The New England Innocence Project

Update in Jeffrey MacDonald Case

2011-04-20T13:33:00.000-07:00

A federal appeals court ruled yesterday that a lower court was too restrictive in refusing to consider new DNA evidence and witness statements in the case of Jeffrey MacDonald. MacDonald was charged in 1979 with the murders of his pregnant wife and two young daughters but has always maintained his innocence. In trying to prove his innocence, MacDonald has urged the court to consider both DNA evidence and witness statements. The DNA evidence shows that a hair found under one of his daughter’s fingernails does not match him or anyone else in the family. Furthermore, under yesterday’s ruling, statements made by a retired deputy U.S. marshal, who claims he overheard the lead prosecutor threatening a witness, causing her to change her story, will also be admissible.

Read the article here.

Debra Cassens Weiss, “4th Circuit Tells Lower Court to Consider DNA in Appeal of “Fatal Vision” Doc. April 20, 2011. ABA Journal.

NEIP Team Attends Annual Innocence Network Conference

2011-04-20T09:41:00.000-07:00

Three NEIP team members and NEIP's Executive Director recently returned from the 2011 Innocence Network Conference in Cincinnati, Ohio. Also in attendance were two New England exonerees, Lawyer Johnson and Dennis Maher. The conference was hosted by the Ohio Innocence Project. This year's conference covered a variety of post-conviction topics and examined wrongful convictions on an international scale. The annual conference is a great resource for both Innocence Projects and exonerees. Some of the topics at this year's conference included judicial perspectives on DNA testing requests and actual innocence claims, false confessions, post-conviction DNA testing, recantation evidence, the Freedom of Information Act, and federal habeas corpus. International exonerees from England, Japan, Canada, Mexico, and Nicaragua spoke about their cases and each shared his exoneration experience in the country where he was wrongfully convicted. The conference concluded with a moving concert performed by the exonerees.

To learn more about past Innocence Network Coferences, click here.

Reforming Forensic Science

2011-04-12T09:44:00.000-07:00

In the past few years national attention has increasingly focused on the fallibility of forensic science. Forensic disciplines once touted as scientifically accurate such as bite mark analysis have not been subject to peer review or scientific testing. In addition, bias among law enforcement and crime labs in favor of convictions too often leads to misuse of forensics.

Bias can be caused by medical examiners or crime labs reporting directly to the attorney general or other state law enforcement official and influences the entire process of collecting and analyzing scientific evidence. A 2002 study by Michael Risinger, a law professor at Seton Hall, identified five different parts of scientific analysis susceptible to influence by unintentional bias. They are: how the analyst observes the initial data, how he records the data, how he makes calculations, and how he remembers and reinterprets his notes when preparing for trial. For example, researchers at the University of Southampton in the UK published a study in 2006 that found “the error rate of fingerprint analysts doubled when they were told the details of the case they were analyzing”. Balko makes recommendations for how to improve the system by creating different incentives, namely rewarding analysts for doing accurate work and penalizing them for errors.

Read more here
Balko, Radley. “Getting Forensics Right”. March 14, 2011

Judge Nancy Gertner's Call to Action for Criminal Defense Attorneys

2011-04-12T08:32:00.000-07:00

In a UCLA Law Review article titled "Commentary on the Need for a Research Culture in the Forensic Sciences " (58 UCLA L. Rev. 789 (2011)), Judge Nancy Gertner discusses the need for attorneys to familiarize themselves with the forensic sciences. In the wake of the National Academy of Sciences Report, which calls for drastic changes in the scientific community regarding forensic science standards, Judge Gertner advocates for change within the legal community as well. She believes that defense counsel's lack of forensic knowledge could be grounds for a successful ineffective assistance of counsel claim. Judge Gertner cites US v. Pena (586 F.3d 105 (2008)) to illustrate a defense attorney's failure to follow through with a Daubert hearing after it had been granted by the court. Defense counsel should know how the science works so they can actively challenge it at trial.

She writes, "Counsel have to learn that advocacy in cases involving forensic evidence requires familiarity with the kind of issues the NAS Report raised. And further, courts need to make it clear that such familiarity may be one of the benchmarks in evaluating when assistance of counsel is constitutionally ineffective."

Although not mentioned in the article, this issue arose last year in Judge Gertner's own courtroom in the case of James Hebshie. Hebshie was convicted of arson based largely on unvalidated forensic science. His attorneys failed to request a Daubert hearing regarding any of the arson testimony, despite the fact that Judge Gertner repeatedly asked them if they would like to do so. Judge Gertner granted Hebshie a new trial, citing his counsel as being constitutionally deficient for failing to challenge the arson science.

Boston Globe Focuses on Wrongful Convictions and Post Conviction DNA Access in Massachusetts

2011-04-11T14:13:00.000-07:00

This week, two Boston Globe articles have shed light on wrongful convictions in Massachusetts, and what can be done to remedy them. In an op-ed, Brandon Garrett, a law professor at the University of Virginia, writes about Massachusetts exoneree Neil Miller. Miller was convicted of rape, largely based on mistaken eyewitness testimony. Garrett points out the problems in the system that cause wrongful convictions time and time again. He recommends that all states adopt DNA preservation and access laws, and advocates for requiring that all police interrogations be videotaped.

Another Globe article this week focused on Massachusetts' lack of a DNA access or DNA evidence preservation law. A DNA access law would mandate access to post-conviction DNA testing for inmates, with certain restrictions. A DNA preservation law would require that DNA evidence in a case be preserved for a certain amount of time. The article points out that Massachusetts is one of only two states nationwide that does not have a DNA access law (the other is Oklahoma). However, the article incorrectly states that inmates still have access to testing. Unfortunately, this is not the case. An inmate can request testing, but there is no guarantee at this time that his or her request will be granted by the court. Additionally, because Massachusetts has not enacted a DNA evidence preservation law, officials are currently free to destroy DNA evidence related to a defendant's case, so there may be no evidence left to test. While some inmates ultimately receive testing, others do not. The New England Innocence Project, in conjunction with other Massachusetts organizations, is in the process of trying to get a bill passed that would allow all inmates access to DNA testing and would require that all DNA evidence related to a defendant's case be preserved.

For Garrett's op-ed, click here.
To read the complete Globe article about DNA testing, click here.

CNN Show Focuses on Wrongful Convictions in North Carolina

2011-01-28T14:24:00.000-08:00

Tune in Sunday, January 30th at 8:00pm for Rouge Justice, which tells the story of Greg Taylor and Floyd Brown, who were wrongfully convicted in North Carolina. The North Carolina State Bureau of Investigation was involved in both cases.

The show will also be replaying on February 5th at 8:00pm.

Illinois Exoneree Asks Governor Quinn to Abolish Death Penalty

2011-01-12T10:54:00.001-08:00

In 1986, Randy Steidl was convicted of murder he did not commit. Jailhouse snitch testimony played a role in convicting Steidl and Herbert Whitlock, his co-defendant. Steidl won his motion for new trial in 2003, and was exonerated in 2004 after the government declined to appeal the decision.

Steidl's conviction brought the wrongful conviction rate of death row inmates in Illinois to 6%. Today, Steidl is calling for the Governor of Illinois, Pat Quinn, to repeal the death penalty. Last week, the Illinois house of representatives voted to repeal the death penalty. Today, the senate followed suit. Now the bill will go to Quinn, who is expected to sign it.

If Quinn signs the bill, it will be a victory for The Center on Wrongful Convictions at Northwestern Law School. CWC has worked for years to abolish the death penalty in Illinois.

"Gordon (Randy) Steidl". Center on Wrongful Convictions.
Wilson, Todd and Ray Long. "Illinois death penalty ban sent to Gov. Pat Quinn."

Texas Forensic Science Committee Reviewing Willingham Case Today

2011-01-07T07:38:00.000-08:00

To access the live stream of the committee hearing, go here: http://www.innocenceproject.org/Content/Texas_Forensic_Science_Commission__Watch_Live.php

(Courtesy of the Innocence Project)

Free After Thirty Years

2011-01-06T12:14:00.000-08:00

This week Cornelius Dupree, Jr. was declared an innocent man after serving more than three decades for a crime he did not commit. Dupree was charged in Dallas, TX in 1980of rape and robbery. The conviction was based largely on a faulty witness identification. Earlier this year, DNA evidence from the rape proved that Dupree was not the perpetrator.

Dupree was represented by Innocence Project Co-Founder Barry Scheck and Senior Staff Attorney Nina Morrison. Morrison said “Mistaken identification has always plagued the criminal justice system, but great strides have been made in the last three decades to understand the problem and come up with fixes like those being considered by the state Legislature that help minimize wrongful convictions. We hope state lawmakers take note of the terrible miscarriage of justice suffered by Cornelius. When the wrong person is convicted of a crime, the real perpetrator goes free, harming everyone.”

Legislation is in the works in Texas to provide standards to law enforcement for administering lineups and photo arrays. These standards would help to prevent eyewitness misidentification by preventing influence of the witness and by imposing strict standards to increase the accurary and reliability of identifications.

Anthony Massingill was convicted with Dupree. He is expected to be exonerated later this month.

Innocence Blog. "Houston Man to be Declared Innocent After Serving 30 Years for a Dallas Rape and Robbery He Did Not Commit." January 4 2011.

Hilary Swank Nominated for SAG Award

2010-12-30T11:31:00.000-08:00

Hilary Swank's portrayal of Betty Anne Waters in Conviction has earned her a SAG Award nomination for Best Actress. Swank said she was honored to be nominated by a group of her peers. She said, "I have to say, the real payoff in a movie like this is that Betty Anne Waters looks at you and says, ‘You did justice to my story.' When you go to the premiere and she looks over at you and has a sparkle in her eye and wells up and says, ‘Thank you,’ that’s the real honor. That’s the experience and the reason why I’m an actor. It’s to tell the stories."

The SAG Awards air Sunday, January 30th on TBS and TNT.
To see the full list of nominees, click here.

Kaufman, Amy. "SAG Nominations: Hilary Swank on 'Conviction'." http://entertainment.latimes.com/awards/2010/12/sag-nominations-hilary-swank-conviction.html

NEIP Board Member Featured in BU Law Webcast

2010-11-29T07:06:00.000-08:00

Stanley Fisher, a NEIP board member and law professor at Boston University Law School, was featured with two of his former students in a short video. Check it out to hear him talk about the Innocence Project!

James Hebshie Released on Bail in Time for Thanksgiving

2010-11-23T11:01:00.000-08:00

After spending more than four years in prison, James Hebshie left the federal courthouse with his family today after US District Court Judge Nancy Gertner granted his Emergency Motion for Bail and released him on personal recognizance. After a 5 day hearing last July, Mr. Hebshie's conviction was vacated by Judge Gertner last week. Gertner wrote, "this Court recognizes the importance of finality in criminal cases, particularly after time and resources have gone into the trial, and after a jury has pronounced guilt. But finality cannot trump fairness or justice."

The government did not oppose Hebshie's motion. Mr. Hebshie, in a brief but moving speech, thanked the Court and those who worked to help him gain his freedom. "I never thought I'd live to see this day," Mr. Hebshie said.

NEIP Thanks Jeanne Kempthorne & John Lentini

2010-11-17T12:37:00.000-08:00

James Hebshie's case would most likely have been another wrongful conviction that never came to light without the help of Jeanne Kempthorne and John Lentini. Ms. Kempthorne took on Mr. Hebshie's case for appeal and, believing in his innocence, refused to give up after losing in the first circuit. She enlisted the help of NEIP for the habeas petition. Kempthorne was a U.S. attorney for ten years before opening her own firm. She focuses on appellate and post-conviction practice in state and federal court.

John Lentini, one of the nation's most prominent fire scientists, testified on Hebshie's behalf at the evidentiary hearing granted by Judge Gertner in this case. Lentini has testified in over 200 cases (both civil and criminal) and has conducted over 2,000 fire scene investigations. Lentini pointed out the shortcomings in the government's case, including the "scientific" testimony relating to the fire. Judge Gertner relied heavily on Lentini's testimony when issuing her order earlier this week.

James Hebshie's Conviction Vacated

2010-11-17T07:11:00.001-08:00

On November 15th, Judge Nancy Gertner issued a 69-page ruling granting James Hebshie's habeas petition. Mr. Hebshie was convicted of starting a fire that destroyed an office building in Taunton, MA. The fire occurred in 2001, Mr. Hebshie was convicted in 2006. Mr. Hebshie ran a convenience store within the office building. The government's theory was that Hebshie burned his store to get $5,000 worth of insurance money. The government put on the following witnesses to tell their story:

1. David Domingos: (Cause-and-Origin Investigator) Domingos testified that the left-side wall in Hebshie's store was the most damaged (even though other parts of the store had collapsed). Domingos centered in on the store very early on in the investigation. Judge Gertner points out, "Domingos discounted the theory that the fire was an electrical fire starting in the basement, even though, as noted, his written report did not mention the basement at all."

2. Sergeant Lynch: (Canine Handler) Lynch testified at length about the "accelerant-detection" dog, Billy. Lynch discusses Billy's personality, his emotional attachment to the dog, and "the way her eyes shifted," "the way her ears shifted when she located stuff." Lynch vouched for the dog as 97% accurate, an assertion that was not corroborated by any evidence. Lynch only brought Billy into Hebshie's store, where she alerted the presence of a substance later classified as light petroleum distillate (LPD). When Billy alerted, Lynch took only one carpet sample; no control samples were taken. LPD is a substance that could have come from any number of sources, including the chemical makeup of the carpet itself. When asked why no control samples were taken, Lynch and Domingos both pointed the finger at each other.

3. Lieutenant Myers: Myers was the first firefighter on the scene. He testified to the thermal imaging. After the initial fire had been extinguished, the imaging camera showed "hot spots" along all four walls. Myers believed that this merely meant that the walls were hot from the fire that had been extinguished. In fact, the fire was inside the walls and continuing to spread.

Hebshie's counsel, John and Jay Spinale, did not challenge any of the aforementioned "scientific" evidence, despite the Court repeatedly asking them if they'd like to have a Daubert hearing. The Spinales also failed to object to the lengthy, and as Gertner puts it "mystical account," of the dog-sniff evidence.

These, coupled with numerous other deficiencies, caused Judge Gertner to order a new trial for James Hebshie. The conclusion of her opinion sums it up best:

As Larry A. Hammond, past president of the American Judicature Society, noted: "By routinely allowing into evidence expert testimony that we know should have been excluded, and by closing courthouse doors to claims for redress after conviction, the courts have contributed to the problems we face today." Larry A. Hammond, The Failure of Forensic Science Reform in Arizona, 93 Judicature 227, 2 (2010).

In fact, he suggested, one thing that each of the cases in which there have been wrongful convictions necessarily have in common is that each were presided over by a judge, an appellate court, and typically had post conviction habeas review. And then he concluded:

"One would hope that with the announcement of every exoneration, the judges across whose desks these cases passed would pause to ask, ‘what can we do to make sure that this doesn’t happen again?"

This Court recognizes the importance of finality in criminal cases, particularly after time and resources have gone into the trial, and after a jury has pronounced guilt. But finality cannot trump fairness or justice. If Hebshie’s defense of serious charges was fatally undermined by ineffective counsel, I am duty bound to say so. Therefore, Hebshie’s habeas petition is GRANTED.

For the first news article breaking the story, click here.
See below for Judge Gertner's full order.

US v. Hebshie

Exoneree Dies Months after Being Released From Prison

2010-11-10T07:57:00.000-08:00

Bobby Ray Dixon spent more than 30 years in prison for a rape and murder he did not commit. Dixon was convicted in 1979 along with two other men who were eventually exonerated. The Innocence Project New Orleans worked on Dixon's case. His guilty plea was finally set aside on September 16th, 2010.

Sadly, Dixon passed away this week after battling lung and brain cancer. He was 53. Dixon's younger brother, Jerry, said that he was happy his older brother lived to see his name cleared. Emily Maw, director of the Innocence Project New Orleans said, "I think there are times when the wheels of justice grind slowly in a lot of cases. The fact that they did so slowly in this case is particularly sad."

Dixon was exonerated after DNA was tested in the case. The DNA matched Andrew Harris, a man already in prison for rape. IPNO is also working to exonerate another man convicted in the case, Larry Ruffin, who died while in prison.

Byrd, Sheila. "Man dies weeks after being cleared in 1979 killing." November 9, 2010.

NY Exoneree Awarded $18 Million

2010-10-22T06:03:00.000-07:00

Alan Newton was arrested in 1985 for rape and robbery. He was convicted based on eyewitness testimony, and spent more than twenty years in prison. Four years ago, he was exonerated. This week, Newton was awarded $18 million in his civil suit against the city.

Newton and his lawyers spent five years trying to locate the rape kit to send for more extensive DNA testing. The sample was finally tested in 2006, leading to Newton's exoneration.

The jury found that Newton's constitutional rights were violated, and found two police officers liable for intentional infliction of emotional distress by not producing the rape kit sooner. John F. Shutty III, Newton's lawyer, argued that the system in place for tracking post-conviction evidence was unacceptable and violated his client's constitutional rights.

Since his release from prison, Newton has attended college and now works for the Black Male Initiative of the City University of New York to ensure that students graduate. Newton also took the law school admissions test and plans to apply to law school.
“I want to work with people that really need that legal assistance that’s just not there for them,” he said. “There are so many issues where people need competent counsel, and it’s just not out there. I think I’ll jump into it with both arms.”

O'Connor, Anahad. "$18 Million to Man Wrongfully Imprisoned." October 18, 2010. http://www.nytimes.com/2010/10/20/nyregion/20award.html?_r=2

NEIP Hosts Conviction Screening

2010-09-30T09:35:00.000-07:00

This week, NEIP and Fox Searchlight hosted an advanced, pre-screening of Conviction, a major motion picture about the life of Betty Anne Waters and her brother, Kenny. Conviction chronicles Betty Anne's journey to proving Kenny's innocence after he is incarcerated for a murder he did not commit.

Tony Goldwyn, the director of the film, was joined by Sam Rockwell (who plays Kenny) and Betty Anne Waters. After the screening, they answered questions from the audience. The event was mediated by Scott Feinberg, a prominent film and Oscar blogger. Click here to see Scott's summary of the event, including videos of the Q&A following the film.

Two exonerees attended the event and spoke during the Q&A. Dennis Maher, a NEIP exoneree was in attendance, along with Fernando Bermudez, who was exonerated by the Innocence Project in New York.

The movie opens in theaters nationwide on October 15th. Click here to view the trailer!

Texas Forensic Science Commission Discusses Willingham Case

2010-09-24T07:09:00.000-07:00

After nearly two years, the Texas Forensic Science Commission (TFSC) has still yet to reach a decision about the Cameron Todd Willingham case, which has been pending since 2008. In 1992, Willingham was convicted of setting a fire in his home that caused the death of his two daughters. Willingham never stopped proclaiming his innocence. He was executed in 2004.

Members of the commission were reluctant to adopt the findings of the draft report, which states that the fire investigators were not negligent because they used fire investigation standards that existed at the time. One member, Sarah Kerrigan, thinks there is a disconnect between the standards used in the investigation and the ones widely accepted now. Another member, Garry Adams, said he was “not completely convinced that the science wasn’t available to the analysts” at the time of the Willingham investigation.

The commission will meet again on November 19th to hear expert testimony about the investigation standards then and now.

Click here to see video of Barry Scheck speaking in front of the TFSC last week.

Smith, Morgan. Forensic Science Commission Takes up Willingham. http://www.texastribune.org/texas-dept-criminal-justice/death-penalty/forensic-science-commission-takes-up-willingham/

New England Exoneree Featured at Maine's Red Mass

2010-09-22T07:46:00.000-07:00

NEIP exoneree Dennis Maher will be speaking at this year's Red Mass, an annual event for the legal community in Maine. The Red Mass is held for all those involved in the administration of justice.

Maher was convicted in 1984 of two counts of sexual assault and one count attempted sexual assault in Ayer, MA. He spent 19 years in prison before DNA evidence exonerated him. Maher was an army sergeant before his arrest. He had a clean criminal record and was convicted without any physical evidence linking him to the crime. Maher was finally exonerated in 2003. He now lives in Tewksbery with his wife and two children.

Maher's speech will be a departure from the normal Red Mass speakers, who are usually judges or prominent attorneys.

Harrison, Judy. "Wrongfully convicted man to speak after Red Mass." http://dailyme.com/story/2010091300000137/wrongfully-convicted-man-speak-red-mass.html

Arson Convictions in Massachusetts Coming Under Fire

2010-09-09T11:29:00.001-07:00

In the past few months, three different arson convictions in Massachusetts have been challenged by nationally recognized fire scientists. These scientists point out that certain patterns thought to be present only in intentionally set fires are now known to occur in accidental fires as well.

In 1991, a scientific manual was published that pointed out these misconceptions. Ever since, the number of fires determined to be arson steadily declined in Massachusetts. Between 1984 and 2001, the number of fires ruled arson declined by 70%,while the total number of fires stayed relatively the same.

State Fire Marshall Stephen D. Coan credits this noticeable decrease to better fire science education and increased visibility of law enforcement.

John Lentini, one of the nation's most prominent fire scientists, says "there were a lot of accidental fires determined to be arson that weren't. I don't know any other way to interpret this dramatic decline."

Barry Scheck, co-founder of the Innocence Project, has urged prosecutors to go back and examine their old arson cases. Sheck believes that this obligation arises from knowing about the unreliabitliy of arson science. However, Coan says such reviews would be unnecessary.

One of the cases currently being questioned is the Lowell fire of 1982, for which Victor Rosario is serving a life sentence. NEIP has previously posted a blog detailing the problems with Rosario's conviction.

Another case is the conviction of James Hebshie in 2001. Hebshie ran a convenience store within an office building in Taunton, Massachusetts. After a fire consumed the whole building, Hebshie was convicted of the crime. Lentini has reviewed Hebshie's case and believes that the fire investigator got it wrong. He points out that Trooper David Domingos's determination that the fire started in Hebshie's store is inconsistent with the fact that the fire was blazing behind the walls on the opposite side of where the fire allegedly started. Lentini states, “The methodology used to determine the [fire’s] origin was outdated.’’

NEIP attorneys worked in conjunction with Hebshie's private counsel on his motion for a new trial, which is currently awaiting a decision in US District Court.

Nicas, Jack. "Scientists challenge Massachusetts arson convictions." September 8, 2010. http://www.boston.com/news/local/massachusetts/articles/2010/09/08/scientists_challenge_massachusetts_arson_convictions/

Connecticut Supreme Court Declines to Rule on Important Innocence Issue

2010-08-24T10:58:00.000-07:00

This week, the Connecticut Supreme Court unanimously upheld J'Veil Outing's 2005 murder conviction. Outing was linked to the murder by two eyewitnesses, who have both since recanted. No scientific or ballistic evidence links Outing to the crime.

Outing wanted to introduce expert testimony about the unreliability of eyewitness identifications. The testimony would have focused on recent scientific studies pointing out why witnesses sometimes erroneously identify the wrong people as suspects.

The four-justice majority believes that this case is not the right one to introduce such testimony, because other factors were more important to the verdict. The court said the exclusion of the testimony was "harmless error", because the jury could use their common sense to make the determinations themselves about the unreliability of the eyewitness. The majority relied on a 25-year old precedent holding that such testimony is not mandatory.

Three justices challenged the majority's view, claiming that relying on such an old ruling was potentially prejudicial to defendants. Justice Flemming Norcott Jr. wrote, "I simply do not think it appropriate or wise to wait for the 'right' record to come before us before we act to correct this dangerously outmoded body of case law."

The unreliability of eyewitness testimony has recently been gaining media attention. Some attorneys believe the Supreme Court will address this issue sometime in the near future.

Reitz, Stephanie. "Conn. high court upholds murder conviction" http://www.boston.com/news/local/connecticut/articles/2010/08/20/conn_court_to_rule_on_witness_ids_of_suspects/?page=full

NEIP Board Member Discusses Wrongful Convictions

2010-08-03T11:48:00.000-07:00

This week Stanley Z. Fisher, a NEIP founding member and trustee, participated in a Boston University Law School/Legal Talk Network Podcast. Fisher, a professor at BU law, teaches classes on criminal law and wrongful convictions. Listen below to hear him speak about the causes of wrongful convictions, specific cases in New England, and what can be done to help reform the justice system.

Listen to the podcast here!

Incarcerated but Free

2010-07-12T08:00:00.000-07:00

Last Friday, Victor Rosario became one of the first Massachusetts inmates to be ordained as a minister while incarcerated.

Rosario is serving a life sentence for arson in connection to a 1982 Lowell fire that killed 8 people. Rosario was present at the scene of the fire and heard cries for help coming from the burning building. He was 24 years old at the time and had abused alcohol for most of his life. Just hours after the horrible fire, Rosario sought the help of a local minister. “When he was praying for me, I went down to the ground, and I felt this kind of peace in myself,’’ Rosario said in an April prison interview. “Like a Christian person, … you’re reborn, I felt that peace in me and I went back with the Bible thinking Sunday I would be in church.’’

Rosario, however, was in jail by Sunday and has remained behind bars ever since. During his incarceration, Rosario has run marathons, mentored fellow prisoners, and married. While still physically incarcerated, Rosario says he is mentally free from drugs and alcohol. Rosario writes, “I believe that God has called me to prison ministry. I also believe that one day I will be a free man and able to minister both inside and outside these walls that currently confine me.’’

Two weeks ago, a Boston Globe article highlighted numerous shortcomings in the investigation that raise serious questions about the validity of Rosario's conviction. Rosario's legal team is expected to file a motion for a new trial later this summer.

Nicas, Jack. "Behind bars, convict's spirit is free." http://www.boston.com/news/local/massachusetts/articles/2010/07/11/behind_bars_convicts_spirit_is_free/

New Jersey at the Forefront of Eyewitness Misidentification Reform

2010-07-01T12:53:00.000-07:00

Over 10 years ago, the New Jersey Supreme Court handed down a landmark ruling requiring judges to instruct juries about the reliability problems with cross-racial identifications when the identification is not corroborated by other evidence. This ruling came after McKinley Cromedy was exonerated through DNA testing. Cromedy spent five years in prison for a rape he did not commit. The only hard evidence presented at his trial was the victim’s testimony identifying him as her attacker.

Last month the Special Master appointed by the New Jersey Supreme Court in State v. Henderson released a report calling for a major overhaul of the legal standards used by courts to determine the admissibility of eyewitness identification evidence. Geoffrey Gaulkin, a retired appellate judge, submitted the report after extensive hearings on the state of the law and science of eyewitness identification. The report recognized the major scientific developments in the area of eyewitness identification and concluded that the widely-used Manson test and procedures are not “valid and appropriate in light of recent scientific and other evidence.” The Special Master made numerous findings to support his conclusion, including the following: suggestive procedures can falsely inflate the reliability of eyewitness testimony; eyewitness memory is more like physical trace evidence than a videotape recording and can be mishandled, contaminated, or degraded; non law enforcement actors can contaminate a witness’s memory. The report recommended that the reliability inquiry be expanded to include “all the variables left unaddressed” by Manson, that at least an initial burden be placed on the prosecution to produce evidence of the reliability of the eyewitness identification evidence, and that judges and juries be informed of and guided by the scientific findings regarding eyewitness identification.

"A new framework is urgently needed to address what the science has told us," said Ezekiel R. Edwards, a lawyer with the Innocence Project in New York who participated in the New Jersey investigation on the issue.

Many factors have been found to affect the reliability of an identification. The way lineups and photo arrays are administered drastically affects the dependability of an identification. New Jersey has guidelines for police officers administering lineups. These guidelines include telling the witness that the perpetrator may not be present and showing photos sequentially rather than simultaneously. Such procedures have been found to reduce the risk of misidentification.

According to the Innocence Project, eyewitness misidentification was a contributing factor in over 75 percent of US convictions later overturned by DNA evidence.

Lounsberry, Emilie. "New Jersey is a leader in addressing problems with eyewitness testimony." The Pennsyvania Inquirer. June 28, 2010. http://www.philly.com/inquirer/local/pa/20100628_New_Jersey_is_a_leader_in_addressing_problems_with_eyewitness_testimony.html

See Also: Special Master Report. State v. Henderson.

Boston Globe Article Shines Light on Injustice in Massachusetts

2010-06-28T05:30:00.001-07:00

March 5, 1982: the deadliest fire in Lowell, MA's history takes the lives of 8 people.
March 7, 1982: Victor Rosario, a 24 year old bystander, was named the prime suspect. Hours after that, Rosario signed a confession stating he and two others threw Molotov cocktails into the building, starting the blaze.

A recent Boston Globe article focuses on the shortcomings of the prosecution's case against Rosario.

Although Rosario signed a confession, the translator who assisted with the interrogation now says that Rosario was delusional at the time. Dr. Judith Edershiem, a forensic psychiatrist who reviewed with the case, opined that Rosario was suffering from alcohol withdrawal, resulting in delirium tremens ("DT's"). An examination revealed that Rosario had severe liver damage; at the time of the interrogation he had gone 48 hours without a drink. Dr. Alison Fife, a forensic psychiatrist who examined all the evidence from the interrogation, claims that the interview should have been stopped. Fife observed that Rosario was not making sense and seemed "out of control."

There are also shortcomings with the fire science used in Rosario's case. Even though he "confessed" to using Molotov cocktails, no accelerant was found at the scene of the fire. John Lentini, a prominent fire scientist, stated that if Molotov cocktails were used, there would be physical evidence of them. “It’s hard to break a beer bottle; the neck almost never breaks because it’s small and compact, and the bottom is usually in one piece,’’ said Lentini. “If they were there, they would’ve found them.’’

Arson experts who reexamined the evidence believe that the fire could have been started accidentally. The police experts cited the fire's speed, two points of origin, and certain patterns of charring as evidence of arson. But fire experts today and the National Fire Protection Association 921 Manual both state that the evidence cited is consistent with an accidental fire.

The new fire investigators say it's possible that a space heater could have been the cause of the fire. The heater was located between three rooms that had the most burn damage.

The Globe article also points out other significant shortcomings in Rosario's case, including suspect eyewitness testimony and problems with Rosario's defense attorney.

Victor Rosario, 52, has now spent more of his life in jail than out. He has filed two unsuccessful appeals. The New England Innocence Project and The CPCS Innocence Program have joined together to support Boston attorneys Andrea Petersen and Esther Horwitz in challenging this conviction.

To read the entire Globe article, go here: http://www.boston.com/news/local/massachusetts/articles/2010/06/27/notorious_lowell_arson_case_cast_in_doubt/?page=full

Conviction Movie

2010-06-23T08:02:00.000-07:00

Conviction, a movie based on the incredible true story of NEIP exoneree Kenny Waters and his sister Betty Anne, is set to be released October 15, 2010. The movie stars Hilary Swank as Betty Anne Waters. After her brother was wrongly convicted of murder and robbery, sentenced to life in prison, and had exhausted all of his appeals, Betty Anne determined it was up to her to save her brother. A mother of two small boys, Betty Anne worked tirelessly for her brother's cause, earning her GED, Bachelor's Degree, and finally a law degree in the hopes of exonerating Kenny. She worked with Innocence Project and NEIP attorneys to prove Kenny's innocence.

Questioning the Validity of Arson Science

2010-06-18T06:48:00.000-07:00

The well accepted fire science that convicted George Souliotes in 1997 is now coming under question. Souliotes, a Greek immigrant, was convicted of arson that killed three people including two children in Modesto, CA. He was the landlord of the building.

Arson investigations have recently come to the forefront after the execution of Todd Willingham in Texas in 2004. The fire deemed arson in Willingham's case seems now to be probably accidental. Because of this, many fire scientists have begun to review old cases to see if questionable science is convicting innocent people.

The science started to unravel because of the1992 groundbreaking guide by the National Fire Protection Association. The report is now widely embraced, but some experts still retain their old beliefs. The report shows that some assumptions about arson science are now known to be false. For example, conditions thought only to be present in arson cases have now been confirmed as typical in accidental cases, too: including melted steel and glass etched tiny cracks.

John Lentini, a prominent fire scientist who testified for Souliotes', says that a sizable number of experts still "don't want to admit they were doing it wrong."

Souliotes' fate rests on the forthcoming decision of the 9th Circuit Court of Appeals, which will soon decide whether to reexamine the case. The Northern California Innocence Project has taken on Souliotes' case. Souliotes' sister, Aleka Pantazis, 63 has also helped to bring attention to his case. Souliotes' lawyers argue that arson investigators misinterpreted the evidence at the scene.

The prosecution claimed that substance on Souliotes' shoes matched the compound that started the fire. But, Lentini says they do not have a common origin, and now the prosecutors are not disputing this.

In the meantime, all Soulites and his sister can do is wait for the decision to be handed down. Pantazis says, "what I live for is to see the day my brother will walk out. Whatever years he has left, at least he will be free."

Dolan, Maura. "13 Years Later, an Arson Case Begins to Unravel" Los Angeles Times. May, 31 2010. http://www.latimes.com/news/local/crime/la-me-arson-20100531,0,2851484,full.story

Rhode Island Legislators Propose Improved Eyewitness Identification Methods

2010-05-19T12:19:00.000-07:00

A recent article published in the The Providence Journal discusses the importance of legislation that would improve eyewitness identification methods in the state of Rhode Island. In the wake of a 2007-2008 survey conducted by the Rhode Island Office of the Public Defender, which reported that there have been at least seven cases of wrongful convictions as a result of faulty eyewitness IDs, Rhode Island legislators have proposed a bill that would require law enforcement agencies to follow more stringent eyewitness identification policies. Out of the 42 law enforcement agencies that responded to the survey, only 3 have written policies outlining proper eyewitness ID procedures. The legislation proposes a statewide standard for proper procedures. One of the sponsors of the bill, Sen. Harold M. Metts, (D-Providence) believes law enforcement agencies should implement best practices. “Anything to enhance the process, that’s what we need to do,” Metts said.

Both law enforcement agencies and attorneys understand the persuasive force of eyewitness testimony in the courtroom. Many social scientists, however, are skeptical of such evidence. According to the article, “Social scientists say stress, gaps in memory or the desire to make an identification at all costs can lead to mistakes.” With these factors in mind, the proposed legislation would mandate certain practices, such as live and photo lineups that include “fillers” who fit the suspects general characteristics.

The article also examines the experience of Brown University student Reade Seligmann. In 2006, Seligmann learned the consequences of misidentification firsthand when he and two Duke lacrosse teammates were wrongfully accused of raping an exotic dancer who picked them out of a faulty photo array made up of only Duke lacrosse players. According to data compiled by the New York based Innocence Project, 79 percent of the 252 people exonerated through DNA evidence were convicted on the basis of faulty eyewitness identification. “When you have your life taken out of your hands, it’s terrifying,” said Seligmann.

http://www.projo.com/news/content/EYEWITNESS_ID_05-16-10_L6I5777_v39.88b4f80.html#

DNA Access Law Passed in Alaska

2010-05-17T13:30:00.000-07:00

Today, the Alaska State Legislature passed legislation granting access to post conviction DNA testing. Additionally, the law will require the preservation of evidence following a conviction. This milestone legislation is a significant step forward for inmates seeking post conviction relief through DNA testing, many of whom did not have the technology available at the time of their trial. The success in Alaska leaves only two states without such laws, Massachusetts and Oklahoma. A link to the legislation is provided below.

http://www.legis.state.ak.us/basis/get_bill.asp?session=26&bill=SB+110

NEIP Exoneree to speak before the Boston Rotary Club

2010-05-03T13:28:00.000-07:00

NEIP exoneree Dennis Maher will be speaking before the Boston Rotary Club to discuss the many issues involved with wrongful convictions as well as his own 1984 wrongful conviction. Additionally, Mr. Maher is expected to address the problem of Massachusetts’ DNA access laws and the importance of the legislation. The event will be taking place at the Boston Park Plaza Hotel on Wednesday, May 12th from 6 to 7:30.

Background:
Dennis Maher was convicted in two separate trials of attacks on three women. In March 1984, he was found guilty of the rape and assault of two women in Lowell on consecutive evenings in November 1983. In April 1984, he was convicted of the August 1983 rape of another woman in Ayer. After the second trial, Maher was sentenced to life in prison. Under Massachusetts law in effect at the time of his convictions, he was also civilly committed to Bridgewater Treatment Center. Maher, a U.S. Army sergeant at the time of his arrest, had always asserted his innocence and wrote to The Innocence Project for help. The Innocence Project tried repeatedly to gain access to the biological evidence collected from the victims, but was told that the evidence couldn’t be found. In 2001, NEIP located long-misplaced evidence from the Lowell trial in the basement of the Middlesex Superior Court. In December 2002, DNA test results excluded Dennis Maher as the source of semen on the evidence. After Maher was excluded as the source of semen in the Lowell case, in February 2003, the Middlesex District Attorney's Office located at the Ayer Police station a slide prepared from the rape kit of the Ayer rape victim. This slide was submitted for DNA testing and Maher was again excluded as the source of semen. Dennis Maher was exonerated in April 2003 after 19 years in prison. He was represented by NEIP attorneys and by the Innocence Project in New York.

New England Innocence Project Exoneree Dennis Maher Calls for Massachusetts to Pass Crucial DNA Laws

2010-01-27T11:36:00.000-08:00

Dennis Maher was convicted and sentenced to life in prison for committing three rapes in 1983. In 2003, after spending 19 years behind bars, Dennis was freed because DNA tests proved that he was innocent of the crimes. In a recent editorial in The Patriot Ledger, Maher emphasizes the importance of access to DNA testing for inmates with claims of actual innocence. In Maher's case, it took an extra six years to get the DNA tested because Massachusetts is one of only three states that lack a post-conviction DNA access law. Maher says, "That needs to change this year."

Maher also refers to a report released by the Boston Bar Association Task Force to Prevent Wrongful Convictions in December 2009, which is entitled "Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts." The Task Force was composed of police, prosecutors, defense attorneys and former judges, including four New England Innocence Project board members. Along with a variety of other recommendations for increasing the accuracy and reliability of the results the criminal justice system produces in Massachusetts, the Task Force calls for the creation of a statute providing defendants with claims of factual innocence with post-conviction access to and testing of forensic evidence and biological material (and for preservation of biological material).

Link to Maher's op-ed:
http://www.patriotledger.com/opinions/x1685419828/COMMENTARY-Time-for-a-law-granting-DNA-testing-to-prisoners

Boston Bar task force report:
http://www.bostonbar.org/ebusiness/bbapublications/newsreleaseitem.aspx?ID=7

Bermudez Exoneration Brings Hope for the Factually Innocent

2009-11-24T12:16:00.000-08:00

Justice John Cataldo of the New York State Supreme Court recognized a judicial basis for claims of actual innocence this month when he overturned Fernando Bermudez' conviction. The decision, rendered on November 12, moves the state of New York closer to recognizing actual innocence as grounds for appeal. Justice Cataldo wrote, “I find the due process clause of our state Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence.”

Bermudez was convicted in 1992 of fatally shooting a sixteen-year-old in Greenwich Village. Five witnesses spoke against him at trial. No physical evidence tied him to the crime. In 1993, all five witnesses recanted their testimony, claiming that they were manipulated by prosecutors and police. They have stuck to their recantation ever since, and Bermudez has been petitioning to have the state court re-evaluate the evidence in his case since that time, but to no avail. The justice system seems to view recantations as inherently untrustworthy. A 1995 judge called the five who recanted in Bermudez' case simply too many to believe. Bermudez has stuck to his original story all along-- he did not know the victim, he had no motive to kill him, and he was elsewhere with friends at the time of the murder. Two friends spoke to his alibi, and have consistently maintained their testimony.

Legislation has also recently been brought in the state of New York that would amend the criminal procedure law to include a definition of actual innocence and the grounds by which a judge could vacate a sentence due to actual innocence.

The New York Times, November 22, 2009: Hope for the Wrongfully Convicted
The New York Times, April 13, 2007: Accusers Recant, but Hopes Still Fade in Sing Sing
New York State Senate: Actual Innocence Justice Act of 2009
State of NY v. Fernando Bermudez: Decision and Order, November 12, 2009

Dog "Scent Line Ups" Unreliable and Misused

2009-11-04T12:25:00.000-08:00

The New York Times today reported on the phenomenon of dog "scent line ups", in which a dog is exposed to a scent from a crime scene and then walked past vials containing swabbed samples from suspects and non-suspects. The dog indicates to the handler that it has reached a match, by stiffening its back or barking. Using dogs to follow scents has long been a practice of law enforcement officials, and is still employed by the FBI. But even the FBI agrees that dog scent line ups should not be used as the primary piece of evidence against a suspect. Dogs are liable to suggestion by their handlers, smells are often easily mixed and difficult to distinguish, and handlers may misinterpret their dog's signals. Many states do not accept scent line ups as evidence, but several do, including Texas, Florida, New York and Alaska.

New York Times: http://www.nytimes.com/2009/11/04/us/04scent.html?_r=1&ref=us

Northwestern Law Launches Center on Wrongful Convictions of Youth

2009-10-07T07:20:00.000-07:00

Northwestern University School of Law has launched a new joint project between the Center for Wrongful Convictions and the Children and Family Justice Center. The Center for Wrongful Conviction of Youth (CWCY) will address the specific concern of exonerating and advocating for children and adolescents who are wrongfully convicted. Children and adolescents are particularly susceptible to police coercion and false confession. A Miranda warning is often not enough for a child or adolescent to adequately understand the ramifications of their words and actions while in police custody.

Media pages for CWCY:

CWCY.org

Twitter

Facebook

Co-Founder Steve Drizin's article on The Huffington Post

Kenneth Ireland Exonerated of 1986 Rape and Murder

2009-08-11T06:26:00.000-07:00

Kenneth Ireland of Connecticut was released last week after a judge granted him a new trial. The prosecutor is expected not to retry the case. Ireland was 20 years old when he was convicted of the rape and murder of Barbara Pelkey, a mother of four. He was sentenced to 50 years in prison. At his original trial, witnesses testified that Ireland confessed to them. Ireland contended that those witnesses lied for a large monetary reward. Ireland was released by means of DNA evidence which proved his innocence, obtained with the help of the Connecticut Innocence Project.

Congratulation to Kenneth Ireland and his family, and to the Connecticut Innocence Project!

The Boston Globe: DNA clears Conn. man of killing after 20 years

Bruce Lisker Freed After 24 Years

2009-08-11T06:07:00.000-07:00

Bruce Lisker had his murder conviction overturned on Friday after spending 24 years in prison for a crime he did not commit. He is currently free on bail while the prosecution decides whether they wish to appeal. Lisker was 17 years old when his mother was murdered. Lisker saw his mother on the floor, broke into his parents' home to help her, and called paramedics. At the time, he was living elsewhere and was battling a drug addiction. He was arrested the same afternoon. Lisker was convicted primarily on four pieces of evidence, including blood spatter on his clothes, a bloody foot print in his parents' home, and a confession to a jailhouse informant. Evidentiary rulings later cast considerable doubt on the evidence that had been used against Lisker at trial, and the original prosecutor admitted that he now had "reasonable doubt". At the time of the murder, the police failed to follow a lead on another suspect, who had been to Lisker's mother's home the day before and who had lied about his whereabouts at the time of the crime. That suspect later committed suicide.

Congratulation to Bruce Lisker and the California Innocence Project!

The Los Angeles Times: Judge overturns Bruce Lisker's conviction in 1983 killing of his mother

DNA Database Solves Cold Cases

2009-08-03T06:33:00.000-07:00

The state of Georgia recently reported that more than 1,500 cases have been solved because of the Georgia DNA database. Georgia began testing DNA in 1991 and began adding samples to the FBI database in 1998. In 2000, the Georgia legislature passed a law requiring that DNA samples be taken from all convicted felons. Previously, samples had only been taken from convicted sex offenders. In the first year after the database was expanded, 70 cases were solved. DNA databases also aid those claiming factual innocence, as actual perpetrators may already be in the database.

The Atlanta Journal Constitution: Georgia DNA solves 1,500 cases

Texas Reform Creates Office for Capital Appeals

2009-07-29T06:22:00.000-07:00

A new law in Texas will create a state office to handle the appeals of death row inmates. The office was created in response to a series of well publicized scandals which brought international attention to the subpar representation of capital offense appeals. Texas, unlike other states with capital punishment, had not used the public defender's office to handle the habeus corpus writs for their capital offenders, but instead had hired outside attorneys who often missed deadlines or wrote "skeletal writs". The new office will have a budget of a million dollars and a staff of nine, but its services will not be available to those capital inmates who have already used up their appeals. The Office of Capital Writs is expected to handle approximately ten appeals a year.

The Houston Chronicle: State to handle capital appeals

Estate of Kenneth Waters Settles For 3.4 Million

2009-07-15T06:15:00.000-07:00

The estate of the late Kenneth Waters, who was exonerated in 2001 after spending 18 years in prison, has settled their case against the town of Ayer for a total of 3.4 million dollars. The estate, headed by Waters' sister, Betty Ann Waters, is still in negotiations with one final insurer. Kenneth Waters was convicted in 1983 of first degree murder and armed robbery. He remained wrongfully incarcerated until his sister Betty Ann Waters became a lawyer and fought to free her brother by means of DNA testing. The civil rights suit against the town of Ayer included the charges that police officers coerced false testimony to convict Waters and withheld exculpatory evidence from the defense. Waters died just nine months after his exoneration, and Betty Ann Waters has worked on his behalf for compensation for his time in prison. Waters was represented by the New York Innocence Project and by New England Innocence Project attorneys when his conviction was overturned.

The Boston Globe: Ayer to pay $3.4m for unjust conviction

NEIP Files Supporting Brief in RI Murder Appeal Case

2009-07-08T06:30:00.000-07:00

Stacey Barros was convicted in 2008 of murder, and is currently serving two life terms plus ten years. Barros was convicted of killing Deivy Felipe in 2005, in what appears to have been a drug deal gone wrong. Now the New England Innocence Project has filed a supporting friend-of-the-court brief in Barros' appeals case. Among the issues raised in the brief is the question of why the police recorded only twelve minutes of a four hour interrogation of Barros. Barros confessed to the crime in that recording, but later claimed he was coerced into that confession. In his confession, Barros got facts of the case wrong, including the number of shell casings and the angle at which Felipe was shot. There is no physical evidence linking Barros to the murder. NEIP filed their brief in part to pressure the Rhode Island legislature to pass a law mandating recording of all police interrogations. Similar laws have been proposed in recent years but have failed to pass.

The Providence Journal: Innocence Project filing brief in Providence murder case

Troy Davis' Petition Will Be Heard Next Session

2009-07-06T06:06:00.001-07:00

Troy Davis' habeus corpus petition was not heard by the Supreme Court last week when they ended their session, and will be heard when the Court resumes in the fall. Davis is on death row for murder, even though evidence has surfaced since his conviction which raises considerable doubt as to his guilt. The Court's decision to delay hearing his petition means Davis receives a stay on his execution through the summer, a small victory for his supporters.

Forensic Experts Must Testify To Results

2009-06-29T09:32:00.000-07:00

The U.S. Supreme Court ruled last week in the case of Melendez-Diaz v. Massachusetts that forensic reports qualify as “testimony”, and therefore that forensic experts must be made available for cross-examination. Melendez-Diaz argued that the expert who wrote the report in his case, identifying a substance found on the defendant as cocaine, should be made available for cross-examination so that testing procedures and the custodial history of the evidence could be presented to the jury. This decision comes just days after the Supreme Court decided Osborne v. Alaska, and the disparate rulings mean that defendants will have more tools to fight charges in court, but no new aid in appealing their convictions.
A.P.: Court rules for defendants on crime lab reports

The New York Times: Justices Rule Lab Analysts Must Testify on Results

MA Appeals Court Rules On Remuneration Case

2009-06-29T06:33:00.000-07:00

A Massachusetts Appeals Court ruled last week that Humberto Guzman could be eligible for as much as $500,000 after he spent four years in prison for drug charges. At issue before the court was whether the Massachusetts Erroneous Convictions Law of 2004 could benefit those who had not been conclusively exonerated. Guzman's conviction was vacated in 1994 on the basis of inadequate counsel, and after two Boston police detectives who originally testified against him were indicted by a federal grand jury for stealing hundreds of thousands of dollars during drug raids. The officers were convicted and served three years in prison. In 2006, Guzman applied for remuneration but was denied because the court said he had not actually been found innocent and other evidence implicated him in the crime. The Appeals Court decided that the law does not limit eligibility for remuneration “to those individuals exonerated as a result of compelling or overwhelming exculpatory evidence."

Read more from The Boston Globe: $500,000 could be awarded in overturned drug case

Troy Davis Case May Be Decided Today

2009-06-29T06:23:00.000-07:00

Updates will be forthcoming if Troy Davis' case is decided by the U.S. Supreme Court today, as is expected. Davis was convicted in the murder of a Georgia police officer in 1991 and is being held on death row. 7 of 9 State witnesses have recanted their testimony and another man has been named as the perpetrator. Davis is seeking an evidentiary hearing, which could free him after more than 18 years in prison.

Davis' petition is on SCOTUSBlog here: Petition for certiorari

New Findings May Exonerate Many in Shaken Baby Cases

2009-06-24T06:24:00.000-07:00

A recent article by Maurice Possley brings to light new evidence about shaken baby-related murder convictions. Over the last thirty years, thousands of parents and caretakers have been charged after the death of a child in his or her care was attributed to Shaken Baby Syndrome (SBS). A diagnosis of SBS is based on a triad of evidence: retinal hemorhage, bleeding in the brain, and brain swelling. Individuals are generally only charged after the diagnosis of SBS is made. However, new scientific findings show that SBS may not always be a result of violent shaking, but that a short fall may also produce the same symptoms.

Audrey Edmunds of Wisconsin, a day care provider, was charged in 1995 with murder, after a 7-month old in her care died, and prosecuters alleged that she had shaken the baby to death. Last year, with the help of the Wisconsin Innocence Project, Edmunds was granted a new trial and released. One of the experts who had testified at her trial came forward to say that he was no longer sure Edmunds had harmed the child, and that the damage could have taken place hours earlier than originally believed. An article in the Washington University Law Review by Deborah Tuerkheimer to be published in September seeks to examine recent research into SBS which could free thousands of people who were imprisoned with the help of faulty science.

The case of Louise Woodward, the 19 year old au pair who was charged with second degree manslaughter after she was accused of shaking to death the child in her care, illustrates the point. Experts for the prosecution alleged that the child was shaken violently and his head was hit against a hard surface. Experts for the defense testified that the boy's injuries could have been sustained days earlier. The most recent scientific findings show that there is no certainty in the medical community that SBS is caused by violent trauma. Indeed, symptoms from the triad of SBS symptoms may be found in children before they are taken home from the hospital for the first time.

In light of the most recent medical research, many of those convicted in SBS cases could receive new trials, and it seems that the burden of proof may be moving in their favor.

Maurice Possley's article on thecrimereport.org: Mistaken diagnoses of Shaken Baby Syndrome may have sent thousands of innocent people to prison, according to a new study

Change.org article: Shaken Babies and Wrongful Convictions

Washington University Law Review abstract: The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts

Record Sum Awarded to Chicago Exoneree

2009-06-23T08:20:00.001-07:00

Juan Johnson, a former member of the Chicago gang the Spanish Cobras, was awarded 21 million dollars yesterday by a federal jury, after spending 11 years in prison for a murder he did not commit. The court found that Johnson was framed by the arresting officer, Reynaldo Guevara, and that witnesses were coerced into testifying against Johnson at trial. The city of Chicago will pay remuneration. Despite the hardship that Johnson endured while in prison, he says that he only seeks an apology from the arresting officer. None has been forthcoming, so Guevara must pay 15 thousand dollars in punitive damages. No charges have been brought against the arresting officer at this time.

AP: Jury in Ill. awards $21M for wrongful conviction

Chicago Tribune: Record verdict: Former gang member awarded $21 million for wrongful conviction

Oregon Inmate Using NAS Report To Bring Appeal

2009-06-22T06:15:00.000-07:00

Phillip Scott Cannon was convicted in 1998 of a triple homicide. He was sentenced to three life sentences. Cannon has protested his innocence for more than ten years. The key piece of evidence in Cannon's trial was the use of "bullet-lead analysis", a forensic science so unreliable that the FBI has stopped using it. Since the National Academy of Sciences released its report on forensic sciences in February 2009, Cannon has decided to appeal his conviction. A spokesman for the Oregon Department of Justice commented, "The post-conviction relief process is exactly the appropriate place to sort out these things. The FBI is no longer doing these tests because they don't consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We're interested in getting to the truth. We have a higher obligation to the truth."

Read more here: Oregon case puts reliability of science itself on trial

Supreme Court Rules There Is No Right to Post-Conviction DNA Tests

2009-06-18T12:01:00.000-07:00

Today the Supreme Court of the United States handed down their ruling in the case of D.A.'s Office for the Third Judicial District v. Osborne, finding that inmates are not constitutionally guaranteed the right to test evidence for DNA. In a 5-4 decision, the justices ruled against Mr. Osborne, a resident of Alaska. 46 states have laws allowing some inmates the right to post-conviction testing. Massachusetts, Alabama, Oklahoma, and Alaska do not explicitly allow the testing. The majority opinion, written by Chief Justice John G. Roberts, Jr., seems to have considered this as part of their ruling, reasoning that the matter should be left to state legislatures to consider.

Mr. Osborne was represented by Peter Neufeld, a co-founder of The Innocence Project.

The full text of the court opinion is available here
Article from the New York Times here
Article from the Boston Globe here

Pennsylvania Court Throws Out Claim of Malicious Prosecution in Wrongful Conviction Suit

2009-06-17T10:42:00.000-07:00

Thomas Doswell was released from prison in 2005 after serving 19 years in prison for a rape he did not commit. DNA evidence exonerated Doswell, but in a civil suit against the city of Pittsburgh, Doswell alleges that police misconduct was also a factor in his wrongful conviction. Doswell alleged that police had no probable cause to include him in a photo array shown to the victim just hours after the rape occurred. Doswell's photo was the only one stamped with "R", for rapist. U.S. District Judge Donetta Ambrose threw out that claim on Tuesday, saying that although exonerated by DNA evidence, the police may have had cause to suspect Doswell. The judge also dismissed the claim of deprivation of familial and associational rights filed by Doswell's son. Doswell is seeking millions in remuneration for his remaining claims of violation of his right to due process and against cruel and unusual punishment.

Full story at the Pittsburgh Tribune Review:

http://www.pittsburghlive.com/x/pittsburghtrib/news/breaking/s_629760.html

Alabama Court Admits Expert Testimony On Eyewitness Identification

2009-06-11T06:52:00.000-07:00

The United States District Court for the Middle District of Alabama released an opinion on the 26th of May regarding their recent decision to admit expert testimony on the flaws of eyewitness identification. On June 22, 2007, Andreas Smith was arrested by the Montgomery Police and charged with the armed robbery of a local bank. The primary case against Smith was based on the eyewitness reports of two individuals at the scene of the crime who claimed they could identify him as the perpetrator. To counter these claims, the defense moved for the admission of psychologist Solomon Fulero as an expert witness on the reliability of eyewitness testimony. In a change from general practice, the District Court admitted Fulero’s testimony with the stipulation that it not evaluate the particular witnesses involved in the case and only provide a survey of the pertinent scientific research in this field.
The court’s subsequent opinion, issued by Judge Myron Thompson, lays the precedential groundwork for the future admissibility of expert testimony on a type of evidence that has been historically held by jurors as an extremely persuasive and reliable source of information. Beginning with the statistical observation that, "by some estimates, roughly 84% of convicts who have been exonerated by DNA testing were convicted on the basis of mistaken eyewitness testimony," Thompson outlines the problems with eyewitness identification and the extent to which its reliability is overestimated by lay jurors. From this statistical examination, he presents some relevant superior court law that establishes the groundwork for admitting expert testimony. While no superior court decision has directly admitted this particular testimony, in Daubert v. Merrell Dow Pharms., Inc. the Supreme Court held that admissibility of expert testimony must be based "solely on principles and methodology, not on the conclusions that they generate" and that testimony could not be categorically rejected because of its subject matter. Thompson argues that the widespread academic acceptance of psychological studies on identification and, in particular, Fulero’s position at the cutting edge of this field satisfies the requirements for the first two prongs of the test. The relevant test established by this decision was whether "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." He resolves issues with the third prong and a related government challenge on the grounds that expert testimony intrudes upon and confuses the role of the juror in establishing witness credibility by restricting admittance of testimony only in particular cases and disallowing a specific evaluation of the witnesses at hand. These arguments provide a framework for future testimony on eyewitness identification as a scientific matter and opens the gate for a fundamental readjustment in how juries evaluate human identification.
While this decision marks a relatively new development in the legal recognition of the scientific work being done on witness identification, the issue has been widely addressed and tested within the academic community and law enforcement community. In a 1999 guide, the Department of Justice commented, "Research psychologists have produced a substantial body of findings regarding eyewitness evidence. These findings offer the legal system a valuable body of empirical knowledge in the area of eyewitness evidence." In the particular context of Andreas Smith’s trial, Dr. Fulero’s testimony focused on the unreliability of cross-racial identification and extreme confidence and the impact of trauma and post event discussions on the process of identification. Statistically, Caucasians have a tendency to misidentify minorities, particularly African Americans. This tendency towards misidentification is compounded by an accompanied traumatic experience and subsequent post event discussions which may cause changes in descriptions or false memories as witnesses attempt to reconcile their experiences. Additionally, once an identification has been made, individuals have a tendency to justify and reinforce that decision by displaying high levels of confidence regardless of the actual reliability of their information. Dr. Fulero presented this information at an abstract level for jurors "leaving the trier of fact to apply them to the facts." This is a potentially effective way to inform jurors of the flaws in eyewitness identification without usurping their authority to make contextual judgments on witness reliability. Hopefully this will lay the groundwork for future expert testimony which will reduce the incidence of false identification leading to wrongful convictions.

Crime Labs at Risk

2009-06-11T06:49:00.002-07:00

Budget cuts stemming from state spending crunches caused by the economic downturn are placing crime labs at risk in Wisconsin and North Carolina and negatively impacting resources available to the nation’s law enforcement community. In Wisconsin, Attorney General J.B. Van Hollen is spearheading lobbying efforts to restore $5.4 million in budget cuts to the justice department that are scheduled to take effect between 2009 and 2011. The Chicago Tribune reports that, "Van Hollen said those cuts … could result in evidence backlogs at the state crime labs, agency attorneys turning down cases and delays in responding to local police's requests for help." Similarly, cuts in North Carolina have placed a Greensboro crime lab on the chopping block, threatening to cut off a valuable scientific resource to law enforcement officials in up to 12 counties. These budget reductions place an added burden on the police community that increases the potential for backlogs and errors that could delay the justice system and increase the probability of improper convictions.

To read more:
"Crime lab among cuts pondered in budget" http://www.news-record.com/content/2009/06/01/article/crime_lab_among_cuts_pondered_in_budget
"Friday Roundup: Compensation and Crime Lab Woes" http://www.innocenceproject.org/news/Blog.php

Hurdles for Inmate Compensation

2009-06-11T06:49:00.001-07:00

Florida man William Dillon spent 27 years in prison for a murder that he did not commit. Since being exonerated by DNA evidence in 2008, Dillon has found a job as a mechanic and is gradually readjusting to normal life but has yet to see any compensation from the state for his wrongful incarceration. Due to Florida’s "Clean Hands" statute that was passed in 2008, Dillon’s 1979 conviction for a non-violent drug crime makes him ineligible for receiving compensation without attempting to go through a separate funding process. Florida’s innocence project has taken on the task of aiding Dillon in receiving state funding and is pursuing a legislative request for $1.3 million. Legislative hurdles for monetary restitution for wrongly convicted individuals, like Florida’s "Clean Hands" law, are prevalent in different forms across the country. In many states, compensation is determined through a separate court or gubernatorial review. In a discussion about compensation for wrongly convicted individuals on NPR, professor Karen Daniel, a staff attorney at Northwestern University's Center on Wrongful Convictions commented, "In virtually every state, it's now his burden to prove innocence. It's not enough that the charges have been dropped. It's not even enough that he's found not guilty by a jury. He has to affirmatively prove innocence, and that's difficult to do." These hurdles to compensation often add a financial component to the already difficult adjustment former inmates must make to society outside of prison.

To read more:
"Still Seeking Justice," Tallahassee News, http://www.tallahassee.com/article/20090609/OPINION01/906090301/1006/OPINION
"Dillon won’t be paid for time spent in prison," Florida Today, http://www.floridatoday.com/article/20090602/NEWS01/906020317/1006

Texas Inmate Exonerated by DNA Evidence

2009-06-04T13:59:00.001-07:00

On May 27, 2009, after 22 years in prison for a rape that he did not commit, 47 year old Jerry Lee Evans was exonerated by DNA evidence making him the 20th inmate in Dallas County to have his conviction successfully overturned. According to the Dallas News, Evans made a brief address where he commented that he bore “no ill will” towards the court and was greeted by family members and several previously exonerated inmates who meet regularly as a support group. His release comes amid the backdrop of a failed attempt at state legislation reforming Texas’ system for handling DNA evidence and addressing the state’s unusually large number of wrongful convictions.

To read more:
“Says DNA Exoneree Jerry Lee Evans of His Freedom, ‘I Knew It Would Come One Day’”, The Dallas Observer, http://blogs.dallasobserver.com/unfairpark/2009/05/says_jerry_lee_evans_of_his_fr.php
“After 23 Years, DNA Clears Man of Rape,” CBS, http://cbs11tv.com/local/DNA.exoneration.Jerry.2.1021620.html
“Another Wrongly Convicted Inmate Released in Texas,” Houston Chronicle, http://www.chron.com/disp/story.mpl/ap/tx/6444094.html

Investigative Reporting Cuts Limiting Pursuit of Justice

2009-06-04T13:58:00.002-07:00

Cutbacks in investigative journalism budgets and the general shrinking of the funding of newspapers nationwide has had the unforeseen effect of restricting lawyers’ abilities to pursue the cases of potentially wrongly convicted and incarcerated individuals. This downsizing in reporting has reduced the number of sources outside the legal world that are performing research and independently investigating miscarriages of justice. A lively outside source of investigation is important for procedural attempts to gain access to evidence and the dissemination of information to the public. Tim Arango of the New York Times recently reported that “media involvement provides lawyers’ with the ability to have the media act as the plaintiff in posthumous cases to obtain information through state sunshine laws in addition to performing an informative role when procedural mechanisms begin to fail, [and] the press is the last resort for the public to find out the truth.” Media investigations have also fallen out of practice for non-economic reasons as editors have become increasingly reluctant to mix reporting with what they perceive as law enforcement functions. Reporter Eamonn O’Neil has recently addressed this issue in a series on miscarriages of justice in The Guardian commenting that “the media has a duty to wrongfully accused." The future of investigative journalism may will most likely be closely tied to the ability for lawyers to use the media as a force multiplier in the hunt to exonerate wrongly convicted individuals.

Texas ‘Innocence Committee’ Legislation Fails

2009-06-04T13:58:00.001-07:00

In an attempt to reduce the number of wrongful convictions, the Texas state legislature recently attempted to craft a series of bills intended to “expand prisoner access to DNA testing, clarify how to handle pardoning innocent Texans after their death and change how departments interrogate and collect eyewitness evidence” (Elliot Blackburn, Lubbock Online). Calls for action were spurred by the high rate of wrongful conviction in the State and the posthumous exoneration of Timothy Cole in 2008 for an incorrect rape conviction. Passage was eventually derailed by the close of the legislative session on Monday, June 1, 2009, after debates over photo identification requirements for voting pushed the issue off the agenda. State Governor Rick Perry did recently sign a bill providing compensation to wrongly convicted individuals and members of the Senate hope to renew the attempts at reform in the next session.

To read more:
“Reform Bills Fail to Pass in Texas,” Innocence Project Blog, http://www.innocenceproject.org/news/Blog.php

DNA Testing Under Fire

2009-06-04T13:57:00.000-07:00

Despite state statutes protecting the ability of defendants to utilize DNA testing as evidence in their trials, recent studies have revealed a nationwide tendency for prosecutors to attempt to deny the admissibility and reliability of this forensic data. According to Shaila Dewan of the New York Times, “a recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases.” This prosecutorial backlash against DNA evidence is largely attributed to the desire to “to avoid having their work second-guessed by objective science,” (The Right to DNA Testing, New York Times) and the perception that attempts to obtain DNA tests are often a delay tactic to merely postpone inevitable convictions on other grounds. Attempts to block DNA testing and admissibility presents a problem for poorly represented defendants who have a significant path towards proving their innocence blocked and hampers the effectiveness of the criminal justice system by preventing the possibility of the discovery of guilty third parties.

To read more:
Professor Brandon Garrett’s Analysis, http://www.law.virginia.edu/html/librarysite/garrett_exonereedata.htm
“Study: Prosecutors Resist DNA Testing”, United Press International, http://www.upi.com/Top_News/2009/05/18/Study-Prosecutors-resist-DNA-testing/UPI-98511242646757/