Thursday, September 30, 2010

In Search of the 54: An Update

Quick update on my search for the 54 innocent person executed by Texas. This update is prompted by my post on Jesse Romero. Here's the cases I've scored so far.

Charles Anthony Boyd, 1 

By my decimal accounting, I have so far located 9.75 people wrongfully executed by the State of Texas. I can't tell you exactly which 9.75 people were wrongfully executed, only that they are from the list above and that more likely located near the top than the bottom.
 
Stay tuned.

The Truly Shocking Case of Jesse Romero

If this case seems vaguely familiar to you, take that as a sign you have staved off feeble-mindedness for yet another day. Jesse Romero was convicted and executed based on the same purchased and perjured testimony as was Davis Losada. The story I tell here, I've told before.

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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 Romero’s trial, Leyva 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.

Davis Losada was tried first. Leyva was the State's key witness. On cross-examination, Losada’s attorney, Jose Luis Peña, asked only three questions of the Leyva.

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.

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.

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I initially scored Romero as having zero chance of actual innocence. I couldn’t, however, find anybody who was arguing that Jesse Romero was wrongfully executed. 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 Romero wasn’t factually guilty.

I did find one interesting problem while working on the case of Davis Losada. It turns out that Lodada's attorney, 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.

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I mulled Losada's 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 Romero'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 Romero 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.

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The morning I was planning on posting the Davis Losada story, I found the one news article I was looking for. It was published just before Losada was executed. Peña (Losada's attorney) 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.

I offer my Actual Innocence Scorecard for Jesse Romer. Not surprisingly, I score him at 75, exactly the same as Davis Losada.

While I am not as truly shocked at how Romero's case played out, since I had already been truly shocked when I worked through Losada's case, I must claim to be at least somewhat truly shocked to justify the parallel use of the blog post title.

The bottom line, however, remains the same. Romero and Losada are planted, Cardenas lives in a cell, and Leyva walks free. Such are the unsurprising injustices of purchased testimony.

Wednesday, September 29, 2010

News Flash #3 Regarding Cameron Todd Willingham

Here's another item you can add to your wrongful-conviction calendar.  On October 19, Frontline will open its new season with a show on Cameron Todd Willingham.  Here's the trailer.


I've already updated my calendar:
06 Oct -- Court of Inquiry opens in case of Cameron Todd Willingham
13 Oct -- US Supreme Court to hear case of Hank Skinner
19 Oct -- Frontline airs show re case of Cameron Todd Willingham
08 Nov - Judge Fine to hear motions on constitutionality of the death penalty

Rick Perry's response here.

Tuesday, September 28, 2010

News Flash #2 Regarding Cameron Todd Willingham

The astute among you have undoubtedly noticed that Hank Skinner is no longer listed as the subject of the next book in The Skeptical Juror series. In fact, if you look over there (upper left, where it says "The Series"), you will notice that no third book is identified.

Here's the deal. I must have the trial transcripts or I cannot write the book. I was unable to obtain the transcripts for the Hank Skinner trial, so I cannot make Hank Skinner the subject of the third book in the series.

Now here's the News Flash.  Last Wednesday, shortly after noon, I discovered that The Innocence Project had, when I wasn't looking, posted the transcripts for the Cameron Todd Willingham trial. About ten seconds thereafter, I decided to make Cameron Todd Willingham the subject of the third book in The Skeptical Juror Series. About 10 more seconds thereafter, I began working on the book.

My goal is to have The Skeptical Juror and The Trial of Cameron Todd Willingham completed and on Amazon by Christmas!

(I'm supposed to finish my book On The Rate of Wrongful Conviction soon, so that might slow me down a bit.)

(I should also go through the editorial process on The Skeptical Juror and The Trial of Susan B. Anthony, since I finished the first draft of that book a while ago and I've let it languish.)

(And I need to continue posting, or my readers won't come back.)

(Also, I'm involved with a couple of wrongful-conviction cases behind the scenes, and those people absolutely deserve my attention.)

(And I do need to pay my mortgage somehow.)

My goal is to have The Skeptical Juror and The Trial of Cameron Todd Willingham completed and on Amazon early next year.

News Flash #1 Regarding Cameron Todd Willingham

Many of you have probably been lying awake at night wondering when I will finally get around to writing about Cameron Todd Willingham. Finally, you will be able to sleep. I will be writing of Willingham frequently and extensively for a while, beginning immediately with this News Flash, and following immediately with a second.

Willingham was convicted of and executed for the arson murder of his three young children. His case has become a lightning rod for both sides of the death penalty debate. Opponents of the death penalty claim Willingham was convicted based on a seriously flawed arson investigation, and they have nine (count 'em, nine) of the nation's top fire experts backing them up. Proponents say it doesn't matter: Willingham confessed to his wife not long before he was executed. Or so they say.

Texas empanelled and empowered a forensic team to investigate the arson science surrouding the case. Rick Perry quickly neutered that team by replacing some of the commissioners, including the chairman, with his hand-picked cronies. (Did I say cronies?  I meant boot-licking toadies.) The chairman recently attempted to wrap up the committee work with a no-harm, no-foul ruling, but a majority of the other commissioners balked. They would like to actually hear some testimony before shutting down.

That's it for the background. Now for the news flash.

Judge Charles Baird of Austin has agreed to open a Court of Inquiry to determine whether Cameron Todd Willingham was wrongfully convicted and, by extension, wrongfully executed. He will hear testimony next Wednesday and Thursday, so mark your calendars.

Here's what my calendar is looking like:

06 Oct -- Court of Inquiry opens in case of Cameron Todd Willingham
13 Oct -- US Supreme Court to hear case of Hank Skinner

Couple these events with the 11 June decision by Judge Paul Murphy that Texas must turn over for DNA testing a 1" hair sample that might prove The Despicable Claude Jones was wrongfully executed, and you have a witches' brew of death penalty cases for Rick Perry to chew on. (The metaphor got away from me, but I'll just leave it.)


Saturday, September 25, 2010

In Search of 54: An Update

Way back on 8 March, I calculate that Texas had executed 54 innocent people. Several days later I announced my intention to search for the 54. I have since been working my through each of the now 463 people executed by Texas in "the modern era."

Most of those 463 people will receive only a cursory review, since the guilt of most those executed is quickly obvious. Some small fraction of the those 463 receive a substantially more thorough review, usually ending in the preparation of an Actual Innocence Scorecard. The final number on that scorecard will represent the person's probability of being innocenct, based on my organized and formalized assessment.

Rather than deem a person factually innocent or factually guilty, I determine a probability of innocence. Instead of using integer counting, I use decimal counting. By summing the probabilities of innocence for each person scored, I determine my count of those people innocent but executed by Texas.

I present below a summary for those I have already scored. Click on the name to see the post describing the case. Click on the score to see the Actual Innocence Scorecard.

Charles Anthony Boyd, 1 

By my decimal accounting, I have so far located 9 people wrongfully executed by the State of Texas. I can't tell you exactly which 9 people were wrongfully executed, only that they are from the list above and that more likely located near the top than the bottom.

Also, at this point I update my prediction regarding the number of innocent people Texas has executed. Refining my previous estimate by the cases I have already reviewed, I now predict that I will find Texas to have executed 38 innocent people. I will continue to refer to this series as The Search for 54, or something along that line, though I now expect to find fewer. Time will tell whether my initial or current estimate is the better.

In either case, the answer is appalling

Wednesday, September 22, 2010

Obviously False Confessions, For Anyone Bothering to Look

Most wrongful convictions result from police and prosecutors extorting a plea bargain from an innocent person. A large number of these wrongful convictions are mundane by wrongful conviction standards. They involve drugs and theft. The more spectacular wrongful convictions more frequently require the assistance of an unwitting, insufficiently skeptical jury. They deal with murder and rape.

In this post, we take a look at the front end of the wrongful conviction process. We focus on one narrow segment of the wrongful conviction world: false confessions to charges of murder and/or rape.

Before we begin, allow me to disappoint any of you out there who still cling to belief that people never  have and never will falsely confess to a crime, much less one that could lead to death or life imprisonment. In The Substance of False Confessions, Brandon Garrett focuses on 40 cases of false confession proven false by DNA evidence. Perhaps the die-hard among you will hope that these 40 cases magically represent all the cases rather than simply the tip of the iceberg. For the remainder of you, read on.

In The Decision to Confess Falsely: Rational Choice and Irrational Action, Richards Ofshe and Leo discuss a common-sense method of detecting at least some false confessions. They suggest the police (and I suggest the jury also) should consider the the fit between the confession and the known facts of the case. (The police are in the best position to do this, and the jury is in the worst position.) Ofshe and Leo describe a number of cases where the prosecution of a clearly innocent person proceeded apace despite glaring inconsistencies between the confession and the facts. I repeat some of the them here, beginning with:
Johnny Lee Wilson was pardoned by the governor of Missouri in 1995 although he had confessed to arson, robbery, and murder in 1986.57 During interrogation, Mr. Wilson told police many facts that could be proven to be wrong and did not contribute any accurate information that would certainly have been known to the perpetrator. For example, he told the interrogators where to find the loot from the robbery -- but it was not there. Also, he was unable to tell them that a stun-gun was involved in the crime, that it had been lost in the house, and that the killers had set a fIre to destroy it. Years later, the real killer came forward, confessed, and proved his guilt. Although the stun-gun's existence had been kept secret, the true killer was able to tell the police all about it.
It seems as if we can add Johnny Lee Wilson's confession to the confirmed false confession list, given that the real killer (aka the OJ) confessed and provided critical information known to the police but unknown to Wilson.  Next, consider the case of Edgar Garrett, presumably no relation to Brandon Garrett.
Police in Goshen, Indiana. persuaded Edgar Garrett that he killed his daughter, Michelle, who had mysteriously disappeared. During fourteen hours of interrogation, Edgar Garrett gave an increasingly detailed confession describing how he murdered his daughter, whose body had not yet been found. No independent evidence linked him to the crime or corroborated his confession. At the same time, his post-admission narrative contradicted all the major facts in the case. Edgar Garrett confessed to walking into a park with his daughter through new-fallen snow, bludgeoning her with an axe handle at a river's edge, and dumping her body in the river. However, the police officer who arrived first at the crime scene did not see footprints in the snow-covered field at the entry to the park but, instead, saw tire tracks entering the park, bloody drag marks leading from the tire tracks to the river's edge, and a single set of footprints going to and returning from the river. Obviously, someone had unloaded Michelle Garrett's body from a vehicle and dragged it to the river, but Edgar Garrett did not own a car and no evidence was ever developed that he had access to one that day. Michelle Garrett's coat was recovered from the river separately from her body and had no punctures, suggesting that she had been killed indoors and transported to the river bank.
Edgar Garrett's confession regurgitated the theory the police held at the time of the interrogation: that his daughter had been clubbed to death. Weeks later, when Michelle Garrett's body was recovered, police learned that she had been stabbed thirty-four times; that her body showed no evidence of significant head trauma; and that the axe handle Edgar Garrett confessed to club her with showed no traces of her hair or blood. At trial, the jury acquitted Edgar Garrett.
Good for the jury. They stepped in and performed their constitutional duty of protecting the innocent against the excesses of the state.
A Flagstaff, Arizona, interrogator persuaded George Abney that he had murdered a woman he had never met. He promised Abney that if he cooperated he would not go to prison but rather would receive hospital treatment for the mental illness that allegedly caused him to kill. During the post-admission questioning, Abney was invariably wrong in his guesses about the crime facts, including the most basic essentials of the victim's description. Among many other things, Abney's interrogator insisted on knowing where the victim's missing clothing could be found. On the night Abney confessed, he was taken to the murder scene to help him remember the location of the clothing. He failed. Because he had been told that only by demonstrating remorse through cooperation would he receive hospital care rather than prison, more than a day later he called the interrogator to his cell and literally begged to be allowed to try again. He failed a second time. It was later discovered that Abney had an airtight alibi, which was corroborated by several witnesses who came forward as soon as his arrest was reported in the press. For these and many other reasons, including the identification of the likely killer, a jury acquitted Abney at trial.
Good for the jury once again. Unfortunately, most of those who confess falsely are not spared by the jury. None of the forty demonstrably innocent defendants discussed by Brandon Garrett were spared by the jury.
Richard Bingham confessed to murdering a young woman by himself in a forest in Sitka, Alaska, and was immediately arrested. At the time of Bingham's arrest, police had not tested the semen found in the victim's body, the foreign hairs found on her body or the fingerprint evidence found at the crime scene. When the DNA testing, the hair testing and the fingerprint comparisons were completed, the results all excluded Bingham. In addition, the perpetrator had silenced the victim by carefully packing a great quantity of mud into her mouth. The interrogators raised the subject of how the victim was silenced several times during the post-admission portion of the interrogation. Each time Bingham offered a commonplace guess that was wrong. At trial, the jury acquitted Bingham.
Here the police and prosecution pressed the case forward even though the DNA evidence excluded Bingham. Their logic is usually along the lines of: "The DNA doesn't prove he wasn't there and didn't participate. It only proves he had the assistance of someone else."  This lame-o alternative theory has been used so frequently it has been given a name: The Unindicted Co-Ejaculator Theory.

On Saturday, August 10, 1991, during the scorching summer, six Buddhist monks, a nun, and two acolytes were found shot to death at the Wat Promkunaram Buddhist temple in the far west area of Phoenix.  Maricopa County Sheriff's detectives subjected five mistakenly chosen individuals to psychological interrogation and succeeded in eliciting three false confessions to mass murder.
None of the three individuals from whom Maricopa County, Arizona, detectives coerced false confessions during the Phoenix Temple mass murder investigation could tell police where to find the missing loot or independently describe the physical facts of the crime. The real killers were eventually identified because they were in possession of the murder weapon on the night of the killings. When police searched their homes, loot from the robbery was found. The perpetrator who confessed was able to describe how the crime was planned, its execution, and a significant fact withheld from the public -- that certain graffiti had been left at the crime scene to mislead the police.
I'm currently helping, or attempting to help, with a case involving a false confession. The jury whiffed in this instance, and the defendant was sentenced to 50 year sentence without possibility of parole. All appeals have failed or been procedurally barred. I'll be writing more frequently of false confessions because of this case. I'll write too of the case itself. Stay tuned.

Monday, September 20, 2010

The UnSlam UnDunk Case of Richard Wayne Jones

In The Slam Dunk Case of Richard Wayne Jones I laid out the evidence that Richard Wayne Jones. abducted and brutally murdered Tammy Livingston. Everything I wrote was, as far as I know, true and accurate. The post was nonetheless deceptive and dishonest, and intentionally so. I have cautioned you before about people who might deceive and manipulate you. Perhaps now you'll trust me.

I realize that makes no sense, but such is the world of wrongful convictions.

Prosecutors, in theory, are not allowed to present untruthful information to the jury. Prosecutors, on the other hand, attempt to keep exculpatory information from the jurors. While the prosecutors are required to inform the defense of all potentially exculpatory evidence against the defendant, their willingness and ability to control what the jury hears is one of their most valuable tools. Consider, for example, the case of Richard Wayne Jones.

Let's consider that case, the State's case, as described by then Attorney General (now U.S. Senator) John Cronyn. I presented that case without comment in my previous post. I'll repeat it here, slowly, bit by bit, with annotations.
Texas Attorney General John Cronyn offers the following information on Richard Wayne Jones who is scheduled to be executed after 6 p.m. on Tuesday, August 22nd. Richard Wayne Jones was convicted and sentenced to death for the February 1986 murder of Tammy Livingston in Hurst, Texas. Livingston was stabbed to death 17 times and then the area around her body was set on fire.
Close enough, so far.
Jones followed Livingston as she was leaving a Michael's store at about 7:30 p.m.
The time is critical. Remember the time. 7:30 PM.
As Livingston was backing out of a parking space, Jones ran to the back of her car, opened her car door and then forced himself into the driver's seat.
Cronyn fails to mention that information is based on evidence provided by three eyewitnesses, specifically Ruthie Amato and her teenage daughters. The three eyewitnesses described the assailant as a clean shaven, white male with reddish-brown hair, who was wearing a red shirt. Jones (at that time) had blonde hair, a mustache, and was wearing a brown and gray plaid shirt. During the police line-up, Ruthie Amato identified Jones, though he did not meet the physical description she had provided earlier. Neither of the daughters were able to pick Jones from the line-up. Nonetheless, Ruthie and one of her daughters testified at trial that they were certain Jones was the person who had abducted the victim.
Later that evening, between 9:20 and 9:45, a Fort Worth resident heard screams coming from a vacant property.
 The time is critical. Remember the time. 9:30 PM, or thereabouts.
At about 11:20 that same evening, the Fort Worth Fire Department responded to a grass fire in the same area where someone had heard screams. It was there that firefighters discovered the charred remains of Tammy Livingston. Authorities determined that Livingston had been stabbed 17 times in the face and neck.
The time is critical. Remember the time. 11:30 PM, or just shy thereof.
The night after Livingston's murder, Jones bought a pair of boots with a credit card in the name of Tammy Livingston. Later that night, Jones and a woman tried to buy groceries at a Fort Worth Safeway with a check from the account of Tammy and Russell Livingston. The woman with Jones, Yelena Comalander, was arrested for trying to pass a check belonging to someone else.
More specifically, Yelena Comalander was Jones' teenage girlfriend, pregnant with their unborn child. 
The next morning, Livingston's car was recovered from a parking lot in Fort Worth. Jones' left thumb print was found on the inside of the front window of the driver's side of the car. Police also found several of Livingston's belongings including her engagement ring and her inscribed wedding band, at an apartment that Yelena Comalander took them to. Police arrested Jones a short time later.
The morning after Jones was arrested, an eyewitness to Livingston's kidnapping from the Michael's parking lot picked Jones out of a police line-up.
The State (via now U.S. Senator John Cronyn) fails to mention that neither of the daughters was able to pick Jones from the lineup, though one of the two teenagers later testified at trial that Jones was the one who abducted the victim. The eyewitnesses in this case show a common pattern of becoming increasingly confident in their identification as their memory ages, even when that identification conflicts with the initial description and was unsupported by a the results of a line-up.
Physical evidence also linked Jones to Livingston's murder.
That's true. Jones had two small spots of blood on his pants. The blood type matched that of the victim. Jones also had a barely detectable amount of blood on his boots, though that sample was too small to test. The amount of blood found on Jones is damning at first blush, then potentially exculpatory upon further consideration. If Jones had actually stabbed the victim so frequently and so brutally, one would expect Jones to be substantially more covered with blood.
Jones also signed a written statement, admitting to the kidnapping and murder of Tammy Livingston.
That's true. Jones confessed, but only after 21 hours of interrogation without food or sleep, only after the police threatened to subject his pregnant, teenage girlfriend to lethal injection, only after the police told him the State would take his child as soon as it was born and never allow him to see it.

During trial, one of his interrogators admitted that they had indeed so threatened Jones. The evening after that testimony, however, the officer apparently had an epiphany. He testified the next day that they had never threatened Jones as Jones claimed and as he had testified. Instead, he claimed his testimony from the previous day had been a misunderstanding. He somehow realized overnight that he misunderstood the question.
Jones had been out of prison for less than five months when he committed this murder.
That's true. Jones had been convicted in September 1983 of aggravated robbery with a deadly weapon. The sentence was seven years. He served two years and one month. He was released in October 1985, less than five months before the crime, just as (now U.S. Senator) John Cronyn wrote.
Jones signed a written statement admitting to kidnapping and murdering Tammy Livingston.
That's true. Cronyn fails to mention, however, that Jones' confession was demonstrably false based on the well-established timeline of the crime. Jones confessed that he had taken the victim straight  from the parking lot to the field, had killed her there soon after arriving, and then had set the field on fire in an attempt to cover the crime.

The timeline falsifies his confession. Recall that the eye-witnesses testified the victim was abducted near 7:30 PM, that the ear-witness testified he heard screams from the field around 9:30 PM, and that the fire department responded to the fire around 11:30 PM. There is no way that the well-established times are consistent with Jones' confession. They falsify Jones' confession, just as they would falsify the testimony of any witness who testified contrary to them. Astonishingly, the jury would somehow never learn of the time-critical errors in Jones' confession.

Jones recanted his confession, to no effect, and reverted to his initial claim that he was provided the items by someone named Walt. Walt, as it turns out was Walt Sellers, boyfriend of Jones' sister, Brenda Jones Ashmore. Jones foolishly played coy with Walt's identity early on because he wanted to protect his sister. Brenda had told him that she and Walt killed Tammy Livingstone and she asked him to help cover up the crime.

Jones version of events is that he arrived home from work and soon thereafter went with Brenda, at Brenda's request, to Walt's house. There he met Walt Sellers who had blood all over his shirt and arms. Walt sold him Livingston’s checks, credit cards, jewelry, and car on the condition that Jones help destroy the crime scene.

Jones admitted using Livingston’s credit cards and checks but denied kidnapping or murdering Livingston or burning her body. Unlike his confession, his original story is entirely consistent with all the evidence in the case. His story is also supported by five other people, none of whom testified at trial. More on those five people soon.
Jones' thumb print was found inside the front window of Tammy Livingston's car.
That's true. In her grand jury testimony Yelena Comalander (Jones' pregnant, teenage girlfriend) explained the thumbprint, the car, and the other items during her grand jury testimony.  Her testimony corroborated that of Jones. She testified that Jones came home from work on the night of the murder and immediately left in his mother’s car. He returned later, with his sister, Brenda, in the victim's station wagon. He did not have any blood on him. He gave her (Yelena) the credit cards and checks from a purse in the car. He told her he obtained the car and the purse from “Walt.” They drove to a parking lot where Jones’ mother’s car was parked. She drove his mother’s car to another parking lot where Jones left the station wagon. They then drove around together, tried to use Livingston’s bank card, went home to pick up gasoline, and then went to a field where Jones lit the field on fire.

During her grand jury testimony, Yelena testified she lied to the police in her  initial statement when she implicated Jones. She did so because the police threatened her with capital murder charges.

The prosecution could easily have charged her with perjury right then and there, had they been so inclined. Instead, they used the admitted conflict between her police statement and her grand jury testimony to prevent her from testifying during trial on Jones' behalf. When called to testify, she took the Fifth, refusing to testify because she feared prosecution for perjury. The defense asked that she be granted immunity from prosecution, but the State and the Court refused. The jury never heard from Yelena and the the prosecution did not charge her with perjury. It all worked out well, for almost everyone. (This reminds me of The Well-Orchestrated Trial and Execution of David Wayne Stoker.)
An eyewitness who saw Jones kidnap Livingston from the Michael's parking lot picked Jones out of a police line-up.
I addressed the eyewitness testimony after Cronyn first brought it up. This is now the third time Cronyn has mentioned it while continuing to omit critical details.
A pair of jeans and a shirt Jones was wearing the night of Livingston's murder were found to have blood on them that was the same blood type as Livingston's.
That's true. That's the physical evidence Cronyn alluded to earlier. The defense position was that Jones' small samples of blood transferred to Jones' pants and boots as he walked through the field which had been already contaminated with blood from the victim. They argued that the actual killer would have blood all over his shirt, arms, and elsewhere. That would be someone like "Walt", Walt Sellers.

Jones is not the only person to have claimed seeing Walt covered in blood, and/or in possession of the victim's checks, but Jones is the only one the jurors would hear make that claim. Scott Christian testified to the grand jury that Walt Sellers tried to sell him credit cards and checks, and that Walt had blood splatters on his T-shirt, hands and forearms. James Richard King testified to the grand jury that he saw Walt Sellers in a bloody shirt early in 1986, when Walt was trying to sell checks. Douglas Wayne Daffern said he saw Sellers with credit cards and checks bearing the name Livingston.

Scott Christian would not testify at Jones' trial. As did Yelena Comalander, Scott Christian would refuse to testify, invoking his Fifth Amendment right against self-incrimination. The prosecutors were threatening him with prosecution for drug charges.

Neither James Richard King nor Douglas Wayne Daffern would even appear in court. Instead, they mysteriously disappeared before trial. (This reminds me of the convenient disappearance of Jamie Smith and Audrey Davis before The Trial of Cory Maye.)
Jones bought a pair of boots with a credit card in the name of Tammy Livingston, the night after Livingston was murdered.
Cronyn never makes clear whether the boots Jones purchased were the ones he was wearing when arrested, the ones that had a sample of blood too small to test.
Jones and another woman, Yelena Comalander, tried to buy groceries with a check that was traced to the account of Tammy and Russell Livingston.
And so ends Cronyn's summary, not with a bang but with a whimper.

When all was said and done, the jurors would convict Jones presumably on the basis of his confession, the eye-witness testimony, the blood on his pants, his fingerprint on the victim's car, and his attempted use of the victim's financial documents. The prosecution had plenty. The defense had only Jones' uncorroborated story that he got all the stuff from Walt and burned the field in partial payment thereof.

The jurors never heard corroboration from Yelena Comalander. She took the Fifth, in fear of prosecution for perjury. The defense attempted to introduce her grand jury testimony in her place, but the prosecution objected and the Court stood with the State.

The jurors never heard from Scott Christian who testified earlier that Walt Sellers was covered in blood as he tried to sell the victim's documents. Scott Christian took the Fifth and the Jones' prosecutors declined to waive prosecution of Christian.

The jurors never heard from James Richard King who testified earlier that Walt Sellers was covered in blood as he tried to sell the victim's documents. James Richard King mysteriously and conveniently disappeared before trial. The defense attempted to introduce his grand jury testimony in his place, but the prosecution objected and the Court stood by the State.

The jurors never heard from Douglas Wayne Daffern who testified earlier that Walt Sellers had been in possession of Tammy Livingston's checks. Douglas Wayne Daffern mysteriously and conveniently disappeared before trial. The defense attempted to introduce his grand jury testimony in his place, but the prosecution objected and the Court stood by the state.

Somehow, the jurors never learned of the conflict between the timeline of Jones confession and the actual timeline. It would have made no difference in any case.

The jurors never heard either from Terry Gravelle nor Robert Dean Miller. After Jones' convictions, Gravelle and Miller each served time with Walt Sellers, who as it turned out was also a low-life. Gravelle affirmed that Walt Sellers told him Jones was innocent and chuckled about his conviction. Walt explained that "there was a problem using the stolen checks or cards" so he gave them to Jones. Miller affirmed a similar conversation with Walt.

The appellate courts would be unmoved by the circumstances or flimsiness of Jones' confession. They would be similarly unmoved by the inability of the defense to introduce the testimony of three people who would corroborate Jones' testimony, or by the post-conviction affidavits of two reverse snitches. Nor would they command testing of potentially exculpatory DNA.

Oh! Did I fail to mention there was DNA? Well there was. Before Texas could execute Richard Wayne Jones, the case took a twist that will be of interest to those who have been following this blog. Rob Owen, the person primarily responsible for bringing Hank Skinner's case to the Supreme Court, became involved with Jones' appeal. (Rob Owen was also involved in the appeal of  Robert Nelson Drew.) Rob tried mightily to have DNA from the crime scene tested. He was particularly interested in having the rape kit tested. (This sounds so familiar.) The courts refused and Rob made his final appeal to the Governor.

This is where the case takes another interesting twist. The Governor at the time was George Bush, but Bush was out of state. Instead, the last minute appeal for DNA testing fell upon then Lieutenant Governor Rick Perry. That's right, the same Rick Perry who has refused to order testing of potentially exculpatory DNA in the Hank Skinner case.

It's been clear to me that Rick Perry owns the execution of Cameron Todd Willingham, and has been trying mightily to see that the investigation into that execution not move forward. It's also abundantly clear that Rick Perry will own the execution of Hank Skinner, should that take place. Now I learn that Rick Perry owns the execution of Richard Wayne Jones.

Amazing.

Finally, I present my Actual Innocence Scorecard for Richard Wayne Jones. I score him at 77. I believe it is three times as likely that Richard Wayne Jones was factually innocent as it is he was factually guilty.


If you read the post just prior to this one, and if you are honest with yourself, I suspect you are now surprised that I scored Jones so high, that I scored him much above zero. That's because I deceived you previously by withholding information. Perhaps now you'll trust me when I tell you to trust no one, to instead be a skeptical juror.

Thursday, September 16, 2010

The Slam Dunk Case of Richard Wayne Jones

In my search for the 54 innocent people I calculated Texas may have executed, I passed Richard Wayne Jones through my coarse filter for two reasons. First, he used his final breaths to declare his innocence.
"I want the victim's family to know that I didn't commit this crime. I didn't kill your loved one. Sharon Wilson, y'all convicted an innocent man and you know it. There are some lawyers hired that are gonna prove that, and I hope you can live with it. To my family and loved ones, I love you. Thank you for supporting me. Y'all stay strong. Warden, bring it on....".
Second, the folks at Northwestern had listed him a someone possibly innocent but certainly executed. I trust the folks at Northwestern so I allowed Jones 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, 0.1
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, 75
Robert Madden
Justin Lee May
Frank Basil McFarland
Charles Rector
Kenneth Ray Ransom
David Stoker, 73
Martin Vega
Richard Wayne Jones was executed on August 22, 2000 for the brutal murder and mutilation of Tammy Livingston. From the Clark Country Prosecutor, we find this summary.
Texas Attorney General John Cornyn offers the following information on Richard Wayne Jones who is scheduled to be executed after 6 p.m. on Tuesday, August 22nd. Richard Wayne Jones was convicted and sentenced to death for the February 1986 murder of Tammy Livingston in Hurst, Texas. Livingston was stabbed to death 17 times and then the area around her body was set on fire. 
Jones followed Livingston as she was leaving a Michael's store at about 7:30 p.m. As Livingston was backing out of a parking space, Jones ran to the back of her car, opened her car door and then forced himself into the driver's seat. Later that evening, between 9:20 and 9:45, a Fort Worth resident heard screams coming from a vacant property. At about 11:20 that same evening, the Fort Worth Fire Department responded to a grass fire in the same area where someone had heard screams. It was there that firefighters discovered the charred remains of Tammy Livingston. Authorities determined that Livingston had been stabbed 17 times in the face and neck.
The night after Livingston's murder, Jones bought a pair of boots with a credit card in the name of Tammy Livingston. Later that night, Jones and a woman tried to buy groceries at a Fort Worth Safeway with a check from the account of Tammy and Russell Livingston. The woman with Jones, Yelena Comalander, was arrested for trying to pass someone else's check. The next morning, Livingston's car was recovered from a parking lot in Fort Worth. Jones' left thumb print was found on the inside of the front window of the driver's side of the car. Police also found several of Livingston's belongings including her engagement ring and her inscribed wedding band, at an apartment that Yelena Comalander took them to. Police arrested Jones a short time later.
The morning after Jones was arrested, an eyewitness to Livingston's kidnapping from the Michael's parking lot picked Jones out of a police line-up. Physical evidence also linked Jones to Livingston's murder. Jones also signed a written statement, admitting to the kidnapping and murder of Tammy Livingston. Jones had been out of prison for less than five months when he committed this murder.
Jones signed a written statement admitting to kidnapping and murdering Tammy Livingston. Jones' thumb print was found inside the front window of Tammy Livingston's car. An eyewitness who saw Jones kidnap Livingston from the Michael's parking lot picked Jones out of a police line-up. A pair of jeans and a shirt Jones was wearing the night of Livingston's murder were found to have blood on them that was the same blood type as Livingston's. Jones bought a pair of boots with a credit card in the name of Tammy Livingston, the night after Livingston was murdered. Jones and another woman, Yelena Comalander, tried to buy groceries with a check that was traced to the account of Tammy and Russell Livingston.
And that’s about it. During his appeal, Jones argued the state's case was technically flawed, but basically agreed the evidence was sufficient to justify the verdict.
Richard Wayne Jones, appellant, was convicted by a jury of capital murder, specifically murder committed in the course of kidnapping and robbery. ... The jury answered the special issues in the affirmative and punishment was assessed at death. ... He has appealed alleging twenty-four points of error, but does not challenge the sufficiency of the evidence. We will affirm his conviction.
I won’t even present an Actual Innocence Scorecard for Richard Wayne Jones. Sometimes ...

Tuesday, September 14, 2010

On The Rate of Wrongful Conviction: Chapter 11.4

As I have mentioned many 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
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number
Chapter 5.4: The Defense Number
Chapter 9.5: The Inmate Number
Chapter 10.1: A Skeptical Juror Number
Chapter 11.1: A Skeptical Juror Number

As we draw near the end of this series, we return to another guess estimate. This one is based not on a survey of prosecutors, police, or judges. Instead it is based on a survey of commoners. You might find it an interesting read. It seems as if we commoners may be more savy than our protectors give us credit.


Chapter 11.4
The Common Man Number

One group of guessers has so far been overlooked. That group is the source of our juries, the American public. As you might recall, 50% of the prosecutors surveyed by Robert Ramsey guessed that our country’s wrongful conviction rate was less than 0.8%. In that same survey, police guessed the number to be less than 1.3% and judges guessed less than 1.9%.

Since 1999, those who conduct the Harris Poll have repeatedly asked the American public what they thought. More specifically, the pollsters asked the public to estimate the number of convicted murderers who were wrongfully convicted.  I quote from a summary of a March 2008 poll.
There is one issue almost all Americans agree on – 95 percent of U.S. adults say that sometimes innocent people are convicted of murder while only 5 percent believe that this never occurs. This is a number that has held steady since 1999. Among those who believe innocent people are sometimes convicted of murder, when asked how many they believe are innocent, the average is 12 out of 100 or 12 percent.
Apparently, 5% of the American public neither reads newspapers, watches television, nor has an internet account. Alternatively, 5% of our public consists of police and prosecutors who steadfastly refuse to acknowledge they might make an error.

Taking into account that 5%, the average estimate for the entire poll sample was 11.4%. That’s the percentage of people convicted of murder who are factually innocent, at least according to the best guess of Jane and Joe Q. Public. That number is surprisingly close to the 9.1% value I calculated for jury trials based on judge-jury agreement data. It’s even closer to the 10.1% value I calculated based on irreversibly-resolved capital murder cases. If the calculations just mentioned are correct, the commoner has far better insight into this serious social problem than do police, prosecutors, judges, and defense attorneys.

<<>>

Not surprisingly, the common-man estimates were strongly influenced by race. Whites, who comprise a disproportionately small percentage of those in prison, believe that 9% of those convicted of murder are wrongfully convicted. Blacks, on the other hand, are imprisoned at 6 times the rate of whites. They believe that 25% of those convicted of murder are wrongfully convicted. The trends are shown in the table and plot below.

Another striking number appears in the box enclosed at the bottom-right corner of the table. It  is an average estimated value of wrongful convictions for murder, weighted by the ratio of percentage-prison-population to percentage-general-population. That weighted average of 16.5% is nearly identical to the Inmate Survey number of 17.5%. The comparison suggests that those most impacted by wrongful convictions are best at estimating its frequency.

<<>>

Finally, consider if you will the following plot. It shows the relationship between estimates of wrongful conviction rates for murder and measures of prosecution / conviction errors for murder. I’ll detail the plot in the notes, but I want to focus here on the message. Those who are most confident we seldom convict the innocent are most prone to error. Police and prosecutors, for example, estimate that only 2% of our convictions are wrongful convictions; 22% of those they send to trial, however, are innocent (at least based on my judge-jury agreement analysis.) At the other extreme, the common man predicts a wrongful conviction rate six times greater, yet errs at one-third the rate.

Those who are most confident, are most likely to err. Those who are less confident, are less likely to err. Those who are the most directly impacted are most likely to perceive that we, as a society, have a serious problem.

Notes:
1. For the Harris Poll summary, see Regina A. Corso, Harris Poll #28, March 18, 2008.
http://www.harrisinteractive.com/vault/Harris-Interactive-Poll-Research-Over-Three-in-Five-Americans-Believe-in-Death-Penalty-2008-03.pdf

2. For the racial / ethnicity distribution of our general and prison populations, see Wikipedia
http://en.wikipedia.org/wiki/Race_and_crime_in_the_United_States

3. In the first plot, the estimated wrongful conviction rates for murder excluded those 5% of respondents who believe we have yet to wrongfully convict anyone of murder.

4. In the second plot, the estimated wrongful conviction rates are average numbers (mean values), not 50% numbers (modes) as I previously discussed in earlier chapters. While it is correct to use the mean numbers in the plot, the sense of the plot would have been little changed had I used some combination of mode and mean values for the estimated wrongful conviction rates.

5. In the second plot, the estimated wrongful conviction rates are for all crimes. The errors are murder related errors.

Hank Skinner Has a Date with The Supremes

The U.S. Supreme Court has announced it will hear the case of Hank Skinner v. Lynn Switzer just one month from today, on 13 October 2010. The question to be answered is:
May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?
Skinner's (not so) brief is here. Switzer's (not so) brief is here.  My (overly-simplified) brief is thus: Skinner argues justice masked as procedure; Switzer argues procedure masked as procedure.

Skinner argues "A holding that an access-to-evidence claim lies at the 'core' of habeas would indefensibly broaden the scope of the Great Writ," while Switzer argues "Skinner’s Claim ... Is Not Cognizable Under §1983."

Skinner argues "Requiring claims such as Mr. Skinner’s to be brought in habeas would create great difficulty in reconciling the habeas statute with ... varying procedures for DNA testing," while Switzer argues "Skinner’s Challenges Are Jurisdictionally Barred by the Rooker-Feldman Doctrine."

Skinner argues "Allowing post-conviction DNA testing claims ... would be true to the principles of separation of powers, comity, and stare decisis," while Switzer argues "Switzer Is Not the Appropriate Defendant for Skinner’s As-Applied Challenge."

And that is but an overly-simplified overview of the legal knot the Supremes must untangle.

If Skinner wins, he will still have a long road ahead of him before any possible new trial. 

If Skinner loses, he will have a short road ahead of him, one that culminates at the Texas death chamber.

If Skinner wins, some of the quarter million people we now have wrongfully incarcerated may have a new glimmer of hope.

If Skinner loses, those who claim to protect us will have even less reason to concern themselves with those those they wrongfully convict, incarcerate, and execute.

I hope Skinner wins.

Friday, September 10, 2010

The Drug War and Friendly Fire

Maybe the drug war would be a good idea if it targeted only the enemy, but as Pogo said "We have met the enemy and he is us." 

Now we have this:
Sheriffs in North Carolina want access to state computer records identifying anyone with prescriptions for powerful painkillers and other controlled substances.
The state sheriff's association pushed the idea Tuesday, saying the move would help them make drug arrests and curb a growing problem of prescription drug abuse.
"We can better go after those who are abusing the system," said Lee County Sheriff Tracy L. Carter.
We already have more people in prison, in both an absolute and per capita sense, than any country in the world, in large part because we treat public health issues as criminal matters. The results are not good. If you trust the results in On the Rate of Wrongful Conviction: Chapter 9.5, you can see that drugs account for nearly 1/3 of all wrongful convictions (32%). If instead you trust the all-trials table from Chapter 11.1, you can see that drugs account for nearly 1/3 of all wrongful convictions (31%).

(It's interesting that two so differently-derived numbers provide the same answer. Perhaps the answer is correct, or nearly so.)

Since we are, as I type, wrongfully incarcerating a quarter million of our fellow Americans, I argue that we are wrongfully incarcerating more than 80,000 people for violating laws that possibly shouldn't have been laws in the first place. Apparently, that number is insufficient for the law enforcement community of North Carolina.

I ask once again: have we reached the point where we have more to fear from those who would protect us than from those who would consciously do us harm? My guess is that Cory Maye would answer in the affirmative.