Happy Mother's Day

Leroy Harris will be spending Mother's Day with his mom today for the first time in 29 years.

Last November, Mr. Harris was released from a Connecticut prison after being exonerated of a sexual assault. Unfortunately he was forced to make a Hobson's choice between entering an Alford plea to the accompanying kidnapping and robbery cases or sitting in prison and waiting.

The sexual assault conviction went the way of the dinosaurs when DNA testing revealed exculpatory evidence that ruled him out as the attacker. An investigation by the Innocence Project also turned up evidence of prosecutorial misconduct.

Mr. Harris was given the choice to stand in front of a judge and plead guilty even though everyone - the defense, the prosecution and the judge - knew the plea was a legal fiction. Unfortunately the state still held some of the cards after the DNA test results came back. They had the option to retry the case which meant Mr.. Harris would have to sit behind bars awaiting a new trial - a new trial in which the state would not have some of its critical evidence admitted.

“Given the egregious misconduct that denied Mr. Harris a fair trial combined with the fact that the identification evidence presented against Mr. Harris would be inadmissible at trial today on due process grounds, it is deeply disappointing that he has been put in the untenable position of taking a plea to gain his freedom." -- Vanessa Potkin, Innocence Project

So, Mr. Harris took the deal and entered an Alford plea. Now he would be free and the state would keep its conviction.

But why did prosecutors insist on his pleading guilty before agreeing to his release from prison? He had served almost 30 years. Evidence turned up during post-conviction appeals clearly demonstrated that he was the victim of a wrongful conviction in the sexual assault case. It would stand to reason that if was innocent of the sexual assault that he would also be innocent of the kidnapping and robbery charges.

But prosecutors have a hard time letting cases go - even when they know it's the right thing to do. The often must be dragged kicking and screaming into court when faced with exculpatory evidence that they either failed to turn over or did their best to keep from being admitted into evidence.

Maybe it has something to do with a victim of wrongful conviction having the right to sue the state for compensation for the years and experiences that were taken away from him. But that money is paid out by the state under a statutory scheme, not the county in which he was convicted.

Maybe it has to do with the god complex some prosecutors possess. You know the ones - every conviction is the result of the jury doing the right thing and every acquittal is the result of the jury getting it wrong. These are the same prosecutors who fight every attempt to conduct DNA tests on untested biological material. The same prosecutors who raise their arms to the sky and ask the court when is enough enough?

For all of those who say cases like that of Mr. Harris show how the system works (albeit in a very imperfect manner), I would point out that there are other innocent men and women behind bars who can't turn to DNA testing or examples of prosecutorial misconduct to reverse their wrongful convictions. For every Leroy Harris there is another poor soul who is stuck in his own private hell because a jury just got it wrong.

Here's hoping that Leroy Harris and his mom have the greatest Mother's Day ever.

Fighting to keep innocent men behind bars

Over in Kentucky we have the latest example of a prosecutor forgetting that seeking justice, not obtaining convictions, is his ethical duty.

Keith Hardin and Jeffrey Clark were convicted of the murder of Rhonda Sue Warford in 1995 in a case that involved allegations of satanic worship and animal sacrifice. Ms. Warford was 19 years old when she complained that an old man had followed and harassed her. Three days later she was found dead, with 11 stab wounds.

Mr. Hardin and Mr. Clark contested their convictions for 21 years - finally winning a reprieve in 2016.

After DNA testing - which prosecutors fought against - proved that a hair found at the scene matched neither Mr. Hardin nor Mr. Clark and that blood found on a washcloth belonged to to Mr. Hardin and no one else.

After Judge Bruce Butler's ruling, Assistant State Attorney General Perry Ryan decided that he wasn't going to let the pair walk away. He refiled murder charges and added charges of perjury and kidnapping.

Last month, Judge Butler ruled that Mr. Ryan had brought the new charges up without merit and that they were filed in a spirit of vindictiveness. The judge called out Mr. Ryan by name and stated that the new charges were filed solely because Mr. Hardin and Mr. Clark had the nerve to contest their convictions.

“This is clear and actual vindictive prosecutorial action." -- Judge Bruce Butler

Our criminal (in)justice system is deeply flawed. Trials aren't conducted to determine what happened and who did it, they are a contest between competing narratives that may or may not have any tangible connection to the truth. Prosecutors treat a jury verdict of guilty as concrete proof that their theory of the case was correct - an acquittal is viewed as a miscarriage of justice.

But juries aren't perfect and verdicts aren't, and shouldn't be, sacrosanct. A jury isn't given all the information related to an incident. Evidence on both sides is excluded for various reasons. Evidence isn't tested by independent labs. Testimony from eyewitnesses is held up as proof even though there is mounting evidence that eyewitness testimony is unreliable due to a number of factors.

The point is that just because a jury comes back with a guilty verdict, that doesn't, in and of itself, make it correct. Sometimes it's because exculpatory evidence has been intentionally withheld. Sometimes it's because crime labs don't have the time, money or manpower to conduct tests on evidence. Sometimes it's because juries don't understand what beyond a reasonable doubt means. And sometimes it's because the trial strategy of the defense went all pear-shaped.

The murder charge against Mr. Hardin and Mr. Clark should be dismissed because the evidence supporting the prior convictions has been discredited. But that would mean the police and prosecutors would have to admit that they went after the wrong men. They would have to admit that for 21 years, two innocent men sat in prison while the real killer (or killers) went free. Such an admission might give rise to a little better understanding of beyond a reasonable doubt for area jurors.

Mr. Ryan has fought justice in this case for years because he doesn't want to have to go out and put in the work to determine who really killed Ms. Warford. It's much easier to take the transcript of the previous case and go right back down the line than it is to conduct an investigation more than 20 years after the crime.

Maybe had the police done their job better back in 1995 two innocent men wouldn't have spent 21 years behind bars for a crime they didn't commit. Maybe the person responsible for the murder would have been there, instead.

New in the blawgosphere

There's a new blog in town. Mark Godsey, a lawprof at the University of Cincinnati Law School, is the editor of The Wrongful Convictions Blog. The blog contains an unbelievable amount of material regarding exonerations, junk science and the innocence movement.

Mr. Godsey has quite the team of contributors working beneath him providing this treasure trove of information.

I encourage y'all to, as Joe Bob Briggs might have said, check it out.

Attacking the messenger

Evidence mounting that a man convicted of murder might be innocent? Here's an idea -- go after the people responsible for uncovering that evidence.

That's exactly what the Cook County State Attorney's Office is doing in the case of Anthony McKinney, who was convicted of the murder of Donald Lundahl back in 1978. The full force of the state is being brought down on the Medill Innocence Project for a audio-taped interview of another suspect, Anthony Drake, in 2004.

Illinois law makes it illegal for a person to use an "eavesdropping device" to secretly record a conversation absent a court order. A letter written by then-State Attorney General Dan Ryan in 1996, however, seems to say it's okay if the recording is made by a private citizen who believes evidence of a crime may be obtained by recording a conversation.

The students involved recorded a conversation with Mr. Drake in a Belleville (IL) park. The student spoke to Mr. Drake in a secluded area while an investigator and a teaching assistant listened in on the conversation in which Mr. Drake stated that Mr. McKinney was not present during the shooting.

Justice is not a zero-sum game. The ethical duty of a prosecutor is to see that justice is done - whether that result in a conviction, a dismissal or an acquittal. The prosecutor acts in the name of the state. The state, through the citizenry, has an interest in seeing that the laws are enforced, that those who commit crimes are punished and that those who are innocent are set free.

In this instance, the state is betraying the people's trust by trying to cover its ass instead of seeing that justice is done.

Convicted rapist exonerated by DNA

Ernest Sonnier who was released from prison last August when evidence surfaced that he had been wrongly convicted of a 1985 rape was exonerated when DNA tests results were released in court today. The tests results excluded Mr. Sonnier from being involved in a second rape that resulted in a murder.  Mr. Sonnier had been a suspect in that case.

For all the talk in law school and the media about how a trial acts as a crucible of truth, Mr. Sonnier's case is a terrifying tale of just what happens when the police are allowed to run the crime "lab" that tests physical evidence in criminal cases. The following excerpt is from The Justice Project's report of the Sonnier case:

Sonnier’s conviction was based largely on misleading forensic testimony and a mistaken eyewitness identification. The victim picked Sonnier out of a photo lineup almost six months after the crime occurred and later identified him in a live lineup. At trial, the victim again identified Sonnier as her attacker, but conceded that the photo of Sonnier looked more like her assailant than did the man in the courtroom.

In addition to the victim’s identification the jury was given faulty forensic testimony skewed to bolster the prosecution’s case. A Houston Crime Lab analyst testified narrowly about the rape kit slides, which evidence did not match Sonnier’s blood type, and affirmed a prosecution effort to explain away the lack of a match by suggesting that the victim’s blood type could have masked the perpetrator’s. In fact, lab records contain no indication of scientific testing or results to support this theory. The analyst also failed to disclose that additional semen evidence from the victim’s clothing was tested, and that all of it failed to match Sonnier’s blood type Jurors were left with an incomplete and misleading picture of the available evidence. Moreover, Sonnier’s attorney did not call a single witness in his defense.

Unfortunately with Williamson County District Attorney John Bradley presiding over the Texas Forensic Science Commission you have the equivalent of the fox guarding the hen house. Mr. Bradley has a vested interest in preserving the status quo and not looking into "old cases" for the more we find out about the shoddy "science" used to deprive people of their freedom (and lives, in the case of Cameron Willingham), the more the public will question the win at all costs mentality that infects too many prosecutors across this state and this country.

Manufacturing memories

According to this article in the new issue of Scientific American, researchers at the University of California, Irvine, were able to manufacture memories for 25% of the subjects in a memory study. The ability to "create" memories of events that never took place places further doubt about the reliability of identification testimony by eyewitnesses.

In the study, Drs. Elizabeth Loftus and Jacqueline Pickrell gave test subjects written accounts of four incidents that took place during the subjects' lives. Three of the accounts were of actual events the occurred and the fourth was made up. Researchers made up a tale of the test subject being lost at a shopping mall at a young age. To make it more "authentic," a relative provided details about the mall. Surprisingly enough, 25% of the test subjects said they remembered the incident -- even though it never happened.

The act of remembering, says eminent memory researcher and psychologist Elizabeth F. Loftus of the University of California, Irvine, is “more akin to putting puzzle pieces together than retrieving a video recording.”

Unfortunately jurors put great weight on identification testimony, even though the eyewitness may be testifying about an event that took place years before. Jurors place even more weight on the testimony if the witness claims to be very confident about the identification (even though studies have indicated that the confidence of the witness has very little to do with the accuracy of the identification).

The barring of expert testimony regarding the fallibility of eyewitness identification lends additional credence to identification testimony, as courts seem loathe to allow testimony regarding laboratory studies on memory. Yet, according to The Innocence Project, 73% of the people exonerated as the result of DNA testing were convicted largely on eyewitness testimony.

When considering eyewitness testimony, just remember that old experiment where someone ran into the room while the teacher was lecturing. Do you recall how many people had different memories of the incident? Just imagine what would happen when you add the stress of witnessing an actual criminal event.

Texas Governor lacks authority to issue posthumous pardon

Back in February I wrote about the sad case of Timothy Cole, a young man wrongly convicted of rape who was exonerated ten years after his death behind bars.

Now comes word that Governor Rick Perry lacks the authority to grant a posthumous pardon because a proposed constitutional amendment did not make it out of the legislature before the end of the regular session.

"We're extremely disappointed in this," said Cole's brother Cory Session. "He said he would take care of it. If taking care of it is letting it wait for another two years, no. It's been 25 years. We're tired of waiting."

According to the Texas Board of Pardons and Parole, while Gov. Perry is empowered to issue pardons to living people, he does not have the power to issue a pardon after a person's death.

"I believe we are going to find a way to grant clemency to Tim Cole. We're pretty optimistic." -- Jeff Blackburn, Innocence Project of Texas.

The family's next step is to seek a pardon from President Obama.

Forensic "science" under fire

According to the New York Times, a report to be issued this month by the National Academy of Sciences will be a "sweeping critique" of many forensic methods, such as fingerprint analysis, firearms identification, bite mark and blood spatter analysis, used in crime labs across the country.

According to a draft copy of the report, these analyses often are conducted by poorly trained lab workers who then testify to exaggerated accuracy of their methods. The report will call on Congress to establish a federal agency to ensure the independence of forensic analysis, most of which is conducted in labs under the control or authority of law enforcement agencies.

I'm sure that every defense attorney in the country is waiting for this report to come out. There are going to be challenges to fingerprints and firearms evidence and the general lack of empirical grounding. It's going to be big. -- Unnamed source

The F.B.I. had to shutter its bullet identification program after the pseudo-science behind the analysis was discredited. The F.B.I. was forced to notify hundreds of citizens who may have been convicted wrongfully as a result of the "evidence."

The Innocence Project turned over the results of a study performed on the trial transcripts of 137 convictions that were later overturned. In 60% of those cases, false or misleading statements were made regarding blood, hair, bite mark, shoe print, fiber and fingerprint analysis.

According to Stanford University scientist Donald Kennedy, who helped choose the authors of the report, the National Institute of Justice, the research arm of the Department of "Justice," refused to finance the study -- because they knew what it would conclude. Congress later voted to provide $1.5 million to fund the project.

"My hope is that this report will provide an objective and unbiased perspective of the critical needs of our crime labs." -- Sen. Richard Shelby (R. Alabama)

Here are a few examples of the sad state of forensic scientific analysis:

• The H.P.D. Crime Lab was shuttered due to a series of scandals. An independent auditor authored a report in 2007 severely criticizing the practices and procedures followed by the lab.


• Dee Wallace, a contractor with the Texas D.P.S., who testified in support of the state's breath test program falsified documents regarding maintenance work she never performed on the machines under her control. The Galveston County District Attorney's Office recently had to mail out notices to over 2,000 citizens whose DWI convictions may have been tainted by Ms. Wallace's criminal acts.


• Forensic "scientist" Joyce Gilchrist who was fired by the Oklahoma City Police Department after it came to light that she faked test results, falsified reports, lied on the witness stand and withheld exculpatory evidence.

To her credit, Harris County District Attorney Pat Lykos has called for the creation of a regional crime lab independent of law enforcement.

As long as forensic analysis is conducted at "crime labs" operated by law enforcement agencies, there will be pressure on analysts to make their findings and conclusions fit the "facts" as determined by the police. Until these labs are divorced from law enforcement, their findings and conclusions will be under suspicion.

DNA testing clears Texas man who died behind bars

Travis County District Judge Charles Baird has ordered the posthumous expunction of Timothy Cole's record. Mr. Cole died in prison while serving a sentence for a rape he did not commit. Judge Baird called the exoneration the "saddest case" he'd ever handled.

Mr. Cole, a student at Texas Tech with no criminal record, was charged with and convicted for the rape of fellow Texas Tech student Michele Mallin in 1985. Mr. Cole rejected the state's offer of probation in exchange for a guilty plea and refused to confess to the crime before the parole board. He died behind bars in 1999 as the result of complications from asthma.

Assuming that Mr. Cole received a fair trial, fairness does not equate to correctness. Juries get things wrong. It's yet another reason to question elected officials who have toiled to limit the right of inmates to seek post-conviction relief.

DNA tests conducted in 2008 linked inmate Jerry Wayne Johnson to the crime. Mr. Johnson testified in court on Friday that he was the rapist. He apologized to Ms. Mallin and to Mr. Cole's family. Mr. Johnson's attempted confession in 2001 was discarded because the court required physical proof of his involvement in the crime before anyone would consider the exoneration of Mr. Cole.

Ms. Mallin picked Mr. Cole out of a photo array. Of the six photos in the array, five were mug shots and one was a polaroid of Mr. Cole.

Mr. Cole's family, The Innocence Project and Ms. Mallin have all asked that Mr. Cole's name be cleared.

"No person deserves what that man got. He could have been a father, he could have been a grandfather right now." -- Michele Mallin

This tragic case brings up so many questions. Why wasn't the rape kit tested before Mr. Cole was tried? How reliable is eyewitness testimony? How much influence does the make-up of a photo array or lineup exert on the eyewitness or complaining witness? And, biggest of all, how many other innocent men and women are there locked behind bars in Texas?

See also:

• National Public Radio's coverage (Feb. 5, 2009)


• Grits for Breakfast (July 1, 2008)


• StandDown Texas Project (Feb. 4, 2009)


• Houston Chronicle (Feb. 6, 2009)


• Interview given by Judge Baird to PBS Frontline about the Roy Criner case

Interrogation and false confessions

I came across some interesting articles on police interrogation methods and false confessions after my trial was continued this morning (see what The Innocence Project has to say about the matter).

There's this one from Grits for Breakfast. Stephen Gustitis wrote this piece on the psychology of confession. Charles Weisselberg, a professor at the University of California School of Law authored this article on police interrogation tactics in California.

The Reid Technique sets out 9 steps of interrogation. This method seeks to coerce a confession by use of moral justification. The interrogator limits the suspect's responses and presents him with a way out by offering him two choices -- one of which is less morally challenging than the other.

For a practical lesson in interrogation techniques, check out Homicide: A Year on the Killing Streets by David Simon. Simon spent a year with the homicide detectives of the Baltimore, MD Police Department. The television series Homicide: Life on the Street was based on his book. There is a chilling interrogation scene in the book which, if you close your eyes, you can see Andre Braugher's character, Det. Frank Pembleton, conducting.

I tell friends, clients and potential clients that if they are being accused of committing a crime, NEVER talk to the police without consulting an attorney. I have had cases in which my client all but made the case against him because of what he said to the cops. Those who are actually innocent of the charge do themselves the most harm because they have nothing to hide -- and they hide nothing.

Is the State of Texas guilty of murder?

In 2004, Cameron Willingham, a Corsicana auto mechanic convicted of setting the fire that killed his 1-year-old twins and 2-year-old stepdaughter, was executed by the State of Texas. Today, 17 years after the fire, there are questions regarding his conviction.

Mr. Willingham went to his death proclaiming his innocence. Rick Perry, the Texas governor, and state judges, ignored a report from Mr. Gerald Hurst, a prominent fire scientist, that questioned the conclusions of the state's expert witness at Mr. Willingham's trial.

At Willingham's trial, Deputy State Fire Marshal Manuel Vasquez, now deceased, testified that he concluded the fire was set deliberately due to "pour patterns" and "puddle configurations" on the floor. He also testified that his determination that the fire had originated in three locations solidified his opinion that the deadly fire was the result of arson. He also accused Mr. Willingham of lying to him during the investigation.

As a result of an investigation by The Innocence Project, a panel of national fire experts stated that the expert testimony in Mr. Willingham's trial was based on outdated and invalid investigative methods.

Mr. Alan Levy, a member of the Texas Forensic Science Commission, created in response to the scandal involving the Houston Police Department Crime Lab, told Mr. Gabriel Oberfield of The Innnocence Project that the state of science regarding arson was "dismal." Regardless of the standards at the time of Mr. Willingham's conviction, the techniques and methods used by forensic experts had improved by the time of his execution.

Investigators from The Innocence Project concluded that the evidence found at the site was consistent with a "flashover" caused by the intense heat inside the house at the time of the fire. Investigators also found that Mr. Vasquez' contention that the fire had started in three separate locations was incorrect -- the locations Mr. Vasquez spoke of were contiguous. The investigators also contend that the only way to determine if an accelerant was used is to conduct laboratory tests on residue from the scene -- something that was not done during the initial police investigation.

John Jackson, the Navarro County District Attorney at the time of Mr. Willingham's trial, is now a state district judge and offered no comment to Mr. Allan Turner, a reporter for The Houston Chronicle. Mr. Jackson had an ethical duty as a prosecutor to seek justice -- that is, a legal duty, not to sentence someone to die for a crime he did not commit. Employing junk science to obtain a conviction is a breach of the Texas Disciplinary Rules of Professional Conduct.

The Texas Forensic Science Committee decided not to hire an investigator to look into the Willingham case at this time but they did ask the State Fire Marshal's Office to prepare a response to The Innocence Project's allegations.

I have little doubt that Mr. Willingham was not the first innocent citizen executed by the Texas death machine -- and he may not be the last. It is time to put an end to state-sanctioned murder because one you've put that needle in the vein, it's too late to say "Oops!"

A response to Kelly Siegler

So Kelly Siegler, late of the Harris County District Attorney's Office (after a failed run for the office in the Republican primary) thinks prosecutors aren't trying to convict innocent citizens as much as they are just plain lazy.


"Too many prosecutors demand that the cases presented to them for the filing of charges come to them with all the questions answered and wrapped in a pretty, little bow...Maybe it's laziness that's the problem."


The problem isn't laziness -- God knows there are lazy prosecutors, lazy defense attorneys, lazy judges and lazy court staff. The problem is a basic disagreement of what the law says prosecutors must hand over to the defense in a criminal prosecution.



In Brady v. Maryland, the United States Supreme Court held that a prosecutor is under a continuing duty to disclose all material that is exculpatory, or might be exculpatory, to the defendant. That could be anything from forensic evidence that points away from the defendant, to conflicting eyewitness statements, to the criminal backgrounds of witnesses, to inconsistent statements from an alleged victim, to whether or not the complaining witness is cooperating.


"I betcha if you could interview a group of experienced detectives and ask them what their number one pet peeve about their job was, the answer you would get would be having to present their cases to prosecutors who have no guts."


It's not laziness that keeps the prosecutor from handing over this type of evidence, it is, instead, a culture in a district attorney's office that winning is the only thing that matters -- and that leads to the attitude that if the material isn't disclosed, no one will ever know about it.


That's not laziness, that's contempt of the Constitution and the rights afforded to the citizens of this state and this country. That's the reason that The Innocence Project is still fighting to free those who were wrongly convicted. That's the reason people such as Clarence Brandley and Josiah Sutton sat in prison for years for crimes they didn't commit.