The StandDown Texas Project

Also From Colorado - Judge Vacates Guilty Plea in Prison Murder

The order to vacate guilty plea in Colorado v. Montour is at Scribd.

"Edward Montour to get new trial in killing of corrections officer," is the Denver Post report written by Karen Augé.

A judge on Tuesday allowed convicted murderer Edward Montour to withdraw his guilty plea in the 2002 killing of a corrections officer, meaning the 11-year-old case must start over from square one.

Montour pleaded guilty in 2003 to killing corrections officer Eric Autobee, and a judge imposed the death penalty. The Colorado Supreme Court later overturned the sentence, saying only a jury can hand down a death sentence.

Since then, the case has taken twists and turns through various courts as attorneys argue over a number of legal issues.

Now, it returns to where it began, in a Douglas County courtroom where Montour will have a second chance to enter a plea, and where District Attorney George Brauchler says he will seek a second death sentence for Montour.

That means Brauchler's office will be pursuing two death penalty cases simultaneously. He announced last week that he will seek a death sentence for James Holmes, who is accused in last summer's attack at an Aurora movie theater.

And:

In Tuesday's ruling, Judge Richard Caschette noted that when Montour initially entered his guilty plea, ". . . he was not represented by counsel and he had a documented history of mental illness. . ." In addition, several public defenders offered statements that Montour refused to cooperate in providing a defense because, at the time, he wanted to die.

The AP report is, "Judge overturns guilty plea in 2002 slaying of prison worker; DA is seeking death penalty," is by P. Solomon Banda, via the Republic.

An inmate accused in the 2002 slaying of a prison worker will be placed on trial and prosecutors will seek the death penalty after a judge Tuesday allowed the suspect to withdraw his guilty plea.

Edward Montour Jr., already serving a life sentence in the 1997 death of his 11-month-old daughter, is accused of killing Eric Autobee, 23, by striking him in the head with a heavy kitchen ladle. At Limon Correctional Facility. Montour represented himself in the case and in January 2003, barely three months after the slaying, pleaded guilty to first-degree murder.

He told his advisory attorneys that he wanted to die by execution, according to court documents.

The case has lingered in court for more than 10 years following a judge's imposition of the death penalty which was later thrown out by the Colorado Supreme Court. The court ruled in 2007 that only a jury, not a judge, can hand down death sentences.

And:

Autobee's family opposes the death penalty but Brauchler said he's taking prison workers' safety into consideration.

Autobee's father, a retired prison employee, turned against capital punishment and spoke up for repeal of Colorado's death penalty in the current legislative session. More on Bob Autobee's comments are at the link. 

Earlier coverage of the Montour case begins at the link.  Also available coverage of the Colorado repeal legislation, the case of Nathan Dunlap, and the James Holmes case.

National Registry of Exonerations News & Twitter Q&A

The National Registry of Exonerations hosts a Twitter Q&A today at 1:00 pm (EDT), 12:00 noon (CDT).

At 1:00 p.m. Eastern today, Professor Gross and Maurice Possley, the Registry’s lead writer/investigator and a Pulitzer Prize-winning journalist, will host a Twitter Q & A on their findings. The media and the public are invited to participate by following #NRE12 or #innocence or @exonerationlist.

The organization has also issued a news release, "Prosecutors and Police are Assisting with Exonerations at Record High Levels, New Data Shows," available in Adobe .pdf format.  Here's the beginning:

In 2012, the number of cases in which prosecutors or police helped exonerate innocent defendants increased dramatically, according to a new report released today by the National Registry of Exonerations. Of 63 known exonerations in 2012, law enforcement initiated or cooperated in 34 or more than half (54 %).

Since 1989, prosecutors and police cooperated in 30 percent of the exonerations that the Registry has been able to identify (317 of 1050 exonerations in the national database at the end of last year). In 2012, for the first time, law enforcement cooperated in the majority of known exonerations. The previous high was 2008 when prosecutors or police assisted in 22 of 57 known exonerations (39 percent). In general, official cooperation is least likely among exonerations in capital murder and mass child sex abuse cases, and most likely in robbery and drug crime exonerations.

“We see a clear trend. Prosecutors and police are more open to re-investigating cases and clearing the names of innocent people who were wrongfully convicted,” said Michigan Law professor Samuel Gross, editor of the Registry and author of the “2012 Update” released today. “This is as it should be. The purpose of law enforcement is to seek truth and pursue justice. I’m glad to see they are now doing so more often after conviction, to help correct some of the terrible mistakes we sometimes make.”

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

An Update on the Norfolk Four

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

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

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

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

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

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

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

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

Kaufman County Texas District Attorney Killed

Kaufman County District Attorney Mike McLelland and his wife were killed at their house this weekend.  This follows the shooting death of a Kaufman County Assistant District Attorney two months ago.

"Texas DA, slain in his home, had armed himself after an assistant was gunned down 2 months ago," is the AP report, via the Washington Post.

Kaufman County District Attorney Mike McLelland took no chances after one of his assistant prosecutors was gunned down two months ago. McLelland said he carried a gun everywhere he went and was extra careful when answering the door at his home.

“I’m ahead of everybody else because, basically, I’m a soldier,” the 23-year Army veteran said in an interview less than two weeks ago.

On Saturday, he and his wife were found shot to death in their rural home just outside the town of Forney, about 20 miles from Dallas.

While investigators gave no motive for the killings, Forney Mayor Darren Rozell said: “It appears this was not a random act.”

And:

The slayings came less than two weeks after Colorado’s prison chief was shot to death at his front door, apparently by an ex-convict, and a couple of months after Kaufman County Assistant District Attorney Mark Hasse was killed in a parking lot a block from his courthouse office. No arrests have been made in Hasse’s slaying Jan. 31.

McLelland, 63, is the 13th prosecutor killed in the U.S. since the National Association of District Attorneys began keeping count in the 1960s.

Sheriff David Byrnes would not give details Sunday of how the killings unfolded and said there was nothing to indicate for certain whether the DA’s slaying was connected to Hasse’s.

The New York Times reports, "Gunfire Claims 2nd Prosecutor in Texas County."  It's by Manny Fernandez, Michael Schwirtz, and Serge F. Kovaleski.

After the daylight assassination of his deputy two months ago, Mike McLelland, the district attorney in largely rural Kaufman County, responded with a flash of angry bravado, denigrating the perpetrators as “scum” and vowing to hunt them down.

A former Army officer who served in Iraq during Operation Desert Storm, Mr. McLelland carried a gun and refused to be intimidated, according to a friend and the local news media, even as his wife expressed unease, worrying that her husband, too, could be in danger.

“I hope that the people that did this are watching, because we’re very confident that we’re going to find you,” he said at a news conference hours after his deputy was killed. “We’re going to pull you out of whatever hole you’re in. We’re going to bring you back and let the people of Kaufman County prosecute you to the fullest extent of the law.”

On Saturday evening, the authorities found Mr. McLelland, 63, and his wife, Cynthia, 65, shot to death inside their home in Forney, Tex., in Kaufman County. The killings galvanized law enforcement officials and frightened and bewildered local residents, many of them still shaken by the shooting of the deputy, Mark E. Hasse, 57, on Jan. 31. That case remains unsolved.

The police said Sunday that they had increased security for local elected officials and would tighten security at the county courthouse. The courthouse was scheduled to be open Monday, but Mr. McLelland’s office will be closed.

The Times also has an infographic, "Could Killings be Connected?"

"Another Texas prosecutor is slain; officials seek motives," by Matt Pearce in the Los Angeles Times.

The last time a prosecutor was gunned down in Kaufman County, Texas, in January, top county prosecutor Mike McLelland stood in front of reporters and vowed to carry on.

"We’ll still make the walk, and we’ll still show up," McLelland said of the courthouse parking lot where one of his assistant district attorneys, Mark Hasse, was gunned down by an unidentified assailant Jan. 31. "And we’ll still send bad guys out of Kaufman County every chance we get. We’re not stopping. We’re not slowing down.”

Two months later, on Saturday evening, McLelland, 63, and his wife, Cynthia, 65, were found shot dead in their home near Forney, east of Dallas. And once again, Kaufman County Sheriff David Byrnes stood in front of reporters without answers as the attack raised fears of a Christopher Dorner-style plot on the lives of law enforcement officials in Texas.

Byrnes wouldn't say whether the two prosecutors' deaths were related. He wouldn't say if the home showed any sign of forced entry. He wouldn't say if there were any indications that a white supremacist group was involved, as McLelland himself had speculated about the Aryan Brotherhood's involvement with Hasse's death.  

Byrnes also said McLelland had not voiced any concerns about his safety, although McLelland himself told a slightly different story in an interview with the Associated Press two weeks ago: The prosecutor had started carrying a gun after his colleague's death and had started answering the door more carefully.

"Texas prison gang to get scrutiny in double slaying, sources say," is the Dallas Morning News report by Kevin Krause.

The killing of the Kaufman County district attorney and his wife is likely to turn up the heat on the notorious Aryan Brotherhood of Texas prison gang.

Suspicion already had fallen on the Aryan Brotherhood after Assistant District Attorney Mark Hasse was gunned down Jan. 31 near the Kaufman County Courthouse.

Now, with the slaying of District Attorney Mike McLelland and his wife, Cynthia, at their home near Forney, law enforcement sources say authorities will pursue any possible connections between the cases and the violent white supremacist gang.

Federal, state and local law enforcement dealt a serious blow to the gang in October with the federal racketeering indictments in Houston of 34 alleged members, including four top bosses. The Kaufman County district attorney’s office was part of the multi-agency task force credited with bringing the cases.

In December, the Texas Department of Public Safety warned that the Aryan Brotherhood could be “planning retaliation against law enforcement officials” who helped secure the indictments in Houston.

“High-ranking members … are involved in issuing orders to inflict ‘mass casualties or death’ to law enforcement officials who were involved in cases where Aryan Brotherhood of Texas are facing life sentences or the death penalty,” the department said.

It also warned that the gang was “conducting surveillance on law enforcement officers.”

Shortly after that alert, Hasse was killed in front of witnesses.

An official with the U.S. Marshals Service recently said in a widely circulated email that the Aryan Brotherhood was the focus of its investigation into Hasse’s death.

Delaware Senate to Consider Repeal Bill Today

"DELAWARE: Senate to vote today on repealing death penalty," is the AP report, via Delmarva Now.

The state Senate is set to vote on a bill repealing Delaware's death penalty and sparing 17 killers already on death row.

The measure cleared a Senate committee last week and was scheduled for a vote by the full Senate on Tuesday.

Supporters of the bill argue that the death penalty is morally wrong, racially discriminatory, ineffective as a deterrent to violent crime and far more costly than putting killers in prison for life. They also point to cases in other states where condemned killers have later been exonerated.

The Cape Gazette reports, "Senate to consider SB 19, March 26," by Kara Nuzback.

Senate Bill 19 would remove all language related to execution from the Delaware code, ending the death penalty statewide.  Life imprisonment without the possibility of parole would become the ultimate punishment for first-degree murder.

The Senate Executive Committee voted 4-2 to release the bill to the Senate floor, March 20, after two hours of testimony mostly in favor of repeal.  Three of the six committee members – Senate Minority Leader Gary Simpson, R-Milford; Senate Majority Whip Margaret Rose Henry, D-Wilmington East; and Sen. Harris McDowell, D-Wilmington North – are sponsors of the bill.

SB 19 has a total of 17 bipartisan sponsors.

And:

The Senate is scheduled to consider SB 19 Tuesday, March 26.

There are 21 members in the Delaware Senate.

Today's Wilmington News Journal publishes the OpEd, "Why this police officer wants to end death penalty.  It's by James Abbott, West Orange, N.J. police chief, who served on the New Jersey Death Penalty Study Commission.  Here'a an extended excerpt from the beginning:

In 2007, New Jersey’s legislature and governor replaced the death penalty with a sentence of life in prison without parole. No state had legislatively abolished its death penalty in more than 40 years, but since then New Mexico, Illinois and Connecticut followed suit. Our close neighbor Maryland just passed legislation to abandon its death penalty. Now I hear that Delaware is considering a bill to end capital punishment as well.

I want to share the view from where I sit: I am the police chief of West Orange, N.J., an older suburban town adjacent to Newark, where we see our share of violent crime. I am a proud Republican who has long supported the death penalty.

I have dedicated my life to protecting the public and making our streets safer. And I put my life on the line every time I go to work. Believe me, sympathy for killers is nowhere in my vocabulary.

In 2006, the New Jersey Legislature set up a study commission to decide what to do with the death penalty. The capital punishment system was broken; some people wanted to fix it, while others wanted to abolish it.

I was asked to join the commission and help decide what to do. I pledged to keep an open mind, but I always supported the death penalty, and I didn’t expect that to change. If there were fixes we could recommend to make it work better, I figured I could support that.

I was wrong.

I no longer believe you can fix the death penalty. Six months of study opened my eyes to its shocking reality. I learned that the death penalty throws millions of dollars down the drain – money that I could be putting directly to work fighting crime every day – while dragging victims’ families through a long and torturous process that only exacerbates their pain.

I want to share what I learned from the families whose loved ones were lost, because I believe their untold stories are the shameful, hidden secret of the death penalty.

Earlier coverage from Delaware begins at the link.  More on SB 19, via the Delaware General Assembly.  Audio of the Senate session will be available at the Delaware General Assembly website.

Delaware Senate Committee Approves Repeal Bill & a Case Noted

Today''s Wilmington News Journal reports, "Panel OKs repeal bill; Measure to end executions sent to Senate."  It's by Jonathan Starkey.

A Delaware Senate committee approved legislation Wednesday repealing the state’s death penalty after a 90-minute debate that included emotional testimony from a police chief who responded to a murder scene and a man who sat on Maryland’s death row before being exonerated.

Kirk Bloodsworth was convicted and sentenced to death by a Maryland jury in 1984 for the rape and murder of a 9-year-old and spent nine years in prison before being exonerated by DNA evidence. He told legislators to consider his story when deciding whether to abolish capital punishment.

“We can’t afford the risks of executing an innocent person,” Bloodsworth said. He also extended an olive branch to police officials in the hearing who oppose the repeal effort, saying, “You are the people who keep us safe, not the death penalty.”

William Topping, chief of the Georgetown Police Department, recounted the night he responded to the scene of a 1992 murder and told lawmakers about the 2009 murder of Georgetown Patrolman Chad Spicer. Topping insisted that the worst offenders deserve the ultimate punishment.

And:

Sen. Karen Peterson, a Stanton Democrat, is sponsoring Senate Bill 19, which heads to the Senate floor Tuesday.

“The death penalty does not work when it comes to deterring crime,” Peterson said during the hearing. Peterson also says it’s too costly for the state to prosecute and defend capital cases, and not worth the possibility that an innocent Delawarean could be mistakenly put to death.

"Bill repealing Del. death penalty, sparing current death row inmates, clears Senate panel," is the AP report, via the Washington Post.

A bill that would repeal Delaware’s death penalty and spare the lives of 17 killers already on death row cleared a Senate committee on Wednesday and is heading to the full Senate for a vote.

Members of the Senate Executive Committee voted 4-2 to release the bill after hearing from both supporters and opponents.

I also want to note a high profile Delaware case that is in the news.  On Tuesday, the News Journal reported, "Charges dropped in slaying of man in wheelchair," by Sean O'Sullivan.

Medford Holmes, the 33-year-old who was facing a possible death sentence in September for allegedly shooting a man in a wheelchair to death in 2011, has had all charges against him dropped and has been released.

The abrupt turnabout comes after Abdullah Talib-Din – a victim of the shooting and the state’s star witness at Holmes’ September trial that ended in a hung jury – changed his story about who shot him and Antonio Smith in April 2011.

“We are very pleased with the result,” said Holmes’ attorney Brian Chapman today, but he added that the case never should have been a death penalty prosecution to begin with because the evidence was so weak.

Both today and at the September trial, Chapman noted that prosecutors had no direct evidence tying Holmes to the scene or crime – no video, no fingerprints, no DNA, no weapon – and no clear motive.

And:

Chapman said that Holmes maintained his innocence through his two years of incarceration and through the trial. Witnesses also testified Holmes was at home, far from the scene, at the time of the shooting. The fact that this case went to trial with the state seeking the death penalty “should open some eyes about the process,” said Chapman.

Prosecutors had been set to re-try Holmes for the murder of Smith, 35, and the attempted murder of Talib-Din in June, though the state was not seeking the death penalty at the retrial.

Earlier coverage of the Delaware repeal legislation begins at the link.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CCA Orders Acquittal in Dog-Scent Lineup Conviction

TheTexas Court of Criminal Appeals ruling in Winfrey v. Texas is available in Adobe .pdf format.

"Appeals Court Issues Acquittal in Dog-Scent Murder Case," is the Texas Tribune report by Brandi Grissom.

The Texas Court of Criminal Appeals on Wednesday issued an acquittal in the case of Megan Winfrey, 24, who has been behind bars since 2007 in a murder case in which her conviction was based almost entirely on evidence from dog-scent lineups.

Winfrey, along with her father, Richard Winfrey, and her brother Richard Winfrey Jr. were charged with the 2004 murder of school janitor Murray Burr in Coldspring. Richard Winfrey Jr. was acquitted by a jury in 2009. Richard Winfrey Sr. was convicted in 2007, but the Court of Appeals acquitted him in 2009, ruling that the dog-scent evidence was insufficient for his conviction.

The court’s decision Wednesday in Megan Winfrey’s case was based largely on the one it issued when it acquitted her father, finding that the state’s evidence against her was insufficient. In her case, the San Jacinto district attorney had argued that along with dog-scent evidence, her suspicious behavior amounted to enough evidence to support her conviction. Prosecutors alleged, among other things, that she attempted to thwart DNA testing by shaving her pubic hair and that teachers at her school overheard her make threatening remarks about Burr and his money. The court disagreed with the prosecutors.

“Basing a finding of appellant's guilt on this evidence and all of the other evidence is, at best, ‘mere theorizing or guessing’ about [the] appellant's possible guilt rather than a reasonable inference based upon evidence and facts presented,” the court wrote in its majority opinion.

The Austin American-Statesman reports, "Court tosses dog-scent lineup murder conviction."  It's by Chuck Lindell.

Like her father and brother, Winfrey was identified as a murder suspect by bloodhounds owned and trained by Keith Pikett, a now-retired Fort Bend County deputy sheriff who claimed his dogs were nearly infallible in linking suspects to crime scenes based on the personal scent they left behind.

No physical evidence or witnesses tied the Winfreys to their neighbor’s murder. In addition, forensic evidence collected from Burr’s home — DNA from blood stains, fingerprints, hair and a bloody footprint — excluded the Winfreys.

Pikett’s findings, however, played a central role in separate trials for the three family members.

Pikett testified that his dogs indicated that they smelled the Winfreys’ scent on gauze pads that had been wiped on clothing Burr was wearing when he was killed. The pads were placed in unsterilized coffee cans about 10 steps apart in a field or parking lot, a lineup method Pikett said he developed in his spare time.

"San Jacinto County woman acquitted of life sentence for murder," is the Cleveland Advocate report by Melecio Franco. 

The Winfrey family was indicted in the murder but only two were convicted. Richard Winfrey Jr., the son, was found not guilty after only 13 minutes of jury deliberation, according to Baccus-Lobel. His father, Richard Winfrey Sr. and his sister Megan, were both found guilty in 2007.

The convictions were the beginning of a long legal battle for the family.

Baccus-Lobel and defense attorney Billy Ravkind fought for years to have the convictions overturned.

“There was no physical evidence, no forensic evidence — and there was tons of it — that connected any of these people to the crime scene,” said Baccus-Lobel. “Not Megan, her father or her brother.”

Baccus-Lobel noted that some of the physical evidence included a footprint found in the victim’s blood along with hairs and DNA evidence.

Earlier coverage of the dog-scent lineups begin at the link.  In 2009 the Innocence Project of Texas issued a report, Dog Scent Lineups: A Junk Science Injustice, available in Adobe .pdf format.

Ken Rose on North Carolina's Death Penalty

"Use resources on DNA tests, not death penalty," is Ken Rose's OpEd in the Salisbury Post.  He's an attorney with the Center for Death Penalty Litigation.  Here's the beginning:

Imagine your family member was the victim of a rape. Police arrested a man found near the scene and held him in jail for nearly two years before a long-delayed DNA test revealed that he was not the rapist. By that time, the chances of finding the true perpetrator were greatly diminished.

This very scenario played out in North Carolina last week, as the News & Observer of Raleigh reported. Elio Santos de la Cruz had been in the Johnston County jail since June 2011 while prosecutors waited for the State Crime Laboratory to return the results of DNA tests. The tests revealed that de la Cruz was not the rapist.

Defense lawyers say these kinds of wait times for DNA tests are the norm in North Carolina. This not only means that innocent people are sometimes held in jail for months or years, but that justice is delayed — or denied altogether — for victims.

This problem is epidemic in our state, even in cases of murder. About 12 percent of people who are charged with first-degree murder are eventually released without ever being tried. Many innocent people languish in jail for months or years before prosecutors discover they don’t have enough evidence to prosecute them. Meanwhile, the true killers continue to roam the streets.

Earlier coverage from North Carolina begins at the link.

Michelle Alexander on Police and the Truth

Michelle Alexander  writes the OpEd, "Why Police Lie Under Oath," for the New York Times.  She is the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness.  Here's the beginning:

THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”

But are police officers necessarily more trustworthy than alleged criminals? I think not. Not just because the police have a special inclination toward confabulation, but because, disturbingly, they have an incentive to lie. In this era of mass incarceration, the police shouldn’t be trusted any more than any other witness, perhaps less so.

That may sound harsh, but numerous law enforcement officials have put the matter more bluntly.  Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”

The New York City Police Department is not exempt from this critique. In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. “I thought I was not naïve,” he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. “But even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

Earlier coverage of Michelle Alexander's book, The New Jim Crow, begins at the link.

 

A Terrible Burden to Victims’ Families

That's the title of Bob Autobee's OpEd in Colorado's Pueblo Chieftain.

I am a veteran corrections officer. No one would ever call me soft on crime. For nearly all of my life, I supported the death penalty.

When my son, corrections officer Eric Autobee, was murdered, I still supported the death penalty and it seemed proper justice that they would seek the ultimate punishment for his offender.

That was the old me, before I learned and experienced how the system really doesn’t work. It has been a nightmare. Given what I know now, I can no longer support Colorado’s broken death penalty system. What’s more, I will work to end it to ensure that our resources are better used and no family ever has to go through what my wife and I have endured.

Justice should be swift. This simply isn’t possible with the death penalty.

Our case is the poster child for this. It has been more than 10 years since Eric was murdered and the case is still being fought. Thousands of hours, millions of dollars, and an unspeakable emotional toll on my family has been poured into the fight for a death sentence.

And:

As a victim’s father who has been trapped in the labyrinth of the death penalty, and after seeing the real misuse of resources, I am begging our elected officials to do away with our broken death penalty system.

Colorado can do better by our corrections officials, and we can do much better by victims.

Earlier coverage of Bob Autobee's change of heart begins at the link.  Also available, the most recent coverage from Colorado.

Jerry Givens' Mission

The Washington Post reports, "Ex-Virginia executioner becomes opponent of death penalty."  It's by Justin Jouvenal.

Jerry Givens executed 62 people.

His routine and conviction never wavered. He’d shave the person’s head, lay his hand on the bald pate and ask for God’s forgiveness for the condemned. Then, he would strap the person into Virginia’s electric chair.

Givens was the state’s chief executioner for 17 years — at a time when the commonwealth put more people to death than any state besides Texas.

“If you knew going out there that raping and killing someone had the consequence of the death penalty, then why are you going to do it?” Givens asked. “I considered it suicide.”

As Virginia executed its 110th person in the modern era last month, Givens prayed for the man, but also for an end to the death penalty. Since leaving his job in 1999, Givens has become one of the state’s most visible — and unlikely — opponents of capital punishment.

His evolution underscores that of Virginia itself and the nation. Although polls show that the majority of state residents still support the death penalty, Virginia has experienced a sea change on capital punishment in recent years that is part of a national trend.

The state has had fewer death sentences over the past five years than any period since the 1970s. Robert Gleason, who was put to death Jan. 16, was the first execution in a year and a half. As recently as 1999, the state put 13 to death in a single year.

Earlier coverage of Jerry Givens begins at the link.

The Need for DNA Testing Reform in the States

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

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

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

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

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

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

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

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

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

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

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

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

Related posts are in the DNA category index.

News Coverage of North Carolina RJA Ruling

Today's Fayetteville Observer publishes the editorial, "Racial justice begins with a just society."

So: Are some crimes so heinous that it doesn't matter if race laid a finger on the scales of justice?

At an even more basic level, who are our models? Who is it that we wish to be like? Sworn officers going in harm's way to protect the public? Responsible women getting off work at the end of their shifts? Or thugs indulging the homicidal impulse of the moment?

It is a choice and we do have to make it.

The hearings under the state's Racial Justice Act were not about guilt; guilt was established years ago, and was not revisited by Superior Court Judge Gregory Weeks. In fact, under the statute he had no authority to revisit it; it was to be death or life, and racial taint, if any, was the only consideration.

Nor was this about sympathy for the perpetrators. Weeks spoke not of mercy, only about the hope that "acknowledgment of the ugly truth of race discrimination revealed by Defendants' evidence is the first step in creating a system of justice that is free from the pernicious influence of race, a system that truly lives up to our ideal of equal justice under the law."

That's another choice we cannot evade.

For the judge it was about individual cases, to which he applied the standards of both the original act and the more restrictive one crafted this year. The rest of us have trouble seeing past Golphin, Walters and Augustine, but it's about us, too, about people who have collectively decided not to be the kind of society that reveres justice only until it impedes our wrath.

News coverage of the ruling begins with the New York Times, "Judge in North Carolina Voids 3 Death Sentences," by Campbell Robertson.

A judge in North Carolina on Thursday ruled that race had played a significant role in the sentencing of three convicted murderers to death, and changed their sentences to life in prison without possibility of parole. It was the second such decision under the state’s Racial Justice Act and the first since the act was amended by the state legislature.

Lawyers representing Tilmon Golphin, Christina Walters and Quintel Augustine had argued under both the new and old versions of the act, contending that statistics as well as anecdotal and documentary evidence, like handwritten notes by prosecutors, showed that race influenced the sentencing process and particularly the picking of juries.

“In the writing of prosecutors long buried in case files and brought to light for the first time in this hearing, the court finds powerful evidence of race consciousness and race-based decision making,” wrote Judge Gregory Weeks of Cumberland County Superior Court, who also ruled last April in the first case to be heard under the Racial Justice Act.

According to a report on local TV station WRAL, the brother of a state trooper killed by Mr. Golphin had to be removed from the courtroom, shouting, “Judge, you had your mind made up before this ever started!”

The Wall Street Journal Law Blog posts, "Three More Spared Death Penalty Under Controversial NC Law," by Ashby Jones.

Defense lawyers and prosecutors disagree on which version of the law may be used. It wasn’t immediately clear Thursday which version Judge Weeks relied on.

In the meantime, no jury in North Carolina has come back with a death sentence this year, and there are no more capital cases on the 2012 docket. That’s the first time since the death penalty was reinstated in North Carolina that a jury has not sentenced at least one person to execution. 

"Judge commutes three death sentences; cites bias," is the AP filing, via the Elizabeth City Daily Advance.

A North Carolina judge on Thursday commuted the death sentences of three convicted killers, including two who killed law enforcement officers, to life in prison without the possibility of parole after ruling that race played an unjust role in jury selection at their trials.

N.C. Superior Court Judge Gregory A. Weeks in Cumberland County based his ruling on evidence presented over four weeks of hearings that he says showed prosecutors in each case made a concerted effort to reduce the number of black jurors.

The three who had their sentences commuted were among the most notorious killers on North Carolina's death row. Two had killed law enforcement officers.

Family members of the victims and more than 60 uniformed police officers packed the courtroom. Before Weeks could finish issuing his ruling, the brother of a murdered state trooper stood up and yelled an expletive at the judge.

The Republican-controlled Legislature recently scaled back the state's Racial Justice Act, on which Thursday's ruling was based. Weeks said his ruling applies under both the old and new laws.

He cited evidence that included handwritten notes of prosecutors indicating they worked to get blacks eliminated from the pool of jurors, resulting in panels that were overwhelmingly white.

"This conclusion is based primarily on the words and deeds of the prosecutors involved in these cases," Weeks, who is black, said from the bench. "Despite protestations to the contrary, their words, their deeds, speak volumes. During presentation of evidence, the court finds powerful and persuasive evidence of racial consciousness, race-based decision making in the writings of prosecutors long buried in the case files and brought to light for the first time during this hearing."

"Judge finds racial bias played a role in three death row cases," is by Anne Blythe for the News & Observer.

Attorneys for the defendants argued during a nine-day hearing in October that prosecutors had systematically tried to prevent blacks from serving on the juries for the trials. The defense team presented statistics and handwritten notes from prosecutors’ case files to bolster its contentions.

Prosecutors argued racial bias did not play a role in the cases. They challenged statistical evidence that shows prosecutors at the time of the trials systematically struck potential black jurors from sitting on juries in capital cases in Cumberland County and across North Carolina.

Prosecutors plan to appeal the ruling, as they did in the case of Marcus Reymond Robinson, the first death row inmate to successfully challenge and have his sentence converted to life without parole under the Racial Justice Act.

The state Supreme Court is scheduled to announce this month whether it will hear the Robinson case.

"Cumberland County judge rules in favor of 3 death row inmates in Racial Justice Act cases," by Paul Woolverton in the Fayetteville Observer.

Walters, Augustine and Golphin are the second, third and fourth people to win Racial Justice Act claims since the state legislature adopted the law in 2009. The first was Marcus Reymond Robinson of Fayetteville; Weeks commuted his sentence in April.

Another 144 death row defendants have Racial Justice Act claims pending. Eight condemned men are not attempting to use the law.

The law, which the Republican-controlled legislature revised this year to make it harder for defendants to win claims, allows condemned inmates of any race to advance a claim that institutional racism led to their death sentences.

In light of the law, studies have found that people who kill whites are more likely to be sentenced to death than those who kill nonwhites. And, studies have shown, blacks who favor the death penalty are blocked by prosecutors from serving on capital juries far more often than whites.

Prosecutors contend that the studies are flawed. The aggregate results of the studies ignore that each case, and each decision to strike a juror, is unique, they argue.

Weeks said his ruling falls under terms of both the 2009 version of the Racial Justice Act and this year's revision.

"Judge: Race a factor in picking juries for death penalty cases," is the WRAL-TV report by Bryan Mims.

Lawyers for Christina "Queen" Walters, Tilmon Golphin and Quintel Augustine argued at a hearing in October that statistics and handwritten notes from prosecutors show racial bias in jury selection. Golphin and Augustine are black, while Walters is Native American.

Superior Court Judge Greg Weeks agreed with their motions for re-sentencing under the state's Racial Justice Act, saying there was "powerful and unmistakable" evidence of race-conscious jury selection.

"Although they have committed heinous crimes, they were sentenced to death in a process that was focused more on obtaining death sentences than it was in ensuring the process was fair," Weeks said.

Notes from the trials showed that prosecutors used racially charged terms and struck qualified minorities from juries at double the rate than whites, the judge said. He dismissed prosecutors' arguments that every choice of selecting jurors is unique and cannot be pinned on racial bias.

"The court finds no joy in these conclusions," he said. "Indeed, the court cannot overstate the gravity and somber nature of its findings, nor can the court overstate the harm to African-American citizens and to the integrity of the justice system that results from racially discriminatory jury selection practices."

The brother of Highway Patrol Trooper Ed Lowry, whom Golphin and his brother, Kevin, killed in 1997 while fleeing arrest, had to be removed from the Cumberland County courtroom after he cursed at Weeks.

Earlier coverage of the ruling and the North Carolina RJA begins at the link.

Florida Execution Date

Florida is due to execute Manuel Pardo, tonight.  It's the last scheduled execution of the year.  The Miami Herald reports, "Manuel Pardo: The saga of a Sweetwater ex-cop convicted of mass murder, now set for execution."  It's by David Ovalle.

On Tuesday, he is set to die by lethal injection at Florida State Prison in Starke, barring any last-minute appeals.

Even among Miami’s notorious crime lore, Pardo’s case remains an anomaly: He was a military veteran turned cop turned serial killer who meticulously kept news clippings of each of his murders.

“I don’t know if it’s because he was in law enforcement that made it such a nasty, chilling case, but I spent over 19 years in homicide and this one always sticks out,” said retired Hialeah Detective John Allickson, part of the team that investigated Pardo. “In sitting there, talking to him, he was Ted Bundy-esque.”

His lawyers have nevertheless fought for decades to keep him alive.

Among their latest claims: the state has refused to give over enough public records relating to the lethal injection method and the manner of execution is “cruel and unusual punishment.”

Last week, however, the Florida Supreme Court sided with a Miami-Dade judge, rejecting Pardo’s appeals and saying his claim about lethal injection is based on “pure speculation and conjecture.”

Lawyers are appealing to the U.S. Supreme Court and another hearing is scheduled Monday in front of a Jacksonville federal judge. Lawyer William McKinley Hennis III said Pardo, 56, has also long suffered from a thyroid disorder that ravaged his mind and body.

To date, there have been 42 executions in American death penalty states this year; a total of 1,319 post-Furman executions since 1977.  Florida has executed 73 men and women since 1979, including two other executions this year.

Geoffrey Stone & Thomas Sullivan on Recording Custodial Interrogations

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

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

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

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

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

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

Texas Bill Prefiled to Require Electronic Recording of Custodial Interrogations

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

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

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

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

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

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

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

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

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

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

News From Arizona

Today's Arizona Republic reports, "Prosecutor files motion vs. judge."  It's written by Jim Walsh.

A prosecutor is accusing a judge of trying to derail his effort to seek the death penalty against the man charged with fatally shooting a Gilbert police lieutenant in 2010 and then triggering a 50-mile pursuit that ended in a gunbattle.

Deputy Maricopa County Attorney Juan Martinez argues in a motion that Superior Court Judge Janet Barton should not preside over Christopher Redondo's mental-competency review.

Instead, a judge assigned to the Comprehensive Mental Health Court should hear evidence from mental-health experts and decide if Redondo is competent, meaning that he is capable of understanding court proceedings and assisting in his defense, Martinez wrote.

Karen Arra, a Superior Court spokeswoman, said judges are prohibited by a strict canon of ethics from commenting on pending cases. The next hearing on Redondo's case is scheduled for Nov. 26, and the trial is scheduled for Feb. 25, 2013.

Arra also said that it is not uncommon for trial-court judges to preside over competency-review hearings, even though there is a separate court established to handle such reviews.

Martinez's petition asserts that Barton demonstrated her prejudice against a death sentence by suggesting in July that Martinez offer Redondo a plea to a natural life sentence.

"Specifically, the judge attempted to broker a life sentence although she knew defendant was already serving a natural life sentence for a separate murder in another county," Martinez wrote.

He wrote that he declined to offer Redondo the plea deal because it would allow the defendant to escape further punishment in the Jan. 28, 2010, slaying of Gilbert police Lt. Eric Shuhandler.

Framing the Guilty?

That's the title of Jordan Smith's lengthy examination of the Preston Hughes case in this week's Austin Chronicle.  It's subtitled, "Preston Hughes is scheduled to be executed this month. Is he innocent of murder, as his defenders claim? Or did police frame a guilty man?"

Here's the beginning:

The police were not looking for LaShandra Charles and her cousin Marcell Taylor, but that's who they found.

It was around 11pm on Sept. 26, 1988, when a man flagged down two police officers near a Fuddruckers restaurant in far West Houston. The man was looking for his wife, whom he believed to be missing. As the trio searched the area, a Fuddruckers employee approached the officers to say that while walking home to a nearby apartment complex, he'd found a body in the woods behind the restaurant.

The cops walked to a large, overgrown field of tall trees dissected by a network of weed-choked trails. The restaurant parking lot was well-lit, but the field was not. The night was clear, and the officers used the moonlight to find their way along the trash-littered trail toward a fence at the far end of the property. There, police found a body – but not that of the person they'd been flagged down to find.

Hughes has a November 15 execution date.  Earlier coverage of Preston Highes case begins at the link.

Prison-Crime Witness Now on the Defensive

That's the title of a report in the Texas edition of the New York Times, by Maurice Chammah of the Texas Tribune.  "Death Penalty Witness Condemned by Courts," is posted at the Tribune.

A. P. Merillat has spent two decades investigating crimes in Texas prisons, and his testimony about the violence that inmates serving life sentences can inflict has helped send at least 15 murderers to death row.

Now the credibility of Mr. Merillat — a go-to expert for prosecutors seeking the death penalty — has been condemned by the state’s highest criminal court, after judges determined that Mr. Merillat gave false testimony. Two death sentences were reversed to life sentences, the most recent in June. Mr. Merillat said he was close to being devastated by those decisions. “A guilty capital murderer was removed from the punishment a jury, according to proof beyond a reasonable doubt, determined he deserved,” Mr. Merillat said.

Mr. Merillat says he believes the court has unfairly jeopardized his standing and that he is facing an uphill battle to repair it.

“I am currently attempting to rebuild my reputation for honor and integrity that was so unjustifiably destroyed by our own Court of Criminal Appeals,” he said.

Mr. Merillat, 56, began his career as a police officer in Huntsville and Houston, and for years, he said, he assumed that anyone who committed a “heinous capital murder” would be closely watched by the prison.

“I was very mistaken,” he said.

For the last 20 years, Mr. Merillat has been an investigator with the Special Prosecution Unit, an independent agency financed by the governor’s office to investigate and prosecute crimes that occur in prison.

And:

For a Texas jury to sentence a murderer to death, it must find that he or she will be a continuing threat to society. For decades, prosecutors relied on psychiatrists to testify that the accused would commit violent crimes again if given a sentence less than death.

Many of those psychiatric experts, like James Grigson (popularly known as Dr. Death), Richard Coons and George Denkowski, have since been discredited for their predictions of future likelihood of causing harm. Instead, prosecutors have turned to prison experts for testimony about the opportunities for violence behind bars — but outside death row.

Also:

But in 2010, the Texas’ Court of Criminal Appeals threw out the death sentence of Adrian Estrada for the 2005 stabbing of 17-year-old Stephanie Sanchez. Judge Barbara Hervey found Mr. Merillat erred by testifying that a convicted capital murderer would have more freedom in prison than would ever be possible.

Then, earlier this year, the court threw out the death sentence of Manuel Velez, a death row inmate convicted of killing his girlfriend’s infant son, after his lawyers found Mr. Merillat had given similar testimony in his Cameron County trial.

Earlier coverage of Manuel Velez' case and Adrian Estrada begins at the links.

Related posts are in the expert witnesses and future dangerousness catagory indexes; also available, coverage of George Denkowski.

Philadelphia Judge to Issue Williams' Ruling Friday

"Judge to consider new evidence in appeal of Philly death row killer," is Maryclaire Dale's AP filing, via the Delaware County Times.

A Philadelphia judge will consider a death row inmate's new claims that the men he killed had sexually abused him as she mulls halting next week's scheduled execution.

Terrance Williams, now 46, is set to be the first person executed in Pennsylvania in 50 years who has not given up his appeals. He now says the two men he killed just before and after his 18th birthday had been molesting him.

His lawyers argued Tuesday that they found leads in police homicide files turned over to them only Monday night that support claims victim that Amos Norwood was a child molester. And they believe police and prosecutors knew it — but never shared the information with Williams' now-disbarred trial lawyer or the jury.

Prosecutors accused the defense of stall tactics.

"Judge says she will announce Friday whether Terrance Williams' execution can proceed," by Joseph A. Slobodzian in the Philadelphia Inquirer.

A Philadelphia judge said she will announce Friday whether she will halt the Oct. 3 execution of Terrance Williams for the 1984 killing of Amos Norwood.

Common Pleas Court Judge M. Teresa Sarmina's announcement came Tuesday after two days of testimony on the defense claim that the 1986 trial prosecutor withheld evidence from and misled the jury before it condemned the then-18-year-old Cheyney University freshman.

Williams, 46, has exhausted his federal and state appeals and, barring emergency judicial intervention, will become the first person executed in Pennsylvania in 13 years and the first contested execution in a half-century.

Williams' lawyers argue that the jury would have opted for life in prison without parole had the prosecutor disclosed evidence that Norwood, 56, had sexually molested Williams since Williams was 13.

Instead, said defense lawyer Billy Nolas, the prosecutor portrayed Norwood's killing as the brutal culmination of a robbery of an innocent man.

"It's clear as day," Nolas told Sarmina during oral arguments Tuesday. "The sentence was unconstitutionally unreliable. The jury voted for death based on misinformation."

The arguments by Nolas and Deputy District Attorney Ronald Eisenberg followed a morning during which Nolas outlined newly discovered evidence that investigators had more information about Norwood's sexual activities than was disclosed to Williams' attorney in 1986.

"Terrance Williams' lawyers make final stand," by Mensah M. Dean in the Philadelphia Daily News.

ATTORNEYS for a Philadelphia man facing execution made a final stand Tuesday to save his life by presenting two boxes of 28-year-old police evidence that they claimed city prosecutors had kept from the jury that sentenced their client to death.

The federal public defenders for Terrance Williams, 46, said the evidence, which they received Monday, contain documents corroborating their contention that their then-teenage client had been sexually abused by the middle-aged man he killed.

"We presented an extremely strong case in light of the fact that the commonwealth continued to hide evidence up until last night," defense attorney Shawn Nolan said after closing arguments in the three-day evidentiary hearing.

Assistant District Attorney Robin Godfrey told Common Pleas Judge M. Teresa Sarmina that boxed evidence was the property of the Police Department, not the D.A.'s Office, and that the defense would often not receive it.

The defense team asked Sarmina to vacate Williams' 1986 death sentence and grant him a new penalty hearing, during which a jury would hear the new evidence and render a sentence of death or life in prison without parole.

A ruling will be announced Friday morning, the judge said.

"Ruling on new evidence in Terrance Williams execution case due Friday," by Donald Gilliland in the Harrisburg Patriot-News.

The defense team for Terrance "Terry" Williams said the prosecution's case "stinks to high heaven" amid mounting evidence prosecutors intentionally withheld evidence from the defense when Williams was convicted of first degree murder and sentenced to death in 1986.

Williams is scheduled to be executed on Oct. 3. 

On Tuesday, Philadelphia Common Pleas Court Judge M. Teresa Sarmina presided of a third day of argument in an emergency hearing seeking a stay of execution. She will make a ruling on Friday morning.

The defense is arguing that the prosecution withheld evidence that the murder victim, 56-year-old Amos Norwood, had a history of fondling young boys and was likely having sex with Williams, who had just turned 18 at the time of the killing in 1984. There's evidence Norwood may have been sleeping with the boy since he was 13.

On Tuesday evidence from the 28-year-old police investigation files was entered into the record, showing the pastor at St. Luke's Episcopal Church in Germantown told police he thought Norwood may have been homosexual and that there had been an incident several years earlier in which a mother claimed Norwood had propositioned her 17-year-old son for sex. Norwood was leader of the altar boys and director of a youth theater fellowship at the church.

Earlier coverage of Terry Williams' case begins at the link.

Advocates for Terry Williams have posted an online petition calling for clemency.

Missouri Hearing for Reggie Clemons Concludes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Reggie Clemons Hearing in Missouri

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday Hearing in Missouri for Reggie Clemons

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Eyewitness ID Reforms

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

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

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

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

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

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

And:

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

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

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

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

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

Related posts are in the eyewitness identification index.

Justin Wolfe Case Update

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

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

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

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

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

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

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

Justin Wolfe Moves Step Closer to Full Exoneration

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

Earlier coverage of Justin Wolfe's case begins at the link.  Related posts are in the prosecutorial misconduct category index.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Georgia Case Roundup

Two cases in Georgia highlight charging decisions and disparities.

Today's Atlanta Journal-Constitution reports, "Death-penalty trial near in teen’s beating death."  It's by Rhonda Cook.

For more than two weeks Tracen Franklin has sat silently as his lawyers and prosecutors question people who will be asked to decide whether he is a cold-blooded murderer who should die for killing Bobby Tillman.

Franklin’s lawyers hope to convince jurors that at the time of Tillman’s shocking death nearly two years ago, Franklin was an 18-year-old college freshman caught up in an angry, deadly mob.

Will a jury hand down the ultimate punishment, or see Franklin, now 20, as a young man capable of redemption?

Of the four charged with killing Tillman, he is the only one facing the prospect of a death sentence.

A former Douglas High School football standout, Franklin was a freshman at Alabama State University when the crime occurred. Its brutality and seeming randomness drew national news coverage.

Emanuel Boykins, who threw the first punch, pleaded guilty in April – to avoid a death-penalty trial – and was sentenced to prison for life but with a possibility of parole in 30 years. The other two have not had trials, but Douglas County District Attorney David McDade is not asking for death in their cases.

And:

A difficulty for jurors will be deciding if Franklin was so much more responsible for Tillman’s death than his three friends that he deserves more severe punishment.

Tillman was punched and kicked in, by all accounts, a fatal frenzy.

How, asked Gary Parker, can authorities show which of the four allegedly delivered the killing blow? Parker, who has practiced death-penalty defense for more than three decades, said, “If a bunch of kinds jump in and start beating down a kid and kill a kid and you can’t say which person was responsible for that, how can you” decide who deserves the death penalty?

In another Georgia case, the Florida Times-Union reports, "Accused Brunswick killer to go free after pleading to lesser charge."  It's by Terry Dickson.

John David Clay, who once faced a death penalty trial on a murder charge, pleaded guilty Tuesday to voluntary manslaughter in the brutal stabbing death of a Brunswick woman and could be released immediately.

In sentencing Clay, Superior Court Judge Anthony L. Harrison gave him credit for the nearly five years and six months he has been behind bars and ordered him to serve the balance on probation.

“I anticipate he will be released today,’’ District Attorney Jackie Johnson said Tuesday.

Harrison ordered Clay to have no contact with the family of his victim.

And:

During the investigation of Swain’s death, an officer seized Clay’s clothes from Southeast Georgia Health System’s Brunswick hospital where they had been removed and bagged.

During a motions hearing, then-Superior Court Judge Amanda F. Williams ruled that prosecutors couldn’t use the clothing as evidence because it had been taken without a warrant. She also ruled out statements Clay made to investigating officers who, Williams said, had not properly advised Clay of his Miranda rights.

The Brunswick District Attorney’s Office appealed Williams’ ruling to the Georgia Supreme Court, arguing that officers could legally seize any evidence that is in plain sight without a search warrant.

In March, the Supreme Court ruled the clothing and statements could not be used in Clay’s trial.

Related posts are in the prosecution and trial indexes.

 

The Trial of Reggie Clemons

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

The four articles in the order of publication are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage of Reggie Clemons' case begins at the link

The Justin Wolfe Case

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

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

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

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

And:

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

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

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

The editorial also calls for Virginia to abolish capital punishment:

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

Earlier coverage of Justin Wolfe's case begins at the link.  Related posts are in the prosecutorial misconduct category index.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Additional Coverage of the Justin Wolfe Ruling

The Fourth Circuit ruling in Wolfe v. Clarke is available in Adobe .pdf format.

The updated AP report is, "Court Rules Condemned Virginia Man Should Be Exonerated," by Larry O'Dell.  It's via WRC-TV.

A Virginia man convicted of hiring someone to kill his marijuana supplier should be exonerated and freed from death row because prosecutors withheld evidence that would have discredited their key witness, a federal appeals court ruled Thursday.

The ruling by a three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed a judge's ruling and moved Justin Michael Wolfe one step closer to possibly becoming the first wrongfully convicted inmate freed from Virginia's death row since DNA evidence cleared Earl Washington in 2000.

For now, though, Wolfe will remain in prison while the Virginia attorney general's office ponders its next move. The state could appeal the latest ruling to the full appeals court or the U.S. Supreme Court, walk away from the case and let Wolfe go free, or accept the panel's decision but retry the Prince William County man.

Brian Gottstein, a spokesman for the attorney general's office, said no decision has been made. The state has 14 days to ask for a rehearing before the full appeals court and three months to ask the U.S. Supreme Court to review the case.

"Federal appeals court refuses to reinstate death penalty for Justin Wolfe," is by Frank Green in the Richmond Times-Dispatch.

Last year, U.S. District Judge Raymond A. Jackson overturned Wolfe's convictions, finding among other things that prosecutors failed to provide exculpatory information to Wolfe's attorneys and allowed a key witness to give false testimony.

Jackson gave the state 120 days to retry Wolfe or release him, but that order was stayed when the Attorney General's Office appealed to the 4th Circuit Court of Appeals, leading to the 40-page ruling Thursday.

Wolfe, 31, was convicted in 2002 of hiring Owen Barber IV to kill Daniel Petrole Jr., Wolfe's marijuana supplier, and was sentenced to death. Wolfe also was convicted of a firearms charge and conspiracy to distribute marijuana.

Barber pleaded guilty to first-degree murder and was sentenced to life in prison. Barber was the star witness against Wolfe, but he later recanted his testimony and said that Wolfe did not hire him for the shooting.

In 2010, Barber testified before Jackson in federal court and again said his testimony in Wolfe's trial was false and that Wolfe had nothing to do with the slaying. Barber has also said he implicated Wolfe to avoid the death penalty.

In ruling Thursday, the appeals court cited critical evidence withheld by the prosecution, including a report from the police that an investigator told Barber he could avoid the death penalty by implicating Wolfe.

The appeals court noted, among other things, that the state complained that Wolfe was allowed to bring the newly disclosed report into his appeal.

"It is difficult to take seriously the commonwealth's protestations of ambush, when Wolfe had to labor for years from death row to obtain evidence that had been tenaciously concealed by the commonwealth, and that the prosecution obviously should have disclosed prior to Wolfe's capital murder trial," says the ruling.

"The … report is indubitably impeaching, in that it establishes a motive not only for Barber to implicate someone else, but to point the finger specifically at Wolfe," wrote the judges.

The judges further found that the state's suppression of the report was intentional.

Today's Washington Post reports, "Virginia death row inmate wins reprieve."  It's by Josh White.

Justin Michael Wolfe, condemned to death a decade ago in Prince William County for masterminding a drug-related murder, again won a reprieve Thursday when a federal appeals court upheld an earlier decision to vacate his conviction and sentence.

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled Thursday that Wolfe’s 2002 trial was tainted because Prince William prosecutors failed to turn over evidence that could have been used in his defense. Citing numerous examples, the court specifically pointed to a concealed police report that indicates a detective first suggested Wolfe’s involvement to the killer and told the killer that he might get the death penalty if he didn’t implicate Wolfe.

The court’s opinion called such evidence “crucial” and, like the federal district court before it, criticized Commonwealth’s Attorney Paul B. Ebert’s office for not turning over “Brady” material, or evidence that a defendant could use to prove his innocence. The court said the concealing of the detective’s report “undermines confidence in the fairness and propriety of the entire trial.”

“While we look no further than the [detective’s] report today, we do not condone the prosecution’s apparent suppression of other Brady material and the pattern of conduct that it reveals,” the court wrote, later referencing a similar warning the court issued in 2009 in the case of D.C. sniper John Allen Muhammad, urging prosecutors to err on the side of disclosure in cases for which the death penalty is a possibility. “We sincerely hope that the Commonwealth’s Attorney and his assistants have finally taken heed of those rebukes.”

Ebert said Thursday that he is “disappointed” in the decision but also that it wasn’t totally unexpected. The Virginia attorney general’s office must decide whether to seek a rehearing at the federal circuit level or to appeal the case to the U.S. Supreme Court.

But Ebert also said it appears clear that the 4th Circuit is sending a message that prosecutors should move in the direction of “open-file discovery” in capital cases, which would have prosecutors turn over everything they gather during their investigations. Ebert has said the practice could allow defendants to “fabricate” a defense based on irrelevant material, and the courts in turn have blasted him for not sharing everything.

"Appeals Court Affirms Vacation of Virginia Man’s Conviction, Death Sentence in Murder-For-Hire Case," is by Mark Hansen for ABA Journal.

U.S. District Judge Raymond Jackson threw out Wolfe's conviction last July, saying the prosecution's case against him was tenuous, at best. "A review of the trial proceedings unveiled witness testimony replete with hearsay and speculation," he wrote. "The physical evidence that did exist ... was circumstantial."

The prosecution also failed to disclose to the defense statements by Barber's roommate, Jason Coleman, who said Barber admitted to him that he murdered Patrole, and had acted alone, the judge said. "The substance and nature of the suppressed evidence reasonably undermines the court's confidence in this verdict," Jackson wrote.

In a statement Thursday, Wolfe's mother, Terri Steinberg said she was "grateful" to the courts for doing justice in Justin's case. "Justin is innocent. He has spent 11 years in prison for a crime he did not commit. It is time for the commonwealth to stop pursuing this wrongful conviction and for Justin to come home to his family," she said.

"King and Spalding Pro Bono Work Saves Man from Death Row," is the Layers & Settlement blog post on the pro bono work in the case.

An intense six year effort and 9000 hours of pro bono work by the firm of King and Spalding has overturned the capital murder conviction and death sentence for 29-year-old Justin Wolfe, a man whose trial the court ruled was rife with prosecutorial misconduct.

“We were thrilled about that and very excited to have Judge Jackson conduct such a thorough and careful review of the facts and find that the prosecution failed to turn over a lot of information that would have been extremely helpful in presenting a defense in the murder charge presented against Justin at trial,” says trial attorney Alan Dial from King and Spalding in Washington D.C.

And:

“As a lawyer, you want to make sure that the rules of engagement are set up so that the process is fair,” says Dial who previously worked as an assistant state prosecutor in Atlanta and San Diego, “particularly when you have someone who has been convicted of capital murder.”

“We believe in Justin’s innocence and wanted to dig into the facts of the case and show the court that there was more to it than what was presented at trial,” he adds.

Earlier coverage of Justin Wolfe's case begins at the link.  Related posts are in the prosecutorial misconduct category index.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Former Travis County Medical Examiner on the Rodney Reed Case

Jordan Smith posts, "Bayardo Says State's Case Against Rodney Reed is Wrong; Explosive information filed in federal court," at the Austin Chronicle.  Here's the top of this must-read for those following this long-controversial case:

Former Travis County Medical Examiner Roberto Bayardo says his testimony in the 1998 capital trial of Rodney Reed for the sexual assault and killing of Stacey Stites was misconstrued by prosecutors to suggest a solid timeline for Stites' death, and to prove that Reed had sexually assaulted Stites. But that, he now says, is not at all what he found.

Instead, Bayardo says in legal declaration that it looks like Stites suffered from an anal rape – one more likely committed with a "rod-like instrument, such as a police baton." That conclusion suggests even more strongly, Reed's attorneys argue, that someone other than Reed murdered Stites before leaving her body on the side of a country road in 1996. Indeed, at the time of her murder Stites was engaged to then-Giddings Police Officer Jimmy Fennell, who is now in prison for the kidnap and sexual assault of a woman while on-duty as a Georgetown cop in 2007. (Fennell pleaded guilty in 2008 and was sentenced to 10 years in prison.)

Bayardo's revelation is among several containing potentially explosive new information that were filed in an Aug. 13 brief in federal court, objecting to a federal magistrate's June opinion that Reed's federal appeals, including his innocence claim, should be denied. In short, Magistrate Judge Andrew Austin ruled on June 15 that Reed's DNA found in Stites' vaginal cavity is "significant – indeed…perhaps conclusive – evidence of his guilt." That ruling has been forwarded to Judge Lee Yeakel for consideration; Reed's attorneys Bryce Benjet and Andrew MacRae this week filed the new information, asking Yeakel to reject Austin's conclusions, to review all the available evidence, to hold an evidentiary hearing on the case, and, ultimately, to either retry or release Reed.

The latest filing by Rodney Reed's attorneys, including the Bayardo declaration and Barbisch affidavit, are availabe in Adobe .pdf format.

The Austin Chronicle's archive of Rodney Reed articles, is an excellent resource.

Earlier coverage of Rodney Reed's case begins at the link.

Jeanne Woodford on California Prop 34

"Former warden says California can’t afford death penalty," is by Mary Duan in the Monterey County Weekly.

From the time a death penalty case enters the court system in California, the count begins. There’s an estimated $40 million a year spent on death penalty cases at the county court level. Then $72 million a year goes for housing death penalty inmates in state prison. Another $58 million is spent on appealing death penalty cases to the state appellate court, and then $14 million is spent on federal appeals, including those that make it all the way to the U.S. Supreme Court.

To put it more simply, as U.S. 9th Circuit Judge Arthur Alarcon and Loyola Law School Professor Paula Mitchell did in a 2011 report titled “Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle,” it’s cost $308 million for each of the 13 executions carried out since California’s reinstated the death penalty in 1978.

Do the math: It’s slightly more than $4 billion spent on executing 13 people. And 725 inmates currently sit on death row. Do the math on that.

Jeanne Woodford knows the numbers intimately, but she knows another set of numbers just as well: 30-60 days. That’s the time she had, from the day a death warrant was signed by the governor to the actual night of an execution, to prepare her staff to kill an inmate at San Quentin State Prison, home to California’s death row.

And:

“I think it’s important to know we have a criminal justice problem in this state and the facts speak for themselves,” Woodford says. “Science tells you the best way to prevent crime is to solve it.” Instead of spending billions on a handful of people who, without the death penalty, will still die in prison with sentences of life without the possibility of parole, Woodford says a fraction of that $4 billion could go toward better policing.

“If you don’t have police on the streets and you’re not solving crime,” she says, “it makes us all less safe.”

Earlier coverage of Prop 34, the SAFE California ballot initiative, begins at the link.

FBI to Launch Large Post-Conviction Review

Today's Washington Post reports, "Justice Dept., FBI to review use of forensic evidence in thousands of cases."  It's written by Spencer S. Hsu.

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

On Tuesday, the Justice Department announced that it will conduct the more expansive review.

“The Department and the FBI are in the process of identifying historical cases for review where a microscopic hair examination conducted by the FBI was among the evidence in a case that resulted in a conviction,” spokeswoman Nanda Chitre said in a statement. “We have dedicated considerable time and resources to addressing these issues, with the goal of reaching final determinations in the coming months.”

And:

The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

The article states that DoJ and the FBI will be working with the Innocence Project and the National Association of Criminal Defense Lawyers in the review, though no details were provided.

Earlier coverage begins with the Post's April series on flawed forensics.  Related posts are in the forensics category index

An Update on the Michael Morton Exoneration

The Texas Tribune posts, "Son Seeks Answers in Father's Wrongful Conviction," by Brandi Grissom.  It's part of the Trib's Errors in Judgment series.

It had been 14 years since their last meeting. Father and son sat uncomfortably last fall in the well-appointed home of the Houston lawyer who helped free Eric Olson’s father from prison.

The only clothes Eric remembered seeing his dad wear before were prison whites. Now, he noticed, his dad was dressed just like him: blue jeans, a button-down shirt, even similar shoes.

How should he feel about meeting the man who he had believed savagely killed his mother and felt no remorse? At age 28, with his pregnant wife at his side, Eric saw his father Michael Morton  as an innocent man for the first time. Was this really happening, he wondered. It felt like a movie.

“I don’t know if I should feel tears of joy or laughter. I remember mostly being kind of numb the whole night, mostly sitting there, listening, just waiting for ... I don’t know. Waiting for everything to make sense again,” Eric recalled. “Only months before that, we were still supposed to hate him.”

Coverage of the earlier two reports in the Trib series, "Errors in Judgement," is at the links; earlier coverage of Michael Morton's exoneration and the National Registry of Exonerations, also available.

An Update on the Rodney Reed Case

"Judge Recommends Rejecting Rodney Reed Appeal," is the title of Jordan Smith's report in the Austin Chronicle.  Here's the opening:

In an 82-page report to District Judge Lee Yeakel, federal Magistrate Judge Andrew Austin on June 15 recommended that the federal appeal of Rodney Reed be denied. Reed was convicted and sentenced to die in 1998 for the 1996 murder of Stacey Stites, after DNA found on vaginal swabs taken from Stites were an affirmative match for Reed. "If Reed has no innocent explanation for the sperm found in ... Stites' vagina being his, then the DNA match is significant – indeed ... perhaps conclusive – evidence of his guilt," Austin wrote. Whether Yeakel will agree with that conclusion remains to be seen.

The state contends that Reed, while on foot, overcame 19-year-old Giddings resident Stites as she drove to Bastrop for an early morning shift at H-E-B, and that the semen found in Stites is the "Cinderella's slipper" proving its case. Reed's supporters contend that a far more likely suspect is Jimmy Fennell, a former Giddings and Georgetown cop to whom Stites was engaged at the time of her murder. Fennell is currently serving a 10-year sentence for kidnapping and sexual assaulting a woman while on duty and responding to a call for service as a Georgetown cop. Reed's case has been wending its way through state and federal courts on appeal since 1999, and, in the intervening years, a mass of evidence has come to light that paints Fennell as a man with a troubling history of violence toward women – a history that Reed's supporters say bolsters their contention that Fennell murdered Stites after discovering that she was having a sexual affair with Reed.

Moreover, Reed's supporters and his lead lawyer, Bryce Benjet, say that the reason the state's theory of the case convinced jurors of Reed's guilt is that questionable medical evidence, presented by the state to demonstrate that Stites had been raped just before her killing, was not scientifically sound and was never challenged by Reed's trial attorneys, an oversight that Reed has said made those attorneys ineffective. (In March, the U.S. Supreme Court ruled that a defendant should be allowed to argue ineffective assistance claims even if those issues were not raised at trial, so Benjet may next make that claim against former Reed appeal attorney Bill Barbisch for not arguing that Reed's trial attorneys were ineffective for failing to challenge the state's contention that Stites was raped.)

Smith also writes, "Rodney Reed: Another Innocent Man on Texas Death Row?" for the Nation.

At first glance, Texas’s capital case against Rodney Reed looks fairly persuasive.

Nineteen-year-old Stacey Stites was found dead in a wooded area just off a county road in Bastrop, Texas, in 1996. She was half-naked, with Reed’s DNA inside her. The DNA was the “Cinderella’s slipper,” special prosecutor Lisa Tanner told the jury at trial: it matched Reed’s; therefore, Reed was the murderer.

But what if it weren’t that simple?

It has been fourteen years since Reed was convicted and sentenced to die for Stites’s murder. Since then, evidence has accumulated that calls into question the state’s case against him—evidence that includes ineffective lawyering, possible prosecutorial misconduct, junk science and racial bias. Perhaps most damning, it also includes a failure by police to fully investigate a man with a troubling history of violence against women: Jimmy Fennell, Stites’s fiancé, a former police officer who is currently serving prison time for kidnapping and sexual assault.

Reed, who is black, has maintained his innocence and said that the DNA can be explained because he was having a sexual affair with Stites, who was white. In small-town Texas such an illicit, interracial relationship remains an explosive revelation—one that Reed’s supporters say infuriated Fennell, who is white, giving him a strong motive to harm his young bride-to-be.

Earlier coverage of Rodney Reed's case begins at the link.

Indigent Defense Given Short Shrift in Federal Justice Grants

That's the title of commentary from Robert M.A. Johnson for the Hill.  He's co-chair of the Constitution Project's National Right to Counsel Committee.  Here's the beginning of a must-read on the state of indigent defense:

A recently released federal report confirms what most observers have known for a long time—when it comes to federal funding, those who represent the poor in the criminal justice system are largely left out in the cold.  The new study, which members of Congress asked the nonpartisan Government Accountability Office (GAO) to conduct, examines how state, local and tribal governments use critical criminal justice grants – such as the Byrne Justice Assistance Grants (Byrne JAG) and Byrne Competitive grant programs – they receive from the federal government.
   
The GAO found that legal assistance for defendants unable to afford it on their own consistently comprised the smallest percentage of state, local and tribal spending of federal grants. Based on survey responses, the GAO estimated states only allocated seven-tenths of one percent of Byrne JAG money to indigent legal defense over a five-year period, while prosecutors and law enforcement received about 38 percent. The imbalance is even starker at the local level, where indigent defense received a paltry one-tenth of one percent of the money, compared with law enforcement and prosecutors who receive 54 percent. In total, over those five years, police received $1.8 billion, prosecutors and courts nearly $300 million, and indigent defense only $22 million.  Clearly, when it comes to achieving fairness and parity in criminal justice funding, government at every level is simply falling short.

 Related posts are in the indigent defense index.

The State of Electronic Recording of Custodial Interrogations

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

Here's the introduction:

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

You Can't Fix the Death Penalty

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

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

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

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

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

And:

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

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

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

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

Texas Gaining National Rep for Executing Innocents

That's the title of Texas Observer Editor Dave Mann's take on the Columbia HRLR report, The Wrong Carlos.

Yes, it has come to this: Credible claims of innocence in multiple cases of men executed years ago. It’s becoming a disgrace for the state. What else can we say after the recent disturbing revelations in the case of Carlos DeLuna?

DeLuna was convicted of stabbing to death 24-year-old Wanda Lopez at a Corpus Christi convenience store in 1983. His conviction was based largely on the shaky testimony of a single eyewitness. Police had the eyewitness identify DeLuna at the crime scene while DeLuna was in custody—not ideal policing practice to say the least. No physical evidence linked him to the crime. Yet the state executed DeLuna in 1989. Now it appears they had the wrong man.

In 2003, Columbia University law professor James Liebman and a group of students began an eight-year reinvestigation of DeLuna’s case. Their results were recently published in a book-length Columbia Human Rights Law Review article.

And:

Texans have sadly grown accustomed to the horrifying tales of wrongful conviction after more than two dozen DNA exonerations in Dallas County and the high-profile cases of Anthony Graves and Michael Morton. But the DeLuna case is one of the most dispiriting yet. Though the details are different, what happened to DeLuna is eerily similar to the infamous Cameron Todd Willingham case and to the Claude Jones case. (If you’re not familiar with the Jones story, which the Observer broke in November 2010, then read this story. DNA tests debunked the key evidence against Jones, who was executed in 2000, though the tests didn’t conclusively establish his actual innocence.) Then there’s the case of Ruben Cantu, a former special ed student executed in 1993 for a crime he almost certainly didn’t commit.

"Carlos DeLuna, Cameron Willingham and Rethinking the Criminal Justice System," is Dan Simon's Huffington Post essay.  He's Professor of Law and Psychology at USC's Gould School of Law.  Here's the beginning:

Carlos DeLuna and Cameron Todd Willingham probably did not commit the crimes for which they were put to death by the state of Texas. In-depth inquiries into their convictions revealed bungled investigations, poor recordkeeping, mistaken eyewitness testimony, spurious forensic testimony and misconduct by law enforcement personnel, among other problems.

Sadly, the DeLuna and Willingham convictions are hardly isolated incidents. The National Registry of Exonerations, which launched this month, lists 890 men and women who were wrongfully convicted for serious crimes and spent, on average, more than 11 years in prison before being found factually innocent. That's not the complete story. The registry does not include an additional 1,170 people who were exonerated following large-scale police scandals. The actual number of false convictions is probably far greater.

At bottom, the primary cause for false convictions is the questionable quality of the evidence habitually used in criminal prosecutions. Poor evidence can be produced even when all actors follow procedures diligently and conscientiously. The problems lie with the investigative procedures themselves. Lineups, witness interviews, and suspect interrogations rely on crude and archaic investigative methods that are both insensitive to the prospect of human error and prone to exacerbate mistakes. As a result, the evidence elicited contains an unknown mix of accurate and inaccurate evidence.

Mystifyingly, criminal investigators are not required to make a reliable record of the evidence they collect. Verdicts are thus often based on faded memories, paraphrased statements, incomplete narratives and swearing contests about what transpired in the interrogation room. Hints of error are obscured from police supervisors and prosecutors, and they are concealed from lawyers, judges and juries. The lack of a reliable record opens the door to testimony creep -- as the trial date approaches, gaps in testimony get filled, narratives congeal, and reluctant witnesses become more confident.

The Catholic Sentinel posts, "Another innocent killed?"

America is one of the few remaining countries that allows its states to use the death penalty. For a state to kill people to demonstrate that killing people is wrong is crazy.

The Vatican and the U.S. bishops have spoken out against the death penalty.
Archbishop John Vlazny has called for an end to the death penalty in this newspaper.

“Human life is a gift from God, sacred from conception to natural death ,” he wrote last year.

In his encyclical Caritas in Veritate, Pope Benedict asserted that “society lacks foundations when, on the one hand, it asserts values such as the dignity of the person, justice and peace, but then, on the other hand, radically acts to the contrary by allowing or tolerating a variety of ways in which human life is devalued and violated, especially when it is weak or marginalized.”

Even as a deterrent to crime, the death penalty is not reliable. States with more executions do not generally have lower murder or crime rates.

The Story, an American Public Media radio broadcast, features an interview with Columbia Law prof James Liebman in, "Investigating an Execution."  It's conducted by Dick Gordon.  Audio is at the link.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link; also available, extensive coverage of the National Registry of Exonerations.  You can read the full article at The Wrong Carlos.

Robyn Blumner on 'The Wrong Carlos'

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

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

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

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

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

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

And:

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

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

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

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

Death Penalty Perils

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

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

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

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

And:

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

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

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

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

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

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

A Tragic Injustice

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

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

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

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

And:

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

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

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

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

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

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

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

Earlier coverage of the Registry begins at the link.

Continued Coverage of the National Registry of Exonerations

The National Registry of Exonerations is beginning to garner editorials, and continuing to get focused attention.

"Hard truths about injustice," is the Dallas Morning News editorial.

Call it a graduate course on what can go wrong in the criminal justice system.

There are 891 case studies at present, and climbing.

That’s the number of individual cases listed so far in a new national project on cataloging and dissecting proven miscarriages of justice.

Called the National Registry of Exonerations, the project aims to build the first comprehensive listing of wrongful convictions in America so the public and professionals can learn the hard lesson of failure, then build a better system.

As with a similar, DNA-centered exoneration database maintained by the Innocence Project of New York, this one figures to be a good teacher. And Texas once again has an embarrassingly prominent presence.

So be it. This state needs to have its dirty laundry laid out as often as possible if that’s what it takes to overcome skepticism that things have been just fine the way they are inside Texas’ halls of justice. We know that’s not the case.

"A new National Registry on Exonerations casts doubt on the accuracy of our criminal justice system," is the title of a Birmingham News editorial.

How many people wrongfully convicted of a crime are we willing to accept? Especially those who are sentenced to Death Row?

A report released Monday by the National Registry on Exonerations raises those questions and more. The registry, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, profiles 873 exonerations from January 1989 through February 2012. The report discusses including at least 1,170 other defendants whose convictions were dismissed after more than a dozen major police scandals. Most of those scandals involved the massive planting of drugs and guns on innocent defendants, which led to "group exonerations."

And:

Of the 16 state exonerations in Alabama, six were men sentenced to death. It does not require a vivid imagination to wonder whether a wrongly convicted person awaits execution on Alabama's Death Row or, worse, whether the state has killed an innocent person in our names.

If someone goes to prison for a crime he or she did not commit, it is an injustice. That is especially true in capital murder cases, where a life is at stake. We would like to have as much confidence in Alabama's criminal justice system as Strange professes, but the report on the national registry casts enough doubt to cause grave concern.

The Week magazine bundles, "25 years of wrongful convictions: By the numbers."

891 - Specific wrongful conviction cases detailed in the National Registry of Exonerations

93 - Percent of the exonerated convicts who are men

50 - Percent who are black

10.7 - Average time, in years, from conviction to exoneration

10,000 - Combined time, in years, the 891 exonerated prisoners spent behind bars

2.3 million - People incarcerated in the U.S. 

1,170 - Convicted defendants cleared in 13 "group exonerations" since 1995, following large police-corruption scandals, usually involving planted drugs or guns

416 - People exonerated of wrongful homicide convictions

UMichigan Law prof Sam Gross, co-founder of the Registry, is interviewed on NPR's All Things Considered, "Exoneration List Shows Patterns In False Convictions."  It's conducted by NPR's Audie Cornish.

And, to start, Professor Gross, this registry contains information about, I guess, 2,000 exonerations since 1989, but do you know if that's really a comprehensive list?

SAMUEL GROSS: No, it's not. It's incomplete in two senses. It doesn't include all the exonerations that occurred. It includes those we've been able to get information on. And, second, and really more important, even if we could get information on all the exonerations that have occurred in the United States in the past 20-some years, that would only be a small fraction of the people who were innocent but convicted of serious crimes, despite their innocence.

CORNISH: So, of these 2,000 cases that you talk about, you have almost 900 cases, roughly, that you have the most detail about. And one thing I found interesting is that it wasn't DNA, necessarily, that exonerated all of these people.

GROSS: That's right. If you ask somebody on the street about exonerations, the next word out of their mouth will almost certainly be DNA and that's because DNA exonerations, which started in 1989, have gotten a lot of attention and for good reason. They've taught us a lot about the criminal justice system and they provide a type of scientific evidence of innocence that is very powerful.

But DNA exonerations have always been a minority of the exonerations that occur and the more we learn about exonerations that don't get as much attention, the more non-DNA exonerations we find out about.

Exoneree Franky Carrillo and Sam Gross were guests on MSNBC Politics Nation with Al Sharpton.  Carrillo spoke about his own experience with wrongful conviction and exonerations.

Visit msnbc.com for breaking news, world news, and news about the economy

At Huffington Post David Protess posts, "Meet the Exonerated."  He's president of the Chicago Innocence Project.

Other findings were more nuanced. Notably, exonerations were spread across 43 states, but were most prevalent by far in three states: Illinois, New York and Texas. These states together accounted for one-third of the country's exonerations. Cook County and Dallas County led the way with 114 exonerations between them.

But why? While the knee-jerk reaction is to shout "corruption," the reality is good news more than bad. As the researchers indicate, these areas have been at the forefront of the national innocence movement, with dedicated lawyers, investigators, journalists and even college students engaged in exposing wrongful convictions since the 1990s. In the last five years, the D.A. of Dallas County has remedied injustice in 19 cases, some in collaboration with the local innocence project.

It is reasonable to conclude that if the loosely affiliated public interest groups were to bring their model to populated counties like San Bernardino (Calif.), Fairfax (Va.) and Bergen (N.J.) -- none with an exoneration since 1989 -- the problem of wrongful convictions would suddenly surface.

Another relevant issue is the death penalty. Seven of the 10 states with the most exonerations also had among the highest death row populations. Although fewer than 0.1 percent of prisoners are sentenced to death, 12 percent of exonerees had been condemned. Once again, the death penalty has been a priority of the innocence movement, and many dramatic exonerations have helped to change the conversation about capital punishment in America.

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

Continued Coverage - 'The Wrong Carlos'

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

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

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

And:

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

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

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

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

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

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

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

And, one of the questions and answer:

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

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

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

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

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

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

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

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

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

Additional Coverage, The Wrong Carlos

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

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

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

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

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

And:

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

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

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

And:

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

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

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

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

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

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

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

Initial News Coverage of the National Registry of Exonerations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

National Registry of Exonerations

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

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

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

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

Continued News Coverage of 'The Wrong Carlos'

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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