innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, August 11, 2006

More Pay Sought In Wrongful Jailings

By Michael Higgins, Tribune staff reporter. Tribune staff reporter Jeff Coen contributed to this reportPublished August 10, 2006

One day after a jury rejected a Chicago man's civil rights lawsuit over his wrongful imprisonment, lawmakers and advocates said state law should be amended to ensure fair compensation for future victims.

Jurors rebuffed Michael Evans' lawsuit against 10 former Chicago police officers on Tuesday, leaving Evans with the $160,000 award he received from the state as compensation for his 27 years of false imprisonment.

The state compensation for Evans, who received a pardon last year from Gov. Rod Blagojevich based on innocence, was the maximum amount allowed under Illinois law, yet it amounted to only about $6,000 for each year that Evans spent behind bars.That's not enough, according to advocates for the wrongfully convicted and at least two state lawmakers.

"I wouldn't say $160,000 is adequate for the amount of years the gentleman has been in jail," said House Majority Leader Barbara Flynn Currie, who helped push through the state's current compensation law in the mid-1990s.

"I would hope the legislature would go back and re-address the whole issue. ... Maybe this is the kind of jump-start we need."State Rep. Mary Flowers (D-Chicago) said Wednesday that this fall she would reintroduce a bill, proposed twice before, that would boost the state's compensation for wrongfully imprisoned inmates.

Evans and Paul Terry were convicted at age 17 of the 1976 abduction, rape and murder of 9-year-old Lisa Cabassa on the South Side. Both were sentenced to serve 200 to 400 years in prison and later exonerated by DNA testing.

In his civil lawsuit against the former police officers, Evans had sought $2 million for each year he spent in prison plus other damages.Settlement offered, sources saySources said the city of Chicago had offered Evans a settlement of $100,000 for every year he was imprisoned. Lawyers for the city had asked the jury to award that same amount if they found for Evans.

Evans had hoped to prove in his civil suit that police intentionally manipulated evidence and coerced a key witness against him in a plot to send him to prison. But jurors rejected Evans' $60 million lawsuit.Currie and others contend that even so, the legal system has still failed when a person is wrongly imprisoned.

"It doesn't matter whether police acted wrongly or a prosecutor acted wrongly, it's the same damage for the innocent person who went to prison," said Karen Daniel, a senior staff attorney at Northwestern University School of Law's Center on Wrongful Convictions. Daniel represented Evans when he sought state compensation."You're harmed regardless of how you got there," Daniel said.

"You're still losing that part of your life."Nationwide, a spate of exonerations based on DNA evidence has focused new attention on states' compensation statutes.Since 1999, at least eight states have either enacted compensation laws or boosted the amount that inmates can collect, said Adele Bernhard, a professor at Pace Law School in White Plains, N. Y.

According to Bernhard, Illinois' system compared favorably to the national norm in the late 1990s, but has slipped since--in part because no one can apply for compensation without a pardon based on innocence from the governor.

Some other states allow inmates to apply for compensation if their convictions were thrown out on grounds consistent with innocence, Bernhard said.In California, for example, an inmate can now collect $100 a day, a formula that would have entitled Evans to $36,500 a year or almost $1 million in all.

Tennessee passed a law with a $1 million cap. New York has no limit on awards.Today, 21 states plus the federal government have compensation statutes. Falsely imprisoned defendants in those states that don't have statutes sometimes ask the legislature to pass special bills to provide compensation in their case only.

The compensation statutes are important because most wrongfully convicted inmates, even those who are later exonerated by DNA, are hard-pressed to win a civil rights lawsuit, experts said.To win, the former inmates must prove that police intentionally violated their constitutional rights by, for example, manipulating witnesses or withholding or fabricating evidence.

Defendants won't win if they were wrongfully convicted because, say, an eyewitness misidentified them.According to Jon Loevy, attorney for Evans, it means showing "that somebody was actively engaged in framing you."Some court winsSome inmates do win in court.

James Newsome won a $15 million verdict in 2002 in federal court in Chicago after arguing at trial that police had rigged the lineup in which he was identified, leading to his wrongful conviction for murder.

Another federal jury in Chicago awarded more than $6.5 million to Steve Manning last year, after Manning accused two FBI agents of framing him and sending him to Illinois' Death Row.But more typical, experts say, are the cases of Evans and Anthony Porter, who was exonerated in 1999 for a double-murder in Chicago but saw his lawsuit rejected by a Cook County jury last year.

Still waiting to present his case to a jury is Evans' co-defendant in the Cabassa murder, Paul Terry, who also was released and pardoned after the DNA testing.Terry's case could be heard by a jury in state court within a year, said one of this lawyers, Jeffrey Urdangen, of the Bluhm Legal Clinic at Northwestern University.

Copyright © 2006, Chicago Tribune

Thursday, August 10, 2006

Solid Investigating Nabs Serial Killer's Confession

This article appeared in the LA Times on Thursday, August 10, 2006.

Letters Coax a Serial Killer to Confess

Amid the small talk in their letters, a volunteer investigator coaxes a killer to reveal clues to some of the 48 slayings he says he committed.

By Nicholas Riccardi, Times Staff Writer
August 10, 2006
COLORADO SPRINGS, Colo. — The slight, silver-haired man sat in front of the shackled killer and asked: "Do you know who I am?"

Charlie Hess watched the prisoner struggle to recognize him. It should have been easy. Hess had recently sent Robert Charles Browne a photo of himself, his 5-foot-6 frame dwarfed by a yellowfin tuna he had caught during a vacation in Baja California. Hess, a volunteer investigator for the local sheriff's office, and Browne, a convicted killer of a 13-year-old girl, had been exchanging letters for two years. They had swapped fishing stories and griped about their ailments — Hess' hip replacement surgery, Browne's arthritis.

In between the pleasantries, Hess recalled, he was pushing Browne to reveal more about murders he said he carried out — how, unbeknown to law enforcement, he had killed 48 people over 25 years. Hess had waded through letters from Browne that hinted at the crimes.

"I will not hand it to [you] on a golden platter," Browne wrote.

In June 2004, the letters stopped. Browne had told Hess not to visit him in prison, but after three months of silence, the investigator figured he had no choice. Hess introduced himself. Then he asked Browne why he had stopped writing.

"I ran out of stamps," the killer said.

Hess, 79, first heard about Browne in the spring of 2002. Hess was meeting with the two other volunteers who make up the cold-case unit of the El Paso County Sheriff's Office at one of their twice-a-week coffee breaks at the Old Heidelberg Pastry Shop downtown. They were an unusual group. Hess was a soft-spoken former FBI and CIA officer who had moved to Colorado Springs after his son-in-law's murder. Lou Smit was a retired detective who had solved more than 100 homicides and probed the slaying of 6-year-old JonBenet Ramsey. Scott Fischer was a former newspaper reporter and photographer who had recently stepped down as publisher of the Colorado Springs Gazette.

The three men had spent about a year combing through the files of a dozen open murder cases, chasing leads and updating records. Now the trio, who called themselves the "dinosaurs," were looking for a new challenge.

All three recalled that Hess posed this question at coffee that day: Why don't we pick someone who may be a serial killer? Hess said he was thinking of his success over the decades at getting information out of incarcerated crooks.

Fischer, now 60, asked Smit if he had any candidates. The detective immediately came up with Robert Browne.In 1995, Smit had arrested Browne, a tree farmer living outside Colorado Springs, for the 1991 abduction and killing of Heather Dawn Church. Heather disappeared after she was taken from her bedroom; her skull was found two years later by a hiker in the mountains west of here.

Browne had insisted he had just been burglarizing the Churches' house, but he pleaded guilty to murder and was sentenced to life in prison. Something had always bothered Smit, 71, about the case. If it was just a burglary, why did Browne kill the teenager and hide her body parts with such skill? And surely it was no coincidence that two of Browne's neighbors in his hometown of Coushatta, La., had died violently, their killer never found.

"You know, I think he's a serial killer," Smit told his partners. "I think we can do a bit more."

The investigators pulled the file on Heather Church from the department's archives. They were surprised to find a letter Browne had written to the district attorney from prison, hinting that authorities would never uncover all his crimes.

"The score is you 1, the other team 48," Browne wrote. He had enclosed a hand-drawn map, highlighting the states where he said he had committed murders. Numbers written on nine states added up to 48.

"If you were to drive to the end zone in a white Trans Am, the score could be 9 to 48."

Browne had refused to elaborate then, but the retirees decided they should contact him. Because he had arrested Browne, Smit knew he would not talk to him. The logical man, given his background, was Hess.

For the whole story, click here.

Wednesday, August 09, 2006

Jury Sides with Cops in Wrongful Conviction Lawsuit

This AP article ran in the Chicago Tribune on Tuesday, August 8, 2006.

Jury refuses damages to prisoner cleared after 27 years

By MIKE ROBINSONAP Legal Affairs Writer
Published August 8, 2006, 4:23 PM CDT

CHICAGO -- In a stunning victory for 10 veteran police officers, a federal court jury refused Tuesday to award any damages to a man who spent 27 years in prison for rape and murder before being freed by a DNA test. The civil jury of six men and three women rejected claims by attorneys for former prisoner Michael Evans that he was framed as part of a plot by Chicago homicide detectives who were eager to close the high-profile case.

"We're thrilled -- this is a great day for the Chicago police department," defense attorney Andrew Hale, who represented the nine retired and one current officers named in the lawsuit, told reporters. Evans, 48, who had broken down and cried on the witness stand as he described his prison ordeal, looked glum as the verdict was read.

"Tough," Evans attorney Jon Loevy said sadly, putting his arm on Evans' shoulder as they left U.S. District Judge David H. Coar's courtroom. The state of Illinois already has paid Evans $160,000 under a program that limits the amount paid to those wrongfully imprisoned. The lawsuit against the 10 former detectives and police officials charged that Evans was the victim of a malicious prosecution and a conspiracy. Loevy had suggested to the jury in his closing argument that it might be appropriate to award more than $58 million in damages to Evans.

Evans and another man, Paul Terry, were convicted of the rape of 9-year-old Lisa Cabassa, whose body was found in a South Side alley on a January night in 1976. Police were under heavy pressure to solve the case. Evans was finally freed and pardoned after Northwestern University's Center on Wrongful Convictions obtained a DNA swab, which showed that he could not have been the one who raped the girl.

Hale told jurors the fact that the DNA test had come up negative did not mean Evans had not taken part in the abduction. He cited the testimony of chief prosecution witness Judy Januczewski, who claimed she had seen Evans wrestling with the girl on a street corner.

Januczewski came forward five days after the killing, contacting people who were offering a reward. She did not name Evans as the one she saw with Cabassa until police had been questioning her for six weeks. Loevy told jurors police put heavy pressure on Januczewski, subjecting her to marathon interrogations, and finally fed her Evans' name. "I think her testimony was very persuasive," Hale told reporters. Asked about the next step, Hale said: "I hope there isn't a next step. As far as we're concerned, we're done."

"These guys are going to be glad to get back to their retirement," he added. None of the veteran officers was on hand when the verdict was read. "We are disappointed, and we're going to appeal," Loevy said.

Locke Bowman of the MacArthur Justice Center at Northwestern University told reporters that "30 years ago a miscarriage of justice took place at 26th and California," site of the Cook County Criminal Courts. "Another miscarriage of justice took place here today," he told reporters in the lobby of Chicago's Everett M. Dirksen Federal Courthouse. In his closing argument, Loevy told jurors that one of the detectives had taken the Fifth Amendment when questioned about the case before trial.

But Hale said Wednesday after the decision that jurors most likely ignored that because the detective had been at the scene the first day and then dropped off the case. The detectives who investigated the case were from the South Side's Area 2 violent crimes division, the center of a long-running controversy.

Court-appointed special prosecutors found recently that there is evidence dozens of suspects might have been beaten, dunked in water and hooded with a typewriter cover in the interrogation rooms at Area 2. But they said the cases were too old to bring criminal charges.

The allegation in the Evans case was not that the police had tortured anyone but that evidence against the two defendants had been fabricated. Terry, Evans' co-defendant, has also been pardoned and has filed suit against the police in Cook County Circuit Court.

Tuesday, August 08, 2006

VA Should Focus on Crime Prevention, Not Death Penalty

This op-ed piece by Jack Payden-Travers ran in the Free Lance Star on August 8, 2006.

Two recent executions show why we should kill the death penalty

Virginia should end the death penalty, and focus on crime prevention
Date published: 8/8/2006

CHARLOTTESVILLE--Thirty years ago this month, in Gregg v. Geor- gia, the U.S. Supreme Court authorized states to resume capital punishment so long as they could eliminate "substantial risk that it would be inflicted in an arbitrary and capricious manner."

Virginia marked the anniversary by executing Brandon Hedrick on July 20, then Michael Lenz on July 27. Brandon Hedrick was barely 19 years old when he shot Lisa Crider, a young mother from Lynchburg. Michael Lenz was already in prison when he retaliated against a threatening fellow inmate, Brent Parker.

The details of these cases highlight the need to protect the promise of Gregg and eliminate the arbitrariness in the administration of the death penalty.

For example: Since Hedrick's trial, the execution of persons with mental retardation has been prohibited. Hedrick's IQ was measured at about 76, putting him within a range considered mildly mentally retarded. Virginia law requires capital defendants to receive a comprehensive evaluation about mental retardation, but does not allow Virginia courts to act in cases like Hedrick's because he was too far along in the process.

Brandon Hedrick apparently "chose" electrocution as his method of execution. Regardless of a prisoner's mental capacity the Virginia Department of Corrections consistently refuses to allow prisoners to consult with counsel when choosing a method of execution. Guards come to the prisoner's cell in the dead of night to have them fill out the Method of Execution form. If inmates choose a method of execution--or even if they don't, by refusing to fill out the form--the state attorney general's office contends that the prisoner has waived any protection against the imposition of cruel and unusual punishment.

As the federal government provides this right to those facing execution, one must ask: Why does Virginia deny it?

Also, since Hedrick's trial, Virginia established specialized regional capital defender units appointed in every death penalty case. These units are intended to eliminate the disparity in the quality of representation in death penalty trials.

Far from providing "quality" work, however, one of Hedrick's lawyers admitted "[we] did not meet to seriously discuss trial strategy until one business day before trial." His lead attorney had never before selected a capital death-qualified jury--and neither lawyer had ever completed a capital murder trial.

Witnesses relied on at the "life-or-death" sentencing part of the trial were not interviewed by counsel until they were on the stand. In the year allowed to prepare for trial, one lawyer worked 53 hours--less than nine minutes a day--on the case; the other worked 119 hours.

These meager efforts meant that jurors asked to determine Hedrick's fate heard little from his side, and next to nothing about Hedrick's innocence of charges of rape and sodomy. They did not know, for example, that the police investigators on the case thought Hedrick "did everything in his power to aid the investigation," and found him honest and remorseful about his crimes.

Neither did they know that Hedrick's older co-defendant, Trevor Jones, who accused Hedrick of raping and sodomizing the victim despite no physical evidence to support his accusations, vowed to "see Hedrick killed" when he learned that Hedrick confessed to police. This never came out at trial because, just when it came time to question Jones, Hedrick's lawyer, who all along took responsibility for examining Jones, suddenly turned to his co-counsel and said, "You do the cross."

Jones expected to have his sentence reduced significantly for testifying against Hedrick--but Jones' judge, who knew that Jones orchestrated the abduction and killing, found the men equally culpable: "Make no mistake about it, without [Jones'] actions, Lisa Crider would still be alive today." Indeed, Jones put his shotgun in Hedrick's hand and told Brandon, "Do what you have to do," in order to protect Jones from retaliating drug dealers who knew Ms. Crider.

In the more recent Washington-area sniper case, a similar leader-follower dynamic produced the exact opposite result, with the teenager who did the shooting spared a death sentence and the leader who put the gun in his hand sentenced to death.

The defense in that case worked a total of 6,540 hours; Hedrick's lawyer provided him only 2.5 percent of the time Lee Malvo received. In other words, for every hour Malvo's attorney labored over the case, Hedrick's attorneys work 90 seconds.

Jurors asked to sentence Michael Lenz to death were made to use a jury verdict form the Supreme Court of Virginia has since found misleading and unacceptable, and which no court has used in years. There is no more gross procedural legal error; the verdict form is the statement of the very decision the jury is charged to make.

There is no dispute that Lenz's verdict form was unnecessarily deceptive and an improper statement of the law--the only question is whether anyone would intervene to determine whether a fair and properly instructed jury would find him deserving of a death sentence.

The promise of a death penalty free from "arbitrary [and] capricious" application now has a history spanning 30 years and 1,031 executions. No state executes more quickly than Virginia (6.1 years after conviction), and only one executes more often.

Among those sentenced to death, 123 men and women have been able to prove their innocence and been exonerated. In other words, at least four innocent people were sentenced to death each year.

The time needed to establish innocence is of special concern in Virginia: It took an average of 9.2 years for these people to prove their innocence. In Virginia, they would each have been dead years before their exoneration.

The promise of Gregg has failed--as has the national death penalty experiment. There is no need to collect more evidence of arbitrariness or caprice in its application. It is time to suspend the use of capital punishment in Virginia, and focus resources on preventing violent crime.

JACK PAYDEN-TRAVERS is director of Virginians for Alternatives to the Death Penalty.

Monday, August 07, 2006

A Call for Recording Reform in CA

This op-ed piece ran in the LA Times on August 7, 2006.

Safeguards for the Innocent

California should reform recording rules for eyewitnesses and suspects.

By Thomas P. Sullivan, THOMAS P. SULLIVAN, an attorney in Chicago, has testified on these issues before the California Commission on the Fair Administration of Justice.

August 7, 2006

IN 1980, SEVEN YEARS into a life sentence for a double homicide, Aaron Owens sat before a parole board believing that he was never going to be released. John Taylor, the Alameda County deputy district attorney who originally prosecuted the case, had come to testify to make sure of it.

When the hearing ended, the two men stopped to speak to each other. Owens professed his innocence. Taylor's intuition told him that Owens was speaking truthfully. Driven by a personal sense of justice, Taylor set about to reinvestigate the case. He learned that Owens had been misidentified by a key witness and that two other men had committed the crime.

Five years later, in an unrelated case, 18-year-old Harold Hall sat in a Los Angeles interrogation room and confessed to a different double homicide. He had been interrogated for 17 hours. Much of the information provided by Hall did not agree with the details of the crimes, but he was nevertheless convicted. After serving 19 years in prison, Hall's conviction was overturned, and DNA evidence proved his innocence. His confession was false.

These and other wrongful convictions led the California Commission on the Fair Administration of Justice to issue a series of recommendations that served as the basis of two bills pending in the Legislature. SB 1544 requires the attorney general to implement a set of eyewitness identification reforms that are recognized by police, prosecutors and the judiciary, as well as national justice organizations including the National Institute of Justice and the American Bar Assn. For instance, one is the use of "blind" lineups and photo spreads, in which the administrator of the procedure does not know who the police suspect is. This prevents the administrator from giving the witness inadvertent or intentional verbal or nonverbal cues. The reforms also require a series of instructions to the eyewitness, including one that specifically says it is possible that the alleged perpetrator may not be represented in the display. Each lineup would also be accompanied by a "confidence statement" in which the witness specifies the level of certainty about any identification made. The benefits of these reforms are corroborated by more than 25 years of comprehensive peer-reviewed research, including the experience of law enforcement agencies in Santa Clara County. SB 171 would mandate electronic recording of all custodial interrogations of suspects in a place of detention during investigations of homicides and violent felonies. Various kinds of recording devices would be used, both audio and video.

Many California police and sheriff departments already record these interviews, and passage of this bill would establish consistency statewide. My associates and I have spoken with experienced detectives from more than 485 law enforcement agencies in 44 states, including many in California, who record custodial interviews in major criminal investigations. We have yet to speak with an officer who would return to non-recorded interviews. Recordings protect innocent suspects and shield officers from unfounded claims that suspects were not given the Miranda warnings (without which individuals in custody may not lawfully be questioned), that improper coercive tactics were used or that police misstated what occurred. Recordings create a permanent record that allows courts and juries to see and hear exactly what the police and the suspects said and did during closed-door police station interviews. They permit detectives to concentrate on suspects' stories without needing to take extensive notes; when later reviewed, they often disclose overlooked clues; and they are useful in teaching effective interview techniques to new detectives. If the police conduct is appropriate, recordings prevent civil litigation and potential judgments for alleged coerced confessions and wrongful convictions.

Mandatory recording statutes have been enacted in Illinois, Maine, New Mexico, Wisconsin and the District of Columbia, and have been put in place throughout Alaska, Minnesota and New Jersey under orders of those states' highest courts. The law enforcement experience in all these states has been uniformly positive.

Passing these two bills will substantially enhance the accuracy and fairness of California's criminal justice system so that the guilty are apprehended and convicted, the innocent are not mistakenly charged and the public is safer.