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.


Susan Mellen is free today after spending 17 years in prison for a murder she did not commit

October 11, 2014

Saturday, October 11, 2014

Good morning:

Free at last!

After serving 17 years in prison for a crime that she did not commit, Susan Mellen is free at last.

Corrina Knoll of the Los Angeles Times reports:

Superior Court Judge Mark S. Arnold said the trial had hinged on a single witness who was a “habitual liar” and claimed Mellen had confessed involvement in the crime. But jurors never learned that the witness’ sister, a Torrance police officer, believed she was a pathological liar or that Torrance police had several years earlier deemed the witness an “unreliable informant.”

The judge said Mellen had received “subpar representation” from a trial attorney who should have conducted a thorough investigation of the witness’ credibility.

“I believe that not only is Ms. Mellen not guilty, I believe based on what I’ve read, she’s innocent, and for that reason I believe the criminal justice system failed,” Arnold said.

“Thank you, your honor, thank you so much,” Mellen, 59, said in a small voice.

“Good luck,” the judge replied.

Mellen was convicted and sentenced to life in prison without parole in 1998 for soliciting the murder of a homeless man, Richard Daly, at a home in Lawndale, California where she and others were living at the time. Three gang members were subsequently linked to the murder and one of them was convicted of beating Daly to death. One of the others later passed a polygraph in which he admitted that he was present during the murder, but Susan Mellen was not there.

The three causes of this wrongful conviction are:

1) Jailhouse informant perjury;

2) Police and prosecutorial misconduct; and

3) Ineffective assistance of counsel.

The jailhouse informant or ‘snitch’ in this case was a woman named June Patti. People who work in the criminal justice system all know that jailhouse snitch testimony is inherently unreliable because they have powerful motives to lie in order to receive beneficial consequences lightening their load in return for their cooperation and testimony against a defendant. For this reason, I believe no conviction based solely on jailhouse snitch testimony should ever stand.

Mellen’s case is a perfect example of what can go wrong, if jailhouse snitch testimony is admitted to shore up a weak prosecution case.

June Patti testified that Susan Mellen admitted her guilt in the Daly murder while they were together in jail before Mellen’s trial. The lead investigator, LAPD Detective Marcella Winn, and the prosecutor who tried Susan Mellen should have known and likely knew that June Patti was an unreliable witness because she had a long history of providing false tips to law enforcement. For example, Patti’s sister, the Torrance police officer to whom Judge Arnold referred in his comment, now claims that she warned Detective Winn that June Patti was a pathological liar and several years before the murder a narcotics detective for the Torrance Police Department wrote a report in which he said Patti had provided a series of tips that turned out to false.

Police and prosecutors have a duty to investigate the reliability of an informant before putting her on the stand and risk convicting a potentially innocent defendant.

This information was exculpatory evidence that should have been obtained and disclosed to defense counsel before trial pursuant to Brady v. Maryland, and Giglio v. United States. Their failure to obtain and disclose this information to defense counsel was misconduct.

Finally, Mellen’s defense attorney compounded their misconduct by failing to investigate June Patti’s credibility. Her failure constitutes ineffective assistance of counsel.

I have often referred to defense counsel as liberty’s last guardian and that statement is certainly true in this case because Susan Mellen is free today due to the efforts of Deirdre O’Connor, an attorney who runs Innocence Matters, a nonprofit organization that represents wrongfully convicted innocent people.

Upon her release yesterday after serving 17 years in prison for a crime that she did not commit, she said,

I always forgave my enemies. Even your haters, you have to forgive them and sometimes thank them because they bring you closer to God.

For more information about June Patti’s pathological lying in Washington State after she left California, please go here.


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