Tuesday, October 26, 2010

SCOTUS Reads The Skeptical Juror

Working with the resident jailhouse attorney, Byron Case petitioned the U.S. Supreme Court to issue a writ of certiorari. Recall from a previous post that certiorari is Latin (of course) meaning "to be more fully informed." Meanings change over time, but currently, here in the United States, a writ of certiorari is an instruction from a higher court to a lower court to hear a case. Typically it means the Supreme Court instructs a lower court to hear a case.

The issue in Byron Case's case was the admissability of a tacit admission used as evidence against him. Amidst a long haranging dithyramb during a surrepticiously recorded phone call, an embittered ex-girlfriend accused Byron of killing a common friend. Byron did not explicitly deny the charge, and in Missouri that counts as a tacit admission of guilt. The so-called tacit admission was instrumental in Byron's conviction and his resulting life sentence.

(Byron claimed he can't even remember the late night call, explaining he had strep throat and a high fever at the time. He introduced a medical report from the next day to confirm his point. An acoustic analysis of the phone call I conducted for the book shows that the transcript was falsified and the volume was manipulated on the girlfriend's side of the call.)

I addressed the issue of tacit admission in The Skeptical Juror and The Trial of Byron Case. Without my knowledge, Bryon included the segment from my book in his petition to the Supreme Court. While it's unlikely any of the nine justices read it, it's possible one of the clerks may have. Hence my claim that SCOTUS reads The Skeptical Juror.

I include the purloined segment below.
With respect to the tape, the appeals court agreed with the prosecution that the conversation constituted a tacit admission. The tape was therefore not excluded by hearsay rules.
A defendant makes a tacit admission of guilt when the defendant fails to respond to or significantly acquiesces in the import of an inculpatory statement by making an equivocal, ambivalent, or evasive response when the inculpatory statement was made in the presence and hearing of the accused, and was sufficiently direct, as would naturally call for a reply.
If someone asked you why you felt the need to kill John Kennedy, and you simply stared at them, that would clearly fit within Missouri’s definition of a tacit admission. You failed to respond. 
If instead of remaining silent you told the person to “Shut the fuck up,” that too would be a tacit admission. That exact response has already been judged as a tacit admission by the State of Missouri. “We shouldn’t talk about this” would also be a tacit admission, since that’s what Byron allegedly said. “Maybe I did, maybe I didn’t” would certainly be a tacit admission, since it’s equivocal. 
It’s difficult to determine how eloquent one might have to be to avoid tacitly admitting to the assassination. I’m guessing “Have a nice day” might be insufficient, since it’s ambivalent. “Bite me” is not much different than “Shut the fuck up.” “I don’t know what you’re talking about” might be ruled evasive, as could “I’ve got to be getting home.” 
I suggest something along the line of: “I did not kill John Kennedy, nor did I have any agent act in my stead, nor did I have any role whatsoever in his assassination, either before or afterwards, nor do I know of anyone who actually participated in or contemplated his assassination.” Think quickly though. If you try something such as “I’ll need to check with my attorney before responding to your statement,” that will almost certainly qualify as tacit admission in Missouri.
Byron and his jailhouse attorney wrestled with including the profane language as is or masking it. They decided to include it exactly as I wrote it. I included the profane language because it was in the court decision that established tacit admissions as case law in Missouri.

By comparison, the state of Texas refuses to this day to put the complete text of Cameron Todd Willingham's last words online, because Willingham used profane language just before they killed him. I find it sadly comical that the same state that straps its citizens to a gurney and pumps them full of lethal chemicals suddenly gets the vapors when it comes to printing coarse language.

Antonin Scalia's decision to consider Hank Skinner's petition for a writ of certiorari resulted in a stay of Hank's execution just 45 minutes before Texas pumped him full of chemicals. That's rare. The Supreme Court dismisses 99% of the petitions without comment.

In Byron's case, the Supreme Court dismissed his petition without comment on the first day of their new session. Another door closed on a wrongfully convicted man.

Byron and his jailhouse attorney have formally asked the Supreme Court to reconsider their rejection. The chance for success is slim, but when you are serving life for a crime you did not commit, you have to take the few chances available to you. Hopefully, the nine justices will someday soon indeed read The Skeptical Juror.

Monday, October 25, 2010

The Grainy Case of Kia Levoy Johnson

Three people claimed they knew the man on the grainy security camera video. A San Antonio police officer identified the robber by his distinctive clothing. Two others identified their long time friend / recent acquaintance as the man who shot and killed the store clerk. Coupled with a matching shoe print and a court-appointed attorney who met with his client for only three minutes before trial, those three video witnesses were more than enough to convict Kia Levoy Johnson of capital murder.

Throw in Kia's criminal record and the death penalty was a done deal. Add a pinch of rubber-stamp appellate system and a dollop of incurious Rick Perry, and Texas had another notch in its handle. At 6:18 PM on June 11, 2003, Kia Levoy Johnson would become the 305th person executed by Texas in the modern era.

Rick Perry's Attorney General, Greg Abbott, provided the following description of the crime and the evidence against Johnson.
In the early morning hours of Oct. 29, 1993, Kia Levoy Johnson entered a Stop 'N Go convenience store and approached the counter. When store clerk William Matthew Rains came to the counter, Johnson pulled a gun from his waistband and fired one shot. Rains fell on the floor. Johnson then demanded that Rains give him the register key. Rains threw a key to Johnson who attempted to use it to open the cash register. When the key broke, Johnson took the contents portion of the register and exited the store. For approximately 45 minutes after the robbery Rains attempted to reach a phone but was unable to do so because he had lost his motor skills. Rains' body was discovered in the early morning hours of Oct. 29, 1993, when another customer entered the Stop 'N Go. 
The details of the offense were captured on a store security camera. When the local news broadcast the video, a longtime friend identified Johnson and called Crime Stoppers. An officer of the San Antonio Police Department and another of Johnson's acquaintances also recognized Johnson from the videotape. The videotape was admitted into evidence and played for the jury.
Abbott’s summary of the three people who recognized Johnson on the video is at odds with most other reports. The witnesses are more frequently described as the uncle of Johnson’s common law wife (who admitted his loathing for Johnson while on the stand), a drug addict who had not seen Johnson in fifteen years, and a jailhouse snitch who had previously testified for Texas for reduced sentences. Apparently, the uncle must have been a San Antonio Police officer, though not involved in the case in any official capacity. Apparently Abbott chose to describe a drug addict that Johnson had not seen for fifteen years as “a longtime friend.” And apparently Abbott chose to describe a serial jailhouse snitch as an “acquaintance.”

Abbott apparently believed the case was sufficiently strong that he did not need to mention that a sneaker found in Johnson's closet matched a shoe print left on cash register receipt paper that had fallen on the convenience store floor. Perhaps Abbot felt that if he mentioned the discovery of the shoe, he would be obliged to mention that the police failed to find the murder weapon, or similar ammunition, or  even the cash register the shooter took from the store. The police found a shoe that allegedly matched a partial print, but they couldn't find a cash register, and they couldn't find the murder weapon.

Abbott’s summary does not mention that the FBI was unable to match Johnson’s photo with the person on the videotape. Nor did Abbott mention that the video was of such poor quality that  even Johnson's common-law uncle identified him by his clothing rather than his facial features.

The video, however, was clear enough to definitively show that the shooter placed his hands on the counter when he entered the store. And while the police were able to match a sneaker found in Johnson's closet with a partial shoe print left at the store, they were not able to match any prints from the counter with Johnson's fingers or palms.

To justify and expedite the killing of Kia Levoy Johnston, Texas Attorney General Greg Abbott mis-characterized the primary witnesses and excluded compelling exculpatory evidence. In Texas, that's close enough for government work.

Johnson would be the 65th person executed during Rick Perry's 903 days in office. For those of you undaunted by long division, that's one person every two weeks.


I've completed an Actual Innocence Scorecard for this case. I scored Johnson at 87. That means I estimate there is an 87% chance that Johnson was factually innocent compared to a 13% chance he was factually guilty.

Click on the scorecard to view it enlarged. Once the image appears, click again to view it in a still larger, more clear format.

I've included Johnson in the list of those executed by Texas that I have already scored. I include the current list below.

The addition of Kia Levoy Johnson brings the current total to 10.6 people wrongfully executed by Texas.

And counting.

Saturday, October 23, 2010

The Untold Story of Cameron Todd Willingham

Until now, no one has written of The Trial of Cameron Todd Willingham. Many have written about the discredited arson evidence used against him, but no one has written on the trial. Few writers have noted that the jurors maintain still today that they would have convicted Willingham even in the absence of the arson evidence.

There are multiple tragedies in this story. One of them is that had the jury deliberated more carefully and more skeptically, Willingham might not have been even convicted, much less executed.

The defense put on almost no case of its own. A babysitter testifed that Todd would never have done such a thing, An inmate was called to rebut the State's snitch, but was not allowed to testify. Other than those two less-than-impressive witnesses, Willingham's defense called no one to testify in his defense.

Despite the lack of an affirmative defense, and despite inadequate confrontation of the State's witnesses, the trial testimony still had buried within it an explanation of the fire that undermined the State's case. The jurors failed to see it. 

Will you, as a skeptical juror, see what they missed? 


Thank you for your patience while I was distracted by the writing The Skeptical Juror and The Trial of Cameron Todd Willingham. The book is now available on Kindle. It will soon be available in print, hopefully this week. Click the book cover at the upper right purchase from Amazon.

Regular blogging will resume on Monday. Learn why Kia Levoy Johnson may be another person wrongfully executed under the watchful eye of James Richard "Rick" Perry.

Tuesday, October 19, 2010

Death By Fire

The Skeptical Spouse / Editor / Publisher and I just watched the Frontline presentation of Death By Fire. It told the story of Cameron Todd Willingham's conviction and execution for an arson / murder that never happened. Well done, but short. They had only an hour. Anyone who would like to watch it online can do so here.

We finished proofing our book The Skeptical Juror and the Trial of Cameron Todd Willingham just hours earlier. We were watching the show with special interest to see if the book was solid or if it contained a factual error. We both decided the book was good to go.

It will be off to our printing firm and to Kindle first thing in the morning. The Skeptical Spouse / Editor / Publisher believes the Kindle version may be available as early as this weekend and the print version may be available as early as next Wednesday.

Our work is definitely not a rehash of the Frontline show. The show barely touched on the primary focus of the book. As a reader, you'll have a chance to see if you, as a juror, could have stopped the tragedy before it began. No fire experts were needed to see that the State's case was simply not possible.

So it looks as if we can turn out a book in four weeks from first keystroke to availability on Amazon. I probably won't be trying it again any time soon, though. It's pretty hard on everyone involved. Tomorrow, I can start digging through the backlog of things left undone.

Good night.

Learn From Rob

Brandi Grissom of The Texas Tribune has a good interview with Hank Skinner's attorney. You can pick up some tips on how you might prepare for your next case before the U.S. Supreme Court. You can learn a little constitutional law. You might even learn something about the death sentence.

It's quite a good interview, actually. View it on YouTube if you wish, or on the Texas Tribune site.

Monday, October 18, 2010

Three-fer Update on Cameron Todd Willingham

Item First:

Watch the Frontline show on Cameron Todd Willingham. It will be air on PBS tomorrow, October 19, at 9 PM (check local listings and all that.)

Preview Part I on YouTube.
Preview Part II on YouTube

Now Item Second:

I finished The Skeptical Juror and The Trial of Cameron Todd Willingham. It's been through a couple of edits, and I have another pass to make through it to incorporate some more changes I've already decided upon. With those qualifications, the book is complete from beginning to end. I challenged myself to write it in one week. It took me three. Though it took me three times as long as I had aimed for, I'm pleased with my effort and the result.

We plan to release the book to our printing firm on Wednesday. It would be foolish of me to turn it out before the Frontline show. I would rather discover an error just before sending the book out rather than just after. The book should be available on Kindle within a week or so, and hopefully available in print from Amazon in less than two weeks.

The book will tell the story as it's never been told before, and as it is unlikely to be told again. It tells the story from the perspective of the jury room. You will get to examine the evidence just as it was presented to the actual jury. You will have an opportunity to find the flaws in the evidence, even if you are not a fire expert. The flaws were there. The actual jury did not notice them. A skeptical jury might have. I argue that not only should Willingham never have been executed, I argue he should not have been convicted.

Now Item Third:

I present this article from AP reporter Jeff Carlton. I've certainly seen his name around as I've been working on the Willingham book. This article is about the behavior of Rick Perry's hand-picked chairman for the Texas Forensic Science Commission that is to look into, among other cases, the case of Cameron Todd Willingham. Sometimes, as in this case, it is simply best to allow those you disrespect to dig their own graves.
A Texas prosecutor accused of bias for describing an executed man as a "guilty monster" defended his comments Friday, while his colleagues on a commission investigating the case said he might have jeopardized the integrity of their inquiry.
Williamson County District Attorney John Bradley said lawyers trying to clear Cameron Todd Willingham's name are using the case to further their effort to abolish the death penalty. He also argued that he has a First Amendment right to state his opinion.
"We are being used, and we should recognize that," Bradley said. "When do we get to respond to those lies? Who is going to correct the record?"
Willingham was convicted in 1992 of capital murder in the deaths of his three daughters and executed in 2004.
Bradley chairs the Texas Forensic Science Commission, which is investigating whether fire investigators committed professional misconduct in determining arson caused the 1991 Corsicana house fire that killed Willingham's daughters. At least nine fire experts have said the fire was an accident, not arson.
Other commission members said Bradley's remarks to The Associated Press, in which he described Willingham as a "guilty monster," raise questions about the impartiality and integrity of their inquiry.
"There is a difference between correcting the record and making the type of statement we are talking about," said Sarah Kerrigan, the laboratory director at the Sam Houston State regional crime lab.
But Bradley then referred to the Innocence Project's effort to clear Willingham as "politics and a circus sideshow."
"Texans deserve to have a prosecutor's voice included in the discussion of forensic science, a voice that can include concern for the victims of crime and not just the perpetrators of crime," said Bradley, who was appointed to the chairmanship last year by Gov. Rick Perry.
Stephen Saloom, the policy director of the New York-based Innocence Project, said Bradley shows "a critically important lack of objectivity" in his approach to Willingham.
"His job here is not to be the DA and the friend of the governor," Saloom said.
Bradley, who raised his voice repeatedly, dismissed Saloom as a "New York lawyer" making "personal attacks rather than legal arguments."
Bradley's leadership has been questioned since last year, when the governor sacked three members of the forensic commission just days before it was to review reports that cast doubt on the arson finding. Perry installed Bradley, a conservative ally, as the new chairman. Bradley canceled the subsequent meeting and since has sought to close the inquiry.
On Thursday, two fire experts testified at a special court of inquiry hearing unrelated to the forensic panel's inquiry, saying the Willingham fire was an accident. The judge overseeing that hearing has the power to declare Willingham innocent.
An Austin appeals court, however, granted an emergency stay that will prevent the judge from ruling for at least one week and could end the proceeding altogether.
If the judge clears Willingham, it would mark the first time an official in the nation's most active death penalty state has formally declared that someone was wrongfully executed.
The commission took no action Friday on Willingham. However, members are trying to arrange a November meeting that would hear live testimony from fire experts who have studied the case. Bradley continued to criticize the effort to clear Willingham after the meeting.
"I think it's pretty ridiculous to have this court of inquiry at the same time we're doing this," Bradley told reporters. "I think the public can see it for the sham that it is."
Click here to see Rick Perry's reaction on how things are working out with respect to keeping the Willingham case under wraps.

Saturday, October 16, 2010

Off Topic: Take Me Out

All wrongful conviction work and no play makes Jack a jaded and bitter boy. Though I'm buried much of my time studying and writing of crime, tragedy, and injustice, I try to not lose sight of all that is wonderful.  Part of the wonder is that people are endlessly inventive. I am really impressed by people who can do things well.

This is a staged bit by the group Atomic Tom. The skeptical among you can just smile at the opening text explaining that their instruments were stolen and they were forced to improvise. The result is nonetheless wonderous. I appreciate the video as much for what it implies as for the music.

Think about it. The group is just a few iPhones away from being a true cyborg band. It won't be long before such a performance will be possible without the external devices.

For those who wish to view it on YouTube, please feel free. Others of you who just can't bear to separate from this blog, the embed follows.

Clueless in Texas

From DallasNews.com
AUSTIN – Members of the Texas Forensic Science Commission criticized their leader on Friday for calling Cameron Todd Willingham "a guilty monster" while they are still investigating the arson case that led to his execution.
Chairman John Bradley, appointed by Gov. Rick Perry last year, nevertheless defended his statement, saying it was his First Amendment right.

John Bradley should step down. He won't do so.

Rick Perry should replace John Bradley with a commissioner who will be more objective. He won't do that.

John Bradley and Rick Perry hope to keep the truth from coming out. They're too late. The cat is already out of the bag. They're now trying to convince you it wasn't a cat.

I don't dispute Bradley's First Amendment right to free speech. He is clueless to mention it, however, when the commission he chairs is charged with determining whether Cameron Todd Willingham ever received his right to a fair trial. John Bradley might want to keep in mind an even more fundamental right.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Thursday, October 14, 2010

Fear and Loathing in Las Texas

Rick Perry loathes Cameron Todd Willingham:
"Willingham was a monster. This was a guy who murdered his three children, who tried to beat his wife into abortion."

"At the end of this, I think what you will find, that an absolute monster who killed his own kids and the science is going to be there to back it up."

"And I think at the end of the day, this is what Texans will see and agree with, that this was a very, very bad man who killed his kids."
Rick Perry and many of the Texas powers-that-be fear Cameron Todd Willingham, now more than ever, though they killed him more than six years ago. They have been working mightly to eviscerate the Texas Forensic Science Commission for fear it might describe the arson science associated with the Willingham trial to be crapalicious.

Today, Navarro County DA R. Lowell Thompson ran crying (not literally) from the District Judge Charlie Baird's courtroom to tell on him. While choking back the tears (not literally), R. Lowell told the 3rd Court of Appeals that Judge Baird was going to (gasp!) allow testimony in a Court of Inquiry regarding the possible guilt or innocence of Cameron Todd Willingham. The 3rd said "Stop it."

From The Houston Chronicle:
In an emergency stay, the 3rd Court of Appeals ordered state District Judge Charlie Baird not to rule in the case of Cameron Todd Willingham, executed in 2004 for the murder of his three young children. Innocence Project lawyers, who are seeking to clear Willingham's name, have until Oct. 22 to respond.

The 3rd Court's ruling was prompted by a petition by Navarro County District Attorney R. Lowell Thompson, who earlier had failed in persuading Baird to recuse himself. Thompson contended Baird had not followed state law governing such hearings.

Earlier Thursday, lawyers and expert witnesses told Baird that bogus science and a career criminal's courtroom lies sent the 36-year-old auto mechanic to his execution.

As Willingham's mother and cousin stiffly sat on the courtroom's front bench, fire experts Gerald Hurst and John Lentini testified that not only was a fire inspector's testimony in Willingham's trial based on bad science but that his interpretations were "totally off the wall."

Thursday's testimony came in a court of inquiry one day before the Texas Forensic Science Commission was set to hold a meeting in Austin. Willingham's case is on today's commission agenda.

"Every shred of evidence points to his innocence," said former Gov. Mark White, a member of the Innocence Project's legal team.

White called the series of legal events leading to Willingham's execution "a failure of the system."

White excoriated people with responsibility for the manner in which a critical review of arson investigators' testimony was handled in the days leading to the execution.

Hurst testified that his report was submitted four days before Willingham was to be put to death, but a fax introduced as evidence showed that Gov. Rick Perry got the report little more than a hour before the lethal drugs were administered.

"There were no indications of arson," Hurst said in explaining how assistant state Fire Marshal Manuel Vasquez misconstrued evidence.

Lentini, who with four other fire experts also reviewed the investigation, said that all 20 of the indicators Vasquez cited as evidence of arson were bogus.

A San Antonio lawyer, Gerald Goldstein, another member of the Innocence Project team, told Baird that "jailhouse snitch" Johnny Webb twice recanted his earlier trial testimony that Willingham had confessed to killing his children.

Tracing Webb's criminal career to 1987, Goldstein called the man "a cornucopia of crime."

Prosecutors bought Webb's testimony, Goldstein charged, by downgrading an aggravating robbery sentence and arranging an early parole.

Webb first submitted a handwritten motion recanting his testimony in March 2000, Goldstein said. But authorities never provided it to Willingham's appeals lawyer.

"I can't think of a remedy to overcome the harm that's been done," White said in concluding the Innocence Project presentation. "It's a signal to the court, to the leaders of the state, to the Legislature, that it's time for a change in the way we hand out these sentences."
Jailhouse snitch Johnny Webb makes an early appearance in The Skeptical Juror and The Trial of Cameron Todd Willingham, scheduled for release as soon as I can get my fingers to do my bidding. For now, I'll provide a few actual questions and answers from his testimony. Keep in mind the comment  from just above that "Prosecutors bought Webb's testimony ... by downgrading an aggravating robbery sentence and arranging an early parole." Keep in mind as well that Johnny Webb had a bit of a drug problem.
“How old are you, Johnny?” >> Twenty-two.

“You have had a rather extensive criminal history, have you not?” >> Yes, sir, I have.
“You've been charged and convicted one time or another for stealing a car, is that right?” >> Yes.
“Of delivery of marijuana?” >> Yes, sir.
“Theft?” >> Yes, sir.
“Forgery?” >> Yes, sir.
“And of burglary, in addition to the robbery, is that right?” >> Yes, sir.
“Johnny, what is your problem as far as not being able to stay out of trouble?” >> Drugs.
“I take it you are off drugs now.” >> Yes, I am, except for the medication.
“Okay. You have any trouble with mental impairment or anything like that, Johnny?” >> Not always.
Then Johnny Webb is asked to identify the defendant.
“Is that the same Todd Willingham that is present here in this courtroom today?” >> Yes, it is.
“Is he here seated at the counsel table with his defense attorneys?” >> Do what?
Later he is asked if his testimony has been purchased.
“Johnny, have I ever promised you anything in return for your testimony in this case?” >> No, sir, you haven't.
“As a matter of fact, I told you there is nothing I can do for you.” >> You said there was nothing that no one can do for me.
Johnny Webb was the prosecution's lead witness in the trial of Cameron Todd Willingham. As a skeptical juror, would you have believed the prosecution when they had a jailhouse snitch tell you he would receive no payoff for his testimony? Would you begin to doubt the prosecution case immediately?

Friday Morning Update:
I've purloined two video news reports from yesterday's proceedings. If you prefer, you can view them directly from YouTube here and here.

Wednesday, October 13, 2010

Skinner, Scalia, and SCOTUS

Hank Skinner had his say before the Supreme Court of the United States today. At least his attorney Rob Owen did. The Washington Times has the only article I found online. Here's the takeaway.
The defense wants to test additional evidence that could determine whether Ms. Busby was sexually assaulted and, if so, by whom. They also want testing done on two knives that his lawyers say were likely used to kill the two sons.
State courts in Texas have rejected Skinner's request, ruling his case doesn't meet the requirements of the state's laws regarding post-conviction DNA testing.
Skinner's lawyers say that's a violation of his constitutional rights and want the federal courts to require testing of the evidence. The state counters that Skinner wants to create a system in which federal courts serve "as appellate tribunals second-guessing the decisions of state courts."
The justices Wednesday seemed concerned about that possibility as Justice Antonin Scalia noted, "You had the opportunity to raise this in the state court, and now you are retrying what the state court did decide."
Justice Sonia Sotomayor was particularly sharp in her questioning of Skinner's lawyer, Robert C. Owen.
"Mr. Owen, I know I am pushing you," she said at one point, "but I really would like a clear statement of what the procedural due-process violation which you are claiming occurred here is?"
"Your Honor, our claim is that in its construction of the statute in the Texas Court of Criminal Appeals [the court] construed the statute to completely foreclose any prisoner who could have sought DNA testing prior to trial but did not from seeking testing under the post-conviction statute," he said. "That speaks too broadly."
While the justices expressed some skepticism of Mr. Owen's argument and the role of federal courts in the case, they also appeared cautious not to dismiss Skinner's claims out of hand.
"We've never had a case like this and it's conceivable to me that we have to expand [on previous rulings]," Justice Scalia said.
Recall that it was Scalia who halted Skinner's execution 45 minutes before it was too late. Recall also that I have mocked him for his predicted wrongful conviction rate of 0.027%. Recall finally, his famous words.
It should be noted at the outset that the dissent does not discuss a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.
I'm sure those words are ringing in his ears. I'm sure also he's aware of the impending publication of The Skeptical Juror and The Trial of Cameron Todd Willingham. I'm sure finally he's aware that I have already FACTUALLY EXONERATED! Hank Skinner.

I have no idea when they might make their ruling. In all seriousness, I hope they decide wisely.

Thursday Morning Update:
Here's a more informative article on yesterday's hearing. According to that report, SCOTUS could hand down its ruling any time between December and March.

Thursday Afternoon Update:
Here's a still better explanation from The Texas Tribune.
In briefs filed before oral arguments on Wednesday, Skinner’s lawyers argued that his lawsuit should proceed because the DNA testing he seeks would not necessarily result in the overturning of his sentence. If the high court allows Skinner’s case to proceed, a lower federal court would decide whether to allow the testing — and even if that were to happen, there’s no guarantee that the DNA test results would be exculpatory. If they were, Skinner would then have to go through another legal process to be exonerated. “It does not necessarily imply … the conviction is lawfully invalid,” Owen told the justices. The way the Texas Court of Criminal Appeals interpreted the state post-conviction DNA law, Owen says, would bar anyone who didn’t have evidence tested at trial from doing so subsequently, and that violates due process.
Coleman, Switzer's attorney, argued in his brief that Skinner’s request must be a habeas proceeding because it ultimately seeks to undo his death sentence. Under Texas post-conviction DNA testing law, he argued, Skinner cannot reject testing at his original trial — a legal strategy meant to protect the defendant at the time — and then later claim he was deprived of a right to analyze the evidence. (Skinner has claimed that his original trial lawyer declined the tests against his wishes.) Allowing a federal court to reverse state court denials of the DNA testing would make the federal courts the overseers of state DNA laws — a situation that Congress has been careful to avoid, Coleman argued, by allowing states to decide their own post-conviction DNA testing laws. Skinner should not be able to sue Switzer to get the DNA, he said, because the DA is simply carrying out the law passed by the Texas Legislature.
In the courtroom, Justice Antonin Scalia questioned whether the high court ought to intervene in the Texas courts’ interpretation of state DNA testing laws. “It's up to them how they want to interpret it. We don't reinterpret state statutes because the state Supreme Court interpreted it strangely,” he told Skinner’s attorney. And the justices pressed attorneys on both sides to specify what criteria ought to be used to differentiate a habeas corpus case from a "1983" civil rights case if the eventual result of both is to alter the conviction. The question in the Skinner case presents something of a Catch-22, Justice Stephen Breyer pointed out. “He thinks [the DNA is] going to be exculpatory. He doesn’t know that until he gets it,” Breyer said. “Getting the DNA does not necessarily spell speedier release; it all depends on what that DNA shows.”
The attorneys general of nearly two-dozen states, including Texas, Oklahoma and Colorado, submitted a brief supporting Gray County DA Switzer in the Skinner case. They argue that if the court were to allow Skinner to seek a federal court’s approval for DNA testing, it would undermine post-conviction DNA laws in 48 states. “Sound principles of federalism and judicial restraint demand that this Court reject Skinner’s invitation,” the attorneys general wrote. A ruling in Skinner’s favor, they said, would also invite hundreds of inmates to file similar litigation, overtaxing scarce state funds. But Owen said that was unlikely to happen: In states that do allow civil rights lawsuits for those seeking DNA evidence, he argued, inmates have not flooded the courts with lawsuits. “It’s going to be a safety valve for highly unusual cases like our case,” he said.
Skinner’s daughter, Natalie Skinner, and his wife, Sandrine Ageorges-Skinner, were among the observers at the proceedings Wednesday. Outside the court, Natalie, with tears in her eyes, remembered the relief she felt in March when the court spared her father’s life at the last minute and agreed to take up his case. “I’m just happy for the opportunity,” she said. “But it’s not about how I feel. It’s about the legal issues of the case.”

Monday, October 11, 2010

Willingham, Skinner, Perry and my Fingertips

I missed the Sunday night football game. I'm not sure I missed anything really. It wasn't an exciting matchup and I still don't know who won.

Oh, yeah. And I haven't finished The Skeptical Juror and the Trial of Cameron Todd Willingham. I had predicted I might finish by kickoff. I also conceded I might run a few days late. I'm now predicting I will run a few days late. It's not that I couldn't have had the words on paper, metaphorically speaking. My problem is that they weren't the right words, and they weren't in the right order.

The book is still growing within me, expressing itself through my fingertips in stuttering text. Sometimes, unfortunately, those fingertips replace sentences, and paragraphs, and even entire blocks of text. Yesterday, they moved the Interlude to the Postlude. Does that make any sense?

My fingertips replace those old words with something I have never read before, something no one has ever read before. Each time, I'm mightily impressed with the results, but my fingertips never seem to be. They keep going back and changing everything, and I can't get them to stop.

I have a chapter and a half to finish, and some notes to write, but my fingertips won't cooperate. And the world moves on without me.

This Wednesday, the United States Supreme Court will listen to Hank Skinner's plea that he be allowed access to DNA evidence that might exonerate him. Given that the people of Texas wish to strap him to a gurney and inject lethal chemicals into his arm, I think it is an entirely reasonable request. Others, however, believe he is simply trying "to game the system."

This Thursday, a Court of Inquiry will continue trying to look into the case of Cameron Todd Willingham. Navarro County will ask for a new judge. I believe they are simply tyring "to game the system."

Next Tuesday, Frontline will air its piece on the case of Cameron Todd Willingham. A lot of people will be watching, and some of them would like to learn more about the case.

On the second day of next month, the people of Texas will elect their next governor. I hope that it will not once again be Rick Perry. With respect to that particular election, I am a single-issue guy: Rick Perry is willing to put potentially innocent people to death. For that, I believe he must be removed from office.

Perry ignored the affidavit of this country's foremost fire investigator. The affidavit made crystal clear that the evidence used to convict Cameron Todd Willingham was simply wrong. I suspect that neither Perry nor his hand-picked Board of Pardons and Paroles even bothered to read the affidavit. They gave no hint that they had done so.

With respect to the Willingham case, Rick Perry made a horrible, avoidable mistake that should cost him his political career. It cost Willingham his life. Now Rick Perry is compounding that mistake. He refuses to allow anyone to examine the DNA evidence that might prove Skinner either guilty or innocent.

Amidst all this, I cannot get my fingertips to do my bidding.

Wednesday, October 6, 2010

News Flash #5 Regarding Cameron Todd Willingham

In the movie Bananas, Woody Allen (aka Fielding Mellish) manages to get  himself involved in overthrowing the Batista-like government of San Marcos. The new regime immediately begins executing the leaders of the previous regime, in assembly line fashion. The charges are read, the prisoner is asked how he pleads, is tied to a post, and shot. (It's kind of like Rick Perry's vision of heaven.) We see the entire case of one prisoner unfold before us.
Q. "You are accused of killing over a thousand people in your term of office... of torturing hundreds of women and children. How do you plead?"
A. Guilty... with an explanation.
Those of you who have been monitoring this site hourly to see if I have finally gotten around to publishing anything other than a fluff piece may have noticed that I haven't been posting. To that charge, I plead Guilty, with an explanation.

In News Flash #2 Regarding Cameron Todd Willingham, I announced that I had found the transcripts of the case, and I was going to make Willingham the subject of my third book in the series, and I would have the book complete some time next year.

In this News Flash Regarding Cameron Todd Willingham, I wish to annouce I now hope to complete the book somewhat sooner. I now hope to have the book finished before the next Sunday Night Football game. I may not make it, but I'll be finished much closer to Faith Hill's Sunday Night Football theme song than Guy Lombardo's Auld Lang Syne.

It seemed to me that things were heating up with respect to the Willingham case, and getting the book out next year might make it a day late and a dollar short. So I secretly began writing at a furious pace, to see if I could complete it in a week. I started off pretty fast, but slowed considerably as the lack of sleep caught up with me. I've now settled into a somewhat more moderate, more sustainable, but still aggressive routine, and I'm now satisfied I can turn out a good product by kickoff. Even if I miss by a day or two, I will have written an entire book in around two weeks time.

Then I'll turn it over to my editor / publisher (aka The Skeptical Spouse) and hold my breath. If she tells me it's not good enough, then I'll take it back and do what I need to do to fix it. Anyone can turn out a crappy book in two weeks. (Actually, most people couldn't write even a crappy book in two weeks, but you get my point.)

Assuming the book passes muster, and that's far from a given, then my publisher has agreed to expedite things on her end. The book will go to our printer the next day (cover design is already complete), and should appear on Amazon a few weeks after that. The Kindle edition will appear even more quickly, perhaps some day next week.

I've had to put almost everything else on hold to make this happen, so I'm falling behind on everything else, including posting here. I'm sure you'll understand, now that I've take the time to explain.

And in all seriousness, I hope The Skeptical Juror and The Trial of Cameron Todd Willingham does something to help with the terrible problem of wrongful conviction in our country.

News Flash #4 Regarding Cameron Todd Willingham

Judge Charlie Baird started the Cameron Todd Willingham hearing today as scheduled, but soon recessed until the 14th. On that day, he will hear arguments regarding Navarro County's motion that he recuse himself. It should be interesting. I'm guessing Rick Perry would be ecstatic to have the hearing delayed until after the election. I suspect those who believe Willingham to have been wrongfully executed will be disappointed at any delay.  We'll just have to wait.

So here's the link, and here's the new modified calendar.  I've added an item based on feedback from the teeming masses who read this blog. I've also added the date of the gubernatorial election.

13 Oct -- US Supreme Court to hear case of Hank Skinner
14 Oct -- Court of Inquiry opens in case of Cameron Todd Willingham
19 Oct -- Frontline airs show re case of Cameron Todd Willingham
30 Oct -- 11th Annual March to Abolish the Death Penalty (State Capitol, 2PM)
02 Nov -- Perry v. White (Perry +5 as of this post)
08 Nov -- Judge Fine to hear motions on constitutionality of the death penalty