innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, July 21, 2006

St. Louis Exoneree Receives Apology from State Prosecutor

This article ran in the St. Luis Dispatch wednesday, July 19, 2006.

Wrongly convicted man is set free

By William C. Lhotka
Wednesday, Jul. 19 2006

Johnny Briscoe is a free man today, after serving 23 years for crimes the state now says he didn't commit.Briscoe walked out of a state prison in Charleston, Mo., on Wednesday after serving part of a 45-year sentence for convictions involving a 1982 sexual attack on a woman at a Maryland Heights apartment.

Thanks to DNA testing, authorities confirmed during an investigation that began July 6 that Briscoe was innocent and that the real rapist was already in another Missouri prison.As investigators drove Briscoe back to his family in St. Louis from Missouri's Bootheel, St. Louis County Prosecuting Attorney Robert P. McCulloch called him on a cell phone and "apologized to him on behalf of the county, particularly for the past six years."

Because of snafus in the St. Louis County Crime Laboratory since 2000, Briscoe didn't get out six years sooner, and that, McCulloch said, "is terrible. It is unacceptable."

There was no DNA testing in 1983 when Briscoe was convicted. In 2000 and again in 2001, McCulloch said at a news conference Wednesday, he asked the crime lab to look for evidence in the Briscoe case and other cases where DNA could now be applied to existing evidence.McCulloch said his office was told the evidence had been destroyed.

In late 2001 and again in early 2002, court records show, Briscoe's attorney applied for post-conviction DNA testing. The laboratory reported that the freezer where the evidence might have been kept was searched and that the evidence - cigarette butts - had presumably been destroyed.

In 2004, the crime lab "was inventorying and cataloging everything in the lab" and found the cigarette butts in the freezer, McCulloch said, but his office didn't learn about their existence until July 6.McCulloch aimed his criticism at the crime lab.

"It is just inexcusable that this wasn't found in 2000 or again in 2001," the prosecutor said.

Testing of the three cigarette butts confirmed that the victim's DNA was found on all three but that the third contained DNA that matched a different man than Briscoe - one who is also in the Missouri prison system serving multiple sentences.

McCulloch's staff is reviewing the statute of limitations to see if charges can be brought against him.Crime and punishmentIn the early morning of Oct. 21, 1982, a man broke into an apartment in Maryland Heights, raped and sodomized the victim, she said, but then stayed in the apartment and smoked cigarettes with her.

The assailant asked her what her name was and then told her his name was "Johnny Briscoe," she told police. Subsequently, with police there, he called her apartment and talked to her again saying his name was "Johnny Briscoe."

Police traced the calls to a pay phone near Briscoe's home on Adelaide Avenue near Interstate 70.The woman completed a composite with police that resembled Briscoe, McCulloch said. She also identified him at the trial in May 1983 as her assailant.Briscoe, who had prior convictions for burglary, offered an alibi defense but didn't testify.

Briscoe's 16-year-old nephew told the jury that Briscoe had been home the night of Oct. 20 and was there when he awakened the next morning. They had watched the seventh game of the World Series between the St. Louis Cardinals and the Milwaukee Brewers.

"Who won?" asked prosecutor Joe Larrew in cross-examination."The Milwaukee Brewers," the nephew replied.

The Cardinals had won the game and the series. The jury took less than two hours in convicting Briscoe of rape, sodomy, robbery, burglary, stealing and three counts of armed criminal action. Judge Bernhardt C. Drumm sentenced Briscoe to 45 years in prison.

Briscoe was then three months shy of his 30th birthday.

First day of freedom Today he is two months shy of his 53rd birthday.On the ride home Wednesday, Briscoe told investigators Dave Ventimiglia and Ed Magee that he wanted to spend at least the day with family members before he talks to the media, McCulloch said.McCulloch said that the man who matches the DNA knew Briscoe from the same neighborhood but that Briscoe had no idea that the man had been involved in the assault.

Prosecutors have also talked to the victim, "who is very upset."

"She has been very traumatized by this," McCulloch said.

The Missouri Legislature recently passed a measure providing up to $36,000 a year for individuals falsely accused and imprisoned. Prior DNA exonerations in the city include the cases of Anthony Woods, who served 18 years in prison; Lonnie Erby, 17 years; and Larry Johnson, 18 years. Steve Toney served 14 years in a St. Louis County case.

In each case, the victim had identified the later-exonerated defendant.McCulloch said he didn't know if there was enough money in the program yet to pay Briscoe.

Briscoe spent Wednesday night at the home of relatives in St. Louis. Friends and relatives came and went or settled on the porch for a while. He declined to speak to reporters until a news conference today, preferring to spend his first free day in more than 20 years out of the limelight.

Greg Jonsson of the Post-Dispatch contributed to this 314-615-3283

N.J. Rethinks Death Penalty

This article ran in the Philadelphia Inquirer on Thursday, July 20, 2006.

In N.J., pros and cons on death penalty

A man wrongfully convicted and the daughter of murdered parents testified.

By Joel Bewley
Inquirer Staff Writer

When Larry Peterson starts to get bitter about the 18 years he wrongfully spent in prison for rape and murder, he remembers that the state asked jurors to have him executed.

Then he is thankful the mistake could be corrected.

"But if you take a life," he told New Jersey's Death Penalty Study Commission yesterday in Trenton, "you can't turn around and correct the wrong that has been done."

The commission was created by the Legislature, which voted in January to halt executions while the fairness and costs of imposing the death penalty were examined. The commission's report to lawmakers is due Nov. 15.

Lawyer Barry Scheck, codirector of the Innocence Project in New York, said the state's law allowing execution had been adopted during the scientific dark ages.

"It was a different era then," he said. "We are now in the DNA era."

Nationwide, 182 post-conviction exonerations have been based on DNA testing, said Scheck, who worked on Peterson's case.

Five who were freed had pleaded guilty to avoid facing execution, and 14 were on death row.
"It's ridiculous, in a way, to assume that mistakes will not be made," Scheck said. "We have demonstrated that there is a lot of error in the system."

Peterson spent 10 years fighting to have biological samples from the 1987 Pemberton Township crime scene undergo DNA testing, which was not in use in New Jersey when he was convicted.
None of the skin, blood, semen or hair samples matched those of Peterson, 55, who had been sentenced to at least 40 years in prison.

The charges against him were dropped in May when prosecutors concluded that the testimony of three witnesses who said Peterson had confessed to the crime would not hold up during a retrial.

One of the witnesses admitted that he had fabricated the story.

New Jerseyans for Alternatives to the Death Penalty released a report yesterday on Peterson and 24 others convicted in New Jersey of rapes and murders that they did not commit.
Combined, they spent 228 years behind bars before being exonerated.

The report listed eight causes of wrongful convictions found in the cases: eyewitness error, false testimony, false confessions, prosecutorial and police misconduct, lawyer incompetence, crime lab incompetence, presumption of guilt, and a focus on winning instead of seeking justice.
The debate over capital punishment in New Jersey is not considered as urgent as in states where inmates with death sentences are being executed.

In 1982, New Jersey reimposed its death penalty statute after a decade-long ban. The state has not put anyone to death in 43 years.

New Jersey's death row houses 10 prisoners, all men ages 29 to 76. Six are black, and four are white.

Sharon Hazard-Johnson, whose parents were murdered five years ago by New Jersey death-row inmate Brian Wakefield, told the commission that she believed that it was "most likely impossible for an innocent person to be charged with a capital offense."

Wakefield was convicted of killing her parents during a midday burglary of their Pleasantville home. He set their bodies and house on fire before leaving in their car.

She said her family wanted Wakefield executed for the crime, and was concerned that the commission was stacked with death-penalty opponents.

Peterson told the commission that life in prison without parole was worse punishment than being put to death.

"Execution is the easy way out," he said. "Life in prison is hell every day."

Celeste Fitzgerald, head of New Jerseyans for Alternatives to the Death Penalty, said polls indicated that most state residents oppose execution.

Death Penalty, State by State

States with the death penalty
Alabama Arizona Arkansas California
Colorado Connecticut Delaware Florida
Georgia Idaho Illinois* Indiana
Kansas Kentucky Louisiana Maryland*
Mississippi Missouri Montana Nebraska
Nevada New Hampshire New Jersey* New Mexico
New York* North Carolina Ohio Oklahoma
Oregon Pennsylvania S. Carolina South Dakota
Tennessee Texas Utah Virginia
Washington Wyoming
Also: U.S. government and U.S. military

*Illinois: After 25 years in which 13 innocent men were freed from the state's death row, Gov. George H. Ryan ordered a moratorium on executions and commuted all death sentences in 2003. Maryland: Gov. Parris N. Glendening halted executions by executive order on May 9, 2002. His successor, Gov. Robert Ehrlich, resumed executions in 2004. New Jersey:The State Senate and then-Gov. Richard J. Codey approved a one-year moratorium on executions in January, making the state the first to pass a moratorium legislatively rather than by executive order. The state has not executed anyone since 1963. New York: Its law was declared unconstitutional by state appeals court in 2004.

States without the death penalty
Alaska, Hawaii, Iowa, Maine,

Massachusetts, Michigan, Minnesota, North Dakota
Rhode Island, Vermont, West Virginia, Wisconsin
Also: District of Columbia

SOURCE: Death Penalty Information Center

Contact staff writer Joel Bewley at 609-261-0900 or

Thursday, July 20, 2006

Police Abuse Escapes Prosecution

This article ran in the NY Times on Thursday, July 20, 2006.

Inquiry Finds Police Abuse, but Says Law Bars Trials

Published: July 20, 2006
CHICAGO, July 19 — Special prosecutors said Wednesday that scores of criminal suspects were routinely brutalized by police officers on the South Side of Chicago in the 1970’s and 1980’s, but that extensive legal research persuaded them there was no way to skirt the statute of limitations preventing prosecution.

After four years, more than 700 interviews and $6 million, the prosecutors said they could prove beyond a reasonable doubt in court at least three cases of torture by the police, involving five former officers, and that they had found credible evidence of abuse in about half the 148 complaints they thoroughly investigated. But they rejected arguments by lawyers for people alleging abuse who said criminal charges could still be filed.

“We want to make it really clear, we only wish we could indict in these three cases,” Robert D. Boyle, the chief deputy special state’s attorney, said at a morning news conference downtown.
But Flint Taylor, a lawyer who represents some plaintiffs in abuse cases against the police, likened the situation to Ku Klux Klan killings in the 1960’s that have led to prosecutions in recent years. “Something as serious as police torture, there shouldn’t be a statute of limitations,” Mr. Taylor said. “It’s like murder.”

The prosecutors’ long-awaited 292-page report tries to provide closure on a painful chapter in Chicago history, one that has helped create a chasm between black residents and white police leaders, has driven changes in law enforcement procedures and has played a critical role in the national debate over the death penalty. In May, the United Nations Committee Against Torture highlighted the Chicago abuse accusations, complaining of “limited investigation and lack of prosecution.”

The political implications were clear from the roster of people questioned in the inquiry, including Mayor Richard M. Daley, who was Cook County’s top prosecutor when some of the most egregious complaints were lodged, and his former assistant, Richard A. Devine, now the Cook County state’s attorney.

Mr. Boyle rebuked a former Chicago police superintendent, Richard J. Brzeczek, saying he “did not just do his job poorly; he just didn’t do his job.” But he had only mild criticism for Mr. Daley, who as prosecutor received a letter alleging serious abuse in 1982 but delegated its investigation. “We accept his explanation, but would not do it the same way he did,” Mr. Boyle said of Mr. Daley.

A few prisoners had cattle prods placed against their genitals, guns shoved into their mouths or plastic typewriter covers held over their heads until they passed out, Mr. Boyle said, adding that most were abused with milder weapons like “the fist, the feet, telephone books.”

Prisoners who have alleged torture and their lawyers said they were profoundly disappointed with the report and that Mr. Daley and Mr. Devine should face federal indictment along with former Commander Jon Burge, whom they accuse of overseeing torture, and some officers under his command at what are known as Detective Areas 2 and 3. They cited at least recent 20 instances of court testimony by police officers, prosecutors and other officials that they said constituted continuing criminal behavior that would justify charges of obstruction of justice, perjury, racketeering and civil rights violations.

“Somebody needs to go to jail,” said one of the lawyers, Lawrence Kennon. “Burge needs to go to jail. His henchmen need to go to jail. The mayor should be indicted for covering up.”

For the whole story, click here.

Wednesday, July 19, 2006

False Confession May Lead to New Trial for Cook County Woman

This article ran in the Chicago Tribune on Wenesday, July 19, 2006.

Mom seeks new trial in murder of her son

Lawyers say that boy killed self in accident, confession was false

By Maurice Possley
Tribune staff reporter

Published July 19, 2006

Lawyers for a woman convicted of strangling her 4-year-old son are seeking a new trial, contending the jury did not hear crucial evidence showing the boy's death was an accident.

The motion was filed on behalf of Nicole Harris, who confessed on videotape to the murder of her son, Jaquari Dancy, in May 2005 and was convicted by a jury last fall.

At the trial, Cook County prosecutors contended that Harris strangled the boy with a strip of elastic from a fitted bed sheet because he would not stop crying.Harris told the jury that the confession--virtually the only evidence against her--was false and coerced, coming 28 hours after detectives began interrogating her.

The motion is scheduled to be argued at a hearing Wednesday before Cook County Circuit Judge Lon Shultz, who presided over the trial.Harris' lawyers, Steve Drizin, legal director at the Center on Wrongful Convictions at Northwestern University School of Law, and Robert Stauffer, from the law firm of Jenner & Block, contend in the motion that Shultz wrongly barred the testimony of the only eyewitness to the boy's death, Jaquari's 5-year-old brother, Diante.

Shultz ruled Diante was not competent to testify after the boy testified that Santa Claus, Spiderman and the tooth fairy were "real."

Harris' lawyers say the boy's testimony is crucial because he said he saw Jaquari wrap the elastic strap around his neck while pretending he was Spiderman and accidentally strangle himself.

The lawyers argue that Shultz misinterpreted the law when he said the defense was required to show that the boy was competent to testify. The burden, by statute, is on the party objecting to the testimony--in this case, the prosecution, according to the motion.

Further, the motion contends that Harris' lawyers, Kenneth Wright and Lynn Hollis, provided a substandard defense that failed to obtain a psychological evaluation of Harris, chose not to bring in expert witnesses to testify about false confessions or the frequency of accidental strangulation among young children, or to seek an independent evaluation of Diante's competence as a witness.

Prosecutors oppose the motion, contending that even if Shultz had properly applied the law, his ruling that barred the boy from testifying would be the same.

Further, they argue that decisions by Harris' lawyers were matters of trial strategy and not bad lawyering.

Wright and Hollis declined to comment.The motion outlines evidence gathered by Drizin and Stauffer that they contend points to Harris' innocence.

Robert Galatzer-Levy, a psychiatrist who teaches at the University of Chicago, interviewed Diante and found him to be a competent witness, capable of distinguishing between truth and lies. Galatzer-Levy noted in an affidavit filed with the motion that "the language that [Diante] uses is not always the same as the language an adult would use."

"However, he clearly articulated what he observed, including that `Jaquari killed his own self,' that Jaquari wrapped a sheet around his neck ... that Diante's mother and father were not in the room when this occurred," Galatzer-Levy stated.

Almost immediately after police began questioning Harris, Diante was taken to the Chicago Children's Advocacy Center, where he was interviewed. Notes of the interview kept by a police detective show that Diante answered questions that would have qualified him as a competent witness.

Harris' lawyers did not call the woman who conducted the interview.

The prosecutors say that Galatzer-Levy's assessment of Diante's competence is irrelevant because the boy is now a year older.

Harris' lawyers also attached to the motion an affidavit from Bruce Frumkin, a clinical psychologist in Florida who conducted several tests and determined Harris to be "an unassertive and accommodating individual who easily gives in to misleading information, is prone to shifting to different responses when pressured, and, as a result she is at a high risk for giving a false confession."

Though Harris' confession was videotaped, the interrogation was not recorded. Two months after her confession, a law went into effect requiring police to videotape all interrogations in murder cases in an attempt to cut down on abuses during interrogation and eliminate false confessions.

The motion also states that if granted a new trial, the lawyers would call an expert to testify about the frequency of accidental strangulation of children, as well as an expert who has studied and documented scores of false confessions and has testified on nearly 250 occasions about the subject.

Monday, July 17, 2006

Hope Still Out There for Journalism

This Op-Ed piece ran in the LA Times on Sunday, July 16, 2006.

Breaking News

Shrinking circulation! Fact-checking goofs! Partisan reporting! Despite the scare headlines, journalism's sob story may still have a happy ending.

William Powers, William Powers is the media critic for National Journal.

July 16, 2006

AS YOU'VE PROBABLY noticed, American journalism is going through a rough patch. At the old establishment outlets, circulation and audience numbers are sliding. Newspapers now routinely run shock-horror headlines about themselves, sob-sister tales of shrinking profit margins, rampant job cuts and the exodus of classified ads to Craigslist. In television, the news is just as bleak: The first week in July was "the least-watched week in recorded history for the four biggest broadcast networks," according to the Associated Press.

But the media's crisis isn't just financial. A long string of professional scandals — everything from plagiarism to fabrication — have shredded the public standing of the news business, along with its self-image. Twenty years ago, journalism was a revered, downright glamorous calling. Watergate still lingered in the collective memory with its image of reporters as dashing, heroic truth-seekers. Network anchors strode the Earth as gods.

Today, reporters shuttle in and out courtrooms where their own work is under investigation. The most talked-about journalists of the day are not so much the ones who reveal corruption as those who are accused of misdeeds themselves: the Judith Millers, Jayson Blairs and Dan Rathers. In the latest round of nastiness, several leading newspapers, including the Los Angeles Times, have been denounced for publishing stories about a secret government counter-terrorism program. President Bush called the stories "disgraceful," and one congressman has suggested that perhaps the New York Times should be prosecuted under the federal Espionage Act. In Washington, words we tend to associate with the 1950s — "treason" and "traitor" — are back with a vengeance, and they're being hurled at journalists.

The media's image has arguably hit a new low, though one hesitates to say that about a business for which fresh nadirs have become a way of life. The point is, how did we get here? And is there any hope of redemption? If you listen to the media's ideological critics, the fault lies entirely with the journalists themselves. The left believes that the mainstream outlets are gutless wonders, patsies for the White House. The right says those same outlets are rotten with liberal bias, determined to undermine everything this administration says and does.

Of course, these arguments can't both be true at the same time, but that's beside the point. For ideologues of both stripes, the media are just cannon fodder, a bottomless source of evidence that the other side is taking over the world. For such hopeless Manicheans, it will ever be thus. But if you really want to understand the media's predicament, you have to look beyond ideology.

These problems are all rooted not in substance but structure. We are living through a time of dramatic flux in the world of information. Familiar hierarchies that defined the news business for generations are being dismantled and rearranged before our eyes. In the second half of the 20th century, the news business was dominated by three powerful television networks and a handful of important newspapers. It was a nice world in many ways — profitable, predictable, easy to comprehend and navigate. More important, it was the only world we knew. For minds shaped by that era, my mind and probably yours, those institutions were almost indistinguishable from the news. Then, poof, in what felt like an instant (though it was more like a decade), they were gone. Particularly crucial are two tectonic shifts. First, the media marketplace has become more competitive. Technology has unleased a breathtaking profusion of new media outlets — cable, blogs, satellite radio, podcasts. Every few months a new option seems to arrive; the latest is, the red-hot website on which people post their own videos. As a result, the familiar old outlets no longer have the huge guaranteed audiences they used to take for granted, or the influence and profit margins that went along with them. What once was unthinkable has come to pass: the powers that be are no longer the only game in town. They are vulnerable.The second shift is transparency. Thanks partly to technology, and partly to all this competition, news outlets have been forced to open up the sanctum, to reveal how news is stitched together and to answer for their mistakes. The wall that separated (and protected) the media from their audience has become porous. Remember when the letters page was the only way of talking back to the media? Journalists are now on the griddle all the time. Watching them squirm has become a kind of national sport, NASCAR for the brainy set.

Just a decade ago, media scandals were rare things. Now they are everyday occurrences. This isn't happening because news outlets are making more mistakes than they made in the past. If anything, they've become more careful about their work because they know the whole world is fact-checking every sentence, waiting to catch a goof. And when they goof, it gets out, big time.

This is not always pretty. The changes have created a fractious news environment, rife with tension and conflict for journalists and their audiences. But if you step back for a moment and take the long view, it's hard to argue that it's inferior to the landscape we left behind.

Predictability is nice, and the forced togetherness of the mass outlets — everyone in front of the screen, consuming the same product at the same hour — lent society a certain cohesion. But it was an artificial cohesion. Glance back at the journalism of the late 20th century sometime; it's already begun to feel strangely homogenous and too perfect, like the facade of Main Street at Disneyland.

The messy, complicated media of this moment look a lot more like the culture they are supposed to reflect. Increased competition offers consumers more voices and perspectives on the news — and blogs permit them to participate in defining it.

Yes, the grand old giants are in decline, but that's a terrible thing only if you believe that they deserved the extraordinary sway they held over the news for so long. If those old outlets continue to offer strong, reliable journalism — a craft that's not as easy as it looks — they will survive. And if they fail, others will rise up to replace them. The new marketplace punishes errors, but it also rewards those who get it right. Increased scrutiny and skepticism will make the media stronger, not weaker. Some journalists are worried that the profession is dying, but this is classic newsroom alarmism. As long as there is a popular hunger for truth — a constant of human society, last I checked — there will be work for people who want to dig it up. Witness the best of the bloggers, who have not only proved themselves adept fact-checkers but become tip sheets for the mainstream media. The dinosaur media have even started hiring them. As for the new transparency, it's simply forcing us scribes to do what other powerful people have always had to do in this country: defend and answer for our actions. Ten years ago, the editor of the New York Times, certainly one of the most influential members of our society, was unknown to most Americans. Today, he's on television and the websites, justifying a bold story he decided to publish against the government's wishes, a story many Americans apparently feel shouldn't have been published. It's a brutal fight, but a meaningful one that is forcing us all to confront the role of the media in the age of terrorism. In a democracy, I don't see how anyone can call this bad news.