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NEW VOICES: Kenneth Starr Calls for "Utmost Caution" and "Absolute Certainty" with Death Cases

Kenneth W. Starr, a former federal judge and U.S. Solicitor General, recently represented Virginia death row inmate Robin Lovitt before the U.S. Court of Appeals for the 4th Circuit. Though he supports capital punishment, Starr stated that "the death penalty has to be administered with the utmost caution and reserved for the gravest offenses. This is not that kind of case. Robin Lovitt maintains his innocence, and evidence that might prove his innocence has been destroyed. I'm very distressed by that.... Society had better be absolutely certain before they put someone to death who is maintaining his innocence. I feel very passionately about that."

He urged the judges to overturn Lovitt's conviction because prosecutors failed to tell the defense that their own expert concluded that the scissors allegedly used by Lovitt could not have been the murder weapon. Starr argued that Lovitt's rights were also violated when a courthouse clerk threw away all of the evidence before his appeals were complete. Starr, who does not specialize in criminal law and has never represented an inmate on death row, became involved in Lovitt's case when his law firm took the case free of charge. (The Washington Post, February 2, 2005). See Innocence.


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Connecticut Legislative Hearings Exhibit Strong Opposition to the Death Penalty

A retired prison warden, victims' family members, and a former death row inmate were among the nearly 75 speakers at a state Judiciary Committee hearing in Hartford, almost all of whom proposed ending Connecticut's death penalty. Many of the witnesses noted that the death penalty brings no relief to victims' family members, fails to deter murder, risks innocent lives, and is applied in an arbitrary way.

"I'm here to tell you that I never met an inmate for whom I had no hope," said Mary Morgan Wolff, a former state deputy warden who worked 37 years for the state Department of Corrections.

Laurence Adams, a former death row inmate from Massachusetts, told the committee that he was freed in 2004 by long-forgotten evidence proving his innocence. "I'm here today because Massachusetts abolished the death penalty," he noted as he described his 30 years in prison for a crime he did not commit and the likelihood that he would have been executed long before his recent exoneration if the state had not ended capital punishment.


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NEW VOICES: Federal Judge Calls for More Resources for Texas Death Penalty Trials

Judge Patrick Higginbotham of the U.S. Court of Appeals for the 5th Circuit called on Texas to pay more than 'lip service' to providing individuals facing the death penalty with a truly fair and constitutional trial. He stated that more resources must be placed on training attorneys and judges at the trial level in order to protect against executing the innocent. Higginbotham, writing along with attorney Mark Curriden of Vinson & Elkins, noted that during the past three years, the U.S. Supreme Court has reviewed seven capital cases from Texas and reversed all seven. Moreover, "the Supreme Court and lower courts have overturned 165 Texas death penalty convictions or sentences since capital punishment was reinstated three decades ago."

"The cases include instances in which defense attorneys slept through trial, came to court intoxicated, or did very little work on their clients' behalf. There are cases in which prosecutors withheld evidence or allowed witnesses to fabricate testimony. And there are cases in which judges misinterpreted the law, mishandled jury selection, or issued flawed jury instructions."

They highlighted the training programs of the Center for American and International Law, a nonprofit corporation that promotes continuing legal education. The Center will conduct programs for defense attorneys, judges and prosecutors in 2005.


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POSSIBLE INNOCENCE: Federal Appeals Court Reverses Capital Conviction of British Foreign National

A federal appeals court has ruled that Ohio must either retry British foreign national Kenny Richey within 90 days or free him from death row. The U.S. Court of Appeals for the 6th Circuit threw out Richey's 1987 conviction and death sentence in the arson death of 2-year-old Cynthia Collins, ruling that prosecutors failed to offer sufficient evidence of Richey's guilt. The court also found that his court-appointed attorney was "outside the wide range of professionally competent assistance" because he failed to challenge the state's evidence. The opinion stated: "The record indicates that a competent arson expert - fully informed and supervised, and using the methods available to him at the time of the trial - would have all but demolished the state's scientific evidence, and with it a large part of the case against Richey.... Based on the state of the law at the time of his actions, the only way that Richey could have been constitutionally convicted of aggravated felony murder would have been upon a showing that Richey intended to kill the person that actually died. Because it is undisputed that there was no evidence to that effect, Richey's conviction necessarily lacked the support of sufficient evidence." (Emphasis added).


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Former Death Row Inmate Wins $6.6 Million Lawsuit Against FBI Agents

Former Illinois death row inmate Steven Manning (pictured) has been awarded $6.6 million in a civil lawsuit against two FBI agents. A jury found that the agents had framed Manning twice, including once for murder. The jury found FBI agents Robert Buchan and Gary Miller liable of concocting evidence to frame Manning, their one-time informant and a former Chicago police officer, in the murder of a trucking firm executive and in the kidnapping of two Missouri drug dealers. Manning's attorney, Jon Loevy, noted that the agents were motivated by revenge because Manning had sued them for harassment after quitting as an informant. Manning's wrongful convictions were overturned and he was eventually released from death row in February 2004. "He was in prison with the worst of the worst. Everybody was a murderer or a rapist and they all hated cops. It was hell," said Loevy of Manning's case.

At a time when Illinois had carried out 12 executions, Manning was the 13th death row exoneree in the state to be freed. His exoneration was among a series of events that prompted then-Governor George Ryan to declare a moratorium on executions until the state took steps to address its flawed capital punishment system. The civil judgment against the federal agents may be paid by the federal government. The agents found liable in the case are unlikely to face charges. (Reuters, January 25, 2005). See Innocence and Costs.


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"The Exonerated" Premieres on Court TV

On Thursday, January 27, a movie based on the acclaimed play "The Exonerated" will air on Court TV at 9 p.m. EST. The movie features award-winning actors Susan Sarandon, Danny Glover, Aidan Quinn, Brian Dennehy, Delroy Lindo, and David Brown, Jr. giving voice to the troubling stories of six persons originally condemned to death but who have since been freed from death row. It follows the original theater script by Jessica Blank and Erik Jensen.


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Cleveland Plain Dealer Series Examines Possible Innocence in Spirko Case

A three-part series appearing in the Cleveland Plain Dealer examines the capital conviction of John Spirko, who remains on Ohio's death row for the 1982 murder of Elgin, Ohio postmaster Betty Jane Mottinger. The paper's investigation found that Spirko's imagination and "not much else" had brought him to the brink of execution despite concerns of his innocence. Shortly after Mottinger's body was found, Spirko voluntarily contacted police to provide information about the murder. According to the paper's investigation, Spirko's ill-conceived plan was to use false information about the crime as leverage to secure a sentencing deal for two unrelated felonies and an agreement that his girlfriend would be given probation for assisting him in a prison escape attempt. Federal authorities initially agreed to his terms and conducted a series of 15 interviews with Spirko, most featuring a shifting and contradictory series of accounts that Spirko said he learned about at several Toledo-area parties.

Six weeks after the interviews began, Spirko, a known liar within the law enforcement community, "had talked himself right onto Ohio's death row." More than two decades later, the Plain Dealer's news investigation of Spirko's case details the role that over-zealous investigators, prosecutorial misconduct, and conflicting eye-witness testimony have played in Spirko's case. Judge Ronald Lee Gilman of the U.S. Court of Appeals for the 6th Circuit stated in a dissenting opinion that the state's case against Spirko was built "on a foundation of sand" and that the "complete absence" of physical evidence against him raised considerable doubt about his guilt.


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Wrongful Convictions Raise Concerns About New York's Death Penalty

In a recent op-ed in the Albany Times Union, criminal justice expert Scott Christianson asked that state leaders consider New York's well-documented problems with wrongful convictions before trying to fix the state's unconstitutional death penalty statute. Christianson, a former state criminal justice official, documented more than 130 cases (most of them involving convictions since 1980), in which innocent persons were convicted (mostly of murder) and sentenced to long prison terms in New York. Experts have found that from 1 to 10 percent of those convicted of a felony in New York are actually innocent, and these proven cases are "simply the tip of the iceberg," according to Christianson. He wrote further: "In the past, prosecutors didn't have to worry as much that their mistakes would ever come to light. Today, however, with the advent of DNA and possibly other definitive technologies, actual innocence in some cases threatens to become positively established even after an offender has been convicted or even legally executed. ... Any proven wrongful conviction can expose serious injustices and undermine respect for law enforcement."

Among Christianson's recommendations for addressing these concerns are reforms such as requiring a specific state agency to maintain a database of defendants who have been found wrongfully convicted and convening a blue-ribbon panel to hold public hearings and report its findings. Christianson also believes that New York should require the videotaping of police interrogations, overhaul its public defense system, and hold those involved in improperly prosecuting cases accountable for their actions. Based on the studies and data Christianson concluded, "The inevitability of error is just one reason why the death penalty is a bad idea. But it's one that fair-minded citizens . . . can understand."


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A Tale of Two Texas Cases

EXECUTED:  Cameron Willingham, executed in Texas in 2004 for an arson that killed his three children. He steadfastly maintained his innocence.
FREED:  Ernest Willis, freed from death row in Texas in 2004 after the arson investigation that led to his conviction was discredited.

There are many similarities between these two alledged arson cases from Texas. The main difference is that one resulted in an execution, the other in the inmate being freed.

Some similarities in the cases:

  • Both convictions were based upon the theory that accelerants were used, indicating that the fires were intentionally set.
  • Both convictions were based on speculative interpretations of "crazed glass" that was found at the crime scene.  The splintered glass was originally believed to be caused by an accelerant spray. However, crazed glass may also occur when cold water that is used to put out a fire hits hot glass.
  • The deputy state fire marshal, Manuel Vasquez, testified to similar conclusions in both cases.
  • The convictions were only five years apart (Willingham in 1987, Willis in 1992).  Both were appealed to the Texas Court of Criminal Appeals, and both were denied.
  • In both cases, reinvestigations of the evidence by fire expert Gerald Hurst stated that the burn patterns and residue were consistent with "flash over," a phenomenon unique to electrical fires, rather than being attributable to arson.
  • According to an investigation by the Chicago Tribune, Wilingham's and Willis' cases were "nearly identical" based upon investigations by Hurst and Louisiana fire chief Kendall Ryland.  Then- Texas deputy fire marshall Edward Cheever has admitted, since the Hurst investigation and Willingham's execution, that "we were still testifying to things that aren't accurate today. They were true then, but they aren't now... Hurst was pretty much right on. ... We know now not to make those same assumptions."  (Chicago Tribune, December 9, 2004)
  • One key difference in the two cases was that Ernest Willis was represented in his federal appeals by the high-profile law firm of Latham & Watkins, which represented Willis without charge.

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NEW RESOURCE: "Executed on a Technicality" Scheduled for April Release

Executed on a Technicality: Lethal Injustice on America's Death Row, by Professor David Dow, to be released in April 2005, is a behind-the-scenes look at the death penalty through the lens of an attorney who formerly supported capital punishment. Dow, who teaches at the University of Houston Law Center and founded the Texas Innocence Network, provides case histories illustrating serious flaws in the death penalty system. He uses these cases to guide readers through a web of coerced confessions, incompetent representation, racist juries, and unfair judges, all of which he believes contribute to the arbitrariness of capital punishment.

In many cases, obscure technicalities in the law prevented courts and juries from hearing evidence that would have prevented an execution or a death sentence. Dow relates the case of one man who was executed because the jury never heard from two eyewitnesses who swore he was not the murderer. In another case, a man was allowed to represent himself despite the fact that his mental imbalance - which resulted in attempts to issue a subpoena to Jesus Christ and to dressing as a cowboy during his trial - was obvious.


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