testing in 2001, said Edwin Colfax, a project manager at the Task Force on Indigent Defense.

Four states — Ohio , North Carolina , New Jersey and Wisconsin — have implemented legislation similar to the eyewitness identification bill.

Criminal Court of Appeals Judge Barbara Hervey, a member of an expert panel that was commissioned by the Legislature in 2009 to study the causes of wrongful convictions and make recommendations, called the bill a great step forward.

And:

Cory Session, the brother of Timothy Cole, who died in prison in 1999 and was posthumously exonerated, and for whom the panel studying wrongful convictions was named, warned that without the bill, the criminal justice system will continue to make too many mistakes.

“It is time for us to move forward and get out of the dark ages with wrongful convictions,” said Session, a policy director for the Texas Innocence Project.

He suggested enforcing a procedure used by the Dallas Police Department for identification — a sequential, double-blind lineup. In this process, the administrator does not know which participant is the suspect and presents suspects to a witness one by one.

The method has been proved more effective in other states, Session said.

The committee also discussed two other bills related to preventing convictions of the innocent. One would require law enforcement officers to record interrogations for violent, serious crimes. The other addresses writs of habeas corpus, which order that people in custody be brought before a court. The proposed measure would extend the limit for the writs filed under certain circumstances.

The AP report, by Sommer Ingram is,  "Bill to reduce wrong convictions passes committee."  It's via the Houston Chronicle.

A Texas House committee advanced legislation Tuesday that would require law enforcement agencies to standardize the way eyewitnesses identify suspects in an effort to reduce the number of wrongful convictions.

The House Criminal Jurisprudence Committee voted to require agencies to adopt a written policy based on a model or create something similar to determine how they conduct photographic or live lineups. Currently only 12 percent of agencies in the state have written policies.

To avoid unintentionally influencing the witness, the person administering the lineup would be prohibited from knowing who the suspect in the case is. The procedures would be written based on reliable research on eyewitness memory and relevant policies developed by other governments and agencies.

Advocates say the issue is one of the most important in criminal justice, and lawmakers have long seen a need for reform in this area of the system. Texas leads the nation in the most convicts exonerated by DNA evidence, with more than 40 people released from prison since 1994.

Seven men who spent decades imprisoned for crimes they didn't commit testified before the committee in support of the legislation. They said they wouldn't have lost years of their lives behind bars if the lineup process had been conducted differently.

And:

The bill's author, Rep. Pete Gallego, D-Alpine, said mistaken eyewitness identification is the leading cause of wrongful convictions and amending the identification process is a crucial step to fixing the problem. Ohio, North Carolina, New Jersey and Wisconsin have implemented similar reform legislation.

"The idea is to establish a fairly uniform way of doing things across the state, whether in a small town or a large county, so we have some understanding of this process," Gallego said.

Gallego said if an agency doesn't comply with the law, its non-compliance could be acceptable as evidence in court but does not bar admission of the eyewitness identification testimony.

The bill grows out of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was wrongly convicted of a rape he did not commit in 1986 and died of complications from asthma in 1999 while serving his 25-year sentence.

The article also notes that Governor Perry has pledged to sign the bill.

Details of HB 215 are available from Texas Legislature Online.

The other two bills considered by the Committee, also recommended by the Timothy Cole Advisory Panel on Wrongful Convictions, are HB 219 and HB 220.  Both bills are also sponsored by Gallego.  HB 219 deals with electronic recording and admissibility of certain custodial interrogations.  HB 220 deals is procedures for applications for writs of habeas corpus based on relevant scientific evidence.  Those two bills remain in the Committee, but are likely to be voted out at its next meeting.

Earlier coverage begins at the link. More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.  Earlier coverage of the Task Force on Indigent Defense, Texas Criminal Justice Integrity Unit, and the Timothy Cole Advisory Panel on Wrongful Convictions, at the links.

Rodney Ellis' Legislative Agenda - Preventing Wrongful Convictions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cornelius Dupree - Texas' Newest Exoneree

The updated AP report is, "Texan declared innocent after 30 years in prison," written by Jeff Carlton.

A Texas man who served 30 years in prison for a rape and robbery he did not commit had his conviction overturned Tuesday after having served 30 years in prison, more time than any other inmate subsequently exonerated by DNA evidence in his state.

Cornelius Dupree Jr., 51, was formally cleared of the aggravated robbery with a deadly weapon conviction that had kept him behind bars from December 1979 until July of 2010. He served 30 years of his 75-year sentence before making parole in July. About a week later, DNA test results came back proving his innocence.

"It's a joy to be free again," Dupree said after the ruling in a Dallas courtroom.

Dupree is the longest-serving inmate cleared by DNA evidence in Texas, which has freed 41 wrongly convicted inmates through DNA since 2001 — more than any other state.

Nationally, only two others who have been exonerated by DNA evidence spent more time in prison, according to the Innocence Project, a New York-based legal center representing Dupree that specializes in wrongful conviction cases. James Bain was wrongly imprisoned for 35 years in Florida, and Lawrence McKinney spent more than 31 years in a Tennessee prison.

The DNA testing in Dupree's case also excluded a second defendant, Anthony Massingill, who was subsequently convicted in another sexual assault case and sentenced to life in prison. Massingill remains in prison but maintains his innocence. DNA testing in that second case is ongoing.

Sitting on the courtroom benches were at least six other Texas men wrongly imprisoned but later cleared by either DNA testing or other means. The men have made a habit of showing up together every time a new man is declared innocent.

And:

Dupree was convicted and spent the next three decades appealing. The Court of Criminal Appeals turned him down three times.

Jennifer Emily writes, "Dallas County man cleared in 1979 rape, robbery will be Texas' longest-serving exoneree, for the Dallas Morning News.

Two men convicted in connection with a 1979 Dallas rape, robbery and abduction have been cleared of the crime through DNA testing. They have served about three decades in prison – more than any other Texas inmate cleared by DNA testing.

The exonerations are also the first where DNA testing has been used in Dallas County to prove men innocent of crimes that occurred as far back as the 1970s. Until recently, authorities thought that evidence had only been preserved by the county's crime lab since 1981, said Nina Morrison of the Innocence Project in New York. The discovery that other testable evidence exists could mean Dallas County's national record number of 20 exonerations since 2001 will keep growing.

"It may provide grounds to go back and look at other evidence from older cases where we thought there was nothing to test," Morrison said. "It's really a miracle it was saved."

Cornelius Dupree Jr., 51, is expected to be exonerated today in a Dallas County courtroom. He is on parole after having been released in July. He spent more than 30 years in prison.

His exoneration, the 21st, will be the first in Dallas County since May 2009, although three other men have been cleared since then with other evidence.

The second man, Anthony Ray Massingill, 49, will remain behind bars for now while authorities search for evidence to test in a second rape for which he is serving a life sentence.

Neither Dupree nor Massingill could be reached for comment. They were wrongly convicted in a Nov. 23, 1979, attack on a 26-year-old woman who was confronted at gunpoint along with a male friend after they stopped for cigarettes and to use a pay phone at a liquor store on Dolphin Road, north of Interstate 30.

The Innocence Project news release is titled, "Houston Man To Be Declared Innocent After Serving 30 Years For a Dallas Rape and Robbery He Didn’t Commit.  Innocence Project Urges State to Pass Legislation that Would Help Prevent Misidentification."  Case documents are linked in the release.

“Cornelius Dupree spent the prime of his life behind bars because of mistaken identification that probably would have been avoided if  the best practices now used in Dallas had been employed,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “Yet most counties in Texas do not have these best practices in place. This must be remedied in the next legislative session by the adoption of an eyewitness identification reform bill that had the votes needed for passage last session but not enough time to get enacted. Let us never forget that, as in the heartbreaking case of Cornelius Dupree, a staggering 75% of wrongful convictions of people later cleared by DNA evidence resulted from misidentifications.”

Related posts are in the exoneration index.

 

Eric Zorn on the Illinois Death Penalty

The Chicago Tribune columnist has a lengthy post at his Trib blog, "Old case sheds new light on the death penalty debate."

A man posing as a neighbor needing to borrow a plunger raped a 29-year-old woman in her living room at the Maple Tree Apartments complex in west suburban Woodridge.

Police quickly arrested and charged Marcus Lyons, also 29, and a resident of the complex. The victim identified Lyons in a police lineup and testified at trial that she had no doubt he was her assailant.

Lyons, a U.S. Navy reservist with no criminal record, was convicted and spent three years in prison. But after his release he continued to fight to clear his name. Ultimately, a new round of DNA testing not only excluded him as the source of genetic material found on the victim's undergarments, but implicated an employee at a nearby gas station whose girlfriend lived at the apartment complex.

That man was in the state's DNA database due to his participation in an unrelated crime. But he will not be charged because the rape took place 23 years ago — in November of 1987 — and the statute of limitations on sexual assault charges has expired.

Why bring this up now? Because it illustrates three grave flaws in the justice system that ought to give pause to Illinois lawmakers who are planning to vote to keep the death penalty on the books when pending abolition legislation comes up in the General Assembly.

First, it shows the fallibility of eyewitness testimony, evidence that jurors often find overwhelmingly persuasive. This was no shadowy figure momentarily glimpsed in silhouette. The victim testified she saw Marcus Lyons in well-lighted conditions from "a foot, foot and a half away" before the attack.

Second, it shows how police and prosecutors can botch a relatively straightforward case. Here, the victim got dressed immediately after her assailant fled in order to secure her apartment and gather her thoughts. She then got undressed to shower and vigorously scrub herself clean, after which she put on fresh underwear for a trip to the hospital.

And:

Which leads to the third reason I bring up this story: It shows the difficulty prosecutors have admitting mistakes or criticizing shabby police work that results in gross miscarriages of justice.

Earlier coverage from Illinois begins with this post noting a Tribune OpEd calling for repeal of the state's death penalty.  The House legislative sponsor has said that she is one short vote for House passage.  The General Assembly will return for a final lame-duck session in January.

CCA Rules Former Inmate Innocent

"Court: Texas man freed after 27 years is innocent," is Juan Lozano's AP report, via the Washington Post.

Texas' highest criminal court formally ruled Wednesday that a Houston man who was freed earlier this year after spending 27 years in prison for a rape he did not commit is innocent.

In its brief opinion, the Texas Court of Criminal Appeals agreed with a lower court's recommendation that Michael Anthony Green be ruled innocent and that his conviction be set aside.

"After reading it, I almost cried. I was so happy," Green said.

The 44-year-old was released from prison in July after the Harris County District Attorney's Office reopened his case and new DNA tests it commissioned showed he did not commit the 1983 rape of a woman who had been abducted. Green was freed on a $500 bond while he waited for the ruling on his innocence.

He said that after being released, he had tried not to think about when the decision might come. But each week, he said, he kept telling himself, "Let it be this one, let it be this one."

Green, who now works as a paralegal for his attorney, Bob Wicoff, learned about the ruling when he came into the office on Wednesday. A copy of the opinion was taped to the back of a chair, the first thing Green sees when he walks into Wicoff's office.

"I had the opinion ready for him when he walked in. He was happy to see it," Wicoff said.

Wednesday's ruling allows Green to apply for compensation from the state for being wrongfully imprisoned, Wicoff said. State law provides $80,000 for every year a person is wrongfully incarcerated, making Green eligible for more than $2 million.

Wicoff said Green also plans to apply for a pardon based on actual innocence from Gov. Rick Perry.

And:

Authorities were able to identify the four men who abducted the women. But because the statute of limitations on the rape has run out, they cannot be prosecuted.

Green said he plans to continue working on a volunteer basis with Wicoff, helping him go through letters that inmates send about problems - DNA-related and otherwise - they say they have with their cases.

"I want to do this for as long as I can do it," Green said.

The ruling in Ex Parte Green is available in Adobe .pdf format.

An Update on Troy Davis

"Judge says Troy Davis should appeal directly to U.S. Supreme Court," is the breaking report from the Savannah  Morning News.  It's by Jan Skutch.

Attorneys for Troy Anthony Davis must appeal a denial of a new trial to the U.S. Supreme Court – not the 11th U.S. Circuit Court of Appeals - in the 1989 slaying of off-duty Savannah police officer Mark Allen MacPhail, a federal judge has ruled.

“Any review of this court’s decision should be by the Supreme Court itself, not an intermediate appellate court,’’ U.S. District Judge William T. Moore Jr. ruled.

Moore ruled in a 172-page order in August that Davis failed to prove his innocence in the MacPhail slaying and will not get a new trial.

He sent his ruling directly to the Supreme Court.

The federal court heard evidence and argument after the Supreme Court returned the case last year with instructions that a judge hear testimony to determine whether evidence not available at Davis’ 1991 trial would “clearly’’ establish his innocence.

After two days of hearings in June, Moore ruled Davis’ new evidence “casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors.’’

Davis’ lawyers then sought a certificate to appeal to the 11 U.S. Circuit Court of Appeals in Atlanta, rather than directly to the Supreme Court.

Moore ruled that since the Supreme Court exercised its “original jurisdiction’’ in transferring the case to his court, it removed the appellate court from the equation.

He said it would be “incredibly anachronistic’’ for a court of appeals to have jurisdiction over cases under the Supreme Court’s jurisdiction.

Earlier coverage of the case begins here.

Kansas Supreme Court Examines Accuracy of Eyewitness Accounts

That's the title of a news report from the Wichita Eagle written by Ron Sylvester.  It's subtitled, "Jurors believe confident witnesses — but should they?"

The Kansas Supreme Court is considering whether to change how judges guide juries in evaluating eyewitness testimony.

Currently, juries follow instructions based on 30-yearold case law. Some say they should be following modern scientific research.

The justices heard arguments last week in the case of a Wichita man, Michael T. Mitchell, who was convicted of robbery based on the eyewitness testimony of the victim.

Even witnesses who are certain they know who committed a crime against them can be wrong, studies show. Still, jurors tend to believe confident witnesses.

Such a contradiction has led to hundreds of wrongful convictions across the country, according to cases where DNA evidence has exonerated the accused.

“About a quarter of those were convicted on eyewitness testimony, and little else,” said Lawrence Wrightsman, a professor emeritus of psychology at the University of Kansas. Wrightsman has studied and written extensively on psychology and the law.

In Kansas, judges may instruct jurors that they may gauge credibility on several factors, including “the degree of certainty demonstrated by the witness at the time of any identification.”

Such certainty and confidence tend to influence jurors, studies show.

“A victim or a witness takes the stand, and he or she are very sincere and often times very explicit and very confident, and all those are qualities people assume go with accuracy. But they don’t,” Wrightsman said.

“You can find confident people who are not accurate. And you can find people who are hesitant, who are just careful people, and they are very accurate.”

Mitchell’s trial in 2007 focused on a witness who was “100 percent” confident. Based on that testimony, the Sedgwick County jury convicted Mitchell of aggravated robbery and a judge sentenced him to nearly 7 years in prison.

And:

Other states are also re-evaluating eyewitness testimony.

Three years ago, the New York Supreme Court ruled that judges must allow qualified experts to testify on reliability when cases hinge on eyewitness testimony.

In Kansas, judges rarely allow such experts, said Michael Kaye, law professor at Washburn University, and that makes the jury instructions more important.

“Without experts, all you have is the jury instructions to guide them,” Kaye said.

“The public needs to know that eyewitnesses are not always right,” Kaye added. “That the court is willing to consider science and other factors shows progressive thinking.”

Wrightsman said witnesses don’t mean to make mistakes.

“It’s not anything purposeful or malicious,” he said. “People are just wrong sometimes.”

Related posts are in the eyewitness identification index.

Additional Coverage of Kevin Keith Commutation

There's been a great deal of commentary and follow-up on Ohio Governor Ted Strickland's commutation of Kevin Keith's death sentence last week.

"Keith decision should not be a political issue," is the title of a Mansfield News Journal editorial.

Ohio Gov. Ted Strickland made a decision last week that will no doubt affect his campaign in coming months, but we urge political strategists to avoid using Kevin Keith as an election issue.

The Canton Repository editorial is, "Strickland makes justifiable exception."

Reasonable people can disagree, but the people in charge of the criminal justice system in Ohio usually don’t disagree when it comes to juries’ verdicts and sentences in death-penalty cases.

A justifiable exception occurred Thursday.

And:

Ohioans should expect this careful a consideration of all capital punishment cases by the man who has the ultimate power of life or death.

In cases where he is nagged by doubt, even though they may be cases in which Ohioans thirst for resolution in the death chamber at Lucasville, the governor’s change of heart should be welcome.

Connie Schultz, the Cleveland Plain Dealer's acclaimed columnist, writes, "A lifesaving victory for a dedicated lawyer."

In 1999, Rachel Troutman was sleepwalking through college when a public defender came to her criminology class and gave a speech that shook her wide awake.

"It was right after Wilford Berry had died," she said, referring to the first person executed in Ohio after a 36-year moratorium. "Joe Bodine [Ohio's public defender at the time] started telling us about all the procedural problems in death penalty cases, and it hit me: Here we were, talking about form over substance, when a man's life was at stake.

And:

"Kevin's off death row, and it's a first step," Troutman told me Thursday. "Now we have to figure out how to get him out of prison."

The obstacles keeping Keith from freedom loom large. Significant new evidence already exists, but Troutman said she and other lawyers will have to uncover even more because of procedural rules.

This is why I'm writing about 33-year-old Rachel Troutman.

She, and young lawyers like her, are our greatest hope if we are ever to bring about the change that will prevent the miscarriage of justice that sends hundreds, perhaps thousands, of innocent people -- most of them African-American men -- to prison for crimes they did not commit.

"Death Row Reprieve: Does Ohio Also Owe Kevin Keith a New Trial?" is Andrew Cohen's post at Politics Daily.

There have been 249 capital commutations in the United States since 1976, the year the Supreme Court gave the death penalty back to the states as a sentencing option. There have been 1224 executions across the country during that time. As of Jan. 1, 2010, there were 3,268 men and women on death row in the 35 states (and federal jurisdictions) which have capital punishment. Since 1973, according to the Death Penalty Information Center, "130 people have been released from death row with evidence of their innocence." Many of these releases are the result of DNA mismatches -- an issue not present in Keith's case.

Nevertheless, having come this far it seems to me that Ohio must go further and figure out, once and for all, whether it has imprisoned the wrong man for the past 16 years. Strickland didn't give Keith a sentencing break because the prisoner had turned into a government witness or had undertaken a prison conversion. The reasons Keith's sentence was reduced relate directly to the strength of the prosecution's trial evidence against him -- and are material enough for any reasonable person to doubt whether he would have been convicted had these facts come before the original judge and jury. It is now beyond contention that the rot here is in the core of the apple and not its skin. Just because the government can't go back and re-do every bad conviction doesn't mean it shouldn't go back and re-do the ones it can.

With the first days of the rest of his life, Keith now will have time to explore all of these topics as his lawyers continue to push for a substantive hearing or new trial. He'll have time to read how poorly it could have gone for him had he been a prisoner seeking clemency in Texas under then-Gov. George W. Bush and his counsel, Alberto Gonzales. He'll have time to read about how capital punishment may be on the wane in North Carolina after revelations there about the state crime lab's dishonorable work. Or perhaps about how the capital punishment system in Pennsylvania is a mess.

Alas, there is no shortage of literature out there describing all sorts of problems in and with capital cases. Makes you wonder why commutations like the one Keith was gracefully given this past week are more rare than executions, doesn't it?

Columnist Russ Zimmer writes, "Triple murder: Reprieves for killers rarely aid re-election," in his column, via the Mansfield News Journal.

By commuting the sentence for Bucyrus triple murderer Kevin Keith on Thursday, Gov. Ted Strickland hopes to follow in George W. Bush's footsteps.

According to a database of death penalty commutations, only Bush, as governor of Texas at the time, reduced a death row inmate's sentence during an election year and then went on to win re-election.

It's not that clemency decisions aren't made during gubernatorial campaign years -- 12 other governors have done so since the death penalty was established again in 1976. And it's not that they all go on to lose the race either -- only two of those 12 did.

Mostly, governors spare death row inmates on their way out of office.

The News Journal also has two follow-up news articles, "Innocence Project has growing track record," by Terricha Bradley, and, "Keith clemency first time governor rejects unanimous recommendation," by Bryan Bullock.

Earlier coverage of the commutation begins with this post.

Finding Ways to Reduce Wrongful Convictions

That's the title of an OpEd from the Houston Chronicle.  It's written by State Senator Rodney Ellis and Cory Session, brother of the late Tim Cole.  LINK  It's a must-read:

Timothy Cole was forced to suffer in prison for a crime he didn't commit. His pleas of innocence fell on deaf ears for 14 years, and he ultimately lost his life behind bars to an asthma attack before he could clear his name. Tim had no criminal record when he was arrested; there was no physical evidence tying him to the crime. He was locked away to die based solely on the faulty eyewitness testimony of a single witness.

Tim's case would be tragic enough if it were an isolated incident, but the unfortunate reality is wrongful convictions are disturbingly routine in the Lone Star State. We have the shameful distinction of leading the nation with 41 proven DNA exonerations, along with two more in Harris County in as many weeks this past month. These wrongful convictions are emblematic of far deeper problems at the core of our justice system — clear and convincing evidence that the system is broken.

Texas has spent countless taxpayer dollars building prisons and incarcerating the second highest number of people in the country. But we have failed to adequately invest in essential procedures to protect the rights and safety of our citizens, or at least ensure that we only send guilty people to prison. That's not being tough on crime. That's bad policy.

Wrongful convictions aren't solely a tragedy for those directly involved. They undermine the public's faith in the reliability of justice in our state, and they pose serious public safety issues: When innocent people are behind bars, the real criminals are still on the street committing crimes.

The good news is that we know what causes wrongful convictions, and we know how to fix it. From improving the quality of legal representation for the poor to improving the reliability of evidence in our courtrooms, there are simple reforms that can prevent these tragedies. By implementing reforms to police departments' eyewitness identification procedures, we could reduce many wrongful convictions. Some 85 percent of wrongful convictions in Texas are due to mistaken eyewitness identifications - the No. 1 cause of wrongful convictions in the state and the rest of the nation. Other reforms include recording interrogations to reduce false confessions and creating a fully functioning Texas Forensic Science Commission to ensure reliable science is being used in our crime labs and courtrooms. We simply have to summon the political will to advance all of these reforms.

And:

Before Tim Cole died, he told his mother, "I still believe in the justice system even though it does not believe in me." Let's make Tim's belief in the justice system a reality. Texas can never get back the years and lives that have been destroyed by wrongful convictions, but we can dedicate ourselves to taking the necessary steps to create a justice system that truly protects the innocent, ensures the guilty are brought to justice, and is instilled with the fairness and integrity that justice demands. We owe Tim that much.

Earlier coverage of the Timothy Cole Advisory Panel on Wrongful Convictions begins with this post.  The Panel's Report and a volume of Research Details are available in Adobe .pdf format.  More on Tim Cole's wrongful conviction and posthumous exoneration, here.

News Coverage of Kevin Keith Commutation

Here's a roundup of the news coverage of yesterday's commutation of Kevin Keith's death sentence by Ohio Governor Ted Strickland.  The governor's statement is noted here.

"Ohio’s Governor Spares Life of a Death Row Inmate," is the New York Times report by Bob Driehaus.

A diverse group of Republicans and Democrats, attorneys general and federal and state judges and prosecutors had rallied around the case of the inmate, Kevin Keith, 46, after his lawyers uncovered evidence they say casts doubt on his guilt.

In commuting the death sentence, Mr. Strickland, a Democrat, said that he believed it was still likely that Mr. Keith committed the murders, but that he was troubled by the likelihood that evidence uncovered since his conviction would not be presented to a court before the scheduled Sept. 15 execution.

“That would be unfortunate,” Mr. Strickland said in a statement. “This case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court. Under these circumstances, I cannot allow Mr. Keith to be executed.”

Andrew Welsh-Huggins AP filing is, "Ohio gov spares killer who claimed innocence," via Gogle News.

Strickland questioned some of the eyewitness testimony against Kevin Keith, who was scheduled to die Sept. 15, and says he's bothered that other possible suspects weren't fully investigated.

Strickland said Keith has appeals available that could lead to a full reexamination of the crime, but he also acknowledged that might not happen.

Strickland said that despite evidence supporting Keith's guilt, "many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it."

Also via Google News, the AFP filing, "Ohio governor overturns convicted killer's execution."

Keith's defenders, an unusual combination of former judges and prosecutors as well as anti-death penalty campaigners, former prison directors and lawmakers, have insisted he was convicted on the basis of an unreliable eyewitness identification.

Some 20,000 people have also signed two petitions calling on Ohio's parole board and Strickland to grant clemency.

His defenders point out the surviving adult victim identified Keith after telling at least four witnesses he could not see the shooter's face.

Earlier coverage begins with this post.

More Coverage of the Tim Cole Panel Report

The Austin Chronicle, our independent, alt-weekly hitting the streets today, has, "Panel Targets Roots of Wrongful Convictions."  It's written by Jordan Smith.

The Timothy Cole Advisory Panel on Wrongful Convictions made five major proposals last week for lawmakers heading into next year's legislative session. The panel, named for the state's first posthumously exonerated man (he died in prison while serving time for a rape he did not commit), was tasked with considering the causes of wrongful conviction and making recommendations to avoid future miscarriages of justice. Among those were recommendations that state police agencies record all suspect interrogations and adopt model policies for handling eyewitness identification procedures. Another proposal recommends that state lawmakers reform post-conviction law to allow for DNA testing of evidence regardless of why it was not previously tested. But whether the recommendations will be adopted and passed by legislators in 2011 – and whether they'll actually have their intended effect – remains to be seen.

Chief among the group's recommendations is to require the Bill Blackwood Law Enforce­ment Management Institute of Texas at Sam Houston State University to work with law enforcement and scientific experts in eyewitness ID to "develop, adopt, [and] disseminate" information to Texas police agencies and annually review policy and training materials on the administration of live and photo lineups.

Dealing with the problem of poor eyewitness ID is no small matter in Texas, where faulty IDs have been implicated in more than 80% of the state's DNA exonerations (there are 41 to date). Moreover, according to a 2009 report by nonprofit the Justice Proj­ect, only 88 police agencies – out of 750 that responded to inquiries – could supply any written policies covering live or photo lineup procedures.'

And:

The panel appears unanimous on other recommendations, including the suggestion that lawmakers amend the law governing post-conviction appeals to allow for testing of any "previously untested biological evidence, regardless of the reason the evidence was not previously tested" or for retesting evidence that was previously conducted with "older, less accurate" testing methods. More­over, the group has recommended that the law be amended to allow inmates to appeal based on advances in science that may undermine the reliability of evidence originally used against them.

And:

The panel's recommendations have been accepted by the Task Force on Indigent Defense, and now state Sen. Rodney Ellis, D-Houston, hopes his colleagues and the governor (whoever that may be next year) will make passing the recommendations into law a priority. "Now the ball is in the Legislature's court. I call on my fellow legislators ... to dedicate ourselves to creating a justice system that truly protects the innocent, ensures the guilty are brought to justice, and is instilled with the fairness and integrity that justice demands," Ellis said in a press statement. "We owe Tim Cole and his family that much."

Earlier coverage of the panel's work begins with this post; the Report and a volume of Research Details are available in Adobe .pdf format.  More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.

One side note -- Chronicle journalist Jordan Smith is being honored this fall by the Texas Civil Rights Project for her reporting; details here.

An Update of Kevin Keith

His execution is scheduled September 15.  Yesterday, a three-judge panel of the U.S. Court of Apeals for the Sixth Circuit rejected Keith's appeal.  The ruling in in Adobe .pdf format.

Keith's attorneys issued the following statement:

"Today's denial by the Sixth Circuit of Kevin Keith's appeal is further reason why Governor Ted Strickland should grant clemency to Mr. Keith. Because of procedural barriers to raising the evidence suppressed by the State, the new evidence of innocence in Mr. Keith's case will never be heard in its entirety by any court or jury. Now, only Governor Strickland has the power to fully review Mr. Keith's innocence claims. 
 
As Judge Eric Clay pointed out in his separate concurring opinion, 'Even if our jurisprudence has thus far failed to expressly recognize that an innocent person has a constitutional right not to be executed, it is deplorable that this Court has failed and refused in this case to consider and properly address Petitioner's legal arguments in a manner indicating that the Court recognizes that "death is special."' 
 
Because the evidence of Keith's innocence has been uncovered piece by piece, our court system is ill-equipped to resolve the question of his innocence.  And without intervention by Governor Strickland, this deplorable adherence to form over substance will result in the execution of an innocent man."
 
Rachel Troutman, Assistant State Public Defender
Andrew King, Assistant State Public Defender
Tyson Fleming, Assistant State Public Defender
John Q. Lewis, Partner, Jones Day
David Mills, The Mills Law Office LLC

Earlier coverage begins at this post.  More at Kevin Keith.

Timothy Cole Panel on Wrongful Convictions Issues Report

The Report is available in Adobe .pdf format, as is a separate volume containing the Research.  At its meeting yesterday, the Task Force on Indigent Defense voted to send the report to the Governor, legislative leaders, and the Texas Judicial Council.

Brandy Grissom writes, "Panel OKs Recommendations to Stop Wrongful Convictions," for the Texas Tribune.

The recommendations come from the Timothy Cole Advisory Panel on Wrongful Convictions, a committee lawmakers established in 2009 to study how and why innocent Texans wind up in prison. The panel's namesake died of an asthma attack while serving time for a rape he did not commit. In Texas, 43 people have been exonerated by DNA evidence, more people than in any other state.

The panel's recommendations include adopting a more scientific procedure for using eyewitness identification, requiring electronic recordings of inmate interrogations, allowing post-conviction DNA testing in all cases where such evidence is available and increasing funding for innocence projects. (Read the the full recommendations by clicking on the file to the right.)

Cole's mother and brother today lauded the recommendations and urged lawmakers to quickly pass bills that will prevent more tragedies like the one their family has endured.

"Now's the time for the Legislature to take this baton ... and move forward with expediency," said Cole's brother, Cory Session.

Cory Session's brief statement was quite emotional, reminding those present that his brother's appeal had been rejected by the Court of Criminal Appeals 20 years ago, in the very chamber where the Task Force met.  He also noted that Governor Perry has talked with him mother three times, reiterating his support for the measures recommended by the panel.

A measure not recommended by the panel is the creation of a Texas Innocence Commission, in part because Governor Perry has repeatedly threatened to veto such a measure if passed by the legislature.  Texas was the first state to introduce legislation to create an innocence commission following a scholarly article by Peter Neufeld and  Barry Scheck, co-founders of the Innocence Project.  State Senator Rodney Ellis turned the idea into legislation first introduced in 2003. 

Texas Supreme Court Chief Justice Wallace Jefferson praised the panel's work and noted that he has spoken in favor of a Texas Innocence Commission in the past.  He also cited the importance of discovery in both criminal and civil procedure.  The panel's report makes recommends expanding the use of discovery in criminal cases.  Currently, the practice varies by county. Some, notably Tarrant and Dallas County, have open file procedures that allow defense attorneys convenient access to information they are entitled to review.  Most Texas counties do not have open file policies and are more restrictive.

The Task Force issued a news release following its meeting.

The Task Force also released the Timothy Cole Advisory Panel report and research details. This report was the work product of the Timothy Cole Advisory Panel on Wrongful Convictions that was created by HB 498 during the 81st Legislature in 2009. Named after Timothy Cole, the first Texan to be posthumously exonerated of a crime through DNA testing, the Panel was directed to advise the Task Force on Indigent Defense in the preparation of a study regarding the causes of wrongful convictions and make recommendations to prevent future wrongful convictions. The Panel specifically addressed eyewitness identification procedures, the recording of custodial interrogations, open discovery policies, post-conviction procedures, and the feasibility of creating an innocence commission to investigate wrongful convictions. The report and recommendations will be presented to the Governor, Lieutenant Governor, Speaker of the House, and standing committees with members on the Panel.

Earlier coverage of the panel and of Tim Cole's case begins with this post.

Amnesty International on the Troy Davis Ruling

AI USA has issued the news release, "Amnesty International Gravely Concerned That Ruling Puts Troy Davis on Track for Execution; Cites Persisting Doubts About His Guilt."

Amnesty International USA (AIUSA) today expressed deep concern that a federal district court decision puts Georgia death-row inmate Troy Anthony Davis back on track for execution, despite doubts about his guilt that were raised during a June evidentiary hearing. Judge William T. Moore, Jr. ruled that while executing an innocent person would violate the United States Constitution, Davis didn’t meet the extraordinarily high legal bar to prove his innocence.

“Nobody walking out of that hearing could view this as an open-and-shut case,” said Larry Cox, executive director of AIUSA. “The testimony that came to light demonstrates that doubt still exists, but the legal bar for proving innocence was set so high it was virtually insurmountable. It would be utterly unconscionable to proceed with this execution, plain and simple.”

Amnesty International representatives, including Cox, attended the hearing in Savannah, Ga. The organization noted that evidence continues to cast doubt over the case:

· Four witnesses admitted in court that they lied at trial when they implicated Troy Davis and that they did not know who shot Officer Mark MacPhail.
· Four witnesses implicated another man as the one who killed the officer – including a man who says he saw the shooting and could clearly identify the alternative suspect, who is a family member.
· Three original state witnesses described police coercion during questioning, including one man who was 16 years old at the time of the murder and was questioned by several police officers without his parents or other adults present.

“The Troy Davis case is emblematic of everything that is wrong with capital punishment,” said Laura Moye, director of AIUSA’s Death Penalty Abolition Campaign. “In a system rife with error, mistakes can be made. There are no do-overs when it comes to death. Lawmakers across the country should scrutinize this case carefully, not only because of its unprecedented nature, but because it clearly indicates the need to abolish the death penalty in the United States.”

Judge Moore's ruling is in Adobe .pdf format in two parts, as Part 1 and Part 2

Bill Rankin writes, "Judge rejects Troy Davis innocence claim," for the Atlanta Journal-Constitution.

A federal judge on Tuesday emphatically rejected condemned inmate Troy Anthony Davis' claims that he was wrongly convicted of killing a Savannah Police officer in 1989.

In a 174-page order, U.S. District Judge William T. Moore Jr. said Davis had failed to prove his innocence during an extraordinary hearing this summer ordered by the U.S. Supreme Court.

"Ultimately, while Mr. Davis' new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors," Moore wrote. "The vast majority of the evidence at trial remains largely intact, and the new evidence is largely not credible or lacking in probative value."

Davis sits on death row for killing off-duty police Officer Mark Allen MacPhail as MacPhail ran to the aid of a homeless man being pistol-whipped. Davis's case has attracted international attention because a number of key prosecution witnesses have either recanted or backed off their trial testimony. Other witnesses have come forward and said another man at the scene, Sylvester "Redd" Coles, told them he was the actual killer.

Moore faulted Davis' legal team for not calling Coles to the witness stand during the specially ordered hearing to test the validity of his alleged confessions.

Moore did answer one question posed by the U.S. Supreme Court. He found that executing an innocent person would violate the Eighth Amendment's ban against cruel and unusual punishment.

"However, Mr. Davis is not innocent," Moore wrote.

Earlier coverage begins with this post.

Judge Denies Troy Davis Appeal - UPDATED

That's the title of the AP breaking news report, via the Atlanta Journal-Constitution.  LINK

A federal judge Tuesday denied Georgia death row inmate Troy Davis' innocence claim after a rare hearing.

The ruling against Davis sets the stage for Georgia officials to move forward with executing him for the 1989 shooting death of Mark MacPhail, an off-duty Savannah police officer.

In June, U.S. District Court Judge William T. Moore Jr. heard two days of testimony from witnesses seeking to cast doubt on Davis' conviction. The Supreme Court ordered the hearing for Davis a year ago.

Davis has been spared from execution three times as his attorneys pushed their argument that new evidence showed police ignored MacPhail's real killer as they rushed to pin the shooting on Davis.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony.

Earlier coverage begins with this post.  I'll be adding additional coverage as it becomes available.

UPDATE:  Judge Moore's ruling is in Adobe .pdf format in two parts, as Part 1 and Part 2

Connie Schultz on the Kevin Keith Case

The Cleveland Plain Dealer's Pulitzer Priz- winning columnist writes, "A 'troubling' case, and a life, rest in Ohio Gov. Ted Strickland's hands."

One of the horrible blessings bestowed on the governor of Ohio is the occasional duty to play God, one life at a time.

For the 28th time in less than four years, Gov. Ted Strickland must decide: Shall a man live? Or shall he die?

This time, the man's name is Kevin Keith.

Chances are, no matter where you live in America, you've heard about Keith.

A lot of people, including a bipartisan list of 31 former judges and prosecutors across the country, have called for clemency in a case riddled with missteps and shortcuts on the road to justice.

And:

His execution is scheduled for Sept. 15.

Gov. Strickland must decide by 9:59 that morning whether he will grant a reprieve. But there is no need to wait until then to do the right thing. Doubts hover over Keith's murder conviction like low storm clouds ready to burst.

The primary evidence against Keith was eyewitness testimony.

Numerous studies -- and hundreds of exonerations -- have shown eyewitness testimony to be the least reliable evidence. The Innocence Project, which works to free those imprisoned for crimes they did not commit, says that eyewitness misidentification played a role in more than 75 percent of the 258 convictions overturned through DNA testing.

Gov. Strickland, who has already publicly said Keith's case "has circumstances that I find troubling," said in a phone interview last week that eyewitness testimony is often deeply flawed.

"As a psychologist, I know that eyewitness testimony tends to be among the least credible," he said, "and yet it also tends to be the most powerful in its impact on a jury. We've already seen cases in Ohio and across the country where people were exonerated after being convicted primarily on eyewitness testimony."

There are numerous other reasons to believe that Kevin Keith is innocent, including the discovery of new evidence, police missteps, the existence of another known suspect and lousy defense work during Keith's trial. But it is clear not only that prosecutors do not care if Keith is innocent, but that they are deeply invested in winning at all costs.

And finally:

Serious questions remain in this case. Where there is doubt, there must be mercy.

Earlier coverage begins with this post.

More on the Kevin Keith Case

Mark Godsey, Director of the Ohio Innocence Project and University of Cincinnati Law prof, has issued a statement.

The Ohio Innocence Project urges Governor Strickland to grant clemency to Kevin Keith, and to remove him from death row, because the execution of an inmate where serious questions of possible innocence remain is an injustice that can never be corrected.  The Ohio Innocence Project is neither for nor against capital punishment.  But no Ohio citizen, regardless of political persuasion, should tolerate the execution of an inmate in a case where serious questions of guit or innocence continue to linger.

The parole board acknowledged in its decision that the alternative suspect had the same motive to seek revenge as Keith, but it ignored the evidence showing the alternative suspect told witnesses of his plan to commit this crime before it occurred.  The board stated the photo lineup shown to the surviving victims was "arguably suggestive."  It found that there was no "substantial basis to recommend that Kevin Keith receive a full pardon," but that is a far cry from saying there is enough certainty of his guilt that Ohio citizen's should feel comfortable with his execution.  The parole board's own report acknowledges that there are questions of guilt or innocence lingering.  The parole board ignored other evidence which raises serious questions as to Keith's guilt or innocence.  The state should not execute one of its own citizens in cases where so many questions remain unanswered.

Today's Columbus Dispatch carries, "Parole board: Execute Keith: Vote unanimous, but Strickland has spoken of qualms."  It's written by James Nash.

Gov. Ted Strickland has said publicly that he finds the case of Kevin Keith, who is sentenced to death for killing three people in Bucyrus in 1994, "troubling."

Members of the Ohio Parole Board, including four appointed by the Strickland administration, don't agree.

In an 8-0 vote released yesterday, members of the parole board recommended against pardoning Keith, who has maintained his innocence and attracted high-profile supporters while on Death Row.

The unequivocal recommendation goes to Strickland, who has the final say on whether Keith will be put to death Sept. 15 for killing two adults and a child to retaliate against a drug informant.

Strickland has gone against the parole board's recommendation in only one case, and that was to deny clemency to a man whom the board wanted to spare. The Democratic governor has allowed 16 people to be executed since taking office in 2007 and has granted clemency to four Death Row inmates.

Strickland's office would say only that the governor will "thoroughly and carefully" review Keith's case.

But the governor earlier acknowledged the extraordinary nature of Keith's case, which has become a cause clbre among death-penalty skeptics and opponents nationally. Former Attorney General Jim Petro, a Republican, and the national president of the Innocence Network have called on Strickland to spare Keith's life.

"It has circumstances that I find troubling," Strickland told The Dispatch about Keith's case earlier this month.

"Ohio Parole Board rejects clemency for Kevin Keith," by Charita Goshay is the report in the Canton Repository.

The board’s recommendation comes as a bitter disappointment to Keith’s older brother, Charles, a Canton resident who has been on a 16-year crusade to free his brother. Charles Keith has said his own investigation led him to believe in his brother’s innocence.

Charles Keith, who attended Thursday’s proceeding, wasn’t surprised at the outcome.

“To me, when I was sitting there, it didn’t seem like a ‘review’ board,” he said. “To me, and to most of the people in there, it was cold. They were like a death squad... It felt like you were bobbing up and down in the water and you know you’re about to be eaten.”

Charles Keith argues that his brother’s case never was properly investigated until he acquired new attorneys in 2007.

“Our alibi witnesses have not been shaken in 17 years. What I have said has been the same for 17 years, because all I know is the truth,” he said. “Had my brother been guilty, I would have been in front of that board, on my knees begging. But my brother’s innocent.”

The poor and poorly educated don’t have a chance in navigating the judicial system, he said.

“We’re a poor family; I don’t have a big degree,” he said. “We’ve been treated like nobodies. All we have is the truth.”

Charles Keith added that Chatman, a reputed police informant and possible target of the shooting, and retired detective Jerry Hickman, lead investigator, should have been called by the board to testify.

“There was no physical evidence or fingerprints linking Kevin to the crime,” he said. “It was a ‘paper battle’ over who’s telling the truth ...”

Yesterday's post begins the earlier coverage.

Ohio Parole Board Recommends No Clemency for Kevin Keith

The Ohio Parole Board recommendation is in Abode .pdf format.

The initial AP report is, "Ohio board denies Kevin Keith's innocence claim," via the Marion Star.

The Ohio Parole Board has rejected clemency for a condemned killer of three who says he's innocent in the 1994 shooting.

The board on unanimously rejected the plea for mercy by Kevin Keith, saying no real new evidence was presented and that any reasonable person would conclude Keith is guilty.

The board sent its recommendation to Gov. Ted Strickland, who has the final say.

The Columbus Dispatch has posted, "Parole Board recommends execution for Bucyrus killer," by James Nash.

A panel recommended today that Gov. Ted Strickland not spare the life of a man convicted of murdering three people in Bucyrus in 1994 in a case that has drawn national attention.

In a unanimous vote, the Ohio Parole Board said the state should proceed with plans to execute Kevin Keith, now 46, on Sept. 15.

And:

Strickland has discretion on whether to follow the Parole Board's recommendation or ignore it. The governor has publicly called Keith's case "troubling."

Keith's defense has attracted national attention, with his supporters saying the state is about to execute an innocent man. The head of the national Innocence Project attended a 12-hour Parole Board hearing on Keith's case last week; former Ohio Attorney General Jim Petro also has raised doubts about Keith's guilt.

Attorneys for Kevin Keith have issued, "Statement from Attorneys for Kevin Keith in Response to Today's Parole Board Recommendation Against Clemency."  I'm posting the entire document.

The Governor’s ultimate responsibility is to ensure that no human being is executed in Ohio absent absolute certainty.  In Kevin Keith’s case, too many questions remain unanswered, and his execution should not proceed as planned.

The Parole Board's own recitation of facts and brief findings cannot avoid facts pointing to the existence of doubt about Mr. Keith's guilt.  For example, the Parole Board found that the lineup used to identify Mr. Keith for this crime was "arguably suggestive," and recognized that the "science of measuring the extent to which an event is 'encoded' into memory is imprecise."  The Parole Board also noted the there was no "biological evidence linking Keith to the crime."  Unfortunately, however, the Parole Board gave "considerable deference" to the jury and courts in making its recommendation.  But it is undisputed that no court or jury has ever considered the entirety of the new evidence that raises serious questions about Mr. Keith’s guilt. 
 
Mr. Keith and his attorneys have not had the opportunity to fully utilize this new evidence to defend against the State’s theory, and Mr. Keith and his attorneys have not had the opportunity to challenge State witnesses through the crucible of cross-examination regarding the numerous inconsistencies in their testimony revealed by this discovery of new evidence. Under these circumstances, the Governor cannot be absolutely certain – as he must be – that Mr. Keith is guilty of this crime and deserves the most final of punishments: execution.

We urge the Governor to review the facts of the case on his own, without deferring to courts that have not completely reviewed the evidence before us today.  For example, the Governor should consider that, absent questionable "eyewitness" testimony, there is nothing connecting Mr. Keith to this crime.  Indeed, the chief eyewitness against Mr. Keith initially told four people -- in a coherent and stable state -- that he could not identify the shooter because the shooter was wearing a mask.  Another survivor initially excluded Mr. Keith as the shooter entirely, noting that the shooter did not have certain physical features possessed by Mr. Keith.  Thereafter, Mr. Keith’s face was projected prominently in a highly suggestive photo line-up to these witnesses that would run afoul of the very procedures recognized as unreliable and inaccurate and corrected by reform legislation signed by the Governor.  And after Mr. Keith's arrest, still other witnesses who had indicated that the shooter was wearing a mask or could not be identified suddenly were "re-interviewed" by police and pointed to Mr. Keith.  What's more, by the time of the clemency hearing, eyewitness descriptions has further changed -- some now stating that the shooter was not wearing a mask at all. 
 
Moreover, brand new evidence -- never heard by a jury -- shows that another man admitted he was paid to commit the crime for which Mr. Keith stands to be executed.  And still other evidence shows Mr. Keith has a strong alibi for the time of the crime, supported by four witnesses.  These circumstances do not present an absolute certainty of guilt.

That is why prominent individuals and nonpartisan organizations – including more than 30 former state and federal judges and prosecutors, the Ohio Innocence Project, the National Innocence Network (comprised of 61 innocence projects and legal organizations), more than 100 Ohio faith leaders and organizations, 13 leading eyewitness and memory experts, law enforcement, death row exonerees, and thousands of citizens across Ohio and the U.S. -- support clemency for Mr. Keith.

The Parole Board’s recommendation to Governor Strickland is advisory and non-binding, and we urge the Governor to grant Mr. Keith clemency.
 
Rachel Troutman, Assistant State Public Defender
Andrew King, Assistant State Public Defender
Tyson Fleming, Assistant State Public Defender
John Q. Lewis, Partner, Jones Day
David Mills, The Mills Law Office LLC

Earlier coverage of the controversial case begins here.

The Work of the Tim Cole Panel

On Sunday, the Fort Worth Star-Telegram carried the editorial, "Legal safeguards recommended by Timothy Cole advisory panel."

For a while, every time the family of Tim Cole went to Austin or held a local news conference to declare his innocence, they took along a large photo of the smiling bright-eyed young man.

They wanted state officials and the world to see the man who was convicted of a horrible crime -- rape of a fellow Texas Tech student in 1985 -- and died in prison before he could be exonerated.

Cole is the face of the wrongly convicted in Texas, and his name is synonymous with exonerations.

And:

Last week, the Timothy Cole Advisory Panel on Wrongful Convictions spent its last meeting by adopting a 50-page draft report that included proposals that covered a wide range of changes to current procedures in criminal investigations.

Included in the recommendations are new guidelines for all Texas law enforcement agencies regarding eyewitness identification. Since 1994, there have been more than 40 exonerations in the state using DNA evidence and, in 80 percent of the cases (including Cole's), erroneous eyewitness identification played a role.

The panel also recommends allowing DNA testing in cases that did not have it originally or in which older methods had been used; mandatory electronic recording of interrogations in certain crimes like murder, capital murder, kidnapping and sex crimes against children; and allowing defense lawyers' access to prosecution evidence and DNA test results.

Panel members wisely did not propose the creation of another state agency as some had suggested. Rather than forming a statewide innocence commission with subpoena power, the report recommends further assistance of the existing state-funded innocence projects at Texas Tech, the University of Texas at Austin, the University of Houston and Texas Southern University. In addition, projects at Texas Wesleyan University Law School in Fort Worth would continue to play a part in investigating claims of those who allege being falsely accused.

It ends:

Texas lawmakers must do everything within their power to make sure there is never another case like Tim Cole's.

Earlier coverage of Tim Cole's case begins here; the panel's work, here.

Time to Slow March to Death

That's the title of an editorial in today's Cleveland Plain Dealer.  It concerns Kevin Keith's clemency hearing last week, and the call for a systemic review of all of Ohio's death sentences.  LINK

But at the very least, the evidence presented last week ought to give the parole board -- and ultimately Gov. Ted Strickland, who has final say on its recommendations and on whether to proceed with Keith's execution -- plenty of reasons to call a timeout. Before Ohio or any other state puts someone to death, it had better be sure that person is guilty as charged.

This page has long opposed capital punishment. It has also called for a moratorium on executions while Ohio conducts a top-to-bottom review of each case on death row and how capital cases are conducted in the state. The troubling questions around Keith's case -- and his fate-- only reinforce those positions.

Legal analyst Andrew Cohen posts, "On Death Row in Ohio: Is Kevin Keith an Innocent Man?," at Politics Daily.  It's a must-read.

When last we left the sorry state of capital punishment in Ohio, hapless prison officials were attempting to execute the same man twice after failing to find a usable vein the first time they put him onto the gurney. They did not succeed -- the death row inmate, Romell Broom, is still alive -- but the embarrassing episode did cause the Buckeye State finally to reform its dubious lethal-injection protocols. That's the good news. The bad news is that a new case, the case of Kevin Keith, shows once again how far Ohio is from affording capital suspects even the most basic constitutional rights.

And:

A generation ago, following the renewal of capital punishment in America in the wake of the U.S. Supreme Court ruling in Gregg v. Georgia, it was left to the courts to resolve the types of thorny questions posed by the Keith case. Experts at evaluating evidence, trial and appellate judges were encouraged, or at least not thoroughly discouraged, to dig down deep into disputes like this, to question law enforcement work more rigorously, and to not simply cast off onto the executive branch (via clemency) the responsibility of acting as a safety net to ensure that no innocent man or woman is ever executed. The courts took care of these cases and governors, generally, did not.

In the intervening decades, however, all that changed. Conservative jurists, led by the late Chief Justices Warren Burger and William Rehnquist, have dramatically limited the arrest, trial, and post-conviction rights of men like Keith. The lower courts and the state courts and the Congress and state legislators around the country have done likewise. The result is the Keith case. Despite obvious questions about the man's conviction, and despite atrocious procedural rules that often block meaningful appellate review, the very prosecutors who sanctioned a sloppy trial and then defended its result now evidently get to say to the governor, as they did at Keith's clemency board hearing last week: "Furthermore, both the state and federal courts have repeatedly upheld his conviction, even though Keith made the exact same claims he is making to this board."

For Keith, it's not surprising that the whole thing smacks of a three-card monte game. The police and prosecutors play fast and loose. The courts now are bound not to ask too many questions following a jury's verdict. And the governor's mansion is interested in politics more than in the Constitution. It's hard to say today whether Keith deserves a better fate. But the rest of the citizens of Ohio surely do.

Earlier coverage begins with this post.  Earlier coverage of the Ohio Chief Justice's call for a sweeping review of the state's death sentences is here.

Reflections on the Kevin Keith Clemency Hearing

Today's Mansfield News Journal reports, "Kevin Keith triple murder: Attorneys await word on clemency," written by Dan Clutter.

Ohio's nine-member clemency panel could have a recommendation ready for the governor by Wednesday in the Kevin Keith capital murder case.

And:

The panel can only make a recommendation to the governor, which he can follow or ignore. He's done both in his tenure.

Gov. Ted Strickland can deny clemency, in which case Keith's execution goes on as scheduled; he can commute Keith's sentence to life in prison; or he can issue a full pardon.

Keith has asked for a full pardon.

The Akron Beacon Journal wrote the editorial, "Flawed Conviction," which appeared last Thursday.

With the death penalty comes heightened responsibility. A state must take all necessary steps to prevent the grievous error of executing the wrong man. Ohio and other states with capital punishment do take extraordinary measures. Then, there are moments when the system appears on the verge of falling short. This was the concern voiced at the Statehouse on Tuesday, supporters of Kevin Keith delivering letters and petitions to Ted Strickland urging the governor to grant clemency.

The show of support was remarkable, including 31 former judges and prosecutors, Democrats and Republicans, the Ohio Innocence Project, the National Innocence Network, faith leaders and eyewitness experts. On Wednesday, attorneys for Keith made their case to the Ohio Parole Board. In a week or so, the matter will land on the governor's desk. Keith is scheduled for execution on Sept. 15.

And:

As things stand, Ohioans should be troubled at the prospect of putting Keith to death. Yes, he had his day in court — 16 years ago. Rare are the cases when new information surfaces to such a degree. Yet the state must be responsive to such circumstances. The responsibility falls to the governor. Ted Strickland supports the death penalty. He also recognizes fully the massive harm in the state executing the wrong man.

Sunday's Mansfield News Journal carried the editorial, "Governor's decision never an easy one."

Efforts to spare the life of convicted killer Kevin Keith have been heroic, and there should be no argument that the defense has been allowed to present all the evidence there is in hopes of convincing Gov. Ted Strickland to grant a stay of execution.

Attorneys Staughton and Alice lind wrote the OpEd, "Review Ohio's death penalty," for the Sunday Youngstown Vindicator.

In 2007, the Ohio Death Penalty Assessment Team of the American Bar Association concluded that “there is a need to improve the fairness and accuracy in Ohio’s death penalty system.” One of the team’s specific recommendations was:

“The Governor of Ohio should create a commission, with the power to conduct investigations, hold hearings, and test evidence, to review claims of factual innocence in capital cases. This sort of commission, which would supplement the clemency process, is necessary, in large part because current procedural defaults and inadequate lawyering have prevented claims of factual innocence from receiving full judicial consideration and the clemency process currently is not equipped to handle them.”

The case of Kevin Keith is just such an instance of claimed actual innocence. Kevin Keith is presently scheduled for execution Sept. 15.

On a somber note, the Ohio Department of Rehabilitation and Correction has issued a press release announcing that will begin accepting credentials of media outlets planning to cover the scheduled execution.

Earlier coverage of the clemency hearing begins with this post.

Cleared, and Pondering the Value of 27 Years

That's the title of James McKinley article in the New York Times looking at the case Michael Green, exonerated recently in Harris County.  LINK

Since a judge let him out of prison for a rape that prosecutors now say he did not commit, Michael A. Green has had trouble sleeping.

Late at night, he walks the neat, quiet sidewalks in the neighborhood where he is staying with an aunt, chain-smoking cigarettes, his mind spinning furiously with questions about why he was convicted 27 years ago and how to spend what is left of his life.

He also ponders, he says, whether to take a $2.2 million compensation payment from the State of Texas or file a civil lawsuit in the hope of exposing the truth about the investigation that led to his incarceration. To receive the compensation, he must waive the right to sue.

“What I really need to do is to make them pay for what they done to me,” he says. “Two-point-two million dollars is nothing when it comes to 27 years of my life, which I spent with mental torture and physical abuse.”

Mr. Green, 45, was set free by a state judge two weeks ago after DNA tests on the rape victim’s clothing proved that he could not have been responsible for the crime. His exoneration was the work of a new unit in the Harris County district attorney’s office dedicated to reviewing claims of innocence.

The story of Mr. Green’s nightmarish imprisonment — and how a prosecutor, Alicia O’Neill, eventually unearthed biological evidence that led to the real culprits — throws a harsh spotlight on an uncomfortable reality in American justice: the identification of a suspect in a lineup or in an array of photos is not always reliable.

More than three-quarters of the 258 people exonerated by DNA tests in the last decade were convicted on the strength of eyewitness identifications, according to the Innocence Project, the Manhattan-based organization dedicated to freeing innocent prisoners.

In Texas, the problem is even more acute: identifications by eyewitnesses played a pivotal role in 80 percent of the 40 people who have been exonerated with DNA evidence.

Some states, among them North Carolina and Ohio, have passed legislation changing the way lineups are conducted to reduce the possibility of an error, but similar bills in dozens of other states, including Texas, have failed in the face of stiff opposition from prosecutors and law enforcement agencies, defense lawyers say.

Related posts are in the exoneration and eyewitness identification indexes.

News Coverage of Kevin Keith's Clemency Hearing

The Columbus Dispatch reports, "Supporters turn out to appeal for condemned man," by Jim Nash.

The pattern of tire treads in the snow, the memory of a 4-year-old child and whether the word cripple is synonymous with kill could determine whether Kevin Keith dies next month for a triple murder in Bucyrus more than 16 years ago.

Keith, now 46, is scheduled to be put to death Sept. 15 for murdering two women and a 4-year-old girl, and wounding three others, while spraying an apartment with bullets to send a warning to a drug informant.

His case has attracted an unusually large coalition of supporters, including the president of the National Innocence Network, former Ohio Attorney General Jim Petro, lawyers and a retired Columbus cop. All are convinced that jurors acted rashly in convicting Keith, ignored evidence implicating another man and overlooked factors that suggested Keith's innocence.

Family members of the victims and Ohio Attorney General Richard Cordray's office maintain that plenty of evidence - from the tread of tires in the snow leading from the Bucyrus Estates apartments to the testimony of numerous eyewitnesses - shows that only Keith could have committed the murders.

The Ohio Parole Board spent 12 hours yesterday reviewing statements from both sides. The panel is expected to issue its recommendation to Gov. Ted Strickland next week. Keith is asking for a full pardon.

"I'm convinced after my fairly thorough review of the file ... that this great state, to which I've dedicated my legal career, is just weeks away from executing an innocent man," said John Q. Lewis, an attorney for the powerhouse Jones Day firm in Cleveland who has worked on Keith's case for free.

The Mansfield News Journal has two articles covering yesterday's lengthy hearing.  First, "Kevin Keith clemency hearing lasts 12 hours," by Larry Phillips.

Kevin Keith's marathon 12-hour clemency hearing Wednesday may have set a duration record. It also gave his supporters one of their last chances to help the convicted triple murderer avoid a lethal injection Sept. 15.

Keith, 46, who did not attend, was represented by nine speakers, including Ohio Public Defender Rachel Troutman, the National Innocence Network and the Ohio Innocence Project.

Operating before an audience of about 100 people in a sweltering hearing room at the Ohio Department of Rehabilitations and Corrections, Keith's team offered a seven-hour appeal punctuated by multiple presentations, expert witnesses in memory and faulty identification, a man wrongfully convicted of murder and a rape victim who misidentified her attacker.

Julie Walburn, spokeswoman for the state corrections department, said most defendants are allotted one hour to plead their case, but the board gave Keith's supporters leeway. The hearing surpassed the previous longest hearing of 10 hours in 2007, Walburn said.

The bottom line, according to Troutman, is Keith is innocent of killing three people at Bucyrus Estates on Feb. 13, 1994, and wounding three others in a shooting spree.

"They arrested Kevin Keith and hoped to find evidence to link him to the crime," Troutman said. "Mr. Keith wants a full pardon."

That can only come from Gov. Ted Strickland, who can accept, reject, or ignore the recommendation from the nine-member clemency panel. The panel isn't expected to make its recommendation before Aug. 18.

Today's News Journal also has, "Victims, family say they're certain Kevin Keith pulled trigger," by Kimberly Gasuras.

The victims and their families in the Kevin Keith case spoke out at a clemency hearing for the convicted triple murderer in Columbus on Wednesday.

Keith was convicted in 1994 of the shooting deaths of Marichell Chatman, her 4-year-old daughter Marchae and her aunt, Linda Chatman. Also shot were Marichell's two cousins and her friend, Richard Warren.

In the most emotional part of the day-long hearing before the Ohio Parole Authority Board at the Ohio Department of Rehabilitations and Corrections, the youngest shooting victim, Quentin Reeves, spoke.

"I don't lie. He was sweat-ing, a lot. He had a little black bag and then started telling us to get on the ground. I saw sparks from the gun. I saw my sister get up and he shot her again," said Quentin, who is in his early 20s now but was just 4 when he was shot at the Bucyrus Estates apartment of his cousin, Marichell Chatman.

His sister, Quanita Reeves, was 6 at the time of the Feb. 13, 1994, shootings.

"I know it was Kevin who shot us. I saw his face," Quanita said.

The AP report, "Ohio convicted killer of 3 asks for mercy," by Andrew Welsh-Huggins is via the Dayton Daily News.

State and federal courts have upheld Keith's conviction, and the U.S. Supreme Court in June rejected efforts to have his case reviewed.

Members of the eight-member board expressed doubts Wednesday about Keith's innocence. Board member Trayce Thalheimer asked why Keith couldn't be just as much a suspect as the perpetrator named by Keith's lawyers.

Board chairwoman Cynthia Mausser said she's bothered by trial evidence that Keith winked and blew kisses at victims' family members during his 1994 trial.

"It certainly is suspect of someone who is innocent acting that way toward the victims," Mausser said.

The board's recommendation is expected next week. Gov. Ted Strickland, who has the final say, has said Keith's case contains troubling circumstances.

WKSU-FM, Ohio Public Radio, has, "Parole board hears Keith case," by Jo Ingles.  There is audio at the link.

The Ohio Parole Board is considering the fate of a death row inmate from Stark County who many people think might be innocent.

Much attention has been given to Kevin Keith, specifically by the Innocence Project, a group that's been responsible for reversing convictions of some death row inmates in the past. But the state is pressing forward with plans to execute Keith next month.

Earlier coverage begins with this post.

Kevin Keith's Clemency Hearing

Video from a news conference held by supporters of Kevin Keith is here.  Supporters also issued this news release.

Amid growing concern that the State of Ohio may be on the verge of executing an innocent man, prominent individuals from Ohio and across the country today called on the Ohio Parole Board and Governor Ted Strickland to grant clemency to Kevin Keith.

Mr. Keith is scheduled for execution on September 15, 2010, despite new overwhelming evidence of innocence that no court or jury has ever heard in its entirety. The new evidence shows that Mr. Keith was wrongfully convicted based on faulty and improperly influenced eyewitness identification. Additional new evidence identifies an alternative suspect who told a police informant that he was paid to carry out the crime for which Mr. Keith now stands to be executed.

Letters urging clemency were delivered to the Parole Board and the Governor today from over 30 former state and federal judges and prosecutors, the Ohio Innocence Project, the National Innocence Network (comprised of 61 innocence projects and legal organizations), over 100 Ohio faith leaders and organizations, 13 leading eyewitness and memory experts, law enforcement, and death row exonerees, among others.

In addition, two petitions, one with over 11,000 signatures and another with over 9,000 signatures from across Ohio and the United States, were delivered along with the letters.

Distinguished Ohioans supporting clemency include former Attorney General of Ohio Jim Petro; State Senator David Goodman (R – 3^rd District); former Ohio Supreme Court Justice Herbert R. Brown; former United States Court of Appeals Judge for the Sixth Circuit, Nathaniel R. Jones; former Minority Leader of the Ohio Senate Ben Espy (D – 15^th District); and members of the Ohio Public Defender Commission.

In his letter to the Governor, Sen. Goodman, sponsor of the bipartisan reform bill signed into law this year that mandates new requirements for eyewitness identification procedures, states: "The eyewitness identification procedures used in Mr. Keith's case are the very ones that we sought to correct in the reform package….The Legislature overwhelmingly passed the reforms because we recognized that the possibility of a wrongful conviction is real."

Retired Judge Judge H. Lee Sarokin, a petition signer, has posted, "Are We About to Execute Yet Another Possibly Innocent Person?" on Huffington Post.

In considering these cases, I am willing to recognize that many guilty persons claim that they are innocent; that both the judicial system and the family of victims need and are entitled to closure; and that procedural rules are necessary for such closure and to avoid repetitive and endless petitions for relief. However, there are those cases with growing frequency that cry out for a fresh look, a relaxation, if necessary, of the rules, where the choice is between executing a possibly innocent man or giving him the opportunity to establish his wrongful conviction and actual innocence. This may very well be such a case. To grant him the relief which he seeks is to render justice; to execute him at this juncture without more -- is to deny it.

"Ohio killer of 3 claims innocence, asks for mercy," is the initial AP report by Andrew Welsh-Huggins, via the Dayton Daily News.

A lawyer for a condemned Ohio inmate scheduled to die next month says the state could execute an innocent man for an unsolved crime.

Attorney John Lewis told the Ohio Parole Board Wednesday that the case against Kevin Keith is not a referendum against the death penalty and is not about politics.

Lewis says there's strong evidence of an alternate suspect and numerous problems with the identification of Keith as the person responsible for a triple killing.

Keith is asking not just for clemency but for a full pardon, a relatively rare request to the board by a death row inmate.

The Guardian has, "Death penalty backers join calls for Ohio man to be spared."

An unlikely coalition of death penalty backers and opponents, including conservative politicians and former judges, is attempting to prevent the execution of an Ohio man they say was wrongly convicted of murdering a young child and two women.

Suggestions that police fabricated evidence against Kevin Keith, 46, has led the group to urge Ohio's governor to spare him should his parole board hearing fail.

The case is also fuelling demands for a rethink of the death penalty in Ohio, which carries out the second highest number of executions in the US.

More coverage:

AFP: Ohio urged to halt execution of triple-murder convict

Bucyrus Telegraph: Clemency hearing today for Bucyrus triple murderer Kevin Keith

Mansfield News Journal: Clemency hearing today for Bucyrus triple murderer Kevin Keith

Columbus Dispatch: Nurse changes story on incriminating ID in murder

AP via the Zanesville Times Recorder: Ohio challenges condemned inmate Keith's innocence claim

AP via the Record-Courier: Officials call for review of state's death row cases

Earlier coverage of the case begins with this post.

Kevin Keith Clemency Hearing Tomorrow

Today's New York Times reports, "Unusual Alliance Protests Execution," written by Bob Driehaus.  Here's an extended excerpt:

An unlikely array of Republicans and Democrats, attorneys general and federal and state judges and prosecutors has lined up to fight the execution of a death row inmate many believe to be innocent.

Dozens of former officials have joined death penalty opponents to appeal to Gov. Ted Strickland of Ohio, a Democrat, to spare the life of the inmate, Kevin Keith. They say emerging evidence of investigative errors, inadequate defense and the existence of another suspect merit a pardon or at least a new trial.

The diverse group, including some who generally support the death penalty, is scheduled to appear at a news conference at the Statehouse in Columbus on Tuesday, ahead of a clemency hearing on Wednesday.

Mr. Keith, 46, was convicted of murdering two women and a 4-year-old girl and wounding a man and two children in February 1994. Prosecutors said he sprayed gunfire through an apartment in Bucyrus, Ohio, to retaliate against a relative of some of the victims who cooperated with a drug raid.

Mr. Keith is scheduled to be executed by lethal injection on Sept. 15. But many believe he did not commit the crime.

“I am gravely concerned that the State of Ohio may be on the verge of executing an innocent person,” Jim Petro, a former Ohio attorney general and a Republican who described himself as a death penalty supporter, wrote in a letter to Mr. Strickland.

Herbert R. Brown, a member of the Ohio Public Defender Commission and a former Ohio Supreme Court justice, wrote to the governor, “There is a mass of exculpatory evidence, suppressed evidence, faulty eyewitness identification and forensic reports that support legitimate claims of innocence.”

Those officials were joined by 31 former judges and prosecutors from around the country; the Innocence Network and its 61 affiliates, including the Ohio Innocence Project; and 100 religious leaders and organizations — a level of support that very few cases reach, said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington.

Defense lawyers say another man told a confidential informant in a separate drug investigation that he had been hired for $15,000 to “cripple” the informant whose relatives were victims of the Bucyrus shooting. That other man was also identified as the Bucyrus gunman by his co-defendant in the drug case, said Rachel Troutman, Mr. Keith’s lawyer.

Lawyers say that a critical piece of evidence in Mr. Keith’s case was fabricated. A police officer testified that a nurse who treated the lone adult survivor had called the police station and said the survivor identified his attacker as “Kevin.” But the original defense team did not call the nurse to testify, and a 2007 investigation found no nurse with the name given by the officer. A nurse with the same first name but a different surname who treated the victim stated in a 2007 affidavit that she did not hear or relay the name of the gunman.

"Canton man on death row seeks clemency," is the title of the article in the Canton Repository.  It's written by Charita Goshay.

Rachel Troutman of the Ohio Public Defender’s Office has filed a petition of clemency on Keith’s behalf. A hearing is set for Wednesday in Columbus, with the board expected to hand its recommendation to Gov. Ted Strickland on Aug. 18.

The governor could opt to alter Keith’s sentence, pardon him or allow the execution slated for Sept. 15 to move forward.

“We are requesting a full pardon,” Troutman said. “We’ve taken the entire case apart, and identified the actual killer.”

Strickland recently told the Columbus Dispatch that Keith’s case contains some “troubling” circumstances. “We are looking at that case very seriously,” he said.

More than 10,000 people have signed an online petition in support of Keith at www.kevinkeith.org.

“I’m optimistic that there’s no way Kevin Keith is going to be executed,” Troutman said. “I think the governor’s going to take time to do this painstakingly. At the end of the day, he’ll see there’s nothing left against Kevin Keith, and if he isn’t pardoned, a killer will continue to walk the streets of Bucyrus.”

Earlier coverage begins with this post from yesterday.

In an unrelated case, Ohio carried out its 7th execution of the year earlier this morning.  Jeannie Nuss files, "Ohio executes man who killed 2 at warehouse in '91," for AP.

Prison officials say 38-year-old Roderick Davie died by lethal injection at 10:31 a.m. Tuesday.

And:

Davie is the seventh person to be put to death in Ohio this year, tying a record that the state set in 2004. The execution is the 40th in the state since Ohio resumed executions in 1999.

Davie's was the 34 execution in the nation this year; the 1,222nd since 1977.  Texas has carried out 15 executions in 2010; 462 since 1982.  According to TDCJ, Texas' next scheduled execution in August 17.

Commentary on the Racial Justice Act

"Colors of justice," is the editorial from the News & Observer.  It appeared in the Sunday edition.

North Carolina's Racial Justice Act helps defendants highlight bias that they believe taints a death-penalty prosecution. For instance, it lets them challenge a death sentence with statistics suggesting that racial discrimination has tilted the judicial scales.

The law grew out of long-standing concerns that there was a double standard when it came to imposing the ultimate punishment, with someone who murdered a white person more likely to face execution than someone who murdered an African-American.

If such a disparity exists, it has curious policy implications: Should more black defendants be sentenced to death to even things out? Given the kinds of flaws in the system that have led to some notable miscarriages of justice in capital cases, as well as other reasons why the death penalty is problematic, executing more people would not be the solution to anything.

That said, if the law now gives a person a better chance to show that race was one of the reasons he ended up on death row, then this is a picture that North Carolina must be prepared to confront.

Death-row inmates were given a year from the date the law took effect to initiate their challenges, making Tuesday the cutoff. And the first group of five challenges reflect some disturbing patterns.

Yesterday's Winston-Salem Journal carried the editorial, "Death Penalty Bias."

A black defendant who got the death penalty in Stanly County being referred to in trial testimony as a "nigger from Wadesboro." A juror in a Randolph County case who said after the trial in which he voted for death for the black defendant that "blacks do not care as much about living as whites do."

These are extremes, but they illustrate an unavoidable point made in study after study, including two new ones: The imposition of the death penalty in North Carolina often comes with racial bias. It's past time for an official moratorium on the death penalty in this state.

It matters not whether that bias is unintentional or intentional. It matters not that there's little doubt about the guilt of most of these defendants. What should matter to every resident of this state is that when it comes down to imposing the ultimate punishment, a process that should meet the highest standards of fairness, one of the factors that undoubtedly influences many cases is the skin color of the defendant and victim. The percent of blacks on North Carolina's death row -- about 54 percent -- is more than twice as high as the percent of blacks in the general population. If you kill a white person, you're more likely to get the death penalty statewide. One possible factor: Prosecutors strike, or eliminate, potential black jurors from death-penalty trials of black defendants at alarming rates.

The Journal also carried an OpEd, "Mistaken conviction leads to regret," by Jennifer Thompson.  She's the co-author of Picking Cotton: Our Memoir of Injustice and Redemption, noted here.

When the North Carolina Racial Justice Act was enacted one year ago, I felt immensely proud to be a North Carolinian. I know from devastating personal experience the importance of rooting out racial bias and injustice in our courtrooms.

As a 22-year-old college student in Burlington, I was brutally raped at knifepoint by a man who broke into my apartment while I slept. During the crime, I studied every feature of my rapist's face -- and my testimony sent a black man to prison for life.

Eleven years later, I found out I had identified the wrong man.

Ronald Cotton was released from prison in 1995, after DNA evidence showed that my rapist was Bobby Poole. Poole raped more women while I pursued vengeance against Ronald Cotton.

I see now that race played a strong role in Cotton's mistaken conviction.

And:

I will always live with the guilt and shame of unjustly accusing Ronald Cotton. I can never return the 11 years I took from him. But when the evidence proved I was wrong, I admitted my mistake and the court system set him free. However belatedly, justice was served. Years later, I asked for his forgiveness and, mercifully, he gave it.

Now, our state has compelling evidence that inmates set to be executed received their sentences because of racial bias -- and we must right that wrong as well, by converting their sentences to life in prison.

Only then can we begin to heal the wounds of a legacy of injustice.

The OpEd, "I believe Racial Justice Act serves no useful purpose," by Elliot M. Cramer is in the Durham Herald-Sun.  is professor emeritus at the UNC Psychometric Laboratory. 

Suppose we accept the claims of discrimination; there are two obvious solutions -- execute fewer murderers of whites, 72 percent of whom are white, or execute more murderers of African-Americans, 94 percent of whom were African-American. Those opposed to the death penalty might advocate the former but few would advocate the later. When I testified on this before a House of Representatives hearing, the Rev. William Barber, president of the North Carolina NAACP, compared me to Kramer on the "Seinfeld" TV show. Tye Hunter of the Durham-based Center for Death Penalty Litigation, said "It's good to have some facts;" the Rev. Barber evidently feels differently.

I personally believe that the Racial Justice Act serves no useful purpose. Before 2001, district attorneys had to seek the death penalty in cases with aggravating circumstances. Now prosecutors often seek life without parole in such cases. Court statistics show a steep drop in death sentences since that change. From 1992 to 2001 there were twenty-five death sentences a year while since then there have been only about four per year. One would hope that death sentences are being reserved for the worst offenders.

Earlier coverage of the first cases filed under the RJA is here.

An Update on Troy Davis

"Death Row Inmate's Team Fights to Save Case," by Alyson Palmer is in today's Fulton County Daily Report, a member of the Law.com family of publications.

Lawyers for Troy Davis are fighting to fix the damage caused by their failure to call at a recent hearing the man they say committed the murder for which Davis has been sentenced to die.

The problem occurred in June, during an event Davis' supporters had fought for years to achieve: an evidentiary hearing at which Davis could press his claims that he did not kill Savannah, Ga., police officer Mark Allen MacPhail.

Courtesy of an unusual order from the U.S. Supreme Court, they received that opportunity before U.S. District Judge William T. Moore Jr.

But after the hearing got under way, Moore said he had a problem with Davis' case: Where was Sylvester Coles? Going back to Davis' murder trial in 1991, Davis' advocates had pointed the finger at Coles as the real killer of MacPhail.

"Here's one of the most critical witnesses to Mr. Davis' defense who is available, who is in the community, who lives in this community, who could have been subpoenaed to come here and has not been subpoenaed to come here," Moore chided Davis' lawyers at the June 24 court session, according to Davis' court papers.

Based on Davis' failure to bring Coles to court, Moore ruled that he wouldn't hear the testimony of Quiana Glover, who was expected to say that Coles had confessed to her that he had killed MacPhail. Moore also indicated he was inclined to give no credence or consideration to the testimony of other witnesses, Anthony Hargrove and Benjamin Gordon, who similarly testified at the hearing that Coles had confessed to them. Moore's reason? The so-called confession testimony was mere hearsay.

After Moore indicated he had problems with their approach, Davis' team tried to subpoena Coles the morning of the second day of the hearing, according to an affidavit of an investigator filed in court last month. But the investigator was unsuccessful in serving Coles, the affidavit says.

And:

In Davis' latest briefs to Moore, one of Davis' lawyers, Jason Ewart of Arnold & Porter in Washington, D.C., says decisions about what witnesses to call were made based on an earlier ruling from Moore. Ewart interprets that ruling to mean that hearsay rules didn't apply in the proceeding, such that witnesses could testify that Coles confessed to them even if that would normally be considered hearsay. Moreover, he argues, calling Coles to the stand wouldn't have made otherwise inadmissible hearsay admissible.

That earlier ruling came in response to a motion from the state asking Moore to exclude from consideration any affidavits not already in the record from prior state habeas proceedings, on the ground that they were inadmissible hearsay or beyond the scope of the Supreme Court's order.

Earlier coverage of the extraordinary hearing begins here.

An Update on Kevin Keith

With his clemency request set to be heard this week by the Ohio Parole Board, the case is one reason some state officials are calling for a broader examination of the state's death penalty.

Sunday's Columbus Dispatch reported, "Timeout from death?  Questions in the case of a man heading toward execution prompt calls for a review of Death Row cases - and a possible moratorium."  It was written by Mike Wagner and Alan Johnson.  Here's an extended excerpt from the beginning of the article:

The former high-school football star sits with shackles around his thick legs and says things you would expect from a man on Death Row.

He is innocent. Someone else shot and killed those three people. He has a good alibi. Local police poisoned witnesses against him. The photo lineup of suspects was rigged. There was a phantom witness.

"I can't see me being put to death," said Kevin Keith, 46, who is scheduled for execution Sept. 15 and the requisite clemency hearing this week. "It would be a sad day for me, my family and the justice system."

Although they all might not believe everything Keith says, or that he's innocent, a growing number of people have doubts about his case - including the man who could save him.

"It has circumstances that I find troubling," said Gov. Ted Strickland, who has the power to grant Keith clemency. "We are looking at that case very seriously."

Cases such as Keith's, coupled with Ohio's pace for a record number of executions this year, have prompted current and former high-level officials to call for a comprehensive review of all Death Row cases - and possibly a moratorium on executions. The officials include two former prison directors and three prominent Republicans: Ohio Supreme Court Justice Paul E. Pfeifer, former Attorney General Jim Petro and state Sen. David Goodman of New Albany.

Adding to the momentum are five death-sentence commutations by two governors since 2003, passage of a strong DNA law to avoid wrongful convictions, and exonerations of three inmates because of new DNA test results.

Pfeifer, who first urged a Death Row review in a Dispatch story in May, remains the strongest advocate for a review. His six colleagues on the court, plus Strickland and Attorney General Richard Cordray, have no interest in a study commission, much less a moratorium.

"This isn't about me or anything I might do," Pfeifer said, "although I might have to revisit that if the new governor says, 'I don't want any part of it.'"

Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional. Pfeifer said he is not suggesting that any of the 160 men and one woman on Death Row are innocent or should be set free, only "whether or not death is the appropriate penalty."

Petro supports the death penalty but favors forming an independent task force to examine Death Row cases and halting executions while that review is being conducted.

"We should show restraint, caution and diligence with these cases," Petro said. "DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

Two former state prison directors, Reginald A. Wilkinson and Terry Collins, who witnessed 34 of 39 executions since 1999, agree that the Death Row cases should be reviewed to see if they are the "worst of the worst," the standard set down when Ohio resumed capital punishment 11 years ago.

The AP rewrite, via the Cleveland Plain Dealer, is, "Ohio officials call for review of death row cases."

Several high-ranking officials in Ohio are calling for a comprehensive review of all death-row cases-and a possible a moratorium on executions while that review's carried out.

Former Attorney General Jim Petro said an independent task force should examine the cases of inmates on death row and that the state should halt executions in the meantime, according to The Columbus Dispatch.

And:

Another official-state Supreme Court Justice Paul Pfeifer-said the state needs to look at "whether or not death is the appropriate penalty." Pfeifer was one of three Republican state senators who brought back the state's death-penalty law in 1981 after the old law was declared unconstitutional.

These questions about the death penalty come as Ohio's on pace for a record number of executions this year, including one scheduled for Tuesday.

"Before the next 10 to 15 executions occur in Ohio, they ought to be sure that all the protective mechanisms are in place," said Richard Dieter, who heads the Death Penalty Information Center in Washington.

Attorney General Richard Cordray, on the other hand, said he hasn't seen anything to justify a moratorium of executions in Ohio.

"I'm confident so far, we haven't had any miscarriages of justice on my watch," Cordray said.

Gov. Ted Strickland doesn't support an additional review either.

Earlier coverage of Kevin Keith's case begins with this post; related posts are in the eyewitness identification index.   Earlier coverage of the Ohio Chief Justice's call for a sweeping review of the state's death sentences is here; coverage of the governor and attorney general's recent call for DNA testing in seven cases, here.

Supporters of Kevin Keith appreciate everyone who took the time to sign a petition urging clemency in his case.  I understand that over 18,000 did so.  The petition will be presented to the Ohio Parole Board on Wednesday.  I'll be removing the right-column Take Action box later today.

Kevin Keith

Friends of Kevin Keith in Ohio are renewing the call for signatures to a petition seeking clemency in his case.  Keith has a clemency hearing on August 11.

You can sign the petition by clicking on the Take Action box in the right-column.

He has a September 15 execution date.

Earlier coverage of his case begins with this post.;related posts are in the eyewitness identification index.

More on the Kevin Keith Case in Ohio

Brian Evans has posted, "Kevin Keith and the Witness Who Wasn't There," at Huffington Post.  Evans is with Amnesty International USA's Death Penalty Abolition Campaign.

A man faces execution despite a strong claim of innocence. With a conviction based on deeply flawed witness testimony, and emerging evidence pointing to an alternative suspect, doubts about his guilt continue to grow. Yet Kevin Keith is scheduled to be put to death by the state of Ohio on September 15. He has a clemency hearing on August 11, and he is still hoping for a court to grant him a new trial, but time is slipping away. It is important to ACT NOW!

Amnesty International opposes all executions, but even death penalty supporters should be concerned when serious claims of innocence have not been heard, and serious doubts about guilt have not been resolved.

You can sign the petition by using the right-column Take Action box.

Earlier coverage of the case begins with this post; related posts are in the eyewitness identification index.

Troy Davis Case Full of Murky Legal Questions

That's the title of an AP report by Russ Bynum, via the Savannah Morning News.  LINK  For those following the Davis case, it's a must-read.

Thanks to an order from the U.S. Supreme Court, a Georgia death row inmate was granted a hearing to prove his innocence to a federal judge — a chance afforded no American facing execution in nearly half a century.

Now that the court hearing is over, what happens next isn't so clear. The case of condemned inmate Troy Anthony Davis is so unusual, legal experts can't even agree on what the judge can do.

Davis' fate rests with a U.S. District Court judge who heard testimony in June from witnesses who say they lied at Davis' trial. Others say they heard another man confess to the 1989 slaying of Savannah police officer Mark MacPhail.

Judge William T. Moore Jr. won't rule until after he reviews legal briefs from both sides due Wednesday.

Some experts say the judge could order a new trial. Others say the judge could make a recommendation to the Supreme Court that Davis be freed from prison. There's also a possibility the judge could find Davis innocent, yet rule he's powerless to spare Davis' life.

"There is some ambiguity," said John H. Blume, a Cornell Law School professor who specializes in death penalty appeals. "Whenever you've got something this new, that hasn't happened all these years, you're really making your best guess."

In death penalty cases, federal courts normally consider only violations of due process and constitutional rights. When a divided Supreme Court granted Davis a hearing to prove his innocence last August, dissenting Justice Antonin Scalia called it "an extraordinary step — one not taken in nearly 50 years."

The Supreme Court set the burden on Davis to "clearly establish" his innocence with evidence that wasn't available at his 1991 trial, when Davis was convicted of shooting MacPhail as the off-duty officer rushed to help a homeless man being attacked.

If the judge rules against Davis and the Supreme Court upholds his decision, it's likely the end of his case — though Davis could make another appeal for clemency to the Georgia Board of Pardons and Paroles.

If Davis succeeds in proving his innocence, things get murkier.

And:

Complicating things further, the legal issues before the judge don't stop with Davis' innocence or guilt.

The judge has asked lawyers to weigh in by Wednesday on two broader issues that could restrict his authority.

The judge's first question: Is he prohibited from helping Davis, even if he's innocent, by a 1996 law passed by Congress after the Oklahoma City bombing that limits death penalty appeals?

Scalia argued in his dissent that the Anti-Terrorism and Effective Death Penalty Act means federal courts are powerless to overrule Georgia courts that already rejected Davis' innocence claim.

The other legal question before the judge sounds like a no-brainer, but it's a constitutional issue the Supreme Court hasn't settled.

Appeals courts found that Davis received a fair trial. If he later proves he's innocent, would it be cruel and unusual punishment to execute him? Or would putting him to death still be constitutional because Davis received a fair trial?

"It's the kind of claim you almost have to be a lawyer to make it sound even plausible," said Robert Schapiro, a professor of constitutional law at Emory Law School. "But the Supreme Court has never held that it violates the Eighth Amendment to execute someone who is actually innocent."

Earlier coverage of the case begins with this post.

Tory Davis' Federal Hearing Concludes

Bill Rankin writes, "Judge must decide whether Troy Davis proved innocence in cop killing," for the Atlanta Journal-Constitution.

In closing arguments Thursday, a member of Davis' legal team contended police rushed to judgment and got the wrong man in the killing. But a state attorney countered that Davis had fallen far short of producing enough new evidence to convince anyone that he did not gun down Savannah police Officer Mark Allen MacPhail as he ran to the aid of a homeless man being pistol-whipped.

At the close of the extraordinary two-day hearing ordered by the U.S. Supreme Court, U.S. District Judge William T. Moore Jr. did not issue an immediate ruling. He instructed attorneys to file legal briefs by July 7 and said he would rule as promptly as possible.

Earlier Thursday, however, Moore handed Davis' legal team a huge blow by ruling out testimony from a number of witnesses who were going to say that Sylvester "Redd" Coles told them he, not Davis, shot and killed MacPhail.

Davis has fought for a decade to get a court hearing to present his new evidence. But Moore's ruling, and decisions this week by Davis' legal team not to call a number of key prosecution witnesses who testified at the 1991 trial, ultimately may mean Davis cannot clear a difficult legal threshold set by the nation's highest court.

The U.S. Supreme Court, in a stunning ruling last August granting Davis his hearing, said Moore must decide whether new evidence "clearly establishes" Davis' innocence.

Davis attorney Jason Ewart told Moore that any reasonable juror would not convict Davis today after hearing the new evidence presented this week. That includes the recantations of four prosecution witnesses who earlier had testified they either saw Davis kill MacPhail or said Davis told them he did it. Those witnesses now say they were threatened and coerced into giving false testimony.

Ewart also expressed confidence in Benjamin Gordon, a relative of Coles', who testified for the first time Wednesday that he witnessed Coles gun down MacPhail.

And:

Davis' lawyers did not call Coles to the stand this week, and Moore made them pay for it. He ruled out testimony by a number of witnesses who would have said Coles told them he killed MacPhail, on the grounds it was inadmissible hearsay. Moore told Davis' lawyers they could have gotten around that by calling Coles to the stand and giving him the chance to rebut that testimony.

"Here's one of the most critical witnesses to Davis' defense," Moore said. "Mr. Coles is available to testify and you don't call him. Mr. Coles should have been called by you."

Philip Horton, one of Davis' lawyers, said the legal team tried unsuccessfully to serve Cole with a subpoena on Wednesday, soon after Moore said he might not give any weight to hearsay evidence. Too late, Moore shot back, noting the hearing had been set months in advance.

"Troy Davis hearing ends; no date yet for decision on new trial," is the title of the Savannah Morning News' coverage.  It's written by Jan Skutch, Jenel Few, and Michael Atkins.

Testimony that Sylvester "Redd" Coles fired the fatal gunshots into a Savannah police officer provides clear and compelling new evidence that Troy Anthony Davis should get a new trial, his lawyer argued Thursday.

Referring to testimony Wednesday by Benjamin Gordon that he saw Coles fire a shot into Mark Allen MacPhail on Aug. 19, 1989, attorney Jason Ewart argued, "This type of evidence is most important to this case."

Davis' attorneys have argued Coles, not Davis, killed MacPhail and that Savannah police committed to Davis as the murderer early on to the exclusion of all other suspects.

He contends the state failed to substantiate evidence of blood on a pair of black shorts found in the laundry room of Davis' mother, Virginia Davis, or to prove bullets taken from MacPhail's body matched those taken from a shooting victim in Cloverdale earlier Aug. 19.

But Beth Attaway Burton, senior assistant attorney general, argued the defense team had failed to produce any new evidence in the case.

"This was their chance," she told U.S. District Judge William T. Moore Jr. "Their standard is extremely high. They have not met it."

The hearing, which began Wednesday in Savannah's federal courthouse, came to an end Thursday afternoon.

After peppering attorneys with a series of questions, Moore told them he wanted briefs on a series of issues by 5 p.m. July 7, with no response time to follow for either party.

He promised to rule after receiving their responses, but said he could not give them a "time frame on that."

The U.S. Supreme Court last August directed that a federal judge take testimony to determine whether it "clearly establishes (Davis') innocence."

Russ Bynum's AP filing is, "Ga. hearing for Troy Davis closes on second day," via Google News.

Attorneys for a Georgia man on death row for slaying a police officer have told a federal judge that new evidence shows police ignored the real killer in a rush to judgment nearly 21 years ago.

But as the two-day hearing came to a close Thursday, prosecutors argued that Troy Anthony Davis' lawyers were rehashing old testimony already rejected by a jury and blaming another man for the crime through hearsay accusations that no trial court would consider.

Coverage of the hearing's first day is here.

News Coverage of the Troy Davis Hearing - Day 1

Today's New York Times carries a brief item, "Georgia: Witnesses in Murder Case Recant," by Shaila Dewan.

In an unusual hearing ordered by the Supreme Court that began in Savannah on Wednesday, several witnesses said they had concocted testimony that Troy Anthony Davis killed a police officer, Mark MacPhail, in 1989. Last August, the Supreme Court ordered a federal district court to determine if new evidence “clearly establishes” Mr. Davis’s innocence, its first order in an “actual innocence” petition from a state prisoner in nearly 50 years, according to Justice Antonin Scalia, who dissented.

The latest AP filing is, "Ga. death row inmate in rare innocence hearing," by Russ Bynum.

In U.S. District Court on Wednesday, Davis' lawyers rested their case after calling nine witnesses to support that claim. The hearing will continue Thursday with prosecutors presenting rebuttal evidence.

Judge William T. Moore said he's highly skeptical of testimony that another man has admitted to shooting MacPhail, because Davis' attorneys did not subpoena the man they say is the real killer.

"This hearsay testimony is looked at with suspicion and great caution," said Moore, who told attorneys he may give the claims "no credence whatsoever when I make my ruling in this case."

Davis, 41, won a rare chance to argue he was wrongly convicted of killing MacPhail, an off-duty police officer who was shot as he rushed to help a homeless man being attacked near a downtown bus station.

Davis sat in the courtroom Wednesday wearing his white prison uniform and chains on his ankles, while dozens of his supporters from groups including Amnesty International and the NAACP rallied outside the courthouse.

Federal death penalty appeals usually look only at questions of due process and constitutional rights. But the nation's high court last summer took the unusual step of granting Davis a chance to prove his innocence.

Legal experts say the Supreme Court set a tough standard for Davis. The court's August decision said his attorneys must "clearly establish" Davis' innocence.

"Witnesses back off testimony against Troy Davis," is the title of Bill Rankin's Atlanta Journal-Constitution report.

One witness after another raised their right hands Wednesday and swore to tell the truth, just like they did 19 years ago when their testimony helped put Troy Anthony Davis on death row.

This time, however, four key prosecution witnesses gave markedly different statements, either saying they never saw Davis kill a Savannah policeman or never heard him confess to the crime.

Also Wednesday, a 36-year-old prison inmate offered surprise testimony, saying in court for the first time that he witnessed another man shooting and killing Officer Mark Allen MacPhail as he rushed to help a homeless man being pistol-whipped in a Burger King parking lot late one summer night in 1989.

The extraordinary hearing, ordered by the U.S. Supreme Court last August, continues Thursday as lawyers for the state Attorney General's Office wrap up their side of the case.

Rankin also wrote the sidebar, "Then and now: Witnesses change their stories," for the Journal-Constitution.

The Savannah Morning News has, "Troy Davis hearing could end today," written by Jan Skutch and Pamela E. Walck.

A man attorneys for Troy Anthony Davis contend killed a Savannah police officer bragged he was the one who committed the crime for which Davis was convicted, a Chatham County jail inmate testified Wednesday.

Sylvester "Redd" Coles told him, "Troy took the fall," for the slaying he committed, Anthony Hargrove testified.

Hargrove, who somewhat gleefully admitted he has "been in the system 20 years plus change," said he did not reveal the admission because he had legal problems in Florida, calling it "self-preservation."

Davis, 41, is in federal court here in Savannah on what his defense team contends is new evidence that may have resulted in his acquittal in the Aug. 19, 1989, slaying of Mark Anthony MacPhail.

Davis' team rested their main case about 4 p.m. Wednesday, "a lot earlier" than their witness list indicated, U.S. District Judge William T. Moore Jr. said before recessing court about 5:30 p.m.

Moore is under a mandate from the U.S. Supreme Court to hear evidence he finds "clearly establishes (Davis') innocence."

He halted the hearing after Senior Assistant Attorney General Beth Attaway Burton ran out of witnesses for the day.

The hearing resumes at 9:30 a.m. today with the state attorney general's lawyers expected to call their final eight witnesses.

The Morning News website also has, "Latest updates from the second day of the Troy Davis hearing."

Lucile Malandain posts, "Rare US hearing could give death row inmate a second chance," for AFP.

The witnesses, some of whom were illiterate, in prison, or in their teens when they originally testified, provided the key evidence that convicted Davis, an African-American, of murdering Mark McPhail, a white police officer.

Davis, now 41, has always proclaimed his innocence, and one-by-one Wednesday, witnesses admitted they had lied to help convict him.

"When the police arrived, I told them I could barely recognize the shooter," said Atwan Williams. "I was scared, nervous, I was just trying to take off."

Asked if he had read back the deposition he gave to police, Williams replied: "No sir, I can't read."

Kevin McQueen told the court he had been given a lighter sentence in return for claiming Davis had confessed to him. "I was mad at him," he said.

Several witnesses said Wednesday that they had lied because they were intimidated by the police.

Earlier coverage begins here.  Amnesty International USA has more information at Justice for Troy.

Troy Davis Hearing Begins in Savannah

"Court to hear Troy Davis' innocence claims in cop's 1989 killing," is the title of the report by Bill Rankin in today's Atlanta Journal-Constitution.

Troy Anthony Davis returns today to Savannah, where he was convicted and sentenced to death almost two decades ago for killing an off-duty police officer during a late-night melee.

For more than a decade, Davis has sought to present in open court his claims of innocence, including the testimony of seven key prosecution witnesses who have recanted or contradicted their trial testimony. Today in U.S. District Court in Savannah he will get that chance, thanks to an extraordinary ruling last year by the nation's highest court.

Before today's hearing, spectators and members of the news media hoping to get a seat began forming a line outside the federal courthouse before 6 a.m. Davis arrived shortly before 7 a.m., accompanied by an armed escort of Chatham County police officers.

Vigils and rallies were held Tuesday night in Savannah and Atlanta on behalf of Davis and slain Savannah Police Officer Mark Allen MacPhail.

Davis' innocence claims have attracted international attention, including former President Jimmy Carter and Pope Benedict XVI urging that he be spared from execution. In recent years, Davis' scheduled execution has been halted three times -- on one occasion just two hours before he was to be put to death by lethal injection.

Last August, for the first time in nearly half a century, the U.S. Supreme Court took a case filed directly to its docket, instead of hearing an appeal of a lower-court ruling. It accepted Davis' last-ditch innocence claim after Davis had exhausted all his appeals.

The high court ordered a federal judge to convene a hearing to determine whether Davis' new claims "clearly establish" his innocence.

"Certainly, Mr. Davis and his attorneys have a very difficult burden ahead of them," said Howard Bashman, a Philadelphia attorney who operates a Web site devoted entirely to appellate litigation. "They have to show far more than there are serious doubts over the validity of the conviction. They have to show that the new evidence clearly establishes Mr. Davis' innocence."

Still to be decided is what standard U.S. District Judge William T. Moore Jr., who will preside over the hearing, will use to evaluate Davis' new innocence claims.

Must Davis prove by clear and convincing evidence that he is innocent so the judge is convinced he did not commit the crime, asked Georgia State University law professor Anne Emanuel. Or does Davis have to show that no reasonable person, after looking at the newly discovered evidence, could find him guilty beyond a reasonable doubt?

"The case does present, in very stark terms, the tension between justice and finality," Emanuel said.

Until the U.S. Supreme Court stepped in, Davis' attempts to get his new evidence presented in court had been repeatedly stymied by the federal Antiterrorism and Effective Death Penalty Act, legislation enacted in 1996 to streamline appeals of capital sentences.

But Davis' case may now force the U.S. Supreme Court to decide whether the Eighth Amendment's ban against cruel and unusual punishment also bars the execution of an inmate who has been convicted and later proved he is innocent, a claim the high court has never recognized.

And:

Davis' lawyers have identified 14 witnesses they plan to call. The state has said it will call 17 witnesses, many of them officers who investigated the case and members of the prosecution team.

The Savannah Morning News has, "Troy Davis heads back to court in Savannah," by Jan Skutch.

Troy Anthony Davis today returns to a Savannah courtroom to try to disprove his 1991 murder conviction.

U.S. District Judge William T. Moore Jr. will take testimony - without opening statements - to determine whether Davis' defense team can "clearly establish" his innocence in the Aug. 19, 1989, slaying of off-duty Savannah police officer Mark Allen MacPhail.

Attorneys for Davis, 41, contend the state and federal appellate reviews have focused on "technicalities" while depriving him of a hearing on evidence not available at the first trial that would have led to a different verdict.

Attorneys with the state attorney general's office contend the evidence simply rehashes that already dismissed by earlier court reviews.

Moore, under a U.S. Supreme Court mandate that he hear evidence, has given clear notice he intends to get right to the evidence beginning at 10 a.m.

He will deal with legal arguments from both sides later.

The Morning News has a link to its complete coverage of the Troy Davis case.

Earlier coverage begins with this post.

Justice Stevens' Legacy and the Troy Davis Case

"Stevens leaving legacy of judicial care," is the title of an OpEd in today's Atlanta Journal-Constitution.  It's by Norman S. Fletcher, a former Georgia Supreme Court Chief Justice.  He's also a member of the Constitution Project’s Right to Counsel Committee.  It's a must-read.  An excerpt:

One issue with which Justice Stevens may be closely associated is the death penalty. In 1976, he voted with the majority to reinstate the death penalty, ending a four-year period during which capital punishment resided in constitutional limbo.

Justice Stevens’ views of the death penalty and public opinion about it have evolved since 1976. In a 2007 case upholding the constitutionality of lethal injection procedures, Justice Stevens, while feeling compelled as a matter of precedent to vote with the majority, nonetheless expressed grave doubts about the death penalty, calling it “anachronistic.”

But one of Justice Stevens’ last acts involving the death penalty could be the most meaningful.

Last August, the Supreme Court considered the case of Troy Davis. Davis, who is on death row in Georgia for the 1989 murder of Savannah police Officer Mark MacPhail, was convicted solely on the basis of eyewitness testimony. Most of those witnesses have now recanted their trial testimony, some alleging that police coerced their original statements, and several new witnesses have come forward to implicate another suspect.

In ordering a federal court to hold a hearing on this new evidence, Justice Stevens stated: “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

He explained that Davis’ innocence claim constituted “exceptional circumstances” requiring the court use its rarely-invoked original habeas corpus jurisdiction.

Justice Stevens’ leadership in this case was a triumph of the common-sense notion that innocence matters; it matters more than procedural technicalities. No matter whether one opposes or supports the death penalty, I would hope we can at least agree that the innocent should not be executed.

The hearing the Supreme Court ordered will take place Wednesday in Savannah. Finally, a court will consider the weight of the new evidence. Prior to the Supreme Court decision, state and federal appeals courts relied on procedural grounds for refusing to hold evidentiary hearings.

I served on the Georgia Supreme Court when the Davis case came up on direct appeal in 1993. We upheld the conviction.

But that was before most of the witnesses had recanted their trial testimony. I was no longer a member of the court when it rejected, by a 4-3 vote, Davis’ extraordinary motion for a new trial in March 2008.

The court did not order an evidentiary hearing. If I had been on that court, the vote might have been 4-3 the other way.

It is by such razor-thin margins that we determine who lives and who dies.

CNN has posted commentary on the Davis case, "Death row inmate's rare chance to prove his innocence," by Benjamin Todd Jealous, president and CEO of the NAACP. 

On Wednesday the saga of death row inmate Troy Anthony Davis will begin its last chapter. In an extremely rare ruling last summer, the United States Supreme Court ordered a federal judge in Georgia to grant Troy an evidentiary hearing to prove his innocence.

The ruling is unusual in that the Supreme Court has not granted this writ of habeas corpus in more than 50 years. Their decision is a strong indication that they are concerned about the constitutionality of executing the innocent -- as am I.

Although much work still must be done in our justice system to ensure the innocent do not pay the price of the guilty, the granting of this evidentiary hearing is a major step for Troy Davis and for many other likely innocent prisoners sitting on death row; Troy Davis will have an opportunity to tell his side of the story and new evidence will be considered in this nearly 20-year-old case.

The hearing will allow the testimony of witnesses who have recanted or contradicted their original eyewitness testimonies to be heard and examined in a court of law. At long last, the courts will hear critical testimony that they were prevented from hearing in the original trial.

Earlier coverage of the Troy Davis case begins here.

An Update on the Troy Davis Case

Bill Rankin reports, "New Troy Davis hearing this week in cop's death," in today's Atlanta Journal-Constitution.

U.S. District Judge William T. Moore Jr., who will hear the case, is not expected to make an immediate ruling. He has instructed parties that he wants them to file legal briefs after the hearing is over. He also told the lawyers that because he has already read the trial record and the legal pleadings in the case, he expects them to come to his courtroom and "immediately" enter into the presentation of evidence.

"Certainly, Mr. Davis and his attorneys have a very difficult burden ahead of them," said Howard Bashman, a Philadelphia attorney who operates a Web site devoted entirely to appellate litigation. "They have to show far more than there are serious doubts over the validity of the conviction. They have to show that the new evidence clearly establishes Mr. Davis' innocence."

"Court to hear innocence claim in Ga. death case," via the Macon Telegraph.  It's written by Russ Bynum and Greg Bluestein.

Death penalty appeals from condemned inmates usually hinge on technicalities, legal hiccups and procedural errors. But this week a federal judge will hear evidence from a death row inmate convicted of gunning down a Savannah police officer that will center on a more fundamental question: is he innocent?

Troy Anthony Davis' attorneys and legal experts alike say such an argument is highly unusual. And many say the hearing, scheduled Wednesday in U.S. District Court in Savannah, marks the first time the U.S. Supreme Court has ordered such a hearing in a death penalty case.

And:

Donald E. Wilkes Jr., a University of Georgia law professor and expert on death penalty appeals, said federal courts normally look only at questions of due process and violations of the accused's right to a fair trial. Claims from inmates such as Davis, seeking a fresh look at their guilt or innocence, are routinely rejected by federal judges, he said.

"It's basically a claim of newly discovered evidence. Ordinarily, that's not regarded as a claim of a violation of constitutional rights," Wilkes said. "This is that rare case where it's a death sentence and there's evidence that was not available at trial that they got the wrong guy."

Davis' lawyers say seven witnesses from his trial have either contradicted their testimony or recanted it. Several people have also signed affidavits since the trial saying they heard another man confess to pulling the trigger.

"Troy Davis heads back to Savannah," in the Savannah Morning News is written by Jan Skutch.

Troy Anthony Davis  is coming back to Savannah.

He’ll be in the Tomochichi federal courthouse on Wright Square on Wednesday as his lawyers argue, at the behest of the U.S. Supreme Court, that evidence that could have kept him from being convicted and sentenced to death in the 1989 murder of off-duty Savannah police officer Mark Allen MacPhail  was not presented at his original trial in 1991.

Throngs of Davis’ supporters and death penalty opponents are expected to descend upon Savannah to plead for what they say is justice for Troy — a new trial. Davis’ family, officials from Amnesty International USA  and the national president/CEO  of the National Association for the Advancement of Colored People  already have scheduled vigils and rallies before and during the court hearing.

MacPhail’s family and friends plan a rally of their own on the evening before the hearing.

Savannah-Chatham police are preparing for those throngs, as well as intense national media coverage and the potential disruption of downtown traffic.

The Davis hearing, which could last several days,  will be a unique experience not only for Savannah but for the criminal justice system itself.

A federal judge will waste no time getting to the facts  Wednesday when he hears attorneys for Davis try to convince him of the defendant’s  innocence.

“When the hearing begins, the court will expect the parties to enter immediately into the presentation of evidence,”  U.S. District Judge William T. Moore Jr.  ruled Monday.  “No opening argument will be required.”

“As the central purpose of this hearing is for this court to receive testimony necessary to make findings of fact, the court will first receive all of the evidence,”  Moore ruled.

Moore has been directed by the U.S. Supreme Court to “receive testimony and make findings of fact”  whether evidence that could have been obtained at the time of trial “clearly establishes (Davis’) innocence.”

Earlier coverage begins with this post.

Learning From Error

James M. Doyle's latest scholarship, "Learning from Error in American Criminal Justice," appears in the Journal of Criminal Law & Criminology, Vol. 100, No.1.  By arrangement with the author, it's available in Adobe .pdf format.

James' 2005 book True Witness is a must-have account of problems with eyewitness identification.  It's noted here.  He is the Consulting Director of the John Jay College of Criminal Justice Center for Modern Forensic Practice.

The Latest on Kevin Keith

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

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

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

At the Supreme Court

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

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

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

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

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

Keith's attorneys have issued the following statement:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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