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.