Oct. 4 TEXAS: Bucking execution trend----8 from county scheduled to die by end of year Perry Haden and Helen O'Sullivan were inseparable friends. Both were widowed, both had grandchildren and both loved to go square-dancing on weekends. They were together when their lives came to an abrupt end on a humid summer night in August 1992, as Haden, 72, was giving O'Sullivan, 63, a ride home on Houston's south side. At a time when the city's homicide total was near a 20-year high, the couple crossed paths with 18-year-old Edward Green III, a crack addict's son with a lengthy juvenile record and a .357 Magnum. Green loomed over the driver's side window at an intersection near Hobby Airport, brandished the gun and told Haden to get out of his Lincoln Continental. When Haden hesitated and expelled a nervous laugh, Green shot him dead. O'Sullivan also was shot. She died hours later at a hospital. "Getting a call in the middle of the night to say that your father's been shot, it was horrific. That's the only word I can use to describe it," Jimmy Haden, of Houston, said recently. Green, who fathered a child with a prison guard during his nearly 12 years on death row, is scheduled for lethal injection on Tuesday in Huntsville. He is 1 of 8 Harris County killers - convicted of unrelated crimes - who are to be executed before the end of the year. Harris County is on track to have 9 of its killers executed this year, the most since 11 were put to death in 1997. Against national trend That appears to be bucking a national trend. Nationwide, the number of executions this year is expected to be 61, a 7-year low. Of the 17 executions that remain scheduled for 2004 nationwide, eight were set by Harris County courts, according to the Death Penalty Information Center. Assistant District Attorney Roe Wilson said there is no particular explanation for the upcoming cluster of Harris County executions. Executions are requested by the district attorney's office and ordered by a judge after inmates exhaust their state and federal appeals. The spate of executions may reflect the cyclical nature of crime in Houston. Many of the inmates set to die this year were locked up in the early 1990s, when crime in Houston - and across the nation - was near an all-time high. A motion was filed last week to delay Green's execution, and possibly all others in Harris County cases, until the Houston Police Department has cataloged evidence from about 8,000 cases that was discovered in mislabeled boxes in August. A judge has not ruled on the motion. Take little pleasure If Green's execution goes forward as planned, family members of Haden and O'Sullivan said they will take little pleasure in the death of their parents' killer. "I'll be glad when its over," said Jimmy Haden, who does not plan to attend the execution. "I'm not going to say I'm glad about the fact it has to be done, but for justice to be served, it truly must." He said his father was a lifelong teetotaler who remained exceptionally healthy into his 70s. A World War II veteran who developed photos taken by U.S. spy planes flying over Germany, he later settled in Houston, where he and his wife raised 3 children. He worked as a master carpenter and taught his craft for years at Houston Community College. Family lost matriarch O'Sullivan spent more than 30 years selling cemetery plots at Forest Park-Lawndale. She had 4 sons, loved local politics and played the role of family matriarch, hosting holiday dinners for her grown sons and 7 grandchildren. "Everybody would gather at my mother's house," said Jimmy O'Sullivan, a building contractor who lives in the Heights. "Since then, everyone has kind of gone their own different ways. There's not really those group get-togethers anymore." During his 12 years on death row, Green said, he has reflected on his violent past and the pain he caused. "It was totally senseless," he said in a recent interview. "Of course, I feel remorseful. There's no word in the English vocabulary to really speak what I feel deep in my heart about this whole situation." Green, whose mother was a crack addict, was 9 years old when his father was murdered, according to court records. In his early teens, he stole cars and raped a 13-year-old girl, records show. He was released from a juvenile detention facility several months before he killed Haden and O'Sullivan. Little memory of crime Shortly before Green and a friend came upon the couple on Aug. 31, 1992, they smoked "fry:" marijuana dipped in PCP-laced embalming fluid, Green said. He has little memory of the murders, he said. "At that time, I didn't have any type of value for human life, not even my own," he said. In 1998, before death row was moved from Huntsville to the Polunsky Unit near Livingston, Green fathered a child with Tameika East, a correctional officer. He married her by proxy a year later, and she was forced to resign. East-Green, 26, now lives in Waller County and often visits her husband with their daughter, 5-year-old Gabriela Green. She said Green has struggled to remain positive, but began to show concern since his execution date was set this summer. "He feels like time is running out, like the days are flying by," she said."I could see it in his eyes the last time I went to visit him. He doesn't know what to do." John O'Sullivan, a son of Helen O'Sullivan, said he is not a strong supporter of the death penalty and empathizes with Green's family. But he also believes the sentence should be carried out. "I pray for his family and I pray for the little girl he's got," O'Sullivan said. "I wish them no harm. "But the law has taken its course. And in the society that both my mother and Mr. Green lived in, the laws are such that if you do this and the elements add up to a conviction, then this is what you get. That's just a fact and we all have to live with it." Helen O'Sullivan "has got a lot more grandchildren who will never know her," he said, noting that his mother's 1st great-grandchild was born this week. Assistant District Attorney Don Smyth, a prosecutor at Green's 1993 trial, said numerous government programs were unable to help him. "They had spent enough money to send him to college for 4 years and then some," he added. "So it wasn't like he never had a chance and he got overlooked by the system and everyone ignored him." (source: Houston Chronicle) USA: Capital Punishment and Homicide----Sociological Realities and Econometric Illusions; Does executing murderers cut the homicide rate or not? Comparative studies show there is no effect. Econometric models, in contrast, show a mixture of results. Why the difference? And which is the more reliable method? (by Ted Goertzel) I have inquired for most of my adult life about studies that might show that the death penalty is a deterrent, and I have not seen any research that would substantiate that point. -- Attorney General Janet Reno, January 20, 2000 All of the scientifically valid statistical studies--those that examine a period of years, and control for national trends--consistently show that capital punishment is a substantial deterrent. -- Senator Orrin Hatch, October 16, 2002 It happens all too often. Each side in a policy debate quotes studies that support its point of view and denigrates those from the other side. The result is often that research evidence is not taken seriously by either side. This has led some researchers, especially in the social sciences, to throw up their hands in dismay and give up studying controversial topics. But why bother doing social science research at all if it is impossible to obtain accurate and trustworthy information about issues that matter to people? There are some questions that social scientists should be able to answer. Either executing people cuts the homicide rate or it does not. Or perhaps it does under certain conditions and not others. In any case, the data are readily available and researchers should be able to answer the question. Of course, this would not resolve the ethical issues surrounding the question, but that is another matter. So who is right, Janet Reno or Orrin Hatch? And why can they not at least agree on what the data show? The problem is that each of them refers to bodies of research using different research methods. Janet Renos statement correctly describes the results of studies that compare homicide trends in states and countries that practice capital punishment with those that do not. These studies consistently show that capital punishment has no effect on homicide rates. Orrin Hatch refers to studies that use econometric modeling. He is wrong, however, in stating that these studies all find that capital punishment deters homicide. In fact, some of them find a deterrent effect and some do not. But this is not a matter of taste. It cannot be that capital punishment deters homicide for comparative researchers but not for econometricians. In fact, the comparative method has produced valid, useful, and consistent findings, while econometrics has failed in this and every similar area of research. The 1st of the comparative studies of capital punishment was done by Thorsten Sellin in 1959. Sellin was a sociologist at the University of Pennsylvania and one of the pioneers of scientific criminology. He was a prime mover in setting up the government agencies that collect statistics on crime. His method involved 2 steps: "First, a comprehensive view of the subject which incorporated historical, sociological, psychological, and legal factors into the analysis in addition to the development of analytical models; and second, the establishment and utilization of statistics in the evaluation of crime" (Toccafundi 1996). Sellin applied his combination of qualitative and quantitative methods in an exhaustive study of capital punishment in American states. He used every scrap of data that was available, together with his knowledge of the history, economy, and social structure of each state. He compared states to other states and examined changes in states over time. Every comparison he made led him to the "inevitable conclusion . . . that executions have no discernable effect on homicide rates" (Sellin 1959, 34). Sellins work has been replicated time and time again, as new data have become available, and all of the replications have confirmed his finding that capital punishment does not deter homicide (see Bailey and Peterson 1997, and Zimring and Hawkins 1986). These studies are an outstanding example of what statistician David Freedman (1991) calls shoe leather social research. The hard work is collecting the best available data, both quantitative and qualitative. Once the statistical data are collected, the analysis consists largely in displaying them in tables, graphs, and charts which are then interpreted in light of qualitative knowledge of the states in question. This research can be understood by people with only modest statistical background. This allows consumers of the research to make their own interpretations, drawing on their qualitative knowledge of the states in question. (my note---article had graph inserted here) Figure 1 is an example of the kind of chart Sellin prepared, using recent data. The graph compares homicide rates per 100,000 population in Texas, New York, and California. >From 1982 to 2002, Texas executed 239 prisoners, California ten, and New York none. The trends in homicide statistics are very similar in all three states, all of which follow national trends. These states were chosen arbitrarily, but data for other states are readily available. If you prefer to compare Texas to Oklahoma, Arkansas, or New Mexico, the data are readily available in back issues of the Statistical Abstract of the United States and Uniform Crime Reports. The results will be much the same. Hundreds of comparisons of this sort have been made, and they consistently show that the death penalty has no effect. There have also been international comparative studies. Archer and Gartner (1984) examined fourteen countries that abolished the death penalty and found that abolition did not cause an increase in homicide rates. This research has been convincing to most criminologists (Radelet and Akers n.d.; Fessenden 2000), which is why Janet Reno was told that there was no valid research linking capital punishment to homicide rates. The studies that Orrin Hatch referred to use a very different methodology: econometrics, also known as multiple regression modeling, structural equation modeling, or path analysis. This involves constructing complex mathematical models on the assumption that the models mirror what happens in the real world. As I argued in a previous Skeptical Inquirer article (Goertzel 2002), this method has consistently failed to offer reliable and valid results in studies of social problems where the data are very limited. Its most successful use is in making predictions in areas where there is a large flow of data for testing. The econometric literature on capital punishment has been carefully reviewed by several prominent economists and found wanting. There is simply too little data and too many ways to manipulate it. In one careful review, McManus (1985, 417) found that: "there is much uncertainty as to the 'correct' empirical model that should be used to draw inferences, and each researcher typically tries dozens, perhaps hundreds, of specifications before selecting one or a few to report. Usually, and understandably, the ones selected for publication are those that make the strongest case for the researchers prior hypothesis." Models that find deterrence effects of capital punishment often rely on rather bizarre specifications. In a rigorous and comprehensive review Cameron (1994, 214) observed that, "What emerges most strongly from this review is that obtaining a significant deterrent effect of executions seems to depend on adding a set of data with no executions to the time series and including an executing/non-executing dummy in the cross-section analysis . . . there is no clear justification for the latter practice." In less technical language, the researchers included a set of years when there were no executions, then introduced a control variable to eliminate the nonexistent variance. The other day upon the stair, they saw some variance that wasnt there. It wasnt there again today, thank goodness their model scared it away. Not all the studies rely on this particular maneuver, but they all depend on techniques that demand too much from the available data. Since there are so many ways to model inadequate data, McManus (1985, 425) was able to show that researchers whose prior beliefs led them to structure their models in different ways would obtain predictable conclusions: "The data analyzed are not sufficiently strong to lead researchers with different prior beliefs to reach a consensus regarding the deterrent effects of capital punishment. Right-winger, rational-maximizer, and eye-for-an-eye researchers will infer that punishment deters would-be murderers, but bleeding-heart and crime-of-passion researchers will infer that there is no significant deterrent effect." The Mythical World of Ceteris Paribus Econometricians inhabit the mythical land of Ceteris Paribus, a place where everything is constant except the variables they choose to write about. Ceteris Paribus has much in common with the mythical world of Flatland in Edwin Abbots (1884) classic fairy tale. In Flatland everything moves along straight lines, flat plains, or rectangular boxes. In Flatland, statistical averages become mathematical laws. For example, it is true that, on the average, tall people weigh more than short people. But, in the real world, not every tall person weighs more than a shorter one. In Flatland knowing someones height would be enough to tell you their precise weight, because both vary only on a straight line. In Flatland, if you plotted height and weight on a graph with height on one axis and weight on the other, all the points would fall on a straight line. Of course, econometricians know that they don't live in Flatland. But the mathematics works much better when they pretend they do. So they adjust the data in one way or another to make it straighter (often by converting it to logarithms). Then they qualify their remarks, saying "capital punishment deters homicide, ceteris paribus." But when the real-world data diverge greatly from the straight lines of Flatland, this can lead to bizarre results. (my note---article had graphs inserted here) Statistician Francis Anscombe (1973) demonstrated how bizarre the Flatland assumption can be. He plotted four graphs that have become known as Anscombes Quartet. Each of the graphs shows the relationship between two variables. The graphs are very different, but for a resident of Flatland they are all the same. If we approximate them with a straight line (following a linear regression equation) the lines are all the same (figure 2). Only the first of Anscombes four graphs is a reasonable candidate for a linear regression analysis, because a straight line is a reasonable approximation for the underlying pattern. (my note---article had graphs inserted here) The data on capital punishment and homicide, when plotted in figure 3, look a lot like Anscombes 4th quartet. Most of the states had no executions at all. One state, Texas, accounts for 40 of the 85 executions in the year shown (the patterns for other years are quite similar). An exceptional case or "outlier" of this dimension completely dominates a multiple regression analysis. Any regression study will be primarily a comparison of Texas with everywhere else. Multiple regression is simply inappropriate with this data, no matter how hard the analyst tries to force the data into a linear pattern. Unfortunately, econometricians continue to use multiple regression on capital punishment data and to generate results that are cited in Congressional hearings. In recent examples, Mocan and Gittings (2001) concluded that each execution decreases the number of homicides by five or six while Dezhbaksh, Rubin, and Shepherd (2002) argued that each execution deters eighteen murders. Cloninger and Marchesini (2001) published a study finding that the Texas moratorium from March 1996 to April 1997 increased homicide rates, even though no increase can be seen in the graph (figure 1). The moratorium simply increased homicide in comparison to what their econometric model said it would have otherwise been. Of all the econometric myths, the wildest is this: We know what would have been. Cloninger and Marchesini concede that "studies such as the present one that rely on inductive statistical analysis cannot prove a given hypothesis correct." However, they argue that when a large number of such studies give the same result, this provides "robust evidence" which "causes any neutral observer pause." But if McManus is correct that econometricians are likely to specify models to fit their preconceptions, then if many of them reach the same conclusion it may just mean that they have the same bias. Actually, there are a variety of biases among econometricians, which is why there are almost as many on one side as on the other of this issue. In response to Ehrlichs (1975) initial econometric study, other econometricians using the same data included Yunker (1976), who found a stronger deterrent effect than Ehrlich, and Cloninger (1977), who supported his findings. But Bowers and Pierce (1975), Passel and Taylor (1977), and Hoenack and Weiler (1980) found no deterrence at all. Econometricians often dismiss the kind of comparative research that Thorsten Sellin did as crude and unsophisticated when compared to their use of complex mathematical formulas. But mathematical complexity does not make for good social science. The goal of multiple regression is to convert messy sociological realities into math problems that can be resolved with the certainty of mathematical proof. Econometricians believe they can control for the myriad variables that affect homicide rates, just as a chemist eliminates impurities to see how 2 chemicals interact in their pure form. But they cannot convert the real world into a Flatland, so they use statistical adjustments to compensate. With these adjustments, they claim to answer the Ceteris Paribus question: If everything else were equal, what would the relationship between capital punishment and homicide be? It would be handy for social scientists if we lived in a Flatland where everything else was equal and questions could be answered with a few calculations. But multivariate statistical analysis does not answer real-world questions such as, "does Texas, with a high execution rate, have a lower homicide rate than similar states?" or "did the homicide rate go down when Texas began executing people, compared to trends in other states that did not?" Instead, it answers the question, "If we use the latest, most sophisticated statistical methods to control for extraneous variables, can we say that the death penalty deters homicide rates other things being equal?" After decades of effort by many diligent researchers, we now know the answer to this question: There are many ways to adjust things statistically, and the answer will depend on which one is chosen. We also know that of the many possible ways to specify a regression model, each researcher is likely to prefer one that will give results consistent with his or her predispositions. It is time to abandon the illusion that mathematics can convert the real world into the mythical land of Ceteris Paribus. Social science can provide valid and reliable results with methods that present the data with as little statistical manipulation as possible and interpret it in light of the best qualitative information available. The value of this research is shown by its success in demonstrating that capital punishment has not deterred homicide. References Abbot, Edwin. 1884. Flatland: A romance of many dimensions. Accessed on January 29, 2004, at: www.alcyone.com/max/lit/flatland/. Anscombe, Francis. 1973. Graphs in statistical analysis. American Statistician 27, 17-21. Archer, Dane, and Rosemary Gartner. 1984. Homicide and the death penalty: A cross-national test of a deterrence hypothesis. In Archer and Gartner, Violence and Crime in Cross-National Perspective, New Haven: Yale University Press. Bailey, William, and Ruth Peterson. 1997. Murder, capital punishment, and deterrence: A review of the literature. In Hugo Bedau, ed., The Death Penalty In America: Current Controversies. New York: Oxford University Press. Bowers, W.J., and J.L. Pierce. 1975. The illusion of deterrence in Isaac Ehrlichs work on capital punishment. Yale Law Journal 85: 187-208. Cameron, Samuel. 1994. A review of the econometric evidence on the affects of capital punishment. Journal of Socio-Economics 23: 197-214. Cloninger, Dale. 1977. Deterrence and the death penalty: A cross-sectional analysis. Journal of Behavioral Economics 6, 87-107. Dezhbaksh, Hashem, Paul Robin, and Joanna Shepherd. 2002. Does capital punishment have a deterrent effect? New evidence from post-moratorium panel data. American Law and Economics Review 5(2): 344-376. Accessed on January 12, 2004, from: http://aler.oupjournals.org/cgi/content/ abstract/5/2/344. Ehrlich, Isaac. 1975. The deterrent effect of capital punishment: A question of life and death. American Economic Review 65: 397-417. Fessenden, Ford. 2000. Deadly statistics: A survey of crime and punishment. The New York Times September 22, 2000. Accessed on January 20, 2004 from: www.nytimes.com Freedman, David. 1991. Statistical models and shoe leather. Sociological Methodology 21: 291-313. Goertzel, Ted. 2002. Myths of murder and multiple regression. Skeptical Inquirer 26(1): 19-23. Hatch, Orrin. 2002. Minority views, appended to the report of the Committee on the Judiciary of the United States Senate on The Innocence Protection Act of 2002, 107th Congress, Second Session, Report 107-315, Calendar No 731. Accessed on January 12, 2004, from: http://frwebgate.access.gpo.gov/ Hoenack, Stephen, and William Weiler. 1980. A structural model of murder behavior and the criminal justice system. American Economic Review 70, 327-41. McManus, Walter. 1985. Estimates of the deterrent effect of capital punishment: The importance of the researchers prior beliefs. Journal of Political Economy 93: 417-425. Mocan, Naci, and Kaj Gittings. 2001. Pardons, executions and homicide. Working Paper 8639, National Bureau of Economic Research. Accessed on January 12, 2004, from: www.nber.org/papers/w8639. Passell, Peter, and John Taylor. 1977. The deterrent effect of capital punishment: Another view. American Economic Review 67, 445. Radelet, Michael, and Ronald Akers. (No date). Deterrence and the death penalty: The view of experts. accessed on January 23, 2004, from: http://sun.soci.niu.edu/. Reno, Janet. 2002. Quoted in Mocan and Gittings 2001. Sellin, Thorsten. 1959. The Death Penalty. American Law Institute, Philadelphia. Toccafundi, David. 1996. The Sellin Collection at Penn. Accessed on January 24, 2004, at: http://www.library.upenn.edu/exhibits/pennhistory/library/sellin.html. Yunker, James A. 1976. Is the death penalty a deterrent to homicide? Some time series evidence. Journal of Behavioral Economics Vol. 5, 45-81. Zimring, Franklin, and Gordon Hawkins. 1986. Capital Punishment and the American Agenda. Cambridge: Cambridge University Press. About the Author Ted Goertzel is a professor of sociology, Sociology Department, Rutgers University, Camden, NJ 08102. E-mail: goert...@camden. rutgers.edu. (source: Skeptical Inquirer Magazine; to view article with graphs, see: http://www.csicop.org/si/2004-07/capital-punishment.html) ********************** Court to weigh teen death penalty Christopher Simmons kidnapped Shirley Crooks from her Missouri home, bound her like an animal and drove her to a railroad trestle where he tossed her over the side to drown in the river below. For proponents of capital punishment, its the kind of crime that has death penalty written all over it. But because Simmons was 17 when he killed Crooks in 1993, his case has become the nexus for a debate over executing those who committed their crimes when they were juveniles. Simmons case offers the Supreme Court its greatest chance to make a strong social statement in the 2004-05 term, which begins Monday. Its a term in which the court is scheduled to wade into squabbles over such issues as medical marijuana, wine shipments across state lines, and enforced racial segregation in the nations prisons. Before the term ends in July, the justices could decide to settle arguments over Ten Commandments monuments on public property and the congressional ban on so-called partial-birth abortion. The court will begin the term by hearing 2 cases Monday that will clear up whether a ruling last spring might require the complex federal sentencing guidelines to be rewritten. But the Simmons murder case has attracted international attention, with 48 nations and more than a dozen Nobel Peace Prize winners filing briefs to persuade the Supreme Court to eliminate juvenile executions. The case has captured the imagination of advocacy groups that have worked for years to scale back the death penalty, as well as prosecutors who fear too many exceptions are being made to spare violent criminals from death. The Missouri Supreme Court ruling that wiped out Simmons death-row sentence and compared executing juveniles to killing the mentally retarded will either be seen as bold foreshadowing or activist overstepping. The high courts decision will reflect, to a large extent, whether the justices see enough of a societal shift in thinking about capital punishment to justify adding juveniles to the list of death-penalty untouchables. "We dont let (young teens) sit on juries, sign up for military service or even get tattoos in most states because we dont trust their capacity to make decisions and we dont trust their judgment," said Marsha Levick, whose Juvenile Law Center in Philadelphia filed a brief supporting Simmons. "Its incongruous that we put them to death." Kevin Newsom, Alabamas solicitor general, filed a brief on behalf of 6 states that want to preserve the ability to execute older teens. "There are some 16- or 17-year-olds who can fully appreciate their actions and their consequences, and states ought to be able to decide for themselves whether to execute them," he said. (source: Knight Ridder Tribune) ************************ SUPREME COURT ROUNDUP -- Sentencing Tops Justices' Agenda as Term Begins The Supreme Court opens its new term on Monday faced with urgent business and looming uncertainty. The justices' most pressing task is to resolve the fate of the federal criminal sentencing system, which the court itself threw into limbo in June by declaring unconstitutional a similar, although not identical, system used by the state of Washington. In both the state and federal systems, sentencing guidelines provide a starting point for calculating a criminal sentence, and judges then make findings about a variety of factors to determine how much time a defendant will actually serve. The Supreme Court held in Blakely v. Washington that the state system violated the constitutional right to trial by jury by permitting judges to make these essential findings. Federal judges around the country quickly started ruling that they could no longer treat the federal sentencing guidelines as binding. Whether that judgment is correct and, if so, what should happen next will be the subject of an unusual afternoon argument on Monday in two cases that the justices granted in August at the Justice Department's request and agreed to expedite for an argument that would not ordinarily have been scheduled until January. The uncertainty as the term begins derives not from a particular case but from the calendar. It has been more than 10 years since a justice retired, making this the longest-serving Supreme Court since the 1820's. And with institutional longevity, of course, comes age: Justice David H. Souter's 65th birthday last month left Justice Clarence Thomas, 56, the only member of the court who is under 65. Chief Justice William H. Rehnquist, whose 32-year tenure brings him within record-breaking range of John Marshall's 34 years as chief justice, turned 80 on Friday. His intentions, like those of his colleagues, remain opaque even as the presidential campaign shines an election-year spotlight on the court and its future. The justices have accepted 49 cases for review so far, enough to fill their argument calendar into early February and leaving room for perhaps two dozen more to be accepted over the coming weeks in time to be decided during the new term. While the sentencing cases alone - United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105 - would mark this as an unusually important term for criminal law, the justices have also agreed to decide a significant death penalty case. The question in Roper v. Simmons, No. 03-633, is whether executing someone convicted of committing a capital murder at the age of 16 or 17 offends "evolving standards of decency in a civilized society." That is the test the court applies to decide whether a punishment is "cruel and unusual" within the meaning of the Eighth Amendment. In 1988, the court prohibited the execution of those whose crimes were committed at 15 or younger, but refused the next year to extend that decision to 16- and 17-year-olds. Although there have been few executions for juvenile crimes in recent years, the United States is one of only a handful of nations where such executions are still possible, and the case has attracted worldwide attention. 73 people are currently on death row in 12 states - 1/3 of them in Texas - for crimes committed before the age of 18. (source: New York Times) ******************************* Exoneration as a Cottage Industry The number of "innocence projects" has mushroomed to 35 nationally -- nearly half formed in the last four years -- triggering a movement that has steadily altered criminal procedures in dozens of states. Since the 1998 formation of the first Innocence Project at the Benjamin N. Cardozo School of Law in New York, the projects have played a key role in: Exonerating 151 prisoners through DNA testing. Passing post-conviction DNA statutes in more than a dozen states. Implementing videotaped interrogations by more than 200 police departments. Reforming eyewitness identification procedures in 2 dozen cities. "When we first started we were nothing more than a mom-and-pop organization attempting to uncover wrongful convictions and free the innocent," said Peter Neufeld, co-founder of Cardozo's innocence project. "What's happened with the expansion of the innocence project is the emergence of a new civil rights movement -- primarily concerned with making the criminal justice system more about its truth-seeking function, more scientific, and ultimately, more just." Most innocence projects start at law schools, where students, under the guidance of professors, investigated cases of inmates who claim they have been wrongfully convicted. Among the older and more experienced of these programs is the Center on Wrongful Convictions at Northwestern University School of Law, whose staff has helped exonerate 13 Illinois death row inmates in the last 15 years. It did not become a formal program, however, until 1999. In many innocence programs, law students do the bulk of the investigating, while volunteer lawyers in the private sector litigate the cases for free. Innocence programs are funded primarily through private donations. Most recently, the Ohio Innocence Project in September received a $1 million grant from some local philanthropists. Meanwhile, many prosecutors are observing the innocence movement in a respectful light, applauding defense lawyers for taking the lead on an issue that, they say, really should be championed by the prosecutorial side. "It's just as much our duty to free the innocent as it is to convict the guilty. And we should be the ones who are leading the charge to make sure the defendants are given every single consideration in that all exculpatory evidence is disclosed," said Carl Marlinga, a prosecutor in Macomb County, Mich., which last year saw its first and only exoneration through DNA testing. "It is a prosecutor's worst nightmare that he or she would convict an innocent person. We should be happy that there are people out there who are protecting us from living that nightmare." NEW NATIONAL PRIORITIES One of the national priorities of those involved with innocence projects is the reform of eyewitness identification procedures, which was the main topic of a national conference held recently in New York. Defense lawyers, prosecutors and police officials from all over the country attended, including Hennepin County, Minn., prosecutor Amy Klobuchar. "I appreciate the work the innocence project has done, particularly in the area of DNA. They pushed this issue. Those kinds of things have been very helpful for the justice system," Klobuchar said. "Our role as prosecutors isn't just to convict someone, but to convict the right person...we want to have a better system. You don't want an innocent person sitting in jail, and you don't want a rapist running loose." Hoping to avoid suspect misidentifications, Klobuchar recently helped launch pilot programs in four cities, including Minneapolis, that are designed to change the way police conduct lineups and eyewitness identifications. The programs, which are part of the innocence projects' national campaign to reform eyewitness ID procedures, include two key tactics: Using a sequential identification process where the victim looks at one picture at a time, rather than viewing all potential suspects at the same time in one lineup. Proponents argue that this would help avoid confusion and possible misidentification. Having a third, independent party who doesn't know who the suspect is conduct the identification process to prevent any inadvertent hints by police as to who the suspect is. According to Klobuchar, some law enforcement officials resist adopting some of the eyewitness identification recommendations for financial reasons. For example, she said, some police argue it's too expensive to videotape interrogations, or hire a 3rd, independent person to conduct lineups. Klobuchar tries to convince them otherwise. "I would trade in the costs of videotape and updating interrogation rooms for the $38 million wrongful conviction suit in Illinois any day," Klobuchar said. According to Neufeld, in the last year, more than 2 dozen jurisdictions have implemented the eyewitness protocol reforms, including police in Minnesota; Massachusetts; Santa Clara County, Calif.; the entire state of New Jersey; and parts of Seattle. Legislative efforts also are under way in Washington to give every inmate in the country, if they made proper showing, an opportunity to have post-conviction DNA testing. That bill is pending before the U.S. Senate. According to Neufeld, more than half the states have some sort of post-conviction DNA statute, but some of those bills have flaws. For example, some states have sunset provisions giving inmates a 12-month deadline to apply for DNA testing, which is too short a window of opportunity, argues Neufeld. "There are plenty of people who were convicted 10 to 15 years ago who we can't reach out to in the next 12 months. To put an arbitrary time limit on it seems mean spirited," Neufeld said. AN EXONERATION, AND A WEDDING But exonerations triggered by innocence project work are still grabbing the most attention. The most recent came out of Georgia, where the fledgling two-year-old Georgia Innocence Project on Aug. 31 helped free Clarence Harrison, who spent 17 years in prison on rape, robbery and kidnapping charges after being identified in a police lineup. According to Aimee Maxwell, executive director of the Georgia Innocence Project, a law student discovered two slides from a rape kit that contained semen that had not undergone DNA testing because the technology wasn't good enough at the time. Maxwell said DNA testing proved that Harrison was not the alleged attacker. "I think people are paying attention to these cases now," Maxwell said. "And I think that there's an extreme interest in this country in forensics. There's a third 'CSI' [the television show] starting. There's even a 'CSI' New York. People understand that there is real evidence out there that can say who committed the crime, not just testimony, not just circumstantial evidence, but there's real hard evidence out there." On another note, the Georgia Innocence Center also has taken on the role of helping the exonerated get on with their lives. In Harrison's case, it recently helped throw a wedding for him and his new bride, a woman he met while in prison. "We're lawyers by day, and wedding planners by night," joked Maxwell. BUTTING HEADS IN OHIO In Ohio, Stark County prosecutor John Ferrero said he respects the intentions of innocence projects. "I give them credit for what they're doing. I would hope they give us prosecutors credit for what we do, too," Ferrero said. But in his county of 380,000 people, Ferrero said, he doesn't see a need for any changes in witness identification protocols, or for mandating videotaped interrogations. "We've never had any accusations that our agencies use any strong-arm tactics. We read about that in the bigger counties and in the bigger cities. But from my standpoint here I think the [police] agencies all handle [interrogations] pretty well," Ferrero said. Currently, Ferrero is butting heads with the 1-year-old Ohio Innocence Project over a drunken-driving conviction involving Chris Bennett, who in 2002 was sentenced to eight years in prison on vehicular manslaughter charges after his friend was killed in a May 2001 crash. According to Ferrero, Bennett pleaded guilty to driving a company van off the road, killing his best friend, and a witness also stated that Bennett was the driver. But according to the Ohio Innocence Project, medical records show that Bennett suffered amnesia from the accident and that he wasn't the driver. The project also alleges that DNA tests on blood and hair samples taken from the van show that Bennett was the passenger, and that a second witness who was never questioned by the prosecution also said Bennett was not the driver. "Despite all that, the prosecution is still fighting it," said Professor Mark Godsey, faculty director of the Ohio Innocence Project, which is affiliated with the University of Cincinnati College of Law. Ferrero said he doesn't buy the amnesia argument, and maintains that the impact of the accident could have sent blood and hair strands flying everywhere. "We've looked at their new evidence and we feel strongly that we're on good footing here, " Ferrero said. "I've heard about other [DNA exoneration] cases around the country and I have nothing bad to say about them. I think [the innocence project] is a good organization. And there are some cases that are worth looking at...but they're just wasting time here." An evidentiary hearing for Bennett is set for Oct. 1, during which a judge is scheduled to decide whether Bennett will receive a new trial. Meanwhile, the fledgling Ohio Innocence Project, which recently received the $1 million grant from philanthropists, is busy combing through a backlog of several hundred cases that haven't yet been looked at. "I don't think anybody, even defense lawyers, would have guessed that there were this many innocent people in prison until DNA came along and proved how fragile our criminal justice system is," Godsey said. PRIVATE ATTORNEYS Innocence project proponents note that the DNA-exoneration movement has received a big boost from private attorneys who donate their time and litigation skills to freeing the innocent. One such private attorney is Gail Pamukov, a solo practitioner in St. Clair Shores, Mich., who last year assisted the 3-year-old Innocence Project at Thomas M. Cooley Law School in Lansing, Mich., in exonerating a rape suspect. In June 2003, Pamukov helped free Kenneth Wyniemko, who spent nine years in prison after being wrongfully convicted of raping and assaulting a woman in 1994. He was sentenced to 40-to-60 years in prison, but was exonerated through the use of DNA evidence found on a cigarette butt, a pair of panties and fingernail scrapings. "In my lifetime as a lawyer, I probably will not be involved in another case where I am directly involved in assisting someone in getting out of prison," Pamukov said. "The system is not set up to let these folks out. And it has turned out to be some of the most satisfying work I've done, so there's real value in this kind of thing." Attorney Joshua Bowland knows all too well the pressures of trying to weed out the innocent from prison. As the director of the 5-year-old Rocky Mountain Innocence Center, he's the only attorney in charge of investigating alleged wrongful convictions in Utah, Washington and Nevada. He currently has 45 active cases -- more than half from Nevada, which doesn't have a post-conviction DNA statute -- and he gets a letter a day from an inmate asking for help. "I'm so busy all the time. We're always looking for funding," said Bowland, who started the job four months ago. The Rocky Mountain Innocence Center has not yet exonerated anyone, but Bowland said 2 cases are close to being resolved. (source: National Law Journal) LOUISIANA: Lee's Death Penalty Case Begins Monday It has taken more than 3 weeks, but the 1st death penalty case against Derrick Todd Lee will begin Monday. Lee is charged with 1st-degree murder in the beating and stabbing death of 22-year-old Jackson native Charlotte Murray Pace. Pace was found raped and murdered in her home in May of 2002, with 81 stab and puncture wounds on her body. Lee has already been sentenced to life in prison for the second-degree murder of Geralyn Desoto. Lee's lawyers are appealing that conviction. Jurors in the trial will be sequestered until a verdict is reached. (source: WLBT News)
