Category Archives: innocence

City wants defense lawyer to pay for wrongful imprisonment


You’re almost 18 right? No? 16? Well, let’s just pretend you said 17. Now smile for the camera while we destroy your rights1.

The lawyer for the city of Worcester acknowledges up front that his legal argument is frivolous and has no basis in the law2:

After the hearing, [the solicitor for the city of Worcester] Moore acknowledged there is no case, no precedent to cite to support the complaint against [defense attorney] Ryan.

But he’s doing it anyway, because anything to distract from the horrible violation of civil rights that his city inflicted on 18 year old Nga Truong. Truong, 16 at the time, was arrested because her son had stopped breathing earlier in the day. Police decided, as they often do, with no evidence and no basis other than they pulled it out of their collective asses, that she had killed him.

So they interrogated her3 for two hours, lying to her, threatening her and coercing her into confessing. Which she did4. Don’t kid yourself; you would have confessed too.

Her lawyer called it the worst interrogation he’s seen in 35 years, labeling it ‘psychological torture’. A judge agreed, suppressing her statement [PDF]. In that opinion:

When the judge, Janet Kenton-Walker, threw out Truong’s statements to police, she wrote that Truong “was a frightened, meek, emotionally compromised teenager who never understood the implications of her statements [to police].”

With no other evidence, the prosecutor had to drop the charges. But that didn’t stop him or the police chief from keeping their blinders on and backing their own:

  1. Image taken from WBUR.
  2. Also no basis in logic or reality, but he doesn’t go that far.
  3. Link to video of the interrogation.
  4. All of WBUR’s excellent coverage of this case is collected here.

The playing field is uneven

As written before, one of the greatest lies sold to the American public was Brady v. Maryland: that the prosecution has an affirmative burden to turn over exculpatory material. The problem, of course, is that they are also the ones who get to decide what is “exculpatory”, which has routinely been defined as evidence that would tend to negate the guilt of the defendant or undermine the credibility and believability of the government’s witnesses.

But just as easily as overzealous prosecutors take this exculpatory information, put it in a folder marked “work product” and pretend it doesn’t exist, do they hide witness statements that point to someone completely different and let an innocent man get convicted of murder and end up on death row.

Meet James Dennis, in whose case a federal judge begins a lengthy opinion [PDF] thusly:

James Dennis, the petitioner, was wrongly convicted of murder and sentenced to die for a crime in all probability he did not commit. I will grant Dennis’ habeas petition, vacate his conviction and death sentence, and require the Commonwealth to retry Dennis within 180 days or let him free.

Freed and fired: how one woman put justice over her job

Albeit a few weeks old, this story out of Jackson County is a truly bizarre tale of modern day American Justice and the confluence of a strong desire to adhere to rigid bureaucratic rules and the grander notions of Doing The Right Thing and Justice1.

A Kansas City2 man, Robert Nelson, was convicted in 1984 for a rape and sentenced to 50 years consecutive to sentences he was already serving. Those sentences ended in 2006, meaning that’s when he started serving the 50 year sentence for rape3.

Thing is, Nelson claimed from the beginning that he wasn’t the guy. He was innocent and should be let out of jail. So:

In August 2009, Nelson filed a motion seeking DNA testing that had not been available at his trial 25 years earlier, but Jackson County Circuit Judge David Byrn denied the request. Two years later Nelson asked the judge to reconsider, but again Byrn rejected the motion because it fell short of what was required under the statute Nelson had cited.

You know how this goes. Eventually, Nelson gets a third motion granted, the DNA is tested and lo-and-behold, he’s fucking innocent.

So what was different this time? Someone gave him a template to use that had been successful in another case. That someone was Sharon Snyder, a 70-year old court clerk of 34 years. She simply took a public document from another case, redacted identifying information and gave it to Nelson’s sister, saying “here, file it in this format”4.


Nelson used that motion – a public document Dunnell [the sister] could have gotten if she had known its significance and where to find it – as a guide for a motion he filed Feb. 22, 2012, again seeking DNA testing. That August, Byrn sustained the motion, found Nelson to be indigent and appointed Laura O’Sullivan, legal director of the Midwest Innocence Project, to represent him.

And then Byrn finds out that it was Snyder who provided a copy of a public document. This obviously could not stand, so 90 days before she was set to retire, Snyder was fired. For. Umm. Hang on a second. Let me find a good phrase. Bureaucratic disobedience?

Five days after Nelson was released, Court Administrator Jeffrey Eisenbeis took Snyder into Byrn’s office near closing time and told her the prosecutor and defense attorney “had a problem” with her involvement in the case.

What defense attorney? You mean the one who was appointed after his motion for DNA testing was granted? I doubt it. And what problem? Making them look bad?

Keep in mind that nothing in the article or in the facts that can be gleaned or inferred from the reporting indicate that Nelson’s first two motions were denied because of their merits. They weren’t rejected because he didn’t make a sufficient factual claim that he should get DNA testing. It appears as though they were rejected for bureaucratic, ‘not-filed-in-triplicate-signed-by-your-deceased-great-grandmother’ reasons. They were rejected because the format of the motions didn’t comply with the statute.

So who is Nelson to turn to? An incarcerated inmate who took two cracks at filing a pro-se motion just to get an attorney appointed to get DNA testing performed to prove that he wasn’t guilty of the crime he was convicted of. No one. The point was that he was on his own or out of luck. That’s what the system does to pro-se litigants.

There is such a stubborn desire across the nation to protect convictions at all costs. There’s also a very strong sense of territorialism in county and district courts in some parts of the country where some judges rule like petty kings. Anyone who may dare to cross their path shall be smited, ridiculed and fired.

Prosecutors, judges and legislatures are so invested in this idea of “finality” and are so afraid of finding out that they’ve convicted an innocent person that rules across the country have cropped up erecting the most intricate and elaborate obstacles to post-conviction review of convictions. The Great Writ, once a pillar of the vindication of justice, a shining beacon and last resort of the illegally detained, has been eviscerated to the point that it’s unrecognizable. Post-conviction DNA statutes are absurd in their requirements and innocence has been held to mean not only your innocence but proof beyond a reasonable doubt of the guilt of another identifiable person. A technicality, I’ve said recently, isn’t what you think it is. A technicality is more often the tool of the state to protect its interest in the finality of convictions it obtains, the validity and legality of those convictions be damned.

Here, Nelson was, indeed, innocent, about to serve 50+ years for a crime he didn’t commit. And if Snyder hadn’t given him the magic form to fill to get Byrn’s attention, he’d be stuck in jail for the next 50 years, banging his head against a wall, wondering just why he couldn’t get anyone to listen to him.

“The document you chose was, in effect, your recommendation for a Motion for DNA testing that would likely be successful in this Division,” Byrn wrote. “But it was clearly improper and a violation of Canon Seven … which warns against the risk of offering an opinion or suggested course of action.”

What is Canon Seven? Can someone find out?

I think, in the end, whether she was “rightly” or “wrongfully” 5 fired is but a sideshow. Snyder is happy with her pension and the knowledge that she was able to help an innocent man get out of jail, bureaucratic nonsense notwithstanding.

The real tragedy here is that our system of justice is so adamant to put form over substance that an innocent man being denied a chance to prove his freedom is an acceptable consequence of failing to color inside the lines.

There are rules – don’t kill/harm/rape and don’t let innocent men go to prison – and then there are rules – submit on yellow typepaper, scrawled with the ossified tooth of a wildebeast’s carcass found in the northwest region of the Massai forest. There should be no confusion as to which rules are to be followed and which are not to be strictly so.

When we start sacrificing the former for the latter, we know the system has gone mad6.



  1. I would’ve used the (TM) or (C) symbols there, but these two concepts are so eroded I’m not sure anyone in their right mind would stake claim to them today.
  2. Kansas? Missouri? Who knows! The article doesn’t say. Does it matter?
  3. Why? Because fuck you rapist that’s why.
  4. Not her exact words.
  5. Technical terms, both, neither definition having anything to do with morality.
  6. You also know you’re on the right side of a story when the opposite position is staked out by “discredited self-styled ethics expert Jack Marshall“.

Martin, Zimmerman and the colors of injustice

This is not a Trayvon Martin post; this is not a George Zimmerman post. For that, go read these fine pieces with which I wholeheartedly agree.

This isn’t even a post about race, although race certainly fuels much of it.

This is a post about injustice. Injustice doesn’t come in one shape: the acquittal of a seemingly obviously guilty white-ish man for murdering a black teenager. Injustice comes in many stripes, shades and hues. Injustice is smaller than the Zimmerman acquittal and greater than it too. Injustice happens every day before your eyes, but you don’t see it.

Injustice is Warren Hill. In 2002, the United States Supreme Court said it was unconstitutional to kill mentally retarded people. Georgia is a part of the United States. Warren Hill is a prisoner in the State of Georgia. Warren Hill is mentally retarded. His experts agree. The State’s experts agree. Yet Warren Hill is scheduled to die tomorrow. A mentally retarded man, in direct contravention to the Constitution of the United States. Because it’s Georgia and Georgia does what it wants.

Injustice is the hundreds of thousand of black men who went to jail for years longer than their white counterparts because of an imaginary crack-cocaine disparity.

Injustice is when children like Trayvon Martin or younger are arrested and treated as adults by a harsh, unrepentant adult criminal system, sending them to jail automatically for a decade or more.

Injustice isn’t at the fringes of the criminal justice system; it isn’t in the extreme corners and reaches, rearing its head every 6 months or so for you to vent your moral outrage at.

Injustice happens to the wrongfully convicted, like Ronald Cotton or James Tillman or Miguel Roman or the hundreds of others who were convicted by duly sworn juries just doing their jobs.

Injustice is every day. Injustice happens like a death by thousand cuts. Injustice happens to the guilty and the innocent. And every injustice to the guilty is injustice to the innocent.

Injustice is when we spend millions of dollars to fund police and prisons and prosecutors and our legislators increase the number of crimes and multiply the punishment without nary a thought to covering the costs of defense. Injustice is when your rights are in the hands of underpaid, overworked lawyers who are doing their best but are overwhelmed by an overwhelming system. Injustice is when “tough on crime” trumps the promise of equality in access to justice.

Injustice is when prosecutors get to decide what to turn over and what not to. Injustice is when they don’t turn over evidence proving innocence. Injustice is when the courts protect their illegal and unethical ways.

Injustice is when the police department in New York has a policy of stopping every minority and “frisking them”, because they were “wearing clothes commonly used in a crime“. Injustice is when the police department wants the power to stop anyone on the street, for any reason, in violation of the Fourth Amendment.

Injustice is when “technicalities” are used to deny people their appeals, to forcibly impose convictions no matter the Constitutional violations or error. Injustice is when we elevate form over substance, format and rules over rights and freedoms. Injustice is when you punish people for exercising their rights.

Injustice is when they use fear to scare you into giving up your rights, telling you tales of the terrorist or the criminal whom you must punish.

Injustice is when you believe that you have nothing in common with the individual subjected to the full force of the government’s ire. Injustice is when you believe that you will never be a persecuted minority. Injustice is when you believe that you have nothing to hide, so you don’t say a word when they illegally look inside my house.

Injustice is when you pay attention when the media tells you to and you stop thinking for yourself. Injustice is when you go into court, predisposed to convict.

Injustice is when you think justice only applies to the innocent or the likeable. Injustice is when you decide that one set of rules apply to you and another set of rules to those that you don’t like. Injustice comes in a dazzling array of colors. Do you have the courage to not be afraid anymore?

Can you stop being colorblind to injustice?

Sometimes, justice requires a bit of luck

JamesWalder Joseph Frey has spent a lot of time in jail. Some of it for crimes he committed and a lot of it for one crime he always said he didn’t. In 1991, he was fingered as the suspect in a brutal break-in and rape of a student at knifepoint. Just this week, a judge in Wisconsin reversed his conviction. But, in 1994:

He was convicted on Feb. 2, 1994, by a Winnebago County jury despite his claims of innocence, the victim’s dubious identification of him as the attacker, the lack of a DNA match and destruction by an Oshkosh Police detective of important evidence before the trial.

That old evidence included a jailhouse informant, the victim’s identification of Frey in a “live in-person lineup,” prior sexual assault charges and DNA results from the victim’s bedsheet that excluded Frey as the source.

The holy grail of wrongful convictions: 1) A misidentification; 2) DNA that excludes the defendant; 3) Evidence getting mysteriously destroyed by a police department; 4) Tunnel vision; 5) A jailhouse informant.

The “identification” was done by police in a “simultaneous” manner – a practice now frowned upon because it results in people picking the person who “looks most like” rather than “who is” the suspect. They also placed the same person in more than one lineup, which would signal to anyone with a functioning brain cell that the person who repeatedly showed up was one that police believed did the crime.

And there were other problems. The Innocence Project said the victim identified at least two other men before saying that Frey “looked similar” to her attacker.

There was DNA tested before trial and that DNA (stains from the bedsheet) excluded Frey, but the prosecutor argued – and the jury believed – that those stains could just be leftover from consensual sexual activity the victim had. The news report doesn’t reveal whether that was followed up with the victim at trial or compared to the DNA of any lover she might have had to confirm that.

But the real kickers here are the actions of the police department and the tunnel vision they tend to develop when they have a suspect in their sights. Confirmation bias kicks in and the police start viewing all the evidence through the lens of confirming their suspicion, rather than looking at it neutrally and seeing where it goes. Oh, and it would’ve been nice if, you know, they hadn’t destroyed evidence before the trial:

After those results were received — and before trial — all of the physical evidence in the case reportedly was destroyed, according to trial testimony of then-Oshkosh Detective Phil Charley, who acknowledged disposing of the items but “could not recall anyone ordering him to destroy the evidence,” the Innocence Project said.

Maybe there was a shortage of space. In Phil Charley’s brain. But wait, there’s more:

“In addition to the improper destruction of evidence,” the motion for DNA testing said, “all of the police documents, including police reports, inventory reports, submission and transmittal forms, testing requests and results and chains of custody, were destroyed by the (Oshkosh Police Department).”  “As a result, it is unclear what evidence was originally collected, identified for testing, or remained after destruction.”

I can’t think of one single legitimate reason to destroy these items, especially at or near the time of trial. Maybe 20 years down the road, after legal challenges have been disposed of, maybe. But police departments have strict policies about this. Because you never know, when one day 20 years down the road, DNA testing implicates someone else. What’s that you say? Is that what happened here?

Frey’s chance at exoneration came after a Winnebago County court clerk discovered a scrap of bedsheet left over from the “improper” destruction of the physical evidence by a now-retired Oshkosh Police detective before Frey’s 1994 trial, according to the Innocence Project’s October motion seeking DNA testing.

A scrap. Of a bedsheet. In a clerk’s office. That’s what needed to happen to save Frey. Not all the dubious evidence and the shenanigans that I outlined above. All of that is what got him convicted. It took a random bedsheet scrap that somehow escaped the purge of Detective Fife Charley.

And it wasn’t just that the bedsheet had DNA that excluded Frey. They already knew that. It was only when the DNA evidence matched that of another convicted rapist, who prior to his death in 2008, may have tried to confess to this crime, that the prosecutor was willing to concede that, okay, maybe, perhaps, if you squint really hard, they had the wrong guy.

Finality is such a powerful thing that even the most level headed and logical people get so entrenched in their positions. “It has been decided”, they say, “so mere doubt cannot and will not be permitted to give us doubts about the veracity of our decisions. We must be slapped repeatedly in the face to awaken us from our stupor”.

It was sheer dumb luck that brought Joseph Frey to the precipice of exoneration and freedom. How many are sitting in jail right now, convicted on this evidence, without that scrap of a bedsheet? How many are sitting in jail right now, because prosecutors are convinced, despite evidence to the contrary, that they got the right guy all those years ago? How many are sitting in jail right now, because prosecutors refuse to test DNA evidence, because it might prove they got the wrong guy? Hubris is a powerful thing and almost never results in any good.

How many are sitting in jail right now without any DNA out there to support their innocence, convicted based on tainted, faulty identifications, gung-ho cops and juries that can’t convict fast enough because criminals. Isn’t that most frightening thing of all? That there are innocent people in jail right now without any way for the world to know that they exist. Without any way of proving that they didn’t do it. Because they didn’t get lucky. Should the justice system require luck? Or should it require proof?

So the next time you read a story about an obviously guilty guy, think for a second. The next time you’re on a jury, think long and hard. Are you convinced? Is there any doubt? Or are you going to say good enough and figure maybe he’ll get lucky down the road?

Frey was represented in his motion for a new trial by a dear personal friend of mine, a law professor at the University of Wisconsin Law School, Tricia Bushnell. I know the volume of hard work that she and her students did in this case and words cannot ever justify the satisfaction that she must be feeling, so I can only say congratulations and that maybe now you should take a nap, Tricia.











The madness of death

It is never enough to want to kill someone; the desire to murder is always accompanied by the desire to do so quickly and without question. One could liken it to a madness that makes one talk quickly, ranting and foaming at the mouth. While it was ultimately thought that King George suffered from Acute Intermittent Porphyria, it remains to be seen what afflicts the modern day proponents of the death penalty.

How else does one explain the Florida legislature’s passage of a new bill “streamlining” (such a beautiful euphemism: “streamlining”; what do the British call it? “Redundancies”. Such a way with words) the death penalty process. What they really mean is jetlining it. Making it fast. Quicker than quick. No room or time for questions or doubt. Under the bill – “The Timely Justice Act” – deadlines for filing appeals are getting shorter and the time between an affirmance by the Florida Supreme Court and the issuance of an execution warrant has been reduced. Because it isn’t like there have been 24 people exonerated in Florida who were on death row. Because doing it fast is the same as doing it right.

“This is not about a question of innocence, this is about making sure that timely justice is realized,” [Republican Senator Rob] Bradley said.

Bradenton Herald. [More here, here, here and here.] It is not a question of innocence, for innocence is irrelevant. The only dynamic in this game is finality. Once it is done, it must never be spoken of again. For if we speak of it, we must acknowledge that the system doesn’t work. And if the system doesn’t work, maybe we can’t fix it. And if we can’t fix it, maybe we can only get rid of it. But it’s not about innocence. It’s about speed. It’s about victims. It’s not like DNA could tell you if he’s really guilty or not. And even if it did, would you care?

Willie Manning thought you would, but prosecutors in Mississippi didn’t. Manning, who sits on death row, inches away from execution, doesn’t have much direct evidence linking him to the murders.

There is no physical evidence linking Manning to the 1992 murders of two Mississippi State University students. The “jailhouse informant” who once told trial jurors that Manning “confessed” to the crime, has since recanted, telling defense lawyers he thought he would receive “consideration” from prosecutors for incriminating Manning. And Mississippi officials now are refusing to test DNA and fingerprints found at the crime scene — evidence which did not directly incriminate Manning before, has never been tested using modern procedures, and which might definitely resolve the case one way or the other.

But there’s more. The FBI has sent letters in the past days to Manning’s lawyers, disavowing their own “forensic science” that was used to convict Manning. And so today, after just last week denying Manning’s request for a stay 5-4, the Mississippi Supreme Court reversed course and agreed to stay his execution 8-1. Eight-to-One. There was still one. The Madness of Justice Randolph:

The letter also states that the Department of Justice is “assist[ing] [the Innocence Project and the National Association of Criminal Defense Lawyers] in their evaluations.” “The Innocence Project supports a moratorium on capital punishment.” The “NACDL has been an outspoken critic of the death penalty system. Of critical concern is the language contained in the first FBI report stating that, “[g]iven the abbreviated time frame for review, the FBI requests the Innocence Project (IP) to advise as to whether or not they agree with the FBI’s conclusions as soon as possible.” Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of the victims of the clandestine “Fast and Furious” gun running operation can’t get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Department of Justice that grants and enforces Miranda warnings to foreign enemy combatants.” [emphasis in original]

The madness is upon him. Manning must be executed because fast and furious Obama and the FBI have juxtaposed the commission of the offenses of felonies in the circumvention of the current regime and the syncopation of the circumstances of the revolution of the conspiracy of the freedom of guns and religion in this Communist extravaganza.

There’s another form of madness at play here – and that is blame. If there is a fault with the system, that fault lies with the defense; if there is a problem, the problem is too many rights. It seems that the Constitution has become a roadblock on the fastrack to summary justice and execution.

The Florida “Let’s Speed up the Murder Yeehaw!” Bill has the following provision:

Notwithstanding another provision of law, an attorney employed by the state or appointed pursuant to s. 27.711 may not represent a person charged with a capital offense at trial or on direct appeal or a person sentenced to death in a post conviction proceeding if, in two separate instances, a court, in a capital post conviction proceeding, determined that such attorney provided constitutionally deficient representation and relief was granted as a result. This prohibition on representation shall be for a period of 5 years, which commences at the time relief is granted after the highest court having jurisdiction to review the deficient representation determination has issued its final order affirming the second such determination.

and this one:

(2) In a capital postconviction proceeding in which it has been determined that an attorney of record provided constitutionally deficient representation and relief has been granted as a result of such determination, after the highest court having jurisdiction to review such determination has issued its final order affirming the determination, the court making such determination shall furnish a copy of the findings to The Florida Bar for appropriate disciplinary action.

Blame the defendant; blame the lawyer. It’s taking too long. We never make mistakes. There never is a “report the prosecutor; fire the prosecutor” provision. The system cannot make mistakes; the system cannot admit fault. If the lawyer caused a problem, punish the lawyer. Nevermind that the specter of habeas is already a problem in the criminal defense bar with many taking the position that it’s a lawsuit against them personally, causing them to gleefully throw their clients under the bus, thus further compounding the failure of justice.

But can one really blame Florida when its an attitude that permeates from the top? A week or so ago, the United States Supreme Court did the unthinkable. It dismissed as improvidently granted [PDF] Boyer v. Louisiana. What that means is that after deciding to decide the important issue of just who pays when the system can’t pay to prosecute the cases prosecutors initiate, 5 justices of the august court decided that they didn’t want to decide that issue after all. Not because it isn’t an important issue, but because it was the defendant’s fault for raising that issue:

In sum, the record shows that the single largest share of the delay in this case was the direct result of defense requests for continuances, that other defense motions caused substantial additional delay, and that much of the rest of the delay was caused by events beyond anyone’s control. It is also quite clear that the delay caused by the defense likely worked in petitioner’s favor. The state court observed that petitioner’s assertions of his speedy trial right were “more perfunctory than aggressive.” 2010–693, p. 34 (La. App. 3 Cir. 2/2/11), 56 So. 3d 1119, 1143.

And as noted, most of this delay was caused by the many defense requests for continuances of   hearings on the issue of funding. If the defense had not sought and obtained those continuances, the trial might well have commenced at a much earlier date—and might have reached a conclusion far less favorable to the defense.

Justice Alito, apparently with a straight face, because he just gone writing that if only the damn defense didn’t raise that issue of the systemic lack of funding for capital defendants, the case wouldn’t have taken 7 years and we’d have had a death sentence already. So it’s the defendant’s fault that his right to a speedy trial was violated, but we’ll never say that because that would mean a new trial. So dismissed. And good luck with the next case, because the money still isn’t there but don’t you dare bring it up again.

Justice apparently need only be speedy when it is racing toward execution. The rest of the time, the system could grind itself to a halt for all anyone cares.

“Only God can judge,” Matt Gaetz, a Republican who sponsored the bill in the House of Representatives, said last week during House debate. “But we sure can set up the meeting.”

Let’s be sure we’re sending the right person to that meeting, first.

Sometimes, undermining confidence is all you need

Justice delayed is justice denied, goes the saying, but really, we all know that justice delayed is better than no justice at all. And so it may be for Richard Lapointe, whose 20 year old conviction for raping, killing and setting alight his grandmother-in-law has become a cause celebre of sorts for people across the State.

Today, after 4 appeals and 2 habeas corpus petitions¹, he finally received the relief he sought and that many people thought he long deserved. The Appellate Court² issued an opinion [PDF] today ordering a new trial after finding that a Brady violation undermined their confidence in his conviction.

In order to understand the significance of this decision, we must first have a bit of background on the facts of the case: On March 8, 1987, the defendant called the emergency telephone number, 911, to report a fire at the Manchester apartment of the victim. Earlier that day, he and his wife had visited the victim between 2 and 4pm, as was their custom. They returned home where they all remained until approximately 7:45pm when the defendant received a call from the victim’s daughter stating that she hadn’t heard from the victim and asked the defendant to go check on her. Important to note is that the defendant’s wife was giving their son a bath between 6:15 and 7:00pm while Lapointe sat in the living room watching TV.