On The Rate of Wrongful Conviction: Chapter 0.5

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

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

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

Chapter 0.5
The Huff Number

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

Huff didn’t just guess at a number, as Joshua Marquis would do twenty years later. Huff asked other people to guess for him. He asked each of his survey participants to select one of four answers:

     Never
     Less than 1%
     1 to 5%
     6 to 10%

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

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

Huff distilled the results into a single number of 0.5 percent.

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

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

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

Thus, if these apparently conservative estimates are reasonable, we are facing an interesting dilemma: A high volume of prosecutions, even if 99.5% accurate when guilty verdicts are rendered, can still generate about 10,000 erroneous convictions for index crimes in a single year. And this figure does not including [sic] the many erroneous convictions that occur in cases involving crimes not in the index; when these are added to the 10,000 “index false positives,” the result is even more sobering.

Huff was a pioneer. He was the first to make an effort to quantify the rate of wrongful conviction. His number though is probably low, for several reasons.

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

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

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

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

Notes:

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

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

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

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

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

Hank Skinner: Hell Hole News #25

It's pretty easy for me to sit at home and respond casually, as time permits, to Lynn Switzer's public pronouncements on why Hank Skinner should not be allowed to have all potentially-probative DNA tested before Texas executes him. So far I've posted only two of four responses that I claimed I would post, though nearly five weeks have already passed. I'm discomforted by that, as I would be discomforted by ignoring other demands on my time. For each of us, our time is finite, and it should therefore be precious. 

While it's easy for me to be casual, flippant, and lackadasical, it must be an entirely different matter being patient while sitting on death row. Precious few people have come within minutes of being executed for a crime they did not commit, surviving due to the intervention of a Supreme Court jurist not known for such intervention, and then being unable to respond in timely fashion when the State argues you have no valid basis for defending yourself.

Hank Skinner has now responded, as we all knew he would. He has published his repsonse in his 25th edition of Hell Hole News. I have placed a copy on Scribd, a document management service. You can view and download Hank's response here.

Two aspects of Hank's response stand out for me, though neither is a surprise. First, the response is thorough. Hank understands his case as well as anyone, and he has never been shy about sharing that information. Second, Hank seems even angrier in this edition than he has been in the previous 24. While most of his response focuses on the issues, his anger jumps out on more than a few occasions.

Comer sold me out.

No one is “gaming the system” Lynn Switzer. But your lying ass is attempting to game the public at large and the citizens of Gray County with your subterfuge and misdirection.

What D.A., what true servant of the citizenry and taxpayer, would take such an illogical, asinine stance when all three of your predecessors in office, including Mann himself before he died, as well as the medical examiner who worked the case, three lead detectives and the first officer on the scene have all publicly stated that this evidence needs to be tested? You, woman, are a sick walking joke.

This case has “dragged on for years” only because of the State’s never ending delays, subterfuge, lies, stalling and resistance to allowing the testing. They could’ve opted to put an end to this at any time by simply testing the evidence! Do not allow Lynn Switzer and her ilk to mislead you as she has others.

Lynn Switzer has something to hide regarding this evidence and these subterfugial arguments are merely designed to protect their illegal secrets.

Lynn Switzer has something to hide. Time will bear that out, mark my words on it.

I agree with Hank on the points made above, though I may have stated my argument in a slightly different manner. On the other hand, I type from an easy chair in my living room. Hank writes from somewhat less comfortable environs.

I agree that Harold "Fiscal Foibles" Comer did a less than stellar job defending Hank Skinner. (That was the second part of my ever-impending four-part response to Lynn Switzer's response to the Supreme Court's response to Hank Skinner's petition for a writ of certiorari. See Harold Comer: The Gift That Keeps on Giving)

I agree that Lynn Switzer was somewhat less than completely honest in her public response to the Supreme Court's ruling. (That will be the third part of my ...)

I agree that the State of Texas must share the responsibility for the delay in executing Hank Skinner. It's not entirely Hank's fault that he still breathes. (That will be part four.)

I agree that the State of Texas has been less than completely forthcoming in all matters related to Hank Skinner. (In fact, I will be arguing that Texas not only knows Hank Skinner did not commit the crime, they know who did. That will be part five of my four-part response. The thought has been rolling around inside me for a while, and I guess it's getting close to bursting forth, like that gruesome meal time scene from Alien. [Warning: Not suitable for the faint of heart!])

So for now, read Hank Skinner's Hell Hole News #25. Soon, someday, perhaps in the distant future, read the remainder of my response.

Words That Inspire ...

... me at least

I previously offered the words of Bono (U2 not Sonny) as inspirational. Now I offer the words of Jeff Bezos, founder of Amazon (the company not the rain forest.) I have a particularly found place in my heart for Bezos, since his company makes possible much of what we are trying to do with The Skeptical Juror. We are on pace to write and publish five books in this, our first, year. (The Trial of Byron Case is out. The Trial of Cory Maye will be out within a month. The Trial of Susn B. Anthony is nearly done. The monograph On The Rate of Wrongful Convictions is underway. Book 5 ... we'll get back to you on that one.) Without Amazon, our ability to distribute our  printed work would be non-existent. If we fail, it won't be Jeff's fault.

I offer his words not because our small company benefits from his vision and his passion, but because they are good words. Sometimes, when circumstances are a bit frightening, inspirational words are good to hear.

"We are What We Choose"
Baccaluareat remarks by Jeff Bezos, as delivered to the Princeton Class of 2010

May 30, 2010

As a kid, I spent my summers with my grandparents on their ranch in Texas. I helped fix windmills, vaccinate cattle, and do other chores. We also watched soap operas every afternoon, especially "Days of our Lives." My grandparents belonged to a Caravan Club, a group of Airstream trailer owners who travel together around the U.S. and Canada. And every few summers, we'd join the caravan. We'd hitch up the Airstream trailer to my grandfather's car, and off we'd go, in a line with 300 other Airstream adventurers. I loved and worshipped my grandparents and I really looked forward to these trips. On one particular trip, I was about 10 years old. I was rolling around in the big bench seat in the back of the car. My grandfather was driving. And my grandmother had the passenger seat. She smoked throughout these trips, and I hated the smell.

At that age, I'd take any excuse to make estimates and do minor arithmetic. I'd calculate our gas mileage -- figure out useless statistics on things like grocery spending. I'd been hearing an ad campaign about smoking. I can't remember the details, but basically the ad said, every puff of a cigarette takes some number of minutes off of your life: I think it might have been two minutes per puff. At any rate, I decided to do the math for my grandmother. I estimated the number of cigarettes per days, estimated the number of puffs per cigarette and so on. When I was satisfied that I'd come up with a reasonable number, I poked my head into the front of the car, tapped my grandmother on the shoulder, and proudly proclaimed, "At two minutes per puff, you've taken nine years off your life!"

I have a vivid memory of what happened, and it was not what I expected. I expected to be applauded for my cleverness and arithmetic skills. "Jeff, you're so smart. You had to have made some tricky estimates, figure out the number of minutes in a year and do some division." That's not what happened. Instead, my grandmother burst into tears. I sat in the backseat and did not know what to do. While my grandmother sat crying, my grandfather, who had been driving in silence, pulled over onto the shoulder of the highway. He got out of the car and came around and opened my door and waited for me to follow. Was I in trouble? My grandfather was a highly intelligent, quiet man. He had never said a harsh word to me, and maybe this was to be the first time? Or maybe he would ask that I get back in the car and apologize to my grandmother. I had no experience in this realm with my grandparents and no way to gauge what the consequences might be. We stopped beside the trailer. My grandfather looked at me, and after a bit of silence, he gently and calmly said, "Jeff, one day you'll understand that it's harder to be kind than clever."

What I want to talk to you about today is the difference between gifts and choices. Cleverness is a gift, kindness is a choice. Gifts are easy -- they're given after all. Choices can be hard. You can seduce yourself with your gifts if you're not careful, and if you do, it'll probably be to the detriment of your choices.

This is a group with many gifts. I'm sure one of your gifts is the gift of a smart and capable brain. I'm confident that's the case because admission is competitive and if there weren't some signs that you're clever, the dean of admission wouldn't have let you in.

Your smarts will come in handy because you will travel in a land of marvels. We humans -- plodding as we are -- will astonish ourselves. We'll invent ways to generate clean energy and a lot of it. Atom by atom, we'll assemble tiny machines that will enter cell walls and make repairs. This month comes the extraordinary but also inevitable news that we've synthesized life. In the coming years, we'll not only synthesize it, but we'll engineer it to specifications. I believe you'll even see us understand the human brain. Jules Verne, Mark Twain, Galileo, Newton -- all the curious from the ages would have wanted to be alive most of all right now. As a civilization, we will have so many gifts, just as you as individuals have so many individual gifts as you sit before me.

How will you use these gifts? And will you take pride in your gifts or pride in your choices?

I got the idea to start Amazon 16 years ago. I came across the fact that Web usage was growing at 2,300 percent per year. I'd never seen or heard of anything that grew that fast, and the idea of building an online bookstore with millions of titles -- something that simply couldn't exist in the physical world -- was very exciting to me. I had just turned 30 years old, and I'd been married for a year. I told my wife MacKenzie that I wanted to quit my job and go do this crazy thing that probably wouldn't work since most startups don't, and I wasn't sure what would happen after that. MacKenzie (also a Princeton grad and sitting here in the second row) told me I should go for it. As a young boy, I'd been a garage inventor. I'd invented an automatic gate closer out of cement-filled tires, a solar cooker that didn't work very well out of an umbrella and tinfoil, baking-pan alarms to entrap my siblings. I'd always wanted to be an inventor, and she wanted me to follow my passion.

I was working at a financial firm in New York City with a bunch of very smart people, and I had a brilliant boss that I much admired. I went to my boss and told him I wanted to start a company selling books on the Internet. He took me on a long walk in Central Park, listened carefully to me, and finally said, "That sounds like a really good idea, but it would be an even better idea for someone who didn't already have a good job." That logic made some sense to me, and he convinced me to think about it for 48 hours before making a final decision. Seen in that light, it really was a difficult choice, but ultimately, I decided I had to give it a shot. I didn't think I'd regret trying and failing. And I suspected I would always be haunted by a decision to not try at all. After much consideration, I took the less safe path to follow my passion, and I'm proud of that choice.

Tomorrow, in a very real sense, your life -- the life you author from scratch on your own -- begins.

How will you use your gifts? What choices will you make?

Will inertia be your guide, or will you follow your passions?

Will you follow dogma, or will you be original?

Will you choose a life of ease, or a life of service and adventure?

Will you wilt under criticism, or will you follow your convictions?

Will you bluff it out when you're wrong, or will you apologize?

Will you guard your heart against rejection, or will you act when you fall in love?

Will you play it safe, or will you be a little bit swashbuckling?

When it's tough, will you give up, or will you be relentless?

Will you be a cynic, or will you be a builder?

Will you be clever at the expense of others, or will you be kind?

I will hazard a prediction. When you are 80 years old, and in a quiet moment of reflection narrating for only yourself the most personal version of your life story, the telling that will be most compact and meaningful will be the series of choices you have made. In the end, we are our choices. Build yourself a great story. Thank you and good luck!

The Shaky Case of the Despicable Gary Graham

When I try to imagine the shakiest case for a capital murder conviction, I think of a conviction based solely on the testimony of a snitch who sold his story for a get-out-of-jail-free card. The shaky case of  the despicable Gary Graham is not quite that bad. Close, but not quite.

Graham, who changed his name to Shaka Sankofa while on death row, was convicted solely on the identification of a single eyewitness. Though at least eight people witnessed the crime, only one identified Graham as the criminal. In Texas, that's enough to get you the needle.

<<>>

For a moment, let's make you the ninth eyewitness to that crime. It's Wednesday night, May 13, 1981. You're in a Safeway parking lot, in Houston, attentive for anything that might happen. You check your watch. It's 9:35 PM. It's dark, but the parking area is well lit, particularly right outside the store, right where the crime is going to take place.

There's a teenage male leaning against column near the store entrance. He's been there for about half  an hour so far. Take a good look at him. It will be important later that you not make a mistake. It's so easy to mis-identify someone.

Black, slender build, medium height, closely cropped afro, no facial hair, white coat, dark pants.

See the male employee collecting free-range shopping carts. That's Ron Hubbard, one of the Safeway box boys. He walks right past the leaner, looks directly at him, and even says something to him. Make a mental note: Ron's a half-foot taller than the leaner.

Look inside the store, through the glass. See the cashier? Her name is Sherian Etuk. She's noticed the leaner as well, glanced at him a couple times during the last half hour.

Look around the lot. There's Wilma Amos loading groceries into the  back of her van. That's Leotis Wilkerson sitting in the car over there with a couple of his friends, waiting for his dad. Leotis is 12 years old. And there's Daniel Grady, parked not far from the entrance, not far from the leaner.

Pay special attention to Bernadine Skillerine. That's her in the car, the black, middle age, middle class lady with the two young kids in the back seat. She's thirty to forty feet from where Grady is parked. It looks like she's waiting for someone. She keeps looking towards the store entrance.

That's the victim coming out the door now. At least he will soon be the victim.  Right now, he's got a bag of groceries in his hand. He walks right past the leaner. He's taller than the leaner, isn't he?

The leaner falls in behind his victim, almost as if he were waiting for him to come out. He walks up behind him, puts his hand in the guy's back pocket. The guy drops his groceries and resists. The leaner pulls a gun and holds it to the guy's head. You're frozen in fear and astonishment as the murder unfolds right before your eyes. Skillerine, however, isn't frozen. She's blowing her horn, you can hear her yelling from inside her car: "Don't, don't, don't."

The leaner turns and looks at her, for just a second or two, literally, then hesitates no longer. He turns his attention back to the business at hand and fires a .22 caliber round directly into the guy's chest. He doesn't take anything, doesn't rob the man, doesn't search for a wallet. He just pops the guy and leaves.

The victim slumps onto the hood of Daniel Grady's car, but somehow gets back up and staggers back into the market. He collapses face down on the floor. He's dead.

The shooter goes for a quick exit from the scene on foot. He passes right by Sherian Etuk. She doesn't get a good look at his face.

Skilleren must be crazy because she actually pursues the shooter in her car, with her kids in the back seat. She'll chase him for a minute or so, getting a good look at the back and side of his head, but not at his face really. After a bit, the screams from the back seat convince her to stop.

Nice work. You caught much of what happened. Not most of it, but a fair amount. Time to promote you to lead investigator.

<<>>

The victim is Bobby Lambert. He's a 53-year-old white male. He was a pilot from Tucson and he trafficked in drugs. The feds caught him flying a load of coke and Quaaludes into an airstrip near Oklahoma City and they flipped him. He's supposed to testify against some of his colleagues in three months, but he'll probably miss that court date. He's got $6000 in his back pocket, three shotguns in his van, all legal, and some fake ID.

The forensics and crime scene guys give you zilch. No gun. No blood from the perp. No photo ID accidentally dropped. Zero. Zip. Nada.

You talk to each of the eyewitnesses, most of them at least.

Daniel Grady was parked so close that the victim fell on his hood. He didn't get a good look at the guy's face. He was mesmerized by the gun.

Sherian Etuk was loading groceries into her van and the guy ran right by her. She didn't get a good look at his face, but he wasn't much taller than she was. She's 5'2".

Leotis the 12 year old doesn't actually come in. He relays his observations, and those of his friends, through an adult relative. The shooter was shorter than the guy who got shot. The shooter kinda looked like an adult he knows, Curley Scott. You'll check Scott out, but he's clean.

Wilma Amos was finishing work and headed for her van when it all broke out. She didn't see the shooter's face, but she gives the same general description. Slender black male, short afro, clean shaven, white shirt, dark shorts, medium height.

The box boy did better. Ron Hubbard passed the guy, looked right at him, said something to him. He can ID him. That's good. He provides the standard description.

Bernadine Skillerine is better. He looked right at her, at least once, maybe a second time when she nearly cut him off as he was trying to get out of the parking lot.  She's confident she'll be able to identify him. For now, she gives the standard description.

You have the witnesses talk to the sketch artist and you end up with a sketch. It's something, but you're going to need a break. You get that break a week later.

On May 20, you learn that you may have the shooter in custody. It's some 17 year old punk named Gary Graham. He went on a crime spree starting about a week ago. The crime spee ended just recently when his latest victim, a rape victim gets his gun and holds him at gunpoint as she calls the cops. Lisa Blackburn, a 57 year old taxi driver, says that Graham abducted her at a gas station, took her to some vacant area and repeatedly raped her. Then they went to her house where he fell asleep. During the 5 hour ordeal, Graham kept telling her "I've killed three people, and I'm going to kill you."

"When I knew he was going to rape me I told him I was 60 years old. He then hit me in the face and said 'don't lie.' He said 'I'm going to fuck you in the ears and the eyes and every place else.' He raped me until I couldn't stand it any longer and I screamed and he stopped. He then attempted anal sex. I was screaming and crying and shaking very, very hard ... I was in great pain at that moment, great pain."

Blackburn was just the last in a long string of victims. Graham is good for 20 armed robberies, 3 kidnappings, 1 rape, and 3 attempted murders. There are 28 known victims of this crime spree, and 19 eyewitnesses pointing the finger at Gary Graham. One victim was shot in the neck and another in the leg. It seems like the leg couldn't be saved.

Eleven previous cases were cleared because of Graham's arrest. Graham's gotta be good for the Lambert shooting. So you bring Killerine into the station. You show her a set of five pictures, making sure that Graham stands out. He's the only one with short hair, a thin face, and clean shave. The others all have bushy Afros, moustaches or beards, and full faces.

“That looks the most like him. But the person I saw had a darker complexion and thinner face."

That's close enough for police work. You organize a lineup for the next day. You make sure that Gary Graham is the only guy in the lineup who was in the photo array the previous day. "That's him," she says. As she's being driven home, she tells the officer she identified the man “in the photo” that she had seen the previous day. Not to worry though. Her identification will grow stronger and stronger as time pases.

That's good, because neither Ron Hubble nor Daniel Grady were able to identify Graham when they looked at the lineup.

So nice job with the investigation. Looks like you've got your man. Time to promote you to DA.

<<>>

They won't let you enter information about all Graham's other crimes until the penalty phase, so you'll focus mostly on Skilleran's testimony. She's uwavering now that she saw Graham. And she'll be a good witness, as honest and sincere as you could hope. A mother and a school teacher too. Perfect.

You'll not call Ron Hubbard, the box boy. He actually saw the guy and talked to him, but he already refused to identify Graham. He can take a hike. Same too with Sherian Etuk. Each time she describes the shooter, he gets shorter. By the time she's on the stand, she'll have the shooter looking up to Billy Barty. Graham is 5'9" or 5'10", thereabouts.

You'll call Daniel Grady instead. He's the guy who focused on the gun. He'll give details of the shooting, but you won't ask him to identify Graham. You'll also call Wilma Amos, the cashier. You won't ask her either to identify Graham.

You have that physical evidence problem too, as in not having any. You do have some, actually, but it's not good. You recovered 10 of Graham's weapons, and one of them was a .22 pistol, but it wasn't the murder weapon. That's what the ballastics report says. It doesn't look like Graham was in the habit of getting rid of his weapons, but he doesn't have the murder weapon. Maybe it would be best if you just kind of hold on to the ballistics report until it will be too late for the defense to do anything about it.

If you're lucky, you'll get one of the standard defense hacks the state appoints for these things. Guilt phase shouldn't take long; two days, tops.

You've done a nice job with the trial preparation. Now it's time for your final promotion, to the most lofty position of all, that of juror.

<<>>

It's a short trial, at least the penalty phase is. The State has an eyewitness, and a darn good one at that: Bernadine Skillerin. He looked right at her. His face is burned into her memory. She'll never forget it.

The defense calls no witnesses, and barely cross-examines the State's witnesses. During closing argument, Graham's attorney even praises Skilleren. He tells you she should get a standing ovation for bravery.

It's an easy vote. You find him guilty beyond a reasonable doubt.

The vote on the death penalty is even easier. It made your stomach turn listening to what he told the victims of his crime spree.

"I've killed six people already, if you want to be number seven do something stupid."

"I'll kill you, too. Blowing away another white mother fucker don't mean nothing to me."

"After I kill you, I am going back (to your broken down car) to kill your fiancée and her parents so they can go with you to 'honky hell'. Before I kill your fiancée, I'm going to rape her." 

You decide he's a definite threat to society. You vote for death.

<<>>

After his conviction, Gary Graham changed his name to Shaka Sankofa, "took responsibility" for a bunch of his crimes, and became a spokesperson for white injustice against blacks. He always denied shooting Bobby Lambert. He became a cause celebre, attracting the support of people such as Coretta Scott King, Al Sharpton, Jesse Jackson, Desmond Tutu, Danny Glover, Lionel Richie, Harry Belafonte, Ruby Dee, and Bianca Jagger. Twenty-two hundred people attended his funeral. He is frequently listed among the Pantheon of those wrongfully convicted.

I'm not so sure. I score him at 58 on my Actual Innocence Scorecard. I think the single eyewitness testimony is really shaky grounds for a death penalty conviction. I don't doubt Skillerin's integrity or sincerity. It's just that we all now know how shaky eyewitness testimony can be, and Skillerin's shows the tendency of progressing from "close but not him" to "absolutely, positively him" as time progresses.

Also, I think there may be something to Lambert's involvement with drug trafficking. It might indeed have been a hit. Anyway, I give Gary Graham a slightly greater chance of being factually innocent than factually guilty.

<<>>

I include Gary Graham / Shaka Sankofa in the list of possibly innocent people whose execution I have reviewed. I provide the list as it now stands below. If you add the scores, you will see that I claim to have so far identifed 6.27 people that Texas has wrongfully executed. They are somewhere in the list below, more likely near the top than the bottom. For those of you confused by my use of decimal counting rather than binary counting, read here.

Johnny Frank Garrett, 91

David Wayne Spence, 90

Robert Nelson Drew, 84

Carlos DeLuna, 83

Odell Barnes, 69 
Gary "Despicable" Graham, 58

Lamont Reese, 53

Claude "The Despicable" Jones, 52

Ruben Cantu, 43

Reginald Blanton, 41

Leonel Torres Herrera, 11

Judge Fine Strikes Again

No county in the United States comes anywhere near Harris County when it comes to injecting lethal chemicals into the arms of its citizenry. Harris County is of course in Texas, home to Houston. Of the 461 people executed in Texas in the "modern era", 113 were tried for crimes in Harris County. The Texas county with the second highest number of executions is Dallas County, with a mere 43.

If Harris County were a state, it would have more executions than any other state, excluding of course the remainder of Texas. (You can't beat Texas, even if you are Harris County.) Compared to Harris County's 113 executions, Virginia has executed 107, Oklahoma 92, Florida 69, Missouri 67, Georgia 47, Alabama 46, and North Carolina 43, same as Dallas County.

Harris County has a victim's rights division within its District Attorney's Office. Eloise Mireles had worked in that division for sixteen years. Some time after the turn of the century, she noticed an accounting weakness in the tracking of restitution payments made by convicted criminals. Rather than fix or report that weakness, she exploited it. She stole incoming cashier's checks and money orders and had her loving husband, Daniel, deposit them in their personal account. They spent the money on trips, concerts, and tickets to Houston Texans and Houston Rockets games.

As embezzlement schemes are apt to do, this one fell apart. Last August, she was arrested for stealing $1000 from the restitution fund. Last December, the charges were upgraded after investigators determined she had stolen more than 400 checks and money orders, valued at more than $255,000.

Their case came before none other than Judge Kevin Fine, who will later this year will consider the constitutionality of all those executions in Harris County. Eloise pleaded guilty to theft by a public servant of more than $200,000. That's a first degree felony, subjecting her to a sentence ranging from probation to life in prison. Daniel pleaded guilty to second-degree felony theft, subjecting him to a sentence ranging from probation to 20 years in prison.

I'll give you a moment to guess at the sentence handed down by Judge Fine. I predict that whatever you guess, you won't come anywhere close.

Yesterday, July 8, Judge Fine ordered that Eloise spend the next 6 months in prison. He also ordered that the two of them would:

• Spend one month in jail each year for the next six years

• Pay full restitution over the next 10 years, beginning with the $95,000 they still have on hand.

• Complete 400 hours of community service. She must pick up trash. He can pick up trash, clean graffiti, or wire homes for Habitat for Humanity. (He had been previously employed as a cable television technician.)

• Display a sign in front of their home reading "The occupants of this residence are convicted theives. They stole $250,000 from the Harris County Crime Victm's fund. Signed, Judge Kevin Fine." 

• Wear signs for five hours every weekend, he on Saturdays and she on Sundays, at the corner of Post Oak and Westheimer. The sign will read "I am a thief. I stole $255,000 from a crime victim's fund."

Using Goggle Street View, I present the intersection of Post Oak and Westheimer. This is where Eloise and Daniel Mireles will wear their signs for five hours on weekends. Working clockwise from the upper left, there's an Ethan Allen, a Dillard's, a Starbuck's and the Houston Galleria. Click any image to enlarge.

Through his attorney, Daniel said he would rather admit every day that he was wrong than go to prison. Through her attorney, Eloise had no comment.