CrimProf Blog

Texas Finds Real Rapist After Wrongly Convicting an Innocent Man

From dallasnew.com: A man found to be the actual perpetrator in a 1994 rape and murder after DNA cleared another man is alive and serving prison time for aggravated sexual assault of a child and aggravated kidnapping.     

On Tuesday prosecutors mistakenly said that the perpetrator in the slaying and sexual assault of 14-year-old Nary Na had died. They discovered their error Wednesday.

Entre Nax Karage, now 38, was originally convicted for the crime and sentenced to life in prison in 1997. But DNA test results subsequently cleared him, and he was ordered released from prison in 2004.

    

Keith Jordan is now charged with capital murder and aggravated sexual assault of a child in the case. Court records show that DNA taken from evidence left on the victim matches Mr. Jordan. His cases are pending in a Dallas County court. Rest of Article. . . [Mark Godsey]

Private Lab Offers Free Testing to Persue Justice

from dispatch.com: For 12 hours, they showed him photos from the bloody crime scene, screamed in his ears, threatened him with the death penalty, told him he failed a lie-detector test and even followed him into the bathroom, until Robert Caulley finally gave them what they wanted.

Told by detectives that if he confessed he could return home to his wife and young son to sort things out, Caulley buckled. On that day in December 1996, he told investigators that he had beaten his parents to death with a baseball bat nearly three years earlier in their Grove City home.

Convicted on little more than what he says was a false confession, Caulley wants a DNA test. Detectives originally had said Caulley's parents were killed when they interrupted a burglary.

"I loved my parents; I didn't kill them," said Caulley, 43, an Ohio State graduate who worked as an aeronautical engineer. He has served 10 years of his life sentence. "I just want the chance to prove my innocence."

Caulley's case is one of 30 that The Dispatch has identified as prime candidates for biological testing under a law passed in 2003 and revised in 2006. An accredited lab, which does work for the state crime lab, has agreed to conduct the tests free as a public service.

Gov. Ted Strickland called it a "terrific" opportunity to begin restoring credibility to a flawed system. He is urging prosecutors and judges to support the initiative.

"I can see no justification for any interference in the testing in those cases," Strickland said. "It's not going to cost the county. I don't know what the justification for trying to block that kind of testing would be."

The Dispatch, as part of a yearlong investigation, gathered public records and built files on the 313 cases in which Ohio prisoners applied for a DNA test under an old law, which stymied nearly everyone. Advocates hope that modest changes to the law in 2006 have created new opportunities for them.

Through consultation with the Ohio Innocence Project, a legal clinic based at the University of Cincinnati, The Dispatch identified prospects for testing.

The newspaper weighed several factors, including criminal histories, the evidence used to convict inmates and whether evidence remains available for testing. In several cases, judges had ordered tests but they hadn't been done more than two years later.

Many inmates who say they're innocent couldn't be included because evidence has been lost or destroyed.

In conjunction with The Dispatch investigation, lawyers representing the 30 inmates plan to seek approval from judges in 13 counties for DNA tests beginning today. The inmates are being represented individually either by the Ohio Innocence Project or the Ohio public defender. These cases will be among the first to be filed under the new law.

Prosecutors in Lucas and Marion counties already have agreed to tests in two cases after being questioned about the cases by Dispatch reporters. Other prosecutors said they would consider the requests after they are filed in court.

DNA tests could answer troubling questions looming over the convictions -- often with absolute finality.

The newspaper asked the Ohio Innocence Project for legal assistance in reviewing case files. Dispatch Editor Benjamin J. Marrison said the initiative is a test of Ohio's flawed system more than of any one conviction.

"There's no reason to not pursue the truth," Marrison said. "What motivated us was examining the system to find out if it's flawed and, where it is flawed, having the legislature and the governor craft fixes. The findings of this investigation should alarm every Ohioan, because the lack of evidence protocol means any one of us could be wrongly convicted."

The Ohio Innocence Project, a team of law students led by two professors, said the Dispatch investigation accelerated their review of innocence claims. Typically, the group has about five active cases, which can drag on for years and sometimes extend beyond DNA issues.

"Now that we've got the new (law) in place, we need to have a whole new round of examination on these cases and, of course, need to have a more open mind," said Mark Godsey, director of the Ohio Innocence Project.

"Each of these cases represents systematic flaws that suggest our justice system is not working the way we all would like," said Jenny Carroll, academic director. "I think the publicity The Dispatch can bring to those issues will bring about more systematic reforms than I can bring about as an individual lawyer."

Rest of Article. . . [Mark Godsey]

Text Message Scandal Builds In Detroit

From NPR.com: The office of Detroit Mayor Kwame Kilpatrick is reeling following publication of a series of e-mails between him and his chief of staff, Christine Beatty. The messages suggest that the pair lied under oath last year in denying they were having an affair. Beatty is resigning. Their testimony last summer was part of a lawsuit by two police officers who claimed they lost their jobs because they investigated whether Kilpatrick used his security officers to cover up extramarital affairs. Listen. . . [Mark Godsey]

Federal Judge Denies Motion to Suppress in Obscenity Case

From post-gazette.com: A federal judge yesterday denied a motion to suppress statements made by a Pennsylvania woman charged with transmitting obscene materials.

Karen Fletcher, 56, is charged with six counts of sending lewd stories, depicting the rape and killing of children, on the Internet.

Ms. Fletcher ran what was known as the "Red Rose" Web site, where she posted her fictional stories.

She charged subscribers -- there were only 29 -- $10 per month to belong to the site.

At a hearing yesterday before U.S. District Judge Joy Flowers Conti, Ms. Fletcher's defense attorney tried to argue that when his client was interviewed by FBI agents in February 2005, she should have been read her Miranda rights, warning her that what she said could be used against her.

But the two FBI agents who interviewed her said at the time that they weren't even sure what Ms. Fletcher was doing was a crime.

"She did ask as we were leaving if she was in trouble and about her First Amendment rights," testified Special Agent Christopher Cantrell. "I told her I didn't know, because I didn't."

Ms. Fletcher is the first person charged in this district in decades with obscenity related strictly to written materials. Rest of Article. . . [Mark Godsey]

11th Circuit Lifts Stay of Execution

From ap.com: A federal appeals court has lifted a stay of execution for James Harvey Callahan, who is scheduled to be executed Thursday, but it could be delayed again by the U.S. Supreme Court.

The Supreme Court on Jan. 7 heard oral arguments in a Kentucky challenge to lethal injection, a case that has delayed executions nationwide. A ruling is unlikely before spring. Alabama uses lethal injection in its executions.

In a 2-1 decision, the Atlanta-based 11th U.S. Circuit Court of Appeals on Tuesday lifted the stay granted by U.S. District Judge Keith Watkins in Montgomery on Dec. 14.

The court said Callahan waited too late to challenge the method of execution.

Callahan, who is now scheduled to die at 6 p.m. Thursday at Holman prison near Atmore, was sentenced to death for the kidnapping, rape and murder of Jacksonville State University student Rebecca Suzanne Howell on Feb. 4, 1982.

Authorities said she was abducted from a coin laundry in Jacksonville and raped before being strangled and dumped in Tallasseehatchee Creek.

In lifting the stay, the 11th Circuit ruling said it did not make any finding on "the relative merits of Callahan's constitutional claim because we conclude the claim is barred by the statue of limitations."

Judges Gerald Tjoflat and Susan Black, forming the majority, said the two-year time deadline began on July 31, 2002, when Callahan selected lethal injection as the method by which he would be put to death. They said he waited more than two years after the deadline expired to challenge lethal injection.

Tony Rezko Sent to Jail

From abcnews.com: A federal judge sent accused Illinois political fixer Antoin "Tony" Rezko to jail today after federal prosecutors accused him of violating his bail terms by a convoluted series of financial transactions with Mideast banks.

Rezko has become an "Achilles heel" for Illinois Sen. Barack Obama after disclosures he and people associated with him had raised almost $200,000 for Obama and that Obama sought Rezko's "help and advice" in the purchase of a new home.

In a court hearing in Chicago, prosecutors detailed a $3.5 million wire transfer from a bank in Beirut, Lebanon that they said was moved through a series of accounts until it reached Rezko or some of his relatives who had posted property for his bond.

Under the terms of his agreement, prosecutors said in a filing with the court, Rezko was obligated to disclose any change in his financial status.

 

In court, prosecutors said Rezko had become a "flight risk" because of his secretive transactions in the Mideast. Rest of Article. . . [Mark Godsey]

FBI Attempts to Develop a Voice Fingerprint

From NPR.org:  The FBI is trying to develop a system that could make your voice as unique and recognizable as your fingerprint. Although not yet at its peak potential, the technology currently helps investigators with tasks such as verifying Osama bin Laden videos and locating gunshots.

Running an audio clip of someone's voice through the system, called FASR, prompts bright squiggly lines to rise and fall. Each voice is quite distinct. While the pattern isn't as definitive as DNA, the FBI says, FASR gets pretty close.

When a new Osama bin Laden audio or video tape pops up on the Internet, the forensic analysts at the FBI Audio Lab in Quantico, Va., process the voice through this system. The results allow them report whether the tape is authentic.

It doesn't matter what language is being spoken, Steven Lanser who heads up the FBI audio team says. Regardless of whether one is speaking Arabic, Urdu or English, a voice follows a particular pattern.

Rest of Article. . . [Mark Godsey]

Investigation Reveals Fatal Flaws in Ohio Inmate DNA Testing Program

From dispatch.com: A man on Ohio's Death Row held faint hope that a DNA test might keep him from his grave. But no one could find the evidence in the Cleveland man's murder case.

Another man was changing a flat tire when a 5-year-old girl pointed to him as the man who had raped her 11 weeks earlier. The Toledo man was convicted on little more than her word. A DNA test could end all doubts, but swabs from the girl's medical exam are lost in an evidence room the manager describes as a disaster.

A judge ordered a DNA test for a Cleveland man, but the evidence remains untested more than two years later. When his father died, the prisoner stood alone over the casket, in shackles and unable to prove his innocence.

These cases reflect the empty promises and missed opportunities typical of Ohio's inmate DNA testing program.

A yearlong Dispatch investigation revealed a system in which prosecutors ignore court orders for testing, judges reject inmates without following the law, and evidence is routinely lost or destroyed before it can be tested.

The flaws have ruinous consequences for inmates, victims and society at large.

Presented with The Dispatch's findings, Gov. Ted Strickland immediately called for a compete overhaul that would speed up the review process, open up testing to more inmates and establish statewide standards for preserving evidence.

"It's not honoring the victim to take the chance that an innocent person is paying the price for victimizing them, because the flip side of the coin is that means the guilty party has escaped justice," Strickland said.

"It's just a matter of trying to do everything we can to be as careful and as accurate as we possibly can be."

The Dispatch reviewed the 313 cases of inmates who requested DNA testing and found:

• Evidence had been lost or destroyed nearly two-thirds of the time when prosecutors agreed to search for it. Ohio does not require evidence to be catalogued and saved, as 22 states do.

• Even when evidence was available, the applications for testing typically went nowhere. Judges didn't bother rejecting the requests in 53 cases; they simply ignored them.

• Ohio law requires judges to cite a reason when they reject a DNA test. Nearly a third of the time, they didn't. Many rulings were one-sentence denials.

• Even in cases in which a judge granted testing, the inmate's odds of actually receiving a test still were no better than a coin toss. The Dispatch discovered 13 cases in which testing hadn't been done more than a year after a judge approved it -- in some cases, more than two years.

• Tests have been done in only 14 cases since a 2003 law allowed inmates to apply. Two resulted in exonerations. Seven confirmed guilt. The others were inconclusive. Rest of Article. . . [Mark Godsey]

Columbia Law Review recently released "Judging Innocence" by Brandon Garret.  Here is the summary:   

This empirical study examines for the first time how the criminal system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations.

Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal appeals and postconviction review poorly addressed factual deficiencies in these trials. Few exonerees brought claims regarding those facts or claims alleging their innocence. For those who did, hardly any claims were granted by courts.

Far from recognizing innocence, courts often denied relief by finding errors to be harmless. Criminal appeals and postconviction proceedings brought before these exonerees proved their innocence using DNA testing yielded apparently high numbers of reversals a 14% reversal rate. However, that reversal rate was indistinguishable from the background reversal rates of comparable rape and murder convictions. Our system may produce high rates of reversible errors during rape and murder trials.

Finally, even after DNA testing was available, many exonerees had difficulty securing access to testing and ultimately receiving relief. These findings all demonstrate how our criminal system failed to effectively review unreliable factual evidence, and, as a result, misjudged innocence. [Mark Godsey]

Mississippi Innocence Project to WIn its First Exoneration

It looks to be a busy year for the Mississippi Innocence Project, which began operation this month. The clinic housed at the University of Mississippi School of Law has started examining cases and will be pushing for legislative reform.

Project director Tucker Carrington said the state Legislature is to consider legislation this year that would allow prisoners like Arthur Johnson to request DNA testing that could prove their innocence

On Jan. 4, the Mississippi Supreme Court ordered the Sunflower County Circuit Court to determine whether Johnson's conviction 15 years ago for rape and burglary should be set aside. Recent DNA testing provided conclusive evidence that Johnson is not the person who committed the rape.

Johnson was convicted in 1993 and sentenced to 55 years in prison, despite no physical evidence linking him to the crime. Johnson's lawyer, Emily Maw from Innocence Project New Orleans, said she expects the Sunflower County Circuit Court to hold a hearing soon to review the new DNA evidence.

"This DNA testing proves that Arthur Johnson was telling the truth when he claimed from the beginning that he is innocent of this charge," she said.

If the court releases Johnson, he will be the first prisoner in state history to be fully exonerated based on DNA testing performed after the trial. The decision comes just as the UM law school's new Innocence Clinic begins operation, Carrington said.

The Innocence Project New Orleans, which represents Johnson, has successfully represented numerous prisoners in Louisiana and Mississippi and is playing a crucial role in the founding of the new clinic. The Mississippi Innocence Project was started with funding from many people, including author John Grisham and Columbus attorney Wilbur Colom.

The Legislature also is to consider requiring law enforcement authorities and courts to preserve biological evidence, even after a person is convicted, Carrington said. Mississippi is one of eight states without statute providing access to DNA testing for prisoners with claims of innocence. Legislative reform is a moral obligation, he said.

"Arthur Johnson's exoneration is yet another compelling example of the powerful tool that DNA evidence can provide - for people like Mr. Johnson, as well as for law enforcement who now have an unsolved case on their hands but also solid leads on the real perpetrator," Carrington said. "But this kind of evidence can only be helpful if it exists, and for that, Mississippi needs legislation to ensure that there will be clearly established procedures to provide for preservation and testing of this evidence for those whose claims of innocence could be proven but who cannot afford to pay for it." [Mark Godsey]

Death Penalty Authority Victor Streib to Teach at Elon University School of Law

Victor Streib, a noted national authority on the death penalty and its application to women and juveniles, will teach spring semester courses in criminal law and criminal procedure At Elon University School of Law

Streib serves as the Fisher Professor of Law at Ohio Northern University College of Law, where he was dean from 1996 to 2000. He is a prolific author with more than 300 books, book chapters, article and papers. His work has been cited 28 times in United States Supreme Court opinions.

Streib has served as appellate counsel in several death penalty cases involving juveniles, including Thompson v. Oklahoma, the landmark 1988 case that established a Constitutional minimum age of 16 for the death penalty. He has testified before Congressional committees and as an expert witness in death penalty trials nationally. Frequently sought for media interviews, Streib has been quoted on violent crime and the death penalty in the New York Times, Wall Street Journal, Washington Post and Time magazine. He has also appeared on CBS’ 60 Minutes, CNN’s Larry King Live and NBC’s Today Show.

Streib also serves as an adjunct professor of law at Indiana University at Bloomington. He was a professor of law at Cleveland State University’s Law College from 1980 to 1996, and he previously taught at New England School of Law and Indiana University’s Department of Forensic Studies. His visiting professor positions were at the University of San Diego and Michigan State University, and he was a visiting scholar at the Ohio State University Center for Law, Policy and Social Science. He will serve as visiting professor at Elon.

Streib earned a law degree from Indiana University at Bloomington and a bachelor’s degree in industrial engineering from Auburn University. [Mark Godsey]

CrimProf Richard Dieter Discusses the Cons of One Representing Themselves in a Death Penalty Trial

From post-gazette.com: Catholic University Law School CrimProf Richard Dieter discusses the problems with a person representing themselves in a capital murder trial. This is in regards to Patrick Jason Stollar, who is charged with robbing and killing an elderly Upper St. Clair woman, who has made a tactical decision that most lawyers say is extremely ill-advised. He is acting as his own lawyer in a death penalty case.

"The brain surgery of the legal profession is death penalty cases. It's not something any lawyer should do, much less a non-lawyer,"

Experienced capital defense lawyers often work in pairs and spend a year preparing for trial. They interview witnesses, dig up records, do research, reinvestigate facts and locate experts.

The American Bar Association guidelines for taking on a death penalty case, the standard used by the U.S. Supreme Court and more than 50 state and federal courts, recommend hiring a licensed attorney with a commitment to "zealous advocacy," oral advocacy skills, complex negotiation and writing skills, expertise in fingerprints, ballistics, forensic pathology and DNA evidence, aptitude in presenting mental health evidence and trial advocacy skills, including jury selection, cross-examination of witnesses, opening statements and closing arguments.

Mr. Stollar, a former day laborer who has attempted suicide several times in jail, does not have a law degree.

It is very uncommon for defendants to represent themselves in capital cases, experts say.

Notable exceptions include Texas death row inmate Scott Panetti, who dressed like Tom Mix and tried to subpoena Jesus Christ and John F. Kennedy at trial. Ted Kaczynski, known as the Unabomber, wanted to represent himself, but ended up taking a plea. Rest of Article. . . [Mark Godsey]

CrimProf Peter Henning Discusses Perjury

From freep.com: Wayne State University College of Law CrimProf Peter Henning explains that judges who learn of perjury in their court can hold a witness in contempt, or ask the prosecutor to investigate with regards to the recent testimony by Detroit Mayor Kwame Kilpatrick and his top aide Christine Beatty.

About 20 lawyers have been disciplined for perjury or facilitating perjury by the state's Attorney Discipline Board since its creation in 1978. Director John Van Bolt said a typical penalty is a suspension of 3 to 4 years.

The Michigan Rules of Professional Conduct, which govern attorneys, say even nonpracticing lawyers in public office can be sanctioned for dishonesty. "Lawyers holding public office assume legal responsibilities going beyond those of other citizens," the code states. Rest of Article. . . [Mark Godsey]

Swiss CrimProf Mark Pieth Wins Transparency Award

From afp.com: One of the winners of this year's Transparency award was Swiss Basil University CrimProf Mark Pieth, credited with playing a leading role in securing international implementation of the Anti-Bribery Convention drawn up by the Organisation for Economic Cooperation and Development (OECD) think-tank

Cobus de Swardt, Transparency's Managing Director, said the Convention was "widely regarded as the gold standard for monitoring mechanisms" and had "helped to stem the supply side of corruption".

Under Pieth's leadership, the OECD body that monitors corruption in business "has the courage to criticise even the most powerful, including the United Kingdom, Germany and Japan," de Swardt said.

Rest of Article. . . [Mark Godsey]

New Article Spotlight: The IPhone Meets the Fourth Amendment

From SSRN.com: South Texas College of Law CrimProf Adam M. Gershowitz recently published The IPhone Meets the Fourth Amendment. Here is the Abstract: Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence.

The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes.

This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices. [Mark Godsey]

Padilla Gets a More Lenient Sentence Than Guidelines Recommend

From NYTimes.com: Jose Padilla, the Brooklyn-born convert to Islam who was once accused by the government of plotting to detonate a “dirty bomb” in the United States, was sentenced on Tuesday to 17 years and four months in prison for his role in a conspiracy to help Islamic jihadist fighters abroad.

he sentence was more lenient than the federal sentencing guidelines recommended and was a blow to the government, which had requested the maximum penalty of life imprisonment for Mr. Padilla, 37.

In explaining her decision, Judge Marcia G. Cooke of Federal District Court in Miami acknowledged the gravity of the crimes Mr. Padilla had committed. But she questioned the range and impact of the conspiracy, saying that there was no evidence linking the men to specific acts of terrorism anywhere or that their actions had resulted in death or injury to anyone.

She also noted that defendants in other well-known American terrorism cases had received life sentences for more heinous crimes, including Zacharias Moussaoui, who was convicted of conspiracy in connection with the attacks of Sept. 11, 2001, and Terry L. Nichols, who was convicted of murder in the 1995 bombing of the federal building in Oklahoma City. Rest of Article. . . [Mark Godsey]

New Article Spotlight: Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders

From SSRN.com: John Marshall Law School CrimProf Corey Rayburn Yung recently published  " Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders." Here is the abstract:

Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Twenty states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live.

In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America.

Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society. [Mark Godsey]

The Art of Judging Science

from sciencenews.org: From Perry Mason to Law & Order, legal dramas have proved among the most predictably popular series on American television. In such shows, a defendant's guilt or innocence typically comes to light only after expert witnesses testify before a jury, justifying—or challenging—theories about how a defendant could have perpetrated the crime.

Much of what people know—or think they know—about U.S. jurisprudence traces to such shows about criminal cases. What few nonlawyers realize is that these shows aren't especially good models of cases involving torts-noncriminal suits where plaintiffs claim harm from a company's products or activities. In these cases, judges frequently bar from the courtroom at least some scientific experts and the data on which they might have testified. Rest of Article. . . [Mark Godsey]

Lawyer in Atkins Case Comes Forwards About Prosecutorial Misconduct

From NYTimes.com: For 10 years, Leslie P. Smith, a Virginia lawyer, reluctantly kept a secret because the authorities on legal ethics told him he had no choice, even though his information could save the life of a man on death row, one whose case had led to a landmark Supreme Court decision.

Mr. Smith believed that prosecutors had committed brazen misconduct by coaching a witness and hiding it from the defense, but the Virginia State Bar said he was bound by legal ethics rules not to bring up the matter. He shared his qualms and pangs of conscience with only one man, Timothy G. Clancy, who had worked on the case with him.

“Clancy and I, when we were alone together, would reminisce about this and more or less renew our vows of silence,” Mr. Smith told a judge last month. “We felt that there was nothing that could be done.”

But the situation changed last year, when Mr. Smith took one more run at the state bar’s ethics counsel. “I was upset by the conduct of the prosecutor,” Mr. Smith wrote in an anguished letter, “and the situation has bothered me ever since.”

Reversing course, the bar told Mr. Smith he could now talk, and he did. His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.

It was in Mr. Atkins’s case that the United States Supreme Court ruled in 2002 that the Constitution bars the execution of the mentally retarded. But Virginia continued to pursue the death penalty against him, saying he was not mentally retarded. If Thursday’s decision stands, that issue may never be resolved.

Mr. Smith had represented Mr. Atkins’s co-defendant, William Jones. In a tape-recorded debriefing session with prosecutors on Aug. 6, 1997, Mr. Jones told his version of the 1996 killing of Eric Nesbitt, whom the two men had robbed and forced to withdraw money from a bank machine.

The crucial point was who had shot Mr. Nesbitt. Under Virginia law, only the triggerman was eligible for the death penalty.

“As he began to describe the positions of the individuals and the firing of the shots,” Mr. Smith said last month, referring to his client, a prosecutor “reached over and stopped the tape recorder.” According to Mr. Smith’s testimony and a memorandum he prepared soon after the debriefing, the prosecutor, Cathy E. Krinick, said, “Les, do you see we have a problem here?”

The problem was that Mr. Jones’s account did not match the physical evidence. “This isn’t going to do us any good,” Ms. Krinick said, according to Mr. Smith. Rest of Article. . . [Mark Godsey]

House Panel Criticizes CIA Tape Destruction

From washingtonpost.com: The CIA's destruction of videotapes containing harsh interrogations of detainees at secret prisons drew bipartisan criticism from House lawmakers who attended a closed hearing yesterday at which the agency's acting general counsel testified about the matter.

Intelligence committee Chairman Silvestre Reyes (D-Tex.) said afterward that he remained convinced that the CIA did not meet its obligation to fully inform congressional overseers about the tapes and their destruction. He called the failure "unacceptable."

Reyes said that John A. Rizzo, the CIA's acting general counsel, answered all questions, provided "highly detailed" responses and "walked the committee through the entire matter, dating back to 2002."

Rep. Peter Hoekstra (Mich.), the panel's ranking Republican and former chairman, said Rizzo suggested that Jose A. Rodriguez Jr., the CIA's head of clandestine services, acted on his own authority in November 2005 when he ordered that the tapes be destroyed. "It appears from what we have seen to date that Rodriguez may not have been following instructions" when he ordered the destruction, Hoekstra said.

"There was a long debate about what should be done, and all indications are that Rodriguez should have halted when he gave the go-ahead," he added. Rest of Article. . . [Mark Godsey]