Exoneree Alan Crotzer: One Step Closer to Being Compensated

Yesterday, the Florida Senate passed an individual claims bill that would pay 2006 DNA exoneree Alan Crotzer $1.25 million for his 24.5 years of wrongful incarceration. Last week, the Florida House of Representatives passed an identical measure.

The only thing now standing between Alan and compensation is the signature of Governor Crist and the speed in which the folks over at the Department of Financial Services can cut the check. Governor Crist has indicated publicly that he will sign the bill as soon as it gets to his desk.

This is a momentous day for Alan, his family and advocates, as well as the people of Florida. Alan will now be the second Florida DNA exoneree to be compensated (2004 exoneree Wilton Dedge was compensated in December 2005 after spending 22 years in prison for a crime he didn't commit).

You can view the claims bill here.

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

And We're Back....

It has been a month since our last post and that time off corresponds directly with the beginning of the legislative session here in Florida. We have been working diligently on getting a reasonable exoneree compensation bill passed and I will have an update on that process in a later post.

For now, use this as an open thread.

If 1 in 100 American adults are in prison, how many are innocent?

The United States has passed a milestone with, apparently, very little fanfare. We now incarcerate more than 1 in 100 adults in this country -- 1 in 99.1 to be exact. Let's repeat that. 1 in 99.1 American adults are currently in prison or jail.

The numbers were released last week in a report by The Public Safety Performance Project:

Launched in 2006 as an operating project of the Pew Center on the States, the Public Safety Performance Project helps states advance fiscally sound, data-driven sentencing and corrections policies and practices that protect public safety, hold offenders accountable and control costs. The Project currently collaborates with the Pew Center on the States and five external partners to provide expert, nonpartisan information and assistance to 13 states that want a better return on their public safety investments.

Why isn't the media all over this report? Yes, there have been the obligatory stories on the data, but that flurry of attention was over in a day or two. Am I the only one who thinks this is one of the scariest pieces of news to hit the media (albeit briefly) in a long time? The United States, "land of the free, and the home of the brave," incarcerates a much higher percentage of our population than any other country in the world.

The sheer numbers alone are staggering:

At the start of the new year, the American penal system held more than 2.3 million adults. China was second, with 1.5 million people behind bars, and Russia was a distant third with 890,000 inmates, according to the latest available figures.

When you break the numbers down into demographics, they look even worse (if possible). While "one in 30 men between the ages of 20 and 34 is behind bars, the figure is one in nine for black males in that age group... In addition, one in every 53 adults in their 20s is behind bars...."

This "lock 'em up" mentality doesn't come cheap. We're currently spending about $55 billion a year to house the 2.3 million people currently behind bars in this country. And ironically, it's not necessarily making us any safer.

"For all the money spent on corrections today, there hasn’t been a clear and convincing return for public safety,” said Adam Gelb, director of the Public Safety Performance Project. “More and more states are beginning to rethink their reliance on prisons for lower-level offenders and finding strategies that are tough on crime without being so tough on taxpayers.”

One can only hope that "more and more states are beginning to rethink their reliance on prisons." You don't get that sense from the report's numbers, however. Thirty-six states and the federal government saw an increase in their prison populations in 2007, including Florida, whose incarcerated population grew by more than 4,000 inmates. According to the state's Department of Corrections web site, "On June 30, 2007, 493 of every 100,000 Floridians were incarcerated compared to 453 in 2003." (That figure is for prisons only, and does not include those behind bars in local jails around the state.)

Florida currently spends 9.3% of its general fund on the state's correctional system. Only three other states' percentages are that high or more. To put these numbers in perspective, consider this: for every dollar Florida spent on higher education in 2007, the state spent $.66 on corrections. Contrast that figure with 1987, when the ratio was $.34 per $1.00.

Between 1993 and 2007, the state’s inmate population has increased from 53,000 to over 97,000. While crime and a growing resident population play a role, most of the growth, analysts agree, stemmed from a host of correctional policies and practices adopted by the state.

One of the first came in 1995, when the legislature abolished “good time” credits and discretionary release by the parole board, and required that all prisoners—regardless of their crime, prior record, or risk to recidivate—serve 85 percent of their sentence. Next came a “zero tolerance” policy and other measures mandating that probation officers report every offender who violated any condition of supervision and increasing prison time for these “technical violations.” As a result, the number of violators in Florida prisons has jumped by an estimated 12,000.

Crime in Florida has dropped substantially during this period, but it has fallen as much or more in some states that have not grown their prison systems, or even have shrunk them, such as New York. Without a change of direction, Florida is expected to reach a peak of nearly 125,000 inmates by 2013. Based on that projection, the state will run out of prison capacity by early 2009 and will need to add another 16,500 beds to keep pace.

So what does all of this have to do with the Innocence Project of Florida? Well the first thing I thought of is how many of these incarcerated people are innocent?

If Florida currently houses over 97,000 inmates, then we have to assume that, at the very least (one percent), 970 of them are innocent. On the high end (an estimated ten percent), that number jumps to 9,700. Since 2000, Florida has released just nine innocent people due to DNA testing.

One thing this work has taught me is that there is a critical need to investigate claims of innocence in this state, indeed in this country. I'm well aware that a lot of people will be quick to say, "Oh, yeah, everybody in prison is innocent," but the hard truth is that there are innocent people in prison and a very real need for more people working to do something about it. According to Samuel R. Gross, a law professor at the University of Michigan:

The good news is that the great majority of convicted defendants in the United States are guilty; the bad news is that a substantial number are not. Is an error rate of 2% or 3% or 5% high or low? That depends on your point of view and your purpose.

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

Another thing I've learned is that wrongful incarceration is still not on everyone's radar. Innocence projects haven't been around long enough to lay claim to a colored ribbon to increase awareness of our cause, like breast cancer's pink one or the Heart Association's red. And criminal justice issues, like prison reform and innocence projects, don't generate the same warm, fuzzy response as a homeless child or an abused puppy, but that doesn't make the work any less important. We communicate daily with real people, perhaps someone's teacher, or neighbor, or son or brother, whose lives, and the lives of their families, have been devastated by a wrongful conviction and its resulting incarceration. The damage can endure for generations.

Unfortunately, Florida does not yet have statewide remedies in place, changes to "the old way of doing things" that have proven to be effective in protecting innocent citizens from falling victim to the horrors of wrongful incarceration. I remain hopeful that the situation will change as more people become aware of this nightmare that can truly happen to anyone.

Florida, like most of the country, has its work cut out for it as it seeks to right some of the wrongs within its criminal justice system. Protecting innocent Floridians from wrongful imprisonment should be high on that list.

Link to the complete report.

Police Already Screwing Up DNA Dragnet in Daytona Beach

Last Friday, we noted that a debate is brewing over the propriety of trying to resolve cases using DNA dragnets or sweeps; that is, taking a DNA sample via cheek swab from every arrestee and then comparing these to the unknown sample int he unsolved case.

The giving of the sample is supposed to be voluntary, as the current law in Florida only allows for mandatory samples from those convicted. "Supposed to be voluntary" is the operative phrase:

In a training video by the Police Department on how to swab suspects' mouths for DNA samples, the training officer describes how to do the procedure and asks the suspect to sign a consent form only after the swab. That's not legal. The suspect must give consent first, otherwise the swab violates the suspect's rights.

The training officer in the video committed another blunder. "If the subject refuses the form," he says, "note on the form that they've refused, go ahead and tag the evidence anyway." There ought to have been no evidence to start with if the subject refused to sign the form. After The News-Journal reported the training video's errors, Daytona Beach police Chief Mike Chitwood conceded that those aspects of the video were a mistake.

What if there'd been no news report?

And there within this closing question lies the point, as well intentioned as law enforcement may be in trying to solve a pending case, they simply can't be trusted to be guardians of constitutional rights of innocence individuals. But aside from the costs to the rights of the citizenry, what about the actual financial costs:

The dragnet raises more troubling questions than it answers. At $200 to $500 for each DNA test, who'll foot the bill in a period of budget reductions across the state? (Daytona Beach arrested 11,000 people last year. Assuming that half had consented to DNA swabs, that's $1.1 million to $2.75 million in DNA tests.)

For financial and constitutional reasons, it is imperative that law enforcement is properly trained to narrow the range of people that find themselves in this DNA net by allowing for consent before the taking of the sample and destroying the sample when the person is determined not to be the unknown perpetrator.

Un Bell Nulla (A Beautiful Nothing)

As we noted last week, Rep. Ellyn Bogdanoff (R), who represents an overlapping portion of both Broward and Palm Beach Counties, filed HB 1025, The Victims of Wrongful Compensation Act.

When I started reading the bill, I started to get a bit giddy because of the comprehensive nature of the services provided by this plan. HB 1025 goes further than the previous bills to offer a standard amount of money ($50,000) per year of wrongful incarceration, 120 hours of tuition at a state college or university, a process for expunging of criminal records as it relates to the wrongful conviction, and reimbursements for psychological services and health insurance premiums. It is far more extensive than previous attempts since 2005 which limited exoneree compensation to a standard amount of money ($50,000) per year of wrongful incarceration, 120 hours of tuition at a state college or university, and a formal apology (although SB 756, filed this year by Sen. Arthenia Joyner (D) and which is principally support by the Innocence Project of Florida, includes payment of $100,000 for every year of wrongful incarceration).

My giddiness turned to exasperation when I read the rest of the HB 1025. It became clear that while this bill would provide much, none of the array of services available could be obtained by any of Florida's nine DNA exonerees, because they are all excluded under the plain language of the bill.

You read that right: The House Republican leadership has put forward a compensation bill that would not compensate any known Florida DNA exonerees!

So how does it exclude these deserving individuals? The principle exclusion in the bill is a so-called "clean hands" provision, which excludes from compensation anyone with a felony conviction prior to their wrongful conviction. This is their reasoning:

Republican leaders in both chambers say they want the bill to prevent released prisoners with prior felony convictions from being entitled to the automatic compensation. That means people like Crotzer, who was previously convicted in 1981 for stealing a case of beer, wouldn't qualify for automatic compensation under the proposed legislation and would still have to petition the Legislature.

"There doesn't appear to be a huge appetite from the public to give money to folks who have a rap sheet," Bogdanoff said. "It's not going to help everybody, but it's geared toward those people whom the public is most offended by government's wrongful action."

Yet, they go on to say that they are going to compensate Al Crotzer through a separate vehicle, despite his previous felony for stealing beer from a store. Al is totally deserving and has put in the hard work to win over legislators. But their protests about not wanting to pay people with a rap sheet ring hollow when they are willing to pay those with a rap sheet who they get to know and deem to be a "good" person. Let us not forget that it was only a year ago that two committees in the Senate and one committee in the House were not concerned about clean hands when they voted unanimously to pass a similar bill with no clean hands provision at all. I guess they were for a fair and equal method for compensating exonerees before they were against it. (Note: In response to the concerns about paying multi-time felons who later get wrongfully convicted for a separate offense, IPF took the initiative and crafted the narrower clean hands provision that exists in SB 756).

Nevermind the fact that in 75% of cases nationwide where DNA later proved innocence, a witness misidentification contributed to the wrongful conviction. You can probably guess how law enforcement had those individuals' pictures or knew their identities to stick them in a live lineup to be misidentified; because they had a previous conviction.

What is most pernicious about this provision is that it implies that exonerees, who have spent decades in prison for someone else's crime and have fought like hell in horrible conditions to prove their innocence when no one would listen, are somehow at fault for their wrongful conviction and incarceration. This clean hands provision is nothing more than a good old fashion immunity clause. It allows the State of Florida to wrongfully convict people with impunity; with virtually no consequences for its actions.

Even worse is the fact that the stated purpose of the bill is:

House and Senate leaders agree they want . . . an automatic process that would make it easier for those who have been wrongly convicted to collect some compensation, without petitioning the Legislature year after year.

This sounds like a great idea, but how does creating a uniform, automatic system that pays no one fulfill this stated purpose? How does it meet the stated end if we simply kick everyone back over to the annual claims bill process, which lacks in uniformity or fairness among exonerees and which favors those who can obtain good counsel? These are questions that the proponents of this clean hands provision should be made to answer.

The struggle for an exoneree compensation bill is in its fourth year. The legislature knows it has to pass something this year in light of its failure to pay Al Crotzer two years running on the backdrop of the speed in which it paid Wilton Dedge in 2005. But instead of showing leadership in crafting a bill that demonstrates fairness and compassion for all exonerees and responsibility for wrongful convictions, all we get is a cynical attempt to gain the political capital that comes along with passing a compensation bill while merely creating an illusory scheme that pays no one.

Call it the height of cynicism or smoke and mirrors or even bait and switch. Whatever you call it, it is a disappointment and a failure on the part of the State of Florida. It is our hope that when the Senate files their bill this week, it will be substantially better and that the leadership of both houses will be a willing partner with the Innocence Project of Florida to do better for Florida's exonerees.

New Trial Granted in Tampa Non-DNA Innocence Case

This past Friday, the Second District Court of Appeal overturned the conviction of Michael Mordenti for a 1989 contract murder. The St. Petersburg Times has the goods:

Before he committed suicide, Larry Royston told his attorney that prosecutors had charged the wrong man with killing Royston's wife in a 1989 murder-for-hire plot.

But three separate juries never heard his claim.

Twice, St. Petersburg used car dealer Michael Mordenti was convicted of taking $17,000 from Royston to carry out the hit.

The Florida Supreme Court overturned the first conviction, saving Mordenti from death row. A second trial ended with a hung jury, and a third trial brought a life prison sentence with the possibility of parole after 25 years.

On Friday, the testimony jurors never heard won Mordenti his fourth shot at redemption.

In a 2-1 decision, an appellate panel overturned his conviction, saying Royston's statements to attorney John Trevena should have been admitted at trial and would exonerate Mordenti if believed by a jury.

This is a huge turn of events in a case that has gotten a lot of attention over the last twenty years while it wound its way through the court system.

IPF generally doesn't do non-DNA cases; those which do not involve biological evidence that can be tested for DNA. These cases generally involve witness recantations, the non-disclosure of exculpatory evidence by the prosecution, and other non-DNA-related newly discovered evidence claims. While it is our wish to move into this area, we have our hands full with DNA cases and the money is just not there to perform the intense investigation that is necessary to represent an inmate in a non-DNA innocence case.

Kudos to Marty McClain, who is representing Mr. Mordenti. Mr. Mordenti is now 66 years old and has been in prison since his first conviction in 1991. We'll keep you updated as the events of the newest trial unfold.

Cheap and Easy Fixes to Witness Lineups

The Daytona Beach News Journal strikes again with a great editorial on injecting greater reliability into witness identification procedures, specifically live witness lineups:

One of the easiest, and potentially most effective, fixes involves a simple tweak to a basic police tool: the lineup. This practice -- in which police actually line up a row of people, or display a set of photographs and ask a witness to identify one as the criminal -- is subject to flaws, particularly when the officer administering the lineup knows who the suspect is. Even though the officer might not intend to taint witness identification, it happens, through subtle "tells" such as fleeting changes of facial expression.

The solution is to remove that officer from the lineup process, substituting another officer -- one who has never seen the suspect and doesn't know who the ringers are. This procedure, called a "double-blind" lineup, is the best way to ensure that eyewitness IDs are as accurate as possible. In addition, police should take care to ensure that all subjects in a lineup are as physically similar as possible.

These two fixes are simple. They require no new technology and, because they simply substitute one officer for another, little extra police time. Moreover, they're fully supported by irrefutable research. (Research behind a third reform, which would change the way lineups are administered so that a witness considers only one suspect or photograph at a time, shows conflicts and needs further work).

Witness misidentification contributed to roughly 75% of the 213 wrongful convictions nationwide that were later overturned through the use of DNA testing. While the need for reform is great and the fixes not too difficult, it is very unfortunate that there is still a strong push back by law enforcement.