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Posted 12/7/10

DEAD MAN WALKING

Kevin Cooper has had his appeals.  Guilty or not, he will soon meet his maker.

     For Police Issues by Julius (Jay) Wachtel.  During the late evening hours of June 4, 1983 one or more persons slipped into a suburban Southern California home and brutally hacked to death a man, his wife, their ten-year old daughter and an eleven-year old neighbor boy who was spending the night.  The couple’s eight-year old son was grievously injured but survived.

     A hatchet used in the brutal killings was located nearby.  One week later the victims’ station wagon was found abandoned in another city.

     It took police only hours to identify the suspect.  Two days earlier Kevin Cooper, an inmate doing time for burglary, had walked away from a nearby prison.  Cooper had previously spent time in a mental institution and had also kidnapped and raped a teenager.  Seven weeks later police in a coastal community ran across Cooper while investigating another rape.  He had traveled to Mexico and was working on a sailboat.

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     Cooper denied killing anyone.  But the evidence against him was compelling.  A blanket with his semen was found in a vacant home only yards from the victims’ house.  He had used a telephone there to ask friends for money.  Officers at the murder scene found a drop of blood on a wall.  They also seized a blanket that was later found to bear a bloody shoe print.  DNA was not yet in use, but a criminalist testified that in both instances the blood residue was consistent with Cooper’s blood type.

     Not everything pointed to Cooper.  Four days after the crime a local woman turned over a pair of bloody coveralls that she said her ex-boyfriend, convicted killer Lee Furrow, left behind at her home on the evening of the murders.  Police considered her a “scorned woman” and destroyed the coveralls without having them tested.  Furrow was interviewed and denied everything.

     The survivor’s initial comments suggested that there were three assailants.  A cop who accompanied him to the hospital said the boy indicated through hand-squeezes that three white men were responsible (Cooper is black.)  The child later told a psychiatrist it was actually “three Mexicans.”  Another officer reported that the boy said it wasn’t Cooper when his face was displayed on TV.  A vehicle resembling the station wagon was seen leaving the area of the crime.  It had three or four passengers.  And so on.

     Prosecutors vigorously challenged all explanations inconsistent with guilt.  After all, Cooper was a violent man and a prison escapee; he was also in the area during the period when the killings occurred.  It took five days and many ballots, but jurors ultimately convicted.  The California Supreme Court turned Cooper away in 1991.  Federal appeals were to little avail, and the U.S. Supreme Court declined to hear his case late last year.

     Cooper is a dead man walking.

     Actually, he would have been executed six years ago but for a last-minute reprieve by the Ninth Circuit, which ruled that prosecutors had violated Brady by failing to turn over a potentially exculpatory statement.  (This was Cooper’s second go-round with the Ninth Circuit.  His first appeal was rejected out of hand.)

     Justices ordered a District Court review.  By then DNA tests had been run on the blood drop on the wall, on a bloody t-shirt found near the scene, and on the blanket.  Each positively identified Cooper as the donor.

     Predictably, in 2005 a District Court judge gave Cooper a big thumbs-down.  Back at the Ninth, a three-judge panel concurred.  Disturbed by the many defects in the investigation, a justice asked that the Circuit hear the case en banc.  They put it to a vote and a majority said no.  So the justice wrote an exhaustive, bitter dissent in which three colleagues joined.  Its opening sentence, “The State of California may be about to execute an innocent man,” set the tone.  Here are some of his points:

• At the trial a criminalist conceded that he changed his initial conclusion about the wall blood when he discovered that it excluded Cooper as a donor.  (He explained it as an innocent mistake.)
   
• Internal lab records indicate that the wall blood was exhausted through other procedures well before DNA testing in 2002 linked it to Cooper.  Curiously, the vial was checked out in 1998 for one day.  Was it purposely replenished with a sample of Cooper’s blood?
   
• Lee Furrow’s bloody coveralls weren’t destroyed as a matter of routine but on orders of a police supervisor who knew that they were potential evidence in a notorious murder case.
   
• Analysis of bloodstains on the t-shirt and blanket indicated contamination by EDTA, a preservative that’s added to blood evidence prior to storage.  Were these stains planted by police?
   
• A detective admitted that he disregarded the multiple suspects/“three Mexicans” theory because he was convinced of Cooper’s guilt from the very start.  Police reports distorted the eight-year old’s initial statements to make it seem that only one attacker was involved.  That carried into the trial, where prosecutors implied that the youth had been confused.
   
• At the end of the 2005 District Court hearing, the survivor, then 30, gave a long statement blaming Cooper alone.  Defense lawyers were precluded from asking why he changed his mind.

     Naturally, the prevailing justices didn’t take the scolding lying down:

The dissent improperly marshals the facts in the light most favorable to Kevin Cooper, yet the evidence was resolved against Cooper at trial – after he took the stand and testified – and at each step of post-conviction proceedings.  The dissent also approaches the issues as if they were new, yet the same issues have been on the table since day one (except for DNA testing which didn’t exist at the time and which has turned out to be inculpatory).

     Dissenters were also criticized for ignoring the constraints imposed by the AEDPA.  Among other things, it requires that Federal judges accept factual determinations made by state courts unless there is clear and convincing evidence to the contrary.  In other words, if the state didn’t think evidence was planted, who are the Feds to disagree?  The nay-saying justices were also challenged to name the “real” killer, if not Cooper:

In asserting that “[t]he State of California may be about to execute an innocent man,” the dissent neglects to acknowledge the evidence tying Cooper to the murders, or the fact that, after all the testing that has been done post-conviction, no forensic evidence suggests that anyone else was at the scene of the crime or was the killer.

That’s logical.  Furrow’s coveralls were destroyed.  Since they can’t be examined, he can’t be the killer.  Catch-22!

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     Furrow casts a long shadow over the case.  Six years ago five concerned members of Cooper’s jury sent California Governor Schwarzenegger a letter bringing up some of the same issues raised in the Ninth Circuit.  Here’s what one wrote:  “I am bothered to know that a convicted murderer who years before had dismembered his female victim was near the scene at the time, that his hatchet was missing and that his girlfriend called police and turned in his bloody coveralls.”

     Had she and the others read the dissenting opinion before casting their votes things might have turned out differently.  Unfortunately, the dissent wouldn’t come for twenty years, and as we know time travel is impossible.

     Alas, so is taking back an execution.

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DOJ: Texas Executed an Innocent Man     House of Cards     Tinkering With the Machinery of Death

DOJ: TEXAS EXECUTED AN INNOCENT MAN

Before a national audience, experts confirm what was long suspected

     For Police Issues by Julius (Jay) Wachtel.  “It was a crock.”  That’s how renowned fire expert John Lentini characterized the official investigation of a 1991 Corsicana house fire that killed three girls and led to their father’s execution thirteen years later.

     In “Rising from the Ashes – What We Have Learned from the Cameron Todd Willingham Case,” the opening plenary panel of the 2010 conference of the National Institute of Justice, the author of Scientific Protocols for Fire Investigation ripped claims by Texas authorities that the fire had been deliberately set.  According to Lentini burn patterns on the floor and crazed windows weren’t the products of a super-hot fire fed by accelerants, as a fire marshal testified, but occurred naturally, the first when the premises became fully engulfed in a natural phenomenon known as “flashover,” and the latter as firefighters sprayed water on hot glass.

     Lentini wasn’t the only expert to suggest the fire was accidental.  Well before Willingham’s execution, Dr. Gerald Hurst, a Cambridge-trained chemist known for debunking arson myths, said so in a report that Texas Governor Rick Perry regrettably chose to ignore.  Several months after Willingham was put to death the Chicago Tribune asked Hurst, Lentini and other experts to review Dr. Hurst’s findings.  They did, and concurred.  And that wasn’t the end of it.  Two years later a comprehensive report by a distinguished panel of experts (including Lentini) confirmed it all over again.  It wasn’t arson.  Just like Cameron Willingham had insisted, he was an innocent man.

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     Willingham isn’t the only victim of Texas forensic “science.”  Eight months after the lethal cocktail coursed through his veins another death-row inmate, Ernest Ray Willis was exonerated when a prosecutor concluded that experts who testified that he deliberately set the fire that killed two women relied on faulty science – the same faulty science that was responsible for Willingham’s execution.

     Fears that Texas forensic “experts” were out of control led legislators to pass a bill in May 2005.  Signed by Governor Rick Perry, it created a new entity, the Texas Forensic Science Commission, and charged it with regulating the practice of forensic science in the Lone Star state.  In 2008, after three years of organizing, the commission announced it would conduct public hearings into the Willis and Willingham cases.  But in fall 2009, just as the inquiry was getting under way, Governor Perry abruptly removed three commissioners, stalling the inquiry for the foreseeable future.  Some accused Perry of trying to avoid embarrassment.  But his decision nonetheless stands.

     Arson prosecutions require physical evidence that fires are of incendiary (i.e., purposeful) origin.  There must also be proof that someone set the blaze.  In Willingham the “who” came from a seedy jailhouse informer who testified that Willingham admitted his guilt.  David Grann, whose September 2009 piece in The New Yorker, “Trial by Fire,” exhaustively debunked the charges against Willingham, spoke at the conference.  Among other things Grann said that when he interviewed the stoolie the man asked whether he could still be prosecuted for perjury.

     Other speakers in “Rising From the Ashes” included Itiel Dror, a cognitive neuroscientist who criticized the failure to keep detectives, witnesses and experts from influencing each other, and Dallas County assistant D.A. Mike Ware, who accused Governor Perry of “[jerking] the rug out from under the forensic science commission.”  (Dallas County, which formed a Conviction Integrity Unit to rectify and prevent miscarriages of justice, was never involved in the Willingham case.)  But it was the moderator’s comments that proved the most telling.  Introducing the panel, Deputy Assistant Attorney General Mary Lou Leary described its purpose as an attempt “to help us learn from our mistakes.”

     Mistake?  Willingham’s conviction was an abomination.  Think that’s too harsh?  Consider what one of the fire marshals who worked on the case said years later:

“At the time of the Corsicana fire, we were still testifying to things that aren't accurate
today. They were true then, but they aren't now...Hurst [Dr. Gerald Hurst] was pretty
much right on...We know now not to make those same assumptions.” (p. 42)

     Of course, given the circumstances it’s impossible to be as confident in Willingham’s innocence as in a DNA exoneration, where the genetic profile of the real perpetrator is there for everyone to see.  Yet if absolute certainty isn’t required to convict (it’s not) it’s hardly fair to demand irrefutable proof of innocence.  If Texas prosecutors knew then what they know now Willingham would never have been charged, let alone taken to trial.  A posthumous pardon, such as Governor Perry granted to Timothy Cole, a wrongfully convicted man who died in prison, seems well in order.

     During the next weeks we’ll post more reactions to the 2010 NIJ conference.  Meanwhile let’s make a couple of observations.  Once again the pressing issue of officer misconduct was virtually ignored.  About as close as we got were remarks by University of Maryland professor Charles Wellford, co-chair of IACP’s Research Advisory Committee, who bemoaned that police leadership and management issues draw little research attention.  As to that we can only add, Amen!

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     Police body armor also continues to get short shrift.  We came away with the impression that protecting patrol officers from rifle rounds isn’t a priority; indeed, our suggestion for a “Marshall Plan” to develop wearable vests that resist high-velocity projectiles drew puzzled looks.  If there’s a light at the end of this tunnel, we can’t see it.  (Check below for related postings).

     More on these and other issues after we recover from jet lag.  See you next week!

UPDATES

7/2/21  Prompted by the prior Administration’s use of the death penalty - it carried out “the first federal executions in nearly two decades” - Attorney General Merrick Garland declared a “moratorium” on Federal executions. He will assess concerns that the death penalty is applied arbitrarily, discriminates against minorities, and, given the “troubling number of exonerations,” threatens to put innocents to death. Pentobarbital, the new Federal drug used for executions, will be reviewed to determine if it causes “unnecessary pain and suffering.”

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Accidentally on Purpose     People do Forensics     Better Late Than Never II

Wrongful and Indefensible     Did Georgia Execute an Innocent Man? I     Dead Man Walking

House of Cards     Forensics Under the Gun     Ignorance is Not Bliss

DNA’s Dandy, But What About Body Armor?     Bigger Guns Aren’t Enough

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Texas Forensic Science Commission on the Willingham case

BABY STEPS AREN’T ENOUGH

Protections against miscarriages of justice must be embedded within the system

     For Police Issues by Julius (Jay) Wachtel.  Must someone be factually guilty to be convicted of a crime?  If you’re a criminal justice major or law student, you know the answer: of course not!  All that’s necessary is to convince jurors that guilt is evident beyond a reasonable doubt.  Once the State meets that threshold, the rules change.  In the interests of “finality” – not having to endlessly re-litigate judgments – those convicted by plea or at trial can’t simply reargue the facts.  To get a second bite of the apple they must demonstrate that their Constitutional rights were severely trampled or find new facts – so-called “newly discovered evidence” – that conclusively demonstrate their innocence.

     That’s tough to do from a prison cell.  Most inmates don’t have the resources to rub two nickels together, so hiring lawyers and private investigators is out of reach.  But for the “lucky” few there is a way.  Since 1989, the Innocence Project has helped exonerate two-hundred fifty-one persons who were convicted of a crime, often rape, where sufficient perpetrator DNA was left behind to prove their innocence.

Click here for the complete collection of wrongful conviction essays

     As the number of documented wrongful convictions continues to climb, most States (but not the Supreme Court) have grudgingly conceded prisoners the right to send potentially exculpating biological evidence to a lab – at their own expense, of course.  But what if there’s nothing to test?  As we pointed out in an earlier post, absent a miracle (ex-cop Jeffrey Hornoff was in the sixth year of a life term when the real, conscience-stricken killer turned himself in) few are cleared without DNA.  State innocence projects are swamped and short-staffed, and given the time-consuming complexities of attacking circumstantial and testimonial evidence they must carefully choose which non-DNA cases to pursue.  Even when there is substantial evidence of innocence progress is agonizingly slow.  (For example, check out the never-ending saga of the West Memphis Three, now in its sixteenth year.)

     It’s not only the wrongfully convicted who benefit when mistaken convictions are made right; after all, for each innocent person rotting away in prison a guilty man or woman remains free.  Yet criminal justice agencies have resisted the notion that safeguarding the integrity of the process is as important as gaining convictions.  Happily, there have been a few exceptions:

• In August 2009 a Federal magistrate reviewed the evidence against Bruce Lisker, a Los Angeles man who had been in prison for twenty-six years for allegedly killing his mother.   After more than a decade of startling revelations, meticulously chronicled in 2005 by the Los Angeles Times, it seemed obvious to everyone but prosecutors that the case should have never been brought in the first place. 
  
  Unfortunately, the person most likely to be the murderer had committed suicide years earlier.  Recognizing Lisker’s dilemma, the judge called the State’s bluff and set aside the conviction.  Prosecutors grumbled, but in the end decided against a new trial.  Lisker was finally free.  Of course, he’s now suing.
   
• When D.A. Craig Watkins came into office in 2007 he discovered that Dallas County led the nation in exonerations.  Regrettably, prior administrators were apparently more concerned with running up conviction stat’s than with doing justice.  Instead of sticking his head in the sand or going into denial the newly-elected prosecutor formed America’s first (and apparently still the only) “conviction integrity unit.”  Working hand-in-hand with innocence projects, he set out to correct his predecessors’ errors.
  
  In October 2009 Dallas celebrated its twenty-first and twenty-second exonerations, of two men who were wrongfully convicted of a 1997 murder.  Notably, these also happened to be the first two Dallas exonerations where DNA didn’t play a role.
   
• On February 17, 2010 a panel of North Carolina judges reviewed the 1993 murder conviction of Greg Taylor.  Now 47, Taylor had been locked up for twenty-seven years for murder.  Had Taylor been a citizen of any other State he’d be out of luck, as he had exhausted his appeals and there was no DNA.  But in 2006 North Carolina established the nation’s first (so far, only) statewide Innocence Commission, empowering it to act as “an independent and balanced truth-seeking forum for credible claims of innocence.”  A recourse of last resort, the Commission employs a full-time staff of attorneys and investigators who investigate claims of actual innocence.  Those deemed meritorious are referred to a three-judge panel, which makes the final decision.
  
  Since 2007 the Commission has reviewed more than 500 applications and investigated five.  Taylor’s case was only the second to be sent on to the judges.  In their first-ever exoneration, the jurists ruled that Taylor had been convicted on the basis of incorrect physical evidence and witness testimony, including “misinterpreted” behavior by a canine and a lab analyst’s false assertion that blood was found in Taylor’s vehicle.  Taylor was freed.

     For lack of a suitable example we left out the police, where nearly all miscarriages of justice have their root.  After all, there would be no wrongful convictions without a mistaken arrest.  However, we know of no law enforcement agency that has made a special effort to monitor and review prosecutorial referrals so that innocent persons aren’t needlessly placed at risk.

      When pressed to account for its mistakes, the criminal justice system typically responds by pointing out that very few exonerations take place.  What’s ignored is that there would likely be many more but for the fact that innocence must be proven to a certainty that far surpasses what’s required to convict.  In most cases there’s no DNA.  What’s more, few inmates have the resources to take on the State, and even if they could, discovering compelling new evidence long after the fact may be impossible.

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     Compassionate judges, enlightened D.A.’s and statewide commissions are welcome, but they’re only baby steps.  What’s needed is a formal approach, perhaps patterned after Dallas’ “conviction integrity” model, that embeds active protections against miscarriages of justice within every agency, from police to the courts.  Surely, getting at the truth benefits everyone.  It’s the smart way to fight crime.

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Fewer Can Be Better     Accidentally on Purpose     Is a Case Ever Too “Cold”?     The Tip of the Iceberg

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NPR report on revamp of eyewitness ID procedures     Illinois study on wrongful convictions

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