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.

Timothy Cole Exonerated in Texas

When Governor Bill Richardson abolished the death penalty in New Mexico, he called it the most difficult decision of his political career.

Now, Judge Charlie Baird in Texas has handed down a decision he has called "the most important of my judicial career." Timothy Cole was convicted in 1985 for the rape of Michelle Mallin and sentenced to 25 years in prison. Cole died in prison in 1999 for a crime that DNA evidence has since proven he didn't commit, and yesterday he was officially posthumously exonerated in Texas. Judge Baird's decision is available here.

Judge Baird said, unequivocally, "the evidence is crystal clear that Timothy Cole died in prison an innocent man, and I find to a 100 percent moral, legal, and factual certainty that he did not commit the crime of which he was convicted." Judge Baird also went on to fault police misconduct, including the deliberate misrepresentation and suppression of evidence for Cole's innocence during the investigation.

Perhaps most tragic is that, since 1995, four years before Cole died in prison from complications from asthma, Jerry Johnson had been admitting his guilt for the rape of Michelle Mallin. From Judge Baird's decision:

Worse, however, was the attitude of the courts to [the actual rapist Jerry] Johnson’s claim of guilt. As early as 1995- four years before Tim Cole died- Johnson tried to clear Tim Cole and admit to the rape of Michelle Mallin. His letters were ignored, set aside, and thrown away until one was received by the family of Tim Cole and the Innocence Project of Texas.

You can read more about Timothy Cole's exoneration at Grits for Breakfast, Lubbock Online, or the Houston Chronicle.

We're glad that this sad story is coming to an end – that the family of Timothy Cole is receiving some sort of justice in the clearing of their son's name. We hope the criminal justice system can look to Timothy's case and ask itself, "What can be done to make sure this never happens again?"

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Update: Wyatt v. State Amicus brief

On Thursday, April 2nd, the Innocence Project of Florida, along with The Innocence Network, filed an amicus curiae brief with the Florida Supreme Court in the case of Wyatt v. State of Florida. IPF is urging the court to allow inmates, including Mr. Wyatt, the opportunity to present to the trial court recently received letters from the Federal Bureau of Investigation indicating that its agents gave false and misleading trial testimony regarding Comparative Bullet Lead Analysis (CBLA). The press release we posted earlier is now available for download by clicking here, or you can read the brief we filed by clicking here.

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

The numbers on New Mexico's death penalty

In the wake of Bill Richardson signing the bill to abolish New Mexico's death penalty comes a study from attorney Marcia Wilson published in the New Mexico Law Review, "The Application of the Death Penalty in New Mexico, July 1979 through December 2007: An Empirical Analysis." Thanks to the Death Penalty Info Center for the link.

Some interesting numbers that show that, though Governor Richardon's stroke of the pen was unquestionably a moral victory, the simple fact was that New Mexico wasn't a particularly death-happy state like, say, Texas or Virginia:

Since 1979, in New Mexico:

• 211 death penalty cases filed
  
• 203 were resolved by the end of 2007
  
• 9 cases were dismissed before trial
  
• 47.8% of the resolved cases ended with a plea bargain and a sentence less than death
  
• 46.9% of the resolved cases went to trial
  
• 25% of the resolved cases had a penalty trial
  
• 15 people were sentened to death
  
• 2 defendants remained on death row still challenging their death sentence
  
• 1 defendant was executed (after dropping his appeals).

Monday Roundup

That has a strange ring to it.

You'll have to forgive me, I was in Durham, North Carolina this last weekend for the Full Frame documentary film festival. There were scores of intensely beautiful and moving films there, several that focused on human rights concerns around the world. But there were two in particular that are appropriate fodder for the blog:

• The Visitors follows a bus-full of women who travel from New York city upstate to visit their loved ones in prison every weekend. It was a powerful portrayal of love, devotion, and loneliness, as one of the women remarks, "I'm doing my time, too."
• Unit 25 (Unidad 25) follows Simon Pedro, an Argentinian convicted of stabbing a man. What makes Simon's story interesting is that he has the right to choose where he will serve out his sentence. His family convinces him to choose Unit 25, which gives prisoners "relief from customary prison horrors" in exchange for their embrace of Christianity while in prison.

I just discovered the website www.thousandkites.org, a dialogue project dedicated to reforming the criminal justice system, thanks to Twitter user @prettytoes.

Miguel Roman was exonerated in Connecticut after serving 20 years for a murder DNA now proves he didn't commit. He's the 235th person exonerated by DNA testing nationwide.

The Connecticut legislature's judicial committee voted to approve a bill to abolish the death penalty in that state. The bill will be sent to the floor for a vote. Connecticut and New Hampshire are the only two states in New England that still have the death penalty.

SentLaw reports that Ohio's death row is getting smaller, noting that the row shrunk by 15 people last year, either through executions or successful appeals. Related to that, Brett Hartmann was scheduled to die tomorrow in Ohio for a murder, but his execution was stayed. The three-judge panel that granted his reprieve specifically mentioned that they were awaiting the outcome of Osborne in the Supreme Court, which will determine whether inmates have the right to post-conviction DNA testing.

Finally, as you probably already know, Iowa's Supreme Court struck down the state's ban on gay marriage as unconstitutional. (File this loosely under Constitution and it's okay to blog about it here.)

IPF Files Amicus Curiae Brief on Comparative Bullet Lead Analysis Issue

IPF was recently appointed as the "point" office for coordinating work in Florida cases where the FBI provided false or misleading trial testimony related to Comparative Bullet Lead Analysis (CBLA). In this role, we filed an amicus curiae (friend of the court) brief in a death penalty case to assist the Florida Supreme Court in its review of a CBLA issue in that case and others that will come in front fo the court as we move forward.

Here is our press release with more information about the filing:

Innocence Project of Florida Files Amicus Brief with Supreme Court of Florida

IPF Urges Court to Allow Defendants to File for New Trial Based on FBI Junk Science

Today the Innocence Project of Florida (IPF), along with The Innocence Network, filed an amicus curiae brief with the Florida Supreme Court in the case of Wyatt v. State of Florida. IPF is urging the court to allow inmates, including Mr. Wyatt, the opportunity to present to the trial court recently received letters from the Federal Bureau of Investigation indicating that its agents gave false and misleading trial testimony regarding Comparative Bullet Lead Analysis (CBLA).

For over forty years, the Federal Bureau of Investigation (FBI) performed CBLA, which purported to be able to "match" bullets found at a crime scene to bullets linked in some way to criminal defendants (i.e., bullets found at a defendant's home). In its most egregious form, CBLA was used to show that the two sets of bullets were manufactured at the same time or even came from one particular box of bullets. In other cases, the FBI told juries that two bullets came from the same batch of lead at the same factory, without also telling them that as many as 35 million bullets may have also been made from that same batch of lead.

"When an FBI expert told a jury that they could link a bullet from a crime scene to a single box of bullets owned by a defendant, the jury surely believed it," said Bobbi Madonna, Staff Attorney for IPF. "What they weren't telling juries is that this conclusion was not at all based in science and should have never been allowed inside a courtroom."

The FBI in 2005 discontinued the use of this procedure. A 2007 exposé conducted by 60 Minutes and the Washington Post showed that FBI agents often grossly exagerated the probative value of its CBLA conclusions at trial, which almost certainly misled juries and tainted verdicts.

"There had been some criticism and some skepticism developing about CBLA," noted Seth Miller, Executive Director of IPF. "But despite these criticisms, the FBI stood by their technique and their baseless conclusions until very recently."

In 2008, the FBI partnered with a Joint CBLA Task Force with the purpose of investigating every case in which they provided CBLA testimony. They have so far identified roughly 1,500 cases natiowide where CBLA testimony was presented at trial and have analyzed 156. Of those 156, the FBI has admitted to providing misleading testimony to the jury in 96 of them. The FBI began issuing case-specific letters in mid-2008, admitting that its agents provided improper testimony that likely prejudiced the trial. A disproportionate number of those letters--20 of the 96 total letters sent thus far--were issued to Florida inmates.

Under Florida law, an inmate not on death row has two years from the time that "new evidence" comes to light to file for a new trial based on that evidence. For death-row inmates, that window shortens to just one year. IPF wants the court to find that an inmate's clock for presenting a CBLA-based claim should "start running" when they receive their individual letter from the FBI, rather than choosing an earlier time when generic criticisms of CBLA began surfacing.

"What the Joint Task Force is doing is tremendously important. These letters are the product of their work and they mark the first time the FBI has acknowledged that they gave false testimony in individual cases," said Miller. "The ongoing unprecedented collaborative efforts between the FBI and other innocence organizations around the country to right these wrongs will only have value if the court provides the recipients of these letters the chance to prove that the FBI's false testimony tainted their trials."

Jimmy Ates, an IPF client and one of the 20 Florida men whose cases were tainted because of this false CBLA testimony given by the FBI, had his conviction overturned in December 2008 based on one of these letters from the FBI disavowing the testimony.

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

What if DNA evidence from a crime scene could tell us what the perpetrator looked like?

That question is the taken from a new post over at the Change.org Criminal Justice blog. The post is inspired by an article in the Wall Street Journal, that explains how researchers at Pennsylvania State University performed a study attempting to link specific genes to "phenotypes," or their physical expressions. What this means, then, is that scientists might be able to tell, roughly speaking, a person's physical characteristics by examining their DNA.

As Matt Kelley, the author of the post points out, there is much reason for alarm here. As he says, and as we have noted before, there is cause for concern over "the propensity of criminal justice agencies to use scientific methods before they're ready." He adds, "The U.K. and the Netherlands are already using some form of these tests, as are some U.S. states. Germany has outlawed the practice, along with Indiana, Wyoming and Rhode Island."

Lastly,

The WSJ reports that researchers are able to predict eye color 70-90% of the time and skin color 46% of the time. These numbers aren't strong enough to rely on. Wrongful convictions happen - and real perpetrators get away - when faulty or limited science puts police on the wrong track in those crucial first few days after a crime. I agree that these tests could be helpful in some cases to confirm other evidence, but can we guarantee that genetic composite sketches won't be become simply another form of unreliable forensic science?

The question is when and whether this will become more accurate than other methods of identification, and whether this technique can be used without any illusions of its accuracy. The worry is that juries might hear DNA evidence and assume the practice is close to 100% accurate, rather than the more pitiful, but more truthful, measure of its accuracy.