Innocent



 

Court denies appeal of rape sentence
The Associated Press
Published 7:22 am PST Monday, October 30, 2006

WASHINGTON (AP) - The Supreme Court on Monday turned down the case of a Michigan man who said his sentence for rape was increased because he repeatedly maintained his innocence.
A judge sent Craig Haskell to prison for 12 to 30 years on a rape conviction after Haskell said at his sentencing hearing, "I know that one day the truth will come out and I stand before you still an innocent man."

After Haskell's comments, the judge that "I don't see any remorse in this case. None. And it's bothersome to me. I took the bench today not knowing what I was going to do to you. ... The only question I have is how much above the minimum I should go."

Lawyers for Haskell said the Fifth Amendment privilege against self-incrimination also applies to the sentencing phase of a case and asked the justices to decide whether the judge violated Haskell's right to due process.

The court denied the appeal without comment.

The Livingston County, Mich., prosecutor's office denied that Haskell was subjected to a longer sentence based on his claim of innocence.

"While there sometimes can be a fine line between taking into account a lack of remorse and punishing a defendant for claiming innocence, the trial court did not cross that line here," the county prosecutors said in papers filed with the Supreme Court. "

The case is Haskell v. state of Michigan, 06-137.



A Prosecution in Virginia
After two decades and one giant miscarriage of justice, Virginia prosecutors start over.

Saturday, August 26, 2006; A20
 

VIRGINIA prosecutors this week brought belated charges against a man named Kenneth Maurice Tinsley in the 1982 rape and murder of a Culpeper woman named Rebecca Williams. Mr. Tinsley, a serial rapist already serving life in prison, was connected to the Williams killing by DNA testing. And his prosecution would be simply a happy resolution of a long-cold case, except for one thing: A man named Earl Washington Jr. served more than 17 years in prison and came within nine days of being executed for this crime.

Mr. Washington's case is a tragedy in a criminal justice system that at every stage refused to admit the magnitude of its error. Mildly retarded, Mr. Washington was convicted almost entirely on the basis of a disturbingly weak confession -- one that a civil jury later found had been fed to him by investigators. He sat on death row until DNA tests in 1993 cast serious doubt on his conviction by showing that someone other than he or the victim's husband had had intercourse with Williams before she was killed. Then-Gov. L. Douglas Wilder responded by commuting his sentence to life in prison, but did not pardon him, arguing that the evidence of his innocence remained inconclusive. Only in 2000, after a second round of DNA testing, did then-Gov. James S. Gilmore III finally pardon him. Yet even then, he acknowledged merely that a jury would have acted differently had it seen these test results, not that Mr. Washington was innocent.

What's more, while some of the state crime lab's tests that year identified DNA from Mr. Tinsley on the victim's blanket, the lab erroneously excluded him as a DNA contributor in the samples taken from her body. Not until still another round of testing, this one in connection with Mr. Washington's civil lawsuit, was Mr. Tinsley's DNA found in samples taken from the victim's body.

The lessons of the Washington case will be familiar to anyone who has watched the flood of wrongful convictions come to light in recent years. Not all confessions are real; DNA testing should be liberally and swiftly available whenever doubts arise. Most important, there is no place for arrogance in a state's criminal justice system. In any number of cases pending now, including some that seem all too weak, Virginia authorities are certain they have the right man locked up. They were once that certain about Earl Washington, too.



Freed inmates look for more: Courts disapprove of compensation for the exonerated
By Eric Berkowitz, Associated Press
August 4, 2006

LOS ANGELES -- Herman Atkins spent eight years in a California prison for a rape he didn't commit. 


Gary Kazanjian / Associated Press 

STARTING OVER: Herman Atkins 
spent more than eight years in prison
until DNA evidence proved his innocence.


 When prosecutors in Riverside County realized he was the wrong man, they got a judge to release him. But the good will ended there -- now that Atkins is suing for compensation for his lost years, prosecutors are fighting him hard. 

They have argued heading into his new trial this month that his innocence is irrelevant and should be kept from the jury. Even the DNA evidence that absolved him of the brutal 1986 rape of a Lake Elsinore shoe store clerk -- evidence that showed a one in 300 billion possibility of guilt -- may carry little weight. 

His chances of winning any money for what the 40-year-old son of a California Highway Patrol officer calls a police frame-up that ruined much of his adult life are far from certain. 

The issue over what Atkins needs to show to win reflects the hazardous legal landscape facing people nationwide who have been erroneously convicted. 

Being exonerated does not automatically bring compensation: The onus is on the ex-convicts to prove their cases under a patchwork of sometimes tough legal requirements, even in states such as California that have unjust conviction laws. 

Since DNA evidence started clearing convictions in 1989, the compensation issue has become more acute. The new technology has helped release 144 people nationwide between 1989 and 2003, according to a University of Michigan study. But the law often leaves them and the hundreds of other wrongfully convicted defendants without any other remedy. 

"They often have no recourse because our legal procedures don't accommodate that kind of case," said Adele Bernhard, a professor at New York's Pace University School of Law. 

"If the police hit Atkins with a flashlight, that's easy," Bernhard added. "But if police action results in you getting put in jail for 20 years, the law is far behind." 

Twenty-one states and the District of Columbia allow limited compensation, but many have tight filing deadlines, require pardons and make the exonerees prove they were "actually" innocent, as opposed to being released on a legal technicality. 

California allows $100 per day in compensation. But that's after proving innocence -- a challenge many cannot meet, especially when there is no DNA evidence and the government puts up opposition. 

Of the 37 California claims that went to a hearing since 2001, eight have been successful, said Kathleen Beasley, spokeswoman for the state Victim Compensation and Government Claims Board. 

Exonerees can sue under federal civil rights laws, but they require proof of deliberate misconduct by police, such as fabricating evidence. 

"If the police didn't do something underhanded, the civil rights laws can't help," said University of Pennsylvania Law School professor David Rudovsky. This, plus the difficulty of proving police wrongdoing, leaves only a "distinct minority" able to sue, he added. 

And then there is the general resistance to second-guessing convictions, even erroneous ones. In a recent Oklahoma civil rights case involving Arvin McGee, jailed for 14 years for rape until he was exonerated by DNA evidence, the government's attorney told the jury, "there is no constitutional guarantee that only the guilty will be convicted." The jury didn't agree, awarding McGee $14.5 million. 

Atkins, who a judge released in 2000, said he had never been to Lake Elsinore before he was arrested. "I just thought it was mistaken identity and would all be resolved," he said. "Then I realized they were trying to railroad me." 

Riverside County lawyers refused to comment about the Atkins case, citing county policy. 

According to court papers filed by Atkins' attorneys, a detective fabricated a police report implicating Atkins in the rape and suppressed information that favored him. Yet if Atkins can't prove such misconduct, he'll be out of luck. 

Just getting through nearly five years of hard-fought litigation is an achievement. Most lawyers are hesitant to take on such cases because the costs are so high. 

Atkins is represented on a contingency basis by Peter Neufeld, a well-known criminal and civil rights lawyer and co-director of the Innocence Project, a New York legal clinic that works to release prisoners with DNA evidence. 

One famously successful case involved an Illinois man named James Newsome. 

It took several million dollars' worth of time and costs to carry Newsome through a civil rights trial after he was pardoned for an Illinois murder. He had served 15 years of a life sentence. 

Philip Beck, best known for representing President Bush against Al Gore in 2000, used an innovative technique to get the Chicago jury to award Newsome $15 million. 

His team erected a life-sized replica of Newsome's tiny jail cell in the courtroom. With the mock-up in sight, Beck had Newsome tell "horror stories of what it was like." Beck then reminded the jury that as bad as prison can be, "it's a hundred times worse when you know you're innocent." 

Emotional suffering is usually the main element of damages in wrongful incarceration cases, said Rudovsky, the University of Pennsylvania professor. "The question is, What would I pay to avoid that experience?' " he said. 

Atkins said no amount of money could make up for his lost time with his sons or his mother, who died soon after his release. 

He said he wants his case to change a police culture of improper practices. "It's not a mistake," he said referring to his conviction. "It's a way of life and that way of life has to change." 

Oregon prosecutor Josh Marquis agreed that convictions based on government misconduct should be compensated, but said such cases might be a slippery slope. 

"What do we do when we let someone out of prison early and they go kill someone? Should the family come after the government and say pay me?" he asked. "The government doesn't make such payments, and they probably shouldn't have to." 
 
 

Compensation for the innocent

The following have laws that provide compensation for those wrongly convicted of crimes: 
Alabama, California, District of Columbia, Illinois, Iowa, Louisiana, Massachusetts, Maine, Maryland, Missouri, Montana, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Tennessee, Texas, Virginia, West Virginia and Wisconsin. 

 



 http://www.mercurynews.com/mld/mercurynews/news/local/14893483.htm

Posted on Sat, Jun. 24, 2006 
 
 

New trial for convicted man
PHOTO EVIDENCE WAS NOT PURSUED IN ROBBERY CASE
By Fredric N. Tulsky
Mercury News

A federal judge has awarded a new trial to Michael Hutchinson, the Milpitas man who was convicted in 1999 of robbing a 7-Eleven, ruling that his attorney improperly failed to pursue photographic evidence that cast doubt on Hutchinson's guilt.

The order from U.S. District Judge Jeffrey S. White came six years after Hutchinson's appellate lawyer first went to court contending that photographs taken by a store surveillance camera showed Hutchinson was too tall to be the robber captured on tape.

Hutchinson's case was featured as part of the Mercury News' ongoing series, ``Tainted Trials, Stolen Justice,'' documenting questionable conduct in Santa Clara County jury trials. The newspaper hired an expert to conduct the analysis Hutchinson was denied when the 6th District Court of Appeals rejected his appellate attorney's request for money to analyze the photographs.

Lawrence Gibbs, one of two attorneys who initially took the case for free after Hutchinson first appealed to federal court, said, ``This should have happened six years ago. Michael Hutchinson spent six years in prison because the court would not give a couple thousand dollars to his attorney.''

The 39-year-old Hutchinson, in a telephone call from prison, said simply, ``I'm shocked.''

In a 37-page opinion issued late Thursday, White ruled that trial attorney Dennis Kazubowski failed to give Hutchinson adequate representation because he did not investigate the photographic evidence. White also found Kazubowski's explanations, given at a hearing last month, not credible.

The judge gave the state of California 60 days either to retry Hutchinson or release him. The state now must decide whether to appeal and ask that Hutchinson remain in prison.

The Mercury News discovered the case during reporting for its ``Tainted Trials, Stolen Justice'' series, which reviewed five years of appellate decisions in Santa Clara County criminal jury trials.

Based on the refusal of the 6th District to grant money to explore evidence that Hutchinson could have been wrongly convicted, the Mercury News hired photogrammetry expert Gregg Stutchman, who concluded that the man in surveillance photographs appeared substantially shorter than the defendant. Stutchman became a critical witness in a new effort Hutchinson launched in federal court to overturn the verdict.

Stutchman testified at the hearing last month before White, a San Francisco judge appointed by George W. Bush, who said Stutchman's testimony ``was very persuasive.''

The Mercury News series documented repeated instances of questionable conduct by prosecutors, defense lawyers, trial judges and appellate justices during Santa Clara County criminal trials. Such conduct, the newspaper found, increases the small possibility of wrongful conviction.

Hutchinson's case was one of three detailed in a March article on the vagaries of eyewitness identification, a form of evidence that experts consider particular troubling, because it is both persuasive with juries and too often unreliable. Earlier this month, the 6th District Court of Appeals reversed the conviction in another one of those cases. The court found that Jeffrey Rodriguez did not receive adequate representation in his case.

Hutchinson's case began Oct. 25, 1998, when a man wearing a stocking mask burst into the convenience store, hopped the counter and took $200. He was arrested and charged after the store clerk identified him from a photographic lineup.

On Friday, Santa Clara County Deputy District Attorney Ed Fernandez said he remained ``absolutely convinced'' of Hutchinson's guilt and said it ``boggles my mind'' that Stutchman's conclusions were considered scientifically valid. White's ruling ``is not a get-out-of-jail-free card,'' added Fernandez, who said he is preparing for a possible retrial.

The key issues before White were whether the expert analysis cast doubt on Hutchinson's guilt and whether Kazubowski failed Hutchinson by not exploring that defense before the trial. Hutchinson, according to trial testimony, is 6 feet 1 or 6 feet 2. Stutchman studied the apparent height of the robber as he took a full stride running through the store's door and testified that the robber appeared at least 6 inches shorter.

The two sides disagree on whether that difference could be explained by the gait and posture of someone in motion, but the state did not call an expert to contest Stutchman's testimony. White this week ruled that posture would not account for the large discrepancy in height.

At trial, prosecutors built their case on the testimony of the store clerk, as well as the store manager and a Milpitas policeman. Neither the manager nor the officer was present at the robbery, but both thought the man in the photo resembled Hutchinson.

On the witness stand, the clerk went beyond her initial statement to police and testified that she saw Hutchinson outside the store moments before the robbery and watched him put the mask on his head.

Hutchinson testified he had been wrongly accused. He had a prior conviction for assault with a deadly weapon and had been arrested for domestic abuse. But since getting out of prison, he had worked as a pastor, counseling young people. A poster for his church, bearing his photograph, was on display at the 7-Eleven.

Kazubowski on Friday said ``I know I did my job'' in representing Hutchinson. He testified last month that he made a tactical decision not to seek expert testimony about the surveillance photograph, after he examined it and concluded that the robber captured on film was his client.

But White rejected that explanation, writing, ``Neither his recollection nor his credibility can be credited here.''
 

Contact Fredric N. Tulsky at  rtulsky@mercurynews.com



The Independent

 http://news.independent.co.uk/world/americas/article361812.ece

The Innocence Project: Guilty until proven innocent 

Capital punishment in the US is under the microscope and lawyers using the latest forensic science techniques have found justice wanting. By Andrew Gumbel 
Published: 04 May 2006 

Cameron Todd Willingham is the first and only man executed in the United States for suspected arson after his three children, all under the age of three, burned to death at their home in Corsicana, about an hour's drive south-east of Dallas, Texas, in December 1991. 

Willingham testified at his trial that he narrowly escaped the fire himself, that he tried and failed to rescue his children, that he then made repeated attempts to call for help and re-enter the building, at one point smashing a window with a pool cue in the hope of reaching the children's bedrooms.

Not everyone, though, believed him. One of his neighbours, who knew he was a drifter, knew he had trouble holding down a job and knew about his fondness for going out to drink beer and play darts, thought he hadn't done nearly enough to save his family.

When the fire marshals examined the aftermath of the fire, they too found some anomalies and began to wonder if Willingham hadn't set it deliberately. Particularly damning at his trial was the testimony of the deputy state fire marshal, Manuel Vasquez, who examined the burn patterns on the wood floor and the melted aluminium threshold piece, as well as the way certain pieces of glass has cracked into crazy patterns in the heat, and told the jury there was no way this was the result of an accident. Someone, presumably Willingham, had sprinkled fuel and set light to the building.

"The fire tells a story," Mr Vasquez said on the stand at Willingham's trial. "I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells the truth."

Willingham was duly convicted of murder and, after 12 years on death row, was executed by lethal injection in February 2004.

Now, though, compelling evidence has emerged that Mr Vasquez did not in fact know what he was talking about. None of his testimony has passed muster with a panel of acknowledged arson experts, which has gone over it in detail. And without his testimony, the case against Willingham is left essentially baseless. Unlike most capital convictions, where a defendant's protestations of innocence raise the question of who else might have committed the crime, this case may well have constituted no criminal behaviour whatsoever, just one more ghastly element in an unspeakable family tragedy. That is certainly what Willingham asserted as he went to his death. "The only statement I want to make is that I am an innocent man, convicted of a crime I did not committed," he said. "I have been persecuted for 12 years for something I did not do."

Thanks to the work of the New York-based Innocence Project - a team of defence lawyers who put dubious capital convictions under the microscope of modern technology - his protest is looking increasingly believable.

The group commissioned a real expert's report using advances in the understanding of arson evidence which will make uncomfortable reading for the prosecution in the Willingham case. Their findings will this week be handed to the Texas Forensic Science Commission, which is constitutionally bound to launch its own investigation and report back to Governor Rick Perry, the man who gave the green light to Willingham's execution.

The Innocence Project's report will be hard to argue with. It was compiled by four of the country's leading arson experts who have testified on behalf of defence and prosecution in previous cases. Their conclusion: Willingham's conviction was based on bad science, and none of the evidence should have ever led investigators to believe the fire was set deliberately. "While we have no doubt that ... witnesses believed what they were saying, each and every one of the indicators relied upon have since been scientifically proven to be invalid," the report says.

And so the stage is set for the next big showdown over the death penalty in the US. Already, the pace of executions in most states has slowed because of doubts in recent years about the safety of capital convictions. The release of death row inmates shown by DNA evidence and other methods to have been innocent of the crimes of which they were accused is steadily increasing.

And a host of other doubts are being introduced. California's execution machine is at a standstill because of evidence that the lethal drugs administered during executions merely mask the pain felt by the dying prisoner instead of eliminating it. Reports emerged from Ohio on Tuesday of convicted murderer Joseph Lewis Clark taking 90 minutes to die after the team trying to deliver a lethal injection had problems finding a suitable vein.

The Project's lawyers have been instrumental in forcing courts to take new DNA-testing technology into account when reviewing convictions. Since 1992, when the Innocence Project first began, 175 prisoners have been exonerated, including 14 who spent time on death row.

It was the Project's lawyers who first questioned the arson evidence. They assembled the panel of experts and commissioned the report. More strikingly, they were also responsible for lobbying the Texas authorities and bringing about the existence of the Forensic Science Commission in the first place.

As the Innocence Project itself put it in a statement, the release of its report "marks the first time in the nation that scientific evidence showing an innocent person was executed has been submitted to a government entity that is legally obligated to investigate cases, reach conclusions and direct system-wide reviews to determine the extent of the problem". In other words, it could conceivably be the beginning of the end of the death penalty in Texas.

It also spells political trouble for Governor Perry as he faces an election race this November. Many of the arson panel's conclusions had been reached even before Willingham's execution, by a Cambridge-educated arson expert called Gerald Hurst, who passed on his findings to the Governor's office. As he told an investigative team from the Chicago Tribune at the time: "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." It does not appear, however, that Dr Hurst's findings were taken seriously by either the Governor's office or the state Board of Pardons and Paroles.

Barry Scheck, one of the two principles of the Innocence Project, who remains perhaps most famous for his role in defending O J Simpson, said he had established through open records requests that the Hurst report had indeed been properly filed before the execution.

"Neither office has any record of anyone acknowledging it, taking note of its significance, responding to it or calling any attention to it within the government," he said. "The only reasonable conclusion is that the Governor's office and the Board of Pardons and Paroles ignored scientific evidence and went through with the execution."

The prosecution, meanwhile, presented last-minute, second-hand evidence that Willingham had confessed to his estranged wife, something she later said was untrue.

Perhaps most poignant for Willingham's surviving relatives is that, at the time of execution, a similar case was going through the Texas legal system, that of Ernest Willis, who had been sentenced to death for his alleged role in setting a fatal fire in west Texas in 1987. Dr Hurst examined his case, too, found the forensic evidence similarly flawed and said he saw no evidence of arson. Willis was able to have his case reopened and dismissed. He walked out of death row a free man seven months after Willingham's execution.

All this adds up to a potentially explosive cocktail of political and social issues. Texans may be more attached than most Americans to the death penalty, but even they tend to draw the line at putting innocent people to death. One candidate in the governor's race, the humourist and former singer Kinky Friedman, does not appear to have been harmed by his record of campaigning on behalf of death row prisoners. One of Friedman's campaign lines is: "Texas: 50th in education, first in executions... how's that working for you?"

If the political tide is turning slowly, the sense of discomfort in the professional world of forensics and legal analysis is starting to be overwhelming. Copycat Innocence Projects have been set up. The original one, meanwhile, has been at the forefront of denouncing errors and unprofessional behaviour at forensic crime labs around the country, most notably in Virginia, Texas and Ohio.

The group has also made disturbing findings about the functioning of the criminal justice system more generally. The Innocence Project has found that the single biggest cause of wrongful convictions is mistaken eyewitness identification testimony. In more than a third of cases, forensic science has also been misapplied in some way, with experts presenting "fraudulent, exaggerated, or otherwise tainted evidence to the judge or jury".

Six years ago, the state of Illinois issued a blanket commutation of all its death sentences after it was established that 13 people on death row were in fact innocent of the crimes of which they were committed. (In that case, it was journalism students at Northwestern University who did the legwork.) Much more recently, New York state chose not to reinstate its death penalty law.

The backlash against capital punishment may be coming too late for Willingham, but his case remains a potent weapon in the hands of the Innocence Project and other campaigners. If Texas, of all states, is forced to acknowledge it killed an innocent man, then the death penalty may be on its way to extinction. 

Cameron Todd Willingham is the first and only man executed in the United States for suspected arson after his three children, all under the age of three, burned to death at their home in Corsicana, about an hour's drive south-east of Dallas, Texas, in December 1991. 

Willingham testified at his trial that he narrowly escaped the fire himself, that he tried and failed to rescue his children, that he then made repeated attempts to call for help and re-enter the building, at one point smashing a window with a pool cue in the hope of reaching the children's bedrooms.

Not everyone, though, believed him. One of his neighbours, who knew he was a drifter, knew he had trouble holding down a job and knew about his fondness for going out to drink beer and play darts, thought he hadn't done nearly enough to save his family.

When the fire marshals examined the aftermath of the fire, they too found some anomalies and began to wonder if Willingham hadn't set it deliberately. Particularly damning at his trial was the testimony of the deputy state fire marshal, Manuel Vasquez, who examined the burn patterns on the wood floor and the melted aluminium threshold piece, as well as the way certain pieces of glass has cracked into crazy patterns in the heat, and told the jury there was no way this was the result of an accident. Someone, presumably Willingham, had sprinkled fuel and set light to the building.

"The fire tells a story," Mr Vasquez said on the stand at Willingham's trial. "I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells the truth."

Willingham was duly convicted of murder and, after 12 years on death row, was executed by lethal injection in February 2004.

Now, though, compelling evidence has emerged that Mr Vasquez did not in fact know what he was talking about. None of his testimony has passed muster with a panel of acknowledged arson experts, which has gone over it in detail. And without his testimony, the case against Willingham is left essentially baseless. Unlike most capital convictions, where a defendant's protestations of innocence raise the question of who else might have committed the crime, this case may well have constituted no criminal behaviour whatsoever, just one more ghastly element in an unspeakable family tragedy. That is certainly what Willingham asserted as he went to his death. "The only statement I want to make is that I am an innocent man, convicted of a crime I did not committed," he said. "I have been persecuted for 12 years for something I did not do."

Thanks to the work of the New York-based Innocence Project - a team of defence lawyers who put dubious capital convictions under the microscope of modern technology - his protest is looking increasingly believable.

The group commissioned a real expert's report using advances in the understanding of arson evidence which will make uncomfortable reading for the prosecution in the Willingham case. Their findings will this week be handed to the Texas Forensic Science Commission, which is constitutionally bound to launch its own investigation and report back to Governor Rick Perry, the man who gave the green light to Willingham's execution.

The Innocence Project's report will be hard to argue with. It was compiled by four of the country's leading arson experts who have testified on behalf of defence and prosecution in previous cases. Their conclusion: Willingham's conviction was based on bad science, and none of the evidence should have ever led investigators to believe the fire was set deliberately. "While we have no doubt that ... witnesses believed what they were saying, each and every one of the indicators relied upon have since been scientifically proven to be invalid," the report says.

And so the stage is set for the next big showdown over the death penalty in the US. Already, the pace of executions in most states has slowed because of doubts in recent years about the safety of capital convictions. The release of death row inmates shown by DNA evidence and other methods to have been innocent of the crimes of which they were accused is steadily increasing.

And a host of other doubts are being introduced. California's execution machine is at a standstill because of evidence that the lethal drugs administered during executions merely mask the pain felt by the dying prisoner instead of eliminating it. Reports emerged from Ohio on Tuesday of convicted murderer Joseph Lewis Clark taking 90 minutes to die after the team trying to deliver a lethal injection had problems finding a suitable vein.

The Project's lawyers have been instrumental in forcing courts to take new DNA-testing technology into account when reviewing convictions. Since 1992, when the Innocence Project first began, 175 prisoners have been exonerated, including 14 who spent time on death row.
It was the Project's lawyers who first questioned the arson evidence. They assembled the panel of experts and commissioned the report. More strikingly, they were also responsible for lobbying the Texas authorities and bringing about the existence of the Forensic Science Commission in the first place.

As the Innocence Project itself put it in a statement, the release of its report "marks the first time in the nation that scientific evidence showing an innocent person was executed has been submitted to a government entity that is legally obligated to investigate cases, reach conclusions and direct system-wide reviews to determine the extent of the problem". In other words, it could conceivably be the beginning of the end of the death penalty in Texas.

It also spells political trouble for Governor Perry as he faces an election race this November. Many of the arson panel's conclusions had been reached even before Willingham's execution, by a Cambridge-educated arson expert called Gerald Hurst, who passed on his findings to the Governor's office. As he told an investigative team from the Chicago Tribune at the time: "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." It does not appear, however, that Dr Hurst's findings were taken seriously by either the Governor's office or the state Board of Pardons and Paroles.

Barry Scheck, one of the two principles of the Innocence Project, who remains perhaps most famous for his role in defending O J Simpson, said he had established through open records requests that the Hurst report had indeed been properly filed before the execution.

"Neither office has any record of anyone acknowledging it, taking note of its significance, responding to it or calling any attention to it within the government," he said. "The only reasonable conclusion is that the Governor's office and the Board of Pardons and Paroles ignored scientific evidence and went through with the execution."

The prosecution, meanwhile, presented last-minute, second-hand evidence that Willingham had confessed to his estranged wife, something she later said was untrue.

Perhaps most poignant for Willingham's surviving relatives is that, at the time of execution, a similar case was going through the Texas legal system, that of Ernest Willis, who had been sentenced to death for his alleged role in setting a fatal fire in west Texas in 1987. Dr Hurst examined his case, too, found the forensic evidence similarly flawed and said he saw no evidence of arson. Willis was able to have his case reopened and dismissed. He walked out of death row a free man seven months after Willingham's execution.

All this adds up to a potentially explosive cocktail of political and social issues. Texans may be more attached than most Americans to the death penalty, but even they tend to draw the line at putting innocent people to death. One candidate in the governor's race, the humourist and former singer Kinky Friedman, does not appear to have been harmed by his record of campaigning on behalf of death row prisoners. One of Friedman's campaign lines is: "Texas: 50th in education, first in executions... how's that working for you?"

If the political tide is turning slowly, the sense of discomfort in the professional world of forensics and legal analysis is starting to be overwhelming. Copycat Innocence Projects have been set up. The original one, meanwhile, has been at the forefront of denouncing errors and unprofessional behaviour at forensic crime labs around the country, most notably in Virginia, Texas and Ohio.

The group has also made disturbing findings about the functioning of the criminal justice system more generally. The Innocence Project has found that the single biggest cause of wrongful convictions is mistaken eyewitness identification testimony. In more than a third of cases, forensic science has also been misapplied in some way, with experts presenting "fraudulent, exaggerated, or otherwise tainted evidence to the judge or jury".

Six years ago, the state of Illinois issued a blanket commutation of all its death sentences after it was established that 13 people on death row were in fact innocent of the crimes of which they were committed. (In that case, it was journalism students at Northwestern University who did the legwork.) Much more recently, New York state chose not to reinstate its death penalty law.

The backlash against capital punishment may be coming too late for Willingham, but his case remains a potent weapon in the hands of the Innocence Project and other campaigners. If Texas, of all states, is forced to acknowledge it killed an innocent man, then the death penalty may be on its way to extinction. 



 http://www.latimes.com/news/local/la-me-goldstein19feb19,1,15070.story?coll=la-headlines-california

After 25 Years, Woman Sees Son in His Fight for Freedom
By Nancy Wride and Geoffrey Mohan
Times Staff Writers

February 19, 2004

Thomas Goldstein came into the Long Beach courtroom in shackles. Geri Goldstein sat in the front row, a cane leaning beside her. Only about 10 feet separated a mother and son who had not laid eyes on each other in more than 25 years.

They didn't get much further than hello.

"Hey," the prisoner said to his 76-year-old mother. Geri Goldstein said hello back. A bailiff intervened. In a preliminary hearing on murder charges, he said, conversation between a defendant and spectator is prohibited.

"I'll see you tomorrow," Goldstein told her son.

She will see him behind bars, where Thomas Goldstein has been since he was convicted in 1980 of the murder of John McGinest on a Long Beach street. He has remained in custody despite court rulings that overturned his conviction on the grounds that prosecutors denied him a fair trial.

As prosecutors and defense lawyers wrangled Wednesday over whether Goldstein should be tried again for the murder, his mother sat quietly and listened, dressed in a black pantsuit and raincoat, her face, like her son's, framed by glasses and short, silver hair.

"It was quite a shock," the elder Goldstein said afterward, leaning on a cane in the courtroom hallway. "I had never seen him with gray hair. He looks exactly like his older brother."

It was the first time she had seen her son since he left Topeka, Kan., for California in the mid-1970s. Stubborn in his insistence on his innocence, Goldstein for 24 years had been adamant that no one from his family visit him behind bars.

"Once his grandmother came to visit him," said Geri Goldstein, "He was very upset. He cried. He just felt it was so terribly degrading."

This time, Goldstein appeared to beam as he caught sight of his mother in court. 

The last time around, the trial had been quick.

Thomas Goldstein was living in a garage in a transient neighborhood, attending college, fresh from a stint in the Marines in Vietnam. McGinest was shot down near the apartment. Police arrested Goldstein and he was charged with murder.

There was no physical evidence to tie him to the killing. But a man who had briefly shared a cell with him at the Long Beach city jail, Edward Fink, testified that Goldstein had confessed to him one night. A second man, Loran Campbell, said he had seen the killer run past his window and that Goldstein was the man.

"It just seemed like no time at all that he was sentenced," Geri Goldstein said. "He kept insisting nothing was going to happen. I even spoke to the lawyer, who said there was no reason to come out."

Then her son called and told her the bad news: He was going to prison for 27 years to life. But he was sure it all would be reversed soon. "He was primarily concerned about me," she said. "I was hysterical."

He forbade anyone to visit him in jail, but Goldstein wrote his mother regularly, and she sent him a portable typewriter. His first job was as a janitor, which gave him access to the library and its law books. Thus began a long, obsessive quest to vacate his conviction.

Late last year, that quest finally appeared to be paying off. A federal appeals court ruled that prosecutors had violated Goldstein's rights. Fink, it turned out, was a police informant who had testified in a secret deal to get a lighter sentence. Campbell, the judges said, had expressed doubts about his identification of Goldstein and had been improperly coached by police. Defense lawyers had been told nothing.

Goldstein refused overtures from prosecutors suggesting that he could be released if he pleaded guilty to lesser charges. Geri Goldstein guesses he got the stubborn streak from her. "I'm quite a stubborn person," she said. "Once I make up my mind to do something, I do it."

Last month, the Los Angeles district attorney's office decided to try Goldstein again for murder. Wednesday's hearing was the next step in the process of bringing the case back to court.

Fink and Campbell are dead. Prosecutors will not try to reuse the testimony of Fink, who has been heavily discredited. At Wednesday's hearing, they said they plan to call Campbell's stepson and ex-wife, saying the two can back up the original identification of Goldstein as the killer. 

The proceedings were over in half an hour. Goldstein went back to jail, pending another hearing March 3, and his mother back to her hotel room in Long Beach. She will line up today for visiting hours at Men's Central Jail in downtown Los Angeles.

There will be much to catch up on. Her son's time as a free man in California — about four years, according to court testimony — is a black hole to Geri Goldstein. 

"It's funny, I can remember when he was in school; I can remember his bar mitzvah, and when he was in the Marines," Goldstein said in a telephone conversation before leaving Topeka for her son's hearing. "I can't recall much of the California time at all."

Thomas Goldstein was born in Houston, the second son of Art Polanko and the former Geraldine Havens. But the marriage was on the skids even as Geraldine, known as Geri, waited out her pregnancy.

She left her husband, and a year later married Lawrence Goldstein. The family stayed in Houston until Thomas was a teenager and there were four children, then moved to Kansas City, Kan.

It was a strict upbringing, down to firm adherence to Shabbat dinner on Friday nights. "I can remember him out of breath, trying to get home on Friday night for dinner, because I insisted they be home for Friday night dinner and then services," Geri Goldstein said.

Thomas Goldstein joined the Cub Scouts and eventually became a Sea Scout, she said. He loved sailing and swimming, and passed Kansas City's grueling lifesaving course. He came to identify heavily with his stepfather, an ex-Marine. So it was no surprise that Tom chose the Marines after graduating from Shawnee East High School in 1967, she said. 

"We couldn't really afford to send him off to college, and he thought going into the service would help him out," she recalled.

Before he left for the Marines, Tom took a year and a half to quell his wanderlust. Like many of his generation, he headed for California, hopping into the Triumph TR-3 his parents had given him. At least one point on his itinerary was Downey, Geri Goldstein recalled. That's where his biological father, a man he had never known, lived. 

It was not a Kodak moment, Geri Goldstein said of her son's reunion with Polanko, who has since died. She said she would rather let the memory die.

But the trip west, and a stint at basic training in Camp Pendleton, seared California's sun-drenched coast in Tom Goldstein's memory, his mother recalled. 

When he returned from Vietnam, he hung around Topeka, working in his parents' warehouse business, but he soon grew restless and headed west again, sometime around 1976, she said.

"He hated the winter months after being overseas in the heat," she said. "He decided he wanted to be someplace warm. So he went to California."

Court records show that Thomas Goldstein attended Long Beach City College sporadically, spending most of his time alone in a cheap apartment in a transient neighborhood, drinking heavily and living off veterans benefits.

His mother knew of none of this — not even his arrests for public drunkenness and disturbing the peace while he lived in Long Beach.

"We stayed in touch," she said. "He would write, let me know about his grades and how it was going along…. He was so busy working at any job he could get, and then with school, that he didn't have much time for friends."

She knows little of his son's life in California, but with a mother's faith, she remains convinced he is innocent of murder.

"There wasn't even any circumstantial evidence," she said. "There was nothing…. He was going to school, working. He didn't have enough time to get into such trouble." Plus, she said, "He wasn't that stupid."



 http://www.nytimes.com/2004/04/19/national/19DNA.html

Study Suspects Thousands of False Convictions

By ADAM LIPTAK

Published: April 19, 2004

A comprehensive study of 328 criminal cases over the last 15 years in which the convicted person was exonerated suggests that there are thousands of innocent people in prison today.Almost all the 
exonerations were in murder and rape cases, and that implies, according to the study, that many innocent people have been convicted of less serious crimes.

But the study says they benefited neither from the intense scrutiny that murder cases tend to receive nor from the DNA evidence that can categorically establish the innocence of people convicted of rape.

Prosecutors, however, have questioned some of the methodology used in the study, which was prepared at the University of Michigan and supervised by a law professor there, Samuel R. Gross. They say that the number of exonerations is quite small when compared with the number of convictions during the 15-year period. About 2 million people are in American prisons and jails.The study identified 199 murder exonerations, 73 of them in capital cases. 

It also found 120 rape exonerations. Only nine cases involved other crimes. In more than half of the cases, the defendants had been in prison for more than 10 years.The study's authors said they picked 
1989 as a starting point because that was the year of the first DNA exoneration. Of the 328 exonerations they found in the intervening years, 145 involved DNA evidence.In 88 percent of the rape cases in the study, DNA evidence helped free the inmate. But biological evidence is far less likely to be available or provide definitive proof in other kinds of cases. 

Only 20 percent of the murder exonerations involved DNA evidence, and almost all of those were rape-murders.The study, which will be presented Friday at a conference of defense lawyers in Austin, Tex., also found that very different factors contributed to wrongful convictions in rape and murder cases.

Some 90 percent of false convictions in the rape cases involved misidentification by witnesses, very often across races. In particular, the study said black men made up a disproportionate number of exonerated rape defendants.The racial mix of those exonerated, in general, mirrored that of the prison population, and the mix of those exonerated of murder mirrored the mix of those convicted of murder.

But while 29 percent of those in prison for rape are black, 65 percent of those exonerated of the crime are.Interracial rapes are, moreover, uncommon. Rapes of white women by black men, for instance, 
represent less than 10 percent of all rapes, according to the Justice Department. But in half of the rape exonerations where racial data was available, black men were falsely convicted of raping white women."The most obvious explanation for this racial disparity is probably also the most powerful," the study says.

"White Americans are much more likely to mistake one black person for another than to do the same for members of their own race."On the other hand, the study found that the leading causes of wrongful 
convictions for murder were false confessions and perjury by co-defendants, informants, police officers or forensic scientists. 

A separate study considering 125 cases involving false confessions was published in the North Carolina Law Review last month and found that such confessions were most common among groups vulnerable to suggestion and intimidation.

"There are three groups of people most likely to confess," said Steven A. Drizin, a law professor at Northwestern, who conducted the study with Richard A. Leo, a professor of criminology at the 
University of California, Irvine. "They are the mentally retarded, the mentally ill and juveniles."Professor Drizin, too, said that false confessions were most common in murder cases.

"Those are the cases where there is the greatest pressure to obtain confessions," he said, "and confessions are often the only way to solve those crimes."Professor Drizin said that videotaping of police interrogations would cut down on false confessions.The authors of the Michigan study offered dueling rationales for the murder exonerations, and both reasons, they said, were disturbing.

There may be more murder exonerations, they said, because the cases attract more attention, especially when a death sentence is imposed. Death row inmates represent a quarter of 1 percent of the prison population but 22 percent of the exonerated.

That suggests that innocent people are often convicted in run-of-the-mill cases. Indeed, the study says, "if we reviewed prison sentences with the same level of care that we devote to death sentences, there 
would have been over 28,500 non-death-row exonerations in the past 15 years rather than the 255 that have in fact occurred." 

The study offered a competing theory, as well. Mistakes, it said, may be more likely in murder cases and far more likely in capital cases. "The truth," the study concludes, "is clearly a combination of 
these two appalling possibilities." Critics of the Michigan study questioned its methodology, saying it overstated the number of authentically innocent people. 

The study calls every nullification of a conviction by a governor, court or prosecutor declaring a person not guilty of a crime an exoneration. In Astoria, Ore., Joshua Marquis, the district attorney for Clatsop County, said that many of the people exonerated under the study's definition may nonetheless have committed the crimes in question, though the evidence may have become too weak to prove that 
beyond a reasonably doubt.

"The real number of people on death row exonerated in the sense of being actually innocent in the modern era of the death penalty is about 25 to 30," Mr. Marquis said. 

The Michigan study put the number at 73.He added that even the error rate suggested by the study was tolerable given the American prison population."We all agree that it is better for 10 guilty men to go free than for one innocent man to be convicted," Mr. Marquis said. "Is it better for 100,000 guilty men to walk free rather than have one innocent man convicted?

The cost-benefit policy answer is no."At the University of Michigan, Professor Gross said that was the wrong calculus."No rate of preventable errors that destroy people's lives and destroy the lives 
of those close to them is acceptable," he said.Barry Scheck, a founder of the Innocence Project, said Mr. Marquis's analysis ignored another point."Every time an innocent person is convicted," Mr. 
Scheck said, "it means there are more guilty people out there who are still committing crimes." 


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