Saturday, May 5, 2012

The No Longer Impending Execution of Eric Robert

Eric Robert sits on death row awaiting (and hoping for) execution by the people of South Dakota. Last year he pleaded guilty to murder and asked to be sentenced to death. When granted an automatic appeal, he appealed the appeal. His execution has been stayed as he fights for his right to be executed.

A South Dakota inmate who acknowledged killing a state penitentiary guard in a failed escape attempt asked a judge on Wednesday to sentence him to death, saying his one regret is that he did not kill another officer and that he will kill again. 
Eric Robert, 49, pleaded guilty in September to killing Ronald "R.J." Johnson on April 12 – Johnson's birthday – in an attempt to sneak past other security. Robert waived his right to a jury trial and said he wanted to be put to death, but Second Circuit Judge Bradley Zell said the state still had to prove the death penalty is warranted. Robert had been serving an 80-year-sentence on a kidnapping conviction when he attempted to escape with Rodney Berget, 49. 
Robert told Zell during his pre-sentencing hearing that he was so full of anger and hungry for freedom on April 12 that he would have killed anyone who stood in his way. 
"Brad Zell, if you stood between me and the door of freedom, I would kill you," Robert said. 
Robert said the one regret he has from April 12 is that he did not bring the pipe with him to the gate to kill the officer who stopped him. Once he realized his plan was going to fail, Robert said he began climbing up the wall of the prison – not to escape but to try to reach for the rifle of an officer on the lookout. 
"I would have shot that weapon until it was empty," he said. 
Zell told Robert that wanting to die is not reason enough for the death penalty. 
"There are many people who want to die," Zell said, adding that that doesn't count as an aggravating factor. 
The judge must find at least one aggravating factor was present during the killing to sentence Robert to death. The state presented five factors during the three-day pre-sentencing hearing: the death of a correctional officer, the manner of death, where and why it occurred, and the defendants' criminal background. 
Robert said he was guilty of all five factors and offered a sixth one to the judge – stealing Johnson's uniform, which included his wallet with money inside. 
Lynette Johnson, Ronald Johnson's widow, broke down in tears and had to be escorted off the witness stand as she testified about how her life has been ruined because of Robert's actions on April 12. In their 34 years together, they spent a total of six nights apart, she said. 
"We weren't done," she said. "We weren't done living. He wasn't done living with me."
So terribly sad.

I oppose the execution of anyone who may be factually innocent of the crime for which they are to die. I all other cases, I stand mute.

In the case of Eric Robert, I stand mute.

Our Verdict in the Case of Massachusetts v. Cowans

In my last post, I summarized the case of Massachusetts v. Cowans. I told the readers how I would have voted had I been a jury, offered a poll for readers to indicate how they would have voted, and asked those who would vote Not Guilty to explain why via the comments.

The first six votes in were Guilty. Anonymous then cast a Not Guilty verdict and provided an explanation why. This launched some brief deliberations in the comment. Anonymous pointed out that there was no DNA evidence, that only the police officer had identified his assailant and did so only after two weeks, that others who should have been able to identify the defendant did not, and that the fingerprint evidence consisted of but one print on one glass.

I responded by pointing out that DNA was not generally available at the time of the case in question, that the police officer was a trained observer who testified to his absolute confidence in his eyewitness identification. I conceded that I had mentioned neither of these points in my post, so I grudgingly accepted responsibly for that. I asked Anonymous how far the State must go to prove guilt beyond a reasonable doubt. In the case at hand, the State had provided fingerprint evidence supported by the eyewitness testimony of a trained observer who had confronted the defendant face-to-face.

In light of the new evidence and my brilliant counter argument, Anonymous changed his vote to Guilty.

Anonymous 2 then chimed in with a Guilty vote and a twist. Anon 2 voted Guilty on all counts other than the armed robbery. Anon 2 pointed out that the only weapon in question was the police officer's weapon, which the defendant allegedly took during a struggle. He couldn't have had the gun at the time he robbed the policeman of the gun, hence no armed robbery. Not Guilty on the armed robbery.

Brilliant. I changed my vote on the armed robbery count to Not Guilty.

Via his insight, Anon 2 reminded us all that the State must prove guilt beyond a reasonable doubt for each count charged. The rest of us were simply too swept up in the overwhelming evidence of guilt on the primary charge to carefully consider the secondary charges.

Having learned my lesson, I raised the issue about the home invasion charge. The defendant had allegedly entered a private residence only after the young boy in the house had opened the door. The evidence was that the defendant pointed the gun towards the ceiling, never pointed it at anyone in the house, never threatened anyone in the house, and put the gun down when asked to do so by the mother. In the absence of a counter argument, I'll change my vote on the home invasion charge to Not Guilty.

After the first twelve votes, we had the requisite twelve Guilty votes. We had zero Not Guilty votes, given that Anon 1 had changed his vote via the comments. It's not clear where we ended up on the secondary charges of armed robbery and home invasion. I'll therefore declare a hung jury on those charges. As a juror, I am not allowed to make such a declaration. As a blogger, however, I am so empowered.

As skeptical jurors, we were slightly less harsh on the defendant than was the actual jury. The actual jurors, our surrogates, voted Guilty on all counts. Cowans was sentenced to 45 years.

We can rest easily now that we have performed our civic duty so carefully and so well. We have removed a dangerous felon from our streets. Our community is now a bit safer, at least until scumbag Cowans gets out on parole.

*** THE END ***

But wait!

That situation changed in 2004 when Stephan Cowans became the first – and thus far the only – person to be exonerated by DNA evidence for a wrongful conviction in which fingerprint evidence was a contributing factor. Cowans’s wrongful conviction in Boston in 1997 for the attempted murder of a police officer was based almost solely on eyewitness identification and latent print evidence. The Cowans case not only provided dramatic additional support for the already established proposition that wrongful conviction by fingerprint was possible, it also demonstrated why the exposure of such cases, when they do occur, is exceedingly unlikely. 
Stephan Cowans was convicted of attempted homicide for the non-fatal shooting of a police officer in 1997. It is not entirely clear how Cowans emerged as a suspect; it appears that his name was suggested during the police canvass as someone who might have sold a hat to the true perpetrator. But the tenuousness of the connection between Cowans and the crime changed dramatically when Cowans was implicated by a latent fingerprint. The print was recovered from a home that the perpetrator had invaded during flight. The perpetrator held a mother and a daughter hostage for around ten minutes and drank a glass of water before fleeing the home. A latent print was recovered from the water glass. 
Two Boston Police Department (“BPD”) latent print examiners, Dennis LeBlanc and Rosemary McLaughlin, testified that Stephan Cowans was the source of the latent print on the water glass. The victim, Officer Gary Gallagher, and an eyewitness to the shooting identified Cowans. The hostages, who spent far more time in the perpetrator’s company, failed to identify him. Two investigators hired by defense counsel reportedly also confirmed the latent print attribution. Cowans was convicted and sentenced to forty-five years in prison, which was later reduced to thirty years. 
Cowans worked biohazard duty in prison in order to save money for post-conviction DNA testing. Biological evidence had been recovered from the water glass, a hat left at the scene of the shooting, and a sweatshirt left at the invaded home. It is a testament to the evidentiary strength of latent print identification that the state opposed post-conviction DNA testing, partly because it failed to see how such evidence, even if found to be exclusionary, would prove Cowans’s innocence given the fingerprint evidence. 
After Cowans had served six years in prison, the New England Innocence Project (“NEIP”) persuaded the state to allow post-conviction DNA testing. The DNA analysis found that the same contributor had left biological evidence on all three items – the glass, the hat, and the sweatshirt – and that Cowans was not that contributor. The state re-examined the latent print evidence, concluded that Cowans was not the source of the latent print, joined NEIP’s motion for his immediate release, and apologized to Cowans. 
It is still not entirely clear what caused the latent print misattribution in the Cowans case. It was stated that Cowans’s name appeared on a ten-print card containing prints taken from the hostages (so-called “elimination prints”). It was suggested that this meant that the Cowans misattribution was not a “true” latent print error, but rather a mere “clerical error” involving the mislabeling of a card. But it has still not been adequately explained how an elimination ten-print card containing a victim’s fingerprints could have been labeled with the name of a suspect who was not developed as a suspect until several days after the crime, except through outright deliberate fabrication of evidence. 
Further investigation uncovered allegations that the Boston Police Department’s Latent Print Unit (“LPU”) was functioning as a “dumping ground” or “punishment duty” for troubled police officers. Much of the blame focused on Dennis LeBlanc, who, it was claimed, had “discovered his mistake” before trial “and concealed it all the way through trial.” The District Attorney even unsuccessfully sought a grand jury indictment against LeBlanc, apparently the only time such a sanction has been sought against a latent print examiner implicated in a misattribution. LeBlanc, for his part, blamed “the system,” telling reporters, “The system failed me. ... And the system failed Cowans.”
Holy Life-Changing Turn of Events, Batman!

We convicted an innocent man.