Tag: Wrongful Convictions

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Governor George Ryan of Illinois

One of the most amazing news stories of the past few years is the story of Illinois Republican Governor George Ryan. Apparently Ryan is about to issue pardons for all of the inmates on death row in Illinois. If you’re like me, you have to read that twice to believe it, in this era of hardline punishment freaks. Yes, a Republican governor is going to issue a blanket commutation for the death sentences of 156 inmates.

Ryan has been investigating the investigations of these men for about two years, ever since it was discovered that a substantial number of them were wrongfully convicted. A law professor in Chicago had made it a personal hobby to reinvestigate capital cases and had remarkable success in showing police incompetence, brutality, and deceit in these cases. After looking at all of them closely, Ryan simply lost confidence in the system. He didn’t believe that he could believe, with any degree of certainty, that any of the men it was his job to have executed was actually guilty of the crime he was convicted of.

In spite of my sympathy for their losses, I always find it repulsive when the families of a murder victim express their horror, shock, and dismay, that they won’t get to see the murderer fry. There are loads of euphemisms for that desire– one of the ugliest and dumbest is the word “closure”– but it always strikes me as nothing more than a passionate desire to do unto the perpetrator the very horror he has visited upon us, and that is illogical. Murder is horrible and evil and obscene, and the evil that it does to us is not undone by repeating the action.

It is undone by acts like those of George Ryan, which show that occasionally we humans can be better than murderers.

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Lie Detectors Lie

If I had a dime for every time I’ve heard some prosecutor or detective or lawyer tell us that someone is a suspect for a particular crime because he failed a lie detector test, I’d be rich.

But the truth is, according to a panel appointed by National Research Council, a branch of the National Academy of Sciences, lie detector tests are worthless. Actually, it’s worse than that. They are worse than worthless.

Just how useless are they? If you took a sample company or organization of 10,000 employees, of which 10 were spies or saboteurs, and you required every one of the them to take a lie-detector test, you would have 1,606 suspects.

That narrows it down considerably.

Two of the 10 spies will have escaped detection completely. There is no way to distinguish the 8 remaining genuine spies from the 1,598 innocent employees. Among the 2 would be the infamous mole Aldrich Ames who passed twice.

This study did not take into account the fact that when evil corporations or governments realize that all employees are being screened with a polygraph, they can actually do their own screening and train their spies to pass the polygraph.

The “lie detector”, of course, doesn’t actually detect lies. It records various bodily functions like respiration, blood pressure, and sweating. The “expert” polygraph administrator (like an “expert” witch doctor) calibrates the responses by comparing the results to those obtained from known factual truths.

As any amateur would guess, it is quite possible for a nervous, upset, or annoyed employee to “fail” the test simply because he is nervous, upset, or annoyed, as I would be if my employer demanded that I participate in this exercise of quackery.

There is no such thing as a lie detector. Polygraph examinations don’t work. Forget about it.

In Fort Jackson, N.C., your Department of Defense has a “Polygraph Institute”, where expensive and useless research is conducted into this joke.

I’ll bet you’d be really upset if those dollars ended up going to welfare mothers instead. The army would probably argue that some day the lie detector might work. As might the welfare mother, but I think her odds are better.

I believe the police understand that lie-detectors don’t work. They certainly know that you can’t use the results of a lie-detector test in court. So why do it? It seems obvious: to intimidate suspects. It is not all that unusual in cases of wrongful convictions to find that the police actually told the suspect that he might as well come clean because the lie-detector showed that he was lying.

It also seems likely that some suspects will be spooked enough by the process to simply confess.

And we also know that some suspects will actually believe the lie-detector over their own memory. They will actually make a false confession.

2011-06-06

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Thomas Sophonow

Thomas Sophonow of Manitoba was convicted in 1981 of the murder of a 16-year-old Winnipeg waitress named Barbara Stoppel.

He spent four years in prison before the Manitoba Court of Appeal ordered him released. The Manitoba Court of Appeal said that the evidence against Sophonow was inadequate.

Did the police and prosecutors admit they might have made a mistake? Not for fifteen years. And no level of government involved appears eager to pay the $2.6 million compensation suggested by an inquiry into the affair.

How did it happen? How did the wrong mean end up in prison for four years?

Does this phrase ring a bell: jailhouse informant. Snitch. One man about to be deported to Hong Kong agreed to testify that Sophonow had confessed to him. All charges against the snitch and the deportation hearings were dropped. Two of the other snitches had lengthy resumes, performing the function regularly for the police in exchange for various favors.

Commissioner Peter Cory, investigating the miscarriage of justice, recommends that jailhouse snitches never be used again in criminal proceedings. That is NEVER.

There were three eye-witnesses. Three of the four could not identify the suspect in a police line-up, but they still testified that Sophonow was the man they saw leaving the crime-scene. Why? In all likelihood, the police assured them that he was the man, and that it would be a “crime” for him to walk free simply because there wasn’t any evidence. The police worked their witnesses into a state of absent compliance.

One remaining eye-witness insists that Sophonow is the man he saw leaving the donut shop where Stoppel was murdered. But more and more recent research– especially by Elizabeth Loftus– shows that eye-witnesses tend to blend the face of the accused with their memory of the person they actually saw at the time. They see the accused every day in court, for extended periods of time, whereas their original view of the suspect is fleeting and ephemeral. Memory is not reliable, and certainly not as reliable as DNA testing, which has excluded Sophonow from any further suspicion.

According to an American study released in June, juries make up their minds early in the trial– based, obviously, on anything but evidence– and then fit the facts presented to their prejudice.

After injustice, exploitation. Sophonow’s lawyer will be paid more than $800,000. Do lawyers work that hard? Are they that talented? That is more than a teacher makes over ten years.

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And Why Would the Police Lie

Why would the police lie about a thing like that?

Anyone who still believes in fairy tales might have a hard time explaining away the behavior of the Fort Lauderdale, Florida police and District Attorney’s office.

Chiquita Lowe claimed that she saw a man leaving the home of Shandra Whitehead in Fort Lauderdale on the night of April 14, 1985. Shandra had been raped and murdered. She was eight years old. Chiquita Lowe saw the man, she said in court.

The police had a suspect: he was Frank Lee Smith, a man with a criminal record. But they had no evidence linking Smith to the crime.

But they had Chiquita Lowe.

Chiquita saw Smith leave the house. The entire case– a capital case– sat on her testimony. Smith was convicted and sentenced to death. He remained on death row for eleven years, until he died, of cancer, in prison. He remained on death row for eleven years, even though Chiquita Lowe recanted her testimony. He remained on death row for eleven years while the prosecutors refused to do a DNA test to confirm or exclude his guilt.

Eventually, of course, the DNA test was done. Smith was categorically excluded. Not only was Smith exonerated, but another man, Eddie Lee Mosley, was matched to the DNA. Mosley is being held in psychiatric prisons after being found insane when he was brought up on two other murder charges.

Do the police go, “oops”?

Do they apologize?

And admit that the police can make mistakes?

Never!

Chiquita Lowe now says that the police pressured her to identify Smith. We now know enough about how the police work to imagine what they said to her.   We know the guy did it but we don’t exactly have the evidence. Do you want to be responsible for his next victim if he walks? It’s your duty to testify as to what we think you saw that night….

She also says the police never showed her a picture of Mosley though the police claim they did, and the police claim that she did not recognize him.

The police claim she did recognize Smith.

Who are you going to believe?

Lowe testified about all this at hearings to reopen the case in 1991 and 1998. The police and prosecutors said she was a liar and completely unreliable. The judge agreed. The judge didn’t seem to realize that he had just rejected as “unreliable” the only witness in support of the prosecution’s original case, a case so thin and insubstantial that it makes you wonder if there is any system at all to justice in America.

How can a judge, with a straight face, declare that a man’s life should be taken based almost entirely on the word of a single “unreliable” witness?

Well, now that the DNA evidence is in, what do the police have to say for themselves? You know what they say? You won’t believe it. They say that Smith must have been burglarizing the home at the same time that Mosley was raping and murdering little Shandra Whitehead. That’s why, they say, Lowe did see Smith fleeing the house. That’s why, they say, detectives really did overhear Smith say something incriminating as they were escorting him to jail. That’s why, they say, the police are really never wrong, though sometimes strange things happen… who knows?

The problem is not that the police occasionally make a mistake. The problem is that the police, encouraged by conservative law and order politicians and incompetent judges, have developed the habit of picking a likely suspect– preferably someone poor and uneducated and with a history of convictions– and then hanging a case on him.

It’s so much easier than investigating the crime and making a case against a real suspect.

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Joyce Gilchrist Locks up a few Innocent Men

If you’re a regular visitor to these pages, I hope you’re not getting bored with the rants about false convictions. There are so many.

Joyce Gilchrist is a “forensic chemist” with a police crime laboratory in Oklahoma City. In 1986, she testified at the trial of Jeff Pierce who was charged with rape and robbery. Her testimony was decisive: she said that hairs found on the victim were “microscopically consistent” with samples taken from Pierce. He was sentenced to 65 years in prison. He served 15 before DNA testing– considered far more reliable than microscopic hair analysis– proved he could not have been the perpetrator.

I use the word “considered” with ambivalence.  The microscopic hair analysis was “considered”, in a manner of speaking, reliable at his first trial.  But it was not really “considered” at all: it was accepted with blind faith in this charade of forensic science.

You have to give credit to the police department here, where it is due. After an appeals court overturned several cases in which her testimony was pivotal, the police department ordered a review of other cases in which she had testified. (This may sound like something that should be automatic, but it isn’t. It is amazing how many police departments and prosecuting attorneys will refuse to admit they might have been wrong.)

At this stage, at least, that’s the way it’s supposed to work: the police are supposed to find out what actually happened. In the Pierce case, it looks like they simply picked a likely suspect (he happened to be working as a landscaper in the area in which the crime was committed) and then tried to muster the evidence necessary to convince a jury.

Gilchrist was regarded as a prosecution-friendly witness, who was likely to provide the police with evidence that would confirm their gut feelings about the suspect. She rarely testified for the defense, which should tell you something. She is supposed to be a scientist. She is supposed to testify for whichever side happens to have good science with them. If the science appears to always favor the prosecution, you have to ask yourself a few questions…

An FBI specialist, according to People Magazine, had problems figuring out what led Gilchrist to draw the conclusions she did about Pierce’s hair samples. In other words, she either grossly exaggerated or lied about the similarities. Do you want to know how many other cases she was involved with? Hundreds. No wait. 1,800! I’m not kidding. And an FBI chemist who reviewed four of Gilchrist’s cases said that in all four of them, hair or fibers had been misidentified. Twenty-three of the cases in which Gilchrist’s testimony played a part involved capital crimes. Eleven of the defendants have already been executed. In some cases, the police have destroyed the evidence, so we’ll never know if they were really guilty or not.

In another case, she testified that an FBI test of a semen sample could not exclude Alfred Mitchell from suspicions of rape, sodomy, and murder. In fact, the FBI lab clearly asserted that the one thing the sample did do was exclude Mitchell. He was convicted anyway, on Gilchrist’s “expert” testimony. In 1999, a federal district judge threw out the conviction because of her “errors”.

And another: Robert Miller was convicted of raping and murdering two elderly women, again, largely on the basis of Gilchrist’s “expert” testimony that hair samples found on the victims matched his. After seven years on death row, DNA evidence fingered someone else. As if that wasn’t enough, DNA evidence pointed to a man Gilchrist had explicitly cleared of the crime.

Even more disturbing: the police had the FBI’s exculpatory evidence in their hands before they brought Mitchell to trial, and did not provide the defense with copies of the reports. This is your police department, friends. These are the people in charge of enforcing the law. The appeal judge stated that the “State’s blatant withholding of unquestionably exculpatory evidence is absolutely indefensible.”

Gilchrist is on “paid administrative leave”. Did you know that the laws are written in such a way as to release the police and prosecution from all potential liability for financial compensation for the wrongly convicted? So what does Pierce get for his 15 years in prison? Unless the state gets generous voluntarily, nothing.

The case of Malcolm Rent Johnson is fascinating. He was convicted in 1982 of the rape and murder or Ura Alma Thompson, who was 76 years old. Johnson was executed in January, 2000.

The police found many of Thompson’s missing possessions in Johnson’s room. Johnson claimed that he received the stolen goods from a friend. Gilchrist testified that hairs found on the victim were compatible with Johnson’s hair, and that fibers from a shirt the police took from his apartment were similar to fibers found on the body, and that the semen found in the victim was compatible with Johnson’s blood type. When the police confronted Johnson with the semen evidence, Johnson, according to police, said that was impossible because he hadn’t ejaculated.

Either Johnson was a complete fool– and victims of prosecution misconduct seem to be disproportionately poor and uneducated– or he meant to say that he wasn’t the one who raped Thompson and therefore couldn’t have been the one who ejaculated. It’s a strange statement to make, but even stranger that the police would regard a statement like that as believable enough to be incriminating but not believable enough to contradict Gilchrist’s findings that the semen matched Johnson’s blood type. If he inadvertently told the truth– that he raped Thompson but didn’t ejaculate– then the police should offer that as evidence that he committed the rape and murder, and Gilchrist’s evidence should have been thrown out. Instead, the police had it both ways. He is guilty because he told the truth when he implied he had sex with Johnson but didn’t ejaculate, and besides, the semen was compatible with his blood type.

Or, did Johnson receive the stolen goods from a friend who actually committed the robbery and rape and then “tipped” the police off to Johnson?

Gilchrist isn’t the only incompetent police expert around. In Randall County, Texas, a forensic pathologist named Ralph Erdmann was convicted in 1994 of falsifying evidence on at least six occasions, including at least one capital case. In that one case, an off-duty police officer, James D. Mitchell, approached a car that had skidded off the road and was shot by one of the occupants who claimed that he fired in self-defense. No one disputes who shot who, but the question of whether it is a capital offense hinges on whether the defendant, Randal Wayne Hafdahl, believed he was being threatened or not, and that determination was based on Erdmann’s evidence.

In New York, a former detective named Michael S. Race has made it his mission to re-examine some old criminal cases. He is already responsible for five men being released from prison, including Anthony Faison and Charles Shepherd, who were charged with the murder of a cabby. Some say that Race is trying to assuage his own guilt– he was involved in some these questionable cases as a homicide detective in Brooklyn. In some of these cases, a rather shady witness provided the only compelling evidence. It is clear that the police and district attorneys were derelict in their obligations to ensure that such witnesses were reliable and credible. It didn’t matter: the juries bought it. Innocent men went to jail. In the “tough on crime era”, few people cared.

What all of this means is that the criminal justice system in the U.S. is in a crisis. There is a drug crisis and a medical crisis and an education crisis. Why doesn’t anyone step up and announce that they will make criminal justice an issue in the next campaign? Because conventional political wisdom is that Americans want politicians and judges to be “tough on crime”. But I’ll bet that a lot of Americans are slowly becoming convinced that there is a difference between “toughness” and fairness.

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And Another Wrongful Conviction, And Another…

Michael Ray Graham and Albert Ronnie Burrell just walked out of Louisiana State Penitentiary in Angola, with a $10 check and a denim jacket and couple of manila envelopes with all that is left of their worldly possessions.

At least they are alive. And that’s good, because, after waiting 14 years to be executed, they have been declared innocent of murder by the State of Louisiana.

Let’s see. That is eight this year alone. That is 92 since the death penalty was reinstated in 1973 in the U.S., according to the New York Times.

Wait for it. Come on, I know it’s there. Let me read a little further… aha! “With no physical evidence linking either to the crime, the two men were convicted largely on the testimony of a jailhouse snitch, Olan Wayne Brantley, who a law enforcement official acknowledged was known as Lyin’ Wayne.”

The old jailhouse snitch! Again! From Guy Paul Morin to Michael Ray Graham, the jailhouse snitch has proved to be an indispensable tool of prosecutions and police everywhere. It is the most widely accepted “solution” for a simple lack of evidence.

Did the police really believe that Burrell and Graham were guilty? Were they afraid that guilty men would walk free just because they couldn’t find any proof? From my reading about wrongful convictions, that might well be the case. The police simply decided that these two “dun it”. They felt it in their bones. They were convinced, emotionally. Maybe they didn’t answer questions the right way. Maybe they sweated under questioning. Maybe they were stupid.

Maybe they should be on Oprah. [2011-03]

“The kind of prosecutorial misconduct in the cases of the two men is not unusual, said Mr. Graham’s lawyer, Ms. Fournet.” No, it’s not. And it’s probably the best reason why the death penalty should be abolished in the U.S., as it has been in Canada for twenty years.

What a time for the governor of the state that has been the most mindlessly efficient and enthusiastic about executions to have stolen the election to become president.

Which is not to say that Al Gore was exactly Mr. Courageously Righteous on the issue. It is clear that he adopted Clinton’s very pragmatic “go with it” attitude towards the death penalty. But my guess is that Gore might have been persuaded to lead a movement against the death penalty given the incredible number of wrongful convictions that have come to light in recent years.

Dubbya’s attitude? They must have done something wrong for the police to even have suspected them in the first place.

It looks like Bush is going to appoint John Ashcroft, the Senator who lost an election to a dead man, as the new attorney general. We are told that Ashcroft, as a devout Christian, is completely in favor of the death penalty.

???

I can’t help but wonder, “What would Jesus do?” about a jail-house snitch who put two innocent men on death row so he could get a lighter sentence for passing bad checks? What he do about the prosecutors who knowingly pressed the case, aware of the fact that there was no physical evidence against the two men, and that the key witness had a history of mental illness? What would he say to the prison officials who handed each of the men a $10 check, as compensation for losing 14 years of their lives?

What would he say to the judge who put a developmentally delayed man on death row?

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Keystone Cops

The Toronto Star recently reported that 99% of the complaints made against the Metropolitan Toronto police force are resolved in favour of the police, according the “objective” civilian complaints review process. That means that either Toronto has the greatest police force in the world– truly, the most amazing, perhaps, in history– , or the biggest liars. An officer responsible for handling complaints against the police force, with a straight face, actually insisted that the police really are in the right 99% of the time.

What kind of a person are you that you would say something so preposterous to a journalist, on the record? What do you really think of the people out there, that would make you believe they would believe you?

Now, even if you support the police (and with the level of paranoia in our society as high as it is nowadays, that’s quite likely), and even if you believe the Metropolitan Police force to be the best trained and most well-behaved in the world, it is statistically impossible that they could be right 99% of the time. It simply cannot be true. This kind of statistic is reminiscent of the old Soviet Union, when year after year, “record breaking” crops were harvested, proving the superiority of the Soviet system, while the people continued to starve.

When you think about it, it’s pretty scary that the police can get away with pulling this stuff. How dare they claim to be right 99% of the time? Who’s making this judgment? Who is in control here? Is there no civilian authority that can call this guy up and say, “What? Are you out of your mind? Don’t you realize how stupid that figure sounds? Do you want people to think you’re delusional? Withdraw the figure immediately and come up with something more credible, like 70%.”

Let’s get real. Would you believe that 99% of the customer complaints against Walmart were false? Would you believe 99% of the complaints against a surgeon were false? Would you believe that 99% of the allegations of sexual abuse made against boy scout leaders or priests were false?

I don’t know what the actual number of legitimate grievances against the police force should be. The Toronto Star didn’t have any difficulty finding at least two representative cases that made the police look pretty bad but which the police resolved in favour of the police. (The investigating officer decided that the two police officers, who corroborated each others’ stories, were more believable than numerous civilian witnesses, who right out of the blue, for no reason at all, decided to make up a bunch of lies about two officers beating up an innocent civilian.) The point is, that even if you think the police are doing a great job, a terrific job, it is simply outside of the realm of human experience that they could be right 99% of the time, or that an honest judge would even think they were right 99% of the time even if, incredibly, they really were.

It’s like those leaders in totalitarian nations that receive 95% of the vote.  Right.

What this number really means is that if an officer pulled you over by mistake, dragged you out of your car in front of family or friends, kicked you and beat you with a club, and then tossed you into jail for a day or two until the mistake was realized…. well, who’s going to stop him? If he has any hesitations about exceeding the limits of “reasonable” force, they are swept away by his acute awareness of the fact that you have only a 1% chance of success in filing a complaint. This, my friends, is about the same percentage of success you could expect in a police state.

Or you might believe that there is virtually no chance that such a thing could happen, because our Toronto police are better, and more honest, and more virtuous, than any other police force in the world.

Some cops–and some civilians too—believe that we need to give the cops more latitude to deal with those hordes of criminals out there. They believe that most law-abiding citizens have nothing to fear. Right. Like Guy Paul Morin, Donald Marshall, Damien Echols, and David Milgaard. Anyway, the fact that a victim of excessive police force might be innocent is beside the point. The idea that police can use excessive force on anybody, criminal or not, with impunity, is repugnant to a democracy.

The solution is simple: a civilian review board should be set up to handle all complaints against the police officers. Appoint smart, fair, and dedicated people to the board. Tell the police that because we know they are competent and professional, we expect few complaints, but that even the most competent and professional people in the world make a few mistakes, lose their cool, and do stupid things sometimes. And if the police were smart, they would welcome the increased public confidence in them that would result from a fair and impartial review board.

Unfortunately, this is pretty well exactly what they did do a few years ago. The police complained so bitterly about actually having to be accountable to someone else that the Harris government, ever concerned about civil rights (ha ha) disbanded it.