Wickersham's Conscience

Texas has the highest rate of government-approved murders in the nation, now approaching four times higher than the next state. And Governor Rick Perry doesn’t even pretend that he cares. He doesn’t even bother to look.

Carlos DeLuna, Wrongfully Executed

But a new study by Columbia University’s law school, a book length article in its Human Rights Law Review, conclusively proves that Texas executed the wrong man in 1989. Columbia Law School worked nine years, not just to vindicate the wrongfully executed man, Carlos DeLuna, but to finger the guy who did it, Carlos Hernandez, who died of cirrhosis of the liver in May 1999 while he was in prison for narcotics charges. The cops stayed away from Hernandez in the DeLuna investigation, apparently, because he was working for the cops at the time.

Comedian Sacha Baron Cohen (Borat, ) as his character Admiral General Aladeen, flogging his new movie, The Dictator, said, ”What people call genocide in my country is just the judicial system in Texas.”

Of course, Sacha is just being outrageous. Right?

There’s a word for killing the wrong guy: homicide. Shouldn’t it be a crime when Texas does it?

It took nine hours of debate, but the Connecticut House of Representatives voted to repeal the death penalty, following earlier approval by the state senate. Governor Dannel Malloy is expected to sign the bill into law, making Connecticut the 17th state to abolish the death penalty. WC’s views on this issue can’t be a surprise to readers: if and when the criminal justice system is perfect, then we can consider irreversible penalties. It’s not; we can’t.

This may be a hopeful trend. Connecticut will become the fifth state in five years to abandon the death penalty. In California, where the death penalty was expanded by initiative in 1978, the lead sponsor of that initiative is now calling for abolition of the death penalty. He points out California spent $4 billion executing just 13 criminals. If there is a deterrent – and that’s seriously open to question – you’re not getting much deterrent for $4 billion, and the money could be much better spent.

Call it a modest victory, or a hopeful sign.

WC has a long and probably tedious record of opposing the death penalty. Rather than link all of the previous posts here, WC has added the term as a category in the right sidebar, if readers want to revisit those earlier posts.

WC will add a new argument to his earlier points. The death penalty is bad because prosecutors refuse to reconsider those cases when there is a death sentence imposed. Whether it is arrogance, overweening pride, embarrassment, or some combination of those reactions; there is a very troubling pattern of prosecutors refusing to consider that they might be wrong.

A couple of examples.

First, there is Alabama’s case against Thomas Arthur. As Andrew Cohen with The Atlantic has documented, there are real reasons to think that Thomas Arthur didn’t commit the crime for which he is sentenced to die. Among them: another man has confessed to the crime. There is potential DNA evidence which might exonerate Arthur. But the Alabama prosecutor refuses to consent to the tests that might establish his innocence. The defense has even offered to pay for the test. Arthur is admittedly not a nice person. He shot a prison guard in an escape attempt. But you have to ask why the state of Alabama is scared of the truth. So scared they are willing to possibly execute an innocent man on March 29. It should always be about the truth. Especially where it involves a man’s life.

Next, there is Ohio’s case against Tyrone Noling. Don’t get WC wrong, Noling is also not a nice person. But you don’t get the death penalty for that. There is strong evidence that witness testimony was coerced. All of them have recanted. There isn’t a shred of physical evidence tying Noling to the crime scene. It’s possible that the man who actually committed the crime has already been executed. There is DNA evidence that could be tested to find out. Ohio refuses to perform the tests. And Andrew Cohen points out,

What Ohio is doing to Noling is similar to what many other states do when confronted with shoddy capital convictions. Rather than spend resources to best determine the accuracy of those convictions, rather than getting to the truth, they spend energy defending the virtues of finality and certainty in the criminal justice system. They do so at the expense of counter values like reliability and accuracy. Better not to ever know if it was Wilson who murdered the Hartigs, Ohio now argues, since we’ve already blamed someone else anyway.

Maybe death penalty sentences are like trophies, and prosecutors are unwilling to chance having to give them up. But we are talking about human lives here, not prosecutors defending their turf. When there is DNA evidence that carries the potential to exonerate a defendant, so far as WC is concerned that DNA evidence must always be tested. There are no circumstances in which a prosecutor’s vanity, or bogus arguments about “finality” should get in the way.

WC is opposed to the death penalty, but recognizes others can sincerely disagree. But a refusal to perform DNA testing is indefensible. It should always be about truth. Not an attorney’s win/loss record. You know. Justice.

Juan Rivera was finally released yesterday, almost 20 years after being wrongfully convicted of murder. The Lake County, Illinois prosecutor’s office decided not to appeal the Illinois Appellate Court’s harsh criticism of what the prosecution had done. Apparently, they also decided not to apologize for stealing 20 years of the man’s life, for inventing fantasies about DNA evidence or their collective obsession with prosecuting Rivera.

Anyone who supports the death penalty needs to look very, very carefully at the facts of Juan Rivera’s case.

Michael Morton - Photo by Callie Richmond for The Texas Tribune

Meet Michael Morton.

Mr. Morton was just exonerated after being wrongfully convicted of murdering his wife. He spent 25 years in prison for a crime he did not commit. Just another case of Texas justice, you say? Perhaps this time it’s a little worse. There are very strong indications of very serious prosecutorial misconduct in this case.

Morton’s 3 1/2 year old son witnessed the homicide. There’s a transcript. The kid exonerated his father. The prosecutor had the transcript. The transcript was not made available to Morton’s defense lawyers.

The victim’s credit card was stolen and used days later in another city. A check was forged over her signature after she was dead. The prosecutor knew of the exculpatory evidence. The evidence was not made available to Morton’s defense lawyers.

For six years, the successor district attorney fought to keep DNA tests from being made on a blue handkerchief found near the scene of the homicide. Finally, over the objections of the State of Texas and after five years of foot-dragging, the DNA tests were made and, once again, Texas was proven to have convicted yet another innocent man.

At least 45 Texas inmates have been exonerated by DNA evidence since the tests became widely available. When you keep in mind that DNA evidence is available only in a small percentage of criminal cases, that suggests a staggering wrongful conviction rate. The suppression by the county attorney of the other evidence of innocence strongly implies that in Texas a “win” for the prosecution is far more important than the truth; that a conviction, however obtained, is more important than justice. Perhaps that is “Texas justice.”

When you consider Texas also has the highest execution rate among the 50 states, and has already executed innocent men like Cameron Todd Willingham; well, if you care about true justice, you should be outraged.

But Mr. Morton is going a step further. He is attempting a court of inquiry, to determine if the prosecutor’s misconduct warrants ethical sanctions or even a criminal prosecution. Ken Anderson, the man who prosecuted Morton, and hid the evidence of innocence, is a judge now. That’s frightening in and of itself. Worse still, the successor county attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. Let’s think this through: Mr. Anderson knew of the exculpatory evidence. He knew the DNA evidence was going to exonerate Morton. He knew that would look bad for him personally. And he knew as a judge it was unethical for him to get involved. Yet he advised Mr. Bradley to fight the DNA testing?

And Bradley, who presumably knew about the exculpatory evidence, relied upon the advice of someone who had wrongfully hidden evidence, and had a personal stake in any DNA testing, to fight that testing?

The criminal justice system today, across the country but particularly in Texas, is fatally flawed. There are no consistent negative consequences for prosecutorial misconduct. The U.S. Supreme Court in a 5-4 decision threw out a  $14 million damages award against egregious misconduct by a Louisiana prosecutor. As Morton’s case demonstrates, self-serving prosecutors and wrongful convictions can rip a quarter century or more out of the life of an innocent man. Hiding evidence of innocence is despicable.

WC applauds the efforts by the Innocence Project to attach consequences to bad conduct. WC hopes it will be enough.

In November, WC harshly criticized the Illinois prosecutors for their irrational rejection of DNA evidence that strongly supports the innocence of the wrongly convicted.

The Appellate Court of the Second District of Illinois just agreed. In a December 9 decision in the case involving Juan A. Rivera, Jr., the court, not to put too fine a point on it, chewed out the prosecutors:

After viewing the evidence in the light most favorable to the prosecution, we hold that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the State’s evidence was insufficient to establish guilt beyond a reasonable doubt, we must reverse the conviction of Juan A. Rivera, Jr.

According to the New York Times, the fixated prosecutors still haven’t let go. The Lake County state’s attorney, Michael J. Waller, said, “We are going to study the opinion, confer with our appellate attorneys on Monday and determine a course of action.” The Times reports he declined to elaborate.

Of course, there’s still the problem of imprisoning the wrong man for 19 years, too. And the problem of having the real offender still on the streets. But the Lake County DA wants to keep prosecuting the innocent man.

One other bit of good news: Michael Mermel, who was the lead prosecutor in Mr. Rivera’s last trial? The same DA who claimed that an 8-year-old murder victim may have come into contact with sperm — which didn’t match the DNA of her father, whom Mermel was trying to prosecute — by playing in woods where couples have sex or sitting on a bed where a man masturbated? The DA’s office has announced Mr. Mermel’s retirement.

The title is a Latin phrase from WC’s long-ago Latin classes. It means, roughly, “Who watches the watchmen?” Who keeps and eye on the criminal justice system, the cops and the prosecutors, and makes certain they adhere to the law?[1]

A woman attempts to report sexual harassment to the county police department, complaining she had been groped and propositioned by a police officer responding to a domestic disturbance call. Instead of getting help, she was arrested for recording the interaction with the cops. The District Attorney refuses to dismiss the charges.

Students at a university investigate a possible wrongful conviction, and find compelling evidence that the convicted man is innocent. They present their evidence to the county district attorney. Instead of acting on the students’ evidence, the district attorney attempts to seize the students’ notebook, class records and transcripts.

DNA evidence strongly support overturning the criminal convictions of four men accused and convicted of murder of a prostitute. And the DNA evidence arises in a county with an appalling record of wrongful convictions. Instead of applying the law and agreeing to reverse the conviction, the district attorney spins fantasies about how the wrongfully convicted man might be guilty anyway.

Cook County State's Attorney Anita Alvarez

What do these three cases have in common? The same District Attorney, specifically Cook County Prosecutor Anita Alvarez. Remember, this is Illinois, the poster child for corruption and wrongful convictions. Where it’s hard to remember a state governor who hasn’t ended up in jail. Where the last governor not to go to jail wound up commuting all pending death sentences to life in prison, because he had completely lost confidence in the criminal justice system. Where the state legislature wound up abolishing the death penalty because of the incessant string of wrongful conviction for capital crimes.

You’d think that history would make a state’s attorney err on the side of, you know, justice?

At least in the case of Anita Alvarez, you’d be wrong.

WC would like to applaud Ms. Alvarez: she’s the first woman and first Hispanic to be Cook County’s elected prosecutor. She’s done some good work in the past. She runs with reasonable effectiveness the 800-plus lawyer office, the second largest in the nation (after Los Angeles).

But she also appears to have a fatal flaw for a public official: she cannot admit when she is wrong. She cannot accept the possibility or error. So she subpoenas the records of college students, instead of examining their charges. She ignores the law of wrongful convictions. And, worst of all from WC’s point of view, she refuses to exercise her duties to supervise the Chicago Police Department. If it comes to choosing between the complaints of a civilian injured by Chicago’s corrupt cops and the corrupt cops themselves, she’s on the cops’ side every time.

WC hasn’t lived in Chicago for decades now, but the memories remain fresh. As long as the voters tolerate this kind of failure to act, Chicago will be as corrupt as it was four decades ago. Chicago deserves better. Prosecutor Alvarez needs to remember she work for the public, not the cops, and that she and the Cook County justice system are demonstrably fallible.

[1] The quote is attributed to the Roman poet and satirist, Juvenal. It may be a later addition. If it was Juvenal, he was using it in the context of marital infidelity: you can surround your spouse with guards to keep his or her fidelity, but who watches the guards? It certainly sounds like Juvenal. The phrase’s connotative meaning has grown far beyond Juvenal.

It’s apparent to everyone with an IQ  higher than room temperature that Rick Perry, Governor of Texas, thinks he is the right man to be president of the United States. WC respectfully disagrees. WC thinks the last thing this country needs is another cowboy from Texas. We haven’t finished paying the bills and resolving the problems created by the last one.

But at the risk of leaping to judgment, here are some issues about Governor Perry to keep in mind as he postures for the presidency.

1. Rick Perry is the only governor in our nation’s history to knowingly execute an innocent  man. Cameron Todd Willingham did not commit a crime; he was convicted on outrageously bad “expert” testimony. Gov. Perry could not be bothered to look into it. Willingham – an innocent man by all sane accounts – was murdered by the State of Texas. There are likely other, similar cases in the massive numbers of executions Texas performs, almost three times higher than the state with the second highest number of executions. By the by, despite an astonishing death penalty rate, Texas remains in the worst third of states measured by homicides.

2. Rick Perry is either a religious zealot or a panderer. There is no other way to understand Perry’s performance last weekend. In either case, it reveals a man oblivious to the separation of church and state, and a man who seems to see and seeks to make evangelical Christianity as the national religion. He seems to view the First Amendment as optional. And he hangs out with some seriously dangerous nut jobs.

3. Rick Perry’s governorship has been a disaster for the people of Texas. The failures are serious: Texas was worst in the nation in several categories, including teen pregnancies, high school completion, children without health insurance, and adults in the criminal justice system – a significant issue because 56% of inmates incarcerated in state or federal prisons have children under the age of 18. Most worrying are trends in infant mortality: While still below the current national average of 6.9 deaths per 1,000 live births, the rate in Texas has risen from 5.7 in 2000 to 6.6 in 2006.

4. Rick Perry doesn’t create jobs for Texas; he steals them. Perry’s claim to job-creation fame comes from his high-profile raids on other states. He is a master at the theater of job poaching. During a trip to California last November, “Perry crowed that he had stolen 153 businesses from the Golden State in 2010; some 92 companies moved the other way, leaving Perry with a net gain of 61 businesses.” In October 2010, as Washington State was preparing to vote on an income tax for those earning over $200,000, Perry sent a letter to 90 businesses, including Microsoft, Starbucks and Amazon, telling them, “If Washington doesn’t want your business, Texas does.” That’ll play real well in California and Washington. The jobs he doesn’t steal from other states tend to be minimum wage. But then low-wage jobs play an outsize role in powering Texas’ economic engine. The majority of the state’s workforce is paid an hourly wage rather than a salary, and 9.5 percent  of those workers earned the minimum wage or below compared to about 6 percent for the rest of the nation, according to the Bureau of Labor Statistics. From 2007 to 2010, the number of minimum wage workers in Texas rose from 221,000 to 550,000. “Hi. Welcome to Walmart.” Of course, Perry may not know about the minimum  age. He has never held a private sector job and has held elected office or government positions for the last 27 years.

5. As far as WC can tell, Rick Perry’s guiding principles are the same as the principles that govern a weather vane: which way is the wind blowing? He has flopped around on gay rights, climate change and too many other issues. Even some of the Teabaggers hold their noses. He’s widely seen as kind of stupid, possibly vindictive, ”unencumbered by conscience,” overly religious, ultraconservative and even, given his start as a Democrat, a flip-flopper. This is the same man, after all, who chaired Al Gore’s 1988 election campaign in Texas and then jumped ship to the Republicans. And he doesn’t always seem to “get it” - he recently vetoed a bill banning text messaging while driving on the grounds that it amounted to “government micromanagement” of people’s lives.

6. But mostly, WC doesn’t think we need another right wing, religious zealot cowboy from Texas. The country, resilient as it is, may not be able to stand it.

Or you’re feeling your freedom
And the world’s off your back
Some cowboy from Texas
Starts his own war in Iraq

Some humans ain’t human
Some people ain’t kind
They lie through their teeth
With their head up their behind
You open up their hearts
And here’s what you’ll find
Some humans ain’t human
Some people ain’t kind

John Prine, “Some Humans Ain’t Human,” Fair and Square (2005)

WC makes no claim to foreign policy or intelligence expertise. But bin Laden’s assassination by the U.S. is too large an event to pass without comment, even in as minor a forum as Wickersham’s Conscience.

WC’s opposition to the death penalty doesn’t permit him to rejoice in an assassination. However richly bin Laden may have deserved it, America has once again subverted its own laws, and that can’t be good.

At the same time, WC sheds no tears for death of this thug. The human misery he created, not just in the U.S. but around the world, would shock the conscience of any thinking human being. Among his many crimes, and not the least, was his ability to turn thinking human beings into unthinking killers who valued life not at all. And to transform our nation of laws into a nation that violated its own laws.

No one should fool themselves that this will stop terrorism, let alone al-Qaeda. In the short and middle term, it will worsen the risks by creating a revenge incentive. But it still a kind of moral victory for the United States. bin Laden’s evil transformation of warfare will be with us forever. Happily, though, bin Laden will not.

There’s a moving opinion piece in the New York Times, written by a man wrongfully convicted of murder and robbery, who spent 14 years on death row. His conviction was finally overturned. He was denied recompense by the U.S. Supreme Court, despite compelling evidence of intentional prosecutor misconduct.

WC has long been an opponent of the death penalty. Not only are the kinds of mistakes and prosecutorial misconduct the article describes far too common. An all too fallible criminal justice system should have no place for an absolute penalty.

But more importantly, there is no evidence that the death penalty deters anyone. Consider this list of the top ten states in execution rates through April 17, 2009:

(What’s notable about this list is how many were in the Confederacy. But that’s an issue for a separate blog post. Fellow wonks: right, Oklahoma was not yet a state, but the territory was claimed by the Confederacy. Missouri was complicated. Delaware was a slave state but didn’t secede.)

So does execution deter homicides? Through 2009, the states with the highest homicide rates calculated as murders per 100,000 people are

So of the top ten states in execution rates, a total of eight, Oklahoma, Texas, Louisiana, Missouri, Arkansas, South Carolina, Alabama and North Carolina, are among the fifteen states that have the highest homicide rates. That’s hardly a compelling argument for deterrence. It’s a strong argument that in states that execute murderers often, the homicide rate remains high.

But let’s turn it around. Fifteen states don’t have a death penalty, including Alaska. Here’s a direct comparison of murder rates in states with and without the death penalty:

It’s pretty clear, isn’t it? In 2009, the most recent year for which WC can find data, the murder rate was more than a third lower in states that don’t have a death penalty.

So, when you combine the mistakes and misconduct of cops and prosecutors, the very high expense and the absence of meaningful deterrence, shouldn’t you ask why we still kill people? Or is it just the Old Testament eye-for-an-eye reflex? Maybe that’s a Christian value we can move beyond?

I went to law school in Cook County, Illinois. One of the inadvertent lessons I was taught was to be deeply suspicious of law enforcement. Lessons began on arrival: the first thing I saw, before even getting out of the taxi from the airport, was a Chicago Police Department cop taking a bribe for fixing a parking ticket. The following year, when Big Jim Thompson was U.S. Attorney and trying to clean up Mayor Richard J. Daley’s corrupt regime, every cop – every single cop, from the precinct captain to the lowest patrolman – at the Chicago Avenue Precinct was indicted and convicted of soliciting and receiving bribes.

The Center for Wrongful Convictions at my old law school was founded long after I had left. Supported by the Medill Innocence Project at Northwestern’s School of Journalism, they’ve proven the innocence of some 11 people, some of them sentenced to death. Their work persuaded an Illinois governor to suspend indefinitely all executions. My distrust of law enforcement and the proven track record of the Center have led me to make charitable contributions to the Center for some years now. And don’t get me started on the death penalty.

But the prosecutors and cops are apparently tired of being proven to be incompetent. The Center has submitted strong proof to the Cook County Circuit Court that Anthony McKinney, who was convicted of fatally shooting a security guard in 1978, is in fact innocent of the charges. Instead of addressing the merits of the evidence, or, better still, admitting they might have made a mistake, the Cook County state’s attorney has subpoenaed the school records of the journalism students, seeking their investigative memoranda, e-mail messages, notes from multiple interviews with witnesses and class grades.

The excuses offered by the District Attorney are silly and lame. The guilt or innocence of Anthony McKinney doesn’t turn on student grades. This is intimidation, pure and simple. This is a patent effort to discourage the Medill Innocence Project and the Center on Wrongful Convictions. It’s Chicago Machine politics at their worst: “get in my face and I’ll make you regret it.”

I don’t have a lot of faith in the judicial system in Cook County, either. Big Jim Thompson put a lot of trial judges in jail, too. But I hope the trial judge quashes the State’s subpoenas and sanctions the State’s attorney. I hope, too, that this blatant attack on the innocent and those who support them sparks enough public outrage that Cook County law enforcement learns to put its efforts into prosecuting the guilty, and not jailing the innocent. Or attacking those who try to repair the damage that has been done by clumsy law enforcement.

You know. Truth and all that.