Tuesday, December 16, 2008

Should the DNA of those suspected of a criminal offense be taken and retained?

Tues, December 16, 2008

Irish Times-Dublin, Ireland

HEAD TO HEAD DEBATE:Fine Gael justice spokesman Charles Flanagan says Yes, Tanya Ward of the Irish Council for Civil Liberties says No.


We need a DNA database to serve as a potent aspect of crime prevention , says CHARLES FLANAGAN.

IT WAS Edmond Locard, the Sherlock Holmes of France, who laid down the law that "every contact leaves a trace". He prophetically articulated this ostensibly simple principle long before DNA tracing was possible. He was, nonetheless, quite right.

Every contact leaves a trace, and it is a trace that can be immeasurably important in the vindication of the rights of victims. In this country in the past few years, we have seen people convicted of rapes and murders committed decades ago due to DNA links. Justice delayed, but justice nevertheless.

We need a DNA database that serves, not just to speedily and cost-effectively create links between crimes and criminals, but to serve as a potent aspect of crime prevention. Recent statistics in England and Wales show half of all police detections involved DNA evidence. What Ireland needs is a criminal DNA database that deters as well as detects.

To that end, practical and proven measures must be taken. It is a responsibility, not a choice. Fine Gael is in favour of the introduction of a criminal DNA database as a practical and proven measure to address crime. DNA material is already used on a case-by-case basis, usually successfully, to prove a suspect's innocence or guilt.

The victim should remain at the centre of all investigations and it is negligence not to avail fully of a facility that provides evidence that can drastically increase the likelihood of a conviction. Fine Gael would go further and seek DNA samples from suspects in certain serious crime investigations that could be retained for a period, possibly until a particular crime is solved. Indeed, inferences could be drawn from a refusal to provide such a sample as is the case in the right to silence. The ultimate objective must be to establish a criminal DNA database that is as comprehensive as a fingerprint database, allowing instant cross-referencing when a crime is committed in which DNA traces are identified.

The need for a comprehensive criminal database is reinforced by the fact that, in most European states, police forces have access to a database recording the DNA profile or genetic fingerprint of convicted sex offenders. No similar database exists in this State to assist the Garda in a serious investigation.

The European Court of Human Rights recently ruled that keeping the DNA records of innocent citizens on a criminal register would breach the human rights convention. Although not strictly bound by the rulings of the court, the Government must carefully consider this judgment in advance of drafting legislation on a DNA database and ensure that any proposals are compliant with our Constitution and EU law.

Notwithstanding this recent ruling, there is a growing consensus that there are many benefits to be gained from DNA records.

The Irish Council for Civil Liberties has acknowledged the benefits of DNA technology in crime investigation. It is also essential that the collation of a DNA database would have to be rigorously policed to retain its credibility.

Imagine this: a rape or murder is committed. The Garda establishes a link between DNA left on the body and the genetic fingerprint of a key suspect. The case goes to court, but due to a technicality, does not result in a conviction. The European court says that keeping DNA material in such circumstances would carry "the risk of stigmatisation". How? The public cannot wander into a forensic science laboratory and make negative judgments against the owners of a sample. The consequence of such woolly thinking is that the presumption of innocence that demands the expunging of DNA from the records may grievously interfere with the possibility of its owner being convicted of a future offence. Another consequence is that the knowledge of their own impunity may empower them to commit such a crime.

Of course every citizen is innocent until proven guilty. Every citizen must live their life free of the assumption that they may commit a crime at some future point. But a balance must be struck between the rights of victims and the rights of suspects, and Fine Gael believes that, in recent years, this balance has tilted too far towards the rights of suspects.

Most civilised nations take measures to monitor convicted sex offenders following their release. Why? Because statistics prove the likelihood that a person who has, say, sexually abused a child is likely to do it again. If we apply the civil libertarian argument, we would not electronically tag or require such offenders to report to Garda stations once they'd served their sentence because we cannot presume their intention to commit a crime in the future.

It is essential we use all technological advances when attempting to solve crimes and that we legislate to make video evidence admissible in court as well as the use of overt and covert surveillance where appropriate. DNA databases are an advance we must capitalise on. • Charles Flanagan TD is Fine Gael spokesman on justice.


Sweeping up the innocent with the guilty does not fight crime, says Tanya Ward.

THE INDEFINITE retention of DNA profiles of people suspected but not convicted of offences is unnecessary and interferes with the right to respect for privacy. Last year, the Government published legislative proposals to establish a DNA database to aid criminal investigations. The Government proposed to retain biological samples from convicted criminals together with DNA from persons arrested but not convicted of a crime. This was apparently inspired by the system in England and Wales, where DNA samples are retained from anyone arrested for a recordable offence. In a new development, the European Court of Human Rights ruled this month that the English and Welsh system was in breach of the right to privacy.

DNA profiling was first developed in the 1980s and scientists soon pioneered techniques enabling them to generate a profile based on unique parts of a person's DNA molecule. DNA profiling is used in criminal investigations to establish the presence of a suspect at a crime scene.

Investigators will usually seek DNA samples from a suspect's bodily fluids or hair and compare them with "stains" from the scene.

DNA has been used to solve some "cold cases", most notably that of Phyllis Murphy, a Kildare woman who was raped and murdered in 1979. John Crerar was convicted of this crime after volunteering for a mass DNA screening of potential suspects in 2001. DNA has also been used to resolve miscarriages of justice. The US-based Innocence Project has relied upon DNA to exonerate over 200 people who have been wrongly accused by proving they were never at the crime scene.

Despite these positive outcomes, there are limits to DNA technology. DNA can rarely be used by itself to convict without other evidence and profiles cannot be developed if a sample is incomplete. Identification can also be difficult if a scene has been contaminated.

The English and Welsh DNA database holds profiles from almost 6 per cent of the jurisdiction's population. Campaigners are critical of this system as DNA is only relevant to a small number of violent crimes and yet the database holds profiles from 850,000 innocent people, including 200,000 children.

Another concern relates to how DNA information could be exploited. Scientists are discovering genes identifying a predisposition to cancer, Alzheimer's and inherited diseases. Imagine how banks and insurers could use this information when deciding to issue mortgages and life insurance.

The English and Welsh laws on DNA retention have been scrutinised by the European Court of Human Rights in the S and Marper judgment. This challenge was taken by "S" who was 12 when he was charged with attempted robbery in 2001, but later cleared.

Michael Marper, also a party to the case, was charged with harassing his partner in 2001 but the case was later dropped when they reconciled. Both men subsequently asked for their fingerprints and DNA profiles to be destroyed, but south Yorkshire police refused and stated the samples would be retained "to aid criminal investigation". The applicants complained to the courts that their right to respect for privacy under Article 8 of the European Convention on Human Rights was breached. They appealed a negative decision from the House of Lords to Strasbourg.

The European court rejects the claim that sweeping up the innocent with the guilty is necessary to fight crime. Distinguishing between the retention of fingerprints and DNA, it notes DNA contains much more sensitive information.

The court contrasted England and Wales to other European countries, including Ireland, where taking DNA information in criminal cases is limited to special circumstances or more serious crimes. The court was also struck by the "blanket and indiscriminate nature" of the power of retention in England and Wales and compared it with Scotland, where samples are retained for three years only in relation to violent or sexual offences.

The UK government argued for the retention of the current system by providing statistics demonstrating matches from profiles of innocent people to specific crimes scenes. While the court accepted the evidence, it questioned whether these matches could have been made through other means or led to higher conviction rates. Nothing is more personal or private than a person's genetic make-up and the court was unconvinced that retaining innocent people's DNA indefinitely was justifiable, or could be regarded as necessary in a democratic society.

The ECHR Act 2003 requires the Government to carry out its functions in a manner compatible with the convention. This means the Government will have to rethink its proposals on indefinite retention of the DNA of innocent people. As the court made clear, innocent people are entitled to be treated differently from convicted people.

• Tanya Ward is deputy director of the Irish Council for Civil Liberties and a PhD candidate at the school of social justice, University College Dublin.

Wednesday, December 10, 2008

NY settles with wrongly imprisoned man for $2.6M

December 10, 2008

The Associated Press- Auburn, NY

An upstate New York man who was wrongly imprisoned for a 1991 murder has been awarded $2.6 million in a settlement with the state.

The settlement was announced Tuesday ahead of a trial to determine the amount due to 47-year-old Roy Brown of Auburn.

Brown was sentenced to 25 years to life after he was convicted in 1992 of second-degree murder in Sabina Kulakowski's death.

Brown served 15 years before the conviction was overturned in January 2007 after DNA evidence linked another man to the crime.

Brown says some of the money will help cover medical bills from a liver transplant he had last year.

He also says he will use some of the funds to help others who have been wrongly imprisoned.

Monday, December 8, 2008

Troy Davis Seeks New Day In Court

December 8, 2008

WGCL TV-Atlanta, GA

Troy Davis has already been spared from execution three times, and this week his lawyers hope to push his extraordinary case one more step toward his exoneration when they ask a federal panel to let them file another appeal of his death sentence.

As they have argued before, Davis' lawyers will tell the three-judge panel of the 11th Circuit Court of Appeals on Tuesday that their client was the victim of mistaken identity, and note that seven of nine key witnesses that testified against him in the 1991 trial have recanted their statements.

But the hearing likely won't focus entirely on whether Davis was rightly convicted of the 1989 murder of Savannah Police Officer Mark MacPhail. Instead it could turn on whether federal law allows the 40-year-old's attorneys to call for a new trial at all.

Davis' lawyers have struggled to convince a judge at any level to grant him another hearing on claims that he is innocent, partly because much of the evidence they say could lead to his exoneration was revealed after Davis was convicted. The hearing offers them a ripe opportunity to argue that federal laws allow them to pursue such a challenge at this late stage in the process.

In their briefs, Davis' attorneys argue that it is "constitutionally intolerable" to execute Davis without first hearing his innocence claims. They say they could only press the claim that Davis is innocent after they had attempted a range of other appeals.

"It's one of the arguments that can really only be brought after you've exhausted other state avenues of relief," said Jason Ewart, a Davis attorney. "For this claim to be cognizable, you have to show a convincing case of innocence. But one of the issues is whether or not we can bring this case. It's rather nebulous."

Attorneys representing the state say this type of appeal, called a stand-alone innocence claim, could have been made long before Davis' team filed a motion for a new trial in Savannah's Chatham County last year. And they say the courts reviewing the case have already ruled that Davis won't meet high legal standards for a new trial. The hearing will be the latest flashpoint in a case that has attracted widespread attention, sparked dozens of international protests and won Davis the support of former President Jimmy Carter and leading law-and-order advocates who say Davis deserves another day in court.

"Davis is not asking the court to set him free," former FBI Director William S. Sessions wrote in a recent column. "He is asking for the court's permission to give his innocence claims the full hearing they deserve. Our justice system should punish the guilty, free the innocent and have the wisdom to know the difference."

MacPhail was working off-duty as a security guard at a bus station when he rushed to help a homeless man who had been pistol-whipped at a nearby parking lot. The 27-year-old was shot twice when he approached Davis and two other men.

Witnesses identified Davis as the shooter in the 1991 trial, and prosecutors said he wore a "smirk" as he fired the gun. But Davis' lawyers have since argued that new evidence should exonerate their client. And they say three others who did not testify have said another man who testified against Davis at his trial confessed to the killing.

Prosecutors have long argued the case is closed. Savannah District Attorney Spencer Lawton also said he doubts the new testimony meets the legal standards for a new trial, and said the witness recantations invites "a suggestion of manipulation, making it very difficult to believe."

Davis execution was scheduled for July 2007, but it was postponed by Georgia's pardons board less than 24 hours before it was to be carried out. A divided Georgia Supreme Court twice rejected Davis' request for a new trial, and the pardons board turned down another bid for clemency after considering the case again.

As corrections officers prepared for Davis' scheduled Sept. 23 execution, the Supreme Court issued a stay to consider whether to grant him another hearing. A few weeks later, though, the court cleared the way for the execution when it decided against hearing the case.

With legal options dwindling just three days before a third scheduled execution date, Davis' attorneys convinced the 11th Circuit Court of Appeals in Atlanta to stay the execution again. Tuesday's hearing gives them one more chance to press their appeal.

As the case approaches the latest legal hurdle, the Davis and MacPhail families are in limbo.

Davis, who is being held in state prison, longs for another chance to prove he's innocent, said his sister Martina Correia.

"He's gone through a lot in the last year. Having three execution dates in a year is more than most people could bear," she said. "But he's staying faithful, and he's praying that the courts could give him some relief, that they will allow a jury to hear the evidence."

For the MacPhails, the hearing is another painful delay for a family seeking closure for 17 years.

"I don't even know what to expect any more. Every time we think, 'This is it,' something else comes up. I don't know what to expect anymore," said Anneliese MacPhail, the slain officer's 75-year-old mother. "My faith is going down rapidly. This should be over by now."

Friday, December 5, 2008

Wrongful conviction in killing? Review is on

December 5, 2008

St. Louis Post-Dispatch-St. Louis, MO

A man imprisoned since 1994 for the murder of a southeast Missouri college student testified Wednesday he never saw the woman until he was given a copy of her obituary while he was in jail.

Joshua C. Kezer, 33, has maintained his innocence and contends that he was wrongly convicted. He is serving a 60-year prison sentence for second-degree murder and armed criminal action for the 1992 slaying of college student Angela Mischelle Lawless in Benton.

Cole County Judge Richard Callahan is considering whether there was enough evidence to justify Kezer's 1994 conviction in southeastern Missouri. He can order a new trial for Kezer, order him released or keep him prison.

Kezer, who broke down on the witness stand Wednesday when asked about the guilty verdict, said "it felt like the air got sucked out of the room" when the jury announced its decision.

"I didn't know what I had done that would make them want to do this to me," he said.

The case was one of several high-profile prosecutions led by Kenny Hulshof when he worked for the attorney general's office. Hulshof went on to serve six terms in the U.S. House and was the Republican nominee for governor this year, losing to Democratic Attorney General Jay Nixon.

No physical evidence tied Kezer to the crime.

Key prosecution evidence included the trial testimony of Mark Abbott, who claimed he saw Kezer near the Interstate 55 off-ramp where Lawless' body was found. However, in an interview with Scott City police 10 days after Lawless' death, Abbott had identified a different man as being near the crime scene.

Kezer's appellate attorneys say his original defense lawyer was not told about the police report. They also contend that Abbott — a federal inmate for the past decade in Wisconsin on drug convictions — has changed his account at least five times.

Kezer also was implicated by three Cape Girardeau County jail inmates, some of whom received deals for leniency on their own charges. One of those witnesses recanted and testified for the defense at Kezer's trial, while another told Kezer he made up his account, yet still testified for the prosecution.

On Wednesday, several witnesses called by Kezer's attorneys testified that Abbott and others told them that the wrong man was in prison.

The hearing will resume next week.

Wednesday, December 3, 2008

New York Innocence Project Gains Another Exoneration

November 25, 2008

The Innocence Project-New York, NY

Innocence Project client Steven Barnes was released from prison this morning, nearly two decades after he was wrongfully convicted of rape and murder in Oneida County. New DNA test results support Barnes’ longstanding claim of innocence in the 1985 rape and murder of a high school student for which he was convicted in 1989.

Barnes’ conviction highlights the pressing need for national standards in forensic science, the Innocence Project said. Eyewitness testimony at his trial was shaky, but forensic testimony linked him to the crime. The forensic evidence included testimony that soil on Barnes’ truck tires was similar to soil at the crime scene and testimony that an imprint on the outside of Barnes’ truck matched the fabric pattern on a particular brand of jeans the victim wore when she was killed. Neither soil comparison nor jean pattern imprinting is scientifically valid, and they should not be relied on in court without proper bounds and/or experts testifying for both parties, the Innocence Project said.

The Innocence Project began representing Barnes in 1993 and the Oneida County District Attorney agreed to conduct DNA tests on evidence from the crime scene. Those tests were inconclusive because the DNA technology at the time could not yield a profile. In 2007, the Innocence Project reopened the case, and Oneida County District Attorney Scott McNamara agreed to conduct more advanced DNA testing (not available in the 1990s). New DNA test results on material collected from the victim’s body and clothing do not match Barnes, leading to today’s joint motion to throw out his conviction and release him from custody.

“Unvalidated and exaggerated science convicted Steven Barnes and cost him nearly two decades, but real science finally secured his freedom,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the latest in a long line of wrongful convictions based on improper or invalid forensic science that were ultimately overturned through DNA testing. Until there are clear national standards about what kind of forensic science can be allowed in court, more people like Steven Barnes will be wrongfully convicted while the actual perpetrators of violent crime remain at large.”

Although Barnes’ conviction has been vacated and he is free, the indictment against him will not be dismissed (fully exonerating him) until additional investigation is conducted to identify the actual perpetrator(s) in the case. The Innocence Project said it will cooperate with the District Attorney’s Office on that investigation.

“Steven Barnes has a long road ahead to begin rebuilding his life. He will need community support, financial assistance and employment leads,” said Innocence Project Staff Attorney Alba Morales. “Thankfully, his family has been tremendously supportive through this long ordeal, and they are planning a Thanksgiving homecoming that’s been two decades in the making.”

Barnes was 19 years old when 16-year-old Kimberly Simon’s body was found near the Mohawk River in Whitestown, New York. She had been raped and strangled. Four years later, when Barnes was 23 years old, he was tried and convicted for the crime. Eyewitnesses testified that they saw Barnes in town on the evening of the murder, and that they may have seen Barnes and Simon together – but no witnesses could say with certainty that Barnes ever met Simon, let alone that they saw him with her on the night of the murder.

The lack of other evidence put particular weight on the forensic testimony. A criminalist testified that an impression on Barnes’ truck was similar to the fabric pattern and fibers in the jeans the victim wore when she was attacked. She testified that she compared the evidence to other brands of jeans, and determined that they were not similar. The victim wore black Zena brand jeans, which were called “tuxedo jeans” because of their style. Testifying about photos of Zena tuxedo jeans and a slide with the imprint from Barnes’ truck the criminalist testified, “[Y]ou can hold it up to the light and the high contrast will help you to see that the patterns are similar.” Another prosecution witness worked as a salesman for manufacturers, including Zena jeans, and he testified that 24 to 36 pairs of the Zena tuxedo jeans were sold to stores in Oneida County 1985. He claimed that the jeans were “a very unique kind of garment.”

Analysis of jean patterns and comparison of soil have not been tested to determine their scientific validity; as a result, it is impossible to know how many other soil samples might be similar to soil from the crime scene or the likelihood that other jeans have the same pattern (assuming the marks on the truck were from jeans). “Even though these disciplines are not rooted in solid science, they could be used in courtrooms across New York and the country to this day. Much more research is needed to validate the probative value of pattern and impression evidence like bite marks, toolmarks and fabric comparison,” Scheck said. At the request of Congress, the National Academy of Sciences is preparing to release a major report on forensic science nationwide. A blue-ribbon commission has spent 18 months closely examining forensic disciplines that are used in courtrooms nationwide, and the unprecedented report will outline their findings and recommendations for how to ensure that the criminal justice system relies on sound science. Among wrongful convictions overturned through DNA testing nationwide, more than half involved invalid or improper forensic science, according to the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University.

In New York, 23 people have been exonerated through DNA testing, and 10 of those wrongful convictions involved invalid or improper forensic science. In a report released last year, the Innocence Project concluded that New York State leads the nation in wrongful convictions overturned with DNA testing but lags behind other states in enacting policy reforms to make the criminal justice system more fair and effective. The New York State Bar Association Task Force on Wrongful Convictions is studying this issue, and will issue its report to the NYSBA House of Delegates in January. “Steven Barnes’ case is a reminder that wrongful convictions are very much a reality in New York State, and that very few of the reforms that prevent wrongful convictions – and simultaneously help catch real perpetrators – have been implemented in New York,” Scheck said.

Tuesday, November 18, 2008

Attorney for exonerated man says lawsuit being considered

November 18, 2008


The attorney for 1 of the six people wrongly convicted in the 1985 rape and murder of a Beatrice woman says he'll contact the six to see if there's interest in filing a lawsuit against the state.

The 1985 case was the first time in Nebraska history that inmates have been freed based on DNA evidence.

Doug Stratton is attorney for Joseph White, 1 of the six exonerated people who served long prison sentences.

Attorney General Jon Bruning has said he will pursue full pardons for all six.

Wednesday, November 12, 2008

Cold case re-opened

Point Park forensics students take another look at Lizzie Borden mystery

Wednesday, November 12, 2008

Daniel Malloy-Pittsburgh Post Gazette-Pittsburgh, PA

Though she was the only suspect and was in the house at the time, Lizzie Borden was acquitted of the 1892 ax murders of her father and stepmother in their Fall River, Mass., home because of a lack of evidence.

The sensational trial of Ms. Borden, who was widely considered guilty and even implicated in a nursery rhyme, could have turned out differently, according to some historians, if prosecutors had access to modern investigation techniques. For example, no fingerprints or DNA were taken from an ax found in the basement.

This year, students in the forensics and criminal justice departments at Point Park University will reopen the cold case.

A 1/12-scale model of the Borden house was unveiled yesterday at the school. The model house, about five feet high, was built by students at the Art Institute of Pittsburgh and funded in part by a grant from the PNC Foundation.

"It's a big, glorified dollhouse," said James Hudak, a senior at the Art Institute who worked on the project, "where they found dead people, unfortunately."

The project is part of an effort by the criminal justice and forensics faculty to give a more hands-on learning experience to students, who will use the model house to study the steps investigators take in a murder case.

"You can't show all that on a PowerPoint -- the proportions, the size of the rooms," said Dr. Steven Koehler, an associate professor in the forensic science program.

"You need a big area to swing an ax."

Dr. Koehler dreamed up the idea a couple years ago when he came across the Borden case in a book about unsolved murders. He said the level of detail in diagrams and photographs of the house -- which has since been converted into a bed and breakfast -- made it possible to do a re-creation.

Mr. Hudak said he and a few other students spent a couple months designing and building the house as a project for a class on building miniature movie set pieces. Each floor of the house can be removed and examined, so you can see the second-floor bedroom where Abby Borden was found, the first-floor living room with Andrew Borden's miniature corpse, and the cellar where the ax was found.

Classes will begin using the model in the spring semester, and Point Park and the Art Institute already are planning another scale model for next year: The assassination of John F. Kennedy -- complete with grassy knoll -- which will be used to study ballistics.

Monday, November 10, 2008

D.N.A. Challenge Ruling

November 10, 2008

WBKO-Bowling Green, KY

A separate death row inmate has lost his bid to use D.N.A. testing to overturn his conviction and sentence.

Jefferson Circuit Judge James Shake ruled Friday that because D.N.A. tests in the case of 50-year-old Brian Keith Moore were inconclusive, there's nothing to undercut evidence presented at his trial for the 1979 murder of Virgil Harris in Louisville.

A jacket and shirt prosecutors say were worn by the killer were tested for D.N.A.

Samples from at least three people were found, but Moore could not be excluded as on of the donors.

Monday, November 3, 2008

UVa group aims to review death penalty cases

November 3, 2008

Charlottesville Daily Progress-Charlottesville, VA

Earlier in his studies at the University Of Virginia School Of Law, third-year law student James Cass spent a summer reading court opinions in cases that were later exonerated because of DNA evidence.

“To me, it became very apparent that they were innocent,” Cass said, “… even if a person is innocent, that alone is not enough to help them.”

That experience inspired Cass to get into UVa’s new Innocence Project Clinic. The 12-student clinic, which is a member of the Innocence Network, is reviewing death penalty cases to see if the students can overturn wrongful convictions.

The clinic is headed by Deirdre Enright, who said she was asked by the law school’s former dean to propose the student-requested project.

Enright, a 1992 UVa law graduate who has represented inmates facing the death penalty in Mississippi and Virginia, started the local office of the Virginia Capital Resource Center with her husband. She also represented Darrell Rice, who briefly was accused of being the “Route 29 stalker.”

Mary Martin, an investigator who works with the class, said the clinic takes the theory that the law students learn and helps them turn it into practice.

“I think that it makes the law flesh and blood,” Martin said. “This is really what has happened. It’s real life, when prosecution goes awry and evidence isn’t there.”

With the guidance of Enright and Martin, the clinic’s 12 students are researching cases handed down from the busy caseloads of the Mid-Atlantic Innocence Project and the New York-based Innocence Project. Unlike some other innocence projects, UVa’s clinic will handle cases without DNA evidence.

“You shouldn’t be spared a second look just because you were unlucky enough to be falsely accused and not have any DNA evidence,” Enright said.

Students don’t necessarily have much to work with when they first start researching a case. Enright said clients sentenced to the death penalty sometimes only have a letter or a police report to pass on so that their appeal can begin. The research process can include requesting files under the Freedom of Information Act, knocking on doors and trying to track down decades-old evidence.

Diana Wielocha, a second-year law student, has already interviewed one potential client who was accused of rape and burglary. The grandfatherly man, who Wielocha said has been imprisoned for more than two decades, told her that he wasn’t in the state in which the crime occurred at the time.

Finding evidence of bad lawyering hasn’t caused the clinic students to shy away from their chosen path. For second-year student Kelly Hodges, it has made her want to be there for people even more than before.

Cass said it has reinforced his faith in his future career.

“It really makes me feel like less of a lawyer and more of an advocate, and that is what these people need,” he said.

If the clients whose cases are being reviewed by the clinic decide to hire them and go forward, Enright said she and Martin would keep the appeals moving forward. Enright said most of her clinic students probably won’t be criminal lawyers, but she hopes that the clinic will inspire them to take on an Innocence Project case.

Tuesday, October 28, 2008

Tankleff: New Firm Will Fight Wrongful Convictions

October 28, 2008

Juliet Papa-1010 Wins-New York, NY

Marty Tankleff wrote 50,000 letters during his 17 years behind bars proclaiming his innocence in the murder of his parents.

"I don't want to have to hear another person say I wrote 50,000 letters to get out of prison," Tankleff said.

Tankleff served 17 years in prison for the 1988 murder of his parents before he was exonerated in 2008 based on evidence secured by investigator Jay Salpeter.

Tankleff and Salpeter are now part of the Fortress Innocence Project -- the first national firm focused exclusively on investigating wrongful convictions. The pair along with others, including Ruben "Hurricane" Carter (pictured), announced the formation of the firm Monday.

"Hurricane" Carter did 20 years and faced execution before he was released and now offers hope.

"The truth will live on...because the truth is invincible," Carter said.

The organization is also seeking legislative help in monitoring law enforcement agencies and improving their practices.

Thursday, October 23, 2008

Wrongly convicted Fla. man pardoned

October 23, 2008

Bill Kaczor-Fort Mill Times-Fort Mill, SC

Alan Crotzer already has received $1.25 million in compensation for spending more than 24 years in prison for crimes he didn't commit, and Tuesday he was pardoned for two other offenses.

Gov. Charlie Crist and the Florida Cabinet unanimously forgave him for stealing beer in 1979 when he was 18 years old and introducing contraband - marijuana - while he was in prison in 1991.

"I just think it's important that when somebody obviously has changed their life that you recognize that, you give them a second chance," Crist said. "I'm very proud of Alan Crotzer."

Crist had urged the Legislature to pass Crotzer's compensation bill and he signed it into law earlier this year.

Crotzer was released after 24 years, 6 months and 13 days when DNA evidence in 2006 proved he was innocent of abducting and raping two women from a Tampa home during a robbery. He doesn't need a pardon for those 1982 convictions because they have been overturned in court.

He hopes the pardon will help him achieve his dream of returning to prison as an inspector for the Department of Corrections.

"I put so much behind me, but there's so much in front of me I've got to do," Crotzer said afterward. "Prison offers nothing but corruption and chaos and mayhem. They can hardly feed them, clothe them or house them, and there needs to be some reform."

The governor and Cabinet, sitting as the Board of Executive Clemency, also ordered that records of the two crimes be expunged, although a lawyer for the Florida Department of Law Enforcement argued that couldn't be done.

FDLE Assistant General Counsel John Booth cited a 2004 Florida Supreme Court ruling saying under state law a pardon cannot be used to expunge records when there's a guilty finding because it "does not have the effect of eliminating guilt or the fact of conviction." It can be used, though, is cases where judges withhold adjudication of guilt.

Justice Harry Lee Anstead dissented from the 6-1 ruling. He wrote that the majority had overturned a legal precedent going back more than a century that says a pardon "blots out the existence of guilt."

Crist said the law is whatever the Supreme Court says it is on any given day.

"They have a couple new members over there don't they? A couple might come," Crist said. "We can, if we want, send them a test."

Crist recently appointed two new justices and two more are leaving next year, including Anstead, who will reach the mandatory retirement age of 70 in March.

"There is gray area," said Crotzer's lawyer, Mark Schlakman, board chairman of the Innocence Project of Florida. "The governor and Cabinet sitting as the Clemency Board have extraordinary power, virtually unbridled power within this realm."

Crotzer, 47, said he wants to keep showing the world "I'm not that monster they try to make me be. I am a new person."

Until the compensation bill was enacted, Crotzer supported himself by working for a plant nursery in Tallahassee, where he now lives. He's now working part-time for the Department of Juvenile Justice speaking with young delinquents about what can happen to them if they don't turn away from crime.

Although wrongly convicted in 1982, Crotzer acknowledged he erred in the beer theft, which resulted in a robbery conviction. He said he remained outside a store while some friends went in to take the beer.

Crotzer told the board he took the rap for bringing marijuana into prison rather than snitch on a guard. He said the guard smuggled it in and ordered him to sell it.

"They knew somebody brought it to me, but they wanted me tell on him, and I couldn't tell on him and survive I don't think," Crotzer said.

He is one of nine Florida convicts proven innocent by DNA. Eight have been freed. One died just before he was exonerated.

Monday, October 20, 2008

DNA Evidence Frees 2nd Man

Thomas Winslow Was Convicted In Rape, Murder Of 68-Year-Old Woman

October 20, 2008

KETV.com-Omaha, NE

Thomas Winslow, the second man convicted in the rape and murder of a woman 19 years ago, was released from prison Friday after DNA evidence cast doubt on his conviction.

His co-defendant, Joseph White, was the first man in Nebraska to be released from prison on proof of DNA evidence.

Winslow will finish paper work in Gage County, Neb., and then head to Omaha, where he'll be discharged from the Omaha Correctional Center. Winslow said the ruling was a longtime coming.

In a statement, Winslow said that law enforcement had told him physical evidence and testimony proved his guilt, though he had no memory of committing the crimes of which he was accused.

He said he had spent many years in prison actually believing he was guilty. "Unless someone has been accused of a crime as terrible as what happened to Mrs. Wilson and are told repeatedly by the police and the prosecutor that they have the evidence that will put them in the electric chair, you simply cannot understand the fear and the pressure I was experiencing," Winslow wrote. "

Winslow, along with Joseph White, was convicted in the rape and murder of 68-year-old Helen Wilson.

DNA evidence also could not place six other co-defendants at the crime scene. It did point to a third person, whom authorities are still seeking.

"That evidence clearly shows there was a third individual involved," said Gage County attorney Randy Ritnour on Wednesday. "That cast doubt on the testimony of everybody who testified in White's trial, because none of them mentioned this particular individual."

Wednesday, October 15, 2008

Capital Punishment Opponents Tour State of Montana

October 15, 2008

Flathead Beacon-Kalispell, MT

David Kaczysnki’s brother Ted, cemented in history as the “Unabomber,” will never be executed. Instead he will spend the rest of his life in prison, a reality that David embraces. But David, who originally tipped off authorities about his brother, is fully aware of how Ted arrived at the life sentence: a government-appointed, all-star defense team; a multi-million dollar trial and, in almost all regards, a lot more help than the average death row inmate ever receives.

To date, 130 death row inmates have been exonerated by DNA evidence and opponents of capital punishment, like David Kaczynski, say it’s clear that many of those inmates never received proper legal representation. That’s a major reason Kaczynski recently wrapped up an 11-day speaking tour across Montana with other anti-death penalty advocates to encourage Montana to abolish capital punishment. Last year, New Jersey became the first state to get rid of capital punishment since the U.S. Supreme Court restored it in 1976. Courts in other states like New York have ruled that the death penalty is unconstitutional.

“We have a delivery system and that system is failing,” Kaczynski said in an interview.

On Oct. 6, Kaczynski was one of five speakers who told their stories at Kalispell’s Museum at Central School as part of a national anti-death penalty movement called Journey of Hope…Violence to Healing, sponsored here by the Montana Abolition Coalition. The tour hit 50 locations throughout the state between Oct. 2 and Oct. 12. Speakers included family members of both victims and the convicted, as well ex-death row inmates who were exonerated.

The tour comes at the home stretch of election season, and capital punishment will once again be an issue at the 2009 Montana Legislature. In the 2007 session the Senate passed a bill to abolish the death penalty in Montana and replace it with life without the possibility of parole. The Montana House Judiciary Committee ultimately tabled the bill by a margin of one vote. Lethal injection, which has recently been questioned in court nationwide for its constitutionality, is the only form of death penalty in Montana.

One of Montana’s two death row inmates, Ronald Allen Smith, has been in the news over the past year because officials in Canada, his home country, stated that they wouldn’t save him from execution in Montana for murders he committed in Flathead County in 1982. The death penalty is illegal in Canada.

In an interview following the Kalispell presentation, Kaczynski said capital punishment affects people in tangible ways, not the least of which is what he calls a drain on resources, both human and financial. To emphasize his point he said that before a court declared the death penalty unconstitutional in New York, the state spent $200 million on seven death row inmates who were never executed. He also said that in his brother’s trial the federal government “spent $5 million to kill him and $3 million to save his life.”

“This really isn’t about sympathy,” Kaczynski said. “It’s about compassion on one level, but it’s really about rationality."

Kaczynski said his fight against the death penalty began after he received a phone call from Bill Babbitt, whose brother Manny was convicted of murder in California. Upon reviewing the details of Manny’s case and comparing them to his brother’s, he said he saw clear injustices in the legal system.

The high-profile case of his Harvard-educated, white brother, Kaczynski said, produced very different results than for Babbitt, an un-educated black Marine who served in Vietnam. Despite similarities in the case – both men were diagnosed schizophrenics and charged with first-degree murder – Babbitt was given the death penalty. During trial, Kaczynski said Babbitt was stuck with an alcoholic attorney who lacked criminal trial experience and who was later disbarred. The poor, colored and mentally ill, Kaczynski believes, are unfairly targeted by capital punishment.

“My concern is we’re executing a lot more Manny Babbitts in the country than we are Ted Kaczynskis,” he said.

Shujaa Graham, who also spoke in Kalispell, said while he was in prison for robbery in California in the 1970s, he was charged with the murder of a guard. Graham spent four years on death row until an outside movement persuaded authorities to give him one more trial. He was then proven innocent and exonerated, but he says today, “I’ve been out 20 years and I still struggle every day.”

“I’m here in spite of the system, not because of the system,” Graham said.

Among the other speakers on Oct. 6 was Bud Welch, whose daughter was killed in the 1995 Oklahoma City bombings. Welch said he was always an opponent of the death penalty but after the bombings he struggled with that belief. It wasn’t until he met Timothy McVeigh’s father and saw the pain it inflicted on the McVeigh family as well as his own that he again grew strong in his anti-capital punishment beliefs.

“(Execution) would be an act of revenge and hate,” Welch said. “Revenge and hate simply was not part of my healing process.”

Kaczynski thinks the judicial system should use its resources better.

“If we invest that energy in crime prevention and healing for victims’ families, it’s really a no-brainer,” Kaczynski said. “Instead of investing all the money in something negative, put it in something positive.”

Tuesday, October 14, 2008

Prosecutor in one of Dallas County's DNA exonerations no longer supports death penalty

October 14, 2008

Jennifer Emily-Dallas-Morning News- Dallas, TX

James A. Fry, who prosecuted Dallas County exoneree Charles Chatman, said he is "shaken to the core" because of the number of exonerations throughout the country and problems with eye witness testimony.

Once a staunch supporter of capital punishment, Mr. Fry said no longer supports it because of the problems in the criminal justice system highlighted by the exonerations.

"I don't think the system can prove who is guilty and who is innocent," he said in an interview at his office in Sherman where he practices family law.

Mr. Fry prosecuted Mr. Chatman in 1981 for the rape of the exonerated man's former neighbor. Mr. Fry said that at the time, he believed the victim had correctly picked out Mr. Chatman from a photo lineup.

This week, The Dallas Morning News is running stories from its 8-month examination of the county's 19 DNA exonerations that show that eyewitness testimony can be flawed.

Dallas County has had more DNA exonerations than any other local jurisdiction since 2001 when the state began allowing post-conviction DNA testing. Unlike most other counties, Dallas County has preserved decades of evidence.

Monday, October 13, 2008

DNA Exonerations

The Dallas Morning-News examined flawed police and prosecution practices that put men behind bars. Click on the link for the entire story.

Thursday, October 9, 2008

DNA Deadline

October 9, 2008

Detroit Metro Times- Detroit, MI

Requests for DNA testing from about 150 Michigan prisoners crowd Donna McKneelen's office at the Innocence Project at Cooley Law School in Lansing, where she's co-director.

She wonders if she'll have time to usher petitions for testing — which could prove some of the inmates were wrongfully convicted — through the court system in the next three months. The deadline looms because Michigan's law allowing post-conviction testing of DNA evidence expires in December.

Earlier this year, the Michigan House passed a bill to extend the measure to 2012, but that legislation is stalled in the state Senate. If it's not passed by the session's end in December, prisoners' ability to use testing to prove their innocence is gone.

"This is the last opportunity for these inmates," McKneelen says. "There's no process left. If they don't file under this statute there is no other avenue for them to get DNA testing."

Wayne Kuipers (R-Holland) chairs the Senate Judiciary Committee, which the bill must pass to reach the full chamber. He did not return several telephone calls and e-mails seeking comment.

Three Michigan men have been exonerated by DNA testing: Eddie Joe Lloyd, was released in 2001 after the national Innocence Project in New York handled his case, and Ken Wyniemko and Nathaniel Hatchett left prison in 2003 and in April, respectively, after Cooley attorneys requested testing that proved their innocence.

Michigan's exonerations are among 220 the Innocence Project reports nationwide. "DNA is a credible, powerful scientific tool," says Marla Mitchell-Cichon, co-director of the Cooley project with McKneelen. "Its use in post-conviction cases should continue."

In 2000, the Michigan Legislature passed the law allowing DNA testing in cases where evidence existed, hadn't been analyzed before trial and could exonerate the convicted person. It became effective Jan. 1, 2001 but was limited to eight years.

Lawmakers enacted the deadline because they were worried about flooding the courts with requests and figured that eight years was enough time to process cases in the pre-DNA era. But the Cooley project — Michigan's only organization dedicated to such work — hasn't been able to complete investigations into the 3,500 requests they've received. Some 150 requests are yet to be vetted.

The research is lengthy, McKneelen says, because while the law allows evidence to be tested, there is no requirement police or prosecutors automatically provide that evidence. So McKneelen and the students must first determine if evidence even exists; that can take months of Freedom of Information Act requests or negotiations with police departments.

"Some departments are absolutely wonderful. They're organized. There are records for everything. They're cooperative. But unfortunately that's not the case in all counties. There are some counties that are far more difficult than others," she says.

Since 2001, the Cooley team has submitted 13 cases for screening, including Hatchett's and Wyniemko's. Some other tests proved guilt or were inconclusive. Results in at least four cases are due in the next several months.

Now, the December deadline for post-conviction testing in Michigan has McKneelen worried about those last 150 requests.

"We really are up against trying to determine whether to file all the cases we have remaining, even those cases that we've not completed the investigation in," she says. "We don't file frivolous claims. That's why we still need the statute."

Scientific improvements also have increased the possibility of testing in old cases. If samples were small or contained more than one person's DNA, earlier tests could have been inconclusive, but today's technology could yield a result.

"We can now go back and ask for further testing and we could get a result. We have this constantly changing technology," McKneelen says.

Rep. Paul Condino (D-Southfield), chair of the House Judiciary Committee, says he's optimistic that after the November election, the Legislature will resume work on the DNA bill and other measures. "I remain convinced that they will move the bill during the lame duck session," he says.

McKneelen says enacting the testing law is a matter of public safety. "Unless the state Senate makes this bill a priority," she says, "innocent people will remain in prison while the actual perpetrators of crime remain at large."

Tuesday, October 7, 2008

How People Tell Cops They're Guilty Even When They Aren't

Untrue Confessions

October 6, 2008

Emily Horowitz-Counter Punch-Petrolia, CA

Khemwatie Bedessie, a 39-year-old immigrant woman in New York City, was convicted last year of raping a 4-year-old at a daycare center in Queens, though the facts of the case strongly suggest she is innocent. Her conviction resulted solely from a confession, which she says is false and was coerced from her by a detective.

In the 1930s, the Supreme Court outlawed “the third degree” during police questioning. Interrogators can no longer beat people, keep them awake for days, or threaten them with death to get a confession. Rogue behavior still surfaces. Chicago is still investigating a police district that routinely applied electric shocks to suspects less than a generation ago. But this isn’t the Depression Era, and coercive interrogations are no longer supposed to be allowed.

It’s not the 1980s, either. That decade marked the eruption of the McMartin Preschool case, in which several California childcare workers, among them elderly women, were accused of most bizarre and extreme sex abuse against children. McMartin, with its claims of mutilated rabbits and sodomy in underground tunnels, turned into the longest and most expensive criminal case in U.S. history, before it collapsed in 1990, with acquittals and hung juries. Dozens of copycat cases from the same period have since been debunked, and today child protection authorities tell us they know child sex abuse investigations can go haywire, but they have ways to keep them on track so people aren’t treated unjustly.

Even so, Khemwatie Bedessie was accused and convicted without any substantial evidence, except for her confession. Was it really coerced and false, as she claims? We’ll probably never know for sure because police didn’t record the interrogation that led to her self-incriminating statements. Lack of recording is one reason Bedessie deserves the benefit of the doubt. Her interrogation should have been videotaped, just as all questioning should be when people are detained during investigation of serious crimes. Among law enforcement agencies around the country, videotaping is catching on, and that’s laudable. But even if taping becomes universal, it won’t come near to eliminating false convictions based on false confessions. To make a real dent in the problem, we need to first recognize that when it comes to investigating crimes, we’re still in the epoch of the Inquisition.

Bedessie case is instructive, and it has a back story. She is one of nine siblings from Guyana, and grew up very poor there. At age 3, she was kicked in the head by a donkey; after that she suffered bouts of writhing and foaming at the mouth, which her family calls “seizures” or “anxiety attacks.” She never received medical treatment for them, and because classmates teased her about the attacks she dropped out of school after fifth grade. She cannot add or subtract small numbers, and her writing looks like a 7-year-old’s. After coming to the United States five years ago, she lived with her mother and worked 11-hour shifts, doing cleaning at a small daycare center in Queens. There she was known by the children as “Teacher” and by their parents as “Anita.”

One preschooler was a boy I will call Sam. At Bedessie’s trial this spring, Sam’s mother testified that when she first put him in daycare at age two so she could take a job, she was anxious about leaving him. Soon she started asking him if anyone there was sexually abusing him. She asked randomly and frequently. “No, mommy,” Sam always replied.

Then, one day in winter 2006, Sam developed a fever and a rash on his buttocks. At the doctor’s, he was diagnosed with flu. But his mother, again, felt worried. Again, she asked him about abuse. This time Sam, now 4, said “yes.” Taken to a hospital, he told a nurse he’d been raped by “Anita” – not his name for Bedessie but his mother’s. A police officer was called, but Sam would not repeat the statement. And medical personnel did not change their diagnosis of the rash. They still made no finding that it was caused by sexual abuse.

That left nothing except a preschooler’s word – which was spotty, and could have been tainted by his mother’s constant questions. And there was another problem with the case: it is astronomically rare for females as old as Bedessie to commit sex crimes against tiny children. Given this fact, what is the probability that the rape of a 4-year-old by a middle-aged woman would be discovered purely by accident, by questioning a child whose original complaint – which triggered the questions to begin with – had nothing to do with sex abuse? The likelihood is miniscule. The most probable explanation for Sam’s allegation of rape is that it was false, evoked by his mother’s fears and the boy’s suggestibility.

Not surprisingly, the detective in charge of the case, Ivan Borbon, was getting nowhere after a week of investigating. But instead of calling it quits, he decided to bring Bedessie in for questioning. Wearing plain clothes and driving an unmarked car, Borbon arrived at the day care at 9 a.m. one day. Bedessie said she thought he was a child protection worker. Borbon did not alert her to the misconception, and he told her they were going to his “child protection” office. It turned out to be a police interrogation room. There, Bedessie later testified, Borbon began cursing at her and calling her a child molester. He displayed a tape recorder and said he’d “wired” Sam. He claimed he had, on tape, the sounds of Bedessie forcing the child to have intercourse with her in the daycare bathroom. Incredulous, she asked him to play the tape. He refused, cursed some more, and said Bedessie had two choices. She could say then and there that she had raped Sam and she would be released to go home. Or – as she put it at trial – she could continue to profess innocence and “go to Rikers and never see my mommy” again.

“I do whatever he tell me to do,” Bedessie later testified. She says she has no memory of confessing (family members say she dissociates when she has her “anxiety attacks”).

But she did make a confession, after only three hours in custody. It was videotaped. In her statement, she responds to questioning by describing being fully penetrated sexually, for several minutes, on a toilet, by preschooler Sam. She characterizes the penis of this 4-year-old as being as long as a ballpoint pen, and of “about two inch thickness.” She speaks a notably creolized English, and it is not clear she understands everything she is asked. At trial a year later, she said she did not know the meaning of the words “masturbation,” “stroking,” “orgasm” or “immoral.”

Bedessie’s attorneys tried to put a witness on the stand: Richard Ofshe, an internationally recognized expert in false confessions. The judge would not allow it. He said the jury could make up its own mind about the veracity of Bedessie’s incriminating videotape. After only a couple of hours’ deliberation, they convicted her.

Though Ofshe did not testify, he watched Bedessie’s confession and interviewed her before her trial. He finds her account of coercion very credible, and says many people make false confessions after much less time than the three hours it took for Bedessie to begin her statement. Her description of the interrogation, Ofshe says, sounds like many others he has heard, in which evidence later surfaced to show that the defendant was innocent, even though he or she had earlier confessed. Ofshe and every other researcher who has studied false confessions note that they are easily extracted by interrogators. That’s because of how interrogation works – even when it’s done legally.

The Arizona v. Miranda decision, with its caveats about the right to stay silent and its offers of lawyers, was issued by the Supreme Court in 1966. Since then, legal police questioning supposedly has dispensed with 24/7 marathons and physical assault. Now, interrogations concentrate on psychology. But even when everything is on the up and up , questioning in detention is no tea party. According to the law, cops can get people to talk by yelling, insulting them, invading their personal space, saying there’s evidence when there isn’t, and feigning sympathy about the crime (“After all, she was dressed like a slut. I know she was asking for it, huh?”).

A widely used training manual recommends that the interrogator physically crowd up next to the suspect and insist he or she is guilty, cutting off any bodily or verbal protestation of innocence. “The interrogator must rely on an oppressive atmosphere of dogged persistence,” advises the manual, “leaving the subject no prospect of surcease. He must dominate the subject and overwhelm him.” These techniques “suggest that only confession will bring interrogation to an end.” In this way, the manual instructs, it is possible “to induce the suspect to talk without resorting to duress or coercion.”

But, at some point on the continuum of trickery, duress and threats, cops can step over a line. The resulting confession is what most people think of when they read reports from organizations such as the Innocence Project. According to that group, in over of quarter of DNA exonerations, innocent defendants pleaded guilty or made false confessions. Many such confessions and pleas were produced because police officers promised leniency at sentencing in exchange for a confession. Such deals are not allowed. Or the interrogator threatened bodily harm, warning the suspect, for instance, that confessing would be the only way to avoid the death penalty. (Bedessie says that Borbon, the detective who interrogated her, told her about the terrible treatment accused child molesters get at Rikers. He said she could avoid going there by confessing).

According to a raft of social science and psychology research done over the past two decades, techniques like these are especially likely to produce false confessions when used on juveniles, the mentally ill, the poorly schooled, immigrants, and those with impaired cognition (Bedessie fits at least two of these categories).

It’s also agreed that illegal practices occur frequently in the interrogation room, and that cops later lie about them on the stand. And when there is an argument about veracity, research suggests that no group of people – not judges, prosecutors or juries – can tell whether a confession is true or false simply by reading a transcript or watching the video. That is why not just the confession should be recorded, but also the full interrogation that led up to it. The idea is to avoid methods that – as the Supreme Court has put it – “shock the conscience” and “offend the community’s sense of fair play and decency.”

Ten years ago, only two states were recording interrogations. Now, nine states and the District of Columbia do, and they are joined by more than 500 local police departments nationwide (some record only for murder cases, others for lesser felonies as well). Increasingly, taping is the trend. It’s spreading relatively slowly, but it’s spreading, says Northwestern University legal scholar Steven Drizin, an expert on false confessions who has advocated for taping for years. He thinks the scales would really tip if federal agencies started making recordings.

So far, the feds have said “no.” But last year, media eyebrows were raised when the DOJ released documents related to how eight U.S. Attorneys were fired under former Attorney General Alberto Gonzales’ watch. Speculation is that one of the fired attorneys, Paul Charlton, in Arizona, was let go because he was investigating Republican Congressman Rick Renzi, a Bush loyalist, about a 2005 real estate deal. Either that or Charlton angered the DOJ for not prosecuting enough obscenity cases based on adult porn. Gonzales’ office demurred, saying that a major reason Charlton was canned was that he wanted to start a pilot project for the FBI and other federal agencies to start experimenting with videotaped interrogations. When the documents came out, one of them – from the FBI – objected to Charlton’s idea and commented that “as all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as a proper means of obtaining information from defendants.” More pointedly, the memo mentioned worries that jurors could find “proper interrogation techniques unsettling.”

Couple these anxieties with steady media attention to the problem of false confessions, and it might seem odd that judges, juries, and the public in general still find it so hard to believe that someone like Khemwatie Bedessie would say she was guilty if she wasn’t. Inside and outside the courtroom, what is the problem?

The most proximate answer is that, logistically speaking, the U.S. is heavily invested in a criminal justice system that would be paralyzed without confessions. Ninety-two per cent of felony convictions are obtained by plea bargains or confessions. That’s a far higher rate than in other countries (Italy’s, for example, is 8 per cent, and Norway doesn’t allow plea bargaining at all).

Relying on confessions to prosecute crimes is thrifty because it avoids the need for costly investigations. But it’s also very destructive to justice, according to Jerusalem University criminologist Boaz Sangero. Writing in a recent issue of Cardozo Law Review, he lists several problems. The first is that, after a suspect is apprehended, police tend to ignore serious investigation; instead, they focus on getting a confession. And once the confession is obtained, any other work going on at all typically ends. The push to handle cases this way encourages misbehavior in the interrogation room.

Further, reliance on confessions promotes disgraceful conditions of detention. Jails are often worse than prisons. Filth, bad food, lack of sunlight, crowding and violence pressure people to say they did something – anything, whether it’s true or not – just to get out of lockup. Then, because they’ve confessed, we figure it’s OK to keep others like them in awful cells – and to bring in more detainees for interrogation. It’s a vicious circle, and most who get trapped in it are poor, uneducated, and unacculturated. Their marginal status is bound up with the moralistic judgment that they are different from us, and therefore bad. Their badness reinforces our willingness to keep a bad system in place. It probably also allows us to export illegal interrogation – our 1930s-era torture, updated – to places like Abu Ghraib and Guantanamo.

Beyond fear of the bad “other” and desire for a bargain, though, there’s a more fundamental, existential reason why dependence on self-incrimination is mean and unfair. As Sangero notes, any kind of interrogation which focuses on obtaining confessions – legal or illegal – probably violates people’s rights. That’s because, from the point of view of self-interest, confession makes no sense at all. People are asked to help themselves by condemning themselves. It is deeply irrational.

That irrationality is especially apparent in the many confessions made, even though they were not extracted directly by police questioning. In fact, as Sanjero notes, it’s possible that most confessions arise not from external coercion but from states of dependency and abjection that people internalized before they were ever interrogated.

Historical and legal records abound with examples. After Charles Lindbergh’s baby was abducted, over 200 people walked into police stations and said they were the kidnapper. More than 30 told authorities they were the murderer of a woman who came to be known as “The Black Dahlia” – a Hollywood actress whose mutilated body was found in a vacant lot in Los Angeles in the 1940s. In a case that truly smacks of internalized abjection and desire for quick death, Heinrich Himmler lost his pipe while visiting a concentration camp during World War II. A search ensued, but on returning to his car Himmler found the pipe on his seat. Meanwhile, the camp commandant reported that six prisoners had already confessed to stealing it.

Since they are not products of police interrogation, no amount of videotaping will eradicate these confessions. Yet, we accept them. At least partly, this is because quick admissions of guilt are cheap, and easy on the justice system. But, more fundamentally, the very concept of confession is deeply embedded in our culture.

It was not always so. Ancient Jewish law barred criminal confessions. In Talmudic commentary – cited in the Supreme Court's Miranda decision, by the way – the rabbinical scholar Maimonides notes, “The court shall not put a man to death or flog him on his own admission.” Additional evidence and witnesses are needed, Maimonides explains, because the impulse to confess is, by definition, self-destructive. Of a man who professes guilt, there is always the possibility that he is “one of those who are in misery, bitter in soul, who long for death …perhaps this was the reason that prompted him to confess to a crime he had not committed, in order that he be put to death.”

Since the 1551 Council of Trent, however, the Roman Catholic Church has taught that confession is good for the soul – yea, even necessary, to save it and purge it of impurity. This religious notion has since been incorporated into law and into the modern, secular definition of the self. Being a fully realized person today requires full disclosure to family, friends, and even (in the case of writers, artists and public figures) to the polity: of one’s deepest emotions, darkest sexual impulses, and past misdoings. Confession isn’t just good for the self. We need confession to be a self.

But when self meets soul in the modern justice system, it’s a train wreck of contradiction. As Yale University comparative literature scholar Peter Brooks notes in his book Troubling Confessions, “That we continue to encourage the police to obtain confessions whenever possible implies a nearly Dostoevskian model of the criminal suspect … we want him to break down and confess, we want and need his abjection since this is the best guarantee that he needs punishment, and that in punishing him our consciences are clear.” On the other hand, our Mirandan insistence “that the suspect’s will must not be overborne, that he be a conscious agent of his undoing, of course implies the opposite, that we don’t want Dostoevskian groveling in the interrogation room, but the voluntary (manly?) assumption of guilt. Hence the paradox of the confession that must be called voluntary while everything conduces to assure that it is not.”

It wasn’t so long ago that masters of American jurisprudence were actively grappling with this contradiction. In the 1966 Miranda decision, Earl Warren recommended that the police find other evidence to solve a crime than the “cruel, simple expedient of compelling it from [the suspect’s] own mouth.” Twelve years before Warren made that statement, Abe Fortas, who later would replace Warren on the Supreme Court, wrote that “Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority.”

Today, Sangero agrees with these liberal lawmakers from a bygone era. He wholly opposes the eliciting and use of confession to solve and prosecute crimes. But, if confession isemployed, he believes the case should never go forward unless meaningful evidence is first gathered from sources independent of the confession – evidence that strongly shows, rather than merely suggests, that the suspect committed the crime. Many people fear that such a policy would allow lots of guilty people to go free. Sangero dismisses their worries. Forensic science in the U.S. today is so sophisticated and high tech, he says, that police have only to use it. All that is required to convict criminals justly is that the cops do their job.

Sangero is very leery of putting too much emphasis on recording. Sure, he says, it’s needed. But narrowly focusing on videotaping reforms does not encourage the police to redirect investigations away from defendants’ self-incrimination and toward the gathering of independent evidence. Obsession with recording can encourage practices such as “non-detentive interviewing.” It’s an increasingly common ploy, in which suspects are seduced into chatting – as Bedessie was when she was visited by the supposed “child protection worker,” who turned out to be a policeman – without being read their Miranda rights. Only after the car door is locked, the drive has begun, and the interrogation room is sighted, does the suspect get officially detained and put before a camera. By then, for someone like Bedessie, it may well be too late to take exercise one’s Miranda rights.

Bedessie is now in the first year of a 25-year prison sentence. Her post-conviction legal work is being done by prominent Manhattan attorney Ron Kuby. He believes she has a good shot at having her conviction overturned because of the trial judge not letting the jury hear expert testimony about false convictions. Nowadays, that’s solid grounds for appeal, and even the assistant DA who prosecuted the case knows it. Pretrial, she advised the judge that it wouldn’t hurt the state’s case to let the defense put on a witness to warn jurors that Bedessie might have falsely incriminated herself. It wouldn’t matter because the confession spoke for itself. And no jury would think otherwise.

Thursday, October 2, 2008

Appeals court overturns conviction of DNA exonoree

Thursday October 2, 2008

Houston Chronicle-Houston, TX

The Texas Court of Criminal Appeals on Wednesday overturned the sex crime convictions of a Dallas man proven innocent by DNA testing after 25 years in prison.

The court's decision to grant relief to Steven Phillips makes him the 35th Texan officially exonerated by DNA evidence and the 221st nationally, according to the Innocence Project, a New York-based legal center specializing in wrongful convictions. Texas has the most such exonerations of any state.

The appeals court upheld the ruling of a state district court in Dallas, which recommended in August that Phillips' convictions be overturned.

Phillips was convicted in separate trials of sexual assault and burglary and sentenced to 30-year sentences stemming from a 1982 attack on a Dallas woman. He then pleaded guilty to nine similar sex crimes, fearing he would receive life sentences if convicted by a jury.

Last year, DNA testing excluded Phillips as the perpetrator in the crimes for which he was convicted. Additional DNA testing earlier this year linked the sexual assault and burglary to Sidney Alvin Goodyear, who died in prison in 1998.

After a lengthy investigation over the last year, Dallas County prosecutors now believe Goodyear committed all 11 crimes that sent Phillips to prison.

Phillips is one of 20 men in Dallas County since 2001 whose convictions have been tossed aside by state district judges based on DNA testing of evidence, although one of those men will be retried by prosecutors.

Wednesday, October 1, 2008

Exonerated Man off Death Row

Speaker shares compelling story

October 1, 2008

Ann Wallace The Leaf-Chronicle Clarksville, TN

He spent more than 17 years behind bars on death row in a Florida prison for a crime he did not commit.

He is Juan Melendez who will be the featured speaker at two community forums scheduled at 2 p.m. and 7 p.m. Oct. 7 that free and open to the public.

Melendez was exonerated and released in 2002.

“He is very passionate about that not happening to someone else,” said the Rev. Jodi McCullah, director of the Wesley Foundation, the United Methodist Student Center adjacent to Austin Peay State University campus.

McCullah said the forums will be held in the Gentry Auditorium located in the Kimbrough Building on campus.

“We wanted to provide a thought provoking educational program on campus and this issue is something that I feel strongly about,” said McCullah.

Melendez has a compelling story to share.

“He spent 17 years, eight months and one day on death row for a crime that he did not do. His story is particularly interesting,” said McCullah who advocated a life without parole option instead of capital punishment.

The number of people released from death row across the country when evidence of their innocence emerged now stands at 130, according to McCullah.

Stacy Rector, executive director of the educational advocacy organization Tennessee Coalition to Abolish State Killing, said 2007 data indicates Tennessee has 90 people currently on death row status which includes two women.

Thursday, September 25, 2008

Dallas DA seeks help in old DNA-linked rape cases

September 25, 2008

Houston Chronicle-Houston, TX

Dallas County District Attorney Craig Watkins wants sex-offender status given to rape suspects identified through DNA evidence in cases that are too old to prosecute.

Watkins seeks such a remedy in part because of the looming release from prison of a man on charges unrelated to a sexual assault authorities believe he committed 25 years ago.

Dallas police say Dewayne Douglas Willis, 47, is one of six men recently linked to rape cases from the 1980s through DNA profiles or fingerprints, The Dallas Morning News reported Wednesday. Authorities say it is impossible to prosecute them because of an old statute of limitations.

A statute of limitations on rape cases was in effect in 1983 when a 12-year-old girl was attacked at knife point in her Dallas home, the case Dallas police believe involves Willis, who declined interview requests from the newspaper. DNA evidence revived the case earlier this decade.

The statute, designed to protect defendants from the erosion over time of favorable evidence, was scrapped in 1996 after DNA testing began. Still, the Constitution requires that defendants be prosecuted based on the laws at the time of the alleged offense.

One legal expert says listing the suspects as sex offenders is a dangerous idea.

"Because if they could, it's left to the discretion of the prosecutors who they decide to label as a sex offender, even though the person hasn't been convicted of it," says Fred Moss, a law professor at Southern Methodist University and a former federal prosecutor. "That strikes me as being the worst possible solution. None of us are safe then."

Dallas faces the issue because, unlike most counties nationwide, it has preserved DNA evidence for decades. And though a nation-leading 20 prisoners have been exonerated as a result, that evidence is incriminating people as well.

Watkins also floated the idea of having the cases noted in the criminal histories of the suspects. He said he plans to present lawmakers with a package of ideas to address the issue.

"This is all new," Watkins said. "We're going into uncharted territory."

Wednesday, September 24, 2008

Police admit DNA evidence not fail safe

September 24, 2008

ABC News-Australia

The Police Chief Commissioner Christine Nixon says contamination of DNA evidence is always possible.

Victoria Police admits it can't guarantee DNA evidence used against alleged criminals will be free from contamination.

A review of the police DNA database was sparked after concerns over the validity of the DNA evidence against a man accused over a double murder in 1984.

A 43-year-old man was charged with killing Ferntree Gully woman Margaret Tapp and her nine-year-old daughter.

The police were forced to withdraw the charges against him.

A Forensic Services Department DNA audit of 6,000 cases has found only one other DNA sample, for a case involving car theft and the cultivation of drugs, may have been contaminated.

No charges were ever laid over the crime.

Speaking on the Fairfax News Network, Police Chief Commissioner Christine Nixon, said although DNA was an incredibly powerful tool there is always potential for contamination.

But she says procedures are in place to minimize the risk.

"They're accredited by national authorities, we have an external oversight board that has also looked at the material, and so we've got a range of people that are looking at this, " she said.

Ms Nixon said the Forensic Services Department has worked tirelessly to ensure the impact on all other forensic work was kept to a minimum.

"I would like to stress that the Forensic Services Department at Victoria Police is of world class standard," she said.

"They follow world best practice and employ professional, expert scientists who work with integrity, independence and professionalism."

Tuesday, September 23, 2008

DNA Frees Another Dallas Man After 25 Years

September 23, 2008

Charles Montaldo-About.Com

A Dallas man behind bars for 25 years for a rape that he did not commit has been set free after DNA evidence in the 1981 case excluded him from being the perpetrator. Johnnie Earl Lindsey was released from prison last week, becoming the 19th person from Dallas County to be freed by the re-examination of DNA evidence.

Lindsey was reunited with his son who was not quite 2 years old when he was convicted in 1983.

Lindsey had written the court six times over the years trying to get someone to test the DNA evidence from the rape kit in the case. Finally, a judge forwarded one of his letters to The Innocence Project.

"Once I got someone to listen to me, there was no doubt in my mind that I would be exonerated, because I am innocent," Lindsey said. "I just needed someone to listen to my story."

Plans to Help Others Wrongfully Convicted

Lindsey said he now plans to help others wrongfully convicted.

"I have almost every clipping of exonerations from the paper, Jet magazine, Time," he said. "I never dreamed there were that many going through circumstances like mine. I'm going to try my best to help those who are left behind to see that they see justice, too."

During his trial, Lindsey said he was at work pressing pants at a commercial laundry when the rape occurred. His boss, Mike Pollard, testified that Lindsey was at work that day and he presented a timecard that showed that Lindsey was at work during that time.

But the jury voted to convict him anyway.

Monday, September 22, 2008

DNA database of offenders could help solve crimes, says former US attorney

September 22, 2008

Claire O' Connell-Irish Times-Dublin, Ireland

A DNA database of known offenders could help solve crime in Ireland, according to a Californian official who prosecuted OJ Simpson. Rockne Harmon told a genetics conference in Dublin that he was "surprised" to learn recently that Ireland has no such database.

"I can't imagine being an investigator trying to solve a crime without an offender [DNA] database - I wouldn't recommend it," said the retired deputy district attorney at a public event in Ballsbridge on Saturday to celebrate 50 years of genetics at Trinity College Dublin.

He described a series of grim serial killer cases that had been solved - sometimes decades after the event - by comparing DNA from crime scenes against genetic sequences of known offenders. "If there is no known suspect, it may be someone in the database," explained Mr Harmon.

The Californian database had genetic details of over one million offenders, and from the start of next year anyone arrested on suspicion of a felony would have a sample taken for DNA analysis, he said.

When questioned whether this compromised the assumption that a person was innocent until proven guilty, Mr Harmon said that if an arrested individual was not convicted they could have their genetic information removed from the database.

"Will people feel that they can't trust the government if they have their profiles? Sure. But I think the question needs to be will the greater community benefit from having a tool like this that can and has solved [cases]," he said.

Genetic information was also the key to tracking the origin of HIV, which moved from chimpanzees to humans in Cameroon in around 1930, probably while a hunter was butchering an infected chimp for bushmeat, explained bioinformatics expert Prof Paul Sharp from the University of Edinburgh. The virus then took hold in the large city of LĂ©opoldville (now Kinshasa) from where it spread out to other parts of Africa and around the world, he said.

Attendees also heard about advances with stem cells, which have the capacity to develop into other cell types. Scientists want to harness stem cell activity in patients with neurodegenerative conditions, explained Prof Steve Minger from Kings College London. "If we can understand the process, then maybe we could be able to give people drugs to repopulate brain cells in conditions where people lose them, like Parkinson's or Alzheimer's disease," he said. Prof Minger described how treated stem cells grown in the lab could provide useful models of human disease for scientists to study, rather than looking at animals.

The conference also heard from the Government's chief scientific adviser, Prof Paddy Cunningham, about the challenges of feeding a growing global population, and from Prof Steven Jones, at the University of London, on how fertility trends in Europe are reducing genetic variation, which he described as the "raw material" of evolution.

Thursday, September 18, 2008

Va. to notify felons that old DNA evidence exists

September 18, 2008

Dena Potter WVEC.Com Norfolk, VA

Virginia will begin mailing out letters to notify felons that old biological evidence exists in their cases on Wednesday, a state Department of Forensic Science official said.

The first batch of about 400 letters will be sent by regular and certified mail to those who committed certain felonies decades ago in which DNA evidence was preserved to notify them that it exists and may be suitable for retesting, department spokesman Tom Gasparoli said.

"DNA testing of the physical material may provide evidence that is relevant to your guilt or innocence of the crime," the letter reads.

Virginia's one-of-a-kind DNA testing project began in 2005 when then-Gov. Mark Warner ordered examination of all case files from 1973 through 1988 after five men were cleared of rape charges from biological evidence preserved in their files long before DNA testing got under way in the early 1990s.

Since then, the Department of Forensic Science has scoured more than 500,000 case files and identified nearly 1,000 defendants with old DNA evidence in their cases.

In March, the General Assembly ordered the state Forensic Science Board to notify each person that the evidence was found.

After some back and forth as to whether private lawyers should be brought in to help locate those who should get the letters, the board decided instead to work with Virginia State Police to find the best addresses for those who may have served their time decades ago.

The board continues to try to locate addresses for the more than 500 other felons.

The department agreed to pay for the mailings.

"The mailing is a very important step in this process, and DFS is glad to be able to assist the Forensic Science Board in sending out the letters," Gasparoli said.

The letters direct those who are interested in pursuing DNA testing to the Mid-Atlantic Innocence Project, which offers free legal help to those who have been wrongfully convicted.

"We really don't know whether it's going to be the flood gates opening or the equivalent of a woman sitting at home waiting for a boy to call," said the group's executive director, Shawn Armbrust.

Like several board members, she believed bringing volunteer attorneys in to track down the felons would have produced better results than relying on state police files. The board rejected that plan because they did not want to give the felons' private information to those not classified to receive it.

Board members acknowledged the letters would not reach everyone who needed to be notified, but they said they would revisit the plan until they felt that each person who possibly could be exonerated by the evidence knew that it existed.

"Even though this first step isn't what I hoped it would be, I'm confident that the board will, in the end, make sure they track down as many people as they feasibly can," Armbrust said. "Whether that's 100 percent or 98 percent, I'm confident they're going to make a good faith effort."

Also on Tuesday, the Department of Justice announced that it had approved a $4.5 million grant to help the forensic science department finish the review.

"The grant also comes at a time when budgets across the Commonwealth are very tight, so this money will certainly help defray some significant costs on this very valuable effort," Gasparoli said. "It is certainly welcome news, and the department's diligent work on the DNA program will continue."

The department has sent nearly 800 cases to an outside lab for testing. The results are reviewed by the department's scientists and sent to the originating law enforcement agency and the local commonwealth's attorney.

So far, no additional convicts have been exonerated, Gasparoli said.

Wednesday, September 17, 2008

I Spent 16 Years in Jail for a Crime I Didn't Commit. Here's What Should Be Done.

September 17, 2008

Jeffrey Deskovic-Alternet.ORG-San Francisco, CA

I was wrongfully convicted in 1990 of a murder and rape in Peekskill, N.Y. DNA taken from semen found in the victim did not match my DNA. But misconduct at every stage of the criminal justice system led me to spend 16 years of my life in prison. That misconduct included a coerced, false confession when I was 16, extracted after many days of interrogation overseen by current Peekskill Police Chief Eugene Tumolo and others, as well as the falsification of other evidence.

Most people think that only a guilty person would confess to a crime. But I can tell you that scare tactics, threats of violence, food deprivation, being lied to regarding lie detector results and being told that you can go home if you cooperate have produced many false confessions. Of the 218 exonerations based on DNA testing, false confessions led to 25 percent of the original convictions.

"Maybe you are innocent," Judge Nicholas Colabella said just before giving me a 15-years-to-life sentence. Former District Attorney Jeanine Pirro successfully opposed all of my appeals and even blocked several attempts to get more DNA testing. My fortune turned in 2006, when The Innocence Project took my case. With the cooperation of District Attorney Janet DiFiore, further DNA testing proved who the real perpetrator was. On Nov. 2, 2006, all charges were dismissed and I was publicly acknowledged as innocent. I received some apologies, but none were from those who played a role in wrongfully convicting me.

Readjusting to being free, dealing with the effects of my ordeal, learning new technology, trying to rebuild relationships with my family and experiencing financial pressure have all been hard. I was released with nothing. The litigation I am pursuing will take two to seven years, with the state attempting to avoid giving me anything.

But I am not angry. Instead, I channel my energy into raising awareness about the problem of wrongful convictions, and the danger that the death penalty poses in executing innocent people. I give presentations about wrongful convictions at colleges, high schools, churches and organizations throughout New York and other states. This is my main means of income, but I never know when the next chance to give a presentation will be. I also publish an article each week in the Westchester Guardian. I give television, radio and newspaper interviews, willingly sacrificing privacy in exchange for raising awareness about the problem of wrongful convictions and the need to enact legislative reforms to prevent them. I have testified at several legislative hearings, and I lobby lawmakers to enact reforms to protect the innocent and make the system more reliable. As an additional tool for encouraging lawmakers to enact changes, I collect signatures for an online petition on my Web site, http://www.jeffreydeskovicspeaks.org/.

Nationwide, to date, there have been 218 wrongful convictions proven through DNA, and many additional exonerations achieved by other means, including the discovery of new evidence, materials purposely withheld from the defense, and the recantation of eyewitness identifications. During the time I spent wrongfully incarcerated -- 16 years -- I immersed myself in wrongful conviction literature. Now that I'm free, I continue to study the subject, so I'm aware of the causes of wrongful convictions, well beyond what happened in my case. Here are the reforms that are needed in order to produce a more accurate justice system. If you agree with these changes, please sign the petition on my Web site and encourage others to do so as well. Also, call your local representatives and ask them to institute them.

False Confessions

False confessions have accounted for 25 percent of the 218 DNA exonerations.

All interrogations should be videotaped, from beginning to end. This would prevent police from concealing abusive tactics they may have used from their testimony. It would allow a complete and accurate record of who said what, when, and in what context. It would also protect honest police officers from false allegations of coercion. The use of polygraph tests, lying to suspects by claiming to have evidence of their guilt, and prolonged interrogations over many hours should be outlawed. All of these tactics have been linked to false confessions. Studies have revealed that such tactics convey to suspects that, no matter what, they will be arrested for something they did not do; it's just a matter of whether they will make it worse on themselves by maintaining their innocence. It is especially critical that interrogations of the mentally ill or the mentally retarded only take place with a lawyer present, because mentally ill and mentally retarded people often try to compensate for their mental deficiencies by being compliant in the face of authority.

Confession testimony is devastating to defendants, resulting in a conviction 80 percent of the time. Before evidence obtained through a confession is allowed at trial, a pretrial hearing on the confession itself should be conducted, akin to a Wade hearing in which the accuracy of an eyewitness identification is reviewed. Existing pretrial procedures, which are only aimed at determining whether a confession is given willingly by a suspect, are not enough.

Eyewitness Identification

Witness misidentification has been the cause of wrongful convictions in 75 percent of the 218 DNA exonerations.

Sequential lineups and sequential photo arrays should be used, in which a victim is shown one suspect at a time, rather than viewing everybody at once. Suspects included in a photo array or lineup should resemble each other so that no one sticks out.

The victim should be told that the perpetrator may not be present, to prevent victims from having undue confidence that the perpetrator is there, thus leading to a misidentification. Victims should be told that the investigation will continue if they don't make an identification so that they don't feel pressured into making an ID.

The officers conducting the lineup should themselves remain unaware of the identity of the suspect, to prevent them from giving inadvertent cues or clues.

Confidence statements, in which a victim states on a scale of 1 to 10 how confident they are about their identification, should be taken, to give courts and juries further insight.

The lineup or photo array should be recorded, to ensure its integrity.

Incentivized Witnessing

Incentivized witnessing -- in which a witness is rewarded for testifying, be it with a lesser prison sentence, dropped charges or financial compensation -- has been the cause of wrongful convictions in 15 percent of the 218 DNA exonerations. The practice of incentivized witnessing should be ended; those who have evidence should come forward on a moral basis, not because they stand to benefit. When desperate prisoners have been caught red-handed committing a crime and they have no truthful information to trade on, they falsely implicate others.

Reform Pertaining to Evidence

Currently, there is no standardized system for ensuring that evidence is preserved and available for inspection and testing. Often the first obstacle for a wrongfully convicted person is determining whether the evidence can be located and whether it has been destroyed. If it has, an innocent person can remain incarcerated with no way to prove his or her innocence.

It should be a crime when police and prosecutors purposely withhold evidence. History shows that with no personal penalty, morality alone is not enough to restrain some rogue police officers and prosecutors.

Public Defenders

Without quality attorneys, innocent defendants will continue to be wrongfully convicted, and cases will not have just and fair outcomes.

In every state, there should be one standardized system of defense for the poor, as advocated in "The State of Indigent Defense in New York," a report prepared by the Spangenberg Group for New York Court of Appeals Chief Justice Judith Kaye. A centralized system would impose more quality control, allowing for more internal oversight and accountability.

Public defenders who have shown a substandard performance defending indigent defendants should no longer be employed by the state to do so. Allowing unqualified public defenders to continue sets the stage for future inadequate performances and possible wrongful convictions.

The defense and the prosecution should have an equal and adequate budget to hire experts and other necessary personnel to assist in the preparation of cases. As it is, defense attorneys have an extremely limited budget, far less than prosecutors' huge budgets. On such an unequal playing field, no confidence can be placed on the outcome of court proceedings or verdicts. Furthermore, public defenders should have the same size staff as the district attorneys to ensure that they are not overwhelmed by sheer manpower.

There should be a limit to the number of cases a public defender is allowed to take on at one time. In the Bronx, for example, it is not unusual for a public defender to have 140 cases at the same time. Overburdening a public defender prevents him or her from giving each case the time, preparation and investigation it deserves.

Public defenders should be given pay equal to that of prosecutors.

Indigent defendants should be provided with court-appointed attorneys to handle post-conviction motions so that they can have competent legal representation, rather than trying to represent themselves against trained and seasoned prosecutors. A post-conviction motion differs from an appeal in that the defendant may be seeking to introduce new evidence or new issues of law that could not have been raised on appeal.


Access to DNA testing should always be provided, even in cases where defendants have pled guilty -- there have been 11 instances where an innocent defendant has pled guilty, often as a result of fear of a higher sentence, only to be proven innocent by DNA.

Judges should be given the authority to order crime scene DNA comparisons to DNA databases; currently the law does not explicitly give them that authority, and whether the testing goes forward or not often is up to the discretion of the prosecution. Current law allows judges the authority to order DNA in those cases in which DNA could affect the outcome. It should be that, in any case in which there is testable material, a test should be done.

Prosecutors should not be allowed to explain away a negative DNA test result at a trial by claiming the victim had a consensual sexual encounter, without first proving that such an encounter took place. When a prosecutor argues that a rape or other crime was committed by one person, and then a post-conviction DNA test shows the defendant is innocent, prosecutors should not be allowed to then change their theory on appeal and claim that a crime was committed by two people. Conclusions should be based on what the evidence shows, not by making evidence fit a conclusion.

Post-Conviction Review

In many wrongful conviction cases, it is usually discovered that the cleared person's appeals ran out years before. More review is needed to catch mistakes and correct wrongful incarcerations. Courts of appeals should review all cases, as a matter of a defendant's right, as an additional level of review, with the goal of catching more wrongful convictions.

There should be a review apparatus, besides appeals or pardons, for reviewing cases in which a defendant has a strong innocence claim. Appellate review is not enough to protect the innocent, and a governor's pardon occurs within a highly charged political environment. A review should be independent of both the courts and the governor's office, and be staffed by wrongful conviction experts.

An Innocence Commission should be created to study what went wrong in wrongful convictions, so that lessons can be learned and changes adopted to try to prevent future wrongful convictions.


A guilty person on parole currently receives more help than an exoneree, who receives nothing. All wrongfully convicted individuals should be compensated upon discovery that he or she was innocent of the crime.

An immediate sum of $15,000 dollars for each year spent wrongfully incarcerated should immediately be paid to those who have been cleared of a crime. This should be aside from any money awarded as a result of a lawsuit, to meet immediate needs such as housing, cost of living, mental health services, health insurance and education.

Compensation lawsuits should receive fast-track processing in the courts.

Bad case law stating that an exonerated person who has contributed to his or her own wrongful conviction should not be eligible to receive any compensation should be changed. The idea that anybody would intentionally get themselves wrongfully convicted and sentenced to prison only to then clear themselves in order to be in position to sue is ridiculous. To deny compensation to anybody who has been wrongfully convicted adds insult to injury.


The Parole Board should not be allowed to deny parole to those who profess their innocence based on the idea that they are not taking responsibility for their crimes or expressing sufficient remorse. These standards do not take into account the possibility -- and reality -- of wrongful convictions. The wrongfully convicted should not be made to stay in prison based upon their protestation of innocence. It is a fact that some wrongfully convicted prisoners have been denied parole after finishing their minimum sentences for these reasons.

Similarly, the Parole Board should not be allowed to deny parole to prisoners based upon their being removed from a sex offender class due to a refusal to admit guilt, because such a practice places the wrongfully convicted in the catch-22 of either falsely admitting guilt to try to regain freedom, or to lose a chance at freedom as the price for maintaining innocence.