NEW VOICES: Ohio Supreme Court Justice Testifies for Death Penalty Repeal

On December 14, Ohio Supreme Court Justice Paul Pfeifer (pictured) testified before the state's House Criminal Justice Committee, urging lawmakers to overturn the death penalty law he helped write as a state senator 30 years ago. Justice Pfeifer said, “The death penalty in Ohio has become what I call a death lottery," citing factors such as the location of the crimes and the attitudes of individual county prosecutors as variables affecting whether the death penalty is pursued in a given case. He continued, “It's very difficult to conclude that the death penalty, as it exists today, is anything but a bad gamble. That's really not how a criminal justice system should work.'' As a sitting justice, Pfeifer has continued to issue decisions in death penalty cases and to set execution dates under the law. Of his role, he said, "I have a duty under the law to follow that law. At the same time, we are admonished under the rules that apply to judges that we have a duty to step forward and advocate for changes we think would lead to an improvement in the law.”

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Illinois Court Reverses Murder Conviction Reminiscent of Death Row Exonerations

On December 15 an Illinois appellate court reversed Juan Rivera’s (pictured) conviction for a murder committed almost 20 years ago. The case is reminiscent of many in Illinois that led to the state's abolition of the death penalty in 2011.  Rivera was convicted and sentenced to life in prison for killing 11-year-old Holly Staker based on a confession after nearly 24 hours of near-constant interrogation.  No physical evidence or witnesses conclusively linked him to the crime, and testing of DNA found on the victim, conducted in 2005, excluded him as the source. The reviewing court stated, “After viewing the evidence in the light most favorable to the prosecution, we hold that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the State’s evidence was insufficient to establish guilt beyond a reasonable doubt, we must reverse the conviction of Juan A. Rivera, Jr.”  Rivera’s case was highlighted in a recent New York Times Magazine article that noted there have been more than 250 exonerations through DNA testing, and nearly 76% of the original convictions were based on witness misidentification or flawed forensic evidence.

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STUDIES: Eyewitness Identification Comes Under Supreme Court and Scientific Scrutiny

The U.S. Supreme Court recently considered Perry v. New Hampshire, a case questioning the validity of eyewitness testimony when the identification was made under unreliable circumstances.  At the same time, years of scientific study on the accuracy of human memory are pointing to the need for reform in the use of eyewitness evidence in criminal cases.  Barbara Tversky, a psychology professor at Columbia University, whose experiments on memory were reported in the journal Cognitive Psychology, noted, “Memory is weak in eyewitness situations because it’s overloaded.  An event happens so fast, and when the police question you, you probably weren’t concentrating on the details they’re asking about.”  About 75% of DNA-based exonerations have come in cases where eyewitnesses have made mistakes.  Scientists suggest that witness testimony should be viewed more like trace evidence, with the same fragility and vulnerability to contamination.  Strong emotions felt by victims of a crime is one such possible area of contamination. Gary Wells, a psychology professor at Iowa State University, found that the accuracy of lineups improves when the possible suspects are presented to witnesses in sequence, rather than all at once, as in the traditional lineup. The downfall of side-by-side lineups, Dr. Wells said, is that “if the real perpetrator is not in there, there is still someone who looks more like him than the others.” The Supreme Court of New Jersey recently promulgated new rules for dealing with the problems of eyewitness identification.

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Recently Cleared Tennessee Inmate Added to List of Exonerations

Gussie Vann of Tennessee has been added to the list of those exonerated from death row following the dismissal of all charges against him in September 2011.  Vann becomes the 139th former death row inmate exonerated since 1973. Vann was originally convicted and sentenced to death in 1994 for a sexual assault and murder of his own daughter, Necia Vann, in 1992. However, in 2008 following state post-conviction review, Circuit Court Senior Judge Donald P. Harris held that Vann was entitled to a new trial because his defense attorneys failed to hire forensic experts to challenge the state’s allegations of sexual abuse.  (Vann v. State, Order, Post-conviction No. 99-312, 10th Judicial Dist., McMinn Cty., May 28, 2008). Judge Harris wrote that this failure led to Vann being convicted on “inaccurate, exaggerated and speculative medical testimony."  (Id. Memorandum, at 23).   At the post-conviction hearing, forensic experts contradicted the state’s earlier testimony and said there were no signs of recent sexual abuse on the victim. Judge Harris described the failings of Vann’s original attorneys as “not only prejudicial, but disastrous.” (Id.)  The state elected not to appeal this ruling, though it did try to find grounds for a conviction on a lesser offense. Ultimately all charges were dropped by the state on September 22, 2011.

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EDITORIALS: Calls for Florida to Revamp Its Untrustworthy Death Penalty System

The Orlando Sentinel in Florida recently called on the state to change the unusual way in which it arrives at death sentences, recommending instead unanimous jury decisions for a death sentence, the prevailing practice in the vast majority of states.  In June, a federal judge declared Florida’s death penalty unconstitutional because it only requires a simple majority to decide whether aggravating factors exist and to recommend a death sentence to the presiding judge.  In 2005, former Florida Supreme Court Justice Raoul Cantero urged legislators to make a similar change and require a unanimous jury recommendation in capital sentencing.  The following year, a study conducted by the American Bar Association called for reforms in the state’s death penalty system which has had more exonerations than any other state, with 23 inmates released from death row since 1973.  The chair of the study, Professor Christopher Slobogin, concluded, “Much more needs to be done to ensure that Florida's death penalty system avoids executing the innocent.”  The Sentinel's editorial echoed that concern, “Florida can no longer shrug off travesties of justice that damn innocents such as Frank Lee Smith. After serving 14 years for a rape and murder, DNA testing proved his innocence. Redemption that came 11 months after he died behind bars. Florida simply can no longer accept a simple majority when lives hang in the balance.”  Read the full editorial below.

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DPIC RESOURCES: New Innocence Database

The Death Penalty Information Center is pleased to announce that our List of Those Exonerated from Death Row (1973-Present) is now available in a searchable, database format through our new Innocence Database.  This resource allows users to search through the list of those freed from death row after their convictions were dismissed by name, year of exoneration, state from which they were released, the inmate’s race, and whether DNA evidence factored into their release.  Lists of cases can also be sorted by each category.  The database includes cases such as that of Kirk Bloodsworth (pictured), who was exonerated in Maryland in 1993 after being sentenced to death in 1984.  He was the first death row inmate to be exonerated through DNA evidence.  To read the conditions for a case to be included in this list, click DPIC’s criteria.  Please contact us with any comments or questions regarding this new resource.

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INNOCENCE: Texas Forensic Science Commission Closes Case of Possible Innocence

The Texas Forensic Science Commission recently closed its inquiry into the case of Cameron Todd Willingham (pictured), who was executed in Texas in 2004. The Commission was told by the Texas Attorney General that it did not have jurisdiction to rule on the Willingham case.  Hence, in its final report on October 28 on the matter, it declined to issue any finding regarding allegations of negligence or misconduct by the City of Corsicana or the Texas State Fire Marshal in the Willingham matter.  The Commission, however, acknowledged that outdated science regarding arsons played a role in Willingham’s 1991 murder conviction.  Willingham was convicted of setting the fire that killed his three daughters.  Since then, modern fire experts have determined that none of the more than 20 arson indicators identified by the standards of arson science in 1991 are reliable evidence of intentional fire.  Experts say that the cause of fire should have been "undetermined."  Stephen Saloom, policy director for the Innocence Project in New York, said,  "The world should now know that the evidence relied upon to convict and execute Cameron Todd Willingham for the fire that killed his daughters was based on scientifically invalid and unreliable evidence.”  The Commission’s final report also included a commitment from the state fire marshal’s office to review old arson rulings to determine whether convictions were based on the now-debunked science."

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Former Head of FBI and Texas Governor Call for Delay in Texas Execution

William Sessions (pictured), the former Director of the FBI, and Mark White, former Governor of Texas, called on Texas to delay the November 9 execution of Hank Skinner and allow access to untested DNA evidence.  Skinner, who has always maintained his innocence, has repeatedly petitioned for testing of several items from the crime scene that contain DNA.  The items - a windbreaker jacket similar to the one an alternative suspect wore, the victim’s fingernail clippings and human hairs found in the victim’s hands - could conclusively prove the presence of a third party, or could confirm Skinner's guilt.  In an op-ed in the Austin American-Statesman, Sessions and White wrote, “We hope the courts' actions will reflect the belief of the majority of Texans that inmates should have access to DNA testing that could prove their innocence. This belief also is shared by more than a dozen current and former elected officials and former judges, prosecutors and law enforcement, who have joined together to urge state officials to test the DNA evidence.”  The op-ed continued, “It is unconscionable that the prosecutor refuses to test the available DNA evidence when such testing has the power to confirm the verdict or prove the other suspect's guilt. Testing the evidence is just common sense.”  (DPIC Note: On November 3, a Gray County trial court denied without comment Skinner’s request for DNA testing.  An appeal is being filed with the Texas Court of Criminal Appeals.)  Read full op-ed below. UPDATE below.

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NEW VOICES: Former Judges, Prosecutors, and Elected Officials Call for DNA Testing and Stay of Texas Execution

On October 27, a group of former Texas judges, prosecutors and law enforcement officers delivered a letter to Governor Rick Perry, Attorney General Greg Abbott and District Attorney Lynn Switzer requesting DNA tests for death row inmate Hank Skinner.  Signatories to the letter include: Mark White, former Governor of Texas (pictured); Morris L. Overstreet, former Judge of the Texas Court of Criminal Appeals; Sam Millsap, former Bexar County District Attorney; Kenneth J. Mighell, former United States Attorney for the Northern District of Texas; Earl D. Musick, former Lieutenant of the Houston Police Department; and Rodney Ellis, curremt State Senator.  Skinner is scheduled to be executed on November 9 despite the fact that key pieces of DNA evidence in his case have never been tested.  Skinner has court decisions pending in both federal and state courts, but his execution has not been stayed.  The authors of the letter expressed “grave and growing concerns about the State’s stubborn refusal to date to test all the evidence in the Skinner case. Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas’s criminal justice system.”  The letter concluded, “There is simply no justifiable reason why Texas continues to waste taxpayer dollars in its decade-long fight to prevent scientific testing in Mr. Skinner’s case. We implore you to take the lead in the search for truth in this case.  Test the DNA evidence before moving forward with Mr. Skinner’s execution.”

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STUDIES: Causes of Wrongful Convictions in Pennsylvania

A recent report from the Pennsylvania Advisory Committee on Wrongful Convictions called for serious reforms in the state's criminal justice system.  The committee, which was instructed to identify the most common causes of wrongful convictions (some of which were capital cases) and any current laws and procedures implicated in each type of causation, found that, "under [the current] institutional structure, defendants have been punished for crimes they did not commit. Compounding these concerns, biological evidence is available in only a small number of cases involving violent crimes. There is every reason to believe that mistaken identifications, false confessions, inadequate legal representation, and other factors underlying wrongful convictions occur with comparable regularity in criminal cases where DNA is absent."  The committee determined the most common causes of wrongful convictions to be: “mistaken eyewitness identifications; false confessions; perjurious informant testimony; inaccurate scientific evidence; prosecutorial and defense lawyer misconduct; and inadequate funding for defense services," and made several proposals that are intended to address each cause.  The report concludes, "The system cannot routinely accept the conviction of an innocent person without being challenged to consider measures to reduce the likelihood of error and grant redress to victims of these errors... [Exonerations] represent tragedy not only for the person whose life is irreparably damaged by incarceration for a crime he did not commit, but also for the victim since each wrongful conviction also represents the failure to convict the true perpetrator."  Read full report.

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