Thursday, November 16, 2006

Pornography of pay

Thursday, November 16, 2006
Culture of poverty, pornography of pay
In politics there is an unspoken rule for public officials not to talk about their own salary. It's the pornography of pay, akin to peeking at someone's underwear.
The Oregonian recently ran a story about the extraordinary number of trial judges leaving the bench. It's a tough job, but one reason they're leaving was barely mentioned:
The pay for our circuit (trial) and appellate judges is somewhere between 47th and 49th in the 50 states. A first-year associate lawyer at one of Portland's top law firms is paid more than the chief justice of our Supreme Court. That is beyond ridiculous, it is embarrassing.
Judges are only one example. We pay our legislators between $15,000 and $30,000 a year and yet are surprised that they don't take vows of poverty or that they hire their spouses as legislative aides. Oregon's attorney general is paid less than $80,000. The governor (who turned down a raise) makes more than $30,000 less than his chief of staff. The Oregon State Bar pins the median salary for all attorneys at about $95,000. The top prosecutor in most Oregon counties is paid about $77,000. (Some counties supplement that salary so that the elected DA doesn't make less than his or her deputies.)
What does that say about the value of the work done by lawyers entrusted with decisions -- including whether to seek the death penalty -- that affect the lives of Oregonians? It's fashionable to claim that money doesn't matter, and it's considered beyond rude for an elected official to complain about her salary. Naturally, when Oregon's median salary is less than $40,000 it may be difficult to feel sympathy towards someone who earns twice that amount. But it's simply denial to believe these low salaries don't affect our ability to attract and retain the best people. All too often we lose them to the private sector, which appropriately rewards those with the most experience and responsibility.
I love my job, but the truth is I'm able to indulge in the luxury of starting my fourth term as the chief law officer for Clatsop County because I have no children. I didn't buy a house 15 or 20 years ago when real estate was cheap. My wife is a freelance editor. If we were sending a couple kids to college, we would have a difficult time justifying our career choices -- and likely would have made different choices years ago. Friends with whom I went to law school at the University of Oregon earn, as trial lawyers, two to three times what I can ever hope to make in public service.
Now, I didn't become a prosecutor to be wealthy, and, of course, there are intangible rewards for public service. Those of us fortunate enough to be elected have an opportunity to shape policy, and there is great satisfaction in working to make Oregon a better place to live.
That said, it's unreasonable to continue to expect elected officials who make the most important decisions in government to come from rich families, or to marry a rich spouse or to live an ascetic lifestyle simply for the pleasures of living in Oregon and not Washington or Connecticut.
The new and re-elected members of the Oregon Legislature have the power to change our culture of poverty. If we can talk to young people about sex and drugs, we certainly can have a real discussion paying our elected officials a fair wage.
Joshua Marquis has been the elected district attorney in Clatsop County (Astoria) since 1994. He was just re-elected to a fourth term and he serves as vice president of the National District Attorneys Association.

©2006 The Oregonian

Tuesday, October 10, 2006

Review of John Grisham's The Innocent Man

The Page Turner As Polemic

October 10, 2006; Page D6

John Grisham, in his first nonfiction book, writes about the 1987 trial and sentencing to death of Ron Williamson for the murder and rape five years earlier of 21-year-old Debbie Carter. Mr. Williamson's appellate lawyer succeeded in getting his conviction overturned based on claims that his first trial lawyer was inadequate. While preparations for a new trial were being made in 1997, newly available DNA testing established that neither Mr. Williamson nor his friend and co-defendant, Dennis Fritz, was the killer.

In Mr. Grisham's novels, the characters usually divide into two groups: the good guys caught up in evil conspiracies and the villains who concoct them. "The Innocent Man" is no different. Thanks to his abundant storytelling skills, the author delivers an account that is as vivid as the Grisham fictional fare sold at airport kiosks -- but it is also, alas, just as oversimplified as his novels, and it distorts the justice system in the same way. Make no mistake, "The Innocent Man" -- with its blunt subtitle ("Murder and Injustice in a Small Town") and its author's long-professed zeal to attack capital punishment -- is not simply a legal thriller drawn from real life. It is a polemic.

Ron Williamson was a promising high-school baseball player who in 1971 was a second-round draft choice of the Oakland A's. His family and his hometown, Ada, Okla., shared Mr. Williamson's high hopes that he would become a baseball superstar. But Mr. Williamson sputtered in the minors for a few seasons before abandoning his dream and beginning a slide into a dissolute life of drinking, drugs and crime. There were two formal charges of rape in 1978, neither charge resulting in conviction. In a letter (not mentioned by Mr. Grisham) that Mr. Williamson wrote while on death row to the prosecutor who put him there, he claimed -- apparently trying to illustrate how the justice system can indeed fail -- that he had gotten away with one of the rapes.

The crime that sent him to prison unjustly was discovered when two of Debbie Carter's friends found her in her apartment in a grisly scene all too common in sex murders. Police went down many dead ends while investigating the case, and after four years it remained an unsolved killing in a small town -- until someone pointed a finger at Mr. Williamson, who had frequented a bar where Ms. Carter worked. His incriminating statements and a strand of hair that seemed to match his own convinced police that Mr. Williamson, along with his friend, Mr. Fritz, were Debbie Carter's killers.

One of Mr. Grisham's heroes in "The Innocent Man" is high-profile attorney and Innocence Project co-founder Barry Scheck ("...and Barry Scheck was coming to town! Scheck's fame was growing enormously as the Innocence Project pulled off one DNA exoneration after another"). But despite the author's cheerleading for Mr. Scheck's involvement in the Williamson case, the DNA testing that set Mr. Williamson free was in fact prompted by defense attorney Mark Barrett and District Attorney William Peterson. Far from having railroaded Mr. Williamson, as Mr. Grisham implies, Mr. Peterson -- the chief prosecutor in the case -- was convinced that DNA testing would further validate Mr. Williamson's conviction.

The DNA sample turned out to match that of another man, Glen Gore, who had hung out in the same bars as Mr. Williamson and Mr. Fritz and who was in prison on other charges. Mr. Williamson and his co-defendant were freed in a highly choreographed media event in April 1999; they sued the government agencies involved and settled in 2002 for an amount that was rumored to be in the millions of dollars. Two years later, Mr. Williamson died of cirrhosis at age 51. Though Mr. Grisham, publicizing the book, has said that Mr. Williamson "drank himself to death," he suggests in print that Mr. Williamson's death was caused by medications that the author variously claims were overprescribed or denied to Mr. Williamson while in custody.

You would hardly know it from "The Innocent Man," but the same district attorney's office that Mr. Grisham vilifies for its eagerness to prosecute Mr. Williamson with shabby evidence ("it was remarkable that Bill Peterson, an officer of the court and charged with the duty to seek the truth, could elicit such garbage") went just as earnestly after Glen Gore for Debbie Carter's murder. Prosecutors had to try Mr. Gore twice; the first conviction was overturned when a judge ruled that Mr. Gore's defense should have been allowed to raise the possibility that Mr. Williamson and Mr. Fritz had murdered Debbie.

These attempts to bring Mr. Gore to justice, and even the murder of Debbie Carter itself, are very much sideshows in Mr. Grisham's story. He is much more interested in depicting how the once-bright dreams of Ron Williamson were destroyed by police and prosecutors who were inept at best but more likely corrupt. Yoking together the Williamson affair and the 2001 drug conviction of an Ada police officer -- who was not involved in the murder investigation -- Mr. Grisham cries: "When will the good guys clean house?"

The one-sidedness of "The Innocent Man" is a shame, for two reasons. First, because it feeds the popular perception -- nurtured by Hollywood and the news media -- that death rows are teeming with wrongfully convicted men who just await DNA testing to set them free. Second, by skewing his tale, Mr. Grisham missed an opportunity to tell a well-rounded and perhaps more interesting story than the one he delivers. The author is not a journalist, and it shows: He doesn't maintain even a pretense of detached reporting. He didn't attempt to get Mr. Peterson's side of the story, though hearing from the supposedly irresponsible prosecutor might have been illuminating. Indeed, Mr. Grisham seems to have given a wide berth not only to prosecutors but also to the police and even to the judge in Mr. Williamson's trial.

Opponents of capital punishment will point to "The Innocent Man" as vindication of their views, but it's not clear that their cause, in the end, is well served by Mr. Grisham's heavy-handed proselytizing. The freeing of Mr. Williamson and Mr. Fritz was the result of the legal system's checks and balances; it is characterized by Mr. Grisham as a lucky fluke in the never-ending battle between plucky defense attorneys and bloodthirsty prosecutors. While that outlook might make for fiction that readers just can't put down, it misses the fact that in the real world of complicated heroes and villains, life does not imitate art.

Mr. Marquis, the district attorney in Astoria, Ore., is vice president of the National District Attorneys Association.

Monday, August 7, 2006


I've added a new feature to the blog: Ask The D.A. If you want to know the answer to "why this happened" or just have a question about the justice system, leave your question, named or anonymous, and I will try to answer. Keep in mind that this is a privately maintained site, not involved with taxpayer money, and that I can ethically neither give legal advice or talk about PENDING cases.

On this site I have included a variety of published writings, most on national criminal justice issues, some book reviews I was asked to write for the National Law Journal and the Wall Street Journal, and some more regional observations about where I live, northwest Oregon.

Most of you familiar with computers know the expression WSIWYG - for the uninitiated,
"What You See Is What You Get." My goal as an elected official is to be just that: as little artifice as possible for someone who has to be elected to do my job. I have just been elected to my fourth 4-year term (which begins in January of 2007) and I continue to be a working prosecutor - meaning a District Attorney who appears in court several times a week. I enjoy writing and discussing my opinions on criminal justice and am fortunate to be asked to speak on these subjects to groups of prosecutors, lawyers, and activists around the United States.

As the local District Attorney I am bound to anger those who have friends or families of people who get charged with crimes. I think it is extremely important that the citizens of Clatsop County know that justice should be the same no matter who you know or how much money you have. I have prosecuted - and convicted - lawyers, psychologists, doctors, police officers, and even one of the largest seafood processers in the region. This means I don't get invited to a lot of parties.

One prominent local defense attorney complained that "it used to be fun to practice law in Clatsop County," and it wasn't "any more because of Josh Marquis." It was meant as an insult but I take it as a compliment.

I have used the Archives section to republish articles that otherwise are locked behind pay-to-view websites. So feel free to browse and comment.


Monday, June 26, 2006

Scalia quotes Marquis


certiorari to the supreme court of kansas

No. 04-1170.?Argued December 7, 2005--Reargued April 25, 2006--Decided June 26, 2006
Finding three aggravating circumstances that were not outweighed by mitigating circumstances, a Kansas jury convicted respondent Marsh of, inter alia, capital murder and sentenced him to death. Marsh claimed on direct appeal that Kan. Stat. Ann. §21-4624(e) establishes an unconstitutional presumption in favor of death by directing imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. Agreeing, the Kansas Supreme Court concluded that §21-4624(e)'s weighing equation violated the Eighth and Fourteenth Amendments and remanded for a new trial.
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Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Scalia, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
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Justice Thomas delivered the opinion of the Court.
Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. Kan. Stat. Ann. §21-4624(e) (1995). We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.


Respondent Michael Lee Marsh II broke into the home of Marry Ane Pusch and lay in wait for her to return. When Marry Ane entered her home with her 19-month-old daughter, M. P., Marsh repeatedly shot Marry Ane, stabbed her, and slashed her throat. The home was set on fire with the toddler inside, and M. P. burned to death.
The jury convicted Marsh of the capital murder of M. P., the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. On the basis of those findings, the jury sentenced Marsh to death for the capital murder of M. P. The jury also sentenced Marsh to life imprisonment without possibility of parole for 40 years for the first-degree murder of Marry Ane, and consecutive sentences of 51 months' imprisonment for aggravated arson and 34 months' imprisonment for aggravated burglary.
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Justice Scalia, concurring.
I join the opinion of the Court. I write separately to clarify briefly the import of my joinder, and to respond at somewhat greater length first to Justice Stevens' contention that this case, and cases like it, do not merit our attention, and second to Justice Souter's claims about risks inherent in capital punishment.
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Finally, I must say a few words (indeed, more than a few) in response to Part III of Justice Souter's dissent. This contains the disclaimer that the dissenters are not (yet) ready to "generaliz[e] about the soundness of capital sentencing across the country," post, at 9; but that is in fact precisely what they do. The dissent essentially argues that capital punishment is such an undesirable institution--it results in the condemnation of such a large number of innocents--that any legal rule which eliminates its pronouncement, including the one favored by the dissenters in the present case, should be embraced. See ibid.

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Of course, even with its distorted concept of what constitutes "exoneration," the claims of the Gross article are fairly modest: Between 1989 and 2003, the authors identify 340 "exonerations" nationwide--not just for capital cases, mind you, nor even just for murder convictions, but for various felonies. Gross 529. Joshua Marquis, a district attorney in Oregon, recently responded to this article as follows:

"[L]et's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent--or, to put it another way, a success rate of 99.973 percent." The Innocent and the Shammed, N. Y. Times, Jan. 26, 2006, p. A23.

The dissent's suggestion that capital defendants are especially liable to suffer from the lack of 100% perfection in our criminal justice system is implausible. Capital cases are given especially close scrutiny at every level, which is why in most cases many years elapse before the sentence is executed. And of course capital cases receive special attention in the application of executive clemency. Indeed, one of the arguments made by abolitionists is that the process of finally completing all the appeals and reexaminations of capital sentences is so lengthy, and thus so expensive for the State, that the game is not worth the candle. The proof of the pudding, of course, is that as far as anyone can determine (and many are looking), none of cases included in the .027% error rate for American verdicts involved a capital defendant erroneously executed.

Since 1976 there have been approximately a half million murders in the United States. In that time, 7,000 murderers have been sentenced to death; about 950 of them have been executed; and about 3,700 inmates are currently on death row. See Marquis, The Myth of Innocence, 95 J. Crim. L. & C. 501, 518 (2006). As a consequence of the sensitivity of the criminal justice system to the due-process rights of defendants sentenced to death, almost two-thirds of all death sentences are overturned. See ibid. "Virtually none" of these reversals, however, are attributable to a defendant's " 'actual innocence.' " Ibid. Most are based on legal errors that have little or nothing to do with guilt. See id., at 519-520. The studies cited by the dissent demonstrate nothing more.

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment--in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes--outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.

read the full FindLaw article here.

Saturday, June 10, 2006

Guns and Butter and Jails

The prime duty of government is to protect its citizens. It does that in a number of ways, from funding police, prosecutors and jails to protect citizens from crime, to passing laws and funding agencies that protect the public health by ensuring the water is safe to drink and the air is safe to breathe.

All too often, however, politicians tell citizens, the people who underwrite government with their tax dollars, that they must make a choice between decent schools or enough jail beds. These "guns or butter" choices are largely false and based on assumptions that are just plain wrong.

One oft-heard claim is that we spend more money on prisons than schools, and that by extension any request to expand jail beds rips the books out of an eager second-grader's hands.

Prisons and schools in Oregon are allocated at the state level. In the most recent budget about 58 cents of every tax dollar pays for education (kindergarten through higher ed) and about 8 cents pays for the judges, the prison system and the community probation programs that are administered by the county. Otherwise the cost of public safety is borne mostly by local governments -- cities and counties. They pay, mostly through your taxes, the costs of operating police and sheriff's offices, the prosecutor's office, and the jails.

The state also funds the lawyers appointed to defend accused criminals who cannot afford their own legal assistance. This is a much larger amount of money than most people imagine. In fact the state spends several million more dollars each year for "indigent defense" than state and county monies combined spend on the District Attorneys' offices to prosecute the same defendants.

In other words, when an aggravated murder case is tried in Clatsop County, as has happened several times during my tenure as D.A., the amount of money paid to the defense lawyers, defense investigators and defense witnesses is several times that of the prosecution. In one recent trial (State vs. Anthony Scott Garner) a single defense witness was paid more than $30,000. That's twice the amount I have to spend for ALL costs of ALL expert witnesses and witness travel in ALL the hundreds of cases my office tries each year.

Here's a claim that gets some people scratching their head. Sometimes you'll find two headlines in the same paper. One reads: "Prison Populations At All Time High." The other proclaims: "Crime Rate Lowest in 3o Years."

Wondering why? A very small percentage of people commit the overwhelming majority or crimes. It's not that half the citizens of Clatsop County are stealing stuff -- or worse -- from the other half. It's that 2,500 of them are stealing the stuff of the other 33,000. Lock up as many of those 2,500 criminals as you can and, lo and behold, the crime rate decreases.

Decreasing crime is a complex challenge. Solid families of whatever makeup, good education and adequate nutrition all help lower crime rates. We spend the vast majority of our public and private charitable resources shoring up these positive values, trying to keep or put people and children on a track that embraces positive and productive lifestyles.

Still, incapacitation is the main force driving crime rates down. When the molester next door finally goes to prison, at least for six years he's not victimizing any other kids.

Here we can consider the much-maligned Measure 11 sentencing law and our county jail.

Measure 11 applies only to criminals convicted of the most serious crimes against people -- serious assaults, sex crimes, armed robbery and homicide. It was enacted by grassroots support after people got tired of criminals serving two years and four months for deliberately running down a 12-year-old girl (Lisa Doell in Lake Oswego), and of murderers serving less than eight years after being sentenced to life.

Measure 11 does not apply to any drug crime, forgery, theft of any amount or even burglary of an occupied home.

Of the almost 1000 criminal cases filed in Clatsop County each year, about 35 percent are felony crimes. These are more serious charges with the possibility of prison as a sanction. Of that 35 percent, more than 75 percent will not go to prison but will instead be placed on probation, with the possibility of being sent jail should they violate probation. It's this specter of jail time that the probation officer hopes will induce co-operation in treatment and rehabilitation.

The Clatsop County jail is currently “capped” at 60, with an additional 20 beds rented from Tillamook County. Very soon the Transition Center will open. Not a jail, it is more of a halfway house/dorm with a capacity of 30 beds. In theory the people who will go there instead of jail are motivated to change their lives and will take advantage of the more intensive supervision they will get while living at the Transition Center. But there are no locks on the doors, no bars on the doors. If an inmate choose to walk, he would face the prospect of being arrested and taken to the secure jail, assuming there is any room in that facility.

Clatsop County has spent many thousands of dollars on studies, all of which have recommended having a secure-bed jail with a capacity of 140 to 200. The trick is to keep the bed from being totall full so that probationers can let their charges know that if they screw up there is in fact a jail bed with their name on it. Sometimes this knowledge deters your garden-variety criminal as well.

As it stands now, someone who has failed his probation for the fourth time may be sentenced by one of our judges to the maximum pf six months. But it's not uncommon for that person to serve only a few days of the sentence because of what is called “forced matrix release.” Now the offender, who was supposed to be in treatment and staying away from bars but didn’t, is out free. And I do mean free, at least until the end of the six months that he was sentenced, because on paper he's “in jail” and, therefore, his probation officer can’t even supervise him.

Most of the people in jail are awaiting trial, some because they are accused of very serious crimes (like rape) but most because they have a long record of failing to show up the many other times the court has ordered them to appear. Every time the lawyers, judge, and witnesses show up ready for a hearing and trial and the defendant has taken a powder, it costs the taxpayers another part of the figurative arm or leg.

There's no question that we need a spectrum of sanctions. Those who are willing to change a destructive lifestyle need access to job and life skills training, and to education. A short jail stays can be enough to convince some offenders to change their lives. Some require a longer term. The hope is always that imprisonment will deter the criminal by making the consequences of his choices so unpleasant. Failing that, we need simply to separate some criminals from the larger community for the rest of their predatory life.

But we do have limited resources. Our task is to elect with care the government officials who make decisions at the city and county level -- mayors, city councilors, county commissioners, the Sheriff, judges, the District Attorney -- and tohold them accountable for sensible and productive uses of those resources.

As District Attorney it's my job to be the gatekeeper at the front end of the system for those who won’t obey the law; to filter out the cases that can’t be prosecuted and to elevate those that commit the greatest harm; and then to advocate for holding responsible those who are found guilty and seek consequences for their wrongdoings, all the while recognizing that any human system is imperfect and no-one has flawless judgment.

In a smaller community this is often a tough job because at some point a person I know or a family member or a friend of a friend will cross the line. Is there one rule of law for those I know and like and a different one for the faceless others? No. If I do my job right I’ll always have a someone mad at me for dragging their brother/sister/husband/child into court and changing their lives.

I don't get frequent flyer miles for the numbers of people who get locked up. I live in the same county as all of you and I simply want all my neighbors to be able to enjoy their homes and their property, to drive our winding roads without fear, and for their kids to be able play in a safe park.

And, contrary to popular myth, being a career District Attorney is actually a lousy job if you aspire to higher office. If you do it right you make more enemies than friends. But you get to sleep well at night, knowing that you’ve done your best to do the right thing, as best you can see it. What I like most about my job is that my sole allegiance as a lawyer is to the truth. I'm not beholden to someone paying the bill. It's a moral luxury few private attorneys enjoy.

[This essay was edited for typos and reposted on Thursday, June 15.]

Saturday, April 8, 2006

The Perfect Muddle: Sebastian Junger's new book

A Murder Case Revisited
By Joshua Marquis
April 8, 2006
review of:
A Death in Belmont, By Sebastian Junger Norton, 266 pages, $23.95

The courtroom scene in Sebastian Junger's "A Death in Belmont" is one of the book's dramatic highlights. In 1963, a black man named Roy Smith is on trial in Cambridge, Mass., for murder. He has been falsely accused of the crime, Mr. Junger suggests, by a racist legal system that is overlooking the more likely killer: the Boston Strangler. When the all-white jury convicts Smith of murdering Bessie Goldberg, Mr. Junger reports, the victim’s daughter, Leah, is in the courtroom, thinking that the man who killed her mother “looked utterly impassive, as though he expected this and didn’t much care.”

The shipwreck in Mr. Junger’s best-selling “The Perfect Storm” (1997) left no survivors, but many of the people involved in the story of Bessie Goldberg’s murder are still alive. For instance: Leah Goldberg (now Scheuerman). It turns out that she was not even in Massachusetts on the day Mr. Junger describes. She remembers exactly where she was, because the date was Nov. 23, 1963—the day after the assassination of President Kennedy. “I was in Connecticut, glued to the TV, like everyone else in America,” Ms. Scheuerman told me. She also recalls her mother’s age when she died: Bessie Goldberg was 63. Mr. Junger says she was 62.

I called Ms. Scheuerman and other principals in the case, including prosecutors and Smith’s defense attorney, because so many of the book’s descriptions raised red flags that I felt compelled to get at the truth of the matter. I’m a district attorney, and reading “A Death in Belmont” seemed like going through the files of a bungled investigation.

Roy Smith, an ex-convict with an extensive criminal record and a drinking problem, was sent by the Division of Employment Security to clean the home of Bessie and Israel Goldberg on March 11, 1963. Bessie was home alone in the upper-middle-class suburb of Boston. Witnesses saw Smith leave the house 45 minutes before the arrival of Israel Goldberg—who discovered his wife’s body and came running outside, shouting that his wife had been murdered. The house was in disarray; money was missing; Bessie Goldberg had been strangled and her clothes were torn.

That night, Smith went on a drinking spree with more money than he could later account for, dodging the police until he was eventually arrested the next day. Although the crime occurred at a time when the city was in a state of high tension over killings that had been dubbed the “Boston Strangler murders,” Smith was quickly eliminated as a suspect in those crimes because he had been in jail on unrelated charges when most of the murders were committed.

In the Goldberg killing, a wealth of circumstantial evidence convinced a jury that Smith was the killer (he was acquitted of a rape charge—which would seem to undermine the suggestion that Smith was the victim of a racist rush to judgment). Mr. Junger discusses the death penalty at length, creating the impression that Smith might well have faced execution, but Massachusetts had functionally abolished capital punishment, executing its last inmate in 1947. Smith was sentenced to life in prison.

MR. JUNGER WRITES that “the truly innocent are both a kind of prison royalty and uniquely damned, and for one reason or another, Roy Smith joined their ranks.” The wrongful conviction of this “truly innocent” man is core to the book, but the more I looked into the case, the more I realized that Mr. Junger had selectively chosen facts and quotes from sources that would tell the story he wanted to write. The author doesn’t use direct quotes from Smith’s long-time defense attorney, Beryl Cohen, or from the prosecutors in the case, or from any of the principal characters in the case. Leah Scheuerman told me that she spoke with Mr. Junger but then became so concerned about the direction of his story that she withdrew her cooperation.

Mr. Junger maintains in the book that the entire prosecution was based not on catching Smith in a lie but on his truthful statements to investigators: “The logical problem with the state’s case … is that its core elements are known only because he told the truth.” Yet Smith’s own words to the police are damning.

It would take a book in itself to address all the gaps and tangled thinking in “A Death in Belmont,” but let’s take one point: As Leah Scheuerman observes, if we do indeed accept Smith’s word that he finished cleaning the house and left at 3:45 p.m. (witnesses put the time at 3:05), then, given that her father arrived at 3:50, there would have been only five minutes for anyone other than Smith “to break down the back door, kill my mother, mess up the just-cleaned house, move the furniture around and somehow place Smith’s fingerprints on a mirror he told police he had never touched.”

Smith’s case was appealed to the Massachusetts Supreme Judicial Court—a fact that would seem ripe for use in a book concerned with his wrongful conviction, but Mr. Junger does not mention it. The legal challenge didn’t center on malfeasance suggesting Smith’s innocence but on the contention that the jury should not have been deliberating with emotions running so high over President Kennedy’s assassination. As the court stated, rejecting the appeal: “This is not a case on which the guilt of the defendant is left to conjecture and surmise with no solid basis in fact.”

“A Death in Belmont” is a story of personal importance to the author. When Mr. Junger was an infant living in the same town as the Goldbergs around the time of the murder, his parents hired a contractor who in turn used a worker named Albert DeSalvo—the man who later confessed to being the Boston Strangler. But readers expecting Mr. Junger to have unearthed new evidence pointing to DeSalvo as Bessie Goldberg’s murderer will be disappointed; there isn’t any.

RUTH ABRAMS WAS one of the two assistant district attorneys who prosecuted Smith. She went on to serve on the Massachusetts Supreme Judicial Court and retired in 2000. Mr. Junger interviewed Ms. Abrams, but she is not mentioned in the book. Ms. Abrams told me that she remembers the case well and that she never doubted Smith’s guilt. “Either Smith did it or her husband did,” she says, “and all the evidence pointed to Smith.”

Though at some junctures Mr. Junger says he’s wrestling with the question of Smith’s guilt or innocence, the pose in unconvincing. “All governments are deceitful—they’re deceitful because it’s easier than being honest,” he writes. As a consequence, he says, “there are significant numbers of innocent people in prison.”

That thinking conforms with the message sent by many popular books, movies and TV dramas. But a real-world study last year, led by University of Michigan Law Prof. Samuel Gross, documented just under 400 exonerations between 1989 and 2003—out of more than 10 million felony convictions. Mr. Gross says he suspects that many more exonerations went uncounted, but even if the actual number of wrongly convicted innocents is 10 times Mr. Gross’s count, the legal system is 99.998% accurate.

Far from being later exonerated (as Mr. Junger implies and as publicity material for the book outright claims), Smith was simply the beneficiary of the generosity of Michael Dukakis, Massachusetts’s governor at the time, who commuted his sentence in 1976. (Prisoners “are getting out right and left,” Smith wrote from prison. “This year’s been like cake and honey for lifers”). Smith’s guilt or innocence was not addressed; the commutation was issued—as Smith’s defense attorney told me—strictly because of the convict’s good behavior and his failing health. Smith died of cancer three days after being paroled.

In the afterword of “The Perfect Storm,” Mr. Junger tells of a dream he had in which a key character who died aboard the Andrea Gail comes up to him and says, “So you’re Sebastian Junger. I liked your article,” and then shakes his hand.

I wonder if Bessie Goldberg will ever visit Mr. Junger in the deeps of his dreams.

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The New York Times has run a companion piece, informed by Leah Goldberg Schuerman.

April 8, 2006

A Murder Victim's Daughter Disputes Sebastian Junger Book

In a new book, "A Death in Belmont," Sebastian Junger, author of the best seller "The Perfect Storm," turns his attention to a brutal strangling that took place in his hometown, Belmont, Mass., in 1963. In it he asks whether the man convicted of the crime, a laborer named Roy Smith, was, in fact, innocent, and whether Albert DeSalvo, the man who confessed to being the Boston Strangler, could have committed the crime instead.
Now, on the eve of the book's publication, the daughter of the victim is mounting a campaign to discredit Mr. Junger's book. "When the book is scrutinized, people will find it invalid," said Leah Goldberg Scheuerman, whose mother, Bessie Goldberg, was strangled in her living room on the day Mr. Smith came to clean the house. "This book is full of lies and omissions."
Mr. Junger, who spent three years working on the book, which is being published by W. W. Norton and arrives in bookstores April 18, has a personal connection to the case: Mr. DeSalvo, who died in 1973, worked for the Junger family for several months during 1962 and 1963, and was at their home, just over a mile from the Goldberg house, the day Mrs. Goldberg was murdered.
He said that it was family lore that Mr. Smith was innocent. "The story about Bessie Goldberg that I heard from my parents was that a nice old lady had been killed down the street, and an innocent black man went to prison for the crime," he writes in "A Death in Belmont." Mr. Smith died in 1976, just after the governor commuted his sentence.
In the course of researching the book, Mr. Junger discovered that the truth — or what he could learn of it — was much more elusive, and the book is a sort of journalistic meditation on doubt. "I literally wake up every day thinking something different about all of these issues," Mr. Junger said in a telephone interview. "Smith did it, Smith didn't do it, DeSalvo never hurt a flea, DeSalvo is a serial murderer. There is no fixed point in my mind. I wish there were."
In an earlier interview, Mr. Junger said: "The idea of coming up with a forgotten box of evidence was very appealing, but that wasn't going to happen in this case. I wanted to argue it on a sort of theoretical level. Let's take these facts and arrange them in the way that makes the most sense. I thought the only fair way to do this was to use the Socratic method with the reader. It's a way of treating the reader as an equal — what do you think?"
The book weaves back and forth between descriptions of the crime, the police questioning of Mr. Smith, the trial and details about Mr. Smith's earlier life in Mississippi, as well as his life in prison. Mr. Junger also goes into detail about the crimes of the Boston Strangler and Mr. DeSalvo's confessions — later retracted — to 13 of those crimes (although never to the Goldberg murder).
As Mr. Junger relates, the case against Mr. Smith was largely circumstantial: he had been sent to the Goldbergs' house that day by the Division of Employment Security to clean. A number of witnesses saw him walking through the streets less than an hour before Mrs. Goldberg's husband discovered the body, and, when arrested, he had more money than he would have been paid by the Goldbergs that day. Ms. Scheuerman, who was 24 years old when her mother was murdered, said there should be no question about Mr. Smith's guilt. Not only was he convicted in a trial, she said, but the Massachusetts Supreme Judicial Court also upheld the conviction on appeal — a fact that Mr. Junger does not include in his book.
"He starts with a false premise and then goes into a false argument," Ms. Scheuerman said.
After "The Perfect Storm" was published, some factual inaccuracies in that book came to light in a 1997 New York Observer article that said Mr. Junger had made numerous errors, misspelling names and getting basic weather details wrong. More seriously, the article said Mr. Junger had inaccurately described the instability of the Andrea Gail, the swordfishing vessel that sank, and had unfairly depicted its owner as reckless and unsafe.
It also said Mr. Junger never talked to the captain of a sailboat that was caught in the storm and rescued by the Coast Guard. In the book, Mr. Junger paints him as incompetent. In the Observer article, Mr. Junger was quoted as saying, "He didn't sound like the kind of guy that I wanted to talk to."
In the paperback edition of "The Perfect Storm," which came out after the article appeared, Mr. Junger corrected a number of the errors and included an afterword offering the sailboat captain's version of events.
This time, Mr. Junger said, he hired a fact checker to comb through his manuscript. But Ms. Scheuerman said the book still contained a few outright errors, including Mr. Junger's placing her in the courtroom when the verdict was read. She said she was at home in Connecticut watching television reports of President John F. Kennedy's assassination.
Mr. Junger said his interview with Ms. Scheuerman had led him to believe she was in the courtrooom that day. "I may have misunderstood her," he said.
Ms. Scheuerman's bigger complaint is the things she said Mr. Junger left out. She also challenges his claim in the book that Mr. Smith "never lied about what he did that day." She said Mr. Smith had lied about a number of points, among them the time he arrived at the house, the time he left, how much money he was paid, whether he touched a mirror above a mantel (where his fingerprints were found) and the state of the house when he left. Mr. Smith said it was in good order, but when Mrs. Goldberg's body was discovered by her husband, the living room was in disarray, with the vacuum cleaner still out.
In the interview, Mr. Junger said that legal experts he consulted did not think the discrepancies were necessarily lies. "He's an alcoholic, he doesn't have a watch, he was drilled for 12 hours in a police station without a lawyer," he said of Mr. Smith. "The fact that he got an arrival time wrong doesn't necessarily mean he lied. He just could have been wrong."
Beyond disputing the facts in the book, Ms. Scheuerman said she felt she had been misled. In an e-mail message, which Ms. Scheuerman shared with The New York Times, Mr. Junger wrote: "I also should reassure you that I'm in no way trying to prove Roy Smith to be anything but guilty — only DNA evidence could do that. But I am very interested in this convergence of people in Belmont, and how the same story can be presented in completely different ways to a jury."
Starling Lawrence, Mr. Junger's editor at W. W. Norton, said that Ms. Scheuerman might not have fully absorbed what Mr. Junger was trying to tell her. "I don't want to sound like Bill Clinton talking about the meaning of 'is', " he said. "But it comes down to what you think the meaning of 'prove' in that sentence means."
Ms. Scheuerman stopped cooperating with Mr. Junger after reading what quotations and information he intended to use from her, and asked that all her quotations be removed.
Of course, it's not uncommon for writers and their sources to disagree over how facts should be interpreted, especially in such emotionally fraught circumstances. In the course of reporting a long article or book, writers will talk to many sources and try to gain their confidence. In doing so, they may cast their research in the most favorable light or leave out the full scope of their project. When the project comes out, sources may feel they've been betrayed.
And even among principals involved in Mr. Smith's prosecution, there are divergent opinions. Richard S. Kelley, 81, who prosecuted the case and went on to serve 15 years as a judge on the Massachusetts Superior Court, said in an interview that while he had no question of Mr. Smith's guilt, "because it was a circumstantial evidence case, I cannot exclude the possibility of someone else doing it."
But Ruth Abrams, a former prosecutor and retired supreme judicial court judge in Massachusetts who worked with Mr. Kelley on the case, said that convictions were not based on a standard of "beyond all doubt." She said: "It's beyond a reasonable doubt. Nobody would get convicted if it was beyond all doubt."
For Ms. Scheuerman, the issue is much simpler. "I would like my parents to rest in peace," she said.

Charles McGrath contributed reporting for this article.

Tuesday, March 14, 2006

How many innocent victims is "a few"?

My better half, my mother, and others remind me that I don't want to be primarily remembered as that "guy who was really for the death penalty." I support capital punishment in the same way I do abortion and assisted suicide: None are good outcomes but there are limited needs for all of these very serious acts.

Nonetheless I simply cannot sit still as reporter after reviewer after columnist continues to torture the truth in their zeal to portray Americans' support of at least the concept of capital punishment as barbarism.

One of many, many recent examples comes in articles in the Detroit Free Press' review of the film "After Innocence," which profiles the lives of several men who were wrongly convicted of serious crimes. I get weary of pointing out that these stories are so stunning precisely because they are so rare. It is unlikely that these days anyone would make a documentary about a serial killer unless his victims were young, blonde, and white.

No one can help but be moved by the stories of some of these men; but, not content with the eloquence or poignancy of their stories, the author makes the astonishing claim that one man "was the 140th person to escape execution through post-conviction DNA testing."

WHAT? Even according to Barry Scheck's Innocence Project there have only been 174 DNA exonerations for ALL crimes, more than 90% of which were not murder, let alone death penalty cases. In fact, the number of inmates taken off death row specifically because DNA cleared them is....FIVE. An additional nine inmates who were once on death row were eventually fully exonerated by DNA evidence.

Some might say, 14 or 140, it doesn't make a difference. That makes as much sense as being told you have a 1% mortality risk from a surgical procedure versus a 10% risk.

Yet people who call themselves journalists and their editors continue to repeat grossly misleading statements like this.

The usual response is, “So what if it’s only 10 -- that’s 10 too many!” Of course it is. A prosecutor’s absolute worst nightmare is not losing a case - any real prosecutor will lose a few. No, the real nightmare is prosecuting or, worse, convicting an innocent person. It is for that reason that many of the high profile Innocence Project exonerations like the late Eddie Lloyd of Detroit or Christopher Ochoa of Texas came to be: in large part because of the actions of the prosecutor to right an injustice.

In the same issue of the Detroit Free Press was another REALLY disturbing story, as evidenced by the headline "a few still kill".

How many ACTUALLY dead innocent victims is “a few?”

Saturday, March 4, 2006

A Little Something for Everyone

I apologize for the delay in getting the oft-promised weekly post up but it was motivated in part because of a number of requests to read my New York Times op-ed of January 26. I also wanted to post the actual promos ABC had run which later they denied existed. Here's just one reason why I love the satellite DVR.

The OpEd generated a bizzard of e-mails. I'd say 80% were supportive, 15% in opposition and 5% obscene. My personal favorite was from one of the far left blogsites that had a little poll in which most of the respondents said they thought that more than 10% of all convictions were wrongful. Not even the most fevered true believer Public Defender would agree to such a claim.

On March 1 the producers of MSNBC's Abrams Report called and asked if I could drive the 90 miles (one way) to Portland to participate in a discussion of the crappy TV show that got me fired up in the first place, In Justice. I had to explain I have this day job and I was trying a DUII trial that day, and they were kind enough to send a satellite truck to me.

I was preceded by the show's creator and executive producer, Robert King, and star Kyle MacLachan who most of us remember from Twin Peaks and other great surreal David Lynch projects, along with the truly awful movie Showgirls. King actually semed pretty reasonable and made it clear that the show was "ripped from the heart" not the headlines and that that they were just trying something new. The actor, of course, started taking himself too seriously and implied he was on a larger social mission.

Here's the transcript of the show.

I wish I had already found this giddy review of the program from the World Socialist web site. The Comrades quite accurately describe that the show "has offered us lying witnesses, incompetent “experts” and federal law-enforcement officials willing to send innocent men to life in prison in pursuit of their law-and-order agenda. Cops interrogate children in the most brutal fashion so they can get false confessions and wrap up their cases."

Among the consolations are these reviews: "ABC Guilty of Petty Theft," Tom Shales of the Washington Post: "'In Justice' is more of an injustice," from Roboert Bianco at USA Today; and "New legal drama's bad timing could make for a miscarriage of 'Justice'," from Melanie McFarland of the Seattle Post-Intelligencer.

"InJustice" is regularly ranking last among the big three networks.

Next on the hit parade was my appearance on the Bill O'Reilly show the day AFTER my NYT op-ed was published. I had to be in Portland anyway and I wanted to point out that O'Reilly's outrage over Vermont judge Edward Cashman, who announced he longer beleived in punishment and sentenced a child molester to probation and 60 days local time, was in fact NOT a loon, but simply advocating a sentencing philosphy that masuqerades under the title "Restorative Justice."

Here's the transcript of that show.

I don't agree with much of what O'Reilly says but he is right on this issue. The "RJ" crowd likes to hide behind a series of platitudes that conceals a belief that criminals and victims are essentially morally equal and that what we really need is reconciliation not incapacitation, a concept carried through to their logo.

There is no question that having offenders do community service or apologize to their victims can be valuable, particularly in juvenile cases. But to give you an idea how wrought up they get take a look at what one of the premier RJ groups posted on their website.

I'm particularly amused by the "Oregon insiders" who say I'm such pond scum. How would they account for my being selected as president of the Oregon DA's group in 2001, selected twice as Oregon's represntative on the board of the National DA's organziation, or my recent gubernatorial appointment and 28-0 State Senate confirmation to the Oregon Criminal Justice Commission?

Those of you with a few extra bucks wanting to do good, feel free to contribute to the campaign of my best friend and partner, Cindy Price who is running as NOT one of the good old boys against the incumbent for Clatsop County Commission in District 3.

Monday, January 30, 2006

The Innocent and the Shammed: The NYT OpEd

In my original draft I had written that, on the promo for the TV show In Justice, "we hear an authoritative voice announce that every year thousands of people in this country are wrongfully convicted." Before the OpEd was published neither the conscientious NY Times fact-checker nor I could find or offer any actual proof that the word "thousands" had been used. It seems that all the material now says "hundreds" -- although I had written "thousands" down after I jumped out of bed when I first heard it about 11:00 at night in late December. We compromised with the languge you'll see I've highlighted in red in the text of the OpEd.

This was after I had called the publicity department for the ABC-TV program "InJustice" and was first blown off by a woman identified as the show's publicist. Later I was transferred back to her. I tried to explain that I was an attorney writing an op-ed that mentioned the show and I wanted to get the language in the promos correct. She then indigantly proclaimed that she had never heard of a writer calling her to get such information and that she had "lots of friends who wrote op-eds." So I politely asked her if she would take a call from an editor at the TIMES. She huffily agreed and I passed the info off to the editor I was working with. He told me she was ducking his calls and so we had to go with the less specific language (now in red).

On January 27th, the day after my OpEd was published, I got my hands on a videotape with the promos. Et voila! Here are the screen shots. I'm working on getting the full promo online.

The Innocent and the Shammed

Published: January 26, 2006

Astoria, Ore.

AS the words scroll across a darkened TV screen, we hear an authoritative voice announce that every year an alarming number of people in this country "are wrongfully convicted." Millions of Americans who watched these promotions in recent weeks knew they were pitches for the new ABC television drama "In Justice." But if they'd been listening from the next room, they might easily have thought from the somber tone that it was a tease for the nightly news or "20/20."

"In Justice" has received dismal reviews. But that hasn't stopped its premise from permeating the conventional wisdom: that our prisons are chock-full of doe-eyed innocents who have been framed by venal prosecutors and corrupt police officers with the help of grossly incompetent public defenders. It is a misconception that has run through our popular culture from "Perry Mason" to the novels of Scott Turow to the recent hit play "The Exonerated."

It was also seen on the front pages in recent weeks, in reporting about Roger Coleman, who was executed in Virginia in 1992 for rape and murder. DNA testing at the time had placed him within one-fifth of a percent of possible suspects, leading to widespread claims that he was innocent. The governor, L. Douglas Wilder, said he would consider commuting Mr. Coleman's sentence if he passed a lie detector test. He failed and was executed.

For more than a decade opponents of the death penalty have held up the Coleman case as the example that would prove that America executed an innocent man. Yet on Jan. 12 the Canadian laboratory that had been sent the last remaining DNA sample in the case announced the results of more advanced testing: it put the odds of Mr. Coleman not being the killer at less than 1 in 19 million. Still, while Mr. Coleman's face graced the cover of Time magazine at the height of the controversy, it is unlikely you will see him on the cover again marking his rightful conviction.

Americans love the underdog. Thousands of law students aspire to be Atticus Finch, the famous fictional lawyer from "To Kill A Mockingbird." But this can go too far: one of the jurors who acquitted the actor Robert Blake of murder last year cited the TV program "CSI" as the basis of her knowledge of what good police work should be. And if we take a deep breath and examine the state of American justice, a very different picture will emerge.

To start, only 14 Americans who were once on death row have been exonerated by DNA evidence alone. The hordes of Americans wrongfully convicted exist primarily on Planet Hollywood. In the Winter 2005 Journal of Criminal Law and Criminology, a group led by Samuel Gross, a law professor at the University of Michigan, published an exhaustive study of exonerations around the country from 1989 to 2003 in cases ranging from robbery to capital murder. They were able to document only 340 inmates who were eventually freed. (They counted cases where defendants were retried after an initial conviction and subsequently found not guilty as "exonerations.") Yet, despite the relatively small number his research came up with, Mr. Gross says he is certain that far more innocents languish undiscovered in prison.

So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent — or, to put it another way, a success rate of 99.973 percent.

Most industries would like to claim such a record of efficiency. And while, of course, people's lives are far more important than widgets, we have an entire appeals court system intended to intervene in those few cases where the innocent are in jeopardy.

It is understandable that journalists focus on the rare case in which an innocent man or woman is sent to prison — because, as all reporters know, how many planes landed safely today has never been news. The larger issue is whether those who influence the culture, like an enormous television network, have a moral responsibility to keep the facts straight regardless of their thirst for drama. "In Justice" may soon find itself on the canceled list, but several million people will still have watched it, and they are likely to have the impression that wrongfully convicted death row inmates are the virtual rule.

The words "innocent" and "exonerated" carry tremendous emotional and political weight. But these terms have been tortured beyond recognition — not just by defense lawyers, but by the disseminators of entertainment under the guise of social conscience.

"The Exonerated" played for several years Off Broadway with a Who's Who of stage and screen stars portraying six supposedly innocent people who were once on death row. The play, originally subsidized by George Soros, the liberal billionaire philanthropist, now tours college campuses and was made into a television movie by Court TV.

The script never mentions that two of the play's six characters (Sonia Jacobs and Kerry Cook) were not exonerated, but were let out of prison after a combined 36 years behind bars when they agreed to plea bargains. A third (Robert Hayes) was unavailable to do publicity tours because he is in prison, having pleaded guilty to another homicide almost identical to the one of which he was acquitted.

American justice is a work in progress, and those of us charged with administering it are well aware that it needs constant improvement. But nothing is gained by deluding the public into believing that the police and prosecutors are trying to send innocent people to prison. Any experienced defense lawyer will concede that he would starve if he accepted only "innocent" clients. Americans should be far more worried about the wrongfully freed than the wrongfully convicted.

Joshua Marquis is the district attorney of Clatsop County in Oregon and a vice president of the National District Attorneys Association.

Thursday, January 26, 2006

The Innocent and the Shammed

My first OpEd for the New York Times, "The Innocent and the Shammed," is published today.

I wrote this in response to a number of calls and e-mails mostly from prosecutors outraged about the implications of the crappy TV show "In Justice". The New York Times was very accomodating, which is more than I can say for ABC-TV who, when I tried to fact-check the original language of my piece -- quoting the early promo that claimed "Every Year Thousands of Americans Are Wrongly Convicted," the show's publicist 1) blew me off, 2) demanded that I get an editor from the TIMES to call her, and then 3) dodged that editor's call when he tried to verify the language.

Maybe not a "Million Little Lies," but a goodly number!

Sunday, January 15, 2006

Guilty Again!

It turned out, as I strongly suspected, to be anticlimactic when long-dead murderer and rapist Roger Coleman turned out to be a liar as well. After being touted for years as the poster-boy for wrongful executions, featured on the cover of TIME magazine, and doing an interview with the ubiquitous Larry King just two weeks before his execution in 1992, advanced DNA testing proved that Coleman was ...guilty again! This time tests put the possibility of Coleman NOT being the killer at more than 19 million to one.

Of course this came as no surprise to the lawyer who prosecuted him, the jurors or the family of Wanda McCoy, the sister-in-law he raped and murdered in 1981. They knew that the evidence against him, both direct and circumstantial, was overwhelming. They also knew what readers or viewers of the breathless “What If?” pieces were not told -– that blood serology testing that was as good a science as they had 25 years ago put Coleman within one in a hundred people who could have murdered McCoy. Then, after being sentenced to death, Coleman’s team of lawyers enlisted Dr. Edward Blake, a brilliant DNA scientist now best known for his work with Barry Scheck’s Innocence Project. Blake used DQ-alpha DNA testing in 1990 that narrowed the field down to two-hundredths of a percent.

But from all the fuss you would have thought Coleman’s exoneration was just around the corner.

The conventional wisdom was that Virginia officials had fought post-execution DNA testing, fearing they’d be exposed for executing an innocent. In reality the only DNA sample left remained in the control of Dr. Blake, who absolutely refused to return it to Virginia authorities, even though that state’s forensics lab is considered one of the best in the country. Blake, while his scientific acumen is unquestioned, is prone to wild conspiracy theories (more on a spectacular example later), and even defied a Virginia court order requiring the return of the DNA swab.

Over the 13 years since his execution Coleman has emerged as an earnest coal miner protesting his innocence. “"An innocent man is going to be murdered tonight," Coleman said in a statement just moments before he was put to death. "When my innocence is proven," he added, "I hope America will realize the injustice of the death penalty as all other civilized countries have."

Reverend Jim Mcloskey of Centurion Ministries, who has devoted his life to exonerating wrongfully convicted inmates, took up Coleman’s cause with great vigor. After outgoing Governor Mark Warner negotiated with Blake to have the DNA tested by a “neutral” Canadian lab, McCloskey told reporters he’d never been “so excited.” He was utterly convinced of Coleman’s innocence and sincerity.

I kept asking reporters, who called me for comment on what I would say when Coleman was found to be innocent, to ask McCloskey and other Coleman supporters not what they THOUGHT the test was going to show, but what they HOPED for. As someone who supports capital punishment in rare appropriate cases I was both intellectually and emotionally pulling for verification that Virginia had executed a guilty man. What I suspected was that many Coleman supporters were really HOPING that the state had killed an innocent man, which defines the perversity of many zealots who call capital punishment “state sanctioned murder.”

Now to be fair, McCloskey seems to be a genuinely sincere activist who has deep moral, social, and religious reasons for his opposition to the death penalty. And he issued a remarkably honest statement after the test results came in January 12, expressing his bitter disappointment that he had been lied to and had put so much stock in Coleman’s fevered protestations of innocence. He said he was "numbed by this new truth that has been revealed" and was "mystified" that Coleman had allowed so many people to believe in his innocence - and work so hard to try to prove his innocence - in spite of his guilt.

McCloskey concluded after investigating the case and constructing a timeline of the crime and Coleman's actions the day of the murder that he did not have enough time. "That's the basis on which I primarily believed in his innocence," McCloskey, whose organization has helped to win freedom for three dozen inmates either on death row or serving lengthy sentences, said Thursday. "He had to be a ninja to do it. But he did it."

Less forthcoming was Peter Neufeld, co-founder of the “Innocence Project.” "This doesn't change the equation at all," Neufeld said. “One cannot suggest for a moment that one case represents a system," he said. "There are literally dozens of cases in which the defendants asserted their innocence in which there is physical evidence that could be tested.”

What Neufeld didn’t admit was that time and time again, when he and partner Barry Scheck have insisted that someone would be totally cleared by the DNA testing that they ridiculed at the OJ Simpson trial, the results have been totally incriminating instead.

These cases appear on the media radar only during the first, pre-testing phase. There was Ricky McGinn, featured on the cover of the June 13, 2000 issue of NEWSWEEK with the customary speculation that more advanced DNA testing than existed when he was convicted and sentenced to death for the rape and murder of his 12-year-old step-daughter Stephanie would “exonerate” him. Then-Texas Governor George Bush granted a 30-day reprieve for the new testing, and then you never heard about McGinn again . . . because the tests proved he was indeed completely guilty.

At about the same time another Scheck client, Vincent Barbieri, whose Italian-American ethnicity earned him hero status in Europe despite his conviction for the rape-murder of Sara Wisnonsky, claimed that some fingernail scrapings found in the court clerk’s office would show that while he had consensual sex with the victim, someone ELSE had killed her. Appearing on CNN’s “Burden of Proof” TV show I asked Barbieri’s brother what he would think if the test showed Barbieri was guilty. “I wouldn’t believe them,” his brother answered. That story also sank like a stone after the DNA testing confirmed Barbieri’s guilt.

One of the more bizarre cases involved a Scheck client named Keri Kotler who had been convicted in New York of rape. Dr. Blake, who by then was running essentially a boutique lab for Scheck, produced DNA tests that appeared to clear Kotler. The prosecutor in the case was convinced of Kotler’s guilt but agreed to drop the charges in the face of Blake’s findings. Scheck even got Kotler $1.7 million in compensation for his wrongful imprisonment. Then, after Kotler’s release, another rape took place and this time the DNA evidence left on the victim was indisputable: It was Kotler’s. Scheck and Blake were so unwilling to concede that they may have been involved in a wrongful exoneration that they seriously suggested that police might have somehow accumulated Kotler’s bodily fluids and planted them at the crime scene.

Coleman’s case is only the latest to prove that in the vastly overwhelming number of convictions subjected to years, even decades of scrutiny by appeals courts and activists who are looking for the legendary innocent executed man, juries and the legal system got it right the first time.

Maybe someday we can start having an honest debate in this country over the morality of capital punishment rather than constantly refuting the chimera of the wrongfully convicted.


I'm quoted in these articles on the case:

Saturday, January 7, 2006

Scientific American Fiction?

In an article posted January 5, 2006 on Scientific American's blogsite, writer Philip Yam seems to have abandoned all scientific method and decided to take the claims of the vocal and well-funded opponents of capital punishment at face value.

It's hard to know which urban legend to start with as Yam veers wildly across the many objections to the death penalty, raised like plastic gophers popping out of holes in a carnival game, so let's just address them chronologically because that is, well . . . scientific!

First off, Yam declares that "[t]he U.S. remains the only developed Western nation to permit executions...." Apparently all those colored people's cultures in the east don't count -- developed democracies like Japan and India, to just name a couple. Never mind that because of the historical guilt carried by the Axis powers the European Union demands that any nation seeking entrance into the EU abandon the death penalty. Of course they can still brutalize and torture suspects (like that paragon of Western civilization, France) -- they just cannot officially execute them. And also never mind that opinion polls conducted across Europe show that the majority of the various nations' citizens would like to see the return of capital punishment. But those nations are ruled by republican elites; they're not a messy democracy like the United States.

Then Yam talks of some real science -- DNA -- and says "many on death row have been set free because of [DNA]--the Death Penalty Information Center counts 122 exonerations since 1973."

The actual number of DNA "exonerations" off death row is one-tenth that number; perhaps more significantly, only five of those people were taken off death row because of DNA. The rest had already had their sentences reduced, commuted or vacated.

Perhaps even more significantly, the true number of "innocent" men who have occupied America's death rows since 1976 is closer to 22 -- not 122 -- a fact acknowledged publicly by anti-death penalty Judge Jed Rackoff, who made history when he declared the federal death penalty unconstitutional. Rackoff's decision was overturned by the U.S. 2nd Circuit Court of Appeals. (For a definitive breakdown of the DPIC's "innocence list" check out California Assistant Attorney General Ward Campbell's careful deconstruction.)

Some will loudly claim that even one is too many but since Yam addresses what he calls the "by-catch rate," let's hold that argument for last.

Citing the work of Professor Elizabeth Loftus, a darling of criminal defense lawyers who has testified in hundreds of criminal trials on behalf of . . . the defense, Yam sweeps away the validity of eyewitness testimony. Loftus was driven out of the University of Washington after they demanded she take an ethics class; she now teaches at UC Irvine where she spends a lot of her time fighting a lawsuit, currently before the California Supreme Court, in which she called a child untruthful in her claims of child abuse. That "Jane Doe" is now a U.S. Naval officer and is suing Loftus. Yam adopts wholesale the critics of witness memory, neatly disposing of all that unpleasant eyewitness testimony that highly paid experts tell us we should ignore.

The he goes on to invoke the adolescent disdain for "jailhouse snitches," implying that anyone in prison couldn't possibly be truthful and that juries are apparently too stupid to evaluate the validity of their testimony. One can only wonder if the former Enron employees now ratting out Ken Lay would fall into the "jailhouse snitch" category -- or have they become courageous whistle blowers? He also tells us that "[w]e know that some personality types are more likely to yield to the pressures to confess."

Let's see now. We can't trust eyewitness testimony, memory or confessions, and Yam tells us of widespread "sloppy or overzealous police work and prosecution," which doesn't leave jurors with any reason to ever convict anyone in his "scientific" model of justice.

Yam then announces that: "Most states are now recognizing the weaknesses of the death penalty," and cites declining death sentences as proof. He is apparently ignoring the considerable research that shows that the death penalty acts as a deterrent to murder; or, more simply, that for a number of reasons the murder rate in the United States has fallen considerable in the last 10 years.

Finally, Yam cites a case from Texas where death penalty opponents have claimed that Ruben Cantu was wrongfully executed and asks whether executing one innocent man for every 1000 guilty ones is acceptable. Not content with that ratio, he makes glancing reference to a study by University of Michigan Professor Samuel Gross who claimed to find about 330 exonerations in serious felony cases over the last 20 years as evidence that we are in fact executing as many as one in twelve who are innocent.

Perhaps Yam couldn't be bothered to read Gross's study or, more importantly, did not consider that Gross' 328 cases come out of a universe of millions of serious felony convictions, making the error rate closer to 1 in 1,000,000 than 1 in 12.

We all aspire to a justice system that is flawless and while we may not achieve it, that is no reason not to strive towards that goal. The question Yam and others refuse to ask is: What happens when we don't convict or in some cases execute? How many people have died and will die at the hands of wrongfully freed murderers?

Unfortunately, these are not hypotheticals. They are the victims of freed killers like Kenneth McDuff, Robert Massie, and David Dunster. Dunster killed a woman in Oregon, in 1972, got transferred to a prison in Montana where, in 1978, he killed an inmate. In 1993 he was transferred to Nebraska where he killed Larry Witt. Now Dunster languishes on death row in Nebraska.