Nov. 27 TEXAS: Lab inquiry finds flaws but no injustices No one was wrongly convicted or accused of a crime because of flawed DNA analysis in the Fort Worth police crime lab, a 2-year investigation has found. The Tarrant County district attorney's office, however, did find widespread problems in the serology and DNA unit, as well as troubling practices in the lab's chemistry and firearms sections, according to a report recently obtained by the Star-Telegram. Among the significant findings were: 2 homicides in which DNA evidence should not have been used at trial. A firearms examiner conducting peer reviews in the chemistry section. Scientists in the chemistry section relying on a procedure not supported by credible science. Improperly stored evidence, some of it dating back 40 years. Police officials insist -- and prosecutors acknowledge -- that many of the problems have been fixed and that improvements are ongoing. The DNA unit was closed in 2002, and all DNA analysis is now outsourced. The chemistry and firearms sections received accreditation this year, and accreditation is also being sought in latent prints and serology. More staffing and new equipment have been added. And an experienced crime-lab manager was hired last year. "I am not interested in assigning blame. That time has come and gone," Police Chief Ralph Mendoza said. "The review of the district attorney's office took approximately two years. The issues in this report have been resolved. Although they may not be apparent, the issues revolved around underlying personnel issues, supervision and perhaps management of our crime lab." Assistant District Attorney Mark Thielman, who conducted the inquiry with Christy Jack, said the investigation was well worth the time. "The fact that we did not indict anyone or uncover a wrongly accused individual does not make this a wasted effort," Thielman said. "This inquiry, along with other factors, helped spur many positive changes in the laboratory." Tarrant County spent more than $40,000 on the inquiry. The final report, presented to crime-lab officials and Mendoza, says the lab's problems were years in the making because the city didn't provide it with enough resources. "The Crime Laboratory was not provided adequate financial support to hire and to train the number of forensic experts needed to handle the forensic caseload, pay the salaries required to attract and to retain qualified forensic scientists and to acquire and upgrade equipment and facilities," the report states. Mendoza disagreed with the assessment of the lab's funding. "The crime lab had functioned very well for years and years based on the way they were set up and the funding they had received," he said. DNA work suspended Problems in the crime lab surfaced in 2002. That October, DNA analysis was suspended after questions about the work of forensic scientist Karla Carmichael prompted prosecutors to forgo seeking the death penalty in a capital-murder case. 9 months later, serology work -- or the screening of evidence for biological fluids -- would also be stopped after contamination questions surfaced in a rape case. Mendoza said the department delved into the issues and made changes as quickly as possible. "Personnel issues can take a great deal of time to resolve," he said. "In addition, we were without a director over the crime lab for some time." The district attorney's office began its investigation in April 2003, focusing first on Carmichael, who was subsequently fired. Later, it scrutinized the work of fellow scientist Treva Armstrong, who had raised concerns about Carmichael to lab officials. DNA experts with the University of North Texas Health Science Center found that Armstrong had been performing work despite not having documentation that she had passed a competency exam. As part of the review, prosecutors examined about 80 DNA cases handled by Carmichael and Armstrong. 36 required retesting. A DNA consultant, Patrick Cooke, found errors in all 36 of the cases. In 2 murder cases, Cooke found that Carmichael's errors were such that her testimony about the DNA evidence should not have been used at trial. He said the errors reflected a problem not only with Carmichael but also with lab oversight. One of those cases involved Timothy R. Thompson, a 39-year-old Fort Worth man sentenced to 25 years in prison in 2001 after being convicted of murder for shooting an acquaintance. Thompson had contended that it was self-defense. The other case involved Maurice Gauthier, a 28-year-old man sentenced to life in prison in August 2002 after he was found guilty of smothering a 19-year-old woman in a hotel room, stuffing her body in a large duffel bag and dumping her body in a creek bed. Cooke's finding came after appeals in both cases had been exhausted, but defense attorney Richard Alley still sought new trials. In the Gauthier case, the request was denied without a hearing. The other case is still pending. New tests ordered in each case confirmed Carmichael's findings, according to court documents. Carmichael said she had previously notified lab officials of many of the same problems that the district attorney's office cited. "Those are the exact same concerns that were brought to the administration many, many years ago in a memo that I wrote," said Carmichael, who believes that she was made a scapegoat for the problem-riddled crime lab. Carmichael said she is not surprised that the investigation determined that no one had been wrongly accused or convicted based on her work. "I've always stood by my results, and I will always stand by them," she said. Armstrong, who resigned in April 2004, said in an e-mail that "I stand by the work that I performed in accordance with FWPD DNA Policies and Procedures. So, if any expert has an issue with any case that was handled by me, then he/she actually has an issue with the labs policies and procedures." Alley said he is flabbergasted by the findings, especially regarding Carmichael's testimony in the Gauthier case. "She didn't follow protocols and then lied about having done it," Alley said. "You hear about that stuff somewhere else. You just don't hear about that stuff here." Testing problems For 2 years, scientists in the chemistry section used a practice not supported by credible science to identify red phosphorus, a component in the manufacturing of methamphetamine, the report states. Although the practice was ceased in April 2003 after some junior members of the section challenged it, prosecutors said lab officials never checked past cases for errors. When prosecutors reviewed the meth-lab cases, they found 3 in which the invalidated practice had been relied upon. One case had been dismissed for unrelated reasons. 2 cases resulted in plea agreements. Jack Strickland, a defense attorney in one of the plea cases, said he plans to discuss the finding with his client, Justin Hall, to determine whether Hall wants to seek a new trial. In August 2004, Hall pleaded guilty to manufacturing a controlled substance and was sentenced to 7 years in prison. The prosecutors note that many of the chemistry section's problems were attributable to former chemists. A review of 40 cases to check the section's current operations found minor problems in 5 cases. Also troubling to prosecutors, the report states, was that Robert Adkins, a firearms analyst, was allowed to conduct peer reviews on blood-alcohol-level cases for the chemistry section. Crime-lab manager Tom Stimpson said the practice has been stopped, and he acknowledged that "we shouldn't have been doing it." He said the lab's peer-review process now exceeds accreditation requirements. Unnecessary delays For 18 months, a jail cell was home for Jonathan Byner. Byner was arrested in December 2002 after a 9-year-old girl identified him from a photo spread as the man who kidnapped her as she walked to school and who made her perform a sexual act. Despite a detective's request to have the crime lab analyze the child's clothing for biological evidence, the clothing sat untouched in the Police Department's property room. Crime-lab officials would later say they could find no record of such a request. Three days before Byner was to go on trial, tests revealed that a semen stain on the girl's pant leg was not a match for Byner. The case was immediately dismissed. Prosecutors say the delay highlighted the lab's lack of a system for managing test requests. Stimpson is now overseeing all testing requests and outsourcing of evidence. He said cases in which detectives request testing now typically have about a 1-month turnaround. Changes are also under way to address evidence storage problems, Stimpson said. In the past, evidence returned to the Police Department from the Tarrant County Medical Examiner's Office was stored in a temporary evidence room and, more recently, a shell space off the lab, instead of the property room. Although this practice was ceased in 1996, about 90 boxes of evidence related to cases going back 40 years had remained in the shell space. Stimpson said that the evidence has since been inventoried and that employees are marking it with its related-cases number and moving it to the property room. Prosecutors acknowledge that recently passed legislation, including the requirement that all public crime labs be accredited and the creation of a commission to investigate allegations of misconduct, should help with oversight. But as a further safeguard, prosecutors say they'll conduct a random review of DNA cases from any crime lab. Stimpson said the district attorney's review is welcome. "Right now we follow standard operating procedures, we do an internal audit, we plan to have auditors come from other labs to audit us once a year, we do proficiency tests, we do technical reviews," Stimpson said. "If he wants another layer of certainty on that, that's his choice." IN THE KNOW Timeline of crime-lab problems June 2002: Fort Worth Police Chief Ralph Mendoza seeks funding for crime-lab renovations and 3 new positions to reduce a backlog and staff turnover and ensure employee safety and proper processing of criminal cases. October 2002: DNA analysis is suspended after questions about forensic scientist Karla Carmichael's work cause prosecutors to forgo seeking the death penalty in a capital-murder case. April 2003: The Tarrant County district attorney's office begins a criminal investigation into the DNA lab. The Police Department fires Carmichael, saying she violated standard operating procedures and protocol during her proficiency test, behaved unacceptably at work and, according to some expert opinions, was unqualified to be a DNA analyst. July 29, 2003: Officials with the University of North Texas Health Science Center, the lab's technical adviser, write in a memo that forensic analyst Treva Armstrong worked at the lab despite not having documentation that she passed a competency exam. The district attorney's office begins investigating Armstrong's work. July 31, 2003: After questions arise about contaminated evidence in a rape case, the district attorney's office notifies police in writing that the office will no longer accept serology-testing results from the lab. The crime lab stops serology tests. April 2004: Armstrong, who was transferred to the ballistics unit after serology and DNA tests were discontinued, resigns. May 2004: As prosecutors are wrapping up their DNA and serology review, two former lab employees make new allegations of wrongdoing in the lab's DNA, chemistry and firearms units. The investigation is extended. September 2004: Police begin looking for sites for a new crime lab after a proposal to merge the police and county crime lab is quashed. October 2004: Tom Stimpson is hired as the crime lab's manager. January 2005: The chemistry and firearms units receive accreditation. November 2005: The crime lab resumed serology work last week after receiving provisional authorization from the Department of Public Safety. A site for a new crime lab is still being sought, and the lab is trying to get accreditation for its fingerprint-examination and serology units. (source: Fort Worth Star-Telegram) NORTH CAROLINA: Appeal holds off execution for year A year ago this week, death-row inmate Charles Walker was facing imminent execution in the murder of a Greensboro man. But just hours before his lethal injection was to occur, the state Supreme Court, in a rare move, upheld a stay ordered by a Guilford County judge. He wanted to hear more about two newly raised issues in the case. Walker's supporters were ecstatic. At the least, his lawyers had won him several more months of life. But those months have turned into a full year of legal wrangling. It's an unusual turn of events in a capital case in which the victim's body was never found. Walker, 40, was sentenced to death 10 years ago in the 1992 slaying of 20-year-old Elmon Tito Davidson Jr. Davidson was bound, tortured, beaten and shot inside a Greensboro apartment before his body was dumped in a nearby trash bin, according to court testimony. No forensic evidence linked the crime to Walker, whom authorities alleged is a New York drug dealer who calls himself "Supreme." Instead, virtually the entire case rested on the testimony of accomplices who either got deals from prosecutors and have since served their prison time or were never charged. Walker's execution date was scheduled last fall after a round of post-conviction appeals failed in the state and federal courts. A 2nd round of appeals, typically shot down in such cases, managed to persuade Guilford Superior Court Judge John O. Craig III to stay Walker's execution last November. Among several arguments, the defense claimed its client's death sentence, based on uncorroborated accomplice testimony, violated state law and public policy. After listening to both sides during a March court hearing, Craig later dismissed those claims. One issue remained, however. The defense in March claimed it had recently discovered that prosecutors had withheld evidence that could have helped Walker's case. Specifically, the defense requested 2 Greensboro police investigative files that included interviews from witnesses who testified against Walker. The files involved a killing and a shooting that occurred within days of the Davidson homicide. Under a U.S. Supreme Court decision, prosecutors must disclose information that might help the defense, including evidence that could be used to impeach the credibility of a state witness. Craig ordered the state to hand over the files, a move that led to Walker's 3rd round of appeals -- which are still pending. The evidence in the files, his lawyers say, could have been used at trial to shred the credibility of one of the state's key witnesses, Antonio Wrenn. He told police he and Walker bought trash bags to wrap up Davidson's body after the killing. According to the defense, Wrenn lied on the stand about his involvement in a shooting days after Davidson's death. But because prosecutors never turned over the police file on the incident, the defense couldn't challenge Wrenn's statements. Other information in the files also questions statements by other prosecution witnesses, the defense alleges. Had the jury known this, it probably would have reached a different verdict, the defense claims. "These people are well-known liars who were all rewarded for testifying against Charles," said Jonathan Megerian, one of Walker's attorneys. "We didn't know how many lies they told. The police did. I would be happy to have this case tried in front of a jury who knew everything." The state argues that the jury learned of Wrenn's extensive criminal history during the trial. Being accused in another incident -- the shooting -- wouldn't have swayed the jury, the state believes. Prosecutors also deny that the police files contained information that the defense could have used to change the trial's outcome. The judge sided with the defense on one other point. He allowed it to depose two former Greensboro police detectives, Lee Walker Jr., who led the investigation into Davidson's killing, and D.M. Minner. Megerian declined to detail the substance of their statements, saying the information would be discussed at a court hearing during the week of Dec. 12. In court filings, state prosecutors said they believed the depositions were unprecedented in a post-conviction appeal, dismissing them as merely a "fishing expedition." Prosecutors say the appeals arguments are straying far from the chief issues in the case. "It's seemingly endless," said Howard Neumann, the chief assistant district attorney who prosecuted the case. "I've yet to see anything to suggest he did not get a fair trial. And I've not seen any evidence to suggest that he's innocent. That's what is so frustrating about these (appeals.)" (source: News-Record) VIRGINIA: Warner Weighing Inmate's Plea For Clemency----Political Impact Shadows Decision on Capital Case Convicted murderer Robin Lovitt is scheduled to die by injection at Virginia's Greensville Correctional Center on Wednesday night. Only Gov. Mark R. Warner can save his life. Warner (D) has not yet granted clemency to a condemned killer since he took office in 2002. The state has executed 11 men in that time. But now, as Warner is considering a run for the 2008 Democratic presidential nomination, he must make a decision on the most controversial death penalty case of his 4-year term. Lovitt's attorneys argue that their client -- who has maintained his innocence -- should be spared because an Arlington Circuit Court clerk mistakenly threw away DNA evidence that could have proved his claim. Lovitt's legal team, which includes former Whitewater independent counsel Kenneth W. Starr, says that if Warner doesn't intervene, faith in Virginia's criminal justice system would be eroded permanently because of the possibility of an innocent man's execution. "Clemency will help ensure that the death penalty retains the support of Virginia's citizenry," Lovitt's attorneys wrote in their petition for clemency. "Indeed, commuting Mr. Lovitt's sentence to life in prison is vital to demonstrating that, in Virginia, society's ultimate sanction will be used only when every precaution has been taken to ensure that innocent persons are never executed." Lovitt's attorneys are asking that their client's sentence be commuted to life in prison, not that he be pardoned or set free. In an interview last week, Starr said that, as a result of the clerk's mistake, Lovitt has been "deprived of a very important remedy." Starr also said that Lovitt has been steadfast in his claims of innocence. "He looked me in the eye and stated very firmly and forthrightly that he did not take that life," Starr said. Lovitt, 41, was convicted and sentenced to death in the November 1998 stabbing of Clayton Dicks, 45, during a robbery at an Arlington pool hall. Emily Lucier, spokeswoman for Virginia Attorney General Judith W. Jagdmann, last week declined to comment on the clemency request, saying it rested in the governor's hands. In an earlier interview, Lucier said the case did not hinge on DNA evidence and that other evidence, including eyewitness testimony, "overwhelmingly implicated" Lovitt. The destroyed evidence has caused several academics, law students and religious officials to support Lovitt's appeal for clemency. His case also has attracted nationwide attention because Lovitt is in line to become the 1,000th prisoner executed in the United States since the death penalty was reinstated in 1976. If the execution proceeds, he will become the 1st person executed this year in Virginia, which has executed more inmates than any state but Texas. Kevin Hall, Warner's spokesman, said the governor, who supports the death penalty, has twice heard presentations by his counsel and other outside attorneys about the clemency petition and the views of the victim's family and others involved in the case. "The governor is giving it thorough and prayerful consideration," Hall said. During a 1999 trial, prosecutors said Lovitt went to Champion Billiards Sports Cafe, a 24-hour pool hall where he had worked as a cook, to steal money. They said Lovitt was confronted by Dicks and that he grabbed a pair of scissors off the bar and stabbed Dicks 6 times. A customer who walked in during the attack testified at trial that he was 80 percent certain that Lovitt was the assailant. And a cellmate told jurors that Lovitt had confessed. No DNA evidence linked Lovitt to the killing. But Dicks's DNA, along with that of another person, were found on a pair of scissors from the scene. Tests done on that genetic material were inconclusive, and neither implicated nor exonerated Lovitt. Before Lovitt's appeals were exhausted -- and three weeks after a Virginia law took effect that required the preservation of biological evidence from all felony trials -- an Arlington court clerk threw away all the evidence, including the scissors, eliminating the chance of further testing. Lovitt admits that he was at the pool hall the night of the killing but says he stayed in the bathroom while Dicks fought with another man. He said he emerged to find that Dicks had been stabbed, grabbed the cash box and fled. Stephen F. Smith, a University of Virginia law professor, said that without compelling evidence of innocence it is difficult for any governor, particularly one considering national office, to grant clemency. He said Republicans could use such a decision to paint Warner as "soft on crime." "I think Mark Warner would be playing with fire by granting this clemency request without clear-cut evidence of innocence," Smith said. If a candidate appears soft on crime, it can be difficult to rebound, Smith said. He recalled the 1988 presidential race in which Democratic nominee Michael Dukakis damaged his campaign when asked during a debate whether he'd support the ultimate punishment if his wife were raped and murdered. Dukakis, with an apparent lack of emotion, said he didn't think the death penalty was a deterrent. Elizabeth T. Smith, a University of South Dakota professor who teaches a course called "Who shall die? The politics of the death penalty in the U.S.," agreed that politicians run the risk of losing support if they appear to waver in their support of capital punishment. "Americans often use the death penalty as a cue as to how tough a politician is on crime," she said. "You can't win an election by being merciful." But recent concern over wrongful convictions could give Warner the backdrop he needs if he decides to spare Lovitt, she said. Warner would have to defend that decision by noting that DNA testing has resulted in exonerations and by explaining that such tests are impossible in this case because of a state error. Warner also would have to stress that he wasn't releasing Lovitt, just commuting his sentence to life behind bars, she said. "It's not letting him out on the street. It's saying that, in the absence of conclusive proof, taking someone's life is an extreme and unjust action," she said. Other than Warner, every Virginia governor who could commute a death sentence has done so since the U.S. Supreme Court allowed executions to resume in 1976. Republican John N. Dalton was the first to spare an inmate in 1981. The most recent occurred in 1999, when then-Gov. James S. Gilmore III (R) granted clemency to Calvin E. Swann, a convicted murderer who suffered from schizophrenia and spent time in mental institutions. In recent months, Lovitt's plea has gained the support of a broad group of academics and anti-death penalty advocates. But concern over the destruction of DNA evidence also has resulted in some unlikely allies. Mark L. Earley, the former Republican state attorney general who now is president of Prison Fellowship Ministries in Northern Virginia, has urged Warner to grant clemency. Earley said in a letter to Warner that he feels "great sympathy" for Dicks's family, but that it would be "morally unfair to execute Mr. Lovitt." Dicks's mother, Mary Dicks, said she remains convinced that Lovitt killed her son. She said several of her children are planning to travel to Jarratt on Wednesday to witness his execution. "What he gave Clayton, that's what he deserves," Dicks said. "Clayton got death. The Lord knows who did it. I know he did it." (source: Washington Post) *********************** Warner, Lost in Thought Ever since taking office 4 years ago, Virginia Gov. Mark R. Warner (D) has faced the question of whether to revisit the case of Roger Keith Coleman, who was executed in 1992. Both before and since Mr. Coleman was put to death, the question of his guilt has haunted Virginia's justice system. An early generation of DNA testing suggested that he did rape and murder his sister-in-law, Wanda McCoy. But the test's methodology has always been controversial, and physical evidence remains that might yield more conclusive results. Testing it should never have been a tough call. Yet Mr. Warner has dithered -- and dithered some more. When a New Jersey charity that investigates wrongful convictions petitioned him for the testing, he sat on the request. When Mr. Coleman's prosecutors declared that they had no objection to the testing, he did nothing. He said on more than one occasion that he was wrestling with the question. Now he is about to leave office, and he declared last week that before he goes, he will decide whether to pursue the testing. His office has recently taken steps to reach an understanding concerning how the testing would take place both with the charity and with the scientist who has been the custodian of the evidence since conducting the earlier tests. But he still has not decided whether to go forward. If Mr. Warner leaves office without ordering the testing, it will represent a failure of nerve that should be remembered if and when he tries to present himself as a decisive leader in a presidential contest. It would take little political courage for Mr. Warner to order the testing. He played no role in Mr. Coleman's conviction or execution. What's at stake is the principle that in the face of uncertainty the state has an obligation to learn and report the truth, however uncomfortable that may be. You'd think the governor also would want to learn whether a murderer remains at large. Testing might wipe away a doubt that has stained Virginia's criminal justice system for more than a decade, or it could show that the system failed. Mr. Warner has said he worries about a third possibility: that testing would yield no conclusive result. But that would leave public understanding of the case largely unchanged, since the evidence now is hardly conclusive. Mr. Warner's other concern, expressed in the past, is with upsetting the finality of a verdict. But the finality of a wrong verdict is not worth protecting. If Mr. Coleman was innocent, refusing to find that out means perpetuating an already irremediable injustice -- and forgoing the prosecution of whoever killed Ms. McCoy. (source: Editorial, Washington Post) ************************** Dying for 1,000 The United States and Robin Lovitt, with no thanks to New York, stand on the brink of a milestone, the kind nobody is likely to commemorate with sheet cake: If all goes to plan, the 41-year-old Lovitt on Wednesday will become the 1,000th execution carried out in the U.S. since the Supreme Court reinstated the death penalty in 1976. If there is any applause, it could come from China, Iran or Vietnam, which with our nation lay claim to 97 percent of the executions carried out in 2004. The 997 executed to date in the U.S. include 11 women, at least 20 foreign nationals, 22 juveniles and 34 who had evidence of mental retardation, according to a count Friday by USA Today. For 829, the end was by injection, 152 were electrocuted, 11 gasped in the gas chamber, three were hanged and 2 were killed by firing squad. Nearly 6 in 10 were white, nearly 34 % black, 6.3 % Latino; American Indians, Asians and others constituted slightly more than 2 %. Since 1977, when Gary Gilmore's execution by firing squad in Utah broke a 10-year moratorium, on average one person has been executed every 10 days. The wrong region to be convicted of a capital crime has been the South by far: Texas leads with 355 executions, Virginia follows with 94, Oklahoma has killed 79 and Florida, 60. 2 states are expected to pad their totals before Lovitt goes: Eric Nance is scheduled to die tomorrow in Arkansas and John Hicks Tuesday in Ohio. Their executions would bring the count to 999 - reached with no aid from New York. New York Gov. George Pataki came to power in 1994 pledging to reinstate capital punishment. He got his wish in 1995, but no death sentence has been carried out here since 1976. In a 4-3 ruling in June 2004, our Court of Appeals held that a sentencing provision in the state's death-penalty statute violated the state constitution. Pataki has called on the Legislature to make what would appear to be a relatively simple correction to the law. Lawmakers, however, have been in no rush to act - no doubt reflecting the public's diminished enthusiasm for the cause. An October survey by Gallup pegged nationwide support for the death penalty at 64 %, the lowest in 27 years, and last year the number of people sentenced to death reached a nationwide low - at a time where some members of Congress are trying to speed up the time between sentence and execution. The rush seems unwarranted and imprudent, given the growing number of convictions being overturned as DNA technology is applied to old convictions, revealing contrary facts and exonerating the condemned. Indeed, since 1973 some 122 prisoners have been freed from death row based on evidence of innocence, including DNA evidence - reason alone for New York to go slow before re-entering the capital punishment morass. And DNA, to be sure, does not address every legal wrong. In Texas, a Houston Chronicle investigation is raising serious doubts about the 1993 execution of Ruben Cantu, who was the state's fifth teenage offender to be executed. In an article Monday, the newspaper reported that a long-silent co-defendant in Cantu's murder trial now says in an affidavit that he allowed Cantu to be falsely accused, even though the then 17-year-old Cantu wasn't present for the slaying for which Cantu was convicted. The only eyewitness in the case has also recanted, citing police pressure to identify the boy as the killer. Said Sam Millsap Jr., the prosecutor who charged the case as a capital crime: "It's so questionable. There are so many places where it could break down. We have a system that permits people to be convicted on evidence that could be wrong because it's mistaken or because it's corrupt." Cantu went to his grave pleading innocence; Lovitt, sentenced to die for a 1998 pool-hall stabbing death, may well do the same. Virginia, which has carried out more than 1,300 executions in its history, more than any other state, and which allows the executions of the mentally retarded, the severely brain damaged and the mentally ill, according to Virginians for Alternatives to the Death Penalty, lost almost all of Lovitt's trial exhibits. The blunder denies Lovitt opportunity to assert his innocence claims through improved DNA testing - a fact falling on deaf ears in the courts. The Washington Post on Friday called on departing Gov. Mark Warner to halt the execution, given that "some doubt" clouds the conviction. The newspaper noted that Warner, in 4 years, had not once halted an execution. With such a track record, 1,000 should hardly seem in doubt. (source: Opinion, The Journal News) ******************** Witness unsure on Lovitt----He tells investigator he can't endorse execution because of own testimony The only eyewitness to identify Robin Lovitt as a killer purportedly believes Lovitt should not be executed Wednesday because of his uncertain identification. "It would be wrong in my part to say that this guy deserves the death penalty because . . . I wasn't 100 percent sure at the time," Jose Alvarado told a private investigator this month, according to an affidavit. "Based on my testimony, I am not sure if this particular guy deserves the death penalty." Alvarado testified at Lovitt's 1999 trial that he was "80 percent" sure Lovitt was the man he saw stabbing Clayton Dicks, an employee of Champion Billiards, on the night of Nov. 18, 1998, in Arlington County. In an earlier hearing, he had been unable to identify Lovitt. Alvarado's statement has been forwarded to Gov. Mark R. Warner, who is considering a clemency petition from Lovitt. Lovitt is asking for his death sentence to be commuted to a sentence of life without parole. If Lovitt's execution proceeds as scheduled Wednesday, it could be the 1,000th execution in the United States since 1976, when the U.S. Supreme Court allowed the resumption of the death penalty. A report this year by the Innocence Commission for Virginia said 75 % of 100 criminal convictions across the country found wrongful by DNA testing involved mistaken eyewitness identification. Eyewitness identifications are also more difficult when the witness and alleged perpetrator are of different races, as are Alvarado and Lovitt, the study found. There is other evidence against Lovitt, a parolee at the time of the slaying. Among other things, Lovitt brought the cash drawer from the pool hall to his cousin's house shortly after the slaying. And Lovitt, who used to work at the pool hall, had once used the same pair of scissors believed to be the murder weapon to open the cash drawer. Lovitt has maintained his innocence, claiming he was hiding in a bathroom while another man struggled with Dicks. Lovitt said that when he left the bathroom, he found the cash drawer and fled with it. Warren Von Schuch, deputy commonwealth's attorney for Chesterfield County, said it is not unknown for witnesses or jurors to express doubts and concerns as executions near and their roles and responsibilities take on more weight. Von Schuch has sent more than a dozen men to death row. He is not familiar with the Lovitt case, but sometimes jurors or witnesses are placed under a great deal of pressure by lawyers for the condemned, he said. Alvarado's statement, however, is largely consistent with his trial testimony. He was interviewed Nov. 17 in his apartment by a private investigator, Ronald Sandoval, hired by Kirkland & Ellis, a Washington law firm representing Lovitt. Sandoval wrote a 4-page statement based on his conversation with Alvarado and which Alvarado appears to have initialed. Sandoval said in his affidavit that Alvarado would be willing to testify about the statement's contents. According to a Virginia Supreme Court summary of the trial, Alvarado and another man walked into the pool hall and saw Dicks struggling with his killer. The man with Alvarado did not identify Lovitt during the trial. Alvarado, 24, lives in Alexandria. He could not be contacted for comment. According to the statement he gave police the night of the slaying, he could not be sure if the assailant had a beard or a moustache. "I just saw him like to the side. I couldn't see his face," Alvarado told an Arlington police detective that night. Asked by the detective if he could recognize the assailant, Alvarado, then 17, said: "Not so sure. My head's very tired." Alvarado was also unable to identify Lovitt as the assailant at a preliminary hearing in the case held on Dec. 29, 1998. But at Lovitt's 1999 trial, Alvarado pointed out Lovitt in the courtroom as the assailant. Under cross examination he testified that, "You understand that every time I see him, he looks more like the person I saw." He then testified he was 80 % sure. Alvarado said in his Nov. 17 statement that he "probably said 80 % because after talking to the government's attorney in the hallway before I testified, I felt bad because I was confused." "I didn't know if to say I was 60 % or 80 % or 90 % or 50 % if he was the guy. I knew that after talking to everybody I knew I wasn't 100 % sure if he was the guy or not," Alvarado said. He also said, "I was never pressured by anybody to change my mind." A spokesman for Kirkland & Ellis said that Alvarado's recent statement "further confirms that the on-the-stand eyewitness identification of Mr. Lovitt at trial was not reliable." (source: Richmond Times-Dispatch) MARYLAND: URGENT ACTION APPEAL 25 November 2005 UA 296/05 Death Penalty USA Wesley Eugene Baker Wesley Baker (m), black, is scheduled to be executed in Maryland during the week beginning 5 December 2005, for the 1991 murder of a white woman, Jane Frances Tyson. Jane Tyson was shot in the head at point-blank range on 6 June 1991, as she was getting into her car at a shopping mall. A passer-by pursued a vehicle with two occupants which sped from the scene, noted its registration number and called the police. Driver Gregory Baker and passenger Wesley Baker were arrested after a chase. In Maryland, only the actual murderer can be sentenced to death. Wesley Baker was charged as the gunman. He was sentenced to death on 30 October 1992. Gregory Lawrence was sentenced to life imprisonment. Doubts have been raised about whether Wesley Baker was the actual gunman. The victim's six-year-old grandson, who was present at the attack, indicated that the man who shot his grandmother ran to the driver's side of the getaway vehicle. The man who pursued the vehicle identified Wesley Baker as being on the passenger side. Blood from Jane Tyson was found on Baker, but Lawrence's clothing was not tested. There were fingerprints from Baker's right hand on Tyson's car. However, as the US Court of Appeals for the Fourth Circuit noted in 2000, ''one must wonder how it was possible for [the right-handed Baker] to hold the gun to Tyson's head and leave his fingerprints on the [car], especially in light of the fact that the incident took only a matter of moments.'' It emerged after Baker's trial that Gregory Lawrence had a history of armed robberies, including a carjacking in which he had held a gun to the victim's head. In denying Baker's appeal in July 2000, the Fourth Circuit Court of Appeals admitted that ''the evidence that Baker shot Tyson was not overwhelming''. The United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty state that ''capital punishment may only be imposed when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.'' Wesley Baker was the subject of two previous UAs: UA 98/01 (AMR 51/059/2001, 12 April 2001) and EXTRA 33/02 (AMR51/065/2002, 29 April 2002). BACKGROUND INFORMATION In recent years Maryland's capital justice system has drawn scrutiny and concern. In 1996 the then governor, Parris Glendening, appointed a Task Force on the Fair Imposition of Capital Punishment to look into the fairness of the state's death penalty system. The Task Force concluded that in Maryland ''the high percentage of African-American prisoners under sentence of death and the low percentage of prisoners under sentence of death whose victims were African- American remains a cause for concern''. Following this, Governor Glendening commissioned a study by the University of Maryland into the state's capital justice system. The study's report was released in January 2003. Entitled An Empirical Analysis of Maryland's Death Sentencing System With Respect to the Influence of Race and Legal Jurisdiction, by Professor Raymond Paternoster of the University of Maryland, the study examined all first and second-degree murders committed in Maryland from September 1978 until December 1999, approximately 6,000 cases in all. This is the most comprehensive study of the impact of race and geography on the death penalty in Maryland. Governor Glendening also imposed a moratorium on executions in May 2002, just days before Wesley Baker was due to be executed, pending the outcome of the study. The University of Maryland's study concluded that, even when other factors are taken into account, people who kill white victims are "significantly" more likely to face the death penalty than killers of non-whites. It also concluded that prosecutors in different counties within the state "exhibit considerable variation" in their pursuit of the death penalty. In terms of whether a particular "death-eligible" murder will be pursued as a capital crime, therefore, "clearly the jurisdiction where the homicide occurs matters and matters a great deal". Wesley Baker was prosecuted by Baltimore County, which was named as one of the US counties with the highest death sentencing rates in a major study of the US death penalty by Columbia Law School in 2002, as well as the highest error rates in capital cases. Baltimore County accounts for three of the four people executed in Maryland since 1978, when the current death penalty statute became effective. Upon taking office in 2003, Governor Robert Ehrlich lifted the moratorium in the state, saying that he would review every death warrant on a case-by-case basis. Amnesty International does not seek to excuse the perpetrators of violent crime. However, it believes the death penalty is wrong in all cases, This is a punishment that is an affront to human dignity and a part of a culture of violence rather than a solution to it. It has not been shown to deter crime more effectively than other punishments; it denies the possibility of rehabilitation and reconciliation, carries the risk of irreversible error as well as inconsistent and discriminatory application, and consumes resources that could be used to fight violent crime and assist those affected by it. In addition, in the USA capital justice system is marked by arbitrariness, discrimination and error. RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible: - expressing sympathy for the family and friends of Jane Tyson, and explaining that you are in no way seeking to excuse the manner of her death; - expressing deep concern at the imminent execution of Wesley Baker; - noting that there are still doubts about whether he was the gunman; - noting the University of Maryland study which concluded that there is racial and geographic bias in the state's capital sentencing system; - noting that these elements are evidenced in Wesley Baker's case; - suggesting that the systemic problems revealed by the study cannot be remedied on a case-by-case basis at the time of clemency proceedings; - urging Governor Ehrlich to commute Wesley Baker's death sentence. APPEALS TO: Governor Robert L Ehrlich Jr Office of the Governor State House Annapolis, MD 21401-1925 Fax: 1 410 974 3275 Salutation: Dear Governor PLEASE SEND APPEALS IMMEDIATELY. Amnesty International is a worldwide grassroots movement that promotes and defends human rights. This Urgent Action may be reposted if kept intact, including contact information and stop action date (if applicable). Thank you for your help with this appeal. Urgent Action Network Amnesty International USA PO Box 1270 Nederland CO 80466-1270 Email: [email protected] http://www.amnestyusa.org/urgent/ Phone: 303 258 1170 Fax: 303 258 7881 ---------------------------------- END OF URGENT ACTION APPEAL ---------------------------------- ***************************** Opponents protest as execution nears----Group gathers at governor's home to halt death set for early Dec. Just 9 days before convicted killer Wesley Eugene Baker could be executed for the 1991 shooting of a Baltimore County woman, death penalty opponents gathered outside the governor's mansion in Annapolis yesterday to protest the scheduled execution and call for an end to capital punishment in Maryland. "We're here to tell the governor that there are no throwaway people, that cold-blooded killing by the state is no better than cold-blooded killing by a professional murderer, by a thug in an alley or by a resident of Iraq," Terry Fitzgerald, an organizer with the Baltimore Campaign to End the Death Penalty, shouted to the nearly 30 protesters outside Government House. The demonstration was the first in a series of events that death penalty opponents have organized leading up to the week of Dec. 5, when Baker is scheduled to die by lethal injection. The schedule includes a prayer service Thursday night at St. Vincent DePaul Roman Catholic Church in Baltimore, a protest Saturday afternoon outside the Supermax prison in Baltimore that houses death row inmates and a gathering Thursday evening at the city's First Unitarian Church during which another death row inmate, Vernon Evans, is expected to call in from prison. Baker, 47, was convicted in 1992 of killing Jane Tyson, a 49-year-old teacher's aide who was shot in the head and robbed of her purse in front of two of her grandchildren outside Westview Mall. Baker was initially scheduled to be executed the week of May 13, 2002. But on May 9, then-Gov. Parris N. Glendening imposed a moratorium on executions while a study of Maryland's use of the death penalty was completed. The University of Maryland study found "no evidence that the race of the defendant matters in the processing of capital cases," but that statistically, black defendants who killed whites were the most likely to be charged with capital murder and sentenced to death in Maryland. Baker is black; his victim was white. Researchers also noted a geographical disparity in how death sentences are handed down, saying that defendants in Baltimore County are much more likely to be sentenced to death than defendants in other jurisdictions. Protesters made reference to the study's findings yesterday. As state workers hung red bows on the fence that encircles Gov. Robert L. Ehrlich Jr.'s official residence, they chanted, "Hey Ehrlich, just face it, death row is racist." They carried signs that characterized the state's use of capital punishment as "proven arbitrary" and "proven racist." The demonstration attracted a broad spectrum of activists, from ministers and Green Party members to the relatives of both murder victims and convicted murderers. After standing on Church Circle, where they asked passing motorists to sign petitions against the death penalty, the group marched around State Circle to Lawyers Mall, where they took turns shouting messages in the direction of the governor's mansion. "I stand as a minister of the Gospel," boomed the Rev. James W. McEachin Jr., pastor of the Corner Rock Ministries in West Baltimore. "The Bible says, 'Thou shall not kill.' That includes the state." Bonnita Spikes, a member of Maryland Citizens Against State Executions who lives in Beltsville, said she attended the protest to show that "all murder victims' families do not want the death penalty." Spikes' husband, Michael, was killed 11 years ago during a convenience store robbery. "Killing is wrong, morally wrong, and it's too flawed to fix. It affects my race more than any other," said Spikes, who is African-American, "and that offends me." Greg Massoni, a spokesman for the governor, said in a telephone interview that Ehrlich was out of town yesterday and did not see the protest. (source : The Baltimore Sun) ************************* Death penalty seen as 'racist' Protesters rallied outside the governor's mansion yesterday, calling for Gov. Robert L. Ehrlich Jr. to grant clemency to convicted killer Wesley Eugene Baker days before his scheduled execution next week. More than 20 demonstrators rallied for Baker and other death row inmates. Baker, 47, is scheduled to be executed the week of Dec. 5 for the 1991 killing of 49-year-old teacher's aide Jane Tyson in front of her grandchildren in a Baltimore County mall parking lot. Terry Fitzgerald of the Baltimore Coalition Against the Death Penalty, who organized yesterday's protest, said that killing Baker is "really no better than the actions of the murderers." "We know that the death penalty is racist and targets the poor, that innocent people end up on death row and that it does not deter crime," he said. On Wednesday, the state's Court of Appeals rejected a stay of execution for Baker. The appeal's court, the state's highest, last month upheld Baker's death sentence, unanimously rejecting an appeal from his attorneys, who argued that his sentence was illegal because the death penalty is applied in a racially and geographically discriminatory way in Maryland. His attorneys also had argued that his death sentence should be overturned because his attorneys at his sentencing hearing did not offer evidence of an abusive childhood. Baker barred his trial attorneys from presenting any of his family history, according to court papers. Baker was within a week of execution in May 2002 when Gov. Parris N. Glendening, a Democrat, imposed a moratorium, after a University of Maryland study was released about the relationship between race and how the state dispenses death sentences. Mr. Ehrlich, a Republican, lifted the moratorium after he was elected in 2003. Mr. Fitzgerald said using the death penalty as a tool of retribution for victims' families is pointless and only creates new victims. "Nothing is served by vengeance," he said. "To those who say 'what if one of your family members were murdered?' One of my responses would be 'what if someone in your family was on death row?'" Rebecca Christopher, 21, a student and the daughter of Baker's attorney Gary Christopher, attended the rally, saying the practice is "barbaric" and hypocritical. "It's morally wrong to kill someone, to show that killing someone is wrong," she said. Mr. Christopher's wife, Evelyn Sprucin, said the death penalty is taxing to victims' families because of the long appeals process. "I can't imagine the pain they feel, but to me, the death penalty prolongs their pain," Mrs. Sprucin said. "If someone is in prison, then the case is over and the [victim's family] can start moving on with their lives." The demonstrators also protested the sentence given to Vernon Evans Jr., who was sentenced to death for the 1983 contract killing of two Baltimore County motel clerks. Earlier this month, the Court of Appeals upheld Evans' death sentence. Baker and Evans, who are black, have appealed their sentences because of the University of Maryland's study. Evans' sister, Gwendolyn Bates, an evangelist, participated in the protest. "I don't believe that the state has a right to take another human being's life," she said. "I don't believe anyone should take another human being's life. And if that law is broken, then they should be given a sentence of life in prison or whatever it takes, but not to take that person's life." (source: Washington Times) OHIO: An execution approaches under radar In case you missed it ... Ohio is about to execute its 18th convicted killer since the state resumed capital punishment in 1999. John Hicks, 49, of Cincinnati, is scheduled to become the 5th Ohioan put to death for murdering someone from Hamilton County. Hicks suffocated his 5-year-old stepdaughter, Brandy Green, according to court papers. Barring a last-minute stay, he will die by injection at Southern Ohio Correctional Facility near Lucasville shortly after 10 a.m. Tuesday. We've published a couple of recent articles on Hicks' final appeal, but as times passes, Hicks just isn't getting the media attention the first Death Row "volunteer" - Wilford Berry - got in 1999, or a pair of remorseless killers - John W. Byrd and Alton Coleman - got in 2002. Even William G. Zuern rated front-page coverage last year as the killer of a Hamilton County sheriff's deputy. "It's sad when society becomes sort of numbed that there are killings going on in its name," said Sister Alice Gerdeman, chairwoman of Ohioans to Stop Executions and coordinator of the Intercommunity Justice and Peace Center in Over-the-Rhine. "That's what disturbs me," Gerdeman said. "If a society decides that they are going to allow execution, society should have to know when that is being done in their name." Hicks nearly attracted national headlines, according to Gerdeman. That's because he briefly was in the running to become the 1,000th killer in modern U.S. history to be executed. After court stays were granted for other killers on Death Row, including John Spirko of Van Wert County, Hicks "will probably be the 998th or 999th person in the nation," Gerdeman said. Mark Weaver, former deputy attorney general, wants Hicks executed, but is equally troubled by the lack of publicity about him. "It's a tragedy in itself that a case like John Hicks doesn't receive coverage that some of the earliest capital cases received," he said. For instance, Berry was executed for shooting his employer, a Cleveland baker, during a robbery. "But his crime was nowhere near as heinous as John Hicks,'" according to Weaver. "I was involved with dozens of death penalty cases when I was deputy attorney general and the John Hicks case sticks with me 10 years later. ... This is evil, pure and simple. And it deserves front-page coverage." After strangling his mother-in-law, Maxine Armstrong, for $300 in drug money, Hicks left her Cincinnati apartment, then returned to kill his 5-year-old stepdaughter, Brandy Green, fearing she would testify against him, according to court papers. Hicks tried to smother her with a pillow. When that didn't work, Hicks tried to choke her and then placed duct tape over her nose and mouth, according to the trial transcript. Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said there is still plenty of media attention to higher-profile murder cases as well as the debate over capital punishment. Executions also continued to get steady attention through books, television and movies, he said. That's little solace to activists like Gerdeman. "It saddens me," she said of Hicks. "Nobody should go unmourned. It doesn't matter who they are. They have been part of society and we need to know that." (source: Cincinnati Enquirer) ****************** A major diversity problem in court 10 years ago, when a statewide commission began to examine racial fairness in Ohio's courts, minorities described "a sea of white faces." >From the arresting officer and the court clerk to the defense attorney, prosecutor and judge, "no people of color were observed," citizens told the commission. A decade after those hearings and the creation of measures to increase diversity in the courtroom, the racial divide continues. Courtrooms in Stark County come in mostly one color: white. Of the 16 municipal and county judges, only one, Probate Judge Dixie Park, identifies herself as belonging to an ethnic minority. The magistrates who handle cases under the supervision of those judges are also white. Among the 754 active attorneys registered in the county, only 3 % are ethnic minorities, according to statistics from the Ohio Supreme Court. That might not be surprising when only one in 10 Stark County residents is a minority and when across the state, only 6 % of active attorneys identify themselves as belonging to a minority group. But the low number of minority attorneys and judges stands out in Stark County, where 43 % of felony defendants in Common Pleas Court last year were minorities. DOES IT MATTER? The number of ethnic minorities working in the legal system does not itself determine whether the courts are fair. But it can create the perception of bias. "No matter how fair the system might be, if the perception is that it's slanted one way or another, it's not fair to anyone," said Steve Maurer, chairman of the minority involvement committee of the Akron Bar Association. The Ohio Commission on Racial Fairness came to a similar conclusion when it examined the state's courts in the 1990s. The commission, sponsored by the Ohio Supreme Court and the Ohio State Bar Association, found "an enormous chasm" between the way whites and minorities perceived the fairness of the courts. Citizens complained about racial profiling by police, poor performance by appointed attorneys and a disparity in sentences given to white and minority defendants. And the high rates at which blacks went to prison or landed on death row compared to their white counterparts raised serious questions, the commission said. "These perceptions are firmly entrenched and, for some, take on the character of irrefutable, universal truths," the commission wrote. Globalization is another reason to increase the number of minorities in the legal field, Maurer said. As business goes global, companies demand that the law firms that represent them are diverse and able to "represent them appropriately in all cultures and segments of the community," he said. SMALL CITIES HAVE BIGGER PROBLEMS When Frank L. Beane was coming up through the ranks, Canton had 2 black judges: Ira Turpin and Clay Hunter. Beane's father was a well-known black attorney for years. The younger Beane started his career as an intern in the city solicitor's office in 1972. He went on to work in the U.S. public defender's office in Cleveland, but returned to Canton in 1982 to help care for his aging parents, he said. For him, the question isn't why aren't there more minority attorneys in town. It's why any would want to come to Canton in the first place. "I firmly believe if I had stayed in Cleveland or any other major city, I firmly believe I would be way far ahead of where I am now," Beane said. "I'd be making the money, everything." It's hard enough to get talented white kids to stay in the area, Beane said. "For black professionals, there's no social life, no opportunity for economic growth." Nor is there a minority bar association for networking. "Canton, Ohio, is a nice place to come to retire when you're old," Beane added. "If you're young, talented and gifted, it's not the place to be." That's a hard mentality to battle, say those in the area who recruit. "It's something that I'm always looking at when a position comes up." Stark County Prosecutor John D. Ferrero said. "A lot of times we don't get the resume's because they go elsewhere." Ferrero said he has had fewer options to hire new attorneys. One of his more recent hires is a black woman who worked for the office as an intern and was hired into the juvenile division. Canton Law Director Joseph Martuccio said his 15-attorney staff includes no minorities at the moment. A diverse staff better reflects the community and enhances professionalism, Martuccio said, but minority attorneys who worked for the law department have gone on to other jobs. The department tries to hire from its pool of legal interns, but more than two years have passed since the department had an opening, he said. The starting pay is a little less than $35,000 a year and candidates "are being recruited by private law firms or state and federal agencies that can pay more." Martuccio, who is white, said his daughter recently started law school and "I don't know honestly if she'll come back. How do you get them back on the farm?" FINDING HER PLACE Apiyo Oloya said her phone isn't ringing off the hook. A graduate of Jackson High School and Georgetown University Law School in 2004, Oloya returned to Stark County to pursue her career. She passed the state bar exam, but has struggled to find an entry-level job, she said. Oloya, 26, is an intern for the Massillon Law Department. "I noticed people spoke a lot about diversity when I interviewed with them. They were sure to point that out," said Oloya, whose parents immigrated to the United States from Africa. Being a minority might cause employers to look at your resume a little longer, but it doesn't make getting a job a sure thing, she said. Oloya explained her struggles in terms of economics and geography. Law firms generally hire from their own interns or want a person with a couple of years experience, she said. Going to school on the East Coast meant that Oloya didn't intern in Ohio and that her alumni network is limited. Finding jobs with local government is difficult because of hiring freezes, Oloya added. And as a minority and a woman, there are few other attorneys with whom to share experiences and network, she said. "I try not to focus just on women or minorities," Oloya said. "It's great to have something in common, but you have to find your network elsewhere. And there are people willing to help you." With local job prospects thin, Oloya said she wants to land a job with a federal agency and move to a city that's more metropolitan -- nothing like Canton." "The job opportunities for me are not here," Oloya said. "With no opportunity for a job, I don't see a future here." (source: Canton Repository)
