Louisiana Must Pay $14 Million to Man Exonerated From Death Row

The U.S. Court of Appeals for the Fifth Circuit upheld a $14 million award to John Thompson, a former death row inmate in Louisiana who was exonerated after withheld evidence was revealed.  Thompson spent 18 years in prison, including 14 years in the solitary confinement of death row in Angola Prison.  He came within one month of being executed in 1999 when his attorneys discovered blood evidence that should have been turned over to the defense years ago.  The new evidence cleared Thompson of an armed robbery conviction, which in turn had influenced his trial for an unrelated murder.  At his re-trial on the capital murder charge, Thompson was acquitted in thirty-five minutes by a jury in 2003.  Thompson sued the District Attorney's Office of Orleans Parish in 2003 and won a jury verdict in 2007.  The jury also awarded $1 million for attorneys' fees.

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Federal Appeals Court Considers Sufficiency of Evidence in Troy Davis Case

A three-judge panel of the US Court of Appeals for the 11th Circuit in Atlanta heard arguments in the Troy Davis case on December 9.  The judges weighed whether Davis' new evidence was sufficient to merit a more extensive hearing and perhaps a new trial.  One of the judges, Rosemary Barkett, said she would like to see the innocence claims fleshed out in a further hearing.

Judge Barkett expressed her frustration with the fact that none of the eyewitnesses were shown another primary suspect’s photo or presented with a lineup with him in it.  Barkett also speculated that Savannah police faced so much pressure to quickly solve the high profile murder that they did not focus enough on the other primary suspect.  While acknowledging the possibility of executing an innocent person, Barkett added, “It’s also possible the real guilty person who shot [the victim] Officer MacPhail is not being prosecuted.” 

The Court did not indicate when it would issue a ruling and at the close of the hearing, Judge Dubina called the appeal a “very difficult case.”  Judge Marcus called the case “murky,” without the availability of DNA evidence that could categorically clear Davis. The high profile case has garnered attention as seven of the nine eyewitnesses in the case have recanted their original testimony.

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STUDIES: Coping with Innocence After Death Row

Professsors Saundra Westervelt and Kimberly Cook of the University of North Carolina recently published a study entitled “Coping with Innocence After Death Row.” The study appeared in "Contexts" published by the American Sociological Association. The authors studied the lives of 18 innocent men and women exonerated from death row. The unique research uncovers the difficulty the exonerees have had in adapting to life outside of prison without the process of “delabeling,” or recognition of their innocence by society.

“Frequently, community members still see them as guilty criminals who ‘beat the system,’” noted the authors. One exoneree often found “child killer” written in the dirt on his truck, and neighbors told another exoneree’s children that their mother was “a babykiller.” The study explores the coping strategies and continued struggles of those who had been exonerated.

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STUDIES: Eyewitness Identification Procedure in Texas

A new study concerning criminal justice procedures in Texas has been released by the Justice Project. Their research found that only 12% of Texas law enforcement agencies have any written policies or guidelines for the conduct of photo or live lineup procedures. Furthermore, they discovered that the few existing written procedures are often vague and incomplete. Eighty-two percent of Texas’ 38 wrongful convictions exposed by DNA testing, which includes non-capital cases, were based largely or exclusively on incorrect eyewitness identifications.

Overall, the study found that most jurisdictions in Texas fail to implement widely endorsed best practices that have been proven to increase reliability of eyewitness testimony. Only 7% or less of all Texas departments have written policies in line with such endorsed best practices designed to minimize eyewitness error.

The Justice Project is a non-profit and non-partisan organization that works to improve the fairness and accuracy of the criminal justice system. The full research report may be found here.

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Federal Appeals Court to Hear Arguments in Troy Davis' Appeal

Attorneys for Georgia death row inmate Troy Davis will have the opportunity to argue before a three-judge panel of the U.S. Court of Appeals for the 11th Circuit on December 9 in Atlanta. The Court will hear arguments on whether Davis can file a second federal challenge to his conviction based on new evidence of his innocence. The Court stayed Davis' execution shortly before he was to receive a lethal injection so that it could review the constitutional issues in his case.

Davis’ case has garnered both international and national attention. Former President Jimmy Carter and the European Union were among those calling for a stay of execution. Davis was scheduled to be executed on October 27 after the U.S. Supreme Court denied review following Davis' unsuccessful appeal to the Georgia Supreme Court.

Davis' original conviction was based primarily on eyewitness testimony. Since the 1991 trial, 7 of the 9 non-police eyewitnesses have recanted their testimony, with some pointing to another suspect.

(Associated Press, “Federal appeals court to hear Troy Davis case Dec. 9,” November 19, 2008). See also Innocence.

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NEW VOICES: 30 FBI Agents Call for Pardon in VA Case with Death Penalty Implications

On November 10 in Richmond, Virginia, thirty former FBI agents held a press conference calling for the pardon of four sailors, known as the Norfolk Four, who were convicted of rape and murder. Their convictions were based mainly on their own confessions, which were apparently made out of fear that they might otherwise receive the death penalty. The FBI agents pointed out that DNA and forensic evidence now points to a prison inmate who has confessed as the sole perpetrator of the crimes. They asked Virginia Governor Tim Kaine to pardon the men. “After careful review of the evidence we have arrived at one unequivocal conclusion: The Norfolk Four are innocent,” said Jay Cochran, a former assistant director of the F.B.I. and former special agent who served at the bureau for 27 years. “We believe a tragic mistake has occurred in the case of these four Navy men, and we are calling on Governor Kaine to grant them immediate pardons.”

“We are not bleeding hearts, and we don’t take this type of public action lightly,” said Cochran. “However, we also believe that law enforcement has an obligation to protect the most innocent from wrongful conviction.” The agents joined a long list of notable people calling for a pardon, including 4 former Virginia attorneys general, 12 former state and federal judges and prosecutors, and a past president of the Virginia Bar Association.

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EDITORIAL: Death Penalty Distorts the Criminal Justice Process

A recent editorial in The Journal Star (Lincoln, Nebraska) expressed the paper's shock at how the death penalty distorted a state criminal investigation to the extent that six innocent people were convicted of a murder they did not commit. Defendants were pressured to offer erroneous testimony through the threat of facing the death penalty. “The wrongful convictions show how the death penalty can distort the search for justice,” the editorial stated. “Investigators supplied suspects suggestions on what could have happened. They showed photos of the crime scene. Under pressure, suspects offered the stories authorities wanted.” The pressure that was used against the suspects was the threat of the electric chair. DNA testing later cleared the six men. The actual killer, whose guilt was confirmed by DNA tests, had already died in 1992. Unfortunately, that defendant had been cleared by a blood test conducted by forensic scientist who was later exposed as providing false and misleading evidence. Due to the prevalence of human error in the system, the editorial concluded, "The death penalty should be abolished."

The full editorial may be read below:

Death penalty distorted Beatrice case

"The exoneration of six people who had been convicted for the murder of a Beatrice woman is a shocking example of the justice system going awry.

The wrongful convictions show how the death penalty can distort the search for justice.

The case boggles the mind.

How could the complicated and detailed scenario presented in court testimony turn out to be complete fiction?

One reason is the police interrogation methods used at the time. Investigators supplied suspects suggestions on what could have happened. They showed photos of the crime scene. Under pressure, suspects offered the stories authorities wanted.

And how was that pressure exerted?

By threatening the death penalty.

Four defendants were bullied into confessions when authorities threatened them with the electric chair, according to Attorney General Jon Bruning. Their testimony was used to convict Joseph Edgar White of first-degree murder. The other five pleaded guilty or no contest to lesser charges.

Advances in DNA analysis now show the prosecution’s case was entirely fabricated.

In the first step, the DNA evidence showed no link between the defendants and the crime.

In the second, conclusive step, the DNA evidence proved who had actually committed the crime in 1985.

That turned out to be Bruce Allen Smith, who died of AIDS in 1992 in Oklahoma City.

He had been a suspect early in the case, but authorities turned their attention elsewhere after he was apparently cleared by a blood test done by Oklahoma forensic specialist Joyce Gilchrist.

There’s now reason to suspect the accuracy of that blood test. Gilchrist was fired after allegations of incompetence and untruthfulness. A federal appeals court reversed a death sentence, finding that Gilchrist had provided evidence that she “knew was rendered false and misleading by evidence withheld from the defense.”

The circumstances of the Beatrice case ought to shake the faith of the most hardened defender of the death penalty.

The death penalty was never imposed in the case, but it played a role in sending six people to prison.

An error here, overzealousness there, and before anyone can stop it, the defendants are behind bars, out of sight and out of mind.

For decades, no one questioned the convictions. Then the case unraveled quickly and unequivocally, exposing the imperfection and error that will forever impair any criminal justice system operated by humans.

The next time Nebraska lawmakers once again consider whether to retain the death penalty, they should study this case. The evidence is fresh and convincing. The death penalty should be abolished."

(The Journal Star, "Death Penalty Distorted Beatrice Case," November 13, 2008). See Innocence and Editorial.

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Florida Inmate Facing Imminent Execution Despite Evidence of Witness Tampering by Prosecution

A Florida inmate faces execution despite new revelations that the state prompted a trial witness to lie. Inmate Wayne Tompkins was to be executed in Florida on October 28, 2008, but was granted a stay of execution to allow time for the state Supreme Court to review his case. On November 7, the court denied Tompkins' appeal, even though the court acknowledged that a state witness, a jailhouse informant, admitted to providing false testimony at Tompkins' original trial in 1985.

Justice Harry Anstead dissented from the court's ruling, noting that jailhouse informants are often unreliable, and in this case the informant was apparently prompted to lie.  He wrote, "Indeed, if the claim is true, we have a state prosecutor who committed a criminal act in tampering with a witness. Surely, common sense would tell us this is the kind of 'bombshell' disclosure that could change the jury's entire evaluation of the case." Tompkins' attorney Martin McClain cited numerous concerns about the state's case. "This is one of the most troubling cases that I have," he said. "The evidence against Mr. Tompkins is just absurd."  Tompkins' stay of execution expires on Nov. 18.

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U.S. Supreme Court to Consider Constitutional Right to DNA Testing

On November 3, the US Supreme Court agreed to hear a non-capital case from Alaska in which the defendant asserts that the constitution requires the state to allow DNA testing on evidence from his trial so that he can prove his innocence. In District Attorney's Office v Osborne (No 08-6), the Court will initially consider whether William Osborne may bring a civil rights claim (under 42 USC 1983) demonstrating that the state has violated his constitutional right to due process by refusing to turn over the evidence for testing. Osborne was convicted in 1994 of a sexual assault and the testing on evidence from the crime scene tended to point to his guilt. Today, however, more sophisticated testing is available that might exonerate Osborne.

The case is on appeal by the state of Alaska, which is challenging a ruling from the U.S. Court of Appeals for the Ninth Circuit that held that Osborne was entitled to the testing partly because the state is required to turn over exculpatory evidence even after a defendant's trial. The state has argued that there needs to be finality in its courts' decisions, but the Ninth Circuit stated:

Although finality is undoubtedly an important consideration,
it is not such an immovable force as to override the due
process interests presently at stake. If Osborne already had in
hand the exculpatory evidence he seeks and filed a habeas
petition stating a valid claim for relief, there would be no
question that his petition must be heard despite finality considerations.
. . . Though no doubt eroding finality, such an exception “serves as ‘an additional safeguard against
compelling an innocent man to suffer an unconstitutional loss
of liberty,’ guaranteeing that the ends of justice will be served
in full.”

(Osborne v. District Attorney's Office, No. 06-35875 (9th Cir. April 2, 2008) (internal citations omitted).

(See, Nov. 3, 2008). See also Supreme Court and Innocence.

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NEW VOICES: Veteran Detective Points to the Possibility of Wrongful Convictions

Jim Trainum, a police officer of over 25 years, recently discussed how shocked he was to discover how he and other officers were able to obtain a confession to murder from an innocent woman. Trainum explained, “Reviewing the tapes years later, I saw that we had fallen into a classic trap. We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession.”

Detective Trainum recently wrote about this danger and adocated a possible reform in an op-ed in the Los Angeles Times, arguing for the videotaping of police interrogations. Trainum said he never understood why someone would admit to a crime he or she didn’t commit until he secured such a false confession in the murder case.

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