Virginia to review the convictions of 8 people executed between 1986 and 1998

The possibility of executing the innocent has gone a long way to change the national conversation about the death penalty, reported Slate. We know that over the past half-century, more than 200 people have been exonerated after having been sentenced to die, and scholars estimate that 4 percent of those sentenced to death are innocent.

And a 2021 Pew poll found that 78 percent of its respondents believe “there is some risk that an innocent person will be put to death.” But death penalty supporters have long contended that abolitionists have sold the public a false bill of goods.

One of them, Judge Morris Hoffman, argues that “To a large and unfortunate extent, the debate about wrongful convictions in a capital context has become a proxy for arguments in favor and against the death penalty. Lost in the crossfire is any reliable data about the actual wrongful conviction rate.“ He contends that no one has yet come up with “a single case of a demonstrably innocent person executed in America in the modern era.”

Hoffman claimed the “label innocent” is “just a way of saying there were errors in the trial, that guilt seemed to them to be a ‘close call,’ and that some of those close calls must surely, as a statistical matter, have involved some factually innocent people.”

Even the abolitionist Death Penalty Information Center concedes that “there is no way to tell how many of the … peo­ple exe­cut­ed since 1976 may … have been inno­cent.”

All of this may soon change. Virginia, which abolished the death penalty in 2021, recently initiated a review of eight cases of people executed there between 1986 and 1998 whose convictions were obtained based on testimony and evidence presented by a now-discredited state forensic scientist, Mary Jane Burton.

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CREATORS: DNA Reveals Flaws in Criminal Justice System

Matthew T. Mangino
CREATORS
February 11, 2025

The Innocence Project used to track all DNA exonerations throughout the country. An exoneration clears a convicted person of blameworthiness. Now they track all "Innocence Project successes," which includes all exonerations generated through DNA or other evidence.

There were 375 DNA exonerations between 1989 and 2020. For those 375 men and women and their families, DNA saved them from the anguish and pain of being locked up for a crime they did not commit. For the rest of us, DNA revealed the many flaws in the criminal justice system.

The "other successes" are even more impressive than the DNA exonerations. In "Bringing Ben Home: A Murder, a Conviction, and the Fight to Redeem American Justice," Barbara Bradley Hagerty declared, "The double helix has sparked a revolution." DNA has exposed the errors of our way.

The Innocence Project is right to celebrate those non-DNA exonerations. "[O]verturning a wrongful conviction, even with DNA evidence, is extremely difficult. ... [Without it] it's so much harder," Rebecca Brown of the Innocence Project told Bradley. She goes on to say, "It comes down to, really, serendipity. ... We should not be having to depend on luck."

DNA is not present in every case. However, there are still mistaken identifications, police misconduct and bad forensics throughout the system. The Innocence Project lists six "contributing causes" for wrongful convictions: eyewitness misidentification; false confessions or admissions; government misconduct; inadequate defense; informants; and unvalidated or improper forensic science.

More specifically, in 63% of wrongful convictions there was eyewitness identification; 52% had inaccurate or unscientific forensic analysis; 19% had untrustworthy informants: and 28% had confessions.

Imagine that nearly 3 in 10 people exonerated pleaded guilty to a crime they did not commit. How does that happen?

In 2010, 17-year-old India Spellman was arrested by Philadelphia police for the robbery of a woman with a gun and as the shooter in the robbery and murder of a second person. India and her co-defendant were taken to the police department for interrogation. Although she was a juvenile, her parents were kept from the interrogation room.

As the 17-year-old was alone with the police, a detective hit her in the face and screamed at her. He left the interrogation room and returned with a statement that Spellman signed after detectives refused to read her the content of the statement. The statement was a confession to being involved in both robberies.

Thirteen years later, a judge vacated Spellman's conviction. The trial — which featured a misidentification, a coerced confession and prosecutors withholding exculpatory evidence — had been unconstitutional.

As science evolves, so does the reliability of forensic evidence. The gold standard pre-DNA was the human fingerprint. You may be surprised to learn that the uniqueness of a fingerprint is an assumption, not a well-studied idea.

According to Discover magazine, the "lack of a fundamental scientific basis for the supposed uniqueness of fingerprints — and the inability for apparent experts to reliably match them or even agree on what's required for a match — has seen some federal courts reject fingerprints entirely as evidence."

Even DNA has come under scrutiny. As collection of DNA at crime scenes has become more sophisticated, gathering minute biological samples has emerged as potential for folly. Finding someone's DNA at a crime scene doesn't necessarily mean they were ever at that location. Transfer DNA can spread to objects and places by way of other human carriers.

In one case, according to Discover magazine, a man's DNA was found on a murder victim who was killed in their home. The man whose DNA was found at the crime scene was in the hospital during the murder. The DNA had been transferred by a paramedic who brought the man to the hospital and who later responded to the 911 call made regarding the homicide.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Bluesky @matthewmangino.bsky.social.

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Pennsylvania one of 13 states that doesn't compensate the wrongfully convicted

 In 1987, Alfredo Domenech was accused of murder, and in 1988 he was sentenced to life in prison. He served 18 years of that sentence before his trial was reopened and the charges were dismissed.

“I still feel like it was yesterday, and every morning I wake up and feel like it’s the same day, like I never came from that moment,” Domenech said Tuesday on the steps of the Capitol in Harrisburg. “I’m still stuck in the past. We need compensation to start moving on.”

Domenech was at the Capitol along with a coalition of other exonerees and advocates — the It Could Happen to You coalition — asking lawmakers to pass a bill that would grant state compensation for the wrongfully convicted.

Pennsylvania is one of 13 states that does not have a program to compensate people who serve time in prison on wrongful convictions, reported The Pennsylvania Capital-Star.

“Some of those folks lose decades of their lives behind prison bars, missing out on milestones and memories with their loved ones and friends, and losing out on meaningful work opportunities,” Sen. Camera Bartolotta (R-Washington) the only lawmaker at the press conference with Domenech. “Our time to act is right now.”

Though the exonerees received a private audience with House Speaker Joanna McClinton (D-Philadelphia), they acknowledged it would be an uphill battle. 

Bills that would create compensation for the wrongfully convicted have been introduced in previous sessions, but never passed.

Jeffrey Deskovic described the difficulty of reentering society after a wrongful conviction. After serving 16 years for murder, he was exonerated following DNA testing. 

“I was always passed over for gainful employment,” Deskovic said. “It felt like employers always wanted someone who had job experience. They didn’t have any patience for on-the-job training.”

But fortunately for Deskovic, he was living in New York, one of 37 states, along with Washington, D.C. with programs that provide compensation for the wrongfully convicted. 

Still, it took five years for him to see those funds, and in that time he saw how difficult it would be for others who didn’t receive some form of payment.

After he was compensated, Deskovic got a masters degree from the John Jay College of Criminal Justice and started a nonprofit, the Jeffrey Deskovic Foundation, to help other exonerees.

“There’s no amount of money that’s worth being wrongfully imprisoned, yet compensation is an indispensable tool in terms of putting your life back together,” Deskovic said. 

Teri Himebaugh, executive director of the Philadelphia-based Police Transparency Project, said that, in some cases, Pennsylvania’s lack of compensation can actually cost taxpayers. 

Since 2016, she said, 49 defendants have been exonerated just in Philadelphia. With no wrongful conviction compensation law, some of those defendants have gone on to sue the city.

Since 1992, Philadelphia has paid out over $60 million in civil settlements.

“All in all, it is not just an ethical and responsible thing to do to offer compensation,” Himebaugh said. “It is a financially stable and responsible thing to do as well.”

The group is asking for a law that would allow wrongfully convicted people to get $100,000 per year served on death row, $75,000 per year served not on death row, and $50,000 per year of time on parole.

Last year, a bill that would have done just that was introduced by Rep. Regina Young (D-Philadelphia). It was reported out of committee, but tabled before a final vote on the floor.

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Creators: The Efficacy of Shaken Baby Syndrome Remains Unresolved

Matthew T. Mangino
Creators
May 7, 2024

Robert Roberson's story is a tragic one. He is sitting on death row in Texas for killing his 2-year-old daughter Nikki Curtis by shaking her so violently that it caused her death. John J. Lennon, an incarcerated journalist who works with the Prison Letters Project at Yale Law School, recently wrote about Roberson for Slate.

The theory behind Roberson's conviction is what is commonly known as shaken baby syndrome.

Proponents of the theory of shaken baby syndrome claim that shaking a baby produces a so-called "triad" of catastrophic injuries exclusive to shaking — subdural hemorrhage, retinal hemorrhage and brain swelling. The diagnosis does not require the presence of other injuries such as bruises, grab marks or damage to the baby's neck.

Injuries from shaken baby syndrome are so severe, these experts say, the baby would immediately collapse. According to The Appeal, the last person with the baby — a parent, babysitter or day care worker — is the person often accused. That person is then left to prove they're innocent of a crime that may not have occurred.

The presence of shaken baby syndrome often pits the accused against the testimony of physicians, who say with certainty that the baby's injuries are comparable to those sustained from falling out of a window or being thrown from a car, reported The Appeal. In comparison, the defendant's explanation falls short of making an impression on an investigator or jury.

However, as with many types of forensic evidence — shaken baby syndrome is under scrutiny. Convictions are supposed to be final, but science is evolving. In recent years, prisoners and their lawyers have challenged a number of forensic disciplines: from eyewitness identification, to fingerprints as well as analysis of blood spatter, hair, bitemarks, toolmarks and a host of other traditionally "reliable" investigative techniques.

Since the 1980s, nearly a quarter of overturned convictions have featured "false or misleading forensic evidence," according to the national Registry of Exoneration.

"We believed anyone in a lab coat with letters after their names," M. Chris Fabricant, a lawyer for the Innocence Project, which works to overturn wrongful convictions across the country, told the Marshall Project. "But these methods were developed by law enforcement to solve possible crimes, not in laboratories."

A. Norman Guthkelch, a British pediatric neurosurgeon whose 1971 paper first posited the shaken baby syndrome, later reviewed a number of cases where defendants claimed their innocence. Patrick D. Barnes, MD of the Stanford University Medical Center, wrote in Bloomberg Law, Guthkelch was struck by the high proportion of cases in which the child had a history of illnesses, indicating their injuries were the result of natural causes, not abuse. In 2015, shortly before his death, Guthkelch told The Washington Post, "I am doing what I can so long as I have a breath to correct a grossly unjust situation."

According to Barnes, over the last two decades, courts in at least 12 states, including Alaska, Nevada, North Carolina, Ohio, and Wisconsin, have overturned shaken baby syndrome convictions, or rejected outdated science.

Some medical organizations have pushed back, including the American Academy of Pediatrics, which fears marginal medical theories are gaining too much traction in the courts, allowing people who abuse infants to go free. In 2009, according to the Boston Globe, the academy did acknowledge the controversy brewing over the role that excessive shaking plays in creating extreme injuries.

The academy now tells doctors to use the term "abusive head trauma," rather than shaken baby syndrome, to indicate that traumatic blows to the head, not just shaking, are often behind the brain swelling and eye damage that afflict some 1,000 children each year, often causing permanent neurological damage if not death.

But the fact remains that at least 32 people have been exonerated for crimes based on shaken baby syndrome, according to The Guardian. In addition, last fall, Superior Court of New Jersey Judge Pedro J. Jimenez Jr. ruled that shaken baby syndrome was "junk science" and "scientifically unreliable".

A definitive answer for shaken baby syndrome remains elusive. Roberson's petition to the U.S. Supreme Court seeking review of his shaken baby syndrome conviction was denied without explanation.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Most Individuals Exonerated Last Year Were People of Color with Official Misconduct a Frequent Factor

The National Registry of Exonerations released a comprehensive report on exonerations in 2023. The Registry recorded 153 exonerations last year and nearly 84 percent (127/153) were people of color. Nearly 61 percent of the exonerees (93/153) were Black. 

New data show that wrongfully convicted individuals in the United States have received at least $4 billion in compensation since 1989 from state and local governments. The payout has nearly doubled in just five years since 2019, when compensation to exonerees in the U.S. totaled about $2.2 billion. This significant increase reflects the growing number of exonerations, and is one of the costs of wrongful convictions, particularly in Illinois, New York, and Texas. 

New York leads the pack with $1.1 billion total compensation, 70 percent of which was for damages in civil lawsuits (which are almost always paid by cities and counties), while in Texas, exonerees received $192 million, 86 percent of which was paid as state compensation. 

Jeffrey Gutman, special contributor to the National Registry of Exonerations and professor at the George Washington University Law School who collected the data, said, “This total will get bigger in the next few years, rapidly. The number of states that pay compensation to exonerees is growing. Many exonerees have claims that are still pending, and we'll keep seeing more exonerations of innocent people who spent decades in prison, probably at an accelerating rate." 

Since 1989, 50 percent of all exonerees and 53 percent of murder exonerees have received some compensation. But the amounts they received vary enormously. 

Official misconduct occurred in at least 118 exonerations (or 77 percent) in 2023. Seventy-five homicide cases—85 percent of homicide exonerations in 2023—were marred by official misconduct. Other contributing factors in various combinations included perjury or false accusations, false or misleading forensic evidence, mistaken witness identification, false confessions, and ineffective assistance of counsel. 

“This demonstrates once again a troubling reality in America’s justice system,” said Barbara O’Brien, professor at Michigan State University College of Law and editor of the Registry. “With 153 exonerations, predominantly affecting people of color, and billions in compensation paid since 1989, the toll of wrongful convictions is undeniable.” 

“Official misconduct continued to undermine the integrity of the most series cases, including those in which innocent defendants were sentenced to death,” O’Brien said. “And while compensation is being granted, it remains inequitable.” 

People exonerated in 2023 lost 2,230 years collectively for crimes they did not commit. That is an average of 14.6 years per exoneree for wrongful imprisonment. 

“The numbers are staggering. People exonerated last year lost 22 centuries of time all together,” said Ken Otterbourg, report co-author and Registry researcher. “Some innocent people go into prison as a young person and come out with grey hair. The vast majority of innocent people who were exonerated last year after being wrongly convicted of crimes are Black or Brown.” 

The top states for exonerations (in order) for 2023 were Illinois, Texas, New York, and Pennsylvania, with California and Oregon tied for fifth. The top four states accounted for 54 percent of the 2023 exonerations. 

The report found that 86 exonerations—56 percent of the 153 exonerations—were of defendants who had been convicted of murder, four of whom had been sentenced to death.

The report is available here.

Gallup: Half of America thinks death penalty applied unfairly

For the first time since Gallup started asking about the fairness of the death penalty's application in the U.S. -- a trend that dates back to 2000 -- more Americans say it is applied unfairly (50%) than fairly (47%). This represents a five-point increase in the percentage who think it is applied unfairly since the prior measurement in 2018.

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Renowned forensic scientist Henry Lee liable for fabricating evidence

Famed forensic scientist Henry Lee was found liable for fabricating evidence in a murder case that sent two Connecticut men to prison for decades for a crime they did not commit, a federal judge ruled Friday.

Ralph “Ricky” Birch and Shawn Henning were convicted in the Dec. 1, 1985, slaying of Everett Carr, based in part on testimony about what Lee said were bloodstains on a towel found in the 65-year-old’s home in New Milford, 55 miles (88.5 kilometers) southwest of Hartford.

A judge vacated the felony murder convictions in 2020, and the men filed a federal wrongful conviction lawsuit naming Lee, eight police investigators and the town of New Milford.

The ruling Friday sends the case against the police and the town to trial. In granting a motion for summary judgement against Lee, the only outstanding issue for a jury in his case will be the amount of damages.

Lee, the former head of the state’s forensic laboratory and now a professor emeritus at the University of New Haven’s Henry C. Lee College of Criminal Justice and Forensic Sciences, did not immediately respond to an email seeking comment.

Lee, 84, rocketed to fame after his testimony in the 1995 O.J. Simpson murder trial, in which he questioned the handling of blood evidence. He also served as a consultant in other high-profile investigations, including the 1996 slaying of 6-year-old JonBenet Ramsey in Colorado; the 2004 murder trial of Scott Peterson, who was accused of killing his pregnant wife Laci; and the 2007 murder trial of record producer Phil Spector.

When Birch and Henning were put on trial in 1989, jurors heard about an extremely bloody crime scene. Carr had been stabbed 27 times, had his throat cut and suffered seven blows to the head.

No forensic evidence existed linking Birch and Henning to the crime. No blood was found on their clothes or in their car. The crime scene included hairs and more than 40 fingerprints, but none matched the two men.

Prosecutors presented evidence from Lee — not yet famous — that it was possible for the assailants to avoid getting much blood on them.

Lee also testified that a towel, which later was suggested could have been touched by the killers while cleaning up, was found in a bathroom near the crime the scene with stains that he tested and were consistent with blood.

Tests done after the trial, when the men were appealing their convictions, showed the substance was not blood.

In his ruling Friday, which was first reported by The Hartford Courant, U.S. District Judge Victor Bolden ruled that Lee presented no evidence to back up his testimony.

“Other than stating that he performed the test, however, the record contains no evidence that any such test was performed,” the judge wrote. “In fact, as plaintiffs noted, Dr. Lee’s own experts concluded that there is no ‘written documentation or photographic’ evidence that Dr. Lee performed the TMB blood test. And there is evidence in this record that the tests actually conducted did not indicate the presence of blood.”

The judge also ruled that Lee failed to properly use an immunity defense that could have shielded him from damages and was no longer eligible to use that argument.

Elizabeth Benton, a spokesperson for Connecticut Attorney General William Tong, whose office defended Lee and the police detectives in the case, said it was reviewing the decision and evaluating the next steps.

Birch served more than 30 years of a 55-year sentence for felony murder before being released in 2019 after a judge ordered a new trial. Henning, who was 17 when the crime occurred, was granted probation in 2018.

After their convictions were vacated in 2020, Lee defended his conduct in the investigation.

“In my 57-year career, I have investigated over 8,000 cases and never, ever was accused of any wrongdoing or for testifying intentionally wrong,” Lee told a throng of reporters. “This is the first case that I have to defend myself.”

Lee’s work in several other cases has come under scrutiny, including in the murder case against Spector, in which he was accused of taking evidence from the crime scene.

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The Marshall Project: Some Conservative lawmakers want to overhaul capital punishment, or end it

Two years ago, a group of Republican lawmakers toured the death chamber in Oklahoma, which has been responsible for more executions per capita than any other state in the last half-century. They took in the jet-black gurney straps, the phone connected to the governor’s office and the microphone used for last words, write Maurice Chammah and Keri Blakinger in The Marshall Project.

“The hair rises on the back of your neck,” said state Rep. Kevin McDugle. “A few legislators couldn’t be in the room very long.”

They continued on to death row to see Richard Glossip, who has spent more than two decades in solitary confinement, facing execution for a 1997 murder. Glossip says he had nothing to do with the crime, and a growing number of conservative lawmakers believe him.

“I just remember putting my hand up on the glass,” McDugle recalled, “and he put his hand up, and I said, ‘You've got people fighting for you. Keep your head up, brother.’”

As Oklahoma officials seek to resume putting prisoners to death later this year, McDugle has pursued bills in the state legislature to help those on death row prove their innocence, knowing Glossip could be among the first facing execution.

“My fear is some people will be executed before we pass a bill,” McDugle said.

Glossip’s case is reaching the highest echelons of politics in a deep-red state at a time when Republicans across the country are increasingly split on the future of capital punishment. Support for the death penalty used to be popular in both parties, but over the last three decades, Democrats have turned away from the punishment, leaving Republican legislators, governors, prosecutors and judges to fight for its continued use. At the same time, a small conservative movement — including groups like Conservatives Concerned About the Death Penalty — has been openly questioning capital punishment. It’s now clear their efforts are paying off.

Earlier this year, Virginia became the first Southern state to repeal the death penalty after three Republicans voted with the state legislature’s Democratic majority. A Marshall Project review found that in roughly half the states with an active death penalty system, Republican lawmakers have recently sponsored or written bills to ban or constrain the punishment, or to help potentially innocent prisoners avoid it.

Although many of these bills are unlikely to pass, their sheer volume suggests a significant shift in conservative views. Some of these Republican legislators see their bills as incremental steps toward ending the punishment. But others, like McDugle, don’t want to end the death penalty — they just want to fix it.

“I want to make darn sure that if we as Oklahoma are putting someone to death, they deserve to be there,” McDugle said. “I know there is human error all the way through.”

Conservatives have been slowly turning away from the death penalty for years, as high-profile innocence cases have helped frame capital punishment as a problem of out-of-control big government. In 2000, after a series of exonerations of people who had been sentenced to death, the Republican governor of Illinois, George Ryan, declared a moratorium on executions. At the time, Texas Gov. George W. Bush was running for president, and the national press questioned whether an innocent person had faced execution under his watch; soon after, his fellow Republicans in the state legislature voted to make DNA testing more available for prisoners. From 2014 to 2019, Republican support for the death penalty, as opposed to life sentences, dropped from 68% to 58%, according to Gallup Polls. Republican legislators in Nebraska voted to repeal the punishment in 2015, although the state’s residents then voted to bring the punishment back.

Some lawmakers have been motivated by anti-abortion arguments about the sanctity of human life and stories of Christian redemption on death row. Others talk about the cost to taxpayers. South Dakota state Sen. Arthur Rusch previously served as a judge in a capital case. “My case cost at least $1 million if not more,” he said, noting that the court paid for counseling for some jurors who suffered from post-traumatic stress after the lengthy trial. He was elected to the senate in 2015, and has filed numerous bills to abolish or restrict the punishment; none have succeeded, he said, but each time he brings along a few more peers.

“Changing your mind on an emotional subject like this can be difficult,” said Hannah Cox, who writes columns for Newsmax, a conservative web outlet, and serves as national manager of Conservatives Concerned About the Death Penalty. She’s found that efforts to fix the system can serve as “baby steps,” as she tries to show her fellow conservatives that the system can’t be saved. “If you fix one of 13 problems with the death penalty, there are still another 12.”

Of those problems, conservatives have been less likely to cite the racial disparities in capital punishment that animate many of its liberal opponents. Of the more than 2,500 people on death rows around the country, 41% are Black. In contrast, Black people make up 13% of the total U.S. population. For his part, McDugle acknowledges the disparity but said it isn’t what motivated his efforts.

“When I look at a bill, I don’t see color at all. I look at an individual and say, ‘If an individual commits a crime of this nature, should they be put on death row or not?’” he said.

Robert Dunham, the executive director of the nonpartisan Death Penalty Information Center, said it’s wrong to think that conservative lawmakers only get involved in cases where White people face execution. “Where the case looks like a 21st-century lynching, it offends conservatives’ consciences,” Dunham said, adding, “I think that the fact that extreme injustices also do happen to White capital defendants is eye-opening to people who have not appreciated the depth of the problems in capital punishment.”

Many conservatives focus on the moral calculation of who deserves the ultimate punishment. Ohio recently passed a bill, sponsored by a Republican legislator, to ban the execution of anyone with a serious mental illness. Republicans are pushing similar bills in Florida, Kentucky and Missouri.

In Texas, state Rep. Jeff Leach has filed a bill that would ban the death penalty for people who were technically “accomplices” to murders but played a minor role, including getaway drivers. Much like the Oklahomans, he was motivated by a single case — that of Jeff Wood, who was sentenced to die after his friend killed a store clerk while Wood waited outside in the car, after what they thought would be an easy robbery.

Though Wood’s case is not in Leach’s district, he wrote to the North Texas lawmaker and pleaded for help. His letter ended up on the top of Leach’s pile of prison mail, and he picked it up one day on vacation when it was too rainy to go to the beach. He’d been hoping to catch up on his backlog of letters, but Wood’s story sucked him in.

“It’s been on my mind and on my heart ever since,” Leach said. “Jeff Wood isn’t innocent, but the state shouldn’t even be considering putting him to death.”

Other lawmakers are more concerned about the risk of executing an innocent person. Texas Rep. Steve Toth, a Republican lawmaker from just north of Houston, filed a bill banning the death penalty in cases where there’s only one eyewitness and no other evidence. As a Baptist pastor, he was moved by seeing death row exonerees speak to the legislature several years ago, as well as the film “Just Mercy.”

“Even the Bible says you shouldn’t put someone to death without a corroborated eyewitness,” he said, citing the Book of Deuteronomy in the Old Testament. “If we’re going to put someone to death we need to be absolutely certain.”

The crime that landed Glossip on death row took place in the early morning hours of Jan. 7, 1997, at the Best Budget Inn in Oklahoma City. Sometime before dawn, owner Barry Van Treese was bludgeoned to death and left in Room 102. As the motel’s live-in manager, Glossip quickly became a suspect, and police arrested him two days after the killing.

Later, authorities realized that 19-year-old handyman Justin Sneed was the one who actually carried out the fatal beating. They arrested him, too, and under questioning Sneed confessed, but claimed that Glossip had masterminded the killing.

There was scant evidence of Glossip’s involvement, but an Oklahoma jury still found him guilty, based largely on Sneed’s testimony. In exchange for that testimony, Sneed got a life sentence, while Glossip went to death row.

An appeals court tossed out the verdict, saying Glossip’s lawyers hadn’t done a good enough job. When the case went back to trial in June 2004, it ended with the same result.

In 2015, Glossip came within hours of execution before the governor called it off over a controversy involving the state’s death drugs. Since then, his case has continued attracting celebrity attention, and his lawyers say they’ve found more witnesses who could help prove their client’s innocence. Right now, they’re fighting to get access to files the district attorney’s office is refusing to turn over, but that Glossip’s team says could hold the key to proving his innocence.

A few years ago, conservative business owner Justin Jackson watched “Killing Richard Glossip,” a four-part series on Investigation Discovery, the true crime television network, and couldn’t stop thinking about it. Jackson is friends with Oklahoma Gov. Kevin Stitt, and while the two were hunting deer, he voiced his concerns. Eventually, he cold-called Glossip’s lawyer and offered his help, and started talking about the case to friends in the legislature, including McDugle.

One of McDugle’s bills would require prosecutors to share materials with defense lawyers. (Around the country, prosecutors frequently tangle with the defense over what they must share.) Another bill would allow the parole board to create a Conviction Integrity Review Unit to study innocence claims (usually these are housed in county-level prosecutor offices, although Michigan and Pennsylvania have statewide units.) The third would create a “Prosecutor Conduct Review Panel,” which would decide what evidence is potentially favorable and must be given to the defense. (Currently, prosecutors get to decide.)

McDugle failed to get these bills out of legislative committees and blamed prosecutors for undermining his efforts. He will continue to push the proposals next year but also knows it may be too late. He plans to lobby the state’s parole board directly to study the Glossip case and recommend that Stitt free him from death row. McDugle has also been swayed to advocate for a Black man on death row who maintains his innocence, Julius Jones.

Some opponents of the death penalty hope these bills will eventually bring legislators like McDugle to the conclusion that capital punishment is broken beyond repair.

“It’s easier to start naming specific policies you don’t like before getting to ‘throw the whole thing out,’” said Laura Porter, executive director of the 8th Amendment Project, which works on anti-death penalty legislation across the country. “I’ve seen that growth from an individual issue, or case, to ‘OK, I’m done with it.”

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PA Report: Prosecutorial misconduct undermines justice system

 Prosecutorial misconduct undermines the legitimacy of the justice system, says the Quattrone Center for the Fair Administration of Justice, reported The Crime Report.

While a number of states have adopted measures to address instances where prosecutors fail to provide timely evidence that could prevent the conviction of innocent individuals or neglect other rules of procedure, the aberrant conduct is largely “invisible” to public scrutiny in most jurisdictions across the country, said the Center in a new report.

“American citizens lack the ability to make even the most cursory inquiry into whether their prosecutors operate within the rules,” the report asserted.

Researchers at the Quattrone Center, based at the University of Pennsylvania Carey Law School, created what they said was a unique dataset of 4,644 opinions in which allegations of misconduct were raised in the more than 1.5 million judicial opinions published between 2000 and 2016 by federal and state courts in Pennsylvania.

They identified 7,207 separate claims of prosecutorial misconduct over that 17-year period. Courts failed to address 1,774 of those claims. In the remaining 5,432, misconduct was found in just 204 cases―or less than 4 percent.

But the apparent low figure, they suggested, was “almost certainly a substantial undercount.”

And, they argued, there is little reason to suggest that Pennsylvania was atypical.

“We have found no jurisdiction in the United States that regularly assembles and publishes information about how frequently allegations of prosecutorial misconduct are made, how often they are upheld, and what actions are taken when misconduct has been identified,” the report said.

“Without such basic information, communities are left with vague reassurances that misconduct is rare; that when it occurs, it is rapidly identified and addressed; and that no additional oversight or accountability measures are needed to improve the criminal justice system and ensure that good prosecutors will continue to serve our system, while bad prosecutors are weeded out.”

One likely reason for the undercount is that the cases examined in their database only corresponded to cases which went to trial.

The majority of Pennsylvania criminal cases are resolved through pretrial bargaining—when prosecutors strike deals with defendants to lower sentences in response to a guilty plea. Allegations of misconduct during the pretrial period never appear in final opinions.

“What became clear during our review is that the true extent of prosecutorial misconduct eludes a full analysis due to a number of systemic factors keeping such incidents from scrutiny,” said the report.

The 85-page report, entitled “Hidden Hazards: Prosecutorial Misconduct Claims in Pennsylvania, 2000-2016,” recommended ten steps that Pennsylvania legislators and judicial bodies could take both to develop a more comprehensive database on prosecutor misconduct, and to hold prosecutors accountable for “intentional” and “unintentional” courtroom mistakes.

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Lawyers say Arkansas man executed four years ago was innocent

Four years after the execution of an Arkansas death row inmate, new information shows the DNA of another man found on the murder weapon, reported Fox 16 News in Little Rock, Arkansas.

Ledell Lee was executed in 2017 for the murder of his Jacksonville neighbor, Debra Reese, in 1993, and up until his execution, he maintained his innocence.

The Innocence Project and ACLU filed a complaint last year on behalf of Lee’s sister, Patricia Young, asking for the city of Jacksonville to release evidence under the Freedom of Information Act.

“Lee always insisted that he did not commit this crime and that he was innocent. We just want to know the truth,” Young said in a press conference last year.

The Jacksonville City Council voted to release the evidence in Lee’s case in January of 2020. The murder weapon, a bloody wooden billy club, and a bloody t-shirt were among the evidence tested for DNA.

According to a report from the Innocence Project and ACLU, DNA from an unknown man who is not Ledell Lee was found on the handle of the club. That same DNA was also found on the bloody white shirt wrapped around the club.

Five fingerprints taken from the crime scene were also tested. None belonged to Lee.

The unknown male profile has been entered into the national DNA database, but there has been no match.

The case remains open due to the possibility of a future database ‘hit’ to the unknown male DNA or unknown fingerprints from the crime scene.

FOX 16 News did reach out to the city of Jacksonville and did not hear back.

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Virginia on the verge of outlawing death penalty

 Virginia, a state that has executed more prisoners than any other in the country, appears poised to eliminate the death penalty — a seismic shift for the state legislature, which just five years ago looked to the electric chair and secret pharmaceutical deals to keep the ultimate punishment alive, reported the Washington Post.

The former capital of the Confederacy would become the first Southern state to abolish capital punishment if a bill on track to pass the Senate gets out of the House and over to the desk of Gov. Ralph Northam (D), who has promised to sign it.

A ban in Virginia could help sweep in change across the South, according to experts who say racial disparities in the death penalty’s application have roots in the region’s history of slavery and Jim Crow segregation.

“Just as Confederate monuments are being dismantled, this vestige of Confederate law is also facing dismantling,” said Robert Dunham, executive director of the Death Penalty Information Center. “That historical context is a central part of the repeal. And repeal offers a real opportunity for racial healing.”

As recently as last year, as Democrats took full control in Richmond for the first time in a generation and ushered in vast changes on many fronts, efforts to ban or restrict the death penalty sputtered.

Bills to ban execution failed. A more modest effort, to prohibit it in cases of severe mental illness, cleared the Senate with hefty bipartisan support. But a House subcommittee led by a Democratic prosecutor let that and other death penalty bills die without a hearing.

This year, with the outgoing governor making abolition a priority, the same prosecutor, Del. Michael P. Mullin (D-Newport News), is sponsoring a bill to scrap capital punishment entirely.

 “I think the prospects are excellent that we’re going to end the death penalty in 2021,” said Mullin, a criminal prosecutor for the city of Hampton who heads the subcommittee that hears proposals to change the criminal code.

Mullin’s bill has not advanced yet, but a version sponsored by Sen. Scott Surovell (D-Fairfax) has cleared one Senate committee and is expected to pass a second, which will review its fiscal impact. The measure appears to have the votes to pass the full Senate.

While Mullin credits Northam’s leadership for the change, death penalty experts say Virginia’s effort dovetails with a national shift away from executions, in both law and practice.

Advances in DNA technology, which have exposed 174 wrongful death row convictions since 1973, have prompted some states to ban the practice over time. More recently, remaining death penalty states have struggled to carry out executions because of a scarcity of lethal injection drugs.

The abolition movement has taken hold in Virginia amid calls for racial justice. Nationally, non-Whites account for a disproportionate 55 percent of inmates on death row, according to the American Civil Liberties Union.

Video of George Floyd, an unarmed Black man, dying under the knee of a White police officer in Minneapolis in May led to protests and criminal justice overhauls in Virginia and across the nation. Images of mostly White supporters of President Donald Trump storming the Capitol this month with limited pushback from police illustrated, for some, how racial bias warps the administration of justice.

Those events could boost the repeal efforts in Virginia, as well as the broader criminal justice overhaul that Democrats began in a summertime special session and continue to push in the regular session that began this month. But a handful of other bills could cost Democrats some GOP support.

Sen. William M. Stanley (R-Franklin), a longtime execution foe, signed on as a chief co-sponsor of Surovell’s bill and voted for it in committee Monday. But Stanley said he will yank his support if the legislature votes to eliminate mandatory minimum sentences. He wants the death penalty to go away, but only if the worst offenders receive mandatory life sentences, with no chance for parole.

 “If there’s somebody who murders multiple people or a cop, they should never see the light of day,” he said. “You can say, ‘Life without parole,’ and then [with] no mandatory minimum, it defeats the whole purpose.”

If the Democrats who control the House and Senate stick together, they do not need GOP votes to abolish the death penalty. But Democrats might benefit politically from a bipartisan vote, since that would make it harder for Republicans, who have leaned heavily on law-and-order issues in this year’s gubernatorial race, to use abolition to paint them as soft on crime.

Last year, the 28 states that have the death penalty carried out a combined 17 executions, a 37-year low. That drop was attributed in part to the coronavirus pandemic, as officials deemed executions a health risk for those involved. But the pace had been slowing even before the health crisis, in large part due to the unavailability of lethal injection drugs.

At the same time, the Trump administration went in the opposite direction, resuming federal executions after a 17-year pause. In Trump’s final six months, the federal government carried out 13.

The death penalty has had a strong connection to the commonwealth’s history of racial injustice. State law used to differentiate capital and non-capital crimes based on the race of the perpetrator and the race of the victim. Once that discrimination was declared unconstitutional, it persisted in practice due to the discretion afforded all-White juries, said Dunham, of the Death Penalty Information Center.

From 1900 to 1969, he said, Virginia did not execute a single White person for any offense that did not result in death, while 73 Black men were executed for rape, attempted rape or robbery.

State Sen. Scott Surovell (D-Fairfax) believes his bill to eliminate the death penalty in Virginia has enough support to pass the state Senate. (Bob Brown/AP)

Those disparities persist, Surovell said.

“You’re more likely to get charged with a capital crime and found guilty of one if you’re a minority, suffer from mental illness, you’re low-income, you’ve got diminished intellectual capacity, or if you kill a White person and you’re not White,” he said.

Surovell said that with the death penalty still on the books, Virginia is “out of step with the rest of the world.”

“The countries that are still utilizing this punishment are places like Pakistan, Saudi Arabia, Egypt, China and, for a while, [the Islamic State],” he said. “Most Western industrialized democracies have moved on.”

Colorado eliminated the death penalty last year, becoming the 22nd state to do so. The trend has been spreading toward Virginia, from New England down the Atlantic Coast to Delaware and neighboring Washington, D.C., and Maryland, which abolished the death penalty in 2013. But until recently, Virginia lawmakers seemed content to buck it.

The Republicans who controlled the state House and Senate in 2016 passed a bill that would make the electric chair Virginia’s default method of execution. Under the law then, as now, condemned inmates can choose the method of execution: lethal injection or the chair. (The last inmate to pick electrocution in Virginia was Robert Gleason Jr. in 2013.)

In 2016, execution drugs had become scarce, with pharmaceutical companies pressured by death penalty foes to stop selling them. The bill would have let the state use the electric chair when it could not obtain the drugs. When it got to the desk of then-Gov. Terry McAuliffe, the Democrat called it “reprehensible” and gutted the bill, but in a way that allowed the state to carry on with executions by specially ordering execution drugs from compounding pharmacies. The pharmacies’ identities were to be kept secret to shield them from political pressure.

The plan was controversial not only among death penalty opponents but also among right- and left-wing critics of government secrecy. But it passed with help from conservative Democrats and became law.

Newly empowered Democrats repealed that law last year. But that was the only action they took on the death penalty over the course of a 65-day regular session and a marathon 84-day special session called, in part, to address racial injustice.

As the once solidly conservative state has become more urbanized, racially diverse and socially liberal, opposition to capital punishment has shifted from a political liability to a potential asset. McAuliffe won the governor’s race in 2013 on a promise to uphold executions as a matter of state law, despite his personal opposition as a Catholic. This year, he and every other Democrat running for governor are calling for abolition of the death penalty.

The shift against the death penalty has not been welcomed by law enforcement groups. Wayne Huggins, executive director of the Virginia State Police Association, said repealing the death penalty would be an insult to the families of slain officers, particularly if paired with bills to reinstate parole and eliminate mandatory minimums.

“From our perspective, it’s injustice,” Huggins, who testified against the bill Monday, said later in an interview. “It sends a terrible message to society in general and the law enforcement community in particular.”

But some of the state’s prosecutors, who have traditionally sided with law enforcement on the death penalty, have lined up this year in favor of repeal.

Attorney General Mark R. Herring (D), who as a state senator in 2007 also voted for the “triggerman” expansion, is advocating repeal as he seeks a third term this year. Surovell’s bill also has support from about a dozen of the state’s commonwealth’s attorneys, who last summer formed the group Virginia Progressive Prosecutors for Justice and represent 40 percent of the state’s population.

In some ways, the political shifts are only catching up with public sentiment. A November 2019 Gallup poll found that for the first time in 34 years, a majority of Americans said life imprisonment with no possibility of parole was a better punishment for murder than the death penalty.

No jury in Virginia has imposed a death sentence since 2011. The state has not executed anyone since 2017, when it put two people to death.

Senate Majority Leader Richard L. Saslaw (D-Fairfax), a longtime death penalty supporter, still backs its use for mass murderers. But he had no reservations about voting for Surovell’s bill in committee Monday because the death penalty is effectively all but gone in Virginia anyway.

“There’s only two people on death row; juries are just not handing out the sentences anymore,” he said. “That option’s not there right now.”

Sen. Chap Petersen (D-Fairfax City) first won election to the legislature 20 years ago, as a wave of sniper shootings had terrorized the Washington region — crimes that led him to believe “there are times when the death penalty can be an option.”

Yet he, too, voted for Surovell’s bill in committee. Petersen said he got on board with abolition this year not because of any shift in his personal beliefs, but because he knows that’s what his changing Northern Virginia district clearly wants.

“I don’t change my opinion on a lot of issues,” he said. “But on that one, I bowed to an emerging social consensus.”

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Report finds 54% of exonerations the result of official misconduct

Official misconduct contributed to the false criminal convictions of more than half of innocent people who were later exonerated—54 percent—according to a press release touting a comprehensive report released by the National Registry of Exonerations, of the University of California Irvine Newkirk Center for Science & Society. 

As calls to reimagine the nation’s criminal justice system grow, these new data underscore the need for more discipline and professionalism by police and prosecutors. 

This report is by far the most thorough study ever of official misconduct by police, prosecutors and others in criminal cases in the United States. It is the only such study based on a comprehensive database of cases of wrongly convicted defendants: the first 2,400 exonerations recorded in the National Registry of Exonerations. 

Prosecutors and police officers committed misconduct at comparable rates: prosecutors in 30 percent of exonerations, police in 34 percent. (Except in federal cases, where misconduct by prosecutors was two-and-a-half times as common as misconduct by police—especially among federal white collar crime exonerations, where it’s more than seven times as common.) 

The Report details the different types of misconduct that are committed at successive stages of criminal cases, from initial suspicion through conviction:  

Witness Tampering, which leads to false accusations, mistaken identifications and other false evidence.

Misconduct in Interrogations, which produces false confessions.

Fabricating Evidence, including forensic fraud, and planting drugs on innocent people.

Concealing Exculpatory Evidence that could clear the defendant, which occurred in 44% of cases, more than any other form of misconduct.

 Misconduct at Trial, including perjury by police and lying by prosecutors. 

“Official misconduct damages truth-seeking by our criminal justice system and undermines public confidence. It steals years—sometimes decades—from the lives of innocent people. The great majority of wrongful convictions are never discovered, so the scope of the problem is much greater than these numbers show,” said University of Michigan Law Professor Emeritus Samuel Gross, the lead author of the report and Senior Editor of the National Registry of Exonerations. 

Overall, exonerated Black defendants were slightly more likely than white defendants to be victims of official misconduct—57 to 52 percent.  That difference, however, is much larger for drug crimes, 47 to 22 percent; and for murder cases, 78 to 64 percent—especially those with death sentences, 87 to 68 percent. In 2017, the National Registry of Exonerations released a study of the role of race in wrongful convictions and found that innocent Black people were more likely to be wrongfully convicted than whites and spent more time in prison before being exonerated, among other findings. 

There’s no one remedy for official misconduct in criminal cases because it’s not one problem but many. The report recommends new procedural rules, such as recording all interrogations and lineups, that would improve evidence gathering generally and also reduce misconduct. “Most of the rules we need are in place. We need enforcement—but also adequate resources to do a good job, supervision, and especially leadership. We need to change entrenched work cultures,” said Professor Gross. 

Most exonerations happen many years after conviction, so it’s too early to tell from these data whether there’s been an overall change in the rate of official misconduct over the last two decades (except for Federal white collar prosecutions, where misconduct has clearly increased). But there have been decreases in a few specific types of misconduct, including violence in interrogations and forensic fraud. 

To read the full report CLICK HERE

The National Registry of Exonerations is a joint project of the University of California Irvine Newkirk Center for Science & Society, the University of Michigan Law School, and the Michigan State University College of Law. It provides detailed information about every known exoneration in the United States since 1989—cases in which a person was wrongly convicted of a crime and later cleared of all the charges based on new evidence of innocence.

 

Misconduct by Police, Prosecutors, and other Government Officials Continues to Drive Majority of Wrongful Convictions, Report Shows

In 2019, the National Registry of Exonerations recorded 143 exonerations, setting a record for the number of years lost to prison for crimes exonerees did not commit. Collectively, innocent people who were exonerated last year spent 1,908 years incarcerated, an average of 13.3 years lost per exoneree. Official misconduct by police, prosecutors, or other government actors accounted for at least 93 exonerations in 2019. Seventy-six defendants were exonerated of homicide. 

“Right now, there are likely thousands of innocent people in U.S. jails and prisons as a result of wrongful convictions. It is hard to imagine the horror of being incarcerated today -- innocent or guilty -- as the COVID-19 virus is spreading through these closed spaces and threatening lives,” said Barbara O’Brien, the report’s author, who is a law professor at Michigan State University and the editor of the National Registry of Exonerations.

Illinois had the most exonerations in 2019 with 30, followed by Pennsylvania (15), Texas (15), New York (11), Michigan (9), and California (7). The main reason for the high number of exonerations in Illinois was the continuing fallout from a scandal involving police officers who planted drugs on people who refused to pay them.  

The 2019 report shows that, when faced with the power of the state, wrongly accused defendants can succumb to coercion, fear, and exhaustion and wind up behind bars, even though they are innocent. Last year, 24 exonerations involved false confessions. Thirty-four exonerations were for convictions based on guilty pleas. Fifty exonerations were for convictions in which no crime was committed, such as drug prosecutions for substances that were not illegal drugs.

County prosecutors and state attorneys general continue to open Conviction Integrity Units -- divisions of prosecutors’ offices that are dedicated to preventing, identifying, and remedying false convictions -- at a fast rate. As of the date of publication, there are 60 CIUs in operation. The 2019 report records 14 new offices that opened in 2019, as well as a newly noted CIU in Alameda County, California. The locations of the new CIUs include Contra Costa County, California; Broward County (Fort Lauderdale), Florida; Fulton County (Atlanta), Georgia; and St. Louis County, Missouri. New Jersey and Michigan opened statewide CIUs in 2019 and Pennsylvania opened a statewide CIU in 2020.

The most common form of official misconduct documented in the Registry involves police or prosecutors concealing evidence that points to the defendant’s innocence. For example, Charles Finch was sentenced to death in 1976 and was exonerated in 2019 after spending almost 43 years in prison in North Carolina for a murder he did not commit. At trial, the prosecution presented testimony that pellets from a shotgun found in Mr. Finch’s car were “just like” pellets found in the victim’s body. The prosecution failed to disclose that the North Carolina State Bureau of Investigation had examined the pellets and was unable to find sufficient similarities. Decades later, attorneys at the Wrongful Conviction Clinic at Duke University School of Law obtained the ballistics report and other evidence that had never been disclosed to Mr. Finch or his attorneys. When he was released last year, Mr. Finch, at 81 years old and using a wheelchair, said, “I’m just glad to be free. I feel good.”

This summer, the Registry will launch a new section of exonerationregistry.org to document “group exonerations.” Group exonerations involve a pattern of misconduct by official actors; most often, it is police officers who repeatedly and systematically frame innocent defendants. The study of group exonerations is important for uncovering instances and patterns of official misconduct and preventing it in the future.

Read the report “Exonerations in 2019” at http://bit.ly/ExonsIn2019

AG Shapiro creates statewide Conviction Integrity Unit

Pennsylvania Attorney General Josh Shapiro has announced the creation of a new, statewide office that will offer justice to people wrongfully convicted of crimes, reported the Pennsylvania Capital-Star. 

The new Conviction Integrity Unit will work with local law enforcement officials and prosecutors — especially in small counties — to reevaluate cases that ended with dubious convictions. 

Investigators will also “pursue corrections” for individuals who were wrongfully or unfairly convicted, according to the Attorney General’s website.

“We’re striving for justice, not for cases we’re dealing with today and tomorrow, but the cases we dealt with yesterday,” Shapiro said in a video announcement released Wednesday.

Shapiro has appointed Lisa Lazzari-Strasiser, the former elected district attorney of Somerset County, and a one-time public defender, to lead the new unit.

Shapiro said Lazzari-Strasiser brings “unique experience serving in a system we both agree is in need of reform.”

Conviction integrity units have proliferated in recent years amid a nationwide effort to reduce prison populations and redress past wrongs of the criminal justice system. They’re a popular tool among a crop of recently elected progressive prosecutors, who want to use their offices to reduce incarceration. 

The only other Conviction Integrity Unit in Pennsylvania, founded in 2014 in Philadelphia, has exonerated 13 defendants, according to a database maintained by the National Registry of Exonerations at the University of Michigan School of Law. 

Most conviction integrity units are located in county prosecutors offices. Only two other states — New Jersey and Michigan — run such offices at the state level, data from the registry show.

Barbara O’Brien, editor of the National Registry of Exonerations, said it’s “too early to tell” if statewide units are more effective than those run by counties. 

But she said a statewide model does provide a measure of objectivity, which can be difficult for county prosecutors to match when they’re asked to examine the work of their colleagues or predecessors. 

“You get a little removal from the people who made the original decisions,” O’Brien said. “The independence of the office is incredibly important.”

Shapiro’s new initiative will require the cooperation of Pennsylvania’s county district attorneys, who prosecute the vast majority of criminal cases in the Commonwealth.

But a spokeswoman for that group said Wednesday that they didn’t have much information about the new unit beyond what Shapiro announced publicly on Wednesday.

Lindsay Vaughn, executive director of the Pennsylvania District Attorneys Association, said Lazzari-Strasiser is scheduled to meet with members of the statewide group later this week. 

At that point, Vaughn said, “we expect to begin to hear more details and formally start the conversation on what the unit is, how it will work, what our role will be, and the complex jurisdictional issues it presents.”

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