Obviously False Confessions, For Anyone Bothering to Look

Most wrongful convictions result from police and prosecutors extorting a plea bargain from an innocent person. A large number of these wrongful convictions are mundane by wrongful conviction standards. They involve drugs and theft. The more spectacular wrongful convictions more frequently require the assistance of an unwitting, insufficiently skeptical jury. They deal with murder and rape.

In this post, we take a look at the front end of the wrongful conviction process. We focus on one narrow segment of the wrongful conviction world: false confessions to charges of murder and/or rape.

Before we begin, allow me to disappoint any of you out there who still cling to belief that people never  have and never will falsely confess to a crime, much less one that could lead to death or life imprisonment. In The Substance of False Confessions, Brandon Garrett focuses on 40 cases of false confession proven false by DNA evidence. Perhaps the die-hard among you will hope that these 40 cases magically represent all the cases rather than simply the tip of the iceberg. For the remainder of you, read on.

In The Decision to Confess Falsely: Rational Choice and Irrational Action, Richards Ofshe and Leo discuss a common-sense method of detecting at least some false confessions. They suggest the police (and I suggest the jury also) should consider the the fit between the confession and the known facts of the case. (The police are in the best position to do this, and the jury is in the worst position.) Ofshe and Leo describe a number of cases where the prosecution of a clearly innocent person proceeded apace despite glaring inconsistencies between the confession and the facts. I repeat some of the them here, beginning with:

Johnny Lee Wilson was pardoned by the governor of Missouri in 1995 although he had confessed to arson, robbery, and murder in 1986.57 During interrogation, Mr. Wilson told police many facts that could be proven to be wrong and did not contribute any accurate information that would certainly have been known to the perpetrator. For example, he told the interrogators where to find the loot from the robbery -- but it was not there. Also, he was unable to tell them that a stun-gun was involved in the crime, that it had been lost in the house, and that the killers had set a fIre to destroy it. Years later, the real killer came forward, confessed, and proved his guilt. Although the stun-gun's existence had been kept secret, the true killer was able to tell the police all about it.

It seems as if we can add Johnny Lee Wilson's confession to the confirmed false confession list, given that the real killer (aka the OJ) confessed and provided critical information known to the police but unknown to Wilson.  Next, consider the case of Edgar Garrett, presumably no relation to Brandon Garrett.

Police in Goshen, Indiana. persuaded Edgar Garrett that he killed his daughter, Michelle, who had mysteriously disappeared. During fourteen hours of interrogation, Edgar Garrett gave an increasingly detailed confession describing how he murdered his daughter, whose body had not yet been found. No independent evidence linked him to the crime or corroborated his confession. At the same time, his post-admission narrative contradicted all the major facts in the case. Edgar Garrett confessed to walking into a park with his daughter through new-fallen snow, bludgeoning her with an axe handle at a river's edge, and dumping her body in the river. However, the police officer who arrived first at the crime scene did not see footprints in the snow-covered field at the entry to the park but, instead, saw tire tracks entering the park, bloody drag marks leading from the tire tracks to the river's edge, and a single set of footprints going to and returning from the river. Obviously, someone had unloaded Michelle Garrett's body from a vehicle and dragged it to the river, but Edgar Garrett did not own a car and no evidence was ever developed that he had access to one that day. Michelle Garrett's coat was recovered from the river separately from her body and had no punctures, suggesting that she had been killed indoors and transported to the river bank.

Edgar Garrett's confession regurgitated the theory the police held at the time of the interrogation: that his daughter had been clubbed to death. Weeks later, when Michelle Garrett's body was recovered, police learned that she had been stabbed thirty-four times; that her body showed no evidence of significant head trauma; and that the axe handle Edgar Garrett confessed to club her with showed no traces of her hair or blood. At trial, the jury acquitted Edgar Garrett.

Good for the jury. They stepped in and performed their constitutional duty of protecting the innocent against the excesses of the state.

A Flagstaff, Arizona, interrogator persuaded George Abney that he had murdered a woman he had never met. He promised Abney that if he cooperated he would not go to prison but rather would receive hospital treatment for the mental illness that allegedly caused him to kill. During the post-admission questioning, Abney was invariably wrong in his guesses about the crime facts, including the most basic essentials of the victim's description. Among many other things, Abney's interrogator insisted on knowing where the victim's missing clothing could be found. On the night Abney confessed, he was taken to the murder scene to help him remember the location of the clothing. He failed. Because he had been told that only by demonstrating remorse through cooperation would he receive hospital care rather than prison, more than a day later he called the interrogator to his cell and literally begged to be allowed to try again. He failed a second time. It was later discovered that Abney had an airtight alibi, which was corroborated by several witnesses who came forward as soon as his arrest was reported in the press. For these and many other reasons, including the identification of the likely killer, a jury acquitted Abney at trial.

Good for the jury once again. Unfortunately, most of those who confess falsely are not spared by the jury. None of the forty demonstrably innocent defendants discussed by Brandon Garrett were spared by the jury.

Richard Bingham confessed to murdering a young woman by himself in a forest in Sitka, Alaska, and was immediately arrested. At the time of Bingham's arrest, police had not tested the semen found in the victim's body, the foreign hairs found on her body or the fingerprint evidence found at the crime scene. When the DNA testing, the hair testing and the fingerprint comparisons were completed, the results all excluded Bingham. In addition, the perpetrator had silenced the victim by carefully packing a great quantity of mud into her mouth. The interrogators raised the subject of how the victim was silenced several times during the post-admission portion of the interrogation. Each time Bingham offered a commonplace guess that was wrong. At trial, the jury acquitted Bingham.

Here the police and prosecution pressed the case forward even though the DNA evidence excluded Bingham. Their logic is usually along the lines of: "The DNA doesn't prove he wasn't there and didn't participate. It only proves he had the assistance of someone else."  This lame-o alternative theory has been used so frequently it has been given a name: The Unindicted Co-Ejaculator Theory.

On Saturday, August 10, 1991, during the scorching summer, six Buddhist monks, a nun, and two acolytes were found shot to death at the Wat Promkunaram Buddhist temple in the far west area of Phoenix.  Maricopa County Sheriff's detectives subjected five mistakenly chosen individuals to psychological interrogation and succeeded in eliciting three false confessions to mass murder.

None of the three individuals from whom Maricopa County, Arizona, detectives coerced false confessions during the Phoenix Temple mass murder investigation could tell police where to find the missing loot or independently describe the physical facts of the crime. The real killers were eventually identified because they were in possession of the murder weapon on the night of the killings. When police searched their homes, loot from the robbery was found. The perpetrator who confessed was able to describe how the crime was planned, its execution, and a significant fact withheld from the public -- that certain graffiti had been left at the crime scene to mislead the police.

I'm currently helping, or attempting to help, with a case involving a false confession. The jury whiffed in this instance, and the defendant was sentenced to 50 year sentence without possibility of parole. All appeals have failed or been procedurally barred. I'll be writing more frequently of false confessions because of this case. I'll write too of the case itself. Stay tuned.

The UnSlam UnDunk Case of Richard Wayne Jones

In The Slam Dunk Case of Richard Wayne Jones I laid out the evidence that Richard Wayne Jones. abducted and brutally murdered Tammy Livingston. Everything I wrote was, as far as I know, true and accurate. The post was nonetheless deceptive and dishonest, and intentionally so. I have cautioned you before about people who might deceive and manipulate you. Perhaps now you'll trust me.

I realize that makes no sense, but such is the world of wrongful convictions.

Prosecutors, in theory, are not allowed to present untruthful information to the jury. Prosecutors, on the other hand, attempt to keep exculpatory information from the jurors. While the prosecutors are required to inform the defense of all potentially exculpatory evidence against the defendant, their willingness and ability to control what the jury hears is one of their most valuable tools. Consider, for example, the case of Richard Wayne Jones.

Let's consider that case, the State's case, as described by then Attorney General (now U.S. Senator) John Cronyn. I presented that case without comment in my previous post. I'll repeat it here, slowly, bit by bit, with annotations.

Texas Attorney General John Cronyn offers the following information on Richard Wayne Jones who is scheduled to be executed after 6 p.m. on Tuesday, August 22nd. Richard Wayne Jones was convicted and sentenced to death for the February 1986 murder of Tammy Livingston in Hurst, Texas. Livingston was stabbed to death 17 times and then the area around her body was set on fire.

Close enough, so far.

Jones followed Livingston as she was leaving a Michael's store at about 7:30 p.m.

The time is critical. Remember the time. 7:30 PM.

As Livingston was backing out of a parking space, Jones ran to the back of her car, opened her car door and then forced himself into the driver's seat.

Cronyn fails to mention that information is based on evidence provided by three eyewitnesses, specifically Ruthie Amato and her teenage daughters. The three eyewitnesses described the assailant as a clean shaven, white male with reddish-brown hair, who was wearing a red shirt. Jones (at that time) had blonde hair, a mustache, and was wearing a brown and gray plaid shirt. During the police line-up, Ruthie Amato identified Jones, though he did not meet the physical description she had provided earlier. Neither of the daughters were able to pick Jones from the line-up. Nonetheless, Ruthie and one of her daughters testified at trial that they were certain Jones was the person who had abducted the victim.

Later that evening, between 9:20 and 9:45, a Fort Worth resident heard screams coming from a vacant property.

 The time is critical. Remember the time. 9:30 PM, or thereabouts.

At about 11:20 that same evening, the Fort Worth Fire Department responded to a grass fire in the same area where someone had heard screams. It was there that firefighters discovered the charred remains of Tammy Livingston. Authorities determined that Livingston had been stabbed 17 times in the face and neck.

The time is critical. Remember the time. 11:30 PM, or just shy thereof.

The night after Livingston's murder, Jones bought a pair of boots with a credit card in the name of Tammy Livingston. Later that night, Jones and a woman tried to buy groceries at a Fort Worth Safeway with a check from the account of Tammy and Russell Livingston. The woman with Jones, Yelena Comalander, was arrested for trying to pass a check belonging to someone else.

More specifically, Yelena Comalander was Jones' teenage girlfriend, pregnant with their unborn child. 

The next morning, Livingston's car was recovered from a parking lot in Fort Worth. Jones' left thumb print was found on the inside of the front window of the driver's side of the car. Police also found several of Livingston's belongings including her engagement ring and her inscribed wedding band, at an apartment that Yelena Comalander took them to. Police arrested Jones a short time later.

The morning after Jones was arrested, an eyewitness to Livingston's kidnapping from the Michael's parking lot picked Jones out of a police line-up.

The State (via now U.S. Senator John Cronyn) fails to mention that neither of the daughters was able to pick Jones from the lineup, though one of the two teenagers later testified at trial that Jones was the one who abducted the victim. The eyewitnesses in this case show a common pattern of becoming increasingly confident in their identification as their memory ages, even when that identification conflicts with the initial description and was unsupported by a the results of a line-up.

Physical evidence also linked Jones to Livingston's murder.

That's true. Jones had two small spots of blood on his pants. The blood type matched that of the victim. Jones also had a barely detectable amount of blood on his boots, though that sample was too small to test. The amount of blood found on Jones is damning at first blush, then potentially exculpatory upon further consideration. If Jones had actually stabbed the victim so frequently and so brutally, one would expect Jones to be substantially more covered with blood.

Jones also signed a written statement, admitting to the kidnapping and murder of Tammy Livingston.

That's true. Jones confessed, but only after 21 hours of interrogation without food or sleep, only after the police threatened to subject his pregnant, teenage girlfriend to lethal injection, only after the police told him the State would take his child as soon as it was born and never allow him to see it.

During trial, one of his interrogators admitted that they had indeed so threatened Jones. The evening after that testimony, however, the officer apparently had an epiphany. He testified the next day that they had never threatened Jones as Jones claimed and as he had testified. Instead, he claimed his testimony from the previous day had been a misunderstanding. He somehow realized overnight that he misunderstood the question.

Jones had been out of prison for less than five months when he committed this murder.

That's true. Jones had been convicted in September 1983 of aggravated robbery with a deadly weapon. The sentence was seven years. He served two years and one month. He was released in October 1985, less than five months before the crime, just as (now U.S. Senator) John Cronyn wrote.

Jones signed a written statement admitting to kidnapping and murdering Tammy Livingston.

That's true. Cronyn fails to mention, however, that Jones' confession was demonstrably false based on the well-established timeline of the crime. Jones confessed that he had taken the victim straight  from the parking lot to the field, had killed her there soon after arriving, and then had set the field on fire in an attempt to cover the crime.

The timeline falsifies his confession. Recall that the eye-witnesses testified the victim was abducted near 7:30 PM, that the ear-witness testified he heard screams from the field around 9:30 PM, and that the fire department responded to the fire around 11:30 PM. There is no way that the well-established times are consistent with Jones' confession. They falsify Jones' confession, just as they would falsify the testimony of any witness who testified contrary to them. Astonishingly, the jury would somehow never learn of the time-critical errors in Jones' confession.

Jones recanted his confession, to no effect, and reverted to his initial claim that he was provided the items by someone named Walt. Walt, as it turns out was Walt Sellers, boyfriend of Jones' sister, Brenda Jones Ashmore. Jones foolishly played coy with Walt's identity early on because he wanted to protect his sister. Brenda had told him that she and Walt killed Tammy Livingstone and she asked him to help cover up the crime.

Jones version of events is that he arrived home from work and soon thereafter went with Brenda, at Brenda's request, to Walt's house. There he met Walt Sellers who had blood all over his shirt and arms. Walt sold him Livingston’s checks, credit cards, jewelry, and car on the condition that Jones help destroy the crime scene.

Jones admitted using Livingston’s credit cards and checks but denied kidnapping or murdering Livingston or burning her body. Unlike his confession, his original story is entirely consistent with all the evidence in the case. His story is also supported by five other people, none of whom testified at trial. More on those five people soon.

Jones' thumb print was found inside the front window of Tammy Livingston's car.

That's true. In her grand jury testimony Yelena Comalander (Jones' pregnant, teenage girlfriend) explained the thumbprint, the car, and the other items during her grand jury testimony.  Her testimony corroborated that of Jones. She testified that Jones came home from work on the night of the murder and immediately left in his mother’s car. He returned later, with his sister, Brenda, in the victim's station wagon. He did not have any blood on him. He gave her (Yelena) the credit cards and checks from a purse in the car. He told her he obtained the car and the purse from “Walt.” They drove to a parking lot where Jones’ mother’s car was parked. She drove his mother’s car to another parking lot where Jones left the station wagon. They then drove around together, tried to use Livingston’s bank card, went home to pick up gasoline, and then went to a field where Jones lit the field on fire.

During her grand jury testimony, Yelena testified she lied to the police in her  initial statement when she implicated Jones. She did so because the police threatened her with capital murder charges.

The prosecution could easily have charged her with perjury right then and there, had they been so inclined. Instead, they used the admitted conflict between her police statement and her grand jury testimony to prevent her from testifying during trial on Jones' behalf. When called to testify, she took the Fifth, refusing to testify because she feared prosecution for perjury. The defense asked that she be granted immunity from prosecution, but the State and the Court refused. The jury never heard from Yelena and the the prosecution did not charge her with perjury. It all worked out well, for almost everyone. (This reminds me of The Well-Orchestrated Trial and Execution of David Wayne Stoker.)

An eyewitness who saw Jones kidnap Livingston from the Michael's parking lot picked Jones out of a police line-up.

I addressed the eyewitness testimony after Cronyn first brought it up. This is now the third time Cronyn has mentioned it while continuing to omit critical details.

A pair of jeans and a shirt Jones was wearing the night of Livingston's murder were found to have blood on them that was the same blood type as Livingston's.

That's true. That's the physical evidence Cronyn alluded to earlier. The defense position was that Jones' small samples of blood transferred to Jones' pants and boots as he walked through the field which had been already contaminated with blood from the victim. They argued that the actual killer would have blood all over his shirt, arms, and elsewhere. That would be someone like "Walt", Walt Sellers.

Jones is not the only person to have claimed seeing Walt covered in blood, and/or in possession of the victim's checks, but Jones is the only one the jurors would hear make that claim. Scott Christian testified to the grand jury that Walt Sellers tried to sell him credit cards and checks, and that Walt had blood splatters on his T-shirt, hands and forearms. James Richard King testified to the grand jury that he saw Walt Sellers in a bloody shirt early in 1986, when Walt was trying to sell checks. Douglas Wayne Daffern said he saw Sellers with credit cards and checks bearing the name Livingston.

Scott Christian would not testify at Jones' trial. As did Yelena Comalander, Scott Christian would refuse to testify, invoking his Fifth Amendment right against self-incrimination. The prosecutors were threatening him with prosecution for drug charges.

Neither James Richard King nor Douglas Wayne Daffern would even appear in court. Instead, they mysteriously disappeared before trial. (This reminds me of the convenient disappearance of Jamie Smith and Audrey Davis before The Trial of Cory Maye.)

Jones bought a pair of boots with a credit card in the name of Tammy Livingston, the night after Livingston was murdered.

Cronyn never makes clear whether the boots Jones purchased were the ones he was wearing when arrested, the ones that had a sample of blood too small to test.

Jones and another woman, Yelena Comalander, tried to buy groceries with a check that was traced to the account of Tammy and Russell Livingston.

And so ends Cronyn's summary, not with a bang but with a whimper.

When all was said and done, the jurors would convict Jones presumably on the basis of his confession, the eye-witness testimony, the blood on his pants, his fingerprint on the victim's car, and his attempted use of the victim's financial documents. The prosecution had plenty. The defense had only Jones' uncorroborated story that he got all the stuff from Walt and burned the field in partial payment thereof.

The jurors never heard corroboration from Yelena Comalander. She took the Fifth, in fear of prosecution for perjury. The defense attempted to introduce her grand jury testimony in her place, but the prosecution objected and the Court stood with the State.

The jurors never heard from Scott Christian who testified earlier that Walt Sellers was covered in blood as he tried to sell the victim's documents. Scott Christian took the Fifth and the Jones' prosecutors declined to waive prosecution of Christian.

The jurors never heard from James Richard King who testified earlier that Walt Sellers was covered in blood as he tried to sell the victim's documents. James Richard King mysteriously and conveniently disappeared before trial. The defense attempted to introduce his grand jury testimony in his place, but the prosecution objected and the Court stood by the State.

The jurors never heard from Douglas Wayne Daffern who testified earlier that Walt Sellers had been in possession of Tammy Livingston's checks. Douglas Wayne Daffern mysteriously and conveniently disappeared before trial. The defense attempted to introduce his grand jury testimony in his place, but the prosecution objected and the Court stood by the state.

Somehow, the jurors never learned of the conflict between the timeline of Jones confession and the actual timeline. It would have made no difference in any case.

The jurors never heard either from Terry Gravelle nor Robert Dean Miller. After Jones' convictions, Gravelle and Miller each served time with Walt Sellers, who as it turned out was also a low-life. Gravelle affirmed that Walt Sellers told him Jones was innocent and chuckled about his conviction. Walt explained that "there was a problem using the stolen checks or cards" so he gave them to Jones. Miller affirmed a similar conversation with Walt.

The appellate courts would be unmoved by the circumstances or flimsiness of Jones' confession. They would be similarly unmoved by the inability of the defense to introduce the testimony of three people who would corroborate Jones' testimony, or by the post-conviction affidavits of two reverse snitches. Nor would they command testing of potentially exculpatory DNA.

Oh! Did I fail to mention there was DNA? Well there was. Before Texas could execute Richard Wayne Jones, the case took a twist that will be of interest to those who have been following this blog. Rob Owen, the person primarily responsible for bringing Hank Skinner's case to the Supreme Court, became involved with Jones' appeal. (Rob Owen was also involved in the appeal of  Robert Nelson Drew.) Rob tried mightily to have DNA from the crime scene tested. He was particularly interested in having the rape kit tested. (This sounds so familiar.) The courts refused and Rob made his final appeal to the Governor.

This is where the case takes another interesting twist. The Governor at the time was George Bush, but Bush was out of state. Instead, the last minute appeal for DNA testing fell upon then Lieutenant Governor Rick Perry. That's right, the same Rick Perry who has refused to order testing of potentially exculpatory DNA in the Hank Skinner case.

It's been clear to me that Rick Perry owns the execution of Cameron Todd Willingham, and has been trying mightily to see that the investigation into that execution not move forward. It's also abundantly clear that Rick Perry will own the execution of Hank Skinner, should that take place. Now I learn that Rick Perry owns the execution of Richard Wayne Jones.

Amazing.

Finally, I present my Actual Innocence Scorecard for Richard Wayne Jones. I score him at 77. I believe it is three times as likely that Richard Wayne Jones was factually innocent as it is he was factually guilty.

 

If you read the post just prior to this one, and if you are honest with yourself, I suspect you are now surprised that I scored Jones so high, that I scored him much above zero. That's because I deceived you previously by withholding information. Perhaps now you'll trust me when I tell you to trust no one, to instead be a skeptical juror.

The Slam Dunk Case of Richard Wayne Jones

In my search for the 54 innocent people I calculated Texas may have executed, I passed Richard Wayne Jones through my coarse filter for two reasons. First, he used his final breaths to declare his innocence.

"I want the victim's family to know that I didn't commit this crime. I didn't kill your loved one. Sharon Wilson, y'all convicted an innocent man and you know it. There are some lawyers hired that are gonna prove that, and I hope you can live with it. To my family and loved ones, I love you. Thank you for supporting me. Y'all stay strong. Warden, bring it on....".

Second, the folks at Northwestern had listed him a someone possibly innocent but certainly executed. I trust the folks at Northwestern so I allowed Jones 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, 0.1
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, 75
Robert Madden
Justin Lee May
Frank Basil McFarland
Charles Rector
Kenneth Ray Ransom

David Spence, 90

David Stoker, 73
Martin Vega

Richard Wayne Jones was executed on August 22, 2000 for the brutal murder and mutilation of Tammy Livingston. From the Clark Country Prosecutor, we find this summary.

Texas Attorney General John Cornyn offers the following information on Richard Wayne Jones who is scheduled to be executed after 6 p.m. on Tuesday, August 22nd. Richard Wayne Jones was convicted and sentenced to death for the February 1986 murder of Tammy Livingston in Hurst, Texas. Livingston was stabbed to death 17 times and then the area around her body was set on fire. 

Jones followed Livingston as she was leaving a Michael's store at about 7:30 p.m. As Livingston was backing out of a parking space, Jones ran to the back of her car, opened her car door and then forced himself into the driver's seat. Later that evening, between 9:20 and 9:45, a Fort Worth resident heard screams coming from a vacant property. At about 11:20 that same evening, the Fort Worth Fire Department responded to a grass fire in the same area where someone had heard screams. It was there that firefighters discovered the charred remains of Tammy Livingston. Authorities determined that Livingston had been stabbed 17 times in the face and neck.

The night after Livingston's murder, Jones bought a pair of boots with a credit card in the name of Tammy Livingston. Later that night, Jones and a woman tried to buy groceries at a Fort Worth Safeway with a check from the account of Tammy and Russell Livingston. The woman with Jones, Yelena Comalander, was arrested for trying to pass someone else's check. The next morning, Livingston's car was recovered from a parking lot in Fort Worth. Jones' left thumb print was found on the inside of the front window of the driver's side of the car. Police also found several of Livingston's belongings including her engagement ring and her inscribed wedding band, at an apartment that Yelena Comalander took them to. Police arrested Jones a short time later.

The morning after Jones was arrested, an eyewitness to Livingston's kidnapping from the Michael's parking lot picked Jones out of a police line-up. Physical evidence also linked Jones to Livingston's murder. Jones also signed a written statement, admitting to the kidnapping and murder of Tammy Livingston. Jones had been out of prison for less than five months when he committed this murder.

Jones signed a written statement admitting to kidnapping and murdering Tammy Livingston. Jones' thumb print was found inside the front window of Tammy Livingston's car. An eyewitness who saw Jones kidnap Livingston from the Michael's parking lot picked Jones out of a police line-up. A pair of jeans and a shirt Jones was wearing the night of Livingston's murder were found to have blood on them that was the same blood type as Livingston's. Jones bought a pair of boots with a credit card in the name of Tammy Livingston, the night after Livingston was murdered. Jones and another woman, Yelena Comalander, tried to buy groceries with a check that was traced to the account of Tammy and Russell Livingston.

And that’s about it. During his appeal, Jones argued the state's case was technically flawed, but basically agreed the evidence was sufficient to justify the verdict.

Richard Wayne Jones, appellant, was convicted by a jury of capital murder, specifically murder committed in the course of kidnapping and robbery. ... The jury answered the special issues in the affirmative and punishment was assessed at death. ... He has appealed alleging twenty-four points of error, but does not challenge the sufficiency of the evidence. We will affirm his conviction.

I won’t even present an Actual Innocence Scorecard for Richard Wayne Jones. Sometimes ...

On The Rate of Wrongful Conviction: Chapter 11.4

As I have mentioned many 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
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number
Chapter 5.4: The Defense Number
Chapter 9.5: The Inmate Number
Chapter 10.1: A Skeptical Juror Number
Chapter 11.1: A Skeptical Juror Number

As we draw near the end of this series, we return to another guess estimate. This one is based not on a survey of prosecutors, police, or judges. Instead it is based on a survey of commoners. You might find it an interesting read. It seems as if we commoners may be more savy than our protectors give us credit.

Chapter 11.4
The Common Man Number

One group of guessers has so far been overlooked. That group is the source of our juries, the American public. As you might recall, 50% of the prosecutors surveyed by Robert Ramsey guessed that our country’s wrongful conviction rate was less than 0.8%. In that same survey, police guessed the number to be less than 1.3% and judges guessed less than 1.9%.

Since 1999, those who conduct the Harris Poll have repeatedly asked the American public what they thought. More specifically, the pollsters asked the public to estimate the number of convicted murderers who were wrongfully convicted.  I quote from a summary of a March 2008 poll.

There is one issue almost all Americans agree on – 95 percent of U.S. adults say that sometimes innocent people are convicted of murder while only 5 percent believe that this never occurs. This is a number that has held steady since 1999. Among those who believe innocent people are sometimes convicted of murder, when asked how many they believe are innocent, the average is 12 out of 100 or 12 percent.

Apparently, 5% of the American public neither reads newspapers, watches television, nor has an internet account. Alternatively, 5% of our public consists of police and prosecutors who steadfastly refuse to acknowledge they might make an error.

Taking into account that 5%, the average estimate for the entire poll sample was 11.4%. That’s the percentage of people convicted of murder who are factually innocent, at least according to the best guess of Jane and Joe Q. Public. That number is surprisingly close to the 9.1% value I calculated for jury trials based on judge-jury agreement data. It’s even closer to the 10.1% value I calculated based on irreversibly-resolved capital murder cases. If the calculations just mentioned are correct, the commoner has far better insight into this serious social problem than do police, prosecutors, judges, and defense attorneys.

<<>>

Not surprisingly, the common-man estimates were strongly influenced by race. Whites, who comprise a disproportionately small percentage of those in prison, believe that 9% of those convicted of murder are wrongfully convicted. Blacks, on the other hand, are imprisoned at 6 times the rate of whites. They believe that 25% of those convicted of murder are wrongfully convicted. The trends are shown in the table and plot below.

Another striking number appears in the box enclosed at the bottom-right corner of the table. It  is an average estimated value of wrongful convictions for murder, weighted by the ratio of percentage-prison-population to percentage-general-population. That weighted average of 16.5% is nearly identical to the Inmate Survey number of 17.5%. The comparison suggests that those most impacted by wrongful convictions are best at estimating its frequency.

<<>>

Finally, consider if you will the following plot. It shows the relationship between estimates of wrongful conviction rates for murder and measures of prosecution / conviction errors for murder. I’ll detail the plot in the notes, but I want to focus here on the message. Those who are most confident we seldom convict the innocent are most prone to error. Police and prosecutors, for example, estimate that only 2% of our convictions are wrongful convictions; 22% of those they send to trial, however, are innocent (at least based on my judge-jury agreement analysis.) At the other extreme, the common man predicts a wrongful conviction rate six times greater, yet errs at one-third the rate.

Those who are most confident, are most likely to err. Those who are less confident, are less likely to err. Those who are the most directly impacted are most likely to perceive that we, as a society, have a serious problem.

Notes:
1. For the Harris Poll summary, see Regina A. Corso, Harris Poll #28, March 18, 2008.
http://www.harrisinteractive.com/vault/Harris-Interactive-Poll-Research-Over-Three-in-Five-Americans-Believe-in-Death-Penalty-2008-03.pdf

2. For the racial / ethnicity distribution of our general and prison populations, see Wikipedia
http://en.wikipedia.org/wiki/Race_and_crime_in_the_United_States

3. In the first plot, the estimated wrongful conviction rates for murder excluded those 5% of respondents who believe we have yet to wrongfully convict anyone of murder.

4. In the second plot, the estimated wrongful conviction rates are average numbers (mean values), not 50% numbers (modes) as I previously discussed in earlier chapters. While it is correct to use the mean numbers in the plot, the sense of the plot would have been little changed had I used some combination of mode and mean values for the estimated wrongful conviction rates.

5. In the second plot, the estimated wrongful conviction rates are for all crimes. The errors are murder related errors.

Hank Skinner Has a Date with The Supremes

The U.S. Supreme Court has announced it will hear the case of Hank Skinner v. Lynn Switzer just one month from today, on 13 October 2010. The question to be answered is:

May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

Skinner's (not so) brief is here. Switzer's (not so) brief is here.  My (overly-simplified) brief is thus: Skinner argues justice masked as procedure; Switzer argues procedure masked as procedure.

Skinner argues "A holding that an access-to-evidence claim lies at the 'core' of habeas would indefensibly broaden the scope of the Great Writ," while Switzer argues "Skinner’s Claim ... Is Not Cognizable Under §1983."

Skinner argues "Requiring claims such as Mr. Skinner’s to be brought in habeas would create great difficulty in reconciling the habeas statute with ... varying procedures for DNA testing," while Switzer argues "Skinner’s Challenges Are Jurisdictionally Barred by the Rooker-Feldman Doctrine."

Skinner argues "Allowing post-conviction DNA testing claims ... would be true to the principles of separation of powers, comity, and stare decisis," while Switzer argues "Switzer Is Not the Appropriate Defendant for Skinner’s As-Applied Challenge."

And that is but an overly-simplified overview of the legal knot the Supremes must untangle.

If Skinner wins, he will still have a long road ahead of him before any possible new trial. 

If Skinner loses, he will have a short road ahead of him, one that culminates at the Texas death chamber.

If Skinner wins, some of the quarter million people we now have wrongfully incarcerated may have a new glimmer of hope.

If Skinner loses, those who claim to protect us will have even less reason to concern themselves with those those they wrongfully convict, incarcerate, and execute.

I hope Skinner wins.