Wednesday, November 30, 2005

(TV: Commander In Chief) Name the Dead

Okay, I shouldn’t watch television whenever a show tries to talk about a subject I actually know something about.

But I recorded Geena Davis’ new show, Commander in Chief, about the first woman President and what are they discussing but…..the death penalty. In the back story we have learned that Davis’ character was an Independent who was a University President following a career as a homicide prosecutor (??).

The main storyline for this week’s episode was about a woman on death row -- in Texas of course, with a “room temperature IQ,” of course – never mind that under the Atkins case a retarded person can’t be executed. But why should reality intrude.

We get a clue where new showrunner Steven Bochco, who wrote this episode, falls on this subject when the President explains the case as a “dim-witted girl who fell in with a bad guy who robbed cab drivers and one of them died.” Gee, sounds like the victim might as well have gotten hit by a bus.

Then the President’s old law school pal brings a handmade card written by the condemned killer that reads like a third grader. We also find out that the condemned may or may not have been the actual shooter. Certainly doesn’t sound like Tookie Williams or Karla Faye Tucker.

But: “I can save her life,” Davis’ character declares. Hmmm, really? The pardon power of the President extends only to offenses cognizable under Federal law. Must've been something more to this "falling in" story.

The back story is about Davis's first Thanksgiving as president. Instead of pardoning the turkey, what a surprise: she pardons the dim-witted Texas murderess.

(I wrote that last paragraph, about the turkey, halfway through the show, before knowing the ending. Am I psychic?)

Everyone has a lovely Thanksgiving dinner -- except the dead nameless cab driver and his grieving nameless family who may or may not have been able to afford a big fat turkey this year, what with dad's income gone and all.

Many ancient advanced cultures believed that it was important to name the dead. If the dead were named their souls would live on.

How many of the dead by the 3000+ condemned murderers in America today can you name?

The 1000th Execution?

I wish I'd thought of this but a website called got there first:

1,000th Execution Delayed, Murder on Schedule

by Scott Ott

(2005-11-30) — Virginia Gov. Mark Warner yesterday granted clemency to convicted murderer Robin Lovitt, commuting his death sentence to life in prison and so delaying the 1,000th execution since the U.S. Supreme Court restored the death penalty in 1976.

However, a spokesman for the American Civil Liberties Union (ACLU) said America’s landmark 461,500th murder since 1976 should proceed on schedule.

“Our clients and future clients tell us that the domestic murder industry continues to be robust despite a decline in production in recent years,” said the unnamed ACLU source. “Americans should not worry that the stalled death penalty rate will hinder these persistent, hard-working citizens from carrying out their work with dispatch.”

Indeed, recent polls show public confidence in the efficiency of America’s killers has been bolstered by softness in the justice market.

Wednesday, November 23, 2005

Child Abuse is Real

Have you seen the Oscar-nominated "documentary" called Capturing the Friedmans? It's a remarkable piece of revisionist history about a once well-known child molestation case on Long Island, New York, in the late 1980s. Arnold Friedman, a school teacher, and his son Jesse were arrested and pled guilty to multiple counts of child molestation. Arnold died in prison and Jesse served his entire sentence.

Andrew Jarecki, who originally planned on doing a picture on the most popular birthday clown in NYC (who turned out to be the eldest son of Arnold Friedman), has produced and directed a film that seeks to cast shadows on places where none exists.

About 14 years ago the American Journalism Review published a remarkable article by Lisa Manshel called "Reporters for the Defense." (The article isn't available online but a there is a letter from Manshel about her article. Hit the link and scroll down about four letters.) Mahsel profiles three writers who consistently championed the cause of accused child molesters: Dorothy Rabbinowitz of the Wall Street Journal (since lionized for her work by the National Criminal Defense Lawyers Association); Mike Tiabbi (now of NBC news, who did his bit most recently by claiming that Michael Jackson's accuser's family were liars); and Debbie Nathan, who served as the "expert" for Jarecki's film.

As far as I can tell, Nathan has never seen a child molestation case in the news she thought was true. She's the author of books and articles calling attention brought to the subject as hysteria akin to the Salem witch trials or '50s-era McCarthyism.

The never-boring Mike Miner has detailed the latest dust-up in his Nov. 25 column in the Chicago Reader, quoting me:

Whenever prosecutors take a beating in America, the person to go to for the other side of the story is Joshua Marquis, an Oregon district attorney who's his profession's most visible champion. I asked if he'd seen Nathan's story and wasn't surprised to hear he'd already e-mailed a friend at the Times to challenge it.

Marquis wrote, "Most child abuse is not ritual or as notorious as the Friedmans' but otherwise is very similar, i.e. the victims often DON'T tell even when they have an opportunity -- particularly teenage boys for whom the stigma of being involved in homosexual sex is a big deal. . . . The victimizers are often trusted members of the family or community who have no criminal record."

He went on, "I'm not claiming that people like Nathan are insensitive. I'm claiming they want so hard to believe that such things just don't happen that it's preferable to believe in the caricature of the overzealous prosecutor bundling the innocent schoolteacher (Arnold Friedman) off to prison, largely because the scenario of wrongful convictions is easier to deal with than widespread sexual exploitation of children."

Marquis distinguishes genuine abuse "from the right-wing nut case 'satanic ritual abuse' that was popular in the mid-80s." But it was the tragic absurdity of those cases that finally made America think twice. "In my county and many others," Marquis wrote, "we have medically based child abuse assessment centers -- autonomous non-profits staffed by trained interviewers and volunteer physicians. The idea is there is exactly ONE interview with the child and it's done on videotape so there is no question about suggestibility, etc. The medical exam (as Nathan points out) rarely finds physical evidence of abuse but is important also because the child often makes disclosures to the doctor. In my experience our success rate has skyrocketed from about 60% to 95% when these cases go to trial, which they often don't because the evidence is so damning."

Read the full article ....

Tuesday, November 22, 2005

The Latest Exoneree

Another exoneree turns out to be a criminal after all. Even the Chicago Tribune admits it! -- painfully . . .

Wednesday, November 16, 2005

Why Criminal Defense Attorneys Hate Josh, Part II

Bad Blood: How a laywer once suspected of sexual abuse gets taxpayer money.
by Nick Budnick
Willamette Week [click on link for printer-friendly page]

Two years ago, when one of the state's top death-penalty lawyers left Oregon for Las Vegas, people thought he'd never come back. Criminal-defense lawyer Griff Healy was under investigation by the Oregon State Bar after being publicly accused of repeatedly raping a former law clerk.
But in April, Healy returned to Newberg, 20 miles southwest of Portland. He's getting paid by the public to represent defendants who can't afford their own attorney, and has billed $11,629 since August.
Moreover, Healy seems about to get the last laugh—both on the lead detective who pursued him for years, and on the man who last prosecuted him, Clatsop County District Attorney Josh Marquis.
In part, this is a story of a feud between a lawyer and a prosecutor. But it's also the story of how a lawyer can practice in Oregon despite a long history of alleged sexual misconduct, including rape and assault.
Standing 5-foot-9 with red hair and glasses, Griffith Steinke Healy was once considered one of the top death-penalty defense lawyers in the state, so it's unsurprising he doesn't see eye to eye with Marquis, one of the country's most prominent death-penalty advocates and a frequent guest on shows such as Nightline and Dateline.
Their animosity dates back to August 2000, when they went up against each other in two different murder cases in Astoria, and Healy was quoted in The Oregonian blasting Marquis about seeking the death penalty for one of Healy's clients.
Two months later, an ex-stripper hired as a law clerk by Healy went to police, claiming that Healy had coerced her into becoming his sex slave in Clatsop County, where Healy also tried cases. She said he used a combination of fear and an offer to give her a higher-paying job. She also said Healy, a former chairman of the national Alzheimer's Association, promised her he would lead a fundraising drive for research into a rare terminal illness suffered by her son.
Over the course of eight months, she says he forced her to have sex with strangers and repeatedly violated her with a pool cue, a Budweiser bottle and his fist.
Police from three jurisdictions and the Oregon Department of Justice began investigating the sordid tale. Witnesses who'd participated in her activities with Healy, however, said the sex seemed consensual; and Healy provided police with documents from his accuser's past that portrayed her as a liar with, as he put it, "emotional and psychological problems."
The clerk "has made allegations against numerous men in the past," Healy wrote to his attorney. "None of these allegations has ever been substantiated in a court of law."
Though the woman had credibility problems, the lead Newberg police detective, Ken Summers, suspected she was telling the truth. That's because in September 1999, another of Healy's former law clerks in his Newberg office had gone to Summers with a similar tale, also accusing Healy of sexual assault, this time in Yamhill County.
The 23-year-old clerk, who was married and a graduate of George Fox University, said Healy, then 50, had groomed her by befriending her, flirting and telling her she would be his partner when she graduated from law school.
Healy's two accusers did not know each other. But their stories were strikingly similar: Each alleged Healy took her to a park alongside the Willamette River and, over her objections, disrobed her and sexually assaulted her with his fingers, making her bleed.
When the 23-year-old clerk confronted Healy in a tape-recorded phone call heard by police, the lawyer admitted touching her after she told him to stop.
Contacted by WW, Healy noted that the law student's case was fully investigated, and it didn't go anywhere. Was that a denial? "Yes," he says. He did not respond to further requests for comment.
In April 2000, a grand jury declined to indict Healy on the law-school student's charges. Yamhill County District Attorney Brad Berry wrote, the "conduct here, although reprehensible as presented by [the clerk], would be insufficient for successful prosecution." Summers, who was not allowed by Berry to testify, told WW the fact that Healy wasn't indicted was "a serious miscarriage of justice."
As part of his probe into the Clatsop County case, Summers also contacted Healy's ex-wife in Michigan. She told the cop that in the mid-80s, Healy was shown the door from his old law firm in Salem for drilling a peep-hole from his office into the women's shower room of an exercise facility next door. The story was confirmed to WW by another source.
But in the end, just as Berry had done, Clatsop County's Marquis concluded that Healy's provable conduct with Healy's other accuser fell into a gray area between sexual abuse and workplace sexual exploitation.
Citing a lack of eyewitnesses confirming the alleged abuse in the Clatsop County case, Marquis declined to prosecute for rape or sodomy. Instead, Healy pleaded guilty in a negotiated pre-indictment deal to two misdemeanors: public indecency and private indecency. In June 2002 he was sentenced to 80 hours of community service. He performed the commmunity service in Las Vegas, where he'd moved.
Marquis forwarded the investigation to the Oregon State Bar, which issued Healy a 60-day suspension in 2003 as its discipline. Should he have been disbarred? "I don't think it would have been inappropriate," says Marquis.
A misdemeanor does not lead to automatic disbarment, which allowed Healy to resume practicing law in Oregon. But because the bar does not need a conviction to discipline a lawyer, and uses a far lower burden of proof than in a criminal case, it could have investigated further, potentially leading to a stiffer penalty.
The bar report on the case shows the bar did not do its own investigation. Its discipline considered only his misdemeanor conviction—not the other allegations.
There's also nothing to prevent him from being a public defender. Anyone who is a member of the bar in good standing and meets other qualifications can get state money to be a court-appointed defense lawyer, according to the state Office of Public Defense Services. But the state does not pay Healy directly—it contracts with a consortium of Yamhill County defense lawyers who have included Healy. Bob Suchy, who heads the consortium, did not return calls.
Marquis thought the move to Vegas meant that Healy was gone for good—until three months ago. That's when he read an article in the McMinnville News-Register in which Healy, back in Newberg and representing a drug defendant, was quoted accusing a drug informant of entrapment. So Marquis sent the bar a complaint accusing Healy of violating the bar rule on making pretrial comments that might prejudice a jury. Healy denied it, and accused Marquis of using the bar to "advance a personal agenda against another attorney."
Says Marquis, "I'm no more biased against him than I am the thousands of other people I've convicted over the years."
Meanwhile, in a final twist of fate, Marquis may wind up back in court with Healy—only on the same side. That's because Healy's former client Patrick Lee Harned, who was convicted of murder by Marquis in 2000, could appeal his conviction, claiming Healy's caliber of lawyering was hurt by sex addiction.
If that happens, Marquis, by virtue of having been the prosecutor in some of those cases, could be asked to attest to Healy's competency in court. Says Marquis, "I could wind up defending him."

further reading:
Why Criminal Defense Attorneys Hate Josh
Part I
Part III
Part IV

Tuesday, November 15, 2005

The Truth about DNA

There is a lot of talk about how DNA testing has exonerated "hundreds" of convicts. What is less often discussed is the fact that it was America's prosecutors who pioneered the use of DNA in the courtroom over the fevered objection of criminal defense lawyers who claimed it was "junk science." Now DNA is accepted as gospel.

The St. Louis prosecutors (city and county) went back and ran DNA checks on hundreds of criminal cases to see if the tests would change the ultimate conclusion.

The report which follows, from the November 14 edition of the St. Louis Post Dispatch, tells a very different story, and is representative of what has happened across America, from San Diego to Minnesota and other jurisdictions where prosecutors reopened cases because they wanted to make sure they had the RIGHT people in prison.

Review of DNA sets very few free

Monday, Nov. 14 2005   After nine hours of deliberations at the end of George Allen Jr.'s first trial in the 1982 rape and murder of Mary Bell, jurors voted 10-2 to acquit. Three months later, a different jury took five hours to reach the opposite, unanimous conclusion - Allen was guilty.

Since that first trial in April of 1983, Allen's supporters have loudly professed his innocence, saying his confession was coached and that no physical evidence linked him to the crime. Prompted by those concerns, and concerns about other cases in the pre-DNA era, St. Louis prosecutors began a review in 2003 of Allen's case and about 1,400 others to determine if DNA testing could confirm or deny guilt.

In Allen's case, it couldn't. "There is no evidence that we have found that exonerates him. Every path has been followed to its fullest extent," said St. Louis Circuit Attorney Jennifer Joyce.

Allen's case ended like most of the more than 2,100 cases reviewed by prosecutors in St. Louis and St. Louis County: Either there was nothing to test or the evidence would not confirm or deny guilt. Allen joins a legion of incarcerated men and women who have been disappointed by the DNA revolution.

Of 1,400 cases reviewed by the St. Louis Circuit Attorney's Office, only three people, all men, have been freed based on DNA testing. All of those were brought forward by lawyers, not uncovered in the review.

In five or six cases, DNA results neither confirmed nor ruled out guilt, said Assistant Circuit Attorney Ed Postawko. Results in about 12 cases are pending.

About seven people who claimed innocence were proven guilty, said Postawko, who heads the review.Only one person has been exonerated by DNA evidence in St. Louis County, also from outside the formal review. Prosecutor Robert McCulloch's office examined 700 to 900 cases from before 1991-1992, when DNA evidence became widely used.

Joyce said the numbers are not surprising. "I think people have the wrong idea that every time we look at a case and do DNA testing, it exonerates somebody," she said.

St. Charles County Prosecutor Jack Banas, Jefferson County Prosecutor Robert Wilkins, St. Clair County State's Attorney Robert Haida and a spokesman for Madison County State's Attorney Bill Mudge all said they had not done wholesale reviews but had looked at some old cases and were open to looking at others.

Wilkins said crime is different in less densely populated areas such as his, with fewer cases involving strangers. He said most of his convictions are won on eyewitness testimony or other physical evidence, with DNA sometimes as "icing on the cake."

"The worst answer ... is no answer."

The Allen case illustrates "probably the least satisfying result," Joyce said. "The worst answer ... is no answer." She is frustrated that many people don't understand the limits of the DNA review. "Our job is not to basically re-try a case that has been presented to a jury," she said.

City prosecutors and law school interns reviewed evidence and trial transcripts to whittle about 1,400 cases to around 210 with potential DNA relevance, plus 35 or 40 cases brought to the staff's attention by lawyers, Postawko said.

After "very extensive evaluations," he said, many cases were eliminated because DNA evidence had been discarded or never existed.

Barry Scheck, co-founder of The Innocence Project, which represents Allen, said there is useful biological evidence in only about 15 percent of cases.

Ted Hunt, chief trial assistant for the prosecutor in Kansas City, noted that rapists often don't leave DNA behind. And a hair or DNA material that cannot be connected with the crime will prove nothing. Hunt said the five DNA tests done in old cases in Jackson County all confirmed the defendant's guilt.

In Allen's case, seminal fluid was found at the scene that DNA testing showed was not his. But it did match Bell's live-in boyfriend. Postawko said it only proves "boyfriends and girlfriends who live together and sleep in the same bed have sex from time to time."

Convicts not excluded by DNA testing are unlikely to have their cases reversed any other way.

"There's really no relief for those people," said Susan McGraugh, an assistant clinical professor at St. Louis University's Law School and supervisor of the school's criminal defense clinic. "That's what concerns me. Because I'm certain there are people incarcerated right now on the basis of well-meaning but incorrect testimony."

As the era of testing old DNA comes to a close, McGraugh said, it is time to examine the unreliability of eyewitness testimony. "It's a lot easier to make a mistake about an identification than you would think," she said, noting that the stress of being confronted, perhaps with a gun, can warp a memory.

Of the four St. Louis area men exonerated by DNA, all had been identified by the crimes' victims.

McGraugh said she's unaware of any Missouri court that has allowed experts to challenge the reliability of witness identifications.

Just a confession

In Allen's case, there was neither physical evidence nor eyewitness testimony linking him to the rape and stabbing of Bell in her apartment in the 1000 block of Marion Street on Feb. 4, 1982.

Police picked up Allen, then 26, more than a month later because he resembled a suspect in another case. He confessed to attacking Bell, although he later claimed the admission was coached. Police denied that.

Allen could have faced a death sentence, but a juror left the panel because of his mother's death and prosecutors agreed to waive the death penalty to avoid holding a new trial.

Allen declined to be interviewed for this story.

Scheck said Allen's case merits additional investigation, but he acknowledged, "I would agree, at this point, that we've done all the DNA testing that we can do."

McGraugh, who reviewed the file for the Innocence Project, said the conviction was one of the weakest murder cases she has examined.

Believing it, she said, means believing police "just got lucky and picked the right guy off the street at the right time." She noted that Allen "kept confessing to the wrong thing, and they had to keep correcting him," she said.

Joyce said there is nothing left to do for now in the Allen case. "It's time to get this some closure."

She said there is strong evidence of Allen's guilt. "I mean, he confessed," she said. Joyce also said that prosecutor Dean Hoag, who won the conviction, said that it was impossible to coerce the details that Allen knew about Bell's death.

Joyce said that DNA exonerations are not an indictment of the justice system but a signal that it is committed to fixing mistakes. Cases like Allen's are always subject to further review.

"There's no such thing as irreparably closed," Joyce explained. "If they think of something else ... we'll re-open it."

Tuesday, November 8, 2005

Alito Is Right For the Court, Even If Bush Is Wrong

A couple months ago I spent three days in Chicago, at the fall Board of Directors meeting of the National District Attorneys Association.

Our group, which has about 7000 members who are prosecutors across America, is a highly diverse group. When I joined the board in 1997, I assumed it would be a middle-aged white guys' drinking club -- and while it's true there are a lot of middle-aged white guys, a lot of women are elected DA's and among all of us there is a remarkably broad range of political philosophies. We are a far less monolithic group than many would guess.

The current president is Paul Logli, of Rockford, Illinois. Paul is a devout Catholic and a committed Republican. I'm a Democrat and pro-choice. Yet we are good friends and share a common vision of what justice should be. We both think that we have the most morally luxurious job in the world: Our only obligation is to the truth.

So, how do we disagree strongly on subjects like abortion but fine common ground in our work?

When Harriet Miers was President Bush's candidate for Sandra O'Connor's seat on the SCOTUS, it was a pretty easy call for people of both parties. For Democrats like me she was a mediocre choice, someone with no track record of real legal accomplishment. To many of us, her only real qualification for the job was a creepy infatuation with her boss, President Bush. With a 39 percent approval rating, Bush was employing what Mike Royko called the unofficial motto of Chicago: "Where's mine?" When a man who made his name promoting Arabian horses got the top job at FEMA, should we have been surprised that someone like Meiers would end up in the chair formerly occupied by Felix Frankfurter, Robert Jackson, and Whizzer White?

Many conservatives (not necessarily my friend Paul Logli) felt cheated by Bush's choice of Miers over far more qualified conservative like Appeals Court Judges J. Michael Luttig or Janice Brown, formerly of the California Supreme Court. They figured, "Hey we elected this guy because he was going to nominate judges with core values like ours."

How many times does a sitting President get to pick not one but two judges to the SCOTUS? So why the hell give up a seat on the court to someone who thinks George Bush is the smartest guy she ever met?

Everyone was relieved when Bush withdrew Miers.

I consider myself something of a legal-political junkie but I'd never heard of Samuel Alito. I read as much as I could and was pleasantly surprised with the New York Time's profile of Alito on November 2, 2005.

This is a man who was a real trial lawyer, took on some difficult cases personally and was known to be tough on corruption as United States Attorney in New Jersey. I learned from a prosecutor in the Philadelphia District Attorney's office that Alito is no sure thing for either side. That he has voted both to strike down some death penalty sentences and to affirm others. I'm not sure what his position is on abortion, and as much as I am strongly pro-choice, I don't think it is what really matters. Litmus tests on either side are generally a bad idea.

When I ran for District Attorney the first time, 11 years ago, I was asked to come to the meeting of the county Republican central committee and answer questions along with my opponent, a man about ten years my senior who had flown fighter jets in Vietnam. In Oregon, district attorney is a non-partisan job, but I'm publicly self-identified as a Democrat so I was prepared for some interesting questions. I was not prepared for the first two questions:
What is your personal relationship with Jesus Christ?
What's your position on abortion?

My opponent went first and reassured them we was a devout Catholic who opposed abortion. I took a deep breath and answered that I did not attend church and that I was pro-choice. I went on to tell the group that if those issues defined their choice for D.A. they might as well vote for my opponent right away, but if they wanted to know my opinions on law and justice issues, I'd be happy to discuss them. We went on to talk about issues closer to the job of prosecutor.

If this had been a movie they would have gone on to endorse me. They didn't. But they also didn't endorse my opponent. I won the election with 79 percent of the vote.

I had no problem in agreeing that the NDAA should endorse the nomination of Sam Alito to the United States Supreme Court. He's clearly qualified. He's smart, he's fair, he's been vetted several times for jobs ranging from U.S. Attorney to Deputy Solicitor General to U.S. Appeals Court.

Am I sure he will vote the way I want on issues like parental notification of abortion? No. But do we really want a justice who is nominated because of a single issue? I hope not, and I hope that my fellow Democrats will save their political ammunition for a fight that is worth fighting and might possibly be won.

The NDAA's Board of Directors voted something like 90 to 1 to endorse Alito, with men and women, Republicans, Democrats, and Independents agreeing that "NDAA's endorsement reflects the organization's deep respect for Judge Alito's record on issues of criminal justice and his personal integrity. Members of the NDAA may not share all of Judge Alito's beliefs on all issues, but we feel that the nation will be well-served by his service on our nation's highest court."