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The Fallibility of Forensic Evidence Argues Against the Death Penalty

May 12, 2012 Source : http://journalstar.com

A recent editorial in the Lincoln Journal Star of Nebraska concluded that experience with inaccurate evidence from crime labs shows that the death penalty cannot be trusted in the taking of life.  The paper called for the repeal of the death penalty based on a case in which the state’s CSI director tampered with evidence in a murder case. Recently, the Nebraska Supreme Court upheld the conviction of former CSI chief David Kofoed for planting evidence in a double murder. Kofoed placed a speck of blood in a car belonging to a suspect, which resulted in two innocent men being held in jail for several months. The editorial said such crime-lab error has also been found elsewhere: “You will be – or should be – appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence. The problems crop up in New York, San Francisco, Houston and many points in between. Sometimes the problem is sloppiness. Sometimes technicians are manufacturing evidence deliberately. Sometimes the science itself turns out to be untrustworthy.” The editorial cited a 2009 report by the National Academy of Sciences that criticized some of the science behind crime lab testimony. The report found that, other than DNA technology, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” and that, “Substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”  The editorial concluded, “The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future,” and thus people should “support repeal of the death penalty.”  Read full editorial below.

Editorial: Too fallible for death penalty

The case of the crooked crime scene investigator in Douglas County provides another glaring example of why the criminal justice system cannot be trusted to apply the death penalty.

Humans not only make honest mistakes, sometimes they plant evidence and lie.

The conviction of former CSI chief David Kofoed for tampering with the evidence in a double murder case was upheld earlier this month by the Nebraska Supreme Court.

Kofoed was convicted for planting a speck of blood in a car belonging to a suspect in the case. His bogus evidence resulted in two innocent men being held in jail for several months. Police even wrung a false confession out of one of them.

Fortunately for the two men, the case against them unraveled before they were tried. DNA evidence found on a ring and marijuana pipe found in the home belonged to a pair of Wisconsin teens. They later pleaded guilty to killing a Murdock couple while looking for money during a road trip.

If you think the Kofoed case is one of a kind, think again.

Just do an Internet search for “crime lab scandal.”

You will be — or should be — appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence.

The problems crop up in New York, San Francisco, Houston and many points in between. Sometimes the problem is sloppiness. Sometimes technicians are manufacturing evidence deliberately. Sometimes the science itself turns out to be untrustworthy.

Even the vaunted crime lab operated by the Federal Bureau of Investigation has come under criticism on more than one occasion. In 2004 FBI lab technician Jacqueline Blake admitted to submitting false DNA evidence in 100 cases. FBI metallurgist Kathleen Lundy admitted to lying on the witness stand. To her credit, she admitted her testimony was false before the murder trial was over.

A 2009 report by the National Academy of Sciences was harshly critical of some of the science behind crime lab testimony, such as using marks on a bullet to determine whether a bullet came from a certain gun. Other than DNA technology, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” the report stated.

The report concluded: “Substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”

The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future. If you don’t want blood on your hands, support repeal of the death penalty.

 

OHIO – Death as bargaining chip? Ohio prosecutor slammed

May 17, 2012 Source : http://www.coshoctontribune.com

COLUMBUS — Within days of a drug-related slaying in suburban Cleveland, six men were indicted on charges that carried the possibility of a death sentence. Six months later, all had been allowed to plead to lesser charges, including four who received probation and never went to prison.

In short, the men quickly went from facing the possibility of being strapped to a gurney and having 5 grams of pentobarbital injected into their veins, to prison sentences more typical for robbers and thieves.

“It probably was a negotiating tool,” said defense attorney Reuben Sheperd, who represented defendant Alex Ford. “You’ll be more motivated than you were in other circumstances.”

Such scenarios are typical in the county home to Cleveland, where prosecutor Bill Mason pursues dozens of offenders on capital charges each year at added expense to taxpayers and at the risk of some defendants ending up on death row for charges that would be minor elsewhere, even as the number of death penalty prosecutions plummets in Ohio and nationwide, according to an analysis of records by theAssociated Press.

Elsewhere in Ohio, prosecutors are pursuing only the most heinous crimes as death penalty cases and are refusing to plea bargain, or are using a 2005 law that allows them to seek life with no chance of parole and never place capital punishment on the table.

Mason denies he uses the death penalty as a negotiating tool but also says he never rules out the possibility of lesser charges as more information about a case comes to light.

The 2010 case in the suburb of Parma cost Cuyahoga County taxpayers more than $120,000 — the price of the experts and attorneys appointed because the cases involved the death penalty.

Defense attorneys have long complained about the high number of capital indictments in Cuyahoga County, a practice that precedes Mason but that he continued after first taking office in 2000. But now one of the state’s most conservative and pro-death penalty prosecutors is weighing in.

Joe Deters, prosecutor in Hamilton County, renewed questions about Cuyahoga County’s approach during meetings of an Ohio Supreme Court task force. The group, which meets again Thursday , is looking for ways to improve the state’s death penalty law.

“To use the death penalty to force a plea bargain, I think it’s unethical to do that,” Deters said in an interview.

Hamilton County, home to Cincinnati, has sent the most inmates to Ohio’s death row — 61 over 30 years — though the county has indicted fewer than 200 people in three decades. Deters doesn’t accept plea bargains once he decides to pursue a death penalty case.

Mason says a committee of assistant prosecutors reviews the evidence of each death penalty case and encourages defense attorneys to produce reasons that could weigh against the death penalty.

“When we seek the death penalty it is not to secure a plea bargain, but instead to equally apply the law,” Mason said.

Despite the higher number of capital indictments, Mason’s record of winning death sentences is no better than other counties, some of them smaller than Cuyahoga, with about 1.3 million residents.

From 2009 to 2011, for example, Cuyahoga County indicted 135 defendants on charges that could result in a death sentence, according to records maintained by Mason’s office. Only two of those offenders were sent to death row, including Anthony Sowell, convicted in 2011 of killing 11 women.

The rest either pleaded guilty, usually with the death penalty charges withdrawn, or were convicted but not sentenced to death. In six cases, charges were dismissed.

By contrast, Butler County in southwest Ohio, with 368,000 residents, recorded three death sentences during the same time but indicted just six people on capital charges.

“The proof of guilt in a death penalty case has to be near absolute, not a crap shoot,” said Butler County prosecutor Michael Gmoser . In addition, “The case has to shock the conscience of the community,” he said.

Other prosecutors and counties have faced similar criticism for high numbers of indictment. In Philadelphia, former district attorney Lynne Abraham was once dubbed “America’s deadliest DA” by The New York Times Magazine for her aggressive pursuit of the death penalty. Some African-American groups had criticized her for her death penalty stance.

In Arizona’s Maricopa County, home to Phoenix, capital cases were so numerous that in 2007 the state’s Supreme Court Chief Justice convened a task force to look at ways “to address the unprecedented number of capital cases awaiting trial” in the county.

Cuyahoga County brings so many death penalty cases that, in a twist on tough-on-crime politics, candidates running for prosecutor promised to vastly reduce the number of indictments. Mason is not running for re-election.

Mason’s approach runs counter to a 40-year-old U.S. Supreme Court decision that threw out the country’s death penalty laws in part over the arbitrariness of the laws in place at the time, said Ohio state public defender Tim Young.

The risk of someone ending up on death row for a crime that might be a far lesser offense elsewhere “seems like a wildly dangerous use” of the death penalty, Young added.

Just 78 inmates nationally were sentenced to death in 2011, the lowest number since the U.S. Supreme Court reinstated capital punishment in 1976, and nearly two-thirds lower than the 224 death sentences in 2000.

High numbers of capital charges, and the use of plea bargains in death penalty cases, have been examined in several states by the American Bar Association. The ABA’s 2007 review of Ohio’s death penalty system also cited Cuyahoga County’s high number of indictments.

In Kentucky, the ABA noted that the large number of capital indictments — dozens if not hundreds — compared with death sentences “calls into question as to whether current charging practices ensure the fair, efficient, and effective enforcement of criminal law.”

In Tennessee, a 2004 report by the state’s Comptroller of the Treasury that examined the law’s cost found widespread disparities with how prosecutors used the law, with some treating it as a “bargaining chip” to secure plea bargains. “Meanwhile, defense attorneys must prepare their cases, often without knowing the punishment the prosecutor intends to seek,” the report said.

OHIO – Death penalty for Ohio man in triple stabbing – Caron Montgomery

May 16, 2012 Source : http://www.reviewonline.com

COLUMBUS, — A three-judge panel on Tuesday handed down a death penalty verdict for an Ohio man after he pleaded guilty to killing a woman he lived with and her two children on Thanksgiving Day in 2010.

The Franklin County death verdict for Caron Montgomery of Columbus was the county’s first in a decade and also a relatively rare case of a death penalty verdict following a guilty plea.

The panel will formally sentence Montgomery to death May 22. On Tuesday, the judges found that the circumstances of the crime outweighed evidence that Montgomery presented as to why he should be spared, and that a death sentence was the appropriate punishment.

The three-judge panel “followed the law and rendered their verdict based upon the overwhelming evidence presented,” Prosecutor Ron O’Brien said in a statement. Montgomery’s attorney, Scott Weisman, declined to comment.

Montgomery, 38, pleaded guilty earlier this month to multiple counts of aggravated murder and single counts of murder and domestic violence.

Police found Tia Hendricks and her 2-year-old and 10-year-old children stabbed to death inside Hendricks’ Columbus apartment the day after the killings.

At least seven defendants have received the death penalty after pleading guilty before such panels over the past 30 years in Ohio, including another Franklin County man, Michael Turner, who pleaded guilty in 2002 to killing his estranged wife and her boyfriend.

That’s compared to dozens of cases where three-judge panels found defendants guilty and then sentenced them to death.

Turner remains on death row. Four of the seven defendants who pleaded guilty have since been executed.

After 20 years in prison, man cleared in ’86 Waukegan rape – Bennie Starks

may 15, 2012  Source : http://www.chicagotribune.com

Starks case dismissed

Lake County prosecutors have dropped rape charges against Bennie Starks, who spent 20 years in prison before DNA pointed away from him.

Assistant State’s Attorney Jim Newman appeared at a brief hearing and dropped the sexual assault charges.

“He is a free man and he is not guilty,” said Starks’ lawyer, Jed Stone.

Starks, dressed in a burgundy sport coat and black and white checked shirt, accepted a hug around the shoulder from another of his lawyers, Vanessa Potkin from the New York-based Innocence Project.

“This has been a great day,” Starks said.

As to his plans, he said, “Spend time with my grandkids and just…living.”

Starks, 52, of Chicago was convicted in 1986 of raping a 69-year-old woman in Waukegan. He was in the middle of a 60-year sentence when the appeals court ordered a new trial in 2006 and he was released on bond. As with three other recent Lake County cases, prosecutors insisted on his guilt even after DNA pointed toward someone else as the attacker.

The possibility of a retrial had been thrown into doubt by court rulings barring prosecutors from using the testimony of the victim, who identified Starks as the rapist.

She died several years ago, and a Lake County judge ruled in January 2011 that prosecutors could not use her past testimony at the retrial.

The state appeals court affirmed that decision in February, writing that Starks’ lawyers would not have a fair shot at cross-examining her and holding that the original cross-examination was inadequate.

Since February’s ruling, Starks has waited to learn whether prosecutors planned to retry him.

After the conflicting DNA evidence became public in the early 2000s, prosecutors responded much as they did to other cases involving forensic evidence suggesting a suspect’s innocence.

Prosecutors argued that the DNA did not clear Starks because the woman could have had consensual sex with someone else, although she said at trial she had not had sex in the weeks before the attack.

The woman identified him as the man who pulled her into a ravine and beat, bit and raped her. A dentist said bite marks on the victim matched Starks, and his jacket was found at the scene.

Starks said the jacket and money were stolen from him after he passed the evening in a local tavern, and the defense attorneys have called the scientific rigor of the bite-mark evidence into question.

In the early 2000s, testing turned up a genetic profile from another man on the victim’s underwear. Later, testing on a vaginal swab found DNA that didn’t come from Starks, and the appeals court ordered a new trial in 2006.

This morning, it first appeared that Starks’ wait to have his name cleared might continue.

Newman, the assistant state’s attorney, surprised Starks’ defense lawyers at the start of today’s hearing when, instead of immediately dropping the charges, he asked for a continuance while the appeals court considers Stark’s challenge to his battery conviction. Starks hopes to see that conviction — which stems from the same crime — wiped from his record.

Without pause, Judge John Phillips tersely declined that request and told prosecutors to make a decision on retrying Starks immediately. Newman left court for a few minutes to consult with his superiors, then returned to begin filling out paperwork for Starks’ case before the judge returned.

Stone, one Starks lawyers, approached Newman as he filled out a court form and smiled as he said, “That’s N-O-L-L-E,” a reference to the Latin phrase, nolle prosequi, which indicates a prosecutor is dropping charges.

When Phillips returned, Newman dropped the charges and hurried from the courtroom. He declined to comment on the decision.

ARIZONA – Samuel Villegas Lopez – Execution – RESCHEDULED June 27

Update 

May 23, Source : http://www.kpho.com

The Arizona Supreme Court has denied a petition to review the case of a death row inmate set for execution next week.

Lawyers for Samuel Villegas Lopez had asked the state’s high court to review a lower court’s order dismissing his petition for post-conviction relief on March 30.

The state Supreme Court issued its ruling Wednesday without comment. There’s no immediate response from Lopez’s attorneys.

The 49-year-old Lopez is scheduled to be executed by lethal injection May 16 at the state prison in Florence in what would be the fourth execution in Arizona this year.

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PHOENIX (Reuters) – Arizona’s top court issued a stay of execution on Tuesday for death row inmate Samuel Villegas Lopez, a day before he was scheduled to die by lethal injection, to address claims that he had been denied a chance at a fair clemency hearing.

Villegas Lopez was sentenced to death for raping 59-year-old Estafana Holmes and stabbing her to death in a violent, drawn-out assault at her Phoenix apartment in 1986

The Arizona Supreme Court rescheduled his execution for June 27 so that attorneys could address claims that he was denied a fair clemency hearing because some members of the state clemency board had not received a mandated four-week training course.

“We conclude that the interests of justice are best served by staying the pending execution and forthwith issuing … a new warrant of execution, for June 27,” the court said in its ruling.

“The period between now and the new execution date will allow training of new board members and a clemency hearing to be subsequently held by the board,” it added.

He had been due to die by lethal injection at 10 a.m. on Wednesday morning, at the state prison in Florence, some 60 miles southeast of Phoenix.

State pays for inmate bypass surgery, then executes him

May 15, source  : http://www.kpho.com

Watch the video : click here

Robert Henry Moorman received bypass surgery three months before he was executed.

Robert Henry Moorman received bypass surgery three months before he was executed.

 

 

 

 

Lynette Barrett’s eyes well up with tears when she talks about her husband, Murray, and his struggle to survive.

“Nine years ago last December,” Barrett said is when she discovered Murray had liver failure. “He needs a new liver,” she said.

Unable to work and with no health insurance, the Barretts found themselves under a mountain of debt and with an even larger bill on the horizon.

“He’s had three hospital stays in the last year and each of them has been over $50,000. Without insurance, we had to have $100,000 up front before they’d even consider a transplant,” said Barrett.

To raise money, the Barretts and other families in similar situations have had to become creative. They’ve heldpancake breakfasts, auctions, car washes and accept donations on their blog.

Since 2010, the state indigent healthcare system has purged more than 100,000 people from its rolls. Families like the Barretts no longer qualify for state aid.

State leaders say helping them is a luxury they just can’t afford. But a CBS 5 investigation found cases where state dollars have gone to lifesaving operations in one of the unlikeliest places.

That place is death row. 

Every inmate here is awaiting execution and in a strange quirk of the law, some of these condemned inmates are receiving the kind of state-funded medical care being denied to law-abiding citizens who don’t have health insurance.

In 1984, Robert Moorman murdered his adoptive mother and chopped her up into pieces. But in November of last year, Moorman received a quintuple heart bypass surgery at the taxpayers’ expense. He was executed three months later.

Why does the state pay for healthcare for prison inmates?

“Because there’s no choice,” said Daniel Pachoda, who is the legal director for the Phoenix office of the ACLU.

He said he can’t explain what happened to Robert Moorman, but the requirements of the death penalty may help explain it.

“That is a quirk in the law that people have to be medically and physically competent before they’re allowed to be executed,” said Pachoda.

But according to Pachoda, it would be a mistake to think that all inmates get the same treatment.

The ACLU recently sued the state, citing dozens of cases where basic medical treatment or antibiotics would have saved the lives of inmates or spared them from serious illness.

Lynette Barrett says the Moorman case does not make any sense to her. 

“It’s really hard to see somebody they’re going to execute in three months…what was the point of the bypass?” she asked.

Department of Corrections officials could not discuss any specific inmate medical questions, but they did say medical professionals are the ones who make the decisions about healthcare for inmates. And they insist that all inmates receive the same constitutionally required medical care.

ARIZONA – Arizona death-row inmate’s lawsuit heads to court – Samuel Villegas Lopez

May 14, 2012, Source : http://azcapitoltimes.com

Lawyers for an Arizona death-row inmate plan to argue the state’s clemency process is flawed as they make last-minute bids to stop his execution.

Attorneys for Samuel Villegas Lopez contend the execution should be delayed so new members of the state’s clemency board can be appointed. They are set to make their case Monday in Maricopa County Superior Court.

Separate proceedings will be held Monday before the U.S. 9th Circuit Court of Appeals in San Francisco, where lawyers for Lopez will challenge the state’s execution procedures and contend he was denied effective legal representation.

Lopez is scheduled to be executed Wednesday at a state prison in Florence for the 1986 murder of 59-year-old Estefana Holmes. The Phoenix woman was raped, robbed and stabbed in what court papers described as a “terrible and prolonged struggle.”

Lopez would be the fourth person executed by Arizona this year.

His lawyers say Lopez deserves clemency because the trial judge was never told he had brain damage and a difficult childhood.

The Board of Executive Clemency took no action during a May 7 hearing for Lopez when a lawyer for the inmate walked out after challenging the validity of the proceeding.

A lawsuit filed on behalf of Lopez two days later called the hearing a sham resulting from a revamping of the board’s makeup to avoid having clemency recommendations in high-profile cases land on the desk of Gov. Jan Brewer.

The lawsuit asked Superior Court Judge Joseph Kraemer to rule that Brewer’s recent appointments of three of the five members of the board were invalid. The suit cited alleged open meeting law violations by a committee that screen applicants.

“The three board members, rendered null and void by state statute, were equivalent to three empty chairs in the room,” Lopez’s attorneys wrote in a filing in the case.

As a result, Lopez has been denied his due-process right to have the board consider recommending that Brewer commute his death sentence to life in prison or grant him a reprieve delaying the execution, the lawsuit contends.

In court papers filed on behalf of Brewer and other state officials, state Solicitor General David Cole said clemency proceedings are legally a “matter of grace” that only entitle inmates to minimal due process.

On behalf of the state, Attorney General Kent Cattani also urged Kreamer to reject Lopez’s requests and said the inmate’s lawyers had an opportunity to present his case but chose not to do so.

Clemency is a political process decided by elected officials that is not subject to judicial review, Cattani said.

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TEXAS – Steven Staley – execution STAYED

May 14, 2012 Source : http://www.chron.com

HOUSTON (AP) — The Texas Court of Criminal Appeals on Monday stopped this week’s scheduled execution of a convicted killer whose mental health had become an issue in his appeals.

The state’s highest criminal court gave a reprieve to Steven Staley, 49, who was set for lethal injection Wednesday evening in Huntsville for the 1989 shooting death of a Fort Worth restaurant manager during a botched robbery.

“This is great,” said Staley’s attorney, John Stickels. “I’m very happy.”

Prosecutors contended Staley was competent for execution, but Stickels in his appeal to the court said that was accomplished only because a state judge in Fort Worth improperly ordered Staley be given drugs to make him competent so the state of Texas could kill him.

The appeals court spent much of the ruling’s three pages recounting Staley’s case in the courts and only in a final paragraph specifically addressed the appeal, saying the court had determined the execution should be halted “pending further order by this court.”

It gave no reason. Justice Lawrence Meyers dissented from his eight colleagues but issued no dissenting opinion.

“I don’t know what’s next,” Stickels said. “It just orders the execution stayed and doesn’t order anything else. I’m not going to do anything until they tell me.”

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TEXAS – Death Sentence Reviews Leave Unsettled Issues

may 13, 2012 source :http://www.texastribune.org

Stanley Schneider was shocked last year when Texas’ highest criminal court sent his death row client an early Christmas gift of sorts, ordering the trial court to re-examine evidence from a psychologist who had decided thatJohn Reyes Matamoros was mentally fit to face execution.

“We were hopeful their sending it back would mean something,” Schneider said.

But his hope flagged in March when, he said, two Harris County state district judges virtually rubber-stamped Dr. George Denkowski’s findings in the cases of Matamoros and a fellow death row inmate,Steven Butler. Denkowski, the psychologist who testified in the cases of 14 current Texas death row inmates that the convicted men were mentally fit for execution, was reprimanded last year after other psychologists and defense lawyers filed a complaint alleging that he had used discredited evaluation methods.

Lawyers for Matamoros and Butler, who have filed objections with the Texas Court of Criminal Appeals, say any findings by Denkowski should be disregarded. They said that the trial court judges — who are husband and wife — simply adopted Denkowski’s conclusions instead of examining reams of evidence from other psychologists that they said proved their clients were mentally retarded and ineligible for the death penalty.

“This is a perfect example of the state taking science and trying to prostitute it,” Schneider said, adding, “The role of the courts is to protect us from junk science.”

 

Judge Marc Brown, of Harris County District Court, who reviewed the Matamoros case, was in trial and did not respond to a request for comment. His wife, Judge Susan Brown, declined to comment on the Butler case because it is continuing. Calls to Denkowski were not returned.

But Roe Wilson, Harris County assistant district attorney, contended that the judges had disregarded Denkowski’s findings.

The judge’s findings in Butler’s case repeatedly refer to Denkowski’s findings, but Wilson said the references were “historical.”

“There was no consideration given and no mention given,” Wilson said.

The Supreme Court of the United States ruled in 2002 that states could not execute people who were mentally retarded. The court allowed states to decide on guidelines for determining whether a person was mentally retarded. Texas courts have adopted a three-part definition that requires the convicted inmate to have below-average intellectual function, to lack adaptive behavior skills and to have had these problems since an early age.

Denkowski conducted tests to determine whether defendants who might face the death penalty aligned with those definitions.

But other psychologists and defense lawyers complained that he artificially inflated intelligence scores to make defendants eligible for the death penalty. (Denkowski’s lawyer has said that he vigorously denies having violated any psychology board rules and that he used his best clinical judgment in making forensic evaluations.)

Last year, the Texas Board of Examiners of Psychologists agreed to a settlement with Denkowski in which it reprimanded him, but he did not admit guilt. He agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints.

 

Since that reprimand, the Texas Court of Criminal Appeals has asked trial courts to review at least six cases that included Denkowski’s work to determine what effect it had had on the case.

Defense lawyers argue that Denkowski’s conclusions should be completely excluded from those reviews.

“You can talk all day long about how you don’t want junk science used in these cases, but when you’re confronted with it, you have to take active steps to make sure it hasn’t contaminated the case,” said Kathryn Kase, executive director of the Texas Defender Service, which represents death row inmates.

The Butler and Matamoros cases are the first to be returned to the Court of Appeals.

Butler, who was also sentenced to life in prison for a separate conviction of aggravated sexual assault with a weapon, was sentenced to death in 1988 for the shooting death of Velma Clemons, a clerk at a dry-cleaning business.

Denkowski evaluated Butler, and he testified in the case in 2006. School records showed Butler had been classified as “educable but mentally retarded,” but Denkowski said nothing in the records indicated that he required special education. He noted that Butler could tell time and could recite his Social Security number, “highly atypical skills for a mentally retarded person.” He concluded that Butler’s I.Q. was borderline normal.

Similarly, Judge Susan Brown concluded that Butler’s poor academic performance reflected underachievement and poor choices, not lack of intellectual function. She also wrote that he had enough intellectual ability to plan, commit and then lie about the murder for which he was convicted.

Dick Burr, a defense lawyer, said the judge had ignored findings by experts hired by Butler’s lawyers, including Dr. Denis Keyes, a special education professor at the College of Charleston, and Dr. Jack Fletcher, a psychology professor at the University of Houston. Both found that Butler had a low I.Q. and was mentally retarded.  Fletcher — one of the psychologists who complained to the board about Denkowski’s work — said that Denkowski’s conclusion that Butler was mentally fit for execution “was based on outmoded, no-longer-accepted information.”

“Our evidence demonstrated very persuasively that Steven Butler has mental retardation,” Burr said.

Matamoros, whose criminal history included auto theft and burglary with intent to sexually assault, was convicted of the 1990 murder of 70-year-old Eddie Goebel, who was found in his bed with 25 stab wounds.

Denkowski concluded in 2006 that Matamoros was not mentally retarded. His low I.Q. scores and a psychologist’s finding in 1977 that at 14 Matamoros had a mild intellectual disability, Denkowski concluded, were a result of bilingualism and his rearing in a deprived environment.

Judge Marc Brown agreed, quoting from a federal court ruling in the case that in turn relied on Denkowski’s findings. Like Denkowski, the judge concluded that Matamoros’s ability to care for himself as an inmate and to plan and commit crimes also contradicted his claims of mental retardation.

Judge Brown’s findings discounted the evaluations of psychologists hired by Matamoros’s lawyers who found that he was mentally retarded.

Dr. Thomas Oakland, a psychologist and a professor at the University of Florida, reviewed Denkowski’s findings along with Judge Marc Brown’s ruling. Both, he said, showed a “reckless disregard” for established forensic psychology.

“Based upon my review of Denkowski’s affidavit and testimony, it is my opinion that Matamoros’s intelligence was and is significantly subaverage,” he wrote in an affidavit.

Wilson, the assistant district attorney in Harris County, disputed the inmates’ lawyers’ argument that the judges’ findings were largely copied from Denkowski’s work.

“I don’t think that is an accurate characterization, but that is something the Court of Criminal Appeals will determine,” she said.

Lawyers for Butler and Matamoros want the Court of Criminal Appeals to insist that the death row inmates’ claims be re-evaluated without any reliance on Denkowski’s work.

Schneider said the decision by the Court of Appeals in the two cases would also send a signal to other judges who are reviewing cases in which Denkowski had made evaluations. He said he hoped the court would continue to reject forensic methods that had been proven unscientific.

“Their role has to be that of the supergatekeeper of forensic science,” Schneider said. “They have to say we will not allow a proceeding tainted by junk science to go forward.”

Justice Department investigates 2 ex-prosecutors involved in federal death penalty case in Ga.

may 13, 2012 Source : http://www.therepublic.com

ATLANTA — The Justice Department is investigating two former federal prosecutors in Atlanta because of alleged misconduct in a death penalty case, the chief federal prosecutor here said.

U.S. Attorney Sally Quillian Yates said she reported Todd Alley and Matthew Jackson to the department’s Office of Professional Responsibility last month after U.S. District Senior Judge Clarence Cooper accused the pair of repeatedly deceiving him during pretrial litigation in the capital case of Brian Richardson, according to The Daily Report (http://bit.ly/K5JgeV ).

Cooper issued an order outlining his problems with the two lawyers during the penalty phase of Richardson’s trial after a jury had found him guilty of murdering a fellow inmate at the U.S. Penitentiary in Atlanta. The jury later deadlocked on the death penalty, leaving Cooper to sentence Richardson to life without parole.

Yates told the newspaper it was the second time she asked the department’s disciplinary arm to investigate Alley and Jackson in connection with Richardson’s case. She said she reported both prosecutors last year and pulled them from the case after public defenders accused the two of violating an order that had disqualified Alley from the case.

She said she called for the investigation after Richardson’s attorneys told her that Jackson, in a recorded conversation with another federal inmate, made inappropriate comments about the defense team. Richardson’s lawyers also accused Alley of taking multiple phone calls from the same inmate, a potential witness in the case against Richardson, even after he had been disqualified from the case.

She said it was the second time she has asked the department’s disciplinary arm to investigate the two.

Alley, who is now in private practice, declined to comment to The Daily Report. Jackson, who is now a federal prosecutor in Florida, couldn’t be reached for comment by The Daily Report. The two did not immediately return calls seeking comment from The Associated Press on Sunday.

Richardson’s defense team said in court pleadings and an interview with the newspaper that Alley and Jackson engaged in intentional and repeated misconduct. They cited recorded phone calls with the inmate in which Jackson disparaged the defense team. In one call, Jackson joked that if the inmate were to kill a defense attorney, “we’ll go light on you.”

Richardson faced the death penalty for the July 2007 killing of Steven Obara, 60, who was stabbed and choked before he was strangled to death. The inmate, who was abused as a child, told authorities he targeted his cellmate because Obara was serving a prison sentence on child molestation charges.

The death penalty case was a rarity in the federal court system, and prosecutors and federal defense lawyers devoted considerableresources to it. Authorities say Richardson was a cold-blooded killer who lulled Obara into believing they were friends and then turned on him. But his defense team argued that Richardson’s violent past was rooted in an abusive childhood that led to mental illness.

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