Just a few days ago, I learned that Martina Davis-Correia, sister of Troy Davis, passed away on December 1 after a long and courageous battle with breast cancer. She was 44 years old. Despite her illness, Martina fought tirelessly for her brother Troy, who was killed by the State of Georgia by lethal injection on September 21, 2011. She was a champion for justice and traveled the globe to share the story of her brother’s case and spread the message that the death penalty must be abolished. Martina taught us that it takes a collective effort to fight for the freedom of an innocent person, but this effort often starts with one person, like herself. Unfortunately, we don”t always succeed, and Martina and so many advocates around the world witnessed the tragedy and ultimate injustice of her brother”s execution.

Martina garnered support from and was an inspiration to so many people around the world. We must continue her fight to eliminate capital punishment and to clear Troy’s name once and for all. We cannot let his death be in vain.

The Englewood Four finally had something to be thankful for this Thanksgiving. On Wednesday, November 16, a Cook County (IL) judge overturned the convictions of the four African American men – Vincent Thames, Terrill Swift, Harold Richardson and Michael Saunders – who were convicted of raping and murdering a prostitute as teenagers in 1995. Their convictions were largely the result of false confessions, and advanced DNA testing revealed last May that the real perpetrator was a man that police had interviewed at the crime scene.

Johnny Douglas was interviewed by police at the time of the murder because he lived in the neighborhood where the body of Nina Glover was found. Douglas, however, was soon let go after he denied knowing the victim. When he was later linked to the murder through DNA, it was discovered that Douglas had a rap sheet containing 38 convictions, including for murder and sexual assault. In 2008, he was shot to death.

And it turns out that Douglas was not the only one with a rap sheet. According to the Huffington Post, Detective James Cassidy, who always maintained that the four teenagers voluntarily confessed to the crime, had a history of taking false confessions. In 1994, he took a confession from an 11-year-old African American boy who was eventually convicted of murder, but a federal judge concluded that the confession was coerced and threw out the conviction. Additionally, in 1998, Cassidy took confessions from two African American boys, ages seven and eight, but these charges were later dropped after new evidence was discovered in the case.

According to the Center on Wrongful Convictions at Northwestern University, of the 76 wrongful convictions in Cook County that have been uncovered through DNA testing, 25 were the result of suspects admitting to crimes they did not commit. Even more disturbing is that despite these numbers, State’s Attorney Anita Alvarez vehemently opposed the release of the Englewood Four, stating that DNA testing is not always the ‘silver bullet’ it appears to be. Unfortunately, Alvarez’s attitude towards the men is not unique among other wrongful conviction cases. Reluctance to admit mistakes is a common trait among police and prosecutors involved in other miscarriages of justice.

By continuing to cover up mistakes, even with strong evidence of innocence, members of law enforcement are seriously undermining the administration of justice in our criminal ‘justice’ system. Each day that a prosecutor fights against the release of a clearly innocent individual is another day that the actual perpetrator could be walking free. It is time for our elected officials to start doing the right thing, and we as constituents must hold them accountable for failing to do so.

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December 7 – We reached out to Laura Nirider, Staff Attorney at Northwestern University”s Center on Wrongful Convictions of Youth, to get her thoughts on this post and the case of the Englewood Four. She said:

“The only responsible position for Cook County State’s Attorney Alvarez to take is to drop all charges against the Englewood Four and give them a long-overdue opportunity to reconstruct their lives.  As a prosecutor who is ethically bound to do justice, State’s Attorney Alvarez must acknowledge and rectify the previous administration’s mistakes, rather than struggling to explain away the DNA.  Thanks to Andrew Martin’s recent article in the New York Times Magazine, we’ve seen that the public has reacted with horror to the attempts of prosecutors in Lake County, Illinois (Cook County’s neighbor to the north) to ignore exonerating post-conviction DNA evidence in other cases.  The same reaction would be warranted if Cook County State’s Attorney Alvarez decides to retry the Englewood Four despite the fact that DNA proves their innocence.”

Last February, we brought you the story of Douglas Warney, a mentally challenged man who spent nine years in prison for a murder he did not commit after he was coerced into falsely confessing to Rochester (NY) police. He was exonerated in 2006 through DNA testing but was unable to seek compensation because New York’s Court of Claims Act (see section 8B) barred recovery for those whose own “misconduct,” including false confessions and guilty pleas, caused their conviction. Then, in April, the New York State Court of Appeals ruled that Warney could sue the state, going against prior court decisions that had refused to allow him to seek compensation due to the existing law.

Today, the Innocence Project announced that Douglas Warney has been awarded $3.75 million by the city of Rochester for his wrongful imprisonment. According to Warney’s attorney, Rochester Mayor Tom Richards agreed to the negotiated settlement, but the City Council must give final approval at its meeting on December 13.

New York is not the only state that has prohibited exonerees from seeking compensation if they falsely confessed or offered a guilty plea. Under California’s statute, for example, the claimant must prove “that he did not, by any act or omission on his part, either intentionally or negligently, contribute to the bringing about of his arrest or conviction.” According to the Innocence Project, however, in 25 percent of DNA exoneration cases, defendants falsely confessed, pled guilty or made incriminating statements. Evidence that these confessions and guilty pleas often occur as the result of outside influences – such as duress and coercion – should raise questions about statutes that disqualify those exonerees from receiving compensation.

While Mayor Richards certainly did the right thing in awarding financial compensation to Mr. Warney, it is important to remember that exonerees need additional support beyond money to help them get back on their feet. In Mr. Warney’s case, for example, assistance with medical care and mental health care are likely very important. In addition to his mental disability and intellectual deficiency (Warney has an IQ of 68), he has also been diagnosed with AIDS and AIDS dementia. For other exonerees, additional forms of social services are needed, including tuition reimbursement, job placement services, and housing assistance. Individuals like Douglas Warney need help facing the freedom that exoneration provides, a freedom that cannot be fully realized without the provision of adequate compensation and social services.

In another New York wrongful conviction case, NYC Mayor Michael Bloomberg and other city officials have vehemently opposed compensation awards for the five defendants from the Central Park Jogger case, who were also coerced into giving false confessions. Click here to learn more about their fight for compensation.

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

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.

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.

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

What do Marty Tankleff, Jeffrey Deskovic, the five men convicted in the infamous Central Park jogger case and Damien Echols have in common? A false confession that led to their convictions for murder.

An article in the Memphis Commercial Appeal by Beth Warren makes the connection between these cases. Unlike the other men though, Damien Echols, Jason Baldwin and Jessie Misskelley have not been exonerated. “For Echols, in his 17th year on Arkansas” Death Row, it”s literally a fight for life. Misskelley and Baldwin are serving life sentences.”

In the West Memphis 3 case, not only did mentally challenged Jessie Misskelley”s false confession convict him, but it was unconstitutionally introduced into Damien Echols and Jason Baldwin”s trial, which had been separated precisely to prevent the “confession” from being considered as Jessie had recanted and refused to testify against his co-defendants. Nevertheless, according to briefs filed in court recently, the jury foreman in the Echols/Baldwin trial was angry that the “confession,” which had been all over the newspapers following their arrest, could not be considered. So juror Kent Arnold decided he would not let the constitution stop him from bringing the confession into the jury room and convincing his fellow jurors to convict the men of three murders they did not commit.

The Arkansas Supreme Court recently ordered an evidentiary hearing in the case to consider new evidence that might lead to a new trial. The Attorney General of Arkansas, who grew up in the county where the murders occurred, is against a new trial and believes the evidence, including new DNA and forensic evidence as well as the the shocking juror misconduct, is irrelevant.

The new trial hearing will take place in Jonesboro, Arkansas, before Craighead County Court Judge David Laser, beginning December 5, 2011.

For those interested, follow the case on twitter@WM3News as well as www.freewestmemphis3.org and www.wm3.org.

Last Wednesday, a federal court upheld a lower court’s decision to clear the criminal record of Derek Tice, one of the “Norfolk Four” defendants who were wrongfully convicted of rape and murder in 1997. The lower court’s ruling was based on the belief that had Tice’s defense lawyers asked for his coerced confession to be deemed inadmissible in the original trial, a different verdict likely would have been reached.

Although three of the Norfolk Four received a conditional pardon by former Virginia Governor Timothy Kaine in 2009 and were released from prison (the fourth had already completed his prison sentence), the former sailors remained on probation and their classification as sex offenders did not disappear.

Unfortunately, for most wrongfully convicted individuals, exoneration does not necessarily equate to full freedom. Even though they are no longer behind bars, many exonerees have to spend additional time fighting to have their criminal records expunged.

Arthur Lee Whitfield, for example, spent more than 22 years behind bars for two rapes he did not commit before DNA testing excluded him as the perpetrator. Although he was released in 2004, Whitfield was put on probation had to wait nearly five years before he was officially pardoned by Kaine in 2009. As a result, under Virginia law, Whitfield was not eligible to receive compensation for the years he was wrongfully imprisoned until then. Additionally, Whitfield remained on the registered sex offender list, burdening him with the stigma of being a convicted criminal and making it extremely difficult to find and sustain employment.

Some states have included provisions to clear the records of exonerees within statutes providing compensation to wrongfully convicted individuals. California’s compensation law, for example, states that a judge must order case records to be sealed when a conviction has been set aside. That being said, the statute requires the wrongfully convicted individual to prove factual innocence, — typically established through DNA evidence — an extremely high standard of proof. Florida’s compensation statute includes a similar provision.

Although the federal courts made the right call in the Derek Tice case, it is time for states to recognize that exonerees should not have to continue to struggle for freedom post release. Aren’t the years they spent behind bars enough? Why should they have to devote more time, and almost always more money, to expunge records of crimes they did not commit? Including a criminal record clearing provision within a state compensation statute makes sense, as this should certainly be considered an essential component of any piece of legislation offering holistic or restorative assistance to the wrongfully convicted. Still, only 27 states have passed statutes to provide compensation and other forms of assistance to exonerees; most of these statutes are extremely inadequate and few even mention criminal records.

Individuals like Derek Tice and Arthur Lee Whitfield need help facing the freedom that exoneration provides, a freedom that cannot come to fruition without the provision of adequate compensation, social services and a cleared name. Last week’s ruling should be viewed as a sign that significant gaps in our ‘justice’ system still exist.

If ever there was a case that cried out for justice it was Jeffrey Deskovic’s. After spending 16 years in New York State prisons for the rape and murder of a high school classmate, Jeffrey finally received compensation from Westchester County in his wrongful conviction.

Jeffrey was arrested, tried, convicted and sentenced to life in prison for murder even though the real murderer”s DNA was found at the crime scene.The police, prosecutors, judge and jury knew that, but they still convicted this 16 year old boy. The police and prosecutors obtained a coerced , false confession and never looked back.

We first met Jeffrey when he joined Marty Tankleff”s family and supporters during the long struggle to free Marty in his false confession murder case. Jeffrey made himself available to Marty”s attorneys, public advocates and the press to tell his story hoping it would help free Marty. He was there during the two years of evidentiary hearings in Marty”s case which were lost, and he was there when Marty was finally freed by the New York State Appellate Court in 2007. In fact, Jeffrey was always there, selfless in his support for other wrongfully convicted men and women in New York and around the country.

It was a real pleasure to see the New York Times today and learn that he won his case. It has never been easy for Jeffrey. He struggled as a teenager, as a prisoner and even after his exoneration. But today, hopefully his struggle will get a little lighter and he can enjoy having some money to pay his rent, have a good meal and have some joy in his life.

Good luck Jeffrey Deskovic.