Author Archives: Lonnie Soury

The Case of Debra Milke- Steve Drizin

Steve Drizin, one of the world’s leading experts on wrongful convictions and false confessions, writes: I love the unexpected e-mail or phone message announcing a win in a wrongful conviction case.  Such e-mails are rare, but even rarer in a capital case.  I received such an e-mail today in the case of Debra Milke, an Arizona woman on death row for more than two decades for allegedly hiring two men to murder her son.  I’ve always had my doubts about Milke’s guilt but I’ve never doubted that she was interrogated by a “bad cop” by the name of Saldate.  The only evidence against Debra was an alleged unrecorded confession that was the product of an interrogation by a detective who was ordered to record the interrogation but refused to do so.  The trial boiled down to a swearing contest between Milke and Saldate which Saldate won and these credibility findings have haunted the case ever since even as evidence of Saldate’s mendacious character surfaced again and again.  The  State knew that Saldate was a liar who had a long history of misconduct and disciplinary violations – yet they failed to produce this information to the defense.  It was only through the brilliant post-conviction and habeas work of Milke’s lawyers – Lori Voepel, Mike Kimerer, and Larry Hammond – that the full scope of Saldate’s misconduct came to light.  And the state court and the federal district judges paid little attention to it.

Their hard work finally paid off today in the stunning opinion of the 9th Circuit.  The opinion is based on Brady and Giglio but it is the concurrence of Judge Kozinski that deserves special mention for those who support electronic recording of interrogations.  Kozinski would have ruled that Milke should have been given a new trial on Miranda violations and on voluntariness grounds.  His opinion provides one of the strongest arguments for electronic recording of interrogations and raises questions about how much deference to give to state court factual findings when there was no basis for the interrogating officer not to record the interrogation.  Without a recording, Kozinski, writes the state of Arizona is prepared to execute a woman solely on the sayso of an admitted chronic liar, who disobeyed a direct order to record the interrogation.  That is simply too thin a reed upon which to rest a capital conviction (or any conviction, for that matter).  It’s hard to do justice to Judge Kozinski’s opinion which not only takes Saldate to task but takes his supervisors and prosecutors to task for continuing to let him interrogate suspects and build cases with confessions after his misconduct came to light.

Congratulations again to the lawyers and to Ms. Milke. After such disappointment, today is a day they can relish at least until they have to get back to work to prevent a higher court from snatching away their victory.  The Center on Wrongful Convictions has been proud to play a small role in this effort.  We filed an amicus brief in this case in 2007.  Much of Judge Kozinski’s opinion – especially his defense of recording and his lack of faith in factual findings based on unrecorded interrogations (at least in a case with Saldate) – tracks arguments we made in the amicus brief.  My colleague Laura Nirider, then “only” a law student, co-wrote the brief with me.

Steve Drizin, Center on Wrongful Convictions, Northwestern University School of Law

Great Neck Looking Back at Capturing the Friedmans

Carol Frank, a reporter for the Great Neck Record takes a look back at what happened in the infamous Great Neck mass sexual abuse case 25 years ago, featured in Andrew Jarecki”s film, Capturing the Friedmans. She interviews Arline Epstein, the mother of a nine year old who admitted to being sexually abused in the Friedman home. Arline vividly recalls the hysteria that existed at the time which, she now believes, led parents and children to make a terrible mistake. Arline”s son Michael, now 34, recently met with investigators for Friedman and told them that he lied about what happened, like many of the other boys who were pressured by police, psychologists and their parents to provide false testimony. Michael also contacted the Nassau County DA Kathleen Rice to tell his story. Arline Epstein and other parents also want to meet with the Nassau County District Attorney to tell their story and find out the truth behind the conviction of Jesse Friedman.

False Confessions, Finally Justice-Steven Drizin, Center on Wrongful Convictions

Friday’s exoneration of Damon Thibodeaux (La.) – the 300th– was just the start of a glorious week for those who follow false confessions. It’s hard to top walking an innocent false confessor off of death row (Thibodeaux) but yesterday’s decision by an appellate court in Connecticut in the case of Richard Lapointe comes pretty close (see attached opinion).

Lapointe was tricked into confessing to the murder and sexual assault (and arson to cover up the crime) of Bernice Martin, an elderly relative of his wife’s. Born with a rare mental disability – Dandy Walker Syndrome – which heightened his already suggestible and compliant nature, Lapointe was no match for the aggressive tactics used by the police. He ultimately confessed and even thought the confession was at odds with the objective evidence of the crime and an alibi – he was watching television – made it virtually impossible for him to have committed the crime, he was convicted.

Over the past nearly two decades, a group of advocates – the Friends of Richard Lapointe – have done everything in their power to bring attention to his plight. Led by Bob Perske – whose work on documenting the connection between mental disabilities and false confessions – is groundbreaking, Donald Connery (whose worked help bring attention to the issue of false confessions in the Peter Reilly case in Connecticut in the 1970’s) and too many others to name, the group has suffered through what has been a series of seemingly crushing legal disappointments. It appeared that no Connecticut court was ever going to take a look at the full context of what happened to Lapointe and give him a new trial.

Enter Kate Germond of Centurion Ministries, the matron saint of hopeless causes. Centurion Ministries, based in Princeton, NJ, is the first “innocence project” in the United States. Founded in 1983, by Jim McCloskey, CM has exonerated dozens of persons over the years in the US and Canada. The men and women they have exonerated – in both DNA and non-DNA cases — have served a total of 956 years in prison. www.centurionministries.org Germond, an investigator, and Paul Casteleiro – a long-time go-to lawyer for CM – agreed to take a look at the case and scour the record for a new way back into court. DNA testing excluded Lapointe of most of the evidence but was not definitive enough to clear him of the crime. But a new hook was found – a hook that didn’t seem promising – because it required the post-conviction court to recognize prosecutorial misconduct (a Brady violation) and ineffective assistance of counsel. Investigator’s notes about the burn time of the fire, when considered in light of Lapointe’s alibi – proved that Lapointe could not have committed the crime during the time frame of the police and that of his confession. Of course, these notes had not been turned over at trial and one of Lapointe’s many post-conviction lawyers did not recognize the significance of the notes. But Germond and Casteleiro did. They hired some of the best arson experts in the country to discuss the burn time of the fire and the notion that the burn time and argued that the burn time made it virtually impossible for Lapointe to have committed the crime. After another round of disappointment in the trial court, they appealed the denial of a new trial to the appellate court. And yesterday, an appellate court reversed Lapointe’s conviction and ordered a new trial. When he learned of the decision, a stunned Casteilero replied “Holy Mackerel.”

I’ve always loved the phrase “Holy Mackerel” — even used it myself. I remember hearing from my father utter it and it was a favorite saying of sports announcer Al McGuire (it’s so much better than Harry Caray’s “Holy Cow” although I have to admit that Chicago’s stockyard history and love of the hot dog make Caray’s more appropriate for Chicago). But I’ve always wondered: what’s so holy about Mackerel?. You don’t see mackerel on the menus of most top fish restaurants and it is way down the pecking order of most popular fish (tuna, salmon, herring, tilapia, etc.). Not even sure I’ve ever tasted one. Here’s the derivation:

Etymology

Recorded from 1803 with uncertain origin, but possibly a euphemism for Holy Mary, with Mackerel being a nickname for Catholics because they ate the fish on Fridays. Another suggested explanation is the practice of selling mackerel on Sundays in the seventeenth century (because its quality deteriorates rapidly), so it was known as a holy fish.

Whatever the origin—it aptly sums up what everyone who has been working to clear Richard Lapointe’s name must have felt when they read this opinion. The State is currently weighing its options which include an appeal to the Conn. Supreme Court. Here’s hoping that they decide not to appeal this case again (and ultimately decide not to retry it). Now that would be a “holy mackerel” moment!

Damien Echols Statement

Damien Echols, who celebrated his one year anniversary after being freed from death row, released a statement today in response to comments written in the New York Times and Arkansas Times about his relationship with Jason Baldwin after their release.

“In my book, Life After Death, I describe my childhood, life in prison and the incredible efforts to free me, Jason and Jesse. It is a very honest description of my life and the ways in which I have come to see the world both before and after my release. It is not a pretty picture in many ways, but it is my story. I also discuss my relationship with Jason, and anyone reading the entire book will see that it is a very poignant and loving friendship.

In the weeks prior to our release, there were some very difficult times for everyone involved and I describe them at the end of the book. This was without a doubt the most tortuous period of my life – with freedom so close and yet capable of being taken away again at any moment – and my recollections of that period are honestly colored by that torture.

After our release from prison, Jason and I had a disagreement over how I was to be portrayed in the film Devil”s Knot. The movie unfortunately has driven a wedge between us, but I will always respect Jason and love him as a friend.

I believe Jason was selfless in his decision to go along with the Alford plea that freed us, and I understand how difficult this decision was for him. For that, I will be forever grateful. My intention was not to hurt anyone, but to write honestly about my struggle.”

West Memphis 3, One Year of Freedom, Still Fighting for Exoneration!

One year after Damien Echols was released from a death sentence and Jason Baldwin and Jesse Misskelley were freed from life in prison, the investigation into the murder of three children on May 5, 1993 continues, as do efforts to exonerate the three men. Though wrongfully convicted and freed in a unique plea deal, they have begun to rebuild their lives, with Damien about to release a book, Jason attending college and Jesse working in Arkansas.

On his life since his release from Arkansas’s death row, Damien Echols said, “It”s been one year, and I”m still adjusting to life on the outside world. I have been working on my book, Life after Death, which is coming out in September. I have also been working on our documentary, West of Memphis, which is coming out in December. All of these things serve the purpose of continuing to put pressure on the state of Arkansas in hopes that they will eventually do the right thing and reopen the case.”

Jason Baldwin said, “This has been an incredible year. Thanks to the generosity of more people than I could possibly name, I earned my first paycheck, found my first apartment and learned to drive, all the same goals I had as a 16-year-old kid that have been deferred for so long.

“Though taking the Alford Plea was a tremendously difficult choice for me, the kindness of our supporters and the opportunities I”ve been afforded make the decision a lot easier. Even so, my attorneys are still working fervently to find the real killer or killers, not only to clear our names but to deliver justice for Stevie, Michael and Christopher, whom none of us will ever forget.”

According to Lorri Davis, Echols’s wife and the person who spearheaded the effort to free the three men, “It”s been overwhelming – in good and hard ways. Everyone who has been hurt from this tragedy deserves justice. Damien, Jason and Jessie deserve to be exonerated, and the victim”s families deserve to know the truth of who murdered their children. Everyone suffers when greed and lies run amok in our legal system. Our entire society is sickened by it. We won”t stop in our quest to prove the innocence of Damien, Jason and Jessie because it”s a broken part of our lives, and the State needs to fix it.”

Sir Peter Jackson and his partner and producer Fran Walsh stated, “Year one… nothing has changed and everything has changed. We got to watch Damien dip his fruit into tomato ketchup, because he wanted to; we got to watch him make Lorri laugh and then wrap his arms around her, because he could; we got to watch others read his work and realize he is a hugely talented writer. We got to witness the new chapter in a life that thousands of people around the world prayed for, fought for and believed in – and it has been, and will always be, worth every single second of hope we ever held on to.

“We feel incredible joy that Damien, Jason and Jessie are now free and sorrow for the loss of the innocent lives of Stevie Branch, Christopher Byers and Michael Moore. It is disgusting that some Arkansas politicians continue to put their self-serving political interests ahead of justice for the victims and their families in this case. There can be no happy anniversaries when three men continue to suffer the many effects of being wrongfully convicted and the real killer of these children is allowed to walk free.”

The legal defense teams and supporters continue to seek new evidence of the innocence of the three. All credible information uncovered by the ongoing investigation will be turned over to District Prosecutor Scott Ellington as per his commitment to review new evidence. Ellington has already reviewed sworn statements from three men who allege that Terry Hobbs’ nephew, Michael Hobbs Jr., told them “my uncle Terry murdered those three little boys.”  According to one witness, “One day Michael picked us up in his truck. He was very quiet and upset. Michael then said to us, ‘You are not going to believe what my dad told me today. My Uncle Terry murdered the three little boys.’ According to Michael, his dad called this ‘The Hobbs Family Secret’ and he asked us to keep it a secret and not tell anyone.”

There is a confidential tip line – 501.256.1775 and the the defense team is offering a $200,000 reward for information leading to the arrest and conviction of the person(s) responsible for the murders of Stevie Branch, Chris Byers and Michael Moore.

CNN on the Tragedy of Richard Diguglielmo

It was just a few years ago that  former NYPD officer Richard Diguglielmo was released from prison after serving 11 years behind bars for depraved indifference murder, a charge prosecutors can no longer use to obtain a conviction at all costs. Richie was off duty when he shot and killed a man who had attacked his father with a baseball bat and, who Richie and other witnesses believed, was about to kill his father. A tragedy certainly, a murder no! Despite the fact that he was acquitted of murder and even assault, the charges shockingly carried a life sentence.

In 2008, A New York State Supreme Court justice found him innocent and wrongfully convicted (see decision). Everyone rejoiced, he was free and innocent….then 20 months later, in 2010, the world ended for Richie, his fiance, his mother and father, sister, friends and supporters: the New York Appellate Court, in a bizarre and almost unheard of action, sent Richie back to prison to finish his life sentence.

Richie sits in prison today, wondering how the judges of the New York Court of Appeals could agree to overturn a reasoned decision of a respected judge. One who found Richie completely innocent after a three week hearing where compelling evidence was presented that witnesses had been coerced and evidence was withheld by Westchester County prosecutors, and that Richie acted without depraved indifference under any circumstances in protecting his father. How could the system send an innocent man to prison for doing what he was trained to do?  How could judges be so blind, so indifferent and so wrong?

CNN will air a Richie”s story for the second time on March 3, 2012 at 8 pm, 11 pm and 2 am.  The original story, broadcast in January, garnered millions of interested viewers and website visits.

Hopefully, a federal judge will review this case and set Richard free, again. Maybe the Governor of New York will hear about this story and consider the circumstances surrounding  this injustice and grant Richard a pardon or at least clemency.

We can hope! But someone needs to step in and right this terrible wrong.

Troy Davis to Die, Damien Echols to Live

Stop the Execution of Troy Davis

We all know that innocent men have been executed in the United States. Damien Echols of the West Memphis 3 came far too close to being one of them. It has been less than a month since Damien walked out of death row where he spent most of his life and all of his adulthood, the last ten in solitary confinement. During those eighteen years, Damien shared space on “the row” with the innocent and the guilty, and with many others who were so mentally impaired that they did not even understand why they were facing the death penalty. He lived through the horror “on the inside” of men being taken from his unit and executed, while the rest waited for their turn in line.

No “civilized” society should countenance such public torture and murder of its citizens, no matter what they might have done wrong. And most other civilized societies around the world have long ago banned the death penalty. Whether you agree with that as a matter of principle or not, we should certainly all be able to agree that there is no greater crime any society can commit than executing an innocent man. We cannot let Troy Davis become another one of them.

Troy Davis was convicted in 1991 of the murder of Savannah (GA) police officer Mark MacPhail. He was sentenced to death largely as a result of nine eyewitnesses who implicated him during the trial. Since then, however, seven of those nine witnesses have recanted their testimony or changed their stories. On top of that, the prosecution did not introduce any DNA evidence at trial to support Davis’ conviction.

In a society which says that it prizes life, this execution simply must be stopped. That there is such a vigorous and well-grounded debate about Davis” innocence should be enough – in and of itself – to justify a moratorium on his execution. If he even “might” be innocent, then he should “never” be killed by the State. The Georgia Board of Pardons and Paroles declared in 2007 that it “will not allow an execution to proceed in this state unless and until its members are convinced that there is no doubt as to the guilt of the accused.” How can there be so much doubt among the American public and figures such as former President Jimmy Carter, yet the members of the Board were absolutely convinced of his guilt? Damien is living proof that life-threatening mistakes in the criminal justice system can be cured over time. But a mistaken execution is irreversible.

Chatham County District Attorney Larry Chisholm and the Georgia Board of Pardons and Paroles have the rare power at this moment to unilaterally save a man”s life by reconsidering clemency or seeking a withdrawal of the death warrant. May wisdom and justice, not political popularity or expediency, guide his decision. And may that decision be a beacon of light for our society going forward, not another hour of deathly darkness.

Stephen Braga, Emily Lurie

The Perry Contradiction: Death Penalty Record Setter v. Human Life Advocate

In preparation for last night’s Republican presidential debate, I couldn’t help but hope that Rick Perry’s death penalty record would be discussed. My parents said no way, that capital punishment was not a key issue. To my surprise, however, moderator Brian Williams asked the Texas Governor to comment on the 234 executions that he had authorized while in office. Williams asked, “Have you struggled to sleep at night with the idea that any one of those might have been innocent?”

Perry’s response was “No sir, I”ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which when someone commits the most heinous of crimes against our citizens, you kill one of our children, you kill a police officer, you”re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas and that is you will be executed.”

What struck me was the applause that drew from the crowd upon mention of Perry’s death penalty record. Citizens trust their elected officials and believe that they will carry out justice fairly. Had the crowd been aware of the case of Cameron Todd Willingham, a man who was executed in 2004 and is now believed to be innocent, perhaps the strength of the applause would have been diminished. After all, when new advances in arson science provided strong evidence supporting Willingham’s innocence, Perry refused to issue a stay of execution. On top of that, upon review of the case after the execution by the Texas Forensic Science Commission, Perry, in an unprecedented move, decided to replace three members of the commission when it seemed clear that Willingham would be posthumously exonerated.

I also could not believe that Perry’s remarks on the death penalty came shortly after he made the statement that he “will always air on the side of saving lives.” This statement was in reference to an executive order he issued requiring young Texas women to get HPV vaccinations. If he is so concerned with human life, why did he not issue a stay of execution given the overwhelming evidence supporting Cameron Todd Willingham’s innocence?  Perry also remained silent when convicted murderer Hank Skinner was just hours away from execution, despite the availability of untested DNA that could have proven his innocence or guilt. Fortunately, the United States Supreme Court stepped in and issued a stay.

While it seems clear that the main themes of the 2012 election will be job creation and economic revival, Rick Perry’s dishonest and unjust methods for carrying out the criminal “justice” system in Texas is a big enough red flag for me to want him out of the race. Despite his remark that he is always committed to saving lives, his actions suggest the complete opposite. For me, the thought of Rick Perry holding the highest office in our nation is a dangerous one.

THE WEST MEMPHIS THREE ARE FREE

Damien Echols, Jason Baldwin and Jessie Misskelley were freed today from prison after serving eighteen years in the wrongful conviction murder of three children in 1993. (see press conference). Their freedom was based upon a plea agreement with prosecutors, in which, while maintaining their innocence, the three agreed to an Alford plea to the original charges. The three men appeared before Judge David N. Laser, in Craighead County Court in Jonesboro, Arkansas, where their original trials took place and were immediately released As part of the plea agreement, Damien Echols capital murder conviction was vacated.

The Arkansas Supreme Court had recently reopened the case in a unanimous decision that directed the lower court to review all new DNA and other evidence of their innocence in establishing whether or not there should be a new trial. That hearing was scheduled to begin in December.

Damien Echols said, “I cannot believe that this day has come. Despite my innocence, I doubted whether the system would ever actually set me free. I have spent half my life behind bars as Prisoner No. SK 931. Today, I can start to live the rest of it as Damien Wayne Echols. While this plea agreement is imperfect, to be able to walk through the doors of death row is something I have dreamed about since the day we were wrongfully convicted.

“To my wife Lorri Davis, my attorneys, friends and supporters from Little Rock to Seattle to New Zealand, thanks to all of you who have stood by us and helped make this day a reality.”

Jason Baldwin said, “As an innocent man, this is not what I thought justice would look like. But I am incredibly grateful for our freedom, and for all those countless people who worked so tirelessly to help us obtain it.”

“This is a compromise resolution which brings an end to eighteen years of litigation and, most importantly, frees the West Memphis 3 to reclaim their lives. Damien, Jason and Jessie maintain their innocence, but recognize that it was in their ”best interests” to accept a certain resolution like this before another eighteen years passed while they were fighting for their freedom in an imperfect criminal justice system,” said Echols’s attorney Stephen Braga, of the law firm of Ropes & Gray.

“We could not have gotten to this point without the support of so many of our good friends and family, the incredible legal work, and all those who have stood behind us throughout this entire ordeal. I would not have been able to do this without the strength, tenacity, discipline and intelligence that Damien has exhibited over all these years. That is the man who he is.” said Lorri Davis, Echols’s wife.

Eddie Vedder said, “We are so grateful for the release of these three innocent men through the ‘Alford plea,’ a plea which essentially exists to right the wrongs of an imperfect system of justice. While we are celebratory today for their freedom, we are also mindful that justice has been only half served with their release. In our hearts remains a special place for the three young boys who were tragically murdered 18 years ago, and the never ending hope that one day their real killers will be brought to justice.”

An Alford plea is a rarely used agreement that recognizes the imperfection in the legal system and allows there to be some measure of justice in a case. The defendants plead to the charges, but maintain their innocence. It is similar to a sentence commutation in many ways. The plea deal does not preclude new evidence of their innocence from being presented to authorities leading to a full pardon. The agreement does not include any parole and it completely removes the death sentence. There are some stipulations that the men must not commit a felony during a certain period following the deal or they could be returned to prison.

NY Court of Appeals Keeps Richard DiGuglielmo in Prison for Life

Richard DiGuglielmo, an NYPD police officer, was convicted of depraved indifference murder in 1996 and spent 11 years in prison before his conviction was overturned in 2008. A lower court judge  found that police had falsified evidence and coerced witnesses to change their statements that Richard had shot a man in self defense. The New York State Court of Appeals, a mere 20 months after DiGuglielmo was released, ruled in a shocking and wrongheaded decision to affirm the appellate court which had returned DiGuglielmo to prison.

At his first trial, Richard was acquitted of murder and assault but convicted of depraved indifference murder. In order to constitute depraved indifference, a defendant must be so morally deficient as to warrant the same criminal liability as that which the law imposes upon a person who intentionally commits a crime. According to the same Court of Appeals which sent Richard back to prison, the charge of depraved indifference can no longer be used along with a charge of intentional murder. Unfortunately for Richard, the decision which made depraved indifference illegitimate did not apply retroactively and therefore could still be used in his case, since the original hearing occurred 9 years earlier. His sentence was 20 years to life in prison which is unheard of for a case of self defense. (Read more on the case)

The Court of Appeals in a two paragraph decision refused to elaborate on any of the details of the DiGuglielmo case. The questions of his innocence, the reasons the lower court judge freed him a few years earlier, and the efficacy of the charge of depraved indifference all remain unanswered. Few of the original jurors understood the significance of a charge of depraved indifference to human life.

Post conviction innocence cases have few safe havens. Prosecutors will seek to obtain a conviction using any method at their disposal including obtaining false confessions, intimidating witnesses, even hiding evidence from the defendant. They will even seek to maintain that conviction without regard to justice.

It is up to the judiciary to sort the wheat from the chaff. In Richard Diguglielmo”s case, they just walked away and returned an innocent man to prison.

Jessica Goldman