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.

Harold Comer: The Gift That Keeps On Giving

Even though the people of Texas paid Harold Comer a suspiciously exorbitant amount for his pathetic defense of Hank Skinner, they got their money's worth and more. Comer gave them the Mama Bear defense: not too good and not too bad. He wasn't so good that Hank Skinner walked free, yet wasn't so bad that an appellate court would rule the defense incompetent. (They seldom do.) Comer didn't insist on testing all the DNA before the trail, then blathered on before appellate judges why it was a strategic decision. As far as the appellate judges were concerned, Comer's decision for not testing didn't have to be a good or wise decision; it merely  needed to be a reasoned decision.

Comer knew how the system worked, having previously been the DA who prosecuted Hank Skinner. Comer gave Texas exactly what it needed to convict Skinner and provided cover to keep the conviction from being overturned. He was paid handsomely for doing do.

But Harold Comer didn't stop there. He continues to this day to hurt his past client (Hank Skinner), as he helps his de facto current client (Texas), while trying hard to repair the tarnished reputation of his real client (himself.)  Here's how it works.

Independent and fair minded journalist decides to write an article about Hank Skinner, contacts Harold Comer and asks about his failure to insist on testing all available DNA evidence. Harold says something along the line of, and I paraphrase:

Well, the DNA that was already tested was pretty damaging, so we made a strategic decision not to test the remainder. Instead we decided to fault the State for not testing it themselves.

If you as a reader find this explanation not particularly compelling evidence of Hank Skinner's innocence, then it is likely that you as a juror would be equally unimpressed. The twelve who sat in judgment of Hank Skinner didn't buy it either.

Harold Comer, to this day, continues to hurt Hank Skinner by indicating he didn't believe in Hank Skinner's innocence then and doesn't believe in it now. He leaves it to the reader's imagination that he has inside information about Hank's guilt, though we know that not to be the case. Harold Comer, in other words, is the gift that keeps on giving.

Lynn Switzer recently took advantage of the gift that is Harold Comer when she mounted her public defense for not allowing the remaining DNA to be tested. The entire defense is here. An excerpt follows:

In November 2005, lead defense trial counsel Harold Comer testified during a federal evidentiary hearing and explained the trial strategy, which included  ... that certain DNA test results, such as for the blood stains on Mr. Skinner's clothing, had been damaging to the defense's case and counsel did not want to run the danger of uncovering even more damaging evidence; ...

The United States District Court held that Mr. Skinner was represented at trial by competent counsel who made a reasoned strategic decision to not seek DNA testing, and denied relief on this ineffective assistance of counsel claim.

Just like I said.

The bottom line is that Harold Comer did not believe in Hank Skinner's innocence and put in a half-hearted effort to defend his client. Comer himself makes that clear in another long-winded answer from his testimony at the federal evidentiary hearing  just mentioned by Lynn Switzer:

All right. At the outset the evidence -- the state's evidence against Mr. Skinner was formidable. There was the DNA evidence, as I recall, that would show that Twila's, as well as Elwin Caler's blood was on the shirt and pants of Mr. Skinner. There was the blood spatter evidence that would be contrary to the defense's position that Mr. Skinner was comatose on the couch at all times during the time that Twila Busby was being attacked. There was the evidence that Mr. Skinner had given a statement to Detective Terry Young, in which there were statements made that were inconsistent with what our position was at trial, and that is that he was on the couch at all times during the attack on Twila Busby.

Now, faced with that evidence, we decided that the best defense theory posture would be to attack the state's evidence because of this lack of investigation. For example, on the DNA we felt that to go forward and have the defense affirmatively request additional testing, would prove no more helpful to us than the original testing that had already been done.

Now Donnell and also our second prong on the defense was that Mr. Skinner was too intoxicated to have been physically coordinated enough to commit these acts. So we thought it would be helpful if the jury had an alternative to Mr. Skinner. I mean it's one thing to say that -- to try to show that he was intoxicated and couldn't perform these acts, but we also wanted to convince or raise a reasonable doubt in the jury's mind that Mr. Skinner was the assailant, we thought we'd do that in this manner, that is, had the state chosen to test all of the evidence for DNA, then it might have proved, or might have been helpful to Mr. Skinner in indicating some other third party was involved in the commission of the offense.

But since we were going to fault them for not having done that, we thought that we might offer up some, if I could call it a decoy, maybe that's not too appropriate, but a decoy for the jury to consider in the sense that if the state had examined all this evidence and tested it, it might indicate that someone like Donnell had committed the offense and not Mr. Skinner.

So that was the reason why we came up with Mr. Donnell. I suppose there could have been two or three others that you just suspected, but Donnell -- I think Howard Mitchell's testimony was, if we had learned before trial, that this fellow had had some aggressive tendencies towards Twila, and had in fact, tried to rape her, and also at the party that night he had made improper advances toward her, and made some (inaudible) sexual advances toward her and inappropriate comments, we thought this would be an appropriate thing for the jury to hear, again create a reasonable doubt, and we wanted to re-enforce that somewhat with the testimony of other witnesses other than Howard Mitchell, so we offered I think two other witnesses. I remember Sherri Baker was one, and another -- I can't remember who the other was, to testify as to violent character and things of that nature.

But really we didn't seriously consider Robert Donnell as the assailant in this case because of the evidence that we had before us. We thought we had to deal with the evidence that we had, and we thought that that would be something that would indicate to the jury well, maybe if this fellow was that aggressive toward her, maybe the DNA testing by the state would have indicated that, so generally that's what we put our fingers on.

Compare Comer's mamby pamby approach to defending Hank Skinner to the far more assertive approach of Douglas Robinson, who at the time of the evidentiary hearing was acting as one of Skinner's appellate attorneys. I include questioning on two different subjects taken from different portions of the transcripts:

Robinson: Suppose you had evidence that Robert Donnell had thoroughly washed out his pickup truck two days after the murders occurred.

Comer: I don't like (inaudible) suppose (inaudible). I think probably put myself back into the place where we were talking about Donnell, I probably would have.

Robinson: Mr. Comer, do you recall whether Mr. Skinner suggested to you that you investigate Robert Donnell?

Comer: Well, he might have. Someone suggested that Robert Donnell had been aggressive towards Twila. Now whether that was Mr. Skinner or who it was, I -- it seems to me that it was Howard Mitchell, a witness for the state, who suggested that Mr. Donnell was a person who had in the past made improper advances toward Twila.

Robinson: I want you to focus now on DNA testing. You told me that the DNA testing was incriminating.

Comer: Yes.

Robinson: One reason is because it had Twila Busby's blood on his clothes, and I want to know why that DNA result was incriminating. It was your defense, was it not, it was part of your defense that Mr. Skinner was present in the house at the time the murders occurred, correct?

Comer: Yes.

Robinson: It was part of the defense theory, or an admission as part of the defense theory anyway, that Mr. Skinner was present in the same room with Twila Busby at the time that she was beaten with an. axe handle, correct?

Comer: Yes.

Robinson: So what would have been incriminating -- anymore  incriminating anyway than what the defense's theory was with Twila Busby's blood being on his shorts?

Here's your final exam question, based entirely on this post: If you were on trial for your life, would you rather be represented by Harold Comer, who thought you to be guilty, or by Douglas Robinson, who presumed you to be innocent?

The Mildly Interesting Case of Reginald Blanton

Reginald Blanton was executed by Texas in October 2009 for the April 2000 murder of Carlos Garza. If you enter his name and the word "innocent" into Google, you will find many articles claiming he was innocent. (My search returned 11,300 hits.) Reading through some of those articles leaves the impression that Reginald may have indeed been innocent. Reading through the appellate decision of Blanton v. Quarterman, however, leaves the impression that Reginald may have indeed been guilty.

I prepared an Actual Innocence Scorecard for the case. You can read the details there if you like. I scored him at 41, meaning I believe he was more likely guilty than not.

Whether Blanton was guilty or innocent, Texas engaged in some of its standard underhanded tactics to secure the conviction.

1. Both eyewitnesses against Blanton recanted during their trial testimony much of what they told the police soon after the murder. Both claimed threats of being charged with capital murder. We won't know if their claims of police thuggery were true since the police did not bother to record the interviews.

2. Texas dug up a jailhouse snitch for the trial.

3. Though Blanton was black, Texas managed to find him an all white jury. The prosecutor used 3 jury shuffles. That's when either attorney can have prospective jurors soon to be called for voir dire moved to the back. The prosecutor was so adept at this maneuver that not a single black juror was among the first 53 to be examined.

I include Reginald Blanton in the list of possibly innocent people whose execution I have reviewed. I provide the complete list below. If you add the scores, you will see that I claim to have so far identifed 5.69 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

Lamont Reese, 53

Claude "The Despicable" Jones, 52

Ruben Cantu, 43

Reginald Blanton, 41

Leonel Torres Herrera, 11

Melvin Wayne White, 0