Saturday, July 31, 2010

The Slam Dunk Case of Charles Anthony Boyd

In my search for the 54 innocent people I calculated Texas may have executed, I passed Charles Anthony Boyd through my coarse filter for two reasons. First, he used his final breaths to declare his innocence. I quote from the August 6, 1999 edition of the Laredo Morning Times:
Boyd initially declined to make a final statement. But, as the drugs began flowing into his arms, he said, “I want you all to know I did not do this crime. I asked for a 30-day stay for a DNA test so you know who did the crime.” Then he gasped and slipped into unconsciousness.
Second, the folks at Northwestern had listed him a someone possibly innocent but certainly executed. I trust the folks at Northwestern so I allowed Boyd through my coarse filter. I include the Northwestern list below, limiting it only to those people executed by Texas, adding my Actual Innocence Score for those cases I have already reviewed.
Odell Barnes, Jr., 69
James Beathard
Charles Anthony Boyd
David Castillo
Clyde Coleman
Robert Nelson Drew, 84
James Otto Earhart
Tony Farris
Gary Graham (aka Shaka Sankofa), 58
Jerry Lee Hogue
Jesse Jacobs
Carl Johnson
Richard Wayne Jones
Davis Losada
Robert Madden
Justin Lee May
Frank Basil McFarland
Charles Rector
Kenneth Ray Ransom
David Stoker
Martin Vega
Charles Anthony Boyd was executed on August 5, 1999 for one of the so called North Dallas “bathroom slayings.” Again from the Laredo Morning Times story.
Boyd was condemned for strangling and drowning 21-year-old Mary Milligan at her apartment [on] April 13, 1987. A recent Texas Tech University graduate, she had moved to Dallas to take a job as a bank management trainee. Boyd was arrested the day after Ms. Milligan’s murder when jewelry and other items taken from her apartment were pawned. The former bank janitor lived across the hall from her.

He also became a suspect after detectives learned of his past. Boyd had previous convictions for burglary and sexual assault and had been released from prison in November 1985 after serving less than half of a five-year sentence. …

In July, Tippawan Nakusan, 37, who lived upstairs from Boyd and worked as a waitress, was found stabbed and suffocated in her bathtub. That September, Lashun Chappell Thomas, 22, a nursing home aide, was found fatally stabbed and in a bathtub in the apartment complex. Then Ms. Milligan was killed in similar fashion at an apartment complex where Boyd lived. …

After his arrest, Boyd confessed and was charged with all three slayings but tried only for Ms. Milligan’s killing. Besides tying him to items taken from the apartment and his confession, prosecutors also had forensic evidence from Ms. Milligan’s apartment to link him to her death.
And that’s about it. I found very few stories about Charles Anthony Boyd. Nothing to tell me that his initial confession was coerced, that the forensics (whatever they were) were bogus, that his conviction was based on the purchased testimony of a snitch, that the real culprit had later confessed. Instead I found out that his appeals were based on a claim that he was mentally retarded and should therefore not be executed. From the ruling by the 5th Circuit Court of Appeals:
Defendant Charles Anthony Boyd was convicted of capital murder and sentenced to death. He requests a Certificate of Probable Cause ("CPC") to appeal the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2254. He contends that the district court erred because (1) counsel was ineffective for failing to present mitigating evidence of his retardation to the jury at sentencing; (2) the jury was prevented impermissibly from giving mitigating effect to evidence of his retardation and his positive character traits; (3) the failure to instruct the jury on the parole implications of a life sentence in a capital case rendered the Texas sentencing scheme unconstitutional; and (4) the admission of extraneous offenses at the sentencing phase violated due process and the Eighth Amendment. We deny Boyd's request for a CPC.
I found no other appeals in Google Scholar, nothing indicating that Boyd didn’t actually kill Milligan. I did find a plea from Amnesty International to not execute Boyd, because he was mentally retarded.
Charles Boyd, black, is scheduled for execution in Texas on 5 August 1999 despite evidence that he is mentally retarded. He was sentenced to death in November 1987 for the capital murder of Mary Milligan, white.

At Boyd’s trial his defence lawyers failed to investigate and present evidence of his mental retardation because they did not recognize that he might have such a problem. Although a prison report was available which stated that in 1983 Boyd’s IQ had been measured at 67 (an IQ under 70 is considered to signify retardation), both lawyers have since stated that they do not remember seeing this or other evidence that Boyd was suffering from retardation. As a result, they did not have Charles Boyd examined by any mental health professional. The appeal courts have ruled that this did not amount to ineffective defence representation.

In 1995 a federal court ordered a hearing into this claim of inadequate counsel. At the hearing, a magistrate heard evidence of Boyd’s mental retardation, including expert testimony from a psychologist and a neuropsychologist who had conducted evaluations of Boyd, and interviews with his family members, in 1992. At the hearing the court heard that Charles Boyd had displayed signs of having learning difficulties from early childhood. His mother did not enroll him in Special Education Classes as advised because she was “embarrassed” to do so. Charles’s nickname was “head” because he would regularly beat his head against walls and on the ground to receive attention. Charles was allegedly subjected to regular beatings by his stepfather and brother, often because the young boy was “slow” to respond to requests. It was only at the age of seven that it was discovered that he was deaf in one ear. Charles also suffered from seizures throughout childhood. [Emphasis mine.]
Without a claim of actual innocence, Charles “Head” Boyd didn’t stand a chance. In 1989, the US Supreme Court ruled that it was not unconstitutional to execute a mentally retarded person. Though 12 states had by then forbidden the execution of a mentally retarded person, Texas was not one of them. Indeed, Texas had rejected a law banning such executions just three months prior to Boyd’s execution.

Without a claim of actual innocence, I won’t even prepare an Actual Innocence scorecard for “Head.” Instead, I will arbitrarily score him at 0.01. I refuse to give him a zero given that he spent his last gasp claiming he was innocent. It seems to me as if there is more to this story, and I simply can’t find it from an easy chair in my living room. It disappoints me in several regards.

Friday, July 30, 2010

On The Rate of Wrongful Conviction: Chapter 2.3

As I have mentioned seven times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number

Now, for the first time, we break the 2% barrier. The numbers will begin to climb rapidly after this post.


Chapter 2.3
The Gross Number

In December 2008, Samuel Gross wrote:
Since 1973, 128 U.S. criminal defendants who were sentenced to death have been exonerated. This is a startlingly high number … Most likely, this extraordinary number of capital exonerations is caused in part by a higher underlying error rate among capital convictions and in part by a higher rate of detection of those errors after conviction. It is well known that more resources are devoted to capital defense than to other cases, before and after conviction, but it is hard to believe that better review alone explains the capital exoneration rate. If that were the whole story, it would mean, for example, that if we had reviewed prison sentences with the same level of care that we devoted to death sentences, there would have been approximately 87,000 non-deathrow exonerations from 1989 through 2003 rather than the 266 that were reported in a comprehensive study in 2005.
Gross realized he could compare capital murder exonerations to capital murder convictions to determine a wrongful conviction rate, at least for capital murder. All he had to do was divide the number of exonerations by a properly related number of convictions and, voila, a wrongful conviction rate. He wasn’t going to simply guess, or have others guess for him. He was going to find a good numerator and a good denominator and he was going to divide.

Gross knew, however, he had to be careful in his selection of both the numerator and the denominator. He was careful to include in his numerator only those people who were likely to be factually innocent. He intentionally excluded those who might have been removed from death row for technical reasons, those who were merely re-sentenced, and those who were re-tried and found guilty once again.
As we use the term, “exoneration” is an official act -- a pardon, a dismissal, or an acquittal -- declaring a defendant not guilty of a crime for which he or she had previously been convicted … Very likely, however, some defendants we count as “exonerated” did in fact participate in the crimes for which they were convicted. In our estimation, the probability of innocence is high for all of these exonerated defendants -- for many, innocence is beyond dispute -- and the number of misclassifications low enough to make these exonerations a useful proxy for innocence. … And, of course, the set of exonerated defendants does not include innocent defendants who were executed, nor those who remain on death row, nor the undetected innocent defendants among the thousands of defendants who have been removed from death row but remain in prison.
He was also careful when he selected his denominator. He realized he couldn’t simply divide all exonerations by all convictions because exonerations don’t happen overnight.
[W]e know that 7,534 people were sentenced to death from 1973 through 2004. In the same period, 111 defendants were exonerated after being sentenced to death for murder under a post-Furman capital sentencing statutes, or 1.5 percent of all death sentences.

That figure -- 1.5 percent -- is not the final word on exonerations for the cohort of defendants who have been sentenced to death since 1973, let alone a reasonable estimate of the rate of false capital convictions. As time passes, some defendants in this group who have not yet been exonerated will be.
To account for the lag between conviction and exoneration, Gross realized that most exonerations (95%) occurred within 20 years of conviction. He would therefore make sure his denominator accounted for that 20 year lag. He would divide all the exonerations from 1973 through 2004 (54) by all the convictions from 1973 through 1984 (2,394) to arrive at a wrongful conviction rate of 2.3 percent.
Of the post-Furman death row inmates who were exonerated between 1973 and 2004, 95 percent had been freed within 20 years of their conviction (106/111). Overall, 2,394 death sentences were pronounced in U.S. courts from 1973 through 1984. By 2004, the process of identifying exonerations for these 20 to 30-year-old death sentences was largely complete. It resulted in 54 exonerations -- almost exactly half of all capital defendants who were exonerated through 2004 -- or an exoneration rate of 2.3 percent (54/ 2,394).
He checked his number by assuming a 15-year lag instead of a 20-year lag.  He ended up with the same number: 2.3 percent.
Eighty-one percent of capital exonerations occurred within 15 years of sentencing (90/111). By the end of 2004 there had been 86 exonerations among the 3,792 capital defendants who had been sentenced to death through 1989, at least 15 years earlier, also an exoneration rate of 2.3 percent Two additional defendants who were sentenced to death before 1990 were exonerated in 2005, but judging from the pattern of previous cases, we have probably seen almost all the capital exonerations that we will see for defendants sentenced to death through 1989.
He naturally concluded that he had arrived at a good estimate of the wrongful conviction rate, at least for capital murder trials in the United States.
In other words, a good estimate of the long-term … capital exonerations rate in the United States is 2.3 percent.
Solid as his math seems to be, I disagree with Samuel Gross on this number. I will await Chapter 11.3 to make my case.


Notes:
1. When I write of Samuel Gross, I write actually of Samuel R. Gross and Barbara O’Brien. Together they wrote “Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases”, Journal of Empirical Legal Studies Volume 5, Issue 4, 927-962, December 2008

2. At the time their article was published, Samuel Gross and Barbara O’Brien were Assistant Professors of Law at Michigan State University College of Law.

3. Gross and O’Brien recognize that the wrongful conviction rate for capital murder cases is not necessarily equal to the rate for all cases. They are careful to limit their conclusion to capital murder cases. “All things considered, we believe that 2.3 percent -- the long-term rate of exoneration of death row inmates -- is a conservative estimate of the rate of wrongful death sentences.”

Wednesday, July 28, 2010

On The Rate of Wrongful Convcition: Chapter 1.9

As I have mentioned six times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number

I am now back on track posting the draft chapters in monotonically increasing order. It's another survey number, the last for a bit. It does have some interesting new information at the bottom, regarding feeback on what an acceptable level might be


Chapter 1.9
The Judge Number

The Ramsey Ohio survey study introduced in Chapter 0.8 was so comprehensive that it allows me to determine four separate wrongful conviction estimates: one each for prosecutors, police, judges, and defense attorneys. The prosecutors were the most conservative in their estimate, guessing that the wrongful conviction rate for the country is 0.8%.  The police were the next more conservative group, guessing that the wrongful conviction rate for the country is 1.3%.

The third most conservative group within the Ramsey survey was the judges’ group. Regarding the survey question at hand, Ramsey received responses from 153 judges. Their responses are categorized below.


I will define the Judge Number for the wrongful conviction rate in the same manner I defined the Prosecutor Number: I’ll determine the median judge guess at the wrongful conviction rate using a plot. That plot is presented below. Based on the plot, I claim the single best number to represent the wrongful conviction rate estimated by the Ohio judges responding to the Ramsey survey is 1.9%.


Consider the significance of the Judge Number. If it is applicable to all 2.5 million people we have incorporated, it suggests that even the judges believe we have 47,500 people wrongfully incarcerated in this country today.

<<>>

As mentioned in the earlier chapter dealing with the Ramsey survey, I noted that Ramsey was clever enough to ask for separate guesses of the wrongful conviction rate: one for the country as a whole and one for the respondent’s jurisdiction. It’s interesting to compare the two.

For the judges, the national median guess was 1.9%, as just reported. For that same group of judges, the median guess for their jurisdiction was 0.56%. On average, the judges believed the wrongful conviction rate in their jurisdiction was somewhat more than one-half that of the national average. This makes the judges slightly less delusional than the police or the prosecutors.

For comparison, the numbers for police are 1.3% and 0.2%; that’s a factor of one-sixth. The numbers for prosecutors are 0.8% and 0.2%; that’s a factor of one-fourth.

<<>>

Ramsey was also clever enough to ask his respondents their opinion of an acceptable wrongful conviction rate. Slightly more than half the judges and police felt the acceptable rate was zero. Slightly fewer than half the prosecutors felt the acceptable rate was zero.

Good for all of them. While no one is arguing a zero rate is achievable, it’s good that half of all police, prosecutors, and judges feel a wrongful conviction is an unacceptable circumstance. Perhaps they would be willing to help free some of the 20 to 50 thousand people they estimate are now wrongfully imprisoned.

At the other extreme, one prosecutor and four judges thought 5% would be an acceptable wrongful conviction rate.

Three police respondents also thought 5% was an acceptably-low wrongful conviction rate. Four police respondents thought 10% would be acceptable. Two of them thought 15% would be okay. Astoundingly, one police respondent thought that a wrongful conviction rate of 20% was not too high.

Monday, July 26, 2010

On The Rate of Wrongful Conviction: Chapter 1.3

As I have mentioned five times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.4: The Poveda Number

I work slightly backwards once again here, filling in with the Police Number at 1.3 percent. It's a short post.


Chapter 1.3
The Police Number

The Ramsey Ohio survey study introduced in Chapter 0.8 was so comprehensive that it allows me to determine four separate wrongful conviction estimates: one each for prosecutors, police, judges, and defense attorneys. The prosecutors were the most conservative in their estimate, guessing that the wrongful conviction rate for the country is 0.8%.  That number represents the median value from the survey, the value that split the prosecutors into two evenly-divided groups: one that guessed higher and one that guessed lower.

The second most conservative group within the Ramsey survey was the police. Regarding the survey question at hand, Ramsey received responses from 267 chiefs of police and county sheriffs. Recall that Huff had only 353 respondents from all four groups.

The police responses from the Ramsey survey are categorized below.

I will define the Police Number for the wrongful conviction rate in the same manner I defined the Prosecutor Number: I’ll determine the median police guess at the wrongful conviction rate using a plot. That plot is presented below. Based on that chart, I claim the single best number to represent the wrongful conviction rate estimated by the Ohio police responding to the Ramsey survey is 1.3%.


Consider the significance of the Police Number. If it is applicable to all people convicted, not just those who go to trial, it suggests that even the police believe we have 32,500 people wrongfully incarcerated in this country today.

<<>>

As mentioned in the earlier chapter dealing with the Ramsey survey, I noted that Ramsey was clever enough to ask for separate guesses of the wrongful conviction rate: one for the country as a whole and one for the respondent’s jurisdiction. It’s interesting to compare the two.

For the police, the national median guess was 1.3%, as just reported. For that same group of police, the median guess for their jurisdiction was 0.2%. On average, the police believed the wrongful conviction rate in their jurisdiction was less than one-sixth that of the national average. This bias is one of the reasons the Huff number is so low. Huff failed to clearly discriminate between guesses for the nation as a whole and the respondent's jurisdiction.

The number for prosecutors, by comparison, are 0.8% and 0.2%.

Friday, July 23, 2010

The Trial of Cory Maye Now Available on Kindle

I'm proud of this book. Beyond that that obvious sentiment, I'll merely repeat the back cover text of The Skeptical Juror and The Trial of Cory Maye.

<<>>

Police officer Ron Jones had worked hard to solve both the drug and race problems of Prentiss, Mississippi. He had earned the respect of those he served and protected, regardless of skin color. Among the black residents of the town he was known as one of the good ones, perhaps the only good one.

Now, in the waning hours of the first day after Christmas 2001, Ron is prepared to lead his motley team of officers into a darkened duplex to serve yet another search warrant for drugs. As the rear door is breached, Ron is the first to enter. He begins to announce “Police officer, search warrant!” but is cut short by gunfire.

“I’m hit,” he says, making his way back down the steps.

The bullet has punctured his aorta. He will bleed to death within minutes.

He falls to his knees.

“Get me to the hospital, I’ve been hit.”

He collapses to the ground.

“Good Lord, help.”

<<>>

Another drug raid gone wrong. Another police officer killed. Another citizen facing the death penalty.

Join the fictional jury as they hear testimony, deliberate, and struggle to fulfill their oath to render a true verdict in a case involving two good men. Ron Jones upheld the law. Cory Maye defended his child and his home. Their paths intersect again, this time in a jury room where Maye is on trial for his life.

Form your own opinion. Become a Skeptical Juror in The Trial of Cory Maye.

On The Rate of Wrongful Conviction: Chapter 0.8

This is a bit embarrassing. I must break the monotonically increasing sequence of my posts regarding wrongful conviction rates. I have so far posted Chapter 0.027, Chapter 0.5, Chapter 1.0, and Chapter 1.4. I realized recently that I have carelessly lost track of a substantial survey conducted by Robert Ramsey. That survey allowed me to determine wrongful conviction rates based on the estimates of prosecutors, police, judges, and defense attorneys; four separate rates, four separate chapters, two of which will be numbered lower than the Poveda Number.

Nothing to do now but face up to it. On the upside, for the first time I present both a graph and a table in one of my posts. The excitement is almost too much to bear.


Chapter 0.8
The Prosecutor Number

What is it with those folks in Ohio who are interested in wrongful convictions. They don’t count exonerations or wrongful convictions. They don’t count total convictions, or have someone else do so for them. They don’t divide to determine wrongful conviction rates. They don’t make their own guess as to what the rate might be. Those people in Ohio prefer to ask other people in Ohio to guess for them.

Ronald Huff led the way with this approach in 1986, as discussed in Chapter 0.5. Robert Ramsey followed Huff’s footsteps in 2003. While attending the University of Cincinnati, he wrote a PhD dissertation entitled False Positives in the Criminal Justice Process -- An Analysis of Factors Associated with the Wrongful Conviction of the Innocent. I suggest he could have shortened the title by eliminating the last three words.

Ramsey later joined forces with James Frank to publish the results of his work in a 2007 issue of Crime Delinquency. He removed “of the Innocent” from the title, but included additional words to make up for the loss: “Wrongful Conviction: Perceptions of Criminal Justice Professionals Regarding the Frequency of Wrongful Conviction and the Extent of System Errors.”

Ramsey’s work was Huff’s work done large. Instead of asking 353 people to guess for him, Ramsey asked 1,500. Instead of receiving 229 responses, Ramsey received 798. Instead of having the guessers guess just once, he had them guess twice: once for their own jurisdiction, always in Ohio, and once for the U.S. as a whole. Instead of forcing the guessers to select from one of just four categories of wrongful conviction rates, Ramsey allowed them to select from any of the following 10 categories.

0%
Less than 0.5%
5% to 1%
1% to 3%
4% to 5%
6% to 10%
11% to 15%
16% to 20%
21% to 25%
More than 25%

Ramsey also had an advantage in that DNA exonerations had become part of the public consciousness by the time of his survey. That would tend to increase the rates estimated by the Ohio law enforcement professionals.

Ramsey had sufficient responses to aggregate them into four groups: police, prosecutors, defense attorneys, and judges. Each group had a different estimate of the wrongful conviction rate, and each group will be discussed in a separate chapter. Not surprisingly, the prosecutors were the most conservative. They will therefore be discussed in this first of four chapters based on Ramsey’s survey.

<<>>

Ramsey received relevant responses from 96 prosecutors. Those responses are categorized below:


Ramsey did not use his survey results to identify a single wrongful conviction rate. I will do that for him.

I will define the Prosecutor Number to be the median wrongful conviction rate estimated by the prosecutors in Ramsey’s survey. The median rate divides the prosecutor survey into two evenly-divided groups, those estimating rates higher than the median and those estimating rates lower than the median.  It is, I believe, the single number that best represents the prosecutors’ responses.

An easy way to determine the median is by graphing the data. I plotted the upper limit of the wrongful conviction rate category along the horizontal axis. I plotted the running percentage total of prosecutor responses along the vertical axis. I then examined the graph to determine the wrongful conviction percentage that split the prosecutors into evenly-divided “higher than” and “lower than” groups. Based on the resulting chart, presented below, I claim the single best number to represent the wrongful conviction rate estimated by the Ohio prosecutors responding to the Ramsey survey is 0.8%.


This 0.8% number is 60% higher than the Huff number of 0.5%, even though the Huff number included police, judges, and defense attorneys, all of whom tend to be less conservative in their estimates than the prosecutors. Had Huff isolated just the prosecutor number from his survey, I suspect it would have been around 0.25%.  I attribute the less conservative estimate of the Ramsey survey to two phenomenon. First, as mentioned previously, the Ramsey survey took place in a DNA exoneration world. Second, Ramsey was clever enough to ask for two responses: one for the respondent’s jurisdiction, and one for the U.S. as a whole. I believe that caused the respondents to be less defensive when estimating for the U.S. as a whole. 

To be clear, I used the estimate rates for the U.S. in the work above.

Consider finally the significance of the Prosecutor Number, conservative as it may be. If it is applicable to all people convicted, not just those who go to trial, it suggests that even prosecutors believe we have 20,000 people wrongfully incarcerated in this country today.

Notes:
1. As of the publication of his article, Robert J. Ramsey was the Director of the Criminal Justice Program at Indiana University East. He was by that time Dr. Robert J. Ramsey. His dissertation apparently did the trick.

2. As of the publication of his article, James Frank had been the principal investigator for a number of policing-related research projects focusing on the understanding of police behavior at the street level. He received a JD from Ohio Northern University in 1977 and a PhD from the School of Criminal Justice at Michigan State University.

The Truly Shocking Case of Davis Losada

I’ve worked on this case off and on all through this week. I’ve spent fifteen hours or more researching, evaluating, scoring, and writing of it. It has taken more time than I can justify, given that it is just one case out of sixty or so that I must detail, and given all that I ignored to complete it. Davis Losada is dead, the case was confusing, and I believed him to be guilty.

Throughout my early research, I suspected Losada would end up with a low score. I found the case just one more distressing example of the evil that one human can do to another. I had to force myself to work on it. I decided I would use it as another example to prove I would be harsh in my scoring when the evidence so demanded, such as I was with Lionel Herrera and, to a lesser extent, Ruben Cantu.

A couple of nights ago, as I laid awake thinking of the case, some of the star witness testimony suddenly struck me as particularly odd. The case suddenly changed to one in which I thought the person was probably guilty, but one in which I would have had to vote Not Guilty because of suspicions I had about the State’s case. I decided then I would write of the difficulty of being a juror faced with such a decision.

This morning, as I was trying to pull everything together and prepare a scorecard, I searched the web one last time to see if I could find that one article, that one clip, that one paragraph that would cause the story to make sense. To my amazement, I found it. If you persist to the end of this post, you will see that I score Davis Losada as likely innocent, but certainly dead.

<<>>

San Benito is near the southern tip of Texas, just about as far south you can get in the U.S. unless you go to Hawaii or Key West. There in the brush, on the outskirts of the small city, on the day before Christmas in 1984, they found the naked and battered body of 15-year-old Olga Lydia Perales. She had been bludgeoned 10 to 20 times about the head and shoulders. She had been stabbed twice in the chest, postmortem.

Rafael Leyva was sixteen years old at the time. Two weeks later, on January 8, Leyva told his probation officer that he knew who killed Olga Lydia Perales. He had been there. He had done nothing wrong himself, but the other three had raped and murdered Perales. By the time of Losada’s trial, he would admit he was involved.

According to his testimony, on the night of the murder, he had been riding around with three others: Davis Losada, Jesse Romero, and Jose Cardenas. They heard about a party going on over at the home of Ray Amaya. By the time they arrived, everyone was gone except Amaya and Perales. Amaya told them that Perales was in the shed and that they had been having sex. The four in the car offered to give her a ride home. Amaya called her from the shed. She spoke to Amaya and then got in Cardenas’ car.

Leyva was sitting in the back seat along with Losada. Cardenas was driving. Romero was sitting in the middle of the front seat. Perales was sitting the front seat, next to the passenger-side window. Before they could drive away, Romero pushed Perales head down between her knees. He held a knife to her neck and told her not to make any noise.

Cardenas drove out into the country and stopped the car. Levya, Cardenas, and Romero got out of the car. Losada remained in the back seat and ordered Perales to climb in the back seat. Her clothing was removed and, although she pleaded with them to let her go, she was raped repeatedly. Initially she was raped by Losada. Then she was forced to commit oral sodomy on him while Romero and then Leyva had anal intercourse with her. Although Cardenas did not have intercourse with her, he did insert an object into her while she was performing oral sodomy on Losada. When everyone else was finished, Losada raped her two more times, once in the back seat of the car, once on the top of the trunk lid.

After raping her, they decided they had to do something to keep her from going to the police. Cardenas pulled a pipe out of the car and handed it to Levya. Everyone told him to hit her. He didn’t want to so he asked her to promise she wouldn’t tell anyone. She said she wouldn’t. He tried to convince the other three she wouldn’t tell, but they insisted he hit her. Suddenly, his mind went blank; he took the pipe and hit her on the right side of the head. Romero then grabbed the pipe and began striking her. When blood began squirting out of her head, Leyva turned away.  He could still hear the others beating her with the pipe.

After the beating stopped, Losada stabbed her once in the chest. Levya and Romero dragged her body into the brush and Levya stabbed her one more time in the chest. They got back in Cardenas' car and left. During the trip back to San Benito, they threw the knives out of the car window and stopped on a bridge and threw the victim's clothing into a creek.

On cross-examination, Losada’s attorney, Jose Luis Peña, asked only three questions of the State’s star witness.

Q: Mr. Leyva, I was reading your statement here and it says here that at the time of the rape you stated that you did not know who the girl was at that time; is that correct?

A: Sir, I didn’t hear you.

Q: Mr. Leyva, I was reading one of the paragraphs in your confession, your statement, and it says here somebody was raping the girl and that you, at this time, you didn’t know who the girl was; is that correct?

A: Yes, Sir.

Q: You didn’t know who she was?

A: No, Sir.

Though Losada didn’t testify, the defense tried to make a case that Losada was indeed at the scene, but had only consensual sex with the victim, and did not harm her in anyway.

Davis Losada didn’t stand a chance. He was convicted and sentenced to death exclusively on the testimony of Rafael Leyva. Then Jose Cardenas was tried, convicted, and sentenced to life in prison based exclusively on the testimony of Rafael Leyva. Then Jesse Romero was tried, convicted, and sentenced to death based exclusively on the testimony of Rafael Leyva. Leyva was sentenced to twenty years, and is a free man today.

<<>>

I passed Davis Losada through my coarse filter based solely on a Northwestern University Center on Wrongful Conviction list of possibly innocent people who were executed. Northwestern didn’t explain why they felt Losada might be innocent, but since they are among the most trustworthy institutions in the wrongful conviction movement I decided to investigate his case.

I couldn’t, however, find anybody who was arguing that Davis Losada was wrongfully executed. That is unique so far in my search for the 54 innocent people I calculated Texas must have executed. Usually, the internet is awash with claims of actual innocence for those who had passed through my coarse filter. The typical problem has been to find a reasoned article or paper on why the person was in fact guilty. Usually for that I rely on Google Scholar to find appellate decisions. The appellate courts, when justifying their refusal to grant a new trail, frequently provide the best case summaries for the State’s case.

For this case, the only substantive resources I could find were the appellate decisions for each of the three people who were convicted based on the testimony of Rafael Leyva. After reviewing those five appellate rulings, there was little reason to believe that Losada wasn’t factually guilty.

I did find one interesting problem that seemed to me to be the basis for Northwestern’s inclusion of Losada on their list of people possibly innocent but certainly executed. It turns out that Jose Luis Peña had been assigned by the State to represent Leyva, and had done so for a short time, before he was re-assigned by the State to represent Losada. Since Peña was bound by attorney-client privilege not to reveal anything he had learned during his one interview with Leyva, the re-assignment created a clear conflict of interest and should have never been permitted.

In an affidavit submitted as part of Losada’s appeal, Peña conceded that he had indeed been inhibited in his questioning of Leyva because he did indeed have insight from his interview with Leyva. He could not ask any questions knowing the answer from his interview with Leyva. Peña was not specific about his insight, since that too would violate the attorney-client privilege. The appellate court was unimpressed, argued the conflict was insignificant given the overwhelming evidence of Losada’s guilt, and declined to grant a new trial.

<<>>

I mulled the case for several days. Leyva’s testimony began to nag at me. It changed over time, always to the benefit of the State that would later decide Leyva’s fate. The first nag was tiny. “Before we drove off, Romero pushed Perales’ head between her knees, held a knife to her throat, and told her to be quiet.”  [Not an exact quote.] That seemed odd. That would cause it to appear as if Romero and Cardenas were choosing to sit uncomfortably close to one another in the front seat. I didn’t think two young macho Latino males would drive around like that. Why not have Perales’ sit between them?

Then it hit me that Ray Amaya, the party giver and the one who had brought Perales to the car, never mentioned anything about Romero forcing Perales’ knees between her head. Why would they do such a thing just before they drove off anyway? Why not wait until they weren’t being observed?

I remembered also a twist that Leyva had added at the last of the three trials, the one for Jesse Romeo. He testified then that as Perales approached the car, Romero “pushed” her in, then forced her to place her head between her knees. If Romero pushed her in, how did he end up sitting between her and the driver? It didn’t make sense. It did however help the State convince the jury that Perales did not consent to any sex with any of the four.

Then one more thing. I thought it odd that Leyva claimed Cardenas did not participate in the rape, but instead inserted an unidentified object into her. I recalled reading in a Cardenas appeal that blood was found on a pair of Romero’s shorts they found in his house. The blood was Type A or Type AB. Cardenas was type A, as was Romero. The other three defendants were Type O, and Cardenas was a Type O secretor. That means his blood type can be determined from his other bodily fluids, such as semen. It occurred to me that they must have found no Type O secretor semen during the autopsy, needed an alternative means of convicting Cardenas of raping the victim, and had Leyva testify about the mysterious object.

These three tidbits of suspicion came from three different trials. Had I been a juror on Losada's trial and had all three tidbits, I would have suspected Leyva was tailoring his testimony to please the state, would have lost trust in his testimony, and would not have voted guilty. I would have still suspected that Losada had been involved in the rape and murder, and I would have been utterly pissed that the State had put me in such a moral dilemma. They would have been asking me to violate my oath to bail them out of a mess they made. I hope I would have had the wisdom and courage to make the correct decision.

<<>>

This morning I found the one news article I was looking for. It was published just before Losada was executed. Peña had apparently become so concerned about seeing Losada die, he signed another affidavit regarding his conflict of interest. In this affidavit, he violated his attorney-client privilege with Leyva and told the appellate court what he had learned in his one interview with Leyva. It was a serious violation of his legal ethics and professional conduct, but Peña apparently decided he could no longer withhold the information.

According to Peña, Leyva told him that Perales was engaging in consensual sex with the others. Because he had been drinking and using drugs, he had been unable to attain an erection. She mocked him, that enraged him, and he killed her, to the shock and amazement of the other three.

The appellate court was still unimpressed and refused to grant a stay and Losada was killed by the State of Texas.

Peña’s affidavit is believable based on his behavior during Losada’s trial, based on his non-questioning of the State’s star witness, and on his argument to the jury that Losada had consensual sex with the defendant and did not harm her. His affidavit is believable as well because he exposed himself to disbarment for violating attorney-client privilege. I believe Peña was telling the truth.

If Leyva was telling the truth to Peña during the interview, and I see no reason he would lie when he claimed he couldn’t perform sexually and that he alone killed the victim, then grave injustice has occurred and is occurring. Leyva is walking free. Losada and Romero are in the ground, and Cardenas is spending his life behind bars.

Finally, I offer my Actual Innocence Scorecard for Davis Losada. I score him at 75, meaning I think it is three times more likely he was innocent than he was guilty.

And I’m truly shocked at how this all turned out.

Tuesday, July 20, 2010

On The Rate of Wrongful Conviction: Chapter 1.4

In my spare time, I'm preparing a compilation of essays on various estimates of our country's wrongful conviction rate.  As I draft them, I'll publish them here. When I'm done with all of them, I'll compile them into a single document and make it available on Scribd for free, and on Amazon for a minimal cost.

The chapters will be numbered according to the predicted wrongful conviction rate, in percent. So far I have posted Chapter 0.027, Chapter 0.5, and Chapter 1.0. Keep in mind that we have a lot of people incarcerated, around 2.5 million. That means a wrongful conviction rate of only 1%, if applicable to all those incarcerated, means we have wrongfully imprisoned 25,000 people. A wrongful conviction rate of 10%, if applied to all those incarcerated, would mean we currently have a quarter million people incarcerated for crimes they did not commit.

I didn't pull the 10% number out of thin air. We'll soon be talking about estimates that exceed 10%. For now, it's time to look at the Poveda number.


Chapter 1.4
The Poveda Number

Tony Poveda is a man who understands the value of long division.

Recall from Chapter 1.0 that Poveda divided Rosenbaum’s compilation of 23 New York murder exonerations by a corresponding compilation of 2,276 murder convictions. Because he was careful to insure that both his numerator (23) and his denominator (2,276) were from consistent and meaningful populations, his quotient (.01010) came to be one of the first empirically-based wrongful conviction rates.

Poveda reported his work in “Estimating Wrongful Convictions,” an article published in the September 2001 issue of Justice Quarterly.  That article actually provided three different estimates of the wrongful conviction rate. One was work with the Rosenbaum number. One will be discussed later when we talk about prisoner surveys. The third estimate I have named after him, and I will discuss it in the remainder of this brief chapter.

The Poveda number is actually quite similar in its construction to the Rosenbaum number. Instead of investigating a range of years, as had Rosenbaum, Poveda focused on a single year, 1995. Instead of focusing on all exonerations in New York, as had Rosenbaum, Poveda started with 24 court-ordered releases of prisoners convicted of murder in New York.

Poveda realized that some of those court-ordered releases were not to be counted as a wrongful convictions. Most of them involved prisoners who were re-tried and found guilty of lesser crimes. The wrongful conviction community does not typically count such cases as a wrongful conviction. Poveda needed to correct his number before he had a good numerator.

Poveda discovered another study, conducted by the New York State Department of Correctional Services, that determined only 21.2% of the court-ordered releases in murder cases were because the prisoner had been acquitted on retrial or had his case dismissed without a retrial. Assuming that percentage was valid for 1995 (though the NYSDS study was based on the years 1980 and 1987), Poveda determined his numerator to be:

24 x .212 = 5

Because he worked with only a single year, his numerator wasn’t all that large. I’ll allow Poveda to conclude the analysis in his own words.
However, the relevant population base for calculating prevalence of wrongful convictions [the denominator] is the number of murder commitments to the Department of Correctional Services. A study conducted by the New York State Defenders Association … found that the median time from conviction to reversal (acquittal/dismissal) in wrongful homicide convictions in New York is approximately three years. … Accordingly, murder inmates released by court-ordered discharge in 1995 were probably committed to the Department of Correctional Services in 1992, when 357 murder commitments were made. … If five of these were wrongful convictions, this translates to an error rate of 1.4 percent in murder convictions/commitments.
And there it is.
5 / 357 = 0.0140 = 1.4%

I have seen Poveda’s number cited frequently. However, it has less statistical significance than the Rosenbaum number of 1.0%, which is described in the very same paper as the Poveda number of 1.4%. I suspect it’s because people are in search of the most dramatic wrongful conviction rate.

As is the case with the Rosenbaum number, the Poveda number is probably low because it is based on convictions resolved in a time period before DNA testing and before a somewhat greater willingness to accept that people will confess to crimes they didn’t commit.

In the next chapter, we will look at an empirically based exoneration rate based at least in part on DNA exonerations.


Notes:
1. Tony Poveda is a professor at State University of New York Plattsburgh.

2. I suggest Poveda should not have calculated two separate wrongful conviction rates. Instead, I argue he should have summed the Rosenbaum and Poveda numerators, summed the Rosenbaum and Poveda denominators, and divided, as such:

(23 + 5) / (2,276 + 357) = 28 / 2633 = 0.0106 = 1.1%

The combined result is little different than the Rosenbaum number because the Rosenbaum number is based on a substantially larger sample. The Poveda number should not be relied upon because it lacks statistical significance. Neither number should be relied upon because each are based on a pre-DNA populations.

Saturday, July 17, 2010

On The Rate of Wrongful Conviction: Chapter 1.0

In my spare time, I'm preparing a compilation of essays on various estimates of our country's wrongful conviction rate.  As I draft them, I'll publish them here. When I'm done with all of them, I'll compile them into a single document and make it available on Scribd for free, and on Amazon for a minimal cost.

The chapters will be numbered according to the predicted wrongful conviction rate, in percent. So far I have posted Chapter 0.027 and Chapter 0.5.  Keep in mind that we have a lot of people incarcerated, around 2.5 million. That means a wrongful conviction rate of only 1%, if applicable to all those incarcerated, means we have wrongfully imprisoned 25,000 people. A wrongful conviction rate of 10%, if applied to all those incarcerated, would mean we currently have a quarter million people incarcerated for crimes they did not commit.

I didn't pull the 10% number out of thin air. We'll soon be talking about estimates that exceed 10%. For now, it's time to look at the Rosenbaum number.


Chapter 1.0
The Rosenbaum Number

Edwin Borchard was one the first wrongful conviction counters. A wrongful conviction counter is someone who brings attention to the problem of wrongful convictions by compiling and documenting cases of justice gone wrong.  Way back in 1932, Borchard described 65 wrongful convictions in his book Convicting the Innocent. The preface reads in part:
A district attorney in Worcestor County, Massachusetts, a few years ago is reported to have said: “Innocent men are never convicted. Don’t worry about it, it never happened in the world. It is a physical impossibility.” The present collection of sixty-five cases, which have been selected from a much larger number, is a refutation of this supposition.
The stories Borchard tells, clearly shocking at the time, seem almost charming by today’s standards. I repeat one of his shorter stories below.
On August 16, 1928, taxi driver E. A. Stocks reported to the Los Angeles police that two men, whom he had picked up as passengers, had stolen his cab and $7.00. On August 17, taxi man Newt Troelson made a similar report, with the loss of $12.00. On the eighteenth, E. M. Shaw, and on the twentieth, E. I. McDonald, had the same experience. On each occasion the taxi driver was requested to drive to some place which proved to be a lonely spot, where he was held up. Similar crimes were being committed in and around Los Angeles.

The four victims attended the police-department “show-ups,” where arrested persons in groups of six were marched before victims of all sorts of crimes for identification. Early in September, each of the taxi drives identified one of the prisoners, Elmer P. Jacobs, as one of the taxi robbers.

Jacobs had been arrested for “borrowing” a parked automobile for a joy ride on August 28, 1928. He pleaded guilty to grand larceny on this charge and was sentenced to Folsom as a second offender, having had a criminal record.

In the meantime, however, he had, as related, been identified as the taxi thief. He was indicted for each of the four taxi robberies just described. He was tried on October 30 and 31, 1928 … Each victim appeared as a witness and described the holdup, stating that Jacobs was one of the robbers. Jacobs was a man with wavy hair, a crooked nose, tight, thin lips (as viewed from the side), and almond-shaped-eyes -- a person readily recognizable. Jacobs endeavored to establish alibis that he was elsewhere at the time of each occurrence. The alibi witness evidence was rather indefinite, and a verdict of guilty was returned by the jury on each count to serve “for the time prescribed by law,” which was from fifteen years to life.

During the first week in November, [four men] were arrested by the police on various charges. [Two of them] confessed to robbing Newt Troelson and taking his taxicab. The confessions were corroborated by fingerprints. Confessions followed connecting these two with the Stocks and Shaw robberies, and implicating [the other two men] in the McDonald affair. None of the gang knew Jacobs. Detective Captain McCaleb then had these four men placed in the “show-up” and called in again the victims of the robberies. This time the confessed robbers were all positively identified by the victims. It was clear to everyone that their earlier identifications of Jacobs had been erroneous. They court, the prosecutor, and the Deputy Public Defender all cooperated to unravel the legal situation.

On November 16, 1928, the court granted Jacobs a sixty-day stay of sentence so that the cases against the real culprits could be disposed of. They were all convicted and sentenced to the penitentiary for various terms. On December 26, 1928, following a hearing, in which the police officers testified they were satisfied of Jacobs’ innocence, the court vacated the judgment and sentence, set aside the verdicts, and dismissed the robbery charges against Jacobs “in the interest of justice,” and for lack of evidence that would justify a conviction.
Several observations are in order.

First, the timing is amazing. The taxi cab crime wave started on August 16. Elmer was arrested for “borrowing” a car on August 28. He was picked out of a show-up by each of the four victimized taxi drivers shortly thereafter. He was convicted on October 31 on four counts, each count having a possible sentence of fifteen years to life. He was released on November 16 and formally exonerated on December 26. That’s 133 days from crime to formal exoneration, just 17 days from sentencing to release, including Thanksgiving and Christmas breaks.

Next, it’s pretty unlikely that two, much less four, taxi drivers independently picked the same wrong man out of a show-up. In other words, the police knowingly or unwittingly encouraged at least three of them to pick Elmer. It’s a comfort to know we no longer help victims and witnesses select people from lineups and photo arrays.

It’s also a little unsettling how easily the police seemed to obtain confessions for crimes which carried a potential life sentence. It's unlikely the confessions were made in the spirit of community service. It’s more likely the new real thieves were aggressively persuaded by their captors to confess. It’s good that we are now beyond such aggressive persuasion.

And it’s interesting that the police were willing to use fingerprints to inculpate the new real thieves but were unwilling to use the lack of Elmer’s fingerprints to exculpate him. In other words, the State used forensics to reinforce their pre-conceived notions. I’m pleased that today we would never do such a thing.

Finally, it’s disturbing that some people were actually named Elmer way back when. I comforted that today we would never do such a thing.

<<>>

Marty Rosenbaum is a more recent wrongful conviction counter. In his 1991 paper “Inevitable Error: Wrongful New York State Homicide Convictions, 1965-1988”, he briefly documented a well-delineated set of wrongful convictions. He counted fifty-nine people who:
  • had been convicted of a homicide (manslaughter or murder)
  • committed in the state of New York, and
  • had the charges dismissed, or
  • was acquitted on retrial, or
  • was found guilty of an offense less serious than homicide on retrial,
  • sometime between 1965 and 1988.
The longest of Rosenbaum’s summaries was substantially shorter than even the shortest of Brochard’s. A typical Rosenbaum summary follows:
J.L. Ivey, Jr. was convicted of three counts of murder in Erie County on October 27, 1976, and was sentenced to twenty-five years to life in prison. The Appellate Division unanimously reversed the conviction, citing "numerous and repeated acts of improper and prejudicial conduct by the prosecution" including: (a) commenting to the jury about the "unfairness" of a court ruling excluding certain evidence; (b) inappropriately attempting to inject sympathy for the victim into the deliberations on guilt or innocence; (c) referring to defense witnesses' testimony as "lies" and "garbage"; (d) stating that the witness chair should be "washed" after a certain defense witness leaves; and (e) admonishing the jury to be careful lest a "murderer go free." Ivey was retried and, as in the first trial, presented a strong alibi defense. Additionally, Ivey was able to call a new witness who provided convincing testimony implicating her former boyfriend for the murder. Ivey was acquitted of all charges on May 20, 1982 and released after five and one-half years of wrongful imprisonment. He was later granted summary judgment on his suit for unjust conviction and imprisonment in the Court of Claims.
In 20th century New York, telling a jury that the witness chair should be “washed” after a certain defense witness leaves was apparently grounds for a new trial. In 21st century California, comparing the defendant to a Nazi and a germ doesn’t raise a judicial eyebrow. I quote below from the 2002 California Supreme Court ruling in the case of People v. Maureen McDermott.
Defendant also cites as improper the prosecutor's comments in closing argument describing defendant as "a mutation of a human being," a "wolf in sheep's clothing," a "traitor," a person who "stalked people like animals," and someone who had "resigned from the human race." … [W]hen considered in the context of the planning and execution of Eldridge's murder, these references are within the permissible bounds of argument, and in any event would not have had such an impact "as to make it likely the jury's decision was rooted in passion rather than evidence."

Defendant asserts that the prosecutor committed misconduct by comparing her to a Nazi working in the crematorium by day and listening to Mozart by night. We find no misconduct in these remarks. The prosecutor was not comparing defendant's conduct in arranging Eldridge's murder with the genocidal actions of the Nazi regime. Rather, the prosecutor was arguing that human beings sometimes lead double lives, showing a refined sensitivity in some activities while demonstrating barbaric cruelty in others. In the context of this case, where the evidence showed defendant to be both a caring and competent nurse and a person capable of plotting a brutal murder, the argument was appropriate.

Finally, defendant claims the prosecutor committed misconduct by comparing defendant to a germ, a mad dog, and a snake. These remarks were a permissible form of argument designed to show the circumstances in which society may be justified in taking one life to protect the lives of others.
Maureen McDermott, by the way, has been on death row since 1990. Based on what I know of that case, I believe McDermott may be among the wrongfully convicted.

<<>>

Marty Rosenbaum apparently didn’t realize or didn’t care that he had the opportunity to calculate the first empirically-based wrongful conviction rate. He simply needed to divide the number of exonerations in his collection (59) by the total number of convictions that led to those exonerations. He had at his fingertips the appropriate number of total convictions, or a good approximation thereof. They were in the same dataset in which he found his wrongful convictions.

Rosenbaum had bigger fish to fry, however. He was hoping to discourage New York from re-instituting the death penalty. The introduction to his article begins:
This Article reports the preliminary results of a continuing study by the New York State Defenders Association's Wrongful Conviction Study Project. The purpose of the study is to catalogue wrongful homicide convictions in New York State during the period from 1965 to 1988. The Project has found a significant number of wrongful convictions, as defined and reported below. The data presented in this Article support the position that the State of New York should not reenact the death penalty. If New York does so, the Association's study suggests, there will almost certainly be a significant number of persons wrongfully convicted of capital murder in New York, and many of these persons will very possibly be executed before the errors are discovered, if they are discovered at all. Stated simply, the study indicates the fallibility of the New York criminal justice system, which militates against the use of capital punishment.
Rosenbaum’s goal was achieved in essence, if not in detail. Governor George Pataki signed a death penalty bill into law in 1995. No one was executed, however, before the law was declared unconstitutional by the New York State Supreme Court in 2004. No one has in fact been executed in New York since Eddie Mays was deep-fried by an electric chair in 1963.

<<>>

Sometime before 2001, Tony Poveda realized he could use Marty Rosenbaum’s nicely delineated set of exonerations to calculate the first empirically-based wrongful conviction rate. Poveda first defined the proper set of total convictions to be all murder convictions within New York during an eight year window offset three years from Rosenbaum’s eight year window.
[T]he relevant population base for calculating prevalence of wrongful convictions is the number of murder commitments to the Department of Correctional Services. A study conducted by the New York State Defenders Association … found that the median time from conviction to reversal (acquittal / dismissal) in wrongful homicide convictions in New York is approximately three years.
He then corrected Rosenbaum’s count of the wrongfully convicted by excluding those people who had been found guilty of manslaughter rather than murder. He also excluded those people who were only partially exonerated, who had been found guilty of a lesser crime on retrial.
[Rosenbaum’s] study identified 59 wrongful homicide convictions during this period, 45 of which involved murder convictions. … [Rosenbaum’s] definition of wrongful homicide conviction, however, was broader than that employed in the present study. It included not only cases in which the defendant, whose conviction had been overturned, was acquitted on retrial or the charges were dismissed, but also cases in which the defendant was reconvicted of a nonhomicide crime. If the … study cases are limited to murder sentences reversed between 1980 and 1987 and to cases in which the defendant was subsequently acquitted on retrial or the indictment was dismissed (and omits cases in which the defendant was reconvicted of a lesser offense), we were left with 23 wrongful murder convictions in New York State between 1980 and 1987. During the period 1977 to 1984, 2,276 murder commitments were made to the Department of Correctional Services; this translates to a 1.0 percent error rate in murder convictions/commitments.
And there it is.

23 / 2,276 = 0.01010 = 1.0%

Finally we have a number based on something other than a guess. It’s probably not an accurate number, but it’s a number based on something other than a guess. It’s an empirically-based wrongful conviction rate, and it’s one of the first.

The one percent rate is probably conservative for at least two reasons I’ll mention here. First, the cases were all pre-DNA. It’s not that people didn’t have DNA back then, it’s just that we didn’t know how to use DNA to determine guilt or innocence. Even though culprit DNA is available for testing in only a small number of murders, DNA is currently one of the primary basis for murder exonerations. The implication of that last sentence is that most wrongful convictions will not be identified, not even by DNA.  Any calculation that assumes wrongful convictions and exonerations are equal in number is likely to seriously understate the wrongful conviction rate.

My second reason for suspecting the Rosenbaum number is low is that society was even less willing to accept back then that people would confess to crimes they did not commit. Anyone who confessed to a crime back then was even less likely to be set free than they are today. Since somewhere between 90 and 95% of convictions are based on plea bargains, i.e. confessions, this is a major issue. I will address it in more detail later in this monograph.

Notes:

1. At one point, Edwin M. Borchard was a librarian for the Law Library of Congress. At the time his book was published he was a Professor of Law at Yale University. Borchard unsuccessfully represented the ACLU in the case of Korematsu v. United States. In the majority opinion, Hugo Black ruled that the U.S. government could intern Fred Korematsu, and all other Americans of Japanese descent, during World War II to protect itself against espionage. Under generally accepted rules for counting wrongful convictions, none of those people interned would count.

2. At the time he published “Inevitable Errors,” Marty Rosenbaum was Director of Judicial and Legislative Services, New York State Defenders Association, Inc., Public Defense Backup Center.

3. Tony Poveda is a professor at State University of New York Plattsburgh. He is the author of “Estimating Wrongful Convictions,” published in the September 2001 issue of Justice Quarterly. Not only did he convert Rosenbaum’s compilation of New York homicide exonerations into a wrongful conviction rate, he calculated his own (higher) rate in similar fashion. That work is addressed in the upcoming Chapter 1.4, The Poveda Number.

4. In the  case of Maureen McDermott, the jury could have, but apparently did not, invoke the corollary to Godwin’s law. Godwin’s law observes that as discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1. The corollary to the law is that once such a comparison is made, the discussion is over and whoever mentioned the Nazis first automatically loses the argument. As a juror, I would be unimpressed by a prosecutor who relied on inflammatory language rather than evidence. I would be less inclined to deliver the guilty vote the State was seeking.

Friday, July 16, 2010

A Nice Review for Case, And a Word on Maye

The first few reviews for The Skeptical Juror and The Trial of Byron Case were from early readers and Byron Case supporters. The single adverse early review was from a friend of the victim's family. The last five reviews have been from people we know nothing about. We are therefore pleased that the later reviews are all favorable.

We attempt to learn from the criticisms, whether they be explicit or implied. We want each book to be better than the previous. While that may be difficult to do over a series of 10 books, it should  be an achievable goal for the second in the series.

As it turns out, we have just submitted the second in the series to Amazon in Kindle format. It should show up within a week, though we may have to interate with the formatting. The print version should show up on Amazon in two or three weeks.  I've included the cover as an image in this post. Once that cover appears along the right hand sidebar, you will know that it's available for purchase.

Most Recent Reviewer Aeon Flux found the first part of Case to be slow. We agree. The biggest challenge we have had with the series is presenting the trial itself in an entertaining fashion while maintaining the integrity of the testimony. We got part way there in Case, and we think we are a few steps closer in Maye.

Aeon Flux also thought some of the humor was questionable and some of the asides were distracting. We agree. We have toned both down in Maye.

Aeon Flux thought Case picked up steam in the jury deliberation. We agree. That's why we start Maye in the jury room. That idea came from The Skeptical Spouse / Skeptical Editor, and it seemed strange at first. I now think it was a spectacular idea.

After completing the third part of Case, The Aftermath, Aeon Flux had a hard time getting over the anger at how it all turned out. We agree. We caution, however, that the last part of Maye, The Alternate Scenario, is no more likely to be soothing.

Aeon Flux was frustrated that the ending lacked a resolution. We agree. Welcome to real life. Hopefully there will be a happy ending for both Byron Case and Cory Maye. Maye is certainly well represented, and the Mississippi Supreme Court has agreed to hear his case. With respect to Case, we have a longer row to hoe. I don't write of his legal situation because it's best at this point if I do not.

Aeon Flux mentioned The Skeptical Juror's prediliction for hot dogs and diet Mt. Dew in Case. Flux will be happy to know that Funyuns and Mr. Pibb each make a guest appearance in Maye.

Now without further ado, I offer the lastest Amazon review for The Skeptical Juror and The Trial of Byron Case.
4.0 out of 5 stars Rabid Reader, July 11, 2010
By AEON FLUX (here and there) - See all my reviews
This review is from: The Skeptical Juror and The Trial of Byron Case (Paperback)
I don't read true-crime books, as a general rule. Before I read this one the closest I ever came was Truman Capote's accomplished "In Cold Blood." And let me be clear, "The Skeptical Juror and the Trial of Byron Case" was nowhere close to that highfalutin level of literature. Then again, it didn't try to be. What it was was an accessible but exacting introduction to state criminal court and to jury duty. It was also an unflinching look at one particular murder trial. It was not what I expected.

Here's where I'd insert a spoiler alert, except other reviewers before me have already ruined the surprise of the verdict: Byron Case was found guilty of 1st degree murder in a 2002 judgment. The verdict wasn't what made this book interesting, though. Allen broke from the rules of genre to come up with something that wasn't a whodunit, a profile, or even a dramatized narrative of the crime. Instead, he concerned himself with a "Dragnet"-like interest in "just the facts." He deconstructed the evidence, walked the reader through his research, and came away with some truly unsettling conclusions. It's amazing that nobody yet has spilled the beans about those conclusions in a review (and I'm not about to), but wow.

I liked this book. I liked it so much I read it in two days. Then again, "liked" is the wrong word. In spite of Allen's obvious effort to break up the tedium of some longer testimonies, using asides of sometimes questionable humor and distracting (but fascinating) local history, the first of the book's three "acts" was slow going. Once I made it through Act One, however, it all paid off. I was compelled, pulled along by a gnawing curiosity about where the evidence led. By Act Three, I felt like a private eye. Then bits and pieces came together and I felt sick to my stomach.

The only thing the ending left to be desired was a resolution, but that's a problem with the reality of Allen's source material, not with the author himself. After I put the book down, I had a hard time getting over my anger (yes, anger!) at how it all turned out. Not even Capote managed that strong a reaction, so there's obviously something to be said for Allen's hot-dog-eating, Mt.-Dew-swigging plain-spokenness. I will definitely look out for the release of the two other "Skeptical Juror" titles mentioned as "forthcoming."

Thursday, July 15, 2010

On The Rate of Wrongful Conviction: Chapter 0.5

In my spare time, I'm preparing a compilation of essays on various estimates of our country's wrongful conviction rate.  As I draft them, I'll publish them here. When I'm done with all of them, I'll compile them into a single document and make it available on Scribd for free, and on Amazon for a minimal cost.

The chapters will be numbered according to the predicted wrongful conviction rate, in percent. I began with the lowest estimate of 0.027%, and I am working my way up to the highest. Keep in mind that we have a lot of people incarcerated, around 2.5 million. That means a wrongful conviction rate of only 1%, if applicable to all those incarcerated, means we have wrongfully imprisoned 25,000 people. A wrongful conviction rate of 10%, if applied to all those incarcerated, would mean we currently have a quarter million people incarcerated for crimes they did not commit.

I didn't pull the 10% number out of thin error air. We'll soon be talking about estimates that exceed 10%. For now, it's time to look at the Huff number.


Chapter 0.5
The Huff Number

Twenty years before Oregon Prosecutor Joshua Marquis wowed Justice Scalia with his 0.027 percent wrongful conviction rate estimate, Ronald Huff bothered to ask 53 Ohio prosecutors what they thought the wrongful conviction rate might be. He also asked 55 Ohio county judges, 59 Ohio sheriffs and chiefs of police, and 21 Ohio public defenders. In addition, he asked 41 state attorney generals from across the U.S.

Huff didn’t just guess at a number, as Joshua Marquis would do twenty years later. Huff asked other people to guess for him. He asked each of his survey participants to select one of four answers:
     Never
     Less than 1%
     1 to 5%
     6 to 10%

Seventy-two percent of the respondents selected less than 1 percent but greater than zero. Twenty percent guessed somewhere between 1 and 5 percent. Only two percent of the respondents felt the number was greater than 5%.

Astonishingly, six percent of the respondents indicated their belief that innocent people are never convicted. Judge Learned Hand would be proud.

Huff distilled the results into a single number of 0.5 percent.
With these figures before us … we decided to see what the magnitude of the problem would appear to be if we cut the 1% figure in half, on the grounds that most of the respondents selected the category “less than 1%,” thereby indicating that they believed wrongful conviction does occur (they rejected “never”), but also indicating that it occurs in less than 1% of all felony convictions. Given that the midpoint between zero and 1% is 0.5%, we felt justified in using that figure.

We are left with what appears to be an impressive figure for accuracy and justice: 99.5% of all guilty verdicts in felony cases are handed down on people who did indeed commit the crimes of which they have been accused. But in terms of real numbers, this figure is more disheartening. According to the U.S. Department of Justice’s Bureau of Justice Statistics … the estimated total number of persons arrested and charged with index crimes in 1993 was 2,848,400. [Index crimes are murder, non-negligent manslaughter, forcible rape, aggravated assault, robbery, burglary, larceny theft, motor vehicle theft and arson.] Conviction rates vary from state to state and by type of offense, but based on the best available data, an analysis of the likelihood of felony conviction in the nation’s 75 largest counties, we can reasonably assume about 70% of all felony arrests result in conviction. … Now, if we go to our survey data and to the study of the American jury, and assume that 70% of those arrested for index crimes are convicted, this would yield the following estimate of wrongful conviction for the eight crimes in the FBI index only:

1990 arrests for index crimes                              2,848,400
    x conviction rate (70%)                                          x 0.7
1990 convictions for index crimes                        1,993,880
    x wrongful conviction rate (0.5%)                          x .005
Estimated number of wrongful convictions                  9,969

Thus, if these apparently conservative estimates are reasonable, we are facing an interesting dilemma: A high volume of prosecutions, even if 99.5% accurate when guilty verdicts are rendered, can still generate about 10,000 erroneous convictions for index crimes in a single year. And this figure does not including [sic] the many erroneous convictions that occur in cases involving crimes not in the index; when these are added to the 10,000 “index false positives,” the result is even more sobering.
Huff was a pioneer. He was the first to make an effort to quantify the rate of wrongful conviction. His number though is probably low, for several reasons.

First, Huff’s sample was dominated by police, prosecutors, and judges, all of whom are loath to admit that those in their profession may be putting innocent people in jail. Only nine percent of the respondents were public defenders. Huff himself recognized this problem.

Second, Huff was ambiguous about whether the respondents were to assess the wrongful conviction rate within their own district or for the U.S. as a whole. Later surveys, to be discussed soon, will show that police, prosecutors, and judges consistently perceive their district to have lower wrongful conviction rates than the rest of the country. It’s the Lake Wobegon phenomenon, where every child is above average.

Third, Huff conducted his survey when use of DNA was still in its infancy, and I do mean infancy. In 1986, the same year Huff initially published his results, DNA testing was used for the first time in the case of Pennsylvania v. Pestinikas, a civil case involving allegations of switching body parts at a funeral home.

Later surveys similar to that conducted by Huff will show that the spate of DNA exonerations cause respondents to significantly increase their estimate of the wrongful conviction rate.

Notes:
1. When I refer to Ronald Huff, I refer also to his colleagues Arye Rattner and Edward Sagarin. They published their work first in the October 1986 of Crime and Delinquency as “Guilty Until Proved Innocent: Wrongful Conviction and Public Policy.” Ten years later, they republished their work in book form as Convicted But Innocent: Wrongful Conviction and Public Policy, 1996. The following note appears in the Acknowledgments section of that book: “We have contributed equally to the research and writing in this book, and our names are therefore displayed alphabetically.”

2. At the time their book was published, Ronald Huff was director of the Criminal Justice Research Center at Ohio State University. Rattner was a Professor of Sociology at the University of Haifa, Israel. Edward Sagarin died prior to the original publication the work. He had been a Professor of Sociology at City College and City University of New York.

3. Huff actually asked more law enforcement officials than listed above. The numbers given in the first paragraph include only those who bothered to respond.

4. It would have been better had the last survey choice been “Greater than 5%.” As written, the options excluded estimates greater than 5 percent but less than 6. Perhaps some of those who didn’t’ respond believed the wrongful conviction rate was 5.5% and refused to compromise their ethics by selecting from the options provided. The options also exclude all estimates greater than 10%. Perhaps the rest of those who didn’t respond believed the wrongful conviction rate was 12.5%.

5. The quoted text is from Huff's 1996 book rather than his 1986 article.