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.

Did Kellyanne Conway murder Melissa Trotter?

It's been a while, years in fact, since I've written about Larry Swearingen who did not kill Melissa Trotter.  That's the same Larry Swearingen the good people of the State of Texas intend to kill on November 16 for the murder of Melissa Trotter.  The same Melissa Trotter Larry Swearingen did not kill.

Sigh.

Let's do this in three parts.

Part I:  Larry Swearingen was in police custody when Melissa Trotter was elsewhere getting killed.   That seems incontestable.  

The Texas courts don't care.  The prosecutors don't care.  After all, there's all that circumstantial evidence and junk science that points to him.  Therefore he's guilty.  Proof that he's innocent would be, I don't know . . . . 

Wait, I got it.

Alternative Facts.

Cool.  Let's blame the killing on Kellanne Conway.  I don't know where she was at the time.

Anyhow, whoever killed Melissa Trotter, it wasn't Larry Swearingen.

But, again, the courts don't care.  The prosecutors don't care.  And Texas plans to kill him on November 16.

Part II:  As I've said from time to time in the context of more than one allegedly bad guy

TEST THE FUCKING DNA!

But of course they won't.  Well, that's not quite right.  They've tested some.  To the surprise of pretty much nobody who paid attention to Part I, 

IT AIN'T HIS.

Which is, of course, not of any particular interest to the courts or the prosecutors.  Who don't care.

There's more stuff that can be tested, really, stuff that should be tested.  The trial court (the Texas trial court!) has a couple of times now ordered the testing under the Texas post-trial DNA testing statute. Of course, the prosecutor appealed, because -- we'll get to that.  And the Texas Court of Criminal Appeals said "No."

YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT IN A CAB!
YOU MAY NOT TEST IT IN A LAB!
YOU MAY NOT TEST THE DNA!
YOU MAY NOT TEST IT, THAT WE SAY!

Oh, and in particular, if testing were to be allowed, the DNA could not be run against the existing DNA databases to see if it matched a person who might have killed Melissa Trotter.  Say, someone who understands and hides behind alternative facts.  Say, Kellyanne Conway.

Nah!

No testing, no checking.

But the court is cool with killingLarry Swearingen November 16 for the murder of Melissa Trotter whom he did not kill.

Part III:  Which brings me to the prosecutor and the reason he doesn't want the testing done - though he'd love to have it done.  Just as long as he can be assured that the testing will be irrelevant.  Jordan Smith, at The Intercept: 

The problem is with the way the statute is written, says Bill Delmore, chief of the Montgomery County DA’s Legal Services Bureau, which handles the office’s appeals. In deciding whether a defendant is eligible for DNA testing, a judge is required to find that exculpatory results would likely change the outcome of the defendant’s trial. That’s exactly what Case found each time he granted Swearingen’s request. But Delmore says his office is unwilling to accept that possibility. “I would never, ever agree — never, ever agree — that the presence of a third party’s DNA on some random piece of evidence in this case establishes that Larry Swearingen is innocent. That is ridiculous,” he said.

What the DA’s office wants is to be able to conduct testing without ever having to acknowledge that the results might change the original conviction. “If you told me that all the other evidence had somebody else’s DNA on it, then I’d say, well, [that person] must’ve done this with Larry Swearingen,” Delmore said. “It’s really hard for me to imagine DNA evidence in this case that would actually, in my mind, exonerate Swearingen.”

See, the problem is that the evidence might matter.  Oh, sure, it would just get a hearing.  But damn, then someone would have to consider . . . .

Still, Delmore is adamant that he and his boss Ligon are not opposed to DNA testing, per se. “We’ve always been willing to do the testing, but we’re not willing to do it under the constraints that this stupid statute puts on us.”

Besides, they probably like Kellyanne Conway.

Or maybe it was Sean Spicer.

OK, I'll come clean.  I don't think it was Kellyanne Conway.  She probably wasn't there, either.

Government Work

Hey, maybe he didn't do it.  But close enough for government work.

It's the story of too many folks on death row.  Too many folks in prison.  Too many charged and convicted where . . . .

OK, let me be both careful and honest about this.  I don't know how many factually innocent folks - ones who just flat out didn't do it (whatever the it may be) are charged with and convicted of crimes.  I don't know how many pay the traffic tickets they shouldn't have gotten or how many are doing a few years in stir or how many are awaiting a trip to the gurney.  Or how many have been executed.

I don't know.  Neither do you.  Neither does anyone else despite studies and analysis and careful estimates and wishful thinking and blind guesswork.  Nobody knows.  

What we know is that whatever the number, it's too many.  Every one is a failure of one or more parts of the system.  Every one is a mistake.  Some of those mistakes are more tragic than others.  Some have deadly serious consequences:

• Innocent people locked up forever.
• Innocent people killed.
• Lives ruined.
• Families destroyed.
• Guilty people left free.
• Some to pillage, rape, murder again.

But every one a mistake.  Every one a failure of our system of so-called justice.

Nicholas Kristof in today's Times tells the story of one likely candidate.  (Kristof's written about him before; so have I.)  This guy.

Kevin Cooper's on death row in California for four brutal murders in 1983.  There's a better than even chance he was framed for the killings that put him there.   Despite a lot of concern - and some outright vituperation - expressed by a number of judges, by some media, and by plenty of do-gooders, nobody with the power actually to do something has seemed to show much interest.

I mean, hell.  The guy was convicted by jury of 12.  And we haven't gotten around to killing him yet, despite his having spent more than three decades on death row.  What more can you ask for?

Oh, yeah.  You can ask for new and more definitive DNA testing.  

You know, the stuff that can maybe answer the question of whether he's the wrong guy.  Or, of course, maybe not.  If they'd do the testing, there are three possibilities.

• It'll pretty conclusively show he didn't do it - and just maybe who did.
• It'll pretty conclusively show that he did just what he was convicted of, showing that this is a case where things actually worked right.
• It'll be inconclusive and leave things about where they are now, but with another stone turned.

Is any of those a bad thing?  Is there something to fear?  Is there any good reason why they won't just

TEST THE FUCKING DNA?

Yeah.  I couldn't think of a reason, either.

Close enough for government work?

Looks like it is.

The Pyrite Standard

Here's the deal.

We know that most of what passes for forensic "science," the CSI stuff that gets people put in prison forever, or executed, is bullshit.

• Bite mark comparison - bullshit
• Tire track comparison - bullshit
• Hair and fiber matching - bullshit
• Ballistics - bullshit
• Handwriting comparison - bullshit
• Fingerprints, yep fucking fingerprints - bullshit

We know that dog alerts mean nothing.
We know that people confess to crimes they didn't commit.
We know that lab techs fake results to get the results the cops and prosecutors want them to reach.
We know that eyewitness identification is altogether unreliable.

Really, the miracle is that we ever get it right, that sometimes the guy they say did it really did.

Fortunately, we have DNA.  You know, the gold standard.  

When the numbers come back and the guy in the white lab coat explains to the jury about alleles and genetic markers and says that there's a one in 623 septillion chance that the bit of whatever found in some damning place came from someone other than the defendant - oh, and by the way, there aren't 623 septillion molecules of water in all the oceans, lakes, rivers, and aquifers combined . . . .

Whew.  Now we know we nailed the bastard.

Ah, that was so 2014.

Turns out the gold standard is fool's gold.

Spencer S. Hsu in the Washington Post.

The FBI has notified crime labs across the country that it has discovered errors in data used by forensic scientists in thousands of cases to calculate the chances that DNA found at a crime scene matches a particular person, several people familiar with the issue said.

Of course, it's minor.  Just a blip.  

In a bulletin sent to crime labs, the FBI said the problem stemmed from “clerical mistakes in transcriptions of the genotypes and to limitations of the old technology and software.”

You know, some secretary.  Probably a blonde.  And, really, it was microsoft's fault.  A software glitch.  

Oh, sure, some pointy-pointy headed professor in Dayton, Ohio's been pointing out this kind of thing for a decade.

“The public puts so much faith in DNA testing that it makes it especially important to make those the best estimates possible,” said Wright State University statistics professor Daniel R. Krane, an expert whose work has been cited by defense attorneys. “There is no excuse for a systematic error to many thousands of calculations in such a context.”
Krane, who identified errors 10 years ago in the DNA profiles the FBI analyzed to generate the population statistics data, called the consequences of the disclosure appalling, saying the data has been used in tens of thousands or hundreds of thousands of cases worldwide in the past 15 years. He said when he flagged the problems a decade ago, the FBI downplayed his findings.

But, hey.  What does he know.  If he were any good he'd be at Harvard.  Or working for the Bureau. I mean, it's not like anyone was wrongly convicted because, well, because.

The bureau has said it believes the errors, which extend to 1999, are unlikely to result in dramatic changes that would affect cases.

In Ohio (and probably your state, too, they've been doing DNA testing on thousands of old rape kits that have been sitting, ignored, in evidence lockers in police departments around the state.  They're bringing 20 year old rape charges against people based on DNA - even when the knew the person's identity at the time, even when the person admitted back then that he'd had sex with the accuser. Because DNA.

And the legislature, our legislature, is preparing to enact a new law that would restart the statute of limitations whenever DNA.  Because DNA.

Which, it turns out, is - what's the term?  Oh yeah.

Bullshit.

When They Tested the Fucking DNA

It was 30 years ago, 1985, when Anthony Apanovitch was convicted of aggravated burglary, rape, and aggravated murder of Mary Anne Flynn and sentenced to be executed.  He said he didn't do it.  

He said it repeatedly.  Over and over.  Again and again.  

I didn't do it.  I didn't do it.

The prosecutors said that was bullshit.  

Of course he did it.  Absolutely positive.  Horrible crime. And he's guilty as sin.  

To which the jury and the judge said,

Hang him high.*

And for 30 years now, they've been trying.  And he's been fighting it.  And the new DNA tests.  Which, he says prove he didn't rape and kill her.  The state says DNA proved he's guilty.  Because, you know, what else can they say.  It's why they don't like actually testing the DNA.  Just fucks things up for them. 

As it happened yesterday.

Yesterday, after 30 years of wrangling, the judge ordered a new trial.**  After acquitting him of one count of rape and dismissing the other count of rape.  Oh, and when they find him a suitable place to live, he'll be out on bond.  

Our county prosecutor is pissed.  And will, of course, appeal.

"These shockingly and disturbingly brutal crimes were proved. This is hardly a crime meriting personal bond, which endangers the safety of the public. Worse yet, Apanovitch committed these crimes while on probation for a sexual assault, and he also had been to prison for aggravated robbery.

Ah yes, public danger.  Peril.  Be afraid.  Be very afraid.  Mad dog killer on the loose.

"Death penalty cases have been subjected to ridiculous levels of scrutiny, creating decades of absurd delay at the cost of millions of dollars and countless hours of agony and frustration for families of victims who have not received the justice they deserve."
"We have been fighting for Mary Ann and her family for thirty years, have won appeal after appeal, and will continue to do so. This is only a temporary setback."

Yeah.  Temporary.

They still fully intend to kill a guy for a crime he probably didn't commit.


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*Actually, the order was to fry him.  Here in Ohio, the electric chair was our method of state sanctioned and performed killing in those days.
** I hope to get a copy of the court's order later today and will post it here when I do.

They Finally Tested the Fucking DNA. Nobody Cares What It Shows.

So now what happens?

I'm talking about Doug Prade about whom I've written a couple of times before.  He's a former Akron cop.  In 1998 the jury said he was guilty of murdering his ex-wife, Margo.  Shooting her to death.  He said, always said, he didn't do it.  And then they tested the DNA.  Oh, sure, he had to fight his way to the Ohio Supreme Court, but by a 5-2 vote, they allowed him to try and convince the trial court to order it to be tested.  All he had to do was convince the court that a test might be outcome determinative.  Which he did.

See, before she died, she I suppose before the gun went off, she struggled.   In the struggle, the killer bit her in the arm.  Through her lab coat.  Bit her so hard that she bled, bled right through the coat.  And the killer would have left his DNA on the coat.  But back then, DNA testing wasn't sophisticated enough.  They found Margo's DNA, from her blood.  But that overwhelmed whatever else.  Except Now they can do more.  And after a court order (the state fought, er, tooth and nail to prevent testing the DNA because . . . .  Oh, yeah, because it might fuck up their case.

And so they did the new testing and they found not just Margo's DNA but also another person's.  A man's.  The killer's.  Don't know who that is, though.  The only thing they know is that it isn't Doug Prade's DNA.  Which means that Doug isn't the killer.

And Judge Judy Hunter cut him loose.  She wrote,

The Court concludes as a matter of law that the Defendant is actually innocent of aggravated murder. As such, the Court overturns the Defendant's convictions for aggravated murder with a firearms specification and he shall be discharged from prison forthwith.

And of course, the state appealed.  Because the jury said he was guilty and just because the killer was maybe (probably? almost certainly?) someone else, well, that doesn't count.  Because sure, that male DNA could be from some contamination somewhere along the way.  So the court examined the trial court's decision to see if it was wholly irrational or arbitrary.  And concluded, that it was.  Because they weren't convinced.  (Which isn't the standard they claimed to have used, but what the hell.)

Having conducted a thorough review of the DNA results and the testimony interpreting those results, this Court cannot say with any degree of confidence that some of the DNA from the bite mark section belongs to Margo's killer, Likewise, we cannot say with absolute certainty that it does not. For almost 15 years, the bite mark section of Margo's lab coat has been preserved and has endured exhaustive sampling and testing in the hopes of discovering the true identity of Margo's killer. The only absolute conclusion that can be drawn from the DNA results, however, is that their true meaning will never be known. A definitive exclusion result has been obtained, but its worth is wholly questionable, Moreover, that exclusion result must be taken in context with all of the other "available admissible evidence" related to this case.

And so they undid the finding that he was innocent and ordered him back to prison.  Of course, Prade appealed.  And yesterday, by a vote of 4-3 and without any explanation from anyone, the Ohio Supreme Court refused to hear the case.  Which means? 

The state says, according to press reports, that it's over.  Prade was found guilty by the jury and then by the court of appeals.  Whether he's innocent is irrelevant.  Back to prison.  He'll be eligible for parole for the first time when he's 78 or 80.  If he lives that long.

His lawyers say he gets a new trial.  Because the court of appeals never addressed the question of whether he was entitled to that.  

And while they're squabbling about that?  He either does or doesn't go back to prison.  From which he's been out for about 18 months now.

Let's recap.

• Doug Prade, found guilty in 1998.  
• With new evidence found innocent in 2013.
• Found guilty in 2014 because after all the new evidence might or might prove he's innocent so he must be guilty.

Meanwhile, in Texas, Hank Skinner got the DNA tested and the trial court held a hearing.  The state, which had spent years fighting against the DNA testing, said the results proved Skinner was guilty. Skinner's lawyers said the tests showed he was innocent.  The judge carefully weighed the conflicting arguments, noting that the DNA results were largely inconsistent with the state's theory of the case, agreed with the state that some exculpatory evidence shouldn't come in.  And then said that Skinner was guilty and should be killed.

Skinner will be appealing.  And you know how well that's likely to go in the courts that already said there was no point in testing the DNA because he was guilty so there was no point in looking to see if he actually did it.

I've said before that Ohio wants to be Texas.  We've got a ways to go, but still.

Stephen Breyer's Buccal

Winning entry in Monday's Stupidest Remark by an Elected Official competition:

This is a resounding victory for both law enforcement and civil libertarians.

That's Maryland's Attorney General, Douglas F. Gansler, reaacting to the fact that Stephen Breyer continues to believe in the idea of the Constitution rather than the Constitution itself.  OK, OK, I'm maybe being unnecessarily obtuse.

The Supreme Court on Monday issued its opinion in Maryland v. King. The Fourth Amendment, Justice Kennedy said writing for a 5-4 majority, is perfectly happy to have cops take buccal swabs of everyone arrested for serious crimes, use them to generate DNA profiles, and then search to see if their DNA matches the DNA on file from unsolved crimes.  

That's fine, Kennedy said, because it's not particularly invasive to actually take a buccal swab, and it's important to check and see if the guy arrested today might have committed any other crimes because that's how we can be sure the guy we arrested today is the guy we arrested today which is both reasonable and necessary and golly gee, who would object.  And besides, if they'd taken a DNA sample when they arrested Tim McVeigh for not having a license plate on his car, they'd have figured out that he was the guy who'd just blown up the Murrah Federal Building and so been able to prevent it from having happened a little earlier instead of how they figured out that he was the guy who'd blown up the building when they arrested him but because they didn't get a DNA sample that would take up to a month to analyze they weren't able to stop him from doing what he'd done before they arrested him.

Really, that's what he said.

Of course, he dressed it all up in fancy legal gobbledygook and scattered citations to irrelevant Supreme Court decisions and the like.  But he had to do that because the alternative would have been to write something like this.

You never know when the guy you've arrested might have committed other crimes, and we have a chance of figuring it out if we take DNA samples from everyone we arrest.  (We'd do even better if we simply took DNA from everyone, but Maryland hasn't enacted that law yet.)  And since innocent people won't be fingered, they can't possibly mind having their DNA in a big national database, and if they do, well, who really cares what they think if we can maybe catch an extra bad guy or two.  And the Constitution's constraints on that sort of thing are messy, but we're talking about catching bad guys, so things like the Fourth Amendment just have to give way.  I mean, that whole thing about warrants and probable cause just interferes with law enforcement, so we can ignore it.

Which he couldn't really say.

Antonin Scalia, on the other hand, writing the dissent, pretty much said just that.  The Maryland law at issue specifically prohibits using the DNA samples for the purposes Kennedy claims can justify the law.  And as a practical matter, it's worthless for those purposes even if they were legal.  No, Maryland wants to take DNA samples from everyone arrested simply to solve crimes.

Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.

Which is, I have to say, exactly right. 

What, you may rightly ask, has this to do with Stephen Breyer?  And where in the world did Attorney General Gansler get the idea that King was a win (a "resounding" one) for civil libertarians?

The short answer to the Breyer question is that he's responsible for the decision.  Oh, Kennedy wrote the opinion, and he's the standard swing vote.  He was joined, as you'd expect, by law and order types Roberts and Alito.  Clarence Thomas signed on, too, because the Fourth Amendment just like all those other parts that try to prevent government agents from doing what they want to individuals.  His Constitution was to defend the prerogatives of rich white guys and whatever they want to do to folks they think are maybe criminals (or, really, anything other than rich white guys) is just fine (as long as it doesn't advance the interest of those folks).  Really, you could imagine Kennedy voting either way on this one, but Alito? Roberts? Thomas? You knew where they'd come out.

You might imagine you'd find Scalia there, too.  But he switched sides on this one.  His dissenting opinion isn't particularly originalist.  He doesn't explain what the framers did, spends just a couple of sentences mentioning their attitudes.  Rather, he's pretty clearly offended at Maryland's (and Kennedy's) brazenly dishonest position.

The problem child here is Breyer.  He of the allegedly liberal bloc.  He who as a child had people "stick things in [his] underwear."  He who was attacked by a machete wielding desperado.  He signed onto Kennedy's opinion, which gave it a majority.  That's not what's supposed to happen.  Breyer's supposed to be this staunch liberal.  Which is, of course, hogwash.

Breyer, as I've said before, sees the job of the Court as helping government be efficient, especially if it can be done without it being too overbearing on individual rights.  Buccal swab?  No big deal.  Catch bad guys?  Big deal.  Rules for police to follow? Excellent.  Sign me up.  The Fourth Amendment? Feh. Not this afternoon.


Sure, the Fourth might prohibit this.  But the idea of the Constitution, the sort of government you'd like to have (he'd like to have)?  The idea trumps the reality which is clumsy and inefficient.  We're talking a fucking buccal swab.  And it won't be in his buccal.

"There's Always Something Else You Can Do"

We fucked up.  We'll try and fix it if you give us a chance.

So says the FBI, though admittedly those are my words not the Bureau's.  You may remember that last year the FBI said it was going to review thousands of cases to see if its bullshit hair and fiber comparisons led to wrongful convictions.  

Enter Willie Jerome Manning (also known as "Fly").  Manning is on death row for the 1992 abduction and murder of Mississippi State University students Jon Steckler and Tiffany Miller.  Manning says he didn't do it.  He's always said that.  He was convicted and sentenced to die anyway.  And while I wasn't at the trial and haven't read the transcript, it's not hard to see why.  Here's the evidence against him:

• In the days after the murder, Manning was seen with, and trying to sell, stuff that looked a lot like stuff stolen from the Steckler and Miller and from another car that was in the parking lot with Miller's car that night.
• Earl Jordan, Manning's cousin said Manning confessed to him.
• A jailhouse snitch said Manning confessed to him.
• Manning's girlfriend said that a few days before the killing, she saw Manning shoot a gun at a tree.  FBI experts said that the bullets in the tree came from the same gun as the bullets that killed Steckler and Miller and that it's impossible that they could be wrong.
• A bit of hair found in Miller's car came, testimony from another FBI "expert," came from a black person.  Manning's black, Steckler and Miller were white.

Like I said, you'd have convicted him, too.

Of course, there's the other side.

• The jailhouse snitch has recanted.
• Jordan had previously implicated two other men in the killings.  Finally, he said that Manning confessed, but said he didn't act alone.
• The hair sample?  The FBI has pretty much conceded that they didn't know what they were talking about.
• There's a fingerprint in the car that doesn't belong to Manning, Steckler, or Miller.  Nobody's bothered to run it against national databases in an effort to see whose it might be.
• Ballistics may not be completely worthless, but it ain't anywhere near that precise.  And oh, yeah, ballistics experts are, indeed, sometimes wrong.

Does that make Manning innocent?  No.  Is it enough to cast some doubt on his guilt?  On April 25th, a  5-4 majority of the Mississippi Supreme Court said no.

Our examination anew of the record reveals that conclusive, overwhelming evidence of guilt was presented to the jury. 

And since the jury heard such overwhelming evidence (even if much of it was bullshit), he shouldn't be allowed to have forensic testing before we kill him.

The dissenting 4 didn't say Manning's innocent.  They just said that his request for further forensic testing should have been granted.  If it happens to point to him, cool.  If it points to someone else?  Well, damn, we should know that and go after the guy.  And if it somehow exonerates him (DNA testing can be done now that simply couldn't have been done in 1994 when Manning was tried and convicted and sentenced to die), well, that's a good thing.  Justice Kitchens put it this way.

If the testing of biological material collected during the investigation proves that DNA in that material came from a donor or donors other than Manning, this would strongly suggest that someone besides Manning (or, possibly, someone in addition to Manning), was a perpetrator. The same can be said of further examination of the latent fingerprints lifted from the automobile of one of the victims, which have not been identified and have never been compared to the millions of known fingerprints contained in any of the state, local, and/or national databases.

Besides, 

The victims’ families and the public at large deserve to know whether another, or an additional, perpetrator was involved. If such a person can be identified, he or she should be prosecuted. Further examination of the fingerprints and biological evidence in this case could help achieve that end and/or significantly reinforce the basis for Manning’s conviction. Interests far beyond Manning’s are at stake, and whatever potential harm the denial seeks to avert is surely outweighed by the benefits of ensuring justice by the scientific analysis of all of the trace evidence that the authorities were able to collect from on or about the victims’ bodies. Unless and until that is done, the investigation of these horrible crimes will remain incomplete.

Which seems to make eminently good sense.  And which is why, sadly, it's in dissent.  On the other hand, the court's decision, recent though it is, predates the FBI's offer to do further testing.  The governor can grant a reprieve to make it happen.  And there's pressure on him to do that.  There's also, of course, pressure the other way, the voices calling for the killing.

There is, for instance, Oktibbeha County District Attorney Forrest R. Allgood.  According to Spencer S. Hsu  in the Washington Post, he 

said any reconsideration of the students’ case should include consultation with the victims’ families.

Because, you know, they're the ones who ought to decide how important it is to know whether Manning's guilty or whether he acted alone.   Or is it because they're looking forward to watching Manning die on Tuesday and don't want to be disappointed?  Or because they're actually forensic scientists themselves and can . . . . Oh, hell.  It's because that's an easy way for Allgood to do nothing.  Blame the victim's family for whatever.  Sure.

But then Allgood told the truth.

The bottom line is when you start looking at these things, there’s always something else you can do and it never ends.

 We're never really sure.  There's always more to do.  But damn, close enough for government work.

The governor says he's looking into it.

He doesn't have a lot of time.  Manning's due to be executed Tuesday.

They Could Just Choose To Do the Right Thing on Their Own

Really, it would have been a hell of a lot simpler if they'd just said to do it.

"It" is testing the DNA.  "They" is the esteemed Supreme Court of Ohio.  The subject is Tyrone Noling, about whom I've written before.

The short version for those who don't recall and aren't inclined to follow the link to catch up:  Noling's on death row for a double murder he claims he didn't commit.  The evidence against Noling has mostly evaporated, but still he's on death row and they still want to kill him.  DNA from a cigarette butt found in the driveway of the house where the killings happened was tested.  It didn't come from Noling or his co-defendant, which proves nothing.  Noling thinks, though, that it might have DNA from a guy named Daniel Wilson.  Wilson was executed in 2009 for another killing, and there's lots of reason to think he may have done this one.  If the cigarette butt has his DNA, and given the other evidence, that's pretty compelling evidence that Wilson was the killer and Noling was not.

Got that?  Good.

The prosecutors, of course, oppose the DNA testing.  They've been opposing it for years.  They just want to get on with the execution.  There's no point, they say.  We know it isn't Noling, so who cares if it belongs to Wilson who allegedly confessed?  Noling was convicted.  Convicted is better than confessed.  Anyway, there's a technical, statutory argument against the testing.  A trial court bought that technical argument.  DNA testing had been previously done and proved nothing so Noling cannot ask again.  So sayeth the law.

Except, no.  The law doesn't sayeth that.  It once did, but no longer.  So sayeth, this morning, the Ohio Supreme Court.  If the DNA testing could point to the actual bad guy, courts can order more testing.  In this case it could.  The trial court applied the wrong law.

OK, that's cool.  So let's just test the fucking DNA and see what happens, right?

Dreamer.  You haven't been paying attention.  Remember how this post began?  Here, I'll copy the first sentence.

Really, it would have been a hell of a lot simpler if they'd just said to do it.

"Would have been" are the key words here.  Instead of ordering the testing, the court ordered the trial court to decide if the testing would be "definitive."  If so, the trial court should order the testing.  If not, it'll be OK to get on with the business of killing Noling.

Which means, of course, years more of litigation.  You know, argue before the trial court.  Wait for a decision.  Whoever loses, appeals.  More waiting.  Until, eventually, either they test the DNA on that Butt or they don't.  And if they do, and if it's Wilson's, Noling will fight and fight and eventually get out of prison, another Ohio death row exoneree.  And if it's not Wilson's DNA, then they can kill Noling with a conscience as clear as it will be.  Or, of course, they could not test it.  Because they'd rather not know, and then they wouldn't.

It's worth noting that, the Portage County prosecutor could just agree to the testing.  He won't.  Instead, he fights it tooth and nail, hammer and tongs, foot and hoof, pencil and paper, spider and fly, duke and duchess.  Because . . . . Damned if I know.

Regardless, Tyrone Noling remains on death row for a crime he may or may not have committed.  One of these days it seems likely the Ohio Supreme Court will suck it up and order the DNA testing.  Or maybe not.  And if they do order it, either it will go a long way toward showing Noling innocent, or it won't be meaningful at all.  Which could all have been discovered several years ago, but will instead wait several more years.  Cause why not.

At the end of an extraordinary proceeding, a court of inquiry as it's known, Ken Anderson, formerly the District Attorney of Williamson County, Texas and now a judge in that county, was criminally charged with Criminal Contempt of Court, Tampering with Evidence, and Tampering with Government Records in relation to his prosecution of Michael Morton.  Anderson's hiding evidence and lying about it led to Morton's conviction and his 25 years on death row for a crime he did not commit.  Anderson concedes that he had a legal duty, a constitutional obligation to give the defense exculpatory evidence.  He didn't fulfill that duty, though he says it was the system's fault, not his.

And there was this, from the Findings of Fact and Conclusions of Law issued by Judge Louis Sturns:

Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and fonner prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty.

Really, these guys could just suck it up and do the right thing.  You know - Anderson could have obeyed the law and his duty.  The prosecutor in Portage County could just test the fucking DNA.

And, of course, the Supreme Court of Ohio could have saved everyone a repeat trip there in a year or so.

Nah.  What's the point?  Morton got exonerated off death row.  Noling might.  The system clearly works just fine.  All those years?  Piffle.  Cry babies.

On Judges Getting It Right and Prosecutors Getting it Wrong and Testing and Believing the Fucking DNA

As Paul Kennedy wrote this morning,

Judge tells state to just test the damn DNA

which appears not to be exactly true, but hell, it was a headline.  And it sure looks like he's about to tell them to test it.

It's from Larry Swearingen's case, the one where nine (9!) forensic pathologists examined the autopsy results and concluded that the evidence clearly showed that he was innocent.  You know, because he was in jail when someone (but not he) killed Melissa Trotter.  And now it looks like they'll finally test the DNA.  And really, it's about time and getting awfully close since the good people of Texas were meaning to kill him in less than a month.  And of course the prosecutor is on their side because who gives a rat's ass about innocence, after all, when the chance for killin' is so close.

Meanwhile, up here in the Buckeye State, the Honorable Judge Judy Hunter issued a 26 page opinion explaining that since the DNA showed Douglas Prade (about who I've written before) is innocent, well then.

 [T]he evidence that the Defendant presented in his case is clear and convincing.  Based on the review of the conclusive Y-STR DNA test results and the evidence from the 1998 trial, the Court is firmly convinced that no reasonable juror would convict the Defendant for the crime of aggravated murder with a firearm.  The Court concludes as a matter of law that the Defendant is actually innocent of aggravated murder.  As such, the Court overturns the Defendant's convictions for aggravated murder with a firearms specification and he shall be discharged from prison forthwith.

. . .

The Court finds that no reasonable juror, when carefully considering all available evidence in the underlying trial in light of the new Y-STR DNA exclusion evidence, would be firmly convinced that  that Defendant Douglas Prade was guilty of aggravated murder with a firearm.  Given such a scenario, the outcome of the deliberation on these offenses would be different - the verdict forms would be completed with a finding of not guilty.

(Emphasis added.)

Which is almost as good as it gets.  Except that the prosecutor is appealing.  Because, after all, you can't let a simple thing like innocence get in the way of keeping a guy in prison for life.

Or for death, if you're talking about Larry Swearingen.

   Prade ruling by  

Douglas Prade - Released

Larry Swearingen - On Death Row

The Butt Stops There

Sometimes you just get tired of writing the same thing over and over again.

How many times in these posts have I wondered why they don't just (and excuse me as I go into all caps shouting mode here, but it's pure frustration)

TEST THE FUCKING DNA

That's a rhetorical question, of course.  And along with esthetics, that's why I didn't add a question mark.  The answer (and no, I'm not going to look up the particular number) is that I've wondered a boatload of times.  More important than how often I've asked is the underlying question.

Why won't they?

Nothing rhetorical about that.  It's a real, serious question that deserves a serious answer.  So here it is:

Cause they don't wanna.

And they don't wanna because

It might undermine the whole project.  Bring it all spinning out of control.  Reveal that the emperor is not only naked but just a sniveling little kid terrified of the monsters hiding under the bed.

But if you've stuck with this blawg for a while now, you know I've traveled that way, as I said, a boatload of times.  And so I didn't write about Tryone Noling last week when the Ohio Supreme Court held oral argument (video of which I've embedded at the bottom so you can watch it in all its glory or whatever).

I've written about Noling's case before.  (Here and here and especially here.) Here's the plot. Noling is on death row for the 1990 murders of Cora and Bearnhardt Hartig in their home.  It's a crime he says, and always has said, he didn't commit.  The only real evidence against him came from three witnesses who've recanted.  There's another witness, though.  Nathan Chesley.  The prosecutors  spent over a decade hiding Chesley, but he told them back in 1990 that Daniel Wilson (since executed by the state of Ohio) was the actual killer. He knew Wilson, said it's the sort of thing Wilson would have done, and says that Wilson actually confessed to him.

How credible is Chesley?  Hard to say since his testimony has never been presented in open court and subject to cross examination.  Of course, had the prosecutors obeyed their duty to turn over any evidence favorable to the defense before trial, the evidence would have been tested just that way.  Or had they not successfully opposed a motion for new trial based on the evidence.

Still, we are where we are.  And where we are is in the Ohio Supreme Court because of another piece of maybe evidence.

See, there's this cigarette butt the police recovered from the victims' driveway.  It was tested for DNA.  Not Noling's.  Which, of course, proves nothing.  Noling wants it tested to see if it's got Wilson's DNA on it.  They can do that, since Wilson's DNA is in a state database.  Noling's been asking for the test for a few years now.  The state's been refusing just as long.  Then Governor Ted and Attorney General Richard Cordray asked.  The state turned them down, too.

The state says it ain't gonna.  

The state's argument is that there's no point in testing the butt for Wilson's DNA because even if it's there, that doesn't prove he was inside the house and murdered the Hartigs.  After all, it's far more likely that the confessed killer is innocent but happened to drive by the house that day and toss the butt out the car window.

Or something.

Besides, the prosecutors say, Noling's just trying to stall, to drag out the time before he gets killed.  While we, the good prosecutors of Portage County just want to get on with it.  And to make sure that he can't stop the execution for a month or two while the DNA testing is done, we'll spend years fighting to make sure it isn't.

Cause we don't wanna.

Here's the bottom line.  There's no credible evidence that Tyrone Noling murdered the Hartigs.  That doesn't mean he didn't do it, of course.  There's some evidence, maybe credible and maybe not, that Daniel Wilson killed them.  There's a piece of evidence, easily tested, that might lend strong support to the claim that Wilson is the killer.  And if the only real reason not to test it is 

We don't wanna and we don't haveta

well, that's not really good enough.

I keep asking 

Where's the harm? 
What's the downside?
WHY NOT JUST TEST THE FUCKING DNA?
Really?
Why not?

And of course there's really only one reason.  Because it might just tend to show that they put an innocent man on death row, cheated to get him there, and want to make damn sure that they get him killed before anyone finds out that they really fucked up.

That's heartbreaking.  It's also something very like cold-blooded, carefully-calculated-and-calibrated murder.

The Columbus 7 can stop it.  They can order the testing. The butt stops there.

Expect a decision sometime in the Spring.