Prosecuting the prosecutor

This is the prosecutor who put Michael Morton in a Texas prison for 25 years by suppressing evidence. Here’s a story by Joe Nocera, from The New York Times.



In just about a month from now, Texas will witness a rare event: a former prosecutor is going to be held to account for alleged prosecutorial misconduct.

He is Ken Anderson, who for nearly 17 years was the district attorney in Williamson County, a fast-growing suburb of Austin. (In 2002, Gov. Rick Perry made him a district judge.) As Pamela Colloff writes, in a brilliant two-part series in Texas Monthly, Anderson was the kind of prosecutor who “routinely asked for, and won, harsh sentences and fought to keep offenders in prison long after they became eligible for parole.”


(This is the famous case in which a bloody bandana was found near the scene, but its existence was hidden for years.)

Later in the NYT story we read:

In truth, Anderson isn’t the only Williamson County prosecutor who faced consequences as a result of the Morton case. His successor, John Bradley, was the one who had fought for years against the DNA testing of the bandana. Seven months after Morton was set free, Bradley, who had always been a shoo-in for re-election as district attorney, was resoundingly defeated.

To read the rest of the story, click here.


Death penalty debate heats up

Asheville and Georgia cases ignite death penalty debate:
One execution, two exonerations raise questions of justice

ASHEVILLE — Fifteen hours stood between the execution of Troy Davis amid questions over his true guilt and the sunny afternoon two Asheville men exonerated in another murder case walked free.

But the cases stand out for reasons other than just timing. Though each held significant differences from the other, they both have reignited debate over the death penalty and imperfections within our justice system.

Davis, convicted of killing an off-duty police officer in Georgia in 1989, was given a trial.

Kenneth Kagonyera and Robert Wilcoxson pleaded guilty to second-degree murder in a 2000 slaying under threats from investigators and prosecutors and even their own attorneys and family, who wanted to spare them life in prison or the possibility of a death sentence.

Davis gained national attention, with even the pope questioning his guilt.

The case of Kagonyera and Wilcoxson generated passing interest before they were freed Thursday.

But where Davis had to work within the court system, Kagonyera and Wilcoxson had the N.C. Innocence Inquiry Commission.

Its success with their case will give new momentum to calls for similar justice system checks in other states.

For the full story, see|newswell|text|News|p

PRNewswire: N.C. Resident Questions State’s Use of Death Penalty in Federal Court

N.C. resident Donna Pilch filed a lawsuit in federal court which questions whether it is constitutional for North Carolina to use the death penalty when it is allegedly using questionable science and methods to convict people. The lawsuit names Attorney General Roy Cooper as the defendant, because he is responsible for the State Bureau of Investigation, which, according to an audit done by a former FBI agent, has been using questionable science in its serology (blood) and ballistics units.

Article available here: N.C. Resident Questions State’s Use of Death Penalty in Federal Court

Prosecution willingly lies in Anthony trial

The New York Times is reporting major misprision in the Anthony trial. Falsifying evidence to seek the death penalty.

MIAMI — Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

Read it here.

New York Times: Opinion: Broken Beyond Repair

Op-ed columnist Bob Herbert

“You can only hope that you will be as sharp and intellectually focused as former Supreme Court Justice John Paul Stevens when you’re 90 years old.

In a provocative essay in The New York Review of Books, the former justice, who once supported the death penalty, offers some welcome insight into why he now opposes this ultimate criminal sanction and believes it to be unconstitutional.

As Adam Liptak noted in The Times on Sunday, Justice Stevens had once thought the death penalty could be administered rationally and fairly but has come to the conclusion “that personnel changes on the court, coupled with ‘regrettable judicial activism,’ had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.

Police and prosecutorial misconduct have been rampant, with evidence of innocence deliberately withheld from defendants being prominent among the abuses. Juries have systematically been shaped — rigged — to heighten the chances of conviction, and thus imposition of the ultimate punishment.

Prosecutors and judges in death penalty cases have been overwhelmingly white and male and their behavior has often — not always, but shockingly often — been unfair, bigoted and cruel. The Death Penalty Information Center has reams of meticulously documented horror stories.

Innocents have undoubtedly been executed. Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants. And it has always been the case that the death penalty machinery is fired up far more often when the victims are white.

I remember reporting on a study several years ago by the Texas Defender Service, which represented indigent death row inmates. It mentioned a Dallas defense lawyer, who, reminiscing in 2000, said: “At one point, with a black-on-black murder, you could get it dismissed if the defendant would pay funeral expenses.” A judge, looking back on his days as a prosecutor in the 1950s, recalled being told by an angry boss: “If you ever put another nigger on a jury, you’re fired.”

Prosecutors cleaned up their language somewhat over the years, but the discrimination has persisted, along with the pernicious idea that white lives are inherently more valuable than black ones. Patricia Lemay, a white juror in a Georgia death penalty case that resulted in an execution, told me in an interview in 2002 that she had been nauseated by the vile racial comments made by other jurors during the deliberations.

Justice Harry Blackmun was 85 years old and near the end of his tenure on the Supreme Court when he declared in 1994 that he could no longer support the imposition of the death penalty. “The problem,” he said, “is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

Justice Blackmun vowed that he would no longer participate in a system “fraught with arbitrariness, discrimination, caprice and mistake.”

In 1990, Justice Thurgood Marshall asserted: “When in Gregg v. Georgia the Supreme Court gave its seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered with fairness and justice. Instead, the promise has become a cruel and empty mockery.”

Justices Blackmun and Marshall are gone, but the death penalty is still with us. It is still an abomination. Illinois has tried mightily to deal with a system of capital punishment that had, as The Chicago Tribune described it, “one of the worst records of wrongful capital convictions in the country.”

The sentences of 167 condemned inmates were commuted in 2003. Four others were pardoned and a moratorium on the death penalty has been in effect since 2000. But prosecutors continue mindlessly to seek the death penalty. And the system for trying murder cases remains a mess. As The Tribune wrote in an editorial just last week:

“Lawmakers still haven’t taken adequate steps to ensure that the death penalty is applied evenly across the state, or to guard against wrongful convictions based on errant identifications of witnesses or mistakes at forensic labs. False confessions and prosecutorial missteps are still alarmingly common.”

In the paper’s view, “Illinois must abolish the death penalty.”

And so must the United States.”

Article here: Broken Beyond Repair

NY Times: DNA Test Casts Doubt on Executed Texas Man’s Guilt

“A DNA test on a single hair has cast doubt on the guilt of a Texas man who was put to death 10 years ago for a liquor-store murder — an execution that went forward after then-Gov. George W. Bush’s staff failed to tell him the condemned man was asking for genetic analysis of the strand.

The hair had been the only piece of physical evidence linking Claude Jones to the crime scene. But the recently completed DNA analysis found it did not belong to Jones and instead may have come from the murder victim.

Barry Scheck, co-founder of the Innocence Project, a New York legal center that uses DNA to exonerate inmates and worked on Jones’ case, acknowledged that the hair doesn’t prove an innocent man was put to death. But he said the findings mean the evidence was insufficient under Texas law to convict Jones.”

Full article here «DNA Test Casts Doubt on Executed Texas Man’s Guilt

CharlotteObserver: Former death-row inmate sues city

“A man who spent nearly 14 years on death row is suing the city of Hickory and two former detectives who his attorney claims withheld evidence that supported his innocence.

The lawsuit, filed Wednesday in U.S. District Court in Asheville, claims that Glen Edward Chapman was wrongly convicted of two murders because of police misconduct by detectives Dennis Alvin Rhoney and Mark Richardson Sams. It seeks an unspecified amount of compensation.

Chapman was convicted in 1994 for the murders of Tenene Yvette Conley, 28, and Betty Jean Ramseur, 31.

Prospective renters looking at a home in southeast Hickory discovered Conley’s body in a downstairs closet in August 1992. A week later, Ramseur’s body was found in a burned-out house in Hickory. She died several weeks earlier.

Chapman was exonerated in the crimes and released from prison in April 2008, five months after Judge Robert Ervin issued a 186-page ruling that said detective Rhoney withheld evidence and lied on the stand. He also said Chapman’s court-appointed defense attorneys did a poor job investigating the 1992 killings.

The lawsuit filed Wednesday alleges Rhoney, the lead investigator in Ramseur’s case, intentionally withheld evidence from prosecutors. One item withheld was a memo about a phone call in which Rhoney was told that an inmate made incriminating statements about killing Ramseur to another inmate.

The lawsuit also claims Rhoney withheld information about a witness who identified a different man – not Chapman – in a photo lineup as the man he saw with a woman at the house where Ramseur’s body was found.

The lawsuit says detective Sams was the lead investigator in the Conley case and withheld interviews from prosecutors. One statement came from Conley’s housemate, who told officers Conley was last seen with two men – neither of them Chapman. One of the men had also reportedly been the last person seen with another woman before she was strangled years earlier.

Rhoney took over the Conley case after Sams left the police department in February 1994, but he, too, failed to turn over the evidence Sams withheld to prosecutors, the lawsuit says.

At trial, prosecutors had argued that Chapman beat the women to death in separate drug-related fights. Chapman had admitted that he knew both women and had smoked crack with each of them, but he denied any involvement in their deaths.

“All of the evidence goes against the state’s theories,” Chapman’s attorney Jessica Leaven said Wednesday.

Sams died in November 2009. Chapman is suing his estate.

Reached at home Wednesday, Rhoney declined to comment. He is no longer a police officer, Leaven said.

In 2008, the State Bureau of Investigation announced it would investigate Rhoney, who at the time was a Burke County sheriff’s deputy. He was placed on paid administrative leave pending the investigation’s results. The result of that investigation was unavailable Wednesday.

Hickory staff attorney Arnita Dula said Wednesday the city had not yet been served with the lawsuit and declined to comment.

Chapman, 42, lives in Asheville and often gives lectures at local universities on life after death row, his attorney said.

After he was freed, Chapman declined to criticize either the criminal justice system or the investigators, including Rhoney.

“His fate is not in my hands,” Chapman told the (Raleigh) News & Observer the day of his release. “I have no bitterness. Why should I give somebody the benefit of knowing that they can just make me bitter?”

«Former death-row inmate sues city

SBI Articles: October 13th

News&Observer: SBI veterans wrote and approved bad blood policy

The audit, conducted by two former FBI supervisors and released in August, found that SBI lab reports failed to report blood test results that could be favorable to the defendant.  It discovered the withheld test results in lab notes taken by analysts during tests. The SBI did not routinely give those notes to prosecutors until after a change in the law in 2004; that change came after the SBI and prosecutors withheld exculpatory evidence in the case of Alan Gell, who was wrongly convicted of murder.”

“Until 2003, blood tests typically had two steps.  The first test, the presumptive test, was often performed at the crime scene to see whether there could be blood evidence. The presumptive test has limitations because some plants, chemicals or metals can give a positive result.  If the presumptive test was positive, agents would collect the evidence – clothes, shoes, a piece of carpet or bedsheet – and send it to the SBI laboratory to run a confirmatory test called Takayama.  Prior to 1997, SBI policy gave no guidance on how to report Takayama test results. Some agents didn’t mention the confirmatory test if the result was negative for the presence of blood. Other agents would report the positive presumptive test and note that “additional tests failed to confirm the presence of blood.”

News&Observer: Man jailed 12 years wants case dropped

“Allen has always maintained his innocence, even as he agreed to a plea that spared his life. Allen, who was 19 at the time of the girl’s death, was taking care of the child in a Garrett Road apartment complex when she died. Doctors said the girl had been assaulted and died after being shaken violently.”

“Moreover, Williams argued in the motion, information has not been provided about an SBI polygraph test of a key witness; that other evidence, including all medical history records of the child, has been lost or destroyed; that witnesses can’t be found because of the age of the case; and that investigators did not look beyond Allen in their probe.  Williams wrote that keeping evidence from Allen while he faced the death penalty is “truly alarming behavior deserving of great condemnation and sanction” by the court. Williams wrote that at least two other people could have harmed young Adesha Artis, but that investigators focused only on Allen and did not seek to determine the facts.”

WRAL: Cooper names another interim chief of SBI crime lab

“The appointment of Joe R. John Sr. is the second time in five weeks that Cooper has tried to find someone to guide the crime lab while a nationwide search is conducted for a permanent chief.”
“John, who served on the state Court of Appeals from 1992 to 2000 and was previously a Superior Court and District Court judge in Greensboro, will be responsible for auditing all sections of the crime lab to ensure that test results are accurate and have been properly reported.”

ACLU participates in anti-death penalty press conference

North Carolina’s flawed justice system and support of the death penalty wrongly imprisons  and executes the innocent, according to speakers at a press conference held at the Buncombe County courthouse.

“Nobody’s life should be at stake with a system so flawed,” said Glen Edward Chapman, a man who spent 15 years on death row in North Carolina before being exonerated in 2008.

Click here for the full article.

SBI Articles: September 21st: SBI Oversight

News&Observer: Editorials: Who’s checking?

“Problems with the crime lab of the State Bureau of Investigation are now well-documented, and not even in much dispute. A News & Observer series and an audit commissioned by Attorney General Roy Cooper (who supervises the SBI) have shown lab results and testimony from agents to be gilded for prosecutors. Prior to the development of DNA testing, blood analysis was sometimes reckless.”
“Now state legislators are asking, what to do next? One answer seems to be clear. The SBI lab needs a new team of accreditors. Frankly, Cooper and the now-former SBI director, Robin Pendergraft, should long ago have questioned whether an outfit called ASCLD-LAB, with headquarters in Garner, should have been involved in reviewing the SBI lab’s accreditation. That company has been headed since 1995 by Ralph Keaton, a former SBI agent who was the second-in-command at the agency’s lab during the time that some of the questioned cases were proceeding. Another official with ASCLD-LAB is also a former SBI official.

“What would happen if an investigator from the state auditor’s office, who was once a high-ranking official in another state agency, was given the task of auditing his or her former agency?

You think there might be a bit of public outcry about a conflict of interest? Do you think auditors’ offices around the country have policies to prevent this sort of thing?

The answers: Yes and yes.

Yet, for a number of years, state law enforcement officials batted nary an eye when it came to a lab accrediting agency headed and managed by former SBI lab technicians accrediting the very lab where they once worked.”


“To counteract that skepticism and ensure defendants get fair trials, some attorneys and lawmakers, including state Sen. Marc Basnight, D-Dare, have already called for setting up a crime laboratory that’s independent of the SBI. Local criminal defense attorney Mike Sanders recently told The Daily Advance that he believes the separation would “be to everyone’s benefit because it would remove that cloud of suspicion” now hanging over the lab’s work.

Cooper and others in law enforcement have cautioned decision-makers to go slow on the idea, pointing out that many other states don’t have crime labs separate from law enforcement and that setting up an independent lab in North Carolina could be costly. Cooper believes the state’s first priority should be on investigating and fixing problems it has and may have at the lab. After then, he says, officials can determine where the crime lab should go.

That sounds like a reasonable approach to us. But given that the main interest here is justice, not control or costs, we think the crime lab ultimately will have to be removed from SBI oversight. We also think state laws will need to be revised to ensure that there’s no confusion in the future that the crime lab’s principal tasks are the scientific study of crime evidence and the presentation of those facts, not assistance in prosecutions.”