innocence project

#JusticeForPervisPayne: Tennessee man on death row was convicted using ‘racial stereotypes’, says Internet

March 17, 2021

Pervis Payne, who has an intellectual disability, has spent 32 years on death row in Tennessee.

#JusticeForPervisPayne: Tennessee man on death row was convicted using 'racial stereotypes', says Internet

On TikTok and Twitter, #JusticeForPervis has been trending in an attempt to raise awareness Pervis Payne’s innocence. Payne is scheduled to be executed on April 9 by the state of Tennessee.

Payne has been on death row for 32 years for the murder of Charisse Christopher and her two-year-old daughter in June 1987. Payne, as per the Innocence Project, a nonprofit legal organization that is committed to exonerating individuals who it claims have been wrongly convicted, has always maintained his innocence. Payne has consistently said he did not commit this crime and that he was an innocent bystander who happened to be at the crime scene and tried to help.

Wrongly Imprisoned for Killing His Infant Daughter, a Father Could Go Free This Week

December 5,2017

The science on shaken baby syndrome, it turns out, was not actually sound and should not have been used for putting this father behind bars.

This story was originally published by The Chronicle of Social Change, a nonprofit news publication that covers issues affecting vulnerable children, youth and their families, and has been republished here with permission.

There was no doubt about the horror of the situation: A 4-month-old baby girl was dead.

The question facing the jurors was less clear-cut: Was the tiny girl’s death accidental, or had she been murdered by her own father?

On the afternoon of Nov. 24, 2001, in Sacramento, California, 18-year-old Zavion Johnson had called an ambulance. His baby daughter Nadia had been sleepy all day and then had stopped breathing.

Responding paramedics gave her CPR, pushed a breathing tube down her throat, and rushed her to the hospital. There, doctors discovered Nadia had terrible internal head injuries, including a fractured skull. Suspecting abuse, they called the police.

ohnson would later tell his family that earlier that morning, he had accidentally dropped Nadia while showering with her. The girl had hit her head on the back of the cast-iron bathtub but had seemed to recover. Questioned by police, the frightened teenager at first didn’t say anything about the accident. That impulse backfired horribly on him.

Nadia died two days later. On the day of her funeral, Johnson was arrested and charged with her murder.

At trial, Johnson’s lawyer told the court about the fall in the shower, and more than a dozen people testified that he was a gentle and loving father who had never mistreated the baby.

None of the prosecution’s witnesses said anything to the contrary. Instead, the deputy district attorney held up Johnson’s inconsistent statements as evidence of his guilt. The clincher, however, was the testimony of three medical experts, who all declared that the nature and pattern of Nadia’s injuries could not have been caused by a short fall, but only by violent shaking.

“This is a classic case of shaken baby syndrome,” Deputy District Attorney Chris Cosca told the jury. “We know that this little girl lost her life because of a brutally violent shaking, the violent acceleration-deceleration, the rotational injury, and the impact against a hard surface. That’s the only way it can be explained. And there is no way on earth that she suffered these injuries by virtue of a simple drop in the tub. No way.”

Johnson was convicted of second-degree murder and sentenced to 25 years to life. Sixteen years later, he is still in prison.

But it turns out Cosca was wrong.

In the past year, two of the key medical witnesses who supported the shaken baby diagnosis at Johnson’s trial have disavowed their testimony, and the district attorney’s office now supports Johnson’s attempt to have his conviction overturned. On Dec. 8, Johnson and his legal team are hoping to learn whether he’ll now be able to go home.

There used to something close to a medical consensus that certain patterns of injuries can only be caused by shaking. In particular, a “triad”—swelling of the brain, bleeding on the brain’s surface, and bleeding behind the retinas—was believed to be solid proof that a baby had been abused in this way. The theory was put forward in the early 1970s by doctors trying to explain the deaths of infants and children with no outward signs of abuse. The diagnosis soon became accepted as scientific fact and has since been used to convict hundreds of people of harming or killing children.

But over the past 20 years, a body of new research has shown how diseases, genetic conditions and accidents—including short falls—can produce the same constellation of injuries. As a result, faith in shaken baby syndrome is unraveling.

The American Academy of Pediatrics recommended in 2009 that doctors stop using the term. A 2015 investigation by the Washington Post found at least 16 shaken baby syndrome murder convictions that have been overturned.

Scores of other cases that collapsed before trial because of the doubts around the “triad” as evidence. One of those cases was another Sacramento County father convicted of killing his 4-month-old son.

Dr. Norman Guthkelch, a pediatric neurosurgeon who was one of the first to advance the hypothesis behind shaken baby syndrome, recently stated that it is “high time every case of a parent in [prison] for this had his or her case reviewed” because “we went badly off the rails … on this matter.”

“Our decision … was not a difficult one,” Chief Deputy District Attorney Steve Grippi wrote in an email. “Had the information currently available on the topic been available then, there is a reasonable probability that the outcome of the trial could have been different.”

That doesn’t mean Johnson goes free automatically; the DA could still ask for a retrial, though that seems unlikely. Johnson is now awaiting a judge’s order to let him go. After spending nearly half his life behind bars, he is hoping to be back with his family in time for Christmas.

There is no definitive accounting of how many people are prosecuted and incarcerated on the basis of this questionable science, but the number is certainly substantial.

A database maintained by the Northwestern University’s Medill Justice Project, last updated in 2015, includes more than 3,000 shaken baby syndrome criminal cases in the United States over the past 20 years, though not all of them are still current. The Washington Post’s investigation estimated hundreds of parents and caregivers were being prosecuted each year, and tallied 1,600 convictions since 2001. At least three such convictions have landed people on death row, according to a recent New Scientist article.

The Innocence Project, a national network of advocates for prisoners who are wrongfully convicted, is reviewing about 100 cases involving shaken baby syndrome.

Some medical experts still support the use of the diagnosis, now more commonly called “abusive head trauma,” as at least one form of evidence that can help determine whether a child’s death was accidental or the result of violence. Nobody disputes that violently shaking a baby can injure or kill; the tricky part is figuring out whether that actually happened. And once someone has been convicted of lethal child abuse, convincing a court to undertake that task again is not easy.

The collateral damage for mistaking an accident for maltreatment can extend beyond a jail term. Parents accused of contributing to a child’s death can face the removal of all children from the home.

A 2010 study published in the journal Child Abuse and Neglect notes that “little data are available about what happens to these siblings after the victim’s death.” Using records from Oklahoma’s child fatality review, the study concluded that the presence of young siblings, previous maltreatment reports and the nature of the fatal incident were predictors of removal after a death.

In an essay published in the in the American Academy of Pediatrics News, two physicians argued that the recent controversy over shaken baby syndrome should not take away from correctly diagnosing cases of child abuse.

“Like the back-and-forth over childhood immunizations, this is a false debate,” Howard Dubowitz and Errol Alden wrote in the 2015 piece. “The truth is that child abuse, including abusive head trauma, is a real problem that terribly injures and sometimes kills children.”

From his cell in a state prison in central California, Johnson struggled for years to get judges to take another look at his case, filing appeal after appeal, to no effect. Finally, in 2014, he got in touch with the Northern California Innocence Project, where attorney Paige Kaneb took the case.

“I’d been on another shaken baby case, so I’m a bit obsessed with the issue,” she said.

Over the next couple of years, she gathered materials and got in touch with the experts whose testimony had sent Johnson to prison. In early 2017, two of them came declared they could no longer stand behind that testimony.

“I was following my training and experience, in conjunction with the consensus opinions at the time, in classifying Nadia’s death as having resulted from abuse,” wrote Dr. Gregory Reiber, the forensic pathologist who performed Nadia’s autopsy, in a letter to the court. “However … because of the significant changes in the understanding of childhood head injury that have developed since trial, my opinion about the cause of Nadia’s injuries has also changed.”

Nadia’s injuries, he now concluded, “are consistent with the accidental fall in the bathtub described by Zavion Johnson.”

University of California–Davis neuropathologist Claudia Greco also walked back her testimony, writing that the damage she focused on “does not prove that Nadia Johnson was violently shaken or that her injuries were intentionally inflicted.” A third expert who didn’t testify at trial but reviewed the case later also stated that Nadia’s injuries could have been caused by the fall Johnson described.

Kaneb and her colleagues filed a petition to have his conviction struck down. On Oct. 31, the district attorney’s office threw their support behind it.

Johnson is still in occasional touch with Nadia’s mother, but she now has two other kids and a fiancée, Johnson told me via a letter from prison. He’s gotten training as an electrician while locked up and wants to do community advocacy when he gets out.

“I’m excited and nervous, but scared of failing,” Johnson writes. “All the people that have helped me, I don’t want to disappoint anyone.”

He still thinks often about Nadia, whose picture he has tattooed on his chest.

“I can’t wait to visit her grave,” he writes. “I haven’t been able to do that yet.”

Former Virginia death row prisoner to go free – Joseph M. Giarratano

A convicted double murderer who came within two days of sitting in Virginia’s electric chair will soon be a free man.

Joseph M. Giarratano, who won support from around the world fighting his 1979 conviction in the Norfolk slayings, was granted parole Monday.

“I’m confident there’s no other prisoner like him in the Commonwealth of Virginia,” said lawyer Stephen A. Northup, who represented Giarratano before the parole board.

Giarratano was a 21-year-old scallop boat worker when he confessed to killing his roommates, 44-year-0ld Barbara Kline and her 15-year-old daughter, Michelle. But his confessions were inconsistent with each other and with the physical evidence, which did not tie him to the crime. He later said that after waking up from a drug-induced stupor and finding the bodies, he simply assumed he was the killer.

His attempts to win freedom attracted the support of actor Jack Lemmon, singer Joan Baez and conservative newspaper columnist James J. Kilpatrick, among others. In 1991, Gov. L. Douglas Wilder granted Giarratano a commutation, changing his sentence from death to life and making him eligible for parole after serving 25 years.

However, Virginia Attorney General Mary Sue Terry declined to grant Giarratano a new trial, saying she was still convinced of his guilt.

n prison, the uneducated Giarratano taught himself the law and advocated for fellow prisoners. He helped secure representation for Earl Washington Jr., another death row inmate, who was eventually exonerated by DNA evidence.

Giarratano sought to have similar evidence tested in his case, but it had been destroyed by the time he was allowed to file such a request.

Adrianne L. Bennett, chairwoman of the Virginia State Parole Board, told the Richmond Times-Dispatch that the parole decision should not be read as confirming Giarratano’s innocence. While Northup is confident that his client did not commit the murders, he said he believes the Monday decision has more to do with a parole board that is more open than in the past to freeing prisoners who have behaved admirably behind bars.

Now, Northup said, Giarratano plans to move to Charlottesville and work as a paralegal with lawyer Steven D. Rosenfield. He also hopes to work with the University of Virginia Law School’s Innocence Project.

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.

Mr. Willingham was convicted and executed in the killings. 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.”

Wrongly imprisoned Tulsa man declared innocent, eligible to seek compensation from state

A man who spent some 16 years behind bars on now-nullified burglary and robbery convictions has made a sufficient showing of “actual innocence” that he can seek to recover financially from the state of Oklahoma, a Tulsa County judge determined Tuesday.

Tulsa County District Judge William Kellough found that Sedrick Courtney “has made a prima facie showing of actual innocence for the purpose of initiating a claim pursuant to the Oklahoma Governmental Tort Claim Act.”

The most Courtney could recover through the state’s compensation process for wrongfully convicted people is $175,000, lawyers say.

Earlier this month, the state Supreme Court ruled that Kellough had erred previously in denying Courtney a “threshold determination of actual innocence” in a post-conviction relief proceeding.


CLEARED
Sedrick Courtney: He served 16 years in prison for crimes he didn’t commit.

Kellough also erred in ruling that Courtney did not present “clear and convincing evidence of his actual innocence in the face of the exonerating scientific evidence that supported the vacation of the criminal conviction,” according to the high court’s order.

Courtney, now 41, had been found guilty in a 1995 case in which two masked intruders robbed a woman at her Tulsa apartment. He was sentenced to 60 years in prison.

The victim identified Courtney – who denied being one of the intruders, denied any involvement and had alibi witnesses.

Results from DNA testing available at the time were inconclusive, but more recent DNA tests of numerous hairs found in ski masks excluded Courtney as a possible donor of the hairs, court filings show.

The Innocence Project, an organization that uses DNA evidence in an effort to get wrongfully convicted people exonerated, took on the case while Courtney was in prison.

Courtney, now 41, was released from prison on parole in 2011.

In July 2012, Kellough granted post-conviction relief based on the newly discovered evidence – the new DNA testing results. The judge vacated Courtney’s convictions for robbery and burglary, with the agreement of District Attorney Tim Harris.

Kellough declined then to make any finding of actual innocence and indicated that Courtney did not establish by “clear and convincing” evidence that he did not commit the crime.

In September, Kellough ordered the dismissal of the robbery-burglary charges.

An appeal challenging Kellough’s ruling on the actual innocence issue was initiated in the state Supreme Court in October.

According to the Supreme Court, a finding of actual innocence is necessary under Oklahoma law for Courtney to recover money damages based on a wrongful conviction.

Individuals who are convicted and imprisoned for crimes they did not commit can apply for as much as $175,000 in compensation from the state under legislation that was signed into law by then-Gov. Brad Henry in 2003.

A year earlier, Arvin McGee was exonerated by DNA evidence in an unrelated Tulsa County kidnapping and rape case.

A Tulsa federal jury awarded McGee $14 million from the city of Tulsa in 2006 – $1 million for each year he served in prison – but a settlement was reached after the verdict for the city to pay a total of $12.5 million.

Courtney’s compensation could be resolved through the state’s risk-management claims process, but it could be taken to trial, one of Courtney’s attorneys, Richard O’Carroll, has said previously.

Man freed by Innocence Project victimized by system

MADISON — A man who was freed this month from prison, where he was serving a 102-year sentence for a 1991 rape he didn’t commit, is living in a Madison homeless shelter and doesn’t have enough money to buy the medication he takes for several serious health problems.

Joseph Frey, 54, was convicted in 1994 of raping a University of Wisconsin-Oshkosh student. He was freed this month after new DNA evidence testing linked the attack to a now deceased man who was convicted of sexually assaulting two sisters in Fond du Lac after the attack on the student. At the time he was convicted, Frey was serving a lengthy prison term for an earlier Brown County sexual assault to which he had pleaded no contest.

When he was released July 12, Frey had less than a week’s supply of the dozen or so drugs he needs for a degenerative bone disease, blood clots and other health problems. He can’t afford more or the required follow-up visits to the doctor.

“I’m transient,” said Frey, who is staying at the homeless shelter at Grace Episcopal Church in Madison. “I have no health coverage. Nothing.”

Wisconsin Innocence Project attorney Tricia Bushnell, who helped get Frey exonerated, said the state doesn’t provide social services like they would for someone released on a mandatory release date.

“In those cases, they get a social worker, they help provide them transitional housing, they look into helping them look for jobs or education,” she told the Wisconsin State Journal (http://bit.ly/1b4WvQY ).

Frey is now relying on the Innocence Project for help in putting his life back together.

Had he been released in 2005 — after completing his confinement for the Brown County assault — Frey would have gotten some help transitioning beyond prison life, Bushnell said.

Bushnell gave credit to Winnebago County Assistant District Attorney Adam Levin for agreeing to the DNA testing sought by the Innocence Project. It implicated a now-deceased rapist who, his mother told Oshkosh police in April, spent the final months of his life agonizing over an Oshkosh sexual assault he committed that was pinned on another man.

“There’s three victims here, the way I see it,” Frey said. “The victim was victimized repeatedly in this situation. The public was victimized by their representatives of law enforcement in Winnebago County, and I was victimized. And so far, there’s been very little accountability for that.”

If he’s lucky, Frey will qualify for the maximum $25,000 that the state can award to the wrongfully convicted, or $5,000 a year for a maximum of five years. Past efforts to boost that amount and to provide health care, housing and other services for exonerated prisoners have been unsuccessful.

“That’s not even minimum wage for one year,” Frey said. “I mean, look, it’s nothing. Is the injustice that shallow it could be wiped away like that, so nonchalantly? I don’t think so. I just hope that it changes. Because it’s not right.”

Frey insisted he is not bitter about the extra eight years he spent in prison. Self-taught in criminal law, Frey said he hopes for a time when he can “pay it forward” and help other inmates get justice.

http://www.postcrescent.com

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

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

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

How accurate is forensic analysis?

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

DNA

Fingerprint

Handwriting

Polygraph

Firearm evidence

Hair and
fiber

Pattern and impression

Bullet lead composition

Independent scientists critique suspect forensic work

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FBI cases may represent only the tip of the problem.

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

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

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

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

Death penalty Focus

Today, in the United States, we celebrate freedom. At DPF, we are celebrating the freedom of exonerees like Obie Anthony, who spent 17 years in prison for a crime he did not commit.We also remember that there are thousands of other wrongfully convicted people, still sitting behind bars, trying to prove their innocence. We will keep fighting for their freedom, and for a criminal justice system that is more fair and just.

We hope you have a great Fourth of July, and thank you for joining us in the fight for justice!

OHIO – Court to weigh DNA testing for man given death penalty in 1990 Portage County slaying – TYRONE NOLING

october 15, 2012 http://www.ohio.com/

COLUMBUS: The Ohio Supreme Court plans to hear arguments in the case of a condemned inmate whose attorneys argue DNA testing could help exonerate him.

At issue is the case of death row prisoner Tyrone Noling, convicted in 1996 of fatally shooting an elderly Portage County couple at their home.

The Supreme Court on Monday scheduled a Jan. 8 hearing for arguments from both sides.

Noling has been on death row at the Ohio State Penitentiary since his conviction in the slayings of Bearnhardt and Cora Hartig at their Atwater Township home.

The Hartigs, both 81, were shot multiple times in the chest April 5, 1990, as they sat at their kitchen table, according to the police investigation.

Lawyers for the Ohio Innocence Project want to test a cigarette butt found at the scene against DNA profiles of offenders in a national database, including a convicted killer who was executed.

The state says previous tests have excluded Noling as the smoker of the butt and says new testing would prove nothing.

A lower court judge has twice denied the request.

There’s no real argument for the death penalty by James Varney “opinion”

October 13, 2012 http://www.nola.com/

Three stories — or, more accurately, two stories and a column — have led to thoughts about that ever contentious issue, the death penalty.

The first was a justice corkscrew at Tulane and Broad detailed by reporter John Simerman, a tale of shifting heroes and villains. In it, a rapist was briefly represented by the Innocence Project, a prominent arm of the anti-death penalty movement that has a strong case — namely, not every person on death row is guilty. Yet for reasons I can’t fully understand, I don’t find that reason to dispose of the death penalty. In part, this view may be colored by the Innocence Project’s paladin, Gary Scheck, who proclaims DNA evidence infallible. Which it may be, unless the blood of two murder victims is splattered all over O.J. Simpson’s car and house, in which case the DNA was planted or contaminated, as Scheck argued while springing The Juice.

I could have sworn O.J. did it, but that’s what high-priced defense lawyers do, I suppose, and it’s true Scheck’s work elsewhere has freed some innocent men from a living hell on death row.

In fact, the column in question is just that sort of case. Damon Thibodeaux was sent to Angola’s death row for raping and murdering a 14-year-old girl under the Huey P. Long Bridge in 1996. Problem was, Thibodeaux didn’t do the crime and the Innocence Project helped prove it. Consequently, Thibodeaux was freed last month, and Denny LeBoeuf, formerly of the Death Penalty Resource Center in New Orleans, penned an op-ed about it for The Times-Picayune.

Thibodeaux’s case hinged on a bogus confession, a thing LeBoeuf pointed out talented law enforcement officers constantly guard against. Yet here we have a man — not guilty — dreading the lethal needles the state planned to plunge into his veins. He has escaped the jaws of death, which is all to the good, and whether one finds that alone reason to halt executions, there is no gainsaying the argument in favor of them is now diminished.

Thibodeaux can’t be made whole any more than the family of the girl who was killed, but does the death penalty’s existence mean similar tragedies won’t be visited on others? Here we turn to the death penalty’s supposed deterrent properties.

And here we turn to the other recent story, reporter Claire Galofaro’s magisterial three-part tale of the men accused of gunning down two St. John the Baptist Parish sheriff’s deputies and wounding two more. These alleged warped souls floated across the landscape from Nebraska to Louisiana like modern Charles Starkweathers, apparently willing, even eager, to kill.

Was the death penalty any sort of deterrent to these seething misfits? Has the fear of the death penalty — a sentence quite real in New Orleans and Louisiana — in any way crimped the appalling violence that sends so many New Orleanians to an early grave?

Well, it may have — that’s a hard one to gauge — but if it has, the impact has been marginal at best. The argument in favor of execution shrinks again.

So we appear to have but one plank left in favor of executions: the succor it may provide crime victims’ survivors. Here most of us, thankfully, are at sea because thus far we’ve been spared that nightmare.

That’s always seemed one of the best arguments in favor of execution while simultaneously the most disquieting. Where does the state — why does the state — become an instrument of retribution? There are Biblical passages supporting the death penalty as a legal recourse, but are these life and death matters not better left in God’s hands? Doesn’t the death penalty then skirt dangerously close to revenge killing, a thing civilized society should shun?

I don’t presume to speak for victims’ families, but years of covering capital cases and witnessing two executions at Angola have shown me that seeking a death for a death is not uniform among them. The quality of their mercy is an awesome, humbling thing, and one it seems to me should be embraced.

So what do we have: Guilty? Not always. Deterrent? Unlikely. Morally? Dubious. LeBoeuf is correct: the death penalty should be abolished.

••••••••

James Varney can be reached at jvarney@nola.com.