Tuesday, 19 May 2009

Another View: Let plaintiffs sue for prosecutorial abuse

The U.S. Supreme Court's decision to hear an appeal of an Iowa case means that two men who were wrongly convicted of murder 31 years ago may wait at least another year before their civil suit against their prosecutors could be heard. That's the optimistic view.

A less optimistic view is that Terry Harrington and Curtis McGee may never have the opportunity to make their case in civil court that former Pottawattamie County prosecutors allegedly conspired to convict them of a murder they did not commit.

The nine members of the Supreme Court who will ultimately rule in this case are the only ones who know for sure which way this case is headed. If the court wanted to uphold the lower-court decision that had cleared the civil suit to proceed, it could have simply declined to hear this appeal and gotten out of the road.

Accepting the case suggests at least some of the justices think prosecutors should be totally immune from lawsuits, which goes too far. While prosecutors need some protection to do their jobs, the door should not be entirely closed against using the civil-justice system to explore the truth of claims of outrageous prosecutorial abuse.

That is precisely what the two plaintiffs in the Pottawattamie case assert happened. Harrington and McGee, two black teenagers from Omaha, were convicted in 1978 by a Pottawattamie County jury in the shooting death of a retired Council Bluffs police captain who was working as a night watchman. Both insist to this day they were, and are, innocent.

In their civil suit, Harrington and McGee say their first-degree murder convictions — which were overturned by the Iowa Supreme Court 25 years later — were the result of the worst sort of prosecutorial misconduct. Their suit brought in federal court in Des Moines alleges that former Pottawattamie County Attorney David Richter and his then-deputy Joseph Hrvol not only manufactured evidence against them but concealed evidence of a stronger suspect.

State and federal prosecutors in the course of executing their official duties generally enjoy immunity from suits under state laws and judicial decisions. Robert Pratt, chief judge of the Southern District of Iowa, ruled that the doctrine of prosecutorial immunity does not protect prosecutors for misconduct that carries over to the trial from the evidence-gathering phase. The Eighth Circuit U.S. Court of Appeals, based in St. Louis, Mo., upheld Pratt on that point, but other circuit courts have taken a different view. Because there is disagreement among the lower federal appellate courts on this point, the U.S. Supreme Court is now poised to settle the issue.

There is a case to be made that the public has an interest in protecting prosecutors from having to defend themselves every time a criminal prosecution goes wrong. But does that mean a criminal defendant can never bring a lawsuit against prosecutors responsible for outrageous conduct? Does the Constitution have nothing to say about prosecutors who conspire to convict the innocent?

In an age when convicted murderers are being released from death row based on new DNA evidence and when prior criminal convictions are being overturned because of clear prosecutorial misconduct — the most recent being that of former Alaska Sen. Ted Stevens — it's time for the courts to reconsider a rule that gives total protection to prosecutors who abuse their powers.

(Source : www.statesmanjournal.com)

Tennessee: Exoneration After 22 Years on Death Row

Prosecutors dropped charges against a former Tennessee inmate who spent 22 years on death row before new evidence cast doubt on his guilt. The district attorney said DNA tests presented “a reasonable doubt” about whether the former inmate, Paul House, 48, acted alone in the murder of a woman near Knoxville in 1985. “This is the day we’ve been waiting for 24 years,” said Joyce House, his mother. “The tears have been flowing, and I’ve been dancing.” In 2006, the United States Supreme Court ruled that Mr. House was entitled to a new trial. He was released from prison in July and placed on house arrest. DNA from key evidence, including semen on the victim’s clothing and blood beneath her fingernails, does not match Mr. House. Prosecutors said in a petition that they still suspected Mr. House of murder, possibly with accomplices, but a judge accepted their request to drop the charges.

(Source : www.nytimes.com)

Monday, 18 May 2009

Prosecutors Block Access to DNA Testing for Inmates


In an age of advanced forensic science, the first step toward ending Kenneth Reed’s prolonged series of legal appeals should be simple and quick: a DNA test, for which he has offered to pay, on evidence from the 1991 rape of which he was convicted.

Louisiana, where Mr. Reed is in prison, is one of 46 states that have passed laws to enable inmates like him to get such a test. But in many jurisdictions, prosecutors are using new arguments to get around the intent of those laws, particularly in cases with multiple defendants, when it is not clear how many DNA profiles will be found in a sample.

The laws were enacted after DNA evidence exonerated a first wave of prisoners in the early 1990s, when law enforcement authorities strongly resisted reopening old cases. Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted.

Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.

In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were “statistically insignificant.”

In the case of Robert Conway, a mentally incapacitated man convicted of stabbing a shopkeeper to death in 1986 in Pennsylvania, prosecutors have objected that DNA tests on evidence from the scene would not be enough to prove his innocence.

And in Tennessee, prosecutors withdrew their consent to DNA testing for Rudolph Powers, convicted of a 1980 rape, because the victim had an unidentified consensual sex partner shortly before the attack.

Such arguments, defense lawyers say, often ignore scientific advances like the ability to identify multiple DNA profiles in a single sample.

Defense lawyers also say the arguments ignore the proven power of DNA to refute almost every other type of evidence.

In a case before the Pennsylvania Supreme Court, for example, Lynne Abraham, the Philadelphia district attorney, argued that the defendant, Anthony Wright, was not entitled to DNA testing because of the overwhelming evidence presented at trial, including his confession, four witnesses and clothing stained with the victims’ blood that the police said was found at Mr. Wright’s home. The Pennsylvania DNA statute requires the courts to determine if there is a “reasonable possibility” that the test would prove innocence.

Prosecutors say they are concerned that convicts will seek DNA testing as a delay tactic or a fishing expedition, and that allowing DNA tests undermines hard-won jury verdicts and opens the floodgates to overwhelming requests.

“It’s definitely a matter of drawing the line somewhere,” said Peter Carr, the assistant district attorney who handled the case of Mr. Wright, who was accused of raping and killing a 77-year-old woman. The defendant did not request testing until 2005, three years after the statute was passed, Mr. Carr said, and in his view there was no possibility that the test would show innocence.

“There’s also the idea that you want finality for the victim’s sake,” Mr. Carr said. “If someone else’s semen was found at the crime scene, we’d have to talk to the victim’s family about whether the victim was sexually active.”

Barry Scheck, a co-founder of the Innocence Project, a New York legal advocacy group that uses DNA to help the wrongfully convicted, said that most prosecutors no longer resisted testing in cases like Mr. Wright’s, where there is one perpetrator. More obstacles arise, Mr. Scheck said, in cases with multiple defendants or cases where a test result might point to another suspect, even if it does not clearly prove the innocence of the defendant.

In one such case near Austin, Tex., a defendant who was convicted in the bludgeoning death of his wife requested a DNA test on a bloody bandanna found 100 feet from the house. On its own, a test of the bandanna would not prove the guilt or innocence of the defendant the same way testing semen in a rape case might. But if it matched DNA found at the scene of a similar crime in the same county, or DNA in a database of convicted felons, it would be significant evidence that someone else might be responsible — the kind of evidence that might plant a reasonable doubt in a juror’s mind or lead to a confession by a perpetrator.

Although such matches have been found in many cases, most state DNA statutes focus only on whether a test alone could prove innocence. The purpose of Tennessee’s DNA statute, a court there said, was “to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant.”

Law enforcement officials often say, “ ‘We’re not going to consider the possibility that a third party did it,’ ” Mr. Scheck said, adding, “which is completely crazy because you use the databank every day to make new criminal cases.”

In Mr. Reed’s case in East Baton Rouge Parish, the district attorney who first prosecuted the case and now his successor, Hillar C. Moore III, have appealed every DNA-related ruling in Mr. Reed’s favor and objected to even a hearing on the matter.

They have argued that Mr. Reed’s identity was not an issue in the trial because he was identified by the defendant, even though DNA evidence has repeatedly contradicted eyewitness identifications. They have argued that there was no way of knowing whether the evidence would yield a usable DNA profile — a question that would be settled by testing it.

The victim testified that two attackers had sexual intercourse with her, but the prosecutors now argue that it might have been only one, Mr. Reed’s accomplice. Even if Mr. Reed’s DNA was nowhere to be found, said Prem Burns, the first assistant district attorney, he would still be guilty of aiding the rapist.

Mr. Reed’s lawyers have argued that a test on a rape kit and semen could prove his innocence if it shows two distinct profiles and neither is a match.

But Ms. Burns said that under her reading of the law, the mere possibility that the test would show two profiles is not enough — Mr. Reed has to demonstrate, in advance, that a favorable test result would resolve his innocence without question.

But the prosecutors also seem to believe that Mr. Reed’s arguments are far-fetched. “There are simply too many ‘ifs’ in this case,” Mr. Moore wrote in a recent appeal.

Prosecutors said much the same when Douglas Warney, convicted of murder in Rochester in 1997, argued that a DNA test could lead to the real killer. They called his assertion “a drawn-out kind of sequence of if, if, if.” Yet that is exactly what happened after Mr. Warney’s DNA test, and the killer, when he was identified, confessed.

Nina Morrison, a lawyer for Mr. Wright, said: “The one thing I’ve learned in doing this for seven years is there’s no reason to guess or speculate. You can just do the test.

Torture and False Confessions

Much of the media storm around torture these days focuses on the moral compromise the U.S. made under the Bush administration to break international codes of conduct and on whether good intelligence came from these brutal interrogations. I think the problem is even worse than a dearth of good intelligence. Torture produces bad, incorrect intelligence, and criminal cases in the U.S. are irrefutable evidence of this.

Yesterday, the U.S. Senate Judiciary Committee heard from a former FBI agent that harsh interrogations techniques used on suspected al-Qaeda operative Abu Zubaydah were "ineffective, slow and unreliable, and as a result harmful to our efforts to defeat al- Qaeda." Back in January we learned that much of the information in the 9/11 Commission Report came from confessions obtained using "enhanced interrogation techniques." Center on Constitutional Rights told NBC that he was shocked the commission hadn't asked about the techniques used to obtain crucial information.

Ratner argues "if they suspected there was torture, they should have realized that as a matter of law, evidence derived from torture is not reliable, in part because of the possibility of false confession…at the very least, they should have added caveats to all those references."

DNA testing has shown again and again in criminal cases that false confessions are real, and there's no doubt in my mind that torture leads to false information as well. As I've mentioned before, I work at the Innocence Project when I'm not blogging here at change.org, and many of our cases have shown the power of emotional and physical abuse from law enforcement officers to force someone to admit to something they didn't do. About 25% of wrongful convictions overturned by DNA testing have involved a false confession or admission. If one-quarter of information gleaned from torture was false – leading to wrongful arrests and convictions and to costly goose chases – would Dick Cheney still say it was worth it?

News reports have shown that top Bush officials repeatedly ordered agents to torture captives in an attempt to tie al-Qaeda to Iraq. If you torture someone long enough, you can get them to say anything.
Jeff Deskovic was 16 years old when he was interrogated for a murder in his small upstate New York town. Despite DNA evidence before his trial that another man committed the crime, police believed Jeff was involved and set out to prove it through a harsh interrogation. Jeff was asked again and again if he did it, and how he did it. After six hours, three polygraphs and no food, Deskovic was in the fetal position under a table ready to admit to anything. He said he committed the crime, and he spent 16 years in prison before the same DNA evidence pointed to the real perpetrator.

On Monday, a California court ruled that fake polygraphs are admissible evidence in court proceedings, virtually ensuring that there will be more Jeff Deskovics. Also this week, former Chicago Detective Jon Burge testified in a hearing in Florida about his alleged involvement in the torture of a suspect who was later wrongfully convicted. He is facing charges relating to the abuses that allegedly went on under his watch over more than a decade on Chicago's South Side - including the use of beatings, electrocutions and other forms of torture to extract confessions. We now know that many of those confessions were false.

The solution to preventing wrongful convictions - once we pass the common-sense hurdle of not allowing ridiculously unjust tactics like false polygraphs - is to videotape all custodial interrogations. Interrogation techniques used by police will be in plain sight before judges, juries, prosecutors and defense attorneys, and the tapes will be valuable in helping investigators solve crimes and train new officers. Torture by police will become far less commonplace, and false confessions will go the same way.

The torture of suspected terrorists isn't only earning us the moral disdain of much of the world, it's also gathering piles of false information and possibly contributing to the detention and conviction of innocent people. Perhaps we need to think about recording interrogations at our secret prisons abroad as well.

Texas House OKs wrongful conviction bill

By JEFF CARLTON Associated Press Writer © 2009 The Associated Press
May 14, 2009, 4:04PM

DALLAS — With the help of DNA testing, Texas has freed more wrongly convicted people than any other state. Soon it will compensate them better than any other state, too.
The Texas House has agreed with changes made in the Senate on a bill to boost payments to the wrongly convicted, voting 132-13 for the measure Thursday. It now heads to Gov. Rick Perry.

The governor is expected to sign the legislation, which is named for Tim Cole, a Fort Worth man who died in prison in 1999 while serving time for a rape that DNA testing later showed he did not commit. Last month in Austin, Perry met with Cole's family and was photographed hugging Cole's sobbing mother.

The bill increases lump sum payments from $50,000 to $80,000 for every year of confinement and grants an annuity to provide a lifetime of income. Exonerees will get 120 hours of paid tuition at a career center or public college. Senators removed a provision to provide health insurance coverage for exonerees.

It also provides an additional $25,000 for each year a wrongly convicted person spends on parole or as a registered sex offender. No other state has such a provision, said Barry Scheck, the co-director of The Innocence Project, a New York-based legal center specializing in overturning wrongly convictions.

The bill would give the wrongly convicted in Texas the most generous compensation package in the nation.

"It is a landmark bill," Scheck said. "For a fixed damage award, it's the highest in the country."

Cory Session, Cole's brother, said his brother died "a martyr for innocence." The likely passage of the bill, he said, makes "you walk a little taller and stick out your chest out a little farther."

"Almost 25 years ago, the only thing people knew about Tim Cole's name was he was a convicted rapist," Session said. "Now they know his name stands for a lot more."
The compensation applies only to wrongly convicted people who were actually innocent. Those whose convictions are reversed on technicalities such as insufficient evidence would not be eligible. Also ineligible would be exonerees who are subsequently convicted of felonies.
By accepting state compensation, the wrongly convicted must agree not to sue the state, a factor in attracting support from municipalities such as Dallas, where many of the wrongly convicted are from. There are 39 people in Texas who qualify for compensation, said Kevin Glasheen, a Lubbock attorney who represents some of the exonerees and led the lobbying efforts for the bill. Nineteen are from Dallas.

"The fact that Texas did have such a problem also means these guys had comparatively good claims," Glasheen said. "It is a local government cost-saving measure, ultimately.

"It's a good trade off. It gives guys a quick, fair way of resolving claims without having to go through lengthy court battles."