What does it take to prove innocence?

Thomas Haynesworth hugs his mother.
Photo: P. Kevin Morley, Richmond Times-Dispatch

One Sunday morning in February 1984, Thomas Haynesworth’s mother sent him to the Trio supermarket to pick up some bread and sweet potatoes. He never got there. Instead, he was stopped and questioned in connection with a recent rape. That began a 27-year odyssey through false accusation, arrest, prison and pain.

So begins yet another Kafkaesque story set in the United States, whose criminal justice system seems to have gone totally berserk. When I was traveling abroad this summer, overseas colleagues expressed amazement about practices they've heard about in our country -- juveniles sent to prison for life, young men placed on lifelong sex offender registries for consensual relationships with teen girlfriends, criminal prosecution of young children. Last week's execution of Troy Davis despite mounting doubts about his guilt is the latest case that has international observers scratching their heads.

But the Haynesworth case is unusual in that prosecutors and even a state attorney general are going to bat for the wrongfully convicted man, yet that still isn't enough to get him an exoneration. 

To recap the facts:

Haynesworth after his release. Photo credit: Morley

When he was 18, Haynesworth was arrested for five rapes in his neighborhood. He had no criminal record, but that didn't matter. He was prosecuted for four rapes, convicted of three, and sentenced to 84 years in prison.

Two years ago, a broad review of old cases in Virginia turned up a DNA match to a serial rapist who was already in prison for a string of rapes that occurred in that same neighborhood after Haynesworth's arrest.

Haynesworth was released this March, on his 46th birthday, and everyone thought his exoneration would follow swiftly.

But, no. 

Instead of apologizing to Haynesworth for robbing him of most of his adult life, what is the court doing? It's asking for more proof of innocence.

Only, there's a slight catch: The state has disposed of the DNA evidence from the other rapes, evidence that could conclusively clear his name.

"It seems paradoxical to demand 'conclusive' evidence from Haynesworth when the commonwealth has deprived him of the opportunity to produce such evidence," said the attorney general of Virginia, a staunch conservative who has even given Haynesworth a job in his office.

Meanwhile, as his bid for exoneration languishes on, Haynesworth must remain on the sex offender registry, with all of the stigma and restrictions that carries. He cannot move without permission, and he must even get approval to visit his nieces.

The trial penalty

This is yet the latest in a string of similar cases focusing public attention on the reliability problems plaguing eyewitness identification and, more broadly, on racial inequities in the administration of justice here in the Land of the Free.

But things are likely to get worse before they get better. That's because across the United States, legal changes have concentrated more and more power in the hands of prosecutors, who can now coerce defendants into pleading guilty by threatening much harsher penalties for those who insist on a trial.

As Richard Oppel reports in an in-depth analysis in the New York Times, prosecutors now wield more discretionary power than judges, and are using that power to punish defendants for exercising their right to a trial:

Threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

Even defendants with winnable cases are opting to plead guilty because the stakes are so high if they lose. The ratio of guilty pleas to trials has nearly doubled in the past two decades, according to Bureau of Justice Statistics reported by Oppel. And the number of acquittals in federal cases has dropped even more dramatically, from one out of every 22 cases 30 years ago to only one out of 212 last year.

So if a young Haynesworth came along today and had the audacity to insist that he was innocent and wanted a trial, he would likely be punished with multiple life prison terms, rather than a mere 84 years.

We may never know how many Haynesworths are being sentenced every year based on faulty eyewitness identification and/or racially biased prosecution. 

New York Times reporter John Schwartz's only-in-America report on the Haynesworth case is HERE.

Richard Oppel's excellent report, Sentencing Shift Gives New Leverage to Prosecutors, is HERE.

Hat tip: J and B

Steffan's Alerts #7: Neuromaging, juveniles, and perceptions of injustice

Click on a title to read the article abstract; click on a highlighted author's name to request the full article.

Perceptions of wrongful convictions by criminal justice personnel

In a new issue of Crime and Delinquency, Brad Smith and colleagues surveyed attitudes of criminal justice participants in Michigan. According to their findings, defense attorneys perceived that wrongful convictions occur more frequently than did police, prosecutors, and judges. Of the professionals surveyed, only defense attorneys viewed this concern as warranting reforms in the justice system.

How important are graduated sanctions in reducing recidivism?

In another article in Crime and Delinquency, Kristin Johnson and coauthors indicate that incorporating graduated sanctions into predictions of recidivism diminishes the predictive utility of waiver to adult court. Their results draw attention to the role of graduated sanctions and treatment programming for juvenile offenders.

What do mock jurors make of neuroimaging evidence?

N.J. Schweitzer and colleagues presented neuroscience-based testimony and neuroimagery to jury-eligible participants in mock court experiments. As reported in a new issue of Psychology, Public Policy, and the Law, participants rendered opinions on criminal culpability and sentencing. Neuroimagery, the authors reported, affected jurors' judgments no more than verbal testimony based on neuroscience.

Is the Adam Walsh Act working with juvenile offenders?

Also in Psychology, Public Policy, and the Law, Ashley Batastini and colleagues report that the Act’s classification system failed to predict sexual or nonsexual reoffending among a small sample of juveniles who were followed over a two-year period. In addition to their exploratory study, they discuss key concerns in the application of the Act to juveniles.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist based in Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

"Kids-for-cash" judge gets 28-year prison term

Mother of a suicide victim confronts crooked judge

In what may be the longest federal prison sentence ever given in a U.S. political corruption case, a juvenile judge who earned millions of dollars by sending kids to private jails has received a 28-year sentence. A second judge, Michael Conahan, has not yet been sentenced.

As I blogged about in 2009 ("Evil lurked in Luzerne County"), Pennsylvania Judge Mark Ciaverella Jr. got kickbacks for sending children to the private lock-up. He even shut down the public juvenile hall so all minors would have to go to the new detention center. He sold children down the river for crimes as minor as writing a prank note or possessing drug paraphernalia.

Investigation of the so-called "kids for cash" scheme led to 4,000 juvenile convictions being overturned. Although 28 years sounds like a long time, if you do the math it's less than three days per juvenile case.

Forensic conference in idyllic Queensland setting

Hell's Gate, Noosa coastline (Photo credit: Kathleen)

For the indigenous Gubbi Gubbi people of southern Queensland, the Noosa area was a mecca and gathering place. Being here, I can certainly see why. The site of Australia’s Forensic Psychology National Conference is an idyllic tropical rain forest alongside a gorgeous coastline.

Even aside from the spectacular locale, the conference so far has been rewarding beyond my wildest expectations. Conference organizers and delegates alike have been overwhelmingly friendly and welcoming. They strike me as a serious and thoughtful bunch, communicating a solid commitment to ethical professional practice. Both my keynote -- on the subterranean tensions between technocratic and humanistic visions for our field -- and my all-day training workshop on forensic diagnosis were very well received. 

The vast continent of Australia has only 331 psychologists who are registered with the national government as forensic specialists (under the nationalization scheme that just went into effect), and it seems that most of them are here. Also in attendance are several other Americans invited to give keynote talks and all-day training workshops, including forensic guru Tom Grisso, Les Morey (the developer of the Personality Assessment Inventory) and John Edens, a prominent forensic psychologist from Texas A&M.

Blogger with Paul Wilson and conference chair Gavan Palk

A highlight for me was to get a chance to meet Paul Wilson, an internationally renowned criminologist and human rights activist. Paul (here, we all go by first names and forego the hierarchical ribbons and badges sported by speakers and officers at the typical psychological conference in the USA) is a prolific scholar and practitioner. He has been involved in many high-profile forensic cases, including on the effects of solitary confinement and of the forced removal of indigenous Australians from their ancestral homes. His latest book is Erasing Iraq: The Human Cost of Carnage, which -- as the title implies -- details the cost in human suffering of the war.

Paul's keynote focused on the role of forensic psychologists in miscarriage of justice cases. He has significant personal experience in this area, including involvement in Australia’s most infamous case of wrongful conviction, the so-called “Dingo Case" (made into a Hollywood movie starring Meryl Streep). That was the case in which Lindy Chamberlain was convicted of murder after her infant daughter disappeared while the family was camping at the famous Ayer’s Rock. It wasn’t until six years later that the baby’s clothing was found in a nearby dingo lair, proving that the mother was telling the truth when she said she saw a dingo carry off her baby.

Blogger with a new friend

It hasn’t been all work for me here in Queensland. I took the opportunity to see a bit of the Sunshine State, visiting first Cairns in tropical north Queensland and then Brisbane, the state’s biggest city. In Cairns, we journeyed out to the Great Barrier Reef for a little snorkeling, and also took in the local wildlife. We were lucky enough to spy the reclusive platypus in a creek in the Atherton Tablelands, as well as the much more abundant and visible kangaroos.

Further south, Queensland’s major city of Brisbane looks to have recovered quite nicely from the catastrophic flooding last January. Just goes to show what's possible in a country with a more rational social policy and a decent economy.

Brisbane is an attractive, up-and-coming city with lots of cool neighborhoods. As soon as we arrived, we were lucky enough to stumble across a vibrant organic food fair. We got to nibble and sip oodles of lovely locally produced treats -- fresh produce, dairy products, meats, sauces and wines.

Swimming enclosure, St. Helena Prison

While in Brisbane, we also toured an old prison on St. Helena Island in the Moreton Bay. It reminded me a bit of McNeil Island in Washington, where I worked for a spell. Operational from the 1860s to the 1930s, St. Helena went through several phases. Sometimes, it housed the Queensland prison system’s troublemakers and the criminally insane. At other times, it was a model prison farm reserved for well-behaved prisoners. At the end, it held aged and infirm convicts. To discourage escape during the harsh old days, prison warders attracted sharks by dumping cow offal along the beaches. Prisoners who wanted to swim after a day of back-breaking labor in the fields, sugar mill or factory could do so only in a small offshore area enclosed by long poles. (See photo.) But during our visit to the ruins, the fearsome predators were long gone and the setting was serene and idyllic. Just us, the guide who ferried us across on a small boat, and a few wallabies, shorebirds, and grazing cattle belonging to the national park service.

For me, Australia has been well worth the long airplane ride to get here; I hope to come back again to see Sydney, Melbourne, and Western Australia and to visit with some of my newfound colleagues in Australia's wonderful community of forensic psychologists.

Crime after crime: Battered woman’s struggle for justice

Debbie Peagler was 15 when she met and fell in love with a charming young man named Oliver Wilson. Unfortunately for her, Wilson was a pimp and drug dealer who ferociously abused her over the next six years. He beat her with a bullwhip, prostituted her, forced her to perform oral sex in front of his friends, put hot ashes on her hands and made her eat his feces, according to witnesses. When she said she would leave, he threatened to kill her.

On May 27, 1982, she asked him to drive her to a park. Waiting in ambush were two friends of her mother, neighborhood gang members who killed him. The prosecution maintained that Peagler hired the men. Peagler claimed she never discussed killing Wilson.

Threatened with the death penalty, Peagler pled guilty to first-degree murder and went to prison. And there she would have remained for the rest of her life, if not for a little serendipity.

After California enacted a law in 2000 to ensure fair trials for battered women who killed their abusers, the California Habeas Project selected Peagler as someone who might be eligible for relief. A local law firm, Bingham McCutchen, agreed to take the case pro bono. Two rookie land-use attorneys, Joshua Safran and Nadia Costa, began collecting new evidence to substantiate Peagler’s abuse.

Peagler’s story had deep personal meaning for Safran. As a 9-year-old boy, he helplessly cried through the night as an abusive boyfriend pummeled his mother. Eventually, he and his mother escaped, and he learned to channel his simmering rage into legal advocacy.

Over the course of several years, the attorneys found long-lost witnesses, learned of allegedly perjured evidence, and got new statements from the men who had killed Wilson.

For her part, Peagley was a model prisoner. She had spent her decades behind bars tutoring illiterate women, leading a gospel choir, earning two college degrees, and participating in a battered women’s support group.

Eventually, the Los Angeles County district attorney’s office agreed that Peagley should have been convicted of voluntary manslaughter, which at the time carried a sentence of only two to six years. Prosecutors signed a statement agreeing to Peagley’s immediate release from prison.

But that happy ending was not to be. After a political backlash in his office, the district attorney reneged on the deal, and Peagley’s petition for release was denied. Meanwhile, the case took on a new urgency when Peagley was diagnosed with advanced lung cancer.

Costa and Safran continued to petition for Peagley’s release on numerous grounds: Her guilty plea was coerced, false evidence was introduced against her, and the original prosecution would have differed had there been expert testimony on battering.

Although the courts failed her, she was finally paroled from prison in August 2009, thanks in part to an international grassroots campaign. She currently lives in Carson, CA.

Sadly, Bay Area private investigator Bobby Buechler, who gathered exculpatory evidence and was involved in the crusade to free Peagley (and whom I happened to know), died unexpectedly shortly before her release.

Filmmaker Yoav Potash spent five years filming the story as it unfolded, both in and out of prison. CRIME AFTER CRIME is the award-winning documentary of this dramatic saga. The film is currently playing around the United States; check HERE for more information and to find a venue near you.

 
Hat tip: Martin

Another Texan joins growing club of exonerees

30 years in prison for rape he did not commit

He could have been free six years ago. But he could not get past even the first of the sex offender treatment program's "four R’s" -- Recognition, Remorse, Restitution and Resolution.

Instead, Cornelius Dupree Jr. continued to stubbornly insist he was innocent of the robbery and rape for which he went to prison 30 years ago.

Today, Dupree finally won back his good name, becoming the latest in a flood of exonerated convicts in Dallas, Texas. District Attorney Craig Watkins, the first African American elected prosecutor of any county in the state, actively supports innocence projects. Like Dupree, the majority of the exonerated men are African American and were convicted of sexual assaults.

By local tradition, many of the other exonerated men attended Dupree's court hearing on Tuesday. Many said they too had been convicted based on eyewitness misidentification, the most common cause of wrongful convictions.

The moral: Do not assume that someone who has been convicted of a crime is lying, just because he or she is denying guilt. Every once in a while, it's true.

An Associated Press article with more case details is HERE.
The Dallas Morning News has an excellent series on the DNA exonerations, HERE.

Police psychologist settles confession suit for $1 million

A psychologist who helped police obtain a false confession from 14-year-old Michael Crowe has settled out of court for $1 million. A judge had called the aggressive interrogations of Crowe and two friends "psychologically abusive."

Dr. Lawrence "Deadlift" Blum, a police psychologist, helped police in Escondido, California formulate the "tactical plan" that they used to get Michael to confess to the murder of his 12-year-old sister, according to the Crowe family's lawsuit.

Blum admitted in a pretrial deposition that he told a police detective that 15-year-old Aaron Houser, Michael's friend, was a "Charlie Manson wannabe."

Only through serendipity were the boys' charges dismissed more than a year after their arrests, when DNA evidence proved that a mentally ill transient had committed the murder. That man, Richard Tuite, was ultimately convicted of manslaughter.

Images from the videotape of Michael Crowe's interrogation.

The family's lawsuit against the police is still pending in federal court.

Crowe's confession became the subject of an award-winning Court TV documentary that I show to my graduate students. (Unfortunately, The System: The Interrogation of Michael Crowe is no longer commercially available, as far as I can determine.)

The San Diego Union-Tribune coverage of the settlement is HERE. My prior coverage of the case is HERE. The Tru Crime Library (formerly Court TV) has more background on the case HERE.

Don’t miss Frontline's "The Confessions" airing Tuesday

The Norfolk Four sailors are out of prison, but they remain convicted sex offenders with all of the stigma and draconian restrictions that status entails. Now comes what some are calling the best program ever on the subject of why people falsely confess:

Why would four innocent men confess to a brutal crime they didn’t commit? FRONTLINE producer Ofra Bikel (Innocence Lost, An Ordinary Crime) investigates the conviction of four Navy sailors for the rape and murder of a Norfolk, Va., woman in 1997. In interviews with the sailors, Bikel learns of some of the high-pressure police interrogation techniques -- including the threat of the death penalty, sleep deprivation, and intimidation -- that led each of the “Norfolk Four” to confess, despite a lack of evidence linking them to the crime. All four sailors are now out of prison -- one served his sentence and the other three were granted conditional pardons last summer -- but the men were not exonerated as felons or sex offenders. The case raises disturbing questions about the actions of the police and prosecutors, who relied on the sailors’ often contradictory confessions for their convictions, and disregarded DNA evidence that pointed to a lone assailant who would later confess to the crime himself while serving prison time for another rape.

Airing this Tuesday night on PBS, The Confessions is incredibly timely. Two weeks ago, a federal jury convicted the lead homicide detective of extortion for taking bribes from criminals in exchange for favorable treatment in a series of unrelated cases.

But meanwhile, the four sailors from whom he extracted confessions continue to live "in a hellish limbo," writes Virginia journalist Margaret Edds, author of "An Expendable Man: The Near-Execution of Earl Washington Jr."

• In Michigan, Danial Williams wears an electronic ankle bracelet 24 hours a day. He cannot even work in the yard without permission.

• In Texas, Eric Wilson was denied admission to a school for electricians and cannot adopt his wife’s son because of his criminal record.

• In North Carolina, Derek Tice washes windows for a living, his dream of becoming a nurse forever barred.

• In Maryland, Joseph Dick fears taking his parents’ dogs for a walk because a school backs up to their property.

Having blogged about this case since 2007, I am excited to see this show finally airing. Hopefully, it will create enough public pressure to force Virginia's governor to at long last exonerate the four.

So, as a colleague said, "Tape it, burn it, TIVO it, watch it, have your family members watch it, have their friends watch it, have your students watch it, your teenage children watch it, tweet it, Facebook it, blog it."

Bottom line: Don't miss it.

Further resources:

PBS' website on The Confessions is HERE.

My reviews of The Wrong Guys by Tom Wells and Richard Leo are HERE (Amazon) and HERE (California Lawyer magazine).

Prior blog posts on the case:

• Another fascinating disputed confession case (Sept. 24, 2007)

• The Wrong Guys: New book explodes myth that innocent do not confess (Dec. 8, 2008)

Hat tip: Luis

Arson probe: "Revenge of the scientists"

Perhaps the single most compelling exemplar of problems with the U.S. death penalty is the case of Cameron Willingham of Texas. Willingham, whom I have blogged about before, was executed in 2004 for a house fire in which his three daughters perished. But, as it turned out, the fire may not have been arson after all.

An ongoing probe is fostering rebellion by scientists against pseudoscientific evidence in arson cases. Some are even calling for a re-examination of all arson convictions in Texas from the past 20 years, according to a report by Dave Mann of the Texas Observer, who has covered the case extensively.

PBS Frontline's has a new documentary on the case, "Death by Fire," which I recommend you keep an eye out for. (It's also available on DVD.) The PBS website has great background, online videos, and interactive links. PBS' Hari Sreenivasan has additional commentary and case-related links at his news blog.

Related blog posts:

• Will Texas arson case change death penalty debate? (Sept. 2, 2009)
• Arson: New frontier for exonerations? (July 2, 2008)
  

"Treatment": Backwards and upside down?

Don't focus on "denial" or "lack of empathy," warn sex offender treatment experts

Social scientists have long known about the human tendency to divide into in-groups and out-groups. Current popular fascination with so-called psychopaths illustrates this us-versus-them bent. If psychopaths represent evil, that makes the rest of us good. The non-criminal breathes a sigh of relief to discover a distinct "criminal brain" (unless, as neuroscientist Jim Fallon found, we share the abnormality).

Nowhere is this infrahumanisation more extreme than in regards to sex offenders, who are seen as a species apart. Infrahumanisation prevails not just among the general public, but among treatment providers as well. Sex offenders, the popular therapeutic wisdom holds, are likely to lie, distort, and manipulate. Thus, sex offender programs target these attributes in treatment. If a sex offender accepts responsibility and learns empathy, the theory goes, he will be less likely to reoffend.

Not so fast, say three highly experienced scholars and clinicians of sex offending: "As it turns out excuse-making is healthful and results in a reduction in reoffending. It may, therefore, not only be counter to accepted principles of offender treatment to attempt to change noncriminogenic distortions, it may result in increased rates of reoffending."

In their article in the most recent issue of Sexual Abuse in Australia and New Zealand, the researchers argue that many of the entrenched assumptions underlying sex offender treatment are not empirically supported and may actually impede therapeutic progress. Lead author Bill Marshall, an award-winning professor emeritus at Queen's University and Director of a sex offender treatment program in Kingston, Ontario, is one of the world's preeminent scholars of sex offending, with more than 300 publications (including 16 books) dating from long before the fad took hold. Liam Marshall is the primary therapist at the Sexual Offender Treatment Program at Millhaven Assessment Unit, a high-security federal penitentiary in Canada. Jayson Ware, a graduate student at the University of New South Wales who works in the Australian prison system, also specializes in the treatment of sex offenders.

Accepting responsibility. That has a nice moral ring to it. But what does it really mean? And does it translate into a reduction in crime? Most definitely not, the authors state:

[T]aking responsibility, as this is commonly understood in offender treatment, requires the offender to indicate that the behavior has an internal stable cause; that is the client offended because he is a "deviant" or a "bad person." Such attributions are not conducive to change but rather are likely to persuade the offender that his behavior is intractable…. Perhaps it is those sexual offenders who blithely, and readily, admit to all aspects of their offenses, that are the ones who should be given the most therapeutic attention and yet in most programs the full admitters are seen as ideal participants.

In practice, the authors point out, "taking responsibility" often means agreeing with the victim's version of events, which is automatically assumed to be Truth. Treatment manuals instruct clinicians to aggressively challenge any rejection of the victim's account. It is this therapeutic aggression, in turn, rather than the offender's initial minimization or excuse-making, that blocks effective treatment:

Sometimes these challenges are quite harsh and clearly imply that the offender is lying. This type of confrontational challenging has been shown to prevent progress toward the goals of treatment.... Whatever style of challenging is employed, the underlying assumption is that the official record of the offense is a veridical account which the offender must come to agree with if he is to progress further in treatment....

Overall it is hard to see the value in having sexual offenders provide offense details that match the victim's account.... [D]oing so may produce all manner of problems both for the target client and for the other group members. These potential problems might be tolerable if, indeed, overcoming denial and minimizations did result in an enhanced acceptance of responsibility but there is no evidence that it does. Most importantly, there is no evidence that an increase in acceptance of responsibility leads to a reduction in reoffending.…

Therapists may be better advised to change their views on this issue and alter their treatment approach. What we want sexual offenders to do is not blame themselves for their past but rather accept responsibility for their future....

Excuses are attempts to preserve the person's reputation, to prevent the erosion of self-esteem, and to avoid feelings of shame. Stigmatizing shame, where the person concludes they did something wrong because they are bad, leads to an increase in criminal behavior…. While therapists see excuses as examples of criminogenic thinking, extensive research shows that those offenders who offer excuses for their crimes are at lower risk to reoffend than those who accept full responsibility.

The authors similarly tackle the thorny issue of "empathy." Empathy training is a primary component of 94 percent of sex offender treatment programs in North America, according to one survey. Yet a supposed empathy deficit does not predict reoffending, and should not be a focus of treatment, the authors contend.

Finally, the authors address the widespread assumption that sex offenders elaborately plan their crimes. When sex offenders claim an offense "just happened," clinicians accuse them of lying or minimizing. But what if they are telling the truth, and "some, or even most, sexual offenses are not planned?" Again, therapists' insistence that clients adopt their version of reality is an adversarial stance that prevents therapy from succeeding. Offenders learn to keep their true thoughts to themselves and parrot the therapist's opinions, promoting cynicism rather than healing.

So what is left, if therapists ignore excuses, denials, or deficient empathy? Research has established two stable sets of distortions as highly predictive of reoffending, the authors remind us: attitudes tolerant of rape or of child sexual abuse, and emotional identification with children. It is these distorted attitudes, as well as many individual-specific factors -- such as depression, substance abuse, and/or trauma histories -- that put offenders at risk. These empirically established factors, then, should be the foci of treatment aimed at reducing risk.

I highly recommend the full article, "Cognitive Distortions in Sexual Offenders: Should They All Be Treatment Targets?" It is available upon request from the authors. Jayson Ware, one of the authors, will be presenting at the upcoming conference of the Association for the Treatment of Sexual Abusers in Phoenix, Arizona. His Oct. 21 presentation is in the session, "Re-Examining Sexual Offender Treatment Targets," chaired by Ruth E. Mann, PhD of Her Majesty’s Prison Service (UK).

Will Texas arson case change death penalty debate?

Pundits are predicting that an in-depth New Yorker expose on the Cameron Todd Willingham case may change the face of the death penalty debate.

David Grann's article, "Trial by Fire: Did Texas execute an innocent man?" is set for publication Sept. 7. Already, it is generating comment, such as this excellent op-ed in the New York Times by columnist Bob Herbert:

It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. "I was extremely skeptical in the beginning," said the New Yorker reporter, David Grann, who began investigating the case last December.

As I blogged about last year, Cameron Todd Willingham was executed in 2004 when Texas' governor ignored a report calling into question the scientific evidence underlying his conviction.

"There's nothing to suggest to any reasonable arson investigator that this was an arson fire," wrote renowned arson expert Gerald Hurst in that report. "It was just a fire."

Now, a report commissioned by Texas to investigate mishandling of forensic evidence is "devastating” to the prosecution's theory, writes Herbert. According to scientist Craig Beyler, the determination of arson had absolutely no scientific basis. In his scathing report, Beyler equated the fire marshall's approach to that of "mystics or psychics."

Unfortunately, it's all a bit too late for Willingham. After hearing from a jailhouse snitch and others, a jury deliberated only an hour before convicting him. As Herbert wrote, Willingham "insisted until his last painful breath that he was innocent," refusing a plea bargain that would have spared his life.

Click on the image below to see a 4-minute video narrated by Grann, featuring footage shot by fire investigators and discussing flaws in the original investigation.

Click on this image to see video footage of the arson investigation

Further resources:

Scott Henson over at Grits for Breakfast has extensive coverage of the case.

Dallas bans 6-packs

No, not beer.
Or soda.
Or abs.

Six-pack photo lineups -- perhaps the single largest cause of wrongful convictions.

Frustrated with a string of wrongful convictions, the Dallas police department is now the nation's largest force to use sequential blind photo lineups -- a widely praised technique designed to reduce mistakes made by witnesses trying to identify suspects.

Dallas is not the first department to use the pioneering method. But experts hope that by using it in the county that leads the nation in exonerating wrongly convicted inmates, Dallas will inspire other departments to follow suit.

"If Dallas can do it ... then others are going to rise to the occasion," said Iowa State psychology professor Gary Wells, a national expert on police lineups.

The department switched to sequential blind lineups in April. Before that, Dallas police administered most lineups using the traditional six-pack -- law-enforcement lingo for mounting six photos onto a folder and showing them to a witness or victim at the same time. In sequential blind lineups, mug shots are shown one at a time. Detectives displaying the photos also don't know who the suspect is, which means they can't purposely or accidentally tip off witnesses.

Showing possible suspects all at once tends to make a witness compare the mug shots to one another, Wells said. But if they are shown sequentially, "witnesses have to dig deeper, compare each person to their memory and make more of an absolute decision."

An analysis of 26 recent studies shows that presenting mug shots sequentially instead of simultaneously produces fewer identifications but more accurate ones, Wells said.

Nationally, more than 75 percent of DNA exonerees who have been released since 1989 were sent to prison based on witness misidentification, according to The Innocence Project.

Here is the complete AP story: Dallas police pioneering new photo lineup approach.

Hat tip: Sol Fulero

Norfolk sailors receive partial pardons

Remember the case of the Norfolk 4, which I've blogged about before? That's the 1997 rape-murder case that has become an exemplar of wrongful convictions, the topic of a book by confession scholar Richard Leo and an upcoming screenplay by bestselling author John Grisham.

Yesterday, Virginia Governor Tim Kaine issued partial pardons to three of the four sailors, paving the way for their imminent releases. The fourth sailor was released in 2005. In his statement, the governor noted that the men's confessions contradicted forensic evidence, that no physical evidence linked the men to the crime scene, and that another man had confessed and asserted that he acted alone. That man's DNA matched evidence found at the scene.

The case was highly unusual in that even a group of former FBI agents was lobbying for the pardon.

But guess what? The pardons are only "partial" rather than full vindications. That means the men's convictions will stand, and they will be required to register as sex offenders. And all of you readers know what that means: Even though most intelligent people know they were innocent, they will have a hard time finding anywhere to live, and very few employers will have the courage to hire them.

The New York Times has the story.

Related blog resources:

• My book review of The Wrong Guys (Dec. 8, 2008)
• Another fascinating disputed confession case (Sept. 24, 2007)

Profiling the Drug Wars

Wouldn't it be a drag to get arrested for something you did not do based solely on the word of a lying, mentally ill drug addict?

That's what happened to Regina Kelly in rural Hearne, Texas in 2000. Ensnared in a mass arrest of suspected drug dealers at her housing project, the young single mother was charged with selling drugs in a school zone. Despite her insistence that she was innocent, her court-appointed attorney pressured her to accept a plea bargain to avoid many years in prison and the loss of her children. With no criminal record and no drugs found on or near her, she refused.

Instead, with the help of the American Civil Liberties Union she filed a class action suit, Regina Kelly v. John Paschall. Since the case settled four years ago, the local drug task force has been disbanded.

As it turns out, bogus statements by "snitches" trying to curry favor with police are a leading cause of wrongful convictions (along with faulty eyewitness evidence and wrongful confessions). In the U.S. Drug Wars, this especially affects those who, like Kelly, are poor and Black. Texas seems like an unlikely leader in the campaign to reform such practices. But, prompted by the Hearne case and another mass drug arrest the year before in Tulia, the Lone Star State became the first in the United States to enact legislation requiring that the statements of confidential informants be corroborated by other evidence.

The case was reported by PBS' cutting-edge Frontline back in June 2004; a similar documentary was made about the more infamous bust in Tulia, Texas. But now, a fictionalized version of Kelly's story is set to reach a broader, mainstream audience. Co-director Bill Haney says that when he heard about Kelly's case on National Public Radio as he was driving along, it so moved him that he pulled his car over to the side of the road and cried.

In American Violet, "Dee Roberts" (Nicole Beharie) is the plaintiff in a class-action case over racial discrimination in drug enforcement. Tim Blake Nelson plays David Cohen, the ACLU lawyer who sues racist district attorney Calvin Beckett (Michael O’Keefe) on her behalf.

Kelly says the film is "90 percent accurate." The depositions, the courtroom scene in which she fights to retain custody of her children, and many other scenes are word-for-word accounts.

"I'm hoping that somehow, this film is going to get the message out there for someone to look in on this town and other towns that go through the same thing that we go through," Kelly told the Chicago Tribune. "Because something has to happen, and this has to stop."

With this film, Kelly may get her wish. Like Clint Eastwood's magnificent The Changeling (see my review HERE), this tale of a defiant woman's struggle against corrupt law enforcement strikes a universal chord. But unlike The Changeling, American Violet also addresses present-day criminal justice themes of racial profiling and coerced plea bargaining.

Get out and catch it.

The L.A. Times has an informative review HERE. Grits for Breakfast has compiled a list of links to other media reviews. For more information on the true case, see Kelly's website. Or, you can watch Kelly on YouTube. My prior posts on confidential informants are HERE.

DNA science on trial

My least-favorite crime show is CSI. And my least-favorite line in that show is "The science never lies." Talk about a whopper!

With all of the revelations lately about faulty science -- from handwriting identification to fingerprint evidence, ballistics, arson investigation, and even bite marks -- it is reassuring that at least one type of scientific evidence rests on a solid foundation.

That's DNA, of course. After all, as I have heard DNA experts testify many times in court, the likelihood of a wrong DNA match is something along the lines of one in 1.1 million, or less.

But what if that's just one way to run the math? What if you can run it another way, and the odds of a wrong match rise to a whopping one in three? And what if the FBI knows this, and is working feverishly to keep such information hidden from the public and out of the courts?

That is the alarming cover story by Pulitzer Prize-winning author Edward Humes in this month's California Lawyer magazine.

As Humes cogently explains, the problem is not so much with the matching of crime scene DNA to a known suspect. The problem is with the cold cases, when a database spits out a match to an offender who is not already identified as a suspect. The larger the databases get, the greater the odds of a wrong match by pure chance. Especially if the crime scene DNA is degraded, and fewer than the ideal 13 loci (DNA locations) are available for comparison.

This problem was confirmed by a technician at a DNA lab in Arizona back in 2001. Running an experiment by comparing all 60,000 offenders in her state's database, she was shocked to find about 90 coincidental matches. The FBI, unhappy over her disclosure, "began threatening sanctions against crime labs that shared such information with anyone outside of law enforcement," Humes reports.

Experts maintain that wrong matches are becoming more and more inevitable, given the increasing sizes of DNA databases. In California, for example, with the third-largest DNA databank in the world, a new policy of profiling everyone arrested for -- not just convicted of -- a felony is enlarging the database by 35,000 profiles per month.

Donald Kennedy, a former Food and Drug Commissioner who contributed to the recent National Research Council report critiquing the management of government forensic labs, confirmed that the science "is being shut out of court."

That may be forced to change, depending on the outcome of several appeals around the United States. For example, a 71-year-old wheelchair-bound man convicted of a 1972 rape-murder in San Francisco is appealing his conviction on the grounds that the jury was not allowed to hear the alternate statistics. Although John Puckett had other sex offense convictions, only a cold hit to some badly degraded DNA at the crime scene tied him to this one. There were no eyewitnesses, footprints, fingerprints, or confessions. (The case is People v. Puckett, No. A121368, Cal.Ct.App., 1st District, May 1, 2008.)

The National Research Council is calling for change. In their February report, they recommend improving reliability and transparency by taking the databases out of the hands of law enforcement and prosecutors entirely.

In the meantime, jurors -- hearing only the cheerleading version of the science -- will keep believing the CSI mantra that the science never lies.

Edward Humes's report in the California Lawyer is online HERE.

3 decades in the hole, but were they guilty?

NPR's Legal Affairs:
Case Of Angola Inmates Heads To Court

The fate of two men who spent longer in solitary confinement than any other U.S. inmate will be argued in a federal court in Louisiana. The men were convicted 36 years ago of killing a prison guard in a racially charged investigation. After almost four decades in solitary, there are now questions about their guilt.

Audio story available HERE (after 7:00 pm WCT on March 3, 2009)

Today's Times-Picayune coverage is HERE

Last year's Mother Jones interview with the former Black Panthers, Albert Woodfox and Herman Wallace, is HERE

Photo: Replica of prisoner Herman Wallace's solitary confinement cell at Angola (nicknamed “the last slave plantation") by artist Jackie Sumell. Photo credit: hragvartanian (Creative Commons license)

Implications of PA case for juvenile courts

Today's New York Times has coverage of the astonishing case that I blogged about yesterday, on the two juvenile judges in Pennsylvania who were accepting kickbacks to send children to jail. Of interest to my readers, the case is calling public attention to juveniles' right to an attorney.

Children have a constitutional right to legal representation under a U.S. Supreme Court ruling in 1967. But in Pennsylvania and at least 20 other states, they can waive this right. Some say juveniles should be required to have a lawyer when they appear in court, as is the law in three states (Illinois, New Mexico and North Carolina).

"The juvenile system, by design, is intended to be a less punitive system than the adult system, and yet here were scores of children with very minor infractions having their lives ruined," Marsha Levick, a lawyer with the Philadelphia-based Juvenile Law Center, told the Times. "There was a culture of intimidation surrounding this judge and no one was willing to speak up about the sentences he was handing down."

Last year, according to the Times story, Pennsylvania's Supreme Court rejected a petition filed by the Juvenile Law Center about more than 500 juveniles who had appeared before Judge Ciavarella without legal representation. The court originally rejected the petition, but recently reversed that decision.

Given the secrecy surrounding juvenile court proceedings, some are also calling for greater public access - a double-edged sword that may cause unintended negative consequences, in my opinion. As the former director of the state's Office of Juvenile Justice pointed out, probation officers, prosecutors, and defense attorneys are already present in court and sworn to protect the interests of children; "it’s pretty clear those people didn't do their jobs."

The excellent followup article is here.

Photo credit: publik16 (Creative Commons license)

Evil lurked in Luzerne County

Something scary was happening in Luzerne County, Pennsylvania. A kid who had never been in trouble would show up in juvenile court for writing a prank note or having drug paraphernalia and -- BOOM -- he would disappear.

Kids were locked up for months at a time even when probation officers recommended against it. Youth advocates complained, but no one listened.

Now, everyone knows why. Two of the judges were running a scheme in which they shunted kids to private jails in exchange for at least $2.6 million in kickbacks. In what the media are calling "one of the most stunning cases of judicial corruption on record," one of the two bad judges actually shut down the county juvenile hall so kids would have to go to PA Child Care LLC, which owned him.

A senior judge from a neighboring county will have the laborious task of going through all cases handled by the judges for the past six years, to "identify the affected juveniles and rectify the situation as fairly and swiftly as possible."

A first step in rectifying the situation -- or at least making the wronged kids feel a bit better about the world -- might be to lock up the offenders. But after the judges pleaded guilty in federal court Thursday to tax charges, they were allowed to remain free pending sentencing.

Too bad they didn't afford that same courtesy to the youngsters who came before them.

Photo credit: "The Fog" by Canon in 2D (Creative Commons license)

Children serving life without parole: “Cruel and unusual?”

Test your knowledge:

1. In the entire world, how many children are serving sentences of life without parole for crimes committed when they were 13 years old?

2. In what countries are those cases?

3. How many of those cases involve crimes in which no one died?

Answers: (1) There are only eight in the entire world. (2) All eight are in the United States. (3) Only two did not commit a murder. Both are Black, and both are in Florida.

In yesterday's New York Times, Supreme Court correspondent Adam Liptak reports on one of those two. Joe Sullivan, now 33, is serving life for the 1989 rape of a 72-year-old woman. As Liptak reports it:

The victim testified that her assailant was "a colored boy" who "had kinky hair and he was quite black and he was small." She said she "did not see him full in the face" and so would not recognize him by sight. But she recalled her attacker saying something like, "If you can't identify me, I may not have to kill you." At his trial, Mr. Sullivan was made to say those words several times. "It's been six months," the woman said on the witness stand. "It's hard, but it does sound similar."

Sullivan's trial lasted only one day. His lawyer, later suspended from practice, made no opening statement. Biological evidence was collected from the victim but was not presented at trial and has since been destroyed.

Now, in an appeal to the United States Supreme Court, the Equal Justice Initiative argues that Sullivan’s life sentence is cruel and unusual punishment, banned by the Constitution’s 8th Amendment.

People can argue about whether imprisoning a 13-year-old for life is cruel, comments Liptak, but "there is no question that it is unusual."

Liptak's column is here.

Further resources:

Equal Justice Initiative report, "Cruel and Unusual," on 13- and 14-year-old children sentenced to life in prison

Photo credit: Equal Justice Initiative. Hat tip: Jane.

Criminal profiling strikes out again

British case also features missteps by police, prosecutors, tabloid media

In death, Rachel Nickell became an icon of the sexual brutalization of women. The London model was just 23 in July of 1992, when she was strolling across Wimbledon Common with her 2-year-old son and was stabbed 49 times, sexually abused, and almost decapitated in a frenzied, daylight attack.

As pressured mounted to solve the horrific murder and several other similar crimes, detectives turned to Paul Britton, a forensic psychologist with near-mythic stature in the field of criminal profiling.

Britton was suspicious of Colin Stagg, a lonely dog lover who had popped up on police radar when he replied to an ad in a lonely hearts magazine. With Britton’s help, police set a trap. They had a policewoman, "Lizzie James," befriend Stagg. Lizzie tried but failed to get Stagg to admit to killing Nickell. A judge threw out the case based on the illegality of the sting operation, but Stagg became Britain’s premiere pariah, villainized by the tabloid press as a black magic practitioner who had "gotten away with murder."

Britton, meanwhile, used the case to bolster his professional reputation, and featured it in his boastful 1998 autobiography, "The Jigsaw Man."

But Britton had made a catastrophic blunder. In pursuing his pet theory, he failed to connect the killing of Nickells and another young woman either to each other or to the "Green Chain rapes," a series of similar, frenzied, random knife attacks on women in the time period leading up Nickell's murder.

As forensic psychology professor Laurence Alison pointed out, "Frenzied random motiveless knife attacks on women are rare. Even more unusual are frenzied, random knife attacks on women with their young children present. Here was Britton with two of them under his nose and no one noticed."

Years later, the high-profile case came to a close when a paranoid schizophrenic named Robert Napper was tied to the killing by DNA evidence. Last week, Napper pleaded diminished responsibility due to mental illness and was sentenced to an indefinite term in a high-security hospital. He is suspected in at least 106 crimes involving 86 women.

Critics say that Nickell and other women would have been saved if police and prosecutors had followed all leads rather than blindly pursuing an innocent man. Napper came onto police radar screens at least eight times dating back to 1989. Some tipsters specifically linked him to the sexual assaults; beat cops in one incident described him in their notes as "strange, abnormal, should be considered as a possible rapist," and his own mother turned him in for rape. Astonishingly, police still did not pursue him for Nickell's murder even after DNA tests in 1994 tied him to the Green Chain rapes in 1994.

The case features the same type of investigative tunnel vision and prosecutorial stubborness we saw in the Norfolk Four case (see my blog post here) as well as the dangers of reliance on alluring but pseudoscientific techniques such as criminal profiling.

As one commentator put it, "Britton would never have impressed detectives if he had said that Stagg was a bit of a weirdo. When he dressed up that same thought in psychological language and talked of 'deviant interests' and 'sexual dysfunctions,' he sounded fatally convincing."

After his acquittal, Stagg filed a misconduct complaint against Britton with the British Psychological Society, but the case was dismissed in 2002, two years before the DNA evidence conclusively proved Stagg's innocence.

Photos (from top): Rachel Nickell (murder victim), Paul Britton (profiler), Colin Stagg (innocent man), Robert Napper (serial killer).

Laurence Alison, chair of forensic psychology at Liverpool University, has a new book on the Napper case, Killer in the Shadows. Journalist Ted Hynds co-authored Stagg's account, Pariah. The Guardian of London has full coverage of the Nickells case. My previous articles on criminal profiling are here.