July 31 PENNSYLVANIA: Eyewitness Identifications The blind eye of justice The unfolding horror story of alleged serial killer Juan E. Covington demonstrates, yet again, a dirty little secret about law enforcement. In Philadelphia, and other places, police still rely far too often on unreliable eyewitness identifications to "solve" crimes. The arrest of Covington for the slaying of Center City commuter Patricia McDermott brought a collective sigh of relief across the region. The seemingly random killing of a woman walking to work, an act caught on a security camera, was intensely shocking. Soon after Philadelphia police captured him, Covington emerged as the suspect in at least two other murders, as well as 2 shootings in which the victims survived. But then another disturbing aspect of this probe surfaced. In two of these crimes now attributed to Covington, police had long ago jailed 2 other men as suspects, based on identifications by eyewitnesses. Clyde A. Johnson, 32, has been in jail on attempted murder charges since July 15, 2004. Police accused him of shooting a man several times at close range on a street in the Logan section. Johnson is a social worker with no criminal record, and his boss said Johnson was at work on the day of the shooting. No matter. A witness to the shooting picked out a photograph of Johnson. Police showed Johnson's photograph to the victim, who was in a hospital bed, unable to speak. Police said he nodded at Johnson's photograph; they had their man. But ballistics tests on Covington's 9mm pistol proved it was the gun used in the crime for which Johnson was accused. Due to a sloppy initial investigation and over-reliance on eyewitness identification, Clyde Johnson has lost one year of his life. Had Covington continued to elude police, Johnson might have lost much more time. Said Johnson's attorney, David B. Mischak: "He's been devastated." Covington has confessed to the murder of Odies Bosket, who was shot to death at the Logan train station on March 7. In that case, police had already charged Morris Wells, 37, of North Philadelphia. Again, the case was based on eyewitnesses' identification. The shooter was described as having a salt-and-pepper beard; Wells had a beard but no grey hair. "The description did not fit our client," said Wells' public defender, Fred Goodman. "There were red flags from the get-go." The murder charges were dropped last week against Wells, who remains in jail awaiting trial on unrelated drug offenses. These examples and others, such as the wrongful arrest and conviction of Ah Thank "Allen" Lee for a 1983 murder in Chinatown, cry out for law enforcement officials to improve their procedures for obtaining eyewitness identifications. Though juries have long regarded eyewitness accounts as persuasive evidence, a growing body of research documents the weak reliability of eyewitness identifications and the mistakes police make that can elicit erroneous identifications. Philadelphia District Attorney Lynne Abraham, state Attorney General Tom Corbett and others should follow the lead of New Jersey, which instituted statewide guidelines in 2001 aimed at reducing cases of mistaken identity. It should be standard police instruction to witnesses everywhere in Pennsylvania, for example, that a perpetrator might not be among those in a lineup or photo spread. Witnesses should be told not to feel compelled to pick out a suspect, no matter how much they want to help. The person conducting a photo or live lineup should not know the identity of the real suspect, to avoid giving witnesses inadvertent tips or coaching. Defense attorneys say the mistakes uncovered by the Covington investigation are by no means unusual. Abraham, Police Commissioner Sylvester Johnson and other law enforcement officials need to do more to enhance the reliability of the eyewitness evidence they use. Abraham, who frequently seeks the death penalty for murder suspects, declined through a spokeswoman to comment on the issue because it's too "sensitive" right now. Oh, so now the self-style "tough cookie" is going sensitive on us? Prosecutors and police officials ought to work toward a day when they can look Clyde Johnson in the eyes and assure him they are doing all they can to prevent the kind of mistake that cost him a year of his life. (source: Editorial, Philadelphia Inquirer) OKLAHOMA: Inmate will be re-evaluated by state doctor after execution stay Prosecutors will be allowed to challenge a medical opinion that caused an Oklahoma man's execution to be stayed, a judge ruled. Garry Thomas Allen, 49, was scheduled to be executed May 19, but District Judge Thomas Bartheld ordered a stay a day earlier after a doctor reported Allen had dementia caused by seizures, substance abuse and being shot in the face. The doctor's report also claimed Allen has a 10th-grade education, a "grossly impaired" short-term memory and an IQ of 96. The report claimed Allen understood he was sentenced to die but not how impending it was. The U.S. Supreme Court and state law forbid the execution of inmates who are insane or mentally incompetent. After a judge's ruling Friday, District Attorney Chris Wilson said Allen will be evaluated by a state-hired doctor. Allen's attorneys will be allowed to appeal the judge's decision to the Court of Criminal Appeals, so the state must wait for that ruling, Wilson said. Pending the new evaluation, a Pittsburg County jury would decide whether Allen is competent. If he is ruled competent, a new execution date would be set. Allen was convicted of murder in the 1986 death of Lawanna Gail Titsworth. Titsworth, the mother of Allen's 2 sons, was shot as she was picking up the boys at a day-care center in Oklahoma City. (source: The Associated Press) NORTH CAROLINA: Good Call: A judge does right thing, albeit reluctantly A lot of folks can probably sympathize with Judge John O. "Joe" Craig, who was less than enthusiastic as he ordered a new trial last week for Rex Dean Penland, a convicted murderer and rapist who got a death sentence in 1994. "I'm not really happy about this," the friendly judge said Monday in Stokes County Superior Court in Danbury. But he acknowledged that a 2001 state law allowing cases to be reopened because of new DNA testing left him no choice. It's not as if this new testing, in and of itself, exonerates Penland and implicates someone else, as has been the dramatic story in several high-profile cases nationwide, including the Darryl Hunt case in Winston-Salem. So some citizens are probably even thinking the state should have gone ahead and killed Penland before all this came up. After all, he had been on death row for 11 of his 44 years for the 1992 murder of Vernice Alford, a waitress and prostitute from Winston-Salem. Now her family and friends face another lengthy, painful trial. But achieving justice is time consuming and rarely easy, especially when there's the chance of executing an innocent person. And achieving justice can get real hard as DNA advances mean that cases once thought settled are suddenly anything but. DNA testing of a precision that wasn't available when Penland was convicted now shows that his semen was not present in a swab taken from Alford's corpse and that the only blood on his knife was his own, his lawyers say. They say Penland is innocent. It sure wouldn't be the 1st time prosecutors bungled a case in this state. Yet Penland, bald and walking with a cane, seemed to realize he's nowhere near freedom. He showed little emotion Monday, even upon learning he'd get a new trial. He's no poster boy for the movement for a needed moratorium on the death penalty in this state - a movement that political realists have now changed into just a push for study of the penalty. He had a lengthy record of relatively minor crimes before he was charged with killing Alford, but his case still leaves more questions than answers. At his trial, he denied raping or murdering Alford. He was "kind of unconscious-like" from drinking and smoking pot and did not remember part of what happened the night she was killed or even seeing her that night, he testified. The star witnesses were his twin nephews, Garry Sapp and Larry Sapp Jr. They testified that they and their uncle picked up Alford in Winston-Salem and drove her to a deserted logging road in Stokes County. They said they tied her to a tree at Penland's command, then left him alone with her. He then told them he killed her, Gary Sapp testified. The twins were convicted of 2nd-degree murder and other charges, and each served less than 5 years in prison for those convictions. Penland's lawyers say they have evidence that calls the twins' testimony into question. At Penland's trial, a man who'd served time with them in the Stokes County jail said that they told him Penland had nothing to do with the murder. Yet the new DNA testing doesn't match the twins to Alford, either. Perhaps a fourth party was involved. Or maybe the semen came from someone Alford had been with hours before she met Penland and his nephews. Whatever the case, Penland and his lawyers face an uphill battle. Either he lied or his nephews did, and that question will likely be at the heart of his new trial, just as it was at his 1st trial. DNA testing won Penland a new trial, but it won't free him by itself. "The result might well be the same the 2nd time around," Judge Craig said. "In fact, the probability is it will be the same." But justice demands nothing less than Penland getting a new trial, as Craig reluctantly but rightly realized. (source: Winston-Salem Journal) ALABAMA: The issue--The Pardons and Paroles Bill was intended to alleviate Alabama's prison population. To date, 4,169 nonviolent felons have been paroled, but the current population is only about 1,000 less than what it was in 2003, when it hit an all-time high. Inmate numbers dip, then rise again It's no secret that Alabama's prisons have been grossly overcrowded for years. State prison facilities reached an all-time high of more than 200 percent capacity in 2003, meaning that the threat of a federal takeover of the prisons looms over the state. In response, Gov. Bob Riley created the Pardons and Paroles Bill to alleviate the state's burgeoning prison population. But although 4,169 nonviolent felons have been paroled -- nearly meeting the 2003 bill's mandated scheduled release of 5,000 nonviolent offenders by September 2006 -- Alabama's current inmate population is only about 1,000 shy of what it was in 2003. "At the time the bill was created, the Department of Corrections had 28,540 inmates, and our maximum capacity is 12,388," said Brian Corbett, spokesman for the Alabama Department of Corrections. "Without a doubt there was a definite need for the bill at the time, and the need hasn't gone away." "At one time during this bill's course we dropped down to 26,000, but now we're back up to 27,661," Corbett said. "It did have an effect on our population, but that effect has run its course and now the numbers are again rising." Of the 27,661 state inmates, 1,025 are from Tuscaloosa County, ranking it 4th-highest in the state for inmate contribution. However, only 58 of Tuscaloosa's inmates have met the bill's eligibility requirements and been paroled. One reason inmate numbers are again on the rise, Corbett said, is that the Alabama Board of Pardons and Paroles has already gone through the inmate population that is eligible for parole. "Parole is one of many factors," he said. "It's not like this happened overnight. This trend has been going on for 20 years now." "The staff employees at the 30 institutions statewide deal with the brunt of it," he said. "If it weren't for their skill and dedication, we wouldn't be holding it together." Corbett said state facilities are forced to double-bunk, create living areas out of places that were never intended to be lived in, and control a prison population that's more than twice as large as what the guards are supposed to be managing. Cynthia Dillard, assistant director of the Alabama Board of Pardons and Paroles, said that despite setbacks, the bill has been extremely effective. "The bill worked," Dillard said. "The prison population dropped by about 2,000 people. [Riley] said up to 5,000 would be released and well over 4,000 were released, but over 2,200 people have entered prison since then, so the net loss has only been about 700 at this time. There would have been well over 33,000 people in prison right now had this not gone through." Though the governor's bill might have granted department of correction employees a bit of relief from a swollen prison system, what happens after the bill expires in little more than a year's time? John Matson, the governor's office deputy press secretary, said Riley would have a plan in place to more effectively reduce prison overcrowding before the Pardons and Paroles Bill terminates. "Gov. Riley has created a task force that will make long-term recommendations in October," Matson said. (source: The Tuscaloosa News) MISSOURI: Mo. prosecutor re-investigates old cases After landing a job at a prestigious law firm, Jennifer Joyce was making good money with an office overlooking the Gateway Arch - and was miserable. So she took a job at half the pay as an assistant prosecutor, sharing a dingy office with 3 other lawyers and 1 computer. "Within a week I was just in love with the work," said Joyce, 43. "I went from helping people fight over money to helping them pursue justice." Now the city's top prosecutor, part of Joyce's pursuit of justice has been to re-investigate more than 1,400 old cases to see if DNA evidence would prove the guilt - or innocence - of the person convicted of the crime. One of those cases could change the debate over the death penalty - an investigation into whether a man was executed in 1995 for a murder he didn't commit. If so, it would be the 1st known execution of an innocent person in the United States. Looking into old cases isn't unheard of when new evidence arises, but few prosecutors have gone as far as Joyce. "What she's doing here is appropriate and not common enough," said Barry Scheck, best known as part of O.J. Simpson's defense team. "Prosecutors sometimes believe it's more important to win or to appear as though you don't make mistakes." So far, 3 St. Louis men convicted of rape have been exonerated - each after serving at least 17 years in prison. Scheck, co-founder of the Innocence Project, tried for years to convince Joyce's predecessor as circuit attorney, Dee Joyce Hayes, to reopen old cases. Hayes refused. When Hayes decided not to seek re-election in 2000, Joyce was elected to the post. Joyce said she spent her 1st day in office considering Scheck's request. At the time, he criticized her for not moving quickly enough. Eventually, her office determined that 1,400 people convicted in St. Louis before 1992 - when DNA technology became widely available - for crimes from robbery to rape to murder were still in prison. Joyce decided their cases deserved a 2nd look, but with caution. Opening old wounds can be hard on the victims and their families. "I've seen victims become suicidal," she said. "I've seen victims throw up, become extremely emotional at the thought of reopening cases. We have to be mindful of that." Joyce brought in law students, working under the supervision of her staff, to examine all 1,400 cases, determining those in which DNA testing could potentially prove guilt or innocence. She estimated it took about 10 hours to look at each case. The "DNA Justice Project" is nearly complete - fewer than a dozen cases remain to be looked at. So far, DNA evidence has exonerated 3 men. In July 2002, Larry Johnson was cleared after serving 18 years for the rape of a Saint Louis University student. The next year, Lonnie Erby was freed after serving 17 years for 3 assaults on teenage girls. Earlier this year, Anthony Woods was exonerated for a rape conviction. He was not among those studied through the DNA Justice Project because he had been released from prison after serving 18 years. Woods' attorney asked Joyce for the test. Joyce "recognizes that prosecutors are human like the rest of us, and mistakes can be made," said Chet Pleban, Johnson's lawyer. Now her office is focusing on what would be a monumental mistake - the potential execution of an innocent man. Quintin Moss, a 19-year-old drug dealer, was shot to death in 1980. Larry Griffin was an immediate suspect since word on the street was that it was Moss who weeks earlier had killed Griffin's brother. Griffin was convicted in 1981 largely on the eyewitness testimony of Robert Fitzgerald, a career criminal from Boston who was in St. Louis under the Federal Witness Protection Program. He was executed in 1995. Earlier this summer, Joyce was presented with a report on a yearlong study by Michigan law professor Sam Gross that cast doubt on Griffin's guilt. Among its findings: - A police officer who testified in support of Fitzergald's account now believes Fitzgerald's story was false. Gross cited other evidence that Fitzgerald, who died last year, had a reputation as an "unreliable snitch." - A 2nd victim of the shooting, Wallace Conners, has come forward. Conners, now 52, was shot in the buttocks, but was never called to testify. He said the government's witness was not even there - and he was certain the shooter was not Griffin. "The thing that was even more compelling was the victim's family had deep concerns about whether the right man had been convicted and executed," Joyce said. The investigation, headed by 2 assistant prosecutors, is expected to take months. Joyce said her feelings about the death penalty are irrelevant, though she seeks death for only the most heinous crimes. Had she been prosecutor when Griffin was tried, he might be awaiting results of the new investigation from a prison cell. "In a case like Mr. Griffin's, a drive-by shooting, I don't know if that would rise to that level in my mind," Joyce said. ON THE NET----http://stlcin.missouri.org/circuitattorney/ http://www.innocenceproject.org/ (source: Associated Press)
