Thursday, September 17, 2009
Jeff Deskovic
Creation Of A National Institute
Of Forensic Sciences Is Critical
On September 3, 2009, a story appeared in the Daily News regarding Dwight Gomas, who had spent 17 months in Rikers Island in New York for robbery before it came to light that the fingerprints which formed the basis for his arrest did not, in fact, match him.
According to the News, “He was in fact 880 miles away, living in Atlanta, when armed thugs robbed Theresa’s Gold Lynch jewelry store in
Howard Beach in October 2003. A year later, Gomas was arrested for the robbery by United States marshals. Detective Eileen Barrett had
matched a partial index finger print from the crime scene to Gomas, whose prints were on file after an arrest for driving with a suspended license in Brooklyn. It was the only arrest on his record other than a juvenile bust.
A second NYPD detective, Charles Schenkel, confirmed Barrett’s identification, according to court papers. Gomas maintained his innocence
before the grand jury, but was indicted and couldn’t make the $30,000 bail. His Legal Aid lawyer advised him to accept a plea offer of five years in prison, but he refused. Gomas was headed to trial for a Queens jewelry store stickup when a veteran detective routinely checked his identification.
‘When I looked at it, I said, ‘You know what? is is a screw up; this is not his fingerprints,’ said Detective Daniel Perruzza, according to a
court transcript. ‘It looks similar, but ‘similar’ doesn’t cut it in prints. It has to be an exact match,’ Perruzza said. During his 523 days in jail, he lost his spot in a cooking school and his girlfriend and their child moved in with another man.”
As I have long maintained, the idea that people could be arrested and wrongfully convicted for crimes that they are innocent of is quite
scary. But the idea that one could be wrongfully arrested for a crime that happens in another state nearly 1000 miles away is even scarier. Yet it is a reality.
According to The Innocence Project’s website, “A report from the National Academy of Sciences released this year found that fingerprint
analysis was among the forensic disciplines that has not ‘been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.’ According to The Innocence Project, “Stephan Cowans spent more than five years in Massachusetts prisons after a false fingerprint match led to his conviction for a crime he didn’t commit.”
But this problem goes way beyond merely cases in which fingerprint evidence is a factor. According to the Just Science website, which is
a broad-based group committed to having scientific standards in place regarding forensic science so that only scientifically based, sound procedures are the foundation of any forensic evidence and testimony in criminal cases: “Many forensic disciplines have evolved primarily through their use in individual cases and have not been scientifically validated or standardized. Forensic analysts sometimes testify in cases without a proper scientific basis for their findings. Testimony about more dubious forensic disciplines, such as efforts to match a
defendant’s teeth to marks on a victim or attempts to compare a defendant’s voice to a voicemail recording, are cloaked in science but lack even the most basic scientific standards.
Even within forensic disciplines that are more firmly grounded in science, evidence is often made to sound more precise than it should. For example, analysts will testify that hairs from a crime scene ‘match’ or ‘are consistent with’ defendants’ hair – but because scientific research on validity and reliability of hair analysis is lacking, they have no way of knowing how rare these similarities are, so there is no way to know how meaningful this evidence is.
In approximately 50% of DNA exonerations, unvalidated or improper forensic science contributed to the wrongful conviction. But, while DNA exonerations are a window into the effect of unvalidated or improper forensic science contributing to wrongful convictions, DNA does not solve the problem. Experts estimate that only 5-10% of all criminal cases involve biological evidence that could be subjected to DNA testing. In the other 90-95% of crimes, DNA testing is not an option – so the criminal justice system relies on other kinds of evidence, including forensic disciplines that may not be scientifically sound or properly conducted.”
With that background, the need for a National Institute of Forensic Science created by Congress is obvious. Roy Brown spent 15 years in
prison in New York for a murder he was innocent of. Innocence Project Co-Founder Peter Neufeld testified at a Congressional Hearing that,
“‘The forensic dentist [at Roy Brown’s trial] used what was then the prevailing method of comparing bite marks found on a body with the dentures of a suspect,’ said Neufeld. ‘He examined them and decided that he had a match with Roy’s bite. He so testified in court, and Roy was convicted.’”
At the moment, Congress is holding hearings and considering creating just such an entity. Fueling the inquiry is a report that was recently released. According to the Just Science website, “In 2006, Congress appropriated funds to the National Academy of Sciences (NAS)
to thoroughly study the fundamental underpinnings of forensic science and its applications in our criminal justice system. A blue-ribbon NAS panel was formed – including scientists, academics, a retired federal judge, and other notable experts. Over an eighteen-month period, the group held several public hearings and gathered comprehensive research on forensic disciplines.
This Committee on Identifying the Needs of the Forensic Sciences Community released its final report, Strengthening Forensic Science in
the United States: A Path Forward, in February 2009. In releasing their report, the co-chairs of the committee emphasized that there was a consistent theme throughout their deliberations.”
The report says: “The forensic science system, encompassing both research and practice, has serious problems that can only be addressed
by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a
significant infusion of federal funds.”
The report’s key findings include:
• “With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently,
and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” (NAS Report, page S-5)
• “…What is needed to support and oversee the forensic science community is a new, strong and independent entity that could take on the
tasks that would be assigned to it in a manner that is as objective and free of bias as possible – one with no ties to the past and with the authority and resources to implement a fresh agenda…” (NAS Report p S-13)
• “There are great disparities among existing forensic science operations in federal, state and local law enforcement jurisdictions and agencies…
It is clear, however, that any approach to overhauling the existing system needs to address and help minimize the community’s current
fragmentation and inconsistent practices.” (NAS Report, page S-4)
• “Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific
bases and validity of many forensic methods.” (NAS Report, page S-6)
• “A body of research is [also] required to establish the limits and measures of performance and to address the impact of sources of variability
and potential bias.” (NAS Report, page S-6)
• “…The adversarial process relating to the admission and exclusion of scientific evidence is not suited to the task of finding ‘scientific truth’…Judicial review, by itself, will not cure the infirmities of the forensic science community.” (NAS Report, page S-20)” According to that report, here is what reform would look like: “Assessment of validity and reliability:
• The federal government should establish a science-based federal entity or agency, the National Institute for Forensic Sciences (NIFS), to review
both existing and new techniques, devices and assays to determine the extent to which they are scientifically valid and reliable for use in the criminal justice system.
• NIFS should establish standards for reliable application of forensic science disciplines in criminal cases (e.g. match criteria) to ensure the use of forensics within prescribed parameters.
• NIFS should have compliance authority to ensure the discontinuation of invalid or unreliable methods.
Research:
• NIFS should fund both basic and applied research to test the validity and reliability of extant forensic methods, devices and assays; and to
support the development of new technologies to solve crime.
Quality assurance, accreditation and certification:
• NIFS should set enforceable standards for public and private laboratories, as well as for individual professionals, that conduct forensic tests
and examinations intended for use in courts.
• Quality controls and quality assurance programs should be established to secure the integrity of the ultimate forensic product in laboratories
and in courts. This should include (but not be limited to) validation of devices for particular labs; written protocols and procedures; minimum
qualifications, staff training and proficiency testing for personnel; and parameters for data interpretation, report writing and testimony.
Training:
• NIFS should support comprehensive training and professional development in the forensic science field in order to build the capacity for research
and quality assurance, and to bring current and new forensic science personnel into compliance with established qualifications and standards.
Oversight
• The Director of NIFS, in consultation with science-based federal government agencies, should appoint a Forensic Science National Commission
composed of science professionals to set broad research priorities and to promulgate forensic science standards.
• The Director of NIFS, in consultation with science and criminal justice-based federal government agencies, should also appoint an Advisory
Committee to provide input to the Commission and NIFS with regard to its various responsibilities.”
There are many junk sciences that lead to wrongful convictions. There is bullet lead analysis, which falsely purports to be able to trace the bullet fired from a gun used in a crime all the way back to the box from which it originated.
According to The Innocence Project’s website: “Hair microscopy, bite mark comparisons, firearm testing or tool mark analysis – have never been subjected to rigorous scientific evaluation. Other methods – such as serology (commonly known as blood typing) – have been properly validated
but are sometimes improperly conducted or inaccurately conveyed in trial testimony. In some cases, forensic analysts have fabricated results
or engaged in other misconduct.”
With each new revelation of a junk science, it becomes apparent that perhaps thousands more have been wrongfully convicted. Considering that we are talking about people’s lives, it is high time that we have a National Institute for Forensic Science. After all, in other disciplines oversight agencies and standards are in place. Electrical devices are scrutinized and tested by the Underwriters Laboratory. The Food and Drug Administration provides a similar function with respect to medicine and food.
A thought that has been absent, so far as I am aware, in the recent discussion about this topic is that while it is important for these steps to be taken, what has gone on previously? Surely the ‘experts’ who were testifying about various “sciences” in court in the furtherance of trying to
convict a defendant had to be aware that there was no scientific underpinning to them; that there existed no replicable protocols, or statistics,
that it was not hard science and in fact often was junk science.
While I could envision a few people doing so out of ignorance, it strains credulity to say that is the case with everybody. As people with advance degrees, they are familiar with general scientific methods. How could others who omit information regarding the statistical significance of a match or those who embellish, or even outright lie about it do so? Is there no conscience involved?
In my view, someone would have to be quite evil to give false or even simply inaccurate testimony against somebody, knowing that they were on trial often for serious crimes. Also unmentioned is the need to identify each and every “expert” who has engaged in any of these types of fraud,
and the need to vigorously prosecute them to the fullest extent of the law. Supervisors under whose watch fraud has occurred should, wherever it can be shown that they either looked the other way or even simply were negligent in their oversight, be fired and publicly disgraced, and permanently barred from ever working for the government again.
Their actions have, in my view, undermined, for quite a long time to come, the ability of the public who is aware of these issues, to feel safe as they
go about their daily lives, much as violent criminals who are concentrated in a particular geographical area do so.
In fact, I think that the level of fear could be higher. The odds of me, as an exoneree and therefore a high public profile, along with extremely competent lawyers working on my lawsuits, ever being wrongfully convicted again, are extremely low.
However, even with these differences between myself and the general public without those resources I, too, am once again afraid. Imagine that even being 880 miles away from a crime is not enough of an assurance of not being wrongfully arrested for it. As Dwight Gomas stated as reported in The Daily News “It is just a nightmare knowing that someone that’s innocent can be picked up off the street and held. That scares me now. It’s like I’m walking on eggshells. I try to cover my tracks for everywhere I go.”
Think, too, about sitting as a defendant at the defense table and listening to expert testimony that you don’t fully understand that is offered as evidence against you. Imagine being equipped with a court-appointed, overworked, under funded, and quite possibly incompetent, lawyer to represent you. Do you have confidence in what the outcome of such a trial would be, despite your innocence?
Showing posts with label Jeffrey Deskovic. Show all posts
Showing posts with label Jeffrey Deskovic. Show all posts
Thursday, September 17, 2009
Thursday, September 10, 2009
Westchester Guardian/Jeffrey Deskovic.
Thursday, September 10, 2009
Jeff Deskovic
A Case Of Wrongful Execution Emerges
The uncovering of wrongful convictions has become so frequent that no one disputes that they occur. In fact, as I have been writing about for some time, as have many other columnists, their causes are well-known and documented.
Across the country little legislation has been enacted to prevent wrongful convictions. It is a matter of common sense that any system of justice that results in wrongful convictions will inevitably execute innocent people if there is a death penalty as punishment.
There have been many instances of near-wrongful executions, in which people who had been wrongfully convicted and sentenced to death had been cleared, but not before coming within a hair’s breadth from being executed.
Ron Williamson, at one point, came within 3 days; Earl Washington came within 5; Larry Swearingen, whose case is still being litigated, came within a few hours despite exculpatory DNA evidence. Recently Troy Davis came within a few days before the United States Supreme Court ordered
that powerful evidence of his innocence be considered by a lower court.
However, while thankfully those men were not executed, pro-death penalty advocates have often pointed to those cases as examples of the system catching its own mistakes.
In addition, as I wrote about in my three part series, Exposing The Death Penalty, there have been many cases of likely wrongful executions, but there is no one case in which there is a general consensus from people on both sides of the death penalty issue that can be pointed to as a wrongful execution.
In fact, some pro-death penalty advocates, in response to the argument that the death penalty should be discontinued because of the danger of executing innocent people, have used the fact that there is no one consensus case in order to try to “prove” the illogical point that there has never even been one instance of an innocent person who was executed, as a reason why the death penalty should not be discontinued on this basis.
Unfortunately, as of a week ago, that argument can no longer be made: It has come to light through a study commissioned by the State of Texas
by arson expert Beyler that Cameron Willingham was wrongfully executed.
It remains to be seen what Texas will do with this report in terms of whether they will make an official statement owning up to having executed an innocent man. Currently state officials are reviewing Beyler’s report.
This moment is being viewed as both a watershed moment and a horror. It should come as no surprise to anyone that the inevitability of executing an innocent man has now come to pass and is being acknowledged by all except the State of Texas which has not yet publicly commented.
Facts: Cameron Todd Willingham was executed in Texas in 2004 for setting fire to his home and killing his three young daughters. The following
is taken from an Op-Ed piece by Bob Herbert in The New York Times: “ The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army. Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.
There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson. They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but
Willingham would have set it? With no real motive in sight, the local district attorney, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”
Willingham was arrested and charged with capital murder. Willingham couldn’t afford to hire lawyers, and was assigned two by the state: a former
state trooper, and a local defense attorney who represented everyone from alleged murderers to spouses in divorce cases—a “Jack-of-all-trades,” as he calls himself. He explained “In a small town, you can’t say ‘I’m a so-and-so lawyer,’ because you’ll starve to death,” When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.”
According to an investigative report by David Grann which was published in e New Yorker, “The crux of the state’s case, though, remained the scientific evidence gathered by two ‘experts’. On the stand, one of them detailed what he called more than ‘twenty indicators’ of arson.”
“‘Do you have an opinion as to who started the fire?’ one of the prosecutors asked. ‘Yes, sir,’ the expert said. ‘Mr. Willingham.’ e prosecutor asked the expert what he thought Willingham’s intent was in lighting the fire. ‘To kill the little girls,’ he said.”
According to the Op-Ed by Herbert, “A jailhouse informant also came forward who was a jumpy individual with a lengthy arrest record who would
later admit to being ‘mentally impaired’ and on medication, and who had started taking illegal drugs at the age of 9.”
According to The New Yorker, “The defense had tried to find a fire expert to counter the expert’s testimony, but the one they contacted concurred with the prosecution. Ultimately, the defense presented only one witness to the jury: the Willingham’s’ babysitter, who said she could not believe that Willingham could have killed his children.
The trial ended after two days. During his closing arguments, the prosecutor said that the puddle configurations and pour patterns were Willingham’s inadvertent “confession,” burned into the floor. Showing a Bible that had been salvaged from the fire, the prosecutor paraphrased the words of Jesus from the Gospel of Matthew: ‘Whomsoever shall harm one of my children, it’s better for a millstone to be hung around his neck and for him to be cast in the sea.’The jury was out for barely an hour before returning with a unanimous guilty verdict. As one of the experts put it, “The fire does not lie.”
Post Conviction: Lacking money to hire attorneys to handle his appeals, Willingham was forced to proceed with a public defender to file his
appeals. Multiple accounts of this case state that the representation he received was inadequate. In fact, during a later stage of his appeals, when a new attorney entered the litigation, he unsuccessfully challenged the adequacy of both appellate and trial representation.
But even this new attorney was not that effective, because whenever Willingham’s amateur investigator would send the attorney leads, there
was no follow-up work done. A lack of financial resources appears to be the reason that no follow-ups were done. And so, instead of challenges to his conviction being based on new factual information, they were instead based upon points of law.
After his last appeal had been turned down, according to The New York Times Op-Ed by Bob Herbert, “a renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case on a pro bono basis and began systematically knocking down every indication of arson.”
According to the article in The New Yorker by Grann, “As Hurst looked through the case records, a statement by Manuel Vasquez, the
state deputy fire marshal, jumped out at him. The expert had testified that, of the roughly twelve hundred to fifteen hundred fires he had investigated, ‘most all of them’ were arson. This was an oddly high estimate; the Texas State Fire Marshal’s Office typically found arson in only fifty per cent of its cases.
“Hurst was also struck by the expert’s claim that the Willingham blaze had ‘burned fast and hot’ because of a liquid accelerant. The notion that a flammable or combustible liquid caused flames to reach higher temperatures had been repeated in court by arson sleuths for decades. Yet the theory was nonsense: experiments have proved that wood and gasoline-fueled fires burn at essentially the same temperature. The
two experts had cited as proof of arson the fact that the front door’s aluminum threshold had melted. ‘The only thing that can cause that to react is an accelerant,’ one of the experts had said.
Hurst was incredulous. A natural-wood fire can reach temperatures as high as two thousand degrees Fahrenheit— far hotter than the melting point for aluminum alloys, which ranges from a thousand to twelve hundred degrees. And, like many other investigators, both experts mistakenly assumed that wood charring beneath the aluminum threshold was evidence that, as one of the experts put it, ‘a liquid accelerant
flowed underneath and burned.’
“Hurst had conducted myriad experiments showing that such charring was caused simply by the aluminum conducting so much heat. In fact,
when liquid accelerant is poured under a threshold a fire will extinguish, because of a lack of oxygen. ‘Liquid accelerants can no more burn under an aluminum threshold than can grease burn in a skillet even with a loose-fitting lid,’ Hurst declared in his report on the Willingham case. Hurst then examined the two expert’s claim that the ‘brown stains’ on Willingham’s front porch were evidence of ‘liquid accelerant,’
which had not had time to soak into the concrete. Hurst had previously performed a test in his garage, in which he poured charcoal-lighter fluid on the concrete floor, and lit it. When the fire went out, there were no brown stains, only smudges of soot. Hurst had run the same experiment many times, with different kinds of liquid accelerants, and the result was always the same. Brown stains were common in fires; they were usually composed of rust or gunk from charred debris that had mixed with water from fire hoses.
Another crucial piece of evidence implicating Willingham was the ‘crazed glass’ that the expert had attributed to the rapid heating from a
fire fueled with liquid accelerant. Yet, in November of 1991, a team of fire investigators had inspected fifty houses in the hills of Oakland, California, which had been ravaged by brush fires. In a dozen houses, the investigators discovered crazed glass, even though a liquid accelerant had not been used.
“Hurst then confronted some of the most devastating arson evidence against Willingham: the burn trailer, the pour patterns and puddle configurations, the V-shape and other burn marks indicating that the fire had multiple points of origin, the burning underneath the children’s beds. Hurst recalled that both experts had considered it impossible for Willingham to have run down the burning hallway without scorching his bare feet. But if the pour patterns and puddle configurations were a result of a flashover, Hurst reasoned, then they were consonant with Willingham’s explanation of events. When Willingham exited his bedroom, the hallway was not yet on fire; the flames were contained within
the children’s bedroom, where, along the ceiling, he saw the ‘bright lights.’
One of the experts had made a videotape of the fire scene, and Hurst looked at the footage of the burn trailer. Even after repeated viewings, he could not detect three points of origin, as one of the experts had Without having visited the fire scene, Hurst says, it was impossible to pinpoint the cause of the blaze. But, based on the evidence, he had little doubt that it was an accidental fire— one caused most likely by the space heater or faulty electrical wiring.”
This report was hurriedly presented to the Texas Board of Pardons and Paroles as a basis for granting clemency. Despite this evidence, they denied clemency. Explaining their decision to Grann, one of the members stated, ‘You don’t vote guilt or innocence. You don’t retry the trial. You just make sure everything is in order and there are no glaring errors.’ He noted that although the rules allowed for a hearing to consider
important new evidence, ‘in my time there had never been one called.’ When [Grann] asked him why Hurst’s report didn’t constitute evidence of ‘glaring errors,” he said, “We get all kinds of reports, but we don’t have the mechanisms to vet them.” Although Texas Gov. Rick Perry still had the authority to grant clemency, he did not do so. According to The New Yorker, “The Innocence Project obtained, through the Freedom of Information Act, all the records from the governor’s office and the board pertaining to Hurst’s report. “The documents show that they received the report, but neither office has any record of anyone acknowledging it, taking note of its significance, responding to it, or calling any attention to it within the government,” Barry Scheck said. “The only reasonable conclusion is that the governor’s office and the Board of Pardons and Paroles ignored scientific evidence.” According to Herbert’s op-ed in The New York Times, “Willingham was executed by lethal injection on Feb. 17, 2004.”
Execution: According to Herbert’s Op-Ed in The New York Times, The following year, Texas created the Forensic Science Commission to investigate charges of scientific mistakes or misconduct, and the panel began looking into the Willingham case. It commissioned Craig Beyler, a nationally recognized fire expert, to examine evidence and review Hurst’s report. Mr. Beyler issued a report last week that painted an ugly picture of what passes for expert scientific investigation and testimony in a capital case in Texas. The report found that the official inquiry
into the Willingham fire did not meet prevailing scientific standards of the time, much less current ones.
“The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham ‘seems to be wholly without any realistic understanding of fires.’ He said the marshal’s approach seemed to lack ‘rational reasoning’ and he likened it to the practices ‘of mystics or psychics.’
When the jailhouse snitch was told of the scientific evidence as reviewed by Beyler would show that an innocent man was executed, the snitch seemed taken aback. ‘Nothing can save me now,’ he said.
Reviewing Beyler’s findings, Equal Justice USA, an organization that according to them, “focuses on the injustices perpetrated against the
accused and convicted under our legal system and educates the public,” has summed up the review this way: “It turns out that evidence used to convict Willingham was nothing more than junk science and a wholly inadequate defense team:
• Several scientific investigations since the trial, including the one by the state government's own appointed forensic scientists, have concluded the "scene of the crime" was really just the scene of a horrible accident, and the supposed expert testimony originally presented at trial defied "rational reasoning" and violated "not only the standards of today but even of the time period."
• Even though the fire "experts'" evidence was clearly questionable, Willingham's own court-appointed lawyers were convinced of his guilt and offered no rebuttal expert.
• The jailhouse snitch to whom Willingham allegedly confessed suffered from serious mental impairments and recanted on his testimony more
than once.
• In attempts to assert that Willingham fit the profile of a sociopath, the prosecution used as evidence the fact that Willingham had Iron Maiden and Led Zeppelin posters. In a matter of life and death, what band posters one chooses to decorate one's walls with seems clearly of no consequence.
This report represents the most powerful record to date that an innocent person was executed - an unfathomable reality. Willingham himself could barely comprehend the tragedy of his situation. While on death row, he said, “I just been trying to figure out why after having a wife and 3 beautiful children that I loved my life has to end like this.”
In his op-ed in The New York Times, Herbert said Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his
life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.
Jeff Deskovic
A Case Of Wrongful Execution Emerges
The uncovering of wrongful convictions has become so frequent that no one disputes that they occur. In fact, as I have been writing about for some time, as have many other columnists, their causes are well-known and documented.
Across the country little legislation has been enacted to prevent wrongful convictions. It is a matter of common sense that any system of justice that results in wrongful convictions will inevitably execute innocent people if there is a death penalty as punishment.
There have been many instances of near-wrongful executions, in which people who had been wrongfully convicted and sentenced to death had been cleared, but not before coming within a hair’s breadth from being executed.
Ron Williamson, at one point, came within 3 days; Earl Washington came within 5; Larry Swearingen, whose case is still being litigated, came within a few hours despite exculpatory DNA evidence. Recently Troy Davis came within a few days before the United States Supreme Court ordered
that powerful evidence of his innocence be considered by a lower court.
However, while thankfully those men were not executed, pro-death penalty advocates have often pointed to those cases as examples of the system catching its own mistakes.
In addition, as I wrote about in my three part series, Exposing The Death Penalty, there have been many cases of likely wrongful executions, but there is no one case in which there is a general consensus from people on both sides of the death penalty issue that can be pointed to as a wrongful execution.
In fact, some pro-death penalty advocates, in response to the argument that the death penalty should be discontinued because of the danger of executing innocent people, have used the fact that there is no one consensus case in order to try to “prove” the illogical point that there has never even been one instance of an innocent person who was executed, as a reason why the death penalty should not be discontinued on this basis.
Unfortunately, as of a week ago, that argument can no longer be made: It has come to light through a study commissioned by the State of Texas
by arson expert Beyler that Cameron Willingham was wrongfully executed.
It remains to be seen what Texas will do with this report in terms of whether they will make an official statement owning up to having executed an innocent man. Currently state officials are reviewing Beyler’s report.
This moment is being viewed as both a watershed moment and a horror. It should come as no surprise to anyone that the inevitability of executing an innocent man has now come to pass and is being acknowledged by all except the State of Texas which has not yet publicly commented.
Facts: Cameron Todd Willingham was executed in Texas in 2004 for setting fire to his home and killing his three young daughters. The following
is taken from an Op-Ed piece by Bob Herbert in The New York Times: “ The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army. Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.
There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson. They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but
Willingham would have set it? With no real motive in sight, the local district attorney, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”
Willingham was arrested and charged with capital murder. Willingham couldn’t afford to hire lawyers, and was assigned two by the state: a former
state trooper, and a local defense attorney who represented everyone from alleged murderers to spouses in divorce cases—a “Jack-of-all-trades,” as he calls himself. He explained “In a small town, you can’t say ‘I’m a so-and-so lawyer,’ because you’ll starve to death,” When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.”
According to an investigative report by David Grann which was published in e New Yorker, “The crux of the state’s case, though, remained the scientific evidence gathered by two ‘experts’. On the stand, one of them detailed what he called more than ‘twenty indicators’ of arson.”
“‘Do you have an opinion as to who started the fire?’ one of the prosecutors asked. ‘Yes, sir,’ the expert said. ‘Mr. Willingham.’ e prosecutor asked the expert what he thought Willingham’s intent was in lighting the fire. ‘To kill the little girls,’ he said.”
According to the Op-Ed by Herbert, “A jailhouse informant also came forward who was a jumpy individual with a lengthy arrest record who would
later admit to being ‘mentally impaired’ and on medication, and who had started taking illegal drugs at the age of 9.”
According to The New Yorker, “The defense had tried to find a fire expert to counter the expert’s testimony, but the one they contacted concurred with the prosecution. Ultimately, the defense presented only one witness to the jury: the Willingham’s’ babysitter, who said she could not believe that Willingham could have killed his children.
The trial ended after two days. During his closing arguments, the prosecutor said that the puddle configurations and pour patterns were Willingham’s inadvertent “confession,” burned into the floor. Showing a Bible that had been salvaged from the fire, the prosecutor paraphrased the words of Jesus from the Gospel of Matthew: ‘Whomsoever shall harm one of my children, it’s better for a millstone to be hung around his neck and for him to be cast in the sea.’The jury was out for barely an hour before returning with a unanimous guilty verdict. As one of the experts put it, “The fire does not lie.”
Post Conviction: Lacking money to hire attorneys to handle his appeals, Willingham was forced to proceed with a public defender to file his
appeals. Multiple accounts of this case state that the representation he received was inadequate. In fact, during a later stage of his appeals, when a new attorney entered the litigation, he unsuccessfully challenged the adequacy of both appellate and trial representation.
But even this new attorney was not that effective, because whenever Willingham’s amateur investigator would send the attorney leads, there
was no follow-up work done. A lack of financial resources appears to be the reason that no follow-ups were done. And so, instead of challenges to his conviction being based on new factual information, they were instead based upon points of law.
After his last appeal had been turned down, according to The New York Times Op-Ed by Bob Herbert, “a renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case on a pro bono basis and began systematically knocking down every indication of arson.”
According to the article in The New Yorker by Grann, “As Hurst looked through the case records, a statement by Manuel Vasquez, the
state deputy fire marshal, jumped out at him. The expert had testified that, of the roughly twelve hundred to fifteen hundred fires he had investigated, ‘most all of them’ were arson. This was an oddly high estimate; the Texas State Fire Marshal’s Office typically found arson in only fifty per cent of its cases.
“Hurst was also struck by the expert’s claim that the Willingham blaze had ‘burned fast and hot’ because of a liquid accelerant. The notion that a flammable or combustible liquid caused flames to reach higher temperatures had been repeated in court by arson sleuths for decades. Yet the theory was nonsense: experiments have proved that wood and gasoline-fueled fires burn at essentially the same temperature. The
two experts had cited as proof of arson the fact that the front door’s aluminum threshold had melted. ‘The only thing that can cause that to react is an accelerant,’ one of the experts had said.
Hurst was incredulous. A natural-wood fire can reach temperatures as high as two thousand degrees Fahrenheit— far hotter than the melting point for aluminum alloys, which ranges from a thousand to twelve hundred degrees. And, like many other investigators, both experts mistakenly assumed that wood charring beneath the aluminum threshold was evidence that, as one of the experts put it, ‘a liquid accelerant
flowed underneath and burned.’
“Hurst had conducted myriad experiments showing that such charring was caused simply by the aluminum conducting so much heat. In fact,
when liquid accelerant is poured under a threshold a fire will extinguish, because of a lack of oxygen. ‘Liquid accelerants can no more burn under an aluminum threshold than can grease burn in a skillet even with a loose-fitting lid,’ Hurst declared in his report on the Willingham case. Hurst then examined the two expert’s claim that the ‘brown stains’ on Willingham’s front porch were evidence of ‘liquid accelerant,’
which had not had time to soak into the concrete. Hurst had previously performed a test in his garage, in which he poured charcoal-lighter fluid on the concrete floor, and lit it. When the fire went out, there were no brown stains, only smudges of soot. Hurst had run the same experiment many times, with different kinds of liquid accelerants, and the result was always the same. Brown stains were common in fires; they were usually composed of rust or gunk from charred debris that had mixed with water from fire hoses.
Another crucial piece of evidence implicating Willingham was the ‘crazed glass’ that the expert had attributed to the rapid heating from a
fire fueled with liquid accelerant. Yet, in November of 1991, a team of fire investigators had inspected fifty houses in the hills of Oakland, California, which had been ravaged by brush fires. In a dozen houses, the investigators discovered crazed glass, even though a liquid accelerant had not been used.
“Hurst then confronted some of the most devastating arson evidence against Willingham: the burn trailer, the pour patterns and puddle configurations, the V-shape and other burn marks indicating that the fire had multiple points of origin, the burning underneath the children’s beds. Hurst recalled that both experts had considered it impossible for Willingham to have run down the burning hallway without scorching his bare feet. But if the pour patterns and puddle configurations were a result of a flashover, Hurst reasoned, then they were consonant with Willingham’s explanation of events. When Willingham exited his bedroom, the hallway was not yet on fire; the flames were contained within
the children’s bedroom, where, along the ceiling, he saw the ‘bright lights.’
One of the experts had made a videotape of the fire scene, and Hurst looked at the footage of the burn trailer. Even after repeated viewings, he could not detect three points of origin, as one of the experts had Without having visited the fire scene, Hurst says, it was impossible to pinpoint the cause of the blaze. But, based on the evidence, he had little doubt that it was an accidental fire— one caused most likely by the space heater or faulty electrical wiring.”
This report was hurriedly presented to the Texas Board of Pardons and Paroles as a basis for granting clemency. Despite this evidence, they denied clemency. Explaining their decision to Grann, one of the members stated, ‘You don’t vote guilt or innocence. You don’t retry the trial. You just make sure everything is in order and there are no glaring errors.’ He noted that although the rules allowed for a hearing to consider
important new evidence, ‘in my time there had never been one called.’ When [Grann] asked him why Hurst’s report didn’t constitute evidence of ‘glaring errors,” he said, “We get all kinds of reports, but we don’t have the mechanisms to vet them.” Although Texas Gov. Rick Perry still had the authority to grant clemency, he did not do so. According to The New Yorker, “The Innocence Project obtained, through the Freedom of Information Act, all the records from the governor’s office and the board pertaining to Hurst’s report. “The documents show that they received the report, but neither office has any record of anyone acknowledging it, taking note of its significance, responding to it, or calling any attention to it within the government,” Barry Scheck said. “The only reasonable conclusion is that the governor’s office and the Board of Pardons and Paroles ignored scientific evidence.” According to Herbert’s op-ed in The New York Times, “Willingham was executed by lethal injection on Feb. 17, 2004.”
Execution: According to Herbert’s Op-Ed in The New York Times, The following year, Texas created the Forensic Science Commission to investigate charges of scientific mistakes or misconduct, and the panel began looking into the Willingham case. It commissioned Craig Beyler, a nationally recognized fire expert, to examine evidence and review Hurst’s report. Mr. Beyler issued a report last week that painted an ugly picture of what passes for expert scientific investigation and testimony in a capital case in Texas. The report found that the official inquiry
into the Willingham fire did not meet prevailing scientific standards of the time, much less current ones.
“The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham ‘seems to be wholly without any realistic understanding of fires.’ He said the marshal’s approach seemed to lack ‘rational reasoning’ and he likened it to the practices ‘of mystics or psychics.’
When the jailhouse snitch was told of the scientific evidence as reviewed by Beyler would show that an innocent man was executed, the snitch seemed taken aback. ‘Nothing can save me now,’ he said.
Reviewing Beyler’s findings, Equal Justice USA, an organization that according to them, “focuses on the injustices perpetrated against the
accused and convicted under our legal system and educates the public,” has summed up the review this way: “It turns out that evidence used to convict Willingham was nothing more than junk science and a wholly inadequate defense team:
• Several scientific investigations since the trial, including the one by the state government's own appointed forensic scientists, have concluded the "scene of the crime" was really just the scene of a horrible accident, and the supposed expert testimony originally presented at trial defied "rational reasoning" and violated "not only the standards of today but even of the time period."
• Even though the fire "experts'" evidence was clearly questionable, Willingham's own court-appointed lawyers were convinced of his guilt and offered no rebuttal expert.
• The jailhouse snitch to whom Willingham allegedly confessed suffered from serious mental impairments and recanted on his testimony more
than once.
• In attempts to assert that Willingham fit the profile of a sociopath, the prosecution used as evidence the fact that Willingham had Iron Maiden and Led Zeppelin posters. In a matter of life and death, what band posters one chooses to decorate one's walls with seems clearly of no consequence.
This report represents the most powerful record to date that an innocent person was executed - an unfathomable reality. Willingham himself could barely comprehend the tragedy of his situation. While on death row, he said, “I just been trying to figure out why after having a wife and 3 beautiful children that I loved my life has to end like this.”
In his op-ed in The New York Times, Herbert said Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his
life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.
Thursday, September 3, 2009
Westchester Guardian/Jeff Deskovic.
Thursday, September 3, 2009
Jeff Deskovic
Some Ideas On Prison Reform
As readers are well aware, I served 16 years in prison before I was proven innocent. That experience, horrific as it was, gave mean in-depth and intimate understanding of the prison system.
As such, having both witnessed and experienced many things as well as reflect upon the senselessness of many things, I naturally have some ideas on prison reform.
Prisons need not be the inhumane horror houses that they are, where abuse, lack of human and civil rights, and violence are everyday realities. If people are abused in many different ways on a regular basis for years, how do we expect such people to turn out?
It goes without saying that such an environment is counter productive and not conducive to rehabilitation. There are a variety of reforms that are needed in order to make our prisons more humane and therefore more conducive to rehabilitation. Although by no means an exhaustative list, this article contains a few thoughts on the subject.
It is well known that maintaining contact with friends and family is important to inmates because it has been linked with rehabilitation and making a successful transition back into society. Therefore, to the extent possible, prisoners who are from the city should be housed in facilities near the city, and those who are from upstate New York should be housed in facilities upstate, as close to their home town as possible, rather than the current practice of housing prisoners far from their hometowns while making them earn a transfer closer to home.
I would further point out that some prisoners go most of their sentences, and in some instances their entire prison term, never getting transferred close to home. That situation needs to be changed. By making proximity to one’s family and friends an element of reward, the Department of Corrections ultimately punishes society, much more than the prisoner, by having the former prisoner returned to society far less rehabilitated.
As anyone who has visited a prisoner knows, the Correction Officers often take a long time processing visitors, ranging from 45 minutes to several hours. There is a very simple form that visitors need to fill out. There is no reason why the guards can’t process visitors as quickly as possible.
Similarly, it is not unusual that once a visitor has been processed that it takes several hours before the prisoner arrives in the visiting room. Often the reason is that the prisoner has not been told promptly. These aspects have the cumulative effect of discouraging visitors from returning.
As mentioned above, beyond this harming the prisoner and the visitor, society is harmed as well. Often after visits, although not exclusively, prisoners are strip searched, in order to check for illegal items, drugs, or weapons.
This procedure involves not just disrobing, but also bending over and spreading one’s buttocks. The goal of checking for illegal items could be accomplished while also maintaining human dignity by utilizing an x-ray machine similar to the one utilized at airports.
Shifting gears, prison food is notorious for not being prepared correctly and barely being edible. For example, at times fish squares were still partially frozen, pasta and sauce were sometimes cooked together in one big pot completely drying out the sauce.
Pizza that is severely burned has been served, and leftovers were often served three times in the course of one week. There should be more oversight to ensure that food is prepared correctly.
Inmates do not need to be punished with bad food. Additionally, the directive that instructs that prisoners who have broken a facility rule and who have been restricted to their cells as punishment should be served smaller portions, should be changed for the same reason.
I would also like to point out that prisoners on such status are more vulnerable because they can’t purchase certain limited food items at the commissary.
As a separate but related issue, the proceedings within prisons for adjudicating whether a prisoner is guilty or innocent of having broken a rule is generally rigged, and I have personally witnessed situations in which officers have lied in their reports.
When correction officers conduct cell searches, it is easy to tell if the search has been conducted by abusive guards or those who conduct themselves
professionally. The abusive ones often leave the cell a mess, with photos, clothing items, books, etc. left in such disarray on the floor, or even on the bed, that it requires hours to put everything back together. There is no reason why things could not be put back as they were before, as the non-abusive guards leave it. I believe that a cell search should be videotaped, beginning with how the cell looked just before the search was commenced.
Often the price of hygienic items, stationery materials for keeping in contact with the outside world, and limited food items are raised due to inflation while the prisoner pay grades remain the same, at 22 cents, 25 cents, 32 cents, 38 cents an hour, with a few limited slots of 42 cents, and even fewer 48 cents slots, thus rendering the prisoners less and less able to afford things.
Considering that the commissary is supplied with food items from an outside vendor by contract, the contract should place limitations on the raising of prices. There should be an inquiry made into which guards are abusive, and also which literally look the other way when violence is occurring so as to avoid having to break things up and having to do paperwork afterwards. Such correction officers should be disciplined or, if necessary, removed.
Turning to another vital subject, prison health care is notoriously bad. It often takes between a week to several months to see a doctor. Nurses frequently dispense Tylenol as the answer to virtually every problem. It is not unusual for serious health conditions to worsen, and sometimes result in death. Health care workers who work in the prison who don’t follow the Hippocratic Oath and don’t properly care for and treat their patients should be removed The influence of God and religion inside prisons, through the practice of various religions has, to some extent, lowered violence
among its practitioners, and provide some measure of comfort.
Those who practice Christianity, Judaism, or Islam, are generally given the opportunity to attend religious services in the prison as well as to attend classes to learn more about their faith. However, most often those who practice other faiths, such as Buddhism, Hinduism, Indian faith traditions,
and other forms of faith, are not given religious services or classes. I believe that prisoners should be equally treated and allowed both services and classes in simple fairness, as well as in the interests of rehabilitation.
Shawangunk Prison, where I was incarcerated for a year and a half, had cameras all over the facility. That fact had the impact of reducing violence to negligible levels because prisoners knew that they would almost certainly get caught. To my way of thinking, cameras should be installed similarly in every prison.
When prisoners are placed in what the movie industry typically calls “the hole”, regulations require that mental health workers periodically make their rounds to check on them. This is important given the fact that prisoners under such conditions are kept in their cells 23 hours a day, and often refuse the one hour recreation because they don’t want to go to recreation in handcuffs. The problem is that instead of according confidentiality, such as by having the workers conduct interviews in a room, the counselors instead talk to prisoners through the cell bars, so that everyone who is on the unit can overhear everything that is said.
In the state of Indiana, if prisoners complete their GED, they are eligible to apply to courts for a time reduction from their sentence. This serves as incentive and motivation for prisoners to take education seriously. I think we should consider instituting such a measure in New York. As I see it,
rehabilitation needs to be encouraged, rather than being something that is accomplished despite prison.
I believe that such programs offering incentives for good behavior and completion of various educational levels should be expanded. There is a population within prison that has mental health issues, such that they really belong in a mental hospital rather than prison. I remember people who used to talk to themselves, others who were delusional, and still others who obviously had the mentality of a child. Often those who had such conditions and ailments would get worse over the years, rather than better. Sometimes the goal of dispensing medication was not so much the treatment of a sick prisoner, but the smoother running of the prison. Unfortunately, that population was also more vulnerable to abuse by other prisoners.
Jeff Deskovic
Some Ideas On Prison Reform
As readers are well aware, I served 16 years in prison before I was proven innocent. That experience, horrific as it was, gave mean in-depth and intimate understanding of the prison system.
As such, having both witnessed and experienced many things as well as reflect upon the senselessness of many things, I naturally have some ideas on prison reform.
Prisons need not be the inhumane horror houses that they are, where abuse, lack of human and civil rights, and violence are everyday realities. If people are abused in many different ways on a regular basis for years, how do we expect such people to turn out?
It goes without saying that such an environment is counter productive and not conducive to rehabilitation. There are a variety of reforms that are needed in order to make our prisons more humane and therefore more conducive to rehabilitation. Although by no means an exhaustative list, this article contains a few thoughts on the subject.
It is well known that maintaining contact with friends and family is important to inmates because it has been linked with rehabilitation and making a successful transition back into society. Therefore, to the extent possible, prisoners who are from the city should be housed in facilities near the city, and those who are from upstate New York should be housed in facilities upstate, as close to their home town as possible, rather than the current practice of housing prisoners far from their hometowns while making them earn a transfer closer to home.
I would further point out that some prisoners go most of their sentences, and in some instances their entire prison term, never getting transferred close to home. That situation needs to be changed. By making proximity to one’s family and friends an element of reward, the Department of Corrections ultimately punishes society, much more than the prisoner, by having the former prisoner returned to society far less rehabilitated.
As anyone who has visited a prisoner knows, the Correction Officers often take a long time processing visitors, ranging from 45 minutes to several hours. There is a very simple form that visitors need to fill out. There is no reason why the guards can’t process visitors as quickly as possible.
Similarly, it is not unusual that once a visitor has been processed that it takes several hours before the prisoner arrives in the visiting room. Often the reason is that the prisoner has not been told promptly. These aspects have the cumulative effect of discouraging visitors from returning.
As mentioned above, beyond this harming the prisoner and the visitor, society is harmed as well. Often after visits, although not exclusively, prisoners are strip searched, in order to check for illegal items, drugs, or weapons.
This procedure involves not just disrobing, but also bending over and spreading one’s buttocks. The goal of checking for illegal items could be accomplished while also maintaining human dignity by utilizing an x-ray machine similar to the one utilized at airports.
Shifting gears, prison food is notorious for not being prepared correctly and barely being edible. For example, at times fish squares were still partially frozen, pasta and sauce were sometimes cooked together in one big pot completely drying out the sauce.
Pizza that is severely burned has been served, and leftovers were often served three times in the course of one week. There should be more oversight to ensure that food is prepared correctly.
Inmates do not need to be punished with bad food. Additionally, the directive that instructs that prisoners who have broken a facility rule and who have been restricted to their cells as punishment should be served smaller portions, should be changed for the same reason.
I would also like to point out that prisoners on such status are more vulnerable because they can’t purchase certain limited food items at the commissary.
As a separate but related issue, the proceedings within prisons for adjudicating whether a prisoner is guilty or innocent of having broken a rule is generally rigged, and I have personally witnessed situations in which officers have lied in their reports.
When correction officers conduct cell searches, it is easy to tell if the search has been conducted by abusive guards or those who conduct themselves
professionally. The abusive ones often leave the cell a mess, with photos, clothing items, books, etc. left in such disarray on the floor, or even on the bed, that it requires hours to put everything back together. There is no reason why things could not be put back as they were before, as the non-abusive guards leave it. I believe that a cell search should be videotaped, beginning with how the cell looked just before the search was commenced.
Often the price of hygienic items, stationery materials for keeping in contact with the outside world, and limited food items are raised due to inflation while the prisoner pay grades remain the same, at 22 cents, 25 cents, 32 cents, 38 cents an hour, with a few limited slots of 42 cents, and even fewer 48 cents slots, thus rendering the prisoners less and less able to afford things.
Considering that the commissary is supplied with food items from an outside vendor by contract, the contract should place limitations on the raising of prices. There should be an inquiry made into which guards are abusive, and also which literally look the other way when violence is occurring so as to avoid having to break things up and having to do paperwork afterwards. Such correction officers should be disciplined or, if necessary, removed.
Turning to another vital subject, prison health care is notoriously bad. It often takes between a week to several months to see a doctor. Nurses frequently dispense Tylenol as the answer to virtually every problem. It is not unusual for serious health conditions to worsen, and sometimes result in death. Health care workers who work in the prison who don’t follow the Hippocratic Oath and don’t properly care for and treat their patients should be removed The influence of God and religion inside prisons, through the practice of various religions has, to some extent, lowered violence
among its practitioners, and provide some measure of comfort.
Those who practice Christianity, Judaism, or Islam, are generally given the opportunity to attend religious services in the prison as well as to attend classes to learn more about their faith. However, most often those who practice other faiths, such as Buddhism, Hinduism, Indian faith traditions,
and other forms of faith, are not given religious services or classes. I believe that prisoners should be equally treated and allowed both services and classes in simple fairness, as well as in the interests of rehabilitation.
Shawangunk Prison, where I was incarcerated for a year and a half, had cameras all over the facility. That fact had the impact of reducing violence to negligible levels because prisoners knew that they would almost certainly get caught. To my way of thinking, cameras should be installed similarly in every prison.
When prisoners are placed in what the movie industry typically calls “the hole”, regulations require that mental health workers periodically make their rounds to check on them. This is important given the fact that prisoners under such conditions are kept in their cells 23 hours a day, and often refuse the one hour recreation because they don’t want to go to recreation in handcuffs. The problem is that instead of according confidentiality, such as by having the workers conduct interviews in a room, the counselors instead talk to prisoners through the cell bars, so that everyone who is on the unit can overhear everything that is said.
In the state of Indiana, if prisoners complete their GED, they are eligible to apply to courts for a time reduction from their sentence. This serves as incentive and motivation for prisoners to take education seriously. I think we should consider instituting such a measure in New York. As I see it,
rehabilitation needs to be encouraged, rather than being something that is accomplished despite prison.
I believe that such programs offering incentives for good behavior and completion of various educational levels should be expanded. There is a population within prison that has mental health issues, such that they really belong in a mental hospital rather than prison. I remember people who used to talk to themselves, others who were delusional, and still others who obviously had the mentality of a child. Often those who had such conditions and ailments would get worse over the years, rather than better. Sometimes the goal of dispensing medication was not so much the treatment of a sick prisoner, but the smoother running of the prison. Unfortunately, that population was also more vulnerable to abuse by other prisoners.
Thursday, June 4, 2009
Jeff Deskovic.
Thursday, June 4, 2009
Jeff Deskovic
A Glimpse Into The Suffering Of Families Of The Wrongfully Convicted
As with many walks of life, people who have similar interests or move in the same circles inevitably meet up with others who are interested
in the same topics, and also acquire much of the same information. Of course, I am heavily into the anti-wrongful conviction movement,
and, as such, have come across many exonerees and family members of exonerees. I would like to think of myself as a people person, and enjoy talking to new people. So throughout my journey during the two years and eight months that I have been free, I have learned much about the way that wrongful convictions affect family members on a level deeper than I realized when I myself was wrongfully incarcerated.
I understood some aspects, sure, but there were many things I wasn’t aware of; and, at times my own suffering was so great that although I
was aware of some of the ways that my family suffered, I was unable to focus on it. Then, of course, there were many things that I was shielded from. I suspect that my experience in this is not atypical.
However, by being freed I have learned much about this aspect, and the thrust of this article will be sharing some of what I have learned.
I will also draw from what I have learned from the experiences of my family and also from conversations with other exonerees and their family members. Because the conversations occurred while socializing and not while conducting an interview, I will respect everybody’s privacy and not reveal their names. At the same time, this article, while intended to shed light on an oft-misunderstood subject, This by no means an exhaustative treatment.
Come with me into a nightmare scenario, for purposes of better understanding the conditions in which you as a mother or father, have had
your innocent son convicted of a murder.
When your son is wrongfully convicted, the experience of seeing him remanded into custody is both emotional and traumatic. Thoughts
of what he might be thinking or experiencing, not just physically but also emotionally, fill your head. The inability to help or to do anything
about it, in the immediate here and now, causes a feeling of helplessness in you. Safety for your son is a primary concern. There are some
people incarcerated, a er all, who are both guilty and dangerous. What do you tell your other children when they ask for their brother?
Going to his sentencing hearing is a mixed bag. On the one hand, you want to show support for your loved one and also to know what sentence will be pronounced. On the other hand it will be traumatic to hear a long prison sentence pronounced. Thoughts of what life will be like during the next 15, 20, and 25 years without your son go through your head.
Throughout The Incarceration
While your son is incarcerated, his safety will constantly be on your mind. While you may at times get respite from this, the best that it gets is that the worries have simply gone to the back of your mind; it will never leave. You dread a phone call from the prison reporting something
having happened to him. Any news you see regarding the prison on television will immediately trigger concern as to whether he is okay.
Similarly, each time he is transferred will raise new safety concerns. His incarceration will impact upon your other children. They will
miss your son, and now have an awful secret to try to hide from their school friends. The other kids at school, if they find out, could wind
up saying cruel things, teasing, or even trying to physically harm him.
When making new friends, it can be a source of shame, and so you hide this from them and hope they never find out. It feels as though you are leading a double life.
On some weekends, when you are best able to make the long travel to visit him; because the Department of Corrections frequently houses
prisoners far away from home during the first part of their sentence, you may have to beg off various invitations for social outings in order
to make the trip. But you will have to lie about what your plans are for that weekend. Sometimes you wonder whether you have lost touch with reality, or whether this is really happening.
Once in a while, though you believe in him, a stray thought may lead you to wonder if he really is innocent, though globally you know he is. Accompanying that stray thought is the question,“Where did I go wrong in raising him”. Visiting him is an elaborate process in and of itself. Firstly, it will require a long drive, typically three hours and often more. Gassing up the car to make the trip back and forth will make things expensive. Rounding out costs is that fact that you know that the food in there is so bad, so you shop for him, and you also want to leave him money.
But at times you will get frustrated when you learn, that because of some mindless rule, he can’t have certain food items. At times, if the
trip is too far to make in one day or return the same day, you will have to pay for a hotel room.
Getting into the prison will sometimes require standing on lines which are deliberately made longer by processing visitors slowly. At other
times you will be subjected to being talked to roughly, and if you are a woman the guards may hit on you. If this is how they talk to you, you
wonder how they treat him. Sometimes you will have on a bra which has metal, which will cause the metal detector to go off, which, in turn,
will lengthen the process.
Once you are actually in the visiting room, it may take 45 minutes to several hours before your son enters the room. You ask, “What took
you so long”, and are told that they just now called him. Occasionally he arrives around the count time, and so for some mindless reason they
will not let him in the room until after the count clears. Why they can’t take a count of the prisoners in the visiting room after admitting him
escapes you.
Often your conversation will revolve around different things to be done in connection with legal appeals and attempts to regain freedom. Much of this is foreign to you, and seems to be beyond your understanding, yet you will try to learn about it. Since you are his main connection to the outside, you also become his secretary, having to make various phone calls, look things up, and perform various tasks. The
changes he undergoes inside of him go largely unnoticed, because of this focus on this dominating theme. Later, once he is released, you
will discover the ways in which he has changed, and in some ways how his personality has been changed as a result of different after effects of his traumatic experience.
When it is time to go, depending on which guard is working at the visiting desk, the last point at which a visitor may leave will vary. Sometimes you will be stuck on a long line that can be as much as an hour and a half. It will break your heart to leave and not be able to take him with you, yet you have to fight yourself so that you don’t show it. The issue of visitation is divisive as you become resentful that other extended family members don’t visit him, or that they visit rarely.
Month after month, you will see the same people in the visiting room. You watch as visitors and prisoners alike age, and sometimes acquire
health problems. When their visitors stop seeing them, suddenly you cease to see the familiar faces of other prisoners in the visiting room.
You will hear the hardship tales of others on the way out and in the parking lot, and you will learn about the others’ cases. You wonder if they are innocent also, or if they are guilty. Sometimes you cease seeing the familiar faces who you made pleasant small talk with because their relative has been transferred. But you have no way of knowing that. You just cease seeing them.
When your son calls collect, you discover that the calls are more expensive. Yet you don’t want to tell him not to call, especially when you
can’t get up there to see him, so you have no choice but to bear the cost. Sometimes the money you send gets there after the commissary sheets have been printed, so your son must shop for hygienic items, stationary related products, and a few food items with however much money he has after working for two weeks at varying pay grades of 16¢, 22¢, 25¢, 32¢, 38¢ an hour.
Over the years, you learn about many prison rules, such as how many photocopied pages he can have in a letter (five) and what colors he is not allowed to wear. You learn that in order to be able to call you or others he will have to first place you on a calling list. After obtaining his GED, you learn that there is no college in prison for him to continue to pursue his education, and that the vocational classes offer obsolete material with some of the instructors merely there for the paycheck.
As the years go by, you are aware of the many milestones and rites of passage that he is missing. He misses births, deaths, marriages, holidays, and family gatherings. Your missing him is amplified on such occasions. You wonder whether he will ever get out, and whether you will have any grandchildren by him. You are aware of how big a part of your world is beyond your control, instead in the grasp of the legal
system. You wonder why it is that the appeals process is not as expeditious as it can be. You place your hopes in the next appellate proceeding, and you tell your son to be optimistic, that things will turn out okay. The let-down that occurs when the appeal is rubber stamp denied, despite what you, in your limited understanding, perceive to be good issues, is very hard to take.
However, you can’t show its affect because you have to encourage your son to remain optimistic and to hold on; and, that can’t happen if you go to pieces. The process begins again, and repeats, over and over again, at least five times until his appeals run out. The next problem is
that once that has happened, he will no longer be provided with an attorney, and you have no money to hire one. You need an investigator as well, to try to find new evidence, but like the attorney, you need one to work for free. But you quickly learn that it is very hard to find anyone to take a case pro-bono. You are aware of his reaching out to different law firms, organizations, people and places, but nothing seems to avail. Year after year goes by.
He’s going to the Parole Board. You begin to hope again. Maybe he can regain his freedom that way. But the Parole Board doesn’t want
to let even meritorious applicants go if they have been convicted of a violent crime, especially when they maintain their innocence and don’t
express remorse and take responsibility. Despite staying out of trouble, he is turned down. You wonder how long you will remain in the grip of the system, and if it will ever end. You think about whether you will ever see him free. You may even wonder about your own mortality, and whether, if it does happen, you will ever live to see it. Who will be there for him if he is still imprisoned once you pass away?
Sadly, the story ends there for many people who are wrongfully convicted. But let’s assume that your son is one of the lucky ones.
Somehow, years later, he winds up with representation. New evidence is uncovered, and he is proven innocent. You are happy, and he is vindicated. In hindsight, many people now see all of the red flags regarding his conviction. You wonder why that didn’t carry the day way back when. Why did he have to lose all of those years?
He leaves prison a free man, and you discover that his personality has changed, and all the after-effects of the experience begin to manifest
themselves. There are many skills he must relearn, and many he must learn for the first time. He must get used to his freedom, having choices,
learning new technology. He has lost contact with many friends. He is released with nothing.
If he’s an exoneree, he can sue, and he does, but it is a long procedure. He doesn’t have anything, and still needs to be supported. He is frequently passed over for jobs he interviews for that would provide gainful employment. Who will give him his first break to get him started?
Why is nothing given to him by the state to help him get on his feet? There are some who are afraid of him, since he spent all of that time in
prison though he was innocent. That fact affects his ability to meet women and find a partner.
As the discovery process of the lawsuit progresses, you learn more and more. You realize that some foul play has been involved. How could
this ever happen? You wonder why laws are not changed to prevent others from undergoing the same experience.
Jeff Deskovic
A Glimpse Into The Suffering Of Families Of The Wrongfully Convicted
As with many walks of life, people who have similar interests or move in the same circles inevitably meet up with others who are interested
in the same topics, and also acquire much of the same information. Of course, I am heavily into the anti-wrongful conviction movement,
and, as such, have come across many exonerees and family members of exonerees. I would like to think of myself as a people person, and enjoy talking to new people. So throughout my journey during the two years and eight months that I have been free, I have learned much about the way that wrongful convictions affect family members on a level deeper than I realized when I myself was wrongfully incarcerated.
I understood some aspects, sure, but there were many things I wasn’t aware of; and, at times my own suffering was so great that although I
was aware of some of the ways that my family suffered, I was unable to focus on it. Then, of course, there were many things that I was shielded from. I suspect that my experience in this is not atypical.
However, by being freed I have learned much about this aspect, and the thrust of this article will be sharing some of what I have learned.
I will also draw from what I have learned from the experiences of my family and also from conversations with other exonerees and their family members. Because the conversations occurred while socializing and not while conducting an interview, I will respect everybody’s privacy and not reveal their names. At the same time, this article, while intended to shed light on an oft-misunderstood subject, This by no means an exhaustative treatment.
Come with me into a nightmare scenario, for purposes of better understanding the conditions in which you as a mother or father, have had
your innocent son convicted of a murder.
When your son is wrongfully convicted, the experience of seeing him remanded into custody is both emotional and traumatic. Thoughts
of what he might be thinking or experiencing, not just physically but also emotionally, fill your head. The inability to help or to do anything
about it, in the immediate here and now, causes a feeling of helplessness in you. Safety for your son is a primary concern. There are some
people incarcerated, a er all, who are both guilty and dangerous. What do you tell your other children when they ask for their brother?
Going to his sentencing hearing is a mixed bag. On the one hand, you want to show support for your loved one and also to know what sentence will be pronounced. On the other hand it will be traumatic to hear a long prison sentence pronounced. Thoughts of what life will be like during the next 15, 20, and 25 years without your son go through your head.
Throughout The Incarceration
While your son is incarcerated, his safety will constantly be on your mind. While you may at times get respite from this, the best that it gets is that the worries have simply gone to the back of your mind; it will never leave. You dread a phone call from the prison reporting something
having happened to him. Any news you see regarding the prison on television will immediately trigger concern as to whether he is okay.
Similarly, each time he is transferred will raise new safety concerns. His incarceration will impact upon your other children. They will
miss your son, and now have an awful secret to try to hide from their school friends. The other kids at school, if they find out, could wind
up saying cruel things, teasing, or even trying to physically harm him.
When making new friends, it can be a source of shame, and so you hide this from them and hope they never find out. It feels as though you are leading a double life.
On some weekends, when you are best able to make the long travel to visit him; because the Department of Corrections frequently houses
prisoners far away from home during the first part of their sentence, you may have to beg off various invitations for social outings in order
to make the trip. But you will have to lie about what your plans are for that weekend. Sometimes you wonder whether you have lost touch with reality, or whether this is really happening.
Once in a while, though you believe in him, a stray thought may lead you to wonder if he really is innocent, though globally you know he is. Accompanying that stray thought is the question,“Where did I go wrong in raising him”. Visiting him is an elaborate process in and of itself. Firstly, it will require a long drive, typically three hours and often more. Gassing up the car to make the trip back and forth will make things expensive. Rounding out costs is that fact that you know that the food in there is so bad, so you shop for him, and you also want to leave him money.
But at times you will get frustrated when you learn, that because of some mindless rule, he can’t have certain food items. At times, if the
trip is too far to make in one day or return the same day, you will have to pay for a hotel room.
Getting into the prison will sometimes require standing on lines which are deliberately made longer by processing visitors slowly. At other
times you will be subjected to being talked to roughly, and if you are a woman the guards may hit on you. If this is how they talk to you, you
wonder how they treat him. Sometimes you will have on a bra which has metal, which will cause the metal detector to go off, which, in turn,
will lengthen the process.
Once you are actually in the visiting room, it may take 45 minutes to several hours before your son enters the room. You ask, “What took
you so long”, and are told that they just now called him. Occasionally he arrives around the count time, and so for some mindless reason they
will not let him in the room until after the count clears. Why they can’t take a count of the prisoners in the visiting room after admitting him
escapes you.
Often your conversation will revolve around different things to be done in connection with legal appeals and attempts to regain freedom. Much of this is foreign to you, and seems to be beyond your understanding, yet you will try to learn about it. Since you are his main connection to the outside, you also become his secretary, having to make various phone calls, look things up, and perform various tasks. The
changes he undergoes inside of him go largely unnoticed, because of this focus on this dominating theme. Later, once he is released, you
will discover the ways in which he has changed, and in some ways how his personality has been changed as a result of different after effects of his traumatic experience.
When it is time to go, depending on which guard is working at the visiting desk, the last point at which a visitor may leave will vary. Sometimes you will be stuck on a long line that can be as much as an hour and a half. It will break your heart to leave and not be able to take him with you, yet you have to fight yourself so that you don’t show it. The issue of visitation is divisive as you become resentful that other extended family members don’t visit him, or that they visit rarely.
Month after month, you will see the same people in the visiting room. You watch as visitors and prisoners alike age, and sometimes acquire
health problems. When their visitors stop seeing them, suddenly you cease to see the familiar faces of other prisoners in the visiting room.
You will hear the hardship tales of others on the way out and in the parking lot, and you will learn about the others’ cases. You wonder if they are innocent also, or if they are guilty. Sometimes you cease seeing the familiar faces who you made pleasant small talk with because their relative has been transferred. But you have no way of knowing that. You just cease seeing them.
When your son calls collect, you discover that the calls are more expensive. Yet you don’t want to tell him not to call, especially when you
can’t get up there to see him, so you have no choice but to bear the cost. Sometimes the money you send gets there after the commissary sheets have been printed, so your son must shop for hygienic items, stationary related products, and a few food items with however much money he has after working for two weeks at varying pay grades of 16¢, 22¢, 25¢, 32¢, 38¢ an hour.
Over the years, you learn about many prison rules, such as how many photocopied pages he can have in a letter (five) and what colors he is not allowed to wear. You learn that in order to be able to call you or others he will have to first place you on a calling list. After obtaining his GED, you learn that there is no college in prison for him to continue to pursue his education, and that the vocational classes offer obsolete material with some of the instructors merely there for the paycheck.
As the years go by, you are aware of the many milestones and rites of passage that he is missing. He misses births, deaths, marriages, holidays, and family gatherings. Your missing him is amplified on such occasions. You wonder whether he will ever get out, and whether you will have any grandchildren by him. You are aware of how big a part of your world is beyond your control, instead in the grasp of the legal
system. You wonder why it is that the appeals process is not as expeditious as it can be. You place your hopes in the next appellate proceeding, and you tell your son to be optimistic, that things will turn out okay. The let-down that occurs when the appeal is rubber stamp denied, despite what you, in your limited understanding, perceive to be good issues, is very hard to take.
However, you can’t show its affect because you have to encourage your son to remain optimistic and to hold on; and, that can’t happen if you go to pieces. The process begins again, and repeats, over and over again, at least five times until his appeals run out. The next problem is
that once that has happened, he will no longer be provided with an attorney, and you have no money to hire one. You need an investigator as well, to try to find new evidence, but like the attorney, you need one to work for free. But you quickly learn that it is very hard to find anyone to take a case pro-bono. You are aware of his reaching out to different law firms, organizations, people and places, but nothing seems to avail. Year after year goes by.
He’s going to the Parole Board. You begin to hope again. Maybe he can regain his freedom that way. But the Parole Board doesn’t want
to let even meritorious applicants go if they have been convicted of a violent crime, especially when they maintain their innocence and don’t
express remorse and take responsibility. Despite staying out of trouble, he is turned down. You wonder how long you will remain in the grip of the system, and if it will ever end. You think about whether you will ever see him free. You may even wonder about your own mortality, and whether, if it does happen, you will ever live to see it. Who will be there for him if he is still imprisoned once you pass away?
Sadly, the story ends there for many people who are wrongfully convicted. But let’s assume that your son is one of the lucky ones.
Somehow, years later, he winds up with representation. New evidence is uncovered, and he is proven innocent. You are happy, and he is vindicated. In hindsight, many people now see all of the red flags regarding his conviction. You wonder why that didn’t carry the day way back when. Why did he have to lose all of those years?
He leaves prison a free man, and you discover that his personality has changed, and all the after-effects of the experience begin to manifest
themselves. There are many skills he must relearn, and many he must learn for the first time. He must get used to his freedom, having choices,
learning new technology. He has lost contact with many friends. He is released with nothing.
If he’s an exoneree, he can sue, and he does, but it is a long procedure. He doesn’t have anything, and still needs to be supported. He is frequently passed over for jobs he interviews for that would provide gainful employment. Who will give him his first break to get him started?
Why is nothing given to him by the state to help him get on his feet? There are some who are afraid of him, since he spent all of that time in
prison though he was innocent. That fact affects his ability to meet women and find a partner.
As the discovery process of the lawsuit progresses, you learn more and more. You realize that some foul play has been involved. How could
this ever happen? You wonder why laws are not changed to prevent others from undergoing the same experience.
Thursday, May 21, 2009
Jeff Deskovic.
Thursday, May 21, 2009
Jeff Deskovic.
Exposing The Death Penalty, Part 2
In my effort to raise awareness about the problem of wrongful convictions, as well as seeking legislative changes to make the criminal justice system more accurate, I have always included abolishing the death penalty amongst the reforms I advocate. My reasoning is simple: any system of justice that results in wrongful convictions will, if it has a death penalty as a sentencing option, inevitably execute innocent people. This past March 17 New Mexico legislatively abolished the death penalty citing, amongst other issues, that very real possibility. In this three-part series I will review likely wrongful executions, near-misses, ongoing cases of potential wrongful execution, systemic deficiencies, along with one case example wherein innocent people were wrongly convicted and sentenced to death before being cleared. And then, I will look at modern-day recognition that the death penalty risks the execution of innocent people.
Ongoing Cases Of Potential Wrongful Execution
There are several ongoing cases in which manifestly innocent defendants are locked up, fighting to establish their innocence, and hence regain their freedom and avoid being executed: Larry Swearingen and Troy Davis, whose case has been previously written about in The Guardian.
Larry Swearingen was convicted of murder in 2000 and sentenced to death. The Innocence Project has summed up his case in the following way: Swearingen was convicted largely based upon a second leg of torn panty hose that prosecutors said matched the half used to strangle the victim. The hose mysteriously surfaced at Swearingen’s trailer after it had been thoroughly searched twice by deputies.
Although Swearingen had maintained his innocence from the start, he didn’t help his defense. Early on, from jail, he concocted a ridiculous confession letter in Spanish, supposedly from the real killer. Swearingen’s Spanish was unintelligible. During the trial in 2000, he was caught lying on the witness stand about other things. The jury quickly convicted him and sentenced him to death despite DNA testing showing that blood found under the victims fingernails and a pubic hair found in a vaginal swab did not match him.
But since then Swearingen and his appellate attorneys have discovered glaring inaccuracies in the forensic evidence presented to the jury. From the beginning, prosecutors had based their case on the theory that the victim had been killed and dumped in the forest on the same day
she went missing, Dec. 8. That theory was supported by the testimony of a medical examiner who stated that the body could have been decomposing for a month.
Her testimony was vital to Swearingen’s conviction because he was arrested and jailed for traffic warrants just three days after the victim disappeared. The medical examiner has since changed her testimony in light of new examinations, saying it was not possible for the victim to have been killed and left in the forest any longer than two weeks before her body was discovered.
This would mean Swearingen was incarcerated at the time the crime occurred. In addition, according to The Texas Monthly, five different
physicians and scientists—forensic pathologists and entomologists— say there’s almost no way Swearingen could have done it. Dr. Glenn Larkin, a retired forensic pathologist in Charlotte, North Carolina, said, as reported by The Dallas Morning News: “As a forensic scientist
since 1973, I always kept an objective stance when called to testify; however, there comes a point when as a human, and as a Christian, there is a mandate to speak in the interest of justice. This is a moral issue now; no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.” Besides that, there are efforts to get even further scientific evidence which could further prove his innocence: further DNA testing.
The Innocence Project is seeking to get additional DNA testing in his case on the panty hose, the victims clothing, and more blood scrapings.”
The Dallas Morning News reported that “despite the DNA not matching him, and the other evidence showing that he was in jail at the time that the crime happened, and despite trying to get even further DNA testing, Swearingen came within 1 day of execution before a federal appeals court granted him a last second stay of execution on Jan. 26, 2009, with one day to go before execution, so that his innocence issue may be looked at.”
Troy Davis
According to Wikipedia, Davis was convicted and sentenced to death in 1991 for the August 19, 1989 murder of off-duty Savannah police
officer Mark MacPhail solely on the basis of now discredited eyewitness testimony. No physical evidence linked him to the murder, and the weapon used in the crime was never found. Throughout the trial and subsequent appeals, Davis steadfastly maintained his innocence, claiming he was wrongfully convicted of the murder, and has been wrongfully imprisoned for the past 20 years. Nine eyewitnesses recantations from all but two of the prosecution eyewitnesses, the testimony of another previously undiscovered eyewitness and others with information bearing on the crime—all strong evidence suggesting Davis was not the gunman and is, in fact, innocent of the crimes for which he was sentenced to death.
All the witnesses stated in their affidavits that their earlier statements implicating him had been coerced by strong arm police tactics. Davis argued that since seven of the nine eyewitnesses recanted their testimony and voluntarily filed sworn affidavits stating they lied in the original trial, he is entitled to a retrial based on his actual innocence claim. In addition, five other witnesses have come forward to say that an alternative suspect confessed. Innocence Project co-founder Barry Scheck had this to say about the case, in a letter published in The
Huffington Post: “Seven of the nine key witnesses who testified against Davis now recant their trial testimony, claiming they were coerced to lie by Savannah police.”
The reliability of those witnesses was characterized by Amnesty International as “containing inconsistencies even at the time of the trial”. Scheck continues in his letter, “Despite the seriousness of these allegations and the sheer number of recantations, Georgia courts and state
officials have not only been unwilling to stay his execution, but they have even refused to hold a hearing with live, sworn testimony to assess the credibility of the recanting witnesses. What most people don’t know is why Davis can’t get a full hearing on the new evidence and just
how ridiculously far four judges of the Georgia Supreme Court have gone; there were three dissenters; to avoid reviewing post-conviction evidence of innocence.
The recantation of a witness alone does not and should not automatically result in a conviction being vacated. Recantation evidence is treated with caution by courts because, after all, the witness is saying he or she once lied under oath, so how can one be so sure they are not just
lying again?
Nonetheless, many wrongful convictions have been overturned because a recanting witness, testifying in person and under oath before a judge, is found to be credible and the reason for the recantation, often a claim that the original trial testimony was coerced is found to be persuasive. But in Georgia the recanting witnesses don’t get to testify because the state’s courts have created an extraordinary Catch-22 rule, the ‘purest fabrication’
doctrine, that arbitrarily denies evidentiary hearings even when extremely persuasive recantation affidavits have been submitted. The ‘purest fabrication’ doctrine means that post-conviction hearings don’t have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by extrinsic proof before the hearing is held, that the original testimony was absolutely false.”
Many prominent people and groups recognize the injustice involved in Davis’ case. Amnesty International has strongly condemned the refusal of U.S. courts to examine the innocence evidence, and has organized rallies and letter-writing campaigns to persuade the Georgia and Federal courts to grant Davis a new trial or an evidentiary hearing. Many prominent politicians and leaders, according to Wikipedia, including: former President
Jimmy Carter, Pope Benedict XVI, Nobel Laureate Archbishop Desmond Tutu, former Presidential candidate Bob Barr, and former FBI Director and Judge William Sessions have expressed their shock at Georgia authorities’ plan to execute Davis without a proper, judicial examination of the innocence evidence, and have called upon the courts to grant Davis a new trial or evidentiary hearing.
Only a last-minute emergency stay, issued by the United States Supreme Court less than two hours before he was scheduled to be put to death, prevented his execution. Modern Day Recognition There is a general recognition that the death penalty risks executing innocent, but wrongfully convicted, defendants. As mentioned above, out of the 235 DNA proven wrongful convictions, 17 of them had been sentenced to death. According to the Death Penalty Information Center database, the total number of people who have been cleared from death row, whether by DNA or
non-DNA means, is 130. The criteria that they used is that they must have been convicted and sentenced to death, and subsequently either their conviction was overturned and 1) they were acquitted at re-trial, or 2) all charges were dropped, or 3) they were given an absolute pardon by the governor based on new evidence of innocence.
In addition to the general systemic deficiencies having the ability to lead to a wrongful conviction and execution, there is also, within the death penalty system itself, a mechanism which makes a wrongful conviction and execution likely: the process of death qualifying a jury. The article Pretend Justice: Defense Representation In Tennessee Death Penalty Cases states that death qualification of jurors is “a process that essentially erodes the defendant’s opportunity for a fair trial by an unbiased trier of fact. Required in death penalty cases, unlike other criminal cases, this process results in a jury whose members are notoriously prosecution prone, that is, jurors who are receptive to prosecutors and their witnesses, and biased against defendants, defense counsel, and their witnesses, not only on the issue of life or death, but also on the issue of guilt or innocence.”
The imposition of the death penalty adds the following obstacles to a wrongfully convicted defendant seeking to establish his or her innocence: 1) It puts a defendant, who typically has scant financial resources, in a time pressure situation to hurry up and uncover evidence of innocence; 2) It limits the amount of time in which innocence can be proven by circumstances outside of conscious efforts made either by the defendant or
his attorney, such as eyewitness’s coming forward to say that they misidentified him; a real perpetrator confessing; and evidence of innocence coming forward as a result of governmental agencies and/or law enforcement investigating other cases.
One example of this phenomenon, Jeffrey Scott Hornoff was a police officer in Rhode Island who had been wrongfully convicted of murdering a woman that he had an affair with. The actual perpetrator, Todd Barry, as a result of his conscience bothering him, came forward and confessed to his guilt and Hornoff’s innocence. Another example involved that of chemist Fred Zain. According to The Los Angeles Times, it was discovered
that Zain was in the habit of committing perjury, faking lab test results, and evidence tampering. As result of discovering Zain’s actions, in West Virginia one man was freed and three others received new trials. Sixty seven other cases are under review in West Virginia. Hundreds of cases that he worked on in Texas are also under review.
The author of the book “Capital Punishment: A Balanced Examination”, Evan Mandery, speaks about the increased impact of being wrongfully
convicted in a capital case as opposed to a non-capital case: “The death penalty affects the plight of the innocent-convicted in three ways: 1) it shortens the amount of time during which a mistake can be discovered and corrected 2) in instances where mistakes are caught after execution, the mistakes cannot be corrected in any meaningful way and 3) in instances where mistakes are not corrected, the innocent are killed rather than spend the remainder of their lives on death row.” As long as a person is alive, the chance, as mentioned above, is that a miracle could occur and innocence
could be proven. Once the person is executed, the defendant can no longer seek help to clear his name, and attorney’s only rarely continue to work
on the case.
The Innocence Project has made the following public statements about the danger that the death penalty poses by creating the possibility of executing innocent people: “Our work has proven that innocent people are convicted of crimes they did not commit, and these exonerations illustrate the causes of wrongful convictions that must be remedied. These DNA exonerations are a window into the criminal justice system’s flaws: While DNA testing is an option in just a fraction of all criminal cases, the factors proven to cause wrongful convictions exist regardless of whether the case involves DNA.
Specific to the death penalty, our work has shown that innocent people are sentenced to die. Of the 223 people exonerated through post-conviction DNA testing, more than 25% were convicted of murder. Seventeen were sentenced to die; others were charged with capital murder
but narrowly escaped the death penalty, and still others would likely have been charged with capital crimes if the death penalty had been in place at the time of their trials.
We have also worked on cases of people who were executed before DNA testing could be conducted to confirm guilt or prove innocence, and we are aware of several non-DNA cases where evidence of innocence surfaced after people were executed.”
In recognition of the danger that the death penalty poses to executing innocent people, the governors of Illinois, New Jersey, and New Mexico have all taken steps. After pardoning 4 people who were on death row on the grounds of innocence, Gov. Ryan proceeded to commute the death sentences of all of the death row inmates. In explaining his decision, Gov. Ryan made repeated references to the possibility of executing innocent
people. [Excerpt taken from the website Salon.com].
“Soon after taking office, I watched in surprise and amazement as the freed death row inmate Anthony Porter was released from jail. Anthony Porter was 48 hours away from being wheeled into the execution chamber where the state would kill him. It would be so antiseptic that most of us wouldn’t have even paused for a second, except that Anthony Porter was innocent. He was innocent for the double murder for which he had been condemned by the State of Illinois to die.
Over the next few months three more exonerated men were freed because their sentences hinged on a jailhouse informant or some new DNA technology proved beyond a shadow of a doubt that they were innocent. We then had the dubious distinction of exonerating more men than we
had executed. Thirteen men found innocent, 12 executed.
As I reported yesterday, there is not a doubt in my mind that the number of innocent men freed from our death row stands at 17, with the pardons of Aaron Patterson, Madison Hobley, Stanley Howard and Leroy Orange. That is an absolute embarrassment. Seventeen exonerated death row inmates is nothing short of a catastrophic failure. But the 13, now 17, men is just the beginning of our sad arithmetic in prosecuting murder cases. During the time we have had capital punishment in Illinois, there were at least 33 other people wrongly convicted on murder charges and exonerated. … Our capital system is haunted by the demon of error, error in determining guilt… To say it plainly one more time -- the Illinois capital punishment system is broken. It has taken innocent men to a hair’s-breadth escape from their unjust execution.”
Jeff Deskovic.
Exposing The Death Penalty, Part 2
In my effort to raise awareness about the problem of wrongful convictions, as well as seeking legislative changes to make the criminal justice system more accurate, I have always included abolishing the death penalty amongst the reforms I advocate. My reasoning is simple: any system of justice that results in wrongful convictions will, if it has a death penalty as a sentencing option, inevitably execute innocent people. This past March 17 New Mexico legislatively abolished the death penalty citing, amongst other issues, that very real possibility. In this three-part series I will review likely wrongful executions, near-misses, ongoing cases of potential wrongful execution, systemic deficiencies, along with one case example wherein innocent people were wrongly convicted and sentenced to death before being cleared. And then, I will look at modern-day recognition that the death penalty risks the execution of innocent people.
Ongoing Cases Of Potential Wrongful Execution
There are several ongoing cases in which manifestly innocent defendants are locked up, fighting to establish their innocence, and hence regain their freedom and avoid being executed: Larry Swearingen and Troy Davis, whose case has been previously written about in The Guardian.
Larry Swearingen was convicted of murder in 2000 and sentenced to death. The Innocence Project has summed up his case in the following way: Swearingen was convicted largely based upon a second leg of torn panty hose that prosecutors said matched the half used to strangle the victim. The hose mysteriously surfaced at Swearingen’s trailer after it had been thoroughly searched twice by deputies.
Although Swearingen had maintained his innocence from the start, he didn’t help his defense. Early on, from jail, he concocted a ridiculous confession letter in Spanish, supposedly from the real killer. Swearingen’s Spanish was unintelligible. During the trial in 2000, he was caught lying on the witness stand about other things. The jury quickly convicted him and sentenced him to death despite DNA testing showing that blood found under the victims fingernails and a pubic hair found in a vaginal swab did not match him.
But since then Swearingen and his appellate attorneys have discovered glaring inaccuracies in the forensic evidence presented to the jury. From the beginning, prosecutors had based their case on the theory that the victim had been killed and dumped in the forest on the same day
she went missing, Dec. 8. That theory was supported by the testimony of a medical examiner who stated that the body could have been decomposing for a month.
Her testimony was vital to Swearingen’s conviction because he was arrested and jailed for traffic warrants just three days after the victim disappeared. The medical examiner has since changed her testimony in light of new examinations, saying it was not possible for the victim to have been killed and left in the forest any longer than two weeks before her body was discovered.
This would mean Swearingen was incarcerated at the time the crime occurred. In addition, according to The Texas Monthly, five different
physicians and scientists—forensic pathologists and entomologists— say there’s almost no way Swearingen could have done it. Dr. Glenn Larkin, a retired forensic pathologist in Charlotte, North Carolina, said, as reported by The Dallas Morning News: “As a forensic scientist
since 1973, I always kept an objective stance when called to testify; however, there comes a point when as a human, and as a Christian, there is a mandate to speak in the interest of justice. This is a moral issue now; no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.” Besides that, there are efforts to get even further scientific evidence which could further prove his innocence: further DNA testing.
The Innocence Project is seeking to get additional DNA testing in his case on the panty hose, the victims clothing, and more blood scrapings.”
The Dallas Morning News reported that “despite the DNA not matching him, and the other evidence showing that he was in jail at the time that the crime happened, and despite trying to get even further DNA testing, Swearingen came within 1 day of execution before a federal appeals court granted him a last second stay of execution on Jan. 26, 2009, with one day to go before execution, so that his innocence issue may be looked at.”
Troy Davis
According to Wikipedia, Davis was convicted and sentenced to death in 1991 for the August 19, 1989 murder of off-duty Savannah police
officer Mark MacPhail solely on the basis of now discredited eyewitness testimony. No physical evidence linked him to the murder, and the weapon used in the crime was never found. Throughout the trial and subsequent appeals, Davis steadfastly maintained his innocence, claiming he was wrongfully convicted of the murder, and has been wrongfully imprisoned for the past 20 years. Nine eyewitnesses recantations from all but two of the prosecution eyewitnesses, the testimony of another previously undiscovered eyewitness and others with information bearing on the crime—all strong evidence suggesting Davis was not the gunman and is, in fact, innocent of the crimes for which he was sentenced to death.
All the witnesses stated in their affidavits that their earlier statements implicating him had been coerced by strong arm police tactics. Davis argued that since seven of the nine eyewitnesses recanted their testimony and voluntarily filed sworn affidavits stating they lied in the original trial, he is entitled to a retrial based on his actual innocence claim. In addition, five other witnesses have come forward to say that an alternative suspect confessed. Innocence Project co-founder Barry Scheck had this to say about the case, in a letter published in The
Huffington Post: “Seven of the nine key witnesses who testified against Davis now recant their trial testimony, claiming they were coerced to lie by Savannah police.”
The reliability of those witnesses was characterized by Amnesty International as “containing inconsistencies even at the time of the trial”. Scheck continues in his letter, “Despite the seriousness of these allegations and the sheer number of recantations, Georgia courts and state
officials have not only been unwilling to stay his execution, but they have even refused to hold a hearing with live, sworn testimony to assess the credibility of the recanting witnesses. What most people don’t know is why Davis can’t get a full hearing on the new evidence and just
how ridiculously far four judges of the Georgia Supreme Court have gone; there were three dissenters; to avoid reviewing post-conviction evidence of innocence.
The recantation of a witness alone does not and should not automatically result in a conviction being vacated. Recantation evidence is treated with caution by courts because, after all, the witness is saying he or she once lied under oath, so how can one be so sure they are not just
lying again?
Nonetheless, many wrongful convictions have been overturned because a recanting witness, testifying in person and under oath before a judge, is found to be credible and the reason for the recantation, often a claim that the original trial testimony was coerced is found to be persuasive. But in Georgia the recanting witnesses don’t get to testify because the state’s courts have created an extraordinary Catch-22 rule, the ‘purest fabrication’
doctrine, that arbitrarily denies evidentiary hearings even when extremely persuasive recantation affidavits have been submitted. The ‘purest fabrication’ doctrine means that post-conviction hearings don’t have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by extrinsic proof before the hearing is held, that the original testimony was absolutely false.”
Many prominent people and groups recognize the injustice involved in Davis’ case. Amnesty International has strongly condemned the refusal of U.S. courts to examine the innocence evidence, and has organized rallies and letter-writing campaigns to persuade the Georgia and Federal courts to grant Davis a new trial or an evidentiary hearing. Many prominent politicians and leaders, according to Wikipedia, including: former President
Jimmy Carter, Pope Benedict XVI, Nobel Laureate Archbishop Desmond Tutu, former Presidential candidate Bob Barr, and former FBI Director and Judge William Sessions have expressed their shock at Georgia authorities’ plan to execute Davis without a proper, judicial examination of the innocence evidence, and have called upon the courts to grant Davis a new trial or evidentiary hearing.
Only a last-minute emergency stay, issued by the United States Supreme Court less than two hours before he was scheduled to be put to death, prevented his execution. Modern Day Recognition There is a general recognition that the death penalty risks executing innocent, but wrongfully convicted, defendants. As mentioned above, out of the 235 DNA proven wrongful convictions, 17 of them had been sentenced to death. According to the Death Penalty Information Center database, the total number of people who have been cleared from death row, whether by DNA or
non-DNA means, is 130. The criteria that they used is that they must have been convicted and sentenced to death, and subsequently either their conviction was overturned and 1) they were acquitted at re-trial, or 2) all charges were dropped, or 3) they were given an absolute pardon by the governor based on new evidence of innocence.
In addition to the general systemic deficiencies having the ability to lead to a wrongful conviction and execution, there is also, within the death penalty system itself, a mechanism which makes a wrongful conviction and execution likely: the process of death qualifying a jury. The article Pretend Justice: Defense Representation In Tennessee Death Penalty Cases states that death qualification of jurors is “a process that essentially erodes the defendant’s opportunity for a fair trial by an unbiased trier of fact. Required in death penalty cases, unlike other criminal cases, this process results in a jury whose members are notoriously prosecution prone, that is, jurors who are receptive to prosecutors and their witnesses, and biased against defendants, defense counsel, and their witnesses, not only on the issue of life or death, but also on the issue of guilt or innocence.”
The imposition of the death penalty adds the following obstacles to a wrongfully convicted defendant seeking to establish his or her innocence: 1) It puts a defendant, who typically has scant financial resources, in a time pressure situation to hurry up and uncover evidence of innocence; 2) It limits the amount of time in which innocence can be proven by circumstances outside of conscious efforts made either by the defendant or
his attorney, such as eyewitness’s coming forward to say that they misidentified him; a real perpetrator confessing; and evidence of innocence coming forward as a result of governmental agencies and/or law enforcement investigating other cases.
One example of this phenomenon, Jeffrey Scott Hornoff was a police officer in Rhode Island who had been wrongfully convicted of murdering a woman that he had an affair with. The actual perpetrator, Todd Barry, as a result of his conscience bothering him, came forward and confessed to his guilt and Hornoff’s innocence. Another example involved that of chemist Fred Zain. According to The Los Angeles Times, it was discovered
that Zain was in the habit of committing perjury, faking lab test results, and evidence tampering. As result of discovering Zain’s actions, in West Virginia one man was freed and three others received new trials. Sixty seven other cases are under review in West Virginia. Hundreds of cases that he worked on in Texas are also under review.
The author of the book “Capital Punishment: A Balanced Examination”, Evan Mandery, speaks about the increased impact of being wrongfully
convicted in a capital case as opposed to a non-capital case: “The death penalty affects the plight of the innocent-convicted in three ways: 1) it shortens the amount of time during which a mistake can be discovered and corrected 2) in instances where mistakes are caught after execution, the mistakes cannot be corrected in any meaningful way and 3) in instances where mistakes are not corrected, the innocent are killed rather than spend the remainder of their lives on death row.” As long as a person is alive, the chance, as mentioned above, is that a miracle could occur and innocence
could be proven. Once the person is executed, the defendant can no longer seek help to clear his name, and attorney’s only rarely continue to work
on the case.
The Innocence Project has made the following public statements about the danger that the death penalty poses by creating the possibility of executing innocent people: “Our work has proven that innocent people are convicted of crimes they did not commit, and these exonerations illustrate the causes of wrongful convictions that must be remedied. These DNA exonerations are a window into the criminal justice system’s flaws: While DNA testing is an option in just a fraction of all criminal cases, the factors proven to cause wrongful convictions exist regardless of whether the case involves DNA.
Specific to the death penalty, our work has shown that innocent people are sentenced to die. Of the 223 people exonerated through post-conviction DNA testing, more than 25% were convicted of murder. Seventeen were sentenced to die; others were charged with capital murder
but narrowly escaped the death penalty, and still others would likely have been charged with capital crimes if the death penalty had been in place at the time of their trials.
We have also worked on cases of people who were executed before DNA testing could be conducted to confirm guilt or prove innocence, and we are aware of several non-DNA cases where evidence of innocence surfaced after people were executed.”
In recognition of the danger that the death penalty poses to executing innocent people, the governors of Illinois, New Jersey, and New Mexico have all taken steps. After pardoning 4 people who were on death row on the grounds of innocence, Gov. Ryan proceeded to commute the death sentences of all of the death row inmates. In explaining his decision, Gov. Ryan made repeated references to the possibility of executing innocent
people. [Excerpt taken from the website Salon.com].
“Soon after taking office, I watched in surprise and amazement as the freed death row inmate Anthony Porter was released from jail. Anthony Porter was 48 hours away from being wheeled into the execution chamber where the state would kill him. It would be so antiseptic that most of us wouldn’t have even paused for a second, except that Anthony Porter was innocent. He was innocent for the double murder for which he had been condemned by the State of Illinois to die.
Over the next few months three more exonerated men were freed because their sentences hinged on a jailhouse informant or some new DNA technology proved beyond a shadow of a doubt that they were innocent. We then had the dubious distinction of exonerating more men than we
had executed. Thirteen men found innocent, 12 executed.
As I reported yesterday, there is not a doubt in my mind that the number of innocent men freed from our death row stands at 17, with the pardons of Aaron Patterson, Madison Hobley, Stanley Howard and Leroy Orange. That is an absolute embarrassment. Seventeen exonerated death row inmates is nothing short of a catastrophic failure. But the 13, now 17, men is just the beginning of our sad arithmetic in prosecuting murder cases. During the time we have had capital punishment in Illinois, there were at least 33 other people wrongly convicted on murder charges and exonerated. … Our capital system is haunted by the demon of error, error in determining guilt… To say it plainly one more time -- the Illinois capital punishment system is broken. It has taken innocent men to a hair’s-breadth escape from their unjust execution.”
Thursday, May 14, 2009
Jeff Deskovic/Janet Difiore.
Jeff Deskovic.
An Open Letter To Chief Judge Lippman
On Sunday, May 3, I discovered that The Journal News published a lead editorial entitled Another Turn At Justice. Let me quote the opening
paragraphs: “New Chief Judge Jonathan Lippman of the New York Court of Appeals is quickly moving to address the kind of mind-numbing legal travesty that cost Peekskill’s Jeffrey Deskovic much of his youth and liberty, and gave the criminal justice system in Westchester a black eye. Intervening where the slow-moving Legislature had been content to slumber, Lippman is forming a permanent task force to examine wrongful convictions and recommend ways to minimize them.
The initiative is a long overdue reply to a steady string of exoneration cases in New York, most often brought to light by the do-gooder lawyers group the Innocence Project. Aided by ever-improving DNA technology, the New York City-based group played a critical role in securing the 2006 exoneration of Deskovic, who served more than 15 years in prison for the 1989 rape and murder of Peekskill High classmate Angela Correa. DNA testing ultimately ordered by District Attorney Janet DiFiore, who entered office in 2006, led to the stunning revelation that someone else had killed Correa.”The article also contains a picture of me.
Before getting to my open letter to Judge Lippman, there are a few things that I want to clarify. As many people are aware, I served 16 years in prison for a murder and rape which I was innocent of. In the face of a negative DNA test which clearly showed that semen found in the victim did not match me, I was convicted based upon a coerced, false confession, prosecutorial misconduct, and forensic misconduct.
In addition, my public defender was not very good. All of my appeals had been exhausted by 2001. For approximately the next four and a half years I tried in vain to obtain the legal assistance needed to prove my innocence and regain my freedom. Try though I did, nobody would take my case pro bono, as I had no money. I, therefore, languished in prison while desperately trying to obtain assistance.
I was ultimately cleared because The Innocence Project agreed to represent me, and then approached Westchester District Attorney Janet DiFiore who agreed not to oppose further DNA Testing. Once the results matched an individual in the DNA database, who, in fact, had been imprisoned for another rape and murder of another Peekskill woman just three and a half years after my wrongful conviction, DiFiore then joined the defense motion to overturn my conviction and shortly thereafter, have the indictment dismissed on the grounds of actual innocence.
I appreciate her not opposing the testing and deciding to join the defense motions. But that is not to say that I was freed because my case was discovered in the course of a pro-active search of old cases by the DA’s Office, which is one way that The Journal News article
could be mistakenly interpreted. Further, I would like to add that although I was saved from having to litigate for the testing, and again I am grateful for that; if we had had to I haven’t any doubt that The Innocence Project would have won the right to the testing.
Life’s events seldom happen in a vacuum, and the election cycle for Westchester District Attorney is nearing. My photo in The Journal
News article at this time might suggest that I support Janet DiFiore in her re-election bid. I have nothing against her personally, and, as stated previously, I appreciate her doing the right thing in my case. However, I am concerned about more than simply my own case.
I am concerned with both preventing future wrongful convictions and seeing that ongoing cases of injustice are corrected. at is my life’s calling and mission and I cannot, ultimately, betray that mission or the people who support my anti-wrongful conviction advocacy by remaining silent.
I do not support District Attorney DiFiore in the upcoming race, for the following reasons:
A) The Anthony DiSimone case, in which the Westchester DA’s office, under DiFiore, fought up until the last minute before being forced to concede by the federal Court, and only then handing over exculpatory, previously withheld, evidence pointing to a third party suspect, yet continuing in their efforts to retry DiSimone;
B) The Richard DiGuglielmo case, involving DiFiore’s fighting the overturning of the verdict in which the Judge ruled that information had not been turned over to the defense, and then appealing the decision, not to mention the Prosecutor’s conduct, which I personally witnessed, and
that the Judge noted in his decision, that rather than being concerned with the truth the prosecutors were simply trying to win;
C) The Kian Khattibi case, in which the prosecutors first dissuaded the defendant’s brother from telling the truth in court that he committed
the stabbings by falsely threatening him with prosecution although the statute of limitations had run out, and then, once the brother wouldn’t
testify, arguing that the other family member’s testimony as to the confession they had heard was hearsay; when then-Judge DiFiore denied
Khattibi’s meritorious 440.10 Motion placing procedure above justice arguing that his petition contained inconsistent statements by witnesses, some of were on the record and others which were not;
D) Her failure to prosecute rogue Police Officer Wayne Simoes, who ultimately was arrested by the FBI for body slamming Irma Marquez
thereby breaking her jaw and causing multiple physical trauma, even though it was all on videotape; and, instead prosecuting Marquez;
E) Waiting 18 months before dropping her prosecution on false charges against Yonkers police brutality victim Rui Florim.
Dear Judge Lippman,
I have read that you have created a permanent task force in order to address the serious issue of wrongful convictions. As you know, wrongful convictions are much more prevalent than society previously realized. DNA has opened a window into the world of wrongful convictions allowing us to identify the systemic causes as well as common themes and patterns.
Since DNA material is only available in 10-12% of all serious felony cases, it is important that we prevent wrongful convictions in the first place. As it stands for the overwhelming majority of cases, there is no science that can definitively separate guilt from innocence. Additionally, as I can attest personally, the human toll of wrongful conviction on defendants and their families is incalculable.
I would hope that since you are seeking to make the New York State Court System more accurate, you will address issues that contribute to wrongful outcomes which I would respectfully like to point out.
1) More Frequent and Careful Review Is Needed. A common theme in many wrongful conviction cases, especially the 24 DNA-proven cases in New York, is that the Defendants have long since had their appeals exhausted. In many of those cases, including my own, the Court Of Appeals declined to grant permission to the Defendants to appeal to them.
In my case, for example, I was denied permission to appeal to the Court Of Appeals, with a ruling that stated there was “no merit in law to justify the reviewing.” Why is it that in so many of these wrongful conviction cases we can look back and see many red flags that should have been clear signs that something was not right? More cases need to be caught while they are still in the appellate process. Clearly,
what is needed is more review, not less. Therefore, cases that come before the Court should be given a closer look when deciding whether to review them or not. That scrutiny should be done in light of what is known about the causes of wrongful conviction.
Cases based on confessions should be looked at very carefully in terms of the circumstances under which they were procured. In identification-based cases, the quality of the ID and the procedures used to procure them should be closely looked at. Additionally, in many cases involving misidentification, courts have erroneously allowed convictions to stand despite victims having given clearly inaccurate descriptions with respect to height and weight. Cases involving allegations of ineffective assistance of counsel should be looked at carefully since it is known that without quality representation defendants may be wrongfully convicted despite being innocent. Such cases need to be heavily scrutinized and adjudicated on the merits rather than with deference to the defense attorney.
I am aware that such deference is accorded in order to uphold the sanctity of defense counsel and not by way of second guessing one’s strategy. However, either a challenged omission or commission constitutes ineffective assistance of counsel or not; no deference is needed. Instead, it must speak for itself.
If forensics furnishes part of the evidence, the Court must question whether it is based upon sound science, studies and data, or merely junk science. When a so-called science has been exposed as junk, every judge should be on the lookout for it in future cases, and even old cases should be re-examined to see if anything slipped past.
While I understand that the Court Of Appeals does not review cases on a factual basis but merely rules on issues pertaining to law, clearly where claims of actual innocence are present, particularly when DNA is involved, the Court should keep that in mind when deciding whether to accept a case in order to rule on the legal issues it presents.
2) In Confession Cases, Implement A Pre-Trial Hearing On The Issue Of Truthfulness. False confessions have been the cause of wrongful convictions in 25% of the 237 DNA-proven wrongful conviction cases, and in 10 of New York’s 24 cases. Yet, in none of those cases, despite clear warning signs that can be pointed to post exoneration, were the confessions suppressed. False confession literature shows that
once a confession has been entered into evidence there is an 80% conviction rate. Clearly, a pre-trial Huntley hearing where the sole issue considered is voluntariness is insufficient. Instead, a hearing in which the focus is the truthfulness of the confession is needed, akin to a Wade Hearing.
3) Ban Tactics Which Have Been Linked To False Confessions, such as prolonged interrogations, the misuse and abuse of the polygraph, lying to suspects, claiming to have non-existent evidence, and the interrogation of the mentally ill and/or retarded without an attorney present. Such practices, that are acknowledged to be psychologically coercive, lead to false confessions and therefore to wrongful convictions, and run
in the face of the spirit and intent of both New York State and federal Constitutional prohibitions against self incrimination.
4) Reverse Parole Board denials of parole applications as the result of applicants expressing innocence. There have been cases in which otherwise meritorious parole applications have been denied because they maintained innocence at the parole hearing. Such declarations are seen as “not taking responsibility” and “not showing remorse”. Colin Warner served 21 years in prison in New York prior to being proven
innocent. He was denied parole three times, in part because he refused to admit guilt at the Parole Board. Westchester Exoneree Kian Khattibi served nine and a half years before it was revealed that his brother committed the crime, and not he.
Prior to that, at his Parole Board Appearance, he maintained his innocence. The Parole Board denied him parole based upon that fact, saying “Your lack of remorse minimizing your involvement, notwithstanding your institutional adjustments, are a concern, and, when coupled with the violence in the instant offense make you an unacceptable risk for release at this time.”
Such a rigid approach doesn’t take into account the reality that wrongful convictions occur. I am unaware of any person so denied then successfully taking their case to court and obtaining relief. In fact, in many of the rare cases where a parole appeal based on any grounds at all is reversed, frequently the Court Of Appeals has stepped in and reversed the Appellate Division.
The problem of such a policy on the part of the Parole Board is obvious. It places the wrongfully convicted prisoner in the position of potentially sacrificing his or her freedom as the price for maintaining innocence, when in reality it doesn’t need to be done that way. Either an applicant can demonstrate by their record that they are likely to live and remain at liberty without breaking the law or not. The granting of parole need not be tied to a statement of responsibility.
An additional pitfall of such a guilt acknowledgement is that the wrongfully convicted defendant potentially creates additional evidence against himself in the event that his conviction is overturned, as part of the price of trying to meet the Parole Board requirements. An example of this is the John Duval case. He was convicted in 1973 of committing a murder in Rochester, New York, along with his co-defendant Betty Tyson. They were convicted based upon confessions which they stated were beaten out of them, and on the testimony of two teenage runaways.
After his appeals failed, in order to try to obtain his freedom, Duval twice admitted guilt in front of the Parole Board in 1995 and 1997 because he felt that was the only way he could regain his freedom because of the practice.
Later his conviction, along with that of his co-defendant Betty Tyson, was overturned because one of the witnesses recanted his testimony, saying he had lied previously. In addition, prosecutors then came up with a buried synopsis of a police interview with the other teen, in which he denied seeing Duval or Tyson, contrary to what the teen had testified in 1973. However, while the prosecutors dropped the charges
and Tyson was awarded money for her imprisonment, prosecutors retried Duval, using the statements that he had made in front of the Parole Board as evidence.
5) Reverse Prior Decisions Allowing The Department Of Corrections To Mandate Self Incrimination In Order To Continue To Participate In The Sex Offender Program. Prior court challenges of this practice by the Department Of Corrections have not yielded any relief, even when a defendant is still pursuing appeals. In order to have any chance at parole, defendants convicted of sex offenses must admit guilt, to staff and peers, in writing, and give details. To not do so is considered to be tantamount to refusing the program. This, too, forces prisoners to potentially sacrifice freedom as the price for maintaining innocence. This does not take into account wrongful convictions.
I will close by saying there is a great need for incarcerative and financial penalties for rogue prosecutors who intentionally commit Brady and Rosario violations, suborn perjury, fail to correct perjury, and who have patterns and practices established with coroners and other experts, whereby those experts work backwards to prove whatever a prosecutor is trying to prove. I would urge you to include these in your report. After all, what does an honest prosecutor have to lose? To me, prosecutorial misconduct is like any other crime. Don’t do the time if you can’t do the time.
I hope that your report will be hard hitting, critical, and proves to be an impetus by which urgently needed legislation is obtained. The cracks in the system which I have attempted to point out above are correctable judicially. Please do not ignore problems from within while only addressing those from without.
Best regards,
Jeffrey Deskovic, Criminal Justice Advocate and Exoneree
An Open Letter To Chief Judge Lippman
On Sunday, May 3, I discovered that The Journal News published a lead editorial entitled Another Turn At Justice. Let me quote the opening
paragraphs: “New Chief Judge Jonathan Lippman of the New York Court of Appeals is quickly moving to address the kind of mind-numbing legal travesty that cost Peekskill’s Jeffrey Deskovic much of his youth and liberty, and gave the criminal justice system in Westchester a black eye. Intervening where the slow-moving Legislature had been content to slumber, Lippman is forming a permanent task force to examine wrongful convictions and recommend ways to minimize them.
The initiative is a long overdue reply to a steady string of exoneration cases in New York, most often brought to light by the do-gooder lawyers group the Innocence Project. Aided by ever-improving DNA technology, the New York City-based group played a critical role in securing the 2006 exoneration of Deskovic, who served more than 15 years in prison for the 1989 rape and murder of Peekskill High classmate Angela Correa. DNA testing ultimately ordered by District Attorney Janet DiFiore, who entered office in 2006, led to the stunning revelation that someone else had killed Correa.”The article also contains a picture of me.
Before getting to my open letter to Judge Lippman, there are a few things that I want to clarify. As many people are aware, I served 16 years in prison for a murder and rape which I was innocent of. In the face of a negative DNA test which clearly showed that semen found in the victim did not match me, I was convicted based upon a coerced, false confession, prosecutorial misconduct, and forensic misconduct.
In addition, my public defender was not very good. All of my appeals had been exhausted by 2001. For approximately the next four and a half years I tried in vain to obtain the legal assistance needed to prove my innocence and regain my freedom. Try though I did, nobody would take my case pro bono, as I had no money. I, therefore, languished in prison while desperately trying to obtain assistance.
I was ultimately cleared because The Innocence Project agreed to represent me, and then approached Westchester District Attorney Janet DiFiore who agreed not to oppose further DNA Testing. Once the results matched an individual in the DNA database, who, in fact, had been imprisoned for another rape and murder of another Peekskill woman just three and a half years after my wrongful conviction, DiFiore then joined the defense motion to overturn my conviction and shortly thereafter, have the indictment dismissed on the grounds of actual innocence.
I appreciate her not opposing the testing and deciding to join the defense motions. But that is not to say that I was freed because my case was discovered in the course of a pro-active search of old cases by the DA’s Office, which is one way that The Journal News article
could be mistakenly interpreted. Further, I would like to add that although I was saved from having to litigate for the testing, and again I am grateful for that; if we had had to I haven’t any doubt that The Innocence Project would have won the right to the testing.
Life’s events seldom happen in a vacuum, and the election cycle for Westchester District Attorney is nearing. My photo in The Journal
News article at this time might suggest that I support Janet DiFiore in her re-election bid. I have nothing against her personally, and, as stated previously, I appreciate her doing the right thing in my case. However, I am concerned about more than simply my own case.
I am concerned with both preventing future wrongful convictions and seeing that ongoing cases of injustice are corrected. at is my life’s calling and mission and I cannot, ultimately, betray that mission or the people who support my anti-wrongful conviction advocacy by remaining silent.
I do not support District Attorney DiFiore in the upcoming race, for the following reasons:
A) The Anthony DiSimone case, in which the Westchester DA’s office, under DiFiore, fought up until the last minute before being forced to concede by the federal Court, and only then handing over exculpatory, previously withheld, evidence pointing to a third party suspect, yet continuing in their efforts to retry DiSimone;
B) The Richard DiGuglielmo case, involving DiFiore’s fighting the overturning of the verdict in which the Judge ruled that information had not been turned over to the defense, and then appealing the decision, not to mention the Prosecutor’s conduct, which I personally witnessed, and
that the Judge noted in his decision, that rather than being concerned with the truth the prosecutors were simply trying to win;
C) The Kian Khattibi case, in which the prosecutors first dissuaded the defendant’s brother from telling the truth in court that he committed
the stabbings by falsely threatening him with prosecution although the statute of limitations had run out, and then, once the brother wouldn’t
testify, arguing that the other family member’s testimony as to the confession they had heard was hearsay; when then-Judge DiFiore denied
Khattibi’s meritorious 440.10 Motion placing procedure above justice arguing that his petition contained inconsistent statements by witnesses, some of were on the record and others which were not;
D) Her failure to prosecute rogue Police Officer Wayne Simoes, who ultimately was arrested by the FBI for body slamming Irma Marquez
thereby breaking her jaw and causing multiple physical trauma, even though it was all on videotape; and, instead prosecuting Marquez;
E) Waiting 18 months before dropping her prosecution on false charges against Yonkers police brutality victim Rui Florim.
Dear Judge Lippman,
I have read that you have created a permanent task force in order to address the serious issue of wrongful convictions. As you know, wrongful convictions are much more prevalent than society previously realized. DNA has opened a window into the world of wrongful convictions allowing us to identify the systemic causes as well as common themes and patterns.
Since DNA material is only available in 10-12% of all serious felony cases, it is important that we prevent wrongful convictions in the first place. As it stands for the overwhelming majority of cases, there is no science that can definitively separate guilt from innocence. Additionally, as I can attest personally, the human toll of wrongful conviction on defendants and their families is incalculable.
I would hope that since you are seeking to make the New York State Court System more accurate, you will address issues that contribute to wrongful outcomes which I would respectfully like to point out.
1) More Frequent and Careful Review Is Needed. A common theme in many wrongful conviction cases, especially the 24 DNA-proven cases in New York, is that the Defendants have long since had their appeals exhausted. In many of those cases, including my own, the Court Of Appeals declined to grant permission to the Defendants to appeal to them.
In my case, for example, I was denied permission to appeal to the Court Of Appeals, with a ruling that stated there was “no merit in law to justify the reviewing.” Why is it that in so many of these wrongful conviction cases we can look back and see many red flags that should have been clear signs that something was not right? More cases need to be caught while they are still in the appellate process. Clearly,
what is needed is more review, not less. Therefore, cases that come before the Court should be given a closer look when deciding whether to review them or not. That scrutiny should be done in light of what is known about the causes of wrongful conviction.
Cases based on confessions should be looked at very carefully in terms of the circumstances under which they were procured. In identification-based cases, the quality of the ID and the procedures used to procure them should be closely looked at. Additionally, in many cases involving misidentification, courts have erroneously allowed convictions to stand despite victims having given clearly inaccurate descriptions with respect to height and weight. Cases involving allegations of ineffective assistance of counsel should be looked at carefully since it is known that without quality representation defendants may be wrongfully convicted despite being innocent. Such cases need to be heavily scrutinized and adjudicated on the merits rather than with deference to the defense attorney.
I am aware that such deference is accorded in order to uphold the sanctity of defense counsel and not by way of second guessing one’s strategy. However, either a challenged omission or commission constitutes ineffective assistance of counsel or not; no deference is needed. Instead, it must speak for itself.
If forensics furnishes part of the evidence, the Court must question whether it is based upon sound science, studies and data, or merely junk science. When a so-called science has been exposed as junk, every judge should be on the lookout for it in future cases, and even old cases should be re-examined to see if anything slipped past.
While I understand that the Court Of Appeals does not review cases on a factual basis but merely rules on issues pertaining to law, clearly where claims of actual innocence are present, particularly when DNA is involved, the Court should keep that in mind when deciding whether to accept a case in order to rule on the legal issues it presents.
2) In Confession Cases, Implement A Pre-Trial Hearing On The Issue Of Truthfulness. False confessions have been the cause of wrongful convictions in 25% of the 237 DNA-proven wrongful conviction cases, and in 10 of New York’s 24 cases. Yet, in none of those cases, despite clear warning signs that can be pointed to post exoneration, were the confessions suppressed. False confession literature shows that
once a confession has been entered into evidence there is an 80% conviction rate. Clearly, a pre-trial Huntley hearing where the sole issue considered is voluntariness is insufficient. Instead, a hearing in which the focus is the truthfulness of the confession is needed, akin to a Wade Hearing.
3) Ban Tactics Which Have Been Linked To False Confessions, such as prolonged interrogations, the misuse and abuse of the polygraph, lying to suspects, claiming to have non-existent evidence, and the interrogation of the mentally ill and/or retarded without an attorney present. Such practices, that are acknowledged to be psychologically coercive, lead to false confessions and therefore to wrongful convictions, and run
in the face of the spirit and intent of both New York State and federal Constitutional prohibitions against self incrimination.
4) Reverse Parole Board denials of parole applications as the result of applicants expressing innocence. There have been cases in which otherwise meritorious parole applications have been denied because they maintained innocence at the parole hearing. Such declarations are seen as “not taking responsibility” and “not showing remorse”. Colin Warner served 21 years in prison in New York prior to being proven
innocent. He was denied parole three times, in part because he refused to admit guilt at the Parole Board. Westchester Exoneree Kian Khattibi served nine and a half years before it was revealed that his brother committed the crime, and not he.
Prior to that, at his Parole Board Appearance, he maintained his innocence. The Parole Board denied him parole based upon that fact, saying “Your lack of remorse minimizing your involvement, notwithstanding your institutional adjustments, are a concern, and, when coupled with the violence in the instant offense make you an unacceptable risk for release at this time.”
Such a rigid approach doesn’t take into account the reality that wrongful convictions occur. I am unaware of any person so denied then successfully taking their case to court and obtaining relief. In fact, in many of the rare cases where a parole appeal based on any grounds at all is reversed, frequently the Court Of Appeals has stepped in and reversed the Appellate Division.
The problem of such a policy on the part of the Parole Board is obvious. It places the wrongfully convicted prisoner in the position of potentially sacrificing his or her freedom as the price for maintaining innocence, when in reality it doesn’t need to be done that way. Either an applicant can demonstrate by their record that they are likely to live and remain at liberty without breaking the law or not. The granting of parole need not be tied to a statement of responsibility.
An additional pitfall of such a guilt acknowledgement is that the wrongfully convicted defendant potentially creates additional evidence against himself in the event that his conviction is overturned, as part of the price of trying to meet the Parole Board requirements. An example of this is the John Duval case. He was convicted in 1973 of committing a murder in Rochester, New York, along with his co-defendant Betty Tyson. They were convicted based upon confessions which they stated were beaten out of them, and on the testimony of two teenage runaways.
After his appeals failed, in order to try to obtain his freedom, Duval twice admitted guilt in front of the Parole Board in 1995 and 1997 because he felt that was the only way he could regain his freedom because of the practice.
Later his conviction, along with that of his co-defendant Betty Tyson, was overturned because one of the witnesses recanted his testimony, saying he had lied previously. In addition, prosecutors then came up with a buried synopsis of a police interview with the other teen, in which he denied seeing Duval or Tyson, contrary to what the teen had testified in 1973. However, while the prosecutors dropped the charges
and Tyson was awarded money for her imprisonment, prosecutors retried Duval, using the statements that he had made in front of the Parole Board as evidence.
5) Reverse Prior Decisions Allowing The Department Of Corrections To Mandate Self Incrimination In Order To Continue To Participate In The Sex Offender Program. Prior court challenges of this practice by the Department Of Corrections have not yielded any relief, even when a defendant is still pursuing appeals. In order to have any chance at parole, defendants convicted of sex offenses must admit guilt, to staff and peers, in writing, and give details. To not do so is considered to be tantamount to refusing the program. This, too, forces prisoners to potentially sacrifice freedom as the price for maintaining innocence. This does not take into account wrongful convictions.
I will close by saying there is a great need for incarcerative and financial penalties for rogue prosecutors who intentionally commit Brady and Rosario violations, suborn perjury, fail to correct perjury, and who have patterns and practices established with coroners and other experts, whereby those experts work backwards to prove whatever a prosecutor is trying to prove. I would urge you to include these in your report. After all, what does an honest prosecutor have to lose? To me, prosecutorial misconduct is like any other crime. Don’t do the time if you can’t do the time.
I hope that your report will be hard hitting, critical, and proves to be an impetus by which urgently needed legislation is obtained. The cracks in the system which I have attempted to point out above are correctable judicially. Please do not ignore problems from within while only addressing those from without.
Best regards,
Jeffrey Deskovic, Criminal Justice Advocate and Exoneree
Thursday, May 7, 2009
Jeff Deskovic.
Jeff Deskovic
Exposing The Death Penalty, Part 1
In my effort to raise awareness about the problem of wrongful convictions, as well as seeking legislative changes to make the criminal justice
system more accurate, I have always included abolishing the death penalty amongst the reforms I advocate. My reasoning is simple: any system of justice that results in wrongful convictions will, if it has a death penalty as a sentencing option, inevitably execute innocent people.
This past March 17 New Mexico legislatively abolished the death penalty citing, amongst other issues, that very real possibility. In this threepart series I will review likely wrongful executions, near-misses, ongoing cases of potential wrongful execution, systemic deficiencies, along with one case example wherein innocent people were wrongly convicted and sentenced to death before being cleared. And then, I will look at modern-day recognition that the death penalty risks the execution of innocent people.
Likely Wrongful Executions
There are a variety of cases wherein it is very likely that innocent people have been executed, as established by facts, circumstances, and statements from people involved, in one way or another, which can show a reasonable basis upon which to believe that the executed individual was likely innocent. These case summaries are taken from the Death Penalty Information Center.
Ruben Cantu
A two-part investigative series by the Houston Chronicle casts serious doubt on the guilt of a Texas man who was executed in 1993. Ruben Cantu had persistently proclaimed his innocence and was only 17 when he was charged with capital murder for the shooting death of a San Antonio man during an attempted robbery. Now, the prosecutor and the jury forewoman have expressed doubts about the case.
Moreover, both a key eyewitness in the state’s case against Cantu, and Cantu’s co-defendant, have come forward to say that Texas executed an innocent man. Juan Moreno, who was wounded during the attempted robbery and was a key eyewitness in the case against Cantu, now says that it was not Cantu who shot him and that he only identified Cantu as the shooter because he felt pressured, and was afraid of the authorities.
Moreno said that he twice told police that Cantu was not his assailant, but that the authorities continued to pressure him to identify Cantu as the shooter after Cantu was involved in an unrelated wounding of a police officer.
“The police were sure it was (Cantu) because he had hurt a police officer. They told me they were certain it was him, and that’s why I testified. . . . That was bad to blame someone that was not there,” Moreno told the Chronicle.
In addition, David Garza, Cantu’s co-defendant during his 1985 trial, recently signed a sworn affidavit saying that he allowed Cantu to be accused and executed even though he wasn’t with him on the night of the killing. Garza stated, “Part of me died when he died.
You’ve got a 17-year-old who went to his grave for something he did not do. Texas murdered an innocent person.” Furthermore, Sam D. Millsap, Jr., the Bexar County District Attorney who charged Cantu with capital murder, said he never should have sought the death penalty in a case based on testimony from an eyewitness who identified a suspect only after police showed him Cantu’s photo three separate times.
And, Miriam Ward, forewoman of the jury that convicted Cantu, said the jury’s decision was the best they could do based on the information
presented during the trial. She noted, “With a little extra work, a little extra effort, maybe we’d have gotten the right information. The bottom line is, an innocent person was put to death for it. We all have our finger in that.”
Larry Griffin
A year-long investigation by the NAACP Legal Defense and Educational Fund has uncovered evidence that Larry Griffin may have been innocent of the crime for which he was executed by the State of Missouri on June 21, 1995. Griffin maintained his innocence until his death, and investigators say his case is the strongest demonstration yet of an execution of an innocent man. The report notes that a man injured in the same drive-by shooting that claimed the life of Quintin Moss says Griffin was not involved in the crime, and the first police officer on the scene has given a new account that undermines the trial testimony of the only witness who identified Griffin as the murderer.
Based on its findings, the NAACP has supplied the prosecution with the names of three men it suspects committed the crime, and all three of the suspects are currently in jail for other murders. Prosecutor Jennifer Joyce said she has reopened the investigation and will conduct a comprehensive review of the case over the next few months. “There is no real doubt that we have an innocent person. If we could go to trial on this case, if there was a forum where we could take this to trial, we would win hands down,” stated University of Michigan law professor
Samuel Gross, who supervised the investigation into Griffin’s case.
Joseph O’Dell
New DNA blood evidence has thrown considerable doubt on the murder and rape conviction of O’Dell. In reviewing his case in 1991, three Supreme Court Justices said they had doubts about O’Dell’s guilt and whether he should have been allowed to represent himself. Without
the blood evidence, there is little linking O’Dell to the crime. In September, 1996, the 4th Circuit of the U.S. Court of Appeals reinstated his death sentence and upheld his conviction. The U.S. Supreme Court refused to review O’Dell’s claims of innocence and held that its decision regarding juries being told about the alternative sentence of life-without-parole was not retroactive to his case. O’Dell asked the state to conduct DNA tests on other pieces of evidence to demonstrate his innocence but was refused.
David Spence
Spence was charged with murdering three teenagers in 1982. He was allegedly hired by a convenience store owner to kill another girl, and killed these victims by mistake. The convenience store owner, Muneer Deeb, was originally convicted and sentenced to death, but then was acquitted at a re-trial. The police lieutenant who supervised the investigation of Spence, Marvin Horton, later concluded: “I do not think David Spence committed this crime.”
Ramon Salinas, the homicide detective who actually conducted the investigation, said: “My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved.” No physical evidence connected Spence to the crime. The case against Spence was pursued by a zealous narcotics cop who relied on testimony of prison inmates who were granted favors in return
for testimony.
Leo Jones
Jones was convicted of murdering a police officer in Jacksonville, Florida, and was executed. Jones signed a confession after several hours of police interrogation, but he later claimed the confession was coerced. In the mid-1980s, the policeman who arrested Jones and the detective who took his confession were forced out of uniform for ethical violations. The policeman was later identified by a fellow officer as an “enforcer” who had used torture. Many witnesses came forward pointing to another suspect in the case.
Gary Graham
On June 23, 2000, Gary Graham was executed in Texas, despite claims that he was innocent. Graham was 17 when he was charged with the 1981 robbery and shooting of Bobby Lambert outside a Houston supermarket. He was convicted primarily on the testimony of one witness, Bernadine Skillern, who said she saw the killer’s face for a few seconds through her car windshield, from a distance of 30-40 feet away.
Two other witnesses, who both worked at the grocery store and said they got a good look at the assailant, said Graham was not the killer, but
were never interviewed by Graham’s court-appointed attorney, Ronald Mock, and were not called to testify at trial. Three of the jurors who voted to convict Graham signed affidavits saying they would have voted differently had all of the evidence been available.
Cameron Willingham
After examining evidence from the capital prosecution of Cameron Willingham, four national arson experts have concluded that the original investigation of Willingham’s case was flawed and it is possible the fire was accidental. The independent investigation, reported by the Chicago
Tribune, found that prosecutors and arson investigators used arson theories that have since been repudiated by scientific advances.
Willingham was executed earlier this year in Texas despite his consistent claims of innocence. He was convicted of murdering his three children in a
1991 house fire. Arson expert Gerald Hurst said, “There’s nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire.” Former Louisiana State University fire instructor Kendall Ryland added, “[It] made me sick to think this guy was executed based on this investigation....
They executed this guy and they’ve just got no idea - at least not scientifically - if he set the fire, or if the fire was even intentionally set.” Willingham was convicted of capital murder after arson investigators concluded that 20 indicators of arson led them to believe that an accelerant had been used to set three separate fires inside his home. Among the only other evidence presented by prosecutors during the trial was testimony from jailhouse snitch Johnny E. Webb, a drug addict on psychiatric medication, who claimed Willingham had confessed to him in the county jail.
Some of the jurors who convicted Willingham were troubled when told of the new case review. Juror Dorinda Brokofsky asked, “Did anybody know
about this prior to his execution? Now I will have to live with this for the rest of my life. Maybe this man was innocent.” Prior to the execution, Willingham’s defense attorneys presented expert testimony regarding the new arson investigation to the state’s highest court, as well as to Texas Governor Rick Perry.
No relief was granted and Willingham was executed February 17, 2004. Coincidentally, less than a year after Willingham’s execution, arson evidence presented by some of the same experts who had appealed for relief in Willingham’s case helped free Ernest Willis from Texas’ death row. The experts noted that the evidence in the Willingham case was nearly identical to the evidence used to exonerate Willis.
Near Misses
There have been a variety of cases where innocent people have come frighteningly close to being executed. These cases also show, clearly, how
innocent people can be wrongfully convicted, sentenced to death and executed.
Kenneth Foster
Foster and several of his friends went on a crime spree in Texas in 1997. Eventually the crime spree ended, but Foster never parted company with one of his friends, Maurecio Brown. On the way home, Brown left the car to talk to a woman. An argument ensued that soon involved her boyfriend. Brown claimed that the victim reached into his jeans, which he interpreted as reaching for a gun. Brown pulled out his gun and killed
the victim some 100 yards in front of the car that Foster was in.
Foster had no idea that Brown would do this and the crime was not a part of their criminal conduct; he had simply made the mistake of not parting company with him. Nonetheless, he had been sentenced to death. Based upon a groundswell of grass roots support, extensive media coverage and editorials, national and international support, Foster’s death sentence was commuted on noon of the day that he was scheduled to be executed, August 30, 2007.
Ron Williamson
Ron Williamson was wrongfully convicted of murder in Oklahoma in 1998, along with his co-defendant Dennis Fritz. Williamson received the
death penalty, whereas Fritz received life in prison. The Innocence Project summarizes his case this way: An inmate that Fritz was paired with eventually came forward and stated that Fritz had confessed to the murder. This jailhouse snitch gave a two hour taped interview revealing what Fritz had allegedly confessed to him. This confession came one day before the prosecution would have been forced to drop the charges against
Fritz. Another informant testified that she had heard Williamson threaten to harm his mother as he had the victim.
Williamson was also seen at the bar the night of the murder, according to a witness named Glenn Gore. Additionally, police had statements from
Williamson regarding a dream he had about the crime.
Forensic testing was performed on various items of evidence. Seventeen hairs were recovered and were “matched” to both Fritz and Williamson.
The semen evidence suggested that the perpetrator(s) were non-secretors, as Fritz and Williamson are. Fritz could not remember his exact thereabouts during the day of the crime due to the amount of time, five years, that had passed. DNA testing revealed that neither Fritz nor Williamson deposited the spermatozoa found in the victim. Further testing proved that none of the many hairs that were labeled “matches”
belonged to them. The profile obtained from the semen evidence matched Glenn Gore. At one point, Williamson had come within 5 days of execution.
Earl Washington
Washington was arrested for murder and rape in Virginia. The Innocence Project summarizes his case this way: He had an IQ in the range of 69. Following questioning for two days, police claimed that he had confessed to five different crimes. The state dismissed the confessions of the first four because of the inconsistencies. They charged him with the fifth murder, however, despite not knowing the race of the victim, the address of the apartment where she was killed, or that he had raped her.
Washington also testified that Ms. Williams had been short when in fact she was 5’8”, that he had stabbed her two or three times when the victim showed thirty-eight stab wounds, and that there was no one else in the apartment when it was known that Ms. Williams’ two young children were with her in the apartment on the day of the crime.
Only on the fourth attempt at a rehearsed confession did authorities accept Washington’s statement and have it recorded in writing with Washington’s signature. He only picked out the scene of the crime after being taken there three times in one afternoon by the police, who in the end had to help him pick out Williams’ apartment. The confession proved to be the prosecution’s only evidence linking Washington to the crime.
Psychological analyses of Washington reported that, to compensate for his disability, Washington would politely defer to any authority figure
with whom he came into contact. Thus, when police officers asked Washington leading questions in order to obtain a confession, he complied and offered affirmative responses in order to gain their approval. At trial, only the State’s psychologist testified, claiming that Washington was competent when his statement was given.
The prosecution’s case hinged on Washington’s statements as well as his identification of a shirt given to the police by the victim’s family six weeks after the crime. A forensic analyst conducted serology testing on evidence from the crime scene and detected a rare plasma protein. Once Washington, who does not possess the rare protein, became a suspect, an amended forensic report was prepared (without additional testing being conducted) that said testing for the rare protein was “inconclusive.”
DNA testing in 1993 proved his innocence, but his death sentence was merely commuted in 1994. It took 6 more years before he was allowed to
have more sophisticated DNA testing, which ultimately resulted in his being pardoned based upon innocence. At one point, Washington came
within 9 days of execution.
Exposing The Death Penalty, Part 1
In my effort to raise awareness about the problem of wrongful convictions, as well as seeking legislative changes to make the criminal justice
system more accurate, I have always included abolishing the death penalty amongst the reforms I advocate. My reasoning is simple: any system of justice that results in wrongful convictions will, if it has a death penalty as a sentencing option, inevitably execute innocent people.
This past March 17 New Mexico legislatively abolished the death penalty citing, amongst other issues, that very real possibility. In this threepart series I will review likely wrongful executions, near-misses, ongoing cases of potential wrongful execution, systemic deficiencies, along with one case example wherein innocent people were wrongly convicted and sentenced to death before being cleared. And then, I will look at modern-day recognition that the death penalty risks the execution of innocent people.
Likely Wrongful Executions
There are a variety of cases wherein it is very likely that innocent people have been executed, as established by facts, circumstances, and statements from people involved, in one way or another, which can show a reasonable basis upon which to believe that the executed individual was likely innocent. These case summaries are taken from the Death Penalty Information Center.
Ruben Cantu
A two-part investigative series by the Houston Chronicle casts serious doubt on the guilt of a Texas man who was executed in 1993. Ruben Cantu had persistently proclaimed his innocence and was only 17 when he was charged with capital murder for the shooting death of a San Antonio man during an attempted robbery. Now, the prosecutor and the jury forewoman have expressed doubts about the case.
Moreover, both a key eyewitness in the state’s case against Cantu, and Cantu’s co-defendant, have come forward to say that Texas executed an innocent man. Juan Moreno, who was wounded during the attempted robbery and was a key eyewitness in the case against Cantu, now says that it was not Cantu who shot him and that he only identified Cantu as the shooter because he felt pressured, and was afraid of the authorities.
Moreno said that he twice told police that Cantu was not his assailant, but that the authorities continued to pressure him to identify Cantu as the shooter after Cantu was involved in an unrelated wounding of a police officer.
“The police were sure it was (Cantu) because he had hurt a police officer. They told me they were certain it was him, and that’s why I testified. . . . That was bad to blame someone that was not there,” Moreno told the Chronicle.
In addition, David Garza, Cantu’s co-defendant during his 1985 trial, recently signed a sworn affidavit saying that he allowed Cantu to be accused and executed even though he wasn’t with him on the night of the killing. Garza stated, “Part of me died when he died.
You’ve got a 17-year-old who went to his grave for something he did not do. Texas murdered an innocent person.” Furthermore, Sam D. Millsap, Jr., the Bexar County District Attorney who charged Cantu with capital murder, said he never should have sought the death penalty in a case based on testimony from an eyewitness who identified a suspect only after police showed him Cantu’s photo three separate times.
And, Miriam Ward, forewoman of the jury that convicted Cantu, said the jury’s decision was the best they could do based on the information
presented during the trial. She noted, “With a little extra work, a little extra effort, maybe we’d have gotten the right information. The bottom line is, an innocent person was put to death for it. We all have our finger in that.”
Larry Griffin
A year-long investigation by the NAACP Legal Defense and Educational Fund has uncovered evidence that Larry Griffin may have been innocent of the crime for which he was executed by the State of Missouri on June 21, 1995. Griffin maintained his innocence until his death, and investigators say his case is the strongest demonstration yet of an execution of an innocent man. The report notes that a man injured in the same drive-by shooting that claimed the life of Quintin Moss says Griffin was not involved in the crime, and the first police officer on the scene has given a new account that undermines the trial testimony of the only witness who identified Griffin as the murderer.
Based on its findings, the NAACP has supplied the prosecution with the names of three men it suspects committed the crime, and all three of the suspects are currently in jail for other murders. Prosecutor Jennifer Joyce said she has reopened the investigation and will conduct a comprehensive review of the case over the next few months. “There is no real doubt that we have an innocent person. If we could go to trial on this case, if there was a forum where we could take this to trial, we would win hands down,” stated University of Michigan law professor
Samuel Gross, who supervised the investigation into Griffin’s case.
Joseph O’Dell
New DNA blood evidence has thrown considerable doubt on the murder and rape conviction of O’Dell. In reviewing his case in 1991, three Supreme Court Justices said they had doubts about O’Dell’s guilt and whether he should have been allowed to represent himself. Without
the blood evidence, there is little linking O’Dell to the crime. In September, 1996, the 4th Circuit of the U.S. Court of Appeals reinstated his death sentence and upheld his conviction. The U.S. Supreme Court refused to review O’Dell’s claims of innocence and held that its decision regarding juries being told about the alternative sentence of life-without-parole was not retroactive to his case. O’Dell asked the state to conduct DNA tests on other pieces of evidence to demonstrate his innocence but was refused.
David Spence
Spence was charged with murdering three teenagers in 1982. He was allegedly hired by a convenience store owner to kill another girl, and killed these victims by mistake. The convenience store owner, Muneer Deeb, was originally convicted and sentenced to death, but then was acquitted at a re-trial. The police lieutenant who supervised the investigation of Spence, Marvin Horton, later concluded: “I do not think David Spence committed this crime.”
Ramon Salinas, the homicide detective who actually conducted the investigation, said: “My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved.” No physical evidence connected Spence to the crime. The case against Spence was pursued by a zealous narcotics cop who relied on testimony of prison inmates who were granted favors in return
for testimony.
Leo Jones
Jones was convicted of murdering a police officer in Jacksonville, Florida, and was executed. Jones signed a confession after several hours of police interrogation, but he later claimed the confession was coerced. In the mid-1980s, the policeman who arrested Jones and the detective who took his confession were forced out of uniform for ethical violations. The policeman was later identified by a fellow officer as an “enforcer” who had used torture. Many witnesses came forward pointing to another suspect in the case.
Gary Graham
On June 23, 2000, Gary Graham was executed in Texas, despite claims that he was innocent. Graham was 17 when he was charged with the 1981 robbery and shooting of Bobby Lambert outside a Houston supermarket. He was convicted primarily on the testimony of one witness, Bernadine Skillern, who said she saw the killer’s face for a few seconds through her car windshield, from a distance of 30-40 feet away.
Two other witnesses, who both worked at the grocery store and said they got a good look at the assailant, said Graham was not the killer, but
were never interviewed by Graham’s court-appointed attorney, Ronald Mock, and were not called to testify at trial. Three of the jurors who voted to convict Graham signed affidavits saying they would have voted differently had all of the evidence been available.
Cameron Willingham
After examining evidence from the capital prosecution of Cameron Willingham, four national arson experts have concluded that the original investigation of Willingham’s case was flawed and it is possible the fire was accidental. The independent investigation, reported by the Chicago
Tribune, found that prosecutors and arson investigators used arson theories that have since been repudiated by scientific advances.
Willingham was executed earlier this year in Texas despite his consistent claims of innocence. He was convicted of murdering his three children in a
1991 house fire. Arson expert Gerald Hurst said, “There’s nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire.” Former Louisiana State University fire instructor Kendall Ryland added, “[It] made me sick to think this guy was executed based on this investigation....
They executed this guy and they’ve just got no idea - at least not scientifically - if he set the fire, or if the fire was even intentionally set.” Willingham was convicted of capital murder after arson investigators concluded that 20 indicators of arson led them to believe that an accelerant had been used to set three separate fires inside his home. Among the only other evidence presented by prosecutors during the trial was testimony from jailhouse snitch Johnny E. Webb, a drug addict on psychiatric medication, who claimed Willingham had confessed to him in the county jail.
Some of the jurors who convicted Willingham were troubled when told of the new case review. Juror Dorinda Brokofsky asked, “Did anybody know
about this prior to his execution? Now I will have to live with this for the rest of my life. Maybe this man was innocent.” Prior to the execution, Willingham’s defense attorneys presented expert testimony regarding the new arson investigation to the state’s highest court, as well as to Texas Governor Rick Perry.
No relief was granted and Willingham was executed February 17, 2004. Coincidentally, less than a year after Willingham’s execution, arson evidence presented by some of the same experts who had appealed for relief in Willingham’s case helped free Ernest Willis from Texas’ death row. The experts noted that the evidence in the Willingham case was nearly identical to the evidence used to exonerate Willis.
Near Misses
There have been a variety of cases where innocent people have come frighteningly close to being executed. These cases also show, clearly, how
innocent people can be wrongfully convicted, sentenced to death and executed.
Kenneth Foster
Foster and several of his friends went on a crime spree in Texas in 1997. Eventually the crime spree ended, but Foster never parted company with one of his friends, Maurecio Brown. On the way home, Brown left the car to talk to a woman. An argument ensued that soon involved her boyfriend. Brown claimed that the victim reached into his jeans, which he interpreted as reaching for a gun. Brown pulled out his gun and killed
the victim some 100 yards in front of the car that Foster was in.
Foster had no idea that Brown would do this and the crime was not a part of their criminal conduct; he had simply made the mistake of not parting company with him. Nonetheless, he had been sentenced to death. Based upon a groundswell of grass roots support, extensive media coverage and editorials, national and international support, Foster’s death sentence was commuted on noon of the day that he was scheduled to be executed, August 30, 2007.
Ron Williamson
Ron Williamson was wrongfully convicted of murder in Oklahoma in 1998, along with his co-defendant Dennis Fritz. Williamson received the
death penalty, whereas Fritz received life in prison. The Innocence Project summarizes his case this way: An inmate that Fritz was paired with eventually came forward and stated that Fritz had confessed to the murder. This jailhouse snitch gave a two hour taped interview revealing what Fritz had allegedly confessed to him. This confession came one day before the prosecution would have been forced to drop the charges against
Fritz. Another informant testified that she had heard Williamson threaten to harm his mother as he had the victim.
Williamson was also seen at the bar the night of the murder, according to a witness named Glenn Gore. Additionally, police had statements from
Williamson regarding a dream he had about the crime.
Forensic testing was performed on various items of evidence. Seventeen hairs were recovered and were “matched” to both Fritz and Williamson.
The semen evidence suggested that the perpetrator(s) were non-secretors, as Fritz and Williamson are. Fritz could not remember his exact thereabouts during the day of the crime due to the amount of time, five years, that had passed. DNA testing revealed that neither Fritz nor Williamson deposited the spermatozoa found in the victim. Further testing proved that none of the many hairs that were labeled “matches”
belonged to them. The profile obtained from the semen evidence matched Glenn Gore. At one point, Williamson had come within 5 days of execution.
Earl Washington
Washington was arrested for murder and rape in Virginia. The Innocence Project summarizes his case this way: He had an IQ in the range of 69. Following questioning for two days, police claimed that he had confessed to five different crimes. The state dismissed the confessions of the first four because of the inconsistencies. They charged him with the fifth murder, however, despite not knowing the race of the victim, the address of the apartment where she was killed, or that he had raped her.
Washington also testified that Ms. Williams had been short when in fact she was 5’8”, that he had stabbed her two or three times when the victim showed thirty-eight stab wounds, and that there was no one else in the apartment when it was known that Ms. Williams’ two young children were with her in the apartment on the day of the crime.
Only on the fourth attempt at a rehearsed confession did authorities accept Washington’s statement and have it recorded in writing with Washington’s signature. He only picked out the scene of the crime after being taken there three times in one afternoon by the police, who in the end had to help him pick out Williams’ apartment. The confession proved to be the prosecution’s only evidence linking Washington to the crime.
Psychological analyses of Washington reported that, to compensate for his disability, Washington would politely defer to any authority figure
with whom he came into contact. Thus, when police officers asked Washington leading questions in order to obtain a confession, he complied and offered affirmative responses in order to gain their approval. At trial, only the State’s psychologist testified, claiming that Washington was competent when his statement was given.
The prosecution’s case hinged on Washington’s statements as well as his identification of a shirt given to the police by the victim’s family six weeks after the crime. A forensic analyst conducted serology testing on evidence from the crime scene and detected a rare plasma protein. Once Washington, who does not possess the rare protein, became a suspect, an amended forensic report was prepared (without additional testing being conducted) that said testing for the rare protein was “inconclusive.”
DNA testing in 1993 proved his innocence, but his death sentence was merely commuted in 1994. It took 6 more years before he was allowed to
have more sophisticated DNA testing, which ultimately resulted in his being pardoned based upon innocence. At one point, Washington came
within 9 days of execution.
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