Posts Tagged ‘Supreme Court of the United States’

Mike Farrell: Human Rights Activist

Alejandra de la Fuente — February 03, 2012 @ 10:29 AM — Comments (2)

NOTE: This is the second (and final) installment of an interview with Mike Farrell,  a life-long opponent of the death penalty. Part I appeared on February 1, 2012.

Anne:  How has your public work affected your view of the criminal justice system in the United States in terms of death penalty cases involving questionable sentencing?

Mike Farrell: It has taught me that the criminal justice system in general is not just. It is anti-human, degrading and shows no interest in helping those who get caught up in it learn how to comport themselves appropriately and become productive citizens. It is, in my view, a destructive system that makes huge profits for some people and companies at great costs, not only to those who are incarcerated, but to our entire society.

Anne:  The execution of Donald Beardslee (California, 2005) attracted  a number of  anti-death penalty advocates. Can you speak of a specific capital punishment case in which you were involved that addresses state-sanctioned killings involving persons with limited capacity to understand their actions and/or subsequent fates?

MF:  There are too many: Robert Alton Harris in California, Johny Paul Penry in Texas (has not yet been executed, but they keep trying), Ricky Ray Rector in Arkansas, Barry Fairchild in Arkansas, Wanda Jean Allen in Oklahoma.  The Supreme Court’s 2002 decision regarding Daryl Atkins, in Virginia, stopped the execution of mentally challenged individuals, though they left the determination of who was or was not mentally challenged up to the states. Human Rights Watch released a study (around 2005) stating that we have more than 250,000 demonstrably mentally ill people in our prison system, more than in our mental institutions.

Anne:  Do you believe that it is an individual state’s right to impose a moratorium on capital punishment, or do you feel that the issue should be addressed in a broader forum (by higher court’s outside one’s state)?

MF:  I think, especially given the current makeup of the United States Supreme Court, it will be a state-by-state process that will create (as did the Simmons Case about the death penalty for juveniles) a clear sense that the people of the United States recognize that there is no longer any value to maintaining the death system.

And yes, of course, each state has the right to declare a moratorium on state killings. It happened here in California six years ago, though it was imposed by a judge. We’re still waiting for the final determination. In Illinois, then-governor Ryan declared a moratorium and ordered a study of the death penalty. That eventually led to his clearing the state’s Death Row by commuting almost all death row inmates to life without parole. He pardoned some outright.

New Jersey did such a study and decided to end the death penalty. Pennsylvania has just ordered a study and I hope it has the same result.

Anne:  A number of individuals who have been sentenced to Death Row in specific cases across the United States have also been exonerated due to DNA evidence. How does such testing (and its results) help bolster your argument that the courts oftentimes “get it wrong” in terms of sentencing a person to death for crimes for which they have been found guilty?

MF:  I think the exoneration of 139 people (so far in the modern era) from our death rows, after being charged, tried by a “jury of their peers” and sentenced to death, proves the fallibility of the system and demonstrates the wrong-headedness of giving the state the right to take a life.

I would quickly add, though, that most of those exonerated have not been freed because of DNA [evidence], but because of the dogged pursuit of justice by caring lawyers, relatives, students and people of faith. DNA evidence, while it can be an enormously powerful tool, is not available in most murder cases.

Anne:  If you witnessed (or read reports of) the Republican presidential debate in September 2011, where Texas governor Rick Perry was cheered regarding his stance on capital punishment (which he supports as a “state’s right” issue), what message  do you believe the audience’s rancorous behavior sent in terms of the national reception to (and acceptance of) capital punishment?

MF:  I don’t think the frightening (and, to me, disgusting) behavior of the audience at that debate is representative of the vast majority of the poeple in this country. While some polls show a majority of Americans still support capital punishment, those numbers are falling, and, in fact, when people are offered the option of life without parole (LWOP), more indicate support for LWOP.

Anne: Your anti-capital punishment advocacy through the year has led you to write, speak and organize nationally and internationally on various aspects relating to death penalty and human right issues. Can you  discuss some of your current projects and how they might serve to initiate a broader political discourse in the area of anti-death penalty matters?

MF:  I chair Death Penalty Focus, an ablition organization based in San Francisco, California. We have been working to help people better understand the truth about the death system and how it is failing us–in fact harming us–as a society. With the rise in public awareness of the failings inherent in capital punishment, we are now at a point where a coalition has been put together to put the question of replacing the death penalty with life without parole here in our state. It will save the state millions of dollars, provide more funding for police to solve the huge number of unsolved rapes and murders, and ensure that we no longer run the risk of killing an innocent person.

A case with which I’ve been involved for many years is that of Joe Giarrantano, in Virginia. Joe was sentenced to death in 1979, and was spared at the last minute from execution in 1991 by then-governor Douglas Wilder. We made a strong showing that Giarrantano deserved a new trial, but, again, Governor Wilder went halfway. He spared Joe’s life but tuned the question of a new trial over to the state’s Attorney General, who was not inclined to take the risk of Joe’s being found innocent (which I believe him to be). For that reason, Joe remains in prison to this day, a fact that sickens me.

Anne:  You have been the recipient of numerous awards and accolades for your decades-long efforts in raising awarness of various human rights issues. Undoubtedly your work has resonated with various “anti-groups” across the globe. Is there an exclusive award or accolade that has specific affection for you becuase you can clearly see the evidence and impact of your work?

MF:  One doesn’t do this work to win awards. The progress that the abolition movement is making inspires me. The fact that New York, New Jersey, New Mexico, and Illinois have chosen to end the use of state killings makes me know we will prevail. But perhaps the “award” that means the most to me is that, despite the fact that he remains behind bars, Joe Giarrantano is alive and able to do good work helping fellow inmates in Virginia.

Anne:  I believe that advocacy of a cause begins as a grassroots effort with a capacity to grow into a much larger movement. What can the average citizen do to involve him/herself in issues related to capital punishment and other human rights  issues?

MF:  If they care, people can read a bit, study it [human rights issues and death penalty cases] if they choose, and learn the facts about how the system is doing harm to all of us. When we spend more money on prisons than on colleges, there is something terribly wrong with our society. People need to be less quick to judge “wrong-doers” and more willing to look at the circumstances of the lives of too many people in our society who have been left behind and deemed invisible. If kids grow up thinking they have no value, they think no one else has any value either. If kids grow up surrounded by violence, how do we expect hem to undersand that violence is wrong?

We have work to do to make this society live up to its promise–for everyone.


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Supreme Court Says Eyewitness Evidence Requires No Special Caution

Alejandra de la Fuente — January 12, 2012 @ 6:20 PM — Comments (1)

On Wednesday the U.S. Supreme Court ruled that eyewitness evidence requires no extra cautions or inquiry to make it admissible. Justice Ruth Bader Ginsburg wrote the majority opinion of the Court and in the decision said that there is no reason to treat eyewitness identification as any different from other potentially flawed evidence. The opinion states, only when “there is ‘a very substantial likelihood of irreparable misidentification,’ Simmons v. United States, 390 U. S. 377, 384 (1968), the judge must disallow presentation of the evidence at trial.”

The truth is that there is always a very substantial likelihood of irreparable misidentification. Eyewitness misidentifications are the leading cause of wrongful convictions, and there is 30 years of social science evidence proving that eyewitnesses often make mistakes, according to the Innocence Project.

This new opinion upholds previous decisions from cases such as such as Neil v. Biggers, 409 U. S. 188 (1972) and Manson v. Brathwaite, 432 U. S. 98, 111–112 (1977), and keeps the due process test restricted only to errors made by law enforcement officers.

While Ginsburg said that eyewitness testimony is no different than any other potentially flawed testimony, that is simply false. Eyewitness testimony is different than other types of evidence. Humans, especially those under pressure, make mistakes. Further, this opinion seems to ignore the weight with which eyewitness identifications are held by most juries. These identifications tend to be extremely convincing with juries, and as a result held as more reliable or valuable than other evidence. These facts show that eyewitness IDs are in fact different than other types of testimony and evidence, and should thus be treated as such.

In taking up this case, according to the Court’s opinion, they sought “to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.” Given that even eyewitness identifications made under the best of circumstances are frequently flawed, it seems only logical to conclude that, of course, preliminary assessment of reliability should occur.

The Court’s decision also highlights the fact that the Constitution precludes defendants from convictions based on unreliable evidence not by refusing to admit that evidence but instead by providing them the means to persuade a jury of the unreliable nature of that evidence.  It is necessary here to return to the fact that juries look at eyewitness testimony as exceedingly compelling, and as a result this sort of evidence must be treated with the utmost care. Moreover, the aforementioned social science and America’s more than two-decade-long experience with DNA exonerations, demonstrate that the due process standards announced in Neil and Manson are simply inadequate to weed out bad IDs before trial and that juries just don’t have the knowledge or skill set to discount them during trial.  Thus, under the current regime upheld in this case, defendants have a very small chance of preventing the jury from hearing an identification or being able to convince a jury of the invalidity of eyewitness testimony once it comes in.

One of the big issues in this case deals with the jury’s right to weigh the credibility of witnesses against one another, a tenant that our legal system is based upon. Would instituting a rule requiring judges to complete pretrial screenings of eyewitness evidence every time an eyewitness identification impinge on the jury’s right to determine the weight and reliability of the testimony themselves? The Supreme Court seems to think so, yet based on empirical social science research it seems unfair to allow unchecked eyewitness testimony into the courts on such a broad scale. The opinion addresses the use of jury instructions to institute a level of fairness into the use of eyewitness identifications, but again the evidence shows that this testimony has an exceptionally powerful impact on juries. A possible remedy for this issue is the use of expert witnesses in explaining to a jury the issues with eyewitness identifications.

Justice Sonia Sotoymayor dissented from the Court’s opinion, and her dissent echoes all of the above issues. Sotomayor summarized these by saying, “this Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury,and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.”

Unfortunately, Sotomayor’s opinion was not the majority opinion of the Court, and the status quo set forth by preceding cases remains, leaving eyewitness identifications as largely admissible in spite of their tendency to hinder the justice system.

The real question is what does this mean for the reform of identification procedures and law surrounding identifications sought by the Innocence Movement.  Will law enforcement, prosecutors and courts simply point to Perry and say “well, the Supreme Court doesn’t think there is a problem so why should we?”  Only time will tell.

judicial,justice,Uncategorized, , , ,

Executions Past, Pending, and Halted

Alejandra de la Fuente — September 16, 2011 @ 4:06 PM — Comments (1)

Rick Perry, the Willingham case and the death penalty. Cameron Todd Willingham was convicted of murder and executed in Texas in February 2004. It was a grisly crime; Willingham’s three daughters died in what was supposedly a fire started by arson in 1991. Rick Perry, the man who would be President, was the governor then as he is now.  Although Perry has signed 234 death warrants (more than any other governor), this case stands out. It seems that many believe Willingham should not have been convicted, let alone executed, due to less than perfect arson scientific analysis – what some call “junk science”.

The Texas Forensic Science Commission was set to investigate the matter when Perry intervened two days before the body would hear expert testimony criticizing the handling of Willingham’s case. Not only did Perry replace Chairman Sam Bassett and the other three members, the Texas Attorney General has since limited the commission’s authority through a July ruling.

“At first, when I was replaced, I gave the governor the benefit of the doubt. But now that time has passed, I’ve seen this kind of endless drumbeat of strategies and actions to stop this investigation, and it’s been terribly disappointing,” said Bassett.

Perry and his campaign aides deny Bassett’s accusations claiming that Willingham was a “monster” who murdered his three children. Read more about this in Matt Smith’s and Ed Lavandera’s article at CNN Politics. Read more about Rick Perry and his embrace of the death penalty at The Crime Report (Bill Boyarsky).

The reconstituted Commission is set to meet next month to further examine the Willingham case and to begin a review of other cases that contain arson evidence. See Brandi Grissom’s article in The Texas Tribune. The Innocence Project asked commissioners to evaluate the actions of the Texas Fire Marshal’s Office. Stay tuned and remember – only in Texas!

The State of Georgia vs. Troy Davis. Troy Davis is due to be executed in Georgia on September 21. The case has garnered nationwide attention because of allegations that the case against Davis is, at best, seriously flawed. Not only have seven of nine eyewitnesses recanted, but no physical evidence exists to tie the convicted man to the case, although there is evidence of another perpetrator.  Davis has served 20 years on death row for the 1989 murder of a Savannah police officer and continues to declare his innocence.

Three thousand religious leaders from the 50 states have asked the Georgia Board of Pardons and Paroles to halt the execution to investigate this case further. Learn how you can help at Forbes (E. D. Kain, Contributor). The Board will meet on Monday to decide Davis’ fate and The Innocence Project encourages those interested to respond. We will keep you updated. Learn more by reading Emily Hauser’s piece in The Atlantic.

High Court halts another Texas execution.

MSNBC is reporting that the United States Supreme Court on September 15 halted the execution of Duane Buck by the State of Texas. There apparently is no question as to Buck’s guilt – he committed the double murder of his former girlfriend and her companion 16 years ago. He was arrested at the scene of the crime in an agitated state and there were several reliable eyewitnesses including his two children. The problem with this case is the validity of the sentence.

Buck’s attorneys allege that his case was “tainted by consideration of race” when a psychologist publicly testified that black criminals (Buck is black) were more likely to recommit violent acts in the future. The jury must consider the likelihood that the accused will be a continuing threat to society during its sentencing deliberations. We will keep you abreast of new developments.

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Release of Innocents, Destruction of Evidence & Examination of Eyewitness Testimony: News Round-up

Alejandra de la Fuente — August 30, 2011 @ 12:32 PM — Comments (1)

West Memphis Three Released. “I cannot believe that this day has come…” said Damien Echols upon his release August 19 from an Arkansas prison. Echols, Jason Baldwin, and Jessie Misskelley were set free after serving 18 years for wrongful 1983 murder convictions of three children. A rarely used agreement called an Alford plea that is much like a sentence commutation provided the basis for letting the three innocent men out of prison.

Longtime supporter Pearl Jam’s Eddie Vedder said, “We are so grateful for the release of these three innocent men through the ‘Alford plea,’ a plea which essentially exists to right the wrongs of an imperfect system of justice. While we celebrate the freedom of Damien, Jason, and Jessie, we are also mindful that justice has been only half served. Three men lost 18 years of their lives to a wrongful conviction, and the killer of three young boys has still not been brought to justice. It is my hope that as the West Memphis Three begin to build their lives anew, the investigation of the real killer is pursued with renewed vigor.”

Many supporters from the legal, music and entertainment worlds worked hard on behalf of the West Memphis Three. Read more about it at BusinessWire or check out information about the HBO documentaries or a book on the subject at National Public Radio.

Justice Delayed, Stored, Then Finally Destroyed in Manatee County. We keep finding out more about destroyed evidence in a Bradenton bank vault. Thanks to legal efforts of the Innocence Project of Florida (IPF) on behalf of Derrick Williams (later proven innocent and released), it came to light in 2002 that lots of evidence belonging to the Manatee County Sheriff’s Office was destroyed due to water damage. The number of involved cases that occurred from 1980 to 1995 is staggering – 3,637 – some possibly containing exculpatory evidence for others who were wrongfully convicted.

Said Seth Miller, IPF Executive Director, “One would have to think there are other Derrick Williams in those 3,600 cases…The takeaway is we’ll never know…Derrick was lucky,” he added. “He had a key piece of evidence held in the clerk of court. He had a key to unlock the truth about his case. For other people, their evidence was destroyed. Their chance at freedom may have burned along with the rest of the evidence that was incinerated.”

To learn more, read Lee Williams’ article at

U.S. Supreme Court to Take Another Look at Eyewitness Testimony.  Adam Liptak of The New York Times reports that the U.S. Supreme Court will explore again what the U.S. Constitution has to say about using eyewitness evidence – at once powerful and frequently wrong. The last time The Court considered this issue was 1977 and much has changed since then, namely DNA evidence. In fact, of the first 250 DNA exonerations, fully 190 included mistaken eyewitnesses.

Former Justice William J. Brennan once wrote “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”

While legal scholars and experts are happy that The Court is showing an interest in eyewitness testimony, the bigger issue of what is specifically involved in taking that look will likely not be addressed in the particular case of Perry v. New Hampshire, No, 10-8974. Barry Scheck, a director of the Innocence Project at the Benjamin N. Cardozo School of Law, calls for a new “legal architecture” in which judges are gatekeepers of eyewitness testimony with increased discretion to manage it.

More on Eyewitness Testimony from Florida. Todd Ruger of the Herald-Tribune reports of false eyewitness testimony in Sarasota County – it was at least 50 percent wrong at any rate.

An eyewitness identified two assailants in the June fatal shooting of a man on a Sarasota street. One of the men, Timothy Jenkins, Jr., declared his innocence but turned himself in. He was sure justice would be served. However, after 15 days of solitary confinement he asked his family to hire a lawyer. His lawyer with the help of a private investigator found other witnesses and a gas receipt to corroborate Jenkins’ story.

Jenkins was released after 39 days in jail and plans to start a new life in a state other than Florida.

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U.S. Supreme Court Delays Execution

Alejandra de la Fuente — March 25, 2010 @ 12:47 AM — Comments (0)

Early Wednesday evening, the United Stated Supreme Court issued an order delaying the execution of Henry W. Skinner, a death row inmate in Texas pending a decision on Skinner’s Petition for Certiorari. The execution will be delayed at least until the Court decides his Petition stemming from his pursuit of a federal civil rights claim which asserts he was denied a chance to obtain DNA testing of evidence to prove his innocence of a triple murder for which he was convicted more than 16 years ago. His execution was originally scheduled for Wednesday at 6:00 p.m. EST.

According to the website SCOTUSblog:

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6).  The Court decided the Osborne case on June 18, but left unresolved that specific issue.  The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge.  Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state procedures for DNA testing, so his only remaining chance to get it is through a civil rights claim.

Read the full story and find the link to the Court’s order HERE.

Constitution,judicial, , ,

Lethal Injection and the Mythology of Compassionate Execution

Alejandra de la Fuente — October 13, 2009 @ 8:00 AM — Comments (0)

As Lenore pointed out in a recent post, the latest lethal injection debacle, last month’s botched execution of Rommell Broom*, has caused lamentably little pause among advocates of capital punishment in general, and lethal injection, in particular. Needless to say, I have to concur with her post’s rather dim assessment of humanity in this regard.

Despair not, however, or at least not just yet. There may be a silver lining to that dark and ominous cloud after all. Aside from the obvious upside that Broom has not yet been executed, some additional good may come out of Broom’s harrowing experience. Today, for example, The Washington Post ran an article suggesting that the review of Ohio’s 32 executions since 1999 initiated by Governor Ted Strickland in the wake of the Broom’s ordeal has the potential to have a “wide impact” on the execution practices of other States. The immediate and long-term impact of that review will, of course, not be known until that review is completed, and the impact could lead to some much needed reforms along the progressive path to the death penalty’s abolition. Notwithstanding that, the debate generated by the Broom case and the discussion regarding what possible impact Ohio’s botched execution will have on current lethal injection protocols in other States raise some troubling questions about what impact, if any, Ohio’s review will have on prevalent opinions regarding the humaneness of the use of lethal injection as a form of capital punishment.

Undoubtedly, many of the other 35 States (as well as the Federal government) that use the same three-drug cocktail glowingly endorsed last year by the U.S. Supreme Court in its Baze v. Rees decision will be paying attention to Ohio’s review. States would arguably take advantage of any lessons learned from such a review as they tinker with and tweak their lethal injection protocols to keep them safely insulated from legal challenges and the problems and inconveniences such challenges pose to the States (And that is by no means to discount or trivialize the possibility, however small, that the review could lead to major reform of, or steps toward abolishing, the death penalty in Ohio or elsewhere; it wouldn’t be the first time, after all.) Still, State’s have in mind some more “pragmatic” concerns. For one, litigation is expensive, time-consuming, and largely undermines a State’s somewhat misplaced interest in swiftly meting out their perverse version of “justice.” For another, incidents such as that which befell Rommell Broom transport the ugly and grotesque reality of executions from the “out-of-sight-out-of-mind” shelter of the penal system into the revealing (or at least what should be revealing) limelight of the public debate. So, again, other States will be closely watching Ohio’s review.

What maybe isn’t as obvious, if we believe the not entirely disingenuous statements of State actors claiming concern for the humaneness of their execution protocols, is that, contrary to the hollow praise the Baze Court lavished upon Kentucky’s lethal injection protocol as a testament to the humanitarian evolution of the death penalty, the feigned concern for the oxymoronic notion of compassionate execution can be interpreted just as easily as an ironic permutation of political subterfuge (i.e. selling the desire to kill as compassion for those one seeks to kill). I, for one, and I don’t believe I am alone in my conviction, am not convinced that the driving force behind the various States’ efforts to review and revise their execution protocols is actually compassion for those it wishes to subject to the State machinery of death, but, rather, is the self-interested concern to ensure their execution protocols do not run legally afoul of the 8th Amendment’s prohibition on “cruel and unusual punishments.”

But why wouldn’t it be reasonable, if not even respectable, for a State to be concerned with violating a Constitutional prohibition on cruel and unusual punishments?

Well, and perhaps I’m a cynic, but this concern does not seem to me to be compassion for those condemned to die or concern that cruel or unusual punishments might be problematic by any moral or ethical calculus, but instead a bare desire by many States to retain the ultimate power to take human life, to exercise that power with all deliberate speed, and to be as crafty and careful as need be to avoid the inconvenience of the “never-ending” and “abusive” litigation practices of those condemned to be executed. Fortunately for the States, the only limitation our country’s highest court has placed on this power is that such takings of human life must not be “cruel” or “unusual” as the members of that Court understand those words to mean. Oh, and by “cruel and unusual” those members apparently mean the “wanton exposure to [an] ‘objectively intolerable risk’ of pain.” Compassionate, indeed.

I’ll conclude in what may be a non sequitor by simply quoting Justice Stevens concurrence in the Baze decision (in which he quotes Justice White’s concurrence in Furman v. Georgia):

“[T]he imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ ”

*Note from above: As the Post article points out, Ohio’s original grant of a temporary delay of Broom’s execution has been extended while a federal court considers a defense claim that a second execution attempt would amount to cruel and unusual punishment. This is particularly interesting in light of the Court’s 1947 decision in Louisiana ex rel. Francis v. Resweber in which a plurality upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt.

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Not Innocent Enough

Alejandra de la Fuente — September 08, 2009 @ 11:00 AM — Comments (0)

I hope everyone had a wonderful Labor Day weekend. I’m going to start this week of talking (once again) about Cameron Todd Willingham.

Firstly, I highly recommend everyone read this article from The New Yorker. I hadn’t previously shared it, but it’s really the most amazing and heartwrenching piece describing Willingham’s story.

Second is an article from the Slate this weekend, entitled “Not Innocent Enough: The elusive search for the sufficiently innocent death-row victim.” This opinion article takes a look at the possible impact of Willingham’s case on death penalty support. Prior to the discovery of his innocence, the argument from death penalty supporters was the absence of proof that any death penalty victim had not been guilty of their crime. If there was an innocent person killed, would it change their minds?

The article mentions Supreme Court Justice Antonin Scalia several times, a Justice who has continuously fought for the death penalty. After the order to grant Troy Davis a new hearing, Scalia wrote..

“[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

Basically, it is technically not unconstitutional to kill an innocent man as long as he had a previous trial. I am shocked. If you execute someone who is actually innocent, there really is no consequence for those who put him there. In fact, back in 1993 the Supreme Court ruled that it was ok. I’m sure it’s not just me who thinks that wrongful execution isn’t a little mistake you can ignore. Changes need to be made to prevent this from happening again; one innocent person killed is too many. But how can we trust that the state will do what needs to be done when the Constitution tells them it’s ok?

In [Supreme Court Justice Antonin] Scalia’s America, the Cameron Todd Willingham whose very existence was once in doubt is today constitutionally immaterial. Having waited decades for an innocent victim of capital punishment, the fact that we have finally found one won’t matter at all. In this new America we can execute a man for an accidental house fire, while the constitution stands silently by.

It’s a scary world when the ones who are supposed to protect us are also the ones that kill us without any qualms about it.

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Great opinion piece on obtaining post-conviction DNA testing

Alejandra de la Fuente — July 22, 2009 @ 10:29 AM — Comments (0)

I ran across this wonderful opinion piece on the Criminal Justice blog. It says everything that needs to be said about the Supreme Court’s decision last month on the constitutionality of post-conviction DNA testing:

On June 18th, the United States Supreme Court ruled by a 5-to-4 decision that prisoners have no constitutional right to DNA testing that might prove their innocence if they have been wrongfully convicted. That decision is one that will hurt crime victims in the U.S.

The five-justice majority found that this was a state issue instead of a federal one. In essence, state legislatures were doing enough already to remedy the problem of wrongful convictions. The opinion, written by Chief Justice John Roberts, Jr. for the majority, said that to vote in favor of giving such rights to inmates would “short circuit what looks to be a prompt and considered legislative response.” It’s hard to agree with Chief Justice Roberts when 240 prisoners to date in the U.S. have been exonerated because of the use of DNA testing. Often the exoneration of these inmates has been due to the hard work of organizations like the Innocence Project and other organizations across the country. Without the use of DNA testing it is hard to think how these innocent prisoners would ever have seen the light of day.

But what concerns me as well is the number of crime victims who have been shafted yet again by the criminal justice system in the U.S. They once thought their case was solved only to find years later, sometimes two decades later, that the wrong man was convicted and sentenced. What a blow! According to the Innocence Project, out of the 240 exoneration cases, some 103 of those cases also identified the actual perpetrator through that same testing. DNA testing frees the innocent and catches real perpetrators. As a restorative justice advocate my question is : What on earth are we waiting for?

The argument against “constitutionalizing’ this area, as Chief Justice Roberts called it, is assuming that all state legislatures in the U.S. will do the right thing. My understanding, and my experience with this subject, is that there is progress in the area of righting these atrocious wrongs in these criminal cases when some advocacy organization, like the Innocence Project, or an interested legislator takes up the cause to attempt to lower the number of wrongful convictions in their state. I’d say it’s not a high priority these days in any state.

In California in 2006, there was a package of bills to address wrongful convictions as proposed by the California Commission on the Fair Administration of Justice. I wrote a letter of support for these bills on behalf of The Justice & Reconciliation Project, an organization representing crime victims in support of restorative justice. Those bills were passed by the Legislature and landed on the governor’s desk in 2006 and 2007. Both times the bill package was vetoed. Not exactly swift justice. Do states need a little push to do the right thing here? Yes. More states are looking at the problem of wrongful convictions but because of this Supreme Court ruling the most important weapon to fight these miscarriages of justice has been denied.

When I became more aware of wrongful convictions I was urged to read a book called “Surviving Justice, America’s Wrongfully Convicted and Exonerated” – edited by Lola Vollen and Dave Eggers. If you think that wrongful convictions only happen to those who are of the criminal ilk you would be wrong. After reading this well researched book you realize that “by the grace of God go I.” No one is immune from the common occurrence of a witness misidentifying an innocent man or woman after a crime has been committed. That is the number one reason why innocents are behind bars for crimes they did not commit: faulty witness identification.

But for God’s sake, if we know we have hundreds or thousands of innocents behind bars must we not do everything in our power to set them free if we live in a civilized society? Absolutely. This court ruling will now make this work harder and slower. As I said earlier, crime victims are hurt – not helped – by this ruling. The challenge on top of this urgent need to free those who are wrongfully convicted is to remember then that someone who is actually guilty of that crime is free at large. Ask a crime victim how they would view that fact. Having worked in the restorative justice field for 15 years I can tell you that crime victims want the system to get it right. There can be no restoration of crime victims, nor can there be offender accountability – two key elements of restorative justice, if the real perpetrator is not caught.

Lastly, I am sharing this video of a man I met in Sacramento a few years ago. His name is Herman Atkins. He is an exoneree freed in 2000 due to DNA testing after serving over 11 years in prison for rape he did commit.

I fear in America we have just exposed the tip of the iceberg. There is so much more we can do to right these wrongs: for the innocent in prison and the crime victims who still seek justice.

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Taking a look at Sotomayor on crime

Alejandra de la Fuente — July 08, 2009 @ 10:58 AM — Comments (0)

We have been relatively silent with regards to Sonia Sotomayor and her nomination to the Supreme Court to fill Justice David Souter’s seat. (Sotomayor’s confirmation hearings begin this Monday, July 13.)

There has been much attention paid to Sotomayor’s rulings on some issues – especially in light of the recent Ricci ruling from the Supreme Court, which overturned a panel judgment rendered by Sotomayor and two others – but less to her stances on crime. Allow me to break that silence by pulling from a few news items and analyses.

There seems to be a consensus forming around the idea that Sotomayor is a “thoughtful, experienced moderate,” as Matt Kelley says over at Change.

Yesterday morning’s All Things Considered segment on NPR concluded,

Analysts see Judge Sonia Sotomayor as a moderate whose decisions in criminal cases rarely differ from those of her colleagues on the federal bench. Some say her experience as a prosecutor and her record on the bench might make her more conservative than Justice David Souter on criminal justice issues.

Matt also notes that Sotomayor rules in favor of the defendant in more than the average federal judge (7.41% of the time versus 6.28%), has indicated support for restoring felon voting rights, and laments that, while she opposes the death penalty personally, it is “not up to her” to change it from the bench.

The New York Times analyzes that last case, which it says is the only death penalty case Sotomayor has dealt with.

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some two years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

Finally, McClatchy newspapers says Sotomayor is “far from soft on crime,” which should force any rhetorician charging the opposite to put their foot in their mouth. There has been a lot of ink spilled over Obama’s introduction of Sotomayor as his nominee in which he lauded her “empathy” on the bench. (In fact, that is one of the tiny handful of words that opponents have been forced to cling to, unable to otherwise find anything legitimately damning.)

Says McClatchy, however,

While tilting liberal in some areas, Sotomayor’s five years in the Manhattan district attorney’s office and 17 years on the federal bench appear to place her near the center in criminal law matters.

Good luck to Sonia in her upcoming hearings.

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Troy Davis decision delayed in Supreme Court

Alejandra de la Fuente — June 30, 2009 @ 10:51 AM — Comments (1)

News came down yesterday that the Supreme Court had opted not to consider the case of Troy Davis during this term. Their term ended yesterday, and they will reconvene in the fall. Coverage from the Innocence Project:

Davis was convicted in 1989 of shooting a police officer in a Savannah parking lot. The central evidence against him at trial was the testimony of several eyewitnesses, most of whom have since recanted, saying the police coerced them into testifying against Davis. Some of the new evidence pointing to Davis’ innocence has never been heard by a court, and Davis’ lawyers were asking the U.S. Supreme Court to order a new evidentiary hearing. The court will not make a decision in Davis’ case until September, but Davis’ advocates are asking local officials to step in this summer.

Until September, then, Troy Davis’ case is in limbo. That means several more months of organizing, demonstrating, and lobbying on the part of activists to try to bring more attention to the case. (Georgia would be foolishly brazen to execute Troy while a decision is pending at the Supreme Court.) Amnesty International and other groups have been doing a fantastic job of demonstrating for the past several months, and I suspect they will only ramp up their efforts following this encouraging news.


The court’s delay means he won’t be executed this summer, and advocates were encouraged that the delay was a sign that the Court may have reservations about allowing Davis to be executed.

Add your name to Amnesty International’s petition here.

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