Lamont Reese Speaks From the Grave

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The Slam Dunk Case of Charles Anthony Boyd

In my search for the 54 innocent people I calculated Texas may have executed, I passed Charles Anthony Boyd through my coarse filter for two reasons. First, he used his final breaths to declare his innocence. I quote from the August 6, 1999 edition of the Laredo Morning Times:

Boyd initially declined to make a final statement. But, as the drugs began flowing into his arms, he said, “I want you all to know I did not do this crime. I asked for a 30-day stay for a DNA test so you know who did the crime.” Then he gasped and slipped into unconsciousness.

Second, the folks at Northwestern had listed him a someone possibly innocent but certainly executed. I trust the folks at Northwestern so I allowed Boyd through my coarse filter. I include the Northwestern list below, limiting it only to those people executed by Texas, adding my Actual Innocence Score for those cases I have already reviewed.

Odell Barnes, Jr., 69

James Beathard
Charles Anthony Boyd
David Castillo
Clyde Coleman

Carlos DeLuna, 83

Robert Nelson Drew, 84
James Otto Earhart
Tony Farris
Gary Graham (aka Shaka Sankofa), 58

Leonel Torres Herrera, 11

Jerry Lee Hogue
Jesse Jacobs
Carl Johnson
Richard Wayne Jones
Davis Losada
Robert Madden
Justin Lee May
Frank Basil McFarland
Charles Rector
Kenneth Ray Ransom

David Spence, 90

David Stoker
Martin Vega

Charles Anthony Boyd was executed on August 5, 1999 for one of the so called North Dallas “bathroom slayings.” Again from the Laredo Morning Times story.

Boyd was condemned for strangling and drowning 21-year-old Mary Milligan at her apartment [on] April 13, 1987. A recent Texas Tech University graduate, she had moved to Dallas to take a job as a bank management trainee. Boyd was arrested the day after Ms. Milligan’s murder when jewelry and other items taken from her apartment were pawned. The former bank janitor lived across the hall from her.

He also became a suspect after detectives learned of his past. Boyd had previous convictions for burglary and sexual assault and had been released from prison in November 1985 after serving less than half of a five-year sentence. …

In July, Tippawan Nakusan, 37, who lived upstairs from Boyd and worked as a waitress, was found stabbed and suffocated in her bathtub. That September, Lashun Chappell Thomas, 22, a nursing home aide, was found fatally stabbed and in a bathtub in the apartment complex. Then Ms. Milligan was killed in similar fashion at an apartment complex where Boyd lived. …

After his arrest, Boyd confessed and was charged with all three slayings but tried only for Ms. Milligan’s killing. Besides tying him to items taken from the apartment and his confession, prosecutors also had forensic evidence from Ms. Milligan’s apartment to link him to her death.

And that’s about it. I found very few stories about Charles Anthony Boyd. Nothing to tell me that his initial confession was coerced, that the forensics (whatever they were) were bogus, that his conviction was based on the purchased testimony of a snitch, that the real culprit had later confessed. Instead I found out that his appeals were based on a claim that he was mentally retarded and should therefore not be executed. From the ruling by the 5th Circuit Court of Appeals:

Defendant Charles Anthony Boyd was convicted of capital murder and sentenced to death. He requests a Certificate of Probable Cause ("CPC") to appeal the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2254. He contends that the district court erred because (1) counsel was ineffective for failing to present mitigating evidence of his retardation to the jury at sentencing; (2) the jury was prevented impermissibly from giving mitigating effect to evidence of his retardation and his positive character traits; (3) the failure to instruct the jury on the parole implications of a life sentence in a capital case rendered the Texas sentencing scheme unconstitutional; and (4) the admission of extraneous offenses at the sentencing phase violated due process and the Eighth Amendment. We deny Boyd's request for a CPC.

I found no other appeals in Google Scholar, nothing indicating that Boyd didn’t actually kill Milligan. I did find a plea from Amnesty International to not execute Boyd, because he was mentally retarded.

Charles Boyd, black, is scheduled for execution in Texas on 5 August 1999 despite evidence that he is mentally retarded. He was sentenced to death in November 1987 for the capital murder of Mary Milligan, white.

At Boyd’s trial his defence lawyers failed to investigate and present evidence of his mental retardation because they did not recognize that he might have such a problem. Although a prison report was available which stated that in 1983 Boyd’s IQ had been measured at 67 (an IQ under 70 is considered to signify retardation), both lawyers have since stated that they do not remember seeing this or other evidence that Boyd was suffering from retardation. As a result, they did not have Charles Boyd examined by any mental health professional. The appeal courts have ruled that this did not amount to ineffective defence representation.

In 1995 a federal court ordered a hearing into this claim of inadequate counsel. At the hearing, a magistrate heard evidence of Boyd’s mental retardation, including expert testimony from a psychologist and a neuropsychologist who had conducted evaluations of Boyd, and interviews with his family members, in 1992. At the hearing the court heard that Charles Boyd had displayed signs of having learning difficulties from early childhood. His mother did not enroll him in Special Education Classes as advised because she was “embarrassed” to do so. Charles’s nickname was “head” because he would regularly beat his head against walls and on the ground to receive attention. Charles was allegedly subjected to regular beatings by his stepfather and brother, often because the young boy was “slow” to respond to requests. It was only at the age of seven that it was discovered that he was deaf in one ear. Charles also suffered from seizures throughout childhood. [Emphasis mine.]

Without a claim of actual innocence, Charles “Head” Boyd didn’t stand a chance. In 1989, the US Supreme Court ruled that it was not unconstitutional to execute a mentally retarded person. Though 12 states had by then forbidden the execution of a mentally retarded person, Texas was not one of them. Indeed, Texas had rejected a law banning such executions just three months prior to Boyd’s execution.

Without a claim of actual innocence, I won’t even prepare an Actual Innocence scorecard for “Head.” Instead, I will arbitrarily score him at 0.01. I refuse to give him a zero given that he spent his last gasp claiming he was innocent. It seems to me as if there is more to this story, and I simply can’t find it from an easy chair in my living room. It disappoints me in several regards.

On The Rate of Wrongful Conviction: Chapter 2.3

As I have mentioned seven times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number

Chapter 0.5: The Huff Number

Chapter 0.8: The Prosecutor Number

Chapter 1.0: The Rosenbaum Number

Chapter 1.3: The Police Number

Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number

Now, for the first time, we break the 2% barrier. The numbers will begin to climb rapidly after this post.

Chapter 2.3
The Gross Number

In December 2008, Samuel Gross wrote:

Since 1973, 128 U.S. criminal defendants who were sentenced to death have been exonerated. This is a startlingly high number … Most likely, this extraordinary number of capital exonerations is caused in part by a higher underlying error rate among capital convictions and in part by a higher rate of detection of those errors after conviction. It is well known that more resources are devoted to capital defense than to other cases, before and after conviction, but it is hard to believe that better review alone explains the capital exoneration rate. If that were the whole story, it would mean, for example, that if we had reviewed prison sentences with the same level of care that we devoted to death sentences, there would have been approximately 87,000 non-deathrow exonerations from 1989 through 2003 rather than the 266 that were reported in a comprehensive study in 2005.

Gross realized he could compare capital murder exonerations to capital murder convictions to determine a wrongful conviction rate, at least for capital murder. All he had to do was divide the number of exonerations by a properly related number of convictions and, voila, a wrongful conviction rate. He wasn’t going to simply guess, or have others guess for him. He was going to find a good numerator and a good denominator and he was going to divide.

Gross knew, however, he had to be careful in his selection of both the numerator and the denominator. He was careful to include in his numerator only those people who were likely to be factually innocent. He intentionally excluded those who might have been removed from death row for technical reasons, those who were merely re-sentenced, and those who were re-tried and found guilty once again.

As we use the term, “exoneration” is an official act -- a pardon, a dismissal, or an acquittal -- declaring a defendant not guilty of a crime for which he or she had previously been convicted … Very likely, however, some defendants we count as “exonerated” did in fact participate in the crimes for which they were convicted. In our estimation, the probability of innocence is high for all of these exonerated defendants -- for many, innocence is beyond dispute -- and the number of misclassifications low enough to make these exonerations a useful proxy for innocence. … And, of course, the set of exonerated defendants does not include innocent defendants who were executed, nor those who remain on death row, nor the undetected innocent defendants among the thousands of defendants who have been removed from death row but remain in prison.

He was also careful when he selected his denominator. He realized he couldn’t simply divide all exonerations by all convictions because exonerations don’t happen overnight.

[W]e know that 7,534 people were sentenced to death from 1973 through 2004. In the same period, 111 defendants were exonerated after being sentenced to death for murder under a post-Furman capital sentencing statutes, or 1.5 percent of all death sentences.

That figure -- 1.5 percent -- is not the final word on exonerations for the cohort of defendants who have been sentenced to death since 1973, let alone a reasonable estimate of the rate of false capital convictions. As time passes, some defendants in this group who have not yet been exonerated will be.

To account for the lag between conviction and exoneration, Gross realized that most exonerations (95%) occurred within 20 years of conviction. He would therefore make sure his denominator accounted for that 20 year lag. He would divide all the exonerations from 1973 through 2004 (54) by all the convictions from 1973 through 1984 (2,394) to arrive at a wrongful conviction rate of 2.3 percent.

Of the post-Furman death row inmates who were exonerated between 1973 and 2004, 95 percent had been freed within 20 years of their conviction (106/111). Overall, 2,394 death sentences were pronounced in U.S. courts from 1973 through 1984. By 2004, the process of identifying exonerations for these 20 to 30-year-old death sentences was largely complete. It resulted in 54 exonerations -- almost exactly half of all capital defendants who were exonerated through 2004 -- or an exoneration rate of 2.3 percent (54/ 2,394).

He checked his number by assuming a 15-year lag instead of a 20-year lag.  He ended up with the same number: 2.3 percent.

Eighty-one percent of capital exonerations occurred within 15 years of sentencing (90/111). By the end of 2004 there had been 86 exonerations among the 3,792 capital defendants who had been sentenced to death through 1989, at least 15 years earlier, also an exoneration rate of 2.3 percent Two additional defendants who were sentenced to death before 1990 were exonerated in 2005, but judging from the pattern of previous cases, we have probably seen almost all the capital exonerations that we will see for defendants sentenced to death through 1989.

He naturally concluded that he had arrived at a good estimate of the wrongful conviction rate, at least for capital murder trials in the United States.

In other words, a good estimate of the long-term … capital exonerations rate in the United States is 2.3 percent.

Solid as his math seems to be, I disagree with Samuel Gross on this number. I will await Chapter 11.3 to make my case.


Notes:
1. When I write of Samuel Gross, I write actually of Samuel R. Gross and Barbara O’Brien. Together they wrote “Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases”, Journal of Empirical Legal Studies Volume 5, Issue 4, 927-962, December 2008

2. At the time their article was published, Samuel Gross and Barbara O’Brien were Assistant Professors of Law at Michigan State University College of Law.

3. Gross and O’Brien recognize that the wrongful conviction rate for capital murder cases is not necessarily equal to the rate for all cases. They are careful to limit their conclusion to capital murder cases. “All things considered, we believe that 2.3 percent -- the long-term rate of exoneration of death row inmates -- is a conservative estimate of the rate of wrongful death sentences.”

On The Rate of Wrongful Convcition: Chapter 1.9

As I have mentioned six times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number

Chapter 0.5: The Huff Number

Chapter 0.8: The Prosecutor Number

Chapter 1.0: The Rosenbaum Number

Chapter 1.3: The Police Number

Chapter 1.4: The Poveda Number

I am now back on track posting the draft chapters in monotonically increasing order. It's another survey number, the last for a bit. It does have some interesting new information at the bottom, regarding feeback on what an acceptable level might be

Chapter 1.9
The Judge Number

The Ramsey Ohio survey study introduced in Chapter 0.8 was so comprehensive that it allows me to determine four separate wrongful conviction estimates: one each for prosecutors, police, judges, and defense attorneys. The prosecutors were the most conservative in their estimate, guessing that the wrongful conviction rate for the country is 0.8%.  The police were the next more conservative group, guessing that the wrongful conviction rate for the country is 1.3%.

The third most conservative group within the Ramsey survey was the judges’ group. Regarding the survey question at hand, Ramsey received responses from 153 judges. Their responses are categorized below.

I will define the Judge Number for the wrongful conviction rate in the same manner I defined the Prosecutor Number: I’ll determine the median judge guess at the wrongful conviction rate using a plot. That plot is presented below. Based on the plot, I claim the single best number to represent the wrongful conviction rate estimated by the Ohio judges responding to the Ramsey survey is 1.9%.

Consider the significance of the Judge Number. If it is applicable to all 2.5 million people we have incorporated, it suggests that even the judges believe we have 47,500 people wrongfully incarcerated in this country today.

<<>>

As mentioned in the earlier chapter dealing with the Ramsey survey, I noted that Ramsey was clever enough to ask for separate guesses of the wrongful conviction rate: one for the country as a whole and one for the respondent’s jurisdiction. It’s interesting to compare the two.

For the judges, the national median guess was 1.9%, as just reported. For that same group of judges, the median guess for their jurisdiction was 0.56%. On average, the judges believed the wrongful conviction rate in their jurisdiction was somewhat more than one-half that of the national average. This makes the judges slightly less delusional than the police or the prosecutors.

For comparison, the numbers for police are 1.3% and 0.2%; that’s a factor of one-sixth. The numbers for prosecutors are 0.8% and 0.2%; that’s a factor of one-fourth.

<<>>

Ramsey was also clever enough to ask his respondents their opinion of an acceptable wrongful conviction rate. Slightly more than half the judges and police felt the acceptable rate was zero. Slightly fewer than half the prosecutors felt the acceptable rate was zero.

Good for all of them. While no one is arguing a zero rate is achievable, it’s good that half of all police, prosecutors, and judges feel a wrongful conviction is an unacceptable circumstance. Perhaps they would be willing to help free some of the 20 to 50 thousand people they estimate are now wrongfully imprisoned.

At the other extreme, one prosecutor and four judges thought 5% would be an acceptable wrongful conviction rate.

Three police respondents also thought 5% was an acceptably-low wrongful conviction rate. Four police respondents thought 10% would be acceptable. Two of them thought 15% would be okay. Astoundingly, one police respondent thought that a wrongful conviction rate of 20% was not too high.

On The Rate of Wrongful Conviction: Chapter 1.3

As I have mentioned five times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number

Chapter 0.5: The Huff Number

Chapter 0.8: The Prosecutor Number

Chapter 1.0: The Rosenbaum Number

Chapter 1.4: The Poveda Number

I work slightly backwards once again here, filling in with the Police Number at 1.3 percent. It's a short post.

Chapter 1.3
The Police Number

The Ramsey Ohio survey study introduced in Chapter 0.8 was so comprehensive that it allows me to determine four separate wrongful conviction estimates: one each for prosecutors, police, judges, and defense attorneys. The prosecutors were the most conservative in their estimate, guessing that the wrongful conviction rate for the country is 0.8%.  That number represents the median value from the survey, the value that split the prosecutors into two evenly-divided groups: one that guessed higher and one that guessed lower.

The second most conservative group within the Ramsey survey was the police. Regarding the survey question at hand, Ramsey received responses from 267 chiefs of police and county sheriffs. Recall that Huff had only 353 respondents from all four groups.

The police responses from the Ramsey survey are categorized below.

I will define the Police Number for the wrongful conviction rate in the same manner I defined the Prosecutor Number: I’ll determine the median police guess at the wrongful conviction rate using a plot. That plot is presented below. Based on that chart, I claim the single best number to represent the wrongful conviction rate estimated by the Ohio police responding to the Ramsey survey is 1.3%.

Consider the significance of the Police Number. If it is applicable to all people convicted, not just those who go to trial, it suggests that even the police believe we have 32,500 people wrongfully incarcerated in this country today.

<<>>

As mentioned in the earlier chapter dealing with the Ramsey survey, I noted that Ramsey was clever enough to ask for separate guesses of the wrongful conviction rate: one for the country as a whole and one for the respondent’s jurisdiction. It’s interesting to compare the two.

For the police, the national median guess was 1.3%, as just reported. For that same group of police, the median guess for their jurisdiction was 0.2%. On average, the police believed the wrongful conviction rate in their jurisdiction was less than one-sixth that of the national average. This bias is one of the reasons the Huff number is so low. Huff failed to clearly discriminate between guesses for the nation as a whole and the respondent's jurisdiction.

The number for prosecutors, by comparison, are 0.8% and 0.2%.