Friday Roundup

Arguments at the Supreme Court begin in Osborne on Monday. Today the New York Daily News has an article calling Alaska's refusal to grant post-conviction DNA testing "shameful."

The state admits that a DNA test now would be conclusive as to whether or not Osborne is guilty. But Alaska has no statute entitling anyone to post-conviction DNA testing, and the prosecution has simply refused to give Osborne access to the evidence. Instead, Alaska has fought tooth and nail to deny Osborne that access, in a decade-long legal battle that will soon culminate with a decision from the U.S. Supreme Court. The state's position has been endorsed in "friend of the court" briefs filed by the federal government, 31 individual states and the New York City Corporation Counsel...

Given the numerous cases in which new evidence, including DNA evidence, has exonerated those who like Osborne seemed very likely guilty, a prosecutor owes it to the public to be open-minded with respect to requests like Osborne's. If such testing had, in 1997, shown that Osborne was guilty, it would have done no harm - and indeed saved the Alaska taxpayers a huge litigation bill. If Osborne had been shown to be innocent, he could have been released.

More links regarding Osborne can be found here and on SCOTUSblog here.

An interesting post for all those who love numbers and statistics – like I do – went up at TalkLeft that exposed some interested line items in President Obama's stimulus bill, the American Recovery and Reinvestment Act. The post called out money appropriated for criminal justice "lock-em-up" programs:

• Violence against women prevention and prosecution programs $225,000,000
  
• Southern border and high-intensity drug trafficking areas $30,000,000
  
• ATF Project Gunrunner $10,000,000
  
• Internet crimes against children initiatives $50,000,000
  
• Rural drug crime program $125,000,000
  
• Community Oriented Policing Services (COPS) grants $1,000,000,000
  
• Justice Department salaries and expenses for administration of police grant programs $10,000,000
  
• Office of Justice Programs state and local law enforcement assistance (Edward Byrne Memorial Justice Assistance Grants) $2,000,000,000

Finally, several more posts covering the movement to abolish the death penalty, which is picking up steam in many states.

• Tennessee Coalition to Abolish State Killing: Tennessee Study Committee Issues a Report
  
• The New York TImes: Citing Cost, States Consider End to Death Penalty
  
• A map and infographic of states with and without capital punishment on Change.org.
  
• TalkLeft: States Consider Dropping Death Penalty.

LA Times against the death penalty

I wrote before about how the death sentence in Florida, according to the Orlando Sentinel, "might as well be a life sentence." Today the Los Angeles Times editorial page says that a death sentence in California is actually a life sentence three quarters of the time.

Today, a death row inmate is more likely to die of old age than to be put to death by the state. Since 1978, when California reinstated capital punishment, 43 have died of natural causes, five more of "other causes," 16 by suicide -- and 14 have been executed, according to the Department of Corrections and Rehabilitation.

And the page publishes a succinct version of the arguments against capital punishment.

...This page has steadfastly opposed the death penalty. We question the morality of state-sponsored killing. We think capital punishment strikes disproportionately at disadvantaged groups, and capriciously at others. We doubt its deterrent effect as well.

The editorial goes on to report the conclusions of the California Commission on the Fair Administration of Justice, which found that it costs an extra $63 million per year to house California's death row inmates (that is, $63 million above and beyond housing them as life without parole).

Inefficiency and costliness are obviously only a small part of what's wrong with the death penalty. But as the commission noted, they create cynicism and disrespect for the rule of law, and increase the emotional trauma of victims' families. Let's end this brutal, anachronistic practice.

Death by Detention

Good Magazine has a revealing article called "Death by Detention," about the worsening crisis in the nation's immigration and deportation detention facilities. They profile the case of Guido Newbrough, who moved to America from Germany when he was two-years-old.

Guido took an Alford plea – denying any guilt but admitting prosecutors could probably obtain a conviction – to sexually assaulting his girlfriend's daughter in 2003. Then, when it turned out his green card did not afford him the citizenship status he thought it did, he was rounded up by ICE as part of an increasingly strict program of detaining and deporting sexual offenders.

Taken to Piedmont Regional Jail in Farmville, three hours away, Guido was one of the roughly 300 immigrants indefinitely detained there, without the rights or protections he had as a criminal inmate. [Guido's father] Jack hired an attorney. “He told us right off this is a tough one. But we kept saying to ourselves it will work out. Because why wouldn’t it work out?” he says...

After several months in the jail, Guido began to complain about pain in his stomach and back. His mother told him to tell the doctors. “Yeah, I told them,” he replied. “But they don’t care.”

Guido was eventually moved to a hospital, but by then, it was likely his heart had begun to fail, and he had experienced multiple organ failures.

Two hours after his family arrived, his mother sobbing beside him, Guido’s heart stopped. “There was an officer there with a gun waiting for him to expire,” says Jack. “He couldn’t leave there until he died.”

But, amid increased scrutiny from lawmakers and the media, a broad array of rights groups is calling for changes in a system that operates with little oversight and detains people indefinitely—often for months, sometimes for years— without entitlement to a lawyer, or the protections afforded criminal inmates...

Last spring, after being denied access three times to a private detention center, Jorge Bustamante, the U.N. special rapporteur on migrants’ rights, issued a stinging report that claimed the detention system violates international and human rights law. He called for an end to mandatory detention and for officials to issue codified regulations about how detainees are treated—a move long advocated by the American Bar Association. Immigration officials released a new set of “performance-based” standards that govern the conditions of detainees last fall, but have resisted the call for enforceable regulations.

In addition to the several-hundred inmates in prison at the better-known Guantanamo Bay, nearly a half million are detained indefinitely in centers like the one Guido was taken to, on American soil. Said a Washington Post exposé, "The detainees have less access to lawyers than convicted murderers in maximum-security prisons and some have fewer comforts than al-Qaeda terrorism suspects held at Guantanamo Bay."

The article is long, but it is a must-read. It is especially timely given a recent piece in the Orlando Sentinel about how a death sentence in Florida might as well be a life sentence, seeing as how so many prisoners die on death row while awaiting their execution.

Between March 1998 and November 2008, the Department of Corrections executed 26 prisoners. During that same period, another 26 death-row inmates died of other causes [like heart disease, fatal ailments and suicide], the Orlando Sentinel found.

These two stories paint a sad picture of the systemic violation of human rights in the detention facilities throughout the country, violations committed through neglect and disdain, but also causes by overcrowded, overburdened, and underfunded institutions. I didn't hear much in President Obama's speech last night about reforming the prison system – in fact, I heard nothing besides his mention of closing Guantanamo – but I continue to hope that it will become a priority of his.

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Witness Identifications a "top priority" for innocence movement

Texas Criminal Justice Integrity Unit describes itself as

an ad hoc committee created by Judge Barbara Hervey of the Texas Court of Criminal Appeals... created to review the strengths and weaknesses of the Texas criminal justice system. Furthermore, the TCJIU’s purpose is to bring about meaningful reform through education, training, and legislative recommendations. It is not a forum for any particular group, nor does it embrace the plan of one particular political party.

Its 2008 Annual Report of Activities, posted online via Grits for Breakfast (in its entirety here), contains this compelling quote:

TCJIU recognizes that one of the leading causes of false convictions is erroneous eyewitness identifications. TCJIU urges the legislature to address this issue during this session of the legislature. It is the position of the TCJIU that instituting reforms in the eyewitness identification procedures used by law enforcement agencies throughout Texas should have the highest priority of any efforts in the area of wrongful convictions.

And this one as well:

The TCJIU is committed to improving the reliability of confessions. Dr. Richard Leo and John Terzano of the Justice Project suggested possible ways to ensure that confessions are reliable, such as: recording the full interrogation, from the Miranda warning onward; proper interrogation practices; and improved waiver of rights forms.

Indeed, the Innocence Project of Florida has considered reform of eyewitness procedures a high priority for some time, along with our suggestion to record police interrogations, considering the wrongful convictions it to which it has contributed.

Besides bad forensic science

The National Academy of Science's report on the sorry state of forensic science in America continues to garner attention in the press, but two other articles caught my attention today. The first is about the use of jailhouse snitches in the Virginian-Pilot in Hampton Roads.

Police in Norfolk labeled Timothy W. Gurley unreliable and a liar, according to court documents. But his long criminal history didn't prevent him from helping authorities in several high-profile cases including the prescription drug trafficking case of Dr. Sidney Loxley and the double murder trial of Eddie Makdessi, extradited from Russia to face charges that he killed his wife and her lover. In December, Gurley testified in the trial of Navy Lt. Michael Lee Everage, who was convicted of murder in the bludgeoning of his wife with a truck mirror.

Gurley hopes a judge will slash his 25-year sentence as thanks for his cooperation.

And then this hilarious money-quote. Kudos to the author for this juxtaposition of facts:

"It is our duty to put forth only the credible witnesses who have valuable testimony to provide, no matter who they are," said Norfolk's Commonwealth's Attorney Robert C. Slaughter III.

[Jailhouse snitch] Jamaal Skeeter has lied about his own name.

Second, there's a piece on Grits for Breakfast about the unreliability of polygraph tests, "no matter who uses them, or why." In particular the blog refers to the common use of polygraphs to screen job applicants.

Equally unfair would be to rely on polygraph testing, which amounts to junk science at its worst, to deny potential troopers employment. I don't know why anyone still thinks these things are reliable. As one critic put it, "There's something about us Americans that makes us believe in the myth of the lie detector. It's as much of a myth as the Tooth Fairy."

Lie detectors were ruled to be generally inadmissible in court in the landmark 1923 case Frye, but played a part in police investigations far into the late 20th century, and therefore might have contributed to wrongful convictions which are being served today.

Reactions to the NAS Report: Roundup

We blogged earlier about the National Academy of Sciences report eviscerating the nation's forensic laboratories and the way scientific testimony is used and abused at trial. The report has received a good deal of attention in the papers, even Scientific American chimes in. This is a good sign; the national press is giving the report the attention it deserves.

The Innocence Project in New York has been doing a good job of cataloguing all of the press. Here are some of the best snippets.

Grits for Breakfast excerpts this, which is a good summary of the conclusions and highlights:

Rigorous and mandatory certification programs for forensic scientists are currently lacking, the report says, as are strong standards and protocols for analyzing and reporting on evidence. And there is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic methods. Moreover, many forensic science labs are underfunded, understaffed, and have no effective oversight.

Forensic evidence is often offered in criminal prosecutions and civil litigation to support conclusions about individualization -- in other words, to "match" a piece of evidence to a particular person, weapon, or other source. But with the exception of nuclear DNA analysis, the report says, no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.

...there has been little rigorous research to investigate how accurately and reliably many forensic science disciplines can do what they purport to be able to do. In terms of a scientific basis, the disciplines based on biological or chemical analysis, such as toxicology and fiber analysis, generally hold an edge over fields based on subjective interpretation by experts, such as fingerprint and toolmark analysis. And there are variations within the latter group; for example, there is more available research and protocols for fingerprint analysis than for bitemarks.

Nuclear DNA analysis enjoys a pre-eminent position not only because the chances of a false positive are minuscule, but also because the likelihood of such errors is quantifiable, the report notes. Studies have been conducted on the amount of genetic variation among individuals, so an examiner can state in numerical terms the chances that a declared match is wrong. In contrast, for many other forensic disciplines -- such as fingerprint and toolmark analysis -- no studies have been conducted of large populations to determine how many sources might share the same or similar features. For every forensic science method, results should indicate the level of uncertainty in the measurements made, and studies should be conducted that enable these values to be estimated, the report says. [emphasis mine]

And here's Simple Justice, with a good – although cynical – take on the report and its possible impact on society.

So the cat is out of the bag. Decades of reliance on forensics are now in doubt. But this isn't the first time, and won't be the last. As scientific knowledge and tools developed, we kept getting the "new improved" version of whatever tools existed to prove facts. Of course, if a scientific tool was so reliable that it could put a man in prison for life, what did it say when a new tool came along that was that much more reliable? Courts embraced the new tool, confident that it was the latest and greatest in scientific proof, and lost no sleep over the demise of yesterday's absolutely certain scientific method. No one got hot and bothered by the conundrum.

So the NAS rips existing forensic practice to shreds and offers a roadmap to correcting junk science going forward. In a rational world, somebody would ask, "What do we do with all those people who have been convicted on science that we now know to be so flawed as to be unreliable, or at best cannot be sufficiently certain is reliable to admit as evidence in court?" By somebody, I mean a judge.

The answer is that the prison doors will not be thrown open, with tens of thousand, hundreds of thousand, told that they are free to leave.

I think GenPop also has a good "So what?" that fits well with my general belief about the holism of common prosecutorial tactics. Courtney says that the report's conclusions,

combined with the fact that eyewitness statements are often faulty, and jailhouse snitches are just doing it for the sentencing break, pretty much leaves us with DNA testing. And yet, people are continually convicted based on these types of fallible evidence. We are going to be setting free innocent people until the end of time, it seems.

We can hope President Obama takes the report's recommendations to hear, including creating a National Institute for Forensic Science.

Virginia kills

Not to steal the thunder or style of Capital Defense Weekly, with their characteristically stoic announcements of when people have been executed in the US, but it is worth noting that Virginia has killed Edward Bell.

Osborne: A case we're watching

Arguments are set to begin in early March in the case of District Attorney’s Office for the Third Judicial District v. Osborne. This summary of the case comes from SCOTUSblog. (That site and its partner wiki, as always, are great sources of info, should you wish to read up more on the case.)

On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.

Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.

The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.

In holding that Osborne has a right to access the DNA evidence, the Ninth Circuit also assumed without deciding a question that the Supreme Court has carefully avoided in the past ─ whether a prisoner with access to this evidence can then overturn his conviction by asserting a “freestanding innocence” claim, based solely on the ground that he is not guilty rather than on any trial defects. If the Supreme Court overturns the Ninth Circuit’s decision, it may have to grapple with this important question.

The Innocence Project in New York excerpts this article from McClatchy, in which Peter Neufeld exhibits a genuine shock at the prosecution's stubbornness.

"Most prosecutors want to do justice and they want to get to the truth," Even if they believe deep down that a defendant is guilty, many also reason, "Fine, I'll give them the test. What's the downside? It's just a test - it's not letting them out of prison."

It should be obvious why our organization is watching this case very carefully. We are lucky in Florida, in the sense that a particular rule of the State's criminal procedure establishes the right for an inmate to file a motion to seek DNA testing. Florida is one of over 40 states that make such an allowance for people who have already been convicted of a crime. Alaska is one of the remaining handful of states that make no explicit allowance. In addition, Alaska has never granted an inmate post-conviction DNA testing.

We hope the Supreme Court can recognize what is at stake in this case. Many people were convicted and sentenced before the revolutionary advent of DNA testing. So far, over 230 people nationwide have been exonerated by testing biological evidence that remained since they were convicted. It is imperative that the Supreme Court recognize the gravity of those exonerations and the evidence they provide for the fallibility of our legal system, and extend the right to post-conviction DNA testing to all inmates in America.

Edward Bell scheduled to be executed in Virginia

Death Penalty Info Center has an eye-opening post today on the scheduled execution of Edward Bell in Virginia. Bell is a Jamaican immigrant convicted of killing a police officer, but there are two bothersome facts about his case.

For one, Bell is legally retarded in Virginia, with an IQ of 68 and "serious deficiencies in adaptive functioning." However, he has never received a hearing to prove his retardation.

Second, "Judge James Jones of the Eastern District of Virginia held that the representation Bell received violated constitutional standards." His defense attorney failed him by presenting zero mitigating evidence at trial, making no attempts to "shed light on his character, motives, or background."

I pointed out yesterday that Virginia is taking steps in the opposite direction of most states by looking to increase the use of its expensive and unfairly applied death penalty. Today we learn that a mentally retarded immigrant whose Constitutional rights were violated could be the Commonwealth's next victim.

Montana and New Mexico on the death penalty

More from SentLaw, an update on Montana and adding New Mexico to the list of states eying the abolition of the death penalty:

• From Montana, this local report details that after "a 90-minute, emotionally charged debate, the Republican-controlled state Senate [on Monday] endorsed a bill to abolish the death penalty in Montana."
  
• Fron New Mexico, this AP story reports that "Gov. Bill Richardson said Monday he has softened his stance on the death penalty and may sign a repeal bill if it reaches his desk."

Innocence Project of Florida Plans to Test Tompkins Evidence

For Immediate Release

Innocence Project of Florida Plans to Test Tompkins Evidence

Tompkins could be First Ever Executed Man to be Proven Innocent

Today the Innocence Project of Florida (IPF) reiterated its intent to test the remaining DNA evidence in the case of Wayne Tompkins. Mr. Tompkins was executed on Wednesday, February 11th, in Raiford, Florida after being found guilty of murdering Lisa DeCarr in 1983. IPF believes that further testing in the case could reveal that the body did not belong to the alleged victim, meaning Mr. Tompkins had been convicted of a murder that did not take place.

“We have a remarkable case with Mr. Tompkins,” said Seth Miller, Executive Director of the Innocence Project of Florida. “The State supported this match between the body and the victim with a partial dental record, which was pretty unconvincing. But on top of that, several people have signed affidavits saying that they’ve seen her alive since the murder. If that’s the case, then Florida just killed an innocent man.”

If it were found that Mr. Tompkins was innocent of the 1983 murder, it would be the first case in American history of an executed man being scientifically proven innocent posthumously. In 2000, Frank Lee Smith was exonerated by DNA testing 11 months after he died of cancer on Florida’s Death Row.

IPF sent a letter to Florida Governor Charlie Crist on Tuesday, February 10th, urging him to stay Tompkins’ execution. On the next day IPF filed a motion asking a judge to notify the appropriate authorities of their statutory obligation to preserve the evidence in Mr. Tompkins’ case for 60 days after his execution. The Thirteenth Circuit Court granted that motion the same day.

“These agencies need to know we’re serious about going forward with testing, and we want to make sure they are preserving all of the evidence pursuant to Florida law,” said Miller. “If the State Attorney is convinced that Mr. Tompkins was guilty, they should support testing to put the doubts to rest. We’ll pay for it, they just need to give us access to the evidence.”

“We look forward to working with the State Attorney’s Office to get the DNA testing,” added Miller. “We’re going to make sure we discover the truth in this case.”

The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons. IPF consulted on the DNA issues in the case of Wayne Tompkins.

# # #

Download the press release here.

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Amid scramble to cut costs, states look at killing the death penalty

As the economy continues to slump, states are still looking for ways to tighten their belts. The St. Petersburg Times characterized the trend in an editorial published last Wednesday, saying, "Florida's budget crisis may bring a modicum of reasonableness to the debate over criminal justice policy." (It's sad to think that the debate is lacking even "a modicum of reasonableness" without the specter of bankruptcy looming on the horizon for state governments.) The Times is also admirable for pointing out that this is not a left-right political issue, but one that should matter to anyone concerned about the fiscal solvency of their state government:

Instead of the "tough on crime" mantra that politicians spout to win elections and that usually leads to more prison beds, suggestions are cropping up for alternatives as a way to save big bucks. These ideas are not percolating up from liberal sources alone. Some of the most ardent supporters for a more measured approach to crime and criminals include a conservative Republican lawmaker and a fiscal watchdog group.

Victor Crist, R-Tampa, Florida, has proposed measures that intend "to conserve spending on corrections and reduce recidivism while not jeopardizing public safety." They include:

Establishing an experimental diversion program at buildings vacated by the Department of Juvenile Justice to give nonviolent felons access to substance abuse programs and life-skills training.

Giving judges discretion to sanction probation violators to more appropriate settings than a maximum security prison bed when their infractions are minor, including the option of expanded electronic monitoring.

Creating a "community-based incarceration" program for select inmates who are serving the last year of their sentence and have successfully participated in a work-release program.

Proposals such as Crist's do a great job of balancing public safety against fiscal responsibility and the need to demonstrate a reasonable amount of compassion toward convicts. These proposals deserve the support of the general public, and especially advocates for criminal justice reform.

But another, more noteworthy measure gaining political traction around the country is the movement to abolish the death penalty, simply because of its costs. According to the Lawrence Journal-World & News, death penalty abolitionists in Kansas say that "given the current budget problems, the death penalty was too expensive and unnecessary because Kansas law has an alternative — life in prison without parole." (This article out of Sioux City, Iowa, adds Colorado and South Dakota to the list of states considering abolition. Montana, as well.)

A telling note from the same article, which should be noted by those who push back against traditional cost-comparisons of death and non-death cases:

In a 2003 state audit report that looked at 22 first-degree murder cases, the median cost for cases in which the death penalty was imposed was $1.2 million, compared with $740,000 for the median non-death penalty cases reviewed. The calculations included the cost of long-term incarceration... The report said numerous factors made death penalty cases cost more, such as lengthier court trials and appeals, and hiring more experts.

From a Montana paper,

There is a widely held myth that the death penalty is cheaper than life without parole. The reality, however, is just the opposite.

State Sen. Caroline McGinn, R-Sedgwick, introduced the Kansas bill to abolish the death penalty and said, “We need to be thinking outside the box,” when it comes to saving money. (Nevermind that, to me, joining the rest of the civilized world by doing away with capital punishment has always been very much ":on the table" and "inside the box.")

Meanwhile, Virginia is moving in the opposite direction, looking to expand its death penalty legislation and making it easier for, say, accomplices to be sentenced to death. Nevermind studies from Massachusetts, New Jersey, Florida, California and North Carolina quoted in this article that all remind us that the Old Dominion is moving in decidedly the wrong direction:

Most recently, a Maryland commission charged with reviewing the state’s capital punishment system concluded that “death penalty cases are more costly than non-death penalty cases” and recommended that the state discontinue executions in favor of the life-without parole sentencing option. This echoes a New Jersey commission’s 2007 finding concerning the prohibitive costs of capital punishment. For example, a Duke University study determined that North Carolina incurred $2.16 million per execution over the cost of condemning a convicted murderer to life in prison. (It bears noting that over the last 32 years, Virginia has executed 102 individuals. Assuming a comparable expense rate for the Commonwealth's executions, the cost of Virginia's state-sanctioned deaths comes in at $220 million total, or about $7 million per year.)

So, the Macon County News laments,

...at a time when Virginia lawmakers are being forced to eliminate thousands of jobs, slash agencies' spending by 15 percent and trim $800 million from K-12 education and Medicaid programs for the indigent, elderly and disabled, the last thing our representatives need to be doing is adding to the tax burden by expanding the scope of the death penalty.

Similarly, the St. Petersburg Times points out that "every dollar saved by building fewer prisons is a dollar that can be used to spare public education and social services from deeper spending cuts."

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National Academy of Sciences Blasts Nation's Crime Labs

A report being released this month by the National Academy of Sciences is expected to be "a sweeping critique of many forensic methods that the police and prosecutors rely on," according to The New York Times last week.

People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting.

The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.

Its authors recommend the creation of a federal agency "to finance research and training and promote universal standards in forensic science, a discipline that spans anthropology, biology, chemistry, physics, medicine and law." Oh, and it also "calls for tougher regulation of crime laboratories." Hmmm....is it a surprise then to find out that the report's publication was delayed by opposition from law enforcement?

What is it with these guys? The reason for using science in investigations is to find the truth -- not to exaggerate it, distort it or create it, but to find it. Why do so many law enforcement personnel and prosecutors react so negatively to attempts to discover the truth about a crime? In the words of The King, it never ceases to amaze me that we continue to get resistance from certain State Attorneys to DNA testing, and even AFTER we have exclusionary DNA results in a case, they continue to resist. I mean, what exactly is it that THEY are seeking? It's certainly not the truth, or they would welcome testing if the evidence is available.

And what really got my ticker going was learning that

the National Institute of Justice, a research arm of the Justice Department, tried to derail the forensic study by refusing to finance it and demanding to review the findings before publication. A bipartisan vote in Congress in 2005 broke the impasse with a $1.5 million appropriation.

That's our National Institute of Justice, a misnomer if I've ever heard one. There is so much wrong with this that words fail me. I'm just sitting here shaking my head.

It's hard to say how much of an impact the report will have. The National Academy certainly shook things up in 2004 when they issued a report discrediting the practice of "matching the chemical signature of lead in bullets at a crime scene to similar bullets possessed by a suspect." The F.B.I. ended up having to contact hundreds of people who might have been wrongfully convicted due to this bogus science. One of them, Jimmy Ates, is here in Florida. Jimmy is now out on bond and waiting to see if the State will re-try him.

"Everyone interviewed for this article agreed that the report would be a force of change in the forensics field." We can only hope.

Read the entire article here.

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Florida Episcopal Bishops ask Crist to abolish death sentence

Here is an interesting article from Zenit.org, reposted on The One True Faith Blog. It could scarcely be more relevant given last night's events.

Florida Bishops Asking to Close Down Death Row In Appeal for Life of Executed Tampa Man
By Karna Swanson
TALLAHASSEE, Florida, FEB. 11, 2009 (Zenit.org).

The bishops of Florida have asked Governor Charlie Crist to "set a new standard of decency" for the state by doing away with the death penalty.

In a letter sent last week by the state's episcopal conference, the bishops also appealed for the life of Wayne Tompkins, who was executed by lethal injection today in Tampa. Tompkins was found guilty of murdering 15-year-old Lisa DeCarr, who was his girlfriend's daughter."Set a new standard of decency for the State of Florida," the bishops appealed, "by abandoning executions and commuting death row sentences to life in prison without possibility of parole."

Sheila Hopkins, associate director for Social Concerns/Respect Life of the Florida episcopal conference, explained to ZENIT that the position of the bishops is not to say, "We should let people go free, but that they are being punished by being put in prison for the rest of their life." Hopkins also noted that there have been several cases of death row inmates who have been found innocent. "We have to ask ourselves if we are killing an innocent person. That would be a terrible tragedy." [emphasis added]

"The letter of the bishops' conference, however, did not affirm Tompkin's innocence, but rather asked that Crist "replace the violence of death by execution with life long imprisonment in the penal system as a way to protect society and ensure punishment for offenders."

"We pray for healing for DeCarr’s family and friends who have suffered the pain of losing their loved one. No punishment, no matter how severe, can ever erase the grief caused by her wrongful death," the prelates added. "You have the singular ability to change the course of action to be taken by the state in death penalty cases," the letter continued. "In pursuing justice for victims of violent crimes, the state must not be blinded by politics that diminish human dignity and the sacredness of all life, including that of convicted criminals."

"Florida should join the ranks of other states which have abandoned executions because they have not been a deterrent to crime and have raised serious concerns about fairness of sentencing in the justice system."

Florida kills

Wayne Tompkins was pronounced dead at 6:32 PM EST last night. We intend to test remaining evidence to banish the remaining doubts in the case and perhaps show that the dead body in the case is not that of the alleged victim, meaning Tompkins was convicted and executed for a murder that didn't take place.

Innocence Project of Florida Moves to Preserve Evidence in Tompkins’ Case

For Immediate Release

Innocence Project of Florida Moves to Preserve Evidence in Tompkins’ Case

Says DNA Testing Could Reveal that Man Scheduled for Execution is Innocent of Murder

Today the Innocence Project of Florida (IPF) is filing a motion to preserve evidence in the case of Wayne Tompkins, who is scheduled to be executed at 6 PM EST by lethal injection. Tompkins was convicted of murdering Lisa DeCarr in 1983, though doubts persist as to the true identity of the victim. IPF believes a new round of DNA testing should be conducted in order to banish all doubt, and today’s action represents the first step toward acquiring that testing.

“If the victim in this case wasn’t Lisa DeCarr after all, that means Wayne Tompkins was convicted of a murder that never took place. It’s pretty bizarre that the Governor is about to execute a person when these kinds of questions remain,” said Seth Miller, Executive Director of the Innocence Project of Florida. Several individuals have signed affidavits claiming to have seen DeCarr alive since the alleged murder.

“The Governor should remember two other cases, Frank Lee Smith and Ricky McGuinn,” said Miller. Frank Lee Smith died on death row in Florida before DNA testing proved he was innocent. In Ricky McGuinn’s case, his Texas execution was stayed, then DNA testing proved his guilt, and his execution was reset. In both cases, DNA testing proved vital to the establishment of culpability.

IPF is moving a court to notify the appropriate institutions that they have a statutory obligation to preserve all evidence pertaining to Tompkins’ case for 60 days, even if he should be executed. IPF wants a robe, a sash, and samples of the victim’s bones to be preserved, with confidence that a new round of DNA testing, using methods that have not been used in this case, will likely yield the identity of the victim.

Miller added, “There are serious doubts left in this case, and we fully intend to get to the bottom of what really happened. Tompkins shouldn’t be executed when such important questions as the identity of the victim remain. Some day soon, we will make sure the truth comes out.”

The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons. IPF consulted on the DNA issues in the case of Wayne Tompkins.

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Download the press release here.

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

Innocence Project of Florida Urges Governor to Stay Wayne Tompkins’ Execution

For Immediate Release

Innocence Project of Florida Urges Governor to Stay Wayne Tompkins’ Execution

New Round of DNA Testing Could Answer Lingering Questions about Victim’s Identity

The Innocence Project of Florida (IPF), in a letter signed by their Executive Director Seth Miller, today urged Florida Governor Charlie Crist to stay the execution of Wayne Tompkins, who is scheduled to be killed on Wednesday by lethal injection. Serious doubts persist about the identity of the victim, and IPF believes a new round of DNA testing is likely to answer these important questions.

“We still harbor grave concerns about the legitimacy of Mr. Tompkins’ guilty verdict,” said Miller in his letter. “We feel strongly that more time is necessary to look into this case.”

Mr. Tompkins was found guilty of murdering Lisa DeCarr in 1983. The evidence against him was circumstantial and consisted of three witnesses, including one jailhouse snitch. The nature of this case is also uncommon because the identity of the victim herself is also in doubt.  

The victim’s alleged identity was supported at trial by a comparison with dental records which Miller says was “wholly unpersuasive.” Since then, several individuals have signed affidavits claiming to have seen her alive since the murder. 

“Because the dead body’s identity is an issue, [late last year] you ordered DNA testing on bones from that dead body as well as a robe and sash found with the dead body,” Miller wrote to Crist. “We presume you did so in order to remove any remaining questions about whether the State of Florida was about to execute an innocent man.” That round of testing came back inconclusive, says Miller. But he adds that, “the facts of the case have not changed. The uncertainty surrounding the identity of the alleged victim that led to the last round of DNA testing still exists. There should be clarity about the identity of the alleged victim before we execute a potentially innocent man. That clarity is obtainable in Mr. Tompkins’ case.”

IPF believes that a new round of DNA testing, involving methods that have not yet been tried in this case, would likely yield results.

Miller pledged to work with Governor Crist to “answer these remaining questions and finally obtain closure in this case,” urging patience in order to avoid executing a potentially innocent man on Wednesday.

The Innocence Project of Florida is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons. IPF consulted on the DNA issues in the case of Wayne Tompkins.
 
# # #

Download the press release here.

See IPF's letter here.

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

Timothy Cole exonerated posthumously

Timothy Cole was convicted of rape in 1985 and sentenced to 25 years in prison. He died there of an asthma attack. Since his death, DNA tests have proven his innocence. On Friday, a judge expunged his record, calling it "the saddest case" he'd seen. From the AP article:

The Innocence Project of Texas said Cole's case was the first posthumous DNA exoneration in state history.

"I have his name," Cole's mother, Ruby Cole Session, said after the hearing. "That's what I wanted."

Cole and his relatives for years claimed he was innocent, but no one believed them until evidence from the original rape kit was tested for DNA. Cole had refused to plead guilty before trial in exchange for probation, and while in prison, he refused to admit to the crime when it could have earned him release on parole.

The Innocence Project pressed for a hearing to start the process of clearing Cole's name. Cole's family now wants Gov. Rick Perry to issue a formal pardon.

Michele Mallin, the rape victim in the case who originally identified Cole as her attacker, said she felt guilty that the wrong man went to prison... Mallin, now 44, has come forward publicly to help clear Cole's name.

The case serves as a grim reminder of the imperfections of America's legal system, and could be used as a springboard for reformers. The Fort Worth Star-Telegram calls it a "perfect storm" for reform.

State Sen. Rodney Ellis, D-Houston, already has introduced several criminal justice reform bills including one to increase the accuracy and reliability of eyewitness identification procedures.

Attorneys associated with the Innocence Project of Texas said that 82 percent of the DNA exonerations in Texas were largely or exclusively due to incorrect witness identification and that 95 percent of those in Dallas were the result of faulty procedures.

But even with those startling statistics, Jeff Blackburn, chief counsel of the Innocence Project of Texas, and others said that 88 percent of the police departments in the state don’t have eyewitness identification policies.

That all needs to change, and Cole's case underscores the fierce urgency of the situation. Many others are no doubt languishing behind bars because of lax procedures and protections. Cole was a victim of the system, but we can work to prevent others from becoming victims.

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

Friday roundup

TalkLeft refers us to the New York Times article about a forthcoming NAS report on the sorry state of forensic science in America.

Via Capital Defense Weekly, comes news of this interesting development in Texas regarding post-conviction claims of innocence:

the Texas CCA today granted a writ today using “actual innocence as a procedural gateway through which to [address] his otherwise barred constitutional claim of ineffective assistance of trial counsel.”

NPR gives coverage to the case of Timothy Cole, whose family appeared in court yesterday and today in an attempt to finally clear his name. Cole was convicted of a rape in 1985, but later excluded by DNA testing. He died in 1999 of an asthma attack, still in prison for a crime he didn't commit.

And, finally, this from the New Jersey News:

Defendants win the right to change their minds; Court decides it can be legitimate grounds for withdrawing a guilty plea

Changing your mind can be a valid reason for seeking to retract a guilty plea if other facts in the case support the request, the state Supreme Court ruled yesterday.

The justices said trial judges need to consider any plausible claim of innocence and the "nature and strength" of the person's reasons for wanting to retract the plea.

Executive order hints at prisoner re-entry

I mentioned before the ambiguity surrounding how far Obama is willing to go to take reforms in criminal justice and prisoner's rights.

Today, Sentencing Law and Policy notices a single clause in a recent executive order by President Obama:

Faith-based and other neighborhood organizations are vital to our Nation's ability to address the needs of low-income and other underserved persons and communities. The American people are key drivers of fundamental change in our country, and few institutions are closer to the people than our faith-based and other neighborhood organizations. It is critical that the Federal Government strengthen the ability of such organizations and other nonprofit providers in our neighborhoods to deliver services effectively in partnership with Federal, State, and local governments and with other private organizations, while preserving our fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and forbidding the establishment of religion. The Federal Government can preserve these fundamental commitments while empowering faith-based and neighborhood organizations to deliver vital services in our communities, from providing mentors and tutors to school children to giving ex-offenders a second chance at work and a responsible life to ensuring that families are fed. [emphasis added]

Troy Davis' case continues to draw attention

From the Death Penalty Information Center:

Georgia death row inmate Troy Davis was scheduled to be executed numerous times in 2008, but each date was stayed. His case is currently under review by the U.S. Court of Appeals for the 11th Circuit. International interest has continued to mount because of concerns about his possible innocence. Most recently, Amnesty International has assisted in preparing a multimedia presentation about his case with the music group "State Radio."... Davis’ case has garnered support from many quarters, including former President Jimmy Carter and the European Union. Davis' original conviction was based primarily on eyewitness testimony. Since the 1991 trial, 7 of the 9 non-police eyewitnesses have recanted their testimony, with some pointing to another suspect.

The mind-boggling aspect of Davis' case is that, even though 7 of the 9 eyewitnesses have recanted – leaving good reason to believe that the remaining two are also mistaken – that's not enough to constitute sufficient grounds for the vacation of his conviction. Instead, he's had his execution stayed several times by the court, rather than simply give him a new trial whose result would reflect what we know today. The state has fought tooth and nail to preserve Davis' conviction, seemingly because they're afraid of what a new trial would show.

Life without parole for juveniles

Yesterday, the New York Times ran a story about Joe Sullivan, who is serving a life sentence for a rape he committed when he was 13. He is now arguing before the Supreme Court, that sentencing a 13-year-old to spend the rest of his life in prison is cruel and unusual punishment.

Today comes this piece on the Criminal Justice blog over at Change.org. An eye-opening excerpt:

Forty-four U.S. states allow juveniles to be sentenced to life without parole, and there are 2,592 people serving LWOP today in our country for crimes committed as juveniles...

Many would say that a person who has murdered deserves to die. But, like Sullivan, "25 percent of juveniles sentenced to LWOP didn't kill anyone." That's not to say that rape isn't a heinous crime. It is. The question is whether a juvenile, especially a 13-year-old, even has the capacities to make a decision that we otherwise believe to be punishable by death. It's clearly wrong to punish a person for something they didn't fully understand when they were doing, and a terrible shame to foreclose this person's life from the point they were thirteen on.

And then there's this from Change.org:

[PBS] Reporter Tim O' Brien talks with a Florida judge who says [a particular] sentence is entirely about retribution. That's the telling moment for me. It's not public safety. It's revenge. Is that the purpose of our criminal justice system?

There's a philosophical debate regarding whether punishment is inflicted because people deserve punishment in some metaphysical sense, or because it will serve as a deterrent to lessen the chance others will commit crimes. The answer seems to be a little bit of both, and I'm a bit revolted by this judge's callous admission that the base desire for revenge is the only salient factor.

But there's actually a third side of the philosophical argument, going back to Plato, that argues that punishment is a treatment for the sick. That particular language seems a little quaint, but certainly we have the same beliefs today: after all, it's called the Department of Corrections, not Retribution, not Deterrence. Of course, you never give a person a chance to be rehabilitated if you never let them out of prison.

A shift away from the death penalty?

Time magazine has this post on the waning number of executions and death sentences in America. The number is down dramatically from what they call "the golden age" of the death penalty: the year 1999, when there were 98 executions, more than any year since 1976 when the death penalty was reinstated.

It's worth meditating on just this excerpt for a second, on what Time calls "the usual objections to capital punishment," which are each compelling and jointly more than cogent: "cost, racial and jurisdictional disparities in sentencing, its ineffectiveness as a deterrent against crime and the possibility that innocent people might be put to death." Senator Lisa A. Gladden, who chairs [Maryland's judicial proceedings] committee, hammers the point home with more forceful language: "The death penalty is not a deterrent, it doesn't reduce crime, it's expensive, and it's unfair." Such realizations – backed by countless studies – blunt any support for the death penalty before it can reasonably get off the ground.

SentLaw, however, is cautious regarding the new administration, as they observe that

Though AG Holder's track record on the death penalty is mixed, he was deputy AG in the Clinton Administration during what Time calls "the golden age of capital punishment in America." Though lots of forces contributed to the death penalty's rise in the 1990s and its more recent decline, our new Attorney General may not be nonplussed if execution rates and death sentences return to rates of the so-called golden age.

Finally, TalkLeft puts in their two cents:

I think economics weigh in as well. People are starting to realize the enormous cost of death penalty trials and appeals and realizing that life without parole is an effective punishment tool...

Texas and the South will always be an unfortunate anomaly. But I agree with Time, in the rest of the country, the pendulum is shifting in the right direction -- against the death penalty.

One of the strongest moral arguments against the death penalty is the unarguable fallibility of the legal system. It means essentially that, with the death penalty in place, innocent people are going to be executed. If it could be shown that the death penalty was an effective deterrent against murders – that is, if having it in place still 'saved more innocent people' by stopping murders than it had to sacrifice by executing the occasional innocent person – the face of the argument might be changed slightly, though still quite perverse. But we know it's not an effective deterrent. Add to that its exorbitant cost and its proven racial bias, and supporters of capital punishment are left with nary a leg to stand on. It's time that the public at large and the decision-makers came around.

Bite marks in Reason magazine

Reason magazine, the libertarian stronghold, picked up on the fanfare over Robert Lee Stinson's exoneration in Wisconsin despite the "expert" testimony of bite-mark analysis.

Marquette University dentist Dr. L. Thomas Johnson and a colleague are developing computer software they hope will “legitimize” bite mark analysis. The problem, as outlined in the article, is that critics say human skin changes and distorts imprints until they are nearly unrecognizable. As a result, courtroom experts end up offering competing opinions...

Since 2000, at least seven people in five states who were convicted largely on bite-mark identification have been exonerated, according to the Innocence Project.

See this article in USA Today for more on the attempts of the Marquette University dentist to build a database of bitemarks.

Alabama also eying post-conviction DNA law, with a catch

On the heels of yesterday's post comes word that Alabama is considering a similar bill.

If evidence meets requirements and the applicant financially qualifies, testing would be ordered. To fund the program, the bill requires the fees now assessed in every court to be raised from $2 to $12.

Alabama Department of Forensic Sciences Director Michael Sparks said such a law would follow a national trend.

“Alabama is one of five states that does not have post-conviction testing using DNA,” he said. Sparks cited individuals released from death rows across the country on DNA results.

But at the very end of the article I found cause for concern:

The bill also provides for DNA collection for everyone arrested and charged with a felony or sexual offense after October 2010. Under current law, a DNA sample can be taken from anyone with a felony conviction.

This sounds like a rider inserted as a concession to legislators afraid of being seen as tough on crime. They don't realize, of course, that favoring justice for the wrongly convicted doesn't undermine whatever other staunch anti-crime bravado they might make their common fare.

What a Wonderful World

Imagine if everybody were judged, for the rest of their lives, based on who they were and what they did when they were thirteen.

Weighing public safety against victim's rights

There's an intriguing article in the Atlanta Journal Constitution today about the consequences of a DNA exoneration in the case of a 1985 rape in Georgia. In January of 2007, DNA evidence freed Willie Williams after he had served 22 years in prison for a crime he didn't commit, but when the state entered his DNA profile into the database of profiles, it matched serial rapist Kenneth Wicker.

Wicker was arrested that same month, but was released in September after prosecutors quietly dropped the case against him. Today, that serial rapist is free, though we know he is implicated in at least one other rape.

The DNA proves there is “no question” that Wicker, now 49, committed the crime, [District Attorney Paul] Howard said.

“It’s clear he’s a serial rapist,” he said in a recent interview. “He should not be where he can harm anyone.”

Obviously.

But the problem that the prosecution has is that the victim in that 1985 rape is adamant that Williams, the man exonerated by the DNA testing, was actually her rapist and not Wicker, the man to whom the DNA points. As Howard unconvincingly explains:

Her family knows nothing of the attack, he said, and subjecting her to relive the ordeal in court would be “obscene.”

“How long can you continue to traumatize this woman?” Howard asked. “We weighed all the circumstances and the most prudent thing would be to just let it go.”

But the DA has skipped over a middle ground in his thinking. It's one thing to decide not to force the victim to testify. (And, even if she did, she would be giving testimony that would hurt the state's case.) But, the reason that the state moved straight from that stage to dropping the charges is because they felt they could not obtain a conviction without the eyewitness testimony. This seems to me manifestly wrong. DNA testing is one of the most probative technologies that science has accorded the criminal justice system. It is so powerful that it is right when peoples' memories are wrong. Juries know this, and it seems to me that a jury would convict this serial rapist when confronted with solid evidence that he had raped again.

The state's decision leaves many questions up in the air.

But Wicker’s previous convictions for rape, aggravated sodomy, kidnapping, robbery and aggravated assault raise questions about the decision to release him. Is justice best served by protecting a victim? Or by prosecuting a repeat offender and getting him off the street?

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

South Dakota could get post-conviction DNA testing

From an article in the Argus Leader, a paper in Sioux Falls, South Dakota:

Some inmates in the state prison system could have DNA evidence tested to determine whether they were wrongly convicted if a bill in the Legislature becomes law.

House Bill 1166, introduced Wednesday, has four Republican sponsors in the House and two Republicans and one Democrat in the Senate. The bill would let felony convicts petition for DNA testing if the evidence exists and if there were questions about identity in their prosecutions.

Forty-four states, including Florida, have similar legislation that gives inmates access to post-conviction DNA testing. An effective post-conviction DNA access statute must:

• Allow testing in cases where DNA testing can establish innocence – including cases where the inmate pled guilty
  
• Not include a “sunset provision” or expiration date for post-conviction DNA access
  
• Require states to preserve and account for biological evidence
  
• Eliminate procedural bars to DNA testing (allow people to appeal orders denying DNA testing; explicitly exempt DNA-related motions from the restrictions that govern other post-conviction cases; mandate full, fair and prompt proceedings once a motion seeking testing is filed)
  
• Avoid creating an unfunded mandate, and instead provide the money to back up the new statute
  
• Provide flexibility in where and how DNA testing is conducted

The only worry in South Dakota appears to be that convicts who pled to their crimes will be denied access to testing. This is troubling because, as we know, people often plead guilty to crimes they did not commit. The only criterion for access to post-conviction DNA testing should be an inmate's ability to inject a reasonable doubt into their prior conviction.

Chris Hutton, the faculty advisor for the South Dakota chapter of the Innocence Project commented, "Everybody from the attorney general on down realizes mistakes can be made."

On a similar subject is a post in TalkLeft today about a new study that looked at how human error contributes to wrongful convictions:

It determined that the root causes of the convictions included errors by a prosecutor, judge or member of law enforcement, as well as the misidentification of the accused by victims or witnesses. The mishandling of forensic evidence and a reliance on false confessions from the accused or false testimony from jailhouse informants were also to blame.

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