As in Tommy Arthur's case in Alabama (where Governor Riley has so far denied DNA testing, even though Arthur is on Death Row and faces execution when the Supreme Court reinstates the death penalty), the following makes me just throw up my hands and ask "why." Or more precisely, "why not?" Why not allow DNA testing on evidence that could conclusively prove someone's innocence (or guilt)? Especially, as in Arthur's case, someone's life lies in the balance. Although Steve Fasano's Mississippi case doesn't deal with life or death, it does involve freedom vs wrongful incarceration. Why not allow DNA testing on evidence that could possibly get an innocent man out of prison? What is it about finding the truth that seems to scare so many prosecutors and judges?
Clarion Ledger, by Jerry Mitchell, January 10, 2008 -- A federal judge decided today he wants to hear expert testimony before deciding whether former Jackson police officer Steve Fasano can test possible DNA from a bank robber's disguise in hopes of exonerating him in a 2002 robbery.
U.S. District Judge William Barbour Jr. said in a hearing that if he had to rule today, he would deny the request but wants to wait to wait to hear testimony from a DNA expert before making his final decision.
Fasano, who has passed a lie detector test, insists he is innocent of the crime for which he’s serving federal time.
The former Jackson police officer did not attend today. He is serving his nearly four-year sentence at a federal prison medical center in Rochester, Minn.
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The robber’s outfit was checked out for Fasano's 2005 trial, but prosecutors told defense lawyers afterward it had been lost. That evidence turned up a year later in a prosecutor’s closet — four months after Fasano left for prison in April 2006.
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Qualls, who is associated with the Center on Wrongful Convictions at Northwestern University School of Law, said if someone else’s DNA is found on the outfit instead of Fasano’s, it raises a “near certainty” the bank robber was somebody else.
Assistant U.S. Attorney Richard Starrett disagreed, saying the presence of someone else’s DNA wouldn’t necessarily prove anything.
He said Fasano waived his right to DNA testing long ago. He said the defense had access to the robber’s outfit and failed to test it.
If Fasano is given a second bite at this apple, it would set a dangerous precedent, Starrett said.
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Any thinking person concerned about true justice would choke on Starrett's apple, but his sentiment is sadly all too common in today's postconviction arena.
Read entire article.
Wednesday, January 16, 2008
Federal judge delays ruling in convicted officer's case
Not a Good Week for Criminal Justice News in Mississippi
To date, the state of Mississippi has exonerated only one person through DNA testing. The following are some excerpts from a long interview with John Grisham, published last week in the Jackson Free Press. Grisham expresses his concerns about problems with Mississippi's postconviction laws (or lack thereof) and his hopes for positive changes advocated by the state's new Innocence Project.
Jackson Free Press, by Ronni Mott, January 9, 2008 -- It was Ron Williamson’s obituary in the Dec. 9, 2004, issue of The New York Times that caught attorney and author John Grisham’s eye.
“It had all the elements of a novel,” Grisham said in an interview with the Jackson Free Press. “The small town Southern feel to it; the small town sport hero going off to make his mark in the major leagues and failing; a grizzly murder; a wrongful conviction; a trip to death row; insanity; a near execution; exoneration; the eventual conviction of the real killer; a lawsuit to recover damages. I could not make that up, and if I did make it up, nobody would believe it. It’s too rich to pass up.”
After 11 years on Oklahoma’s death row, DNA evidence proved that Williamson was not the killer of 21-year-old Debra Carter. He and Dennis Fritz, who a jury in Ada, Okla., also convicted of the crime, walked away free men on April 15, 1999.
But for Ron Williamson, exoneration came too late; he was unable get his life back on track. His long history with drug and alcohol abuse—compounded by bipolar disease, personality disorders and a mild form of schizophrenia, all untreated during his incarceration—had taken their toll. The one-time minor-league baseball hero died of cirrhosis of the liver at age 51 on Dec. 4, 2004, less than five years after his release. At the time of his death, people mistook him for a man 30 years older, his hair prematurely white and his skin sallow around his empty, sunken eyes.
Grisham was so intrigued by the story that he spent 18 months writing his only non-fiction book to date, “The Innocent Man: Murder and Injustice in a Small Town,” which was published in October 2006.
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In January 2007, Grisham and a group of Mississippi lawyers, law professors and retired judges opened their wallets to fund the Mississippi office of the Innocence Project, now headquartered in Oxford. Until then, the Louisiana IP office was also helping with Mississippi cases.
“We just all came together at one time with some other attorneys who were willing to write checks,” Grisham said. “The law school at Ole Miss got on board quickly; the university got behind it.”
In Mississippi, before the Innocence Project can make meaningful strides correcting wrongful prosecutions and convictions, the laws have to change.
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The task is daunting. In Mississippi, once a defendant’s trial is over and he—it’s usually a man, a black man—receives a sentence, the deck is stacked against him. Reflecting the state’s long, sad history of racism, Mississippi has no laws on the books requiring courts to preserve evidence, no laws that allow defendants access to post-conviction DNA testing, no laws that require police to record interrogations, and on the slim chance of exoneration, no laws to compensate defendants for the lost years of their lives.
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Today, Mississippi also lacks forensic oversight, leaving the door wide open for the introduction of junk science and forensic “experts” without proper certification. The top position, a board-certified medical examiner, is mandated by state law, but the Legislature has failed to fund the position, leaving coroners and district attorneys leeway to shop for autopsy results from “their favorite medical examiners,” reported reason.com in November 2007. Those examiners, such as Steven Hayne, whose testimony the state Supreme Court recently threw out in the case of Tyler Edmonds, inordinately tend to favor the prosecutors, who can afford to pay for their testimony.
Read the entire article.
Wednesday, January 9, 2008
Unpacking the Misconduct in the Chad Heins Case: Improperly Influencing Witnesses Edition
Today, the Florida Times Union published an article that begins to unlock the prosecutorial misconduct that took place in the case of Chad Heins, Florida's 9th and most recent DNA exoneration:Only weeks before Chad Heins' murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim's body came from an unknown person. "I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant," Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.
Some prosecutors will argue that this is simply just a case of Mr. Bledsoe alerting his witness of the intent to perpetuate testimony that will raise possible reasons why unknown hairs were found at the scene of this murder. In fact, that is exactly what Mr. Bledsoe's boss stated:
In December 1996, a jury convicted Heins of the first-degree murder of his sister-in-law in her Mayport apartment. He was sentenced to life in prison until new DNA tests led to his release last month.But State Attorney Harry Shorstein called Bledsoe, who he's known for 35 years, one of the most ethical prosecutors in his office. Bledsoe probably wanted to ensure that the crime lab witness testified about possible explanations for the unknown hairs, Shorstein said.
But this letter from Mr. Bledsoe is far more nefarious, despite his current boss' protests to the contrary, arguing about the inartful wording of this letter and Bledsoe's supposedly high ethical status. In the face of evidence that casts serious doubt on Chad Hein's guilt (nevermind the recent DNA testing of these hairs, fingernail scrapings from the victim, and semen found on her bed sheet that all pointed to the same unknown male perpetrator), Bledsoe is trying to improperly influence his witness, a State of Florida employee, to conceal the truth about this hair evidence; to convince the jury that it really isn't what it truly is.
"I don't like the wording of the letter because I think it does lead to conjecture or suspicion of wrongdoing," he said. "But the important thing is he disclosed that evidence. Steve Bledsoe is about a straight an arrow as any lawyer I've ever worked with."
What's more, before Chad's exoneration, current prosecutors, led by Harry Shorstein, sought to prevent introduction of this letter into evidence at a new trial, clearly understanding the import of the letter and what it would say to the jury about the probative value of this hair evidence.
Chad's attorneys used phrases like "cavalier disregard for the actual evidence." Another attorney made the point that if the roles were reversed, the prosecution would be trumpeting this letter as the defense's attempt to improperly influence a witness.
Regardless of how you characterize these actions, it's a sad commentary on the tunnel vision of the Florida prosecutor bar writ large, where we have become more interested in convictions at all costs than finding the truth.
Kudos to Paul Pinkham for beginning the public dissemination of misconduct in this case. To read more about this the Chad Heins case out of Jacksonville, Florida (Duval County),go here.
Thursday, January 3, 2008
IPF Profiled on Fla. Bar News Cover Story
Picture: Chad Heins, leaving Duval County Jail, December 4, 2007.Clutching his worldly possessions in one small packet, Chad Heins walked out of the Duval County Jail on December 4 a free man, after spending nearly 14 years locked up for the stabbing death of his sister-in-law he’d insisted from the beginning he did not commit.Also, the Bar News included a cut away on our creation of the Exoneree Emergency Fund, which is designed to provide modest, but immediate assistance to our exonerees when they get released from prison until they are compensated by the legislature. The fund will obviously not meet all of their needs but can be used for general transition needs, such as clothing, food, housing assistance, medicine, etc. If you would like to contribute to this vital fund, go to our contribution page to donate online or, for information on where to send contributions through the mail, go here. Whether contributing online or by mail, please indicate that you would like your donation earmarked for the Exoneree Emergency Fund.
With a broad grin, Heins, now 33 — only 19 when he was sentenced to life in prison — gratefully hugged his lawyers one by one.
Among them were Jennifer Greenberg and Seth Miller of the Innocence Project of Florida, buoyed by yet another flesh-and-blood reminder of the merit of their nonprofit legal clinic’s work: the ninth DNA exoneration in the state and the 210th nationwide.
Will This Be Alan Crotzer's Year?
Central Florida News, Tuesday, January 01, 2008 -- 
The new year brought new hope for Alan Crotzer. The former St. Petersburg man was locked up for more than two decades for a crime he did not commit.
DNA testing helped secure his freedom, but he said he wants more.
Only a couple of years before, Crotzer was still serving a life sentence for double rape, until from the bowels of a Hillsborough County government building came his ticket home: Old DNA evidence, resounding proof he was innocent.
"If you didn't do it, you didn't do it, and for me, to be held accountable for a court upsetting my life -- I went in there at 20, and I came out at 45 years old, and to sit here and talk to you, I'm blessed, but there are those that are going to die in there," Crotzer said.
Continue reading the article.Wednesday, January 2, 2008
NEWS REPORT: DNA Testing Granted in Pasco County Death Case
On December 19, 2007, a Pasco County judge granted Samuel Jason Derrick post-conviction DNA testing on evidence in this case. From the December 28, 2007, St. Petersburg Times story:Derrick, his family and his lawyers hope the latest advances in forensic technology will exonerate the 40-year-old Moon Lake man in the 1987 murder of storekeeper Rama Sharma.
Derrick has maintained his innocence since he was arrested for this 1987 murder and has spent half of his 40 years on this planet in prison, on death row. Previous DNA testing on fingernail scrapings was performed in 2002 but didn't yield a result. Derrick's attorneys hope that the more exacting Y-STR DNA testing now used will yield an excluding result this time around:
"I'm just thankful that the truth is going to come to light," said Derrick's former wife, Cherie.
A bloody remnant of a white T-shirt, a partially eaten hot dog, blood found under a picnic table and scrapings from the victim's fingernails will all be tested, the judge ordered Dec. 19. The defense's hope is that viable DNA can be recovered from the evidence that will implicate someone other than Derrick in the stabbing murder of Sharma.The fingernail scrapings were tested in 2002 but gleaned no DNA profiles, the defense motion said. But they could still yield something to a more sensitive DNA test called Y-STR now available, according to the defense motion, that "targets genetic markers found on the Y-chromosome, which only males possess."
"It's really vital that we use Y-STR or one of the really cutting- edge tests that have been developed," said Alba Morales, Derrick's Innocence Project attorney. "Because it really improves the chance of getting a result from what is by now a fairly degraded sample."
Mr. Derrick is represented pro bono by Alba Morales of the New York Innocence Project and appointed attorney Harry Brody.
NEWS REPORT: DNA Testing on Hair Could Have Proved Innocence But Trial Attorney Refused Testing Due to . . . Cost?
Esdras Cardona was recently convicted of sexual battery for the April 2006 rape of a pastry chef at the exclusive Everglades Club in Palm Beach, Florida. The evidence central to the prosecution's case was the witness ID of Cardona, the perpetrator's t-shirt found at the scene which was the same brand and type of shirt found in Cardona's bedroom, and a toothbrush found at the scene that did not belong to the victim and contained DNA which was miraculously consistent with that of Cardona. The case is chronocoled in this Palm Beach Post story.
One would expect prosecutors, eager to obtain a conviction, to want to skip over additional scientific testing that could yield probative evidence of guilt or innocence. The prosecutors went to trial thinking (and were correct) that they had enough evidence to score a conviction of Mr. Cardona without testing the two hairs with roots collected from the perpetrator's t-shirt:
Former Assistant State Attorney Ron Herman handled the case in the months before Cardona's trial. Herman said he was confident in the evidence he had: a rape victim's strong eyewitness ID of Cardona and his toothbrush found at the scene. "I thought it was solid to support a conviction," Herman said. Hairs from the bed and T-shirt - they were a gamble. If none belonged to Cardona, it would not point-blank exonerate him, Herman says. And it may have mucked up the prosecution's case against him. Besides, Herman knew Cardona's defense team had asked to have the hairs tested at a private DNA lab - an effort he did not oppose.
So if the prosecutor doesn't DNA test the hairs and his rationalization is that a result excluding Cardona as the contributor of those hairs would seriously muck up the prosecution's case, possibly raising enough reasonable doubt to support an acquittal, any defense attorney, paid in excess of $25,000 to represent Cardona, would surely obtain the testing? Right?:
In the months after Cardona's arrest in April 2006, the attorneys began their work, deposing witnesses, Amezaga's flying to Maine to take the victim's statement. In January 2007, Amezaga asked Circuit Judge William Berger to allow the defense to test the hairs at a private lab in Broward County, which the judge did. Amezaga said then Cardona's family would pay for the testing. Then their money ran out.
When a person who has paid a private lawyer runs out of money, he can have the state cover some basic costs by being declared "indigent for due process." Taxpayers then pay for the critical elements every defense deserves, including forensic testing and experts. The money is paid by the Justice Administrative Commission, an agency in Tallahassee that monitors requests.
. . .
In February, Amezaga received an invoice from the private Broward lab for the DNA testing. It cost a small fortune - $575 per hair, $350 per hour to review a case and $2,800 per day for expert testimony. Way in excess of what the JAC was willing to pay. In late April, Cardona's attorney returned to court and told [the judge] . . . that testing cost much more than the caps on costs allowed. . . . The commission, though, follows court orders from judges. And at that two-minute hearing in late April, Berger gave Cardona a critical ruling: "I find extraordinary circumstances and a need to have this particular lab engaged," the judge said. "Therefore the cap ... this will exceed it if necessary."
It seems that Mr. Cardona is in a great position to get his testing. What's more, is that these hairs have roots which makes DNA testing easier and implies that the hairs were forcefully removed (i.e. through a struggle), rather than deposited on the white t-shirt through casual contact or transference. So Mr. Zealous Defense Attorney took the judge's order for extraordinary costs to the JAC, right?
Well not so much:
Yet no test on the hairs in Cardona's case was ever done. Amezaga said it was not a strategic decision not to test the hairs; it was a financial one. He was unable to square the $6,000 cost of tests with what the state was willing to pay, he said.
But why was that? Berger had ruled Amezaga could exceed caps and spend more to get the hairs tested. The attorney looks taken aback when asked about this and refuses to say why. "You can draw your own conclusions about that," Amezaga said.
Just before Cardona's trial began in June, he met with Amezaga. That's when Cardona learned the hair evidence in his case had not been tested. Amezaga said the best legal advice he could give was for Cardona to fire him and get the public defender's office to represent him. That office, presumably, would be able to pay for the testing. Then the tens of thousands of dollars Cardona and his family had paid the attorney might all be for naught.So Cardona went to trial [without the DNA testing and was convicted].
No one can truly know whether the toothbrush was planted at the crime scene or whether Esdras Cardona is innocent. But there is little question whether he deserved a better, more zealous, defense. His case is now in the hands of the West Palm Beach public defender and it is likely he gets his testing on appeal or in post-conviction.
As for Mr. Amezaga, he will likely be the subject of a non-frivolous claim of ineffective assistance of counsel, where he won't be able to sidestep the question of why he didn't get the DNA testing, when he had a judge's order allowing for the full expense of that testing to be paid by the State.
