DNA profiling

Released From Prison, but Never Exonerated, a Man Fights for True Freedom

march, 31, 2012  source : http://www.nytimes.com

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

Mr. Cook has always claimed to be innocent of the murder of Ms. Edwards, a woman who lived in the same Tyler apartment complex. The case against him was largely circumstantial, including the words of a jailhouse informant who said that Mr. Cook had confessed to him and the recollections of a man who said that on the night of the murder, he and Mr. Cook had had sex and watched a movie that involved a cat torture scene.

The prosecution’s theory was that Mr. Cook, aroused by the torture scene in the movie, had left his apartment to rape and kill Ms. Edwards.

In the years after, every piece of evidence used to convict Mr. Cook was revealed to be bogus. The informant admitted he had lied as part of a deal with prosecutors, and the witness who claimed to have had sex with Mr. Cook told a grand jury that there was no sex and that Mr. Cook had not paid any attention to the movie. The prosecution had also suppressed evidence showing that Mr. Cook and Ms. Edwards had known each other casually, which explained a fingerprint found at the scene.

Mr. Cook’s verdict was overturned on a technicality in 1988. When District Attorney Jack Skeen of Smith County tried him again in 1992, the case ended in a mistrial. Another trial in 1994 resulted in a guilty verdict and a new death sentence, but two years later the Court of Criminal Appeals, the state’s highest criminal court, reversed that conviction, noting that “prosecutorial and police misconduct has tainted this entire matter from the outset.”

Mr. Cook was released on bail in 1997, but the state prepared to try him for a fourth time. He was presented with an option: plead guilty in exchange for 20 years, which he had already served, and the charges would be dropped. He refused. As the trial date approached, in early 1999, Ms. Edwards’s underwear was sent to a lab for modern DNA testing. Mr. Cook, certain he would be exonerated, gave a blood sample.

On the morning of jury selection, the district attorney made another offer: if Mr. Cook pleaded no-contest with no admission of guilt, the case would be dismissed and he could go on with his life. Mr. Cook considered the deal. He had suffered terribly during his 19 years in prison — he had been stabbed, raped repeatedly and had tried to kill himself, once slitting his own throat after severing his penis, which was reattached.

He took the plea deal. Two months later, the DNA results returned. The semen belonged to James Mayfield, a married man with whom Ms. Edwards had been having an affair.

By then Mr. Cook was trying to move on with his life, but it was harder than he had imagined. The physical and emotional abuse he endured in prison causes nightmares and suicidal urges. And the murder conviction made him a second-class citizen.

“I couldn’t get a job, couldn’t sign a lease,” he said. “We’ve had to move five times because people would find out about me. One woman threatened to put up posters in the neighborhood saying ‘Convicted murderer lives here.’ ”

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Meanwhile, Mr. Cook waits. He dresses only in black (he swears he will not wear any other color until he is exonerated), and with his dark eyes and white hair, he cuts a striking figure. What he wants more than anything else are life’s simplest things.

“All I want is to be able to put my name on a lease,” he said. “I want to be able to walk my dog and have my neighbors over for cookouts. I want to live a normal life.”

State Court Allows False-Confession Experts, but Bar Is High

march, 30  source : http://www.nytimes.com

ALBANY — New York’s highest court said for the first time on Thursday that expert testimony about false confessions should be allowed at trial if it is relevant to the facts of a case.

But the court also seemed to set a high bar for determining that relevance: In a 5-to-2 decision, the judges upheldthe conviction of a defendant, Khemwatie Bedessie, in the rape of a 4-year-old boy, arguing that the testimony of her expert witness was not germane to the specifics of her confession.

Still, the decision by the New York Court of Appeals was a welcome sign for defense lawyers and innocence advocates who have argued that police interrogation tactics can lead people to admit to crimes they did not commit. About a quarter of the convicts exonerated by DNA evidence nationwide gave false confessions, made self-incriminating statements or pleaded guilty, according to the Innocence Project.

“That the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom,” Judge Susan P. Read wrote in the majority opinion.

Vincent M. Bonventre, an Albany Law School professor, called the ruling “a big step.”

“The kind of evidence, which in the past people relied on more heavily than anything else, now the Court of Appeals is saying, ‘Yeah, we understand a lot of these confessions might be false,’ ” he said.

In her 21-page opinion, Judge Read also acknowledged what has become a hot-button issue at the Capitol: the videotaping of police interrogations.

“While electronic recording of interrogations should facilitate the discovery of false confession and is becoming standard police practice, the neglect to record is not a factor or circumstance that might induce a false confession,” she wrote.

Peter J. Neufeld, a co-director of the Innocence Project, said he hoped that acknowledgment would spur the State Legislature to act on a proposed measure to require the videotaping of all interrogations, one of the key pieces of legislation that defense lawyers are promoting.

“We’ll never know what actually happened there, because there was no videotape of the interrogation,” Mr. Neufeld said of the Bedessie case. (In fact, she confessed twice, and the second one was videotaped.)

Not surprisingly, Chief Judge Jonathan Lippman joined Judge Theodore T. Jones in his dissent, because both thought that the expert in the Bedessie case should have been allowed to testify. Judge Lippman has long advocated for greater protection againstwrongful convictions through things like the videotaping of confessions and changes in the way lineups are conducted. Judge Lippman commissioned a taskforce, co-chaired by Judge Jones, that in January recommended legislation to put those measures in place.

Although the court refused to overturn the conviction of Ms. Bedessie, who is serving a 20-year sentence, “It’s a wonderful decision for defendants in the future,” said Ronald L. Kuby, who represented her in the appeal.

Ms. Bedessie, a teacher’s assistant, was charged in 2006 with performing sexual acts on a 4-year-old boy under her supervision.

At her trial the following year, Ms. Bedessie testified that she did not do the things she had described doing with the boy, and had confessed to them only after a police detective told her she could either tell the truth and go home or “go to Rikers Island jail, where she would be beaten,” according to Judge Read’s decision.

Before her trial started, Ms. Bedessie’s lawyer asked the court to allow Dr. Richard J. Ofshe, an expert on false confessions who interviewed the defendant, to testify. The trial judge denied the request, declaring, among other things, that Dr. Ofshe’s testimony would not be of value to the jury.

The Court of Appeals ruled that Dr. Ofshe’s testimony would not have been relevant to this case, after examining a report he had submitted on behalf of Ms. Bedessie. “The body of his report was filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant’s version of her interrogation,” Judge Read wrote.

For instance, Judge Read wrote, Dr. Ofshe provided an analysis suggesting that the boy was coerced into the allegations, but that had nothing to do with whether Ms. Bedessie falsely confessed. Dr. Ofshe also failed to show any link between studies of false confessions and some of the tactics that the detective was said to have used to get Ms. Bedessie to confess, the judge wrote.

Judge Jones, in the dissenting opinion, called the majority’s conclusion “curious.” The report, he wrote, “involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession.”

TEXAS – Hank Skinner – one more innocent on the death row

Filmmaker Werner Herzog’s segment on Hank Skinner, who is on Texas death row and fighting to prove his innocence with more DNA testing.

official website : http://www.hankskinner.org/

Why is Alabama opposing DNA testing?

March 28, 2012  source :http://socialistworker.org

why is Alabama opposing DNA testing?

Rebekah Skelton reports on a case where an Alabama man’s life is at stake.

March 28, 2012

Alabama death row prisoner Thomas ArthurAlabama death row prisoner Thomas Arthur

THOMAS ARTHUR has been on Alabama’s death row for 30 years. He was convicted of killing Troy Wicker in 1982, but has always maintained his innocence. Recently, a federal appeals court stayed Arthur’s March 29 execution date over an issue about lethal injection, though that stay could be lifted at any time.

The real question, however, remains this: Will Thomas Arthur be executed in Alabama without being allowed to have DNA testing that could prove his innocence?

There is a piece of evidence, an “Afro wig” worn by Wicker’s killer as a disguise, that could be tested for Arthur’s DNA. The wig has already been tested once for DNA, after another Alabama prisoner, Bobby Ray Gilbert, confessed to Wicker’s murder in 2008. However, the testing was inconclusive–there wasn’t a match for Gilbert or Arthur.

Ultimately, the original judge decided that Gilbert’s confession wasn’t credible, and despite a lack of other physical evidence tying Arthur to the crime, she recommended that the Alabama Supreme Court deny Arthur’s appeal, which it did.

Now, Arthur’s defense team is asking for a more advanced DNA test, called a mini-STR DNA analysis, on the wig, but Alabama’s attorney general is fighting the request–arguing that this test wouldn’t be any more accurate than the previous one. On top of that, there is no law guaranteeing Arthur the right to further DNA testing.

“I am outraged that there is physical evidence that, if DNA-tested, would prove my father’s guilt or innocence conclusively. This testing could be done prior to his execution and would be paid for by the law firm handling his case,” said Arthur’s daughter Sherrie Stone. “If we are to continue executions in this country, laws must be put in place in which DNA testing must be allowed at all stages of the process. There is a chance we are executing innocent people. I know because my father is one of those people.”

If the lawyers have offered to pay for the testing, what could possibly be the problem? If the test shows that Arthur’s innocent, the state of Alabama can rest easy knowing they didn’t condemn an innocent man to death. And if it show’s he’s guilty, it would only affirm what the state has already convicted him of, at no cost to them.

However, as Andrew Cohen pointed out in a February article in The Atlantic, the general consensus among prosecutors and judges is to value “finality” in cases, rather than “accuracy.” Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, outlined this position in a 2000 “Frontline” interview, saying, “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important.”

– – – – – – – – – – – – – – – –

IT SHOULD be clear to anyone with a conscience that if there’s even a small chance that someone might be innocent after being convicted, the court should do everything in its power to ensure they have the right person–especially when someone’s life is at stake.

But lately, prosecutors have been fighting harder than ever to keep defendants from having access to post-conviction DNA testing. Hank Skinner has been on Texas death row since 1995. His case has many similarities to Arthur’s, such as DNA evidence the court is denying him the right to have tested and a heavy emphasis on an eyewitness who at one point or another recanted.

“Since these guys are on their electoral deadlines, their finality has nothing to do with accuracy,” said Skinner’s wife Sandrine Ageorges-Skinner. “You can’t rush justice.”

The goal of any justice system has to be to find the truth. As Sandrine said, since no justice system is ever going to be infallible–there have been 289 post-conviction DNA exonerations in the U.S., according to the Innocence Project–prosecutors and judges must be willing to admit that they might have convicted the wrong person.

Post-conviction DNA testing must be granted to prisoners whose guilt is questionable–o matter what the cost, and especially when it could be an innocent person who’s paying the ultimate price.

First published at The New Abolitionist.

Amid tragedy, activists promote ‘Better Days Ahead’

march, 26, 2012  source : http://www.roosevelttorch.com

Last year, the execution of Troy Davis execution sparked outrage around the world. Davis, who was wrongfully convicted of killing a police officer in 1989, became a symbol of worldwide artistic and political movements against racial injustice and wrongful convictions.

At the Wicker Park Arts Center Friday, Occupy Chicago Rebel Arts Collective (OCRAC) hosted a tribute event called “Better DaysAhead.” The event was to pay remembrance to Davis and his sister, Martina Correia. Correia, who passed six months after Davis, was an advocate on Davis’ behalf and fought against the death penalty.

“We’ve learned quite a bit of how the legal system fails in the last few decades,” said Paul Cates, Innocence Project communications director. He explained that 25 percent of wrongfully convicted cases are due to misidentification. False confessions account for another 25 percent and 50 percent is attributed to invalidated forensic science. In Davis’ case, there was no DNA evidence, according to Cates.

OCRAC, a project of Occupy Chicago’s Arts & Recreation, hosts events like the Davis tribute to connect local artists and to highlight the human effect of unchanging laws and wrongful convictions.

“OCRAC exists for the purpose of connecting with artists of all stripes…and mobilizing the power of art in the name of a more just and equal world,” according to the OCRAC website.

Artists and attendees reflected on the tragedies and celebrated Davis’ and Correia’s lives at the “Better Days Ahead” event. Speakers from various local anti-racism organizations like Amnesty International, Occupy 4 Prisoners, and Campaign to End the Death Penalty attended the tribute.

FM Supreme, ‘Two-time Louder than A Bomb’ city-wide high school poetry competition winners, performed at the event. The group wrote a song last year, dedicated to Davis and Correia.

“FM Supreme in particular was active in trying to save Troy,” Alex Billet said, an OCRAC artist and Rebel Frequencies founder, a journalism website focused on political activism through music. “Word is that Supreme had the chance to perform the song for her (Correia) before she passed away.”

An additional memorial was held for Trayvon Martin, in which a local artist set up a framed photo of Martin along with candles, and placed iced tea and Skittles, which Martin was carrying in his pockets at the time of the shooting.

Billet felt the impromptu memorial was important.

“Troy Davis and Trayvon Martin are both victims of the same sick, violent and virulently racist system,” Billet said in an email statement.

Ed Yohnka, director of communications and public policy at ACLU Illinois, believes tributes like “Better Days Ahead” help to spread awareness about injustices in the legal system and inspire people to right those injustices in various ways.

“I think stories like Davis’ have a powerful impact on how people relate to policy issues, and how it could affect them,” said Yohnka. “For example, President Obama’s statement in regards to relating to Trayvon Martin as a son. Comments like that connect people to issues. It’s very, very powerful.”

OCRAC hosts several events a month to promote activism through art. The next

OCRAC-sponsored event is Chicago Spring, at the Chicago Board of Trade on April 7 at noon.

 

The barbarity of life on America’s death row Werner Herzog and Hank Skinner

march 23, 2012 source : http://www.thisiscornwall.co.uk

They have the death penalty in 34 American states – 16 of which currently perform executions with lethal injections. Until only recently, you could elect to die by firing squad in Utah.

German filmmaker Werner Herzog laid out his cards when he interviewed Hank Skinner, a man who has spent 17 years on death row in Texas.

“I’m not an advocate of the death penalty,” said Werner.

“Neither am I,” quipped Hank.

What emerged from this compelling documentary was a grim story of life on death row. The treatment of inmates seemed barbaric. Time doesn’t just drag here, it’s all over the place.

They don’t wash the windows of the cells so prisoners end up cocooned in a world of their own.

There’s activity and noise 24 hours a day. They serve breakfast at 3am, lunch at 10am and supper at 4pm.

The food is awful, says Hank, until you get to the execution unit, where you get a good last meal. He’s been so close to execution that he’s been given the last rites and had a final meal – fried chicken, catfish fillets, salad, a bacon cheeseburger, fries and chocolate milkshake.

It was delicious – because it’s prepared by the prisoners and they get to eat what the condemned man couldn’t face. Hank says, with a wry smile, that his last-minute reprieve gave him his appetite back and the prisoners had to go without their treat.

Hank says he’s innocent of the murder of his girlfriend and her two mentally disabled sons in 1995 – I guess a lot of death row men say they’re not guilty – but it seems unjust that he had to go to the Supreme Court to get the District Attorney to release DNA evidence which he says could prove his innocence.

On the face of it, he might have a point. There was another man’s jacket at the scene covered in the victim’s blood. His fingerprints were on a knife because he used it every day to make sandwiches.

Whatever the rights and wrongs of the case, it throws the spotlight on the use of the death penalty. Being proved innocent after death makes no sense at all.

TEXAS – Execution dates set for two death row inmates

march 16, 2012

Execution dates were set for two Bexar County death row inmates, including one who was given a reprieve last month days before his scheduled execution, according to the Texas Department of Criminal Justice.

Anthony Bartee, 55, was scheduled to die on Feb. 28 but was granted a reprieve to allow for additional forensic testing. Bartee’s attorney, David Dow, sent a letter to the court arguing the new May 2 date should not have been set because the DNA testing has not been completed. He said neither he nor his client was told of a hearing to set a new date, the letter said.

Bartee was convicted in the August 1996 robbery-murder of his friend David Cook.

An execution date of Nov. 14 was set for Ramon Hernandez, 40. Hernandez was convicted in the 2002 rape and murder of Rosa Rosado, 37, according to TDCJ.

Read more: http://www.mysanantonio.com/news/local_news/article/Execution-dates-set-for-two-death-row-inmates-3413825.php#ixzz1pUUVRTTA

South Carolina – Inmate Released After Nearly 30 Years on Death Row – Edward Lee Elmore

Edward Lee Elmore was released from prison in South Carolina on March 2 after agreeing to a plea arrangement in which he maintained his innocence but agreed the state could re-convict him of murder in a new trial.  He had been on death row for nearly 30 years after being convicted and sentenced to death in 1982 for the sexual assault and murder of an elderly woman in Greenwood, South Carolina. The state’s case was based on evidence gathered from a questionable investigation and on testimony with glaring discrepancies. Elmore’s appellate lawyers discovered evidence pointing to Elmore’s possible innocence that prosecutors had withheld. Originally, state officials repeatedly claimed the evidence had been lost. The evidence included a hair sample collected from the crime scene. After being tested for DNA, the evidence suggested an unknown Caucasian man may have been the killer.  In February 2010, Elmore was found to have intellectual disabilities and thus was ineligible for execution; he was taken off death row.  In November 2011, the U.S. Court of Appeals for the Fourth Circuit granted him a new trial because of the prosecutorial misconduct in handling the evidence. The court found there was  “persuasive evidence that the agents were outright dishonest,” and there was “further evidence of police ineptitude and deceit.”

Raymond Bonner, a former New York Times reporter who wrote a book about the case (“Anatomy of Injustice: A Murder Case Gone Wrong”), said Elmore’s journey through the justice system “stands out because it raises nearly all the issues that shape debate about capital punishment: race, mental retardation, a jailhouse informant, DNA testing, bad defense lawyers, prosecutorial misconduct and a strong claim of innocence.”  He noted, “Once a person has been convicted, even on unimaginably shaky grounds, an almost inexorable process — one that usually ends in execution — is set in motion. On appeal, gone is the presumption of innocence; the presumption is that the defendant had a fair trial. Not even overwhelming evidence that the defendant is innocent is necessarily enough to get a new trial.”

(R. Bonner, “When Innocence Isn’t Enough,” New York Times, March 2, 2012).  See Innocence and Intellectual Disabilities.

POSSIBLE INNOCENCE: Alabama Denies DNA Testing for Man Facing Execution

Alabama recently set an execution date for Thomas Arthur (pictured), who was convicted of a murder that took place 30 years ago. Arthur has always maintained his innocence, but has been denied access to DNA evidence that might lead to a different verdict. As Andrew Cohen pointed out in an investigative piece inThe Atlantic, Arthur is scheduled for execution on March 29, despite the confession of Bobby Ray Gilbert to the crime for which Arthur is facing execution.  There was no physical evidence that linked Arthur to the murder, and his sentence was secured almost entirely by the testimony of the victim’s wife, Judy Wicker. At first, Wicker told the authorities that Arthur was not involved in the crime, but when she was convicted for hiring someone to murder her husband, she arranged a deal with the prosecution. In exchange for a recommendation of early release from prison, she changed her original testimony and implicated Arthur. Since then, Gilbert has testified under oath to the murder. Gilbert said he had an affair with Wicker and soon agreed to kill her husband. State courts, however, have ruled that Gilbert’s confession was not credible, and have opposed DNA testing on an item recovered from the crime scene that could identify who was actually involved in the crime.  Arthur’s attorneys have agreed to pay for the DNA testing.

source : death penalty

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FLORIDA – William Dillon – Governor approves $1.35 million for man wrongfully convicted

TALLAHASSEE — William Dillon didn’t believe the day would come when he would be compensated for sitting in a Florida prison nearly three decades for a crime he didn’t commit. But on Thursday lawmakers approved a $1.35 million payout that was immediately signed into law by Gov. Rick Scott.

Now 52, Dillon was cleared by DNA testing in the beating death of James Dvorak on a Brevard County beach in 1981. A jailhouse informant also has since recanted his testimony against Dillon and authorities reopened the murder investigation. Dillon was freed in November 2008.

The Senate voted 38-1 Thursday to compensate Dillon for spending 27 years in prison. The House passed it on a 107-5 vote last week.

Scott apologized to Dillon on behalf of the state for the wrongful conviction. “It’s a real honor to be the governor who is signing this bill,” said Scott, who shook Dillon’s hand and wished him well.

Dillon, now lives in Chapel Hill, N.C., where he writes and performs music. “It doesn’t give me back what was taken from me, but at the same time it’s such a joy to be here because my life was gone,” Dillon said. “I can’t do anything but look forward

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