The Sleuth

This profile on U.S. Patriot News reporter Pete Shellem, which quotes Innocence Institute director Bill Moushey, ran in the American Journalism Review April/ May of 2007.

From AJR, April/May 2007

The Sleuth
June/July Preview » Pete Shellem of Harrisburg ’s Patriot-News has freed four people from jail through dogged, old-fashioned reporting.
By Mario Cattabiani

Patty Carbone.
Steven Crawford.
Barry Laughman.
David Gladden.
Combined, they had spent 66 years in jail. All were destined to die in a prison system that ignored their pleas of innocence--until Pete Shellem started digging.

Since 1998, investigative series by Shellem, a longtime reporter for the Patriot-News of Harrisburg , Pennsylvania , have highlighted grave flaws with those homicide convictions that eventually prompted the state to set all four people free.

At 46, Shellem is a journalistic throwback: a chain-smoking, B-movie reporter who meets sources in bars and immerses himself in his subject. He tirelessly pores over court files searching for nuggets overlooked, in some cases, even by defense lawyers: Altered lab reports. A police informant with a shady past. A previously unknown witness.

In one case, Shellem even tracked down long-forgotten DNA samples preserved for years in a professor's refrigerator in Leipzig , Germany .

"He is a one-man Innocence Project," says former Pennsylvania Attorney General Ernie Preate. "The idea that a single, solitary newspaper reporter can accomplish all this is a remarkable story." And that's from a public official embarrassed by Shellem's reporting. But more about that later.

To Gladden--a retarded man who was released in February after spending a dozen years in prison--Shellem is the journalistic version of "Matlock." "He gets out and finds out what is really going on in this community," says Gladden. "He digs and digs and digs for the truth. Man, this guy is a thorn in somebody's side. But he's a great man to me."

No one keeps records on such things, but experts on journalism and the wrongly convicted cannot think of a present-day reporter who by himself has compiled a résumé of freed prisoners as thick as Shellem's. And he's done it while maintaining a full-time courts beat.

"I was always taught that reporters are supposed to be government watchdogs. The most drastic thing the government can do to an individual is charge them with a crime and send them to jail," says Shellem, a Temple University grad who has spent the past 21 years with the Patriot-News. "We have a good justice system in this country, and it pisses me off to see people misuse it to run over people, most of whom are at some sort of disadvantage."

Despite his success, Shellem is virtually unknown outside Pennsylvania . "If Pete worked at a larger paper, say the Washington Post, and did what he did, everyone would know about him; he would be a hero, and everyone would be talking about him," says John Kirkpatrick, editor and publisher of the Patriot-News, a 100,000-circulation daily in central Pennsylvania . "But he doesn't care about that. He cares about righting these wrongs."

Shellem is more Mickey Spillane than Brian Williams. Some cops tell him he's missed his calling: He should have a detective's badge. This is a guy who, by his own account, reads "police manuals, court transcripts and opinions for entertainment."

He often wears gray hooded sweatshirts, giving him a Unabomber look. He rarely misses a workweek happy hour--that's where some of his best work originates--and knows most bartenders in Pennsylvania 's capital city by name. When the city desk needs to find him for a question on a story, they know where to look--the Glass Lounge, the Gingerbread Man or any number of other taverns in town.

"I don't take this stuff lightly, and I'm not the type that believes every con that comes along," says Shellem. Sometimes, his stories emerge from tips from private investigators working for the defense. Other times, it's simply a nagging sense, honed by years as a courts reporter, that something just isn't right. "But in these cases, I don't start writing until I'm sure I'm right, and if people need to be embarrassed into doing the right thing, I'm happy to oblige them."

Consider a 1998 headline on one of Shellem's projects: "Why is this woman still in prison?"
"Me and my family were wondering that question for years, and no one listened," says Patricia A. Carbone. "Pete got that question out there."

On June 9, 1984, a car pulled alongside Carbone as she walked to a bar in Somerset County . The driver allegedly pulled her into the car, drove down an abandoned street and tried to rape her. She escaped from the car, but the man caught her. She grabbed a knife from her purse and fatally stabbed him before fleeing.

Police and prosecutors didn't believe her story. Neither did a jury. She rejected an offer to plead guilty to manslaughter, was found guilty of first-degree murder and sentenced to life in prison.
Fourteen years later, Shellem reported about another woman, an off-duty police officer who said she had been grabbed by the same man outside another bar just weeks before he was killed. She so feared for her safety that she pulled a pistol to fend him off, but she didn't press charges.
The officer's story, which the trial judge barred the jury from hearing, ate away at the credibility of the man whom family members insisted never touched alcohol and never set foot in a bar. Prosecutors reexamined the case after Shellem's article appeared and allowed Carbone to plead guilty to a reduced charge of third-degree murder. Although her attorneys had argued self-defense, she took the deal and was released based on time already served.

"If it weren't for Pete, I really, truly believe I would still be inside those horrible, horrible prison walls," says Carbone. "He is a blessing from God. He was the answer to my prayers."

Barry Laughman, a man with an IQ of about 70 who rode his bike to work because he couldn't pass his driver's exam, was convicted in 1988 of raping and killing a distant relative known as Aunt Edna.

Shellem's 2003 series on the case pointed out inconsistencies, including a confession that appeared to be coerced and semen found at the scene that didn't match Laughman's blood type. But the real break in the case came in the form of 18 swabs and six microscope slides taken from fluids in Edna Laughman's body.

At the time of the original trial, there wasn't enough DNA to draw any conclusions. But as science improved, there was hope that those samples could yield results. There was just one problem. No one knew where the samples had gone.

After persistent questioning of defense lawyers, who hadn't realized the value of the samples, Shellem traced them to a former anthropology professor at Penn State University who initially had analyzed them for DNA. The professor later moved to Germany and took the samples with him. They proved Laughman was not the killer, and he was freed in 2003.

"I believe Laughman would have served the rest of his natural life in jail for a murder he did not commit if not for Pete Shellem," says William C. Costopoulos, an attorney who is representing Laughman in a wrongful imprisonment civil suit.

In 1970, when Steven Crawford was 14, he allegedly bludgeoned a childhood friend to death with a hammer.

In 2001, Shellem reported about a briefcase of a former detective on the case discarded with the trash. That briefcase--picked up from the curbside by neighborhood kids and eventually confiscated by local police--would help set Crawford free.

It contained the original lab reports about a palm print lifted from the side of a car at the crime scene--the key evidence against Crawford. Months later, Shellem discovered that authorities had built their case against Crawford using a report altered by a state police chemist, not the original one that supported the defense case that the print was not connected to the murder.
"Pete forced us to take a look at really important parts of this case. There were lawyers who had looked at it for 20 years who hadn't," says Dauphin County District Attorney Edward Marsico. Marsico says he was later convinced, not of Crawford's innocence, but that he did not receive a fair trail. Instead of trying him again, Marsico decided to support Crawford's release from jail. He already had served 28 years.

"There was very little hope for me. I was relying on the criminal justice system that had been failing me for 28 years until he came along," Crawford says of Shellem. "He has a pit bull's tenacity. When he grabs hold of something, he doesn't let go until he finds the truth."

Last year, Shellem approached Marsico, asking the DA to open his file--complete with non-public details--on another case, Commonwealth of Pennsylvania vs. David Gladden. "I trusted him enough to do that," says Marsico. "Pete is at a stage where, because of his reputation, I didn't have a problem with it. I can't think of any other reporter I would do that for."

Gladden was convicted in 1995 of killing and setting fire to an elderly woman in Harrisburg . Marsico says it was Shellem who brought him a key fact in the case: A serial killer lived in the same building as M. Geneva Long, whom Gladden was convicted of murdering. That man had preyed on elderly women, sexually assaulting them and setting fire to one to co
ver up the crime--facts identical to the crime Gladden had supposedly committed.

Marsico, as an assistant district attorney, had prosecuted the other man and was familiar with his MO. But he never put two and two together. "My jaw dropped. I know it's a cliché, but it did," Marsico says. "That was enough to raise concerns. As a result of Pete, we took a fresh look at the case."

Shellem also sought out the only eyewitness, who had told authorities he and Gladden had burglarized Long's apartment and that he watched as Gladden choked her. Police had believed the eyewitness even though he gave the wrong location of the murder and couldn't even say whether the victim was black or white. In an interview with Shellem, the man recanted the story and said he had been coerced into confessing to his role in the crime.

All Ellen Pleasant, 93, cared about was living long enough to see Gladden, her grandson, walk from jail a free man. It happened on February 16. "Pete is a God-sent man to us," says Pleasant. "He's part of our family now."

A word to the wise: Don't mess with Shellem's bartenders, and never, ever call any of them Fatso. Several state legislators learned that the hard way.

After a session of the state House of Representatives in 2002, a group of lawmakers went barhopping in Harrisburg . They entered one of Shellem's favorite haunts, some with drinks already in hand. They were obnoxious, and, when a bartender told them they couldn't smoke cigars or leave with their drinks, they insulted her.

In that episode, Shellem saw a story.

He went on to expose a little-known provision in state law: In many instances, state lawmakers are immune from arrest during legislative sessions. City police were powerless to cite the legislators, but at least one was embarrassed publicly by Shellem for his rude ways.

"I don't want to lead anyone to believe I go to bars only to get stories, although it would be nice if my editors did," says Shellem. "In fact, sometimes I go to places to get away from people trying to pitch me stories. But I often run the stories by people, regular people, to see what they think."

Shellem "comes across as B-movie reporter--you know, a chain-smoking tough guy who meets his sources in bars and operates around the edges. But, in the end, he gets pissed off about these people locked up," says Pete Shelly, a former colleague and now a Harrisburg public relations consultant. "The guy has a heart of gold and is a softie deep down. If you print this, he'll kill me--or investigate me--but it's the truth."

Bill Moushey has a tip for Hollywood . "What he's done is a movie. It's a damn movie," says Moushey, one of the few other reporters in the nation who specializes in trying to prove innocence or prosecutorial misconduct. "The idea that Pete has done this by himself, I can't imagine anyone else doing that. He has accomplished more than anyone."

Getting someone out of jail is not easy work, says Moushey, who in 2001 formed the Innocence Institute of Point Park University in Pittsburgh . By special arrangement, the Pittsburgh Post-Gazette publishes his investigative projects. Besides the reams of records, there is the psychological toll. "You put yourself in a position that everyone and their brother wants to take a shot at you," Moushey says.

The cops hate you. The prosecutors hate you. Families of the victims all hate you. After all, they had closure. Someone is paying for the crime, and along comes a reporter trying to take all that away. "Then you start telling people black is white, it raises all kinds of issues," Moushey says.
But, as Shellem has proved, you can win people over. Even a man whom Shellem helped put in jail is now a fan.

In 1994, Preate, then Pennsylvania 's attorney general, was considered the front-runner for governor. But Shellem, along with Shelly, tirelessly pursued allegations that Preate accepted illegal campaign contributions in exchange for soft treatment from his office. The coverage reopened a dormant federal investigation into Preate, who at the time ripped the paper for what he called a salacious witch hunt.

"He busted my ass. But he was just doing his job," says Preate, who, after serving a one-year jail term for campaign-related mail fraud, has devoted his law practice to prison- reform issues. "You've got to recognize the work that he's done and the value he's given to society. He was there when the justice system failed."

After every investigative series, without fail, Shellem is inundated. His phone rings incessantly, and the mail, postmarked from state correctional facilities, starts piling up. Everyone is innocent, and they all want his help proving it.

Since Gladden's February release, Shellem estimates he has received several hundred calls and letters. He tries to take at least a cursory look at all of them. Most of the time, he says, "there's a pretty obvious hook that explains why the person was convicted."

Of the lot, Shellem has set aside three or four that he believes have potential. Among them is perhaps his next project, his fifth freed inmate. "I know sooner or later," Shellem says, "I'm going to find another one that makes me sit back and say 'What the hell?'"

Mario F. Cattabiani (mcattabiani@phillynews.com) covers Harrisburg for the Philadelphia Inquirer.

New York police commisioner orders forensic shakeup

This article appeared in the New York Times on April 20, 2007:

After Falsified Test Results, Kelly Orders Forensic Shakeup

By Thomas J. Lueck

With the disclosure that two civilian employees reported false results in testing drug bags in 2002 at the police crime laboratory, Police Commissioner Raymond W. Kelly has ordered a shakeup of the Forensic Investigations Division and the creation of an oversight panel, the authorities said yesterday.

The changes come as a rebuke to the forensic unit’s former commander, Deputy Chief Denis McCarthy, who was recently transferred to a patrol division.

Chief McCarthy, a 27-year veteran of the department, was in charge in 2002 when the two employees were found to have engaged in “dry-labbing,” or cutting corners in the process of testing for drugs during an internal integrity test conducted by the department. In addition, the forensics unit failed to report the transgression to state officials and to a national laboratory accreditation board, as it is required to do.

Chief McCarthy’s transfer and the 2002 drug testing falsification were reported yesterday by The New York Post. Mr. Kelly said that Inspector Kevin J. Walsh, formerly of the Counter-Terrorism Bureau, had replaced Chief McCarthy as commander of the forensics division.

A spokesman for the Police Department, Paul J. Browne, said the falsified test results in 2002 had no bearing on actual court cases, since they were revealed in a routine procedure of “blind proficiency tests” designed as internal checks on the integrity and competence of civilian criminalists, 100 of whom are now employed by the crime laboratory.

But some critics are not convinced that it is an isolated incident. Peter Neufeld, a lawyer and co-founder of the Innocence Project, a New York-based legal group that uses DNA evidence to represent people it believes have been wrongly convicted, said it was unclear how many cases were affected in New York and elsewhere by such falsified lab work.

Mr. Browne said the department’s own testing revealed that the two employees had tried to save time by failing to inspect the contents of all the bags believed to hold cocaine, and reporting that they had tested them all. One technician, or criminalist, was told to inspect 37 bags and reported that all contained cocaine, even though four did not. The other criminalist said all six bags contained cocaine, but one did not.

The case was handled by the Internal Affairs Division, and both employees were disciplined in accordance with police policy, Mr. Browne said. But the violation of department rules came when the forensic unit failed to file a report on the matter with both the state and with the American Society of Criminal Laboratory Directors/Laboratory Accreditation Board, a national oversight organization that accredits New York state forensic labs.

“Our own testing worked, but the lapse came in failing to notify,” Mr. Browne said. He said notification would be one of several procedures studied by a new Forensic Science Review Committee being formed with four senior police officials and two civilian forensic scientists.
But the creation of an oversight panel made up mainly of police personnel does not go far enough, Mr. Neufeld said. He added, “Whenever you have a scandal like this, it is essential to bring in an independent entity without any possibility of conflicts of interest.”

Mr. Browne said the 2002 violations had come under renewed scrutiny last month after the current civilian director of the crime lab, Dr. Peter Pizzola, was informed by state officials of an anonymous report that someone in a crime laboratory at an unspecified location was dry-labbing. When he asked about past violations by New York City criminalists, Dr. Pizzola, who was not with the division in 2002, learned that there had been cases that year that were not reported outside the department.

The police said that Dr. Pizzola’s predecessor, W. Mark Dale, had maintained in a recent interview that he believed the violations should not have been reported outside the department because they were being handled by Internal Affairs.

Mr. Browne said that one employee responsible for the 2002 violations, Elizabeth Mansour, had retired, and that the other, Rameschandra J. Patel, had been suspended from crime lab work and restricted to answering telephones.

Men's innocence puts Dallas county on trial

This article appeared in the Los Angeles Times on April 9, 2007:

Texas men's innocence puts a county on trial
DNA is expected to clear a convicted rapist, as it has 3 of his friends.

By Miguel Bustillo
Times Staff Writer

DALLAS — Many men claim innocence when staring at iron bars. But James Giles knew he was no rapist — and he believed three fellow Texas prisoners who told him they too were wrongly convicted of rape.

They shared their despair over games of chess and dominoes, worked on longshot appeals together in the law library, and dreamed of the day they would win exoneration from a justice system that failed them.

It has taken nearly 25 years, but with the assistance of DNA testing, the men — all African American — are proving they are indeed innocent. Two were freed from prison. A third was cleared last month, years after serving his sentence. Today, Giles is expected to clear his name and become the 13th man from Dallas County to prove with genetic testing that he was wrongly imprisoned.

Giles, who spent 10 years in prison and was paroled in 1993, is seeking to vacate his 1983 conviction. New evidence suggests that another man — also named James Giles — committed the rape. Dallas County prosecutors more than two decades ago knew about the other James Giles, who lived across the street from the victim, but never told Giles' defense.

"I lost everything in the world," said Giles, 53. "I just thank God we finally got someone to see that I was the wrong guy."

Giles struggled to rebuild his life after he got out of prison, branded a rapist. The skilled construction laborer had a hard time finding menial jobs, and his wife, who stuck with him through his prison term, eventually sought a divorce.

The Dallas County district attorney was scheduled to personally apologize to Giles today. The three wrongly convicted men whom Giles befriended in prison will be cheering in the courtroom.

The wrongful convictions of these four men are some of the most dramatic examples of prosecutions in the Lone Star State that have come under increasing scrutiny.

Dallas County has had more people exonerated by DNA than all but three entire states. Texas, which leads the nation in convictions overturned by genetic testing, has had 27, Illinois, 26, and New York, 23. California has had nine exonerations.

Revisiting cases

With countless current and former Texas prisoners clamoring for testing to clear their names — more than 430 in Dallas County — law enforcement officials predict that the number of overturned convictions will grow exponentially.

Texas prosecutors have typically fought activists' attempts to revisit cases. But Dallas County Dist. Atty. Craig Watkins, the first African American elected to the office, has forged an unusual alliance with the Innocence Project, a New York-based group that uses DNA testing to challenge convictions.

Watkins has proclaimed "a new day in Dallas" and is promising to right past wrongs of his office — particularly the many disputed convictions during the reign of Henry Wade, Dallas County's top prosecutor from 1951 to 1987.

"The mentality of the office at that time was, 'I don't care if there is some doubt, let's make sure we keep up our conviction rate,' " Watkins said. Wade died in 2001, and is best known for his role in Roe vs. Wade, the U.S. Supreme Court case that legalized abortion.

"Back then, if you sent someone to jail who was possibly innocent, it was a badge of honor," Watkins said.

Watkins' office helped reinvestigate the Giles case. The exoneration request must ultimately be approved by the Texas Court of Criminal Appeals, but with Watkins' support, that is considered a formality.

Nearly all the Dallas DNA exonerations have involved men who were convicted of sex crimes based on dubious witness accounts. Most are African Americans — Giles will be the 10th.

Unlike many other jurisdictions, including Houston, Dallas County preserved blood samples and other evidence collected decades ago, a stroke of luck that is allowing felons to seek a review of their convictions.

"The biggest tragedy when the wrong person goes behind bars is that the right person got away with it," said state Sen. Rodney Ellis. "We need to make sure the scales of justice are balanced."

Ellis is offering numerous proposals in response to the exonerations, including increased payments to the wrongly convicted, and the creation of an Innocence Commission that would review the wrongful convictions for signs of systemic problems. Giles is to testify at a hearing on the proposals Tuesday in Austin.

Giles' conviction

Giles was found guilty in 1983 of participating in the gang rape of a pregnant woman. The victim picked him out of a photo lineup, though he was bigger and about a decade older than the teenage assailant she initially described to police. That identification was the only evidence linking him to the crime. The victim never saw him in person until the trial. He was the only black man in the courtroom besides a bailiff.

Examining old files, the Innocence Project found that police and prosecutors had learned that a younger, shorter man more closely matching the description — James "Quack" Giles — lived across the street from the victim. He was friends with a neighbor, Stanley Bryant, who confessed to police shortly after the 1982 rape that he had committed the crime with two teenage boys named Michael and James.

"That should have led police to the true James Giles, but it was buried," said Vanessa Potkin of the Innocence Project, Giles' current attorney. "Our client was a decade older, and he had prominent gold teeth. He had phone records and restaurant receipts showing where he was at the time of the crime, as well as the word of his mother and his wife. The evidence was screaming out, 'This is the wrong guy.' "

Police had received a tip that a James Giles had taken part in the rape and immediately focused on the older Giles, who lived across town and was on probation for the attempted murder of a co-worker.

In what Giles' new attorneys called a "remarkable chance encounter," Giles came face to face with the tipster in jail. The man, Marvin Moore, immediately realized his tip had led to the wrong man's conviction and has helped Giles' case.

Dallas prosecutors agreed to review the case in 1991, but did not seek to overturn the conviction, citing insufficient evidence. However, recent DNA tests determined that semen recovered from the rape victim came from Bryant and a man named Michael Brown, a friend of the younger James Giles. Brown was later convicted of another sexual assault and died in prison. The younger Giles went to prison on an unrelated charge and also died while incarcerated.

Last week, Dallas prosecutors revealed that the rape victim's ex-husband, who was present during the crime, recently picked the younger Giles out of a photo lineup. The victim now concedes she is not sure if the older Giles was the right man.

Prison friendships

In the Texas prison system during the 1980s, the three men who also claimed innocence individually befriended Giles, who had a typewriter and helped inmates draft papers seeking reconsideration of their cases. Some of the men would also come to know each other.

"We sat together, ate together and tried to clear our name together," James Waller recalled of his prison days with Giles. Waller was convicted of raping a 12-year-old boy. "When I went into the courtroom, I really thought I would be going home. I never would think I would go to jail for something I didn't do. But I did. That was Dallas County: get a conviction no matter how."

Waller, 50, was exonerated last month, more than 13 years after he finished his sentence. Genetic testing freed Kevin Byrd from prison in 1997 at age 36, after he had served 12 years. A.B. Butler was released in 2000 at age 45 after serving 17 years.

Waller will receive $250,000 for the 10 years he spent in prison. But he said nothing could make up for the humiliation he endured as a convicted sex offender, unable to find a decent job or apartment. Compounding his tragedy, Waller lost his pregnant wife in a 2001 car accident.

"When you are on the sex offender list, you get treated worse than dirt, because at least dirt washes away. Sex offender doesn't wash away," he said as he prepared for a Bible study lesson. "But thank God I made it through that. I became a better person, because it wasn't going to do me any good to be angry."

Giles, who makes a living preparing taxes in Lufkin, about three hours from Dallas, is also set to receive $250,000 once he is exonerated.

But he said no check could make up for his lost life. It won't help him attend the funerals of the aunts and uncles he lost while he was in prison. It won't let him go back and be there at the hospital for his son James Jr., now 28, who was diagnosed with sickle-cell anemia as a child and needed a father's love.

But at least it will prove that he's no rapist.

"The system does still work; it just takes too long," Giles said. "Why has this taken 25 years?"

miguel.bustillo@latimes.com

D.A. Won't Retry Man

This article appeared in the Los Angeles Times on April 7, 2007:

D.A. won't retry man held 22 years

'I just want to move forward,' says Timothy Atkins. A judge had thrown out his conviction in a Venice slaying.

By Joe Mozingo
Times Staff Writer

Upon learning that he was truly a free man, Timothy Atkins bore the stoic attitude that helped him survive the 22 years he spent in prison before a judge threw out his murder conviction this year.

Prosecutors said Friday they would not retry his case, and Atkins walked into the gray morning, expressing neither glee at his exoneration nor anger at the lost years.

"I just want to move forward, there's nothing to look back for," said Atkins, 39.

Atkins, who has maintained his innocence since he was convicted in 1987 of second-degree murder and two counts of robbery, said he was "going to go home, kick back and play some PlayStation."

Prosecutors insist he was guilty of taking part in a carjacking attempt on New Year's Day 1985, in which florist Vincente Gonzales was shot to death in Venice. But when Superior Court Judge Michael Tynan threw out the conviction in February after the key witness against Atkins said she lied, prosecutors didn't have enough evidence to go forward.

"We believe the right person was tried and convicted," said Deputy Dist. Atty. Scott Collins.

Atkins' attorney, Justin Brooks, called the allegation outrageous and said prosecutors' inability to admit what went wrong at Atkins' trial will ensure innocent people will continue to be put away.

"When a plane crashes, we do an investigation of why the plane crashed," he said. "We need to do that with the justice system…. It does no good for anyone if, after these cases, we just say, 'Oh, well, let's move on.' "

Atkins was a 17-year-old gang member in Venice when Gonzales was killed. He and his friend, Ricky Evans, were arrested after an acquaintance, Denise Powell, told police that Atkins bragged about the killing one night when the three were driving around looking for crack cocaine. Atkins, she told them, said he had "offed" the man.

Evans was killed in jail before he could go to trial. Atkins barely survived the same assault.

Powell could not be located for his trial, but her preliminary hearing testimony, in which Atkins' attorney barely cross-examined her, was read to the jury.

After his conviction, Atkins said he heard that Powell had approached his family and admitted that she lied about him and was sorry.

But he didn't have the money for a lawyer to pursue it and Powell — frequently homeless and in and out of jail — was hard to find.

In 2001, he sent a letter laying out his case to the California Innocence Project at California Western Law School in San Diego. The pro bono clinic took up his cause, but could not locate Powell until February 2005 — at a rehab clinic in El Monte.

Law student Wendy Koen got a video declaration and signed statement from Powell, and at a hearing Powell testified that she had lied under pressure from police.

The district attorney argued that the recantation was dubious and that corroborating evidence supported her original testimony.

On Feb. 9, Tynan ruled that Powell's turnabout was credible and fatally undermined the prosecution's case. He noted that the victim's wife, who was splattered by her husband's blood during the shooting, caught only a one-second glimpse of a suspect whom she described as 5 feet 4 — whereas Atkins is 6 feet tall. He found her subsequent identification of Atkins in a photo lineup "highly questionable, if not totally unreliable."

Tynan ordered Atkins released and gave the district attorney 60 days to decide whether to retry the case or drop the charges.

The district attorney gave no indication of his intention until Friday's deadline.

"Based on the state of the evidence in 2007 and the trial court's ruling on the habeas petition, we are no longer able to proceed on this matter," Collins said.

Tynan dismissed the case.

Atkins hugged his attorneys and told the judge he planned to take a job doing gang intervention in Venice; he said he dropped out of his gang in 1992. "Mr. Atkins, I wish you the best of luck," Tynan said.

Atkins didn't expect an apology, but he was firm about his innocence."The system was wrong. I did [more than two decades] for it."*

joe.mozingo@latimes.com

Dallas judge urges another DNA exoneration

This article appeared in the New York Times on April 9, 2007:

Judge Urges 13th Dallas DNA Exoneration

By The Associated Press
Filed at 2:18 p.m. ET

DALLAS (AP) -- James Curtis Giles spent 10 years in prison for a gang rape he has long said he did not commit. On Monday, more than a decade after his release, a prosecutor acknowledged Giles' arrest had been a case of mistaken identity, and a judge recommended he be exonerated.
If the appeals court formally approves State District Judge Robert Francis' recommendation as expected, Giles, now 53, will become the 13th Dallas County man to be exonerated since 2001 with the help of DNA evidence.

''I hope we continue to do the right thing in this situation,'' Giles told the judge Monday. ''Don't wait this long to make it right.''

About two dozen relatives packed into the courtroom and broke into applause after Giles spoke.
Giles, who left with courtroom with a smile, said he doesn't hold a grudge against the state. The judge complimented him on his positive attitude about his ordeal.

''This is not what I want to see as a judge,'' Francis said, ''but I'm glad we can rectify as much as we can.''

The Dallas County District Attorney's office and Giles' Innocence Project lawyer, Vanessa Potkin, both told the court they had evidence showing Giles was innocent of the 1982 gang rape of a Dallas woman.

It turned out to be a case of mistaken identity, said Assistant Dallas County District Attorney Lisa Smith.

A man who pleaded guilty to the gang rape, Stanley Bryant, implicated two other men in the crime: a James Giles and a Michael Brown. DNA evidence linked Brown and Bryant to the crime, Smith and Potkin said. Brown was never tried and died in prison after being convicted of another gang rape.

Police eventually arrested James Curtis Giles, who lived 25 miles away and did not match the description of the attacker given by the rape victim, Potkin said. Giles was about 10 years older and had gold teeth.

Investigators ignored another man with a similar name: James Earl Giles. That Giles lived across the street from the victim and had previously been arrested with Brown on other charges, the attorneys said. He died in prison in 2000 while serving time for robbery and assault.

The victim recently acknowledged some doubt as to whether James Curtis Giles was among the rapists. One witness also recently identified the other man, James Earl Giles, in a photo lineup, Smith said.

The DNA evidence that linked Brown to the crime was one factor that helped convince the district attorney's office to investigate James Curtis Giles' claim of innocence, especially because of Brown's ''overwhelming connection'' to the other James Giles, Potkin said.

Giles has had to register as a sex offender since his release. He is married and lives in Lufkin with his wife, working for an accounting business, Potkin said.

''It's been humiliating every day, knowing that a sex offender was the scum of the earth,'' Giles said after the hearing Monday.

Giles, who is black, would be the 13th Dallas County man since 2001 exonerated by DNA evidence, the most of any county in the nation. It would be the third exoneration since District Attorney Craig Watkins took office on Jan. 1 pledging to free anyone wrongfully convicted.

Watkins, the state's first black district attorney, took over an office with a history of racial discrimination, including a staff manual for prosecutors that described how to keep minorities off juries.

Giles is scheduled to appear Tuesday at the state Capitol in Austin with Barry Scheck, the co-director of the Innocence Project, a New York-based legal center that specializes in overturning wrongful convictions. They are scheduled to speak at Senate hearings regarding three reform bills designed to reduce wrongful convictions in Texas, said Eric Ferrero, a spokesman for the Innocence Project.

Texas leads the nation with 27 DNA exonerations, one more than Illinois, according to Innocence Project figures. There have been 198 exonerations nationwide.

Trial of suspected serial killer set to begin as innocent man is set free

This article appeared in the Los Angeles Times on April 3, 2007:

Trial of suspected serial killer set to begin

Chester Dewayne Turner has been charged with 11 murders dating to 1987.
DNA evidence links him to the crimes.

By John Spano
Times Staff Writer



Cliff Shepard gestured to where Andrea Tripplett's body was found among the weeds in a vacant lot at 7812 S. Figueroa St. It was 1992, and the epidemic of crack was raging.

Another woman, also a prostitute, was found nearby, murdered in a Porta-Potty, a green cord knotted around her neck.

Three other partially clad women were found near the intersection of Figueroa and 98th streets in 1992 — one in a motel, two more on the grounds of Charles W. Barrett Elementary School, Shepard recalled.

All told, more than a dozen victims were sexually assaulted and strangled along 30 blocks of Figueroa during an 11-year stretch beginning in 1987, said Shepard, the LAPD detective who eventually tied all the crimes to the same man.

Today, Chester Dewayne Turner, 39, goes on trial for 11 of the murders; if found guilty, he will join the annals of Los Angeles' most prolific serial killers, along with Freeway Killer William Bonin — convicted of 14 murders — and Night Stalker Richard Ramirez — 13.

Prosecutors say they plan to show jurors 10 DNA connections analysts made between Turner and the 10 dead women; the 11th victim was the murdered Regina Washington's 6 1/2 -month fetus. Police also say they have evidence that Turner beat or choked other women who survived in fights over sex.

His defense is expected to claim that Turner was a drug dealer whose customers were mainly prostitutes who often paid in trade, thus accounting for the DNA evidence.

Authorities have gone to extraordinary lengths to ensure that jurors won't hear something that might shake their faith in the scientific evidence — that a different man was convicted of three of the murders they now attribute to Turner.

David Allen Jones served 11 years in prison before Shepard used DNA tests to prove he was innocent. Jones has an IQ of 60 and speaks like a third-grader, according to his lawyer, yet he confessed after interrogation to being a serial killer who had cleverly evaded detection for years. Jones received $720,000 in compensation for his false conviction and long prison sentence.

Shepard is credited with freeing Jones and arresting Turner. He has interviewed Turner four times, and the defendant has consistently denied killing anyone.

Earlier this year, a judge rejected a defense request to present to the jury elements of the Jones case, ruling them irrelevant to the guilt or innocence of Turner.

Police said they have connected DNA in three slayings originally blamed on Jones to Turner, but he has not been charged with those killings.

Defense attorney John Tyre made it clear that he will not concede the physical evidence. He suggested that decade-old procedures in the LAPD's much-criticized crime lab leave room for error — a legal tactic that worked for O.J. Simpson, who was tried in the courtroom next door to Jones more than 10 years ago.

The standard kits used to collect crime-scene evidence contain 10 swabs for taking fluids. Tyre said only 20% of the swabs in the Turner prosecution were tested for DNA.

"When you only test 20% of the evidence and leave 80% of the evidence untested, you never know what you're missing," Tyre said. "Maybe other DNA was not in the system to match."

Had the LAPD lavished as much attention on Jones' case as it did on Simpson's, very little would have been gained. At the time, Turner's DNA was not in any database and therefore could not have been traced to the crime-scene samples.

Turner was serving an eight-year prison sentence in a rape case when genetic testing in 2003 tied him to the first of the 10 women. There are no witnesses to any of the killings. There is a grainy surveillance camera videotape that appears to show an actual murder, but the footage is so rough that Tyre said it's impossible to identify either the victim or the assailant.

"The real problem is the redundancy of the results," said Barry Scheck, head of the Innocence Project, a group that has cleared almost 200 people falsely convicted. "If you have a number of victims and they have the same profile, and that matches him," the case is more difficult to defend, he said.

Scheck cited the freeing of a Buffalo man Monday who had been imprisoned for 21 years for rapes he did not commit. A schizophrenic, the man was cleared by DNA analysis, which Scheck said has been a factor in proving the innocence of dozens of others.

Turner is unlikely to testify in his own defense. Tyre said he is being held in the Los Angeles County Jail with several convicted multiple killers.

In his investigation, Shepard quickly established that Turner lived for many years in a house within several blocks of Figueroa and 98th streets.

Shepard takes particular satisfaction in solving the case in the area where he served for six years as a patrol cop. On a quick tour Monday, he said the area hadn't changed much."We had more than a thousand murders in the city every year," Shepard recalled. "Our homicide units were overwhelmed. Before they could finish working one crime scene, they were called out on another homicide."

john.spano@latimes.com

Wrongly Convicted Man Freed From Jail

This article appeared in the New York Times on March 30, 2007:

Wrongly Convicted Man Freed From Jail

By THE ASSOCIATED PRESS
Filed at 4:36 a.m. ET

ST. LOUIS (AP) -- A man who spent 11 years in prison for a carjacking he didn't commit was freed Thursday after DNA analysis exonerated him.

Antonio Beaver, 41, arrived in court wearing an orange prison jumpsuit. Shortly afterward, he was wearing a sport coat and slacks, addressing reporters during his first moments of freedom.
''This feels strange,'' Beaver said. ''I'd like to give my thanks to God, because there is a God, and he knew I was innocent from the start.''

Beaver was convicted of robbery in 1997 and sentenced to 18 years in prison.
In the crime for which he was convicted, someone threatened a woman with a screwdriver and stole her car after a struggle. The woman stabbed the man with the screwdriver, leaving traces of the carjacker's blood in the car.

The victim identified Beaver in a lineup, but his lawyers say the lineup was flawed.
DNA testing at the time couldn't provide conclusive results, St. Louis Circuit Attorney Jennifer Joyce said.

In 2001 Beaver filed his own motion for a new DNA test, and he was later assisted by the Innocence Project, a legal center that seeks to uncover wrongful convictions.

Beaver said he plans to stay with an uncle.

Exonerated man sues Miami

This article appeared in the New York Times on March 21, 2007:

Man Exonerated of Rape Sues Miami

By THE ASSOCIATED PRESS
Filed at 9:57 p.m. ET

CORAL GABLES, Fla. (AP) -- A man who spent 26 years in prison for rapes he didn't commit sued Miami-Dade County and police Wednesday, accusing them of falsifying records and other illegal actions.

Luis Diaz Martinez, 69, was released in March 2005 after DNA evidence excluded him as the attacker in two rapes and cast doubt on his conviction in all five cases. Earlier, victims had recanted their testimony in two other convictions.

''They railroaded this man and took 26 years of his life. They took away from him any chance of having a family, any chance for a career, and any chance he had at happiness,'' said his attorney Marvin Kurzban. ''We are here to right that wrong.''

County officials did not immediately return messages Wednesday. Police spokesman Carlos Maura said the department had yet to see the lawsuit and could not comment.

Maura said he was not aware of any investigation to find the true rapist.

Diaz, who fled Cuba in 1966, was serving a life sentence when lawyers for the Innocence Project, a nonprofit organization that pushes for DNA exoneration, took his case.

A frail Diaz trembled as he spoke Wednesday of his years in prison.

''They took away my liberty, but always in my heart and in my mind, I always knew that I was innocent,'' he said.

The lawsuit, filed in the 11th Judicial Circuit Court in Miami-Dade County, accuses police officers of false arrest, fabricating evidence and pressuring witnesses to identify Diaz as their attacker, as well as causing him extreme and ongoing emotional. It calls for unspecified damages.

Diaz was convicted of assaults that occurred between 1977 and 1979 in the Bird Road area of Coral Gables, south of downtown Miami.

The convictions were based on identifications made by eight victims, though some of them initially described a much heavier and taller Hispanic attacker who spoke English. Diaz spoke little to no English.

Justice in Dallas

This article appeared in the Washington Post on March 5, 2007:

New Prosecutor Revisits Justice in Dallas
District Attorney Embraces Innocence Project and 'Smart on Crime' Approach

By Sylvia Moreno
Washington Post Staff Writer

DALLAS -- Craig Watkins is still settling into his 11th-floor office overlooking the city skyline, hanging up pictures, arranging his plaques -- and revolutionizing the criminal justice system he oversees.

Sworn in as Dallas County district attorney on Jan. 1 -- he is the first elected black district attorney in Texas -- Watkins fired or accepted the resignations of almost two dozen high-level white prosecutors and began hiring minorities and women.

DALLAS -- Craig Watkins is still settling into his 11th-floor office overlooking the city skyline, hanging up pictures, arranging his plaques -- and revolutionizing the criminal justice system he oversees.

And in an unprecedented act for any jurisdiction in the nation, he announced he would allow the Texas affiliate of the Innocence Project to review hundreds of Dallas County cases dating back to 1970 to decide whether DNA tests should be conducted to validate past convictions. At 12 in the past five years, Dallas has more post-conviction DNA exonerations than any county in the nation and more than at least two states. A 13th exoneration, of a Dallas County man, is expected to be announced within days.

By his own estimate, Watkins should not be occupying what he calls a "ten-gallon-hat, cowboy-boot-wearing, dip-chewin', lock-'em-up-and-throw-away-the-key" post in the ninth-largest city in the country.

He's black, he's a Democrat, he's young, he was a defense lawyer with an office in a southside neighborhood, and he has no prosecutorial experience -- unless he counts a year-long internship handling misdemeanors in the city prosecutor's office. His two previous applications to work as an assistant district attorney in Dallas County were rejected, in fact, by an office in which a prosecutor once produced a manual on how to exclude minorities from Texas juries.

In November, Watkins, 39, was elected as part of a Democratic sweep in Dallas in which the party took 42 judgeships and six other countywide offices. He is the first Democratic district attorney in 20 years. During the campaign he promised to be "smart on crime," not just tough on crime; to ask for the death penalty when appropriate but also to advocate for better rehabilitation programs and post-release support services for ex-convicts.

"You know what people call it? 'Hug-a-thug,' " said Watkins, imposing at 6 feet 5 yet soft-spoken, as he sat in his office after his latest "guest of honor" appearance, at a local high school's Black History Month assembly. "People say I'll coddle these criminals. But it's not about coddling criminals; it's about being smart."

That, he believes, means ensuring that the right people are behind bars.

Post-conviction DNA analysis in certain cases has been allowed in Texas since 2001. Since then, 354 people convicted in Dallas County -- most were in prison, but some were on parole or probation or were done with their sentences -- have asked for the DNA testing. The Dallas district attorney's office agreed to 19 requests; trial judges, who reviewed the district attorney's recommendations, ultimately granted the requests of 34 people.

That, said Watkins, tells him a "get a conviction at all costs" approach "utterly failed us."
"The question becomes: Do you stand in the way of justice or do you be the wind behind it to make sure that justice gets done?" Watkins said. "We're not being soft on crime. We're being sure we get the right person going to jail."

Most of the exonerations date to cases tried in the 1980s under Dallas's legendary law-and-order district attorney, Henry Wade. Attempts to reach Watkins's predecessor, Bill Hill, were unsuccessful.

This time, the screenings of cases to determine whether they are eligible for post-conviction DNA testing will be done by Texas Weslayan University School of Law students. They will work under Mike Ware, an adjunct law professor and board member of the Innocence Project of Texas, who believes that prosecutors and judges may have previously taken an overly stringent view of the Texas statute and denied testing that might have led to exoneration.

"I have to respect [Watkins's] willingness to certainly take his oath of office to heart and be dedicated to true justice, which is what his oath of office requires," Ware said.

Is it really justice for all?

This article appeared in the Patriot-News on February 20, 2007:

Is it really justice for all?
Gladden case, others show flaws of conforming evidence to crime

By Pete Shellem
The Patriot-News

The homecomings are always surreal.

In Patty Carbone's case, it was a reuniting with her father and brothers, and later with the 21-year-old daughter she hadn't seen outside prison in about a decade.

Steven Crawford's family rented a limo and took him out for a steak dinner before returning to the family members and well-wishers from whom he had been separated for almost three decades.

Barry Laughman was surrounded by the rural roughneck workers that made up his loved ones.
David Gladden was greeted by nieces and nephews he didn't know he had at his grandmother's Harrisburg home Friday night.

She served him the fried chicken he had been telling me about every time I tried to get him to talk about his case.

They were all joyful moments, but in each case I was struck by overwhelming sadness watching these bewildered souls being thrust back into a life from which they were torn when the justice system ran them over.

They were all at a disadvantage when it happened. Patty Carbone was described as trailer trash. Steven Crawford was a young black man in trouble with the law after the racial unrest of the late 1960s.

Like Laughman, Gladden appears to be mentally challenged. At the time of his 1995 trial, a psychologist said he was functioning at a third-grade level.

While authorities dispute whether he's really retarded, one of the first things Gladden wanted to talk about to me, his attorney Royce L. Morris, and his grandmother when we picked him up from the State Correctional Institution at Mahanoy was the fact that the Cartoon Network had started showing reruns of the old Hanna-Barbara cartoon "Lippy the Lion and Hardy Har Har."
And when I first started writing about Gladden more than a year ago, Steven Crawford -- who was also housed at Mahanoy -- told me Gladden once showed up in the showers wearing a raincoat and boots.

I did write down one thing Gladden said on our three-hour trip from prison Friday:
"The truth of the matter is I still don't know what's going on."

But then again, perhaps he wasn't the only one during this long and sorry case of injustice.
The arson investigators who probed M. Geneva Long's murder initially blamed faulty wiring for the blaze that was set to cover up her death.

Never mind the piles of magazines and papers on top of her body.

It was clear from their reports that they initially suspected Andrew Dillon, staying in a room next door, who would later admit to killing four other elderly women in a similar manner.

Yet, they were led away from those suspicions by a convicted sex offender named Donald "Goofball" Walborn, who met Gladden in prison. At the time, Walborn was facing charges for raping a 12-year-old girl.

In his initial statement, Walborn described Gladden as a Superfly kind of guy, flashing jewelry and money after Long's murder, although it was clear that Long had nothing of value to steal and Gladden couldn't even raise the $100 he needed to get out of jail on a marijuana possession charge.

While on bail for a rape charge, Walborn proceeded to rape another 12-year-old. Within days of being let out of prison last year, he was arrested on charges that he molested a 19-year-old retarded man. Those charges were thrown out, but when the stories came out, Walborn would later accuse me of molesting him. This was the "reliable confidential informant" police used -- a man who referred to himself as "the eyes and ears of the Harrisburg Police Department."

Walborn also implicated a small-time burglar named James A. Carson Jr., who eventually confessed and said he was burglarizing Long's apartment with Gladden and saw Gladden choking her as he ran away.

Police proceeded with this theory even though Carson identified the wrong location, put himself with Gladden when Gladden was in jail, and couldn't even say whether Long was white or black in his initial statements.

Since he was the only witness, I immediately sought out Carson when I began investigating the case. He recanted right away and said he had been coerced into the confession.

I covered Gladden's 1995 trial and was surprised at the verdict, since Carson was the only witness against him. Afterward, I was at a bar with Gladden's attorney, Allen C. Welch, who was railing about the outcome -- first-degree murder and a life sentence. His trial folder was on the bar and I started to page through it. On the first page, Welch had written, "Can I blame Andrew Dillon?"

When I asked what Dillon -- who at the time had been charged in one murder and was the prime suspect in three others -- had to do with it, Welch told me Dillon lived nearby. He said then-District Attorney John F. Cherry had told him authorities had cleared Dillon.

When I later asked Cherry about it, he said they cleared Dillon with polygraphs.

It wasn't until years later when I looked at the case again that I found Dillon had refused a polygraph and Carson had flunked.

So why didn't authorities turn back?

Thomas Carter, the city detective who solved the Dillon case, was telling everyone who would listen that they had the wrong man in Long's murder.

Carter wouldn't talk to me about the case, but he told a Susquehanna High School forensics class I spoke to last year that my stories were on the mark.

When Dauphin County District Attorney Edward M. Marsico Jr. and his first assistant, Fran Chardo, first retrieved the Gladden file, they knew there were major problems.

The file, which they opened to me, had crime-scene photos from Dillon's other murders in it, along with a fax about Dillon's arrest from Carter to Cherry. They were also troubled that a murder trial transcript was only about an inch-and-a-half thick. To their credit, they immediately began conducting an exhaustive review, but there was little with which to work.

The only solid piece of evidence The Patriot-News' series turned up was a witness who said Dillon asked him for an alibi on the night of the slaying. Joseph Baumgartner's statement was corroborated by one Dillon gave police after the murder, in which he said he was with a heavyset white cabdriver named Joe at the time of Long's murder.

Last Thursday, Marsico and Chardo told me to expect some news. But then they hooked Baumgartner up to the lie detector and he failed. He admitted to Morris that he may have embellished the story, but stuck to his guns about Dillon asking for an alibi.

Marsico took the file home with him Thursday night, reviewed it again, and finally decided to pull the plug, saying Long's murder was a signature of Andrew Dillon. Marsico said any reasonable jury would have acquitted Gladden had they known about Dillon.

"The re-investigation has established to our satisfaction that Andrew Dillon was the principal actor in the murder of Margaret Geneva Long," Marsico and Chardo wrote in the petition that freed Gladden.

State Sen. Stewart Greenleaf has formed an innocence commission to review the 10 cases where DNA proved people were doing time for crimes they didn't commit.

Of the four cases I've investigated and written about in the past decade, only Barry Laughman's will be among those 10 because there was fresh DNA evidence.

But there has been a common theme in all of the cases -- investigators trying to conform the evidence to their theories rather than the other way around.

As one state police investigator has always told me, "you can't prove innocence."

Hopefully, the justice system will come up with better ways to assure guilt before it unjustly swallows another large chunk of someone's life.

Pete Williams Officially Exonerated

This article appeared on the website of the Georgia Innocence Project on February 13, 2007:

PETE WILLIAMS OFFICIALLY EXONERATED

Atlanta -Wishing Pete Williams "the best" for the rest of his life, Judge Thomas Campbell officially exonerated Willie O. "Pete" Williams in a hearing today in Fulton County Superior Court.

The judge granted an Extraordinary Motion for a New Trial filed on Williams' behalf by the Georgia Innocence Project. Representatives from the Fulton District Attorney's office then told the judge they did not intend to prosecute Mr. Williams further.

DNA tests earlier this year proved Williams' innocence of the 1985 rape and kidnapping for which he served nearly 22 years in prison.

Standing by Williams at the brief hearing were his attorneys, GIP Executive Director Aimee Maxwell, volunteer attorney Sandra Michaels, and GIP intern Cliff Williams, who located the DNA evidence that proved Williams' innocence.

Also in the courtroom were Williams' family and dozens of supporters including former GIP intern Ashley Tyson-Mackin, who first identified Williams' case as a strong one, and three previous Georgia exonerees, Robert Clark, Clarence Harrison, and Calvin Johnson, Jr.

Attorney Michael Schumacher, who served as Williams' defense attorney during his trial, was among the first to hug Williams in congratulations at the hearing's conclusion. Schumacher had argued vigorously during the appeals process that another man was responsible for the crime, but those arguments fell on deaf ears. Just days ago, Atlanta police arrested the man that Schumacher contended two decades ago was the real perpetrator. That man had pleaded guilty to three other attacks, and DNA testing by the Georgia Bureau of Investigation found that the DNA in one of those attacks matched the DNA in the case for which Pete Williams was wrongly convicted.

Said Maxwell, "Today is the official end of a decades-long nightmare for Pete Williams. It is now up to us at GIP -- and the entire state -- to help Mr. Williams rebuild his life."

The Atlanta law firm of McKenna, Long & Aldridge is already assisting in that effort. Today, McKenna Long's partner David Balser presented Mr. Williams with several thousand dollars' worth of gift cards, the result of donations from the firm's employees.

Pete Williams becomes the sixth DNA exoneree in Georgia and the 195th in the nation.
To help support GIP, a 501(c)(3) nonprofit corporation which relies on individual donations, grants, and special events for its funding, please visit our Donations page.

For the latest media coverage on the Pete Williams story, please visit our Articles page.
Four of the six Georgia DNA exonerees join together for Pete Williams' exoneration hearing: Calvin Johnson, Jr., Robert Clark, Williams, and Clarence Harrison.

The Dying Death Penalty?

This article appeared in the Washington Post on February 11, 2007:

The Dying Death Penalty?

By Dahlia Lithwick
Page B02

In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.

The trend is clear. According to the Death Penalty Information Center, which compiles statistics on capital punishment, two states have imposed formal moratoriums on the death penalty; executions in New York are on hold after the state's death penalty law was declared unconstitutional in 2004; 11 states (including, most recently, Florida and Tennessee) have effectively barred the practice because of concerns over lethal injection; and 11 more are considering moratoriums or repeals.

The raw numbers of executions and death sentences in the United States have plummeted: Information Center statistics show that in 1999 we executed 98 people, and in 2006 that number dropped to a 10-year low of 53. Whereas America steadily condemned about 300 prisoners a year to death through the 1990s, that number has declined by more than half and reached a low of 114 in 2006. Public support also seems to be faltering. A Gallup poll last year showed that two-thirds of the country still supports capital punishment for murderers, but when given the choice between the death penalty and a life sentence without parole, more people preferred the life prison term (48 percent) to capital punishment (47 percent) for the first time in 20 years.

The new uncertainty over capital punishment ranges from queasiness over the methods of execution to concern that we are executing innocents. Lethal injection, the preferred method of execution in 39 of the 40 states that permit capital punishment, is particularly fraught with problems.

In December, then-Gov. Jeb Bush of Florida ended executions following one in which it took the prisoner 34 minutes to die and he suffered chemical burns in the process. Recent scholarship, including a British medical journal report, indicates that the lethal-injection cocktail used may simply mask agonizing pain before death. And state courts are also increasingly bothered about the proper role of physicians -- often mandated by law to supervise the lethal-injection process over objections by medical associations and ethics boards.

There are numerous other reasons for our growing doubts about the death penalty. In a 2005 speech, Justice John Paul Stevens pointed to several, including DNA evidence that has shown that "a substantial number of death sentences have been imposed erroneously," the fact that elected judges face disproportionate pressure to impose capital punishment, and the problem of "death-qualified" jurors (those who oppose capital punishment are barred from sitting on capital cases). For these and other reasons, many Americans have begun to worry that the death penalty in this country is not reserved for the "worst of the worst," but for the poorest of the poor and those whose trial attorneys later prove to have been asleepest at the switch.

The Innocence Project, a nonprofit legal clinic associated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York, says there have been 194 post-conviction DNA exonerations. A wrongful-executions study by Hugo Bedau and Michael Radelet of contends that from 1900 to 1991, 416 clearly innocent people were sentenced to die. And studies about the racism that taints the entire system are unequivocal.In recent years the Supreme Court has also shown concern about the death penalty.

In an article published last year, Duke University professor Erwin Chemerinsky observed that in the final years of the William H. Rehnquist Court, the justices showed a marked tendency to overturn death sentences. Chemerinsky speculated that "a majority of the Court was (and continues to be) deeply concerned about how the death penalty is administered in the United States" and that, as a result of the revelations by various investigators, "the reality of innocent people facing execution has had a profound effect on the Justices."

So in the early years of the new century, the court handed down surprising decisions outlawing executions of the mentally retarded and of those who were juveniles at the time of their crimes, and refining the tests for the ineffectiveness of counsel. Several justices also voiced concerns off the bench: Stevens, Ruth Bader Ginsburg and Sandra Day O'Connor each spoke publicly and passionately about flaws in the capital system.

But, largely as a result of a change in the court's composition, that trend may now be ending. Just as a few states are defiantly expanding their use of the death penalty. And there is some reason to fear that some justices don't share the burgeoning sense that the machinery of death in this country is broken. One is the new chief justice, John G. Roberts Jr., who, when he worked in the Reagan White House, wrote a memo suggesting that the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases."

One case last term involved a man convicted of a rape and murder, who later produced DNA evidence raising serious doubt that he was the culprit. The court ruled 5 to 3 that this new evidence warranted a new hearing. But Roberts led the dissenters, who felt it wasn't enough for the new evidence to cast doubt on the defendant's conviction; to grant relief, the evidence had to prove he "was actually innocent."

In another death-penalty case from 2005, then-Justice O'Connor agreed with the court's liberals that trial counsel was ineffective. That decision reversed an opinion by Samuel A. Alito Jr., then a judge on the U.S. Court of Appeals for the 3rd Circuit, that would have denied relief. The signals are still mixed. In a different case, the entire court allowed death-row inmates to pursue a civil claim against lethal injection.

But also last term, Justice Antonin Scalia wrote a separate opinion in a death-penalty case for the sole purpose of excoriating Justice David H. Souter, who had written in a dissent about exonerated innocents. Scalia's opinion was a full-bore attack on the notion of innocent exonerees "paraded by various professors" and claimed, in effect, that even if those exonerated were not guilty enough to warrant the death penalty, they were still far from "innocent." (How that made them candidates for the death penalty he did not explain.)

Oral argument this term has also revealed a subtle hardening on the part of some of the court's conservatives. In one case, Roberts questioned the need for a trial judge to specifically guide jurors regarding mitigating evidence.

Somehow, just as the American people are beginning to consider the grave injustices pervading the capital system, several justices seem to be staking out strong personal positions on this front in the culture wars.

In his article, Chemerinsky suggests that justices who change course on the death penalty often do so only after decades on the bench. That might suggest that the two new justices will only soften on capital punishment in the far distant future. These justices also would insist that if the death penalty in this country needs fixing, the state legislatures should do it, a process that's already beginning to happen. But if for most Americans the time for stubborn certainty about the death penalty, at least as it's currently practiced, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.

dahlia.lithwick@hotmail.com
Dahlia Lithwick covers legal affairs for Slate,
the online magazine at www.slate.com.

Confession of a false witness frees California man

This article appeared in the Los Angeles Times on February 10, 2007:

Taking deep breath of freedom
After 20 years in prison for a killing that a key witness now says he didn't commit, Timothy Atkins wants only some fresh air.

By Ashraf Khalil, Times Staff Writer

A lifelong heavy drug user, frequently homeless or in jail, Denise Powell was a hard person to track down.

Researchers for the California Innocence Project spent months searching for Powell — who was only in intermittent contact with her own family. Their goal was to finally document on the record what Powell had been openly admitting for years: Her testimony implicating Timothy Atkins for murder was false.

When researcher Wendy Koen finally found Powell in early 2005, in rehab after a recent arrest, she confessed without hesitation."She was ready to talk. She'd been wanting to talk for years," Koen said. "She said, 'I was young and stupid. I didn't know it would come to this. I lied.' "

Thus began the final step in Atkins' 20-year campaign to prove his innocence. On Friday morning, Atkins, now 39, walked out of Los Angeles County Jail and into the arms of his family, free for the first time since his teens.

"It's over. I made it," he said, as weeping, whooping relatives lined up to embrace him. "I don't think the realization hit me until late last night."

In light of Powell's recanted testimony, Los Angeles County Superior Court Judge Michael A. Tynan overturned Atkins' conviction Thursday and ordered his immediate release. Tynan was the trial judge in 1987 when Atkins was convicted of second-degree murder and two counts of robbery and sentenced to 32 years in prison.

In his ruling freeing Atkins, Tynan recalled that Powell's testimony was "the key to the conviction in this case…. The state has no interest in upholding a conviction obtained by false testimony."

On Friday, Atkins still looked a little shellshocked as he was swarmed by dozens of ecstatic family members and the beaming legal team from the California Innocence Project, part of the California Western School of Law in San Diego.

"This is the pinnacle of our existence," said project director Justin Brooks. "This is the whole goal: freeing the innocent."

Back at his cousin Tanya Franklin's house in South Los Angeles, Atkins dispensed hugs and fielded congratulatory phone calls. After decades of incarceration, he spent most of his time outside on the front lawn.

Franklin asked, "You want to come inside?"

"No," he answered, "I want air."

Atkins' conviction stemmed from a New Year's Day 1985 carjacking attempt in which flower shop owner Vincente Gonzales was killed.

Powell, an acquaintance of Atkins at the time, told police that Atkins and another man, Ricky Evans, had bragged about killing Gonzales. Both men were arrested. Evans was beaten to death in jail before the case could come to trial; Atkins was seriously injured in the same jailhouse fight.

"I'm thinking about Ricky a lot today," said Atkins, who has remained in contact with Evans' mother.

If Evans had lived, "He would have been exonerated as well," Koen said. "It was the same evidence against him."

Police were unable to find Powell to testify at Atkins' trial. Instead, her testimony at a preliminary hearing was read aloud in court.

In his ruling releasing Atkins, Tynan wrote that Powell's absence from the trial was crucial. If she had appeared, subject to cross-examination from the defense, "her demeanor and other indicia of truthfulness and veracity, or their absence, would have been observed by the jury," Tynan wrote. "In all reasonable probability the result would have been more favorable" for Atkins.

Other evidence, such as a vague description of the suspects from the victim's widow, were deemed equally shaky in hindsight by Tynan.

The judge also leveled pointed criticism at police for their "casual attitude toward maintaining contact with Powell." The failure to find and produce her for the trial "appears to be an error of constitutional magnitude," Tynan wrote.

Despite losing half his life to the prison sentence, Atkins said he bore no ill will toward Powell or anyone else.

"The past is the past," he said. "If I see her, I'll speak to her and if I can help her, I will."Atkins and several family members expressed sympathy for Powell, who has a long history of drug addiction and legal problems and has said she was remorseful over her role in Atkins' jailing.

Powell told researchers she was pressured by police to name a suspect in Gonzales' slaying.

"They got her into the station and told her, 'You're not going to leave until you tell us something,' " said Brooks, who listened to a recording of Powell's initial interrogation.

"She had a whole lot of guilt over what she had done to Tim's life," said Koen, who videotaped Powell's statement for the Innocence Project and tracked her down a second time to sign an official court declaration of her changed testimony.

"The guilt has really destroyed her life in a lot of ways."Atkins, who said he plans to work counseling at-risk youth, was remarkably philosophical Friday about his ordeal. He admits to a misspent youth before his arrest and views his incarceration as the only reason he's going to live into his 40s.

"I was a gang member. I was a thief and I had a drug habit," he said. "The life that I was living before, I probably would have ended up dead."

The Los Angeles County district attorney has 60 days to refile charges against Atkins. But Brooks does not expect prosecutors to do so.

"They have no case. They had no case 20 years ago," he said.

Brooks plans to file for state compensation, which offers $100 for each day in prison for those found to be wrongfully convicted. For Atkins, that could mean close to $800,000.

There's also the possibility of a civil suit against the police for wrongful imprisonment, "but that would be a tougher nut," Brooks said.

"First we'll go for the compensation and get him some money to get on his feet."

For now, Atkins is celebrating, adjusting to life as a free man and enjoying some home cooking.

"I'm whole now. I got my baby back," said Atkins' mother, Joyce Boney. "I'm going to the store. My boy wants to eat."

ashraf.khalil@latimes.com

Repaying a debt to the innocent

This article appeared in the Seattle Times on February 12, 2007:

Repaying a debt to the innocent

By Rachel La Corte
The Associated Press

OLYMPIA — Every day for more than five months, Jeff Schmieder walked hundreds of laps around the courtyard at the Regional Justice Center in Kent, where he was serving time for a first-degree rape he did not commit.

"Walking was the only thing I had left. It just gave me a lot of time to think to myself and get my head straight," said Schmieder, who was convicted in 1998 and faced more than 11 years in prison. "Everyone in there says they're not guilty, of course. But when you're really not, it does things to your mind that you can't even imagine."

Schmieder, 49, and another man, Mark Clark, were freed in 1999 after new evidence showed the alleged victim was in jail herself at the time she said she was attacked.

Under a measure lawmakers are considering this year, the state would compensate people such as Schmieder for the years they lost behind bars. If the bill is passed, Washington would join 21 other states, the District of Columbia and the federal government with similar laws on the books.

"When you're imprisoned you lose everything," said state Rep. Joe McDermott, D-Seattle and sponsor of the bill. "We should have procedures in place to make someone who's been wrongfully convicted whole, in some small part."

McDermott's measure — which mirrors federal levels — would require the state to award a wrongly convicted person no less than $50,000 for each year of imprisonment, including time spent awaiting trial. An additional $50,000 would be awarded for each year on death row.

Someone who was released from prison after a wrongful conviction would have to file a claim for damages against the state in Superior Court. Claimants would have to show their convictions were reversed or vacated, and that they did not commit the crime they were charged with.

Once a judge or jury determined the claims were valid, damages could be awarded.

Supporters of compensation laws say the measure is the fair thing to do.

"To the extent that the government has to compensate you if it takes your property, it seems only fair that the government also compensates you when it's taken years of your life and your liberty," said Stephen Saloom, policy director at The Innocence Project, a New York-based legal center that seeks to uncover wrongful convictions.

McDermott said he was made aware of the challenges faced by those who have been wrongly convicted when he saw a documentary called "After Innocence," which followed the lives of people adjusting after being exonerated by DNA evidence.

He showed lawmakers and staff members the movie last year at the Capitol and filed a similar bill last year, but it never received a hearing.

Rep. Pat Lantz, chairwoman of the House Judiciary Committee, said she would give the bill a hearing sometime this month.

"I'm very, very much interested in the concept," said Lantz, D-Gig Harbor. "If you stop and consider it for one moment, finding someone innocent requires more than an 'I'm sorry, here's a new pair of shoes for you, goodbye.' It's a major failure of the justice system."

Sen. Mike Carrell, a Lakewood Republican who sits on the Senate Human Services & Corrections and Judiciary committees, said he agrees with the idea of compensating those who are wrongly incarcerated but said he thinks there's a better way to do it.

"When we wrong somebody, I think that we have to do what we can to make it as right as we possibly can," he said. But he expressed concern about the $50,000 "being one-size fits all" that a judge or jury can raise but not lower.

"What is the appropriate amount?" he asked. "There is no discretion here."

Eric Ferrero, spokesman for The Innocence Project, said that to date, 194 people nationwide have been exonerated with DNA testing. Of those, about 85 have been compensated in some way, though most were through civil lawsuits, not state compensation laws.

Just last month, a decorated Vietnam veteran who spent about 20 years in prison for a rape he did not commit received a full pardon from Texas Gov. Rick Perry. Larry Fuller is one of 12 Dallas County men exonerated by DNA evidence since 2001, and one of 24 in Texas since 1989.
Also last month, a man convicted of rape in Georgia and a man who was unjustly convicted of murder in New York but helped find the real killer from his prison cell were granted their freedom after DNA tests proved their innocence.

Since the nation's first DNA exoneration in 1989, 26 defendants have been cleared in Illinois, 24 in Texas, 21 in New York, nine in California and six in Florida, Ferrero said.

Ferrero said his organization is working with lawmakers in Texas, Florida and Connecticut on compensation bills this year.

A study by professor Sam Gross at the University of Michigan published last year found 340 exonerations, not all DNA-related, in the country between 1989 and 2003. Of those, four were in Washington state, including Schmieder's case.

In talking about his case, Schmieder cried when listing what he and his family endured during his imprisonment: His parents put up their home for his bail so that he didn't have to wait in jail before he was convicted; his teen daughter dropped out of high school because of the taunts at school; his infant granddaughter died and he wasn't able to help plan the funeral.

"Nobody knows what you go through, when all of a sudden everything in your life is gone," he said.

Schmieder doesn't work as a result of an injury he suffered before he went to jail. He's a single dad raising his 10-year-old son in Enumclaw, and he said he's barely getting by.

If McDermott's bill passes, people who are wrongfully convicted would have three years to file a claim. But the measure would be retroactive, so Schmieder would have five years from the time the law took effect to apply for compensation.

He said if the bill passes, it would help him pay the rent and he could buy his son new clothes.
"It's been beyond difficult," he said, crying. "You don't know what it means to have a little bit of hope all of a sudden."

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