Innocent Jack McCullough will be released from prison today

April 15, 2016

Jack McCullough will be released from prison in Illinois today after serving four years of a life sentence for kidnapping and murdering 7-year-old Maria Ridulph. The crime was committed on December 3, 1957, but no one was prosecuted until 2012, when DeKalb County State’s Attorney Clay Campbell convicted McCullough.

Campbell’s successor, DeKalb County State’s Attorney Richard Schmack reviewed the case after defeating Campbell in an election. He concluded that McCullough could not have committed the crime because he was 40 miles from the scene of the crime when it was committed. According to Illinois Bell telephone records McCullough called his family collect from an Air Force recruiting office in Rockford, Illinois at 6:57 pm. Maria Ridulph disappeared between 6:45 p.m. and 6:55 p.m.

Schmack also challenged the accuracy and reliability of an eyewitness identification of McCullogh by Maria’s friend with whom she had been playing in the snow when a young man offered to give Maria a ride on his shoulders. First, she identified McCullogh more than 50 years after the incident. Second, the photo was unnecessarily suggestive since McCullough’s photo stood out from the others in a photo array of six photographs because they were professional yearbook photographs and each person was wearing a suit coat.

Yet another example of the unreliability of eyewitness identifications.

Fortunately, an honest and ethical prosecutor corrected the wrongful conviction.

Read more here.


Is Oklahoma about to execute an innocent man?

September 13, 2015

Richard Glossip is scheduled to be executed by the State of Oklahoma on Wednesday. He was convicted of killing his boss, Barry Van Treese, who was bludgeoned to death with a baseball bat at a Best Budget Inn in Oklahoma City that Van Treese owned. The only witness against him was the person who confessed to the murder, a 19-year-old named Justin Sneed who worked as a maintenance man at the motel. The Guardian reports,

There is no DNA or nor any fingerprints linking him to the 1997 murder of Van Treese in the Best Budget Inn in Oklahoma City. His lawyers this week noted that the prosecutors themselves admitted in 2004 that “the physical evidence doesn’t directly implicate Mr Glossip”.

Rather, Glossip was convicted based on the testimony of Justin Sneed, a 19-year-old maintenance worker who, at various points during his police interrogation a week after the murder, said he didn’t know Van Treese, then that he didn’t kill van Treese, then that he had killed him accidentally, and then that he had killed him intentionally, under Glossip’s instruction. Eventually, Sneed agreed to a plea deal in which he would testify against Glossip to save himself from the death penalty.

Transcripts of the police interrogation show Sneed first denied any knowledge of the murder. “I don’t really know what to say about it,” he told investigators, stumbling over a story about his brother before admitting that he robbed Van Treese but “I only meant to knock him out”.

“The thing about it is, Justin, we think – we know that this involves more than just you, okay?” Detective Bob Bemo said to Sneed, later introducing Glossip as a snitch. “You know Rich is under arrest don’t you?… [H]e’s putting it on you the worst.”

Sneed’s story shifted.

“Actually, Rich asked me to kill Barry, that’s what he’d done,” Sneed said, and investigators took the conversation off-camera, where Sneed signed a plea deal.

This is an excellent example of how an innocent person can be wrongfully convicted and sentenced to death. A few days ago, Barry Scheck, the co-director of the Innocence Project, wrote a letter to Oklahoma Governor Mary Fallin asking her to stop his execution. He asked the right question,

Why would anybody trust this testimony, given by a man like Sneed under the circumstances in which he gave it? But if Sneed was lying about Glossip’s involvement — as he unquestionably lied in his various contradictory statements–then Oklahoma is about to execute an innocent man.

The Death Penalty Information Center has the following update on Richard Glossip:

Former Oklahoma Senator Tom Coburn (pictured), former Oklahoma Sooners and Dallas Cowboys football coach Barry Switzer, and John W. Raley, Jr., the former chief federal prosecutor for the Eastern District of Oklahoma, have joined with innocence advocates Barry Scheck, Co-Director of the Innocence Project, and Samuel Gross, editor of the National Registry of Exonerations, in a letter to Oklahoma Governor Mary Fallin urging her to stay the execution of Richard Glossip.

I have long argued that no conviction that is based solely on the uncorroborated testimony of a codefendant or jailhouse snitch should stand. Such a rule is a necessary part of any meaningful criminal justice reform.


Anthony Ray Hinton is free at last after 30 years on death row

April 4, 2015

Anthony Ray Hinton is free at last after 30 years on death row. The Washington Post reports,

Anthony Ray Hinton was one of Alabama’s longest-serving death row inmates, having spent more than half his life incarcerated. Now, after three decades of insisting that he is innocent in the 1985 murders of two men, the 58-year-old Hinton is finally a free man.

“The sun does shine,” Hinton said just after his release from jail on Friday, according to AL.com.

His freedom came down to the same four bullets that put him in jail to begin with.

“I shouldn’t have (sat) on death row for 30 years,” he told reporters according to CNN. “All they had to do was to test the gun.”

He added: “Everybody that played a part in sending me to death row, you will answer to God.”

Hinton was convicted of two separate killings of restaurant workers — the Feb. 25, 1985, slaying of John Davidson, and the July 2, 1985, killing of Thomas Vason — even though there were no eyewitnesses linking Hinton to the crimes, no fingerprints linking him to the scene, and no other physical evidence except for the questionable link between a set of bullets and a gun found in Hinton’s home.

Subsequent tests of the only physical evidence in the case raised serious doubts about whether the weapon in Hinton’s home had fired those bullets — and it even called into question whether the bullets were all fired from the same gun.

Why was he convicted, you ask? His lawyer thought he was limited to spending $1,000 to hire an expert, so he hired a civil engineer who was blind in one eye, could not handle a microscope and did not know much about ballistics. Needless to say, he did not fare well on cross examination.

The United States Supreme Court (SCOTUS) unanimously vacated his conviction and death sentence last year and remanded the case to the trial court to hold a hearing to determine if his lawyer’s failure to provide effective assistance of counsel prejudiced his defense. He was granted a new trial and on Wednesday prosecutors filed a motion to dismiss the case on the ground that three ballistics experts could not link the bullets to the gun.

Thanks to one of my heroes, Bryan Stevenson, Anthony Ray Hinton is free at last.


2014 was a record year for post-trial exonerations

January 29, 2015

Criminal justice is an oxymoron, but sometimes the legal system gets it right. Unfortunately, getting it right often does not happen until after the case is over.

In the better-late-than-never category, Mother Jones is reporting,

In 2014, 125 people across the United States who had been convicted of crimes were exonerated—the highest number ever recorded,according to a new report from the National Regestry of Exonerations at the University of Michigan Law School. The 2014 number included 48 who had been convicted of homicide, 6 of whom were on death row awaiting execution. Ricky Jackson of Ohio spent 39 years behind bars, the longest known prison term for an exoneree, according to the NRE. Jackson was sentenced to death in 1975 after false testimony implicated him in a robbery-murder he did not commit. Texas led the nation with 39 exonerations; it is followed by New York (17), Illinois (7), and Michigan (7). The federal government exonerated eight people.

Most of these post trial exonerations were obtained by so-called conviction integrity units (CIUs) created and staffed by prosecutors. There are 15 now in existence with more to come.

The Harris County CIU, which encompasses Houston, is responsible for 33 of last year’s exonerations. In early 2014, it reviewed drug cases it had prosecuted after learning that many people who had pled guilty to possession had not, in fact, possessed actual drugs. The Harris CIU’s findings reflected another trend: 58 exonerations this year, nearly half of the total, were so-called “no-crime exonerations,” which means, according to the NRE, “an accident or a suicide was mistaken for a crime, or…the exoneree was accused of a fabricated crime that never happened.”

Channel 5 News in Cleveland reports,

In Baltimore, the State’s Attorney’s office helped vacate the conviction of a man 46 years after he was convicted of murder. In Cleveland, three men convicted of a 1975 murder they didn’t commit were cleared, setting a new record of time behind bars for an exoneree: 39 years, 3 months 9 days. In Tulsa, DNA testing showed a mother hadn’t killed her 15-month-old baby, leading prosecutors to dismiss charges after nearly 20 years. And in Detroit, a man was released after police got a tip that the wrong person had been convicted in a 2006 murder.

Now we need to improve on getting it right the first time.

But if you’re black, you better not count on it because, if you call 911 seeking help, you are apt to get killed.


Debra Jean Milke is free after spending 22 years on death row

December 12, 2014

Friday, December 12, 2014

Good evening:

Debra Jean Milke is finally free after spending 22 years on death row in Arizona for a murder she did not commit: the murder of her 4-year-old son Christopher. The cause of her wrongful conviction was egregious misconduct by an obsessed police detective who played God and a prosecutor who covered up for him. Judge Kozinsky, the Chief Judge of the Ninth Circuit Court of Appeals, lays out the facts:

On the last evening of his short life, Christopher Milke saw Santa Claus at the mall. He woke up the next morning begging his mother to let him go again. Debra agreed and sent Christopher to the mall with her roommate, James Styers. On the way, Styers picked up his friend, Roger Scott. But instead of heading to the mall, the two men drove the boy out of town to a secluded ravine, where Styers shot Christopher three times in the head. Styers and Scott then drove to the mall, where they reported Christopher as missing.

Sunday morning, less than a day into the missing-child investigation, police began to suspect Styers and Scott. It was supposed to be Detective Saldate’s day off, but the homicide sergeant in charge of the case called him in. A veteran of the police force, Saldate was confident he could get the truth out of anyone he interrogated. At headquarters he started in on Styers almost immediately, while his partner, Detective Bob Mills, worked on Scott. Shortly before 1 p.m., Saldate joined Mills in interrogating Scott. According to Saldate, Mills and other officers were happy to let a suspect talk, but Saldate’s “style,” as he described it, was “a little different” — he preferred a frontal assault. “I knew that I was going to be straightforward with [Scott], I was going to be very truthful with him, but I was going to make sure that whatever he told me was going to jive with the facts.”

Soon after Saldate’s appearance, Scott broke. He led the detectives to Christopher’s body and told them where he and Styers had thrown the unspent ammunition. According to Saldate, Scott said along the way that Debra Milke had been involved.Detective Saldate seized on the statement and flew by helicopter to Florence, Arizona, where Milke had gone to stay with her father and step-family after she learned of Christopher’s disappearance.

In Florence, a deputy sheriff invited Milke to headquarters to wait for Saldate. Saldate found Milke waiting in a 15-by-15-foot room of the Pinal County jail. She hadn’t been arrested, nor had she been told anything about Christopher. Saldate pushed into the room and introduced himself. He pulled his chair close to Milke, a forearm’s length at most, and leaned in even closer. That’s when he told her that the police had found her son — dead.

“What, what,” Saldate testified Milke said. Saldate also reported that Milke started yelling and “seemed to try crying.” But the detective saw through the ploy: “When someone is told that their child was murdered and they start to sob and no tears come to their eyes, it’s obviously a way for her to try to make me feel for her, and I didn’t buy it. I didn’t buy it….”

Saldate placed Milke under arrest and read out her Miranda rights. According to Saldate, when Milke started to tell him that she’d complained about Christopher to Styers but never realized Styers would hurt the boy, Saldate shut her down: “I immediately, of course, told her that wasn’t the truth and I told her I wasn’t going to tolerate that, that I wasn’t there to listen to lies, nor did I have the time.”

With that, Saldate claims, Milke opened up to him about the most intimate details of her life. He testified that, in the span of just thirty minutes, Milke knowingly waived her rights to silence and counsel, reminisced about her high school years when she was “in love with life,” feigned tears, calmed down, narrated her failed marriage to Mark Milke — his drug and alcohol abuse and his arrests — recounted how she’d gotten pregnant while on birth control and contemplated an abortion, even making an appointment for one, discussed her fear that Christopher was becoming like his father, confessed to a murder conspiracy, characterized the conspiracy as a “bad judgment call” and solicited Saldate’s opinion about whether her family would ever understand. (His view: No.)

By the end of the interview, Saldate had more than just cinched the case against Milke; he’d helped her emotionally. According to Saldate, Milke said she was “starting to feel better and was starting to get some of her self-esteem back.” Saldate also testified that Milke asked whether she would be released that night, and when he said she wouldn’t be, she asked whether the court could give her “probation for life” if “she could have her tubes tied and never have children again.”

Gasp! What a guy! A living, breathing, no bullshit polygraph machine. If only we had more detectives like him, we would not need courts. We could just take the guilty out into the desert, order them to dig their own grave, cuff them with their hands behind their back, force them to kneel by the side of the grave, execute them with a single gunshot to the back of the head and kick their body into the grave.

Milke had a different story. She denied confessing and claimed innocence. She said she asked for a lawyer, but he refused her request and kept telling her she was a liar.

The trial was a swearing contest between Milke and Detective Saldate with no corroborating evidence to support either one. Juries generally believe cops in swearing contests and this case was no exception. The jurors believed him and she was sentenced to death.

The Ninth Circuit reversed the conviction because the prosecution withheld powerful exculpatory information about Detective Saldate from the defense that likely would have resulted in an acquittal if the jury had known about it. Again, here’s Judge Kozinsky,

Normally that would be the end of the matter. Right or wrong, a jury’s credibility determinations are entitled to respect. But the Constitution requires a fair trial, and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence. This never happened in Milke’s case, so the jury trusted Saldate without hearing of his long history of lies and misconduct.

The Appendix contains summaries of some of Saldate’s misconduct and the accompanying court orders and disciplinary action. This history includes a five-day suspension for taking “liberties” with a female motorist and then lying about it to his supervisors; four court cases where judges tossed out confessions or indictments because Saldate lied under oath; and four cases where judges suppressed confessions or vacated convictions because Saldate had violated the Fifth Amendment or the Fourth Amendment in the course of interrogations. And it is far from clear that this reflects a full account of Saldate’s misconduct as a police officer. See pp. 1010-11 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

The Ninth Circuit reversed and remanded her case for a new trial. The prosecution was unable to retry her because the Saldate refused to testify. He took the Fifth because he is being investigated by the feds. Milke’s lawyers moved to dismiss the case and yesterday the Arizona Court of Appeals ordered the case dismissed. The Court wrote,

The failure to disclose the evidence “calls into question the integrity of the system and was highly prejudicial to Milke, In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.

Comments on Torture

Normally, I would stop here, but I am compelled to go further because of the right wing reaction to the Senate torture report. Make no mistake. The torturers, their enablers, and those who have willfully and intentionally concealed what they did belong in prison for the rest of their lives. That includes the two sex-psycho psychologists James Mitchell and Bruce Jessen, who were paid $81 million to feed their addictions, President George Bush, Vice President Dick Cheney, and CIA Director George Tennant. Torture is unlawful and never justified, ever. I have heard a lot argument about whether it provided useful information, but that is irrelevant.

I oppose Anthony Romero’s proposal that President Obama pardon the torturers. He is the Executive Director of the ACLU whom I normally support. However, I cannot do so this time because a pardons send the wrong message. Even though a pardon does not technically excuse the criminal behavior, people throughout the world would misinterpret it as a form of approval. I believe we have a right to insist that not be done in our names. These sadistic sexual psychopaths are war criminals, not patriots who got a little carried away.

We have developed a standardized procedure in this country for interrogating people suspected of committing crimes. It does not work all the time because we still see examples of false confessions. It does appear to work most of the time

Detective Saldate did not follow that standard procedure, which is so ingrained that police can recite it in their sleep. When they vary from it, one can reasonably assume they did so to conceal misconduct.

The standard procedure:

1) audio and video record the interrogation;

2) provide the suspect with a standard printed form that informs her of her Miranda rights:

– right to remain silent

-anything she says can be used against her in a court of law

-right to consult with a lawyer and have the lawyer present during any questioning

-right to have the court appoint a lawyer if she cannot afford to hire one.

3) Read her the rights, have her initial each one as they are read, and have her acknowledge that she understood her rights by signing the acknowledgement

4) Have her sign the waiver, if she agrees to give up her Miranda rights and give a statement.

5) Write out her statement

6) Have her read it out loud and sign it acknowledging that it is voluntary, true and correct.

It’s generally a good idea to have another detective present to witness the interrogation.

This procedure was adopted by the United States Supreme Court in Miranda v. Arizona, 384 US 436 (1966) with the hope of finally stopping police from extorting involuntary or false confessions from suspects, a widespread practice often involving the use or threatened use of torture to break the suspect’s will to resist. No one knows how many innocent people have been convicted, imprisoned and executed because of false confessions but it remains a problem despite Miranda.

Please read it, if you have any doubts about the efficacy of torture.

Meanwhile, Detective Saldate and the prosecutor who concealed Saldate’s odious history of playing God and committing perjury to obtain convictions should spend the rest of their lives in prison.

They almost cost Debra Jean Milke her life.


Wrongful convictions of three innocent men 39 years ago in Ohio set aside

November 21, 2014

Friday, November 21, 2014

Good morning:

Good news today.

Professor Mark Godsey, Director of the Ohio Innocence Project at the University of Cincinnati College of Law, writes in today’s Huffington Post,

This morning, Ricky Jackson walked out of the Cuyahoga County courtroom in downtown Cleveland a free man after 39 years in prison–several of those on death row–for a murder he didn’t commit. The last time he tasted freedom was in 1975 when a postage stamp cost 10 cents, Gerald Ford was president, Pete Rose was the World Series MVP, Billie Jean King won Wimbledon, and Saturday Night Live had just premiered.

Jackson and his codefendants, Wiley and Ronnie Bridgeman, are black. They were convicted of murdering a white businessman named Harry Franks and sentenced to die in the electric chair in 1975. Their sentences were commuted to life in prison after the Supreme Court of the United States (SCOTUS) declared a similar Georgia death penalty statute unconstitutional.

Police misconduct caused their wrongful convictions. They terrified a 12-year-old boy, Ed Vernon, who initially lied to police claiming he witnessed the shooting when, in fact, he was a passenger in a school bus a couple of blocks away and did not see it. When he attempted to recant his statement, they screamed, threw objects at him and threatened to send his parents to prison for attempting to get him to change his story. He capitulated, testified in court and identified them as the killers.

Vernon recanted his story under oath in court last week and two witnesses who had been riding on the bus with Vernon that day testified that no one on the bus could have witnessed the murder because the location where it happened was not visible.

I suspect ineffective assistance of counsel played a role in the wrongful convictions because defense counsel should have assigned an investigator to check-out the scene and interview the school bus driver and all of the students on the bus before trial. If that had been done, defense counsel would have been able to impeach Vernon’s credibility and save their clients from death sentences and 39 years in prison.

For more information, go here.


Yet another egregious example to justify revoking the rule that prosecutors are immune from liability

November 11, 2014

Tuesday, November 11, 2014

Good afternoon:

Today I write about an egregious miscarriage of justice that provides yet another reason to revoke the rule that prosecutors are absolutely immune from liability.

The State of Texas executed Cameron Todd Willingham, an innocent man, on February 17, 2004 for murdering his three daughters on December 23, 1991 by setting his house on fire. This wrongful conviction was caused by prosecutorial misconduct, forensic incompetence, ineffective assistance of counsel and jailhouse snitch testimony.

Wikipedia summarizes the forensic issue.

Willingham’s case gained renewed attention in 2009 when an investigative report by David Grann in The New Yorker, drawing upon arson investigation experts and advances in fire science since the 1992 investigation, suggested that the evidence for arson was unconvincing and, had this information been available at the time of trial, would have provided grounds for Willingham’s acquittal.

According to an August 2009 investigative report by an expert hired by the Texas Forensic Science Commission, the original claims of arson were doubtful. The Corsicana Fire Department disputes the findings, stating that the report overlooked several key points in the record. The case has been further complicated by allegations that Texas Governor Rick Perry impeded the investigation by replacing three of the nine commission members in an attempt to change the commission’s findings; Perry denies the allegations.

(footnotes omitted)

The arson investigators testified that the fire was set by someone who used an accelerant to spread the fire. The alleged motive was that he had sexually molested his daughhters and murdered them to prevent them from accusing him. However, there was no evidence that he had molested. His wife and mother of the three girls, Stacy Kuykendall, told prosecutors that he loved them and would never have harmed them.

Wikipedia describes what happened after Willingham was convicted and sentenced to death.

Long after the original conviction, in 2004 Gerald Hurst, who has a Ph.D. in chemistry, examined the arson evidence compiled by Manuel Vasquez, the state deputy fire marshal. Hurst said that Vasquez was incorrect when he said that the extreme heat of the fire (as evidenced by a melted aluminum threshold) indicated that an accelerant was used, and said that experiments prove that wood and liquid accelerant fires can burn with equal heat. Hurst’s own experiments showed that burning with an accelerant does not leave the kind of brown stains that Vasquez claimed were created that way. Hurst also said that the crazed glass that Vasquez said was caused by a liquid accelerant had been found as a result of brush fires elsewhere. Experiments showed that crazed glass was caused not by rapid heating but by cooling, and that glass cooled by water from a fire hose was more likely to have a crazed or cracked pattern. A $20,000 experimental house fire set without an accelerant created the same pour patterns and V shaped pattern that Vasquez attributed to the use of a liquid accelerant. Vasquez thought that Willingham lied when he said he escaped without burning his feet, because he thought that an accelerant was used that would spread fire along the floor. However, since no accelerant was needed to create the results found, Willingham could well have been telling the truth when he said that he ran out without burning his feet, presuming he left before the fire achieved flashover.

According to Hurst, when a fire reaches the flashover threshold, it is impossible to visually identify accelerant patterns. While the prosecutor thought that the “bizarre” path of the flame indicated that an accelerant was used, Hurst said that the path of the fire followed a post-flashover pattern of going in the direction of ventilation. Although Willingham was accused of using an accelerant in three different places, the front porch was the only place where an accelerant was verified by laboratory tests, and a photograph taken of the house before the fire showed that a charcoal grill was there. The family confirmed that lighter fluid was by the grill used for family barbecues. Water sprayed by firefighters likely spread the lighter fluid from the melted container. All twenty of the indications listed by Vasquez of an accelerant being used were rebutted by Hurst.


(footnotes omitted)

On July 25, 2014 a group of Texas lawyers and the Innocence Project in New York City filed a bar complaint against John Jackson, the lead prosecutor in Willinghams’s trial. The Open File describes the complaint.

It alleges that a “pillar” of Jackson’s case against Willingham was disingenuously built on the incentivized testimony of a jailhouse informant.

Jackson, who later became a state district judge, allegedly covered up a deal he struck with a key witness in the case, Johnny Webb. Jackson allegedly told Webb he would reduce the charges in a pending robbery case against Webb in exchange for his testimony in the Willingham case. Webb testified at trial that while he and Willingham were housed in the same jail, Willingham confessed to setting the fire that killed his children. Jackson used this confession to prop up the arson evidence in the case (which has since been widely discredited by experts in forensic science. Read submissions from experts to the Texas Forensic Science Commission here.)

Failing to disclose a deal with a witness in a criminal case has long been held to be a violation of a defendant’s right to due process. In Giglio v. United States (1972) the Supreme Court ruled that the state is obligated to disclose to the defense any promise or expectation of leniency it offered to a witness. In Napue v. Illinois (1959) the Court made clear that a prosecutor’s failure to correct the testimony of a witness who falsely testifies that they have no expectation of leniency from the state is also a violation of due process.

But the allegations in the bar complaint against Jackson go much further than even these serious violations: the complainants suggest that Jackson has actively covered up the deal he made with Webb “to this day”, going so far as to “deceive” the Texas Board of Pardons and Paroles and the Governor, and submitting false evidence in the form of an affidavit to a 2010 Court of Inquiry.

Webb has since denied that Willingham confessed to him in jail.

The matter is pending.


%d bloggers like this: