Tuesday, March 24, 2015

Update on Cameron Todd Willingham's Wrongful Execution

As discussed earlier on this blog, Cameron Todd Willingham was executed for  murder by arson of his three young children.  Throughout his trial and incarceration, Willingham claimed his innocence.    Forensic evidence later proved that Willingham did not commit the crimes.   

Now the Texas state bar has charged the prosecutor in the case with misconduct. This is the same prosecutor who in 2009 declared during a Nightline investigation that he was untroubled by the overwhelming evidence that showed Willingham's innocence.  According to the Innocence Project website:

"The bar accuses the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Willingham's defense, according to a disciplinary petition filed in Navarro County District Court this month." 

Co-Editor Brian Howe previously wrote on the topic.  Click here for his report.




March 24, 2015 in Brian Howe, Margaret Drew | Permalink | Comments (0)

Wednesday, March 11, 2015

Forensics Implementation and Human Rights

By Brian Howe

Liliana Segura has an interesting article over at The Intercept about the case of Claude Garrett, who was convicted in 1992 of killing his girlfriend Lorie by (or at least, in connection with) burning down the house they shared.

Garrett's story illustrates the problems with junk science in arson investigations. The case also illustrates how advancements in forensics are not self-implementing, and mere acknowledgment of these problems does not dispel them.

If Garrett's story sounds familiar, it may be because it is remarkably similar to the Cameron Todd Willingham case.  Like Willingham, Garrett escaped a burning house.  His girlfriend, Lorie, did not and was found trapped downstairs, dead from smoke inhalation.  Neighbors who initially did not report anything wrong began to notice, in hindsight, that Garrett's reaction was strange or not sufficiently emotional.  Garrett had a lengthy criminal history and was easy to villianize.  Most importantly, arson investigators testified from simple observation that they knew the fire in Garrett's house was the result of arson.

We now know that much of the methodology used in arson investigations at the time-- if it can even be called a methodology-- was severely flawed.  But although knowledge of these problems has been around for decades, since as early as the 1990s, the lessons have yet to be fully absorbed by some fire investigators:

"Recent experiments have yielded troubling results. In one 2005 test, ATF researchers asked 53 professional fire investigators to pinpoint the origin of a series of post-flashover fires. Only three were able to do so accurately — most drew false conclusions based on burn patterns. In 2011, a test conducted by  the California-based Arson Research Project asked professional fire investigators to assess 12 post-flashover burn patterns and distinguish between those that involved a liquid accelerant and those that did not. In reality, there is no way to tell the difference based on visual evidence alone. Yet out of 33 investigators, only three responded that such a conclusion could not be determined based on this evidence."

To have only 1 in 10 investigators acknowledge the impossibility of visually deducing arson from pour patterns, as recently as 2011, is inexcusable.  How many of those investigators continue to offer these same opinions in criminal trials?

Scientific advancements do not automatically incorporate themselves into the bureaucracy of our criminal justice system. Instead, lawyers and judges are tasked as gatekeepers as to what evidence comes before a jury. Garrett's case became a perfect example of how this can go wrong when he was granted a re-trial in the early 2000s.

"But at the retrial, which began on July 21, 2003, nothing went according to plan. [Defense attorney] Scott did not call Dr. Roth. The projector equipment [defense expert] Bayne planned to use to demonstrate fire behavior to the jury malfunctioned — and Scott took him off the stand before he could thoroughly explain fire behavior. Aside from a cursory mention in Scott’s opening statement, the jury heard almost nothing about NFPA 921 — and very little about modern developments in fire science. Defending his theory that the fire was accidental, Bayne said during cross-examination that if [the victim] Lorie had dropped a cigarette in the love seat, “Lorie created this tragedy.” The poor turn of phrase was seized upon by prosecutor Jon Seaborg as suggesting she had been “responsible for her own death with her cigarette smoking.”"

At the original trial, prosecutors presented testimony that the initial people at the scene had found Lorie locked in a utility room from the outside.  Garrett initially won his new trial, not because of junk arson science, but because investigators were found to have withheld documentation that this room was not locked when first responders arrived.  Incredibly, on both this point and the junk arson science, the State's approach at the new trial was to simply push forward with the original story.

"Meanwhile, testifying for the state, Fire Captain Otis Jenkins said he had no memory of telling police that the utility room was unlocked. (“I’ve said the whole time that the door was locked,” he said.) But most significantly, Cooper, who had stopped investigating fires in the mid-90s, continued to swear by the same theories about pour patterns that had been exposed as myths more than a decade before. His conclusions, he said during cross-examination, were reached “[j]ust through my training and experience.” He added, “If I’m proven wrong I will admit I am wrong. But on this one, no sir. I was there. I saw it with my eyes.”

It took the second jury less than five hours to send Claude back to prison."

Garrett has been unsuccessful in recent litigation to re-open the case a second time.  There has been some push recently towards finding a substantive due process right against conviction based on faulty science.  That may help provide some kind of baseline accountability in situations like these. 

Garrett's case is a useful reminder that scientific advancements towards identifying junk science are necessary, but not sufficient, to prevent wrongful convictions.  Dispelling myths inherent in junk science is critical to effective human rights advocacy in both our criminal and civil justice systems.

March 11, 2015 in Brian Howe | Permalink | Comments (1)

Monday, January 26, 2015

More Reflections on Why The Poor Can't Trust Our Institutions

by Brian Howe

Why would you trust authority figures in municipalities where one of the primary functions of the police force appears to be extracting revenue from the poor in the form of onerous fines for petty offenses? 

 As the Washington Post reported:

"There are 90 municipalities in St. Louis County, and more in the surrounding counties. All but a few have their own police force, mayor, city manager and town council, and 81 have their own municipal court. To put that into perspective, consider Jackson County, Mo., which surrounds Kansas City. It is geographically larger than St. Louis County and has about two-thirds the population. Yet Jackson County has just 19 municipalities, and just 15 municipal courts — less than a quarter of municipalities and courts in St. Louis County.

Some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts. A majority of these fines are for traffic offenses, but they can also include fines for fare-hopping on MetroLink (St. Louis’s light rail system), loud music and other noise ordinance violations, zoning violations for uncut grass or unkempt property, violations of occupancy permit restrictions, trespassing, wearing “saggy pants,” business license violations and vague infractions such as “disturbing the peace” or “affray” that give police officers a great deal of discretion to look for other violations.  In a white paper released last month, the ArchCity Defenders found a large group of people outside the courthouse in Bel-Ridge who had been fined for not subscribing to the town’s only approved garbage collection service. They hadn’t been fined for having trash on their property, only for not paying for the only legal method the town had designated for disposing of trash."

The Washington Post story by Radley Balko is fantastically depressing and worth reading in full to get a real idea of the scope of the abuse in St. Louis County.  But of course this  is not a uniquely St. Louis problem as NPR recently reported:

"If you get caught drinking and driving in Wisconsin, and it's your first offense, you lose your license for nine months. For a hit-and-run, the punishment is suspension for one year.

But if you don't pay a ticket for a minor driving offense, such as driving with a broken tail light, you can lose your license for two years.

"It's an incredible policy," says John Pawasarat of the University of Wisconsin, Milwaukee. It's "a policy of punishing people who can't pay their fines."

The practice — repeated in states across the country — is mostly affecting the poor and creating a spiral of bad consequences.

NPR's recent "Guilty and Charged" investigation found that rising court fines and fees — reaching hundreds or even thousands of dollars per person — often hurt poor people the most.

Systematic abuse of power by authority figures, against anyone, is a human rights issue.  But the most pernicious part of this problem is the fact that these policies are uniquely (and perhaps, intentionally) focused on a subsection of poor and minority communities.  The mistrust these policies foster is also then limited to that same narrow subset, which leaves the problem entirely off the radar for most Americans.  Most Americans will never have to deal with this kind of intentional abuse from authority figures.  That makes it too easy to dismiss this as a minor or overblown problem, and to dismiss the mistrust of authority as an overreaction.  One has to hope that bringing these abuses to light, through reporting like that described above, is a first step in taking a more honest look at the ways in which some parts of our system have earned that mistrust.


January 26, 2015 in Brian Howe | Permalink | Comments (0)

Wednesday, January 7, 2015

Why Should the Poor Trust Our Institutions?

By Brian Howe

When I started working at Legal Aid and later at the Innocence Project, I understood that the communities weserved harbored some mistrust for authority figures.  At least, I understood it on an intellectual level, as a descriptive fact about the communities and the people who lived there. The more people I get to know, the more clients and witnesses I meet--the more I pay attention to what is actually happening here-- the more I really do start to understand and feel this mistrust on a deeper level.  Why would you trust your money to a bank, when that bank just sold you subprime refinancing loan with predatory terms-- not because you couldn't qualify for a better loan, but as part of an intentional scheme to rip equity away from low-income black neighborhoods?  

 A recent New York times article described the scheme to manipulate low income people of color into "qualifying" for sub-prime loans. 
"Wells Fargo, Ms. Jacobson said in an interview, saw the black community as fertile ground for subprime mortgages, as working-class blacks were hungry to be a part of the nation’s home-owning mania. Loan officers, she said, pushed customers who could have qualified for prime loans into subprime mortgages. Another loan officer stated in an affidavit filed last week that employees had referred to blacks as “mud people” and to subprime lending as “ghetto loans.”

“We just went right after them,” said Ms. Jacobson, who is white and said she was once the bank’s top-producing subprime loan officer nationally. “Wells Fargo mortgage had an emerging-markets unit that specifically targeted black churches, because it figured church leaders had a lot of influence and could convince congregants to take out subprime loans.”"

The NAACP along wih others filed suit against over twelve banks charging systematic racial discrimination.

Multiple cases against mortgage banks for this practice-- including cases brought by the US Justice Department-- have since been settled. 

This  egregious abuse of power to manipulate the poor into contributing to the wealth of  businesses violates the human rights of vulnerable U.S. citizens.  At the same time, we appreciate responsible reporting that brings these abuses to light. 

January 7, 2015 in Brian Howe, Economics, Race | Permalink | Comments (0)

Monday, December 22, 2014

39 Years of Wrongful Incarceration

Editor's note:  Co-Editor Brian Howe is an attorney with the Ohio Innocence Project.  He recently obtained freedom for his client Ricky Jackson who was incarcerated for 39 years.  Brian is a former student of mine and participated in both the Domestic Violence Clinic and Innocence Project during my tenure at Cincinnati College of Law.  He is an amazing individual and I asked him to write about his recent case.  Below is a photo of Mr. Jackson and Brian. At the end of the post is a photograph of Mr. Wiley, whose case Brian also discusses.  M. Drew
by Brian Howe
Earlier this year, I wrote about a study estimating that 4-5% of people sentenced to death may be actually innocent.  I don't know how accurate those statistics are, or if there is any way to know for sure.  But I do believe that even one innocent person sentenced to death is unacceptable.  No one should face what Ricky Jackson, Wiley Bridgeman, and Kwame Ajamu did in 1975.  
That year, a white money order delivery man named Harold Franks was robbed and murdered as he left a convenience store in Cleveland, Ohio.  Ricky Jackson and two other men were arrested and convicted for the crime, based solely on testimony from a 12 year old witness.  The three defendants had basic alibis, and there were serious inconsistencies and flaws in the 12 year old boy's testimony. It wasn't enough. All three defendants were convicted and sentenced to death.  

Thirty nine years later, in November of 2014, the 12 year old boy-- now 51-- took the stand and admitted he had lied.  He never saw the crime.  He claimed that police began considering him a witness because of a misunderstanding, and then pressured him into moving forward with the story.  After a two day evidentiary hearing, Cuyahoga County prosecutors conceded that the case against Jackson was in shambles. and they withdrew their opposition to Jackson's release.  Last week, to their credit, prosecutors affirmed that their sole witness had lied, and that Jackson and his two co-defendants were and are actually innocent.  The office called them "victims of a terrible injustice."  Through the Ohio Innocence Project, I had the privilege of representing Mr. Jackson in the 2014 litigation.  The full background can be found in a pair of fantastic articles written by journalist Kyle Swenson.
Read newspaper accounts here and here.
There are so many powerful parts of this story.  But one of the things that has stuck with me lately is how lucky it was that any of them-- much less all three of them-- avoided execution.  The sentences were not commuted by state officials out of prudence, or cautious concern about the weakness of the case.  Ricky Jackson is alive today because of a minor clerical error in a jury form, the kind of "technicality" that has nothing at all to do with the merits of the case, and that tends to exasperate death penalty advocates. *(1)  The other two defendants are only alive because, in 1978, the United States Supreme Court intervened to reject Ohio's revised capital punishment statute.  By that time one of the defendants, Wiley Bridgeman, had been 21 days from execution.  
It would be strange to call these men "lucky," having just served a majority of their lives in prison for a crime they did not commit.  But it is sobering to think how close they came to being killed.  I am so grateful that I have had an opportunity to get to know Ricky over this past year.  He is an amazing man.  If it would be wrong to say that he is "lucky," then I think at a minimum we are lucky to have him with us, to have his story as an example of our fallibility, and maybe to learn from what happened.
If you would like to donate to Ricky Jackson or Wiley Bridgeman to help them with basic necessities, the links are here and here.  
Happy Holidays!

December 22, 2014 in Brian Howe, Criminal Justice, Incarcerated | Permalink | Comments (0)