James Bain Exonerated After 35 Years of Wrongful Incarceration

This morning Christmas came early for James (Jamie) Bain when a judge in Polk County vacated his conviction and dropped all charges against him. Jamie had been in prison for 35 years for a crime that DNA testing proved he didn't commit. He was only 19 years old when he went into prison and today he walks out a 54-year-old man.

Jamie submitted handwritten motions four times seeking DNA testing, but he was denied each time. He was denied the fifth time, too, but an appeals court overturned that denial. The Innocence Project of Florida (IPF) stepped in to assist Mr. Bain, and he was finally able to get the DNA testing he'd wanted for so many years, and which ultimately proved his innocence.

Jamie Bain is looking forward to seeing his mother in Tampa, and spending the holidays as a free man with his family. Yes, Virginia, there is a Santa Claus.

Watch CNN video of the press conference immediately following Jamie's release.

New Website and Blog for the Innocence Project of Florida!

It's a good day at the Innocence Project of Florida, because I get to announce the launch of our brand new website and branding!

Our new logo features prominently the state of Florida with a dawning sun; the blue and yellow represent freedom, hope, optimism and light.

Our new website has launched over at http://www.floridainnocence.org/ and our redesigned blog can be found at http://www.floridainnocence.org/content/.

This represents the culmination of a lot of hard work on our part, we're absolutely ecstatic that we get to introduce you all to our new site, and we know that it will help us deliver information to the public, rally readers to the cause, and, ultimately, better accomplish our goal of freeing innocent people from Florida prisons.

Make sure you update your bookmarks for our blog, as this is the last post that we will put here on Blogspot. The old posts and comments have been moved over to the new website, and this blog is being mothballed.

Thanks for being a reader. We hope you enjoy our new site. Make sure to drop us a line if you have a comment or a question!

Alan Crotzer to Testify Before Congressional Subcommittee on Indigent Defense

Alan Crotzer to Testify Before Congressional Subcommittee on Indigent Defense
Florida Man Spent 24 Years in Prison for Someone Else’s Crime

On Thursday, June 4, Alan Crotzer will join two other members of the National Committee on the Right to Counsel when he testifies before the Congressional House Subcommittee on Crime, Terrorism, and Homeland Security about the crisis facing indigent defense in America. Mr. Crotzer was wrongfully convicted and served 24 and a half years in prison for a crime he didn’t commit due to a lackluster effort by his court-appointed defense counsel.

Mr. Crotzer was arrested in 1981 in St. Petersburg and charged with several crimes stemming from a double-kidnapping and rape that took place in Tampa. An eyewitness ID from a suggestive photo lineup was the trigger that set in motion a chain of events, from arrest to conviction to incarceration, that Mr. Crotzer said “profoundly affected [his] life in unimaginable ways.” In a prepared statement, he thanked two lawyers from New York, David Menschel and Sam Roberts, who “put their lives on hold” and spent thousands of dollars to prove his innocence with DNA testing. Their performance, he said, stands in stark contrast to that of his appointed counsel.

In his statement, Mr. Crotzer listed the failings of his defense attorney – including ignoring his innocence claim and encouraging him to accept a plea to 25 years, meeting with Mr. Crotzer on only a few occasions before trial, failing to subpoena and interview alibi witnesses, and failing to sever his case from a co-defendant, whose disastrous self-representation at trial likely served to incriminate Mr. Crotzer by association. Mr. Crotzer says this confluence of feckless actions made his wrongful conviction “not only possible, but probable.”

Public defenders’ offices around the country have seen their funding slashed in recent years and faced dire straits even before the current national recession. According to a recent report by the Constitution Project titled Justice Denied, the State of Florida, where Mr. Crotzer was convicted, has seen its county budgets for defense counsel cut by millions of dollars. Some counties have resorted to charging convicts – many of them indigent – special fees to cover the costs of their trials. Several public defenders’ offices in Florida have chosen to outright refuse to take new cases, citing their inability to fulfill their constitutional obligation to provide an adequate defense.

Mr. Crotzer now works with at-risk youth as an Intervention Specialist at the Florida Department of Juvenile Justice and with the Innocence Project of Florida (IPF), where he raises awareness of criminal justice issues. He hopes his testimony will be the beginning of a real interest by Congress in reforming America’s system of indigent defense so that stories like his “will become infrequent, rather than a constant refrain.”

The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocent people from Florida prisons. Alan Crotzer is a member of IPF’s Board of Directors.

The National Committee on the Right to Counsel is a bipartisan committee of independent experts representing all segments of America’s justice system created by the Constitution Project and the National Legal Aid & Defender Association. The Committee examines whether poor defendants are being provided with competent, experienced lawyers who have the necessary resources to defend them, and to create consensus recommendations for any necessary reforms. Their report Justice Denied can be found online at www.tcpjusticedenied.org. Alan Crotzer is a member of the National Committee on the Right to Counsel.

# # #

Information about the Hearing:
Indigent Representation: A Growing National Crisis
House Committee on the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security
Thursday, June 4, 2009 9:30 AM
2141 Rayburn House Office Building

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

Download a PDF of this press release here.

Troy Davis waits in limbo

Troy Davis was granted a stay by the 11th circuit which ran out almost two weeks ago. He has filed a petition with the Supreme Court of the United States, but there is no telling whether they will take the case, and if they do, which way they will rule. It could be weeks or months before they make a move. In the mean time, Troy Davis waits in a prison cell, put there for a crime he almost certainly didn't commit. Seven of the nine witnesses who testified against him – the nine witnesses that composed the entirety of the prosecution's case – have since recanted or contradicted their previous testimony. Still, Troy struggles in vain to have this new evidence heard in a court.

As Troy's case continues to draw attention, eyes are focusing on the new District Attorney in Savannah, Larry Chisolm, Chatham county's first black DA. This article from the Los Angeles Times plays up the racial implications and tensions running through Troy's case now that Chisolm is in power. (Troy, a black man, was convicted of shooting an off-duty white police officer in 1989.)

Though the compelling nature of the evidence that entitles Troy to a new trial transcends racial boundaries, the LA Times does not overlook the complications stemming from Chisolm's race. The article quickly moves, however, to its main focus, which is whether DA Chisolm would have the power to intervene, should the Supreme Court render the expected denial.

[Chisolm] could ask the state parole board to postpone the execution and open a new investigation, as Davis' attorneys have requested. That would be a bold move for a rookie elected official: Both the Georgia Supreme Court and the U.S. 11th Circuit Court of Appeals denied Davis a new trial, in part because courts view recantations as inherently suspect.

Chisolm finds himself in a difficult place, likely to anger blacks with nonintervention but irk conservatives and whites should he interpose himself and intervene. The world waits on tenterhooks for Chisolm – or less likely, the Supreme Court – to do the right thing.

Bill Dillon on TV: Talking About Compensation

As it turns out, after the Florida Today story came out (Ryan blogged it earlier), many in the media rightfully realized that Bill Dillon's struggle to get compensated is an important story.

Bill Dillon will appear on local Orlando/Space Coast TV news tonight:

Channels 2 & 6 at 6:00pm; and
Channel 33 at 10:00pm.

Check it out!

Dillon won't be paid for time spent in prison

That is the title of this article from Florida Today that was just published. The gist of the article is this: because Flrodia's Victims of Wrongful Incarceration statute, passed last year, has a "clean hands" provision, barring anyone with prior felonies from being awarded compensation, William Dillon will not be paid by the state for his 27 years of wrongful incarceration. If it sounds obviously unjust to you, that's because it is.

What the state is in essence saying is that Dillon is not entitled to, or does not deserve, the money because of his prior felony conviction, which was a DUI and possession of a controlled substance in 1979. Dillon plead to that crime, did his time and paid the fine. He ought to stand redeemed in the eyes of the state vis-à-vis that crime.

"It's a shame that a nonviolent drug conviction from when Mr. Dillon was 19 years old would bar him from being compensated under the new Victims of Wrongful Incarceration statute," attorney Melissa Montle of the Innocence Project of Florida said. "He now has to file a claims bill during a recession in order to be rightfully compensated for the 27 years he spent in prison for a crime he did not commit."

Several of the comments on the article make good points, albeit blunt and somewhat inelegant. Most are rightfully angry at the state for what is clearly an injustice. Most say things like, "The state made a mistake, time to pay up." That's a sentiment I can get behind 100%, mostly because it's absolutely correct. I like this one from Augnoz especially, because it sounds like something I would exclaim when not speaking in an official capacity for this organization: "Dillon got the shaft, correct this travesty."

But one comment is so dangerously false that it merits my correction. earthwateruser says, among other things, that "A compensation bill for wrongful imprisonment for 27 years shouldn't be a difficult thing to accomplish [this legislative session]," and points to the number of compensation bills that get passed each year. This is simply not true. Out of Florida's 10 DNA exonerees, only two have been compensated. Under this new bill, the Victims of Wrongful Incarceration statute, it is not clear that a single person has been awarded compensation. It is not easy. It is not common.

GenPop also chimes in and Courtney makes a good point when she asks, "Is [this] not then a continuation of the punishment for a minor drug offense 30 years after the fact?" It could easily be seen as a punishment in the philosophical sense, since it is an adverse treatment or harm – treatment that would not otherwise be acceptable – in light of some transgression. You might also think that, by letting his wrongful incarceration go unremedied, the state is refusing to admit wrongdoing, and letting it stand as an acceptable act of punishment against his previous offense.

CBLA conviction overturned in Colorado

After the FBI in 2005 abandoned a faulty scientific procedure called comparative bullet lead analysis, by which they claimed they could match bullets from a crime scene to a specific box of bullets found somewhere else, a joint task force was created consisting of national organizations such as the Innocence Project in New York and the National Association of Criminal Defense Lawyers. The Innocence Project of Florida was appointed as the "point office" for issues related to CBLA in Florida.

Last Sunday, the Associated Press wrote an article about Tim Kennedy, a Colorado man whose conviction has been thrown out, partly because of comparative bullet lead analysis. (You'll recall that Jimmy Ates, a client of the Innocence Project of Florida, was the first person in the nation to have his conviction thrown due to the FBI's disavowal of CBLA.)

During an interview Thursday at the Limon Correctional Facility on the Eastern Plains about 95 miles east of Denver, Kennedy cherished the thought of being a free man. Apart from spending time with his sister and brother, one of the first things Kennedy would do if he is freed is get a steak dinner...

At trial, the only physical evidence linking Kennedy to the crime was the FBI's comparative bullet lead analysis, which purported to be able to trace a bullet from a crime scene to a box of bullets in a suspect's possession. That technique has since been discredited as "exceeding the limits of science" and the FBI stopped the analysis in 2005.

Tragically, both of Kennedy's parents died within the last four years, so they will not get to rejoice in his release. But Kennedy has fond memories and nothing but gratitude for his parents' solidarity and support: "There are times when it brings you to tears when you think about how lucky you are, how things have worked out, how your family stayed with you... You know, I'll never forget my parents. They spent their life savings (on his defense). Even after that you know, they stuck with me through the rest of their lives."

A dissenting view...

I read Ryan's post this morning about the dignity of using state or county prisoners to do menial work on the side of the road like picking up trash or mowing the side of our roads and highways.

On first blush, I tend to agree that it certainly may be demeaning for some and it brings to mind thoughts of enslavement.

That being said, there is another view that goes something like this. For some who choose to take part in those work details, while it may be demeaning to have passerby's see you in your prison blues, it may also be an anticipated period where one can be off the barbed-wire-enclosed compound and instead out in an ever-changing free world, albeit for a few hours at a time. Some may choose that over standing around on the yard doing nothing all day or sitting in your cell reading the same book over and over again.

Also, I must say that Governor Crist, despite his nickname and his reputation as Attorney General, has been decent on innocence issues since he took over Florida's government in 2007; certainly better than his predecessor. While we should certainly criticize where it is due, we should also give credit where credit is due.

That's the sound of the men working on the chain gang

Driving to work a few days ago in Tallahassee, I passed not one, but two separate chain gangs picking up litter along the street. It was the first time in a long while that I had seen them.

It must have been a special day, because there they were, in their black-and-white striped Hamburglar outfits with reflective orange roadwork vests, picking up trash. Several of those temporary orange diamond signs warned drivers, "Inmates Working." Governor Charlie Crist earned his nickname "Chain Gang Charlie" this way. Here's a good recap, from the Chicago Tribune:

[Under Attorney General Charlie Crist, Florida] in recent years has resurrected the chain gang, built an additional 21 prisons and passed a law that requires prisoners to serve 85 percent of their sentences. In January, Gov. Jeb Bush called for the closing of state legal offices that represent inmates awaiting execution, a move that critics fear would speed the walk to death.

And from the St. Petersburg Times:

When Crist ran for attorney general in 2002, rivals called him unqualified and unethical. He was derided as a vacuous "Chain Gang Charlie" who advocated a return to roadside prison labor gangs, hitched free rides on corporate jets, flunked the Bar exam twice and practiced little law.

It got me to thinking, the armchair ethicist that I am. I might concede that people surrender certain rights when they commit crimes. (I'll ignore the possibility that these people are innocent, though it's a distinct possibility, as we know.) But the question is whether they surrender the right to a certain basic dignity.

We might seek a comparison with setting prisoners to work, say, making license plates. What makes that different? Well, here are some considerations. Prisoners are being held in private, they are not being made a spectacle of. They are contributing to the public good just the same, though I would argue in a more meaningful way by contributing government labor versus menial, bottom-rung tasks like picking up garbage. As well, singling out a handful of prisoners, as chain gangs do, adds a unique – and therefore unfairly apportioned – stigma to the experience of those few inmates, whereas making license plates was, as I understand, something a larger percentage of prisoners participated in.

There is something about being singled out, in public, to perform a menial and degrading task that all entails a singularly inhumane treatment of people that, while we might say are "bad people," are people nonetheless. Instead, the proposers and enforcers of such policies come off as degrading, barbarian and inexcusably insensitive.

Speaking for me only.

Economy forces tough-on-crime legislatures to temper their rhetoric

That is the subject of an excellent post on Change.org's Criminal Justice blog titled, "A Shift Away From 'Tough on Crime' in Florida." Because the economic downturn is even being felt by state governments – a falling tide lowers all boats, as it were – policymakers around the country are turning their attention to the massive costs America's out-of-control prison population. What are some fair and just ways to reduce the prison population? Is it focusing on rehabilitation for drug crimes, as Obama has signaled? Is it focusing on re-entry programs for ex-offenders, or perhaps lowering ridiculous sentences for non-violent crimes? Perhaps it is all of the above:

On Friday, Florida lawmakers passed a budget including an expansion of drug courts and rejected proposals to stiffen sentences for sex crimes and drug crimes. When Florida legislators pass on a chance for long sentences, something is going on... This year's cutbacks are hopefully the beginning of something bigger in Florida, where the expanding prison population has led to estimates of opening 20 prisons in the next five years.

We can certainly hope that this is the beginning of something good, that legislators won't turn around and re-think their sensible decisions just because they have the money to throw at private prison contractors again. Florida's prison population just passed 100,000 inmates, not counting those on parole or probation, or otherwise under the control of the Department of Corrections. With a number that astronomical, and with a gigantic budget hole to fill, it's time to think about starting to institute more fiscally – and morally – responsible sentencing policies.

Death Row Foes See Newsroom Cuts as Blow

On Thursday, the New York Times ran an article on their front page with the above title. The opening sentence read, "Opponents of the death penalty looking to exonerate wrongly accused prisoners say their efforts have been hobbled by the dwindling size of America’s newsrooms, and particularly the disappearance of investigative reporting at many regional papers." The idea being that, since the newspaper industry has faltered recently, the Fourth Estate has become weakened in its ability to assist death penalty opponents in an investigative and litigious capacity.

According to the Innocence Project, 238 inmates have been exonerated through DNA testing. Many of those were on death row, and some of those were freed thanks to the hard work of investigative journalists. Now that papers have less time and less manpower to spare, they see it as more of a burden to take on those kinds of projects.

Oftentimes, advocates would enlist the help of newspapers to file suits to obtain DNA testing, arguing under the First Amendment that the public's right to information meant that newspapers should be allowed to test evidence.

Also quoted in the article is our own Seth Miller, our Executive Director:

“The problem is that stories that were getting written three, four years ago that supplemented the legal work the innocence projects were working on, are just not happening,” said Seth Miller, the executive director of the Innocence Project of Florida.

This is an unfortunate result of the industry-wide downsizing of journalism and, as well, the economy in general. Something few people think about is how journalism impacts not only on the public's access to information and original, incisive reporting about important issues, but on wrongly imprisoned inmates' access to justice.

A visit from Bill Dillon

We had quite a treat a few days ago when Bill Dillon, a man we fought to exonerate, swung by the office. Dillon spent 27 years in jail for a 1981 murder he didn't commit until DNA testing proved his innocence and he was released in November 2008.

William Dillon inspects a photograph of his November 2008 exoneration that hangs in our office.

William Dillon speaks to our summer law interns on their first day in the office. What a way to start an internship!

Dillon spoke to our incoming class of interns for about an hour, telling the story of how he was wrongfully convicted, sharing his new outlook on life, and answering questions.

"Justice is a word... If you want the soul of justice to be there, you have to put it there." –William Dillon

I was actively scribbling notes when he would utter something unintentionally profound and moving. It's remarkable how Bill is so gracious and sincere, not at all bitter.

"It's not about living my life thinking about what happened, it's about thinking about what will happen." – William Dillon

Why President Obama should have Georgia on his mind...

The day after Amnesty International's Global Day of Action for Troy Davis, the Telegraph out of London runs an opinion piece by Neil Durkin on the possibility of an Obama pardon for Troy.

Durkin points to the centrism that Obama has come to embody in his first days in Office, straddling the line between hardcore death penalty opponents and reformers. Obama could be described as a pragmatist on this issue who can be pro-death penalty for some crimes, while fully acknowledging the flaws in the system that might lead to an innocent man being executed, something that no one should be for. For example, Obama championed important criminal justice reform while he was a state senator in Illinois, while avoiding ambiguity about whether he supported the death penalty.

So, why should this concern a popular president, burrowing through an enormous in-tray 500 miles away in Washington? Well, on the one hand Barack Obama is unambiguously pro-death penalty in what he calls the "most egregious" or especially "heinous" crimes. Last year he disagreed with a Supreme Court ruling that outlawed the execution of child rapists receiving death sentences and he's said he'd want Bin Laden executed. Okay, so far so what? This is no different from most mainstream politicians in pro-death penalty USA.

But, Obama is also heavily associated with Illinois where, as he delicately puts it, they "had some problems ... in the application of the death penalty". In fact, the problems included the then Governor George Ryan being confronted with the fact that during his governorship more death row prisoners had been released from prison on the grounds of innocence than had been put to death. Death row was running at "a loss". As a lawmaker in Illinois Obama helped introduce new measures for videotaping police interviews and he says he's "proud" of his role in "overhauling a death penalty system that was broken".

A presidential pardon or commutation for Troy would draw enormous attention and scrutiny. It would likely draw criticism as well. People are executed in the United States almost every day, though Durkin is right when he says that Troy has a particularly strong claim of innocence, or at least a strong claim of entitlement to a new trial. Troy's case has drawn so much attention – even from across the pond, as we see here – because it is so egregious. We will see if that moves Obama to action, though, for my part, I doubt it.

Deep Thought

The opening salvo of a post on SimpleJustice today:

The Supreme Court's decision in Ashcroft v. Iqbal makes me wonder, how did we go from public servants to government officials so monumentally important and distant from the people they purport to serve that they are beyond the reach of an ordinary person in a court of law?

Global Day of Action for Troy Davis

We have blogged repeatedly about Troy Davis, the Georgia convict on death row despite the fact that the case against him has completely disintegrated since his conviction. There was no physical evidence linking him to the crime, nor a murder weapon ever found, yet Troy Davis was sentenced to death on the testimony of nine eyewitnesses. Seven of those witnesses have since recanted or contradicted their original testimony under oath. (Think: would we sentence him to death today, with what we have now: two witnesses?)

Troy has been set, stayed, and re-set for execution three times. His most recent stay ran out this past Saturday.

Troy's case has garnered serious media attention, and rightly so. Amnesty International has adopted his cause as their own, and they have declared today a global day of action. See their website here for events in your community.

In Tallahassee, there will be a vigil on Landis green tonight at 7 o'clock. Spread the word, and we encourage all of our Tallahassee readers to show up and voice your support for Troy.

The New York Times supports access to DNA testing

Yesterday, the New York Times published an editorial to accompany their article on prosecutors' reluctance to grant DNA testing. The editorial called for states to pass laws granting access to DNA testing. Forty-six out of 50 states have such laws today, with the remaining four being Maryland, Alabama, Alaska and Oklahoma.

An excerpt from the Op-Ed, that sounds a lot like yesterday's article:

The Supreme Court ruled unanimously in 2006 that defendants have a constitutional right to introduce evidence of this sort of “third-party guilt” — the suggestion someone else committed the crime. Prosecutors often say they oppose DNA testing because it is burdensome, but testing requests are not that common. In many cases, prosecutors seem to be motivated by a desire to avoid having their work second-guessed by objective science.

The comments on the article from yesterday were surprisingly civil and one-sided. Most reflected outrage and disappointment at prosecutors' general refusal. This particular reader put it better than I could have:

It is absolutely amazing that the same prosecutors who want to collect DNA from everyone who comes into contact with the courts, including traffic law violators, refuse to use that same test to verify their convictions. Apparently prosecutors view DNA evidence as a great tool to fish for perpretrators and get convictions, but don't want it used to question their convict at all costs prosecutions. It is sad that prosecutors believe the judicial system is about closing cases instead of justice and truth.
— darter1, Columbus, Ohio (emphasis added)

SimpleJustice also has a great commentary on the article,

The excuses offered are silly, easily undermined by basic arguments, facts and the science itself. There is no good reason to refuse a convicted prisoner access to DNA testing. Even the slippery slope, that if they let one prisoner do it, every prisoner will want to if for no better reason than to take a shot in the dark. After all, they can't do worse than they already have. But this doesn't pan out either, both because there are so few DNA cases to begin with, and because it involves DNA testing on old cases, since new cases are having it done already as a matter of routine. Assuming the worst, it's just not much of a burden.

And so we get down to the bottom line of the issue squarely framed in the Times' article, yet wholly ignored. Who cares what the prosecutors have to say. Why aren't judges ordering these DNA tests? (emphasis added)

That's a good question, and totally unaddressed, as he said. Now, I do wonder that...

The value of finality

One of the systemic problems contributing to the problem of wrongful incarceration – besides wrongful convictions in the first place – is a fierce reluctance by the system and its constituents to overturn previous convictions. This is what we casually refer to as the value of finality. Courts are afraid of getting 'bogged down' with every claim of innocence or procedural error, so much so that they create daunting procedural hurdles to having an appeal heard. Add to that the resistance from prosecutors and DAs who are afraid of losing face when it is revealed that they had convicted the wrong person. A picture of the difficulty facing innocent imprisoned now beings to take shape.

Two articles came out just now, in the New York Times and USA Today that are related to this attitude that stands in the way of justice post-conviction. The New York Times' A1 story discusses prosecutors' reluctance to grant DNA testing:

A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.

I find this particularly insulting:

In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were “statistically insignificant.” (emphasis mine)

Says the New York Times, "Defense lawyers also say the arguments ignore the proven power of DNA to refute almost every other type of evidence." I'm not sure what the "almost" refers to, unless it is, say, an autographed and notarized picture of the defendant committing the crime.

Also today, USA Today ran a story on A3 about Troy Davis. Davis has been on death row for 18 years, though the case against him has since collapsed. Simply put, the State is unwilling to grant Davis a new trial just because he has already been convicted once.

Davis' attorneys and advocates for the wrongfully convicted say his case, set for another U.S. Supreme Court appeal this week, represents one of possibly dozens in which courts are reluctant to consider evidence discovered after conviction that might exonerate inmates on death row.

Davis' stay of execution ran out on Saturday. You can visit Amnesty International's page on Davis here.

Friday Roundup

The office is abuzz today because William Dillon, our most recent exoneree from November 2008 is visiting. Dillon served 27 years in prison for a murder he didn't commit. Fault eyewitness testimony, fraudulent science, and police misconduct led to his wrongful conviction. But in person, Dillon is as good-hearted and sincere as you could imagine; always remarkable how exonerees show no bitterness, only gratitude and optimism.

Here's what's going on around the Internet:

Matt Kelley of the Innocence Project and Change.org has a blog post about torture and wrongful convictions:

I work at the Innocence Project when I'm not blogging here at change.org, and many of our cases have shown the power of emotional and physical abuse from law enforcement officers to force someone to admit to something they didn't do. About 25% of wrongful convictions overturned by DNA testing have involved a false confession or admission. If one-quarter of information gleaned from torture was false – leading to wrongful arrests and convictions and to costly goose chases – would Dick Cheney still say it was worth it?

Texas raises its exoneree compensation from $50,000 to $80,000 per year of wrongful incarceration. Exonerees will also receive 120 hours of paid tuition "at a career center or public college." They now compensate their exonerees more generously than any other state. Of course, simple money can't make up for lost years of a person's life. It can only serve to help them get back on their feet after years of being completely divorced from mainstream society.

Connecticut House of Representatives votes to repeal the death penalty by an impressive margin: 90-56.

Finally, the DailyKos features an early-morning publicity and fundraising drive for the Innocence Project in New York.

Who owns your genes?

Well, you might be surprised who owns your genes. The ACLU published an article yesterday in their Daily Kos diary that began,

Today the ACLU and the Public Patent Foundation filed a lawsuit challenging the U.S. government’s practice of granting patents on human genes – specifically, the BRCA1 and BRCA2 genes, which are associated with breast and ovarian cancer... At this point, 20 percent of the human genome has been patented.

Besides the immediate shock – surprise and disbelief – I wondered what the ACLU's angle was, what claims in particular they made in their lawsuit. On what grounds could they contest the practice?

The ACLU released a statement from their President, Anthony D. Romero, found here, that contains this compelling point: "Knowledge about our own bodies and the ability to make decisions about our health care are some of our most personal and fundamental rights." Perhaps, then, it is a privacy issue, a nebulous right not expressly defined in the Constitution, but often believed to exist. Instead, the ACLU is actually attacking this practice on the grounds that it infringes free speech:

We believe this is a gross violation of First Amendment rights: individuals’ rights to know about their own genetic makeup, doctors’ rights to provide their patients with crucial medical information, and scientists’ rights to study the human genome and develop new treatments and genetic tests.

The magazine Wired also covered the story. I found this to be a good quote, but not a free speech concern:

“All identifying of differences, including those that are found in the future by anyone to correlate with an increased risk of cancer, are patented. Myriad did not create any of the differences found in the genes. Nature did,” said the suit, referencing patent holder Myriad Genetics of Salt Lake City.

Again, from Wired: "Myriad, which had issued a cease-and-desist order to Yale University scientists researching the genes, said it would prevail in the case."

Article I, Section 8, Clause 8 is written to protect intellectual property. It reads: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Not a patent lawyer, but suing a world-class research university to stop them from exploring something that's inside many people by nature, I don't think, promotes the progress of science.

Paul House exonerated in Tennessee!

From the New York Times:

Prosecutors dropped charges against a former Tennessee inmate who spent 22 years on death row before new evidence cast doubt on his guilt. The district attorney said DNA tests presented “a reasonable doubt” about whether the former inmate, Paul House, 48, acted alone in the murder of a woman near Knoxville in 1985. “This is the day we’ve been waiting for 24 years,” said Joyce House, his mother. “The tears have been flowing, and I’ve been dancing.” In 2006, the United States Supreme Court ruled that Mr. House was entitled to a new trial. He was released from prison in July and placed on house arrest. DNA from key evidence, including semen on the victim’s clothing and blood beneath her fingernails, does not match Mr. House. Prosecutors said in a petition that they still suspected Mr. House of murder, possibly with accomplices, but a judge accepted their request to drop the charges.

Congratulations to the Innocence Project in New York for their hard work.

The perils and pitfalls of forensic science

Both the New York Times and TalkLeft took issue yesterday with the oft-unacknowledged imperfections in forensic science.

The New York Times picks up on the National Academy of Sciences report that we've mentioned before, and how a cross-section of scientists and government officials back the recommendations that the NAS put forward.

Barry Fisher, a past president of the American Academy of Forensic Sciences and a former director of the crime laboratory at the Los Angeles County Sheriff’s Department, said he and others had been pushing for this kind of independent assessment for years. “There needs to be a demonstration that this stuff is reliable,” he said.

It’s not that there hasn’t been any research in forensic science. But over the years much of it has been done in crime labs themselves. “It hasn’t gotten to the level where they can state findings in a rigorous scientific way,” said Constantine Gatsonis, director of the Center for Statistical Sciences at Brown University and co-chairman of the National Academy of Sciences committee. And rather than being teased out in academic papers and debated at scientific conferences, “a lot of this forensic stuff is being argued in the courtroom,” Mr. Fisher said. “That’s not the place to validate any kind of scientific information.”

Meanwhile, TalkLeft discussed the unreliability of fingerprint evidence when analysts are given a "context" for a print. For example, scientists might be given a latent print, and then given a print for comparison and told it was taken from a suspect. Human beings are suggestible, and because this analyst is a human being, they're statistically more inclined to find that the prints match, independent of whether they actually do.

He has conducted studies that show that when working on an identification, fingerprint examiners can be influenced by what else they know about a case. In one experiment, he found that the same examiner can come to different conclusions about the same fingerprint, if the context is changed over time.

The same kinds of contextual biases arise with other decision-makers, said Dr. Dror, who works with the military and with financial and medical professionals. He thinks one reason forensic examiners often do not acknowledge that they make errors is that in these other fields, the mistakes are obvious. “In forensics, they don’t really see it,” he said. “People go to jail.”

Finally, TChris at TalkLeft had a good analogy:

Just as police officers conducting lineups should not be told whether the suspect is or isn't among those who are lining up, forensic scientists who are asked to match a fingerprint shouldn't be told whether the print is suspected to have been left by a particular person. Any other standard raises concerns about the objectivity of the analysis.

Criminal justice and Obama White House

We blogged earlier, on the day of the inauguration, about Obama's plans to reform the criminal justice system.

Today, SentLaw noticed that the text of the White House's page on civil rights – where only a bulleted list containing one or two mentions of criminal justice reform were mentioned – has changed.

Though perhaps this is old news, I just noticed that the discussion of criminal justice issues has changed over at the Civil Rights webpage on WhiteHouse.gov... this webpage used to take a bullet-point approach to describing agenda items, and the key bullet points were "Reduce Crime Recidivism by Providing Ex-Offender Support"; "Eliminate Sentencing Disparities"; "Expand Use of Drug Courts."

Now the President's web site reads:

The President will lead the fight to build a more fair and equitable criminal justice system. He will seek to strengthen federal hate crime legislation and will work to ensure that federal law enforcement agencies do not resort to racial profiling. He supports funding for drug courts, giving first-time, non-violent offenders a chance to serve their sentence, if appropriate, in drug rehabilitation programs that have proven to work better than prison terms in changing behavior. President Obama will also improve ex-offender employment and job retention strategies, substance abuse treatment, and mental health counseling so ex-offenders can successfully re-join society.

Florida passes snitching reforms

On Thursday, Charlie Crist signed Rachel's Law, requiring law enforcement agencies to "create guidelines for the use of confidential informants." The eponymous Rachel Hoffman was a Florida State University grad arrested for possession of marijuana and ecstasy who, rather than face jail time, agreed instead to serve as an informant in a drug buy. While attempting to purchase drugs and a handgun in an undercover sting, Rachel was murdered.

Her death sparked increased scrutiny into the use of police informants. Several bills were introduced into the Florida Legislature in an attempt to regulate and oversee the use of wired informants by Florida police departments. From the St. Petersburg Times:

"Rachel's Law" calls on agencies to take into account a person's age and maturity, emotional state and the level of risk a mission would entail. Police also would be barred from promising an informer more lenient treatment; only prosecutors and judges can do that.

Not included are several provisions Hoffman's parents said could have prevented their daughter's death, including barring anyone in a drug treatment program, as 23-year-old Rachel was, from going on undercover drug buys.

Grits for Breakfast has more, including this highlight:

My favorite part: Law enforcement must "Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant."

Friday Roundup

Though Colorado failed to abolish the death penalty yesterday, they did manage to ban texting while driving.

Add this to the list of bad signs coming out of the Obama Administration DOJ – when can we connect the dots between all the bad signs and officially become disappointed? – from TalkLeft: DOJ Argues FBI Had No Duty to Disclose Evidence of Perjury.

A good editorial, not to be missed, out of the DeMoines Register: Let plaintiffs sue for prosecutorial abuse.

Finally, from the "You can't write this stuff" department, Matt Kelley, author of the Criminal Justice blog on Change.org, tweeted this morning about a program called "Mock Prison Riot." The idea is to either participate in or watch trained professionals diffuse a staged prison riot and learn from the techniques used. Matt asks, "Is this a reality show or real prison guard training?" More than a little surreal.

Colorado death penalty bill dies in Senate

DENVER -- The Colorado Senate rejected a proposal to abolish the death penalty by a single vote Wednesday, hours after backers revived the measure for a final vote on the last day of the legislative session.

Senators voted 18-17 to defeat the bill, which would have used the savings from eliminating capital punishment prosecutions to fund cold case investigations. Last month, a similar proposal passed the House by one vote.

That looks to be the end of the line for the bill, unfortunately. TalkLeft says, "Today was the last day for the Senate to act. Hopefully, a similar bill will come up again next year."

Capital Defense Weekly is much more optimistic:

In Colorado repeal efforts came within vote of making that state the third to abolish in recent years. Folks on the ground in Colorado appear to have done one heck of a job even if their efforts came up a little short. This vote wasn’t supposed to be anywhere near this close. We are winning.

TalkLeft names four democrats who voted against the bill. The unspoken premise is that this is remarkable because Democrats should more reliably vote "the right way" on criminal justice issues like the death penalty. Although I think he's right that Democrats are more likely to support a bill like this, I still lament that the death penalty is seen as a partisan issue. It's not: it's about fairness, humanity, and, in this case, using resources wisely. Better luck next year.

Supreme Court set to decide on life without parole for juvies

On May 4, the Supreme Court granted certiorari in two cases out of Florida. Both cases deal with the Constitutionality of a life-without-parole sentence imposed on a minor.

TalkLeft gives a tentative assessment of the way the court may rule given their 2005 ruling in Roper v. Simmons, when they ruled that the death penalty for juveniles was unconstitutional, "because children are 'immature, unformed, irresponsible and susceptible to negative influences, including peer pressure.'" Life without parole, a similarly damning and permanent punishment, is also flawed because "assumes that a child, whose intellectual and emotional development is incomplete, will never change, even after reaching adulthood, and therefore deserves no chance of parole."

I saw the article is tentative because the author quickly hedges his bets:

That the reasoning is parallel does not guarantee that the Supreme Court will apply a death penalty precedent to a lesser punishment than death. The Supreme Court has often declared that "death is different," and the finality associated with death might be viewed as having a different character than the finality of life without parole.

It's a good article.

Meanwhile, Change.org does a characteristically excellent job of putting things in perspective:

There are currently 2,225 people in U.S. prisons in 45 states for crimes committed when they were under 18, and the U.S. is nearly alone in sentencing kids to die in prison. In 2006, the U.S. was the only country to vote against a proclamation condemning juvenile LWOP - 186 counties voted for it. Human Rights Watch has found that only three other countries have prisoners who were sentenced to life without parole as juveniles.

Seth's Update, April 28, 2009

At the Innocence Project of Florida, we are always looking for new ways to better communicate with our friends and supporters, as well as increase awareness about our work. In that spirit we're pleased to share with you our first-ever email video update from our Executive Director, Seth Miller.

Seth's update (only 3 minutes long) includes information about our recent case progress, efforts in fundraising and publicity, and some exciting things we've planned for the future. If you'd like, you can help us make this a real conversation by leaving comments on this blog post, on the YouTube video, or by sending us an email through our website.

Thanks for watching.

Northwestern Center frees innocent man convicted at 13

Thaddeus Jimenez was arrested for a street gang murder in Chicago when he was 13. He was sentenced to 50 years in prison, but served only 16 before he was exonerated yesterday by the Center on Wrongful Convictions at Northwestern.

Read more:

• ABA Journal: Arrested at 13, Freed 16 Years Later After Witnesses Recant
• Innocence Project in New York's news update
• Video of Thaddeus's release on YouTube

The ABA Journal article mentions witness recantations as a reason prosecutors took a second look into his case. How come that can't happen for Troy Davis, the evidence in whose case is even more egregious?

Update on Colorado's death penalty abolition movement

Bad news on the fight in Colorado to abolish the death penalty. As you might recall, there had been a movement to use the money saved to solve cold cases, instead of using millions of taxpayer dollars on a death penalty that was hardly ever used in Colorado.

Change.org remarks:

Colorado's Senate decided yesterday not only to maintain status quo (wasting millions of taxpayer dollars on one execution every three decades) - but to go one step further. Senators also voted to charge every person convicted of a crime $2.50 on top of court fees they already pay, to help fund investigations of unsolved crimes.

From the New York Times:

An effort to repeal Colorado’s death penalty law stumbled Monday in the State Senate after two hours of sometimes anguished and angry debate, leaving the bill in limbo and supporters scrambling to find votes as the end of the session looms this week... The Colorado House voted in support of repeal, by a single vote majority, last month.

Palm Beach Post coverage of Dillon speaking event

The Palm Beach Post has an article today on Bill Dillon's speaking engagement at the Rotary Club in Wellington, Florida that took place Friday.

Amnesty International Video for Troy Davis

I came across this video on Amnesty International's Change.org page. The music is "State of Georgia" by the band State Radio.

Troy was convicted of killing a Savannah, Georgia, police officer, though 7 of the 9 witnesses who testified against him have since recanted. No murder weapon or physical evidence was found. No court has held a hearing on the witness recantations. If anyone deserves a new trial, it is difficult to see how it's not Troy. Unfortunately, his case has become ensnared in the in the procedural mire that is post-conviction appeals. His time might be running out.



Troy's appeal in the 11th Circuit was denied last month, though he was issued a 30-day stay to file for certiorari to the Supreme Court. That gives him until around mid-May.

Friday Roundup

A few tidbits from around the legalsphere this morning:

Change.org: This blog post reports on a recent study from the National Association of Criminal Defense Lawyers (NACDL). The study shows how the litigation of "small crimes" – crimes like loitering, driving with a suspended license, and dog leash violations – that still carry a prison sentence (!) are clogging the courts.

"Every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice. And, taxpayers are footing the bill for these gross inefficiencies."

SentLaw: A Pennsylvania inmate who maintains his innocence asks to be executed by the State, having grown exhausted from having multiple appeals denied.

Grits for Breakfast has their take on the Houston Police Department crime lab fiasco: "This is another example of a "team spirit" mentality that contributes to many forensic-based false convictions. Houston crime lab workers apparently weren't acting as scientists seeking independent answers but considered themselves part of the prosecution's team, omitting lab results that might not favor the side they wanted to win."

Simple Justice has a thorough piece discussing what Obama should be looking for in his Supreme Court nominee, now that Justice Souter is retiring.

Houston man, victim of prosecutorial misconduct, could be freed on bond

An article in the Houston Chronicle a few days ago told the story of Gary Alvin Richard, who was convicted of a rape and robbery in 1987. Richard has spent 22 years behind bars for what is now clearly a crime he did not commit. New blood-typing tests and recently-unearthed (withheld evidence, in this case) prosecutorial misconduct solidify that conclusion.

Both sides are asking a judge to overturn his conviction.

A jury convicted Gary Alvin Richard in a 1987 attack on a nursing student in a trial based largely on blood-typing evidence from the Houston Police Department crime lab. But, prosecutors and the defense attorney agree, new tests completed Friday show that an [Houston Police Department] analyst misled jurors at Richard’s trial and failed to report evidence that may have helped him.

Based on the new tests, both sides will ask a judge next week to release Richard on bond while they sort out what happened in his case...

Richard’s case abounds with issues common to wrongful convictions. Among them:

The victim identified him some seven months after the attack. HPD crime lab analysts came to conflicting conclusions about the evidence, but reported only the results favorable to the case. Physical evidence collected in what is known as a “rape kit” has been destroyed, a victim of poor evidence preservation practices, leaving nothing for DNA testing now.

Richard's case is of many that have come to light since the Houston Police Department initiated a review of past cases in October of 2007. That review was spurred "days after DNA evidence cleared Ronald Taylor of sexual assault in a case where HPD analysts performed faulty tests on body-fluid evidence." Kudos to Houston for reviewing its past cases with some genuinely desire for justice, but this episode also serves as a reminder of the importance of getting things right the first time.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

A good resource on preservation of evidence

Last year, the Denver Post (which no longer has a print edition; whither the newspaper), did a weeklong series on preservation of biological evidence, where they highlighted, among other things, the woes of the evidence preservation efforts leading up to and after Hurricane Katrina.

It is easily the best one-stop shop on this issue and has lots of cool videos. I encourage you all to check it out.

Destroyed evidence in Manatee County, Florida raises eyebrows

Let's play a game called Count the Outrages.

Derrick Williams is serving a life sentence for a rape he says he didn't commit. The Innocence Project of Florida has taken an interest in his case and was in the process of investigating further about the possibility of testing a crucial hair when they were notified that the evidence has been destroyed. In fact, it was destroyed several years ago along with the evidence for as many as 4,000 other cases.

The reason? One of the evidence vaults for the Manatee County Sheriff's Office suffered a flood that led to an infestation of mold. Several thousand cases' worth of evidence was destroyed in 2003 – without the knowledge of the public defender's office or the lawyers for those inmates whose cases were affected. Now that the Sheriff's Office is moving the remaining evidence to a new storage facility, they are taking the opportunity to destroy as much surviving evidence "as legally possible."

Sheriff's Office spokesman Dave Bristow blew off any concerns about the impact this might have on those cases at issue. He said, "These were cases that had already gone through the system, or ones where the chances of solving them were slim and none."

I count three outrages.

First, why is evidence in Manatee County being stored in a place where it is even possible to be flooded? It's not often that the Gulf of Mexico lurches inland several hundred feet. If this were the result of a hurricane, it might be understandable, but it apparently wasn't. Store vital biological evidence inland. Store it in a cool, dry place. Store it in a waterproof chamber. Store it off the ground level. Or face justified accusations of negligence.

Second, it took the Sheriff's Office six years to come clean about the destruction of this evidence. That, in itself, is reason to believe that if the Innocence Project of Florida had never made an inquiry into Williams' case, we would never know what happened to his – or the other – evidence. When did they plan to tell the lawyers for these inmates, or the inmates themselves? Since they let it lapse for six years, it doesn't seem like the loss of evidence in 4,000 cases was a big deal for them.

Third, it's crassly irresponsible to ignore the post-conviction possibility of exoneration for these affected cases. Frankly, it's unacceptable to write them off as if the book has been closed on them and then destroy evidence that you are, by law, required to preserve. We know in at least one of the cases that Manatee County might have had an exoneration on its hands. And on top of that, it appears it was flat out not true that these were all case-closed: "Some of the destroyed evidence was also from unsolved cases, including homicides. Sarasota Police recently made an arrest in a murder from 30 years ago based on DNA and fingerprints from evidence collected at the crime scene."

See these articles for more:

• Destroyed evidence surprises Manatee lawyers in the Sarasota Herald-Tribune
  
• Flood damage to evidence being assessed in the Bradenton Herald

Update from Seth Miller: I count a fourth outrage. It appears that they are destroying more evidence as they move to a new storage facility. In 2006, the Florida Legislature amended the post-conviction DNA testing law to require evidence-holding agencies to preserve physical evidence that may contain DNA for the length of the sentence or for at least sixty days after an execution in a death penalty case. Are they destroying evidence that could still have biological evidence on it despite the mold? Are they destroying evidence that they deem not to matter anymore that wasn't damaged by the flood? These key questions need be answered.

Take, for example, the case of the court and police evidence rooms for Orleans Parish, which were completely flooded and left to mold in the summer heat of New Orleans after Hurricane Katrina. New Orleans is under sea level to begin with and practically the only thing that was kept under ground were the evidence rooms at the court and the police department. The rising waters affected both old and new evidence.

There are major problems with the way the local authorities handled the evidence as the New Orleans police removed evidence from that room, let it dry out in a dry place, and then simply put it back in the once moldy room. But the court, at least, removed the evidence, did not destroy any of it, and now stores the evidence in a climate-controlled facility well above ground. Additionally, defense, prosecutor, law enforcement, and court officials have come together to think about better ways to preserve evidence so it can maintain its integrity for future use and be easier to locate. As messed up as New Orleans is today, over three years since Katrina, the Manatee Sheriffs could learn a thing or two about how handle natural disasters and avoid destruction of evidence in the future.

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Guilt Project?

The ABA Journal Blog picked up the St. Pete Times about IPF which ran on Monday. We blogged about the article here. The ABA Journal blog post is nothing special as it is just an overview of the original article. What interested me was an exchange between two commenters to the post.

An attack:

Okay, so he “insists” he is innocent, just like he always has.

What does the judge in the case think? Is there any concern for the thoughts of the jurors?

I think we need to start a Guilt Project to counter this group.

The response from a Ryan:

Great idea, but the Guilt Project already exists. In every case, it’s called The State.

Brilliant!

The death penalty as a deterrent

I know I've been harping quite a bit on the death penalty these last few weeks, with the developments in New Mexico, Colorado, and elsewhere, but reading this quote from Change.org really tickled me:

Only two murders in 1,000 are punished by execution. If you believe the death penalty is a deterrent, don't forward this post to a potential murderer - they might figure out that the chances of lethal injection are slim, and then who knows what they'll do.

Pointing out very well what any of us could discover by reflection: criminals are oftentimes not rational agents – and the worse the crime, we might think, the more genuinely deranged they are. Why do we think we might succeed in guiding their decision-making process?

William Dillon to Speak at Rotary Club Event in West Palm Beach, Florida

William Dillon to Speak at Rotary Club Event in West Palm Beach, Florida
Mr. Dillon Spent 27 Years in Prison Before DNA Testing Proved His Innocence

William Dillon, who was wrongfully convicted of a 1981 murder and served 27 years behind bars before DNA evidence demonstrated his innocence, will be speaking at a Rotary Club event in Wellington, Florida, on Thursday, April 30. In November 2008, The Innocence Project of Florida (IPF) worked to obtain DNA testing that proved Mr. Dillon’s innocence. Since his exoneration, Mr. Dillon has become an advocate for criminal justice reforms and has spoken on previous occasions about the harrowing experience of serving out his wrongful incarceration.

“Mr. Dillon is being awfully brave by sharing his story with other people,” said Seth Miller, Esq., Executive Director of IPF. “You can see when he speaks that it’s not easy for him. It is a traumatizing experience to be locked up for so long for something you know you didn’t do.”

When DNA testing showed that Mr. Dillon could not have contributed the DNA found on a crucial piece of physical evidence, his murder conviction was overturned. One month later, the State announced they would drop the charges against Mr. Dillon. Mr. Dillon’s 27 years in prison equals the longest time served before a DNA exoneration.

IPF worked with Mr. Dillon’s public defender, Michael Pirollo, Esq., to obtain DNA testing. Ms. Montle, a Staff Attorney for IPF who worked on Mr. Dillon’s case, will be joining him at the event.

“I’m really proud of Bill for coming out and doing something like this,” said Ms. Montle. “He knows how important it is to reform the system to prevent wrongful convictions from happening. Since he was released, he has been tirelessly working to help solve this tragic problem in America’s criminal justice system.”

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

Download the press release by clicking here.

# # #

More Information About the Event:

April 30th, 6:30 PM

Binks Forest Golf Club
400 Binks Forest Dr
Wellington, FL

Innocence Project in the St. Pete Times: A lifeline for imprisoned innocent

[Mark Wallheiser, Special to the St. Petersburg Times] Innocence Project of Florida executive director Seth Miller and lawyer Bobbi Madonna meet with associates on potential cases. In the background is the whiteboard used in weekly lectures given to law school interns.

The Innocence Project of Florida received some press today in the St. Petersburg Times, Florida's largest newspaper, that explores the arduous process we go through to select our cases.

The process is a lot like sifting for gold. Of the 3,000 inmates who have asked for help since the office opened six years ago, 90 percent have received rejection letters. Rarely do the lawyers find someone like Wilton Dedge or Alan Crotzer, both wrongly convicted of rape.

Ironic turn of phrase – since we certainly don't want to compare innocent people in prison to gold, being a good thing in any way, but sifting and deciphering and contemplating are all appropriate ways of imagining the process.

The entire article is worth a read, and it is somewhat brief.

Update: Our story is on A1 in the St. Pete Times today! Here is a PDF of the front page.

Friday Roundup: the right to counsel

Just two things in today's roundup, but both troubling developments concerning how the right to counsel is observed and respected. For one, just yesterday,

The Constitution Project’s National Right to Counsel Committee released its much-anticipated report, Justice Denied: America’s Continuing Neglect of our Constitutional Right to Counsel, today at an event held at Arnold & Porter LLP. The report details the endemic and systemic failures of the indigent defense system and recommends twenty-two specific and urgently needed reforms to fix them. The full report and other relevant materials are available online here.

Meanwhile, with unintentionally ironic timing, the Obama administration is making known its very worrisome stance on the right to the assistance of counsel. Simple Justice has a very good post here on the importance and history of this right. The post begins this way:

There isn't a competent lawyer in the practical blawgosphere who hasn't warned defendants to remain silent and invoke their right to counsel. Immediately. Every time. No matter how smart you think you are, or what they say to you to get you to talk. Don't do it.

The rule of Edwards v. Arizona is that once a suspect has invoked right to counsel, the police cannot continue to interrogate in the absence of counsel, and the defendant cannot un-invoke his right to counsel without an attorney present...

None of this seems like striking constitutional law today, yet there is a move afoot to change it. This alone might not be terribly shocking, but for the fact that the move comes from the Obama Department of Justice and Solicitor General Elena Kagan.

Here's to more of the same.

TalkLeft has an analysis here that references this Associated Press article. An amicus brief opposing the government's move to weaken this right, filed by 19 former prosecutors and judges, can be found here.

Texas bill allows defendants to challenge their convictions based on junk science

Per the Innocence Project's blog today, "A bill passed by the Texas Senate this week would provide an avenue for prisoners to challenge convictions based on discredited forensic science." They reference a story in the Marshall News Messenger that begins,

Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill passed this morning by the Texas Senate.

In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed.

The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant...

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

In December 2008, we worked to overturn Jimmy Ates' conviction, based largely on fraudulent FBI bullet lead analysis. Since then, the National Academy of Sciences has issued a scathing report, decrying the sorry state of forensic science labs around the country.

We know well how junk science can contribute to a wrongful conviction – indeed, the Innocence Project in New York says that junk science contributed to over half of the nation's first 225 DNA exonerations. We applaud steps like these being taken in Texas, and hope that a new incredulity toward and accountability regarding forensic science will spread to other states and jurisdictions.

American Heritage School to “Bowl for the Innocent”

American Heritage School to “Bowl for the Innocent”
Innocence Project of Florida Plans to Attend Event

On Friday, April 24, American Heritage School will host “Bowl for the Innocent,” an event planned to raise funds for innocent people who have been released from Florida prisons. The Executive Director of the Innocence Project of Florida, Seth Miller, Esq., plans to attend. This is the second year in a row the school has helped victims of wrongful incarceration.

“This event is just one way we try to reach out to the community and spread awareness about wrongful convictions,” said Miller. “The fact that this was organized by a couple of students is really remarkable, and we’re impressed by their passion for this cause.”

Students will “Bowl for the Innocent” at AMF Davie Lanes in Davie, Florida, near Fort Lauderdale. Plans include an afternoon of bowling and refreshments, including pizza, soda and cake.

“This issue is something that matters to everyone,” added Miller. “The more people hear about innocent people in prison, the closer we get to reforming the system to prevent wrongful convictions. This event – even though it’s light-hearted and fun – is an important contribution to the cause.”

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.

Click here to download the press release.

# # #

Where?

AMF Davie Lanes
8200 W State Road 84
Davie, FL

When?

Friday, April 24th, 2009

2:30-3:00 PM Students arrive at bowling alley, check-in
3:00-4:30 PM Bowling games
4:30-5:15 PM Announcements, Pictures, Pizza, Soda, and Cake
5:30 PM Bus departs

Footage from Wayne Tompkins' Vigil

We were sent this video by Unicorn 8 Productions of the vigil held outside the correctional institution in Raiford, Florida, on February 11, 2009, as Wayne Tompkins was executed. We posted extensively about Tompkins back in early February of this year. He was found guilty of murdering Lisa DeCarr in 1983, though serious doubts regarding his innocence persisted up to and after the day of his execution. The Innocence Project of Florida is working to obtain DNA testing in his case. Test results could show Tompkins to be the first person ever executed and then conclusively exonerated posthumously.

Troy Davis denied appeal by 11th circuit

Troy Davis was convicted of murdering a Savannah, Georgia, police officer in 1989. Since then, seven of the nine eyewitnesses who testified against him at trial have either recanted or contradicted their testimony. Still, Davis sits on Georgia's death row.

On Thursday, the 11th Circuit denied Davis' request to file a second habeas petition. However, Davis was originally scheduled to be executed in October of 2008. His execution has been stayed again, for another 30 days, to give him time to prepare an appeal to the Supreme Court of the United States.

From Change.org:

Troy Davis faces execution for the murder of Police Officer Mark MacPhail in Georgia, despite a strong claim of innocence. 7 out of 9 witnesses have recanted or contradicted their testimony, no murder weapon was found and no physical evidence links Davis to the crime. The Georgia Board of Pardon and Paroles has voted to deny clemency, yet Governor Perdue can still exercise leadership to ensure that his death sentence is commuted. Please urge him to demonstrate respect for fairness and justice by supporting clemency for Troy Davis.

We urge you to sign Amnesty International's petition on Change.org here.

More explanation from the Death Penalty Info Center:

In a 2-1 decision, the court held that Troy Davis could have presented most of his new evidence earlier and that the evidence did not offer clear and convincing proof of his innocence. Hence, the court did not consider his free-standing claim of innocence on its merits, but concluded it was barred because of the delay in filing. . . Judge Rosemary Barkett dissented, saying, "The concept of punishing an innocent defendant with the penalty of death simply because he did not file his papers as early as he should have is draconian. . . . where a defendant who can make a viable claim of actual innocence is facing execution, the fundamental miscarriage of justice exception should apply and AEDPA’s procedural bars should not prohibit the filing of a second or successive habeas petition."

The Atlanta Journal-Constitution has coverage here.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

Judges' views on capital punishment

SentLaw has a good post this morning titled, "Sixth Circuit concurrence talks about capital punishment's economic costs." They excerpt an Ohio judge's concurrence in a case that deals with capital punishment; his decision gives insight and analysis of the issue from a judge's perspective. It's a tad bit long for an excerpt to post here, but an extremely interesting and important read:

Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting). At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.

The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities. Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.

An article today in the Cleburne Times-Review out of Texas interviews district judge "Kit" Cookie about his views on the death penalty. They square with the rest of what we have been saying previously, but it's good to hear it repeated by a judge, a person who has sat on capital cases, and had his honest doubts.

“I was very pro capital punishment at the time,” he said. “I wouldn’t take it off the books now. There are cases that probably deserve it. But generally speaking, life without parole is more palatable.”

Cooke has said as much at legal gatherings.

“I did a lecture for an advanced criminal law course where all the top lawyers in Texas come together every year,” Cooke said. “They had me talk on the death penalty, and I raised some strong objections to it. That was the first time I know of that a judge had spoken out about it. I look at it with a little more critical eye than when I started.”

You might also be interested in this article from CNN from early March on states looking to cut back the death penalty because of its costs. As well, see this editorial in the Boston Globe today about the costs of capital punishment.

The Coverdell Grant Program for forensic science

The Innocence Project in New York recently released a report titled, "Investigating Forensic Problems in the United States: How the Government Can Strengthen Oversight through the Coverdell Grant Program." From the executive summary:

In 2004, Congress established an oversight mechanism within the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities.

[...] Nearly five years after Congress passed legislation to help ensure that forensic negligence or misconduct is properly investigated, extensive independent reviews show that the law is largely being ignored and, as a result, serious problems in crime labs and other forensic facilities have not been remedied. In short, the U.S. Department of Justice’s Office of Justice Programs (OJP), which is responsible for the program, has failed to make sure that even the law’s most basic requirements are followed.

Yesterday, the blog for TheHill.com paraphrased some of the results of this study, and reiterated the Innocence Project's call for increased oversight or, rather, they called for the Obama administration to increasingly take advantage of the grant program that Congress created five years ago. One particularly egregious fact they quote is this: only 13% of designated oversight entities meet the federal law’s forensic oversight requirements. If you were a defendant, would you want to take a 1-in-8 chance that the forensic lab that processed the evidence in your trial was subject to proper oversight?

Finally, "Under new leadership, the Department of Justice can – and should – make sure crime lab problems are properly addressed, which will enhance the public safety and help prevent wrongful convictions." Remember, working to correct problems in order to preclude wrongful convictions is cheaper than housing wrongfully incarcerated individuals.


No sooner had The Hill run this post than Grits for Breakfast published some presentations from the public meetings held by the National Academy of Sciences, meetings held to address the problems plaguing forensic science labs around the country. They link to this presentation in particular that calls for forensic tests "to be as blind as possible, for as long as possible," and which contains the shocking graphic on common error rates linked above.

You'll notice that firearms and fingerprints, while among the most reliable forensic testing methods, still yield erroneous conclusions around 1-5% of the time. Some toolmark and bitemark tests, meanwhile, are reliable less than half of the time. That report also refers to several studies that found that, for example, when a scientist was provided with "context" for certain samples – context such as, "The suspect has already confessed, here's his hair and a hair from the crime scene" – that error rates were much higher. Those who conducted the psychological studies could induce false positives by giving false context, leading the forensic scientist to believe certain conclusions before they came to them independently.

All of these scientific studies point to the sad state of the crime labs in this country. Scientists might think so, but they are not immune to psychological tendencies – such as suggestibility – that afflict every human being. Independent oversight and common-sense reforms are the necessary solution to the problem.

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Prosecutorial Misconduct: What's Good for the Goose Should be Good for the Gander

In the wake of the former Sen. Ted Steven's conviction, election loss, vacation of his conviction, and dismissal of his charges for good, we learn that the federal judge in the case is simply appalled at the depths to which the prosecutors went to obtain the conviction against Stevens. From the Washington Post:

During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

Introducing false evidence? Check. Withholding exculpatory evidence? Check. Mishandling witnesses? Check. So now these rogue prosecutors are being investigated, as they should be, and this investigation may lead to criminal charges and eventual prison time if convicted. Way to go justice system.

So while the talking heads and political hacks are vilifying these prosecutors and trumpeting this is as a vindication of Stevens, this situation begs some important questions that the traditional media seems unwilling to touch:

How come we don't get the same remedial reaction to prosecutorial misconduct when the criminal defendant is somethone other than a seven-term US Senator or a wealthy lacrosse player? How come people are executed every year in this country despite equally, or even more compelling meritorious claims of misconduct by prosecutors?

Answering these questions would get to the heart of the imbalance and inequality that exists in our criminal justice system. It's an uncomfortable conversation, one that will inevitably get into race and class issues, as well as cause people to view the State's role in criminal prosecutions in a more skeptical way. Despite all this, it is a conversation our criminal justice system so desperately needs.

Many would be surprised to know that discipline of Florida prosecutors for misconduct is virtually unheard of, and criminal sanctions for misconduct is not something that has been entertained in Florida in run-of-the-mill criminal cases. Some of these are almost assuredly death cases, where the stakes are highest to get a conviction, which often leads to the highest incidence of misconduct.

So while we say to Judge Sullivan that it is is about time someone holds the prosecutorial community to task for misconduct that is hurting (and possibly responsible for wrongfully convicting) defendants and tainting the otherwise ethical work of others in the prosecutorial community, such action needs a broader reach within the criminal justice system.

On this point, just today, the Justice Project, out of Washington, DC, issued a report on the prevasiveness of prosecutorial misconduct within the criminal justice system and what to do about it.