Wednesday, December 19, 2007

State is at a crossroads for improving criminal justice

December 19, 2007

By Stephen Saloom, Ruthland Harald

In the next few days, leading experts from across Vermont will release recommendations on how to improve the state's criminal justice system by preventing wrongful convictions.

The proposals developed by these experts have the potential to make the state's system of justice stronger and more accurate. If they take this opportunity to strengthen public safety and protect innocent people from wrongful convictions — instead of protecting the status quo — they will have fulfilled their mission as outlined by the state Legislature.

The experts' work stems from a groundbreaking package of reforms the state Legislature passed earlier this year. I testified in support of these bills, along with a Massachusetts man who was wrongfully convicted of three rapes and served 19 years in prison before DNA proved his innocence.

To prevent such miscarriages of justice — and to advance public safety by making sure true perpetrators of crimes are apprehended — the legislation created expert task forces to determine how to prevent eyewitness misidentification and false confessions, two of the leading causes of wrongful convictions. It also created a task force to determine how to best preserve biological evidence (which can later be subjected to DNA testing) and passed a new law providing convicted people with access to DNA testing when it could demonstrate their innocence.

Together, these bills begin to put Vermont in line with other states that are taking critical, concrete steps that are proven to address and prevent wrongful convictions. But the legislation was just the first step; the next critical phase for improving the state's criminal justice system will come with task force recommendations.

The stakes are high, as illustrated by the 209 post-conviction DNA exonerations nationwide. Each of these cases represents a personal tragedy but, as importantly, each provides an opportunity to understand what in the criminal investigation process causes police, prosecutors and juries to believe that an innocent person is guilty of a crime he did not commit. By reviewing these cases, the Innocence Project has learned what causes wrongful convictions. Eyewitness misidentification was a factor in 75 percent of those cases; false confessions or admissions contributed to 25 percent of them.

Many cities and states have already implemented simple reforms that are proven to decrease wrongful convictions, and the task forces developing recommendations for Vermont can learn from other states' experiences.

The Eyewitness Identification and Recording of Interrogations task force has reviewed information from jurisdictions nationwide that are already using eyewitness identification procedures that minimize incorrect identifications. They've learned about the 500 jurisdictions across the country that record interrogations to prevent false confessions or admissions. The task force has also seen volumes of strong scientific research showing that these reforms are effective. Perhaps most importantly, the task force members have learned that cities and states that have adopted these simple, straight-forward reforms are extremely pleased with how they are working.

Meanwhile, the Preservation of Evidence task force is learning how innocent people can be exonerated — and "cold" cases can be solved — through common-sense changes in procedures. Federal legislation championed by U.S. Sen. Patrick Leahy in recent years has led other states to preserve biological evidence and provide statutory access to post-conviction DNA testing. Under this federal legislation, Vermont will qualify for federal grant funds — if the task forces develop strong recommendations.

There is solid support for improving Vermont's criminal justice system. The legislation that passed earlier this year was spearheaded by the Senate and House Judiciary Committees, and Jane Woodruff of the Department of State's Attorneys and Sheriffs is leading both of the task forces looking closely at how to best address these issues.

Since the task forces were formed, five more innocent people have been exonerated through DNA evidence. The state Legislature and the task forces are positioned to prevent such injustice in Vermont. The opportunity to enhance the state's criminal justice system is in their hands. In the next few days, we'll find out what they choose to do with it.

Stephen Saloom is the policy director at the Innocence Project, a national litigation and public policy organization that uses DNA to exonerate wrongfully convicted people and pursues criminal justice reforms to prevent future injustice.

Monday, December 17, 2007

Innocent man's conviction shows flaws in lineups

December 13, 2007

By Bill Rankin, The Atlanta Journal-Constitution

When the elderly rape victim was asked whether her attacker was in a lineup of five men, she picked the man in the middle — John Jerome White.

Based almost entirely on that identification, White was convicted of the 1979 attack in Meriwether County and sent to prison. But 28 years later, DNA evidence proved what White had been saying all those years: He didn't do it.

The DNA evidence did match with someone else standing in that lineup in 1979. In a stunning coincidence, the man now charged with the assault stands to White's left in the fuzzy photo of that long-ago lineup. His name is James Edward Parham.

White, 48, would serve more than 12 years in prison for the crime now blamed on Parham; Parham, now 54, would rape another Meriwether County woman six years later.

Parham happened to be in the Oct. 4, 1979, lineup not because he was a suspect but because he and the three other men standing alongside White were in jail at the time for unrelated offenses.

The photograph of that lineup — with White, in the middle wearing ragged shorts and a white T-shirt, and Parham, on the far right wearing a striped shirt and a concerned expression — was released Thursday during a meeting of a legislative study committee considering new standards for eyewitness identification procedures in Georgia.

"It was just a fluke [Parham] was put in the same lineup with John White," said Aimee Maxwell, director of the Georgia Innocence Project, which secured White's exoneration. "This is a tragedy, on many levels."

White, the seventh man in Georgia cleared by DNA evidence, attended Thursday's legislative committee meeting and said he supports passage of new laws setting protocols for officers to follow when gathering eyewitness identification evidence.

During a break, standing in a hallway at the Capitol, White said he met Parham again while the two served time in Macon State Prison in Oglethorpe. "He's got a cross to bear," White said of Parham.

When he was told the rape victim identified him in October 1979, White was shocked, he said. "I felt like I was in trouble. I wondered how was I going to get out of this."

White, defended at the time by now-U.S. Rep. Sanford Bishop (D-Ga.), did not take the witness stand at his trial. When the jury found him guilty, White said, he told the judge he didn't do it. "Then, when they put me back in the holding cell, I just cried," he said. Rep. Stephanie Stuckey Benfield (D-Atlanta) told White she will support legislation to compensate him for the time he spent wrongly incarcerated.

Benefield released drafts of proposed legislation that says, beginning July 1, 2011, all photographic or physical lineups must be conducted by officers who have successfully completed eyewitness ID training. The legislation also says if a law enforcement agency does not have written protocols on eyewitness ID by Jan. 1, 2009, the agency can be denied state funding or state-administered federal funding.

Benefield said improved eyewitness ID procedures are necessary because there are only so many cases where DNA evidence can be used to identify the perpetrator.

The GBI supports improved eyewitness ID protocols, spokesman John Bankhead said Thursday. "Nobody in law enforcement wants to arrest the wrong person," he said.

DNA testing was unavailable at the time of the Aug. 11, 1979, sexual assault in Meriwether County.

The 74-year-old victim, who is now deceased, lay asleep on her couch when her attacker broke into her home around 4 a.m. She was raped and beaten so severely her face was left partly paralyzed. Before her attacker left, he handed her a pillow and said, "Hold this to your face until I get out."

The woman had prescription eyeglasses but she was not wearing them at the time, the Georgia Innocence Project's Maxwell said Thursday.

On Sept. 28, 1979, the woman was shown a number of photographs, including White's, and she said she was "almost positive" it was him. When she was presented the lineup of five men at the jail a week later, she said she was positive that White — not Parham standing just a few feet away — was the man who raped her.

The Georgia Innocence Project began investigating the case in 2004 after receiving a letter from White in prison. The project eventually learned that hairs linking White to the crime through microscopic analysis were still on file at the Meriwether County Clerk's Office.

In November, the hair was sent to the GBI Crime Lab. DNA testing determined the hair belonged to Parham, whose DNA was already in a state database, according to the GBI.

Thursday, December 13, 2007

Crime Labs Struggle with Flood of DNA Samples

December 12, 2007

by Ari Shapiro, NPR

Forensic DNA databanks have grown steadily in the last 20 years across the country. The first databases only included samples from convicted felons. Now some states and cities are taking DNA samples from arrestees and those convicted of misdemeanors. Although some studies have shown that larger databases correlate with greater numbers of DNA matches from crime scenes, there are also drawbacks to expanding a DNA database.

"What happens is you create an immediate backlog," says DNA consultant Chris Asplen.

Backlogs of DNA crime scene evidence are a significant concern across the country. The Los Angeles Times recently reported that the L.A. Police Department has nearly 7,000 untested DNA samples from sexual assault cases in cold storage. A state audit said the LAPD would need more than $9 million to clear the backlog.

During the time that samples remain untested in cold storage, offenders may commit crimes that could have been prevented.

Dr. Paul Ferrara, who created the first DNA database in 1989 as head of Virginia's Department of Forensic Science, remembers one rape case from the 1990s. It took the lab months to realize that the crime scene DNA matched someone whose profile was in the database. "In the meantime," Ferrara says, "this guy had raped and murdered a woman by the name of Gemma Saunders."

It is far easier and less expensive to run known offender samples than it is to run crime scene samples.

"You can run thousands of felon samples for every couple cases of crime scene evidence you run," Ferrara says.

With a major DNA database expansion, a forensics department with a limited budget suddenly has to balance an existing backlog of crime scene samples with tens of thousands of known offenders who have to be added to the database right away.

Civil libertarians also have concerns about expanding databases. Law-enforcement groups like to say that giving police a DNA sample is no different from giving police your fingerprint, but Tania Simoncelli of the ACLU says DNA is far more personal than a fingerprint. A DNA sample "contains a great deal of information. It could be about susceptibility to disease, as well as your family history," Simoncelli says. "This is private, personal information about you that goes far beyond just your identification."

Forensics labs could take one step that would make civil libertarians very happy. Right now, labs hold actual biological samples from known offenders. Privacy advocates want the labs to throw out the full DNA sample and retain just the 13 loci — the points that scientists use to match a known sample to a crime scene. That way, scientists couldn't search for illnesses or other private information.

Tony Rauckauckus, the district attorney for Orange County, Calif., considered discarding his county's biological DNA samples and decided against it.

"There's a possibility that it might have to be tested again," Rauckauckus says.

His county recently decided to require DNA samples from anyone who pleads guilty to a misdemeanor. So far, Rauckauckus hasn't received any complaints.

"I just think the more people we have in the database, the more likely it is that we're going to be able to catch people who commit more serious crimes," he says.

Wednesday, December 12, 2007

DNA Test Clears Man After 27 Years

December 11, 2007

By Dorie Turner, Associated Press

A man enjoyed freedom Tuesday after a DNA test proved he did not commit a 1979 rape. John Jerome White, 48, left Macon State Prison on Monday evening.

"I'm just thankful that this is behind me," White said at a news conference Tuesday morning with the Georgia Innocence Project, which had worked to free him.

"When I first started out, I wondered why this happened to me," he said, breaking into tears. "I just saw it as something that had to happen because I wasn't living a moral life."

The investigation led to the arrest Tuesday of James Edward Parham, 54, of Manchester, who was on the state's Sex Offender Registry for a 1985 rape conviction, Georgia Bureau of Investigation spokesman John Bankhead said. He was being held in the Meriwether County jail on charges of rape, aggravated assault, burglary and robbery.

A sheriff's office employee declined to say whether Parham had an attorney, and there was no immediate response from the public defender's office. There was no answer on a telephone listed at the address given for Parham in a GBI news release.

White is the seventh Georgia convict to be cleared by DNA evidence, said Aimee Maxwell, director of the Atlanta-based Georgia Innocence Project. In every case, the men were wrongly convicted on eyewitness accounts.

"This case does point out the fallibility of eyewitness identification," Maxwell said.

White was convicted in 1980 of breaking into a 74-year-old woman's home and raping and robbing her. The woman has since died.

He was sentenced to life in prison, then was paroled in 1990. White was sent back to prison for 2 1/2 years on a drug violation in 1993. A 1997 robbery charge led to a conviction, a seven-year sentence and a requirement that he return to serving his life sentence for the rape conviction.

At the urging of the Georgia Innocence Project, authorities tested DNA from hairs found at the scene of the 1979 rape, using tests that weren't available at the time.

District Attorney Peter Skandalakis of the Coweta Judicial District said authorities found that the DNA matched DNA on file in the Georgia Bureau of Investigation database, leading to an investigation of a new suspect. No arrests have been made yet, the GBI says.

Maxwell said her organization is working with state lawmakers and authorities to require all law enforcement agencies to develop and follow clearly written procedures for doing an eyewitness identification with a victim, Maxwell said. The organization says 82 percent of the 355 Georgia law enforcement agencies surveyed do not have any type of written eyewitness standards.

White was joined at the news conference by his wife, three sisters and his mother, Florence White.

"When they called to tell me that he was getting out, I didn't know whether to shout, cry or holler," said his mother, who lives in Meriwether County. "I'm so glad to have him back home one more time before I leave this world."

In North Carolina, meanwhile, charges were dropped Tuesday against a Charlotte man who spent seven years on death row in the killing of a jeweler.

Jonathan Hoffman had been convicted of killing 35-year-old Danny Cook at Cook's Marshville store in 1995, but he won a new trial in 2004.

Union County District Attorney John Snyder said he dismissed charges because two witnesses have died and the prosecution's star witness, Hoffman's cousin, eventually recanted his testimony.

"What you had at the first trial is just not there," Snyder said.

Defense attorney Joseph Cheshire said it wasn't clear when Hoffman would be released.

Hoffman was in disbelief when told about the dropped charges, Cheshire said.

"He just couldn't believe it," Cheshire said. "He was surprised something so dramatic in his life could happen in such a low-key way."

Associated Press writer Martha Waggoner in Raleigh, N.C., contributed to this report.

Monday, December 10, 2007

Harris County getting help in review of troubled crime lab

December 7, 2007

By Juan A. Lozano, Associated Press Writer

A legal group that specializes in overturning wrongful convictions is teaming up with Harris County in its efforts to review cases with questionable blood analysis work by the Houston Police Department's troubled crime lab.

The Innocence Project of Texas will help lawyers heading up a county review of 180 serology cases identified as having "major issues," officials said Friday.

The cases were identified in a final report earlier this year from a special investigator hired by the city of Houston to investigate the lab.

The Innocence Project of Texas chief counsel Jeff Blackburn said his organization usually finds itself at odds with government officials and prosecutors. His group is an offshoot of the Innocence Project, a New York-based legal clinic that has helped exonerate inmates across the country.

"This is a historic process that Harris County is getting involved in," Blackburn said.

The Houston crime lab's work has been under scrutiny since 2002, when the DNA section was shut down. Inaccuracies were later found in four other lab divisions that test firearms, body fluids and controlled substances. The DNA section has since been reopened.

Three inmates have been released from prison because of mistakes by the lab: two men wrongfully convicted of rape and another man convicted of kidnapping and rape whom prosecutors decided not to retry.

The cases being reviewed, some of which date to the 1980s, include several death row inmates and others convicted of violent crimes such as robbery and rape.

Retired state District Judge Mary Bacon, who is presiding over the probe, praised the Innocence Project's help with the review during a meeting Friday with defense attorneys and prosecutor Marie Munier, whose office had pledged its cooperation.

The Innocence Project of Texas will provide 40 to 50 law students in Houston, Dallas and Lubbock who can help attorneys review case files and sort through legal documents.

It'll be similar to what they have done in Dallas County, where the Innocence Project has teamed up with officials to review more than 400 cases in which inmates have requested DNA testing. Over the past five years, DNA tests have exonerated 14 inmates in Dallas County, Blackburn said.

In the first three months of the Dallas review, 57 cases have been evaluated. Of these, seven will have DNA testing, said Blackburn, an Amarillo-based attorney.

"We've learned that's a very efficient way of doing it," he said. "We can do the factory side of the work."

Bob Wicoff, one of the Houston defense lawyers assigned to lead the review, said the Innocence Project's help will be invaluable. It's impractical to either have attorneys assigned to each case and have them do all the work or to file legal challenges to each case without first doing research.

After Harris County judges announced plans in October to conduct the review, Wicoff held videoconference meetings with the 160 inmates, from the 180 cases, who are still in prison. All but four agreed to have their cases reopened.

Of the remaining 20 cases, half are inmates who have been executed and half have been freed from prison.

Wicoff said he will try to contact the freed inmates and see if they want to be included in the probe. But he doesn't have the resources or time to look into the cases of executed inmates.

Since the videoconferences, Wicoff has visited with 14 inmates. A second attorney, Christopher Downey, has been appointed to help Wicoff.

Friday, December 7, 2007

Bill Would Give Tax Break to Exonerated Prisoners

December 7, 2007

By Fernanda Santos, The New York Times

Seven months after his release from prison in 2001, after serving 15 years for a rape he did not commit, David Pope received $385,000 in compensation from the State of Texas and set out to rebuild his life: He rented an apartment, bought a car, helped his mother pay bills and traveled overseas for the first time.

The money did not last long, but being broke is not the only problem Mr. Pope, 46, has grappled with since his exoneration. He said the Internal Revenue Service has notified him that he owes $90,000 in federal taxes on the compensation he received for his wrongful conviction, but he has no idea how he is going to settle the debt.

“I didn’t know I had to pay taxes over it until the government started sending me letters,” said Mr. Pope, who has struggled to find a steady job.

Yesterday, a bill that would exempt exonerated prisoners from paying federal income taxes on compensation received for a wrongful conviction was introduced by Senator Charles E. Schumer of New York. The measure pushes the issue of taxation to the forefront of the debate over how to compensate the wrongly convicted properly for the years they spent behind bars.

“The criminal justice system is not perfect, so at the very least, we ought to do what we can to make amends to the people who were wrongly convicted — a very small number of people who pay a big, big price for those mistakes,” Mr. Schumer said. “The compensation they receive should not be taxed; that’s certainly like throwing salt on a very deep wound.”

The bill, called the Wrongful Convictions Tax Relief Act, would also exempt exonerated prisoners who do not have prior felony convictions from paying income taxes on up to $50,000 earned each year after their release from prison (or up to $75,000 if they file joint tax returns) and provide them with an income tax credit on payroll taxes paid over the same earnings.

More than 200 people nationwide have been exonerated by DNA evidence since 1989, and more than 400 have been cleared by other types of evidence.

To date, 22 states have passed legislation establishing parameters for financial compensation; three of them — California, Massachusetts and Vermont — have provisions exempting exonerated prisoners from paying state taxes on the money they receive.

But federal laws are unclear as to whether compensation for a wrongful conviction should be considered income and taxed, like punitive damages are, or if it should be treated as a personal-injury award, which is not subjected to taxes, an Internal Revenue Service spokesman said.

Some exonerated prisoners have successfully challenged the I.R.S. in court and were then cleared of paying taxes. Most, however, either pay or stay in delinquency, said Barry C. Scheck, a lawyer and co-founder of the Innocence Project, a legal clinic at Benjamin N. Cardozo School of Law in Manhattan.

The benefits proposed in the bill, co-sponsored by Senator Sam Brownback, Republican of Kansas, would stay in effect for the number of years an exonerated prisoner served time or for 15 years, whichever is less. The federal tax exemption over compensation awards would apply to people like Mr. Pope, who have already been released and have been told they owe taxes to the federal government.

Tuesday, December 4, 2007

Sloppy Police Lab Work in New York Leads to Retesting of Drug Samples

December 4, 2007

By Thomas J. Lueck, The New York Times

The New York Police Department has begun to test thousands of drug evidence samples, as a review by the state’s inspector general has found that sloppy work by analysts in the department’s crime laboratory could have skewed drug evidence used by prosecutors.

But since the mistakes in the laboratory, the nation’s busiest, were found to have been made in 2002, some of the evidence has been destroyed, making any new tests very difficult, according to the review, which was released yesterday. Legal experts said this could open the door to appeals by those who want to have their convictions overturned or their sentences shortened.

The slipshod drug testing — which may have involved “dry-labbing,” or failing to test all the bags when many were seized — has been acknowledged by the Police Department, which transferred or disciplined three technicians who failed internal tests of their accuracy in 2002. Since 2002, the lab has been revamped and restaffed.

The department has said that the errors did not rise to the level of a criminal offense. But in March, the office of the state inspector general, Kristine Hamann, began its own investigation, and has now come to a different conclusion.

“The integrity of evidence is a cornerstone of law enforcement,” Ms. Hamann said yesterday. “These lapses were a threat not only to the prosecution of drug crimes, but to the public’s trust in our criminal justice system.”

She recommended that the Queens district attorney, Richard A. Brown, consider criminal charges against the three former analysts, known as criminalists, and against W. Mark Dale, a former director of the criminal laboratory who retired in 2004. Attempts to reach Mr. Dale by phone last night were unsuccessful.

The drugs seized by the police are often the most important evidence in prosecutions, which can also involve witness testimony, often from undercover police officers who made drug purchases. The amount seized usually affects the severity of sentencing.

Since May, the report said, the Police Department has recalled for review evidence from 3,000 drug testing cases, including those performed by the three former criminalists and others who worked in the laboratory in 2002. Five analysts and a supervisor have been assigned to the review.

But by late September, the investigation hit a roadblock, after a property clerk determined that evidence for 709 of the 3,000 cases had been destroyed. So far, the report said, 413 cases have been reviewed, and “the laboratory states that no significant discrepancies have been discovered that would compromise the original findings.”

The inspector general’s report said that the 2002 drug testing errors were not brought to the attention of state officials until March 2007, and that the five intervening years had left a cold trail of evidence that had been destroyed or contaminated, making it difficult to determine how accurate the original testing had been.

It said officials of the crime laboratory also failed to inform the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors, an oversight group it had pledged to keep informed of any lapses in testing procedures.

Ms. Hamann said yesterday that the five-year lapse made it impossible to tell if others at the city laboratory, which employs 100 criminalists, had taken shortcuts in the sometimes tedious process of drug testing.

“If there had been a thorough investigation at the time, we might know,” she said. “The N.Y.P.D. is now valiantly trying to catch up, but I don’t think anyone can know” the extent to which erroneous drug test may have been used in prosecutions.

Peter Neufeld, a lawyer and co-founder of the Innocence Project, a legal group based in New York that uses DNA evidence to represent people it thinks have been wrongly convicted, said the inspector general’s findings “undermine God knows how many convictions” in drug cases. He said he expected many motions to dismiss or to amend the severity of sentences that are based on the amount or weight of the illegal substance tied to a defendant.

Both the police and Ms. Hamann said yesterday that major strides had been made by the crime laboratory since 2002, which was the first year of Police Commissioner Raymond W. Kelly’s current tenure as the head of the department. (He also was police commissioner for slightly more than 14 months under former Mayor David N. Dinkins.)

Paul J. Browne, a spokesman for the department, said the laboratory’s management had been revamped and a committee of police officials and civilian forensic scientists had been set up to review its procedures. An inspection in October by the Laboratory Accreditation Board found that the lab satisfied more than 98 percent of the board’s criteria, including quality assurance, staffing and evidence storage.

But the report said senior officials in charge of the laboratory had been far too slow to respond when evidence of inaccurate drug testing was found in 2002, and allowed the same criminalists who failed internal tests to remain on the job. One was suspended after she failed a second internal test, but was responsible for 23 drug cases after she failed the first time, the report said, and another worked on 11 tests between his first and second internal tests, both of which he failed. Both criminalists should have been removed after failing a single test, the report said.

“The lab cannot conclusively state that no incorrect reports were issued by the three employees,” the report said.

Mr. Browne said advanced technology was being used to analyze the old drug evidence, even where the evidence had been destroyed or contaminated. In some cases, he said, the laboratory is taking scrapings from envelopes in which the now-discarded powder had been sealed.

The department has also changed its methods to avoid similar problems in the future, Mr. Browne said.

Monday, December 3, 2007

Putting a Price on a Wrongful Conviction

December 2, 2007

By Fernanda Santos and Janet Roberts, The New York Times

William Gregory and David Pope were both convicted of rape. Mr. Gregory served seven years in a Kentucky prison and Mr. Pope was imprisoned by Texas for 15 years before being released because of new DNA evidence.

Mr. Gregory, 59, now lives at the edge of a golf course, in a five-bedroom house he bought with part of the $4.6 million he received in legal settlements. Mr. Pope, 46, received $385,000 from the State of Texas.

To the extent that they got money, they are among the lucky ones. Of the more than 200 people released from prison since 1989 on the basis of new DNA evidence, 38 percent have received nothing for the years they spent behind bars.

What are those lost years worth?

States have been wrestling with that question in recent years as the DNA revolution upended long-held notions about the reliability of evidence. And a new question has also emerged: Is money alone enough?

With more than 140 exonerated prisoners released since 2000, 22 states and the District of Columbia now compensate them using formulas ranging from lump sums to calculations of lost wages.

But the amounts vary widely. Wisconsin provides $5,000 a year up to a maximum of $25,000 total. California offers $100 a day. Tennessee provides up to $1 million total.

Twenty-eight states offer nothing — including states with multiple cases of discredited convictions — forcing former inmates to sue in state or federal court. There they have the difficult task of proving bad faith or intentional misconduct by authorities. But when they succeed, as Mr. Gregory did, the payouts can be substantial.

Joshua Marquis, the district attorney in Clatsop County, Ore., has argued that many exonerated prisoners may not be innocent, but have been released because there was not enough evidence to retry them after DNA tests raised questions about their convictions. But in instances where clearly innocent people have been convicted, he said, “they are owed a tremendous amount.”

Some states do not have compensation laws, a result of budget constraints, other priorities, and, in some cases, suspicions that some exonerated prisoners may actually be guilty. This has left many with the courts as their only source of redress.

“Once you open up those floodgates, where do you get all the money to pay for these falsely charged people?” asked state Rep. Thomas R. Caltagirone of Pennsylvania, co-chairman of that state’s House Judiciary Committee, where a compensation bill recently stalled. “How much money is it going to require? How much is a person worth?”

Nine people in Pennsylvania have been freed on the strength of DNA evidence after spending an average of 14 years in prison. But, said Representative Caltagirone, a Democrat, “there is no political will to push it forward.”

In Florida, where six people have been freed, lawmakers have battled for three years over a compensation plan that would exclude those with prior criminal histories.

“I believe the taxpayer would be horribly offended if their money were to be spent compensating an exonerated prisoner who has a history of serious crimes,” said State Representative Ellyn Bogdanoff, a Republican.

Stan V. Smith, a forensic economist and expert on compensation for loss of life, said that in some respects, the wrongly convicted may actually suffer a loss greater than death.

“It’s not just the years they lost and the mental anguish of being incarcerated wrongfully.” Mr. Smith said. “Your earnings are going to be impaired forever, your social interactions are going to be impaired forever. It’s like being thrown into a time warp.”

As the extent of those impairments has become clearer, exonerated prisoners and their advocates now argue that more than compensation is required.

“One of the biggest challenges is that once an innocent person comes out of prison, they are not equipped with the tools to reintegrate into society, and that’s something that money alone can’t solve,” said Representative Donald M. Payne, a New Jersey Democrat who introduced a bill to set aside $1.25 million a year for programs for exonerated prisoners.

Of the states with compensation laws, only three — Massachusetts, Louisiana and Vermont — provide for the costs of medical and psychological care.

Most of the exonerated who get money waited two to three years, forcing them to rely on family, friends, lawyers and even strangers for shelter, clothing, food and emotional support immediately after their release.

Some of those needs persist even for those who have been paid. Despite the millions he received, Mr. Gregory says he still suffers from bouts of paranoia and sometimes breaks down. Mr. Pope’s $385,000 is long gone, spent on rent, clothes and a new car. Last summer, he was unemployed and living with his mother.

In an extensive look this summer and fall at what had happened to 137 exonerated prisoners after their release, The New York Times found about half of them struggling — drifting from job to job, dependent on others for housing or battling deep emotional scars. More than two dozen ended up back in prison or addicted to drugs or alcohol.

“Some people feel, ‘All right, it’s over now. You’re out, you’re free, so what are you complaining about? What’s the problem?’ ” said Darryl Hunt, exonerated in North Carolina after serving 18 years for murder.

“The problem is that we’re free physically,” he said. “But mentally, we’re still living the nightmare every day.”

Mr. Hunt, 42, used some of the $2 million he received to start a program that has offered such services as education, counseling, job training and housing assistance to about 400 ex-convicts, including some exonerated prisoners.

Several similar initiatives have sprouted nationwide, but all have struggled to secure funding; also, they often fail to tap into existing services. California is weighing a plan that would do just that by providing services already made available to paroled prisoners, including educational aid, vocational training and counseling, among others.

In New York, a bill has been drafted that would allow the wrongly convicted to receive services from agencies that already serve other needy populations, such as families on welfare.

“We’re really still learning how to best make these people whole,” said Stephen Saloom, policy director at the Innocence Project, which has helped to exonerate many prisoners. “And the reason it has taken us so long is that we’re really just starting to accept the imperfections of our judicial system and admit that mistakes do happen.”

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 ( 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!”


“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.