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.

Wednesday, May 14, 2014

The Extent of Framing the Innocent in Texas

This is the eleventh post in the series Framing the Guilty, Framing the Innocent. For ease of navigation among the posts, use the Table of Contents.

In this post, I will calculate how many innocent people have been framed and executed by the State and People of Texas. It might be interesting. Stay tuned.

I'll begin not in Texas, but Virginia. I'll begin not with a prisoner, but with a serologist. Mary Jane Burton worked for Virginia's Department of Forensic Science from 1973 to 1987. (She died in 1999.) As a serologist, she determined blood type and other identifying information from biological samples. DNA identification was never a part of her job. Even by the end of her career, DNA technology was still in its infancy.

Burton had a habit of taping cotton swab heads and textile clippings to the worksheets in her case notebooks. She used the swabs and clippings while testifying to show the jury the exact piece of evidence she tested. While Virginia routinely destroyed biological evidence from old cases, Mary Burton's swabs and clippings remained tucked away well preserved in her notebooks.

Advancements in DNA technology, coupled with Virginia's routine destruction of its DNA evidence, eventually led to the discovery of Mary Burton's treasure trove of well-preserved, well-documented DNA samples. The first person to be exonerated by Burton's diligence was Marvin Anderson. He had spent 15 years in prison for a rape he did not commit. The next to be freed was Julius Earl Ruffin. He had spent 21 years behind bars for a rape he did not commit. Then came Arthur Lee Whitfield (22 years), Phillip Thurman (20 years), and Willie Davidson (12 years).

After a long and inexcusable delay, the five exonerations led to a thorough review of all the DNA evidence that Burton had so carefully preserved. The results of that review were finally published just recently by the Urban Institute, working under contract to the U.S. Department of Justice. Their thrilling report, Post Conviction DNA Testing and Wrongful Conviction, has not been as widely read as The Hunger Games or Fifty Shades of Grey, so I'll summarize the results for you, right here and now.
A total of 715 convictions were reviewed based on Burton's samples and other case evidence. (293 homicides, 375 sexual assaults, and 47 sexual assault homicides)
For 465 of the convictions, Burton's samples provided no additional insight into actual guilt or innocence. 
For 194 of the convictions, Burton's samples substantiated the guilty verdict. (For my analysis, these are the confirmed guilty.)
In 18 of the convictions, Burton's data provided exculpatory evidence, but the evidence was insufficient to support exoneration. 
In 38 of the convictions. Burton's samples provided exculpatory evidence that supported exoneration. (For my analysis, these are the confirmed innocent.)
Using the Urban Institute results, it is now easy to calculate a rate of wrongful conviction. I'll ignore the cases in which the review provided no additional insight into actual guilt or innocence. I'll also ignore the convictions that suggested innocence but did not firmly establish it. That leaves me with 236 convictions in which the Urban Institute confirmed guilt (194 cases) or discovered innocence (38 cases). The rate of wrongful conviction is 38 cases of wrongful conviction divided by 236 cases of confirmed guilt or innocence. That equals 0.161. That is 16.1%.

Holy Cow!

Even I'm shocked, at least I was when I first performed this calculation. I had previously argued that our rate of wrongful conviction is around 11%. (See for example On the Rate of Wrongful Conviction: Chapter 10.6 and On the Rate of Wrongful Conviction: Chapter 11.1) Most everyone else who attempts to determine the rate of wrongful conviction concludes that the number is somewhere between zero and 3%. A few venture as high as 5%. My 11% number stuck out like a sore thumb, and now I discover that I may have been too kind to our justice system.

Holy Cow!

I hereby admit that I started with the Virginia DNA database because I wanted to soften you up. To further prepare you for the number of innocent people framed and executed by Texas, I'm now going to calculate a rate of wrongful conviction for capital murder for all states other than Texas. Whatever you may think of our capital punishment system, it provides a handy basis for estimating a wrongful conviction rate.

Every capital murder conviction in this country is reviewed over and over again for a decade, or two, or three. Prosecutors and appellate attorneys and innocence projects and lay citizens attempt to persuade appellate judges and the public that the convicted party is truly guilty or actually innocent. Eventually, some of the convictions are irrevocably resolved by either an execution or an exoneration. It is the irrevocably resolved cases that provide a solid basis for estimating a rate of wrongful conviction.

Here are the inputs for my calculation:
According to the Death Penalty Information Center, there have been 1001 executions in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty. 
According to the Death Penalty Information Center, there have been 125 exonerations of death row prisoners in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty.
I'll be quick. As a country, excluding Texas, we have reviewed 1126 death sentences carefully enough to make an irrevocable decision about actual guilt or innocence. In 1001 of those cases, we confirmed the jury verdict and we executed the prisoner. In 125 of those cases, we determined that the jury got it wrong and we exonerated the prisoner. The rate of wrongful conviction is therefore equal to 125 cases of wrongful conviction divided by 1126 convictions irrevocably resolved. That equals 0.111. That equals 11.1%.

That's bad. That's really, really bad. It is substantially lower than the 16% rate calculated from the Urban Institute report, but it is still really bad. I believe I know why it is lower. The data from the Urban Institute are more heavily populated with cases of sexual assault. My previous work in this area has convinced me that juries wrongfully convict in rape cases substantially more frequently than they do in murder cases. (As an aside, juries wrongfully convict most frequently in child molestation cases, and least frequently in drug cases.) Whatever the reason for the disparity, I'll use the 11.1% number as I continue to calculate how many innocent Texans have been framed and executed.

I'll now calculate the exoneration rate for Texas, again using data from the Death Penalty Information Center. Texas has executed 515 prisoners since 1976. On the other hand, Texas has exonerated only 12 of its death row inmates.

That's right. You did the math correctly in your head. Even though Texas has performed a third of all the executions nationwide, it has exonerated less than 9% of those saved from the needle. By comparison to the rest of the country, Texas is execution happy and exoneration resistant.

Texans and pro-death-penalty advocates may claim that the numbers only prove that Texas is better than the rest of the country at getting it right, that Texas makes fewer errors, that Texas has a lower rate of wrongful conviction. I suspect that's not the case. I'm going to instead assume the following:
1. The jury members in Texas are neither brighter nor dimmer than their fellow jury members across the country. They are just people suddenly asked to make sense out of a complicated, obfuscated, tragic mess. (I'm fairly confident that this assumption is reasonable.) 
2. The police, prosecutors, medical examiners, and forensic specialists in Texas are no better or worse at framing defendants. They are no better or worse with respect to fabricating inculpatory evidence or withholding exculpatory evidence. (I'm less confident with this assumption.) 
3. The Texas Court of Criminal Appeals is the agency primarily responsible for the low rate of exonerations in Texas. They allow cases to stand even when based on a confession extracted by a viable threat of torture. They forgive police for planting evidence and fabricating dying declarations, prosecutors for withholding evidence, medical examiners for prosecution friendly times-of-death, and serologists for cheap magic tricks in lieu of science. (I'm really confident of this assumption.)
Using those three assumptions and the 11.1% wrongful conviction rate for the rest of the country, I can now calculate how many Texas death row inmates should have been exonerated rather than executed. Out of 527 death penalty cases irrevocably resolved in Texas, 11.1% of them,  58 of them, should have been exonerations. Only 12 of them were exonerated. 46 of them were instead executed when they should have been exonerated.

To be clear, to be absolutely clear, I am indeed suggesting that Texas may have executed 46 innocent people. I can't identify all of them by name, but I can identify many of them. A few of the people likely innocent but certainly executed by the State and People of Texas are:
Preston Hughes
Cameron Todd Willingham 
Frances Elaine Newton
Johnny Frank Garrett

Lamont Reese
David Wayne Spence
Kia Levoy Johnson
Robert Nelson Drew
Carlos DeLuna
Richard Wayne Jones
Ruben Cantu
Davis Losada
Jesse Romero
David Wayne Stoker
Now for the final part of my post: the determination of how many of the innocent people executed by Texas were framed. I'll concede that I cannot make that determination without identifying and researching each case of wrongful execution in Texas. I will, however, make this observation. No one is ever accidentally, unintentionally, inadvertently convicted of a capital murder he did not commit. There is always someone working for the State to help things along.