Two Cases Added to DPIC Innocence List, Bringing Total to 121

The Death Penalty Information Center recently became aware of two older capital cases in which the defendants had been sentenced to death but were later acquitted at re-trial.  We have added Christopher McCrimmon of Arizona and Larry Fisher of Mississippi to our innocence list, bringing the total number of people released from death row on the basis of innocence to 121 since 1973. McCrimmon is the eighth person to be exonerated from Arizona’s death row, and Fisher is the second death row exoneree from Mississippi.  A brief description of the cases follows:

Christopher McCrimmon was convicted and sentenced to death for a triple murder that occurred in Tucson's El Grande Market in 1992. Two other co-defendants, Andre Minnitt and Martin Soto-Fong, were also sentenced to death for the same crime. At McCrimmon’s trial, one juror hesitated about his vote for conviction. The trial judge met with the jury, which then shortly returned a unanimous guilty verdict. The Arizona Supreme Court overturned McCrimmon’s conviction in 1996 because of the judge’s undue pressure on the jury. (Arizona v. McCrimmon/Minnitt, 927 P.2d 1298 (1996)). Subsequently, it was discovered that the lead prosecutor against all 3 co-defendants, Kenneth Peasley, presented false evidence in the original case. With this knowledge, McCrimmon was quickly acquitted at his re-trial in 1997. (See Arizona v. Minnitt, 55 P.3d 774, 779 (2002) (vacating co-defendant Minnitt’s conviction and sentence and barring re-trial because of deliberate prosecutorial misconduct)).

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Georgia Board To Pardon Woman 60 Years After Her Execution

The Georgia Board of Pardons and Paroles has announced that it will issue a formal pardon this month for Lena Baker (pictured), the only woman executed in the state during the 20th century. The document, signed by all five of the current board members, will note that the parole board's 1945 decision to deny Baker clemency and allow her execution was "a grievous error, as this case called out for mercy." Baker, an African American, was executed for the murder of Ernest Knight, a white man who hired her . Baker was tried, convicted, and sentenced to die in one day by an all-white, all-male jury. Baker claimed she shot Knight in self-defense after he locked her in his gristmill and threatened her with a metal pipe. The pardon notes that Baker "could have been charged with voluntary manslaughter, rather than murder, for the death of E.B. Knight." The average sentence for voluntary manslaughter is 15 years in prison. Baker's picture and her last words are currently displayed near the retired electric chair at a museum at Georgia State Prison in Reidsville.

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NEW RESOURCE: A Study of Exonerations in the U.S.

Newly published research examining 340 exonerations in the United States between 1989 and 2003 found that a significant number of those who were wrongly convicted had been sentenced to death. Researchers note that this finding appears to reflect two patterns: capital defendants are more likely to be convicted in error, and false convictions are more likely to be detected when defendants are on death row.

The paper, authored by Professor Samuel Gross of the University of Michigan Law School along with other assistants, reveals clear patterns associated with false convictions. The leading cause of wrongful convictions is perjury, including perjury by police officers, by jailhouse snitches, by the real killers, and by supposed participants and eyewitnesses to the crime who knew the innocent defedants in advance. The research revealed that false confessions, especially among vulnerable defendants such as juvenile offenders and those with mental retardation, also played a large role in murder convictions that led to exoneration. Almost all of the juvenile exonerees who falsely confessed were African American, and 90% of all exonerated juvenile defendants were African American or Hispanic.

Based on their review of these exonerations, the paper notes that "any plausible guess at the total number of miscarraiges of justice in American in the last fifteen years must run to the thousands, perhaps tens of thousands, in felony cases alone."

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DNA Testing Leads to the Exoneration of Another Prisoner In Case Involving Mistaken Eyewitness Testimony

In a case that sharply illustrates the fallibility of eyewitness testimony, Miami-Dade prosecutors plan to ask a state judge to vacate the convictions of Luis Diaz based on DNA evidence that was not available during his 1980 trial. Though he was shorter and lighter than the man that most witnesses described to police, Diaz was charged with rape 25 years ago after eight women identified him as their attacker. Following his trial, the judge said, "I've never seen a case where I was more convinced of a man's guilt." Two decades later, two of the victims came forward saying that Diaz had not been their attacker, and one of the women claimed she chose his picture from a photo spread only because police had pressured her to select one of nine photographs.

Only two DNA samples remained from the original trial. Both were from the same man and not from Diaz.  Barry Scheck, co-founder of the Innocence Project that initiated the testing in Diaz's case, stated that about 75% of the exonerations since the advent of forensic DNA testing in 1989 have hinged on mistaken eyewitness identification.

Diaz said that he has spent much of his time in prison reading the Bible and that he hoped to get to know his grandchildren when he is released.

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Convictions Overturned In Pennsylvania and New Jersery through DNA Testing

Thomas Doswell of Pennsylvania and Larry Peterson of New Jersey recently had their convictions overturned as a direct result of DNA testing.  Each defendant had serverd 18 years in prison.  In Peterson's case, the prosecution had sought the death penalty but the jury could not agree and he was sentenced to life.  His case marked the first time a New Jersey court has overturned a conviction because of DNA evidence.  Both reversals stemmed from the work of attorneys at the Innocence Project of the Benjamin Cardoza School of Law in New York City.

Though he has consistently maintained his innocence, Doswell was convicted of the 1986 rape of a nursing home employee. After a request for DNA testing filed by the Innocence Project, a Common Pleas court judge ordered evidence from the crime scene tested and the results cleared Doswell of any involvement in the crime. He was released from prison following the state's withdrawal of charges. In 1999, Doswell had filed a motion with the court to allow DNA testing, but a judge ruled in favor of prosecutors who challenged the motion because it was filed three weeks too late. "Really, this could have been taken care of in 1999. . . . I don't see it as a victory. It's a major loss of 18 years that nobody can compensate; nobody can give back. This is a guy who got railroaded," said one of Doswell's attorneys, James DePasquale. (Pittsburgh Tribune-Review, July 30, 2005; Associated Press, Aug. 2, 2005).

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Protecting Human Life Should be at Least as Important as Protecting Property Rights

In a recent Washington Post column, Richard Cohen compared the deep objections voiced by many Americans after the U.S. Supreme Court ruled that communities can condemn property in distressed areas to make way for economic development to the tepid reaction to strong evidence that a Missouri man may have been wrongly executed for a crime he did not commit. Cohen, noting that it seems "far easier for the government to wrongfully take a life than a parcel of run-down real estate," wrote:

The city of New London, Conn., narrowly (5 to 4) won the right last month from the Supreme Court to condemn a parcel of land in a distressed part of the town to make way for economic development. The ruling has generated a tsunami of objection and an effort in many states and localities to have its effects undone . . . .

At the same time, in a far different area of the law, authorities are wondering if two men long ago convicted of murder might be innocent. This has generated almost no interest, no nationwide protest movement, suggesting that in this country it is far easier for the government to wrongfully take a life than a parcel of run-down real estate. Is this a great country or what?

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New Trial Ordered for Death Row Inmate Following DNA Testing

A North Carolina Superior Court judge orderd a new trial for death row inmate Rex Penland following DNA testing that discredited the state's case.  Penland was convicted of a rape and murder 11 years ago, but DNA testing at the time of his trial was inconclusive.  More recent testing was favorable to Penland and did not place him at the scene of the crime.  Penland was convicted largely on the basis of testimony from his two nephews who were also involved in the crime.  Ken Rose, one of the Penland's attorneys, said: "I think there are substantial questions about whether they got the wrong person.  We have other evidence calling into question the [nephews'] testimony."

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Editorial Criticizes Proposed Bill to Limit Death Penalty Appeals

A recent Philadelphia Inquirer editorial criticized the proposed "Streamlined Procedures Act," federal legislation that would deny or sharply restrict the reach of federal judges in hearing habeas-corpus claims from those on death row. Noting that the measure would increase the possibility of executing an innocent person, the editorial stated:

Amid Washington lawmakers' latest drive to further restrict the appeals of (capital) defendants, they need to recognize what could be at risk with their tough-on-crime crackdown - innocent lives.

In both Senate and House versions, the innocently titled Streamlined Procedures Act amounts to an unconscionable assault on federal court oversight of the fairness of criminal trials in the state courts.

The Republican-sponsored measure would deny or sharply restrict the reach of federal judges in hearing habeas-corpus claims from convicts. These claims range from whether adequate legal counsel was provided to indigent (and often minority) defendants, on up to whether an innocent person may have been convicted wrongly.

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Massachusetts Governor's Proposed Death Penalty Law Meets Strong Opposition at Hearing

Massachusetts Governor Mitt Romney recently testified that the proposed "foolproof" death penalty statute he hopes will bring capital punishment back to the state does not eliminate the possibility that an innocent person could be executed. Romney acknowledged to members of the joint House and Senate Judiciary Committee that the proposed law cannot protect the state against the potential for human error, stating, "A 100 percent guarantee? I don't think there's such a thing in life. Except perhaps death - for all of us."

Representative Michael A. Costellow, one of the lawmakers who questioned Romney during the hearing, said that the Governor's admission "does knock out the initial premise" that the plan is foolproof, adding, "I think they put the best and the brightest together to try to come up with a foolproof policy, and it isn't foolproof."

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POSSIBLE INNOCENCE: Doubts Linger About Guilt of Arizona Juvenile Offender

More than a decade after juvenile offender Martin Soto Fong and two other men were tried and sentenced to death in Arizona, questions about Fong's guilt linger and are underscored by the fact that he is the only one of the three men to remain convicted of the crime. The prosecutor who won their convictions, Kenneth Peasley, was disbarred last year for intentionally eliciting false testimony to win capital murder convictions in the re-trials of Soto's co-defendants, Christopher McCrimmon and Andre Minnit. McCrimmon was aquitted in a retrial and Minnit was released when the Arizona Supreme Court vacated his conviction. 

In ordering Peasley's disbarment, a rarity for someone of his stature, the state Supreme Court stated, "We cannot conceive of a more serious injury, not just to the defendants but to the criminal justice system, than a prosecutor's presentation of false testimony in capital murder cases." Though Fong was removed from death row after the Supreme Court outlawed the execution of juvenile offenders earlier this year, he remains in jail and those familiar with Peasley's misconduct believe Fong may be innocent. "I do not believe McCrimmon and Minnit did this. I have seriously strong doubts about Fong," notes Karen Clark, the State Bar of Arizona attorney who headed the effort to disbar Peasley. Clark states that among the problems with Soto's case are 2 police reports covering the same anonymous tip that name different suspects.

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