California Voters Get a New Reason to Abolish the Death Penalty

MoPo’s latest, published this week in the New Republic.

With 726 inmates sentenced to die, California has the largest death row in America. The state has executed just thirteen death row inmates since capital punishment was reinstated in 1977, and none since 2006. The path from conviction to lethal injection for those who were executed has taken as long as twenty-five years.

In May, the National Registry released a report describing the first 873 exonerations it identified – including seventy-nine state exonerations and one federal exoneration in California. The Report emphasized that the 873 were only a beginning—that the true number of exonerations still is unknown because there is no formal system for recording such cases as they occur.

Since then, the number of exonerations on the National Registry has grown to 996 and will soon top 1,000, according to Samuel Gross, Law Professor at the University of Michigan and editor of the Registry.

CLICK HERE TO READ THE ARTICLE IN ITS ENTIRETY.

MoPo Talks Chicago Power, Politics on WBEZ’s “Afternoon Shift” with Rick Kogan

Why Are the Innocent Convicted?

The National Registry of Exonerations Is Up

A few of the 891 exonerees included in the new Registry.

After several years of painstaking work, the National Registry of Exonerations is a reality.

A joint project of the University of Michigan Law School and Northwestern University Law School’s Center on Wrongful Convictions, the Registry is the largest collection of exonerations in the United States with nearly 900 individual cases since 1989, the year of the first DNA exoneration in America.

The Registry issued a report analyzing these cases as well as the exonerations of more than 1,100 defendants following convictions stemming from 13 separate police corruption scandals (such as the drug task force scandal in Tulia, Texas, and the Rampart scandal in Los Angeles).

The Registry is the brainchild of Michigan Law professor Samuel Gross and Rob Warden, executive director of the Center on Wrongful Convictions.

In December 2011, I began to work on the Registry, researching and writing cases.

The total number of defendants exonerated during the 23-year period totals roughly 2,000 — an average of about one a week.

The cases in the Registry offer important insights into the false conviction phenomenon — insights that hopefully will foster criminal justice reforms designed to improve the accuracy and fairness of the criminal justice system.

To contact the Registry, click HERE.

And here’s some what USA Today has to say about the Registry Sunday evening (even if they jumped the embargo a little):

Perjury, faulty eyewitness identification and prosecutorial misconduct are the leading reasons for wrongful convictions, according to the first national registry of exonerations compiled by university researchers.

The database, assembled in a collaboration by the University of Michigan and Northwestern University, has identified 873 faulty convictions in the past 23 years that have been recognized by prosecutors, judges or governors.

The registry’s founders say the numbers, which do not include many cases in which innocent suspects plead guilty to avoid the risk of more serious punishments or cases that have been dismissed because of legal error without new evidence of innocence, represent only a fraction of the problem in the nation’s criminal justice system.

“What this shows is that the criminal justice system makes mistakes, and they are more common than people think,” said University of Michigan law professor Samuel Gross, the registry’s editor. “It is not the rule, but we won’t learn to get better unless we pay attention to these cases.”

Despite the data, the registry concluded that the “overwhelming majority of convicted defendants are guilty.”

“Most never dispute their guilt and few ever present substantial post-conviction evidence of innocence,” the registry found. “When that does happen, however, it should be taken seriously. …We cannot prevent all false convictions, but we must not compound these tragedies by stubbornness or arrogance or, worst of all, indifference.”

Read USAToday’s complete coverage HERE.

‘Yes, America, We Have Executed an Innocent Man’

Andrew Cohen, legal analyst for CBS Radio News and 60 Minutes and contributing editor at The Atlantic, writes a compelling article dissecting the book-length investigation of the arrest, conviction and execution of Carlos DeLuna for a murder in 1983.

Titled “Yes, American, We Have Executed an Innocent Man,” Cohen notes that Steve Mills and I conducted our own investigation of the DeLuna case and wrote a three-part series published in 2006.

Supreme Court Associate Justice Antonin Scalia (Photo credit: Wikipedia)

In particular, Cohen delivers a scathing criticism of Supreme Court Justice Antonin Scalia, who ridiculed the proposition that an innocent defendant had been executed in America in an opinion on June 26, 2006, saying in part:

“If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

The following day, the final installment of our series on the wrongful conviction of DeLuna was published in the Chicago Tribune.

Read Cohen’s Atlantic piece in its entirety HERE.
In 2005, James Liebman, a professor at Columbia Law School in New York, approached me and fellow Chicago Tribune reporter Steve Mills and asked if we would be interested in investigating a possible wrongful execution in Texas – -the case of Carlos DeLuna. Several months earlier, Steve and I had investigated and written an article that exposed how Cameron Todd Willingham had been executed in Texas for an arson fire that killed his three children.

Our investigation provided compelling evidence that the fire was not an arson and that Willingham was innocent. Liebman explained that his students and a private investigator had done preliminary work on the DeLuna case and had turned up some evidence that DeLuna was innocent. Liebman offered to turn over the results of their work and the documents they had collected. There were no strings.

Liebman put it simply: Take the case wherever you feel it needs to go. Pull no punches. Give it your best shot.

The result was a three part series, published in 2006, which not only provided strong evidence that DeLuna was innocent, but also identified the true killer.

Six years later, Liebman and company have published Los Tocayos Carlos —  a book-length account of the DeLuna case, published in the Columbia Human Rights Review — complete with a robust, dynamic website crammed with video interviews, photographs, transcripts, and exhibits documenting the wrongful execution.

Read the Columbia account in its entirety HERE.

Carlos DeLuna Case Makes the News Again

From “Death, Despair and Destruction: A Few Long Reads” by Sam Wooley/The Chicago Reader, May 16, 2012

On Monday night, the Columbia University Human Rights Review released its spring issue, which is dedicated entirely to a single legal case: the 1989 execution of Carlos DeLuna, which the Review claims was in error, for murdering a woman during a robbery in Corpus Christi in 1983. The entire report is online at thewrongcarlos.net. On the Atlantic website, Andrew Cohen provides a passionate distillation, beginning and ending with a mention of Supreme Court justice Antonin Scalia, who’s claimed that the history of capital punishment has been error-free. “If [a wrongful execution] had occurred in recent years, we would not have to hunt for it,” Scalia wrote in 2006. “[T]he innocent’s name would be shouted from the rooftops by the abolition lobby.”

No physical evidence and only one “sketchy” eyewitness tied DeLuna to the crime, Cohen notes, and it was “common knowledge” around Corpus Christi that another man, Carlos Hernandez, had committed the crime—it’s said that he “couldn’t stop bragging” about it. The Chicago Tribune has already investigated the DeLuna case. In 2006 reporters Steve Mills and Maurice Possley wrote that they “identified five people who say Hernandez told them that he stabbed Lopez and that De Luna, whom he called his ‘stupid tocayo,’ or namesake, went to Death Row in his place.”

Continue reading HERE

Honda Wins Reversal of Small-Claims Loss Over Hybrid Mileage

From Bloomberg/BusinessWeek, May 09, 2012
By Edvard Pettersson and Maurice Possley

The Honda Civic Hybrid

Honda Motor Co. (7267) won the reversal of a $9,867 small-claims-court loss to a Californian who dropped out of a class-action lawsuit and pursued her own claim that the company overstated the fuel mileage of its Civic Hybrid.

California state Judge Dudley W. Gray II in Torrance, in Los Angeles County, said in a ruling today that Tokyo-based Honda’s fuel-economy ratings were in compliance with U.S. Environmental Protection Agency requirements and that the ratings are for comparison among vehicles without taking into account factors that can affect mileage at a given moment.

“Defendant’s use of advertising slogans such as ‘sipping fuel,’ ‘amazingly little fuel’ and ‘saves plenty of money on fuel’ — the court rules that these are non-actionable sales puffery,” the judge said. “They are not specific promises of anything.”

Continue reading HERE

Victims of the Prosecution

The following piece ran today on Salon.com (and earlier this week on The Crime Report)

By Maurice Possley/The Crime Report

A coalition of innocence projects, legal experts and wrongly convicted defendants announced on Thursday that a study of prosecutorial misconduct in Arizona from 2004 through 2008 found that prosecutors committed error in 20 cases.

The coalition — which includes the Innocence Project of New York, along with Veritas Initiative, a policy and research arm of the Northern California Innocence Project, as well as Innocence Project New Orleans and Voices of Innocence — convened in Arizona on Thursday night in the latest stop in a national tour aimed at exposing prosecutorial misconduct and initiating reform.

In 15 of the cases, the finding of error was deemed “harmless” and the convictions were upheld. In five of the cases, the errors were ruled to be “harmful” and the convictions were reversed.

During that same time period, three prosecutors were publicly disciplined by the State Bar of Arizona, but none of the prosecutors in the 20 cases found by Veritas were subject to any discipline.

One of those three prosecutors  disciplined was Kenneth Peasley — once considered the most feared prosecutor in Pima County, Ariz., where he won  conviction after conviction, some of which sent defendants to death row.

Peasley was disbarred in 2004 for knowingly allowing a detective to testify falsely in two capital murder trials — improper behavior that led to the release of a man from death row.

Eight years later, Peasley’s legacy as an unethical prosecutor continues to grow, even though he died in 2011.

Continue reading on Salon.com HERE

The Latest News and Views from MoPo

SOJOURNERS/GOD’S POLITICS BLOG, Oct. 9, 2011

Deadlines and the Death Penalty: The Case of Corey R. Maples

by Maurice Possley 10-09-2011 10:13 am

The ink was barely dry on the death certificate for Troy Davis, executed by the state of Georgia on Sept. 21, when the U.S. Supreme Court heard arguments in an Alabama death penalty case that, if not for its serious nature, feels like a trip through Alice’s looking glass.

The question before the court is this: Should the state of Alabama execute a man who lost an opportunity to file an appeal in his case because a deadline was missed — because of a foul up in a law firm’s mail room?

At issue is the case of Corey R. Maples, convicted of murdering two men in 1995 and sentenced to death, even though his trial lawyers have since conceded they were “stumbling around in the dark.” Unlike the Davis case, where substantial doubt about his guilt had been raised before he was executed, there doesn’t appear to be much question that Mr. Maples committed a double murder. The issue is whether he received ineffective assistance of counsel in the penalty phase of the case and whether, had he had competent counsel, he would have been sentenced to a prison term instead of death.

On appeal, Mr. Maples was represented by the New York law firm of Sullivan & Cromwell. Alabama is the only state that does not provide lawyers on appeal in death cases. Two associates in the firm handled Mr. Maples’ post-conviction appeal and when it was denied, a copy of the ruling was sent to the New York office of the law firm. By then, both associates had left the firm, so the mail room stamped the denial of the appeal “return to sender” and “left firm.”

The local Alabama lawyer who was on the case only, he has said, so that the New York lawyers could be permitted to practice in Alabana, received a copy, but did nothing because he assumed that Sullivan & Cromwell was on top of the situtation.

Wrong.

By the time someone figured out what happened, the deadline to appeal the denial of his post-conviction appeal had passed. So far, the state of Alabama has successfully argued that despite the mail room debacle, Maples should have been aware — through his local counsel — that the clock was ticking and that he just blew it.

Continue reading Maury’s post HERE.

WGN-RADIO in Chicago, “The Milt Rosenberg Show,” Oct. 5, 2011

Listen to Maury’s recent appearance with Milt to discuss Hitler in the Crosshairs HERE.

SAN JOSE MERCURY NEWS, Oct. 5, 2011

Maurice Possley and Kathleen ‘Cookie’ Ridolfi: Attorneys and judges need to report misconduct cases to the California Bar Association

Two decades ago, in response to a highly critical series of media reports that revealed how the State Bar of California had virtually abdicated its role in the investigation and discipline of attorneys, the Legislature passed two laws requiring courts and lawyers to report misconduct to the Bar.

The laws added to the California Business and Professions Code require courts to report misconduct by attorneys and require attorneys to self-report misconduct findings to the Bar. But research shows these mandates are largely ignored by the courts and attorneys and are unenforced by the Bar, even though lack of compliance is in itself grounds for discipline.

With that in mind, the Bar should take a serious look at two decisions last week, one by a state Appellate Court involving a prosecution in Santa Clara County and the other by a Superior Court judge in Los Angeles County.

Continue reading the OpEd HERE.

Troy Davis: Will Georgia Execute an Innocent Man This Week?

This column originally appeared via Sojourners‘ God’s Politics blog on Friday, September 16:

By Maurice Possley

“Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent.”
– U.S. Supreme Court Justice William J. Brennan, Jr., 1994

On Monday (Sept. 19), the five members of the Georgia State Board of Pardons and Paroles will meet to consider whether to commute the death sentence of Troy Davis to life in prison or allow him to be executed on Sept. 21.

With more than 1,260 men and women executed in the United States since the death penalty was restored more 30 years ago, pardon boards across this country have routinely addressed pleas for clemency and routinely have rejected them, allowing executions to go forward.

Indeed, as Davis’ case has becoming increasingly more public, the machinery of death moves on in other parts of the country.

On Thursday, U.S. Supreme Court ordered a last-minute stay that blocked the execution in Texas 0f Duane Buck, within hours of his walk to the execution chamber. The next scheduled execution in Texas is Sept. 20 for Cleve Foster, who was convicted of murdering a woman.

On Sept. 21 — the day Davis is now set to die — Lawrence Brewer is scheduled to be executed in Texas for the infamous dragging death of James Byrd Jr.

And on Sept. 22, Derrick Mason is to be executed in Alabama — although the judge who imposed death sentence on Mason now says he made a mistake and believes the death sentence should be commuted to life in prison without parole.

Other than the case of Brewer, notorious because he was one of three white men who killed a black man in particularly cruel and gruesome fashion, it’s unlikely that most of the general public has been particularly aware of the cases of Buck, Foster or Mason.

So what makes the Davis case stand out from most other death penalty cases?

Serious doubt.

Not about whether the death penalty is the appropriate punishment for Davis or has been correctly applied.

The doubt raised in Davis’ case is whether he committed the crime at all. And those questions about his guilt have prompted hundreds of thousands of people to raise their voices in opposition to his execution, most recently former FBI Director William Sessions who, in an op-ed in the Atlanta Journal-Constitution Friday, called on the Georgia Board of Pardons and Paroles to commute Davis’ sentence to life in prison.

Over the last 30 years, most death penalty cases have worked their way through the courts and into the execution chamber with little publicity, notoriety or public outcry, beyond that of the people directly affected by the crime — relatives and survivors of the victims, family members of the accused and the assorted participants in the legal system, such as judges, police officers, defense attorneys and prosecutors.

From time to time, however, certain cases have taken on a more dynamic persona. Karla Faye Tucker was executed in 1998 — the first woman to be put to death in Texas — amidst national and international pleas for clemency largely based on her gender and conversion to Christianity.

Similarly, Stanley “Tookie” Williams engendered a groundswell of opposition to his 2005 execution in California because of the positive work he had done after being convicted in the murders of four people. While in prison, Williams wrote children’s books with anti-gang and anti-violence themes.

Still, the issue in Tucker and Williams’ cases was rehabilitation, not innocence.

Perhaps the last high-profile case that involved serious claims of innocence was that of Gary Graham, who was executed in Texas in 2000 despite new evidence suggesting that the sole eyewitness who identified him was wrong.

There have been 1,267 executions in the United States since the death penalty was re-instated in 1976, after having been struck down in 1972 by the U.S. Supreme Court.

The death penalty returned in 1977 when Gary Gilmore was executed by a firing squad in Utah.

Sine the reinstatement of the death penalty 34 years ago, 138 people have been released from Death Row after their innocence was established or their guilt could no longer be proved.

At the same time, serious questions have been raised about the guilt of a number of defendants who were executed, including Cameron Todd Willingham, Carlos DeLuna and Ruben Cantu in Texas, Leo Jones in Florida, and Larry Griffin in Missouri.

There are now more than 3,200 men and women on death row in the United States and the population continues to grow, although at a much reduced rate over the past 10 years.

The number of states that execute has dropped by three, with New Mexico, New Jersey and Illinois outlawing the death penalty.

Executions nationally have dropped gradually over the last several years—from a high of 98 in 1999. There were 46 executions in 2010 and so far in 2011, there have been 33.

“The decline is a breakthrough in the public’s consciousness that mistakes are made and that it’s hard to tell in which ones the mistakes mean innocence,” says Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

Davis was convicted in 1991 of the 1989 shooting death of an off-duty Savannah police officer who was working as a security guard in a shopping center. Davis was found guilty and sentenced to death on the basis of witnesses and informants.

There was no physical evidence linking him to the crime.

Over time — and three postponed executions — Davis’ defense has produced evidence that six of the nine witnesses have recanted their testimony. Still it was not enough to persuade a Georgia court to grant him a new trial.

Davis has received support from such influential forces as Pope Benedict XVI, Archbishop Desmond Tutu and former President Jimmy Carter as well as from more than 500,000 people who have signed petitions urging the pardons board to spare his life.

Davis is no stranger to the pardons board — he has appeared before it twice before. But if there is a breath of hope for Davis, it is that the five-member pardons board has three new members who have not voted on his case before.

He needs three votes for his death sentence to be commuted to life without parole. Such a vote would not mean his immediate release. But it would give his defense team more time to continue their search for evidence of his innocence.

When the board convenes, they will have Davis’ life in their hands. And as they consider whether to send Davis to the execution chamber, perhaps they should consider the case of Earl Washington Jr.

Washington was sentenced to death in Virginia in 1984. Ten years later, when preliminary DNA tests raised doubts about his guilt, then-Gov. Douglas Wilder commuted the death sentenced to life without parole.

In 2000, 16 years after Washington was convicted, more sophisticated DNA tests exonerated him and he was released.

Because he was still alive.