Laura Lark and Otis Ike : Pictures at an Execution

Demonstrators protest the death penalty at the Huntsville Unit in Huntsville, Texas, Wednesday, June 26, 2013. Kimberly McCarthy was put to death, the 500th execution by the State of Texas. Photo by Otis Ike / The Rag Blog.

Pictures at an execution:
Texas hits the 500 mark

I felt like a player without a team, an interloper, an uninvited party guest. Nothing felt portentous or grave, just awkward.

By Laura Lark / The Rag Blog / July 8, 2013

See gallery of photos by Otis Ike, Below.

HUNTSVILLE, Texas -- It seems that Kimberly McCarthy’s execution by lethal injection at Huntsville State Penitentiary should have been a more, well, special occasion. It was, after all, a record-breaking 500th execution in the state of Texas, and McCarthy’s credentials: female, African-American, the ex-wife of a Black Panther -- lent the affair everything it needed for a truly charged and politicized scene.
Patrick Bresnan and I, both residents of nearby Houston, expected something extreme. Maybe sinister. Violent. Redemptive.

It was, rather, despite the presence of a few megaphone-wielding Panthers decrying white devils, Rick Perry, in particular, the protesting on the anti-death penalty side was pretty lackluster.

The five women on the pro-death penalty side weren’t much more interesting, either, and it was an odd mix: a biracial lesbian couple from Houston, the wife of a corrections officer, her mother-in-law, and her little girl.

“It’s her second execution,” the woman beamed, bouncing her fat, pink-and-white-frocked child on one hip.

The kid was two and probably ready for a nap. I nodded, looking back and forth from one self-satisfied face to the next.

I felt like a player without a team, an interloper, an uninvited party guest. Nothing felt portentous or grave, just awkward. Walking back and forth from one side to the other, I had my photo taken near the “Be a corrections officer!” recruitment sign a few times.

It seemed fitting.

Perhaps it was the hundred degree heat and stifling humidity; perhaps, post-Occupy Wall Street, demonstrators understand how truly futile efforts are against the system. Whatever the case, neither side demonstrated much energy. It all came off as practical, perfunctory.

It didn’t matter whether people were pleading for forgiveness or demanding an eye for an eye, even the angriest and most passionate did nothing to provoke the line of stern, Stetson-sporting armed officers on the other side of the tape.

Relatively peaceful protesting never appeared more resigned, rote, or pointless.

It wasn’t much of a show. And then it was over: Kimberly McCarthy was declared dead.

Even the following scene -- one that should have been shocking and cinematic -- in which a chubby guy in a white button shirt, a tie designed to look like a Texas state flag, and a pair of dark shades, following the announcement of McCarthy’s passing, strode from officer to officer and gave each a firm, congratulatory handshake.

A big high-five.

Even holding hands with the most vocal of the protestors and praying didn’t change much for me. I recall looking at all of the faces of the angry and sorrowful and horrified and feeling as if nothing, anywhere, had or would ever change. As always in these situations, I felt lazy, ineffectual, and impotent. I walked away feeling as if I’d eaten dirt.

Immediately afterwards, Patrick Bresnan and I, along with the penitentiary chaplain and three associated with the deceased, arrived at the funeral home to view McCarthy’s body. One of the women, a relative, recognized me from earlier that afternoon.

“Please,” she said, leading Patrick and me to the body, “Touch her.” Noticing my reticence, she took my hand. “Please. She didn’t touch hardly anybody for the whole time she was on death row. She would have wanted to be touched.”

The woman guided my hand over the dead woman’s face and head. I looked at her grayish, lifeless face -- something neither good nor evil. Just dead.

The chaplain smiled, telling us that she left at peace with herself and the world. That her final words were, “God is good.”

With my hand to the ashen cheek of Kimberly McCarthy, I felt shame and pain and sorrow and loss throughout my entire body. For the first time that day, the waste of a human life and the lost possibility of redemption truly overwhelmed me. I found myself unable to stop crying.

I sobbed as Patrick led me to his car.

And then, again, it was over, and we drove home.

[Laura Lark is an award-winning visual artist and a widely-published writer. She has an MFA in Painting and an M.A. in Creative Writing/Literature, both from the University of Houston. Otis Ike, aka Patrick Bresnan, is a widely-exhibited photographer, a documentary filmmaker, an affordable housing activist, and a builder. He holds a masters degree in Sustainable Design from the School of Architecture at the University of Texas .]


Photos by Otis Ike / The Rag Blog:

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BOOKS / Ron Jacobs : The Limbo of Death Row

Image below (inset): ‘Dominoes. Death Row, Texas," 1979. Photo by Bruce Jackson from In This Timeless Time. Image from Prison Photography.
'In This Timeless Time':
The limbo of Death Row

The life and surroundings can be summed up in the words of prisoner Excell White: 'The gloom,' he tells the writers, 'wasn’t anything but emptiness.'

By Ron Jacobs / The Rag Blog / May 31, 2012

[In This Timeless Time: Living and Dying on Death Row in America by Bruce Jackson and Diane Christian (2012: University of North Carolina Press); Hardcover; 256 pp.; $35.]

The death penalty is a fact of life in the United States. Despite the actions of many well-intentioned people, these premeditated murders continue to take place at a shameful pace. The fact that the death penalty does exist has brought many young people to question the morality of a system that supports and even champions execution.

Unlike the other form of murder carried out by the state -- war -- the death penalty is harder to rationalize for many people. The act of intentionally putting an innocent human to death; the fact that life imprisonment is a worse punishment to many; the applied racism of the death penalty's assignments; and the sheer pointlessness of execution by the state has caused many a thoughtful person to come out in opposition.

Those who are condemned to die in the United States wait out their time in parts of certain prisons. Those places are commonly known as death row. Occasionally, these unremembered places are the subject of books and movies. Sometimes, they are also the focus of the infrequent sociological survey.

While the latter surveys do fairly well at creating statistics and prognostications, it is the fictional renderings that do better in evoking the life in these prison tiers of gates and concrete. The despair and dashed hopes; the regret and the lack thereof; even the infrequent joy and laughter.

An exception to the factual/fictional disparity can be found in the recently published book from Bruce Jackson and Diane Christian. Back in 1979 Jackson took his camera into Ellis Prison in Texas and photographed men living on death row there. These photos were an adjunct to a documentary film he and Christian would release in the early 1980s.

The film features interviews, commentary and reflections of the inmates and the filmmakers. The book, titled In This Timeless Time: Living & Dying on Death Row in America, although just published, is also part of that documentary effort. It is a fitting coda.

Designed something akin to a coffee table book, In This Timeless Time is made up of three parts. The first part includes a selection of the aforementioned photographs. The photos are accompanied by text. Some of that text is narrative describing the physical setup of the part of the prison where death row is located. Other bits describe the interior of certain prisoner’s cells and the prisoners. Still other text describes the prisoners' limited lives while still other text includes the words of the prisoners themselves.

The life and surroundings described can be summed up in the words of prisoner Excell White when he talks about his introduction to the row: "The gloom," he tells the writers, "wasn’t anything but emptiness."

The second part of the text is titled "Words." That is what it is. Words from the prisoners talking about the other prisoners. Words from the writers about the prisoners and their particular cases. Words describing the legal limbo of a death row when nobody is being killed (the book was begun during the period following the Supreme Court's suspension of the death penalty in its decision on Furman vs. Georgia), and when executions are taking place.

Last but not least are the words the authors use when writing their impressions of individual prisoners or about the Row itself.

The authors' description of their work on the Row concludes the book. Gaining the trust of the prisoners and fending off the uneasiness of the guards are two of the dilemmas described by the authors. Overcoming their own fears of being alone with potentially psychotic murderers is another. Less wrenching but interesting nonetheless is the authors' description of how they made the movie: funding, legalities and the like.

The grand finale is the showing of the film to the inmates. Jackson and Christian admit their fears of the prisoners' reactions. Indeed, this was present in their minds during much of the process.

There is no way that a subject like death row can be presented with beauty. It is one of the ugliest of humanity's activities. The inmates are not the most beautiful humans and their crimes are ugly. Yet, they too are human. The authors tell of a man on the Row named Arturo Aranda. Aranda who is well-inked. In other words, he has lots of tattoos.

The last tattoo he was getting before he went to prison was of the Lady of Guadalupe. Because he was arrested for murder, the tattoo is without a face. This image serves as a perfect metaphor for the denizens of death row; for the most part they remain faceless. Jackson and Christian's book gives some of those men a face. Therein lays its beauty.

[Rag Blog contributor Ron Jacobs is the author of The Way The Wind Blew: A History of the Weather Underground. He recently released a collection of essays and musings titled Tripping Through the American Night. His latest novel, The Co-Conspirator's Tale, is published by Fomite. His first novel, Short Order Frame Up, is published by Mainstay Press. Ron Jacobs can be reached at ronj1955@gmail.com. Find more articles by Ron Jacobs on The Rag Blog.]

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Lamar W. Hankins : Documenting Flawed Forensics and the Willingham Execution

Scene from Joe Bailey Jr. and Steve Mims's Incendiary: The Willingham Case. Image from Truly Indie.
Rick Perry and the Texas
death penalty smokescreen

Incendiary: The Willingham Case, a documentary film. It is both riveting and sickening to watch how, in Texas, we execute people on false evidence.

By Lamar W. Hankins / The Rag Blog / October 12, 2011

The new documentary Incendiary: The Willingham Case works at two levels. It focuses on what happens when supposedly expert witnesses in a criminal case get the forensic science wrong, and what happens when politicians pretend that the criminal justice system works well. If you are interested in either topic, it is a worthwhile film to see. It is both riveting and sickening at the same time to watch how, in Texas, we execute people on false evidence.

Those who follow the news will recognize the name of Cameron Todd Willingham. He was accused in 1991 of killing his three young children in a fire he deliberately set at their home in Corsicana, Texas. Willingham was convicted and executed for the deaths in 2004. While no one knows how the fire that killed the three young Willingham children started, what seems certain is that Cameron Todd Willingham was convicted and executed based on evidence that does not meet the standard of reliable science. To state this another way: There was and is no reliable scientific evidence to show that Willingham started the fire that killed his three children.

Once the fire investigators began focusing on Willingham as an arsonist, they ceased looking for other explanations for the fire's origin. While we don't know how it started, some evidence suggests that it could have started from poor electrical wiring or from a gas heater. These causes were not properly investigated and we will never know the fire’s origin because the investigators allowed the evidence to be compromised or destroyed. No court ever considered the sufficiency of the arson evidence. They focused on whether the trial judge made a mistake in his trial rulings, not the quality of the evidence offered against Willingham.

Missing from the film are interviews with the original fire investigators, the DA, and the defense expert, and an interview with Governor Rick Perry made just for the film. But there are comments from Perry that reveal the closest thing to callous indifference that can be imagined as he was questioned about the case at occasional press conferences and during interviews on a range of topics.

Not once has Rick Perry ever shown any interest in looking at the forensic evidence that was used to convict Willingham, comparing it with the conclusions of fire investigators with unquestioned scientific credentials, and drawing from that comparison a reasoned conclusion about whether the testimony used to convict Willingham was worthy of belief. Had he done so, Perry would have realized that the death penalty system in Texas has serious, fatal flaws.

While my disdain for Rick Perry knows few bounds, I reserve my harshest criticism for the criminal defense attorney who represented Cameron Todd Willingham at his trial -- Robert Dunn. Criminal defense lawyers owe their clients, at a minimum, what one of my law school professors called “warm zeal.” Renowned defense attorney Clarence Darrow, as described by writer Joelle Farrell, “defended both the righteous and the despised with the same vigor.” Willingham’s defense attorney lacked both warm zeal and vigor. To this day, he harbors nothing but contempt and loathing, if not hatred, for his now dead client.

I reserve special contempt for Dunn because I have been in his position representing a despised defendant charged with capital murder in a small East Texas town. I doubt that my skills as a trial lawyer were any better than Dunn’s, but what I lacked in experience I tried to make up for with hard work, research, and investigation. There is little evidence that Dunn tried to represent Willingham diligently.

Dunn failed to get the best expert witness available to help him analyze the fire investigation conclusions that were key to Willingham’s conviction. My impression is that Dunn was a hack attorney, cozy with the judges in Corsicana, and unwilling to make waves to provide the best representation possible.

At the time of Dunn’s representation of Willingham there were valuable resources available to him from a Texas death penalty project. I had those resources 12 years earlier. They were enormously helpful in the legal work I did on behalf of my client. They would have saved Willingham's life had his attorney used them.

The key to Willingham's case is the inadequate and fictitious fire investigation done by two investigators who had learned on the job. What they learned was not science but folk lore. Their testimony bore all the hallmarks of witchcraft, a point suggested by the comments of renowned fire expert Gerald Hurst, a former chief scientist for explosives companies with a doctorate in chemistry from Cambridge University, who has studied fire science for 40 years.

Hurst filed a report of his findings just before Willingham was executed. Rick Perry received a copy of the report, but there is no evidence that anyone on Rick Perry's staff bothered to read it. The governor could not be bothered to even glance at it.

More than a half dozen nationally acknowledged experts in fire investigation have confirmed Hurst's findings in the Willingham case, but Rick Perry was unwilling to delay the execution by 30 days so that the matter could be thoroughly vetted. Perry preferred to dismiss such findings as interference in the Texas capital punishment system by "latter-day supposed experts." Science doesn't matter to Perry. He cares about the political implications of what he does.

The two fire investigators in Willingham's case cited 20 indications that the fire was arson, yet not one of those indications stood up to the fire science known at the time they did their investigation. The investigators were not scientists, but amateur sleuths who saw their work as more art than science. They reached conclusions based on hunches, guesswork, and speculation, which they characterized as faultless conclusions drawn from years of experience.

While the investigation of the Willingham fire was irredeemably flawed, Perry himself, as governor, is one of the greatest flaws in the Texas death penalty scheme. He exercises no independent thought about death penalty matters that come before him, nor does he seem to want to do so. In reviewing the extensive files of the Innocence Project about the Willingham case -- perhaps the most complete publicly accessible record of any capital murder case -- there is no evidence that either Perry or his staff even looked at the report of Hurst.

Perry referred to Willingham as a monster more than once -- a statement intended to close off rational consideration of the facts in the case. After Willingham’s execution, Perry continued to thwart attempts by the Texas Forensic Science Commission to determine the validity of the fire evidence. This is not a man that reasonable people would want to have caring for their dog while they are on vacation. He has not demonstrated the capacity to make rational, intelligent, and wise decisions about mundane matters, let alone matters of life and death.

Incendiary: The Willingham Case documents the deadly folly of the Texas death penalty scheme. It is a system in which no one likes to admit mistakes. This is especially true of politicians -- governors, district attorneys, judges, investigators. For those who accept science, the Willingham case is conclusive proof that Texas has executed a legally innocent man. But for Perry, for the district attorney, and even for Willingham’s defense attorney, the execution of Cameron Todd Willingham was the politically expedient thing to do

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Lamar W. Hankins : The Death Penalty and the Question of 'Actual Innocence'

Demonstrators carry pictures of Troy Davis, who was executed Sept. 21, 2011, in Jackson, GA. Image from Politics and Fashion.
When government decides to kill:
The death penalty and the
question of actual innocence

[The Supreme] Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent. -- Justices Antonin Scalia and Clarence Thomas

By Lamar W. Hankins / The Rag Blog / September 27, 2011

Almost every high school student and college graduate has thought about capital punishment. It is one of the most common topics to write about in political science, social science, English, and speech classes.

Everyone has an opinion and reasons to be for or against it. In this, I am not different from most other people. But my perspective about capital punishment has come to me over the 45-plus years I have been a participant in the functioning of the criminal justice system. I have learned that it does not function well at any level.

I have concluded that the criminal justice system is so imperfect and unreliable that it is irresponsible to assign it the authority to decide who should live and who should die. I didn’t always think this way. I used to respect the criminal justice system. When I was 20 years old, I spent the summer after my junior year in college working for the Texas prison system.

That summer, the Texas Department of Corrections (now the Texas Department of Criminal Justice) hired about 30 college students to introduce them to the prison system and to provide inexpensive employees to fill in while regular employees took vacations.

I learned that summer, from first-hand experiences, about wide-spread abuse of inmates. Four inmates that I was supervising were taken by prison officials -- my immediate supervisor and the head of the prison shops -- and beaten with ax handles for working too slowly. When I questioned the beatings, the assistant warden and then the warden told me that they had all fallen down the steps when they were taken away from their work area for about 30 minutes for a discussion about their slow work habits.

Even a naive 20-year old couldn’t accept that explanation after counting the dozens of individual knots that had suddenly appeared on their freshly shorn heads after that 30-minute discussion. The warden threatened me if I persisted in my complaint, and he moved me to other jobs that diminished my contact with inmates. But for the rest of the summer, after word of my complaint got around, I was told stories by inmates and guards about many abuses, including the drowning of inmates by prison officials.

That summer job was the beginning of the end for my unquestioning acceptance of official explanations for government misconduct. A few years later, when my younger brother was led into a marijuana buy by a snitch working off his own arrest for selling drugs by getting others to commit drug crimes so they could be arrested, I learned another lesson about how the criminal justice system functions. It was not enough to arrest people selling drugs; the government had to create the crimes so it could make more arrests.

When I became an attorney, I refused to represent defendants who had become snitches. Partly it was for self-preservation. How could I trust that a client setting up drug cases for law enforcement would not try to set me up? It would be a coup to get a criminal defense attorney arrested. It would not matter that I neither used nor sold illegal drugs. At the very least, I would be tainted for life just for having such an allegation made against me, and I could have lost my license to practice law.

Shortly before I became an attorney -- and just after the Supreme Court in 1976 allowed the resumption of capital murder cases after a four-year moratorium while it sorted out some death penalty issues -- I was a legal assistant for one of the premier criminal defense attorneys in Houston. He had been appointed to represent a notorious defendant accused of capital murder and other crimes.

The capital murder trial lasted two months. The jury could not reach a decision on punishment. At that time, the law in Texas required that if the jury could not reach a decision on punishment, the entire trial had to be done over. A few months later, we appeared back in the same courtroom for the re-trial. The prosecutor offered a deal on nine charges against the defendant. He received three life sentences and six 99-year sentences, thus avoiding a death sentence.

In 1979, while practicing in Bryan, I was appointed to represent a defendant in another capital murder case. While my client had not actually done the killing, he had participated in actions that led to the death of an innocent man whose truck my client and his cohorts wanted to steal. In Texas, a concept known as “the law of parties” made him equally culpable.

The trial lasted for three months. My client was convicted and sentenced to death, but the case was overturned on appeal because the judge had not allowed me to fully cross-examine a key witness against him. That decision came several years after the first trial. By then, I had moved to San Marcos and other attorneys were appointed to represent the defendant when his case was set for re-trial.

During the first trial, we were allowed to introduce what was termed “mitigating evidence” -- evidence that might show why the defendant should not receive the death penalty -- but the judge did not explain to the jurors how they should consider and apply that mitigating evidence. That evidence included information that the defendant had voluntarily surrendered to the sheriff by turning himself in at the jail, that he was borderline mentally retarded, that he had grown up in dismal poverty, that he had not before committed a violent crime, and that he was subjected to extreme brutality by his father during his formative years.

I had access to all of that mitigating evidence and was a witness to his surrender to the sheriff. I had located the defendant (I was previously appointed to represent him on a misdemeanor charge) and drove him to the jail the night he turned himself in. I contacted the new defense attorneys and offered to help in any way I could, including being available to testify about his voluntary surrender to the sheriff.

The new attorneys presented no evidence of these mitigating circumstances at the re-trial, even though a newer court opinion had given judges specific instructions about how to explain such mitigating evidence to jurors so that it could be applied fairly by them in their deliberations about whether the defendant should be given a death sentence or a life sentence.

He was again sentenced to death. That punishment was carried out 22 years after the crime had been committed. His death did yield one positive benefit -- he donated his body to the University of Texas Medical Branch in Galveston to further the education of those studying to become doctors.

After contacting some of the jurors from the original trial, I had learned that if they had been instructed how to consider and apply the mitigating evidence, they would have voted to give my client a life sentence. In the second trial, no mitigating evidence was presented, even though jurors would have been instructed how to consider and apply it.

As a result, the second set of jurors had no evidence to consider in deciding my former client’s fate. At the time of his death, a habeas corpus petition was pending before the court charging that the attorneys in his second trial had provided less than effective representation by failing to present the mitigating evidence that might have saved his life.

The recent execution of Troy Davis in Georgia after seven of nine witnesses recanted their testimony or admitted that they had lied at his trial brings up other issues of manifest unfairness in the criminal justice system. Troy Davis was convicted of murdering an off-duty police officer and sentenced to death.

In addition to the witness recantations, new evidence suggests that Davis had been inside a nearby pool hall and was part of a crowd that left the pool hall in response to a commotion in the adjacent parking lot where a homeless man was being beaten by a man named Coles, who is believed by many to be the killer of the off-duty officer who came to the homeless man’s aid.

The recanting of false testimony or mistaken eyewitness identification is not unusual, especially when the testimony is stimulated by over-zealous investigators intent on a conviction based largely on their gut instincts or dislike of a defendant. Psychologists have known for at least 50 years that eyewitness testimony is the most unreliable evidence presented in most criminal cases. But the courts in most jurisdictions have not allowed scientific evidence about the unreliability of eyewitness identification to be presented to jurors. That has begun to change.

A primary reason for the change has come from the work of the Innocence Project, which started in 1992 at the Benjamin Cardoza School of Law. When DNA testing became available to analyze blood from a crime scene, it became possible to determine whether a particular accused person could have been the culprit.

Before the early 1990s, many defendants were convicted on eyewitness identification and circumstantial evidence, such as a match between the blood type of an assailant and blood found on the victim, which did not rule out the possible guilt of millions of others with the same blood type as the defendant. The Innocence Project started looking back at some of these old cases where there was blood evidence that had never been subjected to DNA analysis.

Resulting from the use of DNA analysis, 70% of the cases that the Innocence Project has taken back to court have resulted in wrongful convictions because of faulty eyewitness identification of the assailant, usually in cases of murder or sexual assault.

In other cases, faulty scientific analysis of forensic evidence by government laboratories and investigators has resulted in wrongful convictions. The Willingham arson case is one example. The arson investigators misunderstood the forensic evidence and implicated Willingham in the deaths of his three children. He was executed in 2004.

In the early 1990s, a pathologist in west Texas, Ralph Erdmann, is believed to have faked about 100 autopsies and falsified an unknown number of toxicology reports, many of which resulted in wrongful convictions. Erdmann was convicted on several counts of evidence tampering and perjury after defense attorneys and others sparked an investigation into his forensic practices, but it took the appointment of a special prosecutor to uncover most of his misdeeds.

Prosecutors have enormous discretion about whether to charge a defendant with capital murder. The same year that my client in Bryan was charged with capital murder, at least five other cases in the same county could have been prosecuted as capital cases, but were not.

They were murders committed during the commission of kidnapping, burglary, robbery, aggravated sexual assault, or arson. The prosecutor decided, for his own reasons, that the capital murders committed by these defendants did not need to be prosecuted as capital cases. What made my client’s case special was that four black defendants killed a white man. In the other five cases that year, the victims were all black.

The race of the victim and the race of the defendant was the only salient difference in the six cases. (Occasionally, however, a white person does receive the death penalty for killing a black person, as in the horrendous dragging death and decapitation of James Byrd in East Texas a few years ago.)

For many defendants wrongfully convicted, there are no adequate remedies at law. Many federal judges and some Supreme Court Justices believe the Constitution does not require reconsideration of cases that have been fully litigated even when there is evidence that the defendant is actually innocent of the crime charged.

Justices Antonin Scalia and Clarence Thomas wrote in 2009:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

As journalist Ed Brayton explained this point further in 2010:

[T]he 9th Circuit Court of Appeals has decided that the fact that a convicted criminal can now be proven to be innocent does not matter if he filed an appeal in 16 months rather than the 12 months allowed by the statute of limitations. Actual innocence simply does not matter, only technicalities do.

Criminal and appellate procedures, such as deadlines for filing appeals and the rules for how and when to file writs of habeas corpus challenging wrongful incarcerations, are more important in our criminal justice system than proof of the actual innocence of people in our prisons and on our death rows.

These and many similar reasons, including my own experiences as an attorney with faulty eyewitness testimony, have led me to conclude that the criminal justice system is too riven with mistakes to be allowed to put anyone to death. At least a million Texas property owners each year don’t trust the government to decide accurately the value of their property. With so little confidence in government, why would we give that same government the power of life and death over a human being?

Law professor Paul Campos of the University of Colorado at Boulder summed up the Scalia and Thomas position, which is basically the position of the criminal justice system as a whole, in reference to the Troy Davis case:

The defense in this case is claiming that there’s something unusual about Troy Davis’ situation, requiring extraordinary action on the part of the Supreme Court. But there’s nothing unusual about his situation. The American legal system routinely sentences people to long prison terms and even to death on the basis of dubious evidence, in trials featuring overburdened, underfunded, and marginally competent defense lawyers. Obviously under such conditions mistakes are going to be made. If such mistakes make verdicts unconstitutional, then the whole system is unconstitutional.

And that’s a difficult proposition to accept for most people in the land of the free and the home of the brave. But it leads to an inevitable question of morality: “Is this justice?”

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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Playing with Fire : Perry Admits Medina Role in Winningham Execution

Fighting fire with fire:

David Medina played role in execution:
Perry's counsel was cleared of arson charges

By Glenn W. Smith / October 19, 2009

Dog Canyon’s Glenn W. Smith and Steve Hall of the StandDown Texas Project join Thorne Dreyer on Rag Radio, Tuesday, Oct. 20, from 2-3 p.m. on KOOP, 91.7 FM in Austin. They will discuss Rick Perry’s handling of the Willingham execution and other issues involving criminal justice and Texas politics. To stream Rag Radio, go here.

David Medina, Gov. Rick Perry’s general counsel when Perry denied a stay of execution to Cameron Todd Willingham, was later cleared of arson-related charges in the fire that destroyed his home. Medina is now on the Texas Supreme Court. His wife, Francisca, was cleared of arson charges based on an independent forensic and arson investigator’s report. The expert found the fire might have been accidental.

Willingham was convicted and sentenced to death for a fire that killed his three children. A report from an independent forensic and arson investigator sent to Perry and Medina 88 minutes before the execution said the fire was probably accidental. Perry and Medina ignored it as irrelevant. Perry has subsequently mocked independent scientists.

Now Perry has publicly admitted Medina’s role in the 2004 Willingham execution. There could be no greater or more tragic example of our unequal, two-tiered system of justice. I don’t know if the Medinas set the fire or not. I don’t know if Willingham was guilty, although all the independent experts say the fire wasn’t even arson, meaning no crime was committed.

What I do know is that a scientist’s report in the Medina case was given so much weight that the indictment was dismissed. In the Willingham case, such a report was not deemed important enough to delay an execution. Perry and Medina were not asked to pardon Willingham or find him not guilty. They were asked to wait a while before executing him. That’s all.

Steve Mills of the Chicago Tribune, has listed the deceptions in Perry’s recent responses to the Willingham case:

Charge: On Thursday, officials in Corsicana, Texas, released a sworn affidavit from the brother of Willingham’s wife that he signed shortly before the execution. In it, he claims that Stacy Willingham told her family that her husband confessed to her before the execution.

Fact: In 2004, Stacy Willingham told the Tribune that Willingham never confessed. Earlier this year she told David Grann, a reporter for The New Yorker magazine, that she stood by her statements. She came to believe that Willingham was guilty after she reviewed the case herself.

In addition, on the same day that Stacy Willingham’s brother claimed she told the family that Willingham had confessed, she spoke to the local newspaper, saying that during her last meeting with him, he maintained his innocence.

She did not mention a confession.

Charge: Perry has called the fire scientists and investigators who have reviewed the case “latter-day supposed experts.” He has suggested they were aligned with death penalty opponents. Both statements appear to be efforts to question their impartiality and their credentials.

Fact: The nine scientists and investigators involved, all of whom have found the original investigation flawed, have worked for both defense lawyers and prosecutors, as well as for attorneys in civil litigation. All are considered among the field’s leaders. Some are viewed as prosecution-oriented.

They have no vested interest in the outcome of the debate and are not active in the nation’s ongoing death penalty debate.

“My work was a scientific investigation,” said Craig Beyler, who investigated the case for the Texas Forensic Science Commission. “There’s no political agenda.”

Charge: Perry said recently that there was “clear and compelling, overwhelming evidence” of Willingham’s guilt. He has said more than a dozen courts rejected Willingham’s claims.

Fact: The heart of the case prosecutors brought against Willingham was that the fire was arson. Besides testimony from fire investigators, prosecutors offered a jail inmate who said Willingham told him he set the fire. The inmate, however, was a drug addict who was taking psychiatric medication at the time. Since the trial, he has hinted his testimony was false; even prosecutors have discounted his claims.

Willingham’s appeals did make their way through the state and federal courts, but his claim that the fire investigation was flawed was made just before his execution to a Texas court and a federal appeals court, as well as to the governor and the state’s parole board.

Charge: Perry has called Willingham a “monster.” The man who prosecuted him, John Jackson, suggested in a “Nightline” interview on ABC that Willingham was a devil-worshiper because he listened to heavy-metal music and had a band poster in the house.

Jackson also claimed fire patterns on the floor were in the shape of a pentagram to buttress his contention.

Fact: There is no evidence in court records to support claims that Willingham was involved in any such activities. Fire investigators made no references to the shape of burn patterns.

Source / Dog Canyon

Rick Perry admits David Medina role in execution



For previous Rag Blog posts about Rick Perry's handling of the Willingham case, go here.

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Death Penalty Probe : Perry Pressured Panel Chair

Fired commission chief Sam Bassett:
Pressure from Perry on Willingham probe

By Zachary Roth / October 13, 2009

It's starting to look more and more like Texas governor Rick Perry orchestrated an effort to thwart a state probe into an arson investigation that may have led to the execution of an innocent man.

Sam Bassett -- the former chair of the Texas Forensic Science Commission, who Perry declined to reappoint last month -- is now saying that Perry's aides tried to pressure him over the direction of the inquiry his panel was conducting into the steps that led to the 2004 execution of Cameron Todd Willingham for arson. Perry, as governor, signed off on the execution, despite clear evidence that the investigation was flawed.

Bassett told the Chicago Tribune over the weekend that he twice was summoned to meetings with Perry's top attorneys, who said explicitly that they were unhappy with the how the panel's probe was being conducted. At one meeting, Perry's lawyers questioned how much it was costing, and asked why the panel had hired a nationally known arson expert -- rather than a Texas fire scientist -- to look into the case. Bassett added that after that meeting, a staffer from the Texas general counsel's office started attending commission meetings.

Said Bassett to the Tribune:

I was surprised that they were involving themselves in the commission's decision-making. I did feel some pressure from them, yes. There's no question about that.

Nor is Perry's office being transparent about the issue. Over the weekend, it refused a request from The Houston Chronicle to release documents that would shed light on how -- or whether - it reviewed a report from Willigham's lawyer, sent hours before Willingham alerting the governor to serious flaws in the arson investigation. Perry's office argued to the paper that staff comments and analyses of the report aren't public records.

Since the controversy over Bassett's ouster erupted last month, Perry has pointed out that Bassett's tenure was expired, and that the governor merely declined to reappoint him. But an advisory lawyers group, as well as several members of the panel itself, had urged Perry to keep Bassett on. And the decision not to reappoint Bassett came just days before the panel was to hear testimony from Craig Beyler, a nationally known arson expert who argued in a report that methods used in the investigation could not support the finding of arson.

The new chair appointed by Perry to replace Bassett, conservative prosecutor John Bradley, called off Beyler's testimony, saying he and other new panel members needed more time to get up to speed on the case. Bradley has not said whether Beyler's appearance will be rescheduled.

Source / TPMMuckraker

Thanks to Harry Edwards / The Rag Blog

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Austin : 20 Men Exonerated by DNA call for Death Penalty Moratorium

Former Florida death row inmate Juan Melendez, left, greets former Texas death row inmate Clarence Brandley at a news conference Friday, Oct. 31, in Austin. Photo by Rudolfo gonzalez / Austin American-Statesman.
'The exonerated men, members of Witness to Innocence, want Texas to create a commission to search for wrongful convictions.'
By Grits for Breakfast / November 3, 2008

Twenty men exonerated by DNA evidence all gathered in Austin on Friday to call for a moratorium on Texas' death penalty in light of the state's recent slew of long-time inmates proven innocent by applying modern forensics to old evidence, including most recently the exoneration by DNA of Michael Blair who'd been sitting on Texas' death row. Reported the Austin American-Statesman:

The exonerated men, members of Witness to Innocence, a Philadelphia-based organization that is holding its annual meeting in Austin, want Texas to create a commission to search for wrongful convictions. And while the commission works, they want a moratorium on executions in the busiest death penalty state — with 419 executions since 1982 and six more scheduled this month. ...

Sam Millsap, former Bexar County district attorney, said he slowly came to believe that the death penalty must be abolished because of the growing number of exonerated death row inmates — 130 since 1973, including nine in Texas, according to the Death Penalty Information Center. "I am no longer convinced that our courts will in fact guarantee the protection of the innocent," Millsap said.

Millsap said he has taken responsibility for the 1993 execution of Ruben Cantu , a San Antonio man who Millsap said might have been innocent of a 1984 murder. The conviction was based on one eyewitness who later recanted, and no physical evidence tied Cantu to the crime, he said. "My decision to seek the death penalty was a mistake."

The most recent Texas exoneration was in September , when a Collin County court dismissed the capital murder case against Michael Blair , sentenced to die for the 1993 murder of 7-year-old Ashley Estell.

However, the reporter (perhaps rightly) warned the exonerees:

any bill to halt executions stands no chance of passing the Texas Legislature, [Austin state Representative Elliott] Naishtat said. Capital punishment has substantial support in Texas. The 2007 Texas Crime Poll by Sam Houston State University found 74 percent of Texans support the death penalty. And 66 percent said they were confident that innocent people are protected from execution.

Research underlying DNA forensics began in Houston

The Houston Chronicle published a story commemorating the 20th anniversary of a Harris County case that launched the international boom in the use of DNA in forensic science and interviewing Dr. Tom Caskey, whose patents on the early technology still fund research positions at the Baylor College of Medicine:

"Don't ever say crime doesn't pay. Crime does pay," quipped Caskey, who now directs the Brown Foundation Institute of Molecular Medicine for the Prevention of Human Diseases, a part of the University of Texas Health Science Center at Houston.

Caskey's early work on a Houston homicide case became the foundation for today's national network of criminal DNA sampling, reported the Chronicle's Eric Berger:

Caskey's primary scientific interest at the time involved the identification of genes linked to human disease. But, during the course of his research, he identified short segments of DNA — called short tandem repeats, or STRs — that vary widely from person to person.

His lab developed an STR identification technique that soon became the gold standard for criminal cases.

The method underlies the U.S. Combined DNA Index System, or CODIS, which contains DNA information on more than 6 million offenders. The system also forms the basis of Interpol's criminal database and that of most governments.

A constitutional right to DNA testing?

The US Supreme Court will soon decide whether a federal right exists to have DNA evidence tested that could prove a long-ago convicted defendant's innocence, even if he confessed to the crime:

William Osborne was accused of raping a prostitute at gunpoint, beating her with an ax handle and leaving her for dead in the snow. His lawyer declined a DNA test of the evidence, thinking that it would confirm his guilt.

Osborne was convicted, spent more than a decade in prison and gave a detailed confession to a parole board. But after recanting that confession, the Alaska man won a federal lawsuit seeking new DNA tests that he now says can clear him, a judgment that was affirmed by the U.S. Court of Appeals for the 9th Circuit. It is the first time an appellate court has ruled that an inmate has a federal constitutional right to such testing.

Now, the Supreme Court is being asked to evaluate that ruling in a case that pits the administration of Alaska Gov. Sarah Palin, the Republican vice presidential nominee, against a Republican-appointed judge who accuses her state attorney general of being "obstinate" in blocking Osborne from getting to test the evidence used to convict him. The high court debated Alaska's request to take the case in a private conference on Friday and could announce its decision as early as today.

Touch DNA evidence could overwhelm crime labs

Finally, if you're not yet familiar with the concept of "touch DNA," be sure to check out this piece from the back pages of Scientific American which answers the question:

So what’s touch DNA?

The touch DNA method—named for the fact that it analyzes skin cells left behind when assailants touch victims, weapons or something else at a crime scene—has been around for the last five years. In fact, the prosecutor in the Ramsey case, Boulder County District Attorney Mary Lacy, learned about touch DNA when she attended a course here at the West Virginia University Forensic Science Initiative in the summer of 2007.

The technique has dramatically increased the number of items of evidence that can be used for DNA detection. In the 1980s, in order to perform DNA analysis on a crime scene or victim, forensic investigators needed a blood or semen stain about the size of a quarter. The sample size fell in the 1990s to the size of a dime and then became: “If you can see it, you can analyze it.”

Touch DNA doesn’t require you to see anything, or any blood or semen at all. It only requires seven or eight cells from the outermost layer of our skin.

Here’s how it works: Investigators recover cells from the scene, then use a process called polymerase chain reaction (PCR) to make lots of copies of the genes. Next, scientists mix in fluorescent compounds that attach themselves to 13 specific locations on the DNA and give a highly specific genetic portrait of that person. The whole process takes a few days, and forensic labs are often backed up analyzing data from other cases.

These cautionary asides about touch DNA, backed up labs and evidence retention problems echo concerns voiced recently to the Court of Criminal Appeals "Criminal Justice Integrity Unit that:

The advent of "touch DNA" ... threatened to overwhelm agencies' storage capacity. Potentially lots of new items could be stored for touch-DNA testing, even though labs already have tremendous backlogs. That means long lag times during which the evidence must be securely stored despite limited space.

Texas' DNA labs right now are backed up and understaffed, but the trend will be for their caseloads to dramatically expand in the near term as these techniques become more widely used (especially considering the range of possible uses to which it could be subjected). For these reasons, ironically, demand for DNA lab services will inevitably increase regardless of whether crime rates go up or down.

Forensic science errors and the introduction of junk science as evidence are responsible for up to a quarter of false convictions among Texas DNA exonerees. The focus on DNA forensics in Texas has been to bring existing labs up to snuff quality-wise, but nobody's planning pro-actively, to my knowledge, how the state will make the labs independent, much less eliminate current backlogs, or meet the inevitable, expanded future demand for forensic capacity.

The advent of touch DNA is an amazing and wonderful thing evidence-wise, but it exacerbates an already problematic situation with regard to lab backlogs and DNA-related forensic errors.

Source / Grits for Breakfast

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Our Future: Way More Killing Than Is Necessary

"What Do You See in Your Future?"
The Unnecessary Execution of Jose Ernesto Medellin
By Greg Moses / August 6, 2008

If at 9:59 pm Central Time on Tuesday night you were refreshing your browser to "sort by date" the latest news on "Medellin" as part of your death-watch ritual. And if you clicked to read a somber AP report posted at the Oroville Mercury-Register, you may have seen what I saw: a blank page that only loaded a banner ad at the top, paid for by the United States Army: "What do you see in your future?"

It was some kind of e-haunting that hissed without noise and moved on.

But that lone banner, floating there on nothing but white noise, seemed to make more sense than anything else, because it placed the question of the future in a context of violence as foundation for the United States. If you joined the Army, they'd sock away $40,000 in your behalf to buy a home or start a small business. "After the Army" the American Dream called.

But for any of this to begin to make sense, first there must be some guarantee that the Army makes sense. And for that to make sense, there must be some reason to think that the killing the Army trains you to do will be necessary killing. Which means there has to be something like necessary killing in the first place. And in the second place you have to be quite sure that the killing the Army is put up to these days is of the absolutely necessary kind.

But remember, we got started on this singular meditation during a death watch, by attempting to click into a story to find out if Jose Ernesto Medellin had been killed. And in no way could you come to the conclusion that the killing of Medellin was necessary. He wasn't going anywhere, especially not on Tuesday night after the Supreme Court had once again split 5 to 4 in their last-minute deliberation. As the Army ad raised the spectre of necessary killing, the Medellin case redoubled the question as universal: "What do you see in your future?"

In the Medellin case, The World Court had twice ruled that the execution should wait for a review. The President of the United States had issued an order that the execution should wait. And the U.S. Supreme Court had twice split 5 to 4 over the question. The death warrant for Medellin would have run out by midnight. The government of Mexico was standing there like an insulted neighbor, having secured both World Court decisions that Mexican citizens in the USA deserve a right to consular assistance. All the Governor of Texas had to say was: "In consideration of our special relation to the people of Mexico, and out of respect for international law, let me take some time to read this evening's US Supreme Court decision, which was split 5 to 4, and take some time to think about this."

But Medellin had already been moved into position for the killing. Before it was possible to find out what the Supreme Court had said, the news was out. The Texas Court of Criminal Appeals, the Board of Pardons and Paroles, and the Governor, all invoking the Confederate Principle of State's Rights -- backed by a recent op-ed column at the Houston Chronicle -- had proclaimed death. And death was dealt.

Of course, we agree with all the authorities from the World Court on down that the killings for which Medellin was found guilty were altogether gratuitous, horrible, and shocking. Two teenaged girls raped and murdered while walking home through a park. It is difficult to talk about punishments being "cruel and unusual" when crimes like that get done. "Find your strength" says another Army ad. And what strength should we ask the people of the United States to find if not the strength to know, not when killing is strangely satisfying, but when and only when it is necessary.

What is necessary about killing killers? What was necessary about killing Medellin last night?

It's not at all likely that the killing of a Mexican-born killer in Texas, who had raped and killed teenaged girls, is going to help many people around here to "find their strength" to stop killing. Otherwise the Governor would have stepped in. But the late night killing of Medellin in Texas nevertheless proves that we have not yet learned that what we see in our future is way more killing than necessary.

Greg Moses is editor of the Texas Civil Rights Review and author of Revolution of Conscience: Martin Luther King, Jr. and the Philosophy of Nonviolence. He is a contributor to Red State Rebels: Tales of Grassroots Resistance in the Heartland, to be published by AK Press in June 2008. He can be reached at: gmosesx@gmail.com.

Source / CounterPunch

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Death Row and 'The Rat Trap'

Levon Jones was freed from North Carolina's death row in May after a paid informant recanted her testimony.
Death row exonerations expose failings of the ‘snitch system’
By Christopher Moraff

Since 1973, 129 innocent people were released from death row -- more than 50 of whom were sentenced to death based partly or wholly on false informant testimony.

Levon Jones is supposed to be dead.

If the state of North Carolina had its way, Jones, 49, would have been strapped to a gurney years ago, hooked to an IV and pumped full of a lethal, three-drug cocktail until he asphyxiated.

Instead, on May 2, he walked out of prison a free man after spending 13 years on death row, and another 24 months locked up awaiting retrial — all for a murder he almost certainly did not commit.

Jones — known to friends and family as “Bo” — was released with the help of the American Civil Liberties Union’s (ACLU) Capital Punishment Project after the prosecution’s star witness recanted her testimony against him. (Lovely Lorden, a former girlfriend, admitted she’d collected $4,000 in reward money in exchange for testifying against Jones.)

He was an easy target: an African-American ex-con with a history of mental illness and violent behavior. When Lorden came forward with her story — a full three years after the 1987 shooting of a local bootlegger named Leamon Grady — Jones was doing time on an unrelated assault charge.

The prosecution felt little obligation to question the veracity of Lorden’s claim. And if the witness is to be believed today, investigators actually helped her keep her story straight.

As a result of Lorden’s testimony — and despite the lack of physical evidence tying him to the crime — a jury convicted Jones in 1993 and he was sentenced to die for Grady’s killing.

What Jones’ attorneys didn’t know at the time — and, as it turns out, didn’t really bother trying to uncover — is that Lovely Lorden had made something of a career out of testifying against people close to her. By her own admission, she has aided law enforcement in dozens of investigations and says she helped police make cases against several other boyfriends, as well as her own brother and sons.

What’s more, her work as a confidential informant didn’t stop after Jones was sent to death row. Jones’ attorneys sent In These Times copies of receipts that show Lorden was paid money at least seven times for her work as a confidential informant from December 2003 to April 2004, while Jones sat in jail.

Today, Lorden contends she testified against Jones under pressure from the police, in particular Dalton Jones (no relation), the lead officer in the case.

That doesn’t surprise Jones’ ACLU attorney, Brian Stull, who says it’s not uncommon for police to find a suspect first and worry about making a case later.

“I think often times they look at the usual suspects,” Stull says. “I think Dalton Jones was thinking, ‘This is a dangerous person, and whether he did it or whether he didn’t, I’m going to get him off the street.’ “

Jones owes his freedom in part to an astute federal judge who sensed something amiss with Lorden’s testimony during a 2006 penalty appeal.

In granting Jones a new trial, U.S. District Judge Terrence Boyle, of the Eastern District of North Carolina, noted Lorden’s statements to police were “riddled with inconsistencies” and “reflect that Lorden is unable to fairly and reliably describe the circumstances of the offense.”

Unfortunately, the case of Levon Jones is not an anomaly. He is the fifth death row prisoner to be exonerated in the past year. Since December, North Carolina alone has released three inmates from death row after it was determined that they did not commit the crimes for which they were convicted. Of these three men, two, including Jones, were convicted on the false testimony of snitches.

The other, Jonathon Hoffman, was released in December 2007 after spending seven years on death row. His freedom came when the prosecution’s key witness — Hoffman’s cousin — admitted that he had lied to get back at Hoffman for stealing money and had been both paid for his testimony and given a reduced sentence for bank robbery. At the time of Hoffman’s trial, prosecutors withheld the deal from defense attorneys, the jury and even the judge.

A recipe for disaster

In a country where more than one out of every 100 citizens is now incarcerated, criminal justice advocates are scrutinizing the way in which police and prosecutors go about getting the information to pursue and prosecute suspects. This inquiry has increasingly focused on the extent to which incentivized informants and jailhouse snitches are contributing to the convictions of innocent people.

A cursory review of the Jones case would be enough to suggest something is wrong. But a thousand Levon Jones stories don’t elicit the same amount of outcry as one Kathryn Johnston case does.

In November 2006, Atlanta police gunned down Johnston — an elderly Atlanta grandmother — inside her home. The officers, who were from the city’s narcotics task force, claimed to be acting on information they received from a confidential informant that drugs were being sold from the house. That allegation turned out to be false.

The Johnston tragedy shined a spotlight on the cavalier use of informant information to obtain arrest and search warrants. The Justice Department launched a federal probe and, nine months after the shooting, in July 2007, the House Committee on the Judiciary held a hearing on law enforcement’s use of confidential informants.

“We’ve got a serious problem here that goes beyond coughing up cases where snitches were helpful,” said committee chair Rep. John Conyers (D-Mich.) at the hearing. “The whole criminal justice system is being intimidated by the way this thing is being run, and, in many cases, especially at the local level, mishandled. … A lot of people have died because of misinformation.”

It isn’t known if any of those people have died at the hands of the state; but judging by some of the relevant corollary statistics, it’s plausible that some have.

Falsified informant testimony accounts for nearly half of all wrongful convictions in capital cases nationwide, according to data from Northwestern University Law School’s Center on Wrongful Convictions. Since 1973, 129 innocent people were released from death row — more than 50 of whom were sentenced to death based partly or wholly on false informant testimony, according to the Center.

Alexandra Natapoff, an associate professor of law at Loyola University and one of the country’s foremost authorities on the problems with paid informants, thinks that’s just the tip of the iceberg.

“We have the most data on capital and homicide convictions because they are the most high profile,” she says, “so we have no idea how many wrongful convictions there are in larceny cases or assault cases or any other because nobody is paying any attention to those.”

Natapoff has written extensively on the role of snitch testimony in wrongful convictions and says that informants have become law enforcement’s investigative tool of choice.

“The government’s use of criminal informants is largely secretive, unregulated and unaccountable,” she says. “This lack of oversight and quality control leads to wrongful convictions, more crime, disrespect for the law and sometimes even official corruption.”

She continues: “If the criminal system can’t get homicide cases right, then it’s very unlikely that we’re getting other things right.”

A broken system

With the expansion of the “war on drugs” during the crack epidemic of the late 1980s, police began to abandon traditional investigative work in favor of insider cooperation. Cops say it’s almost impossible to make a drug case any other way. But critics say the practice has led to a “dumbing down” of police work across the board.

“The drug war has eroded law enforcement practices,” says investigative reporter Ethan Brown, whose recently published book, Snitch: Informants, Cooperators and the Corruption of Justice, traces the genesis of the informant culture and its effect on communities.

Those who study the snitch culture trace the problem to a criminal justice policy that has created the perfect atmosphere for what Brown calls the “cooperator institution” to thrive.

Most notably, Brown says, federal sentencing guidelines, adopted in 1987, have exacerbated the growth of the cooperator institution over the past two decades. Until a 2005 Supreme Court ruling gave judges more flexibility in sentencing, the guidelines made cooperating with authorities the only real option for defendants seeking leniency.

“Those guidelines really forced drug defendants into cooperating,” says Brown. “Very few people will look at that kind of prison time and not cooperate.”

But over the years, a practice once confined mainly to drug investigations has become standard operating procedure for the prosecution of all kinds of crime.

The reasons are myriad, but the simple matter of resources looms large. In a system severely taxed by an unwinnable drug war, relying on informants is a cheap and easy investigative option. It can cost thousands of dollars to house, feed and protect an actual witness until trial, and, depending upon the offense and the defendant, such protection can carry on for years after conviction. By contrast, criminal informants are often compensated with leniency or are paid small sums, and often simply released into the same streets from which they came.

“It’s all about this staggering misallocation of resources,” says Brown. “We have this incredible institution for cooperators and informants, yet, for the kind of cooperating we need the most, there are really no resources.”

This mutually beneficial relationship between police officers and their informants is what Natapoff calls “a disturbing marriage of convenience.”

Prosecutors and police know the pitfalls, but in many cases write them off as the cost of doing business and making cases.

In a 1999 study published in the Fordham Law Review, Ellen Yaroshefsky, a law professor from the Benjamin N. Cardozo School of Law, interviewed a number of assistant U.S. attorneys from the Southern District of New York and found that while most said they made every effort to be diligent in assessing the veracity of informants, they admitted it’s easy to get in too deep and lose objectivity.

In her study, Yaroshefsky described this as “fall[ing] in love with their rat.”

“You’re not supposed to, of course. You are trained to maintain your objectivity,” an anonymous participant in Yaroshefsky’s study said. “But you spend time with this guy, you get to know him and his family, you like him. You believe that he has come clean. Hopefully the assistant has a skeptical mindset, but the reality is that the cooperator’s information often becomes your mindset.”

Still, other times investigators are already working under an assumption of guilt and are simply seeking confirmation.

“[Sometimes] prosecutors are convinced they have the guilty guy, then they go about seeking to convict and do not carefully look at things that are funny about their case,” one of Yaroshefsky’s sources said.

Former prosecutor and now Howard University law professor Andrew Taslitz says that when he started out in the Philadelphia district attorney’s office, his youth and ambition often clouded his judgment when it came to reliance on informants who had received incentives. He says he thinks his experience is the norm.

“Most prosecutors are very, very young, especially at the state level,” Taslitz says. “They’re new graduates of law school or they’ve done some other job for a few years but they’re mostly in their late 20s, early 30s tops, with very little experience. It’s one of the reasons that office policies that just tell them what to do are so important.”

Another problem is that many of the assumptions that courts make about how witness testimony is received simply don’t pan out.

The Supreme Court established the constitutional basis for using paid informants in 1966 with U.S. v. Hoffa, which decided that rewarding a witness for testimony does not violate due process. In its opinion, the court wrote: “The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross examination, and the credibility of his testimony to be determined by a properly instructed jury.”

But Natapoff says, in practice, those mechanisms are deeply ineffective at protecting defendants from lying informants.

“Let’s say the government does disclose [compensation] and the jury knows about it,” she says. “You would think, and the Supreme Court certainly thinks, that that will make a difference. Well, psychological research has found that it makes almost no difference, that jurors ignore the fact that the witness is compensated.”

And that’s only for the cases that go to trial. Because 95 percent of criminal cases are resolved through plea agreements, defendants rarely get the chance to challenge an informant’s story or credibility.

“The Supreme Court has held that while defendants who go to trial are entitled to impeachment material about their informants, defendants who plead guilty are not,” Natapoff says. “So that means that most defendants will never see the deal that the informant got.”

In spite of all the potential pitfalls, police and prosecutors say the benefits of informants outweigh the potential for abuse.

Ronald E. Brooks, president of the National Narcotic Officers’ Associations’ Coalition, calls informants “indispensable investigative assets” and cautions against issuing a blanket judgment on the use of confidential informants by police officers for “a few instances of mismanagement or wrongdoing.”

“When we appropriately manage informants, great cases, ones that make our community safe are the result,” he says. “When informants are improperly used, the results can be devastating. But without the ability to freely use informants, law enforcement would have very few significant investigative successes.”

A call for reform

Since the 2007 House Judiciary Committee hearing in the wake of the death of Kathryn Johnston, little headway has been made in reforming the practice of using incentivized informants to send people to jail — and, possibly, execution.

According to the American Bar Association (ABA), 18 states now require corroboration of an accomplice’s statements. Those that require corroboration for other forms of incentivized witnesses, however, are few and far between.

Illinois currently mandates corroboration in capital cases, and courts in Nebraska and Oklahoma have required corroboration for jailhouse snitches. Texas, meanwhile, has a different requirement, not for jailhouse snitches, but for undercover drug operatives working for the police.

Criminal justice reformers say they want to make sure police and prosecutors are following protocol in how and when they use paid or incentivized informants.

Taslitz, who serves in the ABA’s Criminal Justice Section, says more transparency is needed during the discovery phase. For example, he’d like to see defendants who are negotiating a plea agreement have access to the information and witnesses being used against them.

In a 2005 ABA resolution that Taslitz helped write, the association urged federal, state and local authorities to require that informants meet certain standards of credibility and that courts mandate corroboration in all cases that involve jailhouse snitches.

But so far there has been little in the way of reform.

“It’s a slow process,” Taslitz says, “and it doesn’t have to necessarily be a matter of legislation, but it could be a matter of individual prosecutors’ offices adopting specific policies; it can be a matter of local ordinances; it can be case law where judges start to intervene. It’s a slow process and, as of yet, there is no uniform informants act.”

For cases that do go to trial, Natapoff has been pushing for “pre-trial reliability hearings” as a potential remedy. Under such a system, the burden would be on the government to prove witness reliability by a preponderance of evidence. Courts would be required to consider such factors as the criminal history of the informant, any compensation for their testimony, and other cases in which the informant has testified, among other things.

“Given the prevalence of informant falsehoods in wrongful capital convictions, such hearings should be mandatory in capital cases, even where the defense intends to concede guilt and move directly to the sentencing phase,” Natapoff says.

Considering that for every innocent person convicted of murder, a real murderer escapes justice, requiring such checks and balances is as much a victim’s rights issue as a matter of criminal justice.

For his part, in spite of losing a decade and a half of his life, Levon Jones says he holds no grudge against the snitch that put him on death row.

Rather, he attributes his ordeal to a miscarriage of justice.

Says Jones: “It was the system itself.” 

Source / In These Times / Posted July 30, 2008

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