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Another Death Row Inmate Offers Scientific Evidence to Dispute Arson Charge

Another death row inmate is challenging his conviction with new evidence that the charge of arson in his case was based on faulty science.  Daniel Dougherty, a Pennsylvania man who faces execution for setting a fire that killed his children in their home in 1985, has always maintained his innocence.  In 2006, Dougherty filed an appeal with the Pennsylvania Supreme Court containing the reports of two arson investigators who re-examined his case and found no conclusive indicators of arson. In 2004, Texas executed Cameron Todd Willingham, who was also convicted of starting a fire that killed his children in their home. Last month, the Texas Forensic Science Committee admitted in a preliminary report that flawed arson science was used in the Willingham case. Until the early 1990s, guidelines for determining arson were largely based on imprecise criteria used by fire investigators with little formal training.  In 1992, the National Fire Protection Association released its first arson guidebook, based on years of simulations and studies. Both Willingham and Dougherty were convicted based on reports prepared prior to the release of this new guidebook. Dougherty was not convicted until 15 years after the fire that killed his children.  His second wife, with whom he was having a custody dispute, claimed that he admitted to setting the blaze. His first wife, and the mother of the deceased children, does not believe that Dougherty committed this crime.

NEW VOICES: Ohio "Timeout from Death"-Part II

Although the number of executions in Ohio in the past two years is second only to those in Texas, there is considerable support in Ohio for a review of the entire system. Two former prison directors, Reginald Wilkinson and Terry Collins, agree that death row cases should be reviewed to decide whether they are the “worst of the worst.” Wilkinson (pictured), who was director from 1991 to 2006 and witnessed many executions, would take it even further: "I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."  Earlier this year, Ohio passed legislation aimed at preventing wrongful convictions. The law requires the preservation of crime scene evidence and aims to reduce faulty eyewitness identifications. The bill's sponsor, Republican State Senator David Goodman, said an independent review of death row cases and a moratorium on executions would also help prevent wrongful convictions. "It was astounding to see what was presented to me in terms of mistaken identification in criminal cases. I am not anti-death penalty, but if there is anything we can do to make sure we are not executing the wrong man, we should do it."

Ohio Governor and Attorney General Urge DNA Testing in Death Row Case

Ohio Governor Ted Strickland and Attorney General Richard Cordray recently urged prosecutors in seven criminal cases to allow DNA testing that could either prove innocence or confirm the defendant's guilt. The seven cases include one man currently on death row, Tyrone Noling, two inmates serving long sentences, three men who are no longer in prison but want to clear their names, and a man who died in prison in 2006. Gov. Strickland said, “I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us. I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime."  In all seven cases, prosecutors have resisted the DNA testing and judges have declined to grant it.

Ohio Leaders Express Concern about State's Death Penalty as Troublesome Execution Approaches

Prominent leaders in Ohio are calling for a comprehensive review of the state's death penalty system, particularly as an execution nears for a man whose guilt is being seriously questioned.  Kevin Keith (pictured) has been on Ohio’s death row for over 15 years and has an execution date of September 15. But new evidence has arisen about the unreliability of those who originally testified against him.  Ohio's governor, Ted Strickland, recently said Keith's case, “has circumstances that I find troubling. We are looking at that case very seriously." A clemency hearing is scheduled for August 11.  Ohio Supreme Court Justice Paul E. Pfeifer, who played an influential role in reinstating Ohio’s death penalty law in 1981 as a Republican state senator, is now leading the call for a review of Ohio’s system.  Other officials expressing similar concerns include two former prison directors, Reginald A. Wilkinson and Terry Collins, and two other prominent Republicans: former Attorney General Jim Petro and state Sen. David Goodman of New Albany.  Petro said, "We should show restraint, caution and diligence with these cases.  DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

EDITORIALS: Implications of Texas Execution Based on Flawed Science

A recent editorial in the Fort Worth Star-Telegram raised questions about Texas' entire death penalty system, given the preliminary finding by the Texas Forensic Science Commission that arson experts relied on outdated and flawed science during their investigation of a death penalty case.  Cameron Willingham was executed in 2004 for setting a fire that killed his three daughters in 1991 based on this faulty research.  Now it appears that the fire may not have been deliberate at all.  The Commission did not comment on whether the reliance on flawed science constitutes professional negligence or misconduct.  "But," the editorial stated, "even if the evidence doesn't clearly show wrongdoing, a conviction based on bad science might still mean a wrongful execution.” The whole death penalty system needs review: "If an automaker discovers that a faulty design is making some of its cars accelerate without warning, the company doesn't just make fixes going forward, it inspects older models to repair the defect. . . .All Texans, including those who support the death penalty, should want to know the truth -- and to make certain that no one's life is taken erroneously in our name." Read full editorial below.

Alabama Inmate May Face Execution Because of Mailroom Mix-Up

Cory Maples, an inmate on Alabama’s death row, may pay for a simple clerical error with his life. When copies of an Alabama court ruling in his case were sent to the New York law firm handling his appeals, both copies were returned unopened because the firm's attorneys representing Maples had left the firm. By the time the error was discovered, Maples’s time to appeal had expired. So far, the firm has failed to persuade a federal appeals court to waive the deadline for filing an appeal.  Maples's new attorney is arguing that Maples should not be penalized for a mistake he did not commit. Prof. Deborah Rhode, an authority on indigent defense and legal ethics at Stanford, said, “Maples’s case is a textbook illustration of why the doctrine of imputing responsibility to the client for a lawyer’s mistake is so out of touch with reality.”  Alabama is the only state that does not provide lawyers for all indigent death row inmates to challenge their convictions. Hence, defendants rely on volunteer attorneys, often from out of state, to fill the gap, and that contributed to the confusion.

First North Carolina Death Row Inmates File Appeal Under Racial Justice Act

Five men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system. These cases are the first to request application of North Carolina’s Racial Justice Act, which allows the use of statewide or regional statistical studies to challenge a death sentence because of racial bias. In all five cases, the victims in the underlying murder were white and the defendants were black.  Moreover, prosecutors struck eligible blacks from the juries in these cases at greater rates than whites. In some cases, prosecutors struck eligible black jurors while accepting similar white jurors. Ken Rose, staff attorney at the Center for Death Penalty Litigation (CDPL), said, “We would like to live and practice in a system where race does not matter. But the results show that white victims are valued more highly than black ones, and that black jurors are being denied their right to serve. This evidence of racial bias cannot be ignored.”

BOOKS: "Ending the Death Penalty: The European Experience in Global Perspective"

A new book by Andrew Hammel offers insights into the different perspectives on the death penalty in America and Europe. "Ending the Death Penalty: The European Experience in Global Perspective" examines three countries that do not have the death penalty (Germany, France and the United Kingdom), and analyzes how capital punishment was ended in those countries. Hammel ultimately believes that the governmental structure, culture, and political traditions in the U.S. make the European model of abolition unlikey to succeed here, though he also states that "important piecemeal victories" in limiting capital punishment are likely to continue in the U.S. Andrew Hammel is Assistant Professor for American Law at the University of Dusseldorf, Germany. He has worked as a lawyer with the Texas Defender Service, where he represented death row inmates in U.S. state and federal courts.