The StandDown Texas Project

Editorials on the DeLuna Case and Columbia Report

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

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

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

Could that have changed this week?

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

And:

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

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

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

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

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

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

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

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

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

Additional Coverage of the DeLuna Report

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ignored By 911

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

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

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

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

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

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

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

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

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

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

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

A Routine Execution in Texas

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

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

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

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

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

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

Andrew Cohen on the DeLuna Case

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

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

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

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

And:

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

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

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

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

The Wrong Carlos

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Washington Post Series: Investigating Flaws in Forensics

The Gallery for the series has an extensive group of photos.

"Convicted defendants left uninformed of forensic flaws found by Justice Dept.," is the first part of the series reported by Spencer S. Hsu.  Here's the beginning of this must-read:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

In one Texas case, Benjamin Herbert Boyle was executed in 1997, more than a year after the Justice Department began its review. Boyle would not have been eligible for the death penalty without the FBI’s flawed work, according to a prosecutor’s memo.

The case of a Maryland man serving a life sentence for a 1981 double killing is another in which federal and local law enforcement officials knew of forensic problems but never told the defendant. Attorneys for the man, John Norman Huffington, say they learned of potentially exculpatory Justice Department findings from The Washington Post. They are seeking a new trial.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

The review was performed by a task force created during an inspector general’s investigation of misconduct at the FBI crime lab in the 1990s. The inquiry took nine years, ending in 2004, records show, but the findings were never made public.

In the discipline of hair and fiber analysis, only the work of FBI Special Agent Michael P. Malone was questioned. Even though Justice Department and FBI officials knew that the discipline had weaknesses and that the lab lacked protocols — and learned that examiners’ “matches” were often wrong — they kept their reviews limited to Malone.

But two cases in D.C. Superior Court show the inadequacy of the government’s response.

Santae A. Tribble, now 51, was convicted of killing a taxi driver in 1978, and Kirk L. Odom, now 49, was convicted of a sexual assault in 1981.

"DOJ review of flawed FBI forensics processes lacked transparency," is part two of the series.  It's reported by Spencer S. Hsu, Jennifer Jenkins and Ted Mellnik.

The bombshell came at the most inopportune time.

An FBI special agent was testifying in the government’s high-profile terrorism trial against Omar Abdel Rahman, the “blind sheik” suspected of plotting the first attack on the World Trade Center.

Frederic Whitehurst, a chemist and lawyer who worked in the FBI’s crime lab, testified that he was told by his superiors to ignore findings that did not support the prosecution’s theory of the bombing.

“There was a great deal of pressure put upon me to bias my interpretation,” Whitehurst said in U.S. District Court in New York in 1995.

Even before the Internet, Whitehurst’s extraordinary claim went viral. It turned out he had written or passed along scores of memos over the years warning of a lack of impartiality and scientific standards at the famed lab that did the forensic work after the World Trade Center attack and in other cases.

With the FBI under fire for its handling of the 1993 trade center attack, the Oklahoma City bombing and the O.J. Simpson murder case, officials had to act.

After the Justice Department’s inspector general began a review of Whitehurst’s claims, Attorney General Janet Reno and FBI Director Louis J. Freeh decided to launch a task force to dig through thousands of cases involving discredited agents, to ensure that “no defendant’s right to a fair trial was jeopardized,” as one FBI official promised at a congressional hearing.

The task force took nine years to complete its work and never publicly released its findings. Not the results of its case reviews of suspect lab work. Not the names of the defendants who were convicted as a result. And not the nature or scope of the forensic problems it found.

Those decisions more than a decade ago remain relevant today for hundreds of people still in the U.S. court system, because officials never notified many defendants of the forensic flaws in their cases and never expanded their review to catch similar mistakes.

The series also contains "How accurate is forensic analysis?" examining different forms of forensic evidence.

Related posts are in the forensics category index.

Even as Violent Crime Falls, Killing of Officers Rises

That's the title of a report in today's New York Times written by Michael S. Schmidt and Joseph Goldstein.

As violent crime has decreased across the country, a disturbing trend has emerged: rising numbers of police officers are being killed.

According to statistics compiled by the Federal Bureau of Investigation, 72 officers were killed by perpetrators in 2011, a 25 percent increase from the previous year and a 75 percent increase from 2008.

The 2011 deaths were the first time that more officers were killed by suspects than car accidents, according to data compiled by the International Association of Chiefs of Police. The number was the highest in nearly two decades, excluding those who died in the Sept. 11 attacks in 2001 and the Oklahoma City bombing in 1995.

While a majority of officers were killed in smaller cities, 13 were killed in cities of 250,000 or more. New York City lost two officers last year. On Sunday, four were wounded by a gunman in Brooklyn, bringing to eight the number of officers shot in the city since December.

And:

After a spate of killings in early 2011, Attorney General Eric H. Holder Jr. asked federal authorities to work with local police departments to try to come up with solutions to the problem.

The F.B.I., which has tracked officer deaths since 1937, paid for a study conducted by John Jay College that found that in many cases the officers were trying to arrest or stop a suspect who had previously been arrested for a violent crime.

That prompted the F.B.I. to change what information it will provide to local police departments, the officials said. Starting this year, when police officers stop a car and call its license plate into the F.B.I.’s database, they will be told whether the owner of the vehicle has a violent history. Through the first three months of this year, the number of police fatalities has dropped, though it is unclear why.

Some law enforcement officials believe that techniques pioneered by the New York Police Department over the past two decades and adopted by other departments may have put officers at greater risk by encouraging them to conduct more street stops and to seek out and confront suspects who seem likely to be armed.

Last Friday, Austin Police Officer Jaime Padron was fatally shot while investigating an overnight call.  The Austin American-Statesman has more on that case in, "Man charged with capital murder in officer's shooting death," by Tony Plohetski, Patrick George and Claudia Grisales.

Related posts are in the crime rates and law enforcement indexes.

Justice Stevens Returns to New York Review of Books

"A Struggle with the Police & the Law," is Justice John Paul Stevens' third essay in the New York Review of Books since his retirement from the Supreme Court.  It's a review of The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, published by the University of Delaware Press.

The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, tells us at least as much about its author as it does about the facts of the underlying case, which concerned an encounter between an unnamed young woman and three young men in Wilmington, Delaware’s Woodlawn Park in the early hours of October 30, 1947. The book, Morris writes, “is essentially the story of a fledgling lawyer’s struggle to overturn the result of a flawed trial by proving…police perjury.”

Irving Morris’s vivid recollection of events that occurred many decades ago demonstrates how the intangible benefits that lawyers receive from unpaid devotion to their profession generally far exceed the value of fees received from paying clients. I have often quoted the advice that John Adams gave to a younger lawyer: “Now, to what higher object, to what greater character, can any mortal aspire than to be possessed of all this knowledge well digested, and ready at command to assist the feeble and friendless…?” Morris’s story exemplifies this lesson. As he writes toward the end of the book, “Even though my clients paid little, I know I have earned far beyond what I ever imagined I might receive from successfully representing them.”

As the story unfolds, we learn how a competent lawyer responds to a series of defeats in protracted litigation. We are not told about the later events that made Irving Morris a leader of the corporate bar and the president of the Delaware State Bar Association.

And:

Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976). We wrote that capital sentencing procedures must be constructed to avoid the random or capricious imposition of the penalty, akin to the risk of being struck by lightning. Today one of the sources of such arbitrariness is the decision of state prosecutors—which is not subject to review—to seek a sentence of death. It is a discretionary call that may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office.

Justice Stevens' November 2010 essay in the New York Review of Books reviewed David Garland's Peculiar Institution; his November 2011 NYRB essay reviewed William Stuntz' The Collapse of American Criminal Justice.  Related posts are in the books index.  More from Justice Stevens on the death penalty is also available.

Raymond Bonner in the New York Times

The Sunday New York Times carries Raymond Bonner's OpEd, "When Innocence Isn’t Enough."  Here's the beginning of this must-read:

EDWARD LEE ELMORE turned 53 in January. For more than half his life, the soft-spoken African-American who doesn’t understand the concept of north, south, east and west, or of summer, fall, winter and spring, was in a South Carolina prison, most of it on death row.

On Friday, Mr. Elmore walked out of the courthouse in Greenwood, S.C., a free man, as part of an agreement with the state whereby he denied any involvement in the crime but pleaded guilty in exchange for his freedom. This was his 11,000th day in jail.

Mr. Elmore was convicted in 1982 for the sexual assault and murder of an elderly white widow in Greenwood. His trial lasted only eight days, including two spent picking the jury. The state concealed evidence that strongly pointed to Mr. Elmore’s innocence and introduced damning evidence that appears to have been planted by the police. For three decades lawyers for Mr. Elmore, who were convinced of his innocence, sought to get him a fair trial.

Headlines and news stories about men being released from death row based on DNA testing suggest that this happens often. But it doesn’t. Once a person has been convicted, even on unimaginably shaky grounds, an almost inexorable process — one that can end in execution — is set in motion. On appeal, gone is the presumption of innocence; the presumption is that the defendant had a fair trial. Not even overwhelming evidence that the defendant is innocent is necessarily enough to get a new trial. “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White wrote for the majority in a 1977 case, Patterson v. New York.

In other words, innocence is not enough.

Coverage of Bonner's latest book, Anatomy of Injustice: A Murder Case Gone Wrong, begins in this earlier post.  Bonner's next author event is in Austin, on Wednesday, March 7 at Book People.  More book events are noted at Bonner's website.

Also From Philadelphia - A Supreme Court Ruling

Barbara Leonard posts, "Man on Death Row Loses Chance for Clean Slate," at Courthouse News Service.  The case is Wetzel v. Lambert; the opinion is available in Adobe .pdf format.

The Supreme Court on Tuesday dashed an order to free or retry a death-row inmate convicted of double homicide more than 30 years ago.

"Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prose­cution," the six-page decision states (emphasis in original). "That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996].

James Lambert had nearly won his freedom last year based on evidence that may have exonerated him at trial.

In 1984, Lambert was sentenced to death for murdering two people while robbing a Philadelphia business called Prince's Lounge.

Admitted accomplice Bernard Jackson testified against Lambert and also identified Bruce Reese as a participant to the crime. But Lambert recently discovered a 1982 document in which Jackson identifies a third man named Lawrence Woodlock as a co-defendant, presumably to the robbery he committed with Lambert and Reese.

Lambert said prosecutors never disclosed the "police activity sheet" that contained this information in violation of Supreme Court precedent in Brady v. Maryland, which held that it is a violation of due process for prosecutors to suppress evidence that favor the defendant.

And:

In a three-page dissent, Justice Stephen Breyer rejected the idea that the police notation was ambiguous.

"The nota­tion clearly refers to this case, not to some other case," according to the dissent, which Justices Ruth Bader Ginsburg and Elena Kagan joined. "It sets forth the file number of this investigation, the inves­tigators of this crime, the victims of this murder, and the potential witnesses of these events. It does not refer specifically to any other robbery. The notation says that "[a] [p]hoto display was shown to ... [witnesses in this case],' and it specifies that the '[p]hoto display contained a Lawrence Woodlock.' In this context, the words must refer to a display that included persons potentially involved in this robbery. That being so, the most natural reading of the statement, 'Mr. Woodlock is named as co-defendant by Bernard Jackson,' is that it too refers to this murder and not to some other crime."

Breyer also disagreed that the federal appeals court "overlooked" the ambiguity issue, noting that the state courts never made any such determinations.

"If the trial court expressed any view about ambiguity, it thought that the police notation was not ambiguous," he added.

While the Supreme Court majority pointed out that the state high court used the word "speculative," Breyer said the context shows "that the court used that word to refer to Lambert's claim that the notation showed that he was innocent."

The ABA Criminal Justice Section posted this summary:

Summary: The Court of Appeals for the Third Circuit had granted Lambert, who was convicted of capital murder in 1984, habeas relief; the court held that the failure to disclose a police activity sheet violated Lambert’s rights under Brady v. Maryland.  In a per curiam opinion, the Court vacated the judgment of the Third Circuit and remanded the case for further proceedings on the grounds that the Third Circuit had failed to address the state court’s determination that the notations on the activity sheet were “not exculpatory or impeaching” but instead “entirely ambiguous.” Justice Breyer filed a dissenting opinion, which was joined by Justice Ginsberg and Justice Kagan.

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

Reggie Clemons is Troy Davis

That's the title of David Love's latest at Huffington Post.  He's the executive director of Witness to Innocence.

The case of Reggie Clemons represents everything that is wrong with the death penalty and the U.S. criminal justice system.

His case reminds us of Troy Davis, a black man who was executed by the state of Georgia in September, despite strong evidence of innocence, no physical evidence, another suspect and unreliable witnesses, not to mention worldwide protests.

In 1993, Clemons was sentenced to death in St. Louis, Missouri as an accomplice to the 1991 murder of Julie and Robin Kerry -- two white women who plunged to their deaths off the Chain of Rocks Bridge into the Mississippi River. He was 19 at the time of the killings, with a clean record.

He was beaten by police, denied a lawyer, and coerced into making a false confession. As Amnesty International reported, there was no physical evidence linking Clemons to the murders. Even the prosecution admitted that Clemons did not murder the victims, nor did he plan the crime.

And:

Police torture and false testimony, crooked prosecutors and a stacked jury, incompetent defense counsel and missing evidence. Let's not forget raw racism. These are the key ingredients of a horrid dish called American justice. And sadly, this is why Reggie Clemons is facing execution. This is a prime example of what happens when criminal behavior in the police station and the courtroom sends an innocent man to his death. But unlike Troy Davis in Georgia, Cameron Todd Willingham, Ruben Cantu, Carlos DeLuna, or Larry Griffin in Missouri, Reggie Clemons is still alive. There is still time to save him. We can fix this.

On the other hand, we cannot fix our system of capital punishment. According to the Death Penalty Information Center, since 1973, 140 innocent men and women have been freed from death row in 26 states, each spending an average of nearly 10 years in prison awaiting execution.

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

New Problems in Harris County DA's Office?

Today's Houston Chronicle reports, "Attorneys: DA saga taints death penalty retrial."  It's by Brian Rogers.

Defense lawyers for Carl Wayne Buntion, whose death penalty retrial is set to start next week, want to postpone the case - or get a special prosecutor.

They didn't file the eleventh-hour request because of a surprise witness or new evidence.

The lawyers say there is no way their client can get a fair trial, because employees of the Harris County District Attorney's Office have been tainted - they've been asked questions by the FBI and Texas Rangers.

"Mr. Buntion is entitled to be prosecuted by a District Attorney and assistant district attorneys who are neither witnesses in nor targets of a criminal prosecution," reads a motion to suspend prosecution or appoint a special prosecutor.

The request, signed by Buntion's attorneys Casey Keirnan and Phillip Scardino, was filed Wednesday a day after media reports began to emerge that law enforcement officials have been talking to district attorney employees about allegations the office investigated the grand jurors who for six months investigated her office.

Harris County District Attorney Pat Lykos has said she asked her chief investigator to do an "internet search" into possible political connections between grand jurors, two judges and a political opponent of the district attorney.

She has said it was not an "investigation."

Lawyers for Buntion immediately seized on the news to try change the landscape of the coming trial.

Jurors are expected to spend about three weeks hearing evidence before deciding whether Buntion should be executed for gunning down Houston police officer James Irby during a traffic stop in 1990.

The punishment phase of several death penalty cases, including Buntion's, are being retried because jury instructions used in those cases were later deemed unconstitutional.

Houston ABC affiliate KTRK-TV reports, "DA probe starting to affect trials?"  It's by Ted Oberg.

One day after we broke the news about the FBI and Texas Rangers' inquiry into the Harris County District Attorney's Office, we have learned it could have an impact on the punishment for a man convicted of killing a police officer.

It is hard to imagine how a convicted cop killer could use the DA's troubles to stop his re-sentencing, but Carl Buntion is trying.

Buntion killed Houston Police Office James Irby in 1990 and was sent to death row. Appeals courts, though, ruled his original jury didn't have enough information on Buntion's mental illness and troubled childhood and ordered a re-sentencing. A new jury is almost seated.

But after word leaked that the Texas Rangers and FBI are digging around the DA's office, Buntion's lawyers asked a judge to stop the case.

"We think the trial should stop and be investigated," said Buntion's lawyer, Phillip Scardino.

The FBI and Texas Rangers apparently want to know what District Attorney Pat Lykos and her team did once they found out a grand jury was investigating the DA's office.

Lykos initially denied, but then admitted asking investigators to look into the private lives of grand jurors.

Buntion's team says Lykos herself makes decisions about who they will seek the death penalty against, and if there is even the hint of impropriety surrounding Lykos, this case can't go forward.

KTRK has an archive of the latest questions about the Harris County District Attorney's office.

Problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case, Penry v. Lynaugh.  That ruling was more fully applied following the 2007 case, Abdul-Kabir v. Quarterman; more on both cases via Oyez.

Andrew Cohen on An Ohio Arson Case

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

More Aftermath to the Morton Exoneration

Brandi Grissom posts, "Travis County Looks at Possible Norwood Link in Murder," at the Texas Tribune.

The Travis County district attorney’s office is discussing whether to review a 1985 murder case in connection with Mark Norwood, raising new questions about whether another innocent man could be in prison for a murder linked to the former handyman and carpet layer. 

Dennis Davis, a former Austin recording studio owner, was convicted last year of murdering his ex-girlfriend Natalie Antonetti in 1985. But the manner in which Antonetti was murdered is eerily similar to the two killings with which Norwood has already been connected. 

"That’s why the discussion needs to occur, based on the similarities," Buddy Meyer, a Travis County assistant district attorney, said Friday. Meyer said his office is discussing whether to review the Davis conviction and compare the evidence in the Antonetti murder to the other two murder cases.

Norwood, 57, was arrested in November and charged with the 1986 murder of Christine Morton in North Austin. His DNA, along with Christine Morton's blood, was identified on a blue bandana found near the murder scene. Norwood's DNA was also identified on a pubic hair found at the scene of the 1988 murder of Debra Masters Baker in Austin. He has not been charged in connection with her death but is considered a suspect.

All three women were beaten to death as they slept. The assailant entered their homes in the early morning hours, and all three were bludgeoned with a large, blunt wooden object. The three women were all attractive brunette mothers in their 30s. And each of the murders occurred on the 13th day of the month.

And:

Meanwhile, Morton's lawyers are pursuing a court of inquiry to determine whether the prosecutor who sent him to prison a quarter-century ago committed criminal misconduct.

The article notes that Judge Sid Harle will hold a hearing on February 10 on the question of a court of inquiry.

The Tribune also posts, "Texplainer: What is a Court of Inquiry?"  It's written by Holly Heinrich.

Hey, Texplainer: What is a court of inquiry and when is it used? 

When Texas district judges have probable cause to believe state laws have been broken, they may ask the district’s presiding administrative judge to appoint another district judge to commence a court of inquiry, which reviews the evidence and could issue an opinion reaffirming or disapproving an earlier opinion. The court of inquiry, which was established in 1876, can be called to review a past case or any other criminal matter brought to the district judge. 

Courts of inquiry are unique to Texas, although the U.S. military uses a legal proceeding by the same name to investigate its internal affairs. 

Although the law would allow a district judge to request an inquiry in any instance where state laws may have been broken, Texas judges have in recent years used this obscure and once seldom-used provision to investigate possible wrongful convictions. Courts of inquiry have also been used to investigate a prostitution ring and reports of bribery in a county probate court. 

So why request a court of inquiry instead of going to the police or taking a more typical route through the legal system? The reasons vary from case to case, but individuals could seek courts of inquiry because they believe there is corruption or potential conflicts of interest in the legal or law enforcement institutions they would otherwise turn to. Courts of inquiry can also review evidence that would not be admitted to other courts, such as hearsay.

Earlier coverage of the Michael Morton exoneration begins at the link.

United States v. Jones

The Supreme Court ruling in United States v. Jones is available in Adobe .pdf format.

"Justices Say GPS Tracker Violated Privacy Rights," is Adam Liptak's post at the New York Times.

The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision “is a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” he said, “that almost any use of G.P.S. electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Though the ruling was limited to physical intrusions, the opinions in the case collectively suggested that a majority of the justices are prepared to apply broad Fourth Amendment privacy principles unrelated to such intrusions to an array of modern technologies, including video surveillance in public places, automatic toll collection systems on highways, devices that allow motorists to signal for roadside assistance and records kept by online merchants. 

The case decided Monday, United States v. Jones, No. 10-1259, concerned Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation. They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches.

The Supreme Court affirmed that decision, but on a different ground. “We hold that the government’s installation of a G.P.S. device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy.

"High court: warrant needed for GPS tracking," is the AP filing by Pete Yost and Jesse J. Holland.

The decision was a defeat for the government and police agencies, and it raises the possibility of serious complications for law enforcement nationwide, which increasingly relies on high tech surveillance of suspects, including the use of various types of GPS technology.

And:

Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor the vehicle's movements, constitutes a search, meaning that a warrant is required.

"By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote. He concluded that the installation of the device on the vehicle without a warrant was a trespass and therefore an illegal search.

All nine justices agreed that the GPS monitoring on the Jeep violated the Fourth Amendment's protection against unreasonable search and seizure, a decision the American Civil Liberties Union said was an "important victory for privacy."

Washington lawyer Andy Pincus called the decision "a landmark ruling in applying the Fourth Amendment's protections to advances in surveillance technology." Pincus has argued 22 cases before the Supreme Court and filed a brief in the current case on behalf of the Center for Democracy and Technology, a civil liberties group with expertise in law, technology, and policy.

The Democratic chairman of the Senate Judiciary Committee, Patrick Leahy of Vermont, said the court's decision is "a victory for privacy rights and for civil liberties in the digital age." He said the ruling highlights many new privacy threats posed by new technologies. Leahy has introduced legislation to update the Electronic Communications Privacy Act, a 1986 law that specifies standards for government monitoring of cell phone conversations and Internet communications.

Scalia wrote the main opinion of three in the case. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

Sotomayor also wrote one of the two concurring opinions that agreed with the outcome in the Jones case for different reasons.

"Supreme Court limits police use of GPS to track suspects," by James Vicin for Reuters Legal.

Civil liberties groups were concerned that vast amounts of personal data can be collected from GPS devices and police might use other technologies such as beepers, cellphones, computers, surveillance cameras and satellites to monitor people.

They voiced alarm at giving the government unlimited and unprecedented new power to track people in public through the use of GPS devices or other surveillance technology without court permission.

The case began in 2005 when the police went to a public parking lot in Maryland and secretly installed a GPS device on a Jeep Grand Cherokee used by a Washington, D.C., nightclub owner, Antoine Jones.

Jones was suspected of drug trafficking and the police tracked his movements for a month. The resulting evidence played a key role in his conviction for conspiring to distribute cocaine.

The appeals court had thrown out Jones' conviction and his life-in-prison sentence, and ruled prolonged electronic monitoring of the vehicle amounted to a search.

More on the Eroy Brown Parole Case

"Attorney seeks recusals in high-profile parole hearing," is Mike Ward's report in today's Austin American-Statesman.  Here's an extended excerpt:

An attorney for high-profile Texas convict Eroy Brown on Wednesday sought to have two state parole officials removed from deciding whether his client should be approved for a supervised release from prison.

Huntsville lawyer Bill Habern made his unusual request in a three-page letter to Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles. Habern wrote that continuing animosity against Brown from the Texas prison system should disqualify any parole official who once worked for the system or who has a spouse who worked for the prison system.

Although such a request is rare — Habern said in his letter he has never made such a request in his 40 years of practice — parole panels in the past have been handpicked by the chair to handle high-profile cases after other members recused themselves.

Brown, who will soon turn 60, was acquitted in the April 1981 shooting death of a farm manager at a Huntsville prison, Billy Moore, and the drowning death of the warden, Wallace Pack, after a scuffle broke out over a pistol that Pack is said to have pulled on Brown. Prison officials said the deaths were murder, and prisons were later named for both Moore and Pack.

Brown, who said he acted in self-defense, was acquitted of murder charges after three trials, in which testimony about the officials' past conduct and convicts' accounts of the shooting and prison conditions helped corroborate Brown's account. The state's forensic evidence also was disputed, Habern said.

Brown was later sentenced to 90 years for robbing a Waco convenience store of $12 and candy bars, and is in a South Carolina federal prison. A federal judge ordered him to serve his time outside Texas because of concerns about his safety in state lockups.

Habern's letter was filed Wednesday afternoon. Parole officials could not be reached for comment.

The American-Statesman reported Wednesday that Brown is coming up for parole for the eighth time in 17 years. This time, Habern has argued that the parole board should approve Brown's release into a supervised re-entry program in Los Angeles that has a high success rate. Otherwise, Brown will be eligible to walk free without supervision within five years, thanks to credits he's received for good behavior.

Earlier coverage of Eroy Brown's case is at the link.

The New Jim Crow - Now in Trade Paperback

Leonard Pitts' writes, "The new Jim Crow alive and thriving," in his syndicted column.  It's via his home paper, the Miami Herald.

In June of 2010, I wrote in this space about a book, The New Jim Crow, by Michelle Alexander, which I called a “troubling and profoundly necessary” work. Alexander promulgated an explosive argument. Namely, that the so-called “War on Drugs” amounts to a war on African-American men and, more to the point, to a racial caste system nearly as restrictive, oppressive and omnipresent as Jim Crow itself.

This because, although white Americans are far and away the nation’s biggest dealers and users of illegal drugs, African Americans are far and away the ones most likely to be jailed for drug crimes. And when they are set “free” after doing their time, black men enter a legal purgatory where the right to vote, work, go to school or rent an apartment can be legally denied. It’s as if George Wallace were still standing in the schoolhouse door.

The New Jim Crow won several awards, enjoyed significant media attention, and was an apparent catalyst in the NAACP’s decision last year to call for an end to the drug war. The book was a sensation, but we need it to be more. We need it to be a movement.

As it happens and not exactly by coincidence, Alexander’s book is being reissued in paperback this week as we mark the birthday of the man who led America’s greatest mass movement for social justice. In his battle against the original Jim Crow, Martin Luther King, in a sense, did what Alexander seeks to do: pour sunlight on an onerous condition that exists just beyond the periphery of most Americans’ sight.

And:

On March 15, Alexander has agreed to appear with me at Books & Books in Coral Gables, where I will moderate a discussion with an audience. You’ll also be able to submit questions via Twitter @MiamiHeraldLive and Facebook. Video from the event will be posted on The Miami Herald’s website.

On Monday, Dave Davies interviewed Michelle Alexander on the WHYY-produced Fresh Air on National Public Radio, "Legal Scholar: Jim Crow Still Exists In America."  There is audio at the link.

Under Jim Crow laws, black Americans were relegated to a subordinate status for decades. Things like literacy tests for voters and laws designed to prevent blacks from serving on juries were commonplace in nearly a dozen Southern states.

In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, legal scholar Michelle Alexander writes that many of the gains of the civil rights movement have been undermined by the mass incarceration of black Americans in the war on drugs. She says that although Jim Crow laws are now off the books, millions of blacks arrested for minor crimes remain marginalized and disfranchised, trapped by a criminal justice system that has forever branded them as felons and denied them basic rights and opportunities that would allow them to become productive, law-abiding citizens.

Related posts are in the books and race indexes.

Another Former Warden Calls for Repeal

The Salem Statesman Journal reports, "Former Oregon warden seeks end to death penalty."  It's written by Alan Gustafson.

A former state penitentiary warden who oversaw the last two inmate executions in this state has joined an advocacy group determined to repeal Oregon's death penalty.

In an interview Friday with the Statesman Journal, Frank Thompson described the death penalty as "a failed public policy."

"In my opinion, capital punishment fails terribly in meeting any evidence-based outcomes," he said.

The retired Oregon Department of Corrections administrator was at the helm of the Oregon State Penitentiary during the lethal-injection executions of serial killer Douglas Wright in 1996 and Salem double killer Harry Moore in 1997 — the only inmates put to death since Oregon voters reinstated capital punishment in 1984.

This week, Thompson joined Oregonians for Alternatives to the Death Penalty, becoming one of three new members on its advisory council.

And:

The ex-warden said he favors life in prison as the suitable alternative punishment for convicted murderers sentenced to death.

"I do believe that life without the possibility of parole is an effective sanction in lieu of the death penalty," he said.

Looking back on his leadership role in planning and carrying out the two executions in the 1990s, Thompson said he performed his duty as "a good soldier."

But, he said, it was a daunting task that remains etched in his memory.

"It's a life-changing experience," Thompson said.

Earlier coverage of corrections workers speaking against capital punishment begins at the link.

Perry v. New Hampshire Ruling

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

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

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

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

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

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

Justice Sonia Sotomayor wrote a dissenting opinion.

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

Former Corrections Workers Speaking Up

AFP posts, "Ex-jailers become US anti-death penalty advocates," by Chantal Valery.  It's datelined Washington. Here's an extended excerpt:

"I can see their faces in my nightmares," said Allen Ault, a former Georgia prison warden among a growing number of ex-jailers and executioners opposed to the death penalty in the United States.

Across the country, prison workers who once supported the death penalty are beginning to lend their voices, alongside other prominent figures, to the campaign to abolish capital punishment in favor of life imprisonment.

In his role as the director of the Georgia Department of Corrections in the 1990s, Ault supervised five executions in a death row that he had built 20 years earlier.

Ault would give the order to pull the switch on death row inmates strapped to an electric chair.

It is "the most premeditated murder that one can do, there's no other way to describe it," Ault said, calling putting inmates to death an "inhumane job for people who have a conscience and who value life."

He was among six retired prison wardens who urged Georgia officials -- in vain -- to try to halt the execution of Troy Davis, an African American who was put to death in September for killing a white off-duty police officer in 1989.

During his career as Florida prison system warden, Ron McAndrew escorted three prisoners to the electric chair, and five others to the death chamber in Texas to be executed by lethal injection.

One day in 1997, the Florida electric chair, known as "Old Sparky," malfunctioned. "We had a fire, it was horrible -- we literally burnt him to death," said McAndrew.

McAndrew is still tormented by memories of telling the technician to continue with the electric charge despite the mishap.

"This work is too dirty, we have become barbarians," he told AFP.

Reginald Wilkinson, who once served as director of Ohio's Department of Rehabilitation and Correction, said "it's time... to evolve to a sophisticated society that would allow that life without parole would be a punishment equal to capital punishment."

"I had the responsibility to carry out the law," said Wilkinson, who eventually became an anti-death penalty activist.

Prosecutors, governors -- such as Governor John Kitzhaber of Oregon -- and even judges, such as Supreme Court justice Ruth Bader Ginsburg and fellow retired justices John Paul Stevens and Sandra Day O'Connor, are raising doubts about the death penalty.

"We see new voices, we've seen much change in the leadership, more people are speaking up," said Steve Hall with The StandDown Texas Project, which advocates eliminating the death penalty in the southern state.

According to the non-profit Death Penalty Information Center, the number of executions and death penalty sentences has dropped 75 percent in the past 15 years to its lowest level since 1976, when the death penalty was reinstated in the United States.

And:

"In the US, we have replaced justice with vengeance," said McAndrew. "When it comes to capital punishment, it's very scary, all you need is a person to point his finger at you."

McAndrew still recalls a chance encounter at a Florida airport with a death penalty inmate who had been reprieved and was eventually released.

"He recognized me -- he put his arm around me," said McAndrew. "The last time I saw him, he was in death row in Florida and I was warden.

"I could have possibly extracted this man out of his cell, brought him to the death chamber and put him to death when in fact he was totally innocent. He served almost 20 years for a crime he had not committed."

Earlier coverage of corrections workers voicing their concerns begins at the link.

Mumia Abu-Jamal

The NAACP LDF has issued a statement, "Life Sentence for Mumia Abu-Jamal."

Today, the Philadelphia District Attorney’s Office announced that it will not seek another death sentence for Mumia Abu-Jamal.  Pennsylvania law now requires Mr. Abu-Jamal to be sentenced to life imprisonment without the possibility of parole for his controversial 1982 murder conviction in the shooting death of a police officer in Philadelphia, Pennsylvania.

The NAACP Legal Defense & Educational Fund, Inc. (LDF), along with Widener Law Professor Judith Ritter, represents Mr. Abu-Jamal in his appeals of the murder conviction and death sentence.  John Payton, Director-Counsel of LDF stated, “The District Attorney did the right thing.  After three long decades, it was time to bring the quest for a death sentence for Mr. Abu-Jamal to an end.”  Prof. Ritter added, “There is no question that justice is served when a death sentence from a misinformed jury is overturned.  Thirty years later, the District Attorney’ s decision not to seek a new death sentence also furthers the interests of justice.”

Mr. Abu-Jamal will be formally resentenced to life without parole in the Philadelphia County Court of Common Pleas.  The final sentencing hearing has not been scheduled.

LDF has more information on Abu-Jamal v. Beard.

The AP filing is, "DA dropping death penalty against Mumia Abu-Jamal," written by Kathy Matheson.

Prosecutors have called off their 30-year battle to put former Black Panther Mumia Abu-Jamal to death in the killing of a white police officer, putting to an end the racially charged case that became a major battleground in the fight over the death penalty.

Flanked by the police Officer Daniel Faulkner's widow, Philadelphia District Attorney Seth Williams announced his decision Wednesday.

"There's never been any doubt in my mind that Mumia Abu-Jamal shot and killed Officer Faulkner. I believe that the appropriate sentence was handed down by a jury of his peers in 1982," said Williams, who is black. "While Abu-Jamal will no longer be facing the death penalty, he will remain behind bars for the rest of his life, and that is where he belongs."

Abu-Jamal was convicted of fatally shooting Faulkner on Dec. 9, 1981. He was sentenced to death after his trial the following year.

Abu-Jamal, who has been incarcerated in a western Pennsylvania prison, has garnered worldwide support from those who believe he was the victim of a biased justice system.

The conviction was upheld through years of legal appeals. But a federal appeals court ordered a new sentencing hearing after ruling the instructions given to the jury were potentially misleading.

The U.S. Supreme Court declined to weigh in on the case in October. That forced prosecutors to decide if they wanted to again pursue the death penalty through a new sentencing hearing or accept a life sentence.

"Prosecutor ends 30-year quest to execute ex-Black Panther," by John Bacon at USA Today.

The Philadelphia district attorney said today he is dropping pursuit of death penalty against former Black Panther Mumia Abu-Jamal. the Associated Press reports.

The announcement comes two days before supporters of the former radio reporter, who was convicted in the 1981 murder of Philadelphia Police Officer Daniel Faulkner, will gather to mark the 30th anniversary of Abu-Jamal's arrest, ThePhiladelphia Inquirer says.

They will also pay tribute to Troy Davis, who was executed in September for the 1989 killing of a police officer in Savannah, Ga.

Abu-Jamal is being held at the state prison in Greene County in Western Pennsylvania, where he has gained fame for his death-row writings.

Earlier coverage of Mumia Abu-Jamal's case begins at the link.

Arrest Made in 1986 Morton Murder

Today's Austin American-Statesman reports, "Man arrested in 1986 Morton slaying has long criminal history."  It's written by Chuck Lindell and Patrick George.

A former carpet layer now working as a dishwasher in Bastrop was arrested Wednesday in the brutal 1986 beating death of Christine Morton, a Williamson County mother whose husband was wrongly convicted of her murder.

Mark Alan Norwood, 57, was arrested without incident at his Bastrop duplex, Williamson County Sheriff James Wilson said. Charged with capital murder, Norwood was being held at the Williamson County Jail on $750,000 bail.

Norwood also is a suspect in an unsolved Austin murder, the 1988 bludgeoning death of Debra Masters Baker in her home. Like Morton, Baker was repeatedly hit in the head with a blunt object as she lay in her bed.

And:

Michael Morton, freed Oct. 4 after spending almost 25 years in prison, has been living with his parents in Northeast Texas as he tries to rebuild his life. That's where lawyer John Raley reached him Wednesday to convey the news.

"He was quiet for a while as he absorbed it. He has known for some time that this day would come," Raley said. "He felt relief. He was happy. But this comes to him at the end of a long, twisted path, and it's still not over. This has cost him dearly."

Morton, his lawyers and Baker's family have been waiting for word of Norwood's arrest since July, when his DNA was linked to the slayings of both women.

Investigators interviewed Norwood in August and took a fresh DNA sample as inquiries proceeded - largely outside of public view - by law agencies in Travis and Williamson counties. The state attorney general's office also took the lead in the reinvestigation of the Morton killing.

"Suspect in Michael Morton Case Arrested," by Brandi Grissom at the Texas Tribune.

Norwood's DNA was identified in August when attorneys for Michael Morton won a court order forcing the Williamson County District Attorneys office to allow testing on the blue bandana found near the scene of Christine Morton's murder.

Morton was convicted of his wife's murder in 1987, and he was exonerated last month when DNA testing revealed Norwood's DNA mixed with Christine Morton's blood on the bandana.

And:

Houston lawyer John Raley and lawyers for the New York-based Innocence Project sought DNA testing on the bandana for six years. After a court ordered the testing last year, it excluded Morton. The DNA was entered into a national database and it matched DNA for Norwood that was gathered during his California arrest.

The AP filing is, "New suspect arrested in woman's 1986 slaying,"  It's by Will Weissert and Juan A. Lozano, via the Fort Worth Star-Telegram.

Michael Morton spent nearly a quarter century in prison for his wife's slaying before authorities acknowledged that they had the wrong man and set him free last month.

On Wednesday, a new suspect was arrested, linked by DNA to a bloody bandanna found near the Mortons' home in Williamson County.

A Bastrop man identified as Mark Alan Norwood, 57, faces a capital murder charge in the Aug. 13, 1986, slaying of Christine Morton, the Williamson County Sheriff's Department announced.

It's the latest twist in a case that includes a separate investigation of the man who prosecuted Michael Morton. Morton's attorneys say Ken Anderson, a former Williamson County district attorney, withheld evidence at Morton's trial that could have led police to the suspect decades earlier and prevented him from striking again.

Earlier coverage of Michael Morton's exoneration and subsequent investigations begins at the link.

Texas Eyewitness ID Standards in Draft Form

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

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

And they want your input.

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

And:

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

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

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

Related posts are in the eyewitness identification index.

 

Our ‘Broken System’ of Criminal Justice

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

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

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

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

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

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

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

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

And:

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

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

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

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

Texas AG to Act as Special Proseuctor on Morton Murder Case

"Texas attorney general to lead new investigation of Morton murder," is the title of Chuck Lindell's report in today's Austin American Statesman.

A special prosecutor from the Texas attorney general's office will lead the reinvestigation of the 1986 murder of Christine Morton after DNA evidence recently revealed that her husband, Michael Morton, was wrongly convicted of the crime.

Williamson County District Attorney John Bradley said Monday that he requested a special prosecutor because the state agency has expertise leading complex cases, particularly cold cases that require considerable investigation — from finding witnesses again to developing new evidence.

"Given the complexities and age of the Morton case, I wanted to make sure that we had an office and a special prosecutor with substantial experience who could carry this case forward," Bradley said.

Bradley also urged Michael Morton's trial prosecutors, including former District Attorney Ken Anderson, to cooperate in a separate investigation — led by Morton's lawyers — into allegations that evidence favorable to Morton was improperly hidden to ensure his conviction and life sentence.

Details of that investigation remain in sealed court files, but Anderson, now a district judge in Georgetown, and former Assistant District Attorney Mike Davis, now a Round Rock lawyer, are expected to be subpoenaed to give Morton's lawyers depositions under oath.

"I encourage Mr. Anderson and Mr. Davis to provide Mr. Morton with an explanation of what happened 25 years ago during the discovery process for his trial," Bradley said.

And:

Bradley, saying he will remain involved in the investigation into the misconduct allegations, also promised to cooperate fully with Morton's lawyers.

Morton's Houston lawyer, John Raley, welcomed Bradley's pledge.

"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the attorney general as the new investigation proceeds," Raley said Monday.

The Texas Tribune has, "Bradley Announces Special Prosecutor in Morton Case," by Brandi Grissom.

Williamson County District Attorney John Bradley this morning announced the appointment of the Texas Attorney General's office as special prosecutor in the Michael Morton case and the ongoing investigation and possible prosecution of any new suspect in the 1986 murder of his wife, Christine Morton. A special grand jury is also being formed to investigate and hear any witnesses related to the case, he said.

“Given the complexities and age of the Morton case, I wanted to make sure that we had an office and a special prosecutor with substantial experience who could carry this case forward,” Bradley said in a statement.

Molly Hennessy-Fiske posts, "Texas attorney general reinvestigating botched murder case," for the Los Angeles Times.

The Texas attorney general's office is reinvestigating a murder case that sent the wrong man to prison for nearly 25 years.

"We have taken over the investigation and prosecution in the Christine Morton murder case," Lauren Bean, a spokeswoman for Texas Atty. Gen. Greg Abbott's office, told The Times on Monday.

Christine Morton was found bludgeoned to death at her home in Williamson County, about 20 miles north of Austin, on Aug. 13, 1986. Her husband, Michael Morton, was convicted of murdering her and sentenced to life in prison the following year. Morton insisted that he was innocent, that he was at work at the time his wife was killed and that she had been attacked by an intruder.

Earlier this month, Morton, 57, was released from prison and exonerated after DNA tests identified another man as a suspect in the death of his wife and the 1988 murder of another woman in the area under similar circumstances. According to court records, the suspect, identified only as John Doe, lived in the area at the time and has felony convictions or charges in four states, including California.

Williamson County sheriff's officers reinvestigating the Morton case will now report to Abbott's office.

Earlier coverage of Michael Morton's exoneration begins at the link.

Maryland's Revised Death Penalty Law Gets Test

"In Bishop case, Maryland death penalty law gets first trial," is the title of Arthur Hirsch's Baltimore Sun report.

The man accused of fatally shooting a Towson gas station owner in a murder-for-hire scheme is due in court this week — the first trial under Maryland's revamped death penalty law, legal experts say.

And the trial of Walter P. Bishop Jr., scheduled to begin Tuesday with jury selection in Harford County Circuit Court, could eventually test Maryland's definition of a capital case, as his lawyers argue that police improperly obtained a crucial piece of evidence.

Considered one of the most restrictive capital punishment laws in the 34 states that have the death penalty, the Maryland statute that went into effect two years ago put new limits on such prosecutions. The death penalty only be sought only in cases where there is DNA or other biological evidence, a video recording that "conclusively" links the defendant to the crime or a video of a "voluntary interrogation and confession."

Prosecutors have a video recording of Bishop talking for hours to homicide detectives in an interrogation room at Baltimore County police headquarters on March 6, 2010, the day he was arrested in the slaying of William R. Porter. Bishop sat there from the afternoon into the night and, according to an investigator's report, he confessed to killing Porter at the Hess station on East Joppa Road on the morning of March 1, 2010.

But defense lawyers say police never told Bishop his words were being recorded — or the consequences that those words carried. "He was never told that by giving a videotaped confession, he was making himself eligible for the death penalty, where otherwise he would not be eligible," said Stefanie McArdle, one of his public defenders.

And:

Lawyers on both sides say they expect the trial in Harford County to run three to four weeks.

Earlier coverage of Maryland's 2009 revised capital punishment statute begins at the link.

Latest Developments in the Michael Morton Case

Brandi Grissom writes "Inmate’s Release Brings Call for New Evidence Law," for the New York Times in its Sunday edition with expanded Texas coverage.  The Texas Tribune version is, "Morton Case Sparks Calls for Texas Evidence Law Reform."  Here's an extended excerpt:

Days after Mrs. Morton’s badly beaten body was found in her bed in August 1986, someone used her credit card in another city. And a check was cashed with her forged signature.

The sheriff’s investigators who saw Mr. Morton as the prime suspect had that information and a transcript of the grandmother’s call. But when he was on trial facing a life sentence for murder, his defense lawyers knew none of it.

A quarter-century later, after six years of fighting for DNA tests that now almost certainly will result in the reversal of Mr. Morton’s conviction, his lawyers say prosecutors withheld this and other exculpatory evidence from his original defense lawyers and from the trial judge despite orders to turn it over. In court filings, the prosecutors have denied accusations of wrongdoing.

Since 1994, DNA tests have exonerated 44 Texas inmates, according to the Innocence Project of Texas, based in Lubbock. In the wake of those cases, Texas lawmakers have made significant reforms to criminal justice procedures to help prevent wrongful convictions. But defense lawyers and Mr. Morton’s advocates argue that under antiquated Texas discovery laws, the alleged injustices that robbed him of 25 years could still happen.

“Michael’s struggle would be in vain if we didn’t think soberly about what went wrong in his case and how it can be fixed,” said Nina Morrison, senior staff lawyer for the Innocence Project, which worked on Mr. Morton’s case and which is based in New York.

The landmark 1963 United States Supreme Court decision Brady v. Maryland requires prosecutors to provide defendants with exculpatory evidence — information that could prove their innocence. But Texas law does not define “exculpatory evidence,” and there is no statewide standard; prosecutors or trial judges typically decide what qualifies. State law does not require prosecutors to automatically share with defense lawyers even basic information like police reports and witness statements.

Many prosecutors, including district attorneys in Dallas, Houston, Fort Worth and Austin, have adopted open-file policies that require their lawyers to share all their evidence with the defense.

Tarrant County adopted its policy in the 1970s, said Jack Strickland, a former defense lawyer who is deputy chief in the district attorney’s criminal division.

“The more serious the case, the more serious the potential consequences,” Mr. Strickland said. “We wanted to have as much transparency as we could because of the stakes involved.”

In 2010, the Timothy Cole Advisory Panel, a committee created to recommend new laws that might prevent wrongful convictions, urged legislators to adopt a mandatory statewide discovery policy. Seven of Texas’ first 39 DNA exonerations involved evidence suppression or other prosecutorial misconduct, according to the panel’s report.

The panel — named after a Lubbock man charged with rape who died in prison before DNA evidence exonerated him — told lawmakers that Texas should follow the example of other states that require lawyers on both sides to share information in criminal cases.

“We have 254 counties in this state, and potentially 254 ways of deciding what the defense will see prior to trial,” said Kathryn Kase, executive director of the Texas Defender Service and a member of the Tim Cole panel.

Since 2007, lawmakers have proposed more than a half-dozen measures that would have expanded access to discovery. None have passed.

"Michael Morton's lawyers aim to prove misconduct," is Chuck Lindell's latest Austin American-Statesman report.

While Michael Morton begins rebuilding a life after almost 25 years in prison, his lawyers are moving forward on phase two of their quest for justice: looking into the investigators and prosecutors whose efforts sent him to prison for a murder he did not commit.

Angered by revelations of hidden evidence and apparently ignored leads that could have saved Morton from a wrongful conviction, defense lawyers have promised to conduct a vigorous investigation in the coming weeks.

Details of how that investigation will proceed remain hidden behind sealed court records, but presumably Morton's lawyers will seek to force onetime District Attorney Ken Anderson, now a district judge, and other former Williamson County officials to testify under oath in depositions.

Any new information unearthed would be added to allegations of official misconduct that are pending at the state's highest criminal court.

And:

Innocence Project lawyers received the transcript in 2008 under Texas open records laws over objections from the sheriff's office and Bradley. They also found a summary of the telephone transcript in a district attorney case file marked "trial documents," said John Raley, a Houston civil lawyer who has been working on Morton's behalf since 2005.

Morton's lawyers argue that withholding the transcript violated the U.S. Constitution by trampling Morton's right to fair treatment by the legal system and his right to view prosecution evidence that could cast doubt on his guilt.

Defense lawyers also say that Anderson and investigators violated the trial judge's order to turn over all of Wood's reports and field notes.

Before the 1987 trial, District Judge William Lott announced that he would review the material to make sure no exculpatory evidence was improperly withheld from Morton. Anderson assured Lott that he would meet with Wood to ensure that all relevant investigatory material would be provided, trial transcripts show.

After reviewing the documents, Lott announced that he had found no hidden evidence and then sealed the file for review by an appeals court.

That sealed file, opened in August, contained only a five-page report detailing the first day of Wood's investigation and a one-page form, signed by Morton, allowing his house and pickup to be searched. None of the four recently revealed documents, all of which were generated by Wood or copied to the sergeant, was included.

"Trial prosecutors' deliberate failure to produce the Wood documents was a knowing and egregious violation of Morton's due process rights and renders his trial fundamentally unfair," Morton's lawyers said in court briefs.

Anderson did not return calls seeking comment.

Earlier coverage of Michael Morton's case begins with the preceding post.

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

Corrections Workers & the Death Penalty

"I Committed Murder.  For the anonymous executioners of death row, the ‘high’ of pulling the lever is often followed by a lifetime of doubt," is the title of Michael Daly's Newsweek report.

Only a fellow executioner like 59-year-old Jerry Givens would know how crushingly hard it will continue to be for those who put Troy Davis to death last week even as he continued to insist on his innocence.

“The executioner is the one that suffers,” Givens says on the day after Davis’s execution in Georgia. “The person that carries out the execution itself is stuck with it the rest of his life. He has to wear that burden. Who would want that on them?”

During the 17 years that Givens worked as an executioner in Virginia, he put 62 men to death. And each time, he felt what he calls “the executioner high,” an adrenalized state that always imparted a merciful unreality as he sat behind a curtain and pulled the lever, releasing a fatal cocktail of three drugs that seemed to him less humane than the electricity he previously unleashed by pulling a switch. The chemicals of lethal injection always took eternal minutes longer than the deadly jolt from the electric chair.

Allen Ault writes, "I Ordered Death in Georgia.  The state's former D.O.C. commissioner on 'rehearsed murder,'" also for the current Newsweek.

I can’t always remember their names, but in my nightmares I can see their faces. As the commissioner of the Georgia Department of Corrections from 1992 until 1995, I oversaw five executions. The first two were Thomas Dean Stevens and Christopher Burger, accomplices in a monstrous crime: as teenagers in 1977, they robbed and raped a cabdriver, put him in the trunk of a car, and pushed the vehicle into a pond. I had no doubt that they were guilty: they admitted it to me. But now it was 1993 and they were in their 30s. All these years later, after a little frontal-lobe development, they were entirely different people.

On execution days, I always drove from Atlanta to the Georgia Diagnostic and Classification Prison in Jackson. I knew death row well: 20 years earlier, I had built it. The state had hired me as the warden of Georgia Diagnostic in 1971, where I renovated a special cell block for especially violent offenders. After I left Georgia in 1977, the state reinstated the death penalty and turned the cell block I had developed into death row.

The state executed Stevens first, in June 1993, and then Burger in December. In both instances, I visited them in a cell next to the electric-chair chamber, where they counted down the hours until they died. They were calm, mature, and remorseful. When the time came, I went to a small room directly behind the death chamber where the attorney general worked the phones, checking with the courts to make sure that the executions were not stayed. Then we asked the prisoners for their final words. Stevens said nothing, and Burger apologized, saying, “Please forgive me.” I looked to the prison electrician and ordered him to pull the switch. Last Wednesday, as the state of Georgia prepared to execute Troy Davis despite concerns about his guilt, I wrote a letter with five former death-row wardens and directors urging Georgia prison officials to commute his sentence. I feared not only the risk of Georgia killing an innocent man, but also the psychological toll it would exact on the prison workers who performed his execution. “No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt, and for some of us, shame and guilt,” we wrote in our letter.

And:

When I was required to supervise an execution, I tried to rationalize my work by thinking, if I just save one future victim, maybe it is worth it. But I was very aware of the research showing that the death penalty wasn’t a deterrent. I left my job as corrections commissioner in Georgia in 1995 partially because I had had enough: I didn’t want to supervise the executions anymore. My focus changed to national crime policy and then to academia, where I could work to improve the criminal-justice system without participating in its worst parts. Today, I am the dean of the College of Justice & Safety at Eastern Kentucky University.

"Wardens Who Protested Troy Davis’s Execution: A Rare Breed," is the title of Greg Mitchell's post at the Nation.  It's also available at Huffington Post.

In the waning hours of protests against the execution on Troy Davis by the state of Georgia last Wednesday, one action drew particular notice: a group of six former wardens and correctional officials pleading for clemency and suggesting that prison staffers be allowed to refuse to take part in the death process.

"While most of the prisoners whose executions we participated in accepted responsibility for the crimes for which they were punished,” the wardens’ statement read, “some of us have also executed prisoners who maintained their innocence until the end. It is those cases that are most haunting to an executioner….

“Living with the nightmares is something that we know from experience. No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt, and for some of us, shame and guilt. Should our justice system be causing so much harm to so many people when there is an alternative?”

The letter by former corrections officials is available via the Southern Center for Human Rights.  It was noted earlier,

We write to you as former wardens and corrections officials who have had direct involvement in executions. Like few others in this country, we understand that you have a job to do in carrying out the lawful orders of the judiciary. We also understand, from our own personal experiences, the awful lifelong repercussions that come from participating in the execution of prisoners. While most of the prisoners whose executions we participated in accepted responsibility for the crimes for which they were punished, some of us have also executed prisoners who maintained their innocence until the end. It is those cases that are most haunting to an executioner.

We write to you today with the overwhelming concern that an innocent person could be executed in Georgia tonight. We know the legal process has exhausted itself in the case of Troy Anthony Davis, and yet, doubt about his guilt remains. This very fact will have an irreversible and damaging impact on your staff. Many people of significant standing share these concerns, including, notably, William Sessions, Director of the FBI under President Ronald Reagan.

Living with the nightmares is something that we know from experience. No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt, and for some of us, shame and guilt. Should our justice system be causing so much harm to so many people when there is an alternative? 

We urge you to ask the Georgia Board of Pardons and Paroles to reconsider their decision. Should that fail, we urge  you to unburden yourselves and your staff from the pain of participating in such a questionable execution to the extent possible  by allowing any personnel so inclined to opt-out of activities related to the execution of Troy Anthony Davis. Further, we urge you to provide appropriate counseling to personnel who do choose to perform their job functions related to the execution. If we may be of assistance to you moving forward, please do not hesitate to call upon any of us.

Respectfully and collegially,

Allen Ault – Retired Warden, Georgia Diagnostic & Classifications Prison
Terry Collins – Retired Director, Ohio Department of Rehabilitation and Correction
Ron McAndrew – Retired Warden, Florida State Prison
Dennis O’Neill - Retired Warden, Florida State Prison
Reginald Wilkinson – Retired Director, Ohio Department of Rehabilitation and Correction
Jeanne Woodford – Retired Warden, San Quentin State Prison

In the as Vegas Sun, Bradley D. Chapline writes, "Davis should not have been executed."

Before retiring, I guarded inmates for three decades. I am a proponent in most cases of the death penalty — when the inmate through all his appeals has been clearly shown to be guilty beyond “any shadow” of a doubt. I’m not talking about “beyond a reasonable doubt,” as is the case in reaching a conviction. The doubt factor has to be extremely intensified to justify execution. This was not the case with Georgia inmate Troy Davis.

In executing Davis, the American justice system has committed a fatal mistake. I’m certainly not saying that Davis was innocent. However, there existed sufficient doubt to this conviction. Therefore, this makes the American justice system guilty of executing a man who may have been innocent of his conviction.

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

A Grievous Wrong

That's the title of an editorial in Wednesday's New York Times concerning Troy Davis.

Troy Davis is scheduled to be executed on Wednesday for the 1989 killing of a police officer in Savannah, Ga. The Georgia pardon and parole board’s refusal to grant him clemency is appalling in light of developments after his conviction: reports about police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime.

This case has attracted worldwide attention, but it is, in essence, no different from other capital cases. Across the country, the legal process for the death penalty has shown itself to be discriminatory, unjust and incapable of being fixed. Just last week, the Supreme Court granted a stay of execution for Duane Buck, an African-American, hours before he was to die in Texas because a psychologist testified during his sentencing that Mr. Buck’s race increased the chances of future dangerousness. Case after case adds to the many reasons why the death penalty must be abolished.

The grievous errors in the Davis case were numerous, and many arose out of eyewitness identification. The Savannah police contaminated the memories of four witnesses by re-enacting the crime with them present so that their individual perceptions were turned into a group one. The police showed some of the witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was set apart by a different background. The lineup was also administered by a police officer involved in the investigation, increasing the potential for influencing the witnesses.

In the decades since the Davis trial, science-based research has shown how unreliable and easily manipulated witness identification can be.

And:

More than 630,000 letters pleading for a stay of execution were delivered to the Georgia board last week. Those asking for clemency included President Jimmy Carter, 51 members of Congress and death penalty supporters, such as William Sessions, a former F.B.I. director. The board’s failure to commute Mr. Davis’s death sentence to life without parole was a tragic miscarriage of justice.

With every passing minute, there is additional coverage and commentary on the case.  I'll have a roundup tomorrow morning.  Earlier coverage of Troy Davis' case begins with the preceding post.

Georgia Parole Board Denies Troy Davis Clemency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Roundup of Troy Davis Coverage

"Digital Age Drives Rally to Keep a Georgia Inmate From Execution," by Kim Severson for the New York Times.

As Troy Davis faces his fourth execution date, the effort to save him has come to rival the most celebrated death row campaigns in recent history.

On Monday, the Georgia State Board of Pardons and Paroles will give Mr. Davis what is by all accounts his last chance to avoid death by lethal injection, scheduled for Wednesday.

Whether history will ultimately judge Mr. Davis guilty or innocent, cultural and legal observers will be left to examine why Mr. Davis, convicted of killing a Savannah police officer, Mark MacPhail, 22 years ago, has been catapulted to the forefront of the national conversation when most of the 3,251 other people on death row in the United States have not.

The answer, experts say, can be found in an amalgam of changing death penalty politics, concerns about cracks in the judicial system, the swift power of digital political organizing and, simply, a story with a strong narrative that caught the public’s attention.

“Compelling cases that make us second-guess our justice system have always struck a chord with the American public,” said Benjamin T. Jealous, president of the N.A.A.C.P. “Some are simply more compelling in that they seem to tap deeply into the psyche of this country. A case like this suggests that our justice system is flawed.”

Like others involved in the case, he credits Mr. Davis’s sister, Martina Correia, a media-friendly former soldier who has long argued that the police simply got the wrong man, with keeping the story alive.

And the story has been compelling. A parade of witnesses have recanted since the original trial, and new testimony suggests the prosecution’s main witness might be the killer.

There are racial undertones — Mr. Davis is black and the victim was white — and legal cliffhangers, including a stay in 2008 that came with less than 90 minutes to spare and a Hail Mary pass in 2009 that resulted in a rare Supreme Court decision.

Altogether, it had the makings of a story that has grabbed many armchair lawyers and even the most casual opponent of the death penalty.

The list of people asking that the Georgia parole board offer clemency has grown from the predictable (Jimmy Carter, Archbishop Desmond Tutu, the Indigo Girls) to the surprising, including 51 members of Congress, entertainment heavyweights like Cee Lo Green and death penalty supporters including William S. Sessions, a former F.B.I. director, and Bob Barr, a former member of Congress, and some leaders in the Southern Baptist church. (Unlike some other states, in Georgia the governor cannot commute a death sentence; only the parole board can.)

Propelled by a recent flood of digital media including Twitter traffic and online petition requests, the case has become fodder for discussion in fashionable Atlanta bistros, Harlem street corners and anywhere living room sleuths gather in their search for another Casey Anthony trial to dissect.

Today's Atlanta Journal-Constitution carries expanded, updating coverage.  "Troy Davis' legal team finishes making its case before parole board," is by Bill Rankin.

Troy Anthony Davis' legal team has finished presenting its case to the state Board of Pardons and Paroles in a last-ditch bid to win clemency.

"We believe we have established substantial doubt in this case," Stephen Marsh, one of Davis' lawyers, said after a three-hour hearing. The execution should not be allowed to go forward, he said.

The five-member board will now hear from prosecutors and surviving relatives of Savannah Police Officer Mark Allen MacPhail, who was gunned down in a Burger King parking lot in 1989.

The five-member board began its 9 a.m. hearing. It has not said whether it will issue its decision today as to whether Davis will be granted clemency or whether his execution should be carried out as scheduled on Wednesday at 7 p.m.

The Journal-Constitution also has, "Troy Davis’ life in board’s hands," by Rankin and Rhonda Cook.

The condemned in Georgia always have a long and tortuous journey to the execution chamber. But the case of Troy Anthony Davis, whose execution is set for Wednesday, has been perhaps the most extraordinary and controversial legal odyssey in the state’s history.

It also has generated the most worldwide attention of any Georgia case. On Thursday, Davis’ supporters gave the state Board of Pardons and Paroles the names of 663,000 people asking Davis be spared execution. Advocates are using social media to rally support and organize protests around the world.

Davis’ case has taken one unexpected turn after another since he was sentenced to death 20 years ago for the murder of Savannah Police Officer Mark Allen MacPhail. On two occasions, the district attorney who put Davis on death row issued final statements believing nothing stood in the way of Davis’ execution, only to see the case reconsidered. On Monday, the parole board is scheduled to meet once again to determine whether Davis should live or die.

Even though Davis, 42, was condemned to die for killing a cop and prosecutors steadfastly stand behind his conviction, his innocence claims have attracted a host of dignitaries. Among them, former President Jimmy Carter, Pope Benedict XVI, former Georgia Supreme Court Chief Justice Norman Fletcher and former FBI Director William Sessions say Davis should be granted clemency.

“This case is extraordinary because there have been substantial questions of his innocence for almost a decade,” said death-penalty lawyer Stephen Bright, a professor at Yale Law School. “It has attracted attention from all around the world, and the extraordinary number of people supporting him — and the prominence of some of them — is unprecedented.”

This Wednesday marks the fourth time the state has set a date for Davis to be put to death by lethal injection.

The AP filing is via Rome News-Tribune, "Parole board to consider high-profile death penalty case."  It's written by Greg Bluestein.

Supporters of Troy Davis planned to make a last-ditch effort Monday to stop his execution for the 1989 murder of an off-duty Savannah police officer, asking the Georgia pardons board to grant clemency to the high-profile death-row inmate now that his legal appeals are exhausted.

The five-member Georgia Board of Pardons and Paroles were to meet at 9 a.m. Monday to consider arguments surrounding Davis, who claims he is innocent of the killing of Mark MacPhail. He's set to be put to death by injection Wednesday, the fourth time in four years the state has tried to execute the 42-year-old man.

The pardons board, which has the power to commute death sentences but rarely does so, decided in 2007 to delay his execution for 90 days to grant the courts more time to review the case. A year later, it denied Davis clemency and allowed his execution to go forward. Since then, though, three new members have been appointed to the panel.

Other coverage includes;

"Amid international scrutiny, pardons board weighs clemency for Troy Davis," by Jim Mustian for the Columbus Ledger-Enquirer.

"Killer's Last Bid for Clemency," at the Wall Street Journal by Cameron McWhirter.

"Georgia parole board hearing last-ditch appeal from death-row inmate," at CNN.

"MLK's daughter enters fray of Ga. death penalty case," by Melanie Eversley in USA Today.

"MLK daughter: Don't execute Troy Davis," at UPI.

The Institute for Southern Studies posts, "The extraordinary movement to save Troy Davis."

Also, Bianca Jagger has published her, "Letter to Chairman of Georgia Board of Pardons and Paroles: Grant Clemency to Troy Davis," at Huffington Post.

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

U.S. Violent Crime Continues Downward Trend

The FBI Uniform Crime Report on Violent Crime for 2010 is available.

"FBI: violent crime down by 6 percent last year," is the FBI filing by Pete Yost.

Violent crime dropped 6 percent in 2010, marking the fourth straight year of year-to-year declines, while property crime was down for the eighth straight year, falling 2.7 percent, the FBI reported Monday.

Nationwide, there were an estimated 1.2 million violent crimes in 2010 and an estimated 9 million property crimes.

An aging population and continued high rates of imprisonment for criminals are helping to drive down crime rates, said James Alan Fox, a criminologist at Northeastern University.

CNN posts, "FBI: 2010 sees further decline in violent crime,"  It's by Terry Frieden.

Violent crime in the United States declined 6.5% last year, according to statistics the FBI released Monday.

The 2010 figures, based on reports from thousands of police agencies from coast to coast, reflect a continuing decline in violence over the last several years despite difficult economic conditions.

The figures released the previous year showed a drop of 5.3% in total violent crime from 2009. Not since 2006, when crime was up 1.9%, has there been a brake on the decline in violence. From 1997 to 2006, violent crime dropped a total of 13%.

This past year the closely watched murder rate dropped 4.8%. Aggravated assaults were down 4.7%, rape declined 5.5% and robbery dropped 10.5%.

"Violent US crime falls for 4th year in a row: FBI," at AFP.

Attorney General Eric Holder said the new figures showed that federal law enforcement agencies had made progress on the crime fighting priorities of President Barack Obama's administration.

"We've targeted gang leadership in communities from Florida to New York, and from Tennessee to North Carolina," he said in a statement. "We've renewed our commitment to fighting organized crime, whether it is traditional La Cosa Nostra or Mexican drug cartels."

But the report also shows that last year's drop in violent crime is part of a long-term trend with the number of such cases falling each year since 2006.

"When considering 5- and 10-year trends, the 2010 estimated violent crime total was 13.2 percent below the 2006 level and 13.4 percent below the 2001 level," the report said.

There were an estimated 1,246,248 violent crimes nationwide last year, down 6.0 percent from 2009, according to the FBI figures.

The violent crime rate for 2010 was 403.6 offenses per 100,000 inhabitants, a 6.5 percent decrease from the 2009 rate. The property crime rate was 2,941.9 offenses per 100,000 persons, down 3.3 percent from 2009.

And:

Aggravated assault accounted for 62.5 percent of violent crimes reported to authorities, followed by robberies at 29.5 percent. Six percent of the violent crimes reported were rapes, and 1.2 percent murders.

Firearms were used in more than two-thirds murders committed, more than 40 percent of robbers, and one in five assaults, the report said.

Related posts are in the crime rates index.

American Judicature Society Eyewitness ID Test Complete

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

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

And:

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

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

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

An Update on the Troy Davis Case

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

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

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

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

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

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

Eyewitness ID Practices - Changing in Many Jurisdictions

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

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

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Getting It Right

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

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

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

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

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

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

News From DPIC

 Celeste Rosenlof posts, "Studies about death penalty show mixed opinion," at Utah's Deseret News.

According to a new fact sheet released by the Death Penalty Information Center, police chiefs ranked the death penalty last in ways to reduce violent crime.

A Gallup poll showed that the public agrees, as 64 percent of the public felt that the death penalty does not act as a deterrent or lower the murder rate, while 34 percent believe it does. The majority of criminology experts, 88 percent, "rejected the notion that the death penalty acts as a deterrent to murder," according to the DPIC fact sheet.

And:

The fact sheet said "a clear majority of (public) voters (61 percent) would choose a punishment other than the death penalty for murder."

Gallup found that in October 2010, 49 percent would chose the death penalty, and 46 percent prefer life imprisonment.

The fact sheet also pointed out that execution consistently costs states more than a life sentence, sometimes up to 70 percent more. The Gallup poll found that 11 percent of people said they favor the death penalty to "save taxpayers money (or the) cost associated with prison," and 37 percent favored it because "they took a life (it) fits the crime."

More at the Death Penalty Information Center website; related posts, in the public opinion polling index.

Richard Florida on the Crime Rate

"Don't Fear the City: Urban America's Crime Drops to Lowest in 40 Years," is the title of his post at the Atlantic.  Florida is the Director of the Martin Prosperity Institute at the University of Toronto.

The long-held image of violent, crime-filled cities permeates popular culture. Thanks to TV shows, rap music, and a deep-seated antipathy to cities that has been apparent in some political and cultural quarters since at least the nineteenth century, countless Americans continue to perceive big cities through the lens of 40-year-old movies like Taxi Driver and The Out of Towners -- as cauldrons of crime, filth, and corruption (and magnets for immigrants, gays, Jews, intellectuals, and other "disreputable" minorities).

The past couple of decades have seen a powerful back-to-the-city movement that has transformed many once-notorious districts into residential quarters and high-end shopping districts. Times Square, a byword for crime and urban decay, has become a Disney-like tourist magnet, and parts of Herald Square, the heart of NYC's feared Tenderloin district a century ago, have been closed to traffic and filled with tables and chairs. Clearly something must be happening with urban crime. Crime -- both property crime and violent crime -- is down to its lowest level in 40 years, especially in America's biggest cities, according to newly released data from the FBI's annual Uniform Crime Report.

And:

Even more striking is the trend in violent crime, which is also down substantially in big cities. These crimes against people, which include murder, forcible rape, robbery, and aggravated assault, fell 5.1 percent in big cities with more than 1 million people. That's better than the decline for the smallest communities, with populations under 10,000 (4.3 percent), and only slightly off the national average.

The report notes that law-enforcement agencies provide the figures voluntarily and cautions against making city-to-city or agency-to-agency comparisons, which could "lead to simplistic and/or incomplete analyses that often create misleading perceptions adversely affecting communities and their residents." Nor does the report venture any guesses as to the cause of the downward trend.

But one factor frequently cited by criminologists is demographics. Crimes are more likely to be committed by young people, so the crime rate drops when the cohort of young people shrinks, as it has in the past few years. Better policing surely helps too, as has urban revitalization, which is bringing relatively prosperous singles, couples, families, and empty nesters into neighborhoods that had been in decline in years past, improving neighborhood quality and safety. We'll be taking a closer look at the social, geographic, demographic, and economic factors associated with crime across America's cities in a future post.

News coverage of the FBI report is in the preceding post; related posts are in the crime rates index.

Violent Crime's Downward Trend

The FBI released its Preliminary Annual Uniform Crime Report, 2010, yesterday. 

"Steady Decline in Major Crime Baffles Experts," is the report in today's New York Times.  It's written by Richard Oppel Jr.

The number of violent crimes in the United States dropped significantly last year, to what appeared to be the lowest rate in nearly 40 years, a development that was considered puzzling partly because it ran counter to the prevailing expectation that crime would increase during a recession.

In all regions, the country appears to be safer. The odds of being murdered or robbed are now less than half of what they were in the early 1990s, when violent crime peaked in the United States. Small towns, especially, are seeing far fewer murders: In cities with populations under 10,000, the number plunged by more than 25 percent last year.

And:

Criminology experts said they were surprised and impressed by the national numbers, issued on Monday by the Federal Bureau of Investigation and based on data from more than 13,000 law-enforcement agencies. They said the decline nationally in the number of violent crimes, by 5.5 percent, raised the question, at least in some places, of to what extent crime could continue to fall — or at least fall at the same pace as the past two years. Violent crimes fell nearly the same amount in 2009.

“Remarkable,” said James Alan Fox, a criminologist at Northeastern University. “Given the fact that we have had some healthy declines in recent years, I fully expected that the improvement would slow. There is only so much air you can squeeze out of a balloon.”

There was no immediate consensus to explain the drop. But some experts said the figures collided with theories about correlations between crime, unemployment and the number of people in prison.

Take robbery: The nation has endured a devastating economic crisis, but robberies fell 9.5 percent last year, after dropping 8 percent the year before.

“Striking,” said Alfred Blumstein, a professor and a criminologist at the Heinz College at Carnegie Mellon University, because it came “at a time when everyone anticipated it could be going up because of the recession.”

Nationally, murder fell 4.4 percent last year. Forcible rape — which excludes statutory rape and other sex offenses — fell 4.2 percent. Aggravated assault fell 3.6 percent. Property crimes — including burglary, larceny, motor vehicle theft and arson — fell 2.8 percent, after a 4.6 percent drop the year before.

The AP report is, "FBI: 5.5 percent drop in violent crime," by Pete Yost.  It's via CBS News.

Crime levels fell across the board last year, extending a multi-year downward trend with a 5.5 percent drop in the number of violent crimes in 2010 and a 2.8 percent decline in the number of property crimes.

Year-to-year changes released Monday by the FBI in its preliminary figures on crimes reported to police in 2010 also showed declines in all four categories of violent crime in 2010. All categories for property crime went down as well.

"In a word, remarkable," said James Alan Fox, a criminologist at Northeastern University. In Fox's view, the declines signify success for aggressive law enforcement and corrections programs and comprehensive crime prevention efforts. He said the crime levels could easily rise if the current environment of state and local budget cutting extends to law enforcement measures that are working.

Some experts are puzzled.

Expectations that crime would rise in the economic recession have not materialized. The size of the most crime-prone population age groups, from late teens through mid-20s, has remained relatively flat in recent years.

"I have not heard of any good explanations for the good news we've been experiencing in 2009 and 2010," said professor Alfred Blumstein of Carnegie Mellon University's Heinz School of Public Policy. "I hope the trend continues and I'm going to keep searching for answers."

Violent crime last increased in 2005. Property crime last increased in 2002.

The FBI reported that violent crime fell in all four regions of the country last year — 7.5 percent in the South, 5.9 in the Midwest, 5.8 percent in the West and 0.4 percent in the Northeast.

The bureau's preliminary statistics for 2010 are based on data from more than 13,000 law enforcement agencies nationwide.

Nationally, murder and non-negligent manslaughter declined 4.4 percent, forcible rape decreased 4.2 percent, robbery declined 9.5 percent, and aggravated assault was down 3.6 percent.

Related posts are in the crime rates index.  Commentary on the latest survey, in the next post.

9th Circuit Miranda Case

The Recorder, Law.com California paper, reports, "Ninth Circuit Reaffirms Habeas Relief After High Court Reversal."  It's written by Ginny LaRoe.

The Ninth Circuit U.S. Court of Appeals today refused to back off its decision to grant habeas relief for a teenage mass murderer despite being told to reconsider by the Supreme Court. For the second time, a split en banc panel held that the suspect was improperly informed of his Miranda rights and that his confession was not voluntary.

Despite direction from the Supreme Court to review that holding in light of a recent Miranda-related opinion, Florida v. Powell, the majority again held that 17-year-old Johnathan Doody's advisement of rights "completely obfuscated the core precepts of Miranda," and that the "relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary."

Doody was convicted of taking part in the murder of nine people, including six monks, whose bodies were found face down in a circle, each with a bullet to the head, in a Buddhist temple in Arizona in 1991.

In a concurrence, Chief Judge Alex Kozinski explained that Powell doesn't change the analysis, rather it "reaffirms the standard for determining Miranda compliance that its prior cases had established." And the facts in Powell are different in that the High Court said any misleading Miranda statement was cured by a final warning that the suspect had a "right to use any of these rights at any time."

"Not so here," Kozinski wrote in Doody v. Ryan. "The Miranda warnings Doody was given were affirmatively misleading."

Enter Judge Richard Tallman and his colleagues in dissent. They began by noting the "Supreme Court has repeatedly told us to adhere to the highly deferential standard of review of the state court judgments" required under the Antiterrorism and Effective Death Penalty Act in federal habeas cases.

And:

In response, Judge Johnnie Rawlinson colorfully wrote for the majority in the first opinion, and left intact today: "The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye."

"9th Circuit rules, for third time, that Thai teen's confession in slayings was invalid," by Carol J. Williams for the Los Angeles Times.

The appeals court ruled that Maricopa County sheriff's deputies distorted their reading of Doody's Miranda rights, telling him he was entitled to an attorney only if he had committed a crime.

The 8-3 ruling by a full panel of the western appeals court was identical to one the judges issued last year, deeming Doody's confession to the killings after 13 hours of interrogation involuntary and inadmissible in any subsequent trial of the now-36-year-old defendant.

Arizona authorities had appealed the 9th Circuit's ruling last year to the Supreme Court, which sent the case back with an order to reconsider whether the confession should be judged as voluntary in light of a similar case from Florida in which the high court ruled that a suspect's confession was valid.

Wednesday's ruling said the 9th Circuit judges reviewed the high court's position in Florida vs. Powell, about a criminal defendant's right to have an attorney present during interrogation, but still concluded that Doody's rights were violated. The appeals court ordered Arizona authorities to free him or try him again for the killings without the confession.

Courthouse News Service reports, "Conviction for Temple Murders Stays Vacated."  It's written by Barbara Leonard.

A full panel of the 9th Circuit on Wednesday reaffirmed its 2010 decision to vacate the conviction of a man who confessed as a teen to participating in the 1991 murders of nine people, including six Buddhist monks, at an Arizona temple.

In 67-page decision, which prefaces a nine-page concurrence from Chief Judge Alex Kozinski and a 39-page dissent on behalf of three judges, the court notes that its original en banc panel in Seattle "held that nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary."

At 113 pages in total, Wednesday's decision just tops the 106-page ruling from the 8-3 court in February 2010.

Johnathan Doody was a 17-year-old high-school student when he confessed to participating in the 1991 murders at the Wat Promkunaram Buddhist Temple near Phoenix. The victims, including six Buddhist monks, two nuns and a novice, were found lying face-down in a circle, each shot in the head.

Doody was arrested and later convicted for all nine murders. He was sentenced to 281 years in prison. Another minor, Alessandro Garcia, testified against Doody and was also convicted as an accomplice after pleading guilty. Garcia was sentenced to 271 years.

A three-judge panel of the 9th Circuit reversed the District Court's denial of Doody's habeas petition in 2008, and the full court ruled that Doody deserved a new trial because he was prejudiced by extensive interrogation and inadequate Miranda warnings.

The High Cost of a Tennessee Capital Case

The Sunday Knoxville News Sentinel carries a lengthy article, "Probe, prosecution of Christian-Newsom slayings had hefty price tag."  It's reported by Jamie Satterfield.

One of Knoxville's most horrific crimes is likely to go down in the record books as one of the state's most expensive prosecution efforts.

It is difficult to pin a price tag on the investigation of the January 2007 torture-slayings of Channon Christian, 21, and Christopher Newsom, 23, and resulting prosecutions. Some figures - jury expenses, expert witnesses, defense bills, for example - are readily available, and they tally more than $1.1 million so far. Others, including the man-hours expended by teams of local, state and federal agents, are impossible to quantify but are sure to exceed the costs ever incurred in any other single investigation.

And:

KPD employed its Special Operations Squad, and the Knoxville branch of the Marshals Service assigned its entire fugitive squad to take down accused ringleader Lemaricus Davidson, who was hiding in a vacant house in Mechanicsville, and his convicted helper, Eric Boyd.

Eventually, the manhunt for the couple's killers led to Lebanon, Ky., where law enforcers from the Kentucky State Police, local police there and the Kentucky branch of the Marshals Service joined in. KPD, KCSO and the ATF sent agents there. Then-Sheriff Tim Hutchison employed his agency's helicopters in the Kentucky hunt for suspects Letalvis Cobbins, George Thomas and Vanessa Coleman.

All of that cost money - lots of it.

But no one can say just how much.

"Nobody quantifies (the law enforcement side of a case)," noted Susan Shipley, a Knoxville attorney who is a veteran of capital murder defense work.

Law enforcers in this case say it is simply impossible to try.

"There's no way," said Martha Dooley, KCSO spokeswoman for Sheriff Jimmy "J.J." Jones, when presented with the News Sentinel's request for information on the office's work in the case.

KPD spokesman Darrell DeBusk had a similar reaction.

"Nearly every unit of the department was utilized at some point in the investigation," DeBusk said.

And:

The feds likewise can't quantify how much manpower was devoted to the first phase of what would be a three-year prosecution effort that's still not over.

But if trial testimony is any indication, there easily could have been more than 100 law enforcers in two states involved in the initial effort to round up suspects and start building a case. And with annual salaries for those lawmen and women ranging from roughly $37,831 for a crime scene technician to $52,352 for a patrol sergeant, the cost of the law enforcement arm alone easily could be in the hundreds of thousands.

And that was just the beginning.

Follow the link to read this journalistic must-read.  Related posts are in the cost index.

Odessa American Editorial on Eyewitness ID Procedures

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

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

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

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

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

And:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More From Lisa Falkenberg on Charles Sebesta

Her latest Houston Chronicle column is, "Graves' prosecutor just won't go away."

You might think the unscrupulous former prosecutor who sent Anthony Graves to prison for 18 years, 12 on death row, for murders he didn't commit would lick his wounds, slink quietly off into the sunset, and, now in his golden years, pray daily for forgiveness.

But Charles Sebesta Jr. isn't apologizing for the unethical tactics he's accused of using to convict Graves. He knows the statutes of limitations on any alleged crimes he committed in prosecuting the case have long run out. He's maintained in newspaper ads and on his website that he did nothing wrong.

And he isn't going away.

In fact, the disgraced former Burleson County district attorney has been traveling the state, and the nation, he says, advising law enforcement organizations and teaching courses to peace officers.

The negative publicity over a case that even Gov. Rick Perry has called a "great miscarriage of justice" hasn't cost Sebesta a single client, he claims: "I've got as much as I can do."

Kelly Siegler, the special prosecutor in the case who has accused Sebesta of, among other things, manipulating witnesses, fabricating evidence and misrepresenting facts to the jury in the Graves case, called his current teaching role "disgusting."

"The last person you want telling your guys what to do at 3 o'clock in the morning is Charles Sebesta," Siegler said.

Not only is Sebesta teaching, but he's been passing himself off as a state-certified instructor and the staff "training coordinator" for the Sheriff's Association of Texas. The title appears on Sebesta's online bio, and, before I began asking questions, on the association's website. Sebesta told me this week he's the coordinator who "signs the papers."

When I called the sheriff's association, Executive Director Steve Westbrook said Sebesta was not the coordinator and wasn't even on staff. Westbrook said Sebesta was just a contractor who, for a decade or so, has taught two, maybe three courses a month across the state.

"He may call himself the training coordinator, but he's not," Westbrook said.

And:

It's not surprising that Sebesta's story doesn't mesh with the others. He seems to have always had trouble with the facts. When the evidence against Graves wasn't there, he apparently made it up.

When he was told over and over again by different parties that Graves was innocent, he continued not only to prosecute but to seek death.

Sebesta has no business instructing anybody on the law. Even a class on civil process would require him to give guidance on good judgement and ethical standards, two things Sebesta doesn't seem to know the meaning of.

There may be only one course Charles Sebesta is truly qualified to teach: How to steal 18 years of an innocent man's life and get away with it.

Earlier coverage of Anthony Graves' case begins at the link.

The Scent of a Dog

"Handlers' beliefs influence drug-sniffing dogs' performance," is the title of the San Francisco Chronicle report by Amelia Glynn.

The accuracy of drug- and explosives-sniffing dogs is affected by human handlers' beliefs, possibly in response to subtle, unintentional cues, UC Davis researchers have found.

The study, published in the January issue of the journal Animal Cognition, found that detection-dog teams erroneously "alerted," or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.

"It isn't just about how sensitive a dog's nose is or how well-trained a dog is," says Lisa Lit, a postdoctoral fellow in the Department of Neurology and the study's lead author. "There are cognitive factors affecting the interaction between a dog and a handler that can impact the dog's performance."

And it turns out, these factors can be even more important than the sensitivity of a dog's sniffer.

"Dogs are exceptionally keen at interpreting subtle cues, so handlers need to be cognizant of that to optimize the overall team performance," adds Anita M. Oberbauer, UC Davis chair of the Department of Animal Science and the study's senior author.

To evaluate the effects of handler beliefs and expectations on detection-dog performance, the researchers recruited 18 handler-detection dog teams from law-enforcement agencies. All of the teams were certified by an agency for either drug detection, explosives detection or both drug.

The dogs all were trained to either alert passively at the location of a scent by sitting or laying down, alert actively by barking or by doing both. The teams included 14 male dogs and four female dogs, including Labrador retrievers, Belgian Malinois, German Shepherd dogs and Dutch Shepherd dogs. The dogs' level of experience ranged from two to seven years and their human partners had as many as 18 years of dog-handling experience.

A church was selected as the location for the study, since it was unlikely to have contained either explosives or drugs in the past. It was also a place where neither the dogs nor the handlers had been before. The researchers created four separate rooms for the dogs to examine or "clear."

The handlers were told that there might be up to three of their target scents in each room, and that there would be a piece of red construction paper in two of the rooms that identified the location of the target scent. However, there were no target scents — explosives or drugs — placed in any of the rooms.

And:

Although Lit is careful to note that her findings do not mitigate the abilities of handlers and their dog teams to perform successfully, she believes they are significant.

More on Texas' own brand of scent lineups, at the link.

Untested DNA Sitting on the Shelf

Brandi Grissom posts, "Thousands of Texas Rape Kits Never Tested," for today's Texas Tribune.

In police departments across Texas, tens of thousands of rape kits have been sitting on the shelves of property storage rooms for years, the result of strained budgets, overworked crime labs and a law enforcement philosophy that rape kits are primarily useful as evidence if a stranger committed the assault. Victims’ rights advocates and some lawmakers say they will work to pass legislation this year to take all of that evidence out of storage and create a DNA database that would help track rapists and perhaps even identify those who have been wrongly convicted. State Sen. Wendy Davis, D-Fort Worth, is preparing a bill that would require police departments to test all rape kits in their possession and every one they get in the future. “I think we owe it to every person who has been raped,” Davis said.

Officials at big-city police departments say they are working to reduce the backlog of rape kits in their evidence rooms and to test evidence from unsolved cases. But processing each of the tens of thousands of rape kits from as far back as the 1980s — the total number is not known — is, they say, unrealistic. Also, testing the hundreds of kits that each metropolitan police department receives every year would take much more money, equipment and staff than is currently available. (Davis has not established a price tag for her proposed legislation.) Nor is it clear, some police officials say, that DNA evidence in all cases would be useful to prosecutors. “It’s not reasonable, and it’s not an effective use of their investigators’ time or their labs’ time,” said Sgt. Elizabeth Donegan, who runs the sex crimes unit at the Austin Police Department.

In Houston, about 16,000 rape kits, some dating back decades, sit in the police department’s property room, said Irma Rios, assistant director of the department's crime lab. Rios could not say how many had been tested. “There’s a portion that are never tested,” she said. “We don’t have the resources right now to test every single” rape kit that comes into the department.

And:

Rape victims would not endure the humiliation of a post-assault exam if they understood that the evidence might not be tested and that they did not have the right to decide whether the kit was tested, said Victoria Camp, deputy director of the Texas Association Against Sexual Assault. “All of the kits need to be tested,” Camp said. “That costs money, and I know it takes time, but I think we should prioritize the kits and start working on that backlog until they are all tested.”

Testing the DNA from rape kits in all assaults, Camp said, would give the police a better chance of finding serial rapists.The same perpetrator could attack both someone he knew and a stranger. But if the police test only the DNA in the stranger case, they may not be able to determine that the same person has assaulted someone else.

The testing could do more than help sexual assault victims, advocates say. It could exonerate wrongly convicted prisoners. Earlier this month, Cornelius Dupree Jr. became the latest Texan to be released from prison after DNA evidence proved he did not commit the rape he was convicted of in 1980.

An Illinois Sidebar

Jon Burge.

For those who have followed developments in Illnois, that name is a major part of the decade-long story of Governor Ryan's moratorium, exonerations, reform initiatives, and the Illinois General Assembly's vote earlier this month to repeal the state's death penalty.

But for many outside of Illnois, it would have been easy to miss the name entirely.

"Cop Gets 4½ Years for Lying About Torture," is the Courthouse News Service report.

Former Chicago police Commander Jon Burge was sentenced to 4½ years in prison for lying about the police torture of suspects. Burge denied that officers ever abused suspects in custody, but evidence at a 2003 trial showed that he suffocated suspects with plastic bags, shocked them with electrical devices and put loaded guns to their heads.

Burge, 63, of Apollo Beach, Fla., was convicted in June 2010 of two counts of obstruction of justice and one count of perjury for his false answers in the 2003 civil case.

Burge, a 23-year veteran of the Chicago Police Department, was fired in 1993 over abuse allegations. More than a decade later, special prosecutors were appointed to investigate police torture; the 4-year investigation found that the abuses were outside the statute of limitations.

And:

The police torture led then-Illinois Gov. George Ryan to place a moratorium on the state's death penalty. Ryan pardoned four of Burge's alleged victims.

I want to highlight Alice Kim's thoughts on the sentence.  She's the Director of The Public Square at the Illinois Humanities Council, where she's produced many programs with Illinois exonerees.  She also writes the blog, Dancing the Dialectic.

In a lengthy meditation, she asks, "Was Justice Served?"

I've had Jon Burge on my mind. He was sentenced to four and a half years yesterday for obstructing justice and lying about the torture of more than 100 African American men and women at Area 2 and 3 Police headquarters in the 1970s and 1980s.

This is far less time than the twenty-one long years that Ronald Kitchen spent behind bars (thirteen of those years on death row), wrongfully convicted as the result of a tortured confession that put him and his co-defendant Marvin Reeves away for a crime they did not commit. And it's far less time than the twenty-eight years of hard time served by Mark Clements, who was beaten repeatedly by police officers under Burge's command when he was only sixteen years old.

Jon Burge was responsible for destroying the lives and livelihoods of over 100 African American men and their families. He abused his power and authority as a commanding police officer. And he got away with it for years.

There's much more on her blog --  which is why I've added it to the left-colmn webroll, Diversions.

Earlier coverage from Illinois begins with the post, "Illinois Lt. Gov. Urges Signing Repeal Law."

Law Enforcement and the Death Penalty

"Police officials argue death penalty doesn't make us safer," is the title of a Silicon Valley Mercury News OpED written by James Abbott, Antonio Cluny, Bob Denmark and Ronald Hampton.  It appeared in the Sunday edition.

Abbott is the police chief of West Orange, N.J., and served on the state's Death Penalty Study Commission. Cluny is the senior attorney general and public prosecutor in Portugal.  Denmark is a 30-year veteran of the British police force, and Hampton is the executive director of the National Black Police Association International Leadership Institute.

Over the past decade, executions have dropped by more than 50 percent and the number of death sentences has steadily declined, according to the Death Penalty Information Center. As police and law enforcement officers with decades of experience in fighting crime in the United States and Europe, we believe that societies are better off without the death penalty. We recently came together in Washington, D.C., for the first international dialogue among law enforcement professionals about the death penalty and found important areas of agreement.

Europe has abandoned the death penalty, but European countries have lower murder rates and higher rates of solving homicides than the United States. In the United States, states with the death penalty generally have higher murder rates than states without it. For example, southern states have the highest murder rates and account for 82 percent of all U.S. executions. The deterrence argument is weak and it goes against our experience investigating serious crimes: the majority of offenders do not think through the consequences of their actions. In fact, they do not think they will ever be caught.

And:

Especially as budgets tighten in the United States and around the world, the death penalty may be a system governments can no longer afford. The death penalty costs far more than the alternatives. In California, for example, the death penalty costs $125 million more -- every year -- than life without parole, which also takes the offender off the streets permanently. All of the money that states spend on the death penalty could be used to hire more police officers, train them better, solve cold cases, and prevent crimes from occurring in the first place. We should spend our limited resources on programs that work.

Europe has the same violent offenses that the United States has, but has found ways to protect its citizens without capital punishment. For example, Portugal abolished the death penalty in 1864 and has never seriously considered reinstating it. Even when the country experienced political violence and organized terrorism during a revolution in 1974, the death penalty was not brought back. Had the terrorists been sentenced to death, they might have become martyrs and the violence might have continued.

Do some murderers deserve the death penalty? Maybe so, but that is an emotional reaction. It is not the basis for creating public policy or finding the best ways to keep citizens safe. More states should follow New Jersey's lead, and the example of 15 U.S. states, repeal the death penalty, and adopt life without parole in its place. As a growing number of Americans recognize, life without parole is a harsh punishment, protects the public, and eliminates the risk of an irreversible mistake, while freeing up funds for more effective crime-fighting programs. This is a better way to serve victims' families and prevent violence.

A related post is, "News Coverage of Smart on Crime."

Eric Zorn on the Illinois Death Penalty

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

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

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

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

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

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

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

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

And:

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

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

Roderick Newton Case - Additional Coverage

Jennifer Emily writes, "Man's death penalty set aside in '99 kidnap-slaying in Dallas," for today's Dallas Morning News.

Texas' highest criminal court on Wednesday tossed out the conviction of a man sent to death row for kidnapping and killing a 20-year-old man during a robbery at a Dallas ATM in 1999.

But Dallas County District Attorney Craig Watkins said 32-year-old Roderick Newton will never go free.

"He'll never get out," Watkins said.

Expecting the court to set aside the death penalty conviction, Watkins said Newton has already pleaded guilty to capital murder and attempted capital murder of a police officer in exchange for two life sentences after the district attorney's office agreed he should receive a new trial.

The sentences are "stacked," meaning that if Newton is paroled on one charge, he would then have to serve the other sentence.

The Texas Court of Criminal Appeals tossed out the capital murder conviction after it agreed with a Dallas judge who found prosecutors in his 2000 trial withheld evidence that could affect the outcome of his case.

And:

The Dallas County district attorney's office supported the efforts of Newton's attorney to halt the execution after agreeing that Mesquite police withheld a written statement by Newton's co-defendant that contradicted the co-defendant's trial testimony.

Defense attorneys argued that Newton did not get a fair trial because police failed to hand over that statement, which could have undermined the credibility of the co-defendant at trial.

The co-defendant in the case was given a 10-year-sentence.

Watkins said the district attorney's office became concerned about the Newton case while reviewing the cases of all Dallas County offenders on death row.

Earlier coverage begins with, "Roderick Newton Conviction Overturned."  The CCA ruling in Ex Parte Newton, is available in Adobe .pdf format.

PBS Frontline to Examine Norfolk Four Case

The PBS documentary, which premiered this season with an examination of the Todd Willingham case, takes up another controversial case, that of the Norfolk Four in Virginia.

Tomorrow night's program is, "The Confessions."  Check your local PBS affiliate for the time in your locale.

Why would four innocent men confess to a brutal crime they didn’t commit? FRONTLINE producer Ofra Bikel (Innocence Lost, An Ordinary Crime) investigates the conviction of four Navy sailors for the rape and murder of a Norfolk, Va., woman in 1997. In interviews with the sailors, Bikel learns of some of the high-pressure police interrogation techniques -- including the threat of the death penalty, sleep deprivation, and intimidation -- that led each of the “Norfolk Four” to confess, despite a lack of evidence linking them to the crime. All four sailors are now out of prison -- one served his sentence and the other three were granted conditional pardons last summer -- but the men were not exonerated as felons or sex offenders. The case raises disturbing questions about the actions of the police and prosecutors, who relied on the sailors’ often contradictory confessions for their convictions, and disregarded DNA evidence that pointed to a lone assailant who would later confess to the crime himself while serving prison time for another rape.

On Saturday, the New York Times reported, "Officer’s Extortion Conviction Prompts Calls for Full Exoneration of ‘Norfolk Four’," by Sabrina Tavernise.

The recent conviction of a Virginia police officer supports the case for full exoneration of the “Norfolk Four,” former sailors convicted of rape and murder, who received conditional pardons from Virginia’s governor last year, lawyers for the men said.

In legal briefs filed in Virginia this week, the lawyers argued that last week’s conviction of Robert Glenn Ford, a police officer in Norfolk, Va., and the main investigator in the case of the Norfolk Four, raises new evidence showing the men were wrongly convicted. The men received partial pardons in 2009, but their convictions still stand, and the lawyers argue that they should now be overturned.

The men were convicted in the 1997 murder case of Michelle Moore-Bosko in Norfolk. None of the four sailors had prior criminal records, and the case against them was based almost entirely on confessions they gave to Mr. Ford, who pursued the investigation despite DNA evidence linking the crime to another man, Omar Ballard.

But Mr. Ford’s conviction — for extortion and lying to the Federal Bureau of Investigation — covered a period that began in 2003, long after the Norfolk Four were convicted, and in a letter last month, Judge Everett A. Martin Jr., expressed skepticism that the conviction was relevant for the Norfolk Four case.

But Donald P. Salzman, a lawyer for Danial J. Williams, one of the former sailors, argued in a response filed this week that Mr. Ford’s indictment and conviction was new information that substantially changed the facts of his client’s case.

Specifically, Mr. Salzman said, a source has come forward asserting that Mr. Ford had stated he believed the men were not guilty of the crime. But in Mr. Salzman’s view, Mr. Ford did not back off the case because he was trying to protect his position. Earlier in his career, Mr. Salzman said, Mr. Ford was caught in what prosecutors said was an effort to elicit false confessions from juveniles, and Mr. Salzman argued that another instance could have endangered his job.

“A detective who was the driving force behind these convictions has now been convicted for manipulating the justice system,” said Mr. Salzman, of the law firm Skadden, Arps, Slate, Meagher & Flom. “He had a motive to continue to pursue these cases.”

Margaret Edds posts, "The crumbling case against the 'Norfolk Four'," the Voices blog of the Washington Post.

A “PBS Frontline” documentary on the Norfolk Four case, scheduled to air Tuesday, makes it chillingly clear that the concept of multiple false confessions is no more preposterous than Ford’s and the prosecutors’ ever-shifting theory of the case.

Initially satisfied with one confession, police backtracked after the first DNA test failed to match evidence. Over time, faced with one disappointing DNA result after another, Ford extracted more and more confessions and more and more names of purported co-conspirators. Eventually, seven men, including two with solid alibis, stood implicated.

No evidence existed against any of them, save the confessions.

Then, out of the blue, an eighth man serving time for rape, also confessed. Omar Ballard, who did not know the others, was the only suspect without ties to the armed services, the only one with a history of attacking women, the only one who knew precisely how the crime occurred, and the only one whose DNA fit.

As he tells “Frontline”: “I alone committed the murders. . . . No one ever had anything to say or do with the case besides me.”

By the time Ballard appeared, police and prosecutors were too invested to admit their mistake. They simply inserted Ballard into a ludicrous, eight-man conspiracy. Aside from Ballard, now serving a life sentence, the three men conditionally pardoned by Kaine each served about 11 years of life sentences; the fourth man, Wilson, was convicted of rape only and had completed an 8½-year sentence at the time of the partial pardons.

As registered sex offenders, all four live in a hellish limbo, dictated by the laws of their individual states. In Michigan, Williams wears an electronic ankle bracelet 24 hours a day. He cannot even work in the yard without permission. In Texas, Wilson was denied admission to a school for electricians and cannot adopt his wife’s son because of his criminal record. In North Carolina, Tice washes windows for a living, his dream of becoming a nurse forever barred. And in Maryland, Dick fears taking his parents’ dogs for a walk because a school backs up to their property.

The Virginian-Pilot reports, "'Frontline' show dissects case of the Norfolk Four," by Tim McGlone.

Frontline producers also obtained, for the first time publicly, an interview with Ballard. He told Frontline that police pressured him to say the other men participated in the crime with him, a statement that he said was not true.

"It was made clear from the jump that unless I said somebody else was with me, that it wasn't going to be the truth," Ballard said. "The only truth they wanted to hear (was) that I did it with someone else."

The recent corruption conviction in federal court here of retired Norfolk Detective Robert Glenn Ford is also part of the show.

The Norfolk Four lawyers said the guilty verdict in the Ford case is directly relevant to the innocence claims the men have pending.

Federal authorities here have said they do not believe there is a link between Ford's corruption case and his history of obtaining a number of false confessions.

The Norfolk Four case has already been written about in a book called "The Wrong Guys." Popular author John Grisham is also working on a screenplay about the case.

Earlier coverage of the Norfolk Four, begins at the link; related posts are in the documentary and false confessions index.