Actual Innocence Scorecard: What Good Is It?

Previously, I introduced the concept of an Actual Innocence Scorecard and discussed the meaning of an Actual Innocence Score. In this post, I'll give an example of the value of such scoring.

Northwestern University has a web page listing 39 individuals executed though possibly innocent. You can't help but run across that page multiple times if you are researching the subject of wrongful executions. I'll give you the money quote from that page, and I'll include that portion of the list consisting only of those Texas may have wrongfully executed.

[A]t least 39 executions have been carried out in the United States in face of compelling evidence of innocence or serious doubt about guilt. While innocence has not been proven in any specific case, there is no reasonable doubt that some of the executed prisoners were innocent.

Odell Barnes, Jr. (Texas)
James Beathard (Texas)
Charles Anthony Boyd (Texas)
David Castillo (Texas)
Clyde Coleman (Texas)
Carlos DeLuna (Texas)
Robert Nelson Drew (Texas)
James Otto Earhart (Texas)
Tony Farris (Texas)
Gary Graham (aka Shaka Sankofa) (Texas)
Lionel Torres Herrera (Texas)
Jerry Lee Hogue (Texas)
Jesse Jacobs (Texas)
Carl Johnson (Texas)
Richard Wayne Jones (Texas)
Davis Losada (Texas)
Robert Madden (Texas)
Justin Lee May (Texas)
Frank Basil McFarland (Texas) 
Charles Rector (Texas)
Kenneth Ray Ransom (Texas)
David Spence (Texas)
David Stoker (Texas)
Martin Vega (Texas)

You might recognize some of the names. Carlos DeLuna is among those commonly cited as wrongfully convicted. You met Robert Nelson Drew in an earlier post here at The Skeptical Juror. It seems, however, that the Northwestern web page was put up prior to February 17, 2004. That was the date  on which Cameron Todd Willingham was executed. They surely would have included him. Everyone does.

The Northwestern list is intended to shock the reader based on nothing more than its length. In that respect, the list is little different than my post in which I calculated that Texas has executed 54 innocent people. High on shock value, short on detail. In my search for the 54, I have been attempting to add the detail. The Actual Innocence Scorecard is a tool I am using in that effort.

Consider two names on the Northwestern list: Lionel Torres Herrera and David Spence. I know them in my database as Leonel Torres Herrera and David Wayne Spence. Herrera is listed higher up than Spence because his last name begins with "H" instead of "S."  The list provides no more relative information than that.

Both Herrera and Spence used their final words to proclaim their innocence. Herrera said "I am innocent, innocent, innocent. Make no mistake about this." Spence said "I want you to understand I speak the truth when I say I didn’t kill your kids. Honestly I have not killed anyone." 

Let's consider the scorecards for each of the two individuals. I'll present Spence first, since he has for so long been near the bottom of the list.

There seems to be good reason to include Spence's name in the list.  I scored him at 90, which is the highest score I have published so far. For what it's worth, it's the highest score I have calculated so far, published or not, for someone already executed.

Spence was found guilty (in separate trials) of stabbing to death two teenage girls. No physical evidence pointed to him. In fact, the physical evidence pointed away from him. No eyewitness identified Spence as the killer, or even placed him in the area. Multiple witnesses, however, identified an alternate culprit.

How then, might you ask, were two different juries convinced of his guilt beyond a reasonable doubt? That's easy. Phantom bite marks (noticed on a photo by a prosecutor but not on the body by the medical examiner) and seven (count 'em, seven) jail house snitches. You can review the scorecard for more details if you are interested. That's one of the values of the scorecard.

I'm confident David Wayne Spence is one of the 54 I have been looking for. David Wayne Spence was executed by Texas though factually innocent of the crime.

Leonel Herrera was found guilty in the shooting deaths of two law enforcement officers. Physical evidence against him included the getaway car (he had the keys), plus blood on his person, clothes, and wallet. His Social Security Card was also found at the scene of the first shooting. Two police officers, one the dying victim, identified Herrera as the shooter.

The eyewitness identifications were weak and the blood evidence was based on blood types, DNA technology not being then available. Post-conviction, his attorney, relatives, and friends filed affidavits claming that Leonel's brother Raul, then dead, had admitted to them that he (Raul) had killed the officers. This case made it to the U.S. Supreme Court. It is famous as Herrera v. Collins. It is the case in which the Supreme Court ruled that actual innocence was not a valid legal basis for an appeal to the high court.

I scored Herrera at 11. I think he killed the officers. I suspect, but can't prove that he actually shot them. I'm confident that he was intimately involved in the murders, and that makes him eligible for death row based on Texas' Law of Parties.

What you don't see on the Northwestern list, what you don't see even in the U.S. Supreme Court ruling, is the text of a handwritten note found in Leonel Herrera's pocket. If you research the case, you'll most likely find story after story about the post-conviction affidavits, and the callous ruling by the Supremes. If you keep looking, however, you may stumble across an occasional reference to a note in which Herrera virtually admits to the killing. If you keep digging further, you may finally discover this article, in which the contents of the note are finally revealed. 

I'll save you the trouble. Here's the excerpt of the note as I added it to Herrera's space-limited scorecard. Keep in mind as you read it that Leonel and Raul Herrera were drug dealers and that the word on the street was that Rucker, the first officer shoot, was somehow involved in their business.

I am terribly sorry for those I have brought grief to their lives. ... Sometimes the law gets too involved with other things that profit them. ... What happened to Rucker was for a certain reason. I knew him as Mike Tatum. He was in my business, and he violated some of its laws and suffered the penalty, like the one you have for me when the time comes. ... The other officer that became part of our lives ... that night had not to do in this. ... [Signed Leonel Herrera] ... I have tapes and pictures to prove what I have said. ... I will present myself if this is read word for word over the media, I will turn myself in.

Now, when I publish a list of people possibly innocent but actually executed, Spence and Herrera will be in a different order, and they will have a number by their name. It will look something like this:

David Wayne Spence, 90

Robert Nelson Drew, 84

Leonel Torres Herrera, 11

Melvin Wayne White, 0

Each will have a link to the appropriate scorecard.

And that, I claim, is better.

tsj

7 Apr 2010