CrimProf Blog

Gov. Rod Blagojevich pardons 22 people

Marcus Lyons was so bitter after leaving prison in 1991 that he tried to nail himself to a wooden cross outside the DuPage County Courthouse.

On Friday, two decades after he was convicted of a rape he did not commit, Lyons was one of 22 people pardoned by Gov. Rod Blagojevich.

Lyons, 51, said he felt fortunate to have received clemency, knowing that a growing backlog has left hundreds of others waiting for decisions from the governor.

But Lyons, now living in Indiana, said he is still upset with police officers from Woodridge, where the crime took place in 1987. He said Friday's pardon can't return the one thing he wants most.

"You can never get your reputation back," he said.

Most of the other 21 people pardoned on Friday appeared to have already served short sentences for such crimes as burglary, forgery or robbery, with a few more serious cases of battery.

The "pardon based on innocence" allows Lyons to apply for about $85,000 in compensation for the 3 years he served, said his attorney, Jane Raley of the Center on Wrongful Convictions at Northwestern University School of Law.

But perhaps more important, she said, "it begins to address the enormous suffering he's endured."

On Nov. 30, 1987, a 29-year-old woman who lived in a Woodridge apartment complex told police she had been raped. She erroneously identified Lyons as her attacker. [Mark Godsey]

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State senators study case of innocent man who died in prison

Legislators may change state law to recognize the innocence of a Fort Worth man convicted in Lubbock more than 20 years ago.

State Sens. Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston, may clarify how the state compensates and exonerates wrongfully convicted inmates who die in prison.

The work, along with recognition by Texas courts, could bring closure after 22 years to the family of Timothy Brian Cole and formally recognize what could be the country's first posthumous exoneration.

"I think we need to recognize that for the family," Duncan said. "When the government deprives somebody of liberty, that's a pretty significant right."

Texas has cleared nearly three dozen inmates through DNA testing over the last 14 years. Officials could not name a case in this state or another where testing has uncovered the innocence of the dead.

Legislation Duncan authored seven years ago gave inmates with a legitimate innocence claim easier access to DNA testing. A separate bill by Ellis laid out rules for compensating the innocent Texas had imprisoned.

"I think this basically improves the reliability of our prosecutions and, hopefully, provides some assurance to the public that the criminal justice system has checks and balances," Duncan said in a late November interview. "Hopefully, maintains the integrity of the justice system."

Duncan's bill took effect in April 2001. He knew proponents believed DNA would clear many inmates. But he never expected the state would find 35, he said.

"I just remember thinking that day, You do some things in the legislative world, but we made a difference in those guys' lives," Duncan said.

The new rules renewed Jerry Wayne Johnson's interest in a long-settled rape case.

The former Lubbock resident hoped to clear himself in the rape of a 15-year-old girl abducted at knife point from her high school. A Lubbock jury gave Johnson a life sentence for the crime in 1987 after two eyewitnesses put him at the scene.

But from his state jail cell outside of Snyder he began to work on another case as well. He looked for an inmate he said he heard sobbing in a Lubbock County cell hours after a Lubbock jury convicted the man of rape. Johnson knew that Tim Cole was innocent.

Johnson had tried to draw attention to the case years before, after he knew the statute of limitations for the crime had expired. More than 20 years after a black man abducted and raped a Texas Tech student from a church parking lot, Cole's mother read a letter from Johnson promising that a DNA test would prove that he, not Cole, had committed the crime.

Cole died in prison of an asthma attack in 1999. The former Texas Tech student maintained his innocence to the end, and in 2008, DNA testing requested by the Lubbock County District Attorney's office proved he had told the truth.

But the legislation Ellis and Duncan moved through the 2001 session assumed the inmate would be alive to press his claim. It never occurred to Ellis that evidence could come forward after an innocent man had died.

"His case is another example of the need for Texas to take responsibility and, at the very least, compensate the families of the wrongfully convicted in these posthumous exoneration cases," Ellis said. "If I had thought of a circumstance like this, I would have handled it in the bill to begin with."

Instead, the lone amendment attached to the bill legislators passed specifically excluded payments to the spouses or estates of wrongfully convicted Texans once they have died.

Counties and law enforcement agencies must only keep DNA evidence or other materials tied to a case so long as the inmate lives, under Duncan's legislation. The law does not compel the testing that Lubbock's district attorney's office preformed - even the existence of the evidence after so many years was a fluke.

Duncan and Ellis said ahead of the session they would work on whatever means it took to make the laws reflect issues brought about by Cole's case. [Mark Godsey]

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An Electronic Witness

When Jason Jones was arrested in a fatal shooting in the Bronx in May, he told the police that he had been nowhere near the scene. He said he had left work, ridden the bus with some co-workers and cashed his paycheck, and later had taken a subway to see his girlfriend.

Federal prosecutors charged Mr. Jones and his older brother, Corey, in the shooting, saying they had killed the victim because he had been a government witness in drug and gun cases. Both men could face the death penalty if the government decides to seek it.

But in recent weeks, the case has taken an extraordinary turn — because of Jason Jones’s MetroCard.

Months after the arrests, a retired detective working for Mr. Jones’s lawyers drove to a city jail located on a barge moored in the East River in the South Bronx, where Mr. Jones had been held after his arrest, and retrieved his wallet. The MetroCard was still inside.

Mr. Jones’s lawyers then asked New York City Transit to use the card to trace his movements the night of the shooting. The results supported his account, showing that the card had been used on a bus, and later on a subway roughly five miles from the shooting, just as he had described.

With that, and a photograph snapped of Mr. Jones, 26, as he cashed his paycheck, his lawyers argued that it was impossible for him to have committed the crime. Both brothers have been released on bond for now, an unusual step in a federal murder case, while prosecutors say they are continuing to investigate.

Mr. Jones’s turn of fortune might not have been possible before the modern era, where the plastic MetroCards, along with E-ZPass and surveillance cameras, have become ubiquitous.

Critics have said that the devices, for all their convenience, have ushered in an era of Big Brother, but they have nonetheless become useful in legal proceedings, whether to prove or undermine an alibi, find a missing person or even track a cheating spouse.

Read full article here. [Brooks Holland]

Innocent Man's Conviction Vacated After 27 Years

Today the Eighteenth Judicial Circuit Court granted William Dillon a new trial based on DNA evidence which demonstrates Dillon's actual innocence of the 1981 murder of James Dvorak in Canova Beach Florida. Dillon's 27 years equals the longest time served by any of the 223 DNA exonerees nationwide. He is the third man to be exonerated in Brevard County in recent years.

 Mr. Dillon, who has always maintained his innocence, was convicted on the basis of unreliable and false evidence including: subsequently recanted testimony of a star witness who was threatened by and having sex with the State's lead investigator; fraudulent scientific testimony of a dog handler; testimony of a jailhouse snitch whose pending rape charge was dismissed after fingering Dillon; and a mistaken eyewitness identification by a man legally blind in one eye.

 "This case is indicative of the culture of corruption in Brevard County," said David Menschel, Legal Director of the Innocence Project of Florida (IPF). "They were more concerned with getting a conviction than convicting the right person. Once they identified a suspect, they were willing to do anything – even manufacture evidence – in order to win."

Dillon's case is particularly troubling because it involved the now-discredited testimony of dog handler John Preston, a man who has been exposed as a fraud by both courts and the national media. But as Melissa Montle, Staff Attorney with the IPF explained, "The only way the dog could do what Preston purported it could do is if someone from the inside was feeding Preston the information." 

Both Wilton Dedge and Juan Ramos were also wrongfully convicted on the basis of Preston's testimony. Seth Miller, Executive Director of the IPF, called for an investigation into the conduct of the Brevard County State Attorney's Office and Sheriff's Office as well as a comprehensive review of the hundreds of cases in which John Preston testified: "Governor Crist needs to take a hard look at what's been going on in Brevard County and restore public confidence in Florida's criminal justice system. Our organization would be happy to assist the Governor in these efforts." [Bobbi Madonna]

Exoneration Man

From 1951 to 1987, the Dallas County district attorney's office was the domain of Henry Wade, a legendary prosecutor who personally never lost a case — and who rarely missed an opportunity to seek the maximum punishment for criminals. But in impoverished, predominantly African-American South Dallas, Wade's hardball tactics created resentment and distrust.

"Affluent people, people accepted by society, loved law enforcement. All of the other people who were economically disadvantaged, they didn't trust it — and I think rightly so," says Watkins. So in 2002, Watkins ran for D.A. Despite having no name recognition outside of South Dallas, Watkins came within 10,000 votes of winning. Four years later, he tried again and won, in the process becoming Texas's first elected African-American district attorney.

Watkins had a lot to prove. More than 200 of the 267 attorneys Watkins began managing had actively campaigned for his opponent because they didn't think Watkins had enough trial experience. At the same time, he believed he had a mandate to rectify past injustices. In February 2007, a mere one month after taking office, Watkins found himself face to face with a momentous decision.

The occasion was a court hearing for James Giles, who had spent 10 years in prison for a rape that subsequent DNA testing showed he did not commit. Giles was released. Afterwards, attorneys Barry Scheck and Jeff Blackburn — nonprofit leaders who work to free the wrongfully convicted from prison — presented Watkins with an unprecedented proposal. They volunteered to help Watkins' office review the files of more than 350 inmates, some dating back to as early as 1970, where physical evidence existed that could either confirm the inmate's guilt or establish his innocence. [Mark Godsey]

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First filings made for Ill. innocence petitions

CHICAGO - Lawyers at Northwestern University on Wednesday filed four petitions on behalf of exonerated former Illinois inmates, the first under a new law that would allow them to seek compensation from the state.

Under the law passed in September by the Illinois General Assembly, exonerees can apply to the county court of their conviction for compensation instead of waiting for a pardon from Gov. Rod Blagojevich. That county court may grant a "certificate of innocence."

"People would still like to receive the innocence pardons from the governor," said Karen Daniel, an assistant law professor at Northwestern University School of Law. The school's Bluhm Legal Clinic announced the filings on Wednesday.

"This wouldn't replace that process. It's an alternative means of getting the compensation," Daniel said.

Among the four filings Wednesday was one for Marlon Pendleton, 51, who is eligible for seven years of compensation after he was exonerated on DNA evidence from convictions of aggravated criminal sexual assault and armed robbery. Pendleton said he's had trouble finding a job since his release.

"Even though I was exonerated I still have to explain to them (about) my employment gap," said Pendleton, who would like to get a job at a steel plant. "It's about having some dignity and being able to hold your head up high, feel good about yourself." [Mark Godsey]

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Innocent Until Reported Guilty

As guards led Ellen Reasonover to the van that would transport her to prison, she could not comprehend that a St. Louis County, Mo., jury had just found her guilty of a cold-blooded murder. A 24-year-old single mother of a baby daughter, Reasonover had no history of violence, yet she stood convicted of killing a 19-year-old gas station attendant in the neighborhood where she lived.

She had come to the attention of police only after she answered a television broadcast requesting potential witnesses to offer information. Motivated by good citizenship, Reasonover showed up at the local police precinct because she had visited the service station the night of the murder, seeking change for the washing machine and dryer at a local Laundromat. She told police she had not seen any criminal activity; she had walked away after nobody responded to her knock on the service station window. 

Somehow, though, police saw in Reasonover — an African-American woman who exhibited nervousness — the profile of a suspect. Now it appeared Reasonover might spend the remainder of her life in prison, spared from death row only because one of the 12 jurors held out against execution. [Mark Godsey]

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Beyond guilt or innocence, remember public safety

THE shooting rampage in Skagit County raises basic issues of public safety. The tragedy is a blatant challenge to assumptions of how well civil society can protect its citizens, and isolate those who are a danger to themselves and others.

As murder suspect Isaac Zamora begins his journey through the criminal-justice system, a parallel proceeding should be initiated by lawmakers in Olympia to examine the failings of laws and institutions intended to protect the public.

Legislative hearings are necessary to acquaint legislators with the seeming disconnect between mental health laws and law enforcement.

The grisly details of the horrific day in the small community of Alger in rural Skagit County will be examined in court. The tragedy unfolded around seven different houses, and claimed five lives. Among them was Skagit County sheriff's deputy Anne Jackson. Two others were injured. A subsequent car chase resulted in the shooting death of a motorist on Interstate 5 and the wounding of two others.

In the aftermath of this bloody spree, the suspect will be ably and dutifully represented. Trials sort out legal guilt or innocence for specific acts.

The role of the Legislature is to determine how rules, regulations and procedures failed to protect a half dozen innocent lives. Zamora had dozens of previous run-ins with the law. For years his erratic moods and volcanic anger scared the daylights out of the residents of Alger. He obviously needed help that he did not receive. An equally compelling need existed to protect his family, friends and neighbors from his dangerous behavior. [Mark Godsey]

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Students free life-term prisoner

The Post-Conviction Justice Project at USC Law recently prevailed in a defining case for the California parole system for long-time client Sandra Davis-Lawrence.

USC Law students argued – and the California Supreme Court agreed – that a life-term prisoner is entitled to be granted parole once the prisoner no longer poses a danger to the community. The Court rejected the Governor’s reversal of the parole commission’s grant of parole based solely on the circumstances of Sandra Davis-Lawrence’s 1971 commitment offense (first-degree murder), holding that the reversal violated her due process rights.

The 4 to 3 ruling provides meaningful judicial review of parole decisions by the Board of Parole Hearings and the Governor, and could affect nearly 1,000 parole cases now on appeal. Lawyers on both sides said it was the first time in recent history that the state’s highest court has ruled in favor of a prisoner in a parole case.

Students in the Post-Conviction Justice Project, under the direction of Profs. Michael Brennan, Carrie Hempel, and Heidi Rummel, have represented Sandra Davis- Lawrence at parole hearings and in the state courts since 2000. USC Law student Lisa Shinar ’07 wrote the petition challenging the Governor’s reversal of Davis-Lawrence’s fourth grant of parole. Christopher Mock ’08 argued the case in the California Court of Appeal. The court granted the petition and ordered her release on parole. The California Supreme Court took the case under review, and Patrick Hagan ’09 and Erin McLendon ’09 took the lead in briefing the case for the Supreme Court.

On August 21, the California Supreme Court ruled for Lawrence, allowing her to remain free after nearly 24 years in prison. [Mark Godsey]

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In cases of justice gone wrong, Dallas is willing to make it right

Steven Charles Phillips walked out of the courthouse this week in what has become something of a familiar ritual, even a cliché.

A wrongfully convicted man free at last, surrounded by joyful, tearful relatives – a mother grown old, children grown to adulthood. The obligatory what-will-you-do-first questions and the sweetly sentimental answers about fishing or home cooking or playing with the grandkids. The corny jokes about getting used to cellphones and the Internet.

Yet the atmosphere is heavy with the awful, nearly visceral horror of undeserved imprisonment. The story evokes the gothic misery of a real-life Count of Monte Cristo or the Dickensian sorrow of Alexandre Manette, whose lost years in the Bastille set the stage for A Tale of Two Cities.

And so many of these dark stories are here, on our front doorstep, in Dallas County. Mr. Phillips, whose ankle monitor was still beeping during his exoneration hearing, is one of 18 Dallas County defendants proven innocent through virtually incontestable DNA evidence since 2001.

The only debate really left about the validity of DNA is the numerical degree of its infallibility. It is creating a not-always-comfortable evolutionary change in the criminal-justice system by highlighting the slender but ever-present margin for human error in eyewitness testimony, investigative techniques and prosecutorial practices.

There are a lot of questions still to be answered about how and why these errors occur. But it's sometimes dismaying to see Dallas so prominently cited for its wrongful-conviction rate, to hear cynical references to "Texas justice" in general and "Dallas justice" in particular as shorthand for unfair and abusive criminal-justice tactics.

So there was a certain comfort this week in the words of Innocence Project attorney Barry Scheck, who is probably the most visible face of the nationwide movement to clear wrongfully convicted prisoners. [Mark Godsey]

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DNA not kept in half of states

Half the states lack requirements to preserve DNA evidence, despite a series of dramatic exonerations based on the critical biological material.

Supporters of retaining DNA evidence point to a growing list of wrongly convicted prisoners who have been freed. But some prosecutors and lawmakers cite concerns ranging from cost to expanding DNA collections from individuals who have never been convicted of crimes.

Evidence preservation has been the key to freeing more than 200 wrongfully convicted prisoners, says the Innocence Project, a group that works to free the innocent based on DNA testing.

ONE MAN'S STORY: In lieu of DNA evidence, exoneration proves tougher

Preserving DNA also has helped secure convictions. "We're becoming more successful in identifying perpetrators in cold cases than we were when we didn't have this technology," says Scott Storey, district attorney in Jefferson County, Colo.

There is disagreement over how long and under what conditions to keep DNA. Storage space and extra costs are key issues. "I don't know if there is enough room to keep all of this evidence," Storey says. "I believe in the innocence movement, but you've got to have some common sense injected."

What states are doing:

• South Carolina Gov. Mark Sanford vetoed a proposal last month that, in part, would have mandated preservation of biological evidence. He says he supports giving the "wrongly accused a chance to clear their names" but could not endorse a provision requiring all suspects charged with felonies — but not yet convicted — to provide genetic profiles.

• A similar proposal in New York, one of the largest states that do not require DNA preservation, died in the State Assembly in June.

• Colorado prosecutors and defense lawyers are grappling to implement a broad law that requires law enforcement agencies to keep DNA evidence in murder, sexual assault and other serious cases for the lifetime of convicted defendants. It also calls for keeping DNA evidence in less serious crimes.

• Arizona lawmakers approved legislation, which takes effect Dec. 31, to maintain biological evidence in murder and sexual assault cases for as long as the offender remains in prison.

Larry Pozner, former head of the National Association of Criminal Defense Lawyers, says states have shown a "shocking" disinterest in keeping DNA: "Innocent inmates are going to die in prison." [Mark Godsey]

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Two years of freedom, after 23 years behind bars

After serving 23 years in Missouri prison for a rape he didn’t commit, Johnny Briscoe was exonerated on July 19, 2006. Saturday marks the second anniversary of his exoneration.

Briscoe’s case highlights the unreliability of eyewitness identification. When a line-up was arranged for the victim back in the early 1980s, Briscoe was the only man (out of four) wearing an orange jumpsuit – “Halloween orange,” he would later tell The Denver Post.  Possibly influenced by the jumpsuit, the victim misidentified Briscoe as her assailant — despite having spent an hour with the perpetrator in a well-lit room.

Eyewitness identification is the leading cause of wrongful conviction, and there are convictions everyday in the U.S. based only on identification. There are ways to reduce inaccuracy and prevent injustices from occurring today. Click here to learn about the Innocence Project’s recommended reforms.

Briscoe was represented by pro bono attorneys affiliated with Centurion Ministries, a non-profit legal organization based in New Jersey. Centurion and the Innocence Project are two of four organizations accepting wrongful conviction cases from across the country. View a list of innocence organizations here. [Mark Godsey]

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Current and Former ADAs Who Helped Convict Exonerated Men Reflect

In fewer than two years in office, Dallas County District Attorney Craig Watkins has become a star for who he is not — namely legendary DA Henry Wade. Watkins has embraced the help of the Innocence Project and has worked to free the wrongfully convicted, blaming the "conviction at all costs" mentality of his predecessors' administrations as a reason for the injustice.

Watkins has received national media attention: CBS' "60 Minutes" chronicled his efforts to exonerate numerous inmates based on new DNA testing and newspapers have written flattering profiles about Watkins' rise to power. He has been lauded for setting up a Conviction Integrity Unit in the office. And Watkins made news last month when he suggested that Texas law be changed so that prosecutors who withhold exculpatory evidence from the defense in criminal cases could be charged criminally.

But until now, the current and former prosecutors responsible for sending 17 men to prison for years — a total of 282 years to be exact — have rarely been heard from. So Texas Lawyer filed an open-records request with the Dallas County DA's office to receive the names of all 29 prosecutors who tried and helped convict the 17 men. [See "The Exonerated, the Prosecutors and the Judges," below.] [Mark Godsey]

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NY to Study Wrongful Convictions

Manhattan attorney Bernice Leber, named president of the 74,000-member [New York State Bar] association on Monday, says that for every wrongful conviction that surfaces, unknown numbers of others remain unfairly resolved.

That's because most wrongful convictions have been uncovered by advances in DNA technology, while most crimes do not involve DNA evidence. Those who minimize the problem of wrongful convictions, claiming that "only" 200 exonerations have occurred (as of April) fail to grasp that fact.

Kudos, then, to the NY State Bar Association for establishing a task force to "analyze New York cases that led to wrongful convictions and hold hearings." Those states that have not done so should conduct their own studies to suggest means of assuring that their criminal justice systems do not convict the innocent. [Mark Godsey]

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Innocence Project Focusing on Freeing the Wrongfully Jailed, Reforming a Flawed System

Before he was convicted of a rape he didn’t commit, Dean Cage of Chicago had a stable existence, his lawyer said. He had a job and he was living with his girlfriend.

Now, 14 years later, the 41-year-old Cage is beginning to try and put his life back together after being released one week ago from an Illinois state prison. DNA tests proved that Cage did not rape the 15-year-old girl in 1994 who had picked him out of a police line-up.

Cage maintained then that he was at home at the time of the alleged incident, and his family stood by him.

"It’s a complicated time. It’s incredibly exciting to see him free. But you never can forget the 14 years he has lost and never will regain," attorney Alba Morales told BlackAmericaWeb.com.

"Now that he has been freed, the focus is on getting him the things he needs, like clothes and a phone," she said. "He was released from prison with basically nothing." [Mark Godsey]

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They didn't do it: Convicting the innocent

At least 23 New Yorkers have been jailed for serious crimes they didn’t commit. Here’s how we can stop that from happening.  “You don’t have to be involved in anything wrong to have this happen to you. I had never been arrested for so much as a violation. … If it happened to me, it can happen to any of you. It can happen to your son or daughter. It can happen to your best friend, or it can happen to your spouse.”

In New York, that foundation is under severe strain. The state has one of the nation’s most troubling records on wrongful convictions and is also among the worst at responding to it. With at least 23 people cleared through use of post-conviction DNA testing, New York has the third-highest number of people exonerated, but it has done little to keep the law from ensnaring more innocent residents.

That number should be kept in perspective. There are nearly 63,000 state prison inmates and 30,000 local-jail prisoners in New York State, put there by hard-working police and court personnel and often by careful jurors, and the vast majority of those prisoners deserves to be behind bars. But each wrongful conviction is a failure of the justice system, and the price paid by innocent people is severe.

Clark knows about wrongful convictions. In the space of one year, he was confronted with facts that upended convictions the DA’s office had won in two shocking, high-profile cases. Anthony Capozzi, convicted of rapes he did not commit, and Lynn DeJac, pronounced guilty of murdering the daughter she did not kill, served a combined 35 years in prison before authorities caught up to the truth.

In each case, the chasm separating wrongful conviction from eventual exoneration was bridged by the microscopic markers known as deoxyribonucleic acid: DNA. In Capozzi’s case, another man’s DNA proved beyond dispute that Capozzi was not the Delaware Park Rapist. It was his bad luck that, in 1985, before DNA testing was possible, he bore some resemblance to Altemio Sanchez, a sociopath who would soon metamorphose from rapist to serial killer. [Mark Godsey]

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Judge to allow dead witness's testimony

A Burleson County district judge ruled Wednesday that the transcribed testimony of a dead witness will be allowed in the retrial of Anthony Graves, whose capital murder conviction was overturned for prosecutorial misconduct.

The ruling by state District Judge Reva Towslee-Corbett allows transcripts of the 1994 testimony by co-defendant Robert Carter to be used in Graves' July 7 trial. Carter and Graves were convicted in separate trials in the 1992 slaying of a woman, her daughter and her four grandchildren in Somerville. The victims were shot, stabbed and beaten with a hammer before the house was set afire.

Carter testified that he and Graves were the killers, and his testimony was instrumental in convicting Graves. But moments before Carter's execution in 2000, he said he lied. Carter also recanted his trial testimony in a deposition. [Mark Godsey]

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Faulty Phot ID Practice was the Cause of Yet Another Wronful Conviction

From dallasnews.com: A questionable identification process nearly 23 years ago helped strip away freedom from Thomas Clifford McGowan Jr. Now the certainty of DNA testing is about to restore it.

Today, state District Judge Susan Hawk is likely to recommend Mr. McGowan's release after agreeing that new genetic evidence proves he could not have committed a 1985 rape and burglary in Richardson that sent him to prison for life.

    

Mr. McGowan is expected to be freed while the Texas Criminal Court of Appeals in Austin considers the judge's recommendation.

    

The 49-year-old would become the 16th Dallas County inmate to be cleared through DNA testing since 2001, the highest total for any county in the country. Like almost all of the other discredited convictions, Mr. McGowan's was based primarily on the victim selecting his photograph from a police lineup.

    

What is remarkable about Mr. McGowan's case, according to one of his defense attorneys, is the ordinariness of the process that ultimately branded him a rapist.

    

Richardson police obtained his photograph from a traffic arrest two days after the rape. Out of seven total pictures, Mr. McGowan's color photo was placed in an array that contained three other color originals. A fifth photo was black and white. The remaining two were black-and-white photocopies of photographs. Rest of Article. . . [Mark Godsey]

There is No Way to Know How Many Innocent People are in Prison

From NYTimes.com: A couple of years ago, Justice Antonin Scalia, concurring in a Supreme Court death penalty decision, took stock of the American criminal justice system and pronounced himself satisfied. The rate at which innocent people are convicted of felonies is, he said, less than three-hundredths of 1 percent — .027 percent, to be exact.

That rate, he said, is acceptable. “One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly,” he wrote. “That is a truism, not a revelation.”

But there is reason to question Justice Scalia’s math. He had, citing the methodology of an Oregon prosecutor, divided an estimate of the number of exonerated prisoners, almost all of them in murder and rape cases, by the total of all felony convictions.

“By this logic,” Samuel R. Gross, a law professor at the University of Michigan, wrote in a response to be published in this year’s Annual Review of Law and Social Science, “we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League — and maybe throwing in football and basketball players as well.”

Joshua Marquis, the Oregon prosecutor cited by Justice Scalia, granted the logic of Professor Gross’s critique but not his conclusion.

“He correctly points out,” Mr. Marquis, the district attorney in Clatsop County, Ore., said of Professor Gross, “that rape and murders are only a small percentage of all crimes, but then has absolutely no real data to suggest there are epidemic false convictions in, say, burglary cases.”

What the debate demonstrates is that we know almost nothing about the number of innocent people in prison. That is because any effort to estimate it involves extrapolation from just two numbers, neither one satisfactory. Rest of Article. . . [Mark Godsey]

Texas State Court Prevents State from Destroying Evidence That May Show an Innocent Man was Executed

From innocenceproject.org: A Texas state judge this morning issued a temporary restraining order to prevent the state from destroying evidence that could show whether a man was wrongfully executed in 2000.

On Friday, attorneys filed motions seeking DNA testing on critical evidence in the case and also seeking an immediate order to stop the state from destroying the evidence while the court considers the request for DNA testing. Today’s order, issued by District Court Judge Elizabeth E. Coker in San Jacinto County, granted the immediate request to block destruction of the evidence and set a hearing for October 3 on whether to conduct DNA testing in the case.

The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed motions in state court in San Jacinto County, Texas, seeking DNA testing on the only piece of physical evidence in the case – a hair from the crime scene – that could determine whether the hair matches Claude Jones, who was convicted of murder in 1990 and executed on December 7, 2000.

The hair, which was found on the counter in a liquor store where a man was shot and killed, was central in Jones’ trial and post-conviction appeals. An expert for the state testified at the trial that the hair was consistent with Jones’. The Texas Court of Criminal Appeals, the state’s highest criminal court, narrowly upheld Jones’ conviction, in a 3-2 ruling where the majority specifically cited the hair evidence as the necessary “corroboration” to uphold the conviction.

The groups, represented by attorneys at Mayer Brown LLP, filed the court motions Friday after the San Jacinto District Attorney refused to agree to DNA testing – and also refused to agree not to destroy the evidence while courts consider whether DNA testing can be conducted.

"The judge today recognized that this case raises very serious issues about the integrity of the criminal justice system. We’re grateful that the state will not be able to destroy this evidence before DNA testing can be conducted,” said Nina Morrison, Staff Attorney at the Innocence Project. “We are hopeful that the judge will also see that it’s in everyone’s interests to conduct DNA testing that could resolve serious, lingering questions about this case. DNA testing could show that Claude Jones was guilty, or it could show that the state had no basis for executing him. The public has a right to know whether Claude Jones committed the crime for which he was executed, and today’s ruling moves us one important step closer to learning the truth.” Read More About the Case. . . [Mark Godsey]