Scott Henson of “Grits for Breakfast” will be testifying this morning at the Texas Legislature in favor of a bill requiring more taping of police interrogations.  

The best resource on the electronic recording of “custodial interrogations” and the curious phenomenon of false confessions is a recently released study by the Justice Project. 

Why would anybody in their right mind confess to a crime they didn’t commit?

Nobody in their right mind would own up to somebody else’s wrongdoing; that’s why interrogation techniques are designed to coerce suspects into an altered state of consciousness.  Isolation, threats, promises, lies, isolation and sleep deprivation are some of the methods employed to this end. 

According to the Justice Project study, most false confessions are made after interrogation sessions exceeding 6 hours, 39% of false confessions are made in sessions lasting between 12 and 24 hours, and 11% are recorded after sessions in excess of 24 hours.

Recording interrogation sessions would discourage methods from the Twilight Zone end of the spectrum.

The Justice Project report also focuses on the unremarkable link between diminished mental capacity and false confession.  People who are mentally retarded or mentally ill can be highly vulnerable to suggestion.  Few people have the capacity to maintain an independent perspective in the face of extended and ferocious allegation.  This is particularly true for the simple and the confused.

But why restrict the recording of confessions to suspects?

What about eye witnesses?

Most of the Texas men exonerated during the past decade were the victims of false eyewitness testimony.  Many of these witnesses were sincerely wrong; others were intentionally manipulated by lineups and photo arrays designed to make the “right” identification all but inevitable.

Desperate investigators and prosecutors have the godlike ability to create compelling evidence ex nihilo, out of nothing.

You begin with a vulnerable pool of potential witnesses; the simple, the mildly retarded, the drug addicted and the desperate.

You issue threats.  Failure to cooperate, you suggest, will trigger a lengthy prison term: obstruction of justice and perjury are serious feloniesm etc.

Then you lay on the blandishments and false promises.  There could be a healthy reward if you cooperate.  “Why don’t you save us all a lot of time and trouble by telling the truth.  We’ll sit here all day long if we have to; so why not make it easy on yourself?”

These carrot and stick techniques aren’t always effective against strong willed and tough minded individuals–but weak and frightened people will say almost anything to get out of the interrogation room.

If interviews with potential witnesses were recorded the reliability of eyewitness testimony would improve markedly.

If all interviews were recorded, police officers would play by the rules and would possess a strong defence against false accusations of abuse.

Would recorded interviews make it harder to solve heinous crimes? 

Not at all.  It might make it harder to close out difficult cases; but resolution via false conviction damages innocent lives and undermines respect for the law.

Although I have given considerable attention to the Brandon McClelland case in Paris, Texas I haven’t joined the “hate crime” chorus.  

Certainly, if the men accused of intentionally dragging Brandon beneath their truck are guilty as charged this case qualifies as a hate crime.

But are Shannon Keith Finley and Charles Ryan Crostley responsible for Brandon’s death?  I have always tied to maintain an open mind on that score.  Friends of Justice isn’t in the business of denouncing hate crimes; our mission is to restore respect for due process to the American criminal justice system.  Among other things, that means taking the presumption of innocence seriously no matter how damning the evidence initially appears or how much we want the defendant to get his just deserts.

Howard Witt’s article in the Chicago Tribune doesn’t claim that a key witness sang in harmony with the state in exchange for lenient treatment on unrelated charges, but the facts create an uneasy feeling. 

And what happened to the carnage police investigators initially discovered on the undercarriage of the truck?  Sophisticated forensic testing has failed to corroborate the official version of the facts.  How do we explain the discrepancy?

This doesn’t mean the state has no case; it means that, pending a full disclosure of the discernible facts, we all need to ride loose in the saddle.

Evidence frays in murder case

Forensic tests don’t back initial claim in racially charged dragging death

By Howard Witt

Tribune correspondent

12:58 AM CDT, April 13, 2009

PARIS, Texas – Four months after a grand jury indicted two white men in connection with the dragging death of a black man in this racially troubled northeast Texas town, key evidence against the pair appears to be evaporating amid growing optimism by one defense attorney that he can win an acquittal when the first case comes to trial in July.

Police had alleged that Shannon Keith Finley and Charles Ryan Crostley, both 28, had used Finley’s pickup truck to run over and drag to death Brandon McClelland, 24, on a rural road before dawn Sept. 16. Local civil rights activists denounced the case as a racially inspired hate crime.

But an initial police claim that investigators had found blood on the underside of the pickup has not been confirmed by more thorough forensic testing, which failed to verify the presence of any human material or DNA beneath the truck, special prosecutor Toby Shook confirmed to the Tribune.

“Initial scientific analysis of the truck didn’t show anything,” Shook said, noting that there was evidence that the suspects had washed the truck before it was impounded by investigators. “We are sending it back for further tests.”

Moreover, a crucial prosecution witness-to whom police said Finley allegedly confessed details of the killing-has been challenged on his credibility, which could undermine any testimony he might give against Finley.

The witness, James Mitchell Laster, told police that Finley had told him that he had intentionally run over McClelland and dragged his body beneath his truck for about 40 feet, according to a police affidavit.

But Laster has a lengthy criminal record, and in January 2008 was charged with aggravated assault for allegedly beating Finley. The Lamar County district attorney later dismissed the charge.

“Laster almost killed Shannon,” said Ben Massar, Finley’s defense attorney. “This guy is not a credible person. He is a violent person.”

Finley and Crostley, who claimed to have been friends of McClelland’s, have denied to police that they were involved in his death. Instead, Finley told police and McClelland’s family that the pair had picked up McClelland for a late-night beer run and that later, after a quarrel over Finley’s ability to drive safely, McClelland had asked to be let out of the truck so he could walk home.

After McClelland’s body was discovered, Finley fled to Wichita, Kan., where he was arrested.

Massar said he has an alternative theory of the crime that he intends to present to the jury when Finley, the first defendant to be prosecuted, goes on trial in three months. The trial will be moved from Paris to nearby Hopkins County because Massar persuaded a Lamar County judge that publicity about the case had tainted the local jury pool.

The two-lane road where McClelland’s body was found is a common route for large trucks carrying gravel from a nearby pit, and Massar said the battered state of McClelland’s partially dismembered body was consistent with having been struck by a heavy gravel truck traveling at high speed.

“We have two witnesses that will be very good for us – two guys from Arkansas that came upon the body just moments after they were run off the road by a gravel truck,” Massar said. “Look, this case is a tragic situation. The fact that somebody died is difficult to overcome. But we’re very confident in this case.”

McClelland’s mother, Jacqueline, said she remains convinced that Finley and Crostley killed her son and is distressed that the case against them seems to be unraveling.

“I feel like everyone is trying to get these guys off,” she said. “The stories are changing up so much. One minute they tell me they found blood on the truck, and then they say they didn’t find anything. All I want is justice for my son’s murder.”

hwitt@tribune.com

This story was brought to my attention by David Person, a journalist and broadcaster in Huntsville, Alabama who has me on his show every Thursday afternoon. 

I would like to believe that this story would make the Times even if it didn’t feature the son of a former professional baseball player.

Robbie Tolan was returning from work when a Bellaire police officer concluded that he looked suspicious. 

What could be suspicious about a kid driving up to his own house and parking the car?

Well, if we are talking about a virtually all-white neighborhood and the kid in the car is black . . .

Concluding that the kid must have stolen the car, the officer called for backup.  Then he told the driver and his youthful friend to get face down on the ground. 

As Sgt. Jeffrey Cotton arrived on the scene, Bobby Tolan and his wife were rushing out of the home in their pajamas to explain the situation.  Cotton must have thought they looked suspicious as well because, according to the family, he grabbed Ms. Tolan by the arm and threw her into a garage door.

Robbie Tolan leapt from the ground to defend his mother.  That’s when Jeffrey Cotton drew his weapon and fired.

Fortunately, the young man has recovered fully from his wounds and now Sgt. Cotton has been indicted.

The question now is whether Cotton, and the first officer on the scene, were guilty of racial profiling.

Here’s an easy way to answer that question: try to imagine a simlar scenario unfolding if the kid in the car and the alarmed parents in pajamas were every bit as white as Sgt. Cotton.

You see the problem.

April 7, 2009

Police Officer Is Charged in Shooting of Texas Man

By JAMES C. McKINLEY Jr.

HOUSTON – A Harris County grand jury indicted a police sergeant Monday in the shooting of a young man outside his home on New Year’s Eve. The case has attracted widespread attention because the victim’s family accused the police of racial profiling.

Sgt. Jeffrey Cotton, a 39-year-old veteran in the Bellaire Police Department, was charged with aggravated assault by a public servant in the shooting of Robert Tolan, a 23-year-old waiter. The sergeant is white, and Mr. Tolan is black. Mr. Tolan, who was shot in his driveway while his parents looked on, survived, though a bullet pierced his right lung and lodged in his liver.

Just before the shooting, Sergeant Cotton and another officer had forced Mr. Tolan and his cousin to lie face down on the ground at gunpoint after they had gotten out of their car. The officers believed the car had been stolen, but it turned out to belong to Mr. Tolan, who is the son of Bobby Tolan, a former major league baseball player, and aspires to be a baseball player.

“The Tolans are the only African-American family on the block,” said a lawyer for the family, Geoffrey Berg. “Bellaire engages in racial profiling, and this is the logical result of that policy.”

The Bellaire city manager, Bernie Satterwhite, rejected that assertion.

“There is nothing about the indictment or any investigation which even suggests that race played any role in the stop or Sergeant Cotton’s actions when he arrived as a backup officer,” Mr. Satterwhite said, reading a prepared statement.

David Donahue, a member of Sergeant Cotton’s legal team, said the officer had fired only after Mr. Tolan leaped up and attacked him. “He felt he was in immediate danger,” he said.

As the Tolan family recounts the story, Mr. Tolan and his cousin obeyed an order from the first officer on the scene, John Edwards, to lay on the ground. As Sergeant Cotton arrived in a second patrol car, Bobby Tolan and his wife, Marion, came out of the house in their pajamas.

Mrs. Tolan tried to tell Sergeant Cotton that the police had made a mistake – that it was her son’s car, Mr. Berg said. The sergeant grabbed her by the arm and threw her against a garage door, the family says. As Robbie Tolan tried to rise to defend his mother, Sergeant Cotton fired at least three times, hitting him once in the chest, Mr. Berg said.

No one is saying that Ted Stevens didn’t lie about unreported contributions.  But the government has to play by the rules even when the defendant is guilty.  In this case, federal prosecutors are accused of withholding potentially exculpatory information from defense counsel–it’s called a Brady violation.

The New York Times reported today that Attorney General Eric H. Holder Jr. is “replacing the top official of an internal Justice Department ethics unit investigating the accusations of prosecutorial misconduct that led to the dismissal of criminal charges against former Senator Ted Stevens of Alaska.” 

This happened because Federal District Court Judge Emmet G. Sullivan made it plain that he had no confidence in the internal investigation the DOJ was conducting into the matter.  It also happened because, unlike his recent predecessors, AG Holder is concerned about the appearance of propriety.

If only we could see the same level of concern expressed for defendants several notches down the social ladder from a US Senator.

Case in point: the insane prosecution of black Little Rock attorney Alvin Clay.  In this case, a long string of men and women representing the government of the United States have revealed an utter disregard for the rules of the justice game.  Grand jurors have been lied to and the lies have not been corrected.  Weak-willed street punks like Donny McCuien have been pressured into bearing false witness.    Federal prosecutors knew their man was lying, just as they knew Rodney Hays had hopelessly mangled his maiden investigation as an FBI agent.  In both cases they reverently received fraudulent claims and gross misrepresentations as if they issued from the very mouth of God.

Or take the case of Ann Colomb and her three sons in Church Point, Louisiana.  Ann and the boys would still be doing time in a federal penitentiary if Friends of Justice hadn’t taken an interest in the case and two honorable inmates hadn’t stepped forward. 

These men exposed what Friends of Justice had long been asserting: a system of perjury mills operating within the federal prison system. 

As soon as the prison grapevine learned that federal prosecutors were investigating a given individual, identifying information (home town, physical description, habits, make of car driven, etc) would be hunted down by cooperating girl friends on the outside.  This precious information would then be hawked to inmates desperate for a time cut. 

There is no parole in the federal system.  The only way convicted drug dealers can cut time from draconian sentences is to rat out their friends.  When all of their friends have already been busted people get creative.  Federal prosecutors know they are playing with fire but they don’t care.  So long as their victims are low-status black people they can get easy convictions without producing real evidence. 

I am not claiming that all, or even most, US Attorneys tolerate this sort of behavior.  But when it happens (and it is happening all over the nation) there is no remedy.

In the Colomb case, the Department of Justice commissioned the FBI to perform an investigation.  Rumor has it that the only bad guys they have thus far identified are . . . you guessed it, the two guys who blew the whistle on their buddies.  It is reported that these hapless individuals are now being prosecuted for perjury.

This is a common prosecutorial trick.  First, you suborn perjured testimony by weilding arrows and extending olive branches.  Then, once you’ve got a signed statement, you threaten the poor blighter with perjury and obstructing justice charges if he suffers an attack of concience.  

In Lafayette, Louisiana, Tellis Vallier and five co-defendants were facing charges based on the same tainted testimony that nearly doomed Ann Colomb and her sons.  When Judge Tucker Melancon took his concerns about this fraudulent prosecutorial strategy to his superiors in Washington, federal prosecutors in Louisiana dropped all charges against Mr. Vallier.  But now that Judge Melancon has retired, the government is returning to its judicial vomit (check out Proverbs 26:11).

Without the principled behavior of judges like Tucker Melancon and Emmet Sullivan the kind of bizarre conduct Friends of Justice has encountered across the South will continue unabated.

It shouldn’t be up to judges to call the prosecutorial arm to account.  The Office of Professional Responsibility needs more than a new director; it needs a greatly expanded budget and a thorough overhaul.

April 9, 2009

Director of Ethics Office Is Replaced at Justice Department

By DAVID JOHNSTON

WASHINGTON – Attorney General Eric H. Holder Jr. announced Wednesday that he was replacing the top official of an internal Justice Department ethics unit investigating the accusations of prosecutorial misconduct that led to the dismissal of criminal charges against former Senator Ted Stevens of Alaska.

Mr. Holder named Mary Patrice Brown, a senior prosecutor and chief of the criminal division in the United States Attorney’s Office for the District of Columbia, to lead the Office of Professional Responsibility, succeeding H. Marshall Jarrett, its director since 1998.

Ms. Brown could play a role in presenting the findings of a recently completed inquiry into the conduct of department lawyers who provided legal advice authorizing the use of harsh interrogation techniques, including waterboarding. Many lawmakers have condemned the practice and Obama administration officials, including Mr. Holder, have described it as torture.

A draft report on legal opinions dealing with interrogation was completed before President George W. Bush left office, but the department has not released it, despite repeated requests by two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.

Mr. Jarrett is being named to lead the Executive Office for United States Attorneys, which coordinates departmental actions with the country’s 94 top federal prosecutors. Kenneth E. Melson will leave that job to become acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. Mr. Melson is a veteran prosecutor with expertise in forensic science.

A Justice Department official said that the timing was unrelated to the dismissal of charges in the Stevens case and that the changes had been under consideration for some time.

The new assignments were announced one day after a hearing in which Judge Emmet G. Sullivan of Federal District Court, who presided over the Stevens trial, issued withering criticism of the Justice Department, expressing little confidence in the Office of Professional Responsibility’s inquiry into the case.

Underscoring his disregard for the internal review, Judge Sullivan took the highly unusual step of naming a private lawyer as a special prosecutor to conduct a separate criminal investigation into possible misconduct by six prosecutors in the trial.

Mr. Stevens was convicted last October of failing to report gifts from an Alaska oil field contractor. He lost his bid for re-election a few days after the trial.

In his remarks, Judge Sullivan blamed prosecutors for repeatedly withholding evidence from the defense. He also said he had seen violations of ethical rules by prosecutors in other cases.

The Office of Professional Responsibility was established in the 1970s to investigate accusations of ethics improprieties by Justice Department lawyers. Once the department’s pre-eminent internal watchdog, the office has gradually taken a secondary role to the Office of the Inspector General, but still conducts politically relevant inquiries.

Update (3/2/2010) : Texas Governor Rick Perry finally decided he had the power to issue a postmortem pardon to Timothy Cole.  I know Tim’s family were relieved, possibly even overjoyed, by this good news.  I also suspect they are still asking themselves why the justice system took so long to admit the obvious.  AGB

You know what really galls me about this story?  Court officials knew that the real rapist had admitted to the crime and they did nothing.  They had their conviction.  They had closure.  They had finality.  The system had worked. Only when innocence could be proven beyond a reasonable doubt was Timothy Cole exonerated. 

By that time, the innocent man was long dead.

The article below highlights the inadequacy of the pictorial array shown to the rape victim.  Mr. Cole was represented by a large Polaroid shot markedly different from the other pictures.

That’s a common technique.  It’s the old “one of these things is not like the others” game from Sesame Street.

In effect, investigators were saying, “It was the black guy in the Polaroid shot, wasn’t it?”

The rape victim, unsure of her own judgment, assumed that the cops must have good reason for believing Cole was the guy.

They didn’t.

As District Judge Charles Baird indicated in the course of yesterday’s hearing, Lubbock investigators latched onto a prime suspect then ignored any evidence (including an actual confession) that pointed to a different perpetrator.

This kind of prosecutorial and investigative tunnel vision is driven by a need to clear the case at hand and move on.  More funding for police investigators and prosecutors wouldn’t provide a perfect fix (it’s no cure for racial stereotyping) but it sure wouldn’t hurt.

Are we to believe that this sort of snafu only happens in murder and rape cases involving copious DNA evidence?

Unfortunately, when investigators and prosecutors get lazy in non-DNA cases the prime suspect simply takes the rap.  There is no way of determining how many innocent people are living behind bars.  We don’t want to know and will probably never have to.

At emotional hearing, relatives finally hear man’s name cleared

By AMAN BATHEJA
abatheja@star-telegram.com
AUSTIN – Twenty-two years ago, Ruby Session listened in disbelief as a Lubbock jury convicted her son, Timothy Cole, of rape. She promised herself that one day she would make sure this injustice was corrected.
“I always had faith and I just believed that it would one day happen,” Session said.

That day finally came Tuesday when, after years of efforts by Cole’s family and a relentless group of supporters, state District Judge Charles Baird issued the first posthumous DNA exoneration in Texas history.

“The evidence is crystal clear that Timothy Cole died in prison an innocent man and I find to 100 percent moral, legal and actual certainty that he did not commit the crime that he was convicted of,” Baird said.

Cole was convicted of aggravated sexual assault in 1986, after Michele Mallin identified him as the man who attacked her near Texas Tech University. Cole had always maintained his innocence.

In 1995, Jerry Wayne Johnson, who was serving two consecutive life sentences in prison for sexual assaults in Lubbock, admitted raping Mallin. Authorities ignored his confession until the Innocence Project of Texas took up the case in 2007. DNA tests in 2008 confirmed that Johnson was Mallin’s attacker.

Cole died in prison in 1999 at age 38 from complications of asthma.

“This is probably the most important decision I’m going to have in my entire judicial career, and I’m honored that I’m the one who was able to do this,” Baird said.

Problems with police

Baird laid much of the blame for Cole’s conviction on the Lubbock Police Department for making a “snap judgment” on Cole’s guilt and then refusing to consider other suspects. He described evidence that pointed to anyone but Cole as being “downplayed or deliberately ignored.”

He was especially critical of the photo lineup of suspects that was presented to Mallin. Cole’s picture – a Polaroid – was drastically different than the others, making it stand out.

Baird urged the Legislature to take immediate action to make sure that what happened to Cole isn’t repeated. He stressed the need for statewide fair-practice standards on witness identification procedures and easier court access for convicted Texans who proclaim their innocence.

He also called for increasing compensation the state gives to wrongly convicted people and a method for compensating survivors of those who have been exonerated posthumously. Under current law, Cole’s family cannot receive any compensation from the state, said Jeff Blackburn, the Innocence Project’s chief counsel.

Toward the end of the hearing, Baird made a point of speaking directly to Mallin, assuring her that none of this was her fault. Cole’s family also said they harbor no ill will toward Mallin.

Mallin said she still feels guilty about identifying Cole and said she is in counseling over it.

“Until May of last year, I thought he was the one who did it,” Mallin said. “I had no idea.”

Meeting with Perry

Ruby Session said she is now focused on improving state laws for exonerated people and those who should be. She has met with most of the Dallas men who have recently been cleared of crimes via DNA evidence.

“I feel closeness to them,” Session said. “They call me Mom, so I have 19 more sons.”

Members of Cole’s family have an appointment today for a private meeting with Gov. Rick Perry. Ruby Session said they plan to talk to him about getting Tim Cole officially pardoned and to discuss legislation related to aiding the wrongly convicted.

Cory Session, Tim Cole’s brother, said he also wants the governor to issue an executive order that on Dec. 2, the 10th anniversary of Cole’s death, all flags at state buildings and prisons fly at half-staff “just so they remember that an innocent man did die in prison and that the system is broken and it can never be fixed for Timothy Cole.”

Paris, Texas is back in the news and once again the justice system is in the forefront.  An adolescent boy with the mentality of a first grader induces a first grader, also mentally retarded, to engage in oral sex.  A serious matter, to be sure.  But 100 years in prison?

And what can be said about the court appointed “defense” attorney who enters guilty pleas on his client’s behalf without suggesting that the boy’s retardation should be taken into consideration.

This story reminds me of the tragic case of Adolphus Barrow, a mentally ill Tulia resident who preferred crack cocaine to the Haldol his psychiatrist prescribed.  ‘Dolphus (as he was known in the community) swallowed some crack when a police officer asked him what he had in his pockets.  Since this was not the first time he had run afoul of local law enforcement, the Tulia resident was liable to the 25-99 sentencing range. 

When Sammie Barrow and I arrived in the courtroom, the “trial” was already half over.  (Local officials didn’t feel obliged to alert the family that their loved one was on the docket that day.)  A break wasn’t called until ‘Dolphus had already been found guilty.  At the first opportunity, I asked his court appointed attorney if he was aware that his client suffered was a paranoid psyzrophrenic who had been in and out of mental hospitals his entire adult life.

He hadn’t been apprised of that fact.

During the sentencing phase, I was placed on the witness stand to testify about Mr. Barrow’s mental health issues, but since I wasn’t an expert my testimony had no impact.  It wouldn’t have mattered anyway.  When the trial was over, the DA explained to me that the state of Texas had closed down so many mental health facilities that prison was the only realistic option.

They gave ‘Dolphus forty years.  He died in prison just a few weeks ago.  At the end, his family tried to visit him in the hospital but were told that a visit wasn’t possible because their loved one’s condition wasn’t that serious. 

Read Howard Witt’s story below and you will realize that the defendant was denied a new trial not in spite of his mental retardation but because of it.  The Judge and DA believe that the kid’s limited intellectual capacity makes him a potential repeat offender.

Given this reasoning, every mentally retarded male adolescent in Texas should be handed a life sentence.  And, just to be sure, we ought to incarcerate all male adolescents, regardless of mental ability, while we’re at it–you can’t be too careful.

The real problem, as with the case of Adolphus Barrow, is that Texas makes no provision for special cases.  It’s either prison or the free world.  People like Adolphus Barrow and Aaron Hart need a third option.  Maybe they are risks to public safety; but should that mean a life sentence in hell?

Paris, Texas, judge denies new trial to man with IQ of 47 who molested boy

Witnesses testify that Aaron Hart, 18, is mentally disabled

By Howard Witt

Tribune correspondent

April 8, 2009

PARIS, Texas – For more than six hours Tuesday, as a parade of witnesses testified about the severity of Aaron Hart’s mental retardation and his inability to understand his legal rights, the 18-year-old defendant with an IQ of 47 sat silent and shackled in a chair, alternately fidgeting and making faces.

But in the end, none of it was enough to persuade a judge in this small east Texas town to reconsider the 100-year prison sentence he gave Hart in February after Hart pleaded guilty to molesting a 6-year-old boy.

Ruling in a case that critics of the local justice system say raises questions of fairness for the mentally challenged, Lamar County Judge Eric Clifford denied defense motions seeking either a new trial or a new sentencing hearing for Hart. His former special-education teacher testified that Hart functions below the level of a 1st grader.

Last September, Hart confessed to police that he forced the boy to perform oral sex. The boy’s stepmother had discovered them both behind a shed with their pants lowered. Hart’s court-appointed attorney entered guilty pleas on his behalf to five related felony counts, a jury recommended multiple sentences and Clifford stacked the prison terms to run consecutively, for a total of 100 years.

But Hart’s appellate attorney, David Pearson, argued Tuesday that Hart had received ineffective legal assistance because his trial attorney had failed to present any expert testimony about Hart’s mental functioning or his ability to comprehend the charges against him.

“This case cried out for a mental health evaluation, to explain this disability to the judge and jury,” Pearson told Clifford. “One of the features of people with this kind of mental retardation is they cannot appreciate degrees of wrongfulness.”

District Atty. Gary Young countered that a court-appointed expert had determined that Hart was legally competent and that a jury had determined he was a danger to the community.

“Everyone feels sorry for Mr. Hart,” Young told the judge. “The question is, do you leave him on the street or send him to prison?”

Clifford, who last week said he had agonized over the case, took only a few seconds to issue his ruling.

“Irregardless of whether he understood his Miranda rights, the evidence I have seen is overwhelming that he committed the offense,” Clifford said. “The court finds that allegations of incompetence of counsel are unfounded.”

Hart will remain in jail pending the outcome of an appeal likely to be heard in the fall. Hart’s parents say he has been raped repeatedly by other inmates since he was first arrested last September.

hwitt@tribune.com

American Violet, a Hollywood blockbuster that opens in theaters next week, tells the story of Regina Kelly, one of the people rounded up in a Tulia-style drug bust in Hearne, Texas almost ten years ago.

The Hearne tragedy would never have come to light without Tulia.  Friends of Justice made seven trips to Hearne while the fight for justice was in full swing.   Hearne residents took note of our stand in Tulia and, after several innocent people had accepted plea bargains, one brave defendant decided to fight his case in court. 

The Hearne bust featured Derrick Megress, a hapless crack addict who was threatened with jail time and prison rape if he refused to implicate twenty residents of a Hearne housing project.  Although Megress allegedly taped the drug deals he claimed to be making out of his living room, the tape quality was indecipherable.  And that for a very good reason: Megress later confessed that he had faked every single case in order to get the authorities off his back.

Resident of Hearne project poses

The Hearne victims reached out to the Texas ACLU just as the then-struggling organization was regaining its vigor.  Will Harrell (now Ombudsman for the Texas Youth Commission) had just signed on as Executive Director and, at Harrell’s behest, a guitar-playing lawyer named Jeff Frazier was scouring the state for drug war horror stories.  The New York Times had just run a successful story on Tulia and when Frazier tipped them off to the Hearne debacle the Gray Lady decided to take a chance.

Eventually, the ACLU’s Drug Policy Reform Project filed a civil suit on behalf of Regina Kelly.  A series of townhall meetings were held in a local church and, if the clip below is anything to go by, these meetings figure prominently in American Violet.  I was on hand for most of these gatherings, sometimes alone, sometimes in the company of one of the Tulia defendants. 

During the 2001 legislative session, the ACLU (led by Kathy Mitchell and Scott “Grits” Henson) cobbled together a series of Hearne-Tulia bills designed to discourage a repeat of Heare-Tulia drug war overreach.  Eventually, thanks to some last-minute heroics from Will Herrell, a bill was passed calling for the corroboration of uncorroborated confidential informant testimony.

 That bill, incidentally, allowed Cynthia Barbare, a hardworking Dallas attorney, to prove that the drugs the Dallas DA’s office was using to prosecute her client were nothing but powdered sheetrock. 

Tulia, Hearne and the Dallas Sheetroock scandal became the left-right-left combination that changed the rules of the drug war in the great state of Texas.

How much of this story will emerge from American Violet it is hard to say.  But the clip included as part of Radley Balko’s review (pasted below) suggests that American Violet gives the war on drugs  the hardest Hollytwood celluloid hit it has sustained since Traffic.

American Violet

Radley Balko | March 20, 2009, 6:49pm

Even after his case fell apart and Paschall had no choice to drop the charges against those who hadn’t alread plead guilty, he refused to exonerate anyone, telling the New York Times that of those charged, “I don’t doubt one minute their guilt in dealing drugs.” Paschall is still district attorney, and he’s not particularly happy about the movie. He told the Dallas Morning News, “The only way I’d watch it, I’d have to be handcuffed, tied to a chair and you’d have to tape my eyes open.”

Like the series of wrongful drug arrests in Tulia, Texas, the Hearne scandal was largely attributableto the federal Byrne Grant program, which not only creates the unaccountable, multi-jurisdictional drug task forces like those responsible for Hearne and Tulia, but then also sets artificial, improper incentives by tying future funding to the number of arrests and drug seizures a task force makes. Oddly enough, the Bush administration actually phased out Byrne Grants. Obama and the Democrats in Congress are bringing them back.

I interviewed Regina Kelly a couple of years ago at an ACLU conference:

This is the third in a trinity of articles from the Fort Worth Star Telegram that I imbibed this morning along with my muffins and grapefruit.   Linda Campbell’s column in the is devoted to the vagaries of eyewitness testimony. 

Campbell uses the story of Ronald Cotton, a man who presently tours the country with the woman who misidentified him as her rapist in 1984.  After 11 years in prison, DNA testing demonstated beyond doubt that Cotton was the wrong man and that the right man had escaped detection. 

Linda Campbell wants to be polite.  This kind of mistake occurs, she insists, even when investigators and prosecutors are doing their level best to get it right.

But what if they arent doing their level best?

The problem of witness misidentification is compounded when overworked and under-resourced investigators and prosecutors cut corners so they can move on to the next case.

The problem is particularly severe when the victim is a white female and the prime suspect is a black male. 

Investigators and prosecutors can create a compelling case against any poor black male who doesn’t enjoy an airtight alibi.  Poor, legally compromised witnesses can be made to say almost anything if the right combination of carrots and sticks are employed.  First, you tell the prime suspect’s cellmate that you will cut him a deal if it turns out the suspect bragged about committing the crime. 

You don’t have to be gross about it; a wink and a nod will suffice. 

Next, you tell a single mother that she will lose her children if she refuses to cooperate.

Or perhaps you suggest that there might be reward money available for cooperative witnesses. 

Once you have a statement you don’t have to pay up.  Witnesses who back away from signed statements can be prosecuted for perjury.

Many police officers wouldn’t think of pulling this kind of stunt, especially if they work for a sheriff or a police chief who goes by the book or if they are preparing a case for a prosecutor with a modicum of professional integrity.

Unfortunately, investigators and prosecutors are easily convinced of their own infallibility.  Once they settle on a suspect all evidence is twisted to fit the chosen theory.

If public officials choose to operate this way there is little to stop them.

And what about innocent suspects who are convicted on the basis of inaccurate or fraudulent eyewitness testimony when there is no DNA evidence to set the record straight?

It is commonly assumed that all sorts of bleeding-heart, lefty organizations will rush to the defense of the wrongfully convicted.

It ain’t so.

In fact, in cases where innocence can’t be proven (and that’s 99% of the time) there is virtually no recourse for wrongfully convicted defendants . . . beyond the appeals process, that is.  In the absence of gross procedural irregularities an appeal is virtually hopeless.

It is difficult to exaggerate the power of eyewitness testimony in the courtroom.  Jurors eat it up.

That’s why Friends of Justice intercedes for the victims of wrongful prosecution.  If you are curious about how we work just stay tuned.  We are currently investigating a case based almost entirely on the kind of coerced testimony I have just described.

CAMPBELL: Eyewitness identification often proves faulty

lcampbell@star-telegram.com

Think you could positively, without doubt, identify the criminal who victimized you?
Jennifer Thompson was certain she could.

But she was wrong.

After Thompson mistakenly identified Ronald Cotton as having raped her, he spent 11 years in prison.

But DNA testing finally corrected that error in 1995 and identified the real perpetrator as a convicted rapist named Bobby Poole.

After Cotton’s exoneration, he and Thompson-Cannino (her married name) formed a close friendship and now speak all over the country about the procedural flaws that too often undermine the credibility of witness identifications. Working with writer Erin Torneo, they’ve put their experience of tragedy and triumph into a book, Picking Cotton, published this month. It’s an absorbing howdithappen – unraveling not a mystery but an injustice.

The dissection of their case illustrates how the criminal justice system can get things wrong when well-meaning people acting with the best of intentions follow procedures that are outdated and inadequate.

Photos in the book show the composite drawing that a police artist drew based on the description that Thompson-Cannino, then a 22-year-old college student in Burlington, N.C., gave the night of the attack.

Determined to find her assailant in a photo spread, she picked Cotton; she later ID’d him in a lineup where she stood across a table from the suspects.

“Ron was the only person who had been in both the photo and the physical lineups, making his face more familiar to me,” she says in the book. “Later, when I looked at the composite we created and at a mug shot of Poole, I thought I had actually done a great job. The problem was that Bobby Poole had not been in my lineup; Ronald Cotton had, and at the time Ronald Cotton most resembled that composite. The standard way eyewitness evidence was collected had failed me, and because of that, I’d failed, too.”

Thompson-Cannino and Cotton, along with the detective who handled the case, have worked to improve witness ID procedures that all too often lead to erroneous convictions.

It isn’t just about protecting defendants’ rights to due process. It’s about protecting the integrity of the system, so people believe the real wrongdoers will be punished. It’s about protecting public safety, so predators can’t continue victimizing while authorities pursue erroneous leads. It’s about using tax dollars wisely, so time and money aren’t wasted investigating, prosecuting, incarcerating – and then compensating – innocent people.

Faulty witness testimony was a factor in 33 of the Texas 39 cases since 1994 in which convicted defendants later were cleared through DNA testing (and three-quarters of such cases nationwide), according to the Innocence Project.

Since 2001, Texas has paid almost $9 million to 46 people who were found to have been wrongly convicted, the comptroller’s office said.

After surveying Texas law enforcement agencies last year, the Justice Project concluded that only 12 percent had written lineup policies in line with “best practices” for conducting eyewitness identifications.

(The group queried 1,034 agencies, and 750 responded, including the Tarrant County Sheriff’s Department, Arlington Police Department and several smaller area agencies.)

Among North Texas agencies responding, the Lewisville Police Department alone had written policies on four key procedures for both photo and live lineups, the Justice Project reported; the Richardson PD’s policies covered only photo lineups.

The most commonly recommended improvements are to caution witnesses that the offender might not be in the lineup and that it’s not mandatory to pick one of those in the group; to have all those in the lineup look as much as possible like the actual suspect; to record or document the lineup proceedings; and to have the procedure conducted by someone who doesn’t know the suspect’s identity.

The point is to avoid sending overt or subtle signals to the witness about whom to pick, or to cause a witness with doubts to suppress them, not because memory has improved but because an imprecise recollection has been reinforced through the power of suggestion.

State Rep. Pete Gallego, D-Alpine, and Sen. Rodney Ellis, D-Houston, have put those four safeguards into companion bills, HB 3583 and SB 117, that the Legislature should approve this session.

The bills would require law enforcement agencies to adopt detailed, written policies in line with model standards developed by the Texas Commission on Law Enforcement Officer Standards and Education.

This isn’t just an academic exercise or bleeding-heart legislation.

It’s essential reform designed to help get convictions right the first time.

Bob Ray Sanders writes a slightly left-of-center column for the Fort Worth Star-Telegram.  His most recent offering starts off as a simple amen to Hillary Clinton’s recent comments about the relation between Mexican violence and American addiction issues.  But Clinton’s remarks could be interpreted as a call for a ramped-up war on drugs and that’s the last thing Sanders wants to see. 

Here’s the heart of Sanders’ argument: “It’s much easier to raid a home in some low-income neighborhood and drag some minor drug dealer out in his underwear than it is to raid some office building and arrest some kingpin dressed in a $1,000 suit.”

SANDERS: Mexico and the U.S. have failed to address the drug problem

BOB RAY SANDERS
bobray@star-telegram.com
Sunday, Mar 29, 2009

Hillary Clinton is right.

Right on target.

Dead right, if you will.

Before some of you Hillary haters begin convulsing, hear me out.

After hearing our new secretary of state’s comments last week in Mexico, I thought perhaps she had overheard a conversation I had a couple of weeks ago with an obviously upset man.

He’d left several voicemails before we had a chance to talk. In the recordings, he made it clear that he wanted to talk about something he found quite disturbing.

When we finally connected by phone, the tone of his voice – the tremor of each word – was one of hurt and anger. The caller was a Hispanic with a deep love for Mexico.

After hearing broadcast reports about the drug cartels in Mexico and the violence along the U.S.-Mexico border, the man was upset by a recurring theme in comments from some U.S. government officials.

Some of those officials – and some media commentators – were referring to Mexico as a “failed state” or on the verge of becoming such.

He had a question: If Mexico is a “failed state” because so much drug traffic is coming from there, then are Americans a “failed people” because they are consuming those drugs?

I promised I would ask his very good question to our readers and dare them to answer it honestly.

That brings me back to our secretary of state, who visited Mexico as our country was committing more resources to the border and desperately trying to figure out what else could be done to stop the drug trafficking and the increase in related violence.

Clinton said our two countries have a “shared responsibility” in this devastating crisis, and she concluded that Americans’ drug habits and our failed government policies contribute to the problem we claim to vehemently despise.

“How could anybody conclude any differently?” McClatchy Newspapers quoted Clinton as saying. “Our insatiable demand for illegal drugs fuels the drug trade. Our inability to prevent weapons from being illegally smuggled across the border to arm these criminals causes the deaths of police officers, solders and civilians.”

She is right.

I said the same thing when this country, under President George H.W. Bush, ordered the invasion of Panama in 1989 to depose, capture and arrest leader Manuel Noriega for drug trafficking.

I continue to ask: If we knew Noriega was sending tons of drugs to the United States and laundering money, we should also have known who in this country was receiving all those drugs and paying for them. If Noriega was a racketeer, then there were also racketeers in this country.

The same with Mexico.

If there are cartels south of the border, then there are cartels north of it. Let’s deal with them all, consistently and effectively.

Sadly, we do have communities all over this country afflicted by addiction, and we can never do anything significant about drug trafficking until we deal with the demand here.

Too often in our “war on drugs,” we focus on the junkies and the small-time dealers, leaving the leaders of the “cartels” to stay in business.

It’s much easier to raid a home in some low-income neighborhood and drag some minor drug dealer out in his underwear than it is to raid some office building and arrest some kingpin dressed in a $1,000 suit.

Every time there is a budget crisis, among the first programs to be cut are drug prevention, intervention and treatment.

If we spent one-tenth of the amount on drug treatment and prevention as we do on drug enforcement, we would make tremendous progress in addressing the problem.

Yes, we need to fight the drug-related violence along our border and help Mexico fight the addictive cancer that’s eating at its soul.

But we must also find a way to cure this nation’s “insatiable appetite” for the illegal substances that destroy individuals, families and entire neighborhoods.

To answer that caller’s question, neither country is a failed state, but both have failed at adequately addressing one of the most damaging problems any nation can face.

 Senator Jim Webb’s article in Parade suggests that criminal justice reform has gone mainstream.  Webb echoes all the arguments and cites all the statistics reformers have been using for years now.  The fact that a high-profile politician believes he can indict our criminal justice system in the pages of the most widely circulated publication in America indicates a fundamental shift in the wind.  If you were looking for a terse, no-n0nsense statement of the case against mass incarceration look no further.  

Why We Must Fix Our Prisons

By Senator Jim Webb
Publication Date: 03/29/2009

America’s criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation’s prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous. We are wasting billions of dollars and diminishing millions of lives.

We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration. Twenty-five years ago, I went to Japan on assignment for PARADE to write a story on that country’s prison system. In 1984, Japan had a population half the size of ours and was incarcerating 40,000 sentenced offenders, compared with 580,000 in the United States. As shocking as that disparity was, the difference between the countries now is even more astounding–and profoundly disturbing. Since then, Japan’s prison population has not quite doubled to 71,000, while ours has quadrupled to 2.3 million.

The United States has by far the world’s highest incarceration rate. With 5% of the world’s population, our country now houses nearly 25% of the world’s reported prisoners. We currently incarcerate 756 inmates per 100,000 residents, a rate nearly five times the average worldwide of 158 for every 100,000. In addition, more than 5 million people who recently left jail remain under “correctional supervision,” which includes parole, probation, and other community sanctions. All told, about one in every 31 adults in the United States is in prison, in jail, or on supervised release. This all comes at a very high price to taxpayers: Local, state, and federal spending on corrections adds up to about $68 billion a year.

Our overcrowded, ill-managed prison systems are places of violence, physical abuse, and hate, making them breeding grounds that perpetuate and magnify the same types of behavior we purport to fear. Post-incarceration re-entry programs are haphazard or, in some places, nonexistent, making it more difficult for former offenders who wish to overcome the stigma of having done prison time and become full, contributing members of society. And, in the face of the movement toward mass incarceration, law-enforcement officials in many parts of the U.S. have been overwhelmed and unable to address a dangerous wave of organized, frequently violent gang activity, much of it run by leaders who are based in other countries.

With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something different–and vastly counterproductive. Obviously, the answer is the latter.

Over the past two decades, we have been incarcerating more and more people for nonviolent crimes and for acts that are driven by mental illness or drug dependence. The U.S. Department of Justice estimates that 16% of the adult inmates in American prisons and jails–which means more than 350,000 of those locked up–suffer from mental illness, and the percentage in juvenile custody is even higher. Our correctional institutions are also heavily populated by the “criminally ill,” including inmates who suffer from HIV/AIDS, tuberculosis, and hepatitis.

Drug offenders, most of them passive users or minor dealers, are swamping our prisons. According to data supplied to Congress’ Joint Economic Committee, those imprisoned for drug offenses rose from 10% of the inmate population to approximately 33% between 1984 and 2002. Experts estimate that this increase accounts for about half of the dramatic escalation in the total number imprisoned over that period. Yet locking up more of these offenders has done nothing to break up the power of the multibillion-dollar illegal drug trade. Nor has it brought about a reduction in the amounts of the more dangerous drugs–such as cocaine, heroin, and methamphetamines–that are reaching our citizens.

Justice statistics also show that 47.5% of all the drug arrests in our country in 2007 were for marijuana offenses. Additionally, nearly 60% of the people in state prisons serving time for a drug offense had no history of violence or of any significant selling activity. Indeed, four out of five drug arrests were for possession of illegal substances, while only one out of five was for sales. Three-quarters of the drug offenders in our state prisons were there for nonviolent or purely drug offenses. And although experts have found little statistical difference among racial groups regarding actual drug use, African-Americans–who make up about 12% of the total U.S. population–accounted for 37% of those arrested on drug charges, 59% of those convicted, and 74% of all drug offenders sentenced to prison.

Against this backdrop of chaos and mismanagement, a dangerous form of organized and sometimes deadly gang activity has infiltrated America’s towns and cities. It comes largely from our country’s southern border, and much of the criminal activity centers around the movement of illegal drugs. The weapons and tactics involved are of the highest order.

The Mexican drug cartels, whose combined profits are estimated at $25 billion a year, are known to employ many elite former soldiers who were trained in some of America’s most sophisticated military programs. Their brutal tactics took the lives of more than 6000 Mexicans last year alone, and the bloodshed has been spilling over the border into our own neighborhoods at a rapid pace. One terrible result is that Phoenix, Ariz., has become the kidnapping capital of the United States, with more than 370 cases in 2008. That is more incidents than in any other city in the world outside of Mexico City.

The challenge to our communities is not limited to the states that border Mexico. Mexican cartels are now reported to be running operations in some 230 American cities. Other gang activity–much of it directed from Latin America, Asia, and Europe–has permeated our country to the point that no area is immune. As one example, several thousand members of the Central American gang MS-13 now operate in northern Virginia, only a stone’s throw from our nation’s capital.

In short, we are not protecting our citizens from the increasing danger of criminals who perpetrate violence and intimidation as a way of life, and we are locking up too many people who do not belong in jail. It is incumbent on our national leadership to find a way to fix our prison system. I believe that American ingenuity can discover better ways to deal with the problems of drugs and nonviolent criminal behavior while still minimizing violent crime and large-scale gang activity. And we all deserve to live in a country made better by such changes.