Day: July 19, 2013

New ‘injection secrecy’ law threatens First Amendment rights in Georgia

July 17, 2013 (source

Update: On Thursday afternoon, Fulton County Superior Court Judge Gail S. Tusan granted a stay of Hill’s execution, concluding, among other things, that the Georgia “state secrets” law “implicated” the First Amendment by blocking information she deemed “essential to the determination of the efficacy and potency of lethal injection drugs.” Georgia officials immediately vowed to appeal the ruling.

Original Story:
The pending execution of a cognitively disabled man in Georgia has brought to national light a new law there that has profound first amendment implications for journalists covering death penalty cases.

The so-called “Lethal Injection Secrecy Act,” passed in March, makes the identities of those companies and individuals who make and supply lethal injection drugs a “state secret” that may be shielded from disclosure to the public, the media, or even the judiciary. As a result of the measure, information about the purity and potency of the drugs that are to be used to carry out executions in the state are beyond the public’s reach. So are the identities of the doctors hired by the state to oversee executions.

The shield law was enacted at the request of the state’s Department of Corrections after Georgia officials were roundly criticized in 2011 and 2012 for seeking lethal injection drugs from unlicensed sources as they scrambled to replace diminishing supplies. In 2011, for example, the Drug Enforcement Administration seized Georgia’s supply of “lethal injection” drugs because of federal concerns about how those drugs were obtained by state officials. The measure also directly benefits the dwindling number of pharmaceutical companies that produce and distribute the lethal drugs and that have been the subject of protests and boycotts for their role in the increasingly controversial practice of lethal injections.

The Injection Secrecy Act came into effect on July 1 and was immediately invoked by state officials in the case of Warren Hill, a convicted murderer who claims he cannot be executed because he is “mentally retarded” (a legal term of art) and thus falls within the protections of Atkins v. Virginia. In that 2002 United States Supreme Court decision, the justices, by a vote of 6-3, declared that executing the mentally disabled violates the Eighth Amendment’s prohibition against “cruel and unusual” punishment. Georgia officials waited until the Injection Secrecy law was in effect, then scheduled Hill’s execution for July 15, relying on the new law to shield from Hill’s attorneys material information about the drugs to be used in Hill’s execution.

Last week, after Hill’s execution had been set for this past Monday, state officials revealed to his lawyers that they “had entered into agreements with an unknown compounding pharmacy and an unknown prescriber of drugs in order to procure pentobarbital,” a lethal drug to be used in Hill’s execution. But state officials, citing the new law, refused to provide any information about the identities or professional qualifications of the supplier or prescriber (or any information about the drug itself). So, on Monday, the day Hill was supposed to be given the lethal dose, his attorneys went to court in Fulton County, GA, seeking to enjoin the execution on the grounds that the Injection Secrecy law violates the Eighth Amendment and separation-of-powers principles. “Without any information regarding the origin or makers of the drug the Department of Corrections is planning to use to execute him,” the lawyers said, “Mr. Hill is left with no means for determining whether the drugs for his lethal injection are safe and will reliably perform their function, or if they are tainted, counterfeited, expired, or compromised in some other way.”

The trial judge delayed the execution, at least until Thursday, when she will continue to hear argument over the new state law. Nothing the State (or a state) does more profoundly impacts the public interest than when it seeks to take a life. Nowhere is the media’s interest in transparency and accountability more important than in capital cases. Hill’s lawyers did not challenge the law on First Amendment grounds. But it won’t be long before such a challenge is made to a law that so tangibly impairs the freedom of the press to report on matters of life and death.

U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.

How accurate is forensic analysis?

Learn more about the reliability of each type of forensic analysis.





Firearm evidence

Hair and

Pattern and impression

Bullet lead composition

Independent scientists critique suspect forensic work

It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty. Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment. But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined. The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.

Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.

For instance, the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases, in a state that has executed more defendants than any other since 1982.

Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.

“We didn’t do this to be a model for anyone — other than when there’s a problem, you have to face it, and you have to figure how to fix it, move forward and make sure it doesn’t happen again,” FBI general counsel Andrew Weissmann said. “That tone and approach is set from the very top of this building,” he said, referring to FBI Director Robert S. Mueller III.David Christian “Chris” Hassell, director of the FBI Laboratory, said the review will be used to improve lab training, testimony, audit systems and research, as it has done when previous breakdowns were uncovered. The lab overhauled scientific practices when whistleblowers revealed problems in 1996 and again after an FBI fingerprint misidentification in a high-profile 2003 terrorism case, he said.

“One of the things good scientists do is question their assumptions. No matter what the field, what the discipline, those questions should be up for debate,” Hassell said. “That’s as true in forensics as anything else.”

Advocates for defendants and the wrongly convicted called the undertaking a watershed moment in police and prosecutorial agencies’ willingness to re-open old cases because of scientific errors uncovered by DNA testing.

Peter J. Neufeld, co-founder of the Innocence Project, which supports inmates who seek exoneration through DNA testing, applauded the FBI, calling the review historic and a “major step forward to improve the criminal justice system and the rigor of forensic science in the United States.”

Norman L. Reimer, executive director of the NACDL, also praised the effort, predicting that it would have “an enormous impact on the states” and calling on the defense bar to represent indigent convicts.

“That’s going to be a very big job as this unfolds,” said Reimer, whose group has spent 1,500 hours identifying cases for the second round of review.

Under terms finalized with the groups last month, the Justice Department will notify prosecutors and convicted defendants or defense attorneys if an internal review panel or the two external groups find that FBI examiners “exceeded the limits of science” when they claimed to link crime scene hair to defendants in reports or testimony.

If so, the department will assist the class of prisoners in unprecedented ways, including waiving statutes of limitations and other federal rules that since 1996 have restricted post-conviction appeals. The FBI also will test DNA evidence if sought by a judge or prosecutor.

The review will prioritize capital cases, then cases in which defendants are imprisoned.

Unlike DNA analysis, there is no accepted research on how often hair from different people may appear the same.

The federal inquiry came after the Public Defender Service helped exonerate three D.C. men through DNA testing that showed that three FBI hair examiners contributed to their wrongful convictions for rape or murder in the early 1980s.

The response has been notable for the department and the FBI, which in the past has been accused of overprotecting its agents. Twice since 1996, authorities conducted case reviews largely in secret after the scientific integrity of the FBI Lab was faulted.

Weissmann said that although earlier reviews lawfully gave prosecutors discretion to decide when to turn over potentially exculpatory material to the defense, greater transparency will “lessen skepticism” about the government’s motives. It also will be cheaper, faster and more effective because private parties can help track down decades-old cases.

Scientific errors “are not owned by one side,” he said. “This gives the same information to both sides, and they can litigate it.”

The review terms could have wide repercussions. The FBI is examining more than 21,000 federal and state cases referred to the FBI Lab’s hair unit from 1982 through 1999 — by which time DNA testing of hair was routine — and the bureau has asked for help in finding cases before lab files were computerized in 1985.

Of 15,000 files reviewed to date, the FBI said a hair association was declared in about 2,100 cases. Investigators have contacted police and prosecutors in more than 1,200 of those cases to find out whether hair evidence was used in a conviction, in which case trial transcripts will be sought. However, 400 of those cases have been closed because prosecutors did not respond.

On May 7, Mississippi’s Supreme Court stayed the execution of Willie Jerome Manning for a 1992 double homicide hours before he was set to die by lethal injection.

FBI cases may represent only the tip of the problem.

While the FBI employed 27 hair examiners during the period under review, FBI officials confirmed for the first time this week that records indicate that about 500 people attended one-week hair comparison classes given by FBI examiners between 1979 and 2009. Nearly all of them came from state and local labs.

State and local prosecutors handle more than 95 percent of violent crimes.

In April, the accreditation arm of the American Society of Crime Laboratory Directors declined to order state and local labs to conduct reviews, but issued a public notice recommending that each laboratory evaluate the impact of improper statements on past convictions, reminding them of their ethical obligation to act in case of a potential miscarriage of justice.

FBI Lab officials say they have not been contacted by other labs about their review or who completed the FBI classes.


HUNTSVILLE, TX — A former Texas Tech graduate student convicted of a double slaying a dozen years ago has been executed.

Vaughn Ross received lethal injection Thursday evening for the January 2001 fatal shootings of an 18-year-old woman with whom he had been feuding and an associate dean at the university in Lubbock who was with her. He was pronounced dead at 6:38 p.m. CT.

Ross, from St. Louis, came to Texas Tech for graduate work in architecture. Ross was found guilty in the January 2001 fatal shootings of an 18-year-old woman with whom he had been feuding an associate dean at the university who was with her at the time. In his appeal to the high court, Ross argued his previous appeals attorneys neglected to note that his trial lawyers didn’t present evidence that may have convinced jurors to sentence him to life in prison.

A bicyclist spotted the bodies of Douglas Birdsall, 53, the associate dean of libraries at Texas Tech University, and Viola Ross McVade in a car in a gully at a Lubbock park. McVade was the sister of Ross’ girlfriend and was not related to the convicted killer.

Court documents said Birdsall had been looking for a prostitute and that a friend of McVade introduced him to her that evening. Prosecutors contend McVade was the intended target, and that Birdsall was at the wrong place at the wrong time.

Both victims were shot multiple times. Detectives said they linked Ross to the deaths after finding his and Birdsall’s DNA on part of a latex glove in the car. DNA tests on Ross’ sweatshirt also detected blood from both victims.

Ross, from St. Louis, came to Texas Tech for graduate work in architecture. When questioned by detectives, he acknowledged arguing and threatening McVade. He also acknowledged wearing latex gloves but said they were to protect his hands while he was doing some cleaning with bleach.

While in jail, Ross phoned his mother, who asked if he had any involvement in the slayings. He replied he “might have,” according to the tape-recorded call.

“I’ve always said a guy could never lie to his mama,” Matt Powell, the Lubbock County district attorney who prosecuted the case, said last week. “It was the closest thing we had to a confession.”

Authorities believed Bridsall and McVade were ambushed in an alley behind Ross’ apartment after Ross had ordered McVade’s sister to leave. Birdsall’s blood and glass from shattered windows of his car were found in the alley, as well as a shell casing matching casings inside Birdsall’s car.

Prosecutors believed the latex glove was torn when Ross moved Birdsall’s body from the front to the back seat so he could drive the car to the gully.

At least six other Texas prisoners have execution dates set for the coming months, including one later this month.

Source: AP, June 18, 2013