Friday, November 30, 2007

Legally Speaking: Compensating the Exonerated

November 28, 2007

By John G. Browning, Southeast Texas Record

The NBC television drama "Life" centers around a wrongfully convicted policeman who-after serving years for a crime he didn't commit-is released and rejoins the force to help solve crimes. He does so from a luxurious mansion and a sleek sportscar, the byproducts of a multimillion dollar civil settlement stemming from his unjust incarceration.

"Life is what was taken from him, and life is what he gets back," his lawyer reasons.

But in real life, how are the exonerated compensated? How much is enough to pay someone back for a life interrupted? With the advent of DNA evidence, an increasing number of prisoners nationwide have not only been able to secure their freedom, but also to make a compelling case that they deserve to be paid for their time behind bars.

Shockingly, most states offer no automatic financial reparations to exonerated inmates. In the 22 states that do provide some measure of reimbursement (including Texas), the amounts vary significantly.

California, for example, provides $26,500 for each year wrongfully spent behind bars. Ohio pays $40,330 for each lost year, plus attorney's fees and lost wages. Vermont, Hawaii, and Michigan pay a maximum of $50,000 for each year served, while Alabama's minimum is $50,000 per year. Tennessee, meanwhile, has a cap set at $1 million, regardless of how many years were wrongfully served.

In states like Missouri, on the other hand, compensation is not on a set scale but rather is determined by subjective factors at the discretion of the state. In the case of one inmate freed from his prison term on the strength of newly examined DNA evidence, the settlement from the state amounted to about $181,000, or around $50 a day.

The process by which such claims are made also varies considerably from state to state. And in some states lacking a formal compensation program, wrongfully convicted prisoners often have no choice but to take their chances with the justice system once again by filing a civil lawsuit.

Somewhat surprisingly, Uncle Sam is a little more generous with his money. Someone exonerated of federal crimes is eligible for $50,000 for each year he was behind bars; if the crime in question was a capital crime, he can recover $100,000 for each year.

In 2001, Texas adopted a compensation law for exonerated prisoners. Under this law, such individuals can recover $25,000 for each year served, up to a maximum of $500,000. Between 2001 and the end of 2006, the state paid out a total of about $3.6 million, spread out over 15 former inmates. During that same time period, at least 14 other individuals had their claims for compensation denied.

The money comes from Texas' General Fund, and is disbursed by the state comptroller's office once a claim is approved. Although the program was plagued early on by criticism of untimely payments and excessive bureaucratic red tape, the state has made efforts to improve the process.

But Texas' system came under fire earlier this year for a different reason-the amount it provides. Senator Rodney Ellis (D-Houston) introduced legislation this year that would have significantly increased the amount a wrongfully imprisoned inmate could receive. Under Senator Ellis' bill, Texas would have matched the federal government's policy of paying $50,000 per year served, with the payments increasing to $100,000 per year in the case of death row inmates.

In addition, Senator Ellis' plan would have eliminated the existing $500,000 cap. While the bill was approved by the Senate, it never reached the floor for a vote in the House, and so Senator Ellis' efforts ended as time expired in the legislative session.

Will Senator Ellis or others renew the call for increased compensation in 2009? Only time will tell.

But consider a few factors in the meantime. Traditionally, the record of exoneration reparation programs has been somewhat hit or miss, primarily because exonerations have been relatively rare in U.S. history-the Innocence Project estimates that there have been only 1,300.

With the availability of genetic testing, exonerations are becoming more common-by the end of August, 2007, 207 prisoners in the U.S. had been exonerated thanks to DNA. And with the higher rates of exonerations, compensation programs and their adequacy have come under greater scrutiny.

According to Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University Law School, "In the vast majority of these cases, the DNA analysis has left absolutely no doubt that the person was innocent. So people have begun applying for automatic compensation, which is really not adequate."

Moreover, this is a particularly acute concern for Texas.

With 13 convictions overturned with the help of DNA test results since 2001, Dallas County leads the nation. The issue of the wrongfully imprisoned has become sufficiently high in profile to lead Dallas County District Attorney Craig Watkins to call for the creation of a special division within the D.A.'s office to investigate such miscarriages of justice.

There will be more people exonerated-folks like Greg Wallis, who was convicted of rape in 1989, sentence to 50 years in prison, and exonerated in 2006 by DNA evidence. After years in prison for a crime he did not commit, Wallis-like other exonerated individuals-is struggling to recover the fragments of his former life. Besides the emotional and psychological toll taken by years behind bars, individuals like Greg Wallis have to cope with the economic realities of a career interrupted and a return to the workforce.

His attorney, Jeff Blackburn of the West Texas Innocence Project, points out that the compensation available under the current program is "a joke. I don't know of anybody who says 'I'll go to prison for 20 years of my life if you'll give $25,000 [a year] at the end of it.'"

Think about it. You've been convicted for a crime you know you didn't commit. You've been plucked from family and friends and thrown into a human cesspool for years as you struggle to survive the grim realities of prison life-gang violence, murder, rape and degradation.

Then, if you've been among the fortunate few to have been vindicated by genetic testing, you're released into a world that in many ways you don't recognize. As you struggle to adjust and get your life back, how much do you think each year that's been stolen from you is worth?

Something tells me that for most of us, that figure would be higher than $25,000.

Thursday, November 29, 2007

Innocence group trying to build support network for DNA exonerees

November 22, 2007

By Jeff Carlton, Associated Press

Anthony Hicks has been in the free world for "11 years and four months come Friday," he said, but the wail of a siren still stops him cold.

"I still have one fear when I am driving and hear an ambulance or a police car behind me," said Hicks, freed by DNA evidence after five years in prison for a rape and robbery he did not commit. "It's a spooky feeling."

Hicks, whose wife stood by him and whose father financed his appeals, considers himself lucky. He had a home to move back into immediately and landed a job within four months.

But few exonerated inmates have such a support system, which is why the Innocence Project of Texas has scheduled its first major fundraiser Saturday. The DNA Blues Ball, featuring blues musicians playing in an East Dallas concert hall, will bring together about a dozen exonerees and the people who secured their freedom.

The money raised will help pay for more DNA tests and "to build an exoneration support network," said Natalie Roetzel, the executive director of the Innocence Project of Texas.

Among exonerees, there are success stories such as Hicks or Anthony Robinson, who became a lawyer after serving 10 years in prison for a sexual assault conviction later proved false by a DNA test.

But there are also tales of twice-ruined lives, of wrongly convicted men ill-equipped to handle regained freedom. Eugene Henton, exonerated by DNA evidence after serving time for a sexual assault conviction, went back to prison after getting convicted on assault and drug charges. He was released last month.

Another exoneree, Donald Good, received a life sentence for sexual assault. Paroled after 10 years, Good went back to prison on a five-year sentence for unauthorized use of a motor vehicle, according to the Texas Department of Criminal Justice. He was released in April.

"I know a few who have done very well for themselves," Roetzel said. "And then there are others, it's all they can do to not end up back in jail."

Day-to-day challenges such as finding a home or getting a job often prove overwhelming, Roetzel said. Some landlords won't rent to registered sex offenders, even ones with letters from judges and attorneys explaining their innocence. And employers can be reluctant to hire convicted felons, not bothering to understand the exoneration process.

"Yeah, you're free," Hicks said. "Where do we go to start anew? How do we start anew? What do you do when your life is snatched from you?"

Since 2001, DNA tests have exonerated 29 wrongfully convicted inmates in Texas, the most of any state, according to the Innocence Project. Thirteen of those inmates were convicted in Dallas County, the most from any one county in the country.

Those who specialize in overturning wrongful convictions expect more exonerations to come out of Dallas. District Attorney Craig Watkins has started a program in which law students, supervised by the Innocence Project of Texas, are reviewing about 450 cases in which convicts have requested DNA testing to prove their innocence.

Six of the approximately 65 cases reviewed to date will result in DNA tests. Another seven defendants "are not appropriate for testing but we'll be looking into their cases because they do have some interesting claims of actual innocence," said Mike Ware, an assistant district attorney who heads Watkins' Conviction Integrity Unit.

The level of cooperation in Dallas County is so unique, said Innocence Project of Texas chief counsel Jeff Blackburn, that "it's like life in a parallel universe. I am living in bizarro-world now."

Watkins said he plans to attend the ball.

"I think it's a great cause," said Watkins, who took office in January. "I would implore more district attorneys to get on board with it. When you make a mistake, you should be the first one to say it. What that does is restore credibility to the system."

Blackburn said he hopes the DNA Blues Ball will boost the fortunes of the cash-strapped organization. The Innocence Project of Texas runs mostly on a $100,000 annual grant from the Texas Legislature to one of its member groups: the Texas Tech Innocence Project Clinic. It also recently received a $25,000 grant from the Texas Bar Foundation. Roetzel and a part-time administrative assistant are the organization's only paid employees, and they work out of donated office space in Lubbock.

The DNA Blues Ball has already raised about $10,000 and organizers are hoping to raise $50,000, Roetzel said. The money will go toward investigations of other cases and to pay DNA tests. Each test costs about $1,500, with several specimens typically tested for each case.

Though money is helpful, Hicks said the most beneficial aspect of the Blues Ball will be the interaction among "my brother and sister exonerees."

Hicks said only another exoneree could understand why, upon his release, he began keeping a journal of his whereabouts, writing down eyewitnesses who could vouch for his alibi if he needed one. Or why, in public places, he became paranoid about being within arm's length of women.

The Blues Ball will allow Hicks to reach out to other inmates and tell them, "You can let your load off on me," he said.

"This is not about one individual; it's about all of us," Hicks said. "And others will come free in the near future. It's going to happen. That is something you can bank on."

Wednesday, November 28, 2007

FBI's Forensic Test Full of Holes

Convictions are in question now that FBI forensic evidence has been discredited

November 18, 2007

By John Solomon, Washington Post Staff Writer

Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by The Washington Post and "60 Minutes" has found.

The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy's assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.

In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."

A year later, the bureau abandoned the analysis.

But the FBI lab has never gone back to determine how many times its scientists misled jurors. Internal memos show that the bureau's managers were aware by 2004 that testimony had been overstated in a large number of trials. In a smaller number of cases, the experts had made false matches based on a faulty statistical analysis of the elements contained in different lead samples, documents show.

"We cannot afford to be misleading to a jury," the lab director wrote to FBI Director Robert S. Mueller III in late summer 2005 in a memo outlining why the bureau was abandoning the science. "We plan to discourage prosecutors from using our previous results in future prosecutions."

Despite those private concerns, the bureau told defense lawyers in a general letter dated Sept. 1, 2005, that although it was ending the technique, it "still firmly supports the scientific foundation of bullet lead analysis." And in at least two cases, the bureau has tried to help state prosecutors defend past convictions by using court filings that experts say are still misleading. The government has fought releasing the list of the estimated 2,500 cases over three decades in which it performed the analysis.

For the majority of affected prisoners, the typical two-to-four-year window to appeal their convictions based on new scientific evidence is closing.

Dwight E. Adams, the now-retired FBI lab director who ended the technique, said the government has an obligation to release all the case files, to independently review the expert testimony and to alert courts to any errors that could have affected a conviction.

"It troubles me that anyone would be in prison for any reason that wasn't justified. And that's why these reviews should be done in order to determine whether or not our testimony led to the conviction of a wrongly accused individual," Adams said in an interview. "I don't believe there's anything that we should be hiding."

The Post and "60 Minutes" identified at least 250 cases nationwide in which bullet-lead analysis was introduced, including more than a dozen in which courts have either reversed convictions or now face questions about whether innocent people were sent to prison. The cases include a North Carolina drug dealer who has developed significant new evidence to bolster his claim of innocence and a Maryland man who was recently granted a new murder trial.

Documents show that the FBI's concerns about the science dated to 1991 and came to light only because a former FBI lab scientist began challenging it.

In response to the information uncovered by The Post and "60 Minutes," the FBI late last week said it would initiate corrective actions including a nationwide review of all bullet-lead testimonies and notification to prosecutors so that the courts and defendants can be alerted. The FBI lab also plans to create a system to monitor the accuracy of its scientific testimony.

The Post-"60 Minutes" investigation "has brought some serious concerns to our attention," said John Miller, assistant director of public affairs. "The FBI is committed to addressing these concerns. It's the right thing to do."

The past inaction on bullet-lead contrasts with the last time the FBI's science was called into question, in the mid-1990s, when 13 lab employees were accused of shoddy work and of giving overstated testimony involving several disciplines, including explosives as well as hair and fiber analysis. Back then, the Justice Department reviewed hundreds of cases in which FBI experts testified, and it notified prisoners about problems that affected their convictions. The government did so because prosecutors have a legal obligation to turn over evidence that could help defendants prove their innocence.

Current FBI managers said that they originally believed that the public release of the 2004 National Academy of Sciences report and the subsequent ending of the analysis generated enough publicity to give defense attorneys and their clients plenty of opportunities to appeal. The bureau also pointed out that it sent form letters to police agencies and umbrella groups for local prosecutors and criminal defense lawyers.

Even the harshest critics concede that the FBI correctly measured the chemical elements of lead bullets. But the science academy found that the lab used faulty statistical calculations to declare that bullets matched even when the measurements differed slightly. FBI witnesses also overstated the significance of the matches.

The FBI's umbrella letters, however, glossed over those problems and did little to alert prosecutors or defense lawyers that erroneous testimony could have helped convict defendants, one of the recipients said.

"Frankly, the letters that they sent them, you know, were minimizing the significance of the error in the first place," said defense lawyer Barry Scheck, whose nonprofit Innocence Project has helped free more than 200 wrongly convicted people. The letters said that "our science wasn't really inaccurate. Our interpretation was wrong. But the interpretation is everything."

The FBI said last week that the 2005 letters "should have been clearer." Scheck has now been asked to assist the FBI's review.

Since 2005, the nonpartisan Forensic Justice Project, run by former FBI lab whistle-blower Frederic Whitehurst, has tried to force the bureau to release a list of bullet-lead cases under the Freedom of Information Act. The Post joined the request, citing the public value of the information. But the government has stalled, among other things seeking $70,000 to search for the documents.

"By stonewalling and delaying the release, Justice has ensured that wrongfully convicted citizens are deprived of their right to appeal or seek post-conviction relief because the statute of limitations in many states has expired," said David Colapinto, the lawyer for the group.

As part of its review, the FBI will release all bullet-lead case files involving convictions.

The Scope of the Cases

Most of the estimated 2,500 instances in which the FBI performed bullet-lead exams involved homicide cases that were prosecuted at the state and local levels, where FBI examiners often were summoned as expert witnesses for the prosecution.

To compile an independent list, The Post and "60 Minutes" conducted a nationwide review, interviewing dozens of defense lawyers, prosecutors and scientific experts. The effort also included a sweep of electronic court filings conducted by four summer associates at the New York law firm Skadden Arps Slate Meagher & Flom.

In many of the cases that raise the most compelling questions, the inmates might have a hard time winning the public's sympathy. Some had criminal backgrounds and most were convicted with at least some additional circumstantial evidence linking them to gruesome crime scenes. But the common thread is that removing the flawed bullet-lead evidence has created reasonable doubt about guilt in the minds of legal experts, the courts and at least one juror.

In North Carolina, Lee Wayne Hunt, 48, remains in prison after being convicted 21 years ago of a double murder. Hunt was an admitted marijuana dealer, but has steadfastly denied involvement in the killings. The FBI testified that its bullet-lead analysis linked fragments from the victims to a box of bullets connected to Hunt's co-defendant. That was the sole forensic evidence against Hunt. State prosecutors recently conceded that the analysis should not be considered "scientifically supported and relied upon."

In addition, the attorney for Hunt's co-defendant, who committed suicide in prison, has since declared that his client carried out the murders alone.

Despite both developments, Hunt has been denied a new trial.

"What they're relying on here is technicalities to keep an innocent man in prison," said Richard Rosen, Hunt's attorney.

Another North Carolina case highlights the impact that FBI bullet-lead testimony had on local jurors. James Donald King faces execution after being convicted of killing his two wives. He admitted to killing his first wife, spent time in prison, was released on parole, remarried and then was convicted of murdering his second wife.

The court is considering whether to grant a new trial.

"If the state had not introduced evidence linking a bullet in Mr. King's car to the bullet fragments in the victim, there would have been reasonable doubt in my mind as to Mr. King's guilt," juror Michelle Lynn Adamson said in an affidavit supporting his appeal.

Other defendants have had mixed results:

  • In Maryland, the Court of Appeals last year reversed the murder conviction of Gemar Clemons and ordered a new trial, concluding that the FBI's bullet-lead conclusions "are not generally accepted within the scientific community and thus are not admissible."
  • In New Jersey, courts have reversed and reinstated convictions in cases involving bullet lead. The conviction of one defendant, Michael Behn, was reversed, but he recently was re-convicted on other evidence.
  • Shane Ragland's conviction in the 1994 killing of a University of Kentucky football player was reversed after Kathleen Lundy, an FBI bullet-lead examiner, pleaded guilty to giving false testimony in his case about bullet-lead manufacturing. A few weeks ago, Ragland pleaded guilty to a lesser charge and is now free.

Ernest Roger Peele, a retired FBI agent who testified about bullet matching in 130 cases, stands by his testimony but said that sometimes the nuances of science get "lost in the adversarial nature of the courtroom." He said he would no longer tell jurors that bullets can be linked to specific boxes because of the science academy's findings.

Peele, who said he was frustrated that he was never contacted by the academy, added that his bullet matches were meant to be "a part of a puzzle" and never the only forensic evidence. "Is it possible there are innocent people in jail? Yes. Is it possible that bullet lead was part of that process? Yes."

The Origins of the Science

The FBI's bullet-lead analysis was created more than four decades ago to link suspects to crimes in cases in which bullets had fragmented to the point where traditional firearms tracing -- based on gun-barrel groove markings -- would not work.

So FBI scientists used chemistry to try to find matches. Their assumption was that bullets made from the same batch of lead would have the same chemical composition. U.S. bullet-makers recycle lead from car batteries and melt it down in huge amounts, and it was believed that each batch would produce bullets sharing the same trace elements.

The FBI first used the technique after Kennedy's assassination, hoping to determine whether various bullet fragments came from the same gun. In July 1964, then-FBI Director J. Edgar Hoover wrote to the commission investigating the assassination that the bureau's findings were "not considered sufficient" to make any matches.

By the early 1980s, the bureau was the only practitioner of the science and routinely used it to help state and local police link crime-scene bullets to those in a gun or a box owned by a suspect. There are few federal murder statutes, but the FBI routinely helps local law enforcement by providing forensic expertise in homicide cases.

In the mid-1990s, Lundy used the science to help prove that Clinton White House lawyer Vincent W. Foster committed suicide, internal FBI documents show.

In the early days, bullet fragments were subjected to neutron beams that would allow scientists to measure the presence and amounts of at least three chemical elements: antimony, arsenic and copper. If two bullets had similar measurements of those three elements -- the FBI allowed for a small margin of error -- they were declared a match.

In 1996, the bureau switched to a new method called "inductively coupled plasma optical emission spectroscopy," in which scientists identified and measured seven trace elements in the bullets, adding the elements bismuth, cadmium, tin and silver. The goal was to increase the precision of the tests. But at the same time that it was measuring more elements, the FBI doubled the margin of error for declaring matches.

"Not enough suspects were being caught in the new net using seven elements, so they chose to use a bigger net," said Clifford Spiegelman, a statistician at Texas A&M University who reviewed the FBI's statistical methods for the science academy.

The bureau conducted a study in 1991 that called bullet-lead analysis a "useful forensic tool" that produced "accurate" and "reproducible" matches.

The study, however, raised two concerns.

First, it found that bullets packaged 15 months apart -- a span that assumed separate batches of lead -- had the exact composition, potentially undercutting the theory that each batch was unique.

Second, it found that bullets in a single box often had several different lead compositions. That finding, it cautioned, should have "significant impact on interpretation of results in forensic cases."

Peele, the retired bullet-lead examiner, was the primary author of that study. He said he still felt comfortable having told jurors in the past that bullets from the same box could be expected to match, as long as his remarks were carefully qualified.

In the Hunt case, he testified that his match of the crime-scene bullets to those in the suspects' box was "typical of everything we examined coming from the same box or the next closest possibility would be the same type, same manufacturer, packaged on or about the same day."

Peele said that he always tried to tell jurors that some bullets in the same box might not match. Still, he said it was reasonable for jurors to conclude that matching bullets could have come from the same box. "I don't think it's misleading as long as it's fully explained," he said.

Some of Peele's colleagues went further. FBI examiner John Riley told a Florida jury: "It is my opinion that all of those bullets came from the same box of ammunition." A New Jersey prosecutor suggested that the bullets matched by the FBI were as unique as a "snowflake or fingerprint."

Today, the FBI regards all such testimony as inaccurate. "The science does not and has never supported the testimony that one bullet can be identified as coming from a particular box of bullets," said Adams, the retired FBI lab director.

A Challenge From Within

The FBI's about-face was prompted by a challenge from within its ranks.

William Tobin, an FBI lab metallurgist for a quarter-century, won accolades working on cases such as the crash of TWA Flight 800, in which he helped prove that the plane was downed by an accidental fuel-tank explosion, not terrorism. Shortly before he retired, Tobin was approached by a woman who believed that the bullet-lead science used against her brother, a New Jersey murder defendant, was flawed. Still employed by the bureau, Tobin was not permitted to help.

But when he retired in 1998, he decided to look further. Bullet matching had always been done by the lab's chemists, and as a metallurgist, Tobin wondered about their assumptions. Soon he joined with Erik Randich, a metallurgist at Lawrence Livermore National Laboratory.

By 2001, the two had finished a study that challenged the key assumptions that the FBI had been making about bullet lead. They found that bullets made from the same batch did not always match, because subtle chemical changes occurred throughout the manufacturing process. Tobin bought bullets at several stores in Alaska and found that a large number of bullets with the same composition and manufacturing date were often sold in the same community, suggesting that it was wrong to assume that a bullet match could be narrowed to one suspect.

"It hadn't been based at all on science but, rather, had been based on subjective belief," Tobin said in an interview. "Courts, and even practitioners, had been seduced by the sophistication of the analytical instrumentation for over three decades."

Soon, Tobin began appearing as a witness for defendants challenging FBI bullet-lead matches. Courts began to take notice, too, and the FBI suddenly faced a barrage of questions about a science that had gone unchallenged for three decades.

Adams asked the National Academy of Sciences in 2002 to examine the FBI's work, temporarily halting new bullet-lead matches. Two years later, the academy's findings stunned the bureau.

The panel concluded that although the FBI had been taking accurate bullet-lead measurements in its lab, the statistical methods and its expert testimonies were flawed.

The science "does not . . . have the unique specificity of techniques such as DNA," and "available data does not support any statement that a crime bullet came from a particular box of ammunition," the panel concluded. All the FBI could say going forward was that bullets made from the same batch "are more likely" to match in chemical makeup than those made from different batches. Adams soon declared that such testimony was so general that it had no value to jurors, and he ended the technique.

The FBI Response

The FBI went on the offensive to portray its decision in the best light.

In a news release dated Sept. 1, 2005, the bureau declared that it "still firmly supports the scientific foundation of bullet lead analysis" but that it was ending the technique because of the questions about its "relative probative value," the "costs of maintaining the equipment" and the "resources necessary to do the examinations."

The bureau also sent form letters to the more than 300 police agencies it had assisted with the science and to the umbrella groups representing local prosecutors and local criminal defense lawyers so they could "take whatever steps they deem appropriate."

The letters cited the academy's report but did not call attention to the magnitude of the FBI's internal concerns.

For instance, the letters stated that the impact of the academy's findings "on previously issued examination reports remains unaddressed." In fact, the FBI had conducted its own review to determine how often bad statistics led to mistaken matches.

In March 2005, the chief of the FBI chemistry unit that oversaw the analysis wrote in an e-mail that he applied one of the new statistical methods recommended by the National Academy of Sciences to 436 cases dating to 1996 and found that at least seven would "have a different result today." Marc A. LeBeau estimated that at least 1.4 percent of prior matches would change.

If the FBI employed other statistical methods the number of non-matches would be "a lot more," LeBeau wrote. In fact, when the bureau tested one method recommended by the academy on a sample of 100 bullets, the results changed in the "large majority of the cases," he wrote.

Despite the concerns, the FBI provided affidavits in at least two cases seeking to help prosecutors sustain convictions that were based on bullet-lead matches.

In one such affidavit introduced in Maryland, the FBI cited the academy's report but did not mention it faulted the bureau's statistical methods.

That omission concerns the chairman of the academy panel.

The affidavit "does not discuss the statistical bullet-matching technique, which is key and probably the most significant scientific flaw found by the committee," said Kenneth MacFadden, a private chemistry expert.

MacFadden and Spiegelman said they also believed the affidavit was misleading, because it estimates that the maximum number of .22-caliber bullets in a batch of lead was 1.3 million. The academy said the number could be as high as 35 million.

In a May 12, 2005, e-mail, the deputy lab director told LeBeau, "I don't believe that we can testify about how many bullets may have come from the same melt and our estimate may be totally misleading."

FBI officials said Friday they will stop using the affidavit.

"They said the FBI agents who went after Al Capone were the untouchables, and I say the FBI experts who gave this bullet-lead testimony were the unbelievables," Spiegelman said. ____________________________________________________

"60 Minutes" correspondent Steve Kroft and producers Ira Rosen and Sumi Aggarwal, Washington Post research editor Alice Crites and staff researcher Madonna Lebling, and freelance researcher Jilly Badanes contributed to this report.

Tuesday, November 27, 2007

Vindicated by DNA, but a Lost Man on the Outside

November 25, 2007

By Fernanda Santos, The New York Times

As a boy, Jeffrey Mark Deskovic could swim the length of a pool underwater without coming up for air. On sultry days at the Elmira state prison, where he spent most of his 16 years behind bars for a rape and murder he did not commit, Mr. Deskovic would close his eyes under a row of outdoor showers and imagine himself swimming.

For months after his release in September 2006, he had been yearning for a chance to dive in, to test his endurance, to feel that familiar sensation of pushing his body through the water, to get to the other side.

On a late-winter afternoon before giving a speech on wrongful convictions, Mr. Deskovic giggled mischievously as he stood at the edge of a hotel pool in Latham, N.Y., an Albany suburb, then leapt in abruptly, hugging his knees to produce a huge splash. In shorts and T-shirt, he sucked in some air and dived under, holding his breath. And holding it. He made his way across the pool in hurried, sideways strokes, and emerged gasping but smiling.

“Yes! Yes! I did it,” Mr. Deskovic yelled, his fists clenched above his head like a victorious boxer. “I still have it in me.”

A grown man with a full bushy beard, celebrating the simple accomplishment of an innocent youth. A tiny yet transcendent moment, one among many such moments of recaptured pleasures and newfound problems since his exoneration and release from prison last autumn.

Having walked out of the Westchester County Courthouse vindicated yet petrified of the unpredictable tomorrows ahead, Mr. Deskovic found that his first year on the outside was more turbulent than triumphant. Still trying to recover what was stolen from him, he is, at 34, a free man who has yet to feel truly free.

At least 205 men and one woman nationwide have been exonerated through DNA evidence since 1989, including 53 who, like Mr. Deskovic, were convicted of murder. In gathering information on 137 of them over the past four months — one of the most extensive such efforts to date — The New York Times found that many faced the same challenges Mr. Deskovic has confronted, like making a living, reconnecting with relatives and seeking financial recompense for his lost years.

But given Mr. Deskovic’s age at conviction (he was 17, one of about two dozen of the 206 exonerated inmates imprisoned as teenagers) and length of incarceration (about 35 percent spent more than 15 years behind bars), he has faced particular challenges.

He could be the assertive adult who articulately lobbied at the State Capitol in April to require videotaping of police interrogations. He could also be the overgrown adolescent who stamped his feet and pouted at a Grand Central Terminal kiosk in August when asked if he wanted his smoothie with yogurt or apple juice.

Having spent nearly half his life locked up, accused of brutalizing a high school classmate he hardly knew, Mr. Deskovic was sent into the world last fall lacking some of life’s most fundamental skills and experiences.

He had never lived alone, owned a car, scanned the classifieds in search of work. He had never voted, balanced a checkbook or learned to knot a tie.

He missed the senior prom, the funeral of the grandmother who helped raise him, and his best friend’s wedding.

He said he had never made love.

For six months, Mr. Deskovic got by on $137 a month in disability checks and $150 in food stamps from the federal government, carrying cans of tuna in his backpack. Now earning money through speeches and newspaper columns about wrongful conviction, Mr. Deskovic paid rent for the first time in his life in August, for a cozy attic apartment in Tarrytown that the county subsidizes because of his depression and post-traumatic stress disorder.

In September, he filed a federal civil rights lawsuit against the police, the medical examiner, a prison guard and the governments of two counties, alleging that detectives falsified reports and coerced his confession, and that the prison guard groped and beat him. A separate lawsuit in the Court of Claims is planned seeking payment from the state for the wrongful incarceration.

Since January, he has been enrolled at Mercy College in Dobbs Ferry, and he expects to earn a bachelor’s degree in behavioral sciences in two months. Since June, he has studied daily for the Law School Admissions Test in hopes of soon going to law school.

At Mercy on a $22,000 scholarship, Mr. Deskovic has read Marx, Freud and Jung but has struggled to navigate the nuances of flirtation and friendship.

“These people are half my age,” he said one morning in a campus cafeteria filled with loud young men in baseball caps and baggy jeans. “They have their own social networks and I’m not part of it. They have direction. They’re going through the normal cycle of things.”

Mr. Deskovic’s life after exoneration has been punctuated by milestones like getting a driver’s license (and a $3,000 Pontiac Grand Am with a bumper sticker proclaiming, “Failure is not an option”), and new adventures, like playing table tennis at a Greenwich Village bar with people he had met online.

There have been confounding trips to the supermarket and painful reunions with his mother, hard-won victories over his fear of speaking in public and profound disillusionment over his own inability to accept his past.

And there was a bittersweet return to the courthouse in White Plains in May for the sentencing of the man found by DNA evidence to have committed the crime. There, the victim’s mother offered Mr. Deskovic an apology: “How I would like to turn back time and return to you what was cruelly taken away.”

Of course, she can’t. No one can.

“Sometimes,” Mr. Deskovic said one morning in his dorm room, “I feel that the only difference from here to prison is that I don’t have bars on my windows.” He was kneeling on his bed and staring at the neat lawn outside. “I’m free, but I’m trapped, and no matter how much I run, I’ll never make up for the lost time.”

Scarred Life, Severed Family

Carrying a box of religious and self-help books, a garbage bag full of legal documents and a few worn-out sweaters, Mr. Deskovic went from prison to Cobleskill, a speck of a town in central New York where his mother, Linda McGarr, settled after his conviction. He calls Cobleskill “the boondocks,” adding an expletive whenever he is angry at his mother, which is often.

While he was locked up, Ms. McGarr was Mr. Deskovic’s connection to the outside world (he has never known his father). He wrote letters and sent them to her to type. She, in turn, sent money for cans of oysters at the prison commissary. When he needed to badger a lawyer, she was his voice. But the relationship withered through the bars. Ms. McGarr, 60, said she tired of the lonely 150-mile drives to visit him. Mr. Deskovic said he resented her lack of urgency in tackling his legal appeals.

Two days after his release, Mr. Deskovic exploded: “How come you didn’t do more to help me?”

“I know you went through hell in there,” Ms. McGarr responded, “but I paid dearly, too.”

The next morning, Mr. Deskovic stuffed his possessions in plastic bags and boarded a train to Peekskill, the scene of the crime that scarred his life.

On Nov. 15, 1989, Angela Correa — a sophomore at Peekskill High, like Mr. Deskovic — slipped a “New Kids on the Block” tape into a portable cassette player and took her camera to a park near her home, snapping a picture of a dove perched on the roof as she left. Two days later, someone spotted her naked body in the woods.

The police retrieved hair and semen samples, which did not match Mr. Deskovic’s DNA; prosecutors argued that they were from earlier consensual sex. Mr. Deskovic, however, fit the description provided by a criminal profiler for the police, and raised investigators’ suspicions when he cried copiously at Ms. Correa’s funeral, though they were not close friends. (In a recent interview, Mr. Deskovic explained that he was always picked on in school and Angela was one of few students who were nice to him, once helping him with algebra.)

After repeated questioning over two months, Mr. Deskovic confessed during a seven-hour interrogation and polygraph test, telling the police he had hit Ms. Correa with a Gatorade bottle and grabbed her around the throat. In the lawsuit, Mr. Deskovic contends that detectives fed him these details, and promised that if he confessed he would not go to prison but would receive psychiatric treatment.

“I was tired, confused, scared, hungry — I wanted to get out of there,” he recalled recently. “I told the police what they wanted to hear, but I never got to go home. They lied to me.”

More than a quarter of all prisoners exonerated by DNA evidence had falsely confessed or made incriminating statements, according to the Innocence Project, the legal clinic that secured Mr. Deskovic’s release. Like many of those men, he had maintained his innocence since shortly after the confession, proclaiming at his sentencing hearing: “I didn’t do anything.”

“Maybe you’re innocent,” the judge conceded before sentencing him to 15 years to life. “But the jury has spoken.”

Back in Peekskill after his release, frosty raindrops pelting his skin, Mr. Deskovic ambled past the police station on Nelson Avenue where he was held after his arrest and up Brown Street toward Crossroads, the apartment complex where he grew up.

“I used to play kickball here, and when it snowed, I’d get a piece of cardboard and sled down this hill over there,” he said, staring at a slope between a tall brick building and a playground. “I used to have a life.”

“Let’s just say, for the sake of argument, that there are people on other planets and that all of a sudden you’re dropped there, with no idea how these people live their lives, how their society works,” he blurted. “I’m this alien. I’m the man pretending he knows what the hell is going on around him when, in fact, he’s clueless.”

Growing up, Mr. Deskovic and his younger half-brother, Christopher McGarr, spent hours shooting hoops at Depew Park, swimming in a local pool or watching wrestling on television, then mimicking the moves of Hulk Hogan and Mr. T on the living-room carpet.

“I didn’t have no father growing up, so I looked up to my brother,” explained Mr. McGarr, now 30. “But when he went to prison, a part of me died.”

On the school bus, other children called his brother a rapist, a killer. So he stopped taking the bus. Eventually, he stopped going to school. Soon he followed Mr. Deskovic into the criminal justice system, racking up more than 20 arrests and several stays in jail for drugs, theft, assault and trespassing.

By the time of Mr. Deskovic’s release, the brothers had not seen each other for 12 years. They waited another six months, until Mr. Deskovic was speaking at Siena College, near Albany, where Mr. McGarr lives.

“I don’t see him,” Mr. Deskovic said as he entered the lecture hall.

“He’s right there,” his mother replied, pointing to a man on a couch.

Mr. Deskovic hesitated, pursing his lips to stop them quivering, then trudged over to his brother, who spread his arms. They hugged a long time — Mr. Deskovic in a suit and striped tie, Mr. McGarr in loose clothes and gold chains — as their mother snapped pictures and an uncle rolled video.

“It’s been so long,” Mr. McGarr said, rubbing his fists against Mr. Deskovic’s back.

But the brothers saw each other only once more, for a tense evening of bowling and pizza in April. Mr. Deskovic’s meetings with his mother have devolved into sporadic phone calls that invariably end in screams and tears.

“Too much time has passed; we have no connection,” Mr. Deskovic said. “My relatives don’t know who I am.”

Seeking Friends

In his canvas book bag, Mr. Deskovic carries a copy of a newspaper article about his exoneration, in case anyone questions why a convicted killer is walking the streets. The newspaper picture of him and his lawyers also adorns Mr. Deskovic’s new Web site (jeffreydeskovicspeaks.org) and MySpace page, which until recently included a plea: “Is anyone up to showing a man who has been away for 16 years how to have a good time?”

In his loneliest moments, when he scans the few personal contacts on his cellphone and realizes he has no one with whom to share his angst, Mr. Deskovic misses the predictability of prison life, where decisions were made for him.

At Elmira, guards woke Mr. Deskovic at 5:30 a.m. and escorted him to the kitchen, where he helped prepare breakfast for 1,800 inmates. He stood outside his cell for each of four daily counts; after the last, at 10:30 p.m., what the guards call the “quiet bell” signaled bedtime.

“If I was looking for entertainment, I’d stand by the chess players in the yard until someone challenged me” for a match, Mr. Deskovic recalled. For kinship and protection, Mr. Deskovic — a former altar boy who converted to Islam during his first year in prison — sought out fellow Muslim inmates. “If it weren’t for my religion,” he said, “I would have taken my own life in prison, or I would have lost my mind.”

On the outside, life’s pace is his to establish. During the week, there are classes, college work, psychotherapy sessions, meetings with a social worker and with the lawyers handling his compensation suit, plus practicing table tennis. Most weekends, he sits alone in his apartment, scouring the Internet for phone numbers of colleges, churches and other institutions that might be interested in hiring him for a speech.

He also trawls the Web for companionship, joining a hodgepodge of groups: “Westchester/So CT Social and Active Group,” “Straight Edge NYC” and a table tennis club.

One June evening, Mr. Deskovic took the train to the Fat Cat, a cavernous basement bar in Greenwich Village, to meet the table tennis players. As a duo played Sinatra on piano and trumpet, Mr. Deskovic ordered a ginger beer and stood across the table from a 37-year-old stockbroker who runs the group.

Score: 13-10.

“I got the momentum, baby,” Mr. Deskovic said, bobbing side to side.

14-10. 15-10.

“I got the serve now!”

18-12.

“I’m going to win! I’m going to win!”

Speaking With Motivation

On a brisk March morning, Mr. Deskovic arrived at the Mercy College cafeteria ahead of the breakfast rush, wearing a suit and carrying three ties on a hanger. He approached a woman wiping counters and whispered in her ear. She grabbed the silver tie with white diamonds and knotted it around his neck.

“I’m an adult and I don’t know how to fix my ties,” Mr. Deskovic said.

He wolfed down a plate of pancakes, then called Darren Wilkins, a concert promoter he met in December and hired to manage his career as a speaker.

Weeks before, Mr. Wilkins took Mr. Deskovic shopping in Harlem, where he bought three four-button suits. For inspiration, they have listened to the Rev. Dr. Martin Luther King Jr.’s “I Have a Dream” speech. For technique, they have watched videos by the motivational speaker Tony Robbins.

Together, they drafted a lecture describing the mistakes that led to Mr. Deskovic’s wrongful conviction and outlining changes to prevent others from meeting the same fate.

That March day, before speaking to the League of Women Voters at an elegant home in Bronxville, he and Mr. Wilkins, a Christian, held hands, bowed their heads and prayed.

“Public speaking is a way for me to find some meaning to what happened to me,” explained Mr. Deskovic, who has not applied for traditional jobs since his release, but has traveled across New York and four other states for speeches, including one in Texas in September.

In Bronxville, Mr. Deskovic rested his hands on a plant stand in lieu of a lectern. His voice was flat and soft. He seemed to deliberately lock eyes with each of the 16 women sipping coffee.

“If anything I’ve said here today has moved you in any way, I’d like you to join me in a movement against wrongful convictions and to get the death penalty out of New York State,” he said. “Can you make a phone call? Can you join a demonstration?”

Between speeches, Mr. Deskovic counts on donations of food, clothes and cash from people who have heard his story in the news, as well as members of local mosques and the Westchester charity New Beginnings.

He rarely eats out, but for the occasional $4 kebab. Mostly, he survives on Cheerios, tuna, canned corn and shrimp-flavored noodle soup.

On July 27, Mr. Deskovic got the keys to a one-bedroom attic apartment, in a yellow house with green shutters in Tarrytown. The living room window overlooks the Hudson River, a view much like the one he had during a short stint at nearby Sing Sing.

He trimmed his beard that day, shedding perhaps the last visible reminder of the man prison had made him.

A month later, a dean at Mercy College, Shelley Alkin, who had helped arrange Mr. Deskovic’s scholarship after his release from prison, took him shopping at Pathmark to teach him about cleaning products, what types of food he ought to be eating and how much he should expect to pay.

“And I have a plan for when I go shopping on my own,” Mr. Deskovic said proudly. “I’m saving up the empty containers so I can bring them with me and buy the same things all over again.”

Monday, November 26, 2007

A Long Road Back After Exoneration, and Justice Is Slow to Make Amends

Read and hear more stories with the Times' Mulitimedia feature.

November 25, 2007

By Janet Roberts and Elizabeth Stanton, The New York Times

Christopher Ochoa graduated from law school five years out of prison and started his own practice in Madison, Wis. He has a girlfriend and is looking to buy a house.

Michael Anthony Williams, who entered prison as a 16-year-old boy and left more than two years ago as a 40-year-old man, has lived in a homeless shelter and had a series of jobs, none lasting more than six months.

Gene Bibbins worked a series of temporary factory jobs, got engaged, but fell into drug addiction. Four and a half years after walking out of the Louisiana State Penitentiary at Angola, he landed in jail in East Baton Rouge, accused of cocaine possession and battery.

The stories are not unusual for men who have spent many years in prison. What makes these three men different is that there are serious questions about whether they should have been in prison in the first place.

The men are among the more than 200 prisoners exonerated since 1989 by DNA evidence — almost all of whom had been incarcerated for murder or rape. Their varied experiences are typical of what The New York Times found in one of the most extensive looks to date at what happens to those exonerated inmates after they leave prison.

The Times worked from a list of DNA-exonerated prisoners kept by the Innocence Project — widely regarded as the most thorough record of DNA exonerations. The Times then gathered extensive information on 137 of those whose convictions had been overturned, interviewing 115.

The findings show that most of them have struggled to keep jobs, pay for health care, rebuild family ties and shed the psychological effects of years of questionable or wrongful imprisonment.

Typically, testing of blood or semen from the crime scene revealed DNA pointing to another perpetrator. The authorities in some of the cases have continued to insist they convicted the right men, and have even fought efforts by some of them to sue for money.

About one-third of them, like Mr. Ochoa, found ways to get a stable footing in the world. But about one-sixth of them, like Mr. Bibbins, found themselves back in prison or suffering from drug or alcohol addiction.

About half, like Mr. Williams, had experiences somewhere between those extremes, drifting from job to job and leaning on their family, lawyers or friends for housing and other support.

And in many cases the justice system has been slow to make amends.

The Times researched the compensation claims of all 206 people known by the Innocence Project to have been exonerated through DNA evidence as of August 2007. At least 79 — nearly 40 percent — got no money for their years in prison. Half of those have federal lawsuits or state claims pending. More than half of those who did receive compensation waited two years or longer after exoneration for the first payment.

Few of those who were interviewed received any government services after their release. Indeed, despite being imprisoned for an average of 12 years, they typically left prison with less help — prerelease counseling, job training, substance-abuse treatment, housing assistance and other services — than some states offer to paroled prisoners.

“It’s ridiculous,” said Vincent Moto, exonerated in 1996 of a rape conviction after serving almost nine years in Pennsylvania. “They have programs for drug dealers who get out of prison. They have programs for people who really do commit crimes. People get out and go in halfway houses and have all kinds of support. There are housing programs for them, job placement for them. But for the innocent, they have nothing.”

The Times’s findings are limited to those exonerated inmates the newspaper reached and do not represent the experiences of exonerated prisoners everywhere.

Most of the 137 exonerated inmates researched by The Times entered prison in their teens or 20s, and they stayed there while some of their peers on the outside settled on careers, married, started families, bought homes and began saving for retirement. They emerged many years behind, and it has been difficult to catch up.

To be sure, many in the group were already at a disadvantage when they entered prison. More than half had not finished high school. Only half could recall holding a job for more than a year. Some admitted to abusing drugs or alcohol or running with the wrong crowd.

But dozens of them had been leading lives of stability and accomplishment. More than 50 had held a job for more than two years in fields as varied as nursing, mail delivery, welding, fishing, sales and the military. Five had college degrees, and 20 others had completed some college or trade school.

Still, many of those were as unlucky as the most modestly educated when it came to finding work after their release. Most found that authorities were slow to wipe the convictions from their records, if they did so at all. Even newspaper articles about their exonerations seemed somehow to have had a negative effect in the public’s mind.

“Any time that anyone has been in prison, even if you are exonerated, there is still a stigma about you, and you are walking around with a scarlet letter,” said Ken Wyniemko, who spent more than nine years behind bars in Michigan after a rape conviction.

Before his conviction, he managed a bowling alley. After his release in 2003, he spent two fruitless years job hunting, and he estimates he applied for at least 100 jobs. Today, he lives off money he received in a legal settlement with Clinton Township in Macomb County, Mich.

Many of the jobs the newly released found proved short-lived, often lasting no more than a year. A few ex-prisoners like Kevin Green, who went from bingo caller to utility crew supervisor, changed jobs to advance their careers, but most drifted from job to job with little gain in status or salary.

Ryan Matthews, with a fiancĂ©e and 2-year-old to support, lost a series of jobs after he was exonerated from Louisiana’s death row. He lost a shipyard job after his employer saw a news report about his exoneration on television.

Short of suing, few received substantial compensation from the government.

Given the hodgepodge of state compensation laws, an exonerated prisoner’s chances of receiving any significant sum depend on the state where he was convicted and whether he can find a lawyer willing to litigate a difficult case. One man who served three years in California sued and won $7.9 million. Another, who had served 16 ½ years in Texas, filed a compensation claim and received $27,850.

President Bush and Congress moved in 2004 to improve the compensation the wrongly convicted received, adopting legislation that increased payments for people exonerated of federal crimes to $50,000 per year of imprisonment, and $100,000 per year in death penalty cases. The legislation included a clause encouraging states to follow suit, at least for wrongly convicted prisoners who had been on death row.

Lawyers and others involved with helping the exonerated have seized on that recommendation in pushing for improved compensation laws nationwide. But their efforts have gained little.

Only one state — Vermont — has adopted a compensation law since the bill passed. Twenty-one other states and the District of Columbia already had procedures for compensating the exonerated; half cap awards below $50,000 per year of incarceration.

Of the 124 prisoners exonerated through DNA and known to have received compensation, 55 got at least $50,000 for each year in prison. And most of them sued in federal court, claiming their civil rights had been violated by overzealous police officers, crime lab specialists or prosecutors. Lawyers say such cases are very difficult to win.

Twenty-five were convicted in states that provide no compensation and have collected nothing. Among them is Mr. Moto, who said he struggled this summer to raise his 10-year-old daughter on $623 a month in disability payments.

“You give no compensation to none of those guys who were wrongfully incarcerated and proved their innocence?” he said in an interview. “How can you say we believe in justice?”

Thursday, November 15, 2007

Exonerated Inmates Protest Death Penalty

November 2, 2007

By Cullen Browder, WRAL-TV

Seventeen former death row inmates from across the country gathered at the General Assembly Friday to focus on what they see as a major flaw with the death penalty – an innocent person could be executed.

All 17 had been condemned to die, only to be declared innocent years later. One of them, Harold Wilson, spent 17 years on death row in Pennsylvania for a triple murder he didn't commit.

"The district attorney's office was practicing a pattern and policy of using race discrimination," Wilson said. "Execute justice. Right now we have a broken system."

North Carolina lawmakers have balked for the past two years at the idea of issuing a moratorium on the death penalty. But the state has had a de facto moratorium since January because of court disputes over the role of physicians in executions and how to ensure that inmates don't suffer while undergoing lethal injection, which could violate the constitutional prohibition against cruel and unusual punishment.

The U.S. Supreme Court has taken a case this year that includes that question.

Gov. Mike Easley, who supports the death penalty, said the state needs to study the justice system while executions remain on hold.

Death penalty opponent Kurt Rosenburg agreed that more study is needed.

"How can we figure out what the right way to kill someone is when we can't even figure out whether we're killing the right person?" Rosenburg asked.

According to the Death Penalty Information Center, executions steadily dropped nationally from 59 in 2005 to 52 in 2006 to 41 this year.

State Rep. Pricey Harrison, D-Guilford, said flawed North Carolina cases like the overturned murder conviction of Alan Gell, the wrongful rape conviction of Darryl Hunt and the rush to judgment of three Duke University lacrosse players wrongly accused of rape merit a deliberate look at the entire justice system.

"Lethal injection is sort of a technicality on how the death penalty is administered. Whether we should be administering the death penalty at all is the bigger question," Harrison said.

Still, polls show a majority of North Carolina residents continue to support death sentences for convicted killers.

Wednesday, November 14, 2007

Court rejects appeal by convicted killer

October 27, 2007

By Richard Gazarik, Pittsburgh Tribune-Review

A federal appellate court Friday rejected the latest appeal of a twice-convicted killer who claims he was the victim of misconduct by two Fayette County prosecutors who now are judges.

The 3rd U.S. Circuit Court of Appeals on Friday affirmed two U.S. District Court decisions in 2006 and 2007 that prevented the release of David Munchinski, 55, formerly of Latrobe, who claimed he was convicted because former prosecutors Gerald Solomon and Ralph Warman tampered with evidence that could have exonerated him of the 1977 killings.

Solomon, who was district attorney at the time, and Warman, his assistant, are up for retention next month for 10-year terms on the county Common Pleas Court.

Munchinski had sued Solomon, Warman, former assistant District Attorney John Kopas III and former county detectives Humphrey Lukachik, George Fayock and Robert Mangiacarne about the way the evidence was handled during the investigation that led to Munchinski's 1982 arrest.

Munchinski, 55, was convicted of the rape and murders of James "Petey" Alford of Hempfield and Raymond Gierke, 28, in Gierke's Bear Rocks chalet in 1977. Munchinski was convicted again in 1986.

His attorney, Noah Geary of Washington, could not be reached for comment.

In 2004, visiting Northumberland Judge Barry Feudale overturned Munchinski's convictions, vacated his life sentences and ordered him released, ruling that Warman and Solomon had tampered with the statement of a key prosecution witness and had committed prosecutorial misconduct. They also failed to produce a tape recording of the statement given to police by witness Richard Bowen, which should have been turned over to Munchinski's defense attorneys.

Before Munchinski could be freed, the state Attorney General's Office appealed and the state Superior Court voided Feudale's ruling and blocked Munchinski's release. The court ruled that Munchinski's arguments should have been raised during his appeals in 1983, 1986 and 1992. The state Supreme Court upheld the Superior Court decision. In his ruling, Feudale said there were 12 pieces of evidence that should have been turned over to Munchinski's defense attorneys prior to the trial but were not received until 2001.

Munchinski filed a personal injury lawsuit in U.S. District Court in Pittsburgh in 2005 but a federal judge ruled in August 2006 that Munchinski was barred by a two-year time limit from pursuing his claims. Munchinski then appealed to the 3rd U.S. Circuit Court of Appeals, which heard arguments in September.

The Bear Rocks murders went unsolved for five years before Munchinski and the late Leon Scaglione were arrested in what prosecutors said was a drug rip-off. Bowen, who committed suicide, claimed to have driven the killers to Bear Rocks the night of the slayings but other evidence indicated Bowen was in Oklahoma that night.

Convicted murderer Munchinski loses federal appeal

October 26, 2007

By The Tribune-Review

A federal appeals court has denied an appeal by a convicted killer seeking to be released from prison because of alleged prosecutorial misconduct and malicious prosecution.

David Munchinski, 55, formerly of Latrobe, lost his bid for release Friday after the U.S. 3rd Circuit Court of Appeals affirmed two prior district court decisions.

In a 16-page ruling in August 2006, U.S. District Judge David S. Cercone wrote that Munchinski's allegations of false arrest, false imprisonment and abuse of process are "time barred" by a two-year window in Pennsylvania "for personal injury" claims.

Munchinski was convicted , along with the late Leon Scaglione of the double murders of James "Petey" Alford, 22, of Hempfield, Westmoreland County, and Raymond Gierke, 28, of Bear Rocks, Fayette County, who were raped and shot in Gierke's residence in 1977.

Munchinski and Scaglione were convicted of first-degree murder in 1986 and each were given two life sentences. Scaglione, formerly of New Alexandria, died in state prison in 1996.

Munchinski's attorney, Noah Geary, of Washington County, argued that former state police trooper Montgomery Goodwin claimed that Fayette County judges Gerald Solomon and Ralph Warman, who were prosecutors at the time, tampered with a police report and withheld evidence.

Munchinski filed his lawsuit in August 2005 on the strength of an October 2004 ruling by a visiting Common Pleas judge who vacated his convictions and life sentences. In a 120-page opinion, Judge Barry Feudale, of Northumberland County, accused the prosecutors, now both Fayette County judges, of misconduct for tampering with a police report and withholding evidence from Munchinski's defense attorneys.

Tuesday, November 13, 2007

Head of DNA lab in lacrosse case loses job

November 12, 2007

By Anne Blythe, The News & Observer

Brian Meehan, head of the private lab that did DNA testing for Durham District Attorney Mike Nifong in the Duke lacrosse case, is out of a job.

Reached at his home in Elon this afternoon, Meehan confirmed that he no longer worked for DNA Security in Burlington.

But he declined to elaborate further. “I’ll be able to say more in two days,” Meehan said.

In May 2006, two months after the off-campus Duke lacrosse team party that gave rise to an escort service dancer’s gang-rape accusations against three players, Meehan produced a 12-page lab report that excluded information about the presence of DNA of unidentified men found on the body and clothing of the accuser.

That omission of crucial evidence helped lead to the downfall of Nifong, the district attorney who lost his law license and career over his zeal to prosecute the players on allegations that proved to be untrue.

State Attorney General Roy Cooper exonerated the three players in April, nearly 13 months after the allegations arose.

During numerous hearings before that, Nifong failed to divulge the information about the presence of DNA not belonging to the lacrosse players.

It was not until last November that Brad Bannon, a defense lawyer for one of the accused players, discovered the details while poring over 1,844 pages of raw data from DNA Security.

At a court hearing in December, Meehan testified that he and Nifong had agreed to what he would include in the 12-page report in May. That report did not meet the standards and protocol of DNA Security, a company that Meehan helped found.

It was unclear today whether Meehan’s absence from DNA Security would have any bearing on a lawsuit filed by the three exonerated players againt the lab director, his lab, the city, Nifong and numerous police department employees.

The lawsuit, filed in U.S. District Court in Greensboro, charges that the defendants maliciously conspired to charge the three men with rape, even though they knew that charges were “a total fabrication by a mentally troubled, drug-prone exotic dancer whose claims, time and again, were contradicted by physical evidence, documentary evidence, other witnesses, and even the accuser herself.”

Friday, November 9, 2007

Edwards: Improving witness IDs in Georgia would curb wrongful convictions

November 8, 2007

By Michael Edwards, Savannah Morning News

"The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification."

These are not my words or those of Barry Scheck or any of the witnesses who have appeared before the Eyewitness Identification Study Committee conducting hearings in Atlanta. These are the words of the United States Supreme Court 40 years ago in U.S. v. Wade.

Since 1992, there have been 208 DNA exonerations and more than 75 percent of those cases involved mistaken identification as a cause of the wrongful conviction. There have been six Georgia exonerations since 2002, including two here in Chatham County, and every one of those six cases involved mistaken identification.

All told, innocent American citizens have spent centuries in jail for crimes for which they are actually innocent. Those are only the ones so far discovered. Posturing aside, these are startling facts that should give pause to even the most strident law-and-order proponent.

Framing the issue as one of "finding holes and slip-ups" is disingenuous. Consider that while many of the 208 (and how many more?) innocent people were spending years languishing in prison for crimes they did not commit, actual perpetrators were continuing to prey on the community, committing additional offenses, violating and even killing other innocent victims.

In two of the six Georgia exonerations, the same testing that freed an innocent man led to the arrest of the real criminal. In one of those cases, that of Robert Clark, the man who really committed the rape for which Mr. Clark spent 24 years in prison, went on to commit at least four other violent sex crimes.

Six more women were violently attacked by Bobby Poole, the North Carolina man who raped Jennifer Thompson Canino, the courageous woman who spoke to legislators in Atlanta recently. While Bobby Poole was free to victimize these women, Ronald Cotton sat in prison for 11 years - misidentified and completely innocent.

Consider that after spending nearly 18 years and nearly 25 years in prison for crimes they did not commit, Clarence Harrison and Robert Clark each received compensation from the State of Georgia in excess of $1 million dollars. Does it not make sense for Georgia to be proactive and put those kinds of dollars toward enhancing law enforcement procedures, reducing the dangers of wrongful convictions and avoiding future compensation for exonerated citizens?

Noting the dangers of mistaken identification, the Georgia Supreme Court recently stated that "the idea that a witness's certainty in his or her identification of a person as a perpetrator reflected the witness's accuracy has been flatly contradicted by well-respected and essentially unchallenged empirical studies."

Courts around the country, including here in Georgia, have been frank in acknowledging that law routinely lags behind science. This is clearly true with eyewitness identification.

More than three decades of scientific research has produced volumes of those studies discussed by the Georgia Supreme Court. In 1999, the U.S. Department of Justice issued a law enforcement guide recommending many of the procedures the Eyewitness Identification Study Committee is hearing about now.

The authors of that guide included the chief prosecution office in the country with participation by and recommendations from the National Sheriffs' Association, International Association of Chiefs of Police, National District Attorneys Association and many other law enforcement agencies.

No one believes that law enforcement seeks to intentionally create misidentification, but only the most Pollyanish can deny that common law enforcement practices can result in misidentification. Improving eyewitness identification procedures is no defense ploy; it is an effort to insure that law enforcement has access to the best and most current science, that justice is served and that Georgia law is followed.

The Georgia code says it best - the object of all legal investigation is the discovery of truth.

_____________________________________________________ Michael L. Edwards is the Circuit Public Defender for the Eastern Judicial Circuit and past president of the Georgia Association of Circuit Public Defenders. He is President-elect of the Savannah Bar Association.

Thursday, November 8, 2007

Accused of a Crime You Didn't Commit? Make a Movie

Amateur, Professional Filmmakers Spotlight Controversial Cases With Their Movies

November 7, 2007

By Russell Goldman, ABC News

Every week, hundreds of requests from inmates across the country pour into the New York offices of the Innocence Project, an organization devoted to finding DNA evidence that could exonerate prisoners accused of crimes they did not commit.

Amid those letters are another kind of request  from documentary filmmakers, looking to comb the nearly 10,000 active cases the project is evaluating, in the hopes of finding stories that capture the drama of innocent people sent to prison, and the steps taken to set them free.

"Hardly a week goes by that I don't get a request from a documentary filmmaker with some idea," said Eric Ferrero, the project's director of communications. "Of those, we cooperate with only about one in 25, or one in 50."

The reason for the volume of requests is obvious. Few fears are as universal as the fear of being wrongfully accused and imprisoned, and few stories are as compelling as those about the failures of a justice system in which we put an incredible amount of faith.

Errol Morris' 1988 film "The Thin Blue Line" not only resulted in an overturned conviction, but inspired a generation of directors to use their movies to spotlight cases where they believed justice had been denied.

Since the advent of video-sharing Web sites like YouTube, a new wave of amateur filmmakers has turned to the Internet to showcase the stories of inmates they believe have been wrongly accused, and to garner support for the overturn of those convictions.

"The Thin Blue Line" has been credited with overturning the conviction of Randall Dale Adams for the 1976 murder of a Dallas police officer, a crime for which Adams was sentenced to death.

Morris meticulously reviewed the evidence, re-enacted the murder and interviewed the five major witnesses. In the end, Morris coaxed a confession from David Harris, one of the prosecution's star witnesses, who admitted he, not Adams, was the murderer.

"One of the reasons the film, at least for me, is successful, is because it led to Adams' conviction being overturned," Morris told ABCNEWS.com. "As a result of the film, there was no longer a case against him. In essence, he was exonerated. & The guy who really committed murder confessed to me to the murder of Dallas police Officer Robert Wood."

"The thing that I'm most proud about is that there are pieces of the movie that were submitted as evidence during his appeal," Morris added. "Many other movies raise questions, but this produced the evidence that led to his exoneration."

Raising Questions

"Paradise Lost" was another film that raised questions, but never led to exoneration. The 1996 film follows the trials of three teenagers accused and convicted of murdering and mutilating three 8-year-old boys in West Memphis, Ark., in 1993.

Defendants Jason Baldwin and Jessie Misskelley were sentenced to life in prison, and the third, Damien Echols, is on death row.

Though no physical evidence linking the teenagers was found at the scene of the crime, defense attorneys last week submitted what they say is new DNA evidence connecting the murders to the stepfather of one of the boys.

Joe Berlinger - who, along with Bruce Sinofsky, directed "Paradise Lost" and its sequel - has no doubt that the West Memphis Three - as the teens became known - were wrongly accused. If not for the attention created by the film, and the questions it raised, Berlinger believes that Echols would have already been put to death.

"I think the film had a lot to do with finding new evidence," Berlinger said. "The films have been instrumental in finding flaws with the case. There is a huge, direct link with what has happened with the new evidence, and the making of these films. The money and support, needed to re-examine the case, came from interest and support for the movie."

The new evidence, however, is far from an exoneration, a fact that weighs heavily on the director.

"I firmly believe that these films have kept these guys alive because of all the attention," Berlinger said. "At this point, I don't think the state of Arkansas would have the courage to execute [him]."

"One of my biggest influences for being a filmmaker was 'The Thin Blue Line,'" said Berlinger. "That movie got a guy out of jail in a reasonable amount of time. I am still utterly dumbfounded that the first movie didn't create the same result."

Ofra Bikel, a producer for the PBS award-winning series "Frontline," has worked on documentaries that have led to the exoneration of 14 people.

"Innocence Lost," a "Frontline" documentary, follows the case of Bob Kelly, who, along with six other defendants, was accused of sexually abusing 29 children at a day-care center in Edenton, N.C. Eight years and three "Frontline" programs later, all of the charges against Kelly were dropped.

"We didn't have confidential informers, we weren't rifling through people's drawers in the dead of night. We just looked at the evidence," said Bikel. "All anyone had to do was look, and they would have realized something was wrong."

Part of the reasons these documentaries resonate with viewers, Bikel said, is because of the power of film.

"When you read there are 100,000 people dying of hunger, you have a very different reaction than when you see, with your own eyes, just two of those children dying."

The Internet

Making a film is costly, but increasingly, the families and advocates of the accused are turning to the Internet to garner support, by making small films, and posting them to sites like YouTube.

"We have seen a real increase in people turning to YouTube to get these stories out into the public," said Ferrero.

One year ago this month, Eric Volz, a 27-year-old Nashville, Tenn., native and magazine editor, was accused of murdering his ex-girlfriend inside the clothing store she owned in San Juan del Sur, Nicaragua.

Volz's family and lawyers insist he was not even in the same city, and argue that anti-American sentiment led to his conviction and 30-year sentence.

A short video posted to YouTube in March, which ends with Volz's parents finding out he has been convicted, has been viewed more than 156,000 times. That figure has buoyed the family's hopes that, as people learn about Volz, his chances of being released increase.

"We'd be lost at this point if we didn't have the Internet," said Volz's stepfather, Dane Anthony. "It would be incredibly difficult to garner support in the way we've been able to without the Internet."

Wednesday, November 7, 2007

Defender spotlights faulty forensics

Court officer says science observed is justice served

November 5, 2007

By Stephen Kiehl, The Baltimore Sun

Call it the CSI list: fingerprints, gunshot residue, ballistics, toxicology, bite patterns - the full rundown of forensic methods used by prosecutors to link defendants to crime scenes.

Public perception and generations of prosecutors suggest that all of those forensic methods produce rock-solid scientific evidence against criminal defendants. And one by one, Patrick Kent, chief of the forensics division at the state public defender's office, is trying to destroy those certainties.

Kent has enjoyed success by attacking the validity of gunshot residue and - just last month in a Baltimore County murder case - fingerprints. Predictably, prosecutors are no fans, insisting that the science he is trying to undermine has stood the test of time.

"We have always had to prove that science is reliable," said Sharon Holback, director of forensic science investigations for the Baltimore state's attorney's office. "Patrick Kent did not invent that rule of law."

Just as predictably, Kent is unruffled by those who dismiss him.

"Quite candidly, my job is not to be popular," he said in his Baltimore office last week. "My job is to ensure the integrity of the criminal justice system, and ultimately, if that litigation causes organizations or entities to be upset at me, then so be it."

Impassioned and tireless - he cannot remember his last vacation - he says he is on a mission to make sure that the forensic evidence used by prosecutors is, indeed, science and not merely speculation or opinion dressed up as science.

"Literally, every forensic science is going to be systemically litigated," said Kent, 41. He says he does not want to make it harder for prosecutors to lock up the bad guys. He wants to make it harder for them to lock up the good guys.

"The reality is and has been that people are wrongfully convicted and sent to jail," he said. "It's not a question of if that happens. The real question is how many people are in jail based on bad forensic science. And the answer, I'm certain, is a very high number."

Nationwide, only a handful of public defender's offices have a forensics division, but Kent seemed destined for such a job. A native of Syracuse, N.Y., he started as a pre-med major at St. Lawrence College in New York before switching to psychology, giving him a background in hard sciences and an appreciation for the rigors of research.

After college, Kent spent several years as a caseworker at a shelter for homeless and runaway youths in Syracuse, where he became well acquainted with the problems of mental health and abusive homes.

"Ultimately, what that experience left me with was what goes wrong with society is society," he said. "We like to blame the individual, but frankly, they're just the manifestation of a dysfunctional society."

While other caseworkers at the shelter worked a 9-to-5 shift, Kent drove a van around the city on nights and weekends to deliver counseling and other services directly to teens. The work was rewarding, but Kent realized that he wanted to effect change on a broader scale. He decided the law could be his vehicle for accomplishing that.

He got his law degree at the University of Baltimore and then joined the Maryland public defender's office, where he thought he could best help those who have been left behind by society.

It was in law school that he came to realize that the science he'd learned in college had no relation to the science on display in courtrooms.

"Having been exposed to the hard sciences, and then seeing forensic science, it's jarring," he said. "You can't help but say that this is nothing remotely like the science that we think of in the traditional sense."

Fueled by an unending tide of Diet Pepsi, Kent works out of a 12th-floor office in Baltimore, a block from the Clarence M. Mitchell Jr. Courthouse. He's so focused on his cases that, after four years as head of the forensics division, he hasn't found time yet to decorate or even hire a secretary. Six pots that line the windowsill are filled with dirt but no plants.

The only art on the walls are Magic Marker drawings by his 5-year-old son, Zachary, including one showing father and son each holding a magnifying glass. His wife, Karen Kent, is a clinical psychologist, a profession that does not lend itself as easily to representation by Magic Marker.

Zachary was a mad scientist for Halloween - his idea. The boy's love for science is a reflection of his father's obsession with it. But Kent's reverence is for honest science. He has little patience with practitioners who call their methods science when they are not.

He says methods such as fingerprint analysis, ballistics tests to match bullets to weapons and gunshot residue examination are accepted because they've been around for decades, not because they've been scientifically proven.

"The passage of time was the validator, not that there was an underlying scientific basis," Kent said. "They call themselves 'forensic science' for a reason. They want the power of science."

But, he added, they want that power without accepting the rigor that comes with science.

Prosecutors counter that defense attorneys are trying to have it both ways: They want to use forensic evidence when it clears their clients, but attack it when it links defendants to crimes. Baltimore State's Attorney Patricia C. Jessamy said more people have been released from prison because of forensic science, such as DNA tests, than those who have been convicted because of bad science - a number she puts at zero.

"They're using science to exonerate people," she said of public defenders. "How do you then say it's bad science, when you're relying on it to get people out of jail?"

Forensic science is on trial in every case, prosecutors say, as defense attorneys are free to cross-examine expert witnesses and present their own evidence. Methods that are deemed unreliable by the scientific community, prosecutors say - such as the use of lie detectors - are not introduced in court.

"We wouldn't present evidence if we thought it was unreliable," said Leo Ryan, deputy state's attorney for Baltimore County, where Kent challenged the validity of fingerprint evidence in the murder trial of 23-year-old Bryan Keith Rose.

A judge ruled that an analysis linking Rose's fingerprints to prints found on a stolen car was inadmissible because the error rate in fingerprint comparison is unknown. The ruling cannot be appealed and does not make precedent, but it raises questions about a long-established forensic science and could prompt challenges in other cases.

It wasn't the first time that Kent has caused this sort of trouble. Two years ago, in a case supervised by Kent, a Baltimore circuit judge found that the city police lab's practice of labeling "two-element" gunshot residue particles as unique fell short of accepted scientific standards. Since then, prosecutors have introduced only the more exacting "three-element" standard in court.

There is more to come, Kent promises. His office is preparing a case on tool mark identification - the markings that a gun leaves on a bullet when fired. When guns were made by hand, such markings were unique. But with mass-produced weapons, does each still have a unique marking?

"I think science can really inform, but it can also mislead," said Jeff Gilleran, a public defender in Kent's office. "What we're trying to do is open the doors of the crime lab and let some light in."

Kent says he is only in search of the truth. If prosecutors want to use forensic evidence in the courtroom, he says, then they must go back to their crime labs and tell them to validate their work. And until that happens, he'll continue to ask uncomfortable questions. He has yet to receive satisfactory answers.

"I used to have trouble sleeping before," he said. "I have more trouble now."

Tuesday, November 6, 2007

Schwarzenegger Vetoes Justice

November 05, 2007

By Radley Balko, Fox News.com

In 2004, the California state senate created the California Commission on the Fair Administration of Justice, a panel of current and former judges, prosecutors, defense attorneys, and police officials.

The legislators were concerned about the recent spate of DNA exonerations and death row releases, including at least six cases in California since 1989 in which someone had been sentenced to death then exonerated or acquitted in a new a trial.

A 2004 report in San Francisco magazine identified 200 cases over 15 years in which someone in California had been unjustly convicted, then freed—more than the number of exonerations in the next two states combined. The magazine estimated somewhere between 150 and 1,500 innocent people may still be sitting in the state's prisons. The state senate charged the commission with recommending reasonable reforms to guard against wrongful convictions.

In 2006, the commission issued its recommendations. Three modest, sensible reforms made their way to the state legislature, and were passed by both the state's house and senate earlier this year. The reforms were backed by politicians from both parties. They were backed by both prosecutors and police officials who served on the commission. The reforms would added some formidable defenses against wrongful convictions in California. Naturally, they were opposed by the state's police organizations. And so last month, Gov. Arnold Schwarzenegger vetoed all three.

The first recommendation would have required that prosecutors who use jailhouse "snitches" corroborate snitch testimony with other evidence. Jailhouse snitches are themselves convicted felons. They aren't trustworthy people. What's more, they have a greater incentive to lie, and to lie to get someone convicted, than perhaps anyone else a prosecutor could possibly put on the stand: They want to get out of prison.

A 2004 study by Northwestern University of 111 death row exonerations since the death penalty was reinstated in 1973 found that the testimony of a jailhouse snitch played a role in 51 of the wrongful convictions.

Jailhouse snitch testimony becomes particularly invidious when pared with mandatory minimum sentences. The only way someone facing a mandatory minimum sentence can get out early is to provide information that helps prosecutors win more convictions. It's an unfortunate structure of incentives that encourages dishonesty from informants, and encourages prosecutors to suborn it.

The California commission's recommendation wouldn't have barred the use of jailhouse informants, as some activists have recommended. It would only have required that prosecutors corroborate such testimony with other sources before using it at trial.

Gov. Schwarzenegger vetoed the bill, arguing that, "When that kind of testimony is necessary, current criminal procedures provide adequate safeguards against misuse."

In just six years of operation, the Northern California Innocence Project has helped exonerate 20 people in Northern California alone who were convicted in whole or in part based on testimony from jailhouse snitches.

The second reform would have required police to videotape interrogations in violent crime investigations. This too is a sensible, modest reform. Law enforcement advocates have opposed taping interrogations in the past by arguing that police officers sometimes use untoward or coercive tactics that while legal, might appear unseemly to jurors. (Suggesting that federal agents videotape interrogations was one reason the Justice Department says U.S. Attorney Paul Charlton was let go in the recent firings scandal).

If that's the case, then let prosecutors put on evidence explaining to jurors why such tactics are necessary, and why they won't lead to false confessions. Then let juries decide if such tactics are acceptable. A tamper-proof, thorough videotaping of all interrogations would not only discourage police misconduct while questioning witnesses, it would also cut down on false accusations of police misconduct.

Some may find it hard to believe, but overly coercive interrogation techniques can and have lead to false confessions over the years, particularly if the suspect is a juvenile or is mentally impaired—although even a normal adult can falsely confess if subjected to enough duress and abuse. In nearly a quarter of the DNA exonerations over the last 15 years, the wrongfully convicted suspect either incorrectly made incriminating statements to police, or out and out confessed to a crime he didn't commit.

Schwarzenegger vetoed this recommendation, too, with the cryptic explanation that video recordings would "deny law enforcement the flexibility necessary to interrogate suspects."

No. It would deny them the "flexibility" to extract confessions through improper coercion, at least without an impartial, documented record of the questioning; and it would allow a jury to properly weigh a confession against the environment in which it was given.

The commission's third recommendation was aimed at fixing the problem of false eyewitness testimony, which has contributed in part or in whole to more than three-quarters of known wrongful convictions. This recommendation should have been even less controversial than the other two. It would have established a task force to look into eyewitness testimony, and set up a series of voluntary guidelines for the state's police departments to follow to ensure that police lineups aren't overly suggestive.

One recommendation, for example, was that the police officers administering photo or in-person lineups be unaware of the actual identity of the suspect, to prevent them from giving an eyewitness subtle (or not-so-subtle) clues.

Schwarzenegger vetoed this one, too, arguing that even voluntary state guidelines would get in the way of police departments setting their own lineup policies based on their own "unique local conditions."

Gov. Schwarzenegger's stubborn refusal to adopt even these modest criminal justice reforms is perplexing, particularly given the spate of conscience-shocking exonerations and wrongful convictions in the news. There's really nothing we can say to someone who spent a decade in prison or was days from execution for a crime he didn't commit. "Sorry" isn't going to cut it. One would think that the least we could do is put in the proper safeguards to prevent it from happening again.

Former state Attorney General John Van de Kamp, who chaired the commission, told the San Francisco Chronicle that all three recommendations were "modest bills which were based on the best science and the best practices available."

He added, "once again the power of California's law enforcement agencies to block needed justice reform."

Our criminal justice system is in dire need of repair. The spate of DNA exonerations has at least opened many Americans' eyes to the very real possibility that we're sending innocent people to prison—and even to death row.

But the number of cases in which DNA was found at the scene of a crime was properly preserved, and where testing could establish guilt or innocence, is vanishingly small. DNA testing has exposed the flaws in our system, but those flaws don't exist only in cases where DNA was significant—they also exist in the overwhelming majority of cases where it isn't. That's why we need to apply the lessons we've learned from DNA exonerations to other cases.

And it's why Gov. Schwarzenegger's refusal to adopt even modest reforms is so regrettable.

Radley Balko is a senior editor with Reason magazine.

Monday, November 5, 2007

New policies are needed to halt unjust convictions

November 4, 2007

By Katherine Ramsland, for The Philadelphia Inquirer

When the U.S. Supreme Court mandated the Miranda warning in 1966, it did so to protect the public against coerced self-incrimination. But some law-enforcement agencies resisted. They said that articulating those rights hampered their ability to get confessions and released more criminals on technicalities. In other words, if an arresting officer forgot the warning or failed to notice that the subject was not competent enough to waive protected rights, the case could be tossed.

Now we are seeing a host of new policy changes on the horizon. These changes will help minimize false convictions. And again, we see resistance from the very people who should care most about justice for all. It is almost as if the law-enforcement establishment believes it is more important to convict and then let the system sort it out. But those who believe this have not fully grasped the harm some current procedures have perpetrated on the innocent. Law enforcement should welcome - not reject - changes designed to protect.

The main problem is that many innocent people have been convicted. The number we know of is very large, and - given the problems discovered with formerly accepted legal procedures and certain types of evidence - it stands to reason that many more innocents are serving time or possibly have been executed.

Proposed changes in courts around the country directly address this issue. They include: improved procedures for the identification of suspects, including expanded use of DNA technologies; improved efforts to corroborate information given by informants or "snitches"; and higher standards for crime labs. Some long-enshrined procedures are now being reviewed with a newly critical eye. For example, research in psychology for more than a century has proven repeatedly that eyewitness testimony (a leading factor in false convictions) is fallible. Finally, officials are listening.

And yet there is still resistance in many law-enforcement circles.

Here are some sobering statistics from the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University. Since 1989, this group has freed 208 men via postconviction DNA analysis on biological samples from their supposed crimes. Fifteen were on death row, facing execution for something they did not do. The average length of time served was 12 years, with many in prison for more than two decades. The total number of known years served by the innocent is a staggering 2,563. And these are just the statistics for the small percentage of cases in which biological evidence was involved (and testable), and for which the overburdened personnel at the Innocence Project had time. They currently have tens of thousands of letters in their files from inmates begging for help.

Here's just one example of how the system broke down. In Texas, Roy Criner received a prison term in 1990 of 99 years for the rape and killing of a teenage girl. Later, he submitted to DNA testing, and the results excluded him as the rapist. The Texas Court of Appeals, however, ruled this evidence would have made no difference to the conviction, so he remained in prison.

Then a local reporter found more evidence of Criner's innocence. A cigarette butt, previously discounted, was tested for DNA. The test result proved that the person who had smoked it had been the rapist-murderer - and that this person was not Criner. After serving 10 years for a crime he did not commit, he finally was set free.

"It breaks you down." Those are the words of one exonerated convict in the documentary movie After Innocence. It features cases such as that of Nick Yarris, who spent 22 years on Pennsylvania's death row for murder. Even after he was freed, he could not persuade the prosecutor to send the DNA profile that had exonerated him to a national database to assist in identifying the real killer.

It is almost as if law enforcement does not want to identify and exonerate the innocent. Eight states do not yet mandate giving inmates postconviction access to DNA analysis. Five states defeated bills intended to change policies on eyewitness identification. The California State Sheriff's Association opposes bills that require officials to record interrogations and corroborate informant information; the purported fear is that such procedures would create loopholes for defense attorneys to exploit. This organization also opposes new procedures for suspect lineups. Research has revealed that witnesses, when asked to pick from lineups, make comparisons among those lined up, which can alter their memory. Or they may simply choose the one who "looks" criminal. (The recent study by the Chicago police department that "proved" that current methods worked just fine was significantly flawed.)

Even if the system releases the innocent, it sometimes seems to wish to punish them somehow anyway. The conviction records of many exonerated individuals are not expunged, making it difficult for them to find employment and even a place to live. Their most productive work years are lost, and they can expect little or no assistance with integration back into the community. A few have received payouts from successful lawsuits, but most have nothing. Some say it was easier for them in prison.

It seems that some of our sworn protectors would rather protect themselves. Why else would they resist policy changes arising from verified harm? These system failures ought to disappoint law-enforcement personnel, as they did Gov. George Ryan in Illinois. Upon learning that 13 men on Illinois' death row had been exonerated, Ryan commuted the sentences of all death-row inmates because he recognized that changes were needed.

The English jurist William Blackstone famously said: "Better that 10 guilty persons escape than that one innocent suffer." Apparently that's literary fluff to some people. They should talk to exonerated convicts. Of course, we should expect collateral damage within any human institution, but if we have identified ways to reduce it, we should utilize them. It is shocking that officials entrusted with public safety would worry more about technical slip-ups that might free a guilty person than about errors that repeatedly have victimized the innocent.

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Katherine Ramsland teaches forensic psychology at DeSales University. She has published 30 books, including "The CSI Effect."