South Carolina Criminal Defense Blog

Cameron Todd Willingham was executed in Texas in 2004, after being convicted of murdering his family by arson. For the past month, the media and law blogs have been buzzing with news of reports that the junk science that Willingham's conviction was based on was bogus, and that this is the clearest case of an innocent person being executed by a state.

A panel that was investigating the claims has been replaced by governor Rick Perry, 48 hours before the panel was to hear from arson expert Craig Beyler, who had been retained to assist in the investigation.

Beyler's report is the latest of three to conclude that arson was not the likely cause of the 1991 fire, and the first commissioned by a state agency. Death penalty opponents say an impartial review of the Willingham case could lead to an unprecedented admission that the state executed an innocent man.

The Beyler report concluded that the ruling of arson at the heart of Willingham's conviction "could not be sustained" by modern science or the standards of the time. The report, filed in August, said the state fire marshal who testified in Willingham's trial approached his job with an attitude "more characteristic of mystics or psychics" than with that of a detective who followed scientific standards.

Perry, who faces a Republican primary challenge in his bid for a third term next year, refused to issue a last-minute stay of execution for Willingham in 2004 and has said he remains confident that Willingham was guilty. So have authorities in Corsicana, south of Dallas, who prosecuted Willingham in his daughter's deaths.

Despite their requests to remain on the panel, the governor says that he is replacing them because their terms are up. Possibly there is no desire to sabotage the investigation on the part of the governor, but this was a critical time in the case to announce the replacements.

The United States Supreme Court released two criminal law opinions today. The first, (from the syllabus) Osbourne, holds that there is no due process right to access DNA for testing post-conviction. The Court does not answer the question of whether there is a federal right to be released upon proof of actual innocence, and says that even if there were such a right the denial of access to DNA evidence would not be a violation of fundamental fairness - it is more appropriate for the individual states' legislatures to define the parameters of access to DNA (even if they don't provide access).

Yeager v. U.S. revisits Ashe v. Swenson, re-affirming that issue-preclusion will prevent the government from re-litigating any issue that was necessarily decided by a jury's acquittal in a prior trial. Yeager was acquitted of charges of securities and wire fraud related to the Enron fiasco, but the jury could not reach a verdict on charges of insider trading and money laundering. Relying on the lower court's finding that the acquittal did involve a finding that Yeager did not have inside information which was an element of the acquitted charge as well as the remaining charges, the Court held that the government is precluded from re-trying the remaining counts - an "apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts [does not affect] the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment."

Jailhouse informants (persons with pending charges who become witnesses for the prosecution):

Texas has a bill pending that would require corroboration before admitting testimony of jailhouse informants. Jailhouse informants, who will say or do anything in exchange for their freedom from a prosecutor, is among the most serious problems in our criminal justice system. So long as we allow prosecutors to obtain convictions based solely on testimony of jailhouse informants there can be no faith in the reliability of our criminal justice system.

We need reform in when and how we use the testimony of "informants" in our courts. We cannot trust the prosecutors to seek the truth and to adequately corroborate testimony before they call a witness to the stand, therefore we need legislation or court rules to ensure that we are not convicting persons based on perjury, and that testimony against criminal defendants is not for sale in the jailhouses.

Confidential informants (generally used in narcotics purchases):

On the east coast, Florida has passed legislation that would limit law enforcement use of confidential informants - the law would require "agencies to take into account a person's age and maturity, emotional state and the level of risk a mission would entail. Police also would be barred from promising an informer more lenient treatment; only prosecutors and judges can do that." The law would also prohibit using any person who is in drug treatment to go on undercover drug buys.

The Florida law covers the most troubling aspects of law enforcement's use of undercover informants. Often police will make promises that they know they cannot keep - no one can promise a defendant anything in regard to their case except the prosecutor. Narcotics officers will try to get to the defendant before they have a chance to speak with an attorney, and sometimes warn them not to talk with an attorney, to keep them in the dark about what their legal options really are. Often a person will be promised probation if they work with narcs, they will strap on a wire and make buys for the narcs, only to later discover that if they had refused to talk to the police and retained an attorney they would have likely received a probationary sentence anyway.

If a person is trying to get clean or stay clean, they cannot repeatedly go into houses and make drug deals - sooner or later they will use and their recovery will be blown to bits. Many narcotics officers do not care if you stay clean or not - you are a tool that they use to do their job for them. Many narcotics officers do not care that you are placing yourself in danger - again, you are a tool that they require to make drug arrests. Rachel Hoffman's death in Florida, although tragic, was representative of the ethics problems that narcotics officers often ignore in their work and thankfully brought national attention to the problem.

(H/T to R. Balko) On a lighter note, a man is exonerated by DNA evidence after serving 12 years for a bear attack he did not commit:

DNA Evidence Frees Black Man Convicted Of Bear Attack

Prosecutorial misconduct such as withholding evidence, the use of jailhouse snitch testimony, faulty eyewitness identifications, and coerced confessions lead to wrongful convictions that destroy lives. There is nothing to prevent these miscarriages of justice unless prosecutors are held accountable for misconduct and unless laws are passed or rules put into place to limit the use of unreliable evidence at trials.

In the news recently:

In California, Adam Miranda is granted a new trial after nearly 30 years in prison, following the revelation that his prosecutors withheld evidence that could have exonerated him - Judge David S. Wesley found that prosecutors did not tell the defense attorneys that their star witness Joe Saucedo had confessed to the murder himself before Miranda was charged. Saucedo was paid $1350, was relocated, and was given a deal that resulted in 2 years of probation on his own charge.

"This kind of violation snaps the spine of the justice system," defense attorney Kerry R. Bensinger said after Friday's hearing.

Tim Masters' 1999 murder conviction in Fort Collins, Colorado, was overturned last year after new evidence was discovered, but still struggles to put his life back together with the stigma of a first degree murder conviction hanging over him:

In 1987, Masters became the prime suspect in the slaying of Peggy Hettrick, a 37-year-old found in a field near his house. Among the reasons police said they focused on Masters was that he failed to report the body after he found it and his childhood drawings and stories suggested he was fixated on death.

Masters was convicted of murder in 1999, but a judge last year threw out the conviction and released him from prison, citing new evidence that did not implicate Masters. Masters now has a lawsuit pending against several police officers, ex-prosecutors and the city.

In Louisiana, the City of Covington has agreed to settle a lawsuit for $1.4 million for the 19 years that Dennis Patrick Brown spent in prison for a rape he did not commit.

Covington police arrested Brown in September 1984 after a woman reported being raped at knifepoint in her home on Polk Street. Based on her description, police sketched an image of a suspect with a bandanna covering all but his eyes.

She later picked Brown out of a lineup. During the September 1985 trial, the victim testified that she had no doubt Brown raped her.

Brown denied the attack, testifying that police had threatened him with a knife to gain a confession. He told the jury that police investigators were lying and that the first time he set eyes on the victim was in court. He was found guilty and sentenced to life in prison.

In 2004, the Innocence Project of New Orleans obtained a court order to test blood, semen and clothing found at the scene of the rape. Two tests of the evidence excluded Brown as the rapist.

I focus quite a bit on the negative, the unethical things that some prosecutors do to win their cases, but I need to give credit where credit is due. In a recent case in Florence, S.C., in 2000, two brothers were accused of shooting a corrections officer in a convenience store during a robbery. In 2005, they went to trial on charges of assault and battery with intent to kill, conspiracy, and possession of a weapon during a violent crime; they were found guilty of the conspiracy and weapon charge but the jury could not reach a verdict on the ABWIK charge. The only evidence was the testimony of two jailhouse snitches who were looking for deals from the prosecutor. The brothers were sentenced to five years.

The solicitor waited until they were to be released from prison, and then decided to retry the brothers on the ABWIK charge; and at this point my firm became involved. While investigating the case, I discovered that there was clothing that had been discarded by the robbers/shooters at the crime scene, including a hat that hairs had been recovered from, that the hairs had been tested by a DNA lab, and that the results conclusively excluded the two brothers. This evidence had never been provided to the original defense attorneys, and the first jury had never seen it.

There are two sides to this story - the original prosecutor either deliberately withheld this evidence or handled the case in such an incompetent manner that he honestly did not know that it existed; and the decision to retry the case after the defendants were to be released from prison I believe was underhanded and distasteful.

The other side to this story is that the new prosecutor who was assigned to the case for the re-trial, when he discovered what had happened in the case, immediately understood that an injustice had occurred and that the remaining charges needed to be dismissed. Although it took a few more days for the powers-that-be in that solicitor's office to get on board, my hat is off to the prosecutor who signed the paperwork dismissing the remaining charge and releasing the defendants from custody. Although they can never give them back the years that they served in prison following the first trial, many prosecutors would have continued to hide the evidence and would have refused to admit that their office had made a mistake; those defendants could have gone to trial and could have been sentenced to an additional 20 years for a crime that they did not commit.

All of the time. I often have this conversation with friends, family, neighbors, or random acquaintances, and I never cease to be amazed by the perceptions that much of the general public has of our criminal justice system. Cops do not lie. If someone is charged with a crime they must be guilty. A prosecutor would not pursue a case if the defendant was not guilty. If they aren't guilty of this they must be guilty of something.

Cops lie. They are human, they cover up for their mistakes on the job, and they want to look good in court. They are trained on how to testify and look good for a jury. I have met a few police officers who were rigorously honest on the stand, and I have the utmost respect for those individuals, but there have not been many of them.

There are prosecutors who will refuse to seek a conviction if they know that their case is shaky and there is a real possibility that the defendant is not guilty of the crime. These prosecutors understand that they have a higher calling and that their ethical duty is to seek justice and not convictions. But there are also many prosecutors who will seek a conviction and ignore obvious signs that they are prosecuting the wrong person; possibly they fear for job security or fear media exposure, they have political aspirations, or perhaps they simply lack empathy and compassion, I do not know.

Everyone is guilty of something. But please, let's prosecute and convict people for the things that they actually did. "If they aren't guilty of this they must be guilty of something," coming out of a prosecutor's or police officer's mouth, makes me feel ill.

The passage of the South Carolina DNA testing bill gives me some hope that in the future we may identify more persons who have been wrongfully convicted, but its application is limited to those cases where there is DNA evidence to test, which covers only a small percentage of all cases in the system. We need to work harder to prevent wrongful convictions on the front end, by looking at what is causing them and working to change it.

We can look to the post conviction exonerations in Texas and other states around the country to see what the leading causes of wrongful convictions are: the front runners are faulty eyewitness identifications, Brady violations (the prosecutor or the police withholding evidence that would prove the defendant's innocence), and jailhouse informants.

When the state (police or prosecutor) holds back evidence that would help the defendant, in violation of Brady, the system breaks down. The jury cannot make an informed decision if they do not see all the evidence. If the state uses witness testimony that it has every reason to know is perjured, the system breaks down. When the prosecutor buys testimony with the threat of prison or the promise of freedom, that testimony is suspect. When the police feed information to a witness that fits their theory of a case, instead of searching for the truth, that witness cannot be reliable.

I have seen police and prosecutors, who usually swear by polygraphs and their reliability, ignore polygraph results when they do not fit their theory of a case. Because the courts have consistently ruled that the polygraph is unreliable, juries will never hear the results of these tests, whether it is the defendant passing a polygraph, or a state's witness failing one. And I don't complain about the inadmissibility of polygraph results, because it is a two edged sword - in cases where the defendant fails a polygraph or a state's witness passes one, the jury should also not hear the results. But what does this say about the integrity of the system, if the prosecution ignores the results during the course of an investigation only when it is convenient to them?

Extensive research has been done on eyewitness identification procedures, and information is readily available on what works and what does not work. National law enforcement organizations have made available training and information on best practices, and yet local law enforcement often continues to ignore the data. Courts are decades behind the research in what is admissible as evidence and in what instructions should be given to juries.

I believe that the prosecutor's duty to seek justice and not convictions mandates that they should not go forward when they know that the defendant cannot be guilty beyond a reasonable doubt. When a prosecutor knows that their case is full of holes and that there is a substantial likelihood that their defendant did not commit the crime, and yet they still proceed with the prosecution, they are attempting to deceive the jury and it is a perversion of justice:

Sometimes, the requirement of proof beyond a reasonable doubt is not good enough to ensure that innocent persons are not convicted. When a person is accused of murder, armed robbery, or any serious offense, it is difficult for jurors to hold the state to their burden of proof, and the defendant truly has to prove his or her innocence. In most cases, the prosecutor has quite a bit of credibility with the jury, and they want to believe that what the prosecutor is saying is true. The prosecutor would not tell them this person is guilty if it were not true, and surely the prosecutor would not put a witness on the stand that would not tell the truth?

When there is scant evidence of guilt other than a jailhouse snitch, and there is DNA evidence placing another person at the scene of the crime, do we blame the prosecutor for going forward with a case knowing that the jury may convict an innocent person? In South Carolina the Solicitor is an elected official, the media is watching, and the public demands a conviction. I can understand why prosecutors go forward with these types of cases, and rely on defense attorneys, juries, and judges to ensure that justice is done. But justice in a criminal case begins with prosecutorial discretion.

Defense lawyers are on the front lines in preventing wrongful convictions. When police lie, we have to find a way to expose it to the court and to the jury. When prosecutors insist on going forward with what should be insufficient evidence, or with suspect witnesses, we have to find a way to expose it to the court and to the jury. We have to educate the court and the jury on reliable eyewitness identification procedures, and make sure that jurors understand just how precious our right to the presumption of innocence and to proof beyond any reasonable doubt is to our criminal justice system.

The South Carolina Senate and the House of Representatives overrode the Governor's veto of the DNA testing bill today. It's a mixed blessing - the reason the Governor vetoed the bill was because at the last minute the legislature combined the bill providing for preservation of DNA evidence and post-conviction access to DNA evidence for testing, with a bill allowing law enforcement to take DNA samples from persons who are arrested for felonies and some misdemeanors, regardless of whether they are convicted.

We needed the post-conviction testing bill, but at what price? Why did the legislature feel the need to combine these two bills? The provision allowing for the taking of DNA samples from persons who have not been convicted goes too far, and is an unreasonable invasion of privacy.

"We need to get government out of the lives of people," Hart said. "This bill grows government."

And, Hart said, part of the legislation opens the door to police asking for samples even when they don't take people into custody. "Something doesn't match up in this bill, ladies and gentlemen," Hart said.

"It's a disappointment," Sanford spokesman Joel Sawyer said. "This was a bridge too far."

Police can already get DNA samples from suspects if they show probable cause.

Hart said that shows authorities don't want to use the tools they already have. "We don't want to have to give a judge a reason why we want to collect the DNA of this person," Hart said.

Sanford and the American Civil Liberties Union have complained, too, that the legislation will leave DNA information in government databases when people aren't convicted.

While the new law allows the destruction of the information, people must ask for it, and could be forced to pay for it, Hart said. Meanwhile, the sample itself would be kept and there is no requirement to destroy DNA data kept in a federal database.

The post-conviction testing bill, on the other hand, provides a much-needed resource for the wrongfully convicted to prove their innocence, that has never been available in this state. Prosecutorial misconduct, Brady violations, perjured testimony by jailhouse snitches, and eyewitness identification errors happen everywhere, including in South Carolina, and are getting attention across the country due to DNA exonerations, which allow us to go back and ask, "what went wrong?" so that we can hopefully guard against the same mistakes in the future.

CNN ran a story today on DNA exonerations in Texas, and the faulty eyewitness identifications that caused many of the wrongful convictions. The story was first reported by the Dallas Morning News, and Grits has been following it as well.

Faulty eyewitness testimony that helped secure wrongful convictions in Dallas County, which leads the nation in DNA exonerations, sent the innocent to prison as police and prosecutors ignored safeguards and built cases with flimsy corroboration, according to a newspaper investigation.

Victims pressured to pick suspects, the use of suggestive lineup procedures and evidence withheld to preserve shaky identifications are former practices discovered by The Dallas Morning News in an eight-month review of previously closed Dallas County case files.

Faulty eyewitness identification procedures and Brady violations by the government (withholding key evidence that could be exculpatory) are the leading reasons for wrongful convictions. Despite great strides that have been made in eyewitness identification research, identifying the problems inherent in eyewitness ID procedures, many states' courts still cling to antiquated jury instructions and allow even admittedly tainted procedures into evidence.

Show ups are a common source of error, where the police will locate a suspect and bring him or her to the witness for identification. Usually police will have only a general description to begin with, such as race and clothing, and when they find a person wearing similar clothing and show the person to the victim or witness, the witness may be ID'ing the clothes as much as the face. Also, the witness is thinking, why would the police be showing me this person unless they thought they had the right guy?

Jurors believe a witness based on their certainty, and jury instructions often tell the jury to consider the witness' certainty when judging the witness' credibility. But consider, for example, a show up procedure. The police bring the suspect in handcuffs, and say this is the guy? If the witness identifies that person, the face that they will remember from that point forward is the suspect's face that was shown to them by the police (if the suspect is not the person who committed the crime, this is called memory source error).

Following the show up procedure, the police will often then conduct a line-up or a photographic array, where 6 photos are shown to the witness, one of which is the suspect. The witness identifies the suspect that was shown to them by the police during the initial encounter. Often the police will, intentionally or unintentionally, give positive feedback to the witness (good, you got the right one). Before trial, the witness is interviewed by the prosecutor, who will want the witness to testify that they are absolutely certain they picked the right guy. The witness is certain that they are identifying the correct person in court, when it began with only an identification of color of clothing.

Consider the typical 6 photo array that is shown to witnesses. The suspect's photo is placed into the array, with 5 fillers that should look like the suspect. Even if this is done correctly, with similar individuals with the same skin color, hair type, height, weight, etc., the witness is going to pick the individual who most resembles the person they remember seeing. The photo array is basically a multiple choice test, and "none of the above" is not an option (although some agencies do give the witness a form that says the suspect may not be in the group). Once the witness selects the photo that most resembles the perpetrator, then memory source error kicks in, that is the face that they remember, and they will later testify with absolute certainty that the suspect is in fact the person they saw commit the crime.

The better way to conduct a photo identification would be to show the witness a series of photos, one at a time, basically a series of true/false tests rather than a multiple choice test. Assuming that there was not a prior show-up identification, and that the officer conducting the test is not giving conscious or unconscious clues as to which photo the suspect is. The officer administering the line-up should not know who the suspect is, which prevents conscious or unconscious suggestion by the officer and prevents positive feedback following the identification, which results in inflated witness certainty.

Why are there so many exonerations in Texas, bringing attention to the problems in eyewitness identification? Because in Texas DNA evidence is preserved following trial, and inmates are allowed access to test that DNA. Prosecutorial misconduct, Brady violations, perjured testimony by jailhouse snitches, and eyewitness identification errors happen everywhere, including in South Carolina. But there is no system in place in S.C. for the wrongfully convicted to prove their innocence.

South Carolina has a bill pending that will provide for preservation of DNA evidence and provide access to DNA testing for inmates. Before passage the bill was combined with another provision that allows DNA samples to be taken from defendants who have been arrested but not convicted, and our governor vetoed the bill. In January, the legislature will have the chance to look at this bill again, override the governor's veto, or go back to square one with the two separate bills as it should have been to begin with. However it is done, the many exonerations in Texas and other states have proven the importance of having access to DNA evidence in post-conviction proceedings.

Related posts:
Sanford vetoes South Carolina DNA testing bill
DNA testing bill waiting for governor's signature
Texas 32, South Carolina 1
DNA testing bill update
Post-Conviction DNA Testing Procedures Act waiting for Senate approval in South Carolina

From A Public Defender - California has passed a bill that will

ban use of uncorroborated testimony from jailhouse informants that is used to convict criminal defendants.

The state Assembly on Tuesday approved a bill by Sen. Gloria Romero, a Los Angeles Democrat, that would prohibit use of the unsupported testimony. The Senate passed the measure in May.

Assemblyman Mark Leno, D-San Francisco, said jailhouse informants frequently have an incentive to lie. He said Romero's bill would help prevent wrongful convictions.

Testimony from jailhouse snitches, bought and paid for by the prosecution with freedom, can easily result in wrongful convictions. As I've said before, "Anytime the state needs to shore up their case, they can go down to the jail and round up some people that are willing to testify. In any high profile case, people with a) charges pending against them and b) information about the case, come out of the woodwork."

Uncorroborated testimony from individuals who are testifying in exchange for deals from the prosecutor should never be admissible in a criminal trial. Now, I wonder if California prosecutors will be able to avoid the new law by buying testimony from two or more snitches (which they often do anyway), thereby providing the necessary corroboration?

An article today in the Boston Globe titled How Magicians Control Your Mind discusses what we can learn about perception and the workings of the mind by looking at how magicians can short-circuit our perceptual system to make us see things that are not there or miss things that are there.

It is difficult to explain to a jury how a person can convincingly and confidently testify as to what they saw, and yet be wrong. The problems with eyewitness identification are far enough from the ordinary knowledge and experience of jurors that it requires an expert to adequately explain it. Scientific research has demonstrated that we do not always see what is actually there; rather we see some of what is there and our minds manufacture the rest, based on our prior experiences and what our mind expects to see. For example,

Daniel Simons, a psychologist at the University of Illinois, did a series of now-famous studies in the late 1990s that showed the extent of this cognitive blindness. In one, people were approached by someone asking them for directions, only to have, in the middle of the conversation, that person replaced by another. Only half noticed the change.

Magic may be a way to illustrate the inherent problems of eyewitness identifications in a way that jurors can understand. Everyone has seen a magician perform tricks that could not be explained, and wondered "how did he do that?" In the same way that an eyewitness may believe he saw the person that he expected to see, or the eyewitness may believe he saw that person that a detective has shown him after the incident, magicians use the gaps in human perception to make us see and believe things that were not there. For example,

The vanishing ball illusion is one of the most basic tricks a magician can learn: a ball is thrown repeatedly into the air and caught. Then, on the final throw, it disappears in midair. In fact, the magician has merely mimed the last throw, following the ball's imagined upward trajectory with his eyes while keeping it hidden in his hand.

Because the mind expects to see the ball rising in the air, and the magician's eye is following the trajectory of the ball, our mind sees a ball rising in the air. After the trick is done, we know that something is not right, because the ball has disappeared; however, when a person's mind similarly fills in the gaps in perception following an eyewitness event, the belief that a particular person or thing was seen is reinforced by law enforcement, a photo array, the subsequent appearance of the person seen in the photo in the courtroom (sitting at the defense table), and the witness then testifies convincingly in his belief that he saw what his mind tells him he saw.

Via Volokh.com: a federal district court in New York issued an opinion Monday in McKithen v. Brown, which held that there is a constitutional right, post conviction, to access evidence for DNA testing under certain circumstances:

The Petition Clause, however, secures a right of meaningful access to whatever avenues remain, and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of trial.

Prisoners have a right to petition the government by whatever means the legislature provides, in this case by petitioning the governor for clemency, and that right is protected by the Petition Clause. The Court does not answer the question of whether actual innocence is a freestanding ground for habeas relief.

If the right to petition the government is to have any meaning in this context, Due Process requires that there also be a right to post-conviction access to evidence for DNA testing, and the Court finds that:

[E]vidence of innocence that is of unimpeachable reliability is practically necessary if it “‘undermines confidence in the outcome of the trial,’” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).

South Carolina has been trying to get a law passed that would mandate the preservation of evidence and grant prisoners access to evidence for DNA testing. Under the N.Y. Court's analysis, even though the statutes authorizing access are not in place, prisoners should have a constitutional right to such access, at least where there also exists a right to petition the government, whether by clemency petition, habeas, or PCR.

Of course, if the evidence has been destroyed by the government, which currently is quite possible in South Carolina, a constitutional right to access the evidence is meaningless.

12 years after the crime occurred and after Patsy Ramsey's death from ovarian cancer, DNA evidence has exonerated the parents, clearing them of any suspicion. In a rare act of acknowledging their screw up, the DA's office apologized to the Ramseys, and:

The DA told the family: "We intend in the future to treat you as the victims of this crime, with the sympathy due you because of the horrific loss you suffered."

This story brings national attention to the forensic uses of DNA again - John Ramsey is urging the passage of laws that authorize the collection of DNA from arrestees who have not been convicted. The story also highlights the need for preservation of evidence and access to DNA evidence by inmates who have claims of innocence. South Carolina has legislation to accomplish both of these pending, which has been vetoed by the governor because the legislature tied both ideas into one bill.

The idea of collecting DNA from persons who have not been convicted of any crime is opposed by the governor as an unacceptable invasion of privacy. DNA, unlike fingerprints, contains genetic information that is extremely private and personal, that can be used for many purposes other than crime-fighting. On the other hand, the idea of mandating preservation of evidence and access to DNA testing for inmates should be a pretty basic concept of justice. Who can argue that we should keep innocent persons in prison, and who can argue, in the face of exonerations around the country, that there are not innocent persons in prison who can be identified by DNA evidence?

One lesson from this recent twist in the JonBenet Ramsey story is the difficulty of proving a negative - the parents could not prove that they did not murder the child. This is a problem in any criminal prosecution, and it is the reason that the burden of proof is always on the government. Imagine, you are interrogated because there is circumstantial evidence that you were involved in a murder last night. Maybe someone says they saw you there, maybe there was a motive for you to kill the person. You know that you were at home, alone, watching television or sleeping, but how can you prove it? You have no witnesses, no good alibi, and no real defense.

What would have happened if they had arrested, charged, and tried John and/or Patsy Ramsey? What if one of them had cracked while being interrogated? What if the investigator held them for hours incommunicado, and repeatedly assured them if they signed the confession they would not be in trouble, but if they did not they would fry? What if after they were placed under arrest a jail-house snitch appeared who swears that John Ramsey confessed in confidence while he was awaiting bail? A crack-pot wanting attention appeared as an eye-witness and the prosecutor found them to be credible for some reason? An officer lied about statements made by the couple?

If they had been arrested and charged, and any evidence was produced even if shaky, there would have been a real possibility that the jury would ignore the standard of proof and would have found them guilty. No-one wants to believe that police officers lie, or that a prosecutor doesn't know what he's talking about when he asks a jury to convict a person. And the facts of the crime were just horrible enough that no-one wants to take a chance on releasing the person who did it.

If that had happened, they would now, 12 years later, be asking for access to the DNA evidence, still trying to prove their innocence. If they were convicted in South Carolina, that evidence may well have been destroyed by now, and if it had not been destroyed, they would have no right to test it.

The DNA testing bill did pass the South Carolina Senate and House after all, but has not been signed yet by the governor. The bill in its final form has combined what was two separate bills, one allowing law enforcement to collect DNA samples from persons at the time of their arrest, and a bill which will require authorities to preserve evidence for 7 years or until a convicted person's prison sentence is complete and which will grant inmates access to DNA testing.

Sanford last year vetoed legislation requiring DNA testing when people are arrested. He called it an "overreach by government and an erosion of personal liberty."

Unlike fingerprinting, Sanford wrote, DNA "contains a great deal of sensitive personal information. DNA includes, for example, information about disease predisposition, physical attributes, ancestry and familial relationships."

He told legislators he favored taking DNA samples only after a person is convicted.

If Sanford vetoes the bill, it will not get an over-ride vote until January, when the legislature reconvenes.

A death row inmate whose case inspired Texas' sex offender registry laws is exonerated by DNA evidence. The real killer was identified by the DNA evidence, but it turns out he died 10 years ago without being prosecuted for the crime.

More and more tales of persons convicted of heinous crimes, including death row inmates, found to be actually innocent after long years sitting in prisons waiting to die, are coming out of Texas.

There have been 32 exonerations by DNA evidence in Texas, and 1 in South Carolina. That's right, 1.

Texas is known for its death penalty hijinks, but could this mean that South Carolina is more accurate in convicting people? Doubtful. What it means is that Texas has laws mandating preservation of evidence, and Texas has laws mandating access to DNA evidence for inmates who can make a claim of actual innocence. They have the ability to look back and discover when they were wrong, before they kill innocent people or allow them to live out their lives in prison.

South Carolina has no law requiring the preservation of evidence, and South Carolina has no law requiring inmate access to DNA evidence, even when the inmate can make a claim of actual innocence. A bill to allow South Carolina inmates access to DNA evidence failed to pass the Senate and House this year.

Possibly the ongoing hullabaloo in Texas over death row exonerations has motivated some South Carolina politicians to oppose DNA access laws. Here in South Carolina, we would rather kill defendants who are quite possibly innocent, or let them live out their lives in prison, before we risk admitting that police, prosecutors, judges and juries make mistakes.

And the fact that the Innocence Project is proving that these type of mistakes are made calls the death penalty itself into question. Politicians who believe in the death penalty may realize that allowing inmate access to DNA evidence and passing laws that mandate preservation of evidence might be the beginning of the end.

Mississippi has 1 exoneration, no DNA access law and no preservation of evidence law.

Alabama has 2 exonerations, no DNA access law and no preservation of evidence law.

Tennessee has one exoneration, no preservation of evidence law.

Illinois has 29 exonerations, and like Texas, has both DNA access laws and preservation of evidence laws.

Many of the other states that the Innocence Project has worked in fall in the middle of the continuum. There are smaller states with DNA access and evidence preservation but low numbers of exonerations, and there are doubtless different factors at work in each state. South Carolina's failure to pass laws that clearly would provide justice to defendants and victims alike, with full knowledge of their importance and real-life examples from states like Texas and Illinois, demonstrates where our priorities lie. We can do better.

Grits for Breakfast has been tirelessly following the story of Charles Hood, convicted of rape and murder, and whose defense attorneys have uncovered allegations that the prosecutor at Hood's trial and the judge at Hood's trial had sexual relations during his trial. It's like an episode of Boston Legal, except its not, Alan Shore did not get the inevitable not guilty, and they intend to execute Hood without allowing further investigation into the alleged misconduct or an evidentiary hearing.

According to the Houston Chronicle:

Retired Judge Verla Sue Holland and then-Collin County District Attorney Tom O'Connell have declined to address the allegations. The Texas Court of Criminal Appeals, the state's highest criminal court and where Holland was a judge in the mid-1990s, rejected Hood's efforts to appeal on the grounds of the alleged relationship, citing procedural reasons for the rejection but not addressing the merits of the accusations.

There should not be any doubt that an allegation of this nature calls the results of Hood's trial into question, and any standard of fairness should dictate that a new trial is necessary. I hope that Grits and the media out there continue their efforts to bring this mess into the light of day and keep it there.

The Palladium case illustrates how wrongful convictions can and do happen. In this video from Dateline NBC, one of the investigators that helped to uncover evidence leading to the exonerations of Olmedo Hidalgo and David Lemus speaks out about the investigation. He notes that if the defense had been given all of the information that they had at the time of the trial, the outcome would have been different. The district attorney ignored evidence, and the defense did not put on any witnesses during their case.

On the video, the forelady of the jury that convicted them speaks about the trial and the verdict, and how when they read the verdict she heard a woman seated behind the defense table "scream in such torment and agony and surprise that I thought, oh my god, somebody actually thinks they're innocent. And then I thought, that has to be somebody's mother; it sounded like a woman who had just been told her son had died."

One defendant's mother talks about how she thought her son should cop a plea, because if he was found guilty by a jury, he would get life in prison, but if he copped a plea, the most he would do was eight years.

Particularly in murder cases, there is a lot of pressure on law enforcement to solve the case, and make an arrest. When they make an arrest, sometimes it is the "most likely suspect," and may be based only on statements from other defendants looking for plea deals. Once an arrest is made, there is a lot of pressure on the prosecutor to get a conviction. The danger is when a prosecutor stands in front of a jury and says to them, this man is guilty, many people want to believe the prosecutor despite the shaky evidence. Here is a person who looks honest and straightforward, he or she is a representative of the government (we all trust the government, don't we?), and this prosecutor would not be telling us to convict this man unless it is true that this man is guilty.

The jury is afraid that if they find reasonable doubt and find an accused murderer not guilty, the defendant may go out and kill another person. The jury may not understand fully what the standard of reasonable doubt means and how central it is to our justice system, and the defense may or may not explain it fully to them. If the Defendant does not testify, the jury will hold it against him, no matter how many times the judge instructs them not to. If the defense does not put on any witnesses at all, it seems damning to the jury.

The jury will not know if there is evidence that the defense could have presented to them, if the prosecutor never turns it over to the defense. Some prosecutors have their own opinion of what constitutes Brady material, and either have not read Brady and Kyles v. Whitley or do not care. Many prosecutors do not understand or do not care that they have a duty under Kyles v. Whitley to seek out Brady material that is in the possession of any government agency, and instead they say to the defense and to the Court, "you have everything that is in my file." There are times when the investigator buries Brady material without the prosecutor's knowledge, and there are times when Brady material simply falls through the cracks due to negligence or shoddy investigations.

I believe that the prosecutor has a duty to not go forward with a case not only if he firmly believes in the defendant's innocence, but if the prosecutor knows that there is real doubt as to the defendant's guilt. Prosecutors know the real danger that a jury will blindly trust a prosecutor despite the existence of reasonable doubt, and in some cases, simply stating to the jury "he is guilty," can result in a miscarriage of justice.

The time to prevent wrongful convictions is before the jury returns their verdict. We rely on ethical prosecutors to prevent wrongful convictions, and when that fails we rely on conscientious judges to prevent wrongful convictions, but there are times when the only thing standing between a defendant and a terrible injustice is the jury, and the defense attorney's ability to present his client's case to the jury.

After two men were convicted by a jury of a 1990 murder at the Palladium nightclub in New York, new evidence continued to turn up that demonstrated that the men were innocent, including one of the actual shooters coming forward. Prosecutor Daniel Bibb was assigned to re-investigate the case, and over the course of 2 years Bibb, along with investigators, interviewed witnesses and uncovered more evidence of the two mens' innocence.

Bibb told his supervisors that he believed the men were innocent and that the convictions should be dropped, and yet he was ordered to defend the case anyway at a 2005 hearing. Bibb lost the 2005 hearing and in 2006 he left the prosecutor's office. This year he admitted that he threw the hearing on purpose, and that he assisted the defense attorneys in the case.

Bibb tracked down hard to find witnesses for the defense, helped prepare their testimony, and helped the defense with their strategy. “I did the best I could,” he said. “To lose.”

This revelation is an exercise in legal ethics - was Bibb right or wrong and what should he have done? Some say he violated a duty to his client (the state of New York?) by not vigorously presenting his case. But, does the government have an interest in obtaining or preserving wrongful convictions? It sounds like he disobeyed the orders of his superiors at the district attorney's office, but he honored his duty to his client, the state of New York, by not allowing the District Attorney to keep innocent men in jail. My only question is should he have done more. Should he have gone public with the information, and resigned in 2005 if the District Attorney did not take the initiative to throw out the convictions?

It is easy to play armchair quarterback. I don't believe Bibb committed any ethical violation, and what he did do was commendable. Prosecutors have a duty to seek justice, not convictions. Sometimes that means dismissing a case where there is insufficient evidence, and sometimes it means admitting that they were wrong.

Ed Lavendera at CNN tells the story of James Woodard, who was wrongfully convicted in Dallas, Texas, and served 27 years in prison before DNA cleared him of the crime.

Woodard was convicted of raping and murdering his girlfriend in 1981 and sentenced to life in prison. At his trial, the jury believed that he was the last person seen with the victim. The prosecutors knew that two other men had been seen with her, but they never followed up on the lead and they never told the defense attorneys. After losing 27 years of his life, Woodard is finally freed after DNA evidence was tested, exonerating him.

Prosecutors enjoy absolute immunity from 1983 liability for their actions during the course of a prosecution, and they are rarely prosecuted. Dallas County District Attorney Craig Watkins says that unethical prosecutors who commit Brady violations should be criminally liable:

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Although it will never happen, I believe a prosecutor should be held criminally liable for intentional conduct such as a Brady violation that could result in an innocent person going to prison. I also believe that the rule of absolute immunity as applied to intentional conduct should be reconsidered. In Imbler v. Pachtman, the U.S. Supreme Court held that the prosecutor was not civilly liable under Section 1983 for violating a defendant's constitutional rights during a prosecution. In Pachtman, the prosecutor knowingly used false testimony and suppressed evidence to obtain a conviction and a sentence of death.

Craig Watkins is suggesting criminal liability for intentional Brady violations, and I agree, but there are other crimes that are being committed by these prosecutors as well. The prosecutor in Pachtman committed subornation of perjury and attempted murder with impunity.

The argument against liability for even intentional acts is that it would have a chilling effect on prosecutions. Attorneys wouldn't even want to work as prosecutors, for fear of liability. I don't believe that for a minute. That is like saying making rape a crime will have a chilling effect on sex. People won't want to have sex anymore. It is only intentional bad conduct that we are talking about here.

Bite mark "evidence" has sent numerous innocent persons to prison, and even death row. It has been debunked over and over as junk science, persons convicted by it have later been exonerated, and yet it is still advocated by some. Researchers at Marquette University are building a "bite-mark database" that would be similar to DNA databases, and their intent is to use the database to identify crime suspects.

Bite mark evidence has been used to successfully obtain convictions in many cases. One high-profile example is Ted Bundy. The bite marks analyzed from the body of a victim at the Chi Omega Sorority House in Florida helped to convict him, but they were used in conjunction with other evidence.

When bite mark evidence is used as the primary evidence in a prosecution, wrongful convictions can result. The jury is usually impressed with the scientific nature of the evidence, and can rely heavily on the bite mark impressions to justify a guilty verdict. One example among many is Roy Brown, who was convicted of murder in New York, based on testimony by a dentist, and served 15 years in prison before DNA evidence proved his innocence.

The Innocence Project reports that only three studies have been done that examine the reliability of bite mark analysis, and one of those showed an error rate as high as 91%. The Innocence Project identifies additional cases where persons convicted with bite mark evidence were later proven to be innocent by DNA, including James O'Donnell in New York, Calvin Washington in Texas (sentenced to life in prison), Ray Krone in Arizona (sentenced to death), Willie Jackson in Louisiana, and Dan Young in Illinois.

A "bite mark database" may sound like a wonderful idea to some prosecutors, and it might make a few bucks for the researchers compiling it, but it will also almost certainly result in the conviction of innocent persons.

A bill is floating around in the state legislature would permit South Carolina to take DNA samples from anyone charged with a felony punishable by at least five years. The DNA sample would be taken when the person is arrested, even though the person has not been convicted of any crime.

I don't ordinarily agree with Governor Mark Sanford, but last year Sanford vetoed the same bill, saying that taking such personal information without a court order violates their civil liberties. Forcing persons who have not even been convicted of a crime to provide a DNA sample is outrageous, and it is just the most recent of many steps down the slippery slope towards a police state. The next step will be requiring every person to submit a DNA sample to law enforcement, perhaps at birth.

Programs such as this are more and more common throughout the country. Ryan Singel at Wired.com wrote yesterday that the federal government is now permitted under an amendment to the Violence Against Women Act of 2005 to collect DNA samples from any citizen arrested (but not convicted) for any crime, and from any non-citizen detained by federal agents. He reports that the feds will be collecting about one million DNA samples a year under this new program, and how the sheer size of the database that the feds are putting together makes for a real possibility that more innocent persons will be accused of crimes based on faulty DNA matches.

I understand the desire for bigger and better law enforcement, and the need to catch the bad guy. But our rights to be free from unreasonable invasion of privacy under the South Carolina Constitution and to freedom from unreasonable search seizure under the United States Constitution and the S.C. Constitution are just as important. We do not have to sacrifice one in favor of the other.

The United States Supreme Court will decide Goldstein v. Van de Kamp, et. al., to determine whether top officials in a prosecutor's office can be sued for damages for failing to supervise/ failing to put into place policies to ensure that Brady materials are provided to defense counsel.

Thomas Lee Goldstein spent 24 years in prison after he was wrongfully convicted for a murder in Long Beach, California. Goldstein was convicted in large part based on the testimony of a jailhouse informant who also testified that he received no benefits in exchange for his testimony and that he had never received benefits in exchange for work done for law enforcement.

The Defense was not told that the informant had in fact been working as an informant for years and had received reduced sentences more than once. In 2004, after the information finally came to light, Goldstein was released after the 9th Circuit affirmed his habeas petition.

Among others, Goldstein sued the Los Angeles County District Attorney and his Chief Deputy, the head honchos at the DA's office when Goldstein was prosecuted, in a federal section 1983 action, for failing to develop policies and procedures and failing to train the subordinate district attorneys in the office as to the requirements of Brady v. Maryland and Giglio v. United States. The District Attorney claimed that he was entitled to absolute immunity from liability, but the 9th Circuit Court of Appeals disagreed.

Continue reading "USSCT will hear prosecutorial immunity case" »

The DNA testing bill has passed the Senate, but must still be approved by the House.

From myrtle beach online:

DNA TESTING: The Senate has passed a bill to allow inmates to request DNA tests to prove their innocence. The bill heading to the House lets anyone convicted of a violent crime ask to have evidence tested for DNA. Inmates who intentionally file false applications would be held in contempt of court and lose good-conduct credit. The state Probation and Parole Department could also use that information in deciding parole.

The Post-Conviction DNA Testing Procedure Act would allow access to evidence and the right to apply for DNA testing in certain cases. Laws such as this, that are already in effect in all but six other states, are essential for providing a final avenue of relief for persons who have been wrongfully convicted.

A Washington Post article highlights some of the emerging uses of DNA as a law enforcement tool. During the investigation of the recent highly publicized BTK (bind torture kill) case, the police had a suspect and needed a DNA sample, so they obtained DNA from Dennis Rader's daughter's five-year old pap-smear on her university campus. The DNA matched, tying Rader to the case. The analysis of DNA taken from relatives is only one example of the new frontiers being explored in the use of DNA as a law enforcement tool.

In S.C., DNA is collected from persons who are convicted of crimes, and persons who are on probation are required to submit DNA samples as well. Probationers are required to pay a fee to have a DNA sample taken from them. There is a growing cry to require all persons who are arrested to submit a DNA sample, regardless of whether they are convicted of anything. I imagine by the time my son, who is 18 months old, begins elementary school, they will be requiring him to submit a DNA sample and fingerprints before he enrolls in classes.

While many are cheering the increased collection of DNA samples from the masses to assist in finding and punishing suspected criminals, there is still resistance to the flip side of this coin, the use of DNA to find and free the wrongfully convicted. It is a fact that people are wrongfully convicted in our system. Innocent persons are convicted after trials and, believe it or not, innocent persons are pressured to plead guilty by their own defense attorneys. To date, The Innocence Project has been instrumental in the exonerations of 216 wrongfully convicted persons through DNA testing.

Continue reading "Post-Conviction DNA Testing Procedures Act waiting for Senate approval in South Carolina" »