Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

I recently commented on the release of Michael Morton after DNA evidence established another person's guilt. DNA evidence that John Bradley called a waste of time, and opposed. As I wrote that, the Court  of Criminal Appeals was issuing an order declaring Mr. Morton actually innocent. They did soextremely quickly, and there's a story behind that.

It turns out that Mr. Bradley filed a request for an expedited decision. He was clearly concerned about Mr. Morton being cleared so he could obtain compensation - at least that he said.  As you can probably guess, there's more to the story.

There was an agreement that Mr. Morton's lawyers could pursue discovery until the final order was delivered - discovery aimed at uncovering who did what, and who knew what. They believed they had at least 30 days to do that, and probably would have in most cases. By obtaining an expedited ruling they short circuited that process, before it even started. What will  happen with the investigation is now up in the air.

So did they take this action out of concern for Mr. Morton, or as a strategy to ensure that the truth remain the hidden? If I had to bet I know where I would place my money.

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Unless you've been up in the mountains without media access you know that an Italian Court found Amanda Knox not guilty. This verdict followed the original verdict where she was found guilty of murdering her room mate. While I don't know much about the Italian justice system, it appears the appeal goes to a panel of judges, who review the evidence, and can hear new evidence. It was during this process that the reliability of the DNA evidence was questioned.

So what would have happened to Amanda Know in the United States? Her case would have gone to a Court of Appeals, who would review the trial for legal errors. Their review would be limited  to the record of what happened at trial. They don't have authority to order new testing, nor do they have authority to hear evidence. If the reliability of the DNA evidence was questioned it would have been up to her lawyers to do that, and even if they produced the same evidence the Court wouldn't be able to consider it in the direct appeal.

A U.S. court also would not be able to decide whether she was guilty or not. Instead, they would review the evidence to determine if it was "legally sufficient", which basically means whether there was sufficient evidence to support the verdict. The court cannot make its own credibility decisions, but assumes the jury found the witnesses credible. Such review is extremely limited, and few cases are ever reversed on this basis.

So the short answer to the question is that she would still be in prison, and would probably be there for the rest of her sentence. Evidence of faulty test results could be presented in a writ of habeas corpus, but it is doubtful that would be enough - especially since the state still claimed there was nothing wrong with the DNA testing. The only time relief is granted in those situations is where the expert agrees they made a mistake, or there is no doubt about it. Clearly that was not the situation here.

It sucks to be convicted anywhere, but luckily for Amanda Knox she at least got convicted in a system that is designed to catch mistakes. We can probably learn a lesson from that.

 

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I didn't consider it a big surprise that that the Georgia Board of Pardons and Paroles denied clemency for Troy Davis.I haven't reviewed the evidence, and I have no idea whether he is guilty or innocent. But I don't think that should be the point. If we are going to impose the ultimate punishment and execute someone shouldn't we be absolutely certain they are guilty? If there is any reasonable possibility that they aren't, the costs of making a mistake are simply to high.

I've said before that I believe we are all going to be judged on the decisions and choices we make. And I don't think you get a pass on something like this by claiming  "I was just following procedure(or the law)".  That is nothing more than passing the buck - in the end, no one is responsible. The jury can say we decided the case based on what was presented, the State can say we presented the evidence we had, and the courts can say we reviewed the record. Once the case is affirmed, the courts can fall back on the finding that the defendant has not met the legal burden the law requires. In the end, a case can go all the way through the process even though people have serious doubts about guilt of the defendant.

It's no secret that I don't support the death penalty. My beliefs are both practical and religious. They system in place is too prone to mistakes to impose the ultimate punishment - mistakes which we have seen over the last few years. That is coupled with a belief in the sanctity of life, and produces a pretty strong opinion. I realize others don't share my views, and that's fine. But I don't see how even the most hardened death penalty proponent can endorse executing anyone whose guilt is not absolutely certain.

I don't know any of the people involved, but I doubt few will lose any sleep over their decisions. Either they don't care, or they rationalize it away. Unfortunately, the review system provides plenty of ways to do that.

If we are going to have the death penalty, there should be final review aimed at answering the question whether there is an chance the defendant is guilty. If there is, don't execute them. Doing so only ensures that at some point a mistake will be made - a mistake that can never be undone.

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It's no surprise that John Bradley - DA of Williamson County - is not popular among defense attorneys. It may be after his handling of the Willingham investigation that he's not popular anywhere outside the Governor's office. I'm sure he could care less, and nothing I - or apparently anyone else - can say would phase him. But I feel some obligation to point out the problems with his "innocence be dammed" approach to post-conviction cases.

Let's remember that this the person who is spearheading the effort to get defendants to agree to the destruction of evidence when they plead guilty. That would be all fine and good if everyone who plead guilty did it because they are guilty, but we know that's not the case. Many do it because they are offered too good a deal to pass up, or they are scared. But that's the point of this. Instead, the point is to highlight the dangers of his refusal to agree to post-conviction testing.

The reason for my current rant  is the recent developments in the case of Michael Morton, who has maintained his innocence for years. There are a lot of reasons to accept his claims, even though he was convicted. For starters, the State's theory was that Morton killed his wife because he came home and she was too tired for sex - Seriously. He was eventually convicted, and has been trying to clear his name ever since.

Mr. Morton has wanted to test a crucial piece of evidence - a bandanna found near the scene. It might not be signficant except for the fact that it had the victims DNA on it - along with someone else's.  Someone besides Mr. Morton. Were it up to Mr. Bradley we would never know that. He fought testing for the last six years, and it was only done over his objections. Bradly claimed Morton was "searching for a mystery man, and grasping at straws".  Were it not for the intervention of the Austin Court of Appeals, testing would have never been done.

No one expects prosecutors to be sympathetic to defendants. You should expect them to be concerned about getting the right person. For some - like Mr. Bradley - they refuse to admit that mistakes are made. It must be nice to be that smart and confident. Of course, maybe they aren't really that confident. Maybe they are just scared that they will be proven wrong.

We are dealing with people's lives. Mr. Morton might not be the only victim. If someone else really did commit the offense, he probably has other victims. Victims who may have been saved it the right person was convicted in the first place. The next time you oppose testing why don't you think about that?

 

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in the past several years we have become used to seeing reports of inmates who were released and exonerated after spending years in prison. The most recent was Johnny Pinchback in Dallas. Most of those cases – as was Pinchback – were the results of DNA evidence. Far more rare are the cases where there is no such evidence to conclusively prove innocence.

Years ago an exoneration for actual innocence was almost unheard of. Cases were few and far between. One of the first was out of Texas – Randall Dale Adams. Many simply know that case is the result of the film The Thin Blue line.Adams was convicted in 1977 of killing a police officer. He was released from prison in 1989, largely due to the efforts of a filmmaker who took an interest in the case, and the work of a lawyer who never gave up. They were finally able to establish that the real killer was the person who testified against Adams at trial. The speculation was that prosecutors went after Adams because he was eligible for the death penalty, whereas the co-defendant was not because he was only 16 at the time.

The case of Adams has long been an inspiration to me. Although I had already been out of law school for almost 10 years when he was finally exonerated, I knewf that's what I wanted to do. My idea of a lawyer was someone who pushed back against the system, and took on cases like that. The ability to undo an and injustice – especially one that was the product of blatant misconduct – was the epitome of a lawyer. So it was with sadness that I saw today that Randall Dale Adams diedin October 2010. Perhaps it was reported at the time, or more likely not. I only saw it because of an article in the New York Times on Sunday, by reporter Douglas Martin.

Randall Dale Adams most likely died in obscurity, which is probably what he wanted. It's a shame though that more people don't know about his case, and what he went trhough. I would imagine there is a whole generation of lawyers who have never even heard the name. That's a shame, because it's an important piece of history every lawyer should know.

Rest in Peace Randall Adams - you certainly deserve it.

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The Texas Forensic Science Commission finished - at least for now - their review of the Cameron Todd Willingham case. The commission chairman - John Bradley - successfully discharged  his duty, which was to derail any inquiry into the innocence of Willingham. He was able to do so by seeking an attorney general opinion on the scope of their jurisdiction. His heavy handed tactics backfired in part though, as the commissioners staged a mini-revolt last year. The result of that was a hearing on Thursday and Friday.

While they did not make a determination on innocence, they did something far more significant. They acknowledged that arson science had evolved over the years, and  prior convictions may be in question. Review of those cases was suggested, although the scope of such review was not set forth. This is exactly what many - me included - have been requesting for years.

The task is daunting, since there may be thousands who have been convicted on faulty testimony. The first question is no doubt going to be who is responsibility for reviewing the case. In my opinion, it clearly should not be the State fire marshall's office. They have clearly demonstrated they are not competent to conduct such an investigation, since they still refuse to admit the testimony in Willingham was faulty. Scott Henson suggested the attorney general's office, and that would at least be a better choice than the State Fire Marshall.

One of the fundamental concepts of due process is that the State must disclose exculpatory evidence; that obligation should continue even after a defendant is convicted. If that is true, then the prosecutors who obtained the convictions have an obligation to review them. They should have records of those they have prosecuted for arson, and at a minimum notify those defendants or their lawyers.

I would certainly expect the Innocence Project to have a role, and no doubt they will assist in some cases - as they are already doing. Resources are tight though, and unless they State is willing to fund a full review, the burden should be on the state.

I sincerely hope this is a first step. Time will time how many people have been convicted on faulty testimony.

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Recent advances in science have created a problem in handling old cases where faulty science was used. A problem that is if you are interested in seeking justice. Unfortunately, justice is not the primary focus in post-conviction litigation. The system is far more concerned with protecting old convictions - "finality" is the catch phrase used to wipe problems under the rug.

The problem is highlighted in Scott Greenfield's recent post about problems with the Nassau county crime lab. The problem is what to after you discover the problem. As he points out, the fact that there was an error doesn't mean that a defendant is innocent. No doubt that will be the primary argument of the DA's office. After all, you wouldn't want to let a guilty defendant go just because the lab screwed up would you?

In some cases establishing error is the equivalent of establishing innocence. If the lab says the substance was cocaine and it was actually baking soda, then the defendant can't be guilty of possessing cocaine. However, the link is not so clear in other cases. Evidence - such as DNA - might place a defendant at a scene. There may be other evidence that puts the defendant at the scene, and in those cases he would probably have been convicted without it. But what if it's an important link?

Regular readers - all 2 of them - know I have been involved in several arson cases. In those there is no doubt the evidence establishing arson was faulty. However, in most cases you can never conclusively establish innocence. If it wasn't arson, it wasn't a crime. Proving a negative is always difficult - if not impossible - to do. Just because the State can't prove it was arson doesn't mean you can prove it wasn't.  Circumstantial evidence is always an important part of those cases, and the State will still emphasize that - exhibit A is Cameron Todd Willingham.

Hopefully, the Texas legislature is going to address the problem in part by amending the writ laws. The goal is to make it easier to use scientific evidence; generally you need new evidence, and that is often  a problem when alleging faulty science. the problem that still remains though is how to establish harm. If you have to establish innocence, there will be few defendants who benefit.

My solution is to shift the focus away from innocence. Instead, look at whether there is any doubt that the defendant would be found not guilty if the current science was used. In other words, if the State didn't have experts who could testify that the fire in Willingham was arson, would he have been convicted. No matter how much Governor Perry and his henchman scream, I think everyone else agrees the answer to that question must be no.

Innocence is great if you can prove it. It's not the controlling inquiry though. Sometimes justice requires releasing those who may not be able to establish innocence; if they never would have been convicted in the first place is it really fair to make them stay in jail? I think not.

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Innocence projects occupy a special place in the justice system. The most obvious attribute is that they only handle cases of actual innocence – which is a pretty small percentage of cases. They also only handle cases where someone has been convicted, and usually been through the appellate process. They all operate on shoestring budgets, and represent those who can't afford a lawyer.

I liked to believe that some degree of credibility is given to innocence projects. Since their budgets are limited, they must be extremely selective in the cases they take – and devote resources. If an innocence project takes a case, you can bet they have no doubt that the person is actually innocent. In other words, they didn't do it. Prosecutors being who they are though, they view such projects with a certain level of suspicion – and rightly so to some extent. No one expects them to jump on board simply because an innocence project is involved. On the other hand, you would expect them to treat the projects a little different from the run of the mill lawyer. After all, they don't have to represent anyone, and you don't have a right to counsel in such proceedings.

All this brings me to an upsetting post by the Florida Innocence Project. They have noticed an increasing level of opposition by prosecutors. In other words, they are fighting the cases more aggressively. Is that because they are starting to look bad? I think that is part of it; everyone has an ego, it takes a hit when you find our you are wrong.  However, A big part is also the adversary system itself - which doesn't work well in innocence cases.

By definition, the adversary system didn't work when an actually innocent person is convicted. Sometimes it's no one fault, but other times not. In an adversarial system the parties start out taking opposing positions; and most of the time prosecutors don't feel much personal responsibility. The jury is one that makes the decision, and they view their job as simply presenting the case to the jury. In innocence cases though the ultimate responsibility is on the prosecutor - while there has to be judicial determination, the position of prosecutor plays a significant role. In other words, if they oppose the claim, the chances are good it won't get granted.

All that means they shouldn't oppose an innocence claims simply because they believe that is their job. The responsibility is on them, and they have to make a decision that is often times not popular. When politics are interjected, the system is bound to fail.

We have made great strides in innocence litigation, but much remains to be done. If the actually innocent are to have any hope the prosecutors must do their part - which is to step out of their normal role. Unfortunately, it looks like this isn't happening in Florida.

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Earlier I wrote about a law review article that reviewed cases where defendants had been subsequently cleared by DNA evidence. I reviewed the types of evidence which  typically lead to wrongful convictions. In this post I want to review the failure of the post-conviction process to weed out innocence cases.

The study reviewed 200 cases; out of those there were a total of 133 defendants who received written decisions in their cases 60 of those defendants raised sufficiency.of evidence claims, and only 1 was successful. The most successful claims were ones raising a state law evidence claim - if you consider 8% successful. The second most successful claim was ineffective assistance - 11%.

Eighteen of the defendants received reversals, which is a 14% reversal rate. 12 of those were retried, some of them multiple times. In contrast, in the comparison group (similar cases where there was no exoneration) the reversal rate was not much different - 10%.

One fact I found interesting was the impact of harmless error, which means the court finds there was some error but it didn't contribute to the verdict. 32% of the decisions relied on harmless error in denying relief. In 10% of the cases the court referred to the evidence of guilt as "overwhelming"!

To be fair, not all claims involve claims of innocence. In the study 25% (33 defendants) of the defendants raised innocence related claims. Only 3 were successful, all on Brady claims. Sixteen of the exonerees raised claims of innocence based on newly discovered evidence - none were successful.

The study also reviewed DNA claims. Many of defendants who ultimately were exonerated had been denied DNA testing - some on multiple occasions. There were even some who obtained DNA results, and still had relief denied.

So what does all this mean? The obvious answer is that courts do a poor job of evaluating innocence.  The study notes that factual claims are not "privileged", and that the system is skewed toward procedural claims. Part of that is the court's reluctance to second guess jury verdicts; the fact is that once you are found guilty the courts presume you are guilty. Courts must look solely at the record, which may be incomplete. As it stands now, there is no way to fill in the gaps.

Even when a direct claim of innocence is not made, it is still an issue. To obtain relief you have to show harm, which means the error influenced he trial. As the study demonstrates, courts are not hesitant to evaluate evidence of guilty. I wonder if the judges who declared evidence "overwhelming" have second thoughts - or regrets.

What all this shows is a system biased toward affirming convictions. Until courts are willing to accept responsibility for ferreting out viable claims of innocence, there will be no change. Not only is a change in the mindset needed, procedural changes are also necessary so that advocates the resources and ability to raise claims of innocence. Something must be done, because no one deserves to remain in jail for years before his innocence is recognized.

 

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I recently read a Law Review article titled "Judging Innocence", by Brandon Garrett a professor at the University of Virginia Law School. If you are so inclined, The article was based on a study of all the DNA exonerations, which was 200 at the time. The purpose was to review the claims made in the post-conviction litigation, and see how successful courts were at identifying factually innocent defendants. As you would guess, the answer is not too well. The author also identified a control group of similar cases to determine if there is any difference in how they were handled.

The article contains a lot of data, and enough tables to make a scientist proud. I cannot hope to cover everything in one post, so I thought I would divide it into several.

We already know the types of evidence used to obtain wrongful convictions. 79% involved eyewitness identification, 57% involved faulty forensics, 18% involved informant testimony and 16% involved confessions. Given the prevalence of eyewitness ID's, you would think that challenges in the post-conviction process would be fairly common. After all, you know you didn't do it, so the ID has to be bad. Only 28% percent of the wrongfully convicted defendants challenged the constitutionality of the identification though. That result is no doubt due to the difficulty of making such a claim; of those who made such claims, none were successful. In other words, there is almost no way to challenge a mis-identification on appeal.

Challenges to forensic evidence didn't fare much better. 32% of defendants challenged such evidence on some basis, and only 8% were successful. What I found interesting was how forensics were used. The study found that more than 1/2 of the cases involved improper testimony by the forensic examiners; in other words, it was improper based on the science known at the time. Even with that, challenges were rarely successful.

There was little new about hair evidence. It's not only unreliable; the experts also tended to say more than should have been able to.

Another interesting fact is that many of the cases involved more than one type of evidence. For example, there were cases involving both bad ID's and faulty forensics, as well as other combinations. The fact that the one corroborated the didn't make them reliable.

So what does this tell us? Among other things I believe it is that the post-conviction is not good at providing relief for innocent defendants. For those who faith in the justice to uncover mistakes, its misplaced. There a probably many reasons for that, will be discussed in future posts. Stay tuned.

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Scott Greenfield recently talked about a case in Missouri where a defendant was finally released after they concluded State officials didn't have jurisdiction to prosecute the burglary of a  post office. Unfortunately, it took the State more than 15 years to recognize this - oops. Unfortunately, the situation is not that uncommon. Everyone dropped the ball, starting with the prosecutor and the defense lawyer. What caught my attention was not the facts, but how relief was ultimately obtained.

Like many inmates, the defendant, he filed his own writ of habeas corpus. We see defendants challenge jurisdiction all the time - generally it's completely frivolous; such claims are often made by people who don't believe the government has any authority over them. To his credit, the judge who received the writ recognized it might have merit. He decided it needed to be developed further, and appointed a lawyer to do so - and here's what caught my attention. He appointed the lawyer to do it pro bono. How nice of him!

I'm sure the judge believed the lawyer would be happy to help right such an injustice - and maybe get a little publicity out of the deal. To her credit she took the case, and obtained the defendant's release - which I will admit is rewarding beyond any financial compensation you could receive. That's not the point though. My question is why does always fall to the defense bar to be ones who have to sacrifice?

For years death penalty appeals were handled by lawyers without compensation. Lawyers volunteered to handle those cases because they couldn't stand by and watch someone executed without a lawyer. It seems basic, but it never bothered judges, prosecutors or legislators. They were fine with it - which always made me wonder how much of a conscience they had. In Catholic Church terminology I wondered whether they had a "well formed conscience". Fortunately that's changed, and at least appointed lawyers are now provided - even if the quality is not always that great.

My question is why doesn't anyone else bear this burden. The prosecutor who prosecuted a case he had not jurisdiction over still gets his paycheck. He probably even went on to advance in his career, maybe even to be a judge. (I don't know any of this by the way) So does the judge - he continued to sit over cases, and put in his time for retirement. In short there is no accountability.

I wonder how much different things would be if judges and prosecutors bore some of the burden. Why leave it all up to the lawyers - after all we have families to feed also, and employees to pay. I wonder what would happen if the prosecutor and judge had to pay the lawyer's fee? Just a thought.

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Michael Green walked out of a Harris county courtroom several weeks after spending 27 years for a rape he didn't commit. The story was a familiar - a bad eyewitness identification, disproved by DNA evidence. The story is familiar because most of the exoneration involved bad ID's. That's not surprising, since studies show eyewitness identifications are not nearly as reliable as everyone believes. You would think - or at least hope - that these exonerations would give credence to these studies, and cause prosecutors to look closely at cases that are based solely on eyewitness ID's. Well keep hoping.

There is an incredible disconnect between what people read about, and how that applies to their own life. You read about bad things happening to people, and you think nothing like that could happen to you. The same concept applies to eyewitness cases - prosecutors know about them, but they don't think it could happen in their cases. After all, the police officers they work with are good guys, and wouldn't bring a case if they aren't sure the defendant is guilty. Well guess what - the prosecutors in all the 270 plus exonerations probably thought the same thing.

I realized this when talking with a prosecutor last week about a case, where an identification was made in questionable circumstances. There were a number of reasons why the ID could be bad, which I pointed out. The response I got was - yeah but he picked him out, why would he do that if it wasn't the guy. He knew about problems with eyewitness ID's, but he was convinced they didn't apply in this case.

I'm convinced this is always going to be the case. Prosecutors want to believe victims; no one, whether it be the prosecutor or the police officer, wants to tell them they are wrong. They are willing to overlook contradicting evidence because it's just an attempt by the accused to get off. And after all, the victim doesn't have any motive to identify the accused (at least in most cases).

We need to start handling these cases differently. So far changes in identification procedures have been the primary focus, but I'm not sure that is enough. Perhaps we need to treat eyewitness ID's like we treat accomplice witnesses in Texas - require corroboration.  Instructions might be another way, as well as greater use of expert testimony.  We need to do something though, or we have learned nothing from the individuals who have been required to years of lives to bring the problem in the open.

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I'm sure it was a nightmare, and the source of more than a few sleepless nights. The lawyer's client admitted a murder - a murder someone else had been convicted of, and was serving time. For obvious reasons, the client didn't want that admission disclosed - the lawyer - Thomas O'Toole -had no choice but to maintain his client's confidence. He did that until the client was killed in prison. He was then free to tell what he knew.

Fortunately it wasn't too late. William Macumber had been charged with the murders - based on estranged wife's testimony that he confessed. Even though there was almost no supporting evidence, the case went to trial.

What happened next is a textbook example of how innocent people get convicted. Mr. O'Toole offered to testify at Macumber's trial, as did another lawyer and psychiatrist who also had been told the same thing. Even though the physical evidence was lacking, the judge refused to allow it as unreliable! So without evidence that another person confessed to the murder, the jury did what you would expect - they convicted Macumber and sentenced him to prison - where he has remained for the past 35 years.

In 2003 the Arizona innocence project entered the case, and eventually made a presentation to the Arizona Board of Executive Clemency.They unanimously recommended that Macumber be released from prison "to correct a miscarriage of justice". So far so good - all the cards to be lined up.

There was one last hurdle though - the governor, Jan Brewer. She denied the recommendation, and announced for re-election the next day. If anyone thinks the decision was based on anything other than political considerations, I have some swamp land you might be interested.

This is Arizona, so you have to expect certain things - especially when it concerns criminal justice. What  happened here though could happen anywhere. There is a huge problem with leaving innocence decisions to politicians. They will never make a decision that doesn't align with their own interests. Unfortunately, most voters don't get upset denials - they get upset when inmates are freed - even though they know nothing about the case. When it comes down to a choice between doing the morally correct decision, and the political decision, you know where they are going to come down.

As you would guess, I don't have much respect for the moral compasses of most politicians. Some  have been in politics in so long, I'm not even sure they know what is right or wrong anymore. They simply know what is politically best. Many know doubt believe the excuses and explanations they advance for such decisions. In the end, Mr. Macumber gets to remain in prison so gov. Brewer can get re-elected. And he can't even vote against her.

There has to be a better way.

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In this day of instaneous communication the news that the Supreme Court agreed to hear Hank Skinner's case is old news. in case you haven't heard, Skinner is sentenced to death, and has been requesting DNA testing which he claims will establish his innocence. Predicatbly, the State has opposed testing, and the courts have agreed.

I wrote before about this - in that post I compared Skinner's case with Cameron Todd Willingham, and wondered why the governor didn't learn anything from that case. You would think that with all the criticism and condemnation that case has created, you would want to avoid a repeat. Yet here we are again.

I think the vast majority of people believe that if there is evidence it should be tested. After all, what do you have to lose - other than time. If Skinner really is guilty is it all that important to execute him next month instead of next year? I understand there are some who think the process drags on too long, but look at the alternative. What if he is innocent - is speed more important than getting it right?

The only thing the State accomplishes by opposing testing is creating a controversy, and raising questions. Some will think they have something to hide - and maybe they do. Maybe they don't they grasp the concept that most of society actually believes that some people who are convicted are actually innocent. In fact, it has become common to see stories of people who have been exonerated after spending years in prison.

I realize the request in this case is being made at the last minute, and probably could have been presented earlier. Do some defendants play the system to buy time? Maybe so, but that doesn't mean they all are. Where the alternative is as final as it is here, I think you have to give the defendant the benefit of the doubt - at least where the request is not obviously frivolous.

What it really boils down to is that this is what is in the prosecutor's playbook. They have been conditioned to reject requests for testing - especially in death penalty cases. The reaction is almost automatic, and common sense is not going to get in the way. That is why it is up to the courts to occassionally legislate common sense. Let's hope they do so here.

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Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there really is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me put a reason behind my theory.

The problem with burden of proof and  presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feeling that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the counsel table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.

The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone charged with  a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.

I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can  prove somebody else did it, your chances of winning are slight.

I handle a lot of appeals and post-conviction cases - that includes more than a few innocence cases. There have been more than a few cases I've looked at and wondered how in the world the jury could have convicted the person. Most of the time I think it was nothing more than the defendant couldn't prove someone else committed the crime.

Prosecutors are fond of talking about how difficult it is to overcome of the presumption of innocence, and what  a high burden they have. If the burden was really that high, the would lose a lot more cases. In reality, a guilty verdict is a function of how convinced jurors are, and how willing they are to risk making a mistake - i.e. letting someone who might be guilty go free.

There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you  have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.

Scott Greenfield recently asked if  police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.

So what does all this mean? It would be nice if jurors recognized these tendencies, but that is probably too much to expect. At a minimum, lawyers must be aware of them so they can attempt to deal with them. 

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Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me but a reason behind my theory.

The problem with burden of proof and presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feelings that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the council table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.

The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting someone back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone convicted of a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.

I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can  prove somebody else did it, your chances of winning are slight.

Much of my work involves appeals and post-conviction cases - that includes a fair number of innocence cases. I've looked at more than a few cases and wondered how in the world the jury ever convicted someone. In most of the cases I think it was nothing more than the defendant couldn't prove someone else did it.

There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you  have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.

Scott Greenfield recently asked if  police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.

So where does that put us? It certainly isn't impossible to win a criminal trial - but it's also not as easy as the State would want you to believe. They often talk about the high burden they have to overcome. In realitiy, in some cases it is the defendant who has the burden - despite what the law says. It would be nice if jurors recognized these tendencies, but that is probably way to much to ask. Lawyers have to recognize them - if you don't, you don't have a chance.

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The traditional thinking among criminal defense lawyers is that publicity is a bad thing. Most of the time that is true. Everyone has seen the press conferences orchestrated by the government where they announce an indictment or big arrest. Along the same line are the perp walks, were some prominent defendant is pared into the jail in front of a crowd of cameras. There is only one reason to do that, which is to get the general public starting to view the accused as a criminal defendant. In other words, someone who did exactly what he is charged with doing.

 Maybe it's because most of the facts in criminal cases are bad, and we don't want to reveal them. The reality  is we spend much of our time in negating and explaining the evidence. Rarely do you see a criminal defendant actively seek out publicity. When they do it usually backfires. Think of how many times you have seen defendants impeached with statements they made to the media.

What started me thinking about this is seeing a news story about a defendant who put up a billboard proclaiming his innocence. Granted, it was someone who had already been convicted and was now trying to challenge that conviction. It was still an affirmative use of publicity that which you rarely see.

Maybe the story caught my eye because I have several cases where I have been struggling with the proper use of publicity in a couple of cases where actual innocence is a real issue. There is a big difference between a defendant going to trial, and one who is already convicted. You don't have as much to lose, because there is not as great a potential for harm; of course there is still some, because anything can be used against you. On the other hand you face a far bigger hurdle than you do before trial. Once you are convicted, everyone assumes you are guilty and you are just one of thousands of defendants  who are claiming they are innocent. That view is shared by the legal system. Postconviction litigation is extremely complex, and most of the rules are in place to ensure that convictions are rarely overturned.

 In the last several years we have seen a steady stream of people coming out of prison after serving years for something they did not do. Most people are now at least willing to accept the idea that innocent people are in fact convicted. Of course, the problem is convincing the courts that your client is one of them. Not only do courts have to deal with the legal presumptions, they also deal with and are aware of public perception. That is why I believe there are some cases where publicity is a good thing.

 I don't think a judge or other elected official will ever change their mind,or decide a case based solely on publicity or public sentiment. However, publicity does generate discussion, which they are aware of. After all, they are members of the community, and you have to expect people they know talk with them about issues in the news. While it might not change their mind, it may cause them to look at a case in a different light, or even more closely. Many times, that is all you need, - and all you can ask.

 

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There's no shortage of criticism over the impending execution of Hank Skinner in Texas. The Medellin Innocence project has been pushing for new DNA testing. A number of people have come down on Skinner's side. For more information you can go to Stand Down Texas for links to resources and coverage.

The controversy exists mainly because Skinner's previous lawyers didn't request testing of all the evidence. The State did allow testing of some evidence in 2000, apparently believing that it would confirm Skinner's guilt - it didn't.  Instead the test results raised questions about Skinner's guilt.

What bothers me about me most about this case is the complete failure to learn from history. I'm certainly not the first to point out the similarities with Cameron Todd Willingham's case. Officials and courts refused to acknowledge questions of innocence, and the debate still continues. Does the state seriously believe that the thing is not going to happen with Skinner? The case will provide even more evidence to those who believe Texas is more interested in vengeance and  procedure than justice.

Governor Perry has a chance to step in and prove everyone wrong in this case; he can grant a stay, and allow the courts another opportunity to look at - and test - the evidence. If he doesn't, it is damning evidence of his true character.

Any person with a conscience would want to avoid at all costs what happened with Willingham. I realize he has stated how convinced he is of Willingham's guilt, but no rational person can seriously believe that. Even if you believe he is guilty, no one could seriously argue that he would be convicted today without scientific evidence that the fire was intentionally set. I can't imagine anyone living with that on their conscience; if it doesn't bother you, you have to wonder if there is a conscience.

I've talked before about my religious beliefs and convictions - specifically that we are all going to answer for the decisions we make on earth. I truly believe what we do now has eternal consequences. The sad thing is that most of those who support Governor Perry - and probably the governor himself - claim to believe the same thing. I don't think you get a  pass just because you are in politics - or "following the law" and accepting the judgment of the courts. In fact, I think the power you wield makes those arguments even less successful. They sound good, but the fact is he does have the power to question those decisions.

It's clear that the decision he made on Willingham hasn't effected his political future. If anything its enhance it; he was able to survive a primary without a runoff, and is now being talked about for national office. for his sake, I hope he has thought about his future beyond politics. I don't know how things work, and if you can redeem yourself for bad decisions. personally, I believe you can. The governor has a chance to prove he learned something from Willingham - let's hope he takes advantage of it.

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One of the common complaints I see from defendants is that one or more of the witnesses against them committed perjury. That generally means that they didn't testify in a manner favorable to the defendant. A common occurrence is where two witnesses disagree about a particular fact - the defendant claims the unfavorable witness committed perjury.

Perjury  does occur - probably with some regularity. But it is one of the most difficult claims to prove. You need compelling evidence to establish that someone testified falsely.

Even if you can establish perjury, the rule has always been that you must still prove the State/government was aware of it. In legal jargon, the claim is the knowing use of perjured testimony, which is a due process violation. A witness may perjure themselves, but unless you can prove the State knew about it, you are generally out of luck.

The Court of Criminal Appeals may have just changed the law on this claim - at least in limited circumstances. The case is Ex Parte Chabot., No. AP-75,940 (12/09/09). Chabot was convicted of murder, and the main witness against him was an accomplice, Gerald Pabst. He claimed he was an unwitting participant, and didn't leave because he was scared of Mr. Chabot. The victim was sexually assauted, and of course Pabst denied having anything to do with that.

Mr. Chabot was able to obtain DNA testing long after he was convicted, and lo and behold it turns out the person who did the sexual assault was Pabst. Therefore, he perjured himself at trial; arguably the state didn't know it, because they believed Pabst when he said he didnt do it.

The court found Chabot's due process rights were violated because his conviction and sentence was "most likely based on perjured testimony." In truth, the only substantive testimony against Chabot came from Pabst.

The court implicitly recognized that if Pabst perjured himself about committing the sexual assault then maybe he also perjured himself about Chabot committing the murder. The case would have been an easy one if Mr. Chabot had been charged with sexual assault. Instead, he was charged with murder, and the court could have easily said that just because he didn't commit the sexual assault doesn't mean he didn't commit the murder. That has been the normal response from the Court in the past, which is one reason why I think this is a significant decision.

The Court's holding is limited, and it probably should be. The convction must be based on the perjured testimony - if it is only a part of the State's case, that is probably not going to be enough.

No matter how limited the holding may be, it is still a step forward for a Court that will never be accused of being defendant friendly. It's also a step forward because its a recognition that innocent people are convicted - something the Court has been reluctant to acknowledge in anything other than slam dunk DNA cases.

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I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

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I recently attended the 10th annual march against the death penalty in Austin. I'm not big on marches and rallies - i think that was only the second one I've been to in my life. I went because I was invited to talk about the case of Cameron Todd Willingham. He was the centerpiece of the rally, and his picture was everywhere. Everyone there is convinced that this is the case that will change public opinion on the death penalty - I'm not convinced.

I've given this a lot of thought, and finally realized that this argument - that people's minds will change if they are convinced an innocent person was executed - involves an underlying assumption. The assumption is that general public will really care. I don't mean care in the sense that they believe it was a terrible thing, but care in the sense that it personally effects them. You only have to look at the most recent public opinion polls to know this is true - the majority of people already believe an innocent person has been executed, but they still support the death penalty.

I think the problem is that we have lost the sense that human life is sacred. The majority of anti-death penalty supporters are just as guilty as everyone else. My sense is that most in the anti-death penalty camp don't believe human life is sacred from the moment of conception. On the other hand, the majority in the anti-abortion camp have no problem with the death penalty, and often times are its most ardent supporters.

Almost 30 years ago (1968 to be exact), Pope John Paul II authored an encyclical - In Humanae Vitae. In that document he made a number of predictions, many of which have been proven to be true. Pope John Paul II also coined the phrase "culture of death". His theory was that we live in a culture of death because we no longer value human life - which is a reflection of the divine.

I think he was right on. You don't have to be Catholic - or even religious - to recognize the problem. In my opinion, beliefs about the death penalty are not going to change until peoples beliefs about the sacredness life change. I'm not knocking the anti-death penalty crowds - I admire their passion, which is something missing from far too many people. I simply believe that is going to take more than proving an innocent person was executed to cause a change in attitudes.

 

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Williamson Count District Attorney John Bradley may have come up with a solution for all these pesky little innocence claims. Charge them with aggravated perjury for falsely swearing they were guilty when they entered their plea.

Markum Peavey was sentenced to 55 years in 2007 for driving while intoxicated. It is not clear whether or not there was a plea agreement, but Peavey did plead guilty. He also pled guilty to evading arrest, and was sentenced to 25 years for that offense. Peavey then filed an application for writ of habeas corpus; in his writ, he claimed he was innocent. Writs of habeas corpus must be sworn to, so Peavey swore to the statement that he was innocent. Clearly, that was not consistent with his earlier plea of guilty. So not being content with 55 years, and apparently outraged that he would challenge his conviction, Williamson County indicted for aggravated perjury. Earlier this week Peavey was convicted and sentenced to 30 years; that sentence was stacked onto the prior sentence, so Peavey basically now has an 85 year sentence.

Even the most staunch defender of law order might sense some unfairness in this. Other than concerns about decency and fairness, there are also some practical problems with this approach. The first is that just because a defendant pleads guilty doesn't mean he agrees he is guilty.

Long ago the United States Supreme recognized that defendants might who don't believe they are guilty might not want to risk going to trial. Although this can be he subject of a separate post, its basically common sense. Would you rather be innocent and spend 10 years in prison or innocent and spend 50 years in prison. Prosecutors know this, and sometimes make offers to good to be true. So a defendant basically fibs, and admits guilt in return for a favorable outcome.

The Court of Criminal Appeals recognized this a few years ago in DNA cases. Some of the persons who have been exonerated actually plead guilty originally. The court recognized there could be a number of reasons for pleading guilty, and held that would not prevent you from claiming innocence and filing a motion for DNA testing. It's probably worth noting that those motions also have to be sworn to.

Maybe Mr. Bradly has hit on a way to save the state some money.  A defendant is exonerated through DNA evidence, and gets a pardon from the government. The State then comes in and indicts him for aggravated perjury if he plead guilty. If they get a conviction, then does that prevent him from getting his compensation - which was recently raised by the way? Maybe I shouldn't even say that - its just crazy enough that the governor might think its a really good idea.

As a side, if the name John Bradley sounds familiar, it should. That is the new chairman of the Texas Forensic Commission - the chairman who canceled the meeting where Dr. Craig Beyler was going to discuss his report on Cameron Todd Willingham. I'll let you draw your own conclusions.

 

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My office got a call yesterday afternoon telling me the forensic commission meeting scheduled for Friday had been cancelled. Like most I was surprised. The meeting had been scheduled for months, an agenda had been set, and people had made travel arrangements. Later I found out why it was cancelled - Governor Perry decided to replace 3 of the members, including the chairman. The new chair was none other than the prosecution's "go to" guy - John Bradley.

I'm not sure whether Governor Perry thinks everyone is stupid, or he just doesn't care. You would think someone would have pointed out the ramifications of what he was doing. Last week he expressed his belief in Cameron Todd Willingham's guilt, and became the first person to question the expert's conclusions. Now, when Dr. Beyler is scheduled to come discuss the case with them he replaces the chairman, and has them cancel the meeting. Does he truly think anyone does not see this for what it is - an attempt to manipulate the outcome.

Surely he doesn't think this is going to fly under the radar. I can't remember a story that has generated as much coverage as Todd Willingham's. Every day there are several new stories or editorials across the country (and the world) talking about this. Everyone is following it - and now everyone knows what happened, because the cancellation of the meeting is sure to gain just as much press.

I said when they first started looking at this case that I didn't think anything was going to happen. It was a political commission, and I expected politics to influence the ultimate decision. I was as surprised as anyone when Dr. Beyler's report came out. The only person who may have been more surprised was Governor Perry. It obviously didn't turn out the way he wanted, and now he wants to change things. If you don't believe they have already discussed this case you have to believe that Governor Perry believes his new appointee is going to be an advocate of Todd Willingham's guilt.

One thing he did accomplish is to effectively negate the impact of the forensic commission. I don't see how anyone will take seriously anything they do from here on.

When I read the reports last night it reminded of the 6 year old who gets mad and takes his ball so they have to stop the game; if you aren't going to play the way I want we aren't going to play at all. I'm far from politically savvy, but you have to wonder if this may not turn out to be the signature on the Governor's death warrant for his campaign. After all, who wants a Governor who thows tantrums like a 6-year-old?

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I hate to question a good thing - the saying "don't look a gift horse in the mouth" comes to mind. But Over the last week I have been amazed at the coverage being given to Cameron Todd Willingham. You can't skim the blogs or the newspapers without seeing some discussion of the case. (For a great collection of the coverage see Grit's recent post) I'm glad people are looking at this issue - I only wonder why it wasn't done earlier.

Todd Willingham's story of an innocent man being executed based on junk science is not new. Steve Mills and Maurice Posely were the first to cover the case. The two veteran Chicago Tribune reporters were the first to cover the case - in 2004. Their story concluded that Willingham was probably executed for an accidental fire. The story got some coverage in the national media, but nothing close to what the current coverage is. The New York based innocence project was also aware of the case; they seized upon the similarities between Willingham's case and that of Ernest Willis. Although the cases were almost identical, the result was not. Willis was freed - with the help of the prosecutor - while Willingham was executed. The Innocence Project solicited the leading arson experts in the world to review the case. They released their report in 2006; their conclusion - the fire was not intentionally set, and the testimony used to obtain the conviction was nothing more than a collection of myths and "old wives tales."  This report received a little more traction, largely because of the connections of the Innocence Project. However, it quickly died out.

One thing the report did accomplish though was that it pushed the State of Texas into action. The Forensic Commission was created, and the first subject studied was the Willingham and Willis cases. Even though they had a  report from a panel of leading experts, the commission went out and hired their own expert. Not surprisingly (or perhaps surprisingly for some) the state's expert came back with the same conclusion reached by the panel - the fire was nothing more than an accident. At the same time - not by design because I know the reporter had been working on this for several months - the New Yorker article came out. The combination of the two led to the almost daily discussion now about this case, and what happens next.

My question is why wasn't this a story back in 2004, or at least 2006? You cannot estimate what impact an earlier discussion would have had on views about the death penalty, as well as arson investigations. So while we are debating what happens next, maybe we should also be considering why we weren't talking about this earlier.

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So far I haven't added my comments to the discussion of the execution of  Cameron Todd Willingham. Since I was personally involved, I've struggled with whether I should comment. I have never commented on clients on their cases. Their are a number of reasons for that, one of the big ones being privacy. Their lives have become more public than they ever wanted, and I don't want to add to that. I'm going to make an exception though for someone I still consider a client even though he is no longer with us. I've had to carry this around for over 5 years, and this forum is as good as any to talk about it; I also need to get it off my chest.

By now, everyone knows the story. The Chicago Tribune was the first to report the conclusions of the expert the Texas Forensic Commission hired to review the case of Cameron Todd Willingham. He reached the same conclusion as all the other experts who have reviewed the case in the last few years - there was no arson. That would good news except for the fact that the State has already executed Mr. Willingam for killing his children - having done so in February 2004.

Most criminal defense lawyers - at least those who care - have cases that haunt them. I have my share, and this one is at the top. I represented Todd after he had been convicted, and after his direct appeals had been denied. I knew from the start that there were problems with the case, and came to believe his adamant protestations of innoence. Like others, I initially had no reason to doubt the fire was intentionally set, and looked at other possible suspects - of which there was no shortage.

Shortly before Todd's execution date I had the good fortune to come in contact with Dr. Gerald Hurst. Dr. Hurst is a scientist, who is also an expert in fire science. He had worked on several other cases, and successfully convinced authorities that a fire was not intentionally set - i.e., not arson. Dr. Hurst agreed to review Todd's case, and I sent him all the material. It didn't take him long to tell me it was all BS (to put it politely). He started working on an affidavit, which he prepared. After reviewing the affidavit I did not see how anyone could  have a doubt that this was not an arson. But then, this is the court system - in Texas, no less.

I promptly filed a successive writ. I knew those were rarely successful, but I naively believed we had a shot. At a minimum I thought we would get  a hearing. I didn't expect any relief from the trial court, and didn't get any. I thought the Court of Criminal Appeals would step in, and at least order a hearing so Dr. Hurst could present his findings, and the state could question him. Why I ever thought the Court would take pause at the execution of someone who was actually innocent I'll never know. I'm not sure how much they read, but for their sake I hope it wasn't much. I don't see how anyone could live with the knowledge that they let someone be executed when there was a serious question about their innocence. I recognize Courts wrap themselves in procedural rules, and probably looked at this as nothing more than a last minute attempt to avoid execution. After all, as Justice Scalia recently stated, Courts can't be concerned with actual; they simply have to determine if a trial was fair.

Ever the optimist I continued to have faith in the Federal Courts. I knew they took death penalty cases seriously, and had hope they would see the serious questions that had been raised. Those hopes were dashed quickly; the procedural Gods won out once again. The case had already been through the courts, and they didn't see any reason why it shouldn't got through again.

I still had some hope - I know, my wife has always wondered about my seemingly naive sense of optimism. There was still the governor, and the Parole Board. All I wanted was 30 days so we could try to get back in court. I don't know what the parole board actually saw - there was never a hearing, nor did they all get together to discuss it. Instead, they all submitted their no votes, and i was notified of those votes by fax. That left the governor; i didn't have much hope, but I still had a little. Shortly before 6:00 p.m. (the time scheduled for execution) I got the call. It was one of the most upsetting conversations I have ever had. It's probably a good thing it wasn't in person, because I would probably now have a criminal record. The call came from a young man, who I am guessing probably hadn't been out of school too long; he probably was even a lawyer. I got the impression the job of notification fell to him, and it was something he needed to get out of the way before he could go out and have drinks with his friends. What he told me has been seered into my brain - and it is probably I will never get out. What he said was that  the Governor had looked at the case, and he didn't any reason to delay the execution. Really!!!!! You have a nationally recognized expert telling you its not arson and that's not pause for concern?

I promised that I wasn't going to give up on  his case, and I haven't. Thanks to the Innocence Project, and several reporters, the story will not go away. Barry Sheck and the project saw the problem with the case; what made it worse that another defendant, Ernest Willis had been released on almost identical evidence, and with the same expert. The only difference was the prosecutor. They submitted the two case to a panel of experts, who issued a report that has led the way in pointing out the myths that have been associated with arson cases. Two reporters from the Chicago Tribune also took the case, and published a terrific piece of investigative journalism. Through those efforts, the Court realized they had do something, and appointed the Forensic Commission. That commission took on the Willingham and Willis cases, and retained an expert to review them, which is where the current report came from.

So far every expert that has reviewed the evidence has concluded there was no evidence of arson. So Governor Perry, there was a reason to delay the execution. The rush to carry out the execution, and make sure "justice was served" resulted in the most serious miscarriage of justice imaginable - the execution of an innocent person.

I sincerely believe that we all have will  have to eventually answer for actions. I don't know this for a fact, but I'm guessing that you won't be able to get away with  the excuse that you were just following the law, or it was someone else's decision. The buck has to stop somewhere, and I believe it is with each person who  has a chance to make a difference. In death cases, the consequences of being wrong are irreversible. You can't come back and say I'm sorry - just ask Todd's family. If there is any question of innocence, is it too much to check it out?

If there is one thing I wish judges and prosecutors could get out of this case is that it could have just as easily been you. I'm reasonably sure that no one wants to go through life (not to mention eternity) knowing that they participated in the execution of an innocent person. Most people think that would never happen to them; they tell themselves they would recognize the situation. History if full examples of situations that we look back on and believe we would have done something. We don't like to believe we would have sat on the sidelines while Hitler exterminated jews, or people sold human beings into slavery. The fact is, the majority of people did just that. It's not something new. I don't think it was a coincidence that Catholic Church's reading for the day the story came out,  was from Matthew. Chapter 23, where Jesus calls the scribes and Pharisees hypocrites for saying if they had lived in the time of the prophets they would not have shed their blood. In fact, they ended up doing that very thing. They couldn't see Jesus right in front of them.

The lesson from this should be that the next person who comes before you and says they are innocent might actually be. Is it too much to accept the possibility that it might be true?

In my career, I've seen people convicted who I had no doubt were innocent. One I was able to see walk out of prison out; it took 16 years to prove I was right, but he eventually gained his freedom.  The other I can only look his picture and the card his family sent me after his execution. I don't have all the answers - I'll leave that to people far smarter than me. If you think this is an isolated incident though, you are as deluded as I was in thinking I would get a hearing in Todd's case. We need to do something - and that something needs to more than an apology after the fact. Of course, so far his family hasn't received even that.

 

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I've been at the Annual Conference on Actual Innocence at Plano - I lost count of how many I've been to. Generally, the focus of the conference is the same each year; we have a problem, and need to address it. So far, it doesn't look like we've come up with a good solution.

One of the biggest problems I see is the use of experts to obtain convictions. I'm not saying experts shouldn't be used in criminal cases; however, there use should be limited to corroborating other evidence. All too often prosecutors use experts to establish thier case.

There was a presentation on a bite mark case, where the defendant ended up spending 10 years in jail before DNA was able to exonerate him. As with many of these cases, the bite mark was the only evidence the State had that tied to defendant to the case. The situation was a familiar one; the so called expert went out of his way to identify the defendant, ignoring contrary evidence, and manipulating evidence where necessary.

There is no doubt that bite mark comparisons are essentially subjective. As a result, different people can look at the same evidence, and reach different conclusions. Too often it comes down to which expert makes a better presentation. In other words, a defendant's fate hinges on who is the better communicator. The possibilites for disaster are enormous, and all too often realized.

Assuming such evidence is admissible - which I am not ready to concede - it should not be used as the only evidence of guilt. Soo called experts are wrong far too often to leave such important decisions to them. They get to leave at the end of the day and go home, while the defendant's life may be destroyed.

Maybe we  need a corroboration rule, like we have for accomplice witnesses. Or maybe it's something that can be addressed through instructions. Whatever the approach, something needs to be done. Until we do, innocent people are going to continue to be convicted.

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The Dallas Morning News recently had a story about an English teacher who had been accused of sexually assaulting a student. Unfortunately, there is nothing unusual about that. However, the story quickly took an unusual turn. The following day the alleged victim contacted the reporter who covered the story, and explained that nothing had happened with the teacher. Instead, she said only stated something happened after the police officer refused to accept her denials.

You might wonder how that can happen. The fact is that does, and there probably a number of reasons for that. Most people are intimidated by police officers; young people are probably more intimidated. Most have been taught to respect authority, which certainly includes police.

As this case demonstrates, sometimes police won't take no for answer. In that situation, you have two options; either stick to your story, and be uncomfortable, or tell them what they already believe. You might wonder why they don't just get up and leave, but do you really think a teenager is going to do that.

Many times police investigators have made up their mind about what happened. Many times they are right, but when they aren't bad things can happen. Psychologists call this "overconfidence basis"; you are convinced you are right, and refused to accept the possibility you might be wrong. It can creep up, without any conscious effort - in fact, most people don't realize it's happening. It's a dangerous thing to do when someone's freedom and liberty are on the line. You often hear police officers say they can tell when someone is lying to them. There is no doubt they have a lot of experience in interviewing people. However, the fact is that no one, no matter how experienced, is good at discerning the truth. Research suggests that at best some of us may be right slightly more often than we wrong.

It's not hard to uncover the roots of wrongful convictions; this is it. In almost every case there was evidence that could established someone's innocence. The evidence was either ignored, or not followed up on because the police were sure they had the right person. Sometimes they were absolutely sure, which points out another problem. The more convinced you are of something doesn't mean you are more likely to be right.

Police officers have to make decisions, and form judgments. You can't expect them not to. Like anyone else, they can make mistakes. The best we can hope for is they recognize the possibility that they may not be right.

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The New York Times recently had an interesting story concerning the budget cuts for many newspapers. The story pointed out the potential effect such cuts would have an innocence cases. You might wonder how cuts to a newspaper would impact convicted defendants. The answer is quite simple; a significant number of exonerations have been based on the work of investigative reporters. Such reporting is generally the first to go when newspapers start cutting costs. While it can generate readership, it does so with significant costs.

So why do we need investigative reporters? The most obvious answer is that they have two resources many lawyers do not have; money and time. Innocence investigations often involve massive amounts of time; which is something few lawyers have. Even if they had the time, they seldom have the resources a newspaper can devote to a case. Innocence Projects are free from some of the constraints that private lawyers operate under, but they have their own constraints; they have to weed through thousands of cases, and determine which ones to devote their limited resources to. Few have big staffs, and most utilize volunteers for the bulk of the work.

There's another reasons why reporters are effective - they know how to investigate. They do it every day. Investigative technique is not something taught in law school. A certain type of skill is necessary, which few lawyers have. I've had the privilege of working with several excellent journalists over the years, and that has made me acutely aware of how lacking I am in the skills necessary to be an effective investigator. Reporters are trained to get to the bottom of a story; they know what to look for, and how to look for it.

I think there is also another reason why reporters are so effective - people want to talk with them. I'm not talking about politicians, and business people, but ordinary, every day  people. They are flattered when a reporter wants to talk with them, and often bend over backward to help. In contrast, most people avoid lawyers like the plague. When they do talk, they guard their answers for fear of what you are going to do with the information. There's been more than one occasion where I have seen a reporter get information that a lawyer and even their investigator could not obtain.

I wholeheartedly agree that cuts in investigative reporting are going to have a negative impact on cirminal justice. There will be many defendants who will have to serve out their sentence because there is no one to take up their case. I wish I had an answer; maybe help will come from the blogosphere. There are already a number of reporter who have switched over to getting their information out through the internet.

For all those reporters who are getting laid off, thank you for what you done. I hope you find to continue to your work.

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The Texas Court of Criminal Appeals issued a significant opinion today on DNA testing. In Esparza v. State the Court reversed both the trial court and the Court of Appeals, both of which had denied his request under Chapter 64 for post-conviction DNA testing.

Esparza had been convicted of aggravated sexual assault. He met two women at a bar, and ended up giving them a rode home. On the way, he raped one, the other got away. The actual victim could not identify him, but the other woman did, as well as another person at the bar. Additionally,  he had given them a business card, with his name on it. He denied guilt at trial, and presented an alibi. The jury ultimately convicted him, and sentenced him to life.

In rejecting his request for DNA testing, the court focused on two things. One was that victim admitted she had sex 2 days earlier. The court concluded that because of that, evidence of a third party donor would be meaningless (the trial attorney actually admitted this at trial, although I can't come up with any rational explanation for making such admission). In other words, the court found that she had sex with someone else, if the testing excluded Esparza it must be the other person.

The CCA (yes, the one with Sharon Keller) found several problems with that argument. The most glaring was that it was based entirely on assumptions. One assumption was that  her partner ejaculated in the other incident. Another assumption was that she didn't do anything to clean herself up in the interim. And finally, there was no testimony that there would still be evidence to recover from an incident two days earlier. In other words, you have to more than guess; your guess has to actually be supported by the evidence.

The Court concluded that if the DNA tests excluded him, there is a reasonable probability he would not be convicted.

You still have the identification, which appears fairly supported because of the business card. (BTW - it showed him working as a paralegal for the lawyer who ended up defending him at trial) The court's rejection of this argument is truly astounding. They held that the eyewitness identification of the two witnesses was "of no consequence". They also held that:

In sexual assault cases like this, any overwhelming eyewitness identification and strong circumstantial evidence (e.g. Esparza's business card, light-blue four door car, age and the fireworks on the floorboard) supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exlculpatory DNA evidence would prove his innocence under Art. 64.03.

Maybe I'm reading too much into it, but to me that suggest the Court has finally recognized just how unreliable eyewitness testimony really. It's no longer enough to say you have an eyewitness ID, even if supported by other evidence. I think that has application in other cases; not just Chapter 64 requests.

I can't believe I'm happy about a Court of Criminal Appeal opinion. but I am. I'm not expecting this to be a trend though.

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Last week the court denied relief for Troy Davis. His case has bounced back and forth in the courts. Since his original conviction, he has obtained recantation's from several of the government's witnesses, as well as an admission from someone that they actually committed the offense. Needless to say, the litigation has focused on whether Davis is innocent or not.

The court affirmed the conviction and corresponding death sentence, by a vote of 2 to 1. As a result, there is a very real possibility that he will be executed even in light of evidence that at least raises questions about his guilt.

The legal system is not designed to judge shades of guilt or innocence. You are either guilty or not. In most cases that may be sufficient.Many people are willing to live with the possibility that guilt may not be firmly and clearly established (i.e. beyond all doubt as prosecutors are fond of reminding jurors). However, where death is involved, there should be an alternative approach.

No one can seriously argue at this point that juries never make mistakes. They do the best they can, with the evidence presented. In many cases there may be new evidence developed during the post-conviction process. What a jury would do with that is nothing more than a guess; a guess that's not being made by jurors, but instead by courts. In those cases, they are making life and death decisions, based entirely on what they THINK a jury would do.

Troy Davis's case represents the problem with establishing innocence. Once a jury finds a person guilty, a presumption of guilt is created. Overcoming that presumption is difficult, if not impossible to do. As in Davis's case, many times a defendant may obtain a recantation from a witness. While most people would think that's significant, courts look at recantations skeptically. Especially when it occurs long after the trial, courts place little faith in them. Seldom will someone obtain relief if all they have is a recantation.

Admissions of guilt are also looked at step typically, especially if the person can no longer be prosecuted for the offense. Recently, a defendant in Dallas was released after being exonerated through DNA evidence. Another person had claimed credit for the offense years earlier. Had the authorities taken that seriously, they could have ensured the right person was convicted. As it turned out, limitations had run, and no one was ultimately prosecuted for the crime. I can understand why prosecutors look at such claims with skepticism. However, they must do more than dismiss them outright. Somehow they must at least consider the possibility that they may be credible, and at least do some type of investigation.

 

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Yesterday a District Court judge in Austin - Charlie Baird - issued an opinion formally exonerating Timothy Cole of rape. What's historic is that Cole died in prison; as far as I know, no one has ever been exonerated after their death. Thank's to Grits, you can view the opinion here.

Cole was convicted of raping MIchelle Mallin, who had positively identified him. Mallin was present at the hearing - flying in from out of state with her husband - and has been a vocal supporter of Cole's family. She also has become a vocal supporter of innocence reform legislation.

Baird was critical of the police investigation, which he said zeroed in on Cole and ignored clues that could have led investigators elsewhere. He also took the opportunity to pitch legislative reform, including revising eyewitness identification procedures, and improving access to the courts for those pursuing innocence claims. That's a start, but I don't think its near enough. We need to change our mindset, which is far harder to do.

Cole's case has a happy ending - largely because of the resolve of his family. They were able to convince the Texas Innocence Project to take the case - I doubt it took much persuasion. The actual rapist had been trying for several years to take responsibility, and exonerate. He had written letters to everyone he could think of, and they were all ignored. Unfortunately, that is not uncommon. Authorities have to deal with hundreds of such claims - and the vast majority are groundless. However, some have merit, and they get dismissed far too easily. Somehow, we need a system to identify those claims that need to be investigated. Providing money is a good start - we cannot expect a few lawyers to shoulder the responsibility of providing representation in these cases - there is so much pro bono work you can do; you still have to pay the bills.

Criminal defense lawyers don't get a pass on this. I handle post-conviction litigation and supervise a innocence clinic at Baylor Law School. I cannot guess at the number of letters I've received from inmates declaring their innocence. Unfortunately, I've received a few letters from people who were able to obtain relief from someone who listened to them. I try to take each claim seriously, but its human nature to become jaded when so many turn out to be false.

We can set up the best system humans can devise, but it will still be run by people. Unless those in the system take it seriously, there are still going to be those who fall through the cracks. How you do that I don't know. I do know that when you see cases like Timothy Cole you look at things a little differently - at least for awhile. We need to constantly remind ourselves that there many other Timothy Cole's out there - trying to get someone to listen.

I realize not everyone who says they are innocent actually is - most probably aren't. I also recognize that there are probably a lot of innocent people who are never going to be able to prove their innocence, even with the best team of lawyers. No matter  what system you devise, there will always be those who can't meet their burden.

Timothy Cole was lucky (if you can call dying in prison a convicted rapist lucky) - there's no doubt there are others that are not so lucky. I believe the legislature has finally realized - after years of prodding - that something needs to be done. Thank you to everyone involvied in obtaining this result - it should be a lesson to us all.

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Several people have already discussed the case of Timothy Cole. Cole was a Texas Tech student when he was convicted in 1985 of rape and sentenced to 25 years in prison. Cole died in 1999 from asthma complications. He maintained his innocence, even it meant he wouldn't be paroled. His family never doubted, and never gave up.Their results paid fruit in 2003 when DNA evidence cleared him, and pointed to the guilt of another man. As with over 75% of wrongful convictions, this one involved a bad identification.

The identity of the actual rapist was not a mystery. He had been trying to admit his guilt for several years. Although its rare that someone would admit to committing such a serious offense, investigators didn't believe him. They probably didn't care - after all, they had a conviction in the case. When the DNA evidence came back his confession could no longer be ignored.

Cole's family initiated a court of inquiry in Travis County, and presented evidence seeking Cole's exoneration. They were successful, and former Court of Criminal Appeals justice Charlie Baird granted the request. The family will not seek a pardon from Governor Perry, and also seek to have the conviction expunged from his record. Even though he's no longer with us, it is a formal recognition that he is in fact innocent, and should have never been convicted.

In connection with the hearing, Cole's family appeared at the legislature, and received what has been described as a truly warm reception. Several bills have already been introduced dealing with innocence issues, and maybe this year they have a chance of passage. It helps to put a face on an issue. Several other exoneree's also were in Austin to support the bills. While I'm all for anything that possibly prevent the conviction of an innocent person, I have doubts about how effective these bills will be without a fundamental shift in the system.

Mistaken identifications have been targeted as a major cause of wrongful convictions.  Some states and local police departments have changed the way line-ups are conducted. With traditional line-ups, the danger is that the individual who most closely resembles the assailant will be picked. An identification can almost be assured by the other pictures included in the line-up. That appears to be what happened with Cole; it was either going to be him or no one. Research has shown that showing pictures one at time will improve accuracy. Other changes include having an investigator not associated with the case do the lineup so there is no way to influence the selection.

I have no doubt such changes will improve the process. Even with better procedures though, I think you still have to accept that mistakes are going to be made. Human memory is not like a camera; you cannot simply go back and recreate what you saw. It is influenced by a number of variables. most of which you are not aware of. The bottom line is that identifications are not perfect, and everyone seems to know that except prosecutors and investigators. Personally, I think they know it, they just don't care. The easy way to close a case is with an identification. Usually any further investigation stop, and the case is closed. Often times, as in Cole's case, investigators ignore evidence which should have caused them to question the identification.

Maybe we need a corroberation requirement, like we have with accomplice witnesses. You cannot obtain a conviction without other evidence that supports guilt. Over time, perhaps that would cause a change in tactics. Instead of throwing someone into a line up with nothing more than a hunch, maybe they would wait until they had other evidence. More importantly, maybe investigation would continue after the identification is made. Identifications would be treated as nothing more than circumstantial evidence.

Until we recognize the inaccuracy of identifications, the problem is going to remain. No matter how many cases of mistaken identification  are reported, police and the general public still believe its accurate. The tendency is to look at those cases as aberration. If we could ever get accurate statistics, the truth may be that an accurate identification is the exception. After all, think of all the things going in most crimes; its no wonder that the ability to accurately recall what someone looks like is diminished.

I hope these changes come about. However, I also hope that's not the end, and everyone expects the problem is fixed. As long as police can close a case without a substantial amount of work they are going to do; its only human nature. Cases will continue to be closed with identifications, and probably many will be wrong. We still have a long way to go.

 

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Larry Swearingen is set to be executed on Tuesday for a 1988 rape/murder in Montgomery County. Like many, Swearingen claims he is innocent; unlike most though, he is probably right. And like several before him, his claim of innocence may get lost in the ridiculous maize of legal rules limiting such claims. This is truly an area where form prevails over substance.

The evidence against Swearingen was focused on time of death. The victim was not found until a month after she disappeared. Swearingen was in jail most of that time, having been picked up on tickets 3 days after she disappeared. At trial the State's expert concluded she could have been killed, and her body dumped the same day she disappeared, which meant Swearingen could have committed the offense. The expert, Harris County Medical expert Joye Carter, now says that she was killed at least one week after she disappeared - when Swearingen was in jail. Several other experts have also examined the evidence and concluded she could not have been killed while Swearingen was still out. Those experts included a Gil Grissom type who examined insect larvae.

You would think that is enough, but there is more. Blood samples were found under the victim's fingernails, as well as a foreign pubic hair in the vaginal swab. Those came from someone other than Swearingen, although at the time they could not match it.

Swearingen has already taken his claims to the Court of Criminal Appeals, and they have been rejected. Although the Court acts like they are concerned about innocence, and spend money on innocence training, they seldom take action when a valid claim comes before them. They want everyone to believe they are truly concerned about innocence (they even created a judicial integrity unit), but the facts speak for themselves. But that's for another post.

Swearingen has petitions pending in federal court, but those are being opposed by Greg Abbott, the Texas Attorney General. He has taken the predictable position that Swearingen has not met the almost insurmountable burden to obtain relief in federal court. He also has a request for clemency/commutation pending with Governor Perry.

This will not be the first time Governor Perry has presented with a claim of innocence. Cameron Willingham presented evidence that the arson he was convicted of was not arson. A number of experts have since agreed, and the case is currently being studied by a State commission. As with other petitions, I would expect governor Perry to take the politically popular position - after all, he he has been convicted. We wouldn't want to appear to be soft on criminals.

As I get older, I start worrying more about things eternal. As most Christians, I believe we will have to account for what we have done on earth. Although I'm not always successful, I try to keep that in mind when making difficult decisions. I don't know how you can explain a decision to go forward with an execution in the face of a legitimate claim of innocence. Somehow I don't think legal arguments are going to carry much weight. I realize politicians don't think like that, but maybe they should.

I also fail to see what harm there is postponing the execution, and having a full and complete hearing on this claim - which hasn't happened yet. You would think the system wants to make sure we get it right - but those involved in post-conviction litigation know that isn't something the courts even give lip service to. We need a better way to address these claims; preferably one that removes the political aspects. Let's hope the Legislature will make some inroads this session; Sen.Rodney Ellis has carried the torch for the last few sessions, and continues to do so.

For Larry Swearingen, and all those working or him, I pray you are successful.

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Dallas County is scheduled to release another person based on DNA evidence. The individual is the 19th person released since Dallas County started reviewing cases, and has been in jail for 26 years.

Unfortunately, this story is a familiar one. The victim identified the defendant, and that was all the evidence that was needed. The identification was questionable, since a lineup was mailed to the victim, and two of the pictures were of persons without a shirt, which was the description provided. Obviously, that was not enough to convince a jury.

It is also a familiar story of investigation. Not only did they conduct a questionable identification procedure, they also refused to look into what appeared to be solid alibi evidence. The defendant was ablet o produce a time card showing he was working at the time, and his employer testified for him.

it amazes me that even with all the exonerations, eyewitness testimony is still viewed as almost infallible. Jurors rarely question the identification made by a victim, especially when they point out the person. Even when they are told about the problems with such identifications, they still are not willing to reject it. There are no telling how many people are in prison because of bad identifications. The vast majority of those will have to stay there, because there is no physical evidence that will exonerate them.

We have to come up with a better way to handle these cases. Presenting expert testimony is a start; jury instructions may also help. The best way to deal with the problem though is to avoided it the first. Investigators need to stop blindly accepting eyewitness identifications, and look into evidence to the contrary. After all, that is what investigating is all about.

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I just got back from a program on Actual Innocence at the Center For American and International Law in Plano. This was one of many seminars that have been conducted the last several years. (the impact of those seminars needs to be the subject of another post)

The focus was on DNA evidence, false confessions, and eyewitness issues. Education on eyewitness testimony is sorely needed, since mistaken identifications have been involved in a substantial majority of wrongful convictions (around 75%) Unfortunately, most jurors, and many lawyers, have mistaken beliefs about the reliability of eyewitness testimony.

There were two points I thought were significant. One concerns juror's beliefs about such testimony. Research has established that most people believe a person is more attentive when they have a gun pointed at them, or are otherwise under stress. They also believe witness' who are certain of their identification are more accurate. They also believe most people are able to accurately estimate time. Research has also established that the truth about those factors is exactly the opposite; you are less accurate when under stress, witness' who are certain of their identification are no more accurate than those who have doubts, and people are terrible at estimating time.

A more disturbing issue was a discussion of the inability of cross-examination to reveal mistaken identifications. Cross-examination is generally effective at uncovering witnesses who are lying, or trying to shade the truth. Eyewitnesses seldom intentionally lie; instead, they sincerely believe they are testifying truthfully. While you can point out the problems with eyewitness identifications, as discussed above, jurors beliefs about many of those problems are exactly the opposite, and as a result, they are unwilling to accept expert testimony. That leaves you with no effective way to uncover a mistaken identification.

Every lawyer knows how powerful eyewitness testimony is. If you don't have something really compelling to rebut it, it is impossible to overcome. There have been many great lawyers who have been unable to convince jurors that an eyewitness was mistaken.

So how do you handle the problem? One solution is to change people's beliefs about eyewitness identification. That requires aggressive education, and time; even with that, it is doubtful that will ever be successful. An easier fix is for Courts to become more aware of these issues, and scrutinize identifications more carefully. Prosecutors also need to be more skeptical, and not blindly accept all eyewitness identifications, even where they appear sincere. Instructions might also help, and are being given in some jurisdictions.

Defense lawyers have a difficult job in handling an eyewitness case. We can no  longer rely on cross-examination. We must use the research and experts that are available, and do the best we can to show jurors the view the witness had. Maybe if enough lawyers consistently take this approach, public awareness will start to slowly increase.

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In 2005 the Texas legislature created a Forensic Commission. Their job was to investigate complaints of forensic misconduct. Frankly, I didn't expect them to do anything, and I still don't have high hopes. However,  they at least got off to a good start - even if did take almost 3 years.

The commission voted on Friday to review two arson cases - Cameron Willingham and Ernest Willis. One was executed, and the other released, on almost identical evidence. The Innocence Project has already commissioned a report that was prepared by the leading experts in the country, so I don't know how much work is going to be required. Maybe that's why they took these two cases.

I'm not sure what they can accomplish, but hopefully this will raise awareness of the issue of flawed arson investigations. There are other cases out there, and people still serving  time for something that was not a crime.

I represented Cameron Willingham in the final stages of his appeals, and presented the evidence to the courts and the governor.  The response from the governor's office was that he "didn't see anything that would convince him he should postpone the execution". I'll never forget that statement - but I guess its too much to expect something like innocence to get in the way of an execution.  It's too late for Mr. Willingham, but maybe the commission can do something to prevent the same thing from happening to someone else.

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Everyone at some point says something you wish you could take back. You might say something without thinking, or it just comes out wrong. Prosecutors seem to do it often, perhaps because they get so carried away with preserving our way of life ;).

Williamson County District Attorney John Bradley definitely has to be in the running, for comments he made regarding a federal lawsuit recently filed by the Innocence Project.  They are trying to force Williamson County to let them test evidence from two murder cases, which they think are related. In one, someone was convicted, and is serving a life sentence. In the other, no one was arrested and the family wants the evidence tested (so much for representing the victims!).  In responding to the lawsuit, Mr. Bradley stated:

"Meanwhile, the public might want to remain skeptical of a defendant who to this day doesn't accept responsibility"

I guess what that means if is if you want to test evidence to prove you are innocent, you have to admit you committed the crime. Of course, if you admit you committed the offense, then you have no reason to test the evidence.

Let's hope he didn't think that one through. But then again, what reason is there to refuse testing in the first place, especially for a victim's family.

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I've been out for a week, and am glad to be back. I spent 3 1/2 days at sign language school, which was  a grueling experience. Not being able to talk is bad enough - its made when worse when you have trouble communicating through sign. I learned a lot though - including the fact that  it's a lot harder to pick up another language though when you get older!

I read an article this morning which made a point I had not thought about. The article was about the Jon Benet Ramsey case, and how the parents had been "presumed guilty" all these years, only to be finally cleared. That case is a perfect example of why the presumption of innocence is little more than a myth.

Attend any criminal trial, and during jury selection you will probably hear defense lawyers spending a lot of time talking about the presumption of innocence. While it's an issue you need to point out, I don't think most people (jurors included), really believe it. If they answered honestly, they would say "yeah, I think he probably did it - why would they arrest him if he didn't do anything wrong". If you ask Mr. Ramsey, I'm sure he would say few people afforded him the presumption of innocence. Outside of his friends,  most people probably suspected he had some involvement. He had to live under a cloud of suspicion for years, and his wife died with it  still hanging over her.

Even with news of all the exonerations in the past several years, most people still think that if someone is arrested, they are probably guilty. That's probably human nature,  because most of the time they are guilty.  That's not an excuse though to brand someone a criminal, without hearing all the evidence. We need to do a better job of giving people the "benefit of the doubt". If you do that consistently, maybe it's a little easier to give meaning to the presumption of innocence if you are called to serve on a jury.

We need to take this case, and others like it, to remind everyone how important it is in our justice system to have the presumption of innocence.

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I received a press release yesterday from Justice Barbara Hervey. Justice Hervey is a member of the Texas Court of Criminal Appeals, and has been at the forefront of trying to educate lawyers and the judiciary about innocence issues. The press release announced the establishment of the Texas Criminal Justice Integrity Unit. According to Justice Hervey, this is "a call to action to address the growing concerns with our criminal justice system."

According to the press release, the unit will address the following issues:

• Improving the quality of defense counsel available for indigent defendants.
• Implementing procedures to improve eyewitness identification.
• Making recommendations to eliminate improper interrogations and to protect against false confessions.
• Reforming the standards for collection, preservation, and storage of evidence.
• Improving crime lab reliability.
• Improving attorney practices and accountability.
• Adequately compensating the wrongfully convicted.
• Implementing writ training.
• Establishing local, “home rule” protocol for the prevention of wrongful convictions

I think this a good start, but it is just that. Everyone has to take this seriously, especially prosecutors and judges. It's not enough to address preventing wrongful convictions, although that certainly is important. We have to address how to identify those persons who have been wrongfully convicted. When it comes right down to it, it is up to judges to make those decisions; unfortunately, they are not politically popular decisions, and as a result, we have have seen most non-DNA cases rejected.

Let's hope more education is the answer. It certainly cannot do anything but help to keep the issue at the forefront of discussion. Justice Hervey recognizes it's time to stop talking, and start acting. Let's hope others follow her lead.

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Last night as I was driving to Austin I had the good fortune to listen to an interview on the The Catholic Channel with Rev. Carrol Pickett. Rev. Pickett was the minister at the Walls unit in Huntsville for 16 years, and during his time he was present at 95 executions. He would be the inmate from 6:00 a.m., until they were executed shortly after midnight. (now they do it at 6:00 so everyone doesn't have to stay up all night). After each execution, he recorded his thoughts on a recorder as a form of therapy. We all now  have the privilege of  listening to some of those recordings.

During the interview he made a statement that almost caused me to  have a wreck. Without any hesitation, he stated that he knows 15 of those 95 inmates that were executed were actually innocent!! That means that in our so called quest for justice, we have killed 15 people for no reason. As has been pointed out before, that also means 15 people have gotten away with murder - at least a few of those have probably gone on to commit other murders. I've discussed before the attempts to estimate the number of innocent people in prison. According to these numbers, its around 15%.

Rev. Pickett is the subject of an independent film, At the Death House Door, that debuts on May 29. If its anything close to  his interview, it should be fascinating.

When he started talking, I wasn't sure where he stood on the death penalty. He eventually made his position abundantly clear - he is absolutely opposed to it. He quoted on the inmates he counseled, who summed it up perfectly: "what sense does it make for the State to kill someone, to convince everyone else that its wrong to kill people?"

While his discussion of executing innocent people got my attention, that was not what struck me most about the interview. When he finished, my one thought was how fortunate those 95 men were to be able to spend their last hours on earth with him. He is truly a remarkable Christian man - someone that is able to Jesus in others, even those condemned to death.

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a recent editorial in the Dallas morning news championed the idea of creating an innocence commission in Texas.  The editorial was in response to a meeting last week in the legislature, which drew representatives from all branches of the judicial process, namely prosecutors, defense lawyers, police, and judges.  Senator Rodney Ellis is again introducing legislation to create such a commission.  One can only hope that it has enough support this time to actually have a chance of success.

Unfortunately, similar legislation in the past has been the victim of politics.  I participated in one of the committee meetings several years ago, and presented evidence along with Barry Scheck of the Innocence Project.  At that time, the idea of creating an innocence commission was strongly a opposed by the prosecutors, and died a quick death.

I believe the only way to effectively deal with wrongful convictions is the creation of such a commission, that includes an independent panel to review convictions.  The judicial process is not equipped to deal with these claims.  Granted, relief has been granted in a handful of cases.  However, most of those involved DNA evidence, and there was no argument that the person was actually.  The problem is with all the other cases, where there is no such convincing evidence.  Where there is any question, judges are hesitant to grant relief.  Unfortunately, that is one of the consequences effects of electing judges, who have to worry about the political ramifications of their decisions.

Prosecutors also fall short most of the time.  Law school teaches us all to be advocates for our cause.  We also are taught that we have an adversarial system.  Unfortunately, that system does not function well in this area.  Prosecutors too often oppose innocence claims merely because that is what they perceive they are supposed to do.  Most of the time it is probably not even a conscious decision.  No prosecutor wants to admit that they are responsible for prosecuting someone who is actually innocent, and often they refuse to seriously look at the newly available evidence.  Defense lawyers also bear some of the responsibility.  Too often frivolous claims are advanced, merely because someone is representing their client.  No one has an absolute right to present an innocence claim, and lawyers should not take on a case unless they are convinced first that the person is actually innocent.

I'm not naïve enough to believe that an innocence commission is not going to suffer some of the same defects.  However, it has to be a better way to process claims.  Let's hope this time that both parties can agree the time has come for an innocence commission in Texas.

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A recent Dallas Morning News editorial applauded District Attorney Craig Watkins for agreeing to scrutinize non-DNA case. I applaud him too; unfortunately, he is probably going to be in the minority. In fact, I would be surprised if any other elected District Attorney decides to follow his lead. In non-DNA cases, the knee jerk reaction is to fight them tooth and nail. In the absence of conclusive proof (like DNA) few prosecutors are going to agree that a person is innocent. I have seen this most often in recantation cases. Granted, most recantations are false, but many prosecutors refuse to acknowledge the possibility that at least some of them are true. If you plead guilty, your odds are even worse. Until prosecutors are willing to honestly accept the fact that there are a substantial number of innocent people of prison, this problem is not going to be resolved.

A recent blogger reported a prediction that the next wave of innocence cases will be arson convictions. I certainly hope that's true, because I have one. Almost everyone agrees that what was known about arson investigation back in 1980's was wrong; much of it was nothing more than "old wives tales". The result was that many fires were declared to be intentionally set, when they were probably accidents. These cases are unique, because you are not claiming someone else committed the crime; in fact, no crime was committed. Unfortunately, that has been the biggest hurdle to overcome, because many people refuse to believe that no one is responsible for the deaths that result from these fires.

DNA cases are easy, especially when you can prove who actually committed the offense. These cases are far more difficult, although the defendants are no less innocent. Judges and prosecutors are going to have to step up and do the right thing. I hope I'm wrong, but I think Mr. Watkins is going to be part of a very small minority. I hope voters don't hold that against him, and you know it will be an issue. Even if they do, I have no doubt he will be rewarded.

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In my career I've been blessed to help in securing the release of an individual who had been wrongly convicted of capital murder, and imprisoned for more than 16 years. As a result, I consistently have inmates and their families contact me about taking their case. I currently have a few such cases, and have a special interest in ensuring we identify those who are actually innocent. So a recent news story caused me a great deal of consternation. Two lawyers had received a confession from their client to a murder that someone else had been convicted. So they knew that an innocent person was in jail - and he stayed there from 26 years. The truth didn't come out until the client died, and the lawyers released the information (having obtained the client's permission to do so). As lawyer, we must always protect the confidences of our clients. In this one small way, we are like priests. So they were right in not disclosing the information. That doesn't mean they didn't have a few sleepless nights over the years. Not surprisingly, this has been the subject of comment. Sometimes being a lawyer is not all its cracked up to be.

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It has become common to see reports of people being released from prison after establishing their innocence. The majority of those cases involve DNA evidence, which is not suprising. Almost no one can argue with the results of a scientic test that can establish someone did not commit an offense. Unfortunately, DNA testing can only be done in a small number of cases, and there are no such tests that can be used in other types of cases.

Since it is now accepted that innocent persons are convicted, many people wonder how many innocent persons there are in prisons across the country. A few people have tried to come up with formulas to determine how often innocent persons are convicted. Some people have argued the rate is somewhere between .27% and .65%. However, the process for coming up with those numbers often does not account for the limited number cases in which scientific evidence is available. To come up with an accurate number, you would have to compare the number of exonerations with the number of sexual assault and murder convictions, since those are the type of cases in which physical evidence is often available. Of course, some allowance has to be made for the number of cases that are not tested, since only a handful of cases are ever subject to post-conviction review.

Recently, the Virginia Department of Forensic Science found a number of closed rape cases with untested DNA evidence. So far, out of 29 cases tested, 2 wrongful convictions have been uncovered. If that ratio remains consistent, the error rate would be 7%. A review of death cases by law professor at Seton Hall University produced an error rate of 2.3%. While those percentages might seem low, the real life affects are enormous; With a 2% error rate, there are 20 innocent persons for every 1,000 convictions.

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Over the last few years it has been common practice to take a DNA sample from persons convicted of certain offenses, and submit it to a national database. The obvious goal is have someone to compare unknown samples. The database has already produced several "cold hits", where previously unknown suspects were identified. Although there have been challenges to collecting the samples, those have not been successful to date, and probably won't be as long as it is limited to persons who have actually been convicted. What if you take samples from everyone who is arrested though? And what if you keep those samples even if the person is exonerated, or charges or never filed. That is the situation that currently exists in Britain and the process is being challenged in the European Court of Human Rights. DNA testing is not the foolproof system it was once thought to be; mistakes do occur, and people have been wrongly identified. How tragic would it be if an innocent person is dragged through the justice system again because of a faulty DNA hit? Let's hope the court does the right thing - otherwise we may be dealing with the issue here.

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