Death Penalty on Trial for Its Life: Day 1

I'm sure you're all wondering what happened at Judge Fine's hearing into the constitutionality of Texas' death penalty. Yesterday, the State elected to stand mute, to ask no questions of the witnesses. They expect Judge Fine's ruling, should it go against them, to be overturned. More details here.

New Trial For Cory Maye!

Rather than use all caps in the title, I used an exclamation mark. It is indeed good news. The Mississippi Supreme Court has ordered that Cory Maye be granted a new trial. I'm ecstatic.

Cory Maye, the subject of Book 2 in The Skeptical Juror series, was convicted and sentenced to death for the fatal shooting of Prentiss Police Officer Ron Jones during a late night drug raid in which only traces of marijuana were discovered. The other officers involved in the raid testified that Maye must have known the police were attempting to enter his half of the duplex. Maye claimed, however, that he never heard anyone identifying themselves as police or otherwise, that he shot at an intruder breaking through the rear door to defend himself and his infant daugther.

(In the book, I present a case that the police and other state actors may have conspired to use perjured testimony to extract their revenge on Cory Maye. I cannot prove that they did so, and I do not claim that they did so. I merely discuss the possibility. I leave it to the readers to decide whether the state witnesses were truthful with their testimony.)

During the appellate process, the death penalty was overturned and the state declined to retry the penalty phase. A new trial was later ordered on narrow grounds over a somewhat complicated change of venue issue. Both the defense and the prosecution appealed that decision to the Mississippi Supreme Court. The Mississippi Supremes ordered a new trial based not on venue, but on jury instructions.

Once again the grounds for reversal were narrow. The vote, however, was not. It's a bit confusing, but by my counting the vote seems to have been 5 to 2 for reversal. The complete ruling is here.

The question is what happens now. I anticipated a new trial and have already pre-speculated about it. I'll simply quote from the Postlude of The Skeptical Juror and The Trial of Cory Maye.

Not much has changed in Prentiss in the nine years since the shooting at the Mary Street duplex. Drugs are still a problem, the economy is still a basket case, and racial issues continue to divide the citizenry. The already sparse population has dropped by more than ten percent as people leave for greener, less troubled pastures.

Some things of course have changed, though their importance pales in comparison to all that Prentiss has lost. A memorial for Ron Jones sits in front of Prentiss Town Hall, and a portion of nearby U.S. Highway 84 is named in his honor. Road signs proclaim to those who pass that they are traveling on the Officer Ronald Wayne Jones Memorial Highway. It is small consolation for the loss of a dedicated police officer, a decent man, and a beloved son.

Perhaps next year, a new trial for Cory Maye will take place in the Jefferson Davis County Courthouse on Columbia Avenue, right in the heart of Prentiss. If so, the populace will divide again along racial lines, as they always have. The prosecution will attempt to to exclude blacks from the jury and the defense will try to stop them from doing so. Everyone will behave outwardly, at least, as if race isn't an issue. In some regards, things will be as they have always been in Prentiss.

In the new trial, however, Cory Maye wll be represented by a well-funded, well-prepared team of talented attorneys. The State of Mississippi, on the other hand, will attempt to hold together a bruised and battered prosecution theory that has been unraveling ever since Judge Eubanks passed sentence.

"All right. Then based upon the jury's verdict, I will sentence you to suffer death by lethal injection. All right. That will be the sentence of the Court."

This time Cory Maye's defense team will take the offense. The State of Mississippi will mount a vigorous fighting retreat. It's not clear either side will be able to secure a unanimous vote from the divided citizenry of Jefferson Davis County, Mississippi.

The two factions may instead elect to call a truce under terms that will allow each side to claim victory. I predict the State of Mississippi will offer Cory Maye a sentence of time served in exchange for a guilty plea to the crime of manslaughter. I predict Cory Maye will accept, and will walk free.

And I predict, sadly, that not much else will change in Prentiss, or Jefferson Davis County, or Mississippi.

Credit as always goes to Radley Balko (aka The Agitator) for being the writer who brought Cory Maye to national attention. I learned of the case from his writing. More significantly, Cory Maye's defense team learned of the case from his writing.

Credit also to Robert Evans, who lost his job as public defender because he agreed  to act as Cory Maye's appellate attorney.

Credit as well to Abraham Pafford, Benjamin Vernia, the law firm of Covington and Burling, and the many other talented and dedicated professionals who provided valuable, pro bono representation. As is the norm in such cases, the state actors will be fully paid for their efforts, paid out of the public treasury. The money needed to free someone wrongfully behind bars will come from private funds if it comes at all.

Credit finally for the folks at Reason Magazine for their support of Radley Balko and for their award winning documentary Mississippi Drug War Blues. This is a case worth understanding. It speaks to a number of problems we have in this country. You can come up to speed quickly by watching the video, narrated nicely by none other than Drew Carey. Great video.

Clarence Bekker, Grandpa Elliot, Kevin Fine, and The Change That 's Gonna Come

Next Monday, on the 6th of December 2010, Judge Kevin Fine (here and here) is scheduled to hold a hearing in the case of John Edward Green to decide if the death penalty in Texas is unconstitutional. I doubt that the hearing will be the end of the death penalty, and I doubt that our country is likely to do so anytime soon. But it is inevitable. 

A Change is Gonna Come. 

Start the music video below, then listen as you read the Huffington Post column I've pasted below.

WASHINGTON -- At a hearing scheduled for Monday, December 6, a district court in Texas will decide whether the death penalty is unconstitutional in the state based on the disproportionately high risk of wrongful convictions in Texas. This is the first time in the state's history that a court will examine the problem of innocent people being executed in a Texas capital trial.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. According to legal documents obtained by HuffPost, Green's defense attorneys will be arguing on Monday that a number of factors in Texas's legal system increase the risk of wrongful executions there, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

The death penalty in Texas came under fire earlier this month when a DNA test conducted on a single hair undermined the evidence that convicted a Texas man of capital murder over ten years ago. The hair had been the only piece of evidence linking Claude Jones to the crime scene, but the new test results revealed that the hair likely belonged to the murder victim instead of Jones.

Maurie Levin, a law professor at the University of Texas and an expert on capital punishment, said she would not be surprised if Judge Kevin Fine ruled the death penalty to be unconstitutional in Texas on Monday.

"I would think that Judge Fine would have substantial basis in the evidence that I'm aware of that would lead to a conclusion that the Texas death penalty is unconstitutional as applied," she told HuffPost.

Since 1976, twelve people have been exonerated from death row in Texas out of 139 nationwide, and four study commissions set up by the Texas government have formally recognized the serious risks of wrongful convictions there. Out of the 464 people that have been executed in Texas, about 70 percent have been minorities, according to the Texas Department of Criminal Justice.

Andrea Keilen, executive director of Texas Defender Service, said it is clear to her that the death penalty is handed down unfairly and erratically in Texas.

"It is my opinion and the opinion of many people close to this issue that the Texas system is wholly incapable of carrying out the death penalty in a fair and reliable way," she told HuffPost. "Texas is remarkably out of step with the rest of the country and certainly out of step with what the average Texan would expect when dealing with capital punishment. We're seeing in case after case that the system is just inherently prone to the risk of wrongful convictions and has a complete inability to correct its mistakes."

Keilen said that while the state has a history of strong popular support for capital punishment, she thinks Texans would feel differently about the practice if they knew all the facts.

"I think there is support for the idea of the death penalty among the average Texan, but that if the average Texan were to get a closeup view of how the system actually operates, that support would significantly wane," she said. "It's an abstract concept to most people, but if they saw how abysmal the quality of representation can be, how the system is biased racially, how prosecutors can not disclose evidence, or how DNA testing can be wrong, my opinion is that they as reasonable people would find it unacceptable."

Ref: The Huffington Post

ADDENDUM:

For a more thorough article, see Brandi Grissom's work at The Texas Tribune.

Judges Gone Wild: Revised

I want to revise my previous post, Judges Gone Wild. First, the numbers are in error. I left out a term in my calculation. That term was near unity, so it won't make a huge difference. That term belonged in the denominator, however, so the corrected answer I will soon present below is actually more distressing.

I also decided that I tried to do too much with a single plot. I've therefore created two to replace the one. I now present them below, one for the judges ... 

 ... and one for the juries.

Before I started this, I would have been appalled by the thought of an innocent person having more than a 25% chance of wrongful conviction. I'm still appalled, but I'm now admittedly distracted by calculations that suggest an innocent person has substantially more than a 50% chance of of being convicted during a bench trial. The odds range from a "low" of 50% for forcible rape to nearly 84% for muder/manslaughter. Since judges convict 86% of all defendants in the murder/manslaughter category, the number indicates that judges are incapable of distinguishing cases of innocence from cases of guilt.

WARNING: Mathematical Addendum

At least with respect to the plot for the juries, Spencer and I agree reasonably well on the overall chance of being convicted by a jury despite being innocent. He calculates 25% for all trials combined. I calculate 28%. 

We disagree substantially, however, with respect to the overall chance of being convicted by a judge despite being innocent. He calculates 37% for all trials. I calculate 62%. The discrepancy can be understood by looking at the terms that go into the calculation.

The first term is the convictions per trial. We extract that number directly from the judge / jury agreement table. For Spencer and the NCSC data, that number was 80%.  For my work and the Kalven-Zeisel data, the number was 83%.  The two sets of data were close on this number, despite being separated in time by half a decade. 

The second term was the percentage of innocent defendants. Spencer calculated 28%. I calculated 26%. Again we are close. 

The third term was the wrongful conviction rate. Recall that the wrongful conviction rate is the number of wrongful convictions divided by the number of convictions. It is one of the primary results from our analysis of the judge / jury agreement data.  Spencer calculated 13% for judges from the NCSC data, using his methods. I calculated 20% for judges from the Kalven-Zeisel  using my methods. That's our largest discrepancy. The comparison is not great, but not terrible.

When we perform the final calculation, however, the differences combine in such a fashion as to amplify the difference of the results.

Using Spencer's numbers:  0.80 x 0.13 / 0.28  =  .37  =  37%

Using my numbers:  0.83 x 0.196 / 0.26  =  0.64  =  64%

As it turned out, when my numbers were larger, they were in the numerator. When my number was smaller, it was in the denominator. The result was a substantial difference between our calculated values for the chance of being convicted by a judge despite being innocent.

Michael Ledford: Confession Falsified by Thermodynamics

"Before I left, I lit a candle and threw it in the chair. I never wanted to hurt my family. ... I just hope my family and friends and God can forgive me."

Those words constitute the heart of Michael Ledford's spoken confession that he set fire to his apartment and was therefore responsible for the death of his one-year-old son and the serious burn injuries suffered by his wife.

Though Michael recanted those words, and his entire confession, those are the words that convicted him of first-degree murder and spared him the death sentence. The jury believed both the part about starting the fire and the part about not meaning to hurt anyone.

A confession is as good as a conviction, or quite nearly so. Those people who confess, recant, and then go to trial are almost always convicted. Jurors, i.e. the American people, simply cannot imagine themselves confessing to a heinous crime they did not commit. Since they cannot imagine they would do so, they will not believe anyone would do so.

Jurors, i.e. the American public, are wrong on both counts.

One completely logical, but amazingly ineffective means of convincing a jury that a confession is false is to show that the confession is inconsistent with the facts of the case. If the confession violates space, time, and thermodynamics, that's even better. It's better, but it's probably not good enough.

During Michael's trial, the defense tried to show that Michael's confession was inconsistent with the data. They did a poor job of it, in my opinion, but they did make a try. I'll try to do better in this post.

The photo below shows the chair into which Michael confessed to throwing a candle. The photo was taken on the same day as the fire. That day was Zachary Ledford's first birthday. In the photo, Zachary is sitting in the lap of a family friend. I wish to intrude as little as possible into their privacy, even as I publicly discuss the most tragic portion of their lives, so I have redacted the people from the photo. Click to enlarge.

Let's examine the photo carefully. We will soon compare it to a couple of photos taken after the fire to see what we can learn.

The chair is an upholstered swivel rocker. Given that the fire occurred in Virginia in 1999, it is almost certain that the upholstery fabric was not fire-retardant. (My understanding is that California was the only state then requiring fire-retardant upholstery.) The cushions themselves consisted of polyurethane foam, a petroleum product. I've seen polyurethane referred to as solid gasoline. When burning it releases, among other gases, hydrogen cyanide and carbon monoxide. Both are deadly.

There is an ottoman sitting in front of the chair. The ottoman burned but is not particularly relevant to the story.

Behind the chair and at the right of the photo is the sole entry door to the apartment. Virginia argued that Michael set the fire near the front door to block escape, and that proved intent to murder. Because the victim was under 14 years of age and Michael was more than 20 years of age, the location of the fire near the door proved not only intent to murder, it proved capital murder. Virginia therefore asked the jury for permission to execute Michael Ledford.

To the left of the door is a light switch. It controls an outlet near the floor behind the couch. That outlet will be critical to the story. I will speak of it again in future posts.

Directly behind the chair is a quilt rack. It has several quilts and an Afghan draped across it. The quilts and the Afghan will soon burn and add substantially to the fuel load.

Above the quilt rack is a picture hanging on the wall. The photo captures just the very bottom of the picture frame. That picture will provide a clue. It will try to tell us something. I'm not yet sure what it's trying to tell us, but time and effort will reveal its clue.

To the left of the chair is an end table, of sorts. The end table is actually a portion of the sofa in which the back cushion can be folded forward to form the end table as shown.

On the table is a lamp with a glass base and a hooped shade that seems to be made of paper. The lamp is plugged into the outlet behind the sofa. If the lamp switch is in the "On" position, flipping the light switch near the door will turn the lamp on and off.

There are several framed pictures on the table. I assume they are family photos. There is also a doily resting there.

At the front of the table are two drinking vessels of some sort. They look to me to be one bottle and one tall can. I think they are inconsequential. They will be gone by the time of the fire.

Not seen on the table are two taper in candle holders. They should have been there at the time of the fire if Michael's confession is to be believed.

Michael said the candles were long and slender rather than short and stubby. "White ones about this high, this big around ... " [indicates by forming circle with his thumb and index finger] "... and probably about that tall." [indicates by separating hands by approximately five inches]

He said they were in candle holders. "They were candle holders that we got for a wedding present."

He said they were on the corners of the table. "We're always careful of where we put the candles, but we just set them on the corners that night. ... We both did. I set one on the corner and she set the other."

He said he then threw the candle in the chair and left. "After Elise went to bed, I turned the light on in the living room, and I told her that I would blow out the candles. I blew out the one, made sure that Zach’s door was closed -- that way he wouldn’t get hurt. I even made sure that our bedroom door was closed. I lit -- I kept the candle lit, and I threw it in the chair."

We know that Michael was talking about the table beside the chair, because early in the interrogation, he suggested the candles must have fallen off the table and into the chair when he shut the door. "When I left, I shut the light, I turned the light back on and I'm pretty certain, up to this point in time, now mainly, because I was scared, that I did blow out the candles. But now I'm thinking that apparently I didn't and something caused one of the candles, at least one them to fall. That's the God honest truth."

Perhaps the candles were placed on the table after the birthday party was over but before Michael left the apartment. We'll look at the photos taken after the fire to see if we can find evidence of them there.

Below, I've included a photo taken after the fire. This photo was taken by the insurance investigator two days after the fire. The police investigator had moved the chair and quilt rack to photograph behind them. The police investigator or the insurance investigator had also removed almost everything from the table. The insurance investigator returned the chair and quilt rack to their positions during the fire, based on the markings left on the carpet. He also returned the lamp to the table before taking this picture.

I've edited the photo only by making it lighter and brighter than the one I received. Click to enlarge.

The tops of the cushions are burned, as are the tops of the end table and the coffee table. The front and the sides of the sofa and chair, at least those portions shown, are not burned. The polyurethane foam in the seat cushions is generally intact, unconsumed by the fire. The seat back, however, is completely gone. You can see right through where the back cushion used to be, and see the quilt rack. The rack remains. The quilts and Afghan are mostly consumed.

The white case, possibly a sewing machine case, is out of place. The front door is open. The picture that had been hanging on the wall has fallen to the floor and is visible through the now empty quilt rack.

There is no water damage from the fire-fighting effort. This fire burned rapidly and self-extinguished before the fire company arrived. It was an October night and all the doors and windows were closed. The fire used up the oxygen it needed to grow, that oxygen wasn't replaced, and the fire died out.

Zachary was at that time laying in his crib in the children's bedroom. He was unburned but died of carbon monoxide poisoning.

Elise was at that time lying on the floor in the master bedroom. She had been badly burned as she twice tried to get to the front door. She retreated to the bedroom, called 911, and collapsed to the floor just as the connection was made.

One more photo and my point will be made. This is a closeup of the area taken the day after the fire by the police investigator. We can see the chair with the missing back, the quilt rack with the missing quilts, and the picture that has fallen from the wall.

We can see what is left of the family photos.

We can see the glass base of the lamp. It fractured from the heat. We can see a metal hoop from the shade and the remnants of the doily.

The bottle and can that were in the previous photo had been replaced prior to the fire by two plastic drinking glasses. We can see them in the photo. They melted in the heat.

The insurance investigator saw in person pretty much what we can see in the photo. From his report, we find this description.

Examination of the debris on the table show the remains of a crocheted doily, a picture frame, the remains of two plastic drink cups, which are melted, a television or VCR remote control and various paper and debris.

What we don't see in the photo, what the insurance investigator did not see when he stood there and looked directly at that table are candle holders, or melted candles, or candle wax. Neither fire investigator mentioned finding any candle, any candle wax, or any candle holder anywhere in the apartment.

One might argue that the candles were consumed during the fire and that no candle wax would remain. Virginia made that argument to the jury, and the jury apparently accepted it as fact beyond a reasonable doubt. I don't believe the argument is valid, and neither does Pat Ledford, so we will be conducting testing to resolve this issue. We'll report early next year on the results.

What is not at issue, however, is that candle holders do not burn up in a fire while plastic cups sitting immediately adjacent only melt. There should be two candle holders on the table. One should be near each of the front corners of the table, where they would interfere with (and possibly burn) anyone reaching for a plastic cup. That's where Michael said they were, but I can't see them. Neither of the investigators could see them either.

If Michael's confession was factual, where are the candle holders?

Michael Ledford's confession began as denials that he had anything to do with the fire, that he had no idea how it started.

I am telling you, I did not start the fire.

I didn't do it.

I don’t know, but it wasn't me.

The only thing I can say, sir, is do what you need to do but I am going to claim my innocence ‘til the day I die.

I did not set the fire that took the life of my son and damned near took the life of my wife. There is no way in hell I'd have done that.

If I deliberately set that fire, may God strike me dead now. I did not set the fire.

I didn't set the fire. I didn't know where the fire was, plain and simple.

No. I want you to leave here knowing that I'm telling the truth. I didn't set the fire.

No, because I didn't set the fire.

I think the fire was set accidentally.

You can go to hell sir!

For hours, Michael's story did not include any mention of candles, or candle holders. He was not the first to introduce those items into the interrogation. His interrogators suggested them, and Michael acquiesced, bit by bit.

As his interrogators suggested various means and motives, as they lied about evidence tying him to the fire, as they promised to help him if he would only confess, Michael's story evolved to include a candle he thought he blew out, to a candle he might not have blown out, to a candle that might have fallen into the chair as he shut the door. Each time he tried to better explain what might have happened, the interrogators pushed harder and harder.

Suddenly Michael seemed to accept that he had tossed a candle into the chair before he left. It was shocking to behold. He figured he must be crazy. He asked to be put in a mental institution. He lost all sense of reality. He believed he needed help, and he believed they were offering help. He was, at this point, clearly delusional.

Okay. I want the agreement that I will be sent for, I want the agreement that I will be put in a psychiatric, a psychiatric hospital, to get the evaluation that I need. That's all. And afterwards, maybe help me get a trade -- not necessarily to make a good living at, but something where I will be away from people.

At that point, and only at that point, did the interrogators elect to believe him.

However, Michael's acquiescence became demonstrably false at the point when he began incorporating candles and candle holders into the events of that evening. One of his interrogators was, in fact, the very person who photographed the last picture I just presented. That interrogator / investigator absolutely did know (or should have known) that Michael was confabulating rather than confessing. Instead, that interrogator / investigator charged Michael Ledford with the first degree murder of his own son.

And that is why I am interested in helping.

Stay tuned for the next post in this series, when I show that Michael Ledford's confession violates not only basic thermodynamics, but space and time as well.