Law review: Texas executed wrong Carlos based on biasing eyewitness procedures

A new e-book published by a law journal argues that Texas probably executed an innocent man in 1989, and predictably the potential cause was reliance on a single, shaky eyewitness to obtain a conviction after police allegedly picked up the wrong "Carlos." According to the Houston Chronicle:

Accounts of the crime, the investigation and DeLuna's prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

A retired Corpus Christi police detective said confidential informants told him at the time they'd arrested the wrong "Carlos" for the crime, but after the eyewitness picked out DeLuna he dropped the issue because it was somebody else's case.

The Chronicle pointed out that new procedures Texas law-enforcement agencies must have in place by September 1 may mitigate such questionable IDs going forward, which is true at least to the extent departments adopt best practices enshrined in the recently developed model policy or something close to it:

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

The Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State which developed the model policy is currently doing train the trainer seminars to help departments prepare for the transition.

One of the LEMIT policy provisions would require departments to record eyewitness identification sessions using either video or audio, or else record the reason why that couldn't be done. And the model policy instructs officers not to share information about the suspect with a witness that might bias their memory, as was done here. Those procedures certainly may have made a difference in DeLuna's case. It's doubtful even a Texas jury in 1983 would have been so bloodhirsty as to send a man to execution based on a witness who was "50 percent certain." Indeed, without having read the massive document, on the surface there seem to be (at least) two issues here: The failure of identification procedures and a possible Brady violation if prosecutors failed to inform the defense of the witness' waffling.

In the Bible, Moses, Jesus and the Apostle Paul all iterated that at least "two or three witnesses" were necessary to accuse someone under biblical law. DeLuna's example shows why that cautionary provision is probably still a good idea. Particularly when identifying strangers, eyewitnesses can be notoriously unreliable.

DeLuna joins a notable list of "probably nots" on Texas' executed list, notes the Chronicle: "Innocence Project co-director Barry Scheck hailed the journal article as a 'terrific job,' saying that the DeLuna case will join those of Cameron Willingham, Claude Jones and Ruben Cantu in forming a stern indictment of the Texas death penalty." Grits does not share Scheck's sanguine belief that demonstrating an innocent person has been executed would result in death-penalty abolition. Grimly, the public is willing to live with a few mistakes, but the list of potential, even probable errors is growing.

Travis DA race: Should we learn lessons from false convictions, or even acknowledge them?

There are many reasons to be cynical about modern elections, but one functional benefit they provide - at least in seriously contested races - is to force incumbents to defend their practices, raise up alternative approaches, and generally provide an opportunity for public debate about the minutiae of a job that normally is never the subject of media coverage nor even public conversation. In that vein, the Austin Chronicle has an interesting back-and-forth interview/comparison with Travis County DA candidates, incumbent Rosemary Lehmberg and challenger former Court of Criminal Appeals and District Judge Charlie Baird. (See the Chron's earlier coverage of the race.) The first item on the Chron's list is of issues "Wrongful Convictions," and here I immediately fall out with the incumbent DA, who announces that:

We actually had three that were brought to us, and we did DNA testing, and two proved to be wrongful identifications and one confirmed guilt. And there wasn't much publicity about the one that was confirmed, because it was just confirmed. ... But it was after the two mistaken identification deals ... that we began looking at, eventually, 400 old cases on our own to determine whether biological evidence was present that could be tested but wasn't. And we did not find any exonerations. We retested about six cases and did not find any exonerations.

Baird argues that the department has not taken the lessons from wrongful convictions to heart:

She says there have been three DNA cases, and that two of them were exonerations. I don't know what changes they made as a result of that. ... When there is a plane crash, everybody stops and they go out there and they figure out why did this plane crash, and let's make sure it never happens again. It seems like to me that they don't do that in the criminal justice system. They don't say, "Well, my God, why did this happen in Morton?" Or Ochoa and Danziger?

While I agree with the need to re-evaluate internal practices when false convictions occur, to me Lehmberg's response raises an even more troubling concern. As is often the case when interpreting political rhetoric, perhaps more important than the incumbent's actual statement is what she left unsaid. The DA doesn't say which cases she's talking about and Grits can't tell from the context. She said the exonerated two were based on false eyewitness IDs, for example, so that wouldn't include Christopher Ochoa and Richard Danziger. So she seems to be downplaying and understating her office's problem with false convictions.

In addition, she's seemingly not including the Yogurt Shop defendants among the exonerated. There, DNA evidence obliterated the state's theory of the crime, causing the convictions to be overturned and the defendants to be released. If Lehmberg is not including those defendants in the totals, that means she's clinging to the preposterous unindicted co-ejaculator theory involving some mysterious fifth perpetrator unforeseen by the prosecution's theory nor referenced during the lengthy interrogations that led to the overturned confessions. (Perhaps she's only including cases that came to the office while she was sitting as DA, but she was First Assistant for a dozen years before that and a key decisionmaker on the appeals and writs in question.)

So my concern is less that the office hasn't learned any lessons from the two cases that they grant resulted in false convictions, but more that she seems to remain in denial over false convictions in the Yogurt Shop and Pizza Hut murder prosecutions that gives me pause about her re-election.

Baird, by contrast, has consistently been on the cutting edge of the notion that false convictions could be rooted out while still ensuring the guilty are convicted, standing up as a leader on the issue as far back as the late 1990s both while serving on the Court of Criminal Appeals and afterward, leading Grits to recently call him "virtually the father of Texas DNA exonerations" for his role in the Roy Criner case.

Lehmberg's somewhat blindered, bunker mentality IMO doesn't stem from some nefarious desire to falsely convict anyone but from the tunnel vision that comes frpm working as a prosecutor in the same office for nearly forty years (which is how long she'll have been there when this contested next term ends). My sense is Charlie Baird will be more willing to try new things and move more aggressively to improve processes when errors happen, if only because he'll have no personal, institutional stakes in defending the status quo, a reflex which from time to time seems to stymie the incumbent.

This is one of several issues that to me clearly delineates the candidates and makes me come down on the side of Judge Baird. Every politician has flaws and like Craig Watkins in Dallas, I won't agree with him on every issue. But Judge Baird would enter the job unfettered by decades of institutional baggage that IMO  limits the incumbent's vision, not to mention possessing a more profound appreciation for the implications of DNA exonerations for the prosecutorial profession. I don't know if Democratic primary voters will understand that distinction, but to me it's an important one.

Old foes haven't changed stripes: Keller v. Baird 12 years after Roy Criner's pardon

With Texas Court of Criminal Appeals Judge Sharon Keller facing the only contested general election race among her colleagues (she faces Democrat Keith Hampton in a sleepy but potentially significant contest), and former CCA and District Judge Charlie Baird running as a Democratic challenger for Travis County District Attorney (against incumbent Rosemary Lehmberg), Grits was interested to run across this pair of old interviews of the two former colleagues with PBS Frontline regarding the Roy Criner case, which was essentially Texas' first DNA exoneration, though he was freed by executive pardon rather than the courts. Here's what the two judges had to say about the case back then.

• Charlie Baird
• Sharon Keller

Criner's liberation opened the door for the dozens of DNA exonerations the state has witnessed since, but because Governor Bush pardoned Criner, the case didn't change much about the court's jurisprudence. Sharon Keller won the debate on the court, even if she lost it in the court of public opinion. She convinced a majority of CCA judges to side with her against Charlie Baird, but the following year the Legislature created the state's DNA testing statute in rebuke (Ch. 64 of the Code of Criminal Procedure). When the courts upheld prosecutorial objections to DNA testing, the Legislature came back in 2011, at the recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions and removed most grounds for opposing testing when the evidence could be probative.

What stands out most to me looking at these interviews more than a decade hence is how little Judge Keller has changed her views on innocence and post-conviction writs, and what a tremendous influence her thinking has had on the court. Criner's pardon didn't change the court's ruling, and Judge Keller's arguments back then against exonerating Criner based on DNA were essentially similar to the arguments a more recent 5-4 majority used to keep from granting habeas writs when a conviction was based on junk science. Judge Keller told Frontline:

This DNA test gives negative, not positive, evidence. It would not have made a difference in the jury's verdict. . . Nobody knows for sure. But no state ever says, "I'm not sure. Let's just give him a new trial." Before trial, it's up to the state to prove that he's guilty. Now, it's up to him to prove that he's innocent. That's his burden under the law: Has he unquestionably established that he's innocent?

This is the same argument as in Ex Parte Robbins, where a 5-4 majority including Keller declared that testimony by a medical examiner had "not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony had presented wrong conclusions unsupported by science to the jury. The district judge had recommended granting a habeas writ, finding that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

But using the same logic as they did to deny Roy Criner, Keller and Co.denied habeas relief even in the face of a complete lack of inculpatory evidence. The court's own precedents say a conviction may only be overturned if "no reasonable juror" would support it after considering the new evidence. In Robbins' case, the recanted testimony was the "sole" basis for the conviction, but the court ruled its falsity insufficient to overturn the conviction. I can't imagine what "reasonable juror" they're envisioning, but such is the Kellerite logic dominating the majority on today's Court of Criminal Appeals.

You see the same misshapen logic deployed in other arenas dominated by prosecutors, as with the Todd Willingham case at the Forensic Science Commission. The trial testimony about fire and arson was all hokum, it was the only directly inculpatory evidence presented to the jury, but Williamson County DA John Bradley insisted that just because there's no evidence of arson doesn't mean it couldn't have happened. Problem is, the jury wasn't told it "could" have happened; they were told the "fire doesn't lie." This is the precedential ghost of Roy Criner's case, further evidence that Sharon Keller's consistent if often invisible hand is still guiding the state down the same dark path that left the court humiliated in Criner and a national laughingstock. Rather than learn from the experience, Keller and Co. and the hard-line prosecutors whose interests they represent chose to double down and do everything in their power to prevent future science-based exonerations, culminating in the Willingham fiasco and Ex Parte Robbins.

Judge Baird, by contrast, for his dissent in Criner and his decision to speak out about it upon leaving the court, merits recognition as virtually the father of Texas DNA exonerations. It was his testimony before Congress that brought a national spotlight to the case, leading Republican Sen. Orrin Hatch to call the court's ruling "outrageous." Unlike Judge Keller, Baird acknowledged how it would impact jurors' decision if, instead of pointing to guilt, scientific evidence showed the defendant "didn't commit the offense -- at least, [he] didn't commit it under the theory the prosecution advanced at the trial."

When that happens, Judge Keller and the CCA majority think it appropriate for appellate judges to hypothesize other theories of the crime besides the one presented to jurors and suggest they "could" have found this or that alternative convincing. They could have, one supposes, but the case presented to the jury is the basis for appeals, not imaginary alternatives.

Baird, by contrast said of the Keller court's Criner decision, "What they have done, and I think improperly so, is to create or invent reasons that explain away the DNA evidence. But those reasons were never presented to a jury, and that's the basis of the entire judicial system -- you put those facts before 12 individual citizens, and let them decide if that evidence is reliable and believable, or not." One could say the same thing about the Willingham case as well as Ex Parte Robbins. To sustain the verdict would require supposition outside the bounds of what was actually argued at trial.

Keller's virulent pro-death penalty rhetoric and rulings on the court ("We close at 5," etc.) get the most attention from all the culture warriors, but IMO it's the string of cases from  Criner to Robbins that represents perhaps her most lasting and harmful achievement. The Texas Court of Criminal Appeals was going to be pro-death penalty no matter who sat on it, but Presiding Judge Sharon Keller (and her colleagues populating the court's extremist wing) are responsible for this odd, anti-science bent to Texas' innocence/habeas jurisprudence.

The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors

I was amazed to read that, at Hank Skinner's hearing before the Texas Court of Criminal Appeals seeking DNA testing under Chapter 64 of Texas' Code of Criminal Procedure, the State argued that the Legislature didn't intend to grant relief in situations like this one. In point of fact, and as somebody paid by the Innocence Project of Texas to lobby on behalf of the bill I can say this with certainty: Skinner's case was not only cited in testimony surrounding the bill, his US Supreme Court victory essentially made passage of SB 122 (Ellis/Gallego) expanding access to DNA testing a fait accompli. After that, prosecutors at the capitol seemed to give it up as a lost cause.

In Skinner's federal appeal, the US Supreme Court ruled in his favor to say that if he were denied DNA testing under state law, he could sue under the federal Sec. 1983 civil rights statute (which is especially critical since Texas has no comparable state cause of action for civil rights abuses, though the state does have a special chapter of the Code of Criminal Procedure providing for post-conviction access to DNA testing).

So in the wake of Skinner's US Supreme Court victory, Texas legislators were faced with a choice: They could retain restrictive language insisted upon  by prosecutors in Texas' 2001 DNA testing statute, giving them unilateral grounds for objecting to tests. But if they let prosecutors keep that power, local taxpayers would find themselves on the hook for expensive, time consuming federal civil rights litigation. It was in that context that the Texas Legislature limited prosecutors' discretion to oppose such "Chapter 64" motions, at least when there's a chance it could prove innocence, a move which has already cleared the way for other exonerating DNA testing.

The most famous (notorious?) example may be Williamson County DA John Bradley fighting Michael Morton's DNA testing motion tooth an nail for 6 years before the motion was finally granted and the results cleared Morton's name. Michael Morton was finally granted DNA testing not because John Bradley suddenly saw the light on the road to Damascus, but because the law changed and the grounds on which he'd previously objected to DNA testing under Ch. 64 suddenly vanished. Readers may recall rookie McLennan County DA Abel Reyna had to learn that lesson as well, flat out misunderstanding the law and his own authority before somebody finally explained it to him.

Similarly, consider Kerry Max Cook, a Tylerite who spent 20 years on death row for a 1978 murder, ultimately bartering his freedom for a guilty plea in order to prevent a fourth trial, facing prosecutors who once again said they would seek the death penalty. (Maybe it's happened before, but Grits knows of no other guilty plea to a capital murder where the defendant walked away free essentially for time served - not if responsible prosecutors honestly think them guilty of a heinous act.) At the time Cook went free, DNA testing still a relatively new technology, certainly for East Texas courts and even the Court of Criminal Appeals (this was pre-Roy Criner). Some time later, DNA testing ultimately exonerated him, but never the courts. Even so, as a practical matter Kerry Max Cook couldn't pursue post-conviction DNA testing necessary clear his name formally through the habeas corpus process until recently because of virulent, Bradley-style opposition from a succession of local Smith County DAs. The possibility only glimmered anew after SB 122 stripped away the means by which Smith County prosecutors and judges (in this case kinda the same thing) could prevent him from exposing, with finality and legal certitude, his false conviction as a capital murderer.

So, to return to Mr. Skinner, it's a relief if not a surprise to hear that questioning from the Court of Criminal Appeals seemed to favor liberal access to DNA testing. These quotes were recorded in an account from David Protess at the Huffington Post:

• Judge Elsa Alcala: " [The evidence against Skinner] is not overwhelming. It's circumstantial... If you had tested this... 10 years ago, we would have had results 10 years ago. "
• Judge Cathy Cochran: "Why not just lay all this to rest by doing the DNA quickly? We've had some rather embarrassing incidents in the last couple of years." [There have been 47 DNA exonerations in Texas.]
• Judge Michael Keasler: "Prosecutors should be testing everything... You ought to be absolutely sure before you strap a person down and kill 'em."

Judge Keasler's comments are particularly notable as he more frequently votes with Judges Keller and Hervey on the court's more extremist right wing. Judge Alcala so far ranks among "moderates" on the court, to the extent there is such a thing. Judge Cochran's comment is also notable because she's so often a swing vote among competing conservative factions. Counting heads, if she and Keasler side with Skinner, Grits would offer an educated (perhaps obvious) guess that the ruling will go his way. Reported Brandi Grissom at the Texas Tribune:

Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.

"Prosecutors should be testing everything anyway," Keasler said.

Ouch! That was NOT the response Mr. Mitchell was looking for from Judge Keasler!

Am I saying Hank Skinner is innocent? I have no idea. Will I be surprised if DNA evidence inculpates him? No more than I would if it exculpates. I agree with Judge Cochran that "[The evidence against Skinner] is not overwhelming. It's circumstantial." So why not test? And as the Legislature understood, if the CCA rules against Skinner, the US Supreme Court has said he can file a Sec. 1983 civil rights suit and it's likely a federal judge would order the testing down the line, anyway. That's why, in this non-lawyer's opinion, Skinner's case should be a no-brainer for the Court of Criminal Appeals, not to mention an object lesson for Texas prosecutors on how they approach post-conviction writs and DNA testing going forward.

The worst-case scenario is executing Mr. Skinner, testing posthumously and finding out he didn't do it. Otherwise, if he is really guilty, testing removes all doubt and prevents a great deal of torment and controversy in the future for family and friends of the victim. Since the defense has agreed to pay for testing, at this point there's no good reason, legal or otherwise, not to get it over with. Judging from the media coverage, it sounds like at least five judges on the Court of Criminal Appeals will probably agree.

Scheck: Better remedies needed on prosecutor misconduct

Barry Scheck of the national Innocence Project (with whom, in the interest of disclosure, my employers are affiliated through the national Innocence Network) has an  op-ed in the Austin Statesman today titled, "Errant prosecutors seldom held to account." Wrote Scheck, "as a recent article in the Yale Online Law Review thoroughly documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren't investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less 'harmless' intentional misconduct in cases in which the defendant was guilty."

Incidentally, the Yale Online Law Review essay Scheck mentioned is an especially effective discussion of prosecutorial misconduct and its oversight, or the lack thereof. Here's a sample from their description of the dilemma:

What little evidence we do have indicates that prosecutorial misconduct is a serious problem. A 2003 study by the Center for Public Integrity, for instance, found over two thousand appellate cases since 1970 in which prosecutorial misconduct led to dismissals, sentence reductions, or reversals. Another study of all American capital convictions between 1973 and 1995 revealed that state post-conviction courts found “prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty” in one in six cases where the conviction was reversed. Other scholars and journalists have also documented widespread prosecutorial misconduct throughout the United States.

Available statistics significantly underreport the extent of prosecutorial misconduct, not only because of the empirical challenges discussed above, but also because courts have embraced a “harmless error” standard when reviewing criminal convictions. In order to win a reversal, a defendant must not only prove misconduct, but must also show that the misconduct substantially prejudiced the outcome of his or her trial. Courts can therefore avoid making a finding of misconduct altogether by finding that the alleged error, even if proven, was harmless. By reducing the likelihood of reversal, the harmless error standard substantially weakens one of the primary deterrents to prosecutorial misconduct. Knowing that “minor” misconduct is unlikely to jeopardize a conviction on appeal, prosecutors may be more likely to bend the rules in the pursuit of victory.

There is an obvious need for an effective check on prosecutorial misconduct. Yet, as this Essay will show, no such check currently exists. (Citations omitted.)

Returning to Scheck's column, he recited some Texas data Grits has adumbrated in the past, then asked, "What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court in Connick v. Thompson severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney's office accountable for intentional acts of misconduct by line prosecutors."

Arguing to limit the absolute immunity from civil liability presently afforded prosecutors, Scheck added, "While we all agree that prosecutors juggle enormous responsibilities and should not be gratuitously second-guessed, it's worth noting that no other profession with so much power over life and death enjoys anywhere near this level of immunity from civil liability for intentional misconduct — not doctors, not other lawyers, not police officers, not teachers, not construction workers, not farmers." He then echoes a point made by UT law prof Jennifer Laurin that the external controls the courts say should substitute for civil liability are largely dysfunctional:

What about internal systems that the district attorney groups claim will prevent misconduct? With a handful of exceptions — primarily offices that have "conviction integrity units" designed to address miscarriages of justice and misconduct — most prosecutors do not have written internal guidelines for differentiating between error and misconduct, audits of old cases handled by line prosecutors and supervisors who commit acts of misconduct, or processes for doing root-cause analysis when there is significant finding of error or misconduct by courts — quality assurance and control protections we routinely require in hospitals, financial institutions and factories.

Similarly, relying on judicial monitoring and reporting of misconduct has been a failure. In California, where judges are required by law to report prosecutorial misconduct to the State Bar when it results in reversal of a conviction, a study by the Veritas Initiative shows that over a 10-year period involving 159 reversals, not one case was referred by judges to the State Bar.

The column closed suggesting a few other possible remedies for prosecutorial misconduct besides expanded civil liability: "Solutions discussed include developing better internal systems to deal with misconduct, greater oversight from the disciplinary arms of state bar associations, better reporting of misconduct from judges with better systems for dealing with their complaints, and the creation of an independent state agency with the authority and resources to investigate allegations of prosecutorial misconduct."

MORE: The Statesman paired Scheck's op ed with one from Shannon Edmonds of the prosecutors' association, who argues that "Prosecutors rarely go wrong, should not be hindered."

See related Grits posts:

• Oddsmaker: When judge finds willful Brady violation, what are chances state bar will discipline?
• Blackwell: Texas state bar 'not set up to oversee prosecutors'
• Michael Morton, John Thompson highlight prosecutor misconduct forum
• Study: Prosecutor misconduct in Texas rarely disciplined
• Transcript of interview with Prof. Jennifer Laurin on prosecutorial oversight
• Professor Jennifer Laurin previews forum on prosecutorial misconduct
• Why aren't prosecutors held accountable when courts find knowing misconduct? 
• Eliminate judge-made immunity for prosecutor misconduct
• SCOTUS seems indifferent to prosecutorial misconduct
• Legislature should limit immunity for sleazebag prosecutors like Charles Sebesta
• A 'perverse' position on prosecutors fabricating evidence ... from the Obama Administration
• Prosecutors seldom disciplined for misconduct; can they be held liable in civil court?
• Prosecutors ask SCOTUS for 'absolute immunity' when fabricating evidence
• Prosecutorial hubris, entitlement, on display in recent cases
• Improving prosecutorial accountability
• What sanctions for prosecutors who cheat to win?
• What can the Texas Legislature do to reduce prosecutorial misconduct?

Two latest Dallas DNA exonerees spent nearly 30 years behind bars

Congratulations to James Williams and Raymond Jackson, Texas' two latest DNA exonerees out  of Dallas who were liberated yesterday after a nearly unimaginable 29+ years inside based on false accusations of  rape and kidnapping. Reported a local TV station, "Their biggest hurt? Relatives, including their mothers, died believing they were criminals."

As an aside, the Fort Worth Star-Telegram coverage mentioned that "Dallas County has now exonerated 32 people since 2001, most of them during Watkins' tenure. Most of the cases -- including Monday's -- involved faulty eyewitness identifications." But it should be mentioned that that figure only includes DNA exonerations and a handful of non-DNA exoneratoins under Craig Watkins. There was also the infamous Dallas fake-drug scandal from 2001, where police officers collaborated with a corrupt informant to set up two dozen  innocent, mostly Spanish-speaking immigrants on false drug charges. Adding in those alone gets you at least 56 over that time span. Most counts you see of exonerations include only DNA exonerees,  not the large coterie of drug war cases like those in Dallas, Hearne, and Tulia.

Serendipitously, Mr. Williams "has re-connected with his childhood sweetheart, and she says they're now engaged to be married," while Mr. Jackson has reconnected with his family. Grits wishes both of them all the best.

Read more here: http://www.star-telegram.com/2012/04/30/3924291/2-dallas-men-cleared-in-1983-rape.html#storylink

Lubbock considers Tim Cole memorial

The Lubbock City Council is considering a memorial for Timothy Cole, who was posthumously exonerated and pardoned after a false rape conviction and died in prison before his name could be cleared. They at first suggested constructing a fountain in his honor but decided to delay the idea, questioning the wisdom of building another fountain in the middle of a drought. The majority of the council though, reports the Avalanche Journal, remains supportive of a memorial of some sort. Cole's half-brother, Cory Session, suggested a less costly cenotaph might be to rename the portion of Texas Avenue in front of the courthouse where Cole was convicted after him, though he reminded them, “I would say to any of the council members that might bring up the cost, there is no greater than the cost that has been paid by my mother and my family; that’s immeasurable.”

Governor should pardon Hannah Overton if habeas petition fails

Pam Colloff at Texas Monthly's Daily Post blog is providing blow by blows of Hannah Overton's habeas hearing evaluating allegedly flawed forensic science, as ordered by the Texas Court of Criminal Appeals. Here's what she's posted so far:

• Hannah Overton Hearing: Day One
• Hannah Overton Hearing: Day Two
• Hannah Overton Hearing: Day Three (added 4/26) 
• Hannah Overton Hearing: Day Four (added 4/27)

Attorney John Raley, who led Michael Morton's defense team, represents Overton, who was convicted of poisoning her 4-year old son with salt based on reportedly shoddy forensics. The San Antonio Express News, however, reports that defense claims that prosecutors withheld evidence in the case fell apart on the hearing's second day. Wrote reporter John MacCormack, whose writing first highlighted the case, "After two days of presenting evidence, Overton's lawyers appear to have made little headway in their quest to prove that her 2007 trial was unfair or that prosecutors cheated."

Whether the defense had access to contrary forensics or not, Grits still is troubled by some of the reported testimony indicating that at a minimum, forensic flaws were minimized if not intentionally concealed. A prosecution witness, Dr. Edward Cortes, testified that "“I told [then-assistant D.A. Sandra Eastwood], I said ‘I hope you’re going to come forward with some other charge other than capital murder ‘cause I don’t think this was capital murder. I don’t think there was intentionally,’" reports Colloff. Instead of changing the charges, though, the prosecution simply didn't call the witness.

MacCormack writes the wind was taken out of the sails of Overton's defense team when it was revealed Dr. Cortes was actually an uncalled witness on the defense witness list, which raises the question of whether the defense failed to adequately prepare. (It's possible, one supposes, courts could afford Overton relief based on ineffective assistance of counsel as opposed to "actual innocence.") But even if the defense could have interviewed Cortes (they did not), more concerning to me is that prosecutors heard that advice from a medical expert but ignored it, downplayed it, and plowed right ahead.

Overton's case demonstrates, as Judge Cathy Cochran wrote in the order granting this evidentiary hearing, how the "disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased." The stakes, as Judge Cochran put it, are high: "public support of the American criminal justice system depends upon its confidence that the courts reach accurate verdicts based upon reliable scientific evidence," and that's seemingly not what happened here. Bottom line: Can habeas corpus rectify false convictions based on flawed forensics, or have recent court decisions and legislative interventions so restrained the Great Writ that it can no longer perform that function?

Experts seem to agree the forensics weren't legit in hindsight, but when matters of science are decided in the jury box, emotion can too often overwhelm expertise and non-scientist judges are frequently poorly positioned to perform a meaningful gatekeeper function. But when errors happen, one expects institutional actors to exercise their discretion to prevent injustice. To that end, the Express-News called on prosecutors to capitulate in a strong editorial this week which opined:

Nueces County District Attorney Mark Skurka should do the right thing and acknowledge that the sensational prosecution of Hannah Overton for the death of her son was a miscarriage of justice.

Instead, his office is wrongly fighting the exoneration of a woman who is innocent of any crime and is likely the victim of prosecutorial misconduct.

In 2007, a jury in Corpus Christi found Overton guilty of capital murder for forcing her 4-year-old foster son to ingest a lethal amount of salt.

She is serving a mandatory sentence of life without parole.

But as San Antonio Express-News staff writer John MacCormack has reported, the case against Overton — which was prosecuted by one of Skurka's predecessors — was deeply flawed.

His immediate predecessor, Anna Jimenez, who was a member of the Overton prosecution team, acknowledges that the conviction was “an injustice.”

If Overton's habeas petition does not prevail, Governor Rick Perry should pardon her.

MORE (4/26): From the Corpus Christi Caller Times, "Former Nueces County District Attorney: Lead Overton prosecutor had unethical tactics."  According to the Caller Times, "Former Nueces County District Attorney Anna Jimenez testified Wednesday that she thought Sandra Eastwood, the lead prosecutor in Hannah Overton’s case, resorted to unethical behavior during the 2007 trial." The former DA and prosecutor partnered on this case and their relationship has a complicated backstory:

Gerry Goldstein, one of Overton’s attorneys, showed Jimenez a section of a medical examiner’s report with supplemental information from the Police Department. According to the report, an officer was given a sample of Andrew’s vomit from an urgent care center.

Also in the report were photos of stomach content samples at the medical examiner’s office, where the contents were laid out and labeled.

Jimenez said the first time she saw the photos was about a week ago when Cynthia Orr, one of Overton’s lawyers, showed them to her.

Jimenez said the defense attorneys asked for the vomit several times, but Eastwood told her that it did not exist.

“She is not truthful,” Jimenez said of Eastwood.

She said there were several times that Eastwood violated court orders, wasted the court’s time with delays and wanted the jury to feel sympathetic toward her.

Prosecutor Bill Ainsworth argued that Jimenez has no solid proof that Eastwood withheld evidence from the defense.

Jimenez testified that she told Eastwood that Overton should not have been convicted of capital murder.

Jimenez, who assisted Eastwood in the prosecution of Overton, later served as district attorney and lost the election for the position in 2010. Jimenez fired Eastwood that year on unrelated issues.

See also from the Caller-Times, "Witnesses in Hannah Overton's hearing: Flaws in case."

What is state duty to inform defendants of flawed forensics in old cases?

The Washington Post's Spencer Hsu tackles a subject at the federal level ("Convicted defendants left uninformed of forensic flaws found by Justice Dept.," April 16) with which Texas frequentlly struggles: What is the duty to inform defendants when faulty forensics are discovered to have been used in their case? Like most crime labs and other forensic experts, the FBI essentially contends the answer is, "none unless somebody makes us." The story opens:

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.
Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

In one Texas case, Benjamin Herbert Boyle was executed in 1997, more than a year after the Justice Department began its review. Boyle would not have been eligible for the death penalty without the FBI’s flawed work, according to a prosecutor’s memo.

At the federal level, the decision whether to notify defendants in old cases of possible forensic errors resides with prosecutors. Perhaps predictably, among US Attorneys, "The Post found that while many prosecutors made swift and full disclosures, many others did so incompletely, years late or not at all." We see the same types of disparities in Texas state courts. In some instances, as in El Paso, the DA promptly notifies the defense bar when problems are discovered. In others - the Harris County BAT van fiasco comes to mind - prosecutors can be intensely reluctant to open such a can of worms.

The Post offers detailed descriptions demonstrating the long slow trajectory of truth when it comes to correcting inaccurate forensics, starting with the first World Trade Center bombing in 1993. According to a related Post article ("DOJ review of flawed forensic processes lacked transparency," April 17):

The bombshell came at the most inopportune time.

An FBI special agent was testifying in the government’s high-profile terrorism trial against Omar Abdel Rahman, the “blind sheik” suspected of plotting the first attack on the World Trade Center.

Frederic Whitehurst, a chemist and lawyer who worked in the FBI’s crime lab, testified that he was told by his superiors to ignore findings that did not support the prosecution’s theory of the bombing.

“There was a great deal of pressure put upon me to bias my interpretation,” Whitehurst said in U.S. District Court in New York in 1995.

Even before the Internet, Whitehurst’s extraordinary claim went viral. It turned out he had written or passed along scores of memos over the years warning of a lack of impartiality and scientific standards at the famed lab that did the forensic work after the World Trade Center attack and in other cases.

With the FBI under fire for its handling of the 1993 trade center attack, the Oklahoma City bombing and the O.J. Simpson murder case, officials had to act.

After the Justice Department’s inspector general began a review of Whitehurst’s claims, Attorney General Janet Reno and FBI Director Louis J. Freeh decided to launch a task force to dig through thousands of cases involving discredited agents, to ensure that “no defendant’s right to a fair trial was jeopardized,” as one FBI official promised at a congressional hearing.

The task force took nine years to complete its work and never publicly released its findings. Not the results of its case reviews of suspect lab work. Not the names of the defendants who were convicted as a result. And not the nature or scope of the forensic problems it found.

Those decisions more than a decade ago remain relevant today for hundreds of people still in the U.S. court system, because officials never notified many defendants of the forensic flaws in their cases and never expanded their review to catch similar mistakes.

The main flawed forensic method prompting the Post series involved microscopic hair analysis, a forensic method this blog has criticized in the past as little more than junk science. The stories also detail how those flaws have been known, and ignored, in law-enforcement circles for quite some time:

In 1974, researchers acknowledged that visual comparisons are so subjective that different analysts can reach different conclusions about the same hair. The FBI acknowledged in 1984 that such analysis cannot positively determine that a hair found at a crime scene belongs to one particular person.

In 1996, the Justice Department studied the nation’s first 28 DNA exonerations and found that 20 percent of the cases involved hair comparison. That same year, the FBI lab stopped declaring matches based on visual comparisons alone and began requiring DNA testing as well.

Yet examples of FBI experts violating scientific standards and making exaggerated or erroneous claims emerged in 1997 at the heart of the FBI lab’s worst modern scandal, when Bromwich’s investigation found systematic problems involving 13 agents. The lab’s lack of written protocols and examiners’ weak scientific qualifications allowed bias to influence some of the nation’s highest-profile criminal investigations, the inspector general said.

From 1996 through 2004, a Justice Department task force set out to review about 6,000 cases handled by the 13 discredited agents for any potential exculpatory information that should be disclosed to defendants. The task force identified more than 250 convictions in which the agents’ work was determined to be either critical to the conviction or so problematic — for example, because a prosecutor refused to cooperate or records had been lost — that it completed a fresh scientific assessment of the agent’s work. The task force was directed to notify prosecutors of the results.

So as it turned out, when problematic forensic testimony was found to have been used to secure convictions, most federal prosecutors sat on the news rather than turn over the new evidence to defense counsel in affected cases. A handful of actual innocence cases have already arisen from those identified.

Here in Texas, the Post reported, flawed evidence in one case came to light only after the defendant was executed. Wrote Hsu:

In Texas, the review of Benjamin Herbert Boyle’s case got underway only after the defendant was executed, 16 months after the task force was formed, despite pledges to prioritize death penalty cases.

Boyle was executed six days after the Bromwich investigation publicly criticized [Michael] Malone, the FBI agent who worked on his case, but the FBI had acknowledged two months earlier that it was investigating complaints about him.

The task force asked the Justice Department’s capital-case review unit to look over its work, but the fact that it failed to prevent the execution was never publicized.

There was other inculpatory evidence in Boyle's case - most prominently a fingerprint on the duct tape used to bind the victim - but the example further demonstrates, if more evidence were needed, the common use of uncertain forensic methods even (perhaps especially) in high stakes cases.

This question of how authorities should respond when flawed forensics are discovered will continue to come up, and not just at the federal level. Here in Texas when flawed arson science was uncovered in the Todd Willingham and Ernest Willis cases, the Forensic Science Commission partnered with my employers at the Innocence Project of Texas and the state fire marshal to reexamine old arson cases for possible false convictions. And when the El Paso crime lab was found to be employing an incompetent analyst, DA Jaime Esparza was praised for notifying local defense counsel. OTOH, when Texas appellate courts decided dog-sniff lineups weren't good enough evidence to support a conviction, nobody in officialdom ever tried to identify the 2,000 cases where Deputy Keith Pikett claimed to have performed the technique, much less instances where flawed testimony may have been central to securing a conviction. And the Texas Court of Criminal Appeals has generally refused to grant habeas writs based on debunked scientific testimony, even when it was central to securing a conviction. So as a practical matter Texas' response to flawed forensics, while superior in some cases to the feds', has overall been rather hit or miss.

Here are links to the stories in the Post's forensics package:

• Convicted defendants left uninformed of forensics flaws by Justice Dept.
• DOJ review of flawed forensics processes lacked transparency
• Forensic techniques are subject to human bias, lack standards, panel found
• D.C. man served 28 years. Then the evidence that sent him to prison fell apart.
• How accurate is forensic analysis?

RELATED: Last night (4/17), PBS' Frontline ran a feature on forensic science titled "The Real CSI."

'Released but not exonerated'

Texas Monthly's Michael Hall has a feature in the New York Times today on the Kerry Max Cook case.

Michael Morton, John Thompson highlight prosecutor misconduct forum

It was a privilege to meet exonerees Michael Morton and John Thompson in person at yesterday's UT law school event on prosecutorial oversight. It's an incredible honor that my job with the Innocence Project of Texas affords me the chance to meet so many exonerees, and I'm always especially humbled by those like Thompson who've endured this sort of life tragedy and react by attempting to improve the system that betrayed him. He struck me as an energetic reformer and a good guy.

Though both men have endured unspeakable nightmares, in Mr. Thompson's case the courts added insult to injury. Louisiana doesn't have a compensation law for exonerees like we passed in Texas. So after he was framed by the New Orleans DA's office, spent 18 years in prison (14 on death row), then was exonerated thanks to DNA and exculpatory evidence concealed at his first trial, Mr. Thompson filed a federal civil rights suit, winning a $14 million verdict which was affirmed by the Fifth Circuit, only to have it overturned by the US Supreme Court in Connick v. Thompson last year. (See Prof. Jennifer Laurin's description for more detail.) That compensation law is one thing Texas does right compared to other states.

The event was informative, but I also agree with local attorney Don Dickson who sat next to me and wrote on Facebook that "The presentation itself was kinda discouraging. It's very clear that the difficulty of addressing prosecutorial misconduct is surpassed only by the difficulty in discovering it in the first place." That's particularly true of so-called Brady violations, or failures to disclose exculpatory evidence, where the defense and judges cannot as a practical matter know what prosecutors have hidden from them. Of course, I do think there are things that can be done legislatively to retard if not eliminate prosecutorial misconduct, but in the wake of Connick v. Thompson, the existing landscape on oversight of prosecutors is pretty bleak.

I'll write up my own notes from the event over the weekend, but here's some of the initial MSM coverage from yesterday's forum, most of which so far has focused on Michael Morton's case as opposed to the broader issues, as well as a two-part interview with Michael Morton in the Austin Statesman:

• KXAN-TV: Morton talks prosecutor accountability
• KVUE-TV: Exoneree Michael Morton shares his story at UT
• MyFoxAustin: Michael Morton speaks at UT law school
• MYFoxAustin: Interview with Jennifer Laurin 
• Daily Texan: UT Law hosts forum to discuss prosecutorial oversight
• Austin Statesman: Morton describes painful fight for freedom, how he started anew
  
• Austin Statesman: Morton can look back on pain and prison but lives in peace
  
• Austin Statesman: Michael Morton video interview parts one and two.

The Texas Tribune and the Austin Chronicle should also have coverage before long, since Brandi Grissom and Jordan Smith were both at the event; I'll link to those when they're up.

60 Minutes interviews Michael Morton

"It's not every day that a convicted murderer clears his name and then returns to court to argue that his prosecutor should be prosecuted," correspondent Lara Logan said at the opening of 60 Minutes' segment last night featuring Michael Morton's first media interview since his exoneration. See the clip (there's a ad at the beginning of each):


And here's an additional online discussion from the 60 Minutes reporter and producers:


The account of Morton's relationship with his son is one of the most heartbreaking you'll ever encounter, like some epic, tragic Russia novel with a surprise, wholly Americanized happy ending - like a "present from heaven," as Morton himself put it. Morton's is an amazing tale. Once again, congrats to him and everyone involved over the years in fighting the Williamson County DA's office to free him.

RELATED: Reacting to the story, Wilco Watchdog says that "Ken Anderson put Morton in prison and John Bradley kept him there." Bradley wasn't mentioned in the 60 Minutes piece, but there's little doubt the issue looms large over his re-election campaign, for the reasons articulated by the Watchdog, and this national press coverage won't help matters. In a sense, it may benefit Bradley that the redistricting battle forced the state to push back its primaries, or Williamson County voters would be going to the polls next week with the 60 Minutes story fresh in their minds. OTOH, it's also possible the longer timeline will give Bradley's opponent a chance to make the associations among voters between Bradley and the Morton case that 60 Minutes left out. We won't know until May how this may impact the Williamson DA's race, but the incumbent must be worried.

ALSO: In the second clip embedded above, the producer said they interviewed Michael Morton for nearly three hours in preparation for this story, with just a few minutes broadcast during this segment. This was Morton's first media interview since his release last fall, so I hope CBS goes ahead and puts more of the extended interview online. That's historic material.

AND MORE: Texas Monthly's Paul Burka has a bloggerly assessment of the Williamson County DA's race in the wake of 60 Minutes' coverage.

Seeking compensation for non-DNA innocence claims

Here's a story about the difficulty in proving "actual innocence" without DNA and one man's quest seeking compensation in a non-DNA Texas innocence case: Billy Frederick Allen, who was falsely imprisoned for 25+ years based on a case of mistaken identity and evidence the defense failed to unearth before trial. Comptroller Susan Combs says Allen's release was based on claims of ineffective assistance of counsel, not actual innocence, and now the Texas Supreme Court is considering whether Allen may receive compensation like the DNA exonerees in a similar position. The mixup began at the crime scene with the victim's dying words:

The police officer testified that when he asked Sewell who attacked him, he answered, "Billy Allen." But a defense investigator after the trial found two paramedics who heard Sewell saying three names as he was dying, the Court of Criminal Appeals said. One said he heard [victim James] Sewell say "Billy Wayne Allen," the name of another possible suspect. The other paramedic remembered hearing a middle name but couldn't recall it.

That new evidence left the officer's testimony ineffective, and the remaining major piece of evidence -- the palm print on the car -- would not have been enough to convict him, the Court of Criminal Appeals determined. The court overturned Allen's conviction in 2009, and he walked out of prison on bail.

Now, the Texas Supreme Court is considering Allen's compensation claim. Both sides recently argued before the court, with Allen's attorneys saying he had proved himself innocent and was the same as any other ex-inmate who had been released from prison.

"Billy will establish that you don't have to have a DNA exoneration to be compensated," said his attorney, Kris Moore.

Assistant Solicitor General Philip Lionberger, representing the state, said Allen was freed through a claim that raised legitimate questions about his conviction but did not prove he was fully innocent. He said state law only requires payment to former inmates who win their freedom after presenting evidence proving their innocence based on a stricter standard than the one Allen met.

Lionberger said Allen's claim and others like his are "never going to be entitled to compensation."

Allen's case eerily parallels that of James Giles, who was also the victim of a wrong-name mixup that cost him ten years in prison and another 14 as a registered sex offender. The only difference:, DNA evidence existed in Giles' case to prove him innocent, whereas here that absolute standard can't be met.

The Texas Supreme Court has a tough job setting the standard for compensation in non-DNA cases, and if they find the current law is inadequate to compensate Mr. Allen, the Lege should revisit the standard in light of non-DNA exonerations. Where that line gets drawn is a multi-million dollar decision for the state, but we also know DNA exonerations represent just a small fraction of the total number of false convictions. The compensation law should accommodate the types of innocence cases actually out in the world. The Tulia defendants received compensation, after all: DNA has never been a pre-requisite for compensation under Texas' statute and I hope the court doesn't create a precedent now that would make that the case.

Read more here: http://www.star-telegram.com/2012/03/17/3817535/former-inmate-struggles-to-collect.html#storylink=cpy

48 Hours Mystery to feature Anthony Graves' story

Via the Texas Tribune, we learn that CBS News' 48 Hours Mystery will feature a segment on Anthony Graves' false conviction tonight. See the full story.

Special prosecutor in Michael Morton court of inquiry is Rusty Hardin

The stakes for Williamson County District Judge Ken Anderson just got a lot higher with this news, via the Texas Tribune:

Houston criminal defense lawyer Rusty Hardin will be the special prosecutor in the court of inquiry looking into possible misconduct in the case of Michael Morton, who was wrongfully convicted in 1987 of bludgeoning his wife to death.

This won't be Hardin's first high-profile case. The former Harris County prosecutor has represented Roger Clemens, J. Howard Marshall's estate in the Anna Nicole Smith lawsuit, and, during the Enron scandal, accounting firm Arthur Andersen.

Tarrant County state district Judge Louis Sturns will lead a court of inquiry to investigate allegations of criminal prosecutorial misconduct against former Williamson County District Attorney Ken Anderson, who saw to the wrongful murder conviction of Michael Morton. 

Hardin is a major-league legal talent, a respected crime victims' advocate, and a man widely recognized as one of the top criminal-law attorneys in Texas. If Judge Anderson wasn't taking the Court of Inquiry process seriously before - and that's been my sense - you can bet your bottom dollar he is now. As Patti Hart at the Houston Chronicle pointed out, "A former Harris County prosecutor, Hardin is no stranger to taking on public officials. In 2009, he represented a woman who accused former U.S. District Judge Samuel Kent of sexual harassment. Kent was impeached and sent to prison." This Court of Inquiry is shaping up to be quite a dramatic event.

MORE: From Pam Colloff at Texas Monthly.

'Death row inmate's case about more than innocence'

Brandi Grissom has a story at the Texas Tribune with the same title as this post about the habeas claims of death-row inmate Rob Will, who was condemned for a 2000 murder of a Houston Deputy Sheriff. Writes Grissom:

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, U.S. District Court Judge Keith Ellison lamented that even though he was concerned Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Will’s best chance for a new trial may lie with an Arizona case that the U.S. Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

The federal case mentioned is Martinez v. Ryan, which has been heard at oral argument (see the transcript [pdf]) but not yet decided. See SCOTUSBlog's page on the case, where the "plain English" description of the case reads: "Ordinarily, criminal defendants have a constitutional right to have a lawyer appointed to represent them at their trial and during their direct appeal, but not during any subsequent post-conviction proceedings. When a state system only allows prisoners to argue that their lawyers were inadequate during post-conviction proceedings, does the defendant have a right to appointed counsel during that proceeding?"

Texas Attorney General Greg Abbott signed on to an amicus brief (pdf) opposing the right to counsel in such cases, while the Innocence Network, of which my employers at the Innocence Project of Texas are a member, issued an amicus brief (pdf) on the other side.

Setting aside the legal merits of the case, IMO there's a strong policy argument for providing counsel for more post-conviction writ claims. Quite honestly, habeas litigation is such a mess, with so many badly crafted pro se filings clogging the docket, it might relieve the courts and make the system a lot cleaner if counsel were appointed to do one serious habeas claim instead of a bunch of petty ones that the prisoner either writes up on their own or barters for some untrained writ writer to prepare. The Court of Criminal Appeals get thousands of habeas claims each year, and state laws limiting so-called "subsequent writs" (intended to reduce post-conviction litigation) mean that, if pro se litigants don't get it right the first time, often they don't get another chance later if and when an attorney tries to take a more serious shot.

In Will's case, it seems like he really did have ineffective counsel. Wrote Grissom: "In Will’s first appeal, his state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Will’s case. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers."

Providing indigent counsel for habeas writs - particularly those alleging ineffective counsel in their original proceedings, but really in most cases - would make the habeas process more of a truth seeking endeavor. In the current process, as in Will's case, too often procedure trumps substance, focusing on the bureaucratic exercise of seeking out errors by non-lawyers as an excuse to dismiss writs as rapidly as possible, if only in order to make a dent in the ever-expanding pile.

Like the pardon power, 21st century habeas corpus has been largely denuded of its ability to fulfill the function the Founding Fathers envisioned for it in the 18th. When a federal judge can write in a capital case, truthfully, that “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction,” then we've reached the point where mass incarceration - indeed in Will's case even capital punishment - rests primarily on procedural justifications, no longer moral ones.

Kerry Max Cook seeks DNA testing, formal exoneration

Though I was 12 years old when Kerry Max Cook was convicted of capital murder for the first time in my home town of Tyler, I have no recollection of the original events or trial. As an adult working in the innocence movement these last few years, however, I know his case as almost iconic, tainted by flawed forensics, tunnel vision and extreme prosecutorial misconduct. After his third trial and death penalty sentence, the Court of Criminal Appeals overturned his conviction declaring that, "“Prosecutorial and police misconduct has tainted this entire matter from the outset.”

Now, more than a decade after his release from Texas death row, Cook has filed a Chapter 64 postconviction DNA testing motion "to start the ball rolling to get Cook eventually declared actually innocent," reports Michael Hall of Texas Monthly who provides an excellent, extended analysis of the case in a TM blog post.

Bizarrely, prosecutors from my home town say they're puzzled why Cook would seek formal exoneration so many years after he was sprung from death row. Just for starters, I'd say it's because Jack Skeen and David Dobbs smeared him six ways from Sunday over the course of two decades while ignoring the man who DNA evidence and an investigation by the indefatigable Centurion Ministries say is likely the real killer. More immediately, Texas recently increased compensation for men exactly in Cook's position who were victimized by false convictions. And during the 2011 session, the Texas Legislature amended the post-conviction DNA testing statute to eliminate most grounds for prosecutors to object to testing. So it makes perfect sense to me why this is happening now. Indeed, if the Tyler Telegraph or Smith County prosecutors wonder why Cook is seeking exoneration, they could have just asked him. Hall did, and his post concludes with Cook's reasoning:

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”

This case represents one of the darkest moments in the history of my hometown's criminal justice system, though the saddest part is that, as bad as Cook's case was, there's still substantial competition for that "darkest" label. I know Cook sometimes visits this blog, so let me be the first here to say "good luck"; if anybody deserves ultimate vindication after traumas worthy of Job, it's Kerry Max Cook.

MORE: From Michael Hall at TM Daily Post, see "What the Tyler Morning Telegraph failed to tell you about Kerry Max Cook." Though lets face it, it would be more than a full-time job trying to plug in all the gaps that the Telegraph "failed to tell" its readers, though I understand wanting to make an exception in this instance.

Louis Sturns to oversee Michael Morton 'court of inquiry' over alleged prosecutor misconduct

Gerry Goldstein, Michael Morton, John Raley and Barry Scheck, via AP

Last week, Texas Supreme Court Justice Wallace Jefferson named the judge in the Micheal Morton "court of inquiry" - fellow black Republican state District Judge Louis Sturns of Tarrant County. (Bob Ray Sanders at the Startlegram provides background, for those who need it.) A defense attorney who's practiced a great deal under Sturns told me he's the "nicest guy you'd ever want to meet," though that doesn't mean he won't also hand down extremely long sentences. Most folks seem to think he will be fair, which is all one can ask. See AP's acccount, and Brandi Grissom's coverage. If you're really interested and have the stomach for it, here's the 140+ page report (pdf) that convinced Chief Justice Jefferson to appoint a judge to oversee these unusual proceedings. Fittingly, his decision comes days after the silver (25th) anniversary of Morton's false conviction, a coincidence whose force is heightened by the protagonist's silver hair and beatific camera visage. In most pictures I see of Michael Morton he has a big grin on his face, like the cat who just ate the canary. In the one above he shows no teeth, but his eyes are smiling.

Courts of inquiry are strange birds - a seldom used, Texas specific vehicle for making an end-run around the DA's office to seek an indictment for alleged criminal wrongdoing without ever having the case heard by a grand jury. Lately, attorneys like my boss Jeff Blackburn from the Innocence Project of Texas (Timothy Cole) and Barry Scheck of the national Innocence Project (Todd Willingham) have sought (with 50-50 success) to use the procedure as a truth-seeking vehicle in posthumous innocence cases. Now Raley, Scheck and Co, hope to  use it to punish prosecutorial misonduct. These are mostly uncharted legal waters  for all involved, both for the attorneys and Judge Sturns.

What a dramatic hearing that will be! Grits may have to drive up to Cowtown for that one.

Read more here: http://www.star-telegram.com/2012/02/21/3752088/important-move-forward-on-holding.html#storylink=cpy

Wrongful Convictions Blog

Say "Howdy" to the brand spanking new Wrongful Convictions Blog, run by Mark Godsey who directs the Ohio Innocence Project. Mark's rounded up a terrific stable of writers if he can keep them all producing regularly; they're off to a great start.

Congratulations to Richard Miles, Dallas' latest non-DNA exoneree

Congratulations to Richard Miles, his attorneys, and supporters in Dallas after his exhilarating exoneration last week, as the Court of Criminal Appeals formally dismissed charges against him - a rare instance indeed given that there was no DNA evidence in his case, which is how most recent Texas exonerees have been sprung. Reported Leslie Minora at The Dallas Observer:

Congratulations to Richard Miles. Hurrah!

Free for two years, Richard Miles has nevertheless waited and waited for today -- the official acknowledgement that he did not commit the  murder and attempted murder at a Texaco near Bachman Lake in 1994 for which he was sent to prison. The detailed 52-page opinion handed down from the Texas Court of Criminal Appeals reads like the outline of a Hitchcock film, detailing two police reports that weren't disclosed at the time of Miles's conviction, a 2010 recantation from the only uninvolved eyewitness and the determination that the small amount of gunshot residue on Miles' hand was inconclusive. All of which amounted to the decision that the wrong man spent 14 years behind bars.

"When we balance the newly available evidence ... with other exculpatory evidence and the evidence of guilt presented at trial, we are satisfied that Applicant has shown by clear and convincing evidence that no rational jury would convict him in light of the new evidence," reads the court's opinion released today.

The Dallas County District Attorney's office recommended Miles's release in 2009 after they determined that flaws in his trial violated his constitutional rights. Since his release more than two years ago, he's been working, piecing his life back together and finding support in other exonerees as he waited for a decision from the state court, which must rule on all exoneration cases. But finally, as of today Miles can file for state compensation for his years spent locked up.

"This is going to be great for him because now he can do some of the things he wanted to do" like help his mother, said Charles Chatman, an exoneree who was released in 2008. Chatman and the other exonerees, including Miles, meet monthly, and Chatman tells Unfair Park that he and the other guys have given Miles a helping had since his release.

"We have helped him," Chatman says, quickly adding that Miles isn't "the kind of person who just depends on nobody." Miles has been getting by working at a hotel, Chatman said, but even finding a job was difficult without a declaration of "actual innocence."

The state court's decision comes a year after The Dallas Morning News checked in with him as he continued to await the ruling. Miles was released after Centurion Ministries, a non-profit that explores wrongful convictions, found previously withheld evidence that linked another man to the 1994 murder and compiled evidence in favor of Miles's innocence.

In a December feature, the Observer explored the complexity of exoneration cases where there is no DNA evidence to definitively prove guilt or innocence. Miles's case, a non-DNA exoneration, rested squarely on eyewitness testimony, and when the case was explored years later, it was discovered that two police reports were never turned over to the defense, as is required of the prosecution.

Wherever you are, take a moment to stand and applaud, or issue a triumphant "Hurrah!" on Mr. Miles' behalf. With no DNA evidence, and the recent Ex Parte Robbins ruling that raised the bar to near impossible heights to challenge tainted, inaccurate forensic testimony, it's unlikely Miles could have been exonerated if they couldn't prove prosecutors withheld exculpatory evidence, which once again was discovered after the fact via the Public Information Act. But the fact that all that other existed surely contributed to the convicting court recommending, with the assent of the Dallas DA's office, that Miles be granted habeas relief based on "actual innocence" as a result of the "Brady" violations.

This case provides another data point for Grits' hypothesis that, because of limitations imposed by the Court of Criminal Appeals in Robbins as well as an array of other court precedents and statutes over the years that chipped away at the efficacy of state habeas claims, today "prosecutorial misconduct - particularly withholding exculpatory evidence ... may be the quickest route to exoneration."

That was the path taken here. Miles' lawyers almost had to go that route because it's the main avenue the Sharon Keller Court and the Texas Legislature have left open, so byzantine and restrictive has modern Texas habeas law become. In truth, there were many grounds to call Miles' conviction into question that in an ideal world should have garnered him relief in addition to the Brady claims: As a reader put it via email, this was an "Amazing case that involved the Dallas Police not turning over exculpatory evidence, a show-up ID, and an expert who changed her opinion of the gun-shot residue evidence. A perfect storm of the various causes of wrongful convictions."

False convictions occur for a vast array of reasons, but under Texas habeas law, proving prosecutors violated Brady v. Maryland is one of the few areas besides DNA testing where Texas courts seem willing to provide relief.

Anyway, back to Richard Miles' exoneration. The same day the court's ruling was announced, an elated paralegal named Jena Parker, who formerly worked for the Dallas DA's office and now works for two former Craig Watkins-lieutenants now in private practice, sent out an mass email rejoicing and praising everyone involved. She worked on the case both at the DA's Office and in private practice, and certainly has forgotten more about it than I'll ever know, so let's close out this post by reprinting Jena's email here with her permission:

I am just emailing everyone that I have in my address book so if you get offended then hit your delete key.  Most of you know that I  have been very fortunate to work for Mike Ware for 18 years.  When Craig Watkins got elected D.A. in Dallas County he hired Terri Moore as his first assistant.  I could go on and on about what a remarkable job she did and that was brilliant that Mr. Watkins hired her.  Terri Moore came up with the idea of the Conviction Integrity Unit (CIU).  She knew that there were cases prior to Mr. Watkins taking office that had been turned down for DNA testing and she knew that there were already 10 exonerees.  So she came up with the idea of creating the CIU to look at cases where defendants were saying that they were innocent.   But she knew that in Dallas County, SWIFS had kept the evidence in these old cases.  So Terri asked Mike to head up the CIU.  I was very fortunate that I worked for Mike so he took me with him. 
 
To try to make this short.  I truly believe 100% if Craig Watkins wasn’t elected District Attorney then the other 17 exonerees (I think there are 28 exonerees now.  We had just finished working on Ricky Dale Wyatt when we left so it might be 29 exonerees total now.  I lose track  But I think after Craig Watkins was elected the CIU had a part in 17 or 18 of the 28 or 29 exonerees).
 
Back to my story.  In 2009, Jim McCloskey from Centurion Ministries came to talk to Terri about a defendant, Richard Miles.  Cheryl Wattley from Centurion Ministries and Jim had been investigating Richard’s claims of actual innocence.  Richard was convicted of a 1994 murder. Jim had done an TPIR request on the Dallas Police Dept and found 2 reports of 2 other suspects.  Jim had interviewed one of the possible suspects. Jim brought the case to Terri and Terri immediately had me try to get the D.A. file which I did and the CIU began its investigation.  This was a non DNA case.  Through our investigation we talked to the only witness that identified Richard as the shooter.  When we were interviewing him, he told us that when he got to court, he had told the prosecutor that he couldn’t identify the shooter.  The prosecutor told him to identify the guy at defense table. (The prosecutor was Tom D’Amore.)  After the CIU investigated this case along with Michelle Moore and John Stickels, they were also exonerated.) The witness signed an affidavit to that effect of what the prosecutor (Tom D’Amore) said about identifying Richard at trial.

The only other witness was the trace analyst from SWIFS. We sent her trial testimony and other evidence to her for her to re-review then Mike spoke to her.  She told Mike and also signed an affidavit that she would not have testified now to what she testified at Richard’s trial regarding the gun residue.  This was huge as it could open the door for other gun residue cases.  Based on this newly discovered evidence, Richard filed another writ which we agreed to his innocence.  This was over 2 years ago.  Today, the Court of Criminal Appeals wrote a published 26 page opinion which can be found here. The opinion stated all the investigation on his case including that there was a fingerprint on top of the victim’s car where the shooter would have put his hand.   Mike had our investigator, Jim Hammond (who is the greatest) to run it through AVIS and sure enough it came back to this guy.  Jim and Mike interviewed him and also he did a polygraph which he failed about the shooting.  I think it is a great opinion but what it does not do is name the prosecutor....

I have worked on cases that Michelle Moore (several) Gary Udashen, John Stickels, Jason Kreag from Innocence Project, Shirley Baccus-Lobel and other defense attorneys who had clients that the previous administration fought against from finding out the truth.  Patrick Waller’s case is another example of how I could go on and on about what Gary went through and then all the investigation CIU did to find the truth.  (And brother the CIU did an extensive investigation)  Steven Phillips another example of a WOW case.  Anyway, I could get on a roll about each case.  How in some of those cases the real perpetrator was in the previous administration’s file all along .  Just makes me ill thinking about all the injustice that went on.

Back to my story.  It has been over 2 years since Richard’s actual innocence writ was filed and today the court agreed that Richard is innocence.  Oh by the way.  On a different case that we worked on, Mike told the truth about a previous prosecutor not disclosing evidence and it was printed.  John Bradley, Williamson County District Attorney (and who all know about him fighting DNA testing in Michael Morton case for 2 years or longer.  And we all know that Michael Morton is innocent) called Mr. Watkins up and wanted Mr. Watkins to fire or discipline Mike.  (I forgot which one) Why did Bradley want Mike fired.  Because the previous prosecutor withheld Brady and Bradley didn’t like that Mike told the truth about her withholding Brady.  (Guess he figured that withholding Brady was ok as long as there was a conviction.)

Again, there is no doubt in my heart that if Craig Watkins had not got elected and if Terri Moore and  Mike Ware were not hired to be First Assistance and Chief of the Conviction Integrity Unit then those other exonerees would still be in prison today.  There is no doubt in my mind.  I hope I don’t get in trouble by sending this email as Mike and Terri don’t know but you all know me and my mouth.  I am sure it won’t be the last time I open it or type it.  I just hope this makes some sense because my emails are really confusing especially when I am trying to explain things.

Please take the time to read the opinion and if anyone has any pull its time we stood up to prosecutors who hide the truth.  Because as you know for every innocence guy in prison there is a guilty person still committing crimes on other victims.  Just ask the other victims in Stephen Phillips case or Thomas McGowan case or Stephen Brodie case or Michael Morton’s case. . . .

Stephen Brodie (false confession).  Another case you know I can talk about but I will shut up.  I got to work.

As you all know, Mike and Terri are back in private practice and I am really truly blessed that I am still working for Mike and Terri where they continue to seek justice. And Thank Goodness that the Court of Criminal Appeals did the right thing in finding that Richard Miles is innocent of murder.

Amen. Congratulations again to everyone involved.