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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Judges' views on capital punishment

SentLaw has a good post this morning titled, "Sixth Circuit concurrence talks about capital punishment's economic costs." They excerpt an Ohio judge's concurrence in a case that deals with capital punishment; his decision gives insight and analysis of the issue from a judge's perspective. It's a tad bit long for an excerpt to post here, but an extremely interesting and important read:

Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting). At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.

The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities. Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.

An article today in the Cleburne Times-Review out of Texas interviews district judge "Kit" Cookie about his views on the death penalty. They square with the rest of what we have been saying previously, but it's good to hear it repeated by a judge, a person who has sat on capital cases, and had his honest doubts.

“I was very pro capital punishment at the time,” he said. “I wouldn’t take it off the books now. There are cases that probably deserve it. But generally speaking, life without parole is more palatable.”

Cooke has said as much at legal gatherings.

“I did a lecture for an advanced criminal law course where all the top lawyers in Texas come together every year,” Cooke said. “They had me talk on the death penalty, and I raised some strong objections to it. That was the first time I know of that a judge had spoken out about it. I look at it with a little more critical eye than when I started.”

You might also be interested in this article from CNN from early March on states looking to cut back the death penalty because of its costs. As well, see this editorial in the Boston Globe today about the costs of capital punishment.

The Coverdell Grant Program for forensic science

The Innocence Project in New York recently released a report titled, "Investigating Forensic Problems in the United States: How the Government Can Strengthen Oversight through the Coverdell Grant Program." From the executive summary:

In 2004, Congress established an oversight mechanism within the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities.

[...] Nearly five years after Congress passed legislation to help ensure that forensic negligence or misconduct is properly investigated, extensive independent reviews show that the law is largely being ignored and, as a result, serious problems in crime labs and other forensic facilities have not been remedied. In short, the U.S. Department of Justice’s Office of Justice Programs (OJP), which is responsible for the program, has failed to make sure that even the law’s most basic requirements are followed.

Yesterday, the blog for TheHill.com paraphrased some of the results of this study, and reiterated the Innocence Project's call for increased oversight or, rather, they called for the Obama administration to increasingly take advantage of the grant program that Congress created five years ago. One particularly egregious fact they quote is this: only 13% of designated oversight entities meet the federal law’s forensic oversight requirements. If you were a defendant, would you want to take a 1-in-8 chance that the forensic lab that processed the evidence in your trial was subject to proper oversight?

Finally, "Under new leadership, the Department of Justice can – and should – make sure crime lab problems are properly addressed, which will enhance the public safety and help prevent wrongful convictions." Remember, working to correct problems in order to preclude wrongful convictions is cheaper than housing wrongfully incarcerated individuals.


No sooner had The Hill run this post than Grits for Breakfast published some presentations from the public meetings held by the National Academy of Sciences, meetings held to address the problems plaguing forensic science labs around the country. They link to this presentation in particular that calls for forensic tests "to be as blind as possible, for as long as possible," and which contains the shocking graphic on common error rates linked above.

You'll notice that firearms and fingerprints, while among the most reliable forensic testing methods, still yield erroneous conclusions around 1-5% of the time. Some toolmark and bitemark tests, meanwhile, are reliable less than half of the time. That report also refers to several studies that found that, for example, when a scientist was provided with "context" for certain samples – context such as, "The suspect has already confessed, here's his hair and a hair from the crime scene" – that error rates were much higher. Those who conducted the psychological studies could induce false positives by giving false context, leading the forensic scientist to believe certain conclusions before they came to them independently.

All of these scientific studies point to the sad state of the crime labs in this country. Scientists might think so, but they are not immune to psychological tendencies – such as suggestibility – that afflict every human being. Independent oversight and common-sense reforms are the necessary solution to the problem.

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Prosecutorial Misconduct: What's Good for the Goose Should be Good for the Gander

In the wake of the former Sen. Ted Steven's conviction, election loss, vacation of his conviction, and dismissal of his charges for good, we learn that the federal judge in the case is simply appalled at the depths to which the prosecutors went to obtain the conviction against Stevens. From the Washington Post:

During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

Introducing false evidence? Check. Withholding exculpatory evidence? Check. Mishandling witnesses? Check. So now these rogue prosecutors are being investigated, as they should be, and this investigation may lead to criminal charges and eventual prison time if convicted. Way to go justice system.

So while the talking heads and political hacks are vilifying these prosecutors and trumpeting this is as a vindication of Stevens, this situation begs some important questions that the traditional media seems unwilling to touch:

How come we don't get the same remedial reaction to prosecutorial misconduct when the criminal defendant is somethone other than a seven-term US Senator or a wealthy lacrosse player? How come people are executed every year in this country despite equally, or even more compelling meritorious claims of misconduct by prosecutors?

Answering these questions would get to the heart of the imbalance and inequality that exists in our criminal justice system. It's an uncomfortable conversation, one that will inevitably get into race and class issues, as well as cause people to view the State's role in criminal prosecutions in a more skeptical way. Despite all this, it is a conversation our criminal justice system so desperately needs.

Many would be surprised to know that discipline of Florida prosecutors for misconduct is virtually unheard of, and criminal sanctions for misconduct is not something that has been entertained in Florida in run-of-the-mill criminal cases. Some of these are almost assuredly death cases, where the stakes are highest to get a conviction, which often leads to the highest incidence of misconduct.

So while we say to Judge Sullivan that it is is about time someone holds the prosecutorial community to task for misconduct that is hurting (and possibly responsible for wrongfully convicting) defendants and tainting the otherwise ethical work of others in the prosecutorial community, such action needs a broader reach within the criminal justice system.

On this point, just today, the Justice Project, out of Washington, DC, issued a report on the prevasiveness of prosecutorial misconduct within the criminal justice system and what to do about it.

A Late Friday Roundup

Witch Hunt airs this weekend on MSNBC. Set a reminder for Sunday at 10 PM!

Public defenders in Chicago, their coffers depleted, are now asking a judge to dismiss a death case. TalkLeft relays, "Without money to retain expert witnesses for their client who has serious mental issues and is facing the death penalty for a double homicide, they can't provide an adequate defense and comply with the Sixth Amendment's requirement of a fair trial."

I once heard an argument from a public defender against cutting the budgets of their office. More specifically, they were protesting the cuts to the PD's office as part of "across the board" budget cuts. Across the board cuts seem fair on their face, except for when the lawyer pointed out that endangering the accused's right to defense challenges his Constitutional rights in a way that cutting his access to education or healthcare doesn't. Although it's an uneasy conclusion, I find it hard to argue with.

GenPop.org tells us about the job cuts that corrections officers around the country are facing:

It seems like every State is laying off or cutting the wages of corrections workers. This is bad not just for the workers themselves, but for inmates and inmates' families. If the prison population remains the same but the number of correctional officers is cut, the remaining officers are going to have a harder job and be under more stress and stressed out cops running a prison is a very bad thing. Article after article keeps popping up about these layoffs and wage cuts.

Kudos to the C.I.A. for closing its secret prisons and kicking out contractors. Operating black sites hidden from public scrutiny and entirely unaccountable – not to mention the activities that allegedly went on inside – represents a staggering effacement of American values.

Finally, the 13th Texas Court of Appeals upheld a $42 million judgment against a private prison company for failing to protect a prisoner who was murdered while in their custody.

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UPDATE II: CBLA Amicus Brief

On Tuesday, IPF received the good news that the Florida Supreme Court sent the case of Thomas Wyatt, a death-row inmate, back down to the trial court for a new hearing on the Comparative Bullet Lead Analysis issue and the jailhouse snitch issue in Mr. Wyatt's case.

This was particularly important because they instructed the lower court to have a hearing on whether the CBLA testimony given at trial against Mr. Wyatt sufficiently prejudiced his trial given the fact that the FBI issued a letter recently saying that its testimony was false and not supported by science.

This ruling preserves the case-specific FBI letters as the paramount newly discovered evidence in these CBLA cases.

You can learn more about CBLA by reading this Washington Post article from 2007 or by reading our amicus brief by clicking here.

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Two more criminal justice documentaries

In response to my previous post about two documentaries about the prison system in America and in Argentina, my colleague Matt Kelley from Change.org's Criminal Justice blog pointed me to two more recent documentaries.

One is Witch Hunt, which has been popping up quite a bit in my Google Reader lately. The documentary tells the stories of regular people who were wrongfully accused, convicted, and sentenced to prison for horrific sexual crimes that they never committed:

Executive Producer Sean Penn presents "Witch Hunt," the story of John Stoll and dozens of other men and women who found themselves ensnared in a spiral of fear, ignorance and hysteria. These working-class moms and dads were rounded up with little or no evidence, charged and convicted of almost unimaginable crimes. Years later, they would find freedom again, but their lives would be changed forever.

Witch Hunt will air on MSNBC this Sunday, April 12, at 10 PM.

The second documentary is Dhamma Brothers. Dhamma Brothers follows the inmates of Donaldson Correctional Institution near Birmingham, Alabama. Donaldson became the first prison in the nation to conduct an extended Vipassana retreat, which entailed physically and emotionally demanding Buddhist meditation for ten days. It bears some striking similarities to Unit 25 (Unidad 25), which I blogged about before, about a prisoner who trades the "customary horrors" of prison for embracing Christianity while on the inside. It's fascinating to see these stories told about a spiritual awakening that takes place inside prison, and the profound effects it can have on inmates.

At least, these stories are a variation on the trite tale of the convict who "finds Jesus" or converts to Islam inside prison: spirituality in the big house is nothing new, except for when it's told in a whole new way in these films.