Sunday, August 25, 2019

Swearingen Executed

I received an email asking me if I was going to post something about the Execution of Larry Swearingen. I said I would. This is the post.

Rather than argue his innocence yet again, I'll simply link to the Reason article, which is professionally written.

I've not been blogging for what I consider to be many good reasons.
     The sun was in my eyes.
     The dog ate my last post.
     My type of blogging demands nearly all my time.
     As a blogger, I've not made any impact. I've done no quantifiable good.
     I have finite time left to me, less than most.
     I want to help free someone who has been wrongfully convicted.
     Blogging won't cut it.

I've blogged. I've written books. I've visited governors. I've visited prosecutors. I've filed informal and formal complaints of misconduct. I've prepared habeas corpus petitions, motions for DNA testing, and civil suits. In all those efforts, I've failed.

Recently, I've turned to testing, attempting to recreate critical aspects of possible wrongful convictions. It started when I obtained exculpatory photographs intentionally withheld from the defense in a case of considerable interest to me. Those photographs prompted me to conduct my own ballistic testing. The test results have helped advance the case to the point that I'm now hopeful that the inmate will eventually be freed.

I'm trying to expedite accelerate miniscully increase the speed of the process by publishing the results and conclusions in a book, tentatively entitled Gunshot Residue Suppressed and A Case of Wrongful Conviction. I offer the tentative abstract as the image below. Click to enlarge.


In the case just abstracted, I've been fortunate to work with two weapons experts who have volunteered their time.

I will self-publish the book, purchase copies, and distribute them to the governor, the prosecutors,  the state attorney general, the state public defender, various reporters and others. Even though I have yet to finish the book, the information that we have learned has already helped advance the case considerably.

If this recreate-and-reveal process works, then I will consider applying it to other cases of interest to me.

If I pursue the Preston Hughes case in similar fashion, I might be stabbing analog necks with various blades. I might perhaps be compiling a database of survival times of people with severed carotids.

If I pursue an alleged arson-murder case of interest to me, I might be recreating a home electrical circuit that catches fire.

If I purse the Swearingen case, I might be testing the rate at which stomach contents decay, in December, in a Texas forest. Alternatively, I might be cutting one leg from many pairs of panty hose.

If there is any reader out there who might be skilled in such testing, or skilled in obtaining case documents, and interested in volunteering multitudinous hours in a probably futile effort to correct or expose an injustice, feel free to contact me at the Skeptical Juror email address.

I'll prepare for the deluge.

Tuesday, May 22, 2018

Bees Gotta Buzz

Bees gotta buzz, something's gotta something, and prosecutors gotta prosecute. That was going to be my clever introduction to this august post in which I planned to vent against prosecutorial misconduct. All I needed was a quick Google search to figure out what followed "Bees gotta buzz," and I'd be off to the races. Instead I'm left with another mixed metaphor that stinks like fish in a barrel.

It took me only a couple minutes to find the source of the quote I was going to leverage. It comes from Annie Dillard and her novel Pilgrim and Tinker Creek.
Book cover showing two photographs of trees blended together in the darkroom - the upper image is in North Carolina and the bottom image are yellow pines in Florida and upside down and was meant to be interpreted by the viewer . . . floating forest, etc.
There's a Wikipedia article about the book, from which I obtained the cover image and to which I've hyperlinked the title. It is from that Wikipedia article that I learned once again how wrong I can be. I now excerpt from that article:
Pilgrim at Tinker Creek is a 1974 nonfiction narrative book by American author Annie Dillard. Told from a first-person point of view, the book details an unnamed narrator's explorations near her home, and various contemplations on nature and life. The title refers to Tinker Creek, which is outside Roanoke in Virginia's Blue Ridge Mountains. Dillard began writing Pilgrim in the spring of 1973, using her personal journals as inspiration. Separated into four sections that signify each of the seasons, the narrative takes place over the period of one year. [...] 
A passage in the second chapter of the book describes a frog being "sucked dry" by a "giant water bug" as the narrator watches; this necessary cruelty shows order in life and death, no matter how difficult it may be to watch. The narrator especially sees inherent cruelty in the insect world: "Fish gotta swim and birds gotta fly ... insects, it seems, gotta do one horrible thing after another. I never ask why of a vulture or a shark, but I ask why of almost every insect I see. More than one insect ... is an assault on all human virtue, all hope of a reasonable god."
I thereby stumbled into an even more clever introduction to this august blog post, though the time for introduction is nigh past. That bus has sailed, as the Skeptical Spouse once so wisely said. So I'll get on with it.

Fish gotta swim and birds gotta fly. Prosecutors, it seems, gotta do one horrible thing after another.

It is not my intention to equate prosecutors with insects. But, like any other collection of humans, prosecutors can be either good, bad, or ugly, to borrow from another masterpiece.
Good the bad and the ugly poster.jpg
It is bad prosecutors of whom I will be writing, the ugly ones, the ones that gotta do one horrible thing after another.

Over the last decade, I've come to realize that prosecutors are the primary cause of wrongful convictions. Certainly there are enough wrongful convictions to go around, some to attribute to the police, some to attribute to mistaken identity, some to attribute to insufficiently skeptical jurors. But the primary cause of wrongful convictions, I now maintain, is, far and away, those prosecutors that gotta do one horrible thing after another.

The (national) Innocence Project, long long ago in a place far far away, used to report that prosecutorial misconduct is responsible for 25% of wrongful convictions. I state that not as a fact, but as a recollection, and concede I might be wrong. I've checked again just now, and I find only a handy dandy colorful bar chart, which I've embedded below for your viewing convenience.
CausesGraph325
Well I guess I'm wrong about claiming most wrongful convictions stem from prosecutorial misconduct. Even the (national) Innocence Project, which keeps records on such matters, and which is the most respected name in such matters, cannot find sufficient evidence of prosecutorial misconduct to justify even a tiny bar in in its colorful bar graph. My only hope for neurological redemption is in the note that the (national) Innocence Project adds beneath its bar chart.
Contributing causes confirmed through Innocence Project research. Actual numbers may be higher, and other contributing factors to wrongful convictions include government misconduct and bad lawyering. 
In other words, results may vary, contents may have settled during shipping.

It suddenly seems that the (national) Innocence Project seemingly did find at least one possible case of government misconduct that led to a wrongful conviction, but they chose not to quantity how many. Maybe my memory was not so faulty after all. Maybe they did indeed previously claim that 25% of wrongful convictions stemmed from prosecutorial misconduct, but they now choose to mask that number, as a convenience to the readers.

I now turn to the Death Penalty Information Center, an organization and  web site not so politic in its quantified reporting. It offers its own handy dandy colorful bar chart and its own textual description, which I embed below for your viewing convenience.
Many factors contribute to wrongful convictions, and it is no different in capital cases. But the most recent data from the National Registry of Exonerations points to two factors as the most overwhelmingly prevalent causes of wrongful convictions in death penalty cases: official misconduct and perjury or false accusation. As of May 31, 2017, the Registry reports that official misconduct was a contributing factor in 571 of 836 homicide exonerations 68.3%, very often in combination with perjury or false accusation, which also was a contributing factor in 68.3% of homicide exonerations.
Holy conflicting data, Batman! We now have evidence that official misconduct justifies either no bar in a colorful bar chart OR an 80% bar in a colorful bar chart. I suspect it might be difficult to rationalize those two results as consistent. Instead, I suspect it more likely that one site is downplaying the problem of official misconduct, for whatever reason, and/or the other site is exaggerating the problem, for whatever reason.

As The Skeptical Juror, and as this site's duly elected contrarian, I take a third position. I suggest that both sites are understating the contribution of prosecutorial misconduct to our country's abysmal rate of wrongful conviction. You might therefore anticipate that I am not done pontificating on the subject.

Stay tuned.

Thursday, May 17, 2018

Beware the Noble Prosecutor

I have an old case for your consideration, one that maintains a certain currency. It involves the wrongful conviction of four men for murder, two of whom survived long enough to be exonerated, and who were awarded one hundred and one million, seven hundred and fifty thousand dollars in their lawsuit against the FBI.

The story is best told by the judge who awarded the money. That would be United States District Court Judge Somebody Somebody Gertner in the case of Limone v. United States of America. At more than 250 pages, the decision is too long to include in its entirety. I therefore limit my excerpt to his introduction.  Yes, his ruling is so large that it has an introduction. It even has a table of contents.

Buckle up. Here we go. The emphasis is mine.
Peter Limone ("Limone"), Enrico "Henry" Tameleo ("Tameleo"), Louis Greco ("Greco"), and Joseph Salvati ("Salvati"), made extraordinary and troubling accusations in this case. They claimed that thirty-nine years ago, virtually to the date of this decision, on July 31, 1968, they were convicted of a crime which they did not commit — the murder of Edward "Teddy" Deegan ("Deegan"). Limone, Tameleo, and Greco were sentenced to die in the electric chair, a sentence reduced to life imprisonment whey the death penalty was vacated. They accused the United States, specifically, the Federal Bureau of Investigation ("FBI") of framing them for Deegan's murder, and then, by covering up FBI misconduct, ensuring their imprisonment over the next three decades. 
This trial, however, was not about securing the plaintiffs' release. Salvati was freed in 1997; Limone in 2001. Tameleo and Greco died tragically as prisoners — Tameleo in 1985, Greco in 1995. 
Rather, the plaintiffs sought a different form of redress, which the law allows — damages for their loss of liberty, for their pain, and the pain of their loved ones. They brought this lawsuit ... on a number of grounds, including malicious prosecution. 
The bench trial was lengthy. It took twenty-two days and involved hundreds of exhibits, thousands of pages. There were comparatively few live witnesses; this story had to be painstakingly pieced together through documents, many of them heavily redacted, particularly at the outset of the proceedings. 
Despite the complexity of the record, this decision is far, far, longer than I would have wished. It has taken much more time to complete than I had predicted. But there was no other alternative. The conclusions that the plaintiffs have asked me to draw — that government agents suborned perjury, framed four innocent men, conspired to keep them in jail for three decades — are so shocking that I felt obliged to analyze this complex record with special care in order that the public, and especially the parties, could be fully confident of my conclusions. 
I have concluded that the plaintiffs' accusations that the United States government violated the law are proved. In the pages that follow, I will describe why in detail. This introduction summarizes some of those findings. 
The plaintiffs were convicted of Deegan's murder based on the perjured testimony of Joseph "The Animal" Barboza ("Barboza"). The FBI agents "handling" Barboza, Dennis Condon ("Condon") and H. Paul Rico ("Rico"), and their superiors — all the way up to the FBI Director — knew that Barboza would perjure himself. They knew this because Barboza, a killer many times over, had told them so — directly and indirectly. Barboza's testimony about the plaintiffs contradicted every shred of evidence in the FBI's possession at the time — and the FBI had extraordinary information. Barboza's testimony contradicted evidence from an illegal wiretap that had intercepted stunning plans for the Deegan murder before it had taken place, plans that never included the plaintiffs. It contradicted multiple reports from informants, including the very killers who were the FBI's "Top Echelon" informants. 
And even though the FBI knew Barboza's story was false, they encouraged him to testify in the Deegan murder trial. They never bothered to tell the truth to the Suffolk County District Attorney's Office. Worse yet, they assured the District Attorney that Barboza's story "checked out." 
The FBI knew Barboza's testimony was perjured because they suborned that perjury. They met with Barboza long before the state authorities ever did. They coddled him, nurtured him, debriefed him, protected him, and rewarded him — no matter how much he lied. When Barboza told them he would not accuse the man they knew to be one of Deegan's killers, his friend and FBI informant, Jimmy Flemmi, they urged Barboza to testify nonetheless. And when he announced that he would accuse four men who had never been linked to this murder, they were undaunted. They continued to press for his testimony. Indeed, they took steps to make certain that Barboza's false story would withstand cross-examination, and even be corroborated by other witnesses. 
In word and in deed, the FBI condoned Barboza's lies. FBI agent Dennis Condon even told the Deegan jury that he was "always concerned with the purity of testimony on the part of his witnesses, referring to Barboza, the perjurer. When Tameleo, Greco, and Limone were sentenced to death, Salvati to life imprisonment, the FBI did not stand silently; they congratulated the agents for a job well done. 
Nor did the FBI's misconduct stop after the plaintiffs were convicted. The plaintiffs appealed, filed motions for a new trial, one even took and passed a polygraph test on public television — over and over again protesting their innocence. They sought commutations, appeared before parole boards, seeking clemency from the governor, even appealing to the press. On each occasion, when asked about the plaintiffs, on each occasion when the FBI could have disclosed the truth — the perfidy of Barboza and their complicity in it — they did not. This was so even as more and more evidence surfaced casting more and more doubt on these convictions. In the 1970s, for example, Barboza tried to recant his testimony, not in all cases in which he had participated, but only as to the plaintiffs in this case — the very men the FBI knew to be innocent. In the 1980s, Agent Rico was found by a court to have suborned the perjury of another witness under similar circumstances. Yet, there was still no FBI investigation, no searching inquiry to see if an injustice had been done in this case.
I interrupt here to suggest that you remember what happened beginning in the 1980s. There will be a pop quiz later. Now back to the introduction.
Rather, while Salvati and Limone languished in jail for thirty-odd years, and Greco and Tameleo died in prison, Barboza and his FBI handlers flourished. The FBI agents were given raises and promotions precisely for their extraordinary role in procuring the Deegan convictions. Even when Barboza, the "poster boy" for the new federal witness protection program, committed yet another murder, three federal officials testified — now for the second time on his behalf. FBI officials up the line allowed their employees to break laws, violate rules and ruin lives, interrupted only with the occasional burst of applause. 
The FBI knew Barboza's testimony was false, that the plaintiffs' convictions had been procured by perjury, that critical exculpatory information had been withheld — but they did not flinch. After all, the killers they protected — Jimmy Flemmi, along with Barboza, and Jimmy's brother, Stephen — were providing valued information in the "war" against the Italian Mafia, La Cosa Nostra ("LCN"). The pieties the FBI offered to justify their actions are the usual ones: The benefits outweighed the costs. Put otherwise, in terms that are more recently familiar, these four men were "collateral damage" in the LCN war. To the FBI, the plaintiffs' lives, and those of their families, just did not matter. As Agent Rico put it in his testimony before the United States House of Representatives Committee or. Government Reform, when asked if he had any remorse that four innocent men went to prison, he replied: "Would you like tears or something?" 
Now is the time to say and say without equivocation: This "cost" — to the liberty of four men, to our system of justice — is not remotely acceptable. No man's liberty is dispensable. No human being may be traded for another. Our system cherishes each individual. We have fought wars over this principle. We are still fighting those wars. 
Sadly, when law enforcement perverts its mission, the criminal justice system does not easily self-correct. We understand that our system makes mistakes; we have appeals to address them. But this case goes beyond mistakes, beyond the unavoidable errors of a fallible system. This case is about intentional misconduct, subornation of perjury, conspiracy, the framing of innocent men. While judges are scrutinized — our decisions made in public and appealed — law enforcement decisions like these rarely see the light of day. The public necessarily relies on the integrity and professionalism of its officials. 
It took nearly thirty years to uncover this injustice. It took the extraordinary efforts of a judge, a lawyer, even a reporter, to finally bring out the facts. Proof of innocence in this democracy should not depend upon efforts as gargantuan as these. 
The claims of the plaintiffs or their estates fit into four categories: malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent selection, supervision, and retention. Their spouses and children have each brought loss of consortium and bystander intentional infliction of emotional distress claims as well. 
The federal government has fought hard. The legal doctrines on which it has relied are important ones. They are doctrines designed to give law enforcement room to make critical policy decisions. They are intended to insulate those who bring information in good faith to the authorities, even if the information is later disproved. All the FBI did, the government argued, was exercise their discretion about whom to offer deals, and how to conduct an investigation. All they did was to present their cooperating witness to the state authorities who independently prosecuted the crime. In effect, what they are saying is that it was the state's fault — not theirs — for not doing a better job. If the FBI erred at all, it was in not turning over information exculpatory to the defense — nothing more — and that violation is not actionable ... 
The government's position is, in a word, absurd. The law they cite does not apply to the extraordinary facts of this case. The issue here is not discretion but abuse, not independent charging decisions but the framing of four innocent men, not the failure to produce exculpatory evidence but procuring convictions by misrepresentation, not letting perjured testimony proceed uncorrected but facilitating it. 
The FBI, and not the state, developed Barboza as a witness, knowing that his false testimony would be used to prosecute the plaintiffs for a crime they did not commit. They, and not the state, kept their conduct from being discovered by failing to disclose exculpatory evidence, before, during, and after the trial. They, and not the state, vouched for Barboza to law enforcement and to the very jury hearing the murder case, even when all the information they had flatly contradicted his account.  ...
In the end I conclude that the defendant is liable to these men and their families. As to damages, plaintiffs' loss of liberty, and, in effect, a lifetime of experiences, is obviously not compensable. To the extent that damages can approach this task, my total award is One Hundred One Million, Seven Hundred Fifty Thousand, And 00/100 ($101,750,000.00) Dollars.
Now for the quiz. Who was the U.S. Attorney who, throughout the 1980s, wrote letters to the parole and pardons board opposing clemency for the four men the Feds had wrongfully convicted?

I'll give you a hint. This U.S. Attorney was also the acting U.S. Attorney in Boston while, in another disturbingly similar case, Whitey Bulger was helping the FBI cart off his criminal competitors even as he buried bodies in shallow graves.

It's a tough one, I know, so I will give you four lines to contemplate your answer before I reveal it.

One line.

Two lines.

Three lines.

Four lines.


In 2007, when asked about about the FBI corruption in Boston, Robert Muller offered this pearl of wisdom: "I think the public should remember what happened, happened years ago."

Wednesday, May 16, 2018

The Lenny Bruce Cautionary Tale

Being older than most other people in this world, a claim that can be made by only some 3.8 billion others, I remember Lenny Bruce. What I knew of him came from the eponymous 1974 movie Lenny starring Dustin Hoffman and Valerie Perrine.
LennyOScheck.jpg
Since I made a point of my imperfect recollection in my last post, I'll admit to being surprised to learn (or re-learn, as the case may be) that Dustin Hoffman starred as Lenny Bruce. That came as a surprise to me when I glanced over the Wikipedia article for the movie. Then I saw that Valerie Perrine co-starred in the movie, and I was not so surprised by that. That fact seemed somehow familiar to me, though I wouldn't have thought of her name in response to a Jeopardy question. Maybe the movie poster created a few more neurons of her than of him.

But I meander.

For those not familiar with Lenny Bruce, I'll excerpt from the Wikipedia article on him.
Leonard Alfred Schneider (October 13, 1925 – August 3, 1966), better known by his stage name Lenny Bruce, was an American stand-up comedian, social critic, and satirist. He was renowned for his open, free-style and critical form of comedy which integrated satire, politics, religion, sex, and vulgarity. His 1964 conviction in an obscenity trial was followed by a posthumous pardon, the first in the history of New York state, by then-Governor George Pataki in 2003.
Bruce is renowned for paving the way for future outspoken counterculture-era comedians, and his trial for obscenity is seen as a landmark for freedom of speech in the United States. In 2017, Rolling Stone magazine ranked him third (behind disciples Richard Pryor and George Carlin) on its list of the 50 best stand-up comics of all-time.
The Wikipedia article provides a long list of cultural references to Lenny Bruce, some of which I recognize after the fact. Simon and Garfunkel incorporated him into several variations of their songs. Bob Fosse, who directed Lenny, incorporated Lenny into All that Jazz. And, my favorite, Lenny Bruce is pictured on the top row of the cover of the Beatles 1967 album Sgt. Pepper's Lonely Hearts Club Band. He's on the top row, fourth from the left, at least according to this site:
Sgt. Pepper's Lonely Hearts Club Band.jpg
I guess that is Lenny Bruce, top row, fourth from the left. I'll provide his mug shot and let you decide for yourself.
In summary, Lenny Bruce was a comic who told dirty jokes, was convicted of obscenity for them, and thereby became famous. And with that astoundingly well-organized background out of the way, I'm ready for the cautionary tale portion of this post. I excerpt now from the Wikipedia article for Lenny.
The film jumps between various sections of Bruce's life, including scenes of when he was in his prime and the burned-out, strung-out performer who, in the twilight of his life, used his nightclub act to pour out his personal frustrations. We watch as up-and-coming Bruce courts his "Shiksa goddess", a stripper named Honey. With family responsibilities, Lenny is encouraged to do a "safe" act, but he cannot do it. Constantly in trouble for flouting obscenity laws, Lenny develops a near-messianic complex which fuels both his comedy genius and his talent for self-destruction. Worn out by a lifetime of tilting at Establishment windmills, Lenny Bruce dies of a morphine overdose in 1966.
I've emboldened two cautionary notes in the excerpt, both of which I take to heart. Dealing with the second one first, I don't want to be worn out tilting at Establishment windmills (interesting capitalization) and die of a morphine overdose in 1966. Second, I don't want to become a burned-out, strung-out blogger who uses his writing to pour out his personal frustrations.
Many of the events that have taken place over the last four years are of intense interest and importance to me, but I suspect my august readers have their own issues to fret over. I feel the urge to rapidly pour out all that has happened, but I must resist the temptation.
What I remember most from my viewing of Lenny was how he had turned his nightclub act from one of fantastic comedy in which he made fun of the human condition, to one in which he literally read from the legal documents in his case. Since I've been known to quote from a legal document or two, I see the parallel and suddenly seem one step close to dying of a morphine overdose in 1966.
Now for the happy ending.
Because of Lenny and Lenny, I realize that I should not use my return to this august blog to tell only of matters of great importance to me. I need to write more broadly, of wrongful convictions beyond my immediate interest, perhaps even of other aspects of the human condition.
That way, I might not only recover some of my readership, I might also not die of a morphine overdose in 1966.

Tuesday, May 15, 2018

I'm Back

My previous post was dated 14 May 2014, so it's been 4 years and 1 day since I posted. Hopefully, my next post will not be that far in the future.

As I remember it, incorrectly as it turns out, I stopped blogging after I failed to stop the execution of Preston Hughes III, restarted for a while, then quit mid-post, telling my wife I was done. I was discouraged and miserable, and the blogging was taking up too much of my time, with which I should have been making some money. I remember that sequence pretty clearly, but my memory is flawed, just as is that of everyone else. My clear mis-recollection is just more evidence of how bad eyewitness testimony can be.

As I look back over the history of my posts, I see that I did indeed stop posting on 15 November 2012 with a post entitled "Hughes News: Executed."  The entirety of the post read: "7:52 PM   I will not be posting for at least a few days." Regarding that issue, my memory was reasonably accurate.

I see that I then started posting again six days later, on 21 November 2012, presenting a letter I had received from Preston Hughes, one that he wrote the day before he was executed for a crime he did not commit.  I have some news on that letter to share, but not quite yet.

Next post was on 28 November 2012. It was the first in a series I entitled "Anatomy of a Murder," in which I argued that Hughes was murdered if his conviction resulted from felonious behavior on the part of Texas state agents, making clear that perjury in a capital case in Texas is a felony, making clear also that I believe felonious perjury did in fact take place.

I see that I did indeed stop blogging in 2013, but not as early as I recalled. I added 30 posts in 2013, the last being dated 14 July and dealing with the possibly unacknowledged victims of Anthony Allen Shore, who has since been executed.

If I had stopped there, I wouldn't be particularly bothered by my lack of detailed memory. I see, however, that I posted 15 times in 2014, posting once about Cameron Todd Willingham and then beginning a series called "Framing the Guilty, Framing the Innocent." That series began on 14 April 2014 and ended a month later after 11 posts. It's this series of posts that I failed to remember.

A lot has happened in the last four years. A whole lot. And so I'm back to talk with you about some of it. I make no promises on how long I might continue my writing on this august blog, and you shouldn't believe any promise that I might make, since I've been fickle in the past. At this point, I'll simply make a rather lame claim that I intend to post again in not too many days, to begin updating you, the august readers of this august blog, who are now scattered to the four winds.

Only that and nothing more.