What is truth, said jesting Pilate

Back in 2010, Times columnist Nicholas Kristoff had an op-ed about Kevin Cooper, a black man on death row in California for stabbing four people to death and leaving for dead a fifth who somehow survived and said the killing was done by 3 white guys. Kristoff's op-ed grew out of a dissenting opinion by 9th Circuit Judge William Fletcher in Cooper v. Brown, arguing that Cooper was likely factually innocent, had been framed by the cops, and that the courts and prosecutors and government authorities were at least passively complicit.

As Fletcher's dissent was a jumping off point for Kristoff, so his op-ed was a jumping off point for a blog post I wrote.

Today, in the Times on-line and I think set for a print version in the Sunday paper, Kristoff has a lengthy follow-up, detailing his own investigation. It's powerful. Well worth reading for justice gone awry and for the active unwillingness​ of those sometime Democratic heroes Jerry Brown and Kamala Harris to just take the smallest of steps - allowing the DNA testing to go forward. The testing that might well show it wasn't Cooper - which seems pretty likely, but who knows.

As I've regularly said here,

JUST TEST THE FUCKING DNA

But Jerry Brown (yeah, that Jerry Brown, the former Governor Moonbeam, the present Governor Old-Liberal-Icon) won't allow it. And Kamala Harris, once California Attorney General, now Senator Harris - she (like Jerry when he was California's AG) just wants the conviction affirmed and Cooper to stay in prison forever unless he's killed and damned with any DNA testing.

It's worth noting how Kristoff explains his continuing passion for the case:

It’s obvious to you by now that this is not a usual column — I’m not sure The Times has ever published a column of this length — so why am I exploring the case with such passion? I became interested primarily because Fletcher and other respected federal appeals judges had said he was framed. That just doesn’t happen.

I’m also haunted by something else. In 2000, I proposed reporting a lengthy piece about doubts about the conviction of Cameron Willingham, who was then on death row in Texas for the arson murder of his three children. An editor talked me out of it, and I never did write about Willingham, who was executed in 2004. Since then, growing evidence has emerged that he was innocent, and perhaps it’s partly to atone for my earlier failure that I’ve taken up Cooper’s case.​Which does sort of make the point that Cooper's not the only one. That death row, and really all our prisons (and our jails, too, but that's a different story), have significant numbers of folks in them who are likely to be innocent.

Wholly, factually, innocent. Wrong guy.*  Or, even, crime didn't happen.**

All of that ​​is quite an extraordinary explanation from a Times columnist, I think.

And he follows it up with the plaint of everyone who recognizes that we're supposed to have a system of something like justice - whatever exactly that might be.

Maybe in the grand scheme of things, the fate of one man on death row doesn’t seem so important; innumerable people die tragically every day. Yet we aspire to be a nation where we are all equal before the law, and if we execute a man in so flawed a case without even bothering to test the evidence rigorously, then a piece of our justice system dies along with Kevin Cooper.

Governor Brown, if you’re reading this, I understand that you may believe that Cooper is guilty. But other smart people, including federal judges and law school deans, believe him innocent. So how can you possibly execute him without even allowing advanced DNA testing, at the defense’s expense, to resolve the doubt? What’s your argument for refusing to allow testing? ​

Though Kristoff doesn't say it this way, testing will lead to one of three conclusions:

1. Cooper's guilty, in which everyone can go home and rest assured.
2. Cooper's an innocent guy we wanted to kill, in which case we can try and find the real killer and, by the way, do what we can to make sure we don't keep doing shit like this and also try to make some small amends to Cooper for his wrongful decades on death row.
3. Can't really tell shit. In which case, we'll at least have tried.

So what's the harm? What, exactly, are they scared of?  Don't we want the truth?

Oh, yeah, I forgot.

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*In which case, of course, the right guy is presumably still out there on the streets.

**The likelihood in Willingham's case.  The fire was probably not arson but an electrical fire from bad wiring.

If You Broke It, You Should Pay for It

Dog-bites-man news from the Times:  

They won't be pardoning Cameron Todd Willingham anytime soon.* 

What?  You thought they would?  You thought that Texas would admit that his conviction, death sentence, and execution for a crime that did not occur was a horrible - even if an understandable - mistake?  You thought Rick Perry's parole board would acknowledge that he wasn't a minister of justice when he signed off on Willingham's killing while the evidence that there was no crime (and therefore, duh, no criminal) was right in front of him?  You thought they'd say that he was just a stone killer? And they were too?

Grow up.

Which brings me to Joe D'Ambrosio, though it's not the same thing.

For one thing, he's still alive.  Ohio (that's another difference) wanted to kill him.  This time there was in fact a crime (yet a third difference).  Anthony Klann was murdered.  Eddie Espinoza (the state's key witness against Joe) and Stoney Lewis (the only one with an actual motive) are the ones who slit his throat, then dumped his body.

But Joe spent 22 years on death row, not fighting for a life sentence but fighting to be free.  Because he didn't kill anyone.  Wasn't there.  Not him.  No way.

So how'd it happen?  The prosecutors lied and cheated.  Hid evidence.  Made shit up.  They'd done it to other folks.  They did it to Joe.  

I'm not exactly saying that they set out to frame an innocent man.  I'd guess that they figured Espinoza was telling something close to the truth when he cut a deal to save himself and blame Joe and Michael Keenan.  And then - well, what's the point of taking him to trial if you don't ensure that the evidence will convict him?  And if you have to invent some evidence to ensure that, and if you have to hide some other evidence?  Well, shit.  You're righteous so who gives a fuck about the rules.  They're for sissies.

Joe's out now.  Hell of a guy.  We had a few beers a couple of weeks ago, him talking about how fucked up the system is and how hard he fought all those years and how he now travels around talking to folks and trying to get them to understand.  And to act.

He was also hoping but not optimistic that maybe his lawsuit against the prosecutors and the cops and the government might get some traction in the 6th Circuit after the district judge threw it out.  This week the answer came.  No.  Oh, the circuit's opinion makes clear that Joe was victimized, that the prosecutors lied and cheated, all that stuff.  And it makes clear that they're not supposed to do those things.  But you know, the law didn't exactly say that.  (Radley Balko lays it all out in his blog at the Post, and I'm not going to rehash it here - at least not today.) 

But like I say, Joe's a fighter.  You don't survive as he did, struggle for all those years not just to cheat the hangman but to walk out a free man, without having fight in you.  

And then there's Arthur Tyler.  He's not Willingham and he's not Joe.  

It was just over 30 years ago March 12, 1983. Someone shot and killed Sander Leach.  There were two possible killers.  Either Leroy Head or Arthur Tyler. 

The evidence all points to Head. He confessed. Repeatedly.  At least 11 times. He confessed to the police.  He confessed to friends.  He confessed to his mother for god's sake.  He confessed and confessed.  He said he acted alone.  Then the cops and the prosecutors told him that if he didn't change his story and blame Tyler, he'd end up on death row.  So he told them that he didn't do it. Tyler did.  Which they believed.  

Because who wouldn't believe a confessed murderer when, after you threaten him he decides to blame someone else?

He's out of prison now.  And here's the thing, he still says he did it and Tyler didn't.  Or at least, he was still saying it when he wrote and signed an affidavit that was filed with Tyler's post-conviction petition. An affidavit the court promptly lost.  (Really, you can't make this shit up, or at least, there's no reason to because it actually happened  and happens.  Matt Brown and Scott Greenfield have been talking about who doesn't get paid any attention by the courts. The court lost the fucking affidavit! Gimme a break.)

Anyhow, lost affidavit or not, Head was all set to testify that what he'd told folks (except the jury) was true - that he was the killer and not Tyler.  Until the cops and the prosecutors said again 

Then you'll be undoing your plea bargain and we'll put you on death row.

So once again he . . . .

Todd Willingham is dead.  Joe D'Ambrosio is out and exonerated (even if not compensated).**  Arthur Tyler?  They're planning to kill him May 28.  For the crime Leroy Head probably committed.

Look, it's not that Tyler's a saint.  It's just that he probably didn't kill Sander Leach.  And no matter how you spin that, it means he shouldn't be on death row.

And then there's this.  The law at the time said that the sentencing options did not include LWOP.  

Now, imagine a fair trial.  You know, one where Head admits what he says whenever he isn't under threat of death.  One where the cops admit that Leach had over $150 cash in his pockets after the killer left, which pretty much gives the lie to Head's claim that he saw Tyler rifling Leach's pockets and stealing whatever was there after he killed the guy.  Imagine, that is, a trial where it's clear that whatever Arthur Tyler may have done that day in March 31 years ago it wasn't murder Sander Leach.

And imagine that the jury said, OK, makes sense.  Tyler didn't kill him.  But maybe he was involved. So they convict him of a lesser crime.  Or they give him one of the life sentences.  Which include possible out dates.

It's not just that Arthur Tyler shouldn't be on death row.  It's not just that they shouldn't kill him.  It's that they shouldn't give him death in prison, which is the usual best you get if the Parole Board and the gov decide to fix things.

And really, robbery gone wrong - which is what happened just with Head as, almost certainly, the robber.  That's not a death case today.  Not in Cuyahoga County.  Tim McGinty's the elected Prosecutor now, and he'll likely support a commutation to LWOP.  William Gerstenslager, the line prosecutor who put Tyler on the row, who coerced Head, who believes despite the evidence and the logic that Tyler must have done it because he just must have.  (Head's credible when he blames Tyler because he says things he could only have known if he was there, Gerstenslager said.  Of course, if he killed Sander Leach, he was there.)  Yet even Gerstenslager has said he would support a commutation to LWOP.

And that is, after all, a win in this business.  But for the guy who didn't do it?  When the law didn't allow LWOP?  When it wouldn't allow LWOP if Tyler were tried today?

Anything's possible.  The Sun could burn out tomorrow.  Malaysia Air Flight 370 might turn up having landed safely on an uncharted island in the Indian Ocean.  The Republicans in the House of Representatives might unanimously concede they were mistaken and that the Affordable Care Act is the finest and noblest piece of legislation in American History and that their foolish opposition means they don't deserve the public trust so they're all resigning.  

It's even possible that Head told the truth when he said that Arthur Tyler killed Sander Leach.

So don't cut him loose.  But don't kill him.  And don't make it LWOP.  Give him a chance.  Really.  It's not too much to ask.  It wouldn't be the end of the Republic.  Not even the end of the Buckeye State. But it'd be the right thing to do.  

And then?  

Give Joe D'Ambrosio a boatload of cash.  It won't make up for those years, nothing will.  But it'd be a start.

And Todd Willingham?  Fess up Texas.  

I have more suggestions, but they'll have to wait for another post.  This one's too long.  

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*The parole board's one-page letter denying the pardon request said he can apply for a formal exoneration again in two years.  Because, you know, he'll be more innocent then.

**Leroy Head is out, too, having served the time for admitting under threat of death that he didn't kill Sander Leach.

They Didn't Just Kill an Innocent Guy; They Also Lied about It

Let's recap.

Cameron Todd Willingham was sentenced to death and then executed by the good people of the Great State of Texas (as they sometimes call it) for setting his house on fire and burning up his kids.  

In fact, there's no credible evidence that the fire was arson.  Every competent investigator, everyone who's studied fire, every one of them agrees.  The fire team that said it was arson based their conclusion on tradition and guess work and what one of the scientists called "old wives tales."  Before he signed off on the execution, Rick Perry was given a report telling him just that.  Did he read it?  Damned if I know.  But Perry said Willingham was a "monster."  Enough reason, that, to kill him even if he was factually innocent.  I mean, really, a monster.

OK, so there's no real evidence that Willingham did it and lots of evidence indicating that he didn't, that the fire was an accident.  

And then there was the investigation by the Texas Forensic Science Commission which Perry managed to disrupt and that then said,

Yeah, problems, but we're not going there.

And, well, it kinda just sat.

Except that it's kinda like that loose thread that once you start pulling it the whole sweater unravels. 

See, along with the junk science arson evidence, the other thing that got Willingham convicted was a jailhouse snitch, a guy named Johnny Webb.  Webb told the jury that Willingham confessed to him. Well, sure.  Of course he did.  Criminals do that all the time.  And public spirited guys who are in the next cell run to the police and, because they are noble and decent and want to see bad guys pay rat the confessor out.  And then to the jury.  Which eats that shit up.  

And as the prosecutors said, even if the arson investigation was just completely fucked up, the guy freely confessed to Webb, who of the goodness of his heart . . . . Which is more than enough evidence to convict and kill. 

Oh, sure, Webb's tried to recant.  And there's the fact that it wasn't arson, so the confession's pretty clearly bogus.  But still.

John Schwartz reports in the Times.

In recent weeks, as part of an effort to obtain a posthumous exoneration from the Texas Board of Pardons and Paroles and Gov. Rick Perry, lawyers working on Mr. Willingham’s behalf say they have found evidence that Mr. Webb gave his testimony in return for a reduced prison sentence. 

Ooops.  What's that?  A deal?  You mean it wasn't just 'cause Webb's public spirited?  He was bought and paid for?  Damn.  Shit.

Evidence of an undisclosed deal could have proved exculpatory during Mr. Willingham’s trial or figured in subsequent appeals, but Mr. Webb and the prosecutor at trial, John Jackson — who would later become a judge — explicitly denied that any deal existed during Mr. Webb’s testimony.
. . .
[Because] recantations in criminal cases are relatively common, . . . the biggest open question has been whether Judge Jackson and Mr. Webb had made a deal. Judge Jackson, who has retired from the bench, continued to insist there was no deal, even in an interview last year.

Liar, liar, pants on fire.

What has changed is that investigators for the Innocence Project have discovered a curt handwritten note in Mr. Webb’s file in the district attorney’s office in Corsicana. The current district attorney, R. Lowell Thompson, made the files available to the Innocence Project lawyers, and in late November one of the lawyers, Bryce Benjet, received a box of photocopies.
As he worked through the stack of papers, he saw a note scrawled on the inside of the district attorney’s file folder stating that Mr. Webb’s charges were to be listed as robbery in the second degree, not the heavier first-degree robbery charge he had originally been convicted on, “based on coop in Willingham.”

Bingo.

In truth, there's nothing much surprising in this.  The snitches who testify that the bad guy in the next cell, a guy he's never met before, just opened up and described the horrific things he's done and that the government is trying to prove  - well, they're pretty much always bought and paid for.  They'll generally make up any bullshit the state wants to hear.  For a price.

And the prosecutors know that if they just lie about there having been a deal, the testimony is more credible.  So lie they will.  Not always, but often enough.  And we see through it.  And the jury, which hasn't spent much time in the trenches, thinks the emperor is wearing the finest raiments.

And then, one day, sometimes.  

Barry Scheck called it a "smoking pistol."

Or maybe it's the chickens coming home to roost.  And shitting all over former judge Jackson.  And his case.

The hope, of course, is that this will be the final piece leading to a formal exoneration and admission that they killed an innocent man.

Mr. Willingham’s stepmother, Eugenia Willingham, said: “I’m real thrilled that all this has come to light. We’ll see what happens. I can’t help but be hopeful.”
His cousin Patricia Cox said that if an exoneration does occur, the family has no plans to press for damages. “We’re not asking compensation,” she said. “We’re asking justice.”

I still don't know just what justice is, but I know what she's asking for.  And I'm on her side.

A Tale of Two Tragedies

d'Hedouville who lives in Washington, D.C., told Taylor the justice system worked, both in his conviction and eventual freedom.

Gimme a break.

December 19, 1970, Tucson, Arizona, a horrible fire swept through the Pioneer Hotel.  28 people died in the blaze, a 29th died from its effects some months later.  Louis Taylor, a 16-year-old black kid was in the hotel that night trying to sneak into the Hughes Aircraft Christmas party and cadge some free drinks.  When the fire started, he and a custodian tried to put it out.  When they couldn't, he helped some of the trapped and injured get out.  A few hours later, he was arrested.

It was, said Cy Holmes, the lead fire investigator, arson.  And, he said (amazing what you can figure out from the ashes), it was probably set by an 18-year-old black guy.

Trial lasted 7 weeks.  Taylor said he didn't do it. The jury said he did.  They found him guilty of murder.  28 times.


The jury may have been convinced. Not so the judge. From the Arizona Daily Star.

After saying he would not have convicted Taylor, Judge Charles L. Hardy publicly apologized for second-guessing the jury. "The jury had so much conflicting evidence that I just judged some of the evidence differently than they did," he told the Arizona Daily Star in March 1972.

Regardless, Hardy sentenced Taylor to life in prison.  28 times.*

That was then.  This is now.  Basically everything fire investigators once believed about fire (except that it burns) has proved to be, let me put this nicely, bullshit. See, what happened is that some scientists came along and instead of relying on assumptions and hand-me-down wisdom of the ages and well, gosh-it's-just-got-to-bes, they actually did stuff like conduct experiments.  And they found that all those assumptions and hand-me-downs and gotta bes were, as I said, bullshit.

We've been down this road before, most dramatically in the case of Cameron Todd Willingham.  You remember, he's the guy who was executed for killing his kids in an arson fire that there's no actual evidence was arson even though the fire marshalls back then thought there was (though even then they should have known better).

Willingham is dead, though Rick Perry knew (at least he knew if he bothered reading the papers in front of him) that the evidence of arson was bullshit when he signed off on the killing.  Louis Taylor, though, is alive.  And as Yogi said, "It's déjà vu all over again."  The math is simple.  In 1970, it looked like arson (and apparently arson by an 18-year-old black kid).  In 2013, and really for some time now, there's simply no way of telling why the fire started.

Now, to dip into the arcana of law for just a moment, the Constitution requires that a person can be convicted of a crime only if every element of the offense is proved beyond a reasonable doubt.  One element of murder is that someone did it, that the death wasn't just a result of chance accident caused by nobody.  But what science tells us is that there's no way to know whether that 18-year-old black kid - or anybody else - started the fire.  Which means, that as of today, there's no way Louis Taylor should have been convicted.  Judge Hardy (those of you old enough to remember Andy Hardy may recall that his father was a judge, though presumably not this one) should, it turns out, have gone with his second guessing of the jury.

It's now 42 years since Louis Taylor was sentenced to prison for life.  And he's out.  His lawyers from the Arizona Innocence Project filed a motion for new trial.  Yesterday, after first refusing a deal, Taylor entered pleas of No Contest to 28 counts of murder in front of Superior Court Judge Richard Fields.  Fields sentenced him to time served and said "Welcome Home."

So Taylor's now a free man.  Sort of.  He's still (or again, depending on how you want to look at it) convicted of 28 murders there's still no real evidence were actual murders.  But he's out.  Which is something.

Of course, the prosecutors still think he did it.  Don't need no stinkin' evidence.  They just know.  So does that fire investigator who just knew it was an 18-year-old black kid.

Holmes, now 83, told The Associated Press on Monday he still stands by his determination that the fire was arson. 
"There's no question about it," he said. He added that the new findings by Taylor's defense experts are based on incomplete information because a lot of the evidence was destroyed. "They didn't spend two full days digging through that place."

No, instead, they looked at how fire actually works.  At science.  At physics.  At, you know, stuff that isn't old wives tales.  Doesn't matter.  Oh, sure there's that thing about their being no stinkin' evidence.  But what does that matter?  From today's Daily Star.

At a news conference after Taylor's hearing, Pima County Attorney Barbara LaWall explained the decision to offer the plea agreement.
Earlier this year, Justice Project attorneys filed a motion for a new trial citing advancements in fire investigations, LaWall said. Had a judge granted the new trial, it would have been difficult for county prosecutors to get a conviction because witnesses have died and the physical evidence is missing.
Some of the evidence was destroyed, and some was given to attorneys involved in civil suits against the hotel and the company that manufactured carpeting for the Pioneer.
In addition, the defense team had experts in modern forensic fire science evaluate the case and agree to testify that they would not have ruled the blaze arson. Even an investigator with the Tucson Fire Department who reviewed the available evidence was not able to determine what caused the fire.
"We concluded that justice would best be served in light of unique facts of this particular case by allowing Louis Taylor to plead no contest at this time, whereupon the court then could affirm his guilt and then he would receive time served in this case of 42 years," LaWall said. "This is not an exoneration."
The Pima County Attorney's Office stands by the original conviction, that Taylor is responsible for the fire.
"We felt that the conviction was righteous, that it would be unfair for Mr. Taylor to simply walk away without that conviction, that it was important to have that conviction for the victims who survived and for the community to know that yes, the right person was convicted," Deputy Pima County Attorney Rick Unklesbay said.

So they let him plead to 28 counts of murder because they couldn't prove he was guilty. And he took the deal because you never really know what will happen, and he's now out of prison.  Which is no small thing.  As Taylor himself explained it in the prison parking lot when he was released,

It’s a tale of two tragedies, the Pioneer Hotel fire and my conviction.

Which brings me back to where I began.  There were, in the courtroom yesterday, family members of those who died at the Pioneer Hotel that December night in 1970.  Only one spoke.

“Mr. Taylor, I stand in front of you today to say I harbor no feeling of ill will or vengeance against you,” said Paul E. d'Hedouville II, the only person to speak at the hearing on behalf of the victims.
D'Hedouville was 4 years old when his father, an attorney, was killed in the fire. He told Taylor of events his father missed, like graduations and weddings and holidays. d'Hedouville who lives in Washington, D.C., told Taylor the justice system worked, both in his conviction and eventual freedom.
“Do as you choose Mr. Taylor, but choose wisely,” D'Hedouville said.
“Do not waste your new beginning at life.”

We've been down this road before.  

42 years in prison and now a new set of convictions for 28 murders that there's no evidence Taylor committed and that even the judge who tried the case didn't think the state proved beyond a reasonable doubt (which, in any system where words actually have meaning, would mean that the state didn't prove it back then and that Taylor should have been acquitted).   I'm sorry, that's not evidence the system worked twice. 

It's evidence the system fucked up horribly once and spent decades not acknowledging it.  And it's evidence that the system is still not working.  On the other hand, as I've said, Taylor is out, which is no small thing.

And I suppose it's a good thing that D'Hedouville harbors no ill will for Taylor and urges him to "choose wisely" and not waste his "new beginning at life."  At age 59.  As a twice convicted mass murderer.  Endless possibilities, I'm sure.

Here's another thing.  Louis Taylor and Todd Willingham aren't the only guys who were convicted of horrible crimes based on bullshit fire investigations.  And Taylor's not the only one who's still alive.  Lots of the others are out there - convicted felons, maybe convicted killers.  Some still in prison. Some on death row.  And nobody, almost nobody, sees a horrific injustice or gives a fuck.

After all, their convictions proved the system works.  And Taylor got out, which certainly proves that it works yet again.

Or not.



More at Preaching to the Choir  

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*The 28 life sentences were to be served concurrently (Arizona Daily Star) or consecutively (NBC News).  Either way, he wasn't going anywhere.

It's About Damned Time

It's finally going to happen.  After years of fighting it, they conceded it should be done.

Until now, the State has opposed Skinner's request for DNA testing and argued to affirm the trial court's ruling on appeal.  Upon further consideration, the State believes that the interest of justice would best be served by DNA testing the evidence requested by Skinner and by testing additional items identified by the state.

Skinner is Hank, on death row in Texas for a crime he insists he did not commit. He's been trying to get testing done for years.  For years the state fought him.  No, they said.  It won't prove your innocence so why should we let you?  Besides, it's just a last-minute stall.  

Of course, they didn't claim it was a last-minute stall until he'd been seeking testing for over a decade.  Still, they wouldn't test and wouldn't test.  They fought him in state courts and federal courts and the United States Supreme Court.  We must not, they said, allow testing of the DNA.  It would be the end of the Republic. (OK, they didn't really say it would be the end of the Republic.  I made that part up.)

And then, Friday, that thing about "further consideration."

So what happened?

The evidence didn't change.  Whatever it was before is what it is now.

The potential test results didn't change.  They can still confirm guilt, exonerate, or be inconclusive.

Skinner still says he's innocent.

Texas still says he's guilty.

So? What did change?

Well, for one thing, it looked like they were going to lose the fight.   Brandi Grissom, for the Texas Tribune, explains.

The advisory comes a month after that hearing before the Texas Court of Criminal Appeals, in which the judges on the nine-member panel grilled attorneys for the state about their continued resistance to the testing even after a spate of DNA exonerations in Texas. In Texas, at least 45 inmates have been exonerated based on DNA evidence.

"You really ought to be absolutely sure before you strap a person down and kill him," Judge Michael Keasler said at the May hearing.

When the Texas Court of Criminal Appeals looks like it's going to rule in favor of a condemned inmate, the state has to think about what it's doing.

And there's the continuing stench over the murder of the likely innocent (proved innocent except to those who don't believe the proof) Carlos DeLuna. And of course, Cameron Todd Willingham.  At some point, they start losing credibility when they say they can't make mistakes.

Which brings us, really, to what may be what really got them to change their tune.  The adventures of John Bradley.

Here, from an editorial in the Austin American-Statesman. 

For more than a decade, incumbent Williamson County District Attorney John Bradley was a formidable force locally and at the Legislature. With close ties to Gov. Rick Perry and a reputation that instilled respect as well as fear among defense attorneys, he was considered bullet proof politically.

Bradley, you'll recall, is that man chosen by Perry to torpedo the investigation of the non-arson fire for which Willingham was executed. And Bradley is the one who spent years arguing against testing the DNA that, when finally tested, proved that Michael Morton did not kill his wife, Christine.

But then, you see, just last week, the voters of Williamson County said they'd had enough.  The job of prosecutor, they said, isn't just to get convictions.  It's to try getting it right. 

And sometimes, at least sometimes, that means being willing to re-examine the evidence.  Even if it's at the request of someone who's been convicted and insists he's innocent and it can be checked and who knows.

Bradley was defeated in the Republican primary to hold onto his job as the elected DA. Which, and this was the point of Brandi Grissom's article, kind of put the fear, probably not of god, but certainly of the voters into the minds of prosecutors.  And maybe of the Attorney General.  Who undertook that "further consideration."

My repeated admonition has been,

Test the fucking DNA.

Maybe, just maybe, they're starting to get the hint.

And it's about damned time.

Believe It . . . Or Don't

Three years now, I've been doing this.

896 posts.

God only knows how many half written and abandoned posts.

And so little changes.

Carlos DeLuna was executed in Texas in 1989.  He said he was innocent.  It was Carlos Hernandez  who did it. A team from Columbia University has now proved that to be true.  Unless you don't believe it.  Because proof, as I've said more than once, is what's found convincing to whoever. 

Cameron Todd Willingham was innocent, too. Except to those folks who don't believe it.

There are, of course, lots of others.

This morning, the Ohio Parole Board said that Abdul Awkal should be killed on June 6. Eight of them found the proof that he's a monster sufficiently convincing.

One of them, Ellen Venters, wasn't convinced.

Awkalclemency2012

Venters reviewed the same evidence, heard the witnesses speak, was present for the same arguments. 

It's that thing about proof. And believing.  

Of course, there's also that deep desire to kill.

What Awkal did is inexcusable.  That's the easy part.

But it's not all.

Except for 8 of them, the rest didn't prove anything.

For one it did.

Governor Kasich?

One More Time

As Georgia gets set to murder the quite possibly innocent Troy Davis on September 21, the Board of Pardons and Paroles announced that it will hold a second clemency hearing for him on September 19. 

In Texas, where they murdered the pretty clearly innocent Cameron Todd Willingham, the Forensic Science Commission is trying to decide whether it can continue it's investigation of that case given a ruling by the state's Attorney General limiting its jurisdiction.

And then, of course, there was the Texas Gunslinger at the debate.  The Times provided a transcript of the whole debate, but here's a video clip of the relevant part.

And here's the transcript excerpt of it.

WILLIAMS: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you...

(APPLAUSE)

Have you struggled to sleep at night with the idea that any one of those might have been innocent?

PERRY: No, sir. I've never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which -- when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that's required.

But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you're involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.

WILLIAMS: What do you make of...

(APPLAUSE)

What do you make of that dynamic that just happened here, the mention of the execution of 234 people drew applause?

PERRY: I think Americans understand justice. I think Americans are clearly, in the vast majority of -- of cases, supportive of capital punishment. When you have committed heinous crimes against our citizens -- and it's a state-by-state issue, but in the state of Texas, our citizens have made that decision, and they made it clear, and they don't want you to commit those crimes against our citizens. And if you do, you will face the ultimate justice.

There's been a lot of talk about that cheering at Perry's having overseen 234 murders.  Given the audience, I wasn't surprised.  Nor was I surprised that Brian Williams didn't ask any hard question - or ask the others if they shared Perry's view that no execution is unworthy.  These so-called debates (really, sequential position statements) are far more about talking points and preaching to the choir than about delving into substantive issues

Anyway, no surprises to speak of.

But perhaps an unintended truth.

Remember the actual question:

Have you struggled to sleep at night with the idea that any one of those might have been innocent?

And the first part of the answer, the part before he explained that they were all tried and none of them had their death sentences vacated so it was a fine thing to kill them.

No, sir.  I've never struggled with that at all.

You know, and I know, that if pressed he'd say the answer was all of a piece and that he'd never struggled with having killed an innocent person because he was confident it had never happened.  But that isn't what he said at first.  (In fact, he never said that.)  Instead he said that he'd never struggled with it.

No, sir.  I've never struggled with that at all.

You may remember that the last president from Texas called himself "The Decider" and was proud of the fact that he didn't second guess his decisions.  Really, it's kind of a Texas macho thing.  And an I'm-not-an-introspective-guy thing.

But it's also, and here we get to the point, a thing about the lack of interest in the whole issue.

Let's put aside the fact that Perry pretty clearly signed off on the murder of at least one innocent guy who, if he'd been paying attention, he should have known was probably innocent (Willingham).  It's not that he did it.  It's that he doesn't care.  Which is essentially what he said.

Stalin, of course, was right.

A single death is a tragedy. A million deaths is just a statistic.

But Perry doesn't even care about the single guy.  Or maybe he does, just not as tragedy but as
expediency.
Here's from Politico, via Grits.

Veterans of Sen. Kay Bailey Hutchison’s unsuccessful 2010 primary challenge to Perry recalled being stunned at the way attacks bounced off the governor in a strongly conservative state gripped by tea party fever. Multiple former Hutchison advisers recalled asking a focus group about the charge that Perry may have presided over the execution of an innocent man — Cameron Todd Willingham — and got this response from a primary voter: “It takes balls to execute an innocent man.”

There's nothing new, or even Republican or Texan, in using the death penalty to make political points.  Bill Clinton, after all, left the campaign trail in 1992 to oversee the execution of the brain-damaged Ricky Ray Rector.  But there's something unseemly in being so open about it.

When death penalty supporter and Republican Governor of Illinois George Ryan saw that Illinois had freed as innocent more men from death row than they had killed, he called a moratorium, then a study, and then he emptied death row.

There's something to be said for being willing to reconsider.  And for not playing politics with people's lives.

And it's well to bring Ryan up here.  His study commission was specifically designed to figure out how to make the death penalty in Illinois perfect.  Abolition/retention wasn't on the table.  The commission came up with eighty some proposals.

Here in Ohio, when Governor Ted was, seemingly, throwing darts and flipping coins to decide which death sentences to commute, he was asked to do as Ryan did and set up a commission to consider and evaluate.  Just see if it's as good as you think.  If it's not, suggest improvements.  He declined.

Governor Kasich hasn't indicated any willingness, either.  But another Republican has.  She's Maureen O'Connor and she's Chief Justice of the Supreme Court of Ohio.  Here's what she said yesterday, during her first State of the Judiciary Address.

Finally, there is work to be done on the death penalty.
If we are to support trust and confidence in the judicial system, there is arguably no issue more important than ensuring that justice is served when the state imposes the ultimate form of punishment.
That’s why I am announcing today that the Supreme Court of Ohio and the Ohio State Bar Association are forming a Joint Task Force to Review the Administration of Ohio’s Death Penalty.
The impetus for the formation of this Joint Task Force is a desire on the part of the Court and the Ohio State Bar to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.
Examination of the process by a broad-based task force of judges, prosecuting attorneys, criminal defense counsel, legislative leaders, and academics is appropriate to determine if the criteria, laws, and procedures regarding the imposition of the death penalty in Ohio are in need of attention. Is the system we have the best we can do? Convening persons with broad experience on this subject will produce a fair, impartial, and balanced analysis.
It should be made perfectly clear that the exercise to be undertaken is in no way a judgment on whether Ohio should or should not have the death penalty. This will not be in the charge to the Joint Task Force. The Task Force will examine the current laws on the subject, the practices in other jurisdictions, the data, costs, etc.  It will review the ABA death Penalty Report and identify areas in need of action and recommend the course of action.
We anticipate a Joint Task Force of approximately 20 members with diverse backgrounds in the criminal justice system, with expertise and experience in death penalty prosecution, defense, adjudication, and scholarship. The Joint Task Force will be chaired by Retired Judge James A. Brogan of the Second District Court of Appeals.

The proof is in the pudding, of course (and the devil in the details), but she's on to something.

Is the system we have the best we can do?

It's the right question.  OK, it's one of the right questions.  The other is whether to have the death penalty at all.  But if you're going to, then you want it to be as perfectly calibrated and done as possible.  You want to be sure that the system, from top to bottom, is as close to flawless, as fair, as transparent, as uninfected by bias, prejudice, money, passion, politics, whim, caprice, as humanly possible.

You want to be not just sure, and also right, when you determine that the person to be killed is factually and legally guilty.  You want to be sure, band also right, when you determine that the person to be killed is actually the worst of the worst and did the worst of the worst things.  You want to be absolutely certain that the trial was fair and the jury was fair and that any error, even minor error, is condemned and stopped, not swept under the rug.

If you're going to kill people, you want to get it right.  Close enough for government work isn't close enough.

Look, if you've spent any time at all reading this blog, you know that I'm unalterably and unconditionally opposed to the death penalty.  Always.  Every time.

But I don't live in a fantasy world.  Ohio isn't going to abolish the death penalty in the next couple of years.  We're killing people at a pretty rapid clip here (despite this 3 month blip).  And if we're going to keep killing 'em, we owe it to them - and especially to ourselves - to get it right.  Always.  Every time.

Not just close.  Not mostly.  Not, well, gee any mistakes were harmless.  Not, but his lawyer didn't object.  Not probably.  But right.

If we're going to kill, there should never be a mistake.

Is it the best we can do?

We're human, which means we can't make it perfect.  But we can sure do better than we do.  And if we're going to kill, we should.

So good for the Chief Justice.

Of course, when she sees what it takes to do it right, when the public sees what it takes to do it right, well - all those recommendations for so little reward.

But then abolition isn't on the table.  And that's OK.  Because if the commission does it's job right, abolition is what will follow.  Just ask the folks in Illinois.

Texas Three Step

STEP ONE - LET'S CALL THE WHOLE THING OFF (or Who Cares If He Was Innocent?)

That's Cameron Todd Willingham, of course.

I'm not going to review the whole sordid mess in detail here, just the quick and dirty by bullet point.

• Convicted of capital murder and sentenced to die for setting a fire that killed his kids.
• Evidence that the fire was set is pure junk.  Science says there's no evidence of arson.  As in none.
• Executed anyway.
• When he signed off on the killing, Gov. (and presumed presidential candidate) Perry had the information before him about the junk science but chose to ignore it.
• More investigation makes public aware that there's essentially no evidence of murder.
• Texas Legislature sets up Forensic Science Commission to investigate shit like that.
• Just as Commission is set for hearing on Willingham case, Perry replaces three members, including the chair.
• New chair, John Bradley, calls off hearing.  Rewrites Commission rules to prevent any investigation.  Commission eventually rebels.
• Hearing is held after Perry is relected (which seems to have been the point) and surprise, experts say what we knew - no evidence of arson.  State brings in a lawyer to say that in his opinion there sure was.

Do you reopen cases?  Do you issue a real report on Willingham?  Do you admit killing an innocent guy?  Do you admit there's at least a chance you did?

Or do you get the Attorney General to issue an opinion saying that Commission could investigate the case but couldn't look at the evidence?

Alan Turner, writing in the Houston Chronicle, notes that current Commission chair, Dr. Nazim Peerwani, doesn't know for sure what will happen next.

"We will debate what impact the opinion has on Willingham at our meeting in September," he said. "It's something we will collectively decide."

Bradley, who was ousted from the chairship by the legislature, knows the right answer.

"I'm not on the commission, so I don't know what it will do," he said, adding that, given Abbott's ruling, moving forward with the investigation "would really threaten the rule of law."

He meant to say the Law of Rule.  Or maybe the Law of Cover-Up.  But then, like Humpty Dumpty, when he uses a word 

it means just what [he] choose[s] it to mean -- neither more nor less.

OK, maybe less.

Paul Kennedy has more on this.

STEP TWO - YOU'RE BREAKING MY HEART (or "It's real lives we are dealing with")

 

Last week, Rufus Sito Nanez, III lost his appeal.

Nanez had appealed his conviction on two counts of aggravated sexual assault.  His claim was that his trial lawyer was a grotesque incompetent.  The court of appeals disagreed.  Actually, it didn't just disagree.  It excoriated him and his appellate counsel.

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done.   Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact.   Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective.   Those before us today should heed that admonishment when next they think about invoking the theory.   Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client's interests.   It “ain't” a game folks;  it's real lives we are dealing with.

Well, yeah.

But the lives at issue aren't the lives of the lawyers.  They're the lives of the defendants. 

The opinion in Nanez was written by Justice Quinn.  He's been down this road before.  In fact, he cites  an opinion he wrote in 1998 making the same point.

Claims of ineffective assistance seem to be the newest tactic in the criminal defense arsenal. They are increasingly being offered as a means of attacking the judgment. Yet, it has been our experience that very, very few have any semblance of probative value. Instead, appellants have ignored the admonishment that hindsight and perfection are not the test and have taken to castigating counsel for not doing what they would have done if they were lucky enough to have a record of the completed trial before them. It is enough that attorneys have become the butt of disrespect and incessant jokes within the public eye. But, to have attorneys attack attorneys on utterly baseless grounds, like here, where appellant does not even attempt to question the evidence of his guilt, is unacceptable.

OK, got it now.  You can only claim your lawyer was a fuck up if you're factually innocent.

Otherwise we might be concerned about, say, fair trials.

H/t Liberty and Justice for Y'all

STEP THREE - GOODNIGHT IRENE (or Don't Let the Door Hit You on the Way Out)

Killer Keller is running for Chief Judge of the Texas Court of Criminal Appeals.  Why not?  She wasn't actually censured or removed from office or defrocked or anything.  And there are still doors to slam, so her work isn't done.

If she wins the election this year and serves her full term, she'll have been CJ longer than anyone else in Texas history.  Enough.

From Grits.

Judge Larry Meyers - usually a member of the Keller-Hervey pro-prosecution wing of the CCA - has decided to run against Sharon Keller as presiding judge in 2012 in the Republican primary.

I'm not sure there's actually a wing of the court that isn't "pro-prosecution," but I get the point.  You wouldn't expect it of Meyers.

Meyers' challenge comes from a judge who's sided with Keller on most topics - and even went on a damage-control tour with the media on her behalf at the height of her troubles - but who now appears to have had enough of her. 

According to the Fort Worth Star-Telegram, there's nothing personal or even substantive here.  Meyers just thinks it's time for a change.

The normal term for this position is 8-10 years. As such, it is time to rotate the presiding judgeship on our Court.

More to keep a eye on.

As they like to say down there, 

It's a Whole 'Nother Country.

You Really Can't Trust Them, Any of Them, Really, You Can't

When we who toil in this small vinyard of criminal defense blogging write about how you can't trust the government, it's usually stories about cops or prosecutors or judges or alleged forensic experts we're telling.
Just this week, for instance, there was the cop in Las Vegas who "in a professional and compassionate way" (that's what the police department spokesperson said) made it his business to go to the emergency room where 13-year-old Takara Davis was in a medically induced coma while doctors tried to staunch the bleeding in her brain.  In his "professional and compassionate way," and since he couldn't actually give the citation requiring a court appearnce March 6 to the comatose girl, and careful not to do anything "deliberately insensitive," the cop decided he shouldn't intrude and that really, how important is a jaywalking ticket in the scheme of things turned and handed the ticket to Takara's mother.

Take that, bitch.  Teach you to let your kid walk home from school.

(h/t 8 News Now, via Elie Mystal at Above the Law, via Patrick at Popehat) 

* * *

But it's not only those involved in order enforcement.  Really, it's pretty much anyone the government has do anything.  (Important qualifier here.  Private business is no better.  See BP and the Gulf Oil Disaster.  Those who say if we'd just privatize everything would be hunky-dory live in their own fantasyland.)

Consider the business of demolishing a home.  Should be a simple chore, right.  The contractor takes the heavy equipment to the address on the piece of paper and KABOOM or something.

Alas, it seems it's too often the "or something."  Just ask Andre Hall of Pittsburgh.

He bought a foreclosed home in November.  He'd started the rehab work.  He was getting set to move in with his girlfriend and her five children in three weeks.  But on Monday, when he returned to get back at it.  Ooops.  No house.

Sure, there'd been a demolition order.  But that was rescinded November 3.  The contractor was properly there to take down the house next to Hall's.  And you know, as long as they were demolishing.  Amazingly enough, they restrained the urge to flatten the entire block.

The city promptly took ducked responsibility.  (According to the Pittsburgh Tribune Review, the city said that it won't pay for the demolition of Hall's house.  It didn't say whether Hall will be asked to pay the bill.)

Of course, this is a one of a kind sort of thing.  You know, it an odd event that there was never anything like before.  Except, well, here's Brett Michael Dykes at Yahoo News.

Experiences like Hall's are distressingly common. There's the homeowner in Carrollton, Georgia, who saw the house built by his father flattened by careless city contractors who'd been following a faulty GPS locator. There was the woman in Denton, Texas, who was working in her garden as a demolition crew, mistaking her lot for a condemned property across the street, gouged an enormous hole into her front yard, which promptly claimed her porch, and rendered the remainder of the house structurally unstable. And there's the Jackson, Miss., woman whose home was flattened after pranksters took a sign erected to condemn an adjacent vacant lot and placed it in front of her home.

* * *

Still, it wouldn't be fair to focus only on the bad apples.  Down in Texas on Friday the Forensic Science Commission finally (and I have to say surprisingly) heard actual testimony from the scientists who know something about fire and how things burn and actual evidence of arson.  What they said (which is what they've been saying all along) is that it's impossible to know for sure what caused the fire that burned up Cameron Todd Willingham's kids and got him executed.  It's impossible to know for sure because the investigation - even by the standards of the day - was botched.

But if they can't know for sure, they can give a good guess.  Electric short circuit.  Not in the wall (which is rarely where electrical fires start) but in something plugged into an outlet.  You know, the things the fire investigators tossed out without looking at so there's no checking.

Oh, and the actual experts who know whereof they speak also said that there is no evidence, none, zippo, that it was an arson.  They didn't say it's impossible, just that there's no evidence of it.  Everything the fire investigators pointed to absolutely does not support the claim.

Fear not stalwart supporters of Willingham's guilt in spite of the total lack of evidence.  John Bradley, appointed by Governor Perry to ensure that there would be a whitewash did, according to Grits, a thorough job of cross-examination. 

One thing I didn't see reported, but which definitely affected the dynamic in the room, was that the crowd was restless, at times even modestly heckling Chairman John Bradley as he interrogated the visiting scientists in a confrontational, sometimes demeaning fashion. At one point a woman I didn't know sitting two seats down from me exclaimed audibly, "Who does he think he is?" At another point, Bradley was trotting out some (easily rebutted) red herring in response to claims by John DeHaan, one of the top minds in the fire science field who literally "wrote the book" on the topic, “Kirk’s Fire Investigation,” used to train arson investigators since the 1980s (and during the period of the Willis and Willingham cases). As Bradley droned on, an exasperated onlooker in the back exclaimed, "Jesus Christ!," causing the crowd to laugh and twitter. Several times outright laughter broke out, and not always at intentional jokes but also at disingenuous rhetorical ploys by the chair. All that to say, there was a tension in the room from the outset that continued and built throughout the day, driven by the chair's bullying tactics and the collective backbone of the experts and several commissioners who insisted on focusing on the science.  Bradley, instead, clearly wanted to debate Willingham's guilt or innocence. The scientists, to their credit (and the crowd's approbation), wouldn't be baited and simply refused to go there.

Speaking of Bradley, he seemed quite animated by the exchanges with experts, even as they adroitly dismissed his main points of attack. One wag suggested he seemed to relish for once playing the role of defense attorney, trying to inject "reasonable doubt" into the unanimous testimony by fire scientists before the commission. He could have just let them speak and allow the scientists on the commission to ask the questions (the time allotted for questioning each expert was limited), but he dominated much of the discussion, asking more questions and taking up more time than any of the scientists on the panel, who otherwise I thought did a great job. They were engaged, very prepared, their questions were probing, and best of all (from my perspective) they stood up to the chair and insisted on bringing the discussion back to questions of science and ethical responsibility. 

Sigh.

Anyway, the state brought in its own expert: Ed Salazar, a lawyer.  His position:  The arson report prepared at the time could have been more thorough and detailed.  And maybe there was a mistake or two.  But arson is a judgment call, and in my professional judgment as a lawyer [OK, I made that part up], this was the right call.  After all, there are the pour patterns and the burned carpet and even by today's standards that's proof of arson.

You know that old saw about not sending a boy to do a man's job.  Here's a related one.  The lawyer can jump up and down all he wants, but when he's talking shit, everyone can tell.

Eventually, the Commission is supposed to issue a report.  But before then, let's think about Texas (your state, too, but this all happening in the land of the bluebonnets (the state flower, don't you know).  They've been doing this sort of shoddy fire investigation for years.  The state fire marshal stands behind it.  Willingham got executed.  At least one man, Ernest Willis, had his conviction reversed because the same sort of shoddy evidence was used to convict him.

So here's the question?  If you're the state Fire Marshal, do you reopen maybe dozens or hundreds of thousands of cases to figure out if you've got innocent people convicted of crimes?  That's what Commissioner Sarah Kerrigan wanted to know.  Here's Dave Mann in The Texas Observer.

Kerrigan asked if the Fire Marshal’s office—in light of recent discoveries in the field—had gone back to examine the thousands of older cases it investigated with what now appears outdated knowledge.

This is the key question. As I’ve written before, nothing can be done about the Willingham case now. What matters is whether lessons gleaned from the case can help free anyone wrongly convicted of arson. There are 750 people in Texas prisons on arson convictions and many could be innocent.

Salazar wouldn’t answer the question directly. He said he hoped any investigator who became aware of a mistake would come forward.

But it became clear that the answer to Kerrigan’s question was no, despite the disturbing implication that hundreds of people may have been wrongly convicted of arson, the Fire Marshal’s office hasn’t bothered to review its case files.

I'm getting to be a broken record here, but you know, we make mistakes.  Even good faith one.  Texas keeps finding that it's got people locked up forever for crimes they didn't commit.  (See, most recently, the sad story of Cornelius Dupree, just released after 30 years for a rape and robbery he didn't commit.  See here and here.)  So do other states.

Don't you think someone in the government ought to care, ought to say, let's actively look for mistakes.  Even when we're sure.  Cause we might be wrong.

And what's the harm in being not just sure, but right?