Connecticut Supreme Court Declines to Rule on Important Innocence Issue

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

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

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

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

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

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

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