Sunday, March 7, 2010

Lone Stars and Buckeyes II: Innocence

I note that I've put the label "Innocence" on thirty posts, which is something over 10 % of all I've written since I started this blog back in May last year.  That's a lot of talk about a subject of which I'm not particularly fond.

First, it's not basically what I deal with as a criminal defense lawyer.  As a criminal defense lawyer, my subject is guilt.  (Yes, I'm oversimplifying.  A lot.)  The government must prove my client guilty with evidence lawfully obtained and properly presented to the jury.  At trial, my job is to prevent them from doing that.  Post-trial, my job is to show that they failed.  

Stewing about innocence is a distraction and a dangerous one, since it suggests that I have something to prove.  I don't.

Even as an abstract proposition, innocence is iffy.  I've talked about that before, too.
There's legal innocence, but that's simply a failure of the state to prove guilt beyond a reasonable doubt or the success of an affirmative defense. You know, Mary did stab Elmo with the ice pick, but it was self-defense so she's legally innocent. Lots of people who do things that are ordinarily criminal are found not guilty (i.e., legally innocent) either because the jury got it wrong or the state screwed up or there was some legally acceptable defense. But that doesn't mean you want to have them over for dinner.
There's presumptive innocence, which comes at an earlier stage, has only to do with trials, and says that the accused will be presumed innocent unless and until the state proves guilt beyond a reasonable doubt. Even the guiltiest folks (whatever that means and whoever they are) are presumed innocent before there's a finding of guilt made.
There's moral innocence, but outside newborns and perhaps Jesus or the Dalai Lama, that's a pretty limited group of people - and not who we're after.
We usually mean something like factual innocence. It wasn't self-defense because Mary did not, in fact, take an ice pick to Elmo. But what if Mary handed Steve the ice pick? Is she factually innocent? Might depend on the charge and the local law.
Innocence, you see, is not as simple a thing as it sounds.
That's maybe a shame, since easy stuff is, well, easy.  But if we're going to complain about retentionists and prosecutors bandying about over-the-top declarations of guilt, a bit of discretion on our side is probably warranted too.  

As Roger Coleman should have taught us, not every seemingly compelling tale of misplaced prosecution is in fact a tale of misplaced prosecution.  Some criminals are pretty good liars.  And police and prosecutors are sloppy and dishonest in the investigation and prosecution of the factually guilty as well as of the factually innocent.

But, of course, there are the factually innocent.  I'm not talking about the dead innocent guys now.  Todd Willingham will be back on the radar in April when the Texas Forensic Science Commission is scheduled to have another effort by John Bradley to blow off, whitewash, or cover-up the report.  I'm talking about a couple of guys who are still alive.  One's hanging by a thread.  The other's home for the Oscars.

The one who's home is Joe D'Ambrosio.  I wrote very briefly about him the other day, but there's a lot more to say.  District Judge Kathleen O'Malley has said quite a bit of it in her rulings, but that's a ton of stuff to read.  So maybe you should just read "A Question of Truth, Life, Death" by Karen Long from the Cleveland Plain Dealer in 2003.  Or this one, "Unluckiest Man on Death Row,"  by Martin Kuz in Cleveland Scene back in 2001.

The quick and dirty?  Pretty much by chance, Neil Kookoothe (who is priest, lawyer, and nurse) happened to hear D'Ambrosio's protestations of innocence and decided to follow up.  What he discovered was a prosecution tainted by perjury, hidden exculpatory evidence, and fabrication.  And, more importantly, a prosecution in which the evidence (when you actually looked at the evidence rather than the censored version the prosecutors let out) seemed to point directly to innocence.  The more he dug, the worse it seemed.  And the more he and D'Ambrosio's lawyers went after it, the more the prosecutors lied and obfuscated.

In 2006, O'Malley ordered a new trial.  In 2009, while everyone was preparing for the new trial, and after still more evidence of innocence emerged, the key witness for the state (and from the point of view of at least some of us who've studied the case, the likely killer) died.  The prosecutor kept that secret from the judge who'd preside over the new trial, from the defense, and not incidentally from O'Malley.  Bad move.  Dishonesty on dishonesty.  Playing fast and loose after being caught playing fast and loose.

So O'Malley said they couldn't try him again.  It's hard for a federal judge to do that, she said.  The state has to really screw up.  It did.  Want to get a flavor for it.  Take a look at this editorial in today's Cleveland Plain Dealer.
If she operated in, say, a Warner Brothers cartoon instead of a federal courtroom, U.S. District Judge Kate O'Malley might have taken a frying pan to the head of Cuyahoga County Prosecutor Bill Mason.
Instead, in a sharply worded opinion last week, O'Malley laid a cast-iron hit on Mason and his office for their handling of the Joe D'Ambrosio case. She also barred them from retrying D'Ambrosio for the 1988 killing of teenager Tony Klann, whose body was found floating in Doan Brook in Cleveland, neck slashed. 
I suppose it's theoretically possible that D'Ambrosio killed Tony Klann.  Many things are possible.  And Mason still wants to retry D'Ambrosio, so either he's still covering his tracks (he was one of the trial prosecutors back in 1988) or he believes the apparent fantasy he's spun about the guy's guilt.  But there's simply no credible evidence that D'Ambrosio had anything to do with Klann's death.

And more than 20 years of lies and fabrications and hiding the ball and cheating and deception by the Mason and his office - well, if the case is so good and you've got the right guy for sure, maybe at some point you come clean?  And if you don't, that sure suggests that you don't even believe your own story.  Which, again, doesn't make it false, but sure casts doubt on it.

Of course, we've seen this sort of thing before.  Prosecutors routinely make every effort to avoid revealing the evidence that casts doubt - or to allow the evidence that may prove the doubt to be examined.

And so we leave the Texas of the North (Ohio) for the Texas of the South (Texas).

Because if Joe D'Ambrosio is a free man (though Mason's still trying to find a way to kill him), Hank Skinner is looking death in the face.

I've avoided writing about Skinner until now because, frankly, I didn't have much to add.  Another horrible story of prosecution gone wild, evidence hidden, probable innocence ignored, murder by the state imminent.  Ho hum.  What else is new?

Hank Skinner allegedly killed Twila Busby and her two sons on New Years Even 1993.  He was in the home (either committing murder or passed out while someone else did).  There were a couple of spots of blood on his shirt.  And a neighbor and former girlfriend of his testified that he confessed to her.  He always said he was innocent.  The evidence against him was always shaky, but strong enough that if you'd been a juror at his trial you'd almost certainly have voted guilty.  But as the evidence has actually been examined, it's tended to evaporate.  Balko summarizes:
· Andrea Reed has since recanted her testimony. She now says she was pressured by police and prosecutors to falsely incriminate Skinner. In an interview with Medill students, she added that, “I did not then and do not now feel like he was physically capable of hurting anybody.”
· The untested DNA included blood taken from the murder weapons, skin taken from under the fingernails of Skinner's girlfriend, a rape test taken from her that included semen, and other blood and hair found at the scene. Skinner asked his attorney to request the evidence be tested in a letter written in 1994. The attorney never made the request, stating later that he feared doing so would implicate his client.
· Skinner's girlfriend had been stalked by an allegedly lecherous uncle, Robert Donnell. Witnesses say Donnell had approached her at a party she attended the night of her death. She left frightened, and he appeared to have followed her. A friend says the uncle had raped her in the past. Days after the murders, a neighbor reportedly saw the uncle thoroughly cleaning and repainting his truck.
· Skinner's court-appointed attorney was a former prosecutor who had actually prosecuted Skinner on a minor assault and car theft charge years earlier. Skinner's two prior crimes—which his own attorney had prosecuted—were used as aggravating factors in the death penalty portion of his trial.
· According to a new report (PDF) by toxicology specialist Harold Kalant, a moderate drinker with the levels of codeine and alcohol Skinner had in his blood would have been comatose or dead. A heavy drinker may have been rousable, but would have been "stuporous," unlikely to have the coordination necessary to carry out three murders involving multiple stabbings and bludgeonings.
And then there's the DNA.  See, that was what would silence the critics.  It would prove Skinner was the killer.  Norm Pattis tells that story.  
Prosecutors promised to silence critics by submitted 14 peices of evidence for post-conviction testing. Much to the suprise of the Texas lawmen, the DNA tests did not provide more nails for Skinner's coffin. Instead, the tests raised more doubts about whether Texas plans on killing an innocent man.

One test involved a hair found clutched in Ms. Busby's hand at the time of her death. The prosecutors argued it was a hair from the killer. If so, then Skinner is not the killer: the DNA tests exclude Skinner as the person from whom the hair came. Other tests are reported either to exonerate Skinner or are said to be inconclusive.

Texas has apparently put a lid on the test results for many of the items tested. Highly probative results from broken fingernail clippings and the forensic rape kit are being withheld from public view: the state will not even discuss the results. The conclusion to be drawn from this is obvious: these test results must exonerate Skinner. Clearly, if they were further proof of his guilt, the state would have held a press conference by now to trumpet the results.

There's more to test.  The state has fought, tooth and nail, to prevent it being tested.  As I keep saying, if they're so damn sure that they're comfortable killing the guy, why are they so unwilling to have a final check?  And if they aren't so sure, then even if you believe in the death penalty and believe that Busby's killer should be executed, then maybe Skinner shouldn't be.  I mean, we ought to be confident we're killing the right guy, shouldn't we?
Around the time Governor Ryan emptied death row in Illinois after understanding that there had been more exonerations from the row than there had been executions, someone said that every state was like Illinois.  The only difference was that in Illinois they'd dug up the evidence.  And they had a governor who, whatever his faults (the many is in a federal prison now, after all), wasn't prepared to endorse killing folks who might have been innocent.

When I moved from Texas to Ohio in 1989, Ohio hadn't started killing its death row inmates.  That's changed now, of course, as the Buckeyes try to match the Longhorns.

I know.  I know. I'm being cynical again.  Most people, even most prosecutors and judges, even those in Texas and Ohio, don't want to see factually innocent people executed.  And yes, I'm aware that most of the people convicted of crimes, even most of those on death row, are factually guilty of something close to what they're charged with.  

I'm also aware, and frankly you have to be willfully blind to actually look at these cases and not be aware, that sloppiness and cheating and dishonesty and hiding potentially exculpatory evidence and ignoring probable innocence aren't nearly as rare as they should be.  They should be non-existent.  They happen a lot.  A whole lot.  Does that mean that all those are cases of factual innocence?  Probably not.  

But whether what we're talking about is willful blindness, gross incompetence, or actual malice on the part of the state, it ought to give us pause.  

I mean, wouldn't you want to know?  Don't you think it's worth finding out?


  1. "as the Buckeyes try to match the Longhorns"

    Ain't gonna happen. Not on the gridiron; not in the execution chamber. ;)

    Didn't realize you'd lived in Texas. Are you a native?

  2. We'll do a bet sometime. Good BBQ v. Tony Packo's. We both win if you win.

    Not a native. After graduate school, my wife got a job at Texas Tech so we moved from Michigan to Lubbock. I taught in the English department at Tech for a few years, then went to law school there. We left after 12 years when my wife took a job in Ohio.

  3. Hey, I was just kidding about Packo's. Don't sue me. It's a great place. I go there with some frequency.