Thursday, October 30, 2008

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

Wrongful Convictions Just
Keep Coming Out, Part 5

Many people believe that wrongful convictions-which is defined as when innocent people are found guilty and sent to prison for crimes that they never committed, are rare. In fact, they are more common than most realize. According to a statistic in Oprah magazine, there are currently two million-plus people enmeshed in the criminal justice system in one way or another; in prison, on parole, or on probation. If just five percent of those people are innocent, that number would be staggering.

It is not far fetched to believe that that is the case. However, there is good reason to believe that the number is much greater than that. Here are some of those reasons: Across the country, there have now been 223 people who have been proven innocent by post conviction DNA testing. DNA is only available in 10% of all serious felony cases. Yet the systemic deficiencies which lead to wrongful convictions in the DNA cases are present in the non-DNA cases as well. It is just that there is no biological evidence to test.

Additionally, according to e Innocence Project, a full third of the cases that they look into which involve DNA have to be closed because the DNA has either been destroyed or lost. Were that not so, the number of cases which were exposed as wrongful convictions would be considerably higher. It is much more difficult to prove innocence through methods such as finding new evidence, uncovering evidence
which had been hidden from defense attorneys by prosecutors, and eyewitness identification recantations, particularly given the fact that lawyers who have the means and the will to take cases for free are rare, and that it is even more difficult to find investigators
who will do the leg work necessary to uncover evidence.

Hence, many wrongful convictions will never be uncovered. Over the course of the sixteen years that I was wrongfully incarcerated,
I did time with six people who were proven innocent before I was: Lazaro Burts, Sami Leka, Dennis Halstead, John Kogut, Jose Morales, and Reuben Montalvo. Roy Brown and Sam Swift were cleared after me.

In order to demonstrate that wrongful convictions are more common than most of us realize, I began the series Wrongful Convictions Just Keep Coming Out several months ago. This is the fifth installment of that series. As more cases come out, I will keep reporting them.

James Owens

James Owens was wrongfully convicted of a murder in 1987 and served twenty years in prison in Maryland before being proven innocent by DNA. The facts of his case are taken from an article by Melissa Harris published in the Baltimore Sun on Oct. 16, 2008: “Twenty years
after a jury convicted James L. Owens of a murder he said he didn’t commit, prosecutors yesterday dropped all charges against him in his retrial, making him the seventh person in Maryland to be ordered freed because of DNA evidence. Owens’ and Thompson’s attorneys say that the men were convicted on a false confession, and unreliable science and jailhouse informants.

The key to Owens’ freedom was a sample of genetic material taken from the victim 20 years ago, before DNA testing was available,
which was saved by the medical examiner’s office and tested in 2006. The new analysis showed that the genetic material didn’t come
from Owens or James Thompson Jr., who testified two decades ago that he was present when Owens raped and killed Colleen Williar,
24, in her bed in Southeast Baltimore. Five witnesses, including two jailhouse informants, were dead. Thompson, who recanted
his testimony almost immediately a er the 1988 trial and whose conviction in Owens’ slaying is on appeal, was refusing to testify. And Baltimore police destroyed the other physical evidence in the case, including the alleged murder weapon and pubic hair collected from the victim’s body, because the case had been closed so long ago.

Prosecutor Cohen initially objected to the release of the sample for testing, but he joined the defense’s request for reconsidering the case after the results came back. Owens, the first person sentenced under the state’s life without the possibility of parole statute, remained locked up in the meantime. Yesterday, Cohen declined to say whether he believed Owens was innocent. He also declined to say whether he would agree to a new trial for Thompson, 49, who is serving a life sentence, because his appeal is pending before the state’s highest court.

The victim’s mother, Carolyn Case, cried as Cohen announced the decision to drop the charges. She said the victim’s brother had been one of the people who discovered Williar’s nude body, stabbed and beaten in her O’Donnell Heights row house Aug. 2, 1987. She said he later committed suicide. ‘They’re both as guilty as can be,’ Case, 65, said, referring to Owens and Thompson. ‘Everyone has forgotten about my daughter. ... I have a life sentence.’ Outside of the prison, James Owens said ‘You can’t give me that time back. You can’t give me that back. That’s all I got to say.’Thompson, who worked at a gas station, first appeared as a witness in the case. He had come forward with the murder weapon, a switchblade knife, after police posted a $1,000 reward for information. During questioning, police accused him of participating in the crime, and to save himself, he fingered Owens, Thompson’s attorney, Suzanne Drouet, told The Sun in 2006.

But while on the witness stand, Thompson, to the defense’s surprise, provided information putting him at the scene of the crime. Mercer said police coerced Thompson’s statement by implying that he was in severe trouble but that he could avoid charges by helping convict Owens. After Owens’ trial, however, Thompson was charged. A key piece of evidence at his trial was forensic testimony matching pubic hairs found at the scene to Thompson. However, Cohen acknowledged yesterday that the analysis done in the late 1980s is no longer considered reliable enough to match a hair to a specific person.

Mercer said that the sample, which he said was of sperm, has been used to clear one other man detectives identified as a suspect early in the investigation but that it could not be used to positively identify the killer. ‘The profile is of the paternal DNA, which is passed from father to son like a last name,’ Mercer said. ‘It’s only going to put the perpetrator within a paternal line. It’s useful to exclude suspects but not include them.’

Joseph White

Joseph White served 19 years in prison for murder and rape of Helen Wilson in Nebraska before being proven innocent by DNA on October 14, 2008. The facts of his case are taken from The Journal Star on Oct. 15, 2008: “DNA tests weren’t available in 1989 when authorities arrested six people in connection with Wilson’s murder. To avoid potential death penalties, four of the defendants quickly agreed to testify against White in exchange for prison terms. As a group of hard partying drug users, the co-defendants said they broke into Wilson’s apartment to rob her either late on Feb. 5 or early on Feb. 6, 1985.

The jury heard brutal details about how White and Winslow took turns raping the woman while Ada JoAnn Taylor placed a pillow over Wilson’s face.Three who testified, James Dean, Debra Shelden and Kathy Gonzales, each received 10 years in prison and all were released in about four years. Taylor, who also testified for the prosecution, was sentenced to 10 to 40 years in prison and she remains in minimum security today.

A jury convicted White of first-degree murder and sentenced him to life in prison. In Nebraska, a life sentence for first-degree murder means an inmate cannot be paroled. Winslow, who maintained he didn’t remember being in Wilson’s apartment, pleaded no contest to aiding and abetting second-degree murder and he was sentenced to 50 years in prison.

Winslow’s attorney, Soucie, who works with the Nebraska Commission on Public Advocacy, said the co-defendants lied on the stand. He faulted the prosecution for cutting ‘sweetheart deals’ with them in order to convict the one defendant who refused to accept a plea bargain. When Winslow saw White get convicted, he accepted his own plea deal, Soucie said. A state law that took effect in 2001 allows people convicted of serious crimes to seek DNA testing if it could potentially exonerate them.

Judge Johnson denied the first motions by White and co-defendant Winslow to get the tests, but the Nebraska Supreme Court later reversed her ruling. The first batch of DNA testing done at the University of Nebraska Medical Center last summer excluded both men. A second batch, involving an additional 43 samples, also excluded them. In addition, DNA found in the apartment did not match the other male co-defendant, nor did it match any of the women co-defendants. What’s more, their original witnesses are falling apart.

In an interview with the Journal Star in August, JoAnn Taylor said she lied on the stand to save her own life. Stratton said Wednesday he and Soucie contacted several of the remaining co-defendants, who also said they perjured themselves. District Judge Vicky Johnson ordered White released on his own recognizance. The prosecution has six months to decide whether to retry him for the rape and murder of 68-year-old Helen Wilson.

Judge Johnson made a second ruling Wednesday that will likely benefit Thomas Winslow, one of White’s co-defendants in the case. The judge ordered Winslow, who is currently serving a 50-year prison term, to be re sentenced. His attorney, Jerry Soucie of Lincoln, will ask the judge on Friday to sentence him to time served. Winslow also has been in prison since 1990. The judge’s rulings followed a hearing about the extensive DNA testing of blood, semen and hair found in Wilson’s downtown Beatrice apartment. The results pointed to a single male
perpetrator and they excluded White and Winslow as that perpetrator. Nebraska Assistant Attorney General Corey O’Brien said in court Wednesday that the test results don’t mean White and Winslow are innocent. They may have still been present while Wilson was raped and suffocated. But at the same time, an absence of their DNA in the apartment casts serious doubts on the eyewitness testimony that helped convict the men.

‘Would it have affected my decision as a juror?’ O’Brien asked. ‘I would be lying to this court if I said it wouldn’t have.’ Gage County Attorney Randall Ritnour said Wednesday the Beatrice Police Department, the Gage County Sheriff’s Office and the Nebraska State Patrol have already reopened the investigation. ‘It’s pretty much all hands on deck,’ he said. The victim did what she could to help indirectly identify her assailant. Wilson’s struggles must have injured the man and he left behind blood droplets that provided his complete DNA profile. One modern resource investigators have is a federal database of DNA linked to known violent criminals. The county attorney declined to say whether the DNA obtained from Wilson’s apartment has been compared to the database.


It is important to review wrongful convictions in order to understand more fully the need for legislative reform. I will start with the Owens’s case. False confessions, which have been the cause of wrongful convictions in 25% of the now 222 DNA proven wrongful conviction, rears its head. Incentivized witnessing, which is when a witness receives a benefit in exchange for testifying against a defendant, is present in
this case as well. Nationwide it has caused wrongful convictions in 15% of the now 222 DNA exonerations. Police destroying evidence, in this case, highlights the need for a standardized evidence preservation system. Prosecutor Cohen’s refusal to acknowledge Owens’ innocence represents a continuation of the pattern of many prosecutors, even after new evidence is brought forward establishing innocence, not to acknowledge that innocence. Notwithstanding that declining, it seems obvious to me: the DNA proved that the testimony of Thompson was, as he himself said immediately afterwards, false, and that somebody else raped and murdered the victim.

This case also illustrates that we should not be lulled into a false sense of security regarding a conviction’s validity due to the presence of a lot of unreliable evidence. Stated differently, unreliable evidence does not suddenly become stronger simply because there is a lot of it. With respect to the co-defendant, Thompson, initially coming forward with what was purported to be the murder weapon in order to collect the $1000 reward, and then having the police turn on him, it is somewhat reminiscent of the case of Ellen Reasonover which I covered previously
in The Guardian. Reasonover called the authorities to report that she might have seen the perpetrators only to have them turn on her and ultimately arrest her for it.

If that is going to be the attitude of the police when people come forward to give helpful information about a crime, then citizens, in turn, will have to rethink doing so. It is a sad day indeed when people have to remain silent about a crime in order to protect themselves from police turning on them and being falsely charged.

Yet another common theme present in this case, which has occurred in many other cases, involves the victim’s family members, having originally been told by the police and prosecutors that the defendant committed the crime and then believing it for years, being unwilling to accept once and for all that it has been proven that the defendant is innocent.

In the White case, we see the importance of giving prisoners the right to DNA testing at any stage of the process, and the extreme importance of judges granting defense motions seeking DNA testing. There is nothing to lose by allowing testing; either the results will confirm guilt or it will prove innocence. It is inexplicable that every state in the country does not have a law on the books guaranteeing prisoners the right to testing.

The theme of incentivized witnessing being unreliable shows its head in this case. The case also shows how the death penalty is connected with injustice in more than just one way. There was an unusually large amount of DNA-testable material in the case. In light of none of it matching any of the people charged in the case, it seems clear that all of them were innocent. Yet due to the fear of being executed, they pled
guilty to crimes that they did not commit and falsely testified against White. Were there no death penalty involved, maybe they would not have done so. Additionally, this case reaffirms the idea that innocent people can be found guilty of capital murder and thus be exposed to the
possibility of execution. White is very lucky in that he was not sentenced to death.

The theme of prosecutors being unwilling to admit that a defendant is innocent even after evidence of their innocence surfaces, again shows its head. There were 43 samples of DNA in the second batch tested alone, to say nothing of the first batch. What more does the prosecutor
want, or does innocence simply not exist in his mind once an arrest has been made?

In many cases where DNA shows the defendant’s innocence but does not initially identify the real perpetrator, the police do not attempt to solve the crime. I would like to applaud the police department for reopening the case and looking for the real perpetrators. One good thing about all of that DNA having been gathered and preserved is that once evidence is developed to give probable cause to the belief that that person committed the crime, DNA testing can be done to either show guilt or innocence. I would like to see the criminal justice system be more scientific about the search for the truth, rather than about winning at all costs, adversarial, and based upon speculation or inference.
That is why it is so important for reforms to be passed by our legislators across the country.


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