Month: February 2014

More evidence emerges that Texas almost certainly executed an innocent man. Todd Willingham-Yet another reason why our error-prone justice system should never have to the power over life and death.

february 27, 2014 (nytimes)

In the 10 years since Texas executed Cameron Todd Willingham after convicting him on charges of setting his house on fire and murdering his three young daughters, family members and death penalty opponents have argued that he was innocent. Now newly discovered evidence suggests that the prosecutor in the case may have concealed a deal with a jailhouse informant whose testimony was a key part of the execution decision.

The battle to clear Mr. Willingham’s name has symbolic value because it may offer evidence that an innocent man was executed, something opponents of the death penalty believe happens more than occasionally. By contrast, Justice Antonin Scalia wrote seven years ago that he was unaware of “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Mr. Willingham was convicted on charges of setting the 1991 fire in Corsicana, Tex., that killed his three children, and was sentenced to death the next year. The conviction rested on two pillars of evidence: analysis by arson investigators, and the testimony of a jailhouse informant, Johnny Webb, who said that Mr. Willingham had confessed the crime to him.


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Mr. Willingham was convicted and executed in the killings. Credit Associated Press

The arson investigation has since been discredited; serious questions were raised about the quality of the scientific analysis and testimony, which did not measure up to the standard of science even at the time. But the prosecutor who led the case shortly before Mr. Willingham’s execution argued that even though the arson analysis had been questioned, the testimony of Mr. Webb should be enough to deny any attempt for clemency.

In recent weeks, as part of an effort to obtain a posthumous exoneration from the Texas Board of Pardons and Paroles and Gov. Rick Perry, lawyers working on Mr. Willingham’s behalf say they have found evidence that Mr. Webb gave his testimony in return for a reduced prison sentence. Evidence of an undisclosed deal could have proved exculpatory during Mr. Willingham’s trial or figured in subsequent appeals, but Mr. Webb and the prosecutor at trial, John Jackson — who would later become a judge — explicitly denied that any deal existed during Mr. Webb’s testimony.

In September, lawyers from the Innocence Project in New York filed an official request with the board to exonerate Mr. Willingham, citing the flawed fire science and Judge Jackson’s subsequent actions in the Webb case: efforts to cut Mr. Webb’s prison time and to downgrade the charges after the Willingham trial. The Innocence Project also contends that prosecutors suppressed an effort by Mr. Webb to recant his testimony.

But recantations in criminal cases are relatively common, said Walter M. Reaves Jr., a criminal defense lawyer who has worked on Mr. Willingham’s case, so the biggest open question has been whether Judge Jackson and Mr. Webb had made a deal. Judge Jackson, who has retired from the bench, continued to insist there was no deal, even in an interview last year.

What has changed is that investigators for the Innocence Project have discovered a curt handwritten note in Mr. Webb’s file in the district attorney’s office in Corsicana. The current district attorney, R. Lowell Thompson, made the files available to the Innocence Project lawyers, and in late November one of the lawyers, Bryce Benjet, received a box of photocopies.

As he worked through the stack of papers, he saw a note scrawled on the inside of the district attorney’s file folder stating that Mr. Webb’s charges were to be listed as robbery in the second degree, not the heavier first-degree robbery charge he had originally been convicted on, “based on coop in Willingham.”

Mr. Benjet recalled a “rush of excitement,” he said, and thought, “This is what we’ve been looking for.”

The Innocence Project submitted the note, which is not dated or signed, in a new filing to the board asking that it be included as part of its September request for a pardon.

Barry Scheck, co-founder of the Innocence Project, called the note a “smoking pistol” in the case.

“We’re reaching out to the principals to see if there is an innocent explanation for this,” he said. “I don’t see one.”

Judge Jackson did not respond to several requests for comment.

Mr. Thompson, the district attorney, said that while he willingly complied with the request for the Webb files, he had no opinion as to what happened during the Willingham trial in 1992. “I wasn’t even a college graduate yet,” he said.

As for Mr. Webb, he said, the robbery that put him in a cell with Mr. Willingham was not his only brush with the law. “I’ve also prosecuted him,” he said. “The D.A. before me prosecuted him, and the D.A. before him prosecuted him.”

Mr. Scheck said that the Willingham case suggested a fundamental weakness in the justice system: If Mr. Webb’s testimony “was really based on a deal and misrepresentation, then the system cannot be regulated,” he said. Under those circumstances, “you cannot prevent the execution of an innocent person.”

Even if the board ultimately agrees with Mr. Willingham’s advocates, the final decision will rest with Governor Perry (who has called Mr. Willingham “a monster” who killed his children) or with his successor in 2015.

Mr. Willingham’s stepmother, Eugenia Willingham, said: “I’m real thrilled that all this has come to light. We’ll see what happens. I can’t help but be hopeful.”

His cousin Patricia Cox said that if an exoneration does occur, the family has no plans to press for damages. “We’re not asking compensation,” she said. “We’re asking justice.”

COLORADO -Judge to rule if death penalty case against Montour will be postponed

february 27, 2014 (Denverpost)

Less than a week before opening arguments are scheduled to begin in the death penalty case against an inmate who beat a corrections officer to death, prosecutors are asking the judge to eliminate several defense witnesses or postpone the trial.

More than 11 years after Edward Montour killed 23-year-old Eric Autobee, jury selection in his second trial began on Jan. 6. During jury selection, defense attorneys filed a motion asking the judge to hear new evidence they say proves Montour was wrongfully convicted in 1998 of killing his 11-week-old daughter, Taylor.

On Thursday, Douglas County District Court Judge Richard Caschette will hear arguments about Montour’s 1998 conviction, whether more than a dozen defense witnesses will be allowed to speak at trial and if the trial will be postponed.

Opening arguments are scheduled to begin on Tuesday.

Montour was serving a life sentence for her death when he beat Autobee to death in the kitchen of the Limon Correctional Facility in 2002. He plead not guilty by reason of insanity in August.

But defense attorneys filed a motion on Feb. 2, arguing that Taylor’s death was an accident, not a homicide. Montour repeatedly told authorities in 1997 that he dropped Taylor — who defense attorneys now say had an undiagnosed bone disease — as he stood up from a rocking chair.

On Tuesday, almost 17 years after Taylor’s death, the El Paso County Coroner amended the manner of death on Taylor’s death certificate from homicide to unknown. Based on the amended death certificate, defense attorneys have asked the judge to drop the death penalty against Montour.

Prosecutors filed a motion on Wednesday, asking the court to eliminate some of the defense witnesses connected to arguments about Montour’s 1998 conviction because of untimely notice, incomplete endorsements and a delay in providing the prosecution with reports. If the judge allows the witnesses to speak at trial, prosecutors are asking him to postpone the trial “for the months needed” to evaluate and respond to the experts they say the defense has been “secretly cultivating for many months.”

According to the prosecution’s motion, defense attorneys have repeatedly violated court orders without punishment by filing motions and introducing witnesses well beyond deadlines set by the judge. Repeated violations created “an intended and significant tactical disadvantage,” prosecutors argued.

Defense attorneys filed a response to the motion Thursday morning, objecting to both of the prosecution’s requests.

According to defense attorneys, prosecutors have been on notice since late 2012 that defense attorneys were investigating and would likely challenge Montour’s prior conviction.

Postponing the trial would make the jury biased and prevent Montour from receiving a fair trial, defense attorneys argue. The jury selection process would likely have to be redone.

A total of 3,500 jury summons were sent out before jury selection started in January.

Eric Autobee’s father, Bob, will be at the hearing on Thursday. Bob Autobee, who originally supported seeking the death penalty against Montour, has forgiven his son’s killer in recent years.

In past months he has become a public opponent of the death penalty.

On Wednesday, Caschette ruled that the Autobee family may not ask a jury to spare Montour the death penalty if he his convicted. He may, however, tell the jury about Montour’s character.

FLORIDA – Opening statements begin in death penalty case resentencing – Richard Michael Cooper

february 26, 2014 (tampabay)

LARGO — A jury has been selected and opening statements are scheduled to start at 2 p.m. Wednesday in the resentencing of Richard Michael Cooper, who has been on death row for 30 years after being convicted in a triple murder.

A federal appeals court threw out Cooper’s death sentence in 2011 after finding that a jury should have heard evidence of abuse Cooper suffered as a child during the sentencing phase of his trial.

It took a day and a half to seat a jury to hear the evidence on what sentence Cooper should receive for his role in the 1982 deaths of Steven Fridella, Bobby Martindale and Gary Petersen — remembered since as the “High Point murders.”

Cooper’s guilt is not in dispute. On the morning of June 18, 1982, Cooper and three others — Jason Dirk Walton, Terry Van Royal and Jeffrey Hartwell McCoy — drove to Fridella’s Largo residence looking for cocaine or money.

They parked a distance away and, wearing ski masks, crept toward the home at 6351 143rd Ave. Among them they carried a .357 Magnum revolver, a .22 rifle and a 12-gauge shotgun, according to court records.

They had originally planned to rob the men inside while they slept. But someone recognized one of the intruders, and the plan changed.

Fridella, Martindale and Petersen were bound with duct tape and forced to lie on the floor. Cooper, then 18, confessed to shooting Fridella twice with the shotgun. Cooper’s attorneys called no witnesses in his defense, arguing that he was under the spell of Walton, whom Cooper had described as “a Charles Manson-type figure.”

Cooper’s conviction and sentence were upheld on appeal. In 2011, the federal 11th Circuit again affirmed the conviction but tossed out the death sentence because of evidence the first jury never heard. That included frequent beatings at the hands of his hard-drinking father, Phillip “Socky” Cooper, who earned his nickname as a Golden Gloves boxing champion.

The elder Cooper beat his children with “boards, switches, belts and horse whips,” leaving welts all over their bodies, sometimes for offenses as small as not knowing their multiplication tables.

The abuse was so constant, a school principal, fearing he was making things worse, “stopped calling their father when Cooper would get in trouble because Cooper would show up at school beaten and with bruises all over him,” the court said.

Cooper’s stepbrother and sister also said no one had contacted them to testify at the first trial.

The Truth About The Death Penalty … And What You Can Do About It – Myth and Truth

february 26, 2014 (huffington)

Currently, 32 states use the death penalty, but does it really accomplish its intended purpose?

Though a majority of Americans — 55 percent — support the death penalty for persons convicted of murder, more and more people in the U.S. aren’t so sure, according to a 2013 Pew Research poll. Support for the death penalty has dropped by 23 percent since 1996, and new information is leading to renewed conversations around abolition.

Earlier this month, a study from the University of Washington found that jurors were three times more likely to sentence a black defendant to death as compared to a white defendant in Washington state, according to the Associated Press.

Revelations around inequality of sentencing are not the only complications to capital punishment. AP also reported that the EU’s firm stance against the death penalty has led to European countries refusing to export execution drugs to the U.S., resulting in a shortage of drugs used for lethal injections.

As the debate about the death penalty wages on, it’s time to take a closer look at capital punishment in the United States — and separate fact from fiction:

Myth: The death penalty makes good fiscal sense. It costs less than paying for a convicted murderer to live out their natural life on the state’s dime.
Truth: While the cost discrepancy varies from state to state, pursuing and issuing the death penalty is more expensive than imprisoning someone for life, according to Amnesty International. Conservative estimates by the California Commission for the Fair Administration of Justice determined that California could save $125.5 million annually by abolishing the death penalty.

Myth: Only the most heinous criminals are put to death.
Truth: Almost all of the inmates on death row were not able to afford to hire private counsel, according to Amnesty International. This means that the likeliness of ending up on death row is directly related to socio-economics, not the relative brutality of the crime. Race also plays a key role. Amnesty International notes that, 77 percent of death row inmates have been executed for killing white victims. This is grossly disproportionate considering African-Americans make up roughly half of all homicide victims.

Myth: We only use the death penalty when we are absolutely certain of a criminal’s guilt.
Truth: Since 1973, 143 people have been released from death row, according to the Death Penalty Information Center. Each of these 143 individuals were either acquitted of all charges, had all charges dismissed by the prosecution or were granted a complete pardon based on evidence of innocence.

Myth: Use of the death penalty is a good deterrent for would-be criminals.
Truth: According to FBI data, states that have abolished the death penalty have homicide rates consistent with or below the national rate.

Myth: Lots of countries use the death penalty.
Truth: In 2012, 21 countries around the world used the death penalty, National Geographic reported. The United States ranked fifth in number of executions, coming in behind China, Iran, Iraq and Saudi Arabia, and ahead of Yemen and Sudan.

Myth: Lethal injection is the United States’ preferred method of execution because it’s humane and doesn’t cause the condemned any pain.
Truth: There’s split opinion within medical and legal communities on the pain experienced by the condemned during lethal injection, and whether or not it constitutes “cruel and unusual punishment” as prohibited by the Constitution. However, recent shortages of the drugs used in the lethal injection cocktail have forced states to try new, untested drug combinations. In January, 53-year-old Dennis McGuire experienced a prolonged 15-minute execution under an experimental two-drug cocktail, as reported by the Associated Press.

Support for the death penalty continues to drop. If you find yourself on this side of the issue, here’s what you can do about it.

  • Educate yourself by learning more about the issue
  • Work with organizations working to abolish the death penalty in your state.
  • Make your voice heard by submitting a video or written statement to the National Coalition to Abolish the Death Penalty’s 90 Million Strong campaign.




Man has witnessed all of Florida’s executions in the past 25 years

february 26, 2014

JACKSONVILLE, Fla. — John Koch has a plastic container of manila envelopes that he sorts through rarely.

Each envelope contains hand-written notes, usually a script, and a piece of audio that is mostly cassette tapes.

“Now I’m putting them on CDs, I’m getting smart now,” said Kock.

The envelopes are dated with name written on them. The names represent every Florida inmate who’s received the death penalty in almost the last 25 years, some of whom have been the subject of Oscar-winning films.

“I saw Aileen Wuornos go,” he said.

Others like Allen Lee Davis of Jacksonville become known for a lavish request.

“His last meal was a large lobster tail, fried potatoes, half a pound of shrimp. This man was a large man,” Koch said.

Koch’s also documented a notorious murderer who went down in state history.

“I watched also the first woman to be executed in the state of Florida,” he said “That was Buenoano.”

Koch landed his front row seat at the hands of a policy within the Florida Department of Corrections. It allows news reporters to serve as witnesses during an execution.

“They give you two pencils and they give you a notebook to write on,” Koch said.

Koch is a Florida native who has been on the radio in the Live Oak area since the mid-1970s. He’s as much as an institution as the Dixie Grille where he likes to grab breakfast from time to time.

Koch began witnessing executions after one of Ted Bundy’s victims was found near Suwanee River State Park.

“I was there the day Robert Leonard, then Sheriff Robert Leonard, brought out the little girl’s body,” he said. “And I broke the story.”

About a decade later when Bundy was set to be electrocuted in 1989 Koch made sure he saw the story through. “And I started fighting on my end to get in there.”

He says he vividly remembers what happened when Bundy walked into the room.

“He looked over at the chair and you could see him give up,” Koch said. “That moment, that moment, he realized he ain’t going nowhere. It’s over.”

Koch says he also realized no one had ever regularly reported on what happens when an inmate is brought in to die. “What was the process? How does it work? What’s going on?”

So, he chose to continue witnessing executions as a way to inform people about a decades-old process that’s largely private and controversial. To this day members of the Catholic Church hold signs outside the Duval County Courthouse to show their opposition to capital punishment.

“Punishment is not the answer. The answer is you get the person to change. And it doesn’t change the horror that’s gone on or the loss that’s gone on,” says a protester outside the courthouse.

Koch though refrains from opinion and tries his best to remove himself from what’s happening in front of him.

“What’s your immediate feeling after watching somebody die? Nothing really,” he said. “Because they would have no feelings for you, none whatsoever.”

Each time he just writes down what he sees.

“I’ve always watched the hands. That always tells me a lot, whether they are nervous, they’re calm,” Koch said. “You can see the communication going back and forth between the team leader and the executioner.

“It’s gory. I hate it. It’s not fun watching people die whether they deserve it or not. I can feel the soul being wrenched early before it’s time. I sense all of that, but I put that aside and I’ve got 30 seconds to tell you a very important story.”

In all Koch has reported on the death of 63 Florida inmates and he doesn’t have plans to stop. He says people tell him to turn what’s inside his manila envelopes into a book.

But for now, he wants to stick to the only job he says that gives him goose bumps.

“Yeah, yeah, see, look at the goose bumps. I still get them and that is the reason I do any of this.”

Oklahoma death row inmates sue over drugs’ secrecy

february 26, 2014

OKLAHOMA CITY (AP) — Two Oklahoma death row inmates scheduled to be executed next month sued state corrections officials Wednesday for details about the drugs that will be used to execute them, including their source.

Under state law, no one may disclose who provides Oklahoma with the three drugs it uses to execute condemned prisoners. Lawyers for Charles Warner and Clayton Lockett fear the men could suffer severe pain if Oklahoma is allowed to maintain a “veil of secrecy.”

“Plaintiffs have no means to determine the purity of the drug which may be used to execute them, and whether that drug is contaminated with either particulate foreign matter or a microbial biohazard that could lead to a severe allergic reaction upon injection,” the lawyers wrote in their state court lawsuit.

Lockett is to be executed March 20 for the 1999 shooting death of a 19-year-old Perry woman. Warner is to be executed on March 27 for the 1997 death of his girlfriend’s 11-month-old daughter. The men seek a restraining order that would halt their executions. A hearing on that will be held Tuesday before District Judge Patricia Parrish in Oklahoma City; clemency hearings set for this week and next week remained on the Parole and Pardon Board’s schedule Wednesday. .

Oklahoma shields its drug suppliers’ identities to protect them from potential reprisal, Department of Corrections spokesman Jerry Massie said Wednesday. He said the agency was aware of the inmates’ lawsuit but declined to comment. Diane Clay, director of communications for Oklahoma Attorney General Scott Pruitt, said the office had received the petition and is reviewing it.

“We can confirm that Oklahoma is in compliance with the law,” Clay said.

Oklahoma and other states that have the death penalty have been scrambling for substitute drugs for lethal injections after major drugmakers — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments.

Under previous protocol, inmates continuously received a sedative while paralytic drugs actually killed them. As supplies dried up, Oklahoma dropped its requirement that inmates receive a sedative continuously and began to shield what it would disclose.

“Thus, at the same time that defendants are turning to untested and untried execution methods, they are also shielding information about the execution methods from meaningful disclosure or scrutiny,” the lawyers wrote. They also claim the executions should be stopped because the Department of Corrections purportedly changed the protocol without sufficient notice to the public.

Lawyers for the Oklahoma inmates do not challenge the men’s guilt or the use of lethal injection, just the state’s policy of not disclosing how it intends to kill the two.

“If you don’t know what they’re using there’s no way to know if it is cruel and unusual punishment,” Susanna M. Gattoni, one of the lawyers representing Lockett and Warner, said in a telephone interview.

They suggest that a Tulsa compounding pharmacy challenged by lawyers for a Missouri death row inmate who was executed early Wednesday may have supplied Oklahoma with its lethal drugs. The Apothecary Shoppe, in a deal with lawyers for Michael Taylor, agreed not to supply pentobarbital, a sedative, for Taylor’s execution.

They also say a veterinary medicine supplier may have provided the pentobarbital to the state; the drug is also used to euthanize animals.

Warner and Lockett’s lawyers said in their lawsuit that compounding pharmacies are not regulated by the U.S. Food and Drug Administration and that, as a result, there is a risk that the two Oklahoma inmates could suffer as they die.

A spokeswoman for The Apothecary Shoppe didn’t immediately return calls seeking comment.

Compounding pharmacies, which custom-mix prescription drugs for doctors and patients, are generally overseen by state boards, although a law adopted last year allows larger compounding pharmacies to register with the FDA and submit to federal inspections.

Gattoni and her colleagues say substandard pentobarbital could leave inmates fully conscious as drugs to paralyze them and stop their heart are administered.

“There will be at most only a few seconds for them to make any physical or verbal sign of distress before they are paralyzed,” they wrote.

“Plaintiffs will experience extreme pain and suffering when the third drug — potassium chloride — is administered to stop their hearts, but their paralysis by vercuronium bromide will mask their suffering from witnesses.”

The lawyers say they believe Oklahoma used compounded pentobarbital as the first drug in a January execution. Michael Wilson’s final words were, “I feel my whole body burning,” and then he didn’t move.


february 26, 2014

Authorities say 48-year-old Paul Augustus Howell was pronounced dead at 6:32 p.m. Wednesday after a lethal injection at Florida State Prison

Howell’s last words “I want to thank the Fulford family,” Howell said. “They were pretty compassionate, and I’ll remember that.”

UPDATE  4:30pm

Howell’s last meal was a peanut butter and jelly sandwich, according to a Department of Corrections spokeswoman.

The DOC also says Howell had one friend visit and met with his Catholic spiritual adviser.

He is set to be executed by lethal injection.

The man who built a bomb that killed a Florida Highway Patrol trooper is scheduled to be executed by lethal injection.

Drug trafficker Paul Howell is set to die for the February 1992 murder of Trooper Jimmy Fulford at 6 p.m. Wednesday at Florida State Prison.

Howell rented a car and paid another man to deliver a gift-wrapped box to a woman in Marianna. Along the way, Fulford pulled the man over for speeding on Interstate 10 just east of Tallahassee.

The man gave Fulford a false name and birthdate and was arrested. Howell was called about the rental car and asked if Fulford had permission to be driving it and never warned the dispatcher the bomb was in the trunk.


February 26, 2014

Michael Taylor has been executed by Missour using compounded pentobarbital

Final Meal:

Taylor did not use his right to request a specific last meal and was served potato soup and a sandwich.

Missouri has gone ahead with executing a death-row prisoner using a drug from an unspecified source. The lethal injection of pentobarbital used to kill Michael Taylor, 47, who raped and murdered a teenage girl in 1989, was presumed to have been bought by the state from a compounding pharmacy – a supply arrangement that sparked legal challenges over the potential cruelty of using an unregulated drug.

In a brief phone conversation with The Kansas City Star just hours before the execution, Taylor said he had written a letter to Ann’s parents and that a prison official assured him it would be offered to them. In the letter, Taylor said, he expressed “my sincerest apology and heartfelt remorse.”

“I hope that they’ll accept it,” Taylor said of the letter.

Taylor offered no final statement. He mouthed silent words to his parents, two clergymen and two other relatives who witnessed his death. As the process began he took two deep breaths before closing his eyes for the last time.

Taylor was pronounced dead shortly after midnight. Federal courts and the governor had refused last-minute appeals from his attorneys, who argued that execution drugs purchased from a compounding pharmacy could have caused Taylor inhuman pain and suffering.

Taylor’s victim, 15-year-old Ann Harrison, was in her driveway holding her school books, flute and purse when she was abducted by Taylor and Roderick Nunley. The men pulled her into their stolen car, took her to a home, then raped and fatally stabbed the girl as she pleaded for her life.

Nunley also was sentenced to death and is awaiting execution.

In their appeal Taylor’s attorneys questioned Missouri’s use of an unnamed compounding pharmacy to provide pentobarbital. They also cited concerns about the state executing inmates before appeals were complete and argued that Taylor’s original trial attorney was so overworked that she encouraged him to plead guilty.

The Oklahoma-based compounding pharmacy Apothecary Shoppe agreed last week that it would not supply the pentobarbital for Taylor’s execution, which left Missouri to find a new supplier. The attorney general, Chris Koster, later disclosed that a new provider had been found but refused to name the pharmacy, citing the state’s execution protocol that allows for the manufacturer to remain anonymous.

Taylor’s attorneys argued use of the drug from an unspecified source could cause an inmate pain and suffering because no one could check if the maker was legitimate and had a record of producing safe drugs.

The official makers of pentobarbital refuse to sell it for executions.

AUDIO: Bernard interview 7:40
AUDIO: Post-execution news conference 8:23

James Bain – Freed by DNA after 35 years

James Bain’s case is unique. Not because he was wrongly convicted and freed by DNA evidence, overturning the entire case that convicted him. No, that stuff is commonplace now. What makes James unique is that he has the distinction of having served the longest amount of time behind bars who was ultimately freed on DNA evidence. And this highlights a huge problem. James was denied his requests for testing for years, saying that he had waited too long. It wasn’t until Florida passed a new law that allowed cases to be reopened for DNA testing that his fifth and final rejection was overturned on appeal, which led to his freedom. Such laws should be on the books in every state, no questions.


One night in 1974 in Lake Wales, Florida, someone broke into a home and took a 9 year old boy out of his bed to a local baseball diamond where the boy was raped. By the time he returned home, the police were already present. The victim described the perpetrator as between 17-18, whose name was Jim and who had a mustache and sideburns. The victim’s uncle, a principal at James’s school volunteered that that description fit James Bain. From that point forward the victim always referred to the rapist as ‘Bain’. The police went to Bain’s house where they found him. He had been home with his sister since approximately 10:30pm after attending a party and had fallen asleep watching television.

For the official identification of the perpetrator, the police arranged a photo lineup including Bain and only one other man with a mustache and sideburns! This does not make for an impartial identification. Not only that, according to the Florida Innocence Project, the police suggestively and improperly instructed the victim to pick out Bain’s photo (not the photo of the person who assaulted him) which the victim did.

The Trial

The case against Bain consisted mainly of the victim identification and the Serology findings from the victim’s underwear. Regarding the Serology findings, FBI Analyst William Gavin stated that the findings showed a blood group B and that Bain was AB with a weak A. Conversely, the expert for the Defense, Richard Jones testified that Bain was AB with a strong A and that he could not have been the rapist. The DNA evidence has shown which side was correct.

Post-Trial Chaos

As outlined in the opening, James had submitted for DNA testing several times and was each time rejected. I don’t know what it is about this system that makes it seem okay to deny someone DNA testing when their livelihood hangs in the balance. If not for the statute that enabled DNA testing on older cases and the appellate court confirming James’ right to have DNA testing, he would still be in prison today.

Beaming, Bain watched the quick proceedings in a Polk County courtroom, where Judge James Yancey told him, “I’m now signing the order, sir. You are a free man. Congratulations.”

As for Bain’s defense, aside from the defense testimony mentioned above, there were plenty of witnesses to James having been at the aforementioned party prior to going home. The location of the rape was a full two miles from the party James was attending and his presence was noted to the degree that he would not have been able to sneak away, commit the crime, and be home by 10:30pm – Too many people had seen him. However, the defense only called four witnesses for his alibi, most of which were family. In case anyone hasn’t noticed, calling the mother or sister to corroborate an alibi for a man accused of rape just isn’t going to cut it. That is not enough for reasonable doubt for a lot of people. You have to corroborate the alibi with witnesses that have no reason to lie. And you have to bridge these witness statements across one another so that even if one or two are questionable, the whole of the witness statements creates a picture that resonates with the jurors and strikes at the prosecution’s case. Needless to say, that wasn’t done here, and it could have been.


link source :James Bain – Florida Innocence Project

Race factors in execution

february 22, 2014(thedalleschronicle)

SEATTLE — Two years ago, when Washington’s Supreme Court was reviewing the death sentence assigned to a black man accused of raping and murdering a 65-year-old woman, Justice Charles Wiggins found himself troubled by numbers.

Juries in the state were more likely to sentence African Americans, Wiggins noted; they did so in 62 percent of cases involving black defendants versus 40 percent for white defendants. In a dissenting opinion, the justice suggested further study was needed to determine whether the trend was statistically significant.


A new report from a University of Washington sociologist aims to answer the question. It finds that while prosecutors have actually been slightly more likely to seek the death penalty against white defendants, jurors have been three times more likely to impose it against black ones, other circumstances being similar.


Expense, differences in application by county, and the high rate of overturned death sentences — rather than racial disparities — were the main reasons Gov. Jay Inslee cited this month when he announced a moratorium on executions under his watch. But if true, the report’s findings echo his worry that capital punsihment is “unequally applied,” even in Washington, a state many consider to have the nation’s most restrictive death-penalty system.


“It’s positive to see that prosecutors aren’t unfairly considering race in making decisions about when to seek capital punishment,” Inslee’s general counsel, Nicholas Brown, said after reviewing the report. “At the same time, it brings up a lot of unfortunate implications about juries.”


Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, said he has long known that prosecutors here aren’t more likely to seek execution against black defendants. But the association was less quick to accept the report’s findings on what effect a defendant’s race has on jurors, saying the study failed to control for some key factors that could help explain why some defendants received a death sentence while others didn’t.


The report, by Professor Katherine Beckett, was commissioned by Lila Silverstein and Neil Fox, attorneys for death row inmate Allen Eugene Gregory, a black man convicted of raping and murdering a white woman in Pierce County in 1996. Silverstein and Fox plan to submit the report to the high court as part of Gregory’s appeal next month.


Washington has executed five defendants under its modern death penalty law, adopted in 1981, and nine are on death row. Beckett reviewed the 285 cases involving adult defendants convicted of aggravated murder since 1981 for which trial reports are available. In 88 of those cases, the death penalty was sought, and in 35 of those, it was imposed. Many later had the sentences overturned.


Using the admittedly small sample size, Beckett’s team coded the cases for number of victims, number of prior violent convictions, number of defenses offered and number of aggravating factors alleged by prosecutors, and other circumstances. In a regression analysis, she found that among similarly situated defendants, blacks were three times more likely than whites to be sentenced to death.


“Washington is not a state that tolerates discrimination, even when it doesn’t involve a matter of life and death,” Silverstein said. “We can’t be putting people to death based on their race.”


But Pam Loginsky, a staff attorney at the prosecutor’s association, said Beckett’s report doesn’t prove that’s what’s happening and that it’s impossible to say why a single juror in any case might decide to block the death penalty. Under Washington law, a unanimous jury is needed to impose the death penalty; if there’s a single holdout, the sentence will be the only other alternative — life without the possibility of release.


“I don’t believe there is any conscious consideration of race, and I don’t believe the statistics bear out any impropriety based on race,” she said. “I can’t tell you that an individual juror in a given case doesn’t decide to extend mercy to the defendant because of his race, or because he has a cute smile, or because he resembles her favorite uncle. There can be any reason why a particular juror says, this person merits leniency.”


Loginsky pointed to what she described as several shortcomings with the study, noting that it did not control for factors that might well influence a jury’s determination. Those include the strength of a prosecutor’s case, the vulnerability of the victim, any mental illness of the defendant, and the nature of a defendant’s criminal record: “It lumps prior murderers in with prior robbers,” she wrote in an emailed critique.


Washington’s Supreme Court, which is charged with ensuring that capital punishment is administered proportionally, has previously said that “a review of the first-degree aggravated murder cases in Washington does not reveal a pattern of imposition of the death penalty based upon the race of the defendant or the victim.” But anti-death-penalty advocates are hoping to use momentum from Inslee’s moratorium to push the Legislature to abolish the punishment entirely.


Among the concerns the governor cited was the cost of capital cases and that whether prosecutors seek execution is “sometimes dependent on the budget of the county where the crime occurred.”


Beckett’s report bears out those geographic distinctions, noting that some counties, such as Thurston, request the death penalty in as much as two-thirds of their aggravated murder cases, while Yakima County, for example, has not sought execution at all in its nine death-eligible cases since 1981.