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.

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."

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.

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.

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.

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.

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.

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.

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.

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Ecuador Seeks Return of Florida Death Row Inmate

The Death Penalty Information Center relates this interesting article from the AP:

Ecuador is demanding the return of one of their citizens from Florida’s death row because they maintain he was taken from Ecuador illegally. The inmate, Nelson Serrano Saenz, is a dual citizen of the U.S. and Ecuador. Ecuador says he should have never been taken from their country by Florida officials, calling the arrest a “kidnapping” and accusing the U.S. government of physical maltreatment of Serrano as well. Ecuador does not have the death penalty and will not extradite fugitives who face the punishment in other countries. ''The issue is not his guilt or innocence,'' said Deputy Ecuadorean Interior Minister Franco Sanchez. ''This is called a kidnapping, not an arrest.'' U.S. authorities maintain that they did nothing improper and that Serrano’s dual citizenship status allowed them to bring him back. The Organization of American States, to which both countries belong, has since recommended the case to the Inter-American Court of Human Rights in Costa Rica, after first finding that Ecuador had illegally detained and deported Serrano.

Ecuador has not received an official response from the U.S. State Department to their letter and announced they plan to present the letter to the Florida Supreme Court, where Serrano's appeal will likely be heard later this year. The Ecuadorean government also has hired a Miami-based immigration attorney to replace Serrano's court-appointed lawyer.

Jim Webb takes courageous stand on prison reform

In my Friday roundup, I mentioned Jim Webb's introduction of the National Criminal Justice Commission Act of 2009, which seeks to establish a commission "made up of recognized criminal justice experts, and charged with examining a range of policies that have emerged haphazardly across the country and recommending reforms. In addition to obvious problems like sentencing, the commission would bring much-needed scrutiny to issues like the special obstacles faced by the mentally ill in the system, as well as the shameful problem of prison violence." (NYT)

The bill represents a tremendously courageous act on his part. Glen Greenwald over at Salon.com explains why that is in a lengthy post that is well worth a read:

It's hard to overstate how politically thankless, and risky, is Webb's pursuit of this issue -- both in general and particularly for Webb. Though there has been some evolution of public opinion on some drug policy issues, there is virtually no meaningful organized constituency for prison reform. To the contrary, leaving oneself vulnerable to accusations of being "soft on crime" has, for decades, been one of the most toxic vulnerabilities a politician can suffer (ask Michael Dukakis). Moreover, the privatized Prison State is a booming and highly profitable industry, with an army of lobbyists, donations, and other well-funded weapons for targeting candidates who threaten its interests.

Adds Greenwald,

After decades of mindless "tough-on-crime" hysteria, an increasingly irrational "drug war," and a sprawling, privatized prison state as brutal as it is counter-productive, America has... become what Brown University Professor Glenn Loury recently described as a "a nation of jailers" whose "prison system has grown into a leviathan unmatched in human history."

It is the existence of this detestable myriad of reasons that brings the cause of criminal justice reform into higher relief. We have been supporters of criminal justice commissions for some time, but it is the realization of our wildest dream that a national reform commission should be formed under the leadership of an intrepid first-term Senator.

The New York Times has thrown their unequivocal support behind the bill with an editorial on Sunday. Ryan Grim authored a piece at the Huffington Post that lays out the bipartisan support that has quickly formed behind the bill, including that from senior Democrats, libertarian pundits, and traditional conservatives as well. Observes the New York Times, "Judging by the bipartisan support in the Senate, a national consensus has emerged that the criminal justice system is broken."

To visit Senator Webb's official page on the National Criminal Justice Commission Act of 2009, click here.

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Friday Roundup

A few good items in today's news.

For one, I've been blogging a lot lately about nascent death penalty reforms around the country and around the world. A Maryland bill I blogged about earlier harshly restricting the application of the state's death penalty has passed the state's House. Governor O'Malley has indicated he will sign the bill.

GenPop has a pretty outrageous post about the unfortunate citizens of tiny Parke County, Illinois, population approximately 17,000. The county was forced to raise taxes on its citizens in order to try a death case, costing in excess of $500,000. As Courtney points out,

Imagine being anti-death penalty in that county. Imagine being anti-death penalty and someone who's already suffering financially because of the state of today's economy, and having your taxes raised to put someone to death. That is so backward, barbaric and wrong.

A study by the ACLU of Northern California has concluded that "The 11 new additions to [California's] death row add almost $1 million to the annual cost of housing people on death row, now totaling $61.2 million more each year than the cost of housing in the general population." Speaking of an unfair burden levied iniquitously on the citizens of California, "of California’s 58 counties, only 10 counties accounted for nearly 83% of death sentences for 2000 to 2007, and 30 counties had not had a single death sentence since 2000." That means one half of the counties are forced to pay into a system they haven't used in almost 10 years, so that a minority of the counties can put their convicts to death.

Senator Jim Webb of Virginia introduced landmark legislation yesterday to create a blue-ribbon commission tasked with comprehensively examining every aspect of the criminal justice system. SentLaw and Change.org have more. Kudos to Senator Webb. Adds Change.org, "Calling our prison system a 'national disgrace,' Webb says 'we are wasting billions of dollars and diminishing million of lives.' Amen."

Finally, congratulations to Innocence Project founders Barry Scheck and Peter Neufeld. They are being awarded the 2009 Thomas Jefferson Foundation Medal in Law this April.

The Thomas Jefferson Medal in Law and its counterparts in architecture and civic leadership are the highest external honors bestowed by the University [of Virginia], which grants no honorary degrees. The awards recognize the achievements of those who embrace endeavors that Jefferson — author of the Declaration of Independence, third U.S. president and founder of the University of Virginia — excelled in and held in high regard.

Who Said Money Can't Buy Everything?

It can apparently buy one's freedom. This alert just in from The New York Times:

Madoff to Remain Free on Bail With New Restrictions

A federal judge on Monday rejected the prosecution's request to revoke Bernard L. Madoff's bail and send him to jail. Instead, the financier, who is accused of running a huge Ponzi scheme, will remain under house arrest in his luxury apartment on Manhattan's Upper East Side, guarded by private security guards paid for by his wife.

What do you think your odds are of receiving the same treatment?