Thursday, June 5, 2008

Wrongful Convictions Just
Keep Coming Out, Part II

Jeff Deskovic

Several issues ago, I wrote an article entitled “Wrongful Convictions Just Keep Coming Out.” In this issue, I will do a follow-up to that article, further illustrating that theme, with the purpose in mind of trying to raise the awareness of society to the problem of wrongful convictions. People will come to realize, with each passing instance, that wrongful convictions are not rare, that this really can happen to anyone, and does. Furthermore, there is no geographical location which is immune from it happening. The thought “That could never
happen here”, or “that could never happen to me”, are unfortunately myths that we as a society cannot afford to have.

It is also my intention to raise the awareness of those who are in a position to directly do something about it: state senators and assemblypersons in passing bills to protect the innocent; policemen and others in law enforcement, to be sure not to coerce confessions, to be careful when conducting lineups and photo arrays so as not to taint them, with the result of a misidentification occurring, tunnel vision and overzealousness; prosecutors in being on the lookout for the possibility of the police having engaged in the aforementioned, as well as not engaging in prosecutorial misconduct and playing things straight in the courtroom, knowing that defendants are not immune from being wrongfully convicted if they are innocent; and judges in ensuring that trials are fair, and in ruling on the merits of appeals.

Periodically, as more cases are exposed, I will write follow-up articles. The following are major cases of wrongful convictions that have come out since the first installment of this series.

James Woodard was released on April 29, 2008, after spending more than 27 years in prison in Texas for a 1980 murder he has been cleared of by DNA. Woodard was sentenced to life in prison in July 1981 for the murder of a 21-year-old Dallas woman found sexually assaulted and strangled near the banks of the Trinity River. The 27 years he served wrongfully make him the longest-serving wrongly convicted man in the nation to be exonerated by DNA testing.

He is also the 18th person in Dallas County to have his conviction overturned by DNA, which is a figure unmatched by any county in the United States, according to The Innocence Project.

Overall, 31 people have been formally exonerated through DNA testing in Texas, also a national high. at does not include Woodard and at least three others whose exonerations will not become official until Gov. Rick Perry grants pardons or the Texas Court of Criminal Appeals formally accepts the ruling of lower courts that have already recommended exoneration.

The following report was filed by Schuyler Dixon, of the Associated Press, on Woodard’s case: He was convicted primarily on the basis of testimony from two eyewitnesses, said Natalie Roetzel, the executive director of the Innocence Project of Texas. One has since recanted in an af-fidavit. As for the other, “We don’t believe her testimony was accurate,” Roetzel said. Like nearly all the exonorees, Woodard has maintained his innocence throughout his time in prison.

But after filing six writs with an appeals court, plus two requests for DNA testing, his pleas of innocence became so repetitive and routine that “the courthouse doors were eventually closed to him and he was labeled a writ abuser,” Roetzel said.

“On the first day he was arrested, he told the world he was innocent ... and nobody listened,” Jeff Blackburn, chief counsel for the Innocence Project of Texas, said during Tuesday’s hearing. “James Lee Woodard stepped out of the courtroom and raised his arms to a throng of photographers. Supporters and other people gathered outside the court erupted in applause. “No words can express what a tragic story yours is,” state District Judge Mark Stoltz told Woodard at a brief hearing before his release. “I thank God for the existence of the Innocence project,” Woodard, 55, told the court. “Without that, I wouldn’t be here today. I would be wasting away in prison.”

Walter Swift was exonerated on May 21, 2008 by DNA after serving 26 years in Michigan for rape. The Innocence Project, which represents
Swift, released the following report about the case:

For 26 long years, Walter Swift has held onto hope that the truth would finally come out and he would be exonerated. Today, his unimaginable nightmare is ending but he is just beginning the long road to rebuild his life,” said Barry Scheck, Co-Director of the Innocence Project. “He was convicted based on a deeply awed and completely unreliable eyewitness identification. Even at the time of his trial in 1982, there was convincing evidence that he was innocent, but his court-appointed attorney failed to present that evidence. ”

The case stems from a September 1982 home-invasion rape and robbery in Detroit. The victim was a pregnant white woman who was at home with her seven-month old child. She described her attacker as a 15-to-18-year-old African-American man with unusual braids and “poofs of hair” on his head, but no facial hair. After the crime, police asked her to look through hundreds of photos. She selected the photos of seven men who she said resembled the assailant, and the police officer handling the case randomly decided that the next person the victim selected would be brought in for a live lineup.

That person was Walter Swift, who was several years older than the victim’s description of her attacker, had a pronounced black eye at the time of the crime (which was not part of the victim’s description), had a mustache and long sideburns at the time of the crime, and always had closely cropped hair with no braids. Swift - but none of the other seven men whose photos were selected by the victim – was brought in for a lineup, and the victim was told that the eighth man she selected would be in the lineup.

She selected Swift in the lineup, saying that she “believed” he was her attacker. The police officer who initially investigated the case and handled the photo identification believed that the victim’s identification was uncertain and unreliable – but at Swift’s trial, the jury heard only that she selected his photo and his photo alone, that she identi-fied him in a lineup, and that she was certain he was the assailant.

In addition to the flawed and unreliable eyewitness identification, forensic testing before Swift’s trial supported his claims of innocence – but the jury never heard that forensic evidence. An analyst who tested semen from the perpetrator determined that if the sample she was testing was clean enough (meaning it was predominately semen from the perpetrator, which it likely was), Swift could not have been the perpetrator based on his blood type.

That analyst was never called to the stand at Swift’s trial, and she was shocked to learn in recent years that Swift had been convicted.
Swift’s court-appointed trial attorney, Lawrence R. Greene, did not adequately pursue the identification procedure during the trial and did not present the exculpatory forensic evidence. Greene has been suspended from practicing law several times in just the last decade based on misconduct and inadequate representation in other cases.

From the first time police questioned Swift about the crime, he had an airtight alibi from a woman he was dating at the time. The woman, whose relationship with Swift ended two decades ago, maintains that she was with Swift when the crime was committed, and she had documentation at the time of trial (shopping receipts) corroborating her story of their whereabouts. She has been a law enforcement officer for 24 years and has no motive to fabricate an alibi for Swift. Swift had been denied parole five times since 2000 because he would not admit to a crime he didn’t commit.

The Innocence Project accepted Swift’s case 10 years ago, hoping to conduct DNA testing on crime scene evidence that could prove his innocence. The evidence had all been lost or destroyed – but the Innocence Project began to uncover evidence about the eyewitness
identi-fication procedure, the forensic testing, Swift’s alibi and the depths of his inadequate defense counsel at trial. “Over the course of a decade, each layer we pulled back led to more evidence that Walter Swift is innocent,” said Innocence Project Staff Attorney Olga Akselrod.

“We also began to work with people throughout the criminal justice system, some of whom were directly involved in convicting Mr. Swift, who were becoming increasingly convinced of his innocence. It’s highly unusual to have the original prosecutor, the police officer who investigated the case and the lab analyst who handled the case all come forward to support an innocent prisoner – but that’s exactly what happened in this case.”

In an extraordinary development, the prosecutor who convicted Swift, and the police officer who initially investigated the case, both assisted the Innocence Project in seeking to vacate Swift’s conviction. Both filed formal affidavits, as did the alibi witness. The Innocence Project presented all of the evidence in the case to Wayne County Prosecuting Attorney Kym Worthy, whose office investigated it thoroughly.

“The Prosecuting Attorney’s office looked at this case carefully and closely. Each piece of evidence needed to be analyzed on its own and in combination with the other evidence, and the Prosecuting Attorney was extraordinarily thoughtful and reached the right conclusion,” Scheck said. Barry Scheck said, “Walter Swift wasn’t the first person in Michigan who was wrongfully convicted based on eyewitness misidentification, and he won’t be the last. A bill is pending in the Michigan Legislature that would make sure photo arrays and lineups
are conducted properly, based on what decades of scientific research and practical experience shows can reduce misidentifications.

The Legislature should make this bill a priority and pass it promptly,” Scheck said. The following account of the Levon Jones case is taken from an article written by Titan Barksdale of The News And Observer: In 1993, a Duplin County jury convicted Jones, now 49, of first-degree murder in the 1987 shooting death of Leamon Grady, a local bootlegger. The jury also convicted him of robbery with a dangerous weapon and conspiracy.

District Attorney Dewey Hudson, the top prosecutor in a district including Duplin, dismissed all of the charges against Jones on Friday, saying his star witness’ recent recantation of trial testimony was the main reason for his decision. The recantation of Lovely Lorden, Jones’ then-girlfriend, left Hudson with little evidence to put before a jury again. The big break in Jones’ bid for freedom came from a federal judge in 2006.

U.S. District Court Judge Terrence Boyle handed down a strongly worded order, taking Jones off death row and calling for a new trial. Boyle called the case against Jones weak and was critical of the performance of Jones’ trial attorneys, Graham Phillips Jr. and Charles C. Henderson. “Jones received two appointed attorneys that spent virtually no time or effort investigating the offense or his background,” Boyle wrote in the order. Jones has maintained his innocence, and members of his close-knit family, many of whom live in Duplin County, said they believed him without a doubt. Friday, they all wanted a piece of Jones during his first minutes of freedom. Emerging from a back hallway at the Duplin County jail, Jones, smiling widely, was met with an ovation. One by one, family members hugged Jones tightly.
Reporters could detain him only briefly before he whisked past them to get outside of the jail. “I’m ready to go,” Jones said. “I’ve been here too long.”

Jones said he expected to be a free man someday, although the N.C. Supreme Court upheld his conviction in 1996. Jones’ 15 years on death row is the longest stint of any condemned inmate in North Carolina who has been freed. During a news conference, Hudson defended his prosecution of Jones, laying blame on the court system. “Any time the court system takes so long to resolve these important legal issues, the [district attorney’s] office is placed in a tough position,” Hudson said.

Hudson is not convinced that Jones is an innocent man, though his attorneys and supporters say otherwise. Jone’s time spent on death row is followed closely by that of Glen Chapman, who was cleared and recently released from death row after 14 years there.


Each of these cases brings a variety of thoughts to my mind. I will discuss them in the order in which the cases are mentioned. The Woodard case illustrates that no matter how long a conviction may have stood, that is no indication of it’s reliability. It simply means that no evidence as yet has come out regarding innocence. I say this being well aware that there are guilty people in prison, and that there are some who falsely claim innocence. Thus, courts need to continue to provide a forum from which those who are alleging innocence can have their claims heard and viewed objectively, regardless of the amount of time that has passed or the so-called “Finality Of Convictions”, and the denial of appeals based upon procedure, particularly when innocence as raised, is going in the opposite direction of guilt and innocence being the bedrock of the criminal justice system. We need more review mechanisms for the wrongfully convicted, as I have advocated in the petition on my website,

In my view, while it can clearly be said that Texas has had a big problem with wrongful convictions often occurring there, currently leading the country in the number of exposed cases, that by no means indicates that other states do not have a similar, or as severe a problem. It merely means that Texas has had a lot of them exposed. Since DNA is only available in 10% of all serious felony cases, and it is hard for wrongfully convicted prisoners to obtain quality legal representation, there is no telling how many people have been wrongfully convicted or which states are truly the worst at that. The fact that a state has not yet had an exoneration doesn’t mean it has been infallible. It merely means that they have not, as yet, been uncovered.

The case reaffirms the unreliability of identification testimony, which to date has accounted for 75% of the now 216 DNA exonerations, as well as the insufficiency of the appellate process in protecting society. The need for legislation increasing the accuracy of identifications remains urgent. I find the two denials of requests for DNA testing to be particularly reprehensible, and very reminiscent of former Westchester District Atttorney Jeanine Pirro’s actions in blocking requests for DNA Testing in my case. We need legislation granting each
prisoner the unequivocal right to DNA Testing whenever there is material to test.

The level of deficient representation that Walter Swift received serves as an important illustration of the need for each state’s government to adopt a standardized system of public defense to allow for more streamlining, quality control, and oversight, as well as the need to properly fund the public defender’s office, and to limit the amount of cases that lawyers are allowed to take at one time. In the Bronx, it is not unusual for a public defender to simultaneously represent 120 defendants at one time. It is also important to weed out bad attorneys who continue to
be employed as public defenders, thus setting the stage for future inadequate legal representation and with it more wrongful convictions.

I have mixed feelings regarding the original prosecuting attorney and the police officer. In order to learn best the lessons of this case, the good should be seized upon and emulated, and the bad should not be repeated. On that note, I laud the prosecutor and the policeman for being willing to admit an error and assist in an exoneration that they had directly participated in. It is far too rare. Prosecutors and policemen all
over should take note and follow them in this whenever the facts and circumstances in a case warrant it, rather than fighting tooth and nail to preserve a bad conviction at any cost.

On the other had, both the policeman and prosecutor were aware of how shaky the identification of Swift was, and this should have set off red flags, as should have the other evidence of innocence. The fact that they could ignore alibi evidence of a law enforcement officer, is mindboggling. Additionally, in general, alibi evidence being discounted by police, prosecutors, judges, juries, and appellate judges on the state and federal level, seems to be a common theme in many cases.

Lastly, the wrongfully convicted being denied parole based upon continuing to maintain innocence, also shows up often. We need to have a law in New York, and across the country, that parole applicants cannot be denied parole based upon maintaining innocence, because to do otherwise is not to take into account the reality that innocent people are wrongfully convicted. To extend a stay of incarceration due to
maintaining innocence is to add insult to injury, and to continue an injustice. My stay in prison for a crime I was later proved innocent of by DNA, was extended for a year by the parole board because I would not make an admission of guilt.

The Levon Jones case is further evidence that innocent people will be sentenced to death if we have a death penalty, and therefore the need to keep it out of New York, and have it repealed across the country is paramount if we don’t want to execute innocent people. The theme of bad lawyering raises it’s head, as it did in the Swift case. The prosecutor expressing doubt regarding Jones’ innocence, is reminiscent of the habit of many prosecutors and policemen: not wanting to admit their error or acknowledge that an innocent man was wrongfully incarcerated.
For the prosecutor to then try to blame the court system is disingenuous, because a prosecutor has responsibility in the decisions that the court makes, because they are arguing positions in front of it. Rather than trying to shift blame, maybe they should apply introspection to their actions in fighting against Levon Jones.

I do think that courts should take a lesson and be more careful in reviewing appeals, because it really should have never gotten to the point that Jones was incarcerated for 15 years on death row. Lastly, the movement back in 1997, when the United States Congress passed, and the President signed into law, a procedure cutting down the length of time that someone on death row could spend on appeals, can safely be said to be foolhardy, as has procedures limiting appeals.


Anonymous said...

Janet Difiore is a failure. She has allowed our County, City and Village Governments to run amuck. Corruption in Westchester County is staggering. How can we trust a DA who is married and arranges for a no show, tax funded job for her boy friend Peter Viviano.
This woman is not a prosecutor but a politician who has nothing else in mind but whats in it for her self. Shame on you Janet, you have failed the people of Westchester.

Anonymous said...

The above poster is right. I voted for Janet Difiore and regret it. She has shown in my opinion that she is a racist. She has turned her back on the black and latino communities and it shows. Police brutality is condoned by her and her office. Men and woman are being brutalized on her watch and all she does is open inquiries that lead to nothing. The worst thing of all is that Janet Difiore has been prosecuting people who have been brutalized and badly beaten by her police buddies. Janet Difiore should step down!

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