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.

From the Huffington Post:

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!

There's more!

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.

We Be The Juror: Massachusetts v. Cowans

I offer the case of Massachusetts v. Cowans for your consideration. I have shamelessly stolen the summary from an adverse appellate decision. Please read the summary carefully. It will be followed by a single-question, binary-answer pop quiz.

A jury convicted the defendant, Stephan Cowans, of armed assault with intent to murder, home invasion, assault and battery by means of a dangerous weapon, armed robbery, assault and battery on a police officer, assault by means of a dangerous weapon, and unlawful possession of a firearm. The defendant asks us to hold that witnesses may not testify on direct examination to their degree of certainty in an identification. ... 

The jury could have found the following facts. After pursuing a male, later identified as the defendant, on foot, Boston police Officer Gregory Gallagher caught up to him in a backyard in the Jamaica Plain section of Boston. The defendant grabbed Gallagher and the two struggled until the defendant managed to remove Gallagher's gun from its holster. As Gallagher scaled a fence, the defendant shot him twice. Gallagher survived and heard additional shots. The defendant had shot at a neighborhood resident, Benjamin Pitre, but missed. 

At the same time, while in the kitchen of her home, Bonnie Lacy and her daughter heard gun shots. Lacy's son came downstairs and opened the side door of the house. The defendant, whom Bonnie Lacy had never seen before, was standing in the doorway with a gun. She testified that the man "just came on in ... [h]e just walked, just like normal walking, with a gun." The gun's barrel was pointing up. The defendant appeared frightened and nervous. Lacy was very frightened. 

Lacy asked him what the problem was and he replied, "[T]hose punks are after me." She asked who and he told her "those white policemen." Lacy asked the defendant to put down the gun. He complied. He kneeled on the floor and took off his sweatshirt. The defendant used his sweatshirt to wipe the gun and rested the gun on top of the sweatshirt on the floor. 

The defendant asked for some water and Lacy provided him with a glass mug of water. He drank the water and placed the mug on her kitchen table. Lacy went to the door and asked him if he was ready to go. The defendant told her he did not want to go to jail. Lacy told him that if he had done anything wrong he should just go and turn himself in. Lacy opened the door and the defendant went out.

The defendant left behind the gun and the sweatshirt. Lacy testified that after the defendant left, she and her children "hugged each other real, real tight; and we praised God that we didn't get killed." Lacy testified that the defendant never pointed the gun at her or her children and he never threatened them with the gun. 

Tennille Davis, a friend of the defendant's, testified that she saw him before and after the shooting. The defendant repeatedly suggested to Davis that he had been with her the entire day of the shooting. She testified that she corrected him and said she had seen him early that day and then again after the officer was shot, but that she had not been with him the entire day. 

Several weeks later, Gallagher selected the defendant's photograph from an array and then identified the defendant in a lineup. At trial, Gallagher identified the defendant as the man who shot him. Pitre viewed a photographic array, but did not identify anyone, even though the defendant's photograph was in the array. Pitre subsequently selected the defendant from a lineup and identified him at trial. Bonnie Lacy viewed a photographic array and the lineup but did not positively identify anyone. A fingerprint left on the glass mug was matched to the defendant. 

The theory of the defense was misidentification. A woman in the neighborhood had seen a black male being chased by a police officer, but she testified that it was not the defendant. Defense counsel also introduced evidence that the Lacy children had not selected anyone from the photographic array and challenged the eyewitness and fingerprint evidence.

Here's the pop quiz.

customer surveys

I'll cast the first vote. I vote Guilty. If you dare vote Not Guilty, I ask that you explain yourself in the comments.

ADDENDUM:
We have a verdict.

The No Longer Impending Execution of Todd Wessinger

Todd Wessinger sits on death row awaiting execution by the people of Louisiana. He had been scheduled for execution on the 9th of this month, but his execution has been stayed. I present the facts of the crime from the adverse opinion of State v. Wessinger (1999):

This case arises from the murder of two employees of Calendar's Restaurant in Baton Rouge on Sunday, November 19, 1995, at approximately 9:30 a.m. 

The evidence shows that defendant [Todd Wessinger], a former employee at Calendar's, rode his bicycle to the restaurant that morning armed with a .380 semi-automatic pistol. Mike Armentor, a bartender at the restaurant, saw defendant just outside of the restaurant, and they exchanged greetings. Immediately after entering the restaurant through a rear door, defendant shot Armentor twice in the back. Although Armentor sustained severe abdominal injuries, he survived. 

Defendant then tried to shoot Alvin Ricks, a dishwasher, in the head, but the gun would not fire. As Ricks ran out of the restaurant, defendant attempted to shoot him in the leg, but the gun misfired. As he was running across the street to call 911, Ricks told Willie Grigsby, another employee of the restaurant who escaped the restaurant without being seen by defendant, that he had seen the perpetrator, and the perpetrator was Todd. Ricks also told the 911 operator that the perpetrator was Todd. 

Stephanie Guzzardo, the manager on duty that morning, heard the commotion and called 911. Before she could speak to the operator, defendant entered the office, armed with the gun. After a short exchange with Guzzardo, in which she begged for her life, defendant, after telling her to "shut up," shot her through the heart. Guzzardo died approximately thirty seconds after being shot. Defendant then removed approximately $7000 from the office. 

Defendant next found David Breakwell, a cook at the restaurant who had been hiding in a cooler, and shot him as he begged for his life. Defendant then left the restaurant on his bicycle. EMS personnel arrived at the scene shortly thereafter, and Breakwell died en route to the hospital. 

Defendant was eventually arrested and charged with two counts of first degree murder. Testimony adduced at trial established that defendant had asked one of his friends to commit the robbery with him, and that he planned to leave no witnesses to the crime. Several people also testified that they had seen the defendant with large sums of money after the crime. The murder weapon was subsequently discovered, along with a pair of gloves worn during the crime, at an abandoned house across the street from defendant's residence. One of defendant's friends testified that defendant had asked him to remove the murder weapon from the abandoned house. Defendant was convicted of two counts of first degree murder for the deaths of Breakwell and Guzzardo and sentenced to death. The jury found three aggravating circumstances: (1) that defendant was engaged in the perpetration or attempted perpetration of aggravated burglary or armed robbery; (2) that defendant knowingly created a risk of death or great bodily harm to more than one person; and (3) the offense was committed in an especially heinous, atrocious, or cruel manner.

I can find no one, not even Todd Wessinger himself, who claims Wessinger is factually innocent of the crime for which he is slated to die. His stay was granted for further consideration of a claim that the jury was not allowed to hear some mitigation evidence during the sentencing phase of the trial.

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

The Case of Preston Hughes III: The 99 Cent Coin

From "Dateless Amigo", another fine episode of Married with Children:

Marcy: Steve, don't tell them about your insane quest to create a 99 cent coin. 

Steve: Al, I invented the 99 cent coin. Have you ever noticed how things cost $7.99?  $14.99?  $99.99?  My coin will eliminate the messy change that only catches the attention of obnoxious beggars who hassle you on the way to your Mercedes. Think of it, Al. Anything you want, you just plunk down the old number 99. It's a plan without flaws. 

Al. What about tax? 

Steve; You sound just like those fools at the Treasury Department. 

Shandra Charles didn't have any change on her person when she was discovered dying in that dark, overgrown field. She did have five one-dollar bills and one five-dollar bill in her pocket, but she had no change.

It took me far too long to realize this, but the lack of change argues against any suggestion she was in that field because she was returning from Fuddrucker's. If she had recently purchased anything from Fuddrucker's, or from the Stop N Go, or from anywhere, she would have had some change in her pockets. Instead she had five ones and one five.

Duh.

I was recently speaking with someone who lived in the area at the time, someone who knows some of the individuals involved in the case. I'll refer to that person simply as Source. According to rumors Source had heard, Shandra was there that night to purchase marijuana for a third party. (I choose to withhold the name of that third party.) Since that rumor matched my raw speculation regarding Shandra's purpose of being in that field so late at night, I necessarily gave the rumor more credence than I would have otherwise. Nonetheless, I would not be writing this post based on hearing of that rumor alone. Something else triggered this post.

Source was not familiar with the details in the police reports. I asked about anyone nicknamed Dog. Nothing. I asked about the phone number associated with "Dog." Nada. Zip.

I mentioned to Source that the nickname and the phone number were found on a note in Shandra's pocket, along with five ones and one five. Source said: "See. Whadda I say? Dime bag."

Duh, with a bullet.

Source then begin to explain the meaning of dime bag. I explained that I already knew, that I was just too slow and too square to have made the association on my own.

For those of you even less streetwise than I, I offer the following definitions of dime bag from The Urban Dictionary.

1. Also known as a demon. Approximately $10 worth of weed, depending on how good the shit is. 

2. 'Dime Bag' is a general term for $10 worth of weed. Back in the day, a Quarter Ounce (7 grams) cost only $10. An eighth cost only $5, hence the terms nickel bag and dime bag. Some circles still refer to a Quarter Ounce as a dime bag. 

3. A little bag also filled with $10 of marijuana.

Someone was kind enough to post a picture.

Officer Hale also took a photograph of some "green leafy substance" found (not planted, found) in Preston's apartment.

The crime lab could have probably lifted prints off that bag, but they never reported any effort to do so. In fact, that item did not even appear in their evidence invoice, though Officer Hale claimed he collected it and maintained control of it until it was tagged into the property room.

On the dining room table was a maroon pullover shirt, a clear plastic bag containing green leafy substance. 

At this time I photographed the inside of the apartment. 

Evidence recovered inside Apartment 138A, (suspect's apartment)
...

(1) small clear plastic bag, containing a green leafy substance recovered on the dining room table in plain view. The plastic bag was recovered and placed inside a clear plastic bag and kept in officer's care, control and custody until tagged in the police property room.

Despite Officer Hale's assurance, the green leafy substance never seemed to have made it to the property room, at least not by 2:58 AM when the other items were tagged in (three hours before the HPD allegedly obtained a voluntary Consent to Search form).

Hughes claims the marijuana was planted, just as the eyeglasses were planted. For reasons detailed in Documents Gone Wild, I'm tending to believe him. 

The subject of marijuana makes another appearance in this story. Hughes claims the police told him they discovered marijuana on Shandra's person. They allegedly told him this as they were threatening to kill him if he did not confess.

I don't believe your story. We found marijuana on the girl, and we found a bag in your apartment. I believe you were with the two kids before you stabbed them. What did you do, trade some marijuana for a piece of young tight pussy? Come on you can tell me the truth. I know how you people are trading drugs for sex. You're going to give another statement to my partner, Sgt. Ferguson when he come in this room. If you don't I'm going to kill you because I have kids and I have nightmares of someone like you coming after them. Or hell, I'll just beat your ass all over this room and put you in Ben Taub. I'm sure they'll love to have and treat another patient. And who do you think the judge will believe, a piece of shit like you or me, a police officer? Now do I make myself clear?

Curiouser and curiouser.

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