Innocence

Colorado Supreme Court Overturns Prison-Murder Conviction, Says Prosecutors Withheld Evidence in Death-Penalty Case

The Colorado Supreme Court has upheld a trial court ruling overturning the first-degree murder conviction of David Bueno (pictured) after Arapahoe County prosecutors who sought the death penalty against him in a prison killing hid evidence that pointed to another suspect. The January 22 ruling comes in the wake of a trial court ruling that prosecutors in the state's 18th Judicial District, which includes Arapahoe County, also suppressed more than twenty pieces of evidence that should have been disclosed to the defense in the capital trials of death-row prisoners Sir Mario Owens and Robert Ray. Bueno's lawyer, David Lane, called the pattern of prosecutorial conduct in the 18th Judicial District, "Mississippi in the mountains." "Ethically, prosecutors are required to seek justice, not convictions," he said. "But they apparently lose sight of that on a regular basis, especially on death-penalty cases in the 18th Judicial District." Bueno and a second Latino prisoner, Alex Perez, were charged with stabbing a white prisoner, Jeffrey Heird, to death in 2004. The day before the murder, another white prisoner, Michael Snyder, told his wife in a phone call recorded by the prison that he had been ordered to stab a prisoner. The evening after the murder, a prison nurse found a note containing threats by a white supremacist prison group to kill “men of the white race who refuse to accept their proud race.” The nurse immediately prepared an incident report that included a copy of the letter. One day later, another white inmate died under suspicious circumstances and a prison lieutenant who was investigating the death prepared a second report suggesting the deaths might be connected. The court wrote that undisputed evidence established that "the prosecution possessed both of these reports within days of Heird’s murder but did not provide copies of them to Bueno until five years later," after he had been convicted. Despite specific requests by the defense to be provided all incident reports, and in violation of its constitutional obligation to disclose all potentially exculpatory evidence, the court found prosecutors had made “a conscious decision ... to keep the information from the Defendant." The court agreed with the trial judge that these violations were prejudicial because "[t]he identity of Heird’s killer was the core issue at trial, with Bueno arguing that white supremacists had committed the murder," and the jury had taken four days to deliberate, including asking the court how to overcome a deadlock. The jury then imposed a life sentence, rejecting the death penalty in the case. In a 2010 interview with Westword after the trial court had overturned Bueno's conviction, Lane called it "truly stunning that the prosecutors in this case hid evidence that was so favorable to the defense" and said "it is particularly shocking in light of the fact that this was a death penalty case." A 2015 study showed significant racial and geographic disparities in the prosecution of death-penalty cases in Colorado, with non-white defendants and defendants in the 18th Judicial District statistically more likely to be capitally prosecuted. All three prisoners on Colorado's death row are from the 18th Judicial District. 18th District DA George Brauchler, who opposed the grant of a new trial in the case, is currently seeking election as Colorado's Attorney General.

“Innocence Deniers” and Coercive Plea Agreements Impede Death-Row Exonerations Across the U.S.

A prosecutor's duty, the U.S. Supreme Court wrote in 1935, "is not that it shall win a case, but that justice shall be done." Yet prosecutors across the U.S. have refused to acknowledge the innocence of defendants who have been wrongfully convicted, obstructing release by retrying death-sentenced defendants despite exonerating evidence, or conditioning their release upon "Alford pleas," which force defendants to choose between clearing their names or obtaining their freedom. In an article for Slate, Lara Bazelon chronicles cases of prosecutors whom she calls "innocence deniers," and the exonerations they have willfully obstructed. Bazelon highlights the retrials of exonerees Rolando Cruz and Alejandro Hernandez, wrongfully convicted and sentenced to death in Illinois. After their initial conviction, a serial murderer, Brian Dugan, confessed to committing the crime alone, but prosecutors persisted in retrying Cruz and Hernandez. Their second conviction was also overturned, but despite DNA testing that had corroborated Dugan's confession, prosecutors subjected them to trial for a third time. Cruz was acquitted and prosecutors dropped Hernandez's charges. After the exoneration, three prosecutors involved in the case were indicted but acquitted of obstruction of justice and perjury. A related phenomenon, the use of Alford pleas, is described in a New York Times story by Megan Rose. In an Alford plea, the defendant admits that the evidence against him or her would be sufficient to convict, but continues to assert innocence. The prisoner remains convicted of the crime and is resentenced to time already served and allowed to go free. These deals are often used in exoneration cases that involve official misconduct, because defendants who enter these pleas are typically barred from bringing lawsuits against prosecutors. Montez Spradley (pictured), an Alabama death-row prisoner, agreed to an Alford plea in 2015 after his attorneys discovered constitutional violations in his case, including undisclosed payments to a key witness. The agreement ended investigation into the prosecutorial misconduct. In June 2017, Ha'im Al Matin Sharif was released from Nevada's death row, nearly 30 years after he was convicted of killing his girlfriend's 11-month-old daughter, after medical evidence revealed that the baby died from infantile scurvy, rather than from physical abuse. Police had coerced the girlfriend into providing false testimony implicating Sharif by threatening to take her other children away if she did not cooperate. Prosecutors insisted that Sharif plead guilty to second-degree murder to obtain his release. One month earlier, Jimmy Dennis was released from twenty-five years of solitary confinement on Pennsylvania's death row after pleading no contest to lesser charges. His release marked the culmination of three unrelated cases in which misconduct by the same two Philadelphia homicide detectives had framed capital defendants. Innocence denial has the serious side effect of leaving the real perpetrators free while prosecutors continue to oppose release of innocent prisoners. The Innocence Project has secured the DNA exonerations of 353 people, and identified 152 actual perpetrators in those cases who went on to commit at least 150 additional violent crimes. Official misconduct is the leading cause of wrongful capital convictions.

Former Death-Row Prisoner Exonerated in Illinois, Seized by ICE

Former Illinois death-row prisoner Gabriel Solache (pictured), a Mexican national whose death sentence was one of 157 commuted by Governor George Ryan in January 2003, was exonerated on December 21, 2017 after twenty years of wrongful imprisonment, but immediately seized by agents of the U.S. Immigration and Customs Enforcement Agency. Cook County prosecutors dropped charges against Solache and his co-defendant Arturo DeLeon-Reyes after Circuit Court Judge James Obbish overturned their convictions, finding that disgraced Chicago detective Reynaldo Guevara had told “bald-faced lies” under oath when he testified to having no memory of interrogating Solache and DeLeon-Reyes and denied having beaten false confessions out of the men. DeLeon-Reyes also was immediately arrested by ICE agents. Solache and DeLeon-Reyes were convicted in separate trials, and Solache was sentenced to death, for the 1998 stabbing deaths of Jacinta and Mariano Soto during a home robbery. No physical or biological evidence linked either man to the murder, but they were convicted based upon confessions they have long said were coerced by Guevara over the course of three days of interrogation in which they were denied their right to consular assistance by the Mexican government, deprived of sleep, and given little food or drink until they falsely implicated themselves. Solache's purported confession was written entirely in English by an assistant state attorney who did not speak Spanish. Solache did not speak or read English and said that Guevara never translated the written statement for Solache before getting him to sign it. Guevera has been accused of framing defendants of murder in 51 cases. According to Northwestern University's Center on Wrongful Convictions, Solache and DeLeon-Reyes are the sixth and seventh defendants freed in the last two years as a result of misconduct by Guevara. To date, nine defendants have been released in cases in which Guevara was alleged to have beaten them or coerced witnesses into providing false testimony. Solache is the 161st person wrongly convicted and sentenced to death in the United States to have been exonerated since 1973, and the twenty-first in Illinois. At least a dozen of those exonerations have involved misconduct by Chicago police, including five cases in which the notorious "Burge Squad" beat or tortured confessions out of innocent defendants. Aaron Patterson, Leroy OrangeMadison Hobley, and Stanley Howard—members of the "Death Row Ten," who asserted that their convictions were the product of false confessions obtained as a result of police torture at the hands of notorious Chicago Police Commander Jon Burge—received full pardons by Governor Ryan. Ronald Kitchen, another member of the Death Row Ten, was exonerated in July 2009. Among the tactics the "Burge Squad" employed to elicit confessions were shocking suspects in the genitals with cattle prods, beating suspects over the head with phonebooks, and pointing guns in the faces of minors.

Death-Row Exoneree's Foundation Fights Wrongful Convictions, Provides Post-Release Health Care

When Anthony Graves (pictured) was exonerated from death row in Texas in 2010, he decided that he would use his personal experience as a catalyst for redressing the "injustice of the justice system." After receiving $1.45 million as compensation for the 18 years he was wrongly incarcerated, including twelve years on death row, the nation's 138th death-row exoneree created the Anthony Graves Foundation. Over the past two years, Graves has personally contributed more than $150,000 of his compensation funds as part of the fledgling nonprofit's expenditures towards freeing other innocent prisoners and providing health-care services to recently released prisoners who lack the means to pay for medical treatment. Graves was wrongly convicted and sentenced to death as a result of what the Texas State Bar described as "egregious" prosecutorial misconduct. Now disbarred for his actions, prosecutor Charles Sebesta presented false testimony from a witness implicating Graves in the murder while at the same time withholding from the defense a confession that the prosecution's witness had actually committed the murder. As in most death-row exonerations, there was no DNA evidence in Graves's case. Upon his release, Graves helped in the exoneration of Alfred Dewayne Brown, another no-DNA case, in which prosecutors suppressed a phone record that showed Brown could not have been at the scene of the crime when the murder occurred. The Graves Foundation then started The Humane Investigation Project, focusing on labor intensive non-DNA cases that Innocence Projects rarely take. “A lot of guys fall through the cracks because of the criteria of these projects,” Graves said. “I’d be dead today, because I had no DNA in my case.” Among other cases, Graves is currently working to exonerate still-incarcerated former Texas death-row prisoner Nanon Williams. When Graves was freed, doctors told him his arteries were clogged, the result of poor diet and health care. Because of his compensation settlement, however, he had money to see a doctor—a rarity for most people recently released from prison. Recognizing the severity of the health crisis faced by released prisoners, the Graves Foundation opened a small health clinic in March 2016 to provide low-cost and free care to those recently freed and to their families. Paul Cates, spokesman for the New York-based Innocence Project, said many exonerees feel like Graves, compelled to fight for change in a criminal justice system that wrecked their lives. “It doesn’t destroy their souls, and almost all of them somehow find a way to get beyond what happened,” Cates said. The prospect of helping those whose shoes he's been in continues to motivate Graves. “I always stay positive,” he said. “That’s how I came home.” It is a worldview summed up in the title of Graves's new book, Infinite Hope: How Wrongful Conviction, Solitary Confinement, and 12 Years on Death Row Failed to Kill My Soul, scheduled for release on January 16, 2018.

History of Lynchings of Mexican Americans Provides Context for Recent Challenges to U.S. Death Penalty

From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious "Hanging Tree" in Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching. In a November 25 op-ed in the San Antonio Express-News, historian Alfredo Torres, Jr. writes that these public killings are a reminder that "the noose, [which] has been identified as emblematic of violence and oppression toward African-Americans, [is] often overlooked as a symbol of terror for Mexican-Americans." Torres says that no region experienced more lynchings of Mexican Americans than Southern Texas, and the public spectacles on the Goliad County Courthouse lawn (pictured), now an historic landmark and tourist attraction, were witnessed by Anglo families "in a carnival-like atmosphere, bringing picnic baskets and taking photos." Lynchings of more than 871 Mexican Americans are documented across 13 Western and Southwestern states after the Civil War. But Torres says "these numbers don’t compare to what was done in Texas," where historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920. That wave of terror included numerous extra-judicial lynchings and murders of Mexican Americans by vigilantes, local law-enforcement officers, and Texas Rangers. Texas A & M-Kingsville journalism professor Manuel Flores wrote in an October 2017 column in the Corpus Cristi Caller-Times that the death and legend of Josefa “Chipita” Rodriguez—framed for the 1863 ax murder of a White cotton merchant and horse trader in what was still Confederate Texas—symbolizes the racial violence against Mexican Americans in the state and "are as pertinent to the state of Texas as that of the Alamo and Goliad stories." Rodriguez was falsely accused of murder and the theft of $600 after the dismembered body of John Savage was found on the banks of the river near her traveler's lodge. Though there was no evidence of her involvement in the murder and she insisted “No soy culpable" ("I'm not guilty"), she was quickly tried, sentenced, and hanged. In 1985, the Texas Legislature adopted a resolution absolving Rodríguez of the murder, and Gov. Mark White signed the resolution, posthumously pardoning her on June 13, 1985. Cardigan and Webb say that widespread lynchings of Mexican Americans persisted into the 1920s, "eventually declining largely because of pressure from the Mexican government." Issues of racial bias against Mexicans and others of Latino descent in the administration of the death penalty in the U.S. persist. 122 Latino prisoners have been executed in the United States since 1985. Texas has carried out 84.4% of those executions (103), including the controversial execution of Mexican national Ruben Ramírez Cárdenas on November 8, in violation of international treaty obligations to have permitted him to obtain consular assistance from his government. 373 Latino/a prisoners are on state or federal death rows across the United States, with three-quarters sentenced to death in California (188), Texas (67), or Arizona (27). A challenge to the constitutionality of Arizona's death penalty, filed by Abel Daniel Hidalgo, is currently pending in the U.S. Supreme Court. His petition presents evidence that in Arizona, "a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." The Court will consider during its December 1 conference meeting whether to accept Hidalgo's case for review.

BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty

In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."

Ex-Virginia Death-Row Prisoner With Strong Claim of Innocence Get Parole After 38 Years

Joseph M. Giarratano (pictured), a former Virginia death-row prisoner who came within two days of execution, has been been granted parole after 38 years in jail for a rape and double murder that lawyers and supporters have long said he did not commit. On November 20, twenty-six years after Governor L. Douglas Wilder commuted Giarratano's death sentence to life, the Virginia State Parole Board voted to grant him parole. Giarratano was convicted and sentenced to death in Norfolk, Virginia in 1979 for the rape and capital murder of a fifteen-year-old girl and the murder of her mother. Giarratano had lived in their apartment—which was known as a "party house" with a free flow of visitors—in the month before the murder and was there the night of the murders, but because of drug use, he says, he has no recollection of what happened. He said he woke up on the couch, discovered the bodies, and because no one else was in the apartment, he assumed he had committed the killings. He fled to Florida, where he turned himself in to a sheriff at a Jacksonville bus station and confessed to the murders. Over the course of time, Giarratano gave a total of five confessions, which were inconsistent with one another and conflicted with the evidence at the crime scene. Footprints, fingerprints, and pubic hairs were recovered at the crime scene and did not match either Giarratano or the victims. Experts indicated that the killer was right-handed, but Giarratano is left-handed. Giarratano's confessions were so inconsistent that detectives told him they did not believe him and, he said, provided him with detailed information that he then parroted back to them in his fifth confession. Gerald Zerkin, one of Giarratano’s lawyers, said "[t]here is nothing in the physical evidence that links Joe to the murders.... The prosecution’s whole case hinged on Joe’s confessions, which were total nonsense.” Leading experts on false confessions concluded in 2001 that there was "not a shred of significant or credible physical evidence supporting the conclusion that Joseph Giarratano’s contradictory and inconsistent confessions are reliable" and that considerable evidence led to "the conclusion that his confessions are false." While on death row, Giarratano became an avid reader and an advocate for other condemned prisoners, assisting in the exoneration of Earl Washington, a wrongfully convicted intellectually disabled man who came within eight days of execution. Giarranto was also the named party in a U.S. Supreme Court case, Murray v. Giarratano, in which Giarratano and others challenged Virginia's failure to provide post-conviction attorneys for condemned prisoners. The Court ruled 5-4 against the prisoners. Following his transfer off death row to the Augusta Correctional Center, Giarratano helped found the Center for Teaching Peace, a peace education program for prisoners. The state parole board's decision marks the first time in modern Virginia history that a defendant whose death sentence was commuted was granted parole. Richmond lawyer Stephen A. Northup represented Giarratano before the parole board and said, “For all the reasons that caused Governor Wilder to give Joe a conditional pardon more than 26 years ago, I believe Joe is innocent of the crimes for which he was convicted.”

Nevada Pardons Man Imprisoned 21 Years as a Result of Wrongful Capital Murder Prosecution

Nevada has pardoned Fred Steese (pictured), who spent 21 years in prison after Las Vegas prosecutors wrongly sought the death penalty against him while witholding evidence that he was not even in the state at the time the murder occurred. In what news reports described as "a clear rebuke to the Las Vegas prosecutors," the Nevada Board of Pardons Commissioners voted 8-1 on November 8 to grant Steese a full pardon. “I’m a new man now,” Steese said. “It’s lifted a black cloud over me.” The seven justices of the Nevada Supreme Court and Governor Brian Sandoval voted in favor of clearing Steese's name; only Adam Laxalt, the state's attorney general and a current candidate for governor, voted against the pardon. Steese was charged with capital murder in the high-profile 1992 killing of Las Vegas circus performer, Gerard Soules. He was prosecuted by Bill Kephart and Doug Herndon, who both went on to become district judges in Las Vegas. Steese was in Idaho at the time of Soules's death, but signed a false confession after a five-hour interrogation and 35 hours without sleep. At trial he presented numerous alibi witness who testified that he was in Idaho at the time. Kephart—who also committed misconduct in several other capital trials before being elected as a judge in 2014—argued to the jury (with no supporting evidence) that the witnesses had seen Steese's brother in Idaho and that Steese had manufactured the alibi. After Steese was convicted in 1995, prosecutors withdrew the death penalty and Sreese was sentenced to two life sentences. He spent two decades in prison before federal public defenders proved that his brother, estranged since childhood, couldn’t have helped with Steese’s alibi. The federal defenders' investigation also unearthed phone records in the prosecution’s files that proved Steese was in Idaho at the time of the murder. In 2012, a Nevada Eighth Judicial District Court judge issued an Order of Actual Innocence, declaring that Steese didn’t kill anyone. But the Clark County District Attorney’s Office refused to admit it had convicted an innocent man. In 2013, Assistant District Attorney Pamela Weckerly told Steese she’d agree to release him from prison only if he entered an Alford plea, in which, while maintaining his innocence, he admitted there was sufficient evidence on which he could be convicted. After gaining his freedom, Steese—still with a murer conviction on his record— struggled to find employment and experienced periods of homelessness before finding work as a cross-country trucker. At the pardon hearing, Steese’s pro-bono attorney lawyer, Lisa Rasmussen, said that from the time of his interrogation through the time of his release from prison, his constitutional rights had been “violated in a huge way.” Rasmussen condemned the prosecutorial misconduct in the case as “an embarrassment and a black mark on Clark County and the state of Nevada." After Steese himself testified, the board heard from Kathy Nasrey, the sister of Gerard Soules, who demanded that Kephart, Herndon, and others be held accountable for knowingly convicting an innocent man while her brother’s killer remained on the loose. “Now that it was clear that certain lawyers and detectives helped convict an innocent man,” she said, “will they be held accountable for taking away 20 years of his life?”

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