Two stories about justice & injustice—and wrongful convictions

AN LAPD LIEUTENANT TALKS ABOUT A FLAWED CRIMINAL JUSTICE SYSTEM

My friend LAPD Lieutenant Sunil Dutta has written an Op Ed for the Ventura Star that is very much worth reading. Dutta is a scientist and scholar of music and poetry turned police officer and he has a uniquely wise and philosophic view of policing—a profession he loves but, of which, he is also at times thoughtfully critical.

In this particular essay, Sunil used the Willingham arson case as a jumping off point.

Here is a clip or two:

Corrupt officers can destroy people’s faith in policing and cause incalculable harm to those with whom they come in contact. However, a major shortcoming in policing, something far more dangerous, has never been completely addressed seriously by our criminal-justice system. My scientific temperament picked up this issue within a short time after I joined LAPD, and a fear has always persisted in my subconscious that major harm could result from our reliance on two fallible tools: eyewitnesses and shoddy forensic science.

Last month, what I feared was confirmed in the most ghastly way…..

[BIG SNIP]

People, especially in law enforcement, have a hard time comprehending such stories. Don’t we live in a free society where criminals have too many rights and the police’s hands are tied up by too many regulations? Every cop knows at least a few criminals who walk around free — because we can’t charge or convict them.

Yet, we have innocent people railroaded through our “justice” system, all the way to lethal injections and electric chair. Why?

The answer lies both in our human and institutional natures. As humans, we tend to believe whatever fits our self-interest, discarding facts that tend to challenge our hypotheses. The errors of deduction can, therefore, multiply in an investigation when shoddy science is applied or where we rely solely on eyewitnesses. As Willingham’s case demonstrates, the combination can sometimes be fatal.

Read the rest.

PROSECUTORS RETALIATE AGAINST INNOCENCE PROJECT STUDENTS

Okay, one couldn’t make this kind of thing up. The NY Times story below has the details.

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves.

The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.

[SNIP]

Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

Read the rest. It’s jaw-dropping.

A former federal judge writing for the Huffington Post thinks so too.

And here is the Medill Innocence Project’s own account.

The Willingham innocence case is back in the news yet again.

Eighty-eight minutes before Tod Willingham was executed in 1994, Texas Governor Rick Perry was faxed a report by a respected arson expert suggesting that Willingham might be innocent. Perry either ignored or did not read the report and Willingham was put to death anyway.

Now, a decade and a half later, Governor Perry is up for reelection in a tightly contested primary race. And so, likely fearing some belated political blow-back, Perry seems to be doing all he can to bury any and all mention of Cameron Tod Willingham, his execution, and his extremely inconvenient possible innocence.

For instance, last week, Perry refused to release the documentation showing whether he or his staff ever looked at that arson report that pleaded for a stay of execution for Willingham.

At the end of September, Perry tossed out the head of the Texas Forensic Science Commission, which had gained his ire by by hiring an arson expert to look at the Cameron Todd Willingham case.

Yesterday, the ousted head of the commission went public with how pressured he had been by the governor’s lawyers and others to stop the Willingham investigation.

Now, as the Fort Worth Star-Telegram puts it, Perry’s hatchet has fallen again on the Commission:

The governor has now replaced all four of his appointees, including the chairman, to the nine-member Texas Forensic Science Commission. His actions came as the commission was investigating its highest-profile case, involving the possibility that an innocent man was executed in 2004.

Because of the reshuffling of members, an Oct. 2 meeting of the commission, at which it planned to hear from an arson expert, was indefinitely postponed.

The out-of-state expert had prepared a report that said the forensic evidence in the case of Cameron Todd Willingham, accused of murdering his three daughters in a fire, was faulty and that the blaze that killed the children was not a result of arson.

Just two days before the scheduled meeting, the governor began his purge, informing three members that their services were no longer needed. Last week he dismissed his fourth appointee, leaving many to wonder if his sudden moves were politically motivated because he had signed off on the Willingham execution five years ago — and he has a tough primary race coming up in March.

Newspapers like the Dallas Morning News have told Perry to back off.

The report on CNN’s 360 with Anderson Cooper embedded above is also scathing.

There will be more developments, I’m sure.

This is about the Willingham arson story I wrote about early last month, in which three different sets of arson investigators came to the conclusion that Todd Willingham had not set the fire that killed his children and for whose murders he was convicted. This meant that Texas had likely executed an innocent man. A new, more encompassing report was supposed to be issued by a Texas commission in 2010. But now there is a rather disturbing piece of news about the fate of that report.

I’ll let Scott Hensen of the Texas Watchdog blog, Grits for Breakfast, tell you:

Outrageous!

It’d be hard to make this up; it seems more like caricature or some tale from days of yore out of Tammany Hall, but it’s actually today’s news: Governor Rick Perry has ousted the head of the Texas Forensic Science Commission, which had displeased him by soliciting what turned out to be damning expert opinion regarding the Cameron Todd Willingham case (in which supposedly expert arson testimony used to convict Willingham and justify his execution was later debunked by modern science). The case has drawn national attention since the release of expert testimony solicited by the commission followed by the publication of a widely cited New Yorker article last month.

As the new chair, Perry chose (of all people) Williamson County District Attorney John Bradley, who prides himself on being one of the most outspoken proponents among Texas prosecutors of a sort of neoconservative, tough on crime philosophy. The Statesman called Bradley “a tough-on-crime politically connected conservative.” I’ve certainly heard him called worse! (Hi John!)

Bradley’s first act as chair? To cancel a hearing Friday where the Commission was scheduled to hear a report from experts they’ve paid tens of thousands of dollars to analyze the science behind Todd Willingham’s conviction. No word on whether or if the public hearing might be rescheduled…..

Read the rest here. And the Grits site has plenty of links.

In December 21, 1991. the house that Cameron Todd Willingham shared with his wife and his three little girls, burned to the ground.

The fire moved quickly through the house, a one-story wood-frame structure in a working-class neighborhood of Corsicana, in northeast Texas. Flames spread along the walls, bursting through doorways, blistering paint and tiles and furniture. Smoke pressed against the ceiling, then banked downward, seeping into each room and through crevices in the windows, staining the morning sky.

Buffie Barbee, who was eleven years old and lived two houses down, was playing in her back yard when she smelled the smoke. She ran inside and told her mother, Diane, and they hurried up the street; that’s when they saw the smoldering house and Cameron Todd Willingham standing on the front porch, wearing only a pair of jeans, his chest blackened with soot, his hair and eyelids singed. He was screaming, “My babies are burning up!” His children—Karmon and Kameron, who were one-year-old twin girls, and two-year-old Amber—were trapped inside.

At 6:20 p.m. on February 17, 2004, Cameron Todd Willingham was executed by lethal injection for deliberately setting the fire that caused his three daughters to be burned to death. The jury concluded that Willingham fully intended to kill his children.

In a remarkable article for this week’s issue of the New Yorker Magazine, journalist David Grann looks at the case against Willingham. The conclusions are heartbreaking and disturbing—particularly in what they suggest about the use of expert witnesses, in this case an arson investigator and a deputy fire marshal named Manuel Vasquez, who told anyone who asked that he believed himself never to be wrong, and who nearly always came down on the side of guilt.

Once, he was asked under oath whether he had ever been mistaken in a case. “If I have, sir, I don’t know,” he responded. “It’s never been pointed out.”

Using an elaborate set of “proofs,” Vasquez told the jury that Willingham had set the fire in the girls’ room using a liquid accelerant.

Throughout the proceedings, Willingham steadfastly maintained that he was innocent. He even rejected a deal offered by the prosecutors that would have kept him off of death row because it required him to admit to the crime the he insisted he did not commit.

Then in January 2004, a few weeks before Willingham was to be executed, Willingham’s lawyer along with his friend and supporter, a woman named Elizabeth Gilbert with whom he’d developed a platonic friendship through a prison pen pal program, talked acclaimed scientist and fire investigator, Dr. Gerald Hurst, into reexamining the file.

When Hurst subjected Vasquez’s conclusions to exhaustive examination , he concluded that Vasquez’s analysis of the Willingham fire was made of myth, gut-feeling and smoke. It did not conform at all with scientific knowledge about fire behavior.

Based on the evidence, Hurst wrote…

…..he had little doubt that it was an accidental fire—one caused most likely by the space heater or faulty electrical wiring. It explained why there had never been a motive for the crime. Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on “junk science.” Hurst wrote his report in such a rush that he didn’t pause to fix the typos.

Willingham’s lawyer rushed copies of Hurst’s report to the governor of Texas and to the fifteen members of the Board of Pardons and Paroles, They were unmoved. It appears that they likely did not read the report.

Willingham was executed four days later.

When he was asked if he had any last words Willingham said,:

“The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”

Last Tuesday, August 25, the findings of a team of state-hired experts released their initial 64-page report on the Willingham fire. The team, headed by Dr. Craig L. Beyler, found the same thing that Hurst had found in 2004. The 2009 Beyler team also concurred with the findings of a 2006 investigation by five fire-investigation experts hired by the Innocence Project.

Beyler wrote that Vasquez’s conclusions seemed to deny “rational reasoning” and were more “characteristic of mystics or psychics.”

The Chicago Tribune, which has been following the story closely since 2004, wrote the following after they reviewed the Beyler report, which they called “a withering critique”:

Among Beyler’s key findings: that investigators failed to examine all of the electrical outlets and appliances in the Willinghams’ house in the small Texas town of Corsicana, did not consider other potential causes for the fire, came to conclusions that contradicted witnesses at the scene, and wrongly concluded Willingham’s injuries could not have been caused as he said they were.

The state fire marshal on the case, Beyler concluded in his report, had “limited understanding” of fire science. The fire marshal “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” he wrote.

The marshal’s findings, he added, “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

Over the past five years, the Willingham case has been reviewed by nine of the nation’s top fire scientists — first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.

According to the Dallas Morning News, a final report will be issued in early 2010.

I have only told you the bare bones of the story. For the rest, read the New Yorker article.

Here, also, is a link to the full Beyler report.

On Wednesday afternoon, New Mexico Governor Bill Richardson signed a bill— passed last Friday in the NM State Legislature—that will abolish the death penalty in the state for the next ten years.

(The bill replaces the death penalty with life without possibility of parole.)

Interestingly, Richardson did so only after asking New Mexicans to weigh in on the issue—either by phone or by email.

As of noon on Wednesday, Richardson’s office told CNN, that it had received 10,847 phone calls, e-mails and walk-in comments from people who wanted to voice their opinions on the legislation.

It turned out that, in Richardson’s ad hoc poll, a repeal of the death penalty won by something of a landslide: 8,102 wanted the ban, and 2,745 thought the death penalty should stay put.

In addition, Richardson met Monday with more than 100 New Mexicans to discuss the issue, including law enforcement officers and the families of murder victims.

(By the way, while he has already signed the bill, you can still opine to or thank Governor Bill on the death penalty matter, even after the fact, by calling: 505-476-2225.)

New Mexico is only the second state to ban executions since the U.S. Supreme Court reinstated the death penalty in 1976. (It joins 14 other states that do not have capital punishment.)

Here are some clips from Richardson’s statement about why he signed:

Today marks the end of a long, personal journey for me and the issue of the death penalty.

Throughout my adult life, I have been a firm believer in the death penalty as a just punishment – in very rare instances, and only for the most heinous crimes. I still believe that.

[SNIP]

Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime. If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong.

But the reality is the system is not perfect – far from it. The system is inherently defective. DNA testing has proven that. Innocent people have been put on death row all across the country.

Even with advances in DNA and other forensic evidence technologies, we can’t be 100-percent sure that only the truly guilty are convicted of capital crimes. Evidence, including DNA evidence, can be manipulated. Prosecutors can still abuse their powers. We cannot ensure competent defense counsel for all defendants. The sad truth is the wrong person can still be convicted in this day and age, and in cases where that conviction carries with it the ultimate sanction, we must have ultimate confidence – I would say certitude – that the system is without flaw or prejudice. Unfortunately, this is demonstrably not the case.

And it bothers me greatly that minorities are overrepresented in the prison population and on death row….

There’s more here.

Certainly, Richardson made a political statement. But it is also a thoughtful one and represents, I suspect, the perspective of many other thoughtful people who have long favored the death penalty but who are made increasingly queasy by the now hundreds of people on death row and/or serving lengthy prison sentences—who have been found to be innocent after DNA technology was applied to their cases.

Richardson closes with the following:

More than 130 death row inmates have been exonerated in the past 10 years in this country, including four New Mexicans – a fact I cannot ignore.

From an international human rights perspective, there is no reason the United States should be behind the rest of the world on this issue. Many of the countries that continue to support and use the death penalty are also the most repressive nations in the world. That’s not something to be proud of.

In a society which values individual life and liberty above all else, where justice and not vengeance is the singular guiding principle of our system of criminal law, the potential for wrongful conviction and, God forbid, execution of an innocent person stands as anathema to our very sensibilities as human beings…..

Nicely put, Bill.

Kansas could possibly be next up to bat.

PS: Since fiscal issues are of prime concern in these bleak economic days, here’s a rundown on why the death penalty costs more than locking up someone for life.

On Wednesday, The National Academy of Sciences released a hugely significant report that, as the NY writes:

…….calls into question the scientific merit of virtually every commonly used forensic method, including analysis of fingerprints, hair, fibers, blood spatters, ballistics and arson. Only DNA, which the panel said had benefited from rigorous scientific scrutiny and peer review outside of the forensics discipline, escaped significant criticism.

“The fact is that many forensic tests, such as those used to infer the source of tooth marks and bite marks, have never been exposed to stringent scientific scrutiny,” the report said. The report highlights crime laboratory scandals involving hundreds of tainted cases handled by police agencies in Michigan, Texas and West Virginia, and by the Federal Bureau of Investigation. At least 10 wrongly convicted men have been exonerated as a result of those laboratory investigations, and the cases of hundreds of other people convicted with the help of those facilities are under review.

AG Eric Holder says his office will be “reviewing” the report over the next few days.

Wise idea, Eric.

As the report was just released yesterday, reactions thus far are just the temblers before the quake. But a quake is assuredly coming.

Here’s what the LA Times said in their story on the story:

…..the findings are expected to unleash a flood of new legal challenges by defense attorneys.

“This is a major turning point in the history of forensic science in America,” said Barry Scheck, co-founder of the Innocence Project, an organization dedicated to exonerating the wrongfully convicted. He said the findings would immediately lead to court challenges.

“If this report does not result in real change, when will it ever happen?” Scheck asked.

The Los Angeles County Public Defender’s office plans to use the National Academy report to file challenges on the admissibility of fingerprint evidence and is reviewing cases in which fingerprints played a primary role in convictions, officials said.

PREDICTION: Look for this report to have a signifcant effect on the issue of the death penalty America. We are already seeing articles like this one.

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IN OTHER CRIMINAL JUSTICE NEWS….

THE NEW YORK TIMES URGES Canada’s Harper to press Barak Obama to do the right thing and finally let torture and extraordinary rendition victiom, Maher Arar, finally have his day in the US Courts.

Good for the New York Times

NEARLY EVERY GANG PREVENTION AND INTERVENTION PERSON IN TOWN will be at the 5 p.m. Public Hearing being held in City Council Chambers to discuss a proposed piece of federal legislation known as the YOUTH PROMISE ACT (H.R. 3846), a bill introduced by Congressman Bobby Scott of Virginia. Scott will be there. I’ll post a report late tonight.

Why don’t liberals think it’s imortant to push for criminal justice reform? Why is it that when the subject of, say, incarceration policy is brought up among progressives at a dinner party, most fall into a stuporous state of AWOL—Asleep With Open Lids? (And the left mostly sh

Law prof/attorney, Doug Berman, who blogs at Sentencing Law and Policy, (which is one of my daily stops), has an essay in the Harvard Law Review that talks about how progressive’s used to lead the way on issues of sentencing reform and the like, but that now they (we) are notably silent on all criminal justice issues except for the death penalty and for wrongful convictions, a la the Innocence Project.

Here are a couple of clips.

….I fear that many progressives have failed to update their reform concerns and advocacy in light of twenty-first century realities. We primarily hear progressive voices speaking out against the death penalty and lamenting wrongfulconvictions and racial disparities in criminal justice systems. Over the last decade, for example, the American Bar Association and other organizations have produced massive reports urging execution moratoriums and major reforms to the administration of capital punishment. The Innocence Project and other organizations have spotlighted common causes of wrongful convictions and have urged states to establish innocence commissions. Given the stunning and unprecedented expansion of modern American imprisonment rates, however, the problems and consequences of mass incarceration should become the new preeminent concern for progressives…Indeed, as explained below, the failure of progressives to adapt their criminal justice advocacy for modern times may indirectly contribute to the status of the United States as the world’s leader in
imprisonment.

The recent Presidential election of Senator Barack Obama — the first major candidate in recent memory to criticize the harshness of modern American criminal justice systems while on the campaign trail6 — excites many about the possibility of the United States entering a new era for criminal justice law and policy. I fear, however, that this excitement for criminal justice change could be a curse rather than a blessing if progressives do not refine their policy aspirations and legal advocacy in light of twentyfirst century criminal justice realities…

Prisons and education are the twinned problems that have much to do with the health—good or ill—of our nation, socially and fiscally. Yet while education seems finally to have become a sexy topic among liberals, incarceration and sentencing have not.

It’s a willful blindness that needs to change.

3 p.m.

Here’s what SCOTUS BLOG put up a few minutes ago:

The Supreme Court blocked the scheduled execution Tuesday evening in Georgia of Troy Anthony Davis, giving itself time to consider his appeal challenging his conviction for the murder of an off-duty police officer in Savannah. The stay order is here. It was issued about two hours before the execution was to be carried out.

The Court is to consider Davis’ petition for review (08-66) at its Conference next Monday. The stay of execution will be lifted automatically if review is denied, the order said. If review is granted, the stay will remain in effect until the case is decided.

And here’s the CNN story.

Good for the Supremes. Exactly the right move. This way they may consider the case carefully.

Here’s what Virginia Sloan, president of the Washington DC-based Constitution Project, said shortly after the decision was made public: “The U.S. Supreme Court acted wisely in staying the execution of Troy Davis, and I urge the High Court to grant certiorari to consider the merits of Davis’ case. His claims of innocence were never fully considered by the courts or the executive branch, even after seven witnesses changed their original testimony and six implicated another man. In addition, his state-provided attorney was overburdened and had insufficient resources to mount a full defense. The Court should intervene to fully examine his claims of innocence.”

Remember, seven out of nine original witnesses say that Davis didn’t do it—or that they don’t know who did it. Never did. Most of the seven who have recanted say they were pressured by detectives to I.D. Davis, and six witnesses pointed to another guy—Red Coles—who was there on the scene and who conveniently was the person who originally accused Davis. (He’s one of the two remaining witnesses who has not recanted.) Several of the new witnesses who have come forward to name Coles say that, about a year after the shooting, he confessed to the murder and bragged that he’d pinned it on another guy, but that they were too afraid of Coles to say anything way back when. (A 2003 Atlanta Journal Constitution article has additional details.)

One of the primary issues with Davis’s case is that, due to a 1996 law passed to speed up the often endless appeals that occur with death penalty cases, attorneys for the state of Georgia argued that they didn’t have to look at new evidence possibly vindicating Davis because he didn’t present it years ago when his appeal was originally in the state courts. In other words, the problem with getting a new trial for Davis wasn’t with the new evidence, it was purely about the time frame.

And if he’s innocent? Well, that’s just the breaks. Sucks to be him. Mistakes are made. Price of doing business. Eggs/omelets and all that.

Of course, one of the pesky problems about making a mistake in a capital case is that dead is forever.

Go here and here for more of the back story.

On Monday, the California Commission on the Fair Administration of Justice—the committee created by the California State Senate to study, among other criminal justice issues, the state of the death penalty in sunny California—released a 117-age report saying that the system is pretty much screwed. (Okay, I don’t believe they used the term “screwed.” They said “deeply flawed,” but that qualifies as an equivalent.) California has the biggest backlog of cases in the nation, noted the report, and for all intents and purposes, the system, said the commission members, is close to collapse.

Among the commission’s recommended remedies is the suggestion that California drastically cut the number of crimes that qualify for the death penalty, leaving only multiple murders, the killing of law enforcement officials or witnesses, and the torture of murder victims—all heinous enough.

(I should mention here that, in the past, the commission has made recommendations on other issues, most of which have resulted in bills being passed by the California state legislature—that have all been vetoed by Governor Schwarzenegger. But whatever. We won’t go there for the moment.)

This recommendation comes right in the wake of the US Supreme Court’s decision to disallow the use of capital punishment for child rapists who do not kill their victims. Then, a few months before, the Supreme Court ruled that the state of Kentucky, specifically, could resume using lethal injection in order to execute those on the state’s death row. But the court wrote the decision in such a way that it clearly opened the door to other legal challenges.

So, change of some sort is in the wind with regard to the death penalty. But what kind of change?

At least one facet of the newest SCOTUS rulings is examined in this Washington Post Op Ed written by Cass R. Sunstein and Justin Wolfers, two of the nation’s top researchers when it comes to the matter of whether the death penalty is truly a deterrent or not.

Here’s how the Op Ed opens:

Read the rest of this entry »

What kind of people are we?

For the sake of the values we uphold in a civil society, we should let Susan Atkins go home and die from her brain cancer away from the prison cell she so richly deserved. No doubt that she and all the Manson disciples committed unthinkable, barbaric crimes. But do we really value life? How we allow the suffering Susan Atkins to spend her final days says, in the end, more about us than it does about this condemned killer and her monstrous acts.

Confused?

Take it away, Shakespeare. Portia, in The Merchant of Venice, describes the mysterious depths of mercy better than any real, modern-day lawyer as she pleads for Antonio’s life:

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
‘Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence ‘gainst the merchant there.