http://www.oranous.com/DNA/Osborne/08-6_RespondentAmCuIndExoneratedbyDNATesting.pdf
No. 08-6
IN THE
Supreme Court of the United States
DISTRICT ATTORNEY’S OFFICE FOR THE
THIRD JUDICIAL DISTRICT, et al.,
Petitioners,
v.
WILLIAM G. OSBORNE,
Respondent
.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF OF AMICI CURIAE
INDIVIDUALS EXONERATED BY
POST-CONVICTION DNA TESTING
IN SUPPORT OF RESPONDENT
PAUL A. ENGELMAYER
Counsel of Record
JANET R. CARTER
PAMELA K. BOOKMAN
BRIAN A. SUTHERLAND
STEPHEN L. BERO
WILMER CUTLER PICKERING
HALE AND DORR LLP
399 Park Avenue
New York, N.Y. 10022
(212) 230-8800
Saturday, February 28, 2009
Deciding the fate of Maryland's death penalty
MARYLAND:
Deciding the fate of Maryland's death penalty
Maryland will be better off without the death penalty ("Senate may debatedeath penalty repeal," Feb. 26).
Repeal would allow Maryland to develop policies that are more effective atpreventing crime and helping victims' families.
The flaws in capital punishment, which were reflected in the hearings ofthe Maryland Commission on Capital Punishment, have been well researched
and well known for decades:
It does not deter crime.It costs much more than the alternatives.
It drags out the suffering of victims' families rather than bringing themclosure.
It risks taking innocent lives - mistakes in death penalty cases cannot be reversed once an execution has taken place.
In addition, the use of the death penalty reflects the racial disparity of our criminal justice system, which incarcerates and also condemns to death people of color at a much higher rate than whites.
I call on Maryland legislators to vote for repeal of the death penalty in 2009.
Elizabeth DuVerlie----Baltimore
More on Cost
From The Standdown Blog :
Thursday, February 26, 2009
"Global financial crisis could put an end to the US death penalty," is by Tom Leonard in the UK's Daily Telegraph.
Capital cases are typically more expensive because trials take longer, involve more lawyers and more frequently lead to appeals
.
Anti-capital punishment activists at the Death Penalty Information Centre (DPIC) estimate that executing a prisoner in Kansas costs 70 per cent higher than keeping him or her in prison – $1.26 million compared to $740,000.
Anti-capital punishment activists at the Death Penalty Information Centre (DPIC) estimate that executing a prisoner in Kansas costs 70 per cent higher than keeping him or her in prison – $1.26 million compared to $740,000.
The state has not executed anyone since 1976 but it has nine men on Death Row.
Caroline McGinn, a Republican Kansas state senator, has proposed a bill banning the death penalty from July in order to cut the state's budget deficit.
In Maryland, where the governor, Martin O'Malley, is supporting a death penalty repeal. the DPIC claims the state's five executions since 1976 cost it more than $37 million.
Mr O'Malley said capital cases in his state cost three times as much as non-capital ones. "And we can't afford that when there are better and cheaper way to reduce crime," he told the New York Times.
"The issue of cost is definitely an issue that legislators are looking at because of the severe economic recession (having) a significant impact on many states," said Steve Hall, director of the StandDown Texas Project, an anti-capital punishment group.
"The state legislators are looking at ways to cut the funding, to pull themselves out of deficit, and the high cost of the death penalty is absolutely something that they are looking at."
One note of editorial correction, StandDown was started to advocate for a moratorium on executions and a state-sponsored study commission to examine Texas' application of the death penalty. It has the mandate to work with supporters of the death penalty as well as opponents of capital punishment to bring needed reforms to strengthen our criminal justice system.
The Week has, "Death penalty economics."
What happened
Lawmakers in Maryland, Colorado, Kansas, Nebraska, Montana, New Mexico, and New Hampshire are arguing that their states should repeal the death penalty as a cost-cutting measure in a time of tight budgets. Capital punishment cases cost significantly more to prosecute than life-sentence cases. States are also looking at releasing nonviolent offenders to save on prison costs. (The New York Times)
What the commentators said
“The misery wrought by the recession is practically universal,” said Alexandra Gutierrez in The American Prospect online, but it won’t be all bad if it gets states to “adopt sounder legal policy.” Tough-on-crime measures like the death penalty cost a lot of money, but appear to yield few “substantive benefits.
” Let’s hope the “financial argument” succeeds “where the ethical one has failed.”That’s just it, said The Philadelphia Inquirer in an editorial.
Proponents of the fiscal argument, like Maryland Gov. Martin O’Malley, were already opposed to the death penalty on moral grounds. But no matter how “just” O’Malley’s cause, the majority of his state—and the nation—backs capital punishment.There’s another problem with the fiscal argument, said law professor Douglas Berman in Sentencing Law and Policy.
The “states seriously considering death penalty repeals” have few death row inmates and fewer executions, so they don’t actually spend that much on capital punishment. Meanwhile, states with “bloated,” expensive capital punishment systems, like California, are cutting jobs instead.
More on cost in this post.
Besides bad forensic science
Frank Lee Smith From the Blog of The Innocence Project of Florida :
"Besides bad forensic science"
The National Academy of Science's report on the sorry state of forensic science in America continues to garner attention in the press, but two other articles caught my attention today.
The first is about the use of jailhouse snitches in the Virginian-Pilot in Hampton Roads.
Police in Norfolk labeled Timothy W. Gurley unreliable and a liar, according to court documents. But his long criminal history didn't prevent him from helping authorities in several high-profile cases including the prescription drug trafficking case of Dr. Sidney Loxley and the double murder trial of Eddie Makdessi, extradited from Russia to face charges that he killed his wife and her lover. In December, Gurley testified in the trial of Navy Lt. Michael Lee Everage, who was convicted of murder in the bludgeoning of his wife with a truck mirror.
Gurley hopes a judge will slash his 25-year sentence as thanks for his cooperation.
And then this hilarious money-quote. Kudos to the author for this juxtaposition of facts:
"It is our duty to put forth only the credible witnesses who have valuable testimony to provide, no matter who they are," said Norfolk's Commonwealth's Attorney Robert C. Slaughter III
[Jailhouse snitch] Jamaal Skeeter has lied about his own name.
Second, there's a piece on Grits for Breakfast about the unreliability of polygraph tests, "no matter who uses them, or why." In particular the blog refers to the common use of polygraphs to screen job applicants.
Equally unfair would be to rely on polygraph testing, which amounts to junk science at its worst, to deny potential troopers employment. I don't know why anyone still thinks these things are reliable. As one critic put it, "There's something about us Americans that makes us believe in the myth of the lie detector. It's as much of a myth as the Tooth Fairy."
Lie detectors were ruled to be generally inadmissible in court in the landmark 1923 case Frye, but played a part in police investigations far into the late 20th century, and therefore might have contributed to wrongful convictions which are being served today.
posted by Ryan at 10:10 AM on Feb 23, 2009
OliveRose said...
This sounds all so familiar, didn't we just execute someone who had a jailhouse snitch as a "creditable" witness. Sad, really sad.
February 25, 2009 8:14 PM
Obama Administration Contends Prisoner Has No Right to DNA Testing
DNA testing is a uniquely powerful crime-solving tool. Testing crime scene evidence using new and advanced techniques has solved many previously unsolved crimes, leading to the arrest and conviction of rapists and other violent criminals. Just as important, DNA testing has exonerated at least 232 innocent persons who had been wrongly convicted, including 17 who had been sentenced to death for crimes they didn't commit.
For these reasons, John Ashcroft, Attorney General in the George W. Bush administration, has called DNA testing "the truth machine of law enforcement, ensuring justice by identifying the guilty and exonerating the innocent." But on Monday, a lawyer for the Obama administration will argue in the Supreme Court that a prisoner who claims he is innocent has no constitutional right to have DNA from the crime scene tested -- even if he is willing to pay the costs himself.
In fairness, the Obama Justice Department inherited this case from the Bush administration, which filed a brief supporting the prosecution less than three weeks before leaving office. But lawyers for the prisoner, William G. Osborne, asked the new administration to change its position in the case, as it is entitled to do, and it declined.
Osborne was convicted of sexual assault and kidnapping in a brutal 1993 attack on a woman in Anchorage, and sentenced to 26 years in prison. He says he is innocent, and has sought for years to have a semen sample from the crime scene tested with DNA techniques that were not available at the time of his trial, offering to pay the testing costs himself. But Alaska is one of six states that have no law allowing for post-conviction DNA testing, and the prosecution has steadfastly refused to consent. Osborne filed suit, and a federal appeals court agreed that he is entitled to DNA testing of the crime scene evidence. The prosecution appealed, and on Monday the Supreme Court will hear the prosecution's appeal of that decision.
One has to wonder why the prosecution has fought this case all the way to the Supreme Court. After all, if DNA testing implicates Osborne, the state will have additional and compelling proof of his guilt. If, on the other hand, testing excludes Osborne as the assailant -- and the prosecution concedes that a favorable test result would conclusively establish his innocence -- then a grave injustice can be corrected. In addition, the test results may allow law enforcement to identify the real assailant, who may still be at large. In either case, the truth-seeking function of the justice system will be served.
The Obama administration's decision to adhere to the Bush position in this case is disappointing to those who had hoped for greater sensitivity to the very real problem of wrongful convictions. As a state senator in Illinois, Obama strongly supported efforts to reform the state's broken death penalty system, championing a law that aimed to reduce false or coerced confessions by requiring police interrogations to be videotaped. And in a 1999 article cited on the Obama-Biden campaign website, Obama specifically called for greater access to DNA testing for defendants in capital cases "to make sure you've got the right person."
Osborne's request for DNA testing is supported by US treaty obligations. The International Covenant on Civil and Political Rights, a treaty ratified by the United States in 1992, says that anyone convicted of a crime has the right to have that conviction reviewed by a higher court; it also provides that persons found to be wrongly convicted are entitled to compensation. These rights cannot meaningfully be respected if a prisoner who claims to be wrongly convicted is denied access to evidence that could conclusively establish his innocence.
The collection of DNA samples from unwilling persons -- particularly those, like arrestees, who have not been convicted of any crime -- raises serious privacy concerns. But those issues aren't involved in this case. All Osborne asks is to have DNA evidence left at the crime scene tested and compared with his own DNA. The only interest the prosecution asserts in defense of its refusal to allow testing is its interest in the "finality" of Osborne's conviction. But DNA testing would undermine that finality only if Osborne is innocent. It is hard to discern the public interest in the finality of a proceeding that leaves an innocent man in prison and a rapist possibly still walking free.
The Bush administration argued in its brief -- now effectively adopted by the Obama administration -- that the decision about whether to allow DNA testing should be left up to the states as part of a "vibrant democratic process." But some things shouldn't be put up for a vote -- and the liberty of a possibly innocent person is one of them.
For these reasons, John Ashcroft, Attorney General in the George W. Bush administration, has called DNA testing "the truth machine of law enforcement, ensuring justice by identifying the guilty and exonerating the innocent." But on Monday, a lawyer for the Obama administration will argue in the Supreme Court that a prisoner who claims he is innocent has no constitutional right to have DNA from the crime scene tested -- even if he is willing to pay the costs himself.
In fairness, the Obama Justice Department inherited this case from the Bush administration, which filed a brief supporting the prosecution less than three weeks before leaving office. But lawyers for the prisoner, William G. Osborne, asked the new administration to change its position in the case, as it is entitled to do, and it declined.
Osborne was convicted of sexual assault and kidnapping in a brutal 1993 attack on a woman in Anchorage, and sentenced to 26 years in prison. He says he is innocent, and has sought for years to have a semen sample from the crime scene tested with DNA techniques that were not available at the time of his trial, offering to pay the testing costs himself. But Alaska is one of six states that have no law allowing for post-conviction DNA testing, and the prosecution has steadfastly refused to consent. Osborne filed suit, and a federal appeals court agreed that he is entitled to DNA testing of the crime scene evidence. The prosecution appealed, and on Monday the Supreme Court will hear the prosecution's appeal of that decision.
One has to wonder why the prosecution has fought this case all the way to the Supreme Court. After all, if DNA testing implicates Osborne, the state will have additional and compelling proof of his guilt. If, on the other hand, testing excludes Osborne as the assailant -- and the prosecution concedes that a favorable test result would conclusively establish his innocence -- then a grave injustice can be corrected. In addition, the test results may allow law enforcement to identify the real assailant, who may still be at large. In either case, the truth-seeking function of the justice system will be served.
The Obama administration's decision to adhere to the Bush position in this case is disappointing to those who had hoped for greater sensitivity to the very real problem of wrongful convictions. As a state senator in Illinois, Obama strongly supported efforts to reform the state's broken death penalty system, championing a law that aimed to reduce false or coerced confessions by requiring police interrogations to be videotaped. And in a 1999 article cited on the Obama-Biden campaign website, Obama specifically called for greater access to DNA testing for defendants in capital cases "to make sure you've got the right person."
Osborne's request for DNA testing is supported by US treaty obligations. The International Covenant on Civil and Political Rights, a treaty ratified by the United States in 1992, says that anyone convicted of a crime has the right to have that conviction reviewed by a higher court; it also provides that persons found to be wrongly convicted are entitled to compensation. These rights cannot meaningfully be respected if a prisoner who claims to be wrongly convicted is denied access to evidence that could conclusively establish his innocence.
The collection of DNA samples from unwilling persons -- particularly those, like arrestees, who have not been convicted of any crime -- raises serious privacy concerns. But those issues aren't involved in this case. All Osborne asks is to have DNA evidence left at the crime scene tested and compared with his own DNA. The only interest the prosecution asserts in defense of its refusal to allow testing is its interest in the "finality" of Osborne's conviction. But DNA testing would undermine that finality only if Osborne is innocent. It is hard to discern the public interest in the finality of a proceeding that leaves an innocent man in prison and a rapist possibly still walking free.
The Bush administration argued in its brief -- now effectively adopted by the Obama administration -- that the decision about whether to allow DNA testing should be left up to the states as part of a "vibrant democratic process." But some things shouldn't be put up for a vote -- and the liberty of a possibly innocent person is one of them.
Death-row inmate can get new trial in Osceola murder
Picture: Scott Mansfield, convicted of the Oct. 15, 1995 first-degree murder of Sara Robles, has been granted a new trial. (Florida Department of Correction, Florida Department of Correction / February 27, 2009)
A federal judge has granted a new trial to a death-row inmate convicted in the sexual mutilation and strangulation of a woman more than a decade ago in Osceola County.
U.S. District Court Judge Gregory Presnell in Orlando ruled that a videotape of Scott Mansfield being interrogated by Kissimmee police should not have been shown to a jury because he was not warned of his Miranda rights to remain silent and contact a lawyer.
The judge wrote that the tape "consisted of two hours of accusations by the police and unconvincing denials and contradictions by Mansfield," who disavowed killing Sara Robles.
"The Court has little doubt that the videotape had a substantial and injurious effect on the jury's verdict," Presnell wrote in an opinion published late Thursday.
Mansfield was sentenced to death Jan. 30, 1998, for the first-degree murder of Robles, 31. A jury unanimously recommended the sentence.
The partly naked body of Robles, a mother of six, was found near a Winn-Dixie in the Buenaventura Lakes neighborhood Oct. 15, 1995. She had been strangled in what trial Judge Belvin Perry, now chief of the Orange-Osceola Circuit Court, ruled a "conscienceless, pitiless and unnecessarily torturous" death.
Mirza Valladares, grandmother of Robles' four daughters, told the Orlando Sentinel Friday that the latest ruling worries her family. She, her husband and her son, the girls' father, have been raising them. Robles' two sons are grown.
"This takes our peace away," Valladares said. [But] we're Christians. We just believe in the justice of the Lord."
Attorneys for Mansfield, 47, had previously appealed the case to the Florida Supreme Court, which ruled that the trial court's denial of Mansfield's bid to have the videotape thrown out was harmless. The federal court disagreed.
Kissimmee police Capt. Warren Shepard, one of the investigators who questioned Mansfield, said the department views the latest ruling as one in a series of legal developments.
"We stand by the work in this case," Shepard said. "It was a solid case. There was definitely physical evidence, strong physical evidence."
Mansfield's conviction was based partly on a medical examiner's conclusion that a Grim Reaper ring he wore could have made marks on Robles' neck. Other evidence included a knife and food stamps found in his room, and testimony of a jailhouse informant. The federal court wrote that the informant had a motive to lie and the other evidence was inconclusive.
The strongest evidence included Mansfield's pager, found near Robles' body, and the fact that the two were seen together at nearby Rosie's Pub, where they shot pool, and at the Winn-Dixie, where they bought potato chips, doughnuts and sunflower seeds about 2:30a.m.
A woman on her way to church found the body at 9:10 a.m. The murder was thought to have happened at 3 a.m.
James Driscoll, lead defense attorney, said the federal ruling is important.
"The Constitution is never a technicality," he said. "It's the law that we've lived under for over 200 years."
Presnell ordered Mansfield released if the state does not retry him within 120 days. But the Florida Attorney General's Office, which is handling the case, plans to appeal to the U.S. Court of Appeals for the 11th Circuit.
(Source: www.orlandosentinel.com)
Killer of Gay Man in Florida Receives Life Sentence, Apologizes
Joseph Bearden, who was convicted earlier today by a jury for second-degree murder in the March 2007 death of Ryan Keith Skipper, a gay Florida man, made remarks at his sentencing, apologizing for the murder and telling the courtroom that he did not witness the murder and if he had seen what had taken place he would have tried to stop it.
Said Bearden: "I just thought it was a simple robbery. I didn't even think that dude was going to get hurt. I didn't want no part of that. I said I didn't want no part of it and they still involved me. They still involved me in it. I didn't do it. And the man that did it is walking the street. And he testified. That's all that I know."
In March 2007, Skipper's body was found by the side of a rural road in central Florida with more than 20 stab wounds. His car and laptop had been stolen. The car was abandoned and recovered by authorites, who reported that the assailants had attempted to set it on fire but did not succeed. They had also cut out a seat belt because it was so bloody they couldn't clean it. Bearden, then 21, and William David Brown Jr., then 20, were later arrested and indicted for the killing. A witness brought in by authorities at the time told police that Brown had killed Skipper because he was gay.
Bearden's co-defendant, William Brown, is to be tried at a later date on charges of first-degree murder and robbery.
Bearden was sentenced to life in prison with the possibility of parole in 25 years.
Watch Bearden speak to the judge and the courtroom, AFTER THE JUMP...
(Source:www.towleroad.com)
For teens in prison, life sentence means no parole
Picture: FSU professor Paolo Annino, center, and his students have worked on behalf of Kenneth Young and others. “Kenneth’s a barber in prison, and he could be a barber outside,’’ Annino says. “His dream is to get out and come home to his family after a day of honest work. That’s all he wants.’’
The retired judge lives in the deep woods southeast of Tampa, a quarter-mile down a narrow dirt road. Late in the afternoon, J. Rogers Padgett is brooding on how much he misses the courtroom.
He's heard hundreds upon hundreds of cases over the years, so it's a long shot when he's asked if he recalls an armed robbery case from eight years ago. The defendant was a kid named Kenneth Young.
Yes, the judge says, he remembers it well. Young was all of 14 when he helped a 25-year-old crack dealer pull armed robberies of hotels around Tampa Bay. Young would take down the video surveillance cameras and grab the cash while the boss held a gun on the clerks and barked orders. No shots were ever fired.
Padgett remembers the address of one of the hotels, the pile of video cameras in the back seat of the crack dealer's car when he and Young were arrested, Young's annoying courtroom behavior as he tried to avoid trial. And he remembers sentencing Young to life in prison.
What he does not remember is that it was life in prison with no chance of ever getting out. Padgett ruminates on it a minute and volunteers something extraordinary:
He says he made a mistake. He never meant to send Young away forever.
"I didn't think when I gave Kenneth Young life that it was life without parole," said Padgett. "At this point, I'd sign a clemency petition for him to be considered for release."
The judge's words are like manna from heaven when they are relayed to Young's attorney, Paolo Annino.
A law professor at Florida State University's Public Interest Law Center, Annino and some of his students have crafted a legislative bill that could help Young and about 300 more Florida inmates who got life or hefty sentences when they were kids.
Called the Second Chance Act for Children in Prison of 2009, the bill says that those who were 15 or younger and sentenced to at least 10 years in prison without parole should be considered for release if they've committed no other crime, shown remorse, stayed out of trouble in prison and participated in educational programs.
Kenneth Young is their poster child.
"Remember," Annino says, "this bill is for inmates like Kenneth to be considered for release, not necessarily released."
The bill favors children who were "an accomplice to the offense or a relatively minor participant … or acting under extreme duress or domination of another person."
The testimony in Young's case made it clear that the crack dealer was running the show, with Young in a subservient role. For his part in the robberies, Young got $50 cash, a pair of Air Jordans and a six-pack of Heineken.
Former hotel night clerk Michael Traupmann told the St. Petersburg Times that it always bothered him that "the boy" got such a harsh sentence. "He was pretty harmless,'' said Traupmann. "If I could help him, I would."
Now, so would Padgett.
• • •
A few weeks ago, as the sun set behind oaks in the judge's yard, he said that when he came to the bench in the 1970s, a life sentence didn't necessarily mean life. Inmates routinely were granted early release. It was that way through the '80s.
Padgett said he knew that a change in the '90s meant that a life sentence for first-degree murder and sexual battery truly meant life. But he said he thought it was for capital crimes only; he didn't realize it applied when he sentenced Young to life for armed robbery.
"I didn't know he was stuck,'' the judge said. "I thought corrections officials had the latitude to look at his record down the road and let him out if he did well in prison, which is how it should be.''
As it turns out, Young has done well in prison. In eight years, he has stayed out of trouble, cared for sick inmates and taken every class available to him.
Sgt. Kimberly Engleking at Lake Correctional Institution, where Young is incarcerated, described him as "well-behaved, polite, quiet and respectful — never a problem.''
The only negative mark in his prison file came on a Sunday morning two years ago, when he didn't make his bed one time. He said he didn't think he was required to on a weekend and was not disciplined.
Annino said he can understand how Padgett missed the change in sentencing guidelines that affected Young. "There wasn't a lot of education going on about parole being abolished for crimes that weren't capital crimes," he said.
"But it takes someone with Padgett's character to admit what he didn't know."
• • •
The Florida Legislature is conservative, not customarily generous with prison inmates of any age.
The bill Annino and his law students were pushing died in a legislative committee last year. But Annino says increased support of Republicans makes him think the bill will fare better this year.
The Senate sponsor is Jim King, a former Senate president and one-time House GOP leader who knows how to get things done in the Legislature.
Serving on the Senate Criminal Justice Committee the past few years, King says he's been bothered by several laws that inhibit the rehabilitation of inmates. He says the bill has a good chance to pass because many lawmakers feel the current system wastes lives.
"A kid under 15 who has been sent to prison could and probably would be a totally different person than they were when they first got sentenced,'' King said. "This would give them a shot at living a normal life.''
The House sponsor is Mike Weinstein, a freshman Republican who has been a prosecutor in Jacksonville for 15 years.
Weinstein says he "thought deeply about it" before he decided to get behind the bill. What made him decide to commit to it was the age of the kids. "If we can't rehabilitate a percentage of kids who were 15 or younger when they committed a crime, we have to ask ourselves if we can rehabilitate anyone," he said.
The bill says that if adolescent offenders are granted parole, they have to complete a two-year re-entry program before being fully released.
Annino and his law students are also working on a clemency petition for Young.
"In a lot of ways, prison has been good for me," Young wrote in a letter a few months ago. "As a kid locked up with a bunch of adult men, I quickly learned what it feels like to be a victim, which made me really understand how the hotel victims felt."
• • •
When Young was to be sentenced for armed robbery in 2001, prosecutor Curtis Allen told Padgett that Young could be sentenced anywhere from 51 months to life. Allen asked for life.
Young's attorney, Mark Reinhold, asked Padgett to sentence Young as a juvenile, to seven years, because of his age, because he had no prior criminal history and because of his secondary role.
Padgett sided with the prosecutor. "I feel you're dangerous," he told Young. "I'm going to take you out of circulation for the rest of your natural life."
Reinhold says that as he and Young left the courtroom, his client asked him what that meant. "I had to tell him he was going to die in prison,'' Reinhold says, "which made him scream and cry like the child he was.''
Now, Padgett says he was talking tough that day to scare Young, but he didn't think he was sending him away to die in prison. He hopes either the legislative bill or a clemency hearing will give Young a second chance.
Said the judge: "Just tell me where to sign.''
(Source: www.tampabay.com)
Friday, February 27, 2009
Alaska's refusal to use a DNA test for true justice is shameful
Alaska's refusal to use a DNA test for true justice is shameful
By Robert Morgenthau
http://www.nydailynews.com/opinions/2009/02/27/2009-02-27_alaskas_refusal_to_use_a_dna_test_for_tr.html
Friday, February 27th 2009, 4:00 AM
In 1994, William Osborne was convicted in Alaska of a kidnapping and brutal rape.
Based on my reading of the case, he very likely is guilty. Among other things, he was identified by the victim. Witnesses saw him shortly before the attack with the co-defendant whose gun was fired during the crime, and whose car contained a stain matching the victim's blood. A relatively primitive DNA test was conducted on the contents of a condom left at the crime scene. The test showed that Osborne could have produced the semen - along with about one-sixth of the male African-American population. Given the evidence, one could hardly fault the jury for convicting.
But Osborne has consistently insisted that he is innocent. DNA testing was becoming more sophisticated even before his trial, and he directed his attorney to request that a new and conclusive test be done before trial, on the semen - but his attorney refused. Since 1997 Osborne has complained of his attorney's choice and asked his prosecutors to test the evidence. A test might cost about $2,000; a nonprofit group, the Innocence Project, has offered to pay for it.
The state admits that a DNA test now would be conclusive as to whether or not Osborne is guilty. But Alaska has no statute entitling anyone to post-conviction DNA testing, and the prosecution has simply refused to give Osborne access to the evidence. Instead, Alaska has fought tooth and nail to deny Osborne that access, in a decade-long legal battle that will soon culminate with a decision from the U.S. Supreme Court. The state's position has been endorsed in "friend of the court" briefs filed by the federal government, 31 individual states and the New York City Corporation Counsel.
But I am simply mystified by the prosecutors' course of conduct. Not every defendant can fairly claim entitlement to post-trial forensic testing. But when a defendant who has always protested innocence will pay for a test that will resolve that protest one way or the other, only stubbornness can explain denying him access to the evidence. What can Alaska be afraid of - finding that it has imprisoned the wrong man?
The story is told that when Galileo offered to let clerics determine with their own eyes that the moons of Jupiter circled that planet, they "knew" he must be wrong. And so they refused even to look through his telescope. Alaska's prosecutors are heirs to that not-so-proud tradition.
Given the numerous cases in which new evidence, including DNA evidence, has exonerated those who like Osborne seemed very likely guilty, a prosecutor owes it to the public to be open-minded with respect to requests like Osborne's. If such testing had, in 1997, shown that Osborne was guilty, it would have done no harm - and indeed saved the Alaska taxpayers a huge litigation bill. If Osborne had been shown to be innocent, he could have been released.
Alaska may have no statute requiring testing, but it likewise has no law that prevented the state from making the evidence available. I will leave it up the Supreme Court to tell us whether Osborne had a constitutional right to testing. But all of us are entitled to prosecutors with a more flexible mind-set than that revealed in this case.
Morgenthau is Manhattan district attorney.
By Robert Morgenthau
http://www.nydailynews.com/opinions/2009/02/27/2009-02-27_alaskas_refusal_to_use_a_dna_test_for_tr.html
Friday, February 27th 2009, 4:00 AM
In 1994, William Osborne was convicted in Alaska of a kidnapping and brutal rape.
Based on my reading of the case, he very likely is guilty. Among other things, he was identified by the victim. Witnesses saw him shortly before the attack with the co-defendant whose gun was fired during the crime, and whose car contained a stain matching the victim's blood. A relatively primitive DNA test was conducted on the contents of a condom left at the crime scene. The test showed that Osborne could have produced the semen - along with about one-sixth of the male African-American population. Given the evidence, one could hardly fault the jury for convicting.
But Osborne has consistently insisted that he is innocent. DNA testing was becoming more sophisticated even before his trial, and he directed his attorney to request that a new and conclusive test be done before trial, on the semen - but his attorney refused. Since 1997 Osborne has complained of his attorney's choice and asked his prosecutors to test the evidence. A test might cost about $2,000; a nonprofit group, the Innocence Project, has offered to pay for it.
The state admits that a DNA test now would be conclusive as to whether or not Osborne is guilty. But Alaska has no statute entitling anyone to post-conviction DNA testing, and the prosecution has simply refused to give Osborne access to the evidence. Instead, Alaska has fought tooth and nail to deny Osborne that access, in a decade-long legal battle that will soon culminate with a decision from the U.S. Supreme Court. The state's position has been endorsed in "friend of the court" briefs filed by the federal government, 31 individual states and the New York City Corporation Counsel.
But I am simply mystified by the prosecutors' course of conduct. Not every defendant can fairly claim entitlement to post-trial forensic testing. But when a defendant who has always protested innocence will pay for a test that will resolve that protest one way or the other, only stubbornness can explain denying him access to the evidence. What can Alaska be afraid of - finding that it has imprisoned the wrong man?
The story is told that when Galileo offered to let clerics determine with their own eyes that the moons of Jupiter circled that planet, they "knew" he must be wrong. And so they refused even to look through his telescope. Alaska's prosecutors are heirs to that not-so-proud tradition.
Given the numerous cases in which new evidence, including DNA evidence, has exonerated those who like Osborne seemed very likely guilty, a prosecutor owes it to the public to be open-minded with respect to requests like Osborne's. If such testing had, in 1997, shown that Osborne was guilty, it would have done no harm - and indeed saved the Alaska taxpayers a huge litigation bill. If Osborne had been shown to be innocent, he could have been released.
Alaska may have no statute requiring testing, but it likewise has no law that prevented the state from making the evidence available. I will leave it up the Supreme Court to tell us whether Osborne had a constitutional right to testing. But all of us are entitled to prosecutors with a more flexible mind-set than that revealed in this case.
Morgenthau is Manhattan district attorney.
Bearden Sentenced to Life in Prison
BARTOW | Joseph Eli Bearden was found guilty of second-degree murder Friday and sentenced to life in prison in the death of a 25-year-old gay man in a case that drew national attention.
After nearly two days of deliberation, jurors returned a verdict of guilty of second-degree murder. Bearden was being tried for first-degree murder and prosecutors had sought the death penalty.
Defense lawyer Byron Hileman called the verdict a “partial victory.”
“The death penalty is gone. We set out on this case to save his life.”
Bearden is one of two defendants charged with the 2007 murder of Ryan Skipper. Prosecutors claimed Bearden, 23, and William David Brown Jr., killed Skipper and stole his 2007 Chevrolet Aveo. Brown, 22, of Wahneta, is awaiting trial.
A woman going to the store about 1 a.m. on March 14, 2007, discovered Skipper’s body lying on Morgan Road in Wahneta, south of Winter Haven. He had been stabbed to death.
His throat had been cut. There were also multiple stab wounds to his shoulder and back.
His lawyers contended Bearden didn’t take part in the murder and only helped get rid of evidence.
Skipper’s death brought attention to harassment and violence directed toward gay, lesbian, bisexual and transgendered people.
Bearden also was found guilty of theft of a motor vehicle, of dealing in stolen property, tampering with evidence and of being an accessory after the fact.
(Source: www.theledger.com)
Argument Preview: District Attorney’s Office for the Third Judicial District v. Osborne
From SCOTUS blog :
Argument Preview: District Attorney’s Office for the Third Judicial District v. Osborne
Tuesday, February 17th, 2009 2:21 pm Eliza Presson
http://www.scotusblog.com/wp/argument-preview-district-attorneys-office-for-the-third-judicial-district-v-osborne/
New SCOTUSblog contributor Erica Goldberg previews one of the cases to be heard by the Justices on Monday, March 2nd. Erica is a graduate of Stanford Law School.
On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.
Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.
The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.
In holding that Osborne has a right to access the DNA evidence, the Ninth Circuit also assumed without deciding a question that the Supreme Court has carefully avoided in the past ─ whether a prisoner with access to this evidence can then overturn his conviction by asserting a “freestanding innocence” claim, based solely on the ground that he is not guilty rather than on any trial defects. If the Supreme Court overturns the Ninth Circuit’s decision, it may have to grapple with this important question.
Background
In 1993, two men drove an Alaska prostitute, K.G., to an abandoned area and brutally assaulted and raped her. The passenger of the car wore a blue condom during the sexual assault. The men then buried K.G. in the snow and left her for dead, and she was picked up by a passing car. Police found a blue condom and other forensic evidence at the scene of the crime.
A week later, Dexter Jackson, the driver who raped K.G., was found by Alaska police. Jackson told the police that Osborne was his passenger, and K.G. identified both men as the likely perpetrators. However, the description of the passenger that K.G. had given police was of a man substantially older and heavier than Osborne. In addition, Osborne had a mustache, and K.G. had described the passenger as clean-shaven.
Alaska’s crime lab subjected the sperm found in the blue condom to the “DQ Alpha” DNA test, which identifies .the genes at a single spot on one chromosome The sperm had the same DQ Alpha type as one in every six or seven African Americans, including Osborne. Although another, more discriminating type of DNA test – RFLP testing – was also available, Osborne’s trial attorney did not request this testing, either because she felt the DNA sample was too degraded to ensure this test’s accuracy or for other strategic reasons.
Osborne was convicted of the kidnapping and rape of K.G. in 1994 and sentenced to 26 years in prison. He later applied for post-conviction review in the Alaska Supreme Court, alleging that he had a due process right to have the forensic evidence retested using methods even more precise than the two methods available at the time of his trial. While his state appeals were proceeding, Osborne filed a civil rights suit in federal court under 42 U.S.C. § 1983. He argued that Alaska had deprived him of his due process rights by denying him access to the biological evidence found at the crime scene. Osborne’s suit asked the federal court to compel Alaska to provide him with this evidence so he could perform two types of DNA analysis, “STR” analysis and “mtDNA” analysis, which would produce a genetic profile shared by only one in a billion people. Thus, Osborne argued that if his DNA matched the DNA found in the blue condom, it would decisively establish his guilt; if the two sets of DNA did not match, his innocence would be affirmatively proven.
The federal district court dismissed Osborne’s complaint, holding that Osborne may not use a federal civil rights suit to seek access to this evidence. Citing the Supreme Court’s decision in Heck v. Humphrey, the district court held that because access to the DNA evidence could invalidate his state-court conviction, Osborne could only seek to access this evidence through a habeas proceeding – a much more stringent procedural device that requires exhaustion of all state court remedies before suing in federal court.
The Decision Below
The Ninth Circuit reversed the district court, holding that Heck does not prohibit Osborne’s suit. In Heck, a criminal defendant brought a § 1983 civil rights suit for malicious prosecution, for which one of the elements is an invalid conviction. The Supreme Court dismissed this civil rights action and held that because the defendant’s success on his malicious prosecution lawsuit would necessarily undermine his state-court conviction, he was instead required to file a habeas proceeding. The Ninth Circuit distinguished Osborne’s case from Heck on the ground that access to DNA evidence does not necessarily invalidate a state-court conviction; the evidence could also demonstrate Osborne’s guilt or prove inconclusive.
In a separate decision, the Ninth Circuit also held that the substance of Osborne’s § 1983 suit was successful because the due process clause of the Fourteenth Amendment guarantees him the right to access the state’s DNA evidence, even after conviction. The appeals court extended the seminal case of Brady v. Maryland, which established a defendant’s pre-trial right to access exculpatory evidence in the government’s possession, to create a post-conviction right for the defendant to access potentially favorable evidence. The Ninth Circuit limited its holding to cases like Osborne’s in which there is a reasonable probability that, if the exculpatory evidence were provided to Osborne, he could later prove that he is probably innocent in a freestanding innocence claim.
Petitions for Certiorari
The Attorney General of Alaska filed a petition for certiorari in which it asked the Court to overturn both of the Ninth Circuit’s decisions. The petition stressed that Heck bars Osborne’s lawsuit because access to the DNA evidence is a necessary step in overturning his conviction. Alaska also argued that a “freestanding innocence” claim has never been permitted by the Supreme Court, and that therefore the Ninth Circuit’s articulation of a standard allowing for access to evidence if there is a “reasonable probability” of winning a freestanding innocence claim is misguided and logically incoherent.
Opposing certiorari, Osborne emphasized that certiorari was not warranted because the vast majority of states have already enacted statutes allowing for post-conviction access to DNA evidence in certain circumstances. Osborne also disputed the petition’s contention that courts do not permit freestanding innocence claims as a basis for overturning a conviction.
Merits Briefs
The Supreme Court granted certiorari on November 3, 2008 on the questions (1) whether a criminal defendant can use a § 1983 suit to access biological evidence after his conviction, and (2) whether the due process clause of the Fourteenth Amendment requires post-conviction access to biological evidence, which is unavailable at the time of trial, that could conclusively establish guilt or innocence.
The parties’ briefs confront several critical issues. In addition to their disagreement over whether Heck v. Humphrey bars Osborne’s civil rights suit, the briefs disagree on the relevance of state statutes that already guide the availability of DNA evidence to prisoners. Alaska contends that the Ninth Circuit’s creation of a constitutional right to access evidence held by the state will nullify the state statutes addressing this issue, some of which differ from the standards applied by the Ninth Circuit, and will eliminate the states’ ability to experiment with approaches for allowing prisoners access to new technologies. Osborne, in turn, argues that Alaska is one of only six states in which inmates have no statutory rights to access DNA evidence, and that the state’s position as an outlier merely highlights the unconstitutionality of prohibiting Osborne from having access to this evidence.
In Osborne’s view, the Ninth Circuit correctly held that he has a due process right to access DNA evidence because he has a liberty interest in meaningful access to justice that is not extinguished after the trial. Osborne also offers a new argument in favor of affirmance, explaining that because he is willing to incur the expense of the DNA testing, there is no burden on the state in providing it, and the state’s unwillingness to provide this evidence is therefore so irrational as to be unconstitutional. Alaska, to some extent, dismantles this logic, arguing that Brady v. Maryland addresses only pre-trial disclosure rights necessary to ensure a fair trial; the same disclosure requirements do not exist once a defendant is convicted.
Osborne and Alaska finally differ with respect to the issue lurking behind the two questions presented: whether defendants may challenge convictions on innocence grounds even if they have received a fair trial. Osborne implies that the Supreme Court need not address this issue because a due process right of access to DNA evidence does not mean that a defendant will necessarily challenge his sentence using a freestanding innocence claim after accessing the evidence. If Osborne’s DNA evidence exonerates him, he can apply for clemency or a pardon without ever having to challenge his conviction through the courts. Alaska counters that a post-conviction due process right to access evidence is inexorably intertwined with the ultimate right to bring a freestanding innocence claim, which it does not regard as enshrined in the Constitution.
Argument Preview: District Attorney’s Office for the Third Judicial District v. Osborne
Tuesday, February 17th, 2009 2:21 pm Eliza Presson
http://www.scotusblog.com/wp/argument-preview-district-attorneys-office-for-the-third-judicial-district-v-osborne/
New SCOTUSblog contributor Erica Goldberg previews one of the cases to be heard by the Justices on Monday, March 2nd. Erica is a graduate of Stanford Law School.
On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.
Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.
The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.
In holding that Osborne has a right to access the DNA evidence, the Ninth Circuit also assumed without deciding a question that the Supreme Court has carefully avoided in the past ─ whether a prisoner with access to this evidence can then overturn his conviction by asserting a “freestanding innocence” claim, based solely on the ground that he is not guilty rather than on any trial defects. If the Supreme Court overturns the Ninth Circuit’s decision, it may have to grapple with this important question.
Background
In 1993, two men drove an Alaska prostitute, K.G., to an abandoned area and brutally assaulted and raped her. The passenger of the car wore a blue condom during the sexual assault. The men then buried K.G. in the snow and left her for dead, and she was picked up by a passing car. Police found a blue condom and other forensic evidence at the scene of the crime.
A week later, Dexter Jackson, the driver who raped K.G., was found by Alaska police. Jackson told the police that Osborne was his passenger, and K.G. identified both men as the likely perpetrators. However, the description of the passenger that K.G. had given police was of a man substantially older and heavier than Osborne. In addition, Osborne had a mustache, and K.G. had described the passenger as clean-shaven.
Alaska’s crime lab subjected the sperm found in the blue condom to the “DQ Alpha” DNA test, which identifies .the genes at a single spot on one chromosome The sperm had the same DQ Alpha type as one in every six or seven African Americans, including Osborne. Although another, more discriminating type of DNA test – RFLP testing – was also available, Osborne’s trial attorney did not request this testing, either because she felt the DNA sample was too degraded to ensure this test’s accuracy or for other strategic reasons.
Osborne was convicted of the kidnapping and rape of K.G. in 1994 and sentenced to 26 years in prison. He later applied for post-conviction review in the Alaska Supreme Court, alleging that he had a due process right to have the forensic evidence retested using methods even more precise than the two methods available at the time of his trial. While his state appeals were proceeding, Osborne filed a civil rights suit in federal court under 42 U.S.C. § 1983. He argued that Alaska had deprived him of his due process rights by denying him access to the biological evidence found at the crime scene. Osborne’s suit asked the federal court to compel Alaska to provide him with this evidence so he could perform two types of DNA analysis, “STR” analysis and “mtDNA” analysis, which would produce a genetic profile shared by only one in a billion people. Thus, Osborne argued that if his DNA matched the DNA found in the blue condom, it would decisively establish his guilt; if the two sets of DNA did not match, his innocence would be affirmatively proven.
The federal district court dismissed Osborne’s complaint, holding that Osborne may not use a federal civil rights suit to seek access to this evidence. Citing the Supreme Court’s decision in Heck v. Humphrey, the district court held that because access to the DNA evidence could invalidate his state-court conviction, Osborne could only seek to access this evidence through a habeas proceeding – a much more stringent procedural device that requires exhaustion of all state court remedies before suing in federal court.
The Decision Below
The Ninth Circuit reversed the district court, holding that Heck does not prohibit Osborne’s suit. In Heck, a criminal defendant brought a § 1983 civil rights suit for malicious prosecution, for which one of the elements is an invalid conviction. The Supreme Court dismissed this civil rights action and held that because the defendant’s success on his malicious prosecution lawsuit would necessarily undermine his state-court conviction, he was instead required to file a habeas proceeding. The Ninth Circuit distinguished Osborne’s case from Heck on the ground that access to DNA evidence does not necessarily invalidate a state-court conviction; the evidence could also demonstrate Osborne’s guilt or prove inconclusive.
In a separate decision, the Ninth Circuit also held that the substance of Osborne’s § 1983 suit was successful because the due process clause of the Fourteenth Amendment guarantees him the right to access the state’s DNA evidence, even after conviction. The appeals court extended the seminal case of Brady v. Maryland, which established a defendant’s pre-trial right to access exculpatory evidence in the government’s possession, to create a post-conviction right for the defendant to access potentially favorable evidence. The Ninth Circuit limited its holding to cases like Osborne’s in which there is a reasonable probability that, if the exculpatory evidence were provided to Osborne, he could later prove that he is probably innocent in a freestanding innocence claim.
Petitions for Certiorari
The Attorney General of Alaska filed a petition for certiorari in which it asked the Court to overturn both of the Ninth Circuit’s decisions. The petition stressed that Heck bars Osborne’s lawsuit because access to the DNA evidence is a necessary step in overturning his conviction. Alaska also argued that a “freestanding innocence” claim has never been permitted by the Supreme Court, and that therefore the Ninth Circuit’s articulation of a standard allowing for access to evidence if there is a “reasonable probability” of winning a freestanding innocence claim is misguided and logically incoherent.
Opposing certiorari, Osborne emphasized that certiorari was not warranted because the vast majority of states have already enacted statutes allowing for post-conviction access to DNA evidence in certain circumstances. Osborne also disputed the petition’s contention that courts do not permit freestanding innocence claims as a basis for overturning a conviction.
Merits Briefs
The Supreme Court granted certiorari on November 3, 2008 on the questions (1) whether a criminal defendant can use a § 1983 suit to access biological evidence after his conviction, and (2) whether the due process clause of the Fourteenth Amendment requires post-conviction access to biological evidence, which is unavailable at the time of trial, that could conclusively establish guilt or innocence.
The parties’ briefs confront several critical issues. In addition to their disagreement over whether Heck v. Humphrey bars Osborne’s civil rights suit, the briefs disagree on the relevance of state statutes that already guide the availability of DNA evidence to prisoners. Alaska contends that the Ninth Circuit’s creation of a constitutional right to access evidence held by the state will nullify the state statutes addressing this issue, some of which differ from the standards applied by the Ninth Circuit, and will eliminate the states’ ability to experiment with approaches for allowing prisoners access to new technologies. Osborne, in turn, argues that Alaska is one of only six states in which inmates have no statutory rights to access DNA evidence, and that the state’s position as an outlier merely highlights the unconstitutionality of prohibiting Osborne from having access to this evidence.
In Osborne’s view, the Ninth Circuit correctly held that he has a due process right to access DNA evidence because he has a liberty interest in meaningful access to justice that is not extinguished after the trial. Osborne also offers a new argument in favor of affirmance, explaining that because he is willing to incur the expense of the DNA testing, there is no burden on the state in providing it, and the state’s unwillingness to provide this evidence is therefore so irrational as to be unconstitutional. Alaska, to some extent, dismantles this logic, arguing that Brady v. Maryland addresses only pre-trial disclosure rights necessary to ensure a fair trial; the same disclosure requirements do not exist once a defendant is convicted.
Osborne and Alaska finally differ with respect to the issue lurking behind the two questions presented: whether defendants may challenge convictions on innocence grounds even if they have received a fair trial. Osborne implies that the Supreme Court need not address this issue because a due process right of access to DNA evidence does not mean that a defendant will necessarily challenge his sentence using a freestanding innocence claim after accessing the evidence. If Osborne’s DNA evidence exonerates him, he can apply for clemency or a pardon without ever having to challenge his conviction through the courts. Alaska counters that a post-conviction due process right to access evidence is inexorably intertwined with the ultimate right to bring a freestanding innocence claim, which it does not regard as enshrined in the Constitution.
Osborne - a case we are watching
From the Blog of the Innocence Project of Florida :
Wednesday, February 18, 2009
Osborne: A case we're watching
Arguments are set to begin in early March in the case of District Attorney’s Office for the Third Judicial District v. Osborne.
This summary of the case comes from SCOTUSblog. (That site and its partner wiki, as always, are great sources of info, should you wish to read up more on the case.)
On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.
Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.
The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.
In holding that Osborne has a right to access the DNA evidence, the Ninth Circuit also assumed without deciding a question that the Supreme Court has carefully avoided in the past ─ whether a prisoner with access to this evidence can then overturn his conviction by asserting a “freestanding innocence” claim, based solely on the ground that he is not guilty rather than on any trial defects. If the Supreme Court overturns the Ninth Circuit’s decision, it may have to grapple with this important question.
The Innocence Project in New York excerpts this article from McClatchy, in which Peter Neufeld exhibits a genuine shock at the prosecution's stubbornness.
"Most prosecutors want to do justice and they want to get to the truth," Even if they believe deep down that a defendant is guilty, many also reason, "Fine, I'll give them the test. What's the downside? It's just a test - it's not letting them out of prison."
It should be obvious why our organization is watching this case very carefully. We are lucky in Florida, in the sense that a particular rule of the State's criminal procedure establishes the right for an inmate to file a motion to seek DNA testing. Florida is one of over 40 states that make such an allowance for people who have already been convicted of a crime. Alaska is one of the remaining handful of states that make no explicit allowance. In addition, Alaska has never granted an inmate post-conviction DNA testing.
We hope the Supreme Court can recognize what is at stake in this case. Many people were convicted and sentenced before the revolutionary advent of DNA testing. So far, over 230 people nationwide have been exonerated by testing biological evidence that remained since they were convicted. It is imperative that the Supreme Court recognize the gravity of those exonerations and the evidence they provide for the fallibility of our legal system, and extend the right to post-conviction DNA testing to all inmates in America.
Posted by Ryan at 1:01 PM
Wednesday, February 18, 2009
Osborne: A case we're watching
Arguments are set to begin in early March in the case of District Attorney’s Office for the Third Judicial District v. Osborne.
This summary of the case comes from SCOTUSblog. (That site and its partner wiki, as always, are great sources of info, should you wish to read up more on the case.)
On March 2, 2009, in No. 08-6, District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court will hear argument in a case that involves the relationship between the most cutting-edge DNA technology, capable of establishing guilt or innocence with unprecedented conclusiveness, and the longstanding constitutional right for the accused to receive fair process.
Fourteen years after his conviction for kidnapping and sexual assault, William Osborne seeks access to sperm deposited inside a condom found at the scene of the crime. At his own expense, he wishes to subject this evidence to sophisticated DNA testing, unavailable at the time of his trial, which he believes will definitively prove his innocence. During post-conviction proceedings, the state of Alaska denied Osborne access to this DNA evidence because of the other factors demonstrating his guilt. Osborne then brought a suit in federal court claiming that Alaska’s refusal to allow access to the evidence violated his due process rights under the Fourteenth Amendment. The Ninth Circuit agreed.
The Supreme Court must now address two decisions by the Ninth Circuit that have potentially far-reaching implications. First, the Ninth Circuit held that Osborne can bring a lawsuit against Alaska to access evidence instead of seeking a writ of habeas corpus, the procedural device afforded prisoners for invalidating a state conviction in federal court. The Ninth Circuit also held that the due process clause guarantees Osborne the right to access the DNA evidence so that he may ultimately bring a habeas corpus action to challenge his conviction.
In holding that Osborne has a right to access the DNA evidence, the Ninth Circuit also assumed without deciding a question that the Supreme Court has carefully avoided in the past ─ whether a prisoner with access to this evidence can then overturn his conviction by asserting a “freestanding innocence” claim, based solely on the ground that he is not guilty rather than on any trial defects. If the Supreme Court overturns the Ninth Circuit’s decision, it may have to grapple with this important question.
The Innocence Project in New York excerpts this article from McClatchy, in which Peter Neufeld exhibits a genuine shock at the prosecution's stubbornness.
"Most prosecutors want to do justice and they want to get to the truth," Even if they believe deep down that a defendant is guilty, many also reason, "Fine, I'll give them the test. What's the downside? It's just a test - it's not letting them out of prison."
It should be obvious why our organization is watching this case very carefully. We are lucky in Florida, in the sense that a particular rule of the State's criminal procedure establishes the right for an inmate to file a motion to seek DNA testing. Florida is one of over 40 states that make such an allowance for people who have already been convicted of a crime. Alaska is one of the remaining handful of states that make no explicit allowance. In addition, Alaska has never granted an inmate post-conviction DNA testing.
We hope the Supreme Court can recognize what is at stake in this case. Many people were convicted and sentenced before the revolutionary advent of DNA testing. So far, over 230 people nationwide have been exonerated by testing biological evidence that remained since they were convicted. It is imperative that the Supreme Court recognize the gravity of those exonerations and the evidence they provide for the fallibility of our legal system, and extend the right to post-conviction DNA testing to all inmates in America.
Posted by Ryan at 1:01 PM
Jury finds man guilty of Tackaberry murder in West Palm Beach
A jury today found a man guilty of the 2006 stabbing murder of a West Palm Beach woman and the attempted murder of her then-6-year-old grandson.
Wes McGee, 23, was found guilty after two hours of deliberations on charges of first-degree murder with a weapon, attempted first-degree murder, burglary and armed robbery, according to the Palm Beach County State Attorney's Office. Prosecutors are seeking the death penalty.
McGee, who authorities said was a prostitute and crack addict, stabbed and beat Jane Tackaberry, 53, to death Aug. 8, 2006, at the behest of Rhonda Norman, who wanted revenge against her ex-boyfriend, Tackaberry's son.
The two then took her grandson, Elijah, stabbed him and slashed his throat. He survived the attack.
Norman has already been found guilty of the murder and attempted murder. A jury recommended she be put to death, but a judge will decide her punishment at a later date.
The jury will return next month to decide if McGee should get the death penalty or life in prison.
(Source: www.sun-sentinel.com)
Guards’ ‘code of silence’ hinders clemency efforts Officers afraid to speak in favor of sparing inmates
If Willie Pondexter, Jr., is executed on Tuesday, part of the reason will be that the truth about his rehabilitation and dangerousness (or lack thereof) has been kept under lock and key. When it comes to assessing these factors of a person on death row, we should listen and give weight to the opinions of the prison officers who know him best.
But that doesn’t ordinarily happen because there is code of silence among corrections officers enforced by their supervisors and employers. The average correctional officer fears both the prison hierarchy — it could ruin his career or get him fired to say something out of line — and the corrections officers who keep prisoners and other correctional officers in their place through violence and other terrible means. The average correctional officer lives every day of his career with an absolute fear of speaking up.
I know because I worked in Florida prisons for almost 25 years, starting out as a corrections officer and rising through the ranks to supervise three state prisons, including Florida’s death row. I also know it would be very unlikely to find a Texas prison warden willing to blow the whistle on the unspoken, but enforced, code of silence.
I admire the few rare corrections officers who step forward and give decision-makers critical information, especially about clemency. In Pondexter’s case, one such courageous officer came forward and reported that Pondexter is not a danger to anyone, stays calm even in challenging situations, does everything that is asked of him and “could safely live out his days in a structured environment.” In fact, this correctional officer said, if Pondexter were a free man, he would be willing to give him a job working on his property.
This is the kind of information the Texas Board of Pardons and Paroles, the governor and the courts need to hear, but almost never do.
Significantly, this officer also said: “You would be hard-pressed to find anyone to say something bad about Pondexter.
If people are not talking, it is probably because they are scared to lose their jobs or scared of being written up.” This remark about the code of silence that prohibits corrections officers from speaking the truth, even when a man’s life is at stake, is consistent with all I know from my quarter-century in corrections.
There are likely dozens of other corrections officers who feel the same way and believe Pondexter’s life should be spared. They are not cooperating in Pondexter’s clemency case because they are afraid of being disciplined, losing their jobs, health care and pensions because they did what they thought was right, even on their own time. As a result, Pondexter is being denied the ability to investigate, gather evidence and present his case for clemency.
The recommendation of whether Pondexter lives or dies should be a decision for the Texas Board of Pardons and Paroles. The decision of whether to accept or reject that recommendation should be the governor’s. In a very real sense, however, this decision has been taken away from them, the legally authorized decision-makers, because the code of silence keeps critical information from the light of day.
Texas has the right to execute people convicted of murder. But if it sets up a process to make sure only the worst offenders receive the death penalty, it must let the process work.
It is an irrevocable wrong to send a man to his death without giving a fair hearing to favorable information about his demeanor, rehabilitation and lack of dangerousness to prison employees and other inmates. But that’s exactly what may happen on Tuesday.
McAndrew is the former warden of three Florida state prisons and an expert in prison and jail issues throughout the South, including Texas.
(Source: www.chron.com)
Florida sex offender policy puts inhumane nightmare under bridge
Still there . . .
No, you think. That can't be. Not after two years. Makes no sense.
But they're still there, a bedraggled colony of outcasts, consigned to the bowels of the Julia Tuttle Causeway -- as a matter of public policy.
No, you think. That's impossible. Last winter, state officials promised they'd solve the legal conundrum and international embarrassment that forced 19 sex offenders to live like rats under the concrete support beams of a causeway bridge. The camp's still there. Only the Tuttle bridge population has since grown to 48 men, crammed together in a nether existence of the Kafka kind.
Officially, of course, the state of Florida would never compel ex-offenders to live in unsanitary conditions in the dank underbelly of a freeway bridge, in tents, shacks, cars and two rusting campers. Yet parole officers have made it clear to ex-sex offenders who've served their prison sentences that they have no other options.
City and county laws have created so many overlapping forbidden zones -- 2,000 or 2,500 feet from schools, day cares, parks, playgrounds, school bus stops -- that the middle of Biscayne Bay has become an ex-offender's only allowable address.
''They check us here every evening. We've got to be here or we go back to prison,'' said M.C., 48, who was banished to the bridge after his release from prison two years ago.
DESPERATE CONDITIONS
They live in unlivable conditions. No water. No toilet, other than a jerry-rigged privy M.C. built with scrap wood, a plastic bucket and a tattered sheet for privacy.
The parolees are required to live in a place without electricity and to keep their electronic tracking devices charged. Before they pooled their money to buy a $300 generator, that meant a miles-long walk to find a convenience store electrical outlet.
Bushes along the bay shore have been littered with trash and human feces. M.C. said, ''I begged them to give us a trash dumpster. We could keep this place clean.'' But a dumpster would be tantamount to an official admission that these ex-prisoners have become permanent inmates in another setting, condemned to finish out their lives under the Tuttle Causeway.
They can't have a dumpster, toilet or running water because the state clings to an official pretense that their camp is only a transient aberration, instead of a permanent menace to public health.
`ENDANGERS COMMUNITY'
''It's horrible. It makes no sense,'' said Dr. Joe Greer, Miami's indefatigable public-health advocate. He visited the bridge settlement and was aghast at what Florida has created. ``Not only does that camp endanger the community, but it's inhumane.''
Greer talked of how men there, two of whom are in their 80s, are exposed to heat, cold, rain and mosquitoes, and have no fresh water or toilets, making them ripe for both communicable disease and psychological deterioration.
Perversely, Florida's ill-considered residency laws not only fomented this health hazard, they offer no real protection to children. Untethered to an actual home, ex-offenders become more difficult to supervise.
No one defends their unspeakable crimes. But residency laws that condemn them to live out the balance of their lives like bridge trolls aren't about protecting the public. As Greer said, this is really just revenge masquerading as public policy.
(Source : www.miamiherald.com)
Jurors hear from victim’s father in Fred Cooper trial
But he did not show up at the agreed-upon time.
As the couple waited, Russell saw an unmarked detective's car pull up to the hotel. A detective asked for the Andrewses.
The car and the detective had been sent by Ryan. He had just looked over the crime scene as forensic experts scoured the house.
"You want to try to establish the motive," Ryan told jurors. "Is this a burglary? Was the TV missing, any china, any valuables?"
When he returned to the Lee County Sheriff's Office, he broke the news to the family.
"Walter walked in and said, 'I'm sorry,'" Russell recalled Thursday with a sob. "He said, 'I'm sorry to tell you that your children are dead.'"
In interviews with the family, Ryan learned that the marriage between Steven and Michelle had become troubled, that Steven was possibly involved with another woman.
But it was a call from that woman that began to move the case. Kellie Ballew, Cooper's girlfriend of more than six years and the mother of their child, agreed to talk with detectives about her relationship with Steven. By the end of the interview, Ryan wanted to hear from Cooper.
He had a camouflage jacket, just like a stranger several Gateway residents recalled seeing the night before the bodies were found. He had a gun, Ballew told them. And he was devastated over losing Ballew.
Ballew called Cooper from the sheriff's office, telling him in a panicked voice that she needed an alibi. Cooper came.
Jurors listened to audio of the interview.
Detectives asked about his relationship with Ballew and his distress over it. They asked about a phone call between Ballew and Michelle, in which Michelle confronted Ballew about the expensive Secret Santa gifts she had given Steven.
They acted like Ballew was the suspect, but then they turned to Cooper.
They asked him about the gun, which Cooper claims to have thrown away. They ask if any neighbors saw him working on his motorcycle and testing it around his Bonita Springs neighborhood, as he claimed. They ask him if he had been to Gateway.
"I have no idea where Steven and Michelle live," Cooper said. "I know they live in Gateway, but I don't know where."
After the interview ended, the detectives searched Cooper and Ballew's home with their permission. They wanted a camouflage jacket and a gun, but they did not find either. They took pictures of Cooper's scratched arm and bruised knuckles.
In the two days that followed, detectives followed up on Cooper's story. They found that the gate in his community recorded him returning home at 3:01 a.m. Dec. 27, 2005. They found surveillance video of a yellow motorcycle in Gateway.
They also collected his camouflage jacket, which Cooper was seen cleaning and altering before detectives could take it.
In a second interview, on Dec. 29, 2005, they wanted him to confess.
"All of that's a lie," one of the detectives could be heard saying about Cooper's story. "And I'll show it to you."
Cooper said a surveillance video shows a figure on a yellow motorcycle, but that it is not him.
"I didn't do it," he said.
Detectives took his motorcycle. They searched his home again. They began surveillance on him.
Cooper was arrested Jan. 11, 2006.
During cross-examination, Cooper's lead attorney, Ken Garber, asked Ryan about the evidence they collected against Cooper. They took DNA samples, took his shoes, his jacket and his motorcycle. They searched his home, twice.
"So you were trying to develop DNA evidence in this case to link Fred to the Andrewses' house?" Garber asked. "You were also trying to develop DNA evidence that would link Michelle Andrews or Steven Andrews to Fred's motorcycle and to perhaps garments that he had?"
Cooper, Garber said, had nothing to hide and had cooperated at every step.
Also Thursday, prosecutors continued to anticipate Cooper's possible testimony.
In his first trial, Cooper told jurors that he and Michelle had sex in a Toyota 4-Runner parked in the Andrewses' driveway on the night of Dec. 26, 2005. The two had consoled each other over their spouses' affairs, Cooper said, and they were in touch by phone.
A records custodian for a phone company verified phone records from Michelle's cell phone showing no contact between her and Cooper. The records were submitted into evidence.
Russell also testified that Michelle never drove the 4-Runner because it was a stick shift. The vehicle was typically locked, he said.
Near the end of the day, Robin Ragsdale, a DNA analyst supervisor with the Florida Department of Law Enforcement, began testimony about DNA evidence in the case.
She and other experts will continue testimony Friday.
Also Thursday, Judge Thomas S. Reese warned both parties that Cooper's penalty phase, if he is found guilty, will begin immediately.
Reese said he wants jurors to begin deliberations Tuesday morning. The trial must relinquish the courtroom after Friday.
In a penalty phase, jurors must decide whether to recommend the death penalty for a defendant. Witnesses can be called by both parties.
The phase typically lasts less than three days, said David A. Brener, a criminal defense lawyer in Fort Myers. But long deliberations could push the phase from next week.
(Source: www.cape-coral-daily-breeze.com)
Turnpike slayings: Defense says state's case weak, built on bullets
WEST PALM BEACH — Defense attorney Michael Cohen stood in front of a federal jury Thursday morning, holding several bullets in his hands.
"You're looking at the government's case right here," he said, pushing toward them the evidence prosecutors say ties Cohen's client, Ricardo Sanchez, to the brutal 2006 killings of a family of four along Florida's Turnpike.
Cohen and other attorneys on Thursday finished giving jurors the final words they will hear from them before deciding the fates of Sanchez, Daniel Troya, Danny Varela and Liana Lopez. Sanchez and Troya, accused of killing Jose Luis Escobedo and his family, could be put to death if convicted on related charges. Both allegedly worked for Varela, whom Assistant U.S. Attorney John Kastrenakes described as a drug kingpin who used Escobedo as a connection to cocaine sources in Mexico. Varela is not charged in the deaths, but he and sometime girlfriend Lopez are on trial with the two others on related drug and weapons charges. Cohen and Troya's attorney, Ruben Garcia, continued offering jurors the alternative "Matamoros" theory of the crimes just as Varela's attorney, Robert Gershman, did in closing statements Wednesday, saying that a debt Escobedo owed to the Mexican cartel might have led them to kill him, his wife Yessica and their 4- and 3-year-old sons, Luis Julian and Luis Damian. Cohen conceded that Sanchez was on the highway at the time of the deaths but did not participate in the killings. He also brought out a theory that Yessica Escobedo's cellphone somehow wound up in Texas the night after the murders, saying it was possible someone else entirely was involved in the crimes. During most of the closing arguments of Lopez's attorney, Gregg Lerman, he posted on a projector screen a photo I.D. of his client from John I. Leonard High School, a red-and-yellow-butterfly sticker above a picture of her smiling sweetly. He described her as an emotionally immature girl sucked into a fast life of drugs and alcohol and used by a man who kept her as his mistress though he was married and had other girlfriends. "She's a girlfriend or a hanger-on at best," Lerman said. Kastrenakes, in the government's rebuttal arguments, almost literally scoffed at Lerman's portrayal of Lopez, referencing a 2006 home invasion robbery and her own prior arrest when she was caught with 2 kilos of cocaine as instances that should have led her to sever ties with the group. He also countered the theory that the Escobedos were killed by Mexican drug cartel members, saying if Escobedo owed them money, they would have opted for kidnapping his family and threatening to kill them unless he came up with the money. Kastrenakes' boldest statement came in rebuttals to statements from defense attorneys who wondered aloud why Varela wasn't charged in the deaths. The government declined murder charges because it didn't have enough evidence, Kastrenakes said, but investigators are still pursuing leads and could charge Varela if more evidence comes to light. He ended the day by showing jurors photos of the bodies of Luis Julian and Luis Damian. They were left on the side of the road like trash, Kastrenakes said. "It's not right," he said. Jurors are expected to begin deliberations Monday. (Source:www.palmbeachpost.com)
Thursday, February 26, 2009
Volunteers hit streets to count Hillsborough's homeless
TAMPA -- Before dawn, about 250 volunteers hit the streets, woods, labor pools and shelters across Hillsborough to count the county’s homeless. The purpose of today’s 2009 homeless census: to determine the need out there.
Organizers expect to find a lot more people on the streets.
The count began at 4 a.m. with volunteers armed with flashlights, clipboards and sacks of clean socks to hand out.
In bright yellow T-shirts that said "Unexpected Faces Unexpected Places,'' they will spend the day shaking bushes, traipsing through woods, peering into makeshift camps, scouring church steps, visiting feeding sites and talking to homeless people they find there.
"We’re seeing more and more new faces with this economy,'' said early-morning volunteer Suzanne Cockran, who works at the Salvation Army near downtown Tampa.
In 2007, the last year of the Hillsborough census, they counted 9,532 homeless men, women and children. "Based on what other communities are reporting, we're expecting at least a 10 percent increase,'' said Lesa Weikel, spokeswoman for Hillsborough's Homeless Coalition. Numbers for this year’s count will be tallied and released in a few weeks.
The homeless people they find are asked a series of questions, including where they stayed last night, what disabilities they have, what aid they receive, whether they have been in the military or foster care, and in what state they first became homeless.
By day’s end, volunteers — including Tampa City Council member Mary Mulhern, who is taking the lunch shift downtown — intend to hit more than 300 predetermined locations where the homeless congregate. The census ends tonight at 11 p.m.
This year's census was delayed a month because organizers worried that police would conduct sweeps to arrest the homeless before the Super Bowl in Tampa. Mayor Pam Iorio, however, said there were no plans to conduct such sweeps and no evidence emerged of mass arrests. Pinellas and Pasco counted their homeless populations last month, but no numbers have been released.
(Source: www.tampabay.com)
Florida budget crunch puts the squeeze on prisons
BY CAROL MARBIN MILLER --This from the Miami Herald. Please note my comments in Blue.
Florida's desire to build more prisons to house a growing inmate population is running into harsh economic realities, with the state predicting a need to build as many as 19 new prisons over the next five years even as state revenues shrink. The problem has caught the attention of the state's most powerful business lobby, which is proposing what its leaders acknowledge is a radical idea: Stop building beds and instead release nonviolent inmates. The group, Associated Industries of Florida, has released a position paper calling on lawmakers to halt the scheduled construction of three new prisons, each to house 1,300 inmates. Building the prisons is expected to cost a total of $300 million, plus an additional $81 million per year in operating costs.
(There have been countless proposals sent to our legislators demonstrating that the money could be used more effectively elsewhere and also reduce the prison population. This is the unintended consequences of adopting a “tough on crime” persona. You are willing to waste money on prisons and deprive the citizens of Florida of much needed services for fear of looking weak)
The state Department of Corrections could forgo the prison construction by releasing about 3,900 inmates, the group recommends, saying the prisoners should be near the end of their term, and the release should not include any violent felons, pedophiles or sexual predators. Barney T. Bishop, Associated Industries' president, acknowledges that some conservatives might find it ''left-wing for a business association executive'' to support the release of prison inmates. But ''it doesn't make sense to me,'' he said, ``to build those prisons.'' Bishop is not alone in seeking unconventional solutions to the state's budget woes. State Sen. Victor D. Crist, the chairman of the Justice Appropriations Committee, said he, too, has been looking at ways to avoid a new prison-building binge with tax dollars that don't exist.
Crist, a Tampa Republican, supports the idea of halting prison construction. But he says Bishop's proposal to release some inmates will be a tough sell.
(To whom...the mentally ill...families with sick children, educators?)
''Both AIF and the Florida Senate are on the same page with the idea of saving money by slowing down the construction of beds,'' Crist said. ``But we're on two different pages on how to accomplish that.'' Among other things, Crist proposes the state save about $24 million by contracting with either public or privately run prisons just outside Florida's borders to house 450 inmates. ''The correctional systems in surrounding states, especially private operators, have a significant amount of beds available,'' Crist said.
(I really do like Senator Crist but this proposal is a like putting a a band aide on a rotting limb. It’s only postponing the inevitable. Besides didn’t Florida’s legislature decide not to contract with private prisons a few years ago)
He also suggests the Department of Corrections could take over operation of secure facilities recently vacated by juvenile-justice administrators, who have been aggressively cutting costs as well.
(This is government speak for reducing services on a population which will ultimately end up in our prisons)
The facilities could house inmates nearing the end of their sentences who are in work-release programs.
(This could be done in the facilities they are currently housed in)
State Rep. J.C. Planas, a Miami Republican and lawyer, said there's another speed bump on the way to releasing some inmates: The proposal would require revising state law, which requires that prisoners serve most of their sentences before release. ''From my perspective, everything is on the table,'' said Planas, who chairs the House Public Safety Domestic Security Policy committee. ``But [release] is a quasi-last resort.''
(No it isn’t. Rep. Planas should check with Governor Schwarzenegger and ask what the Feds are threatening to do to his prison system)
Tom Blomberg, dean of Florida State University's criminology and criminal justice department, said he's not surprised that even conservative groups are looking at what used to be considered radical ideas for curbing the prison population. As the economy worsens, ''a lot of people feel this is the time to exploit the opportunity to get members of the public and policymakers to realize they must approach various alternatives,'' Blomberg said.
Bishop's proposal also recommends that released inmates receive services to help keep them from returning to prison.
DOC spokeswoman Gretl Plessinger said Corrections Secretary Walt McNeil agrees with Bishop's recommendation that inmates released from a state prison receive life skills training, basic education and substance abuse and mental-health care to improve their chances of staying out of prison. About one-third of inmates are back behind bars within three years.
(Hear! Hear!)
Florida lawmakers may have $5 billion less for the budget that begins on July 1 than the current year's budget, Crist said. Citing tanking state revenues, McNeil announced last month that he had laid off 66 probation officers.
In recent weeks, Florida's prison population topped 100,000, though the census stood at 99,691 on Wednesday, Plessinger said. The state Criminal Justice Estimating Conference, which forecasts prison admissions, estimates a state prison population of 106,086 by the end of the next budget year, June 2010, a slight drop from previous forecasts, records show. Based upon previous forecasts, prison administrators have said they would need to build 19 new prisons in the next five years, Plessinger said.
Why the constant need to build more beds? Bill Bales, an FSU criminology professor who is a former researcher and forecaster at DOC, said a handful of get-tough-on-crime laws, all passed within the past two decades, have kept inmates locked up longer. Years ago, Bales said, prisoners could expect to serve a fraction of their sentences before being released on gain time or parole. But with mandatory minimum sentences and mandatory life terms for career criminals, ``there is no release valve available, unlike in states that have parole.''
(More mandatory minimum laws or rely on a judge’s experience and intellect along with a good pre-sentencing investigation now that’s a tough decision...which will cost us more in the long run?
The answer Mr. Trebek is what is the cost of building 19 prisons?)
''It is not a big surprise that the population has skyrocketed, especially the last couple of years,'' Bales said.
(No it isn’t but what will it take for our legislators to understand)
(Source: www.criminaljusticeforum.com)
Jury deliberates gay murder case
Bartow, Florida - Jury deliberations begin Thursday at 10 a.m. in the murder trial of A Polk County man accused in the brutal stabbing murder of a gay man. Nearly two years ago, 25-year-old Ryan Skipper of Winter Haven was stabbed 19 times then dumped on the side of a road.
After the arrest, Investigators said Twenty-year-old William David Brown Junior and 21-year-old Joseph Bearden bragged about killing a homosexual.
Bearden is the first to go on trial. Brown will be tried later this year.
In closing arguments on Wednesday, Polk County Assistant State Attorney Cass Castillo noted the extraordinarily violent manner of Ryan Skipper's death. The victim stabbed repeatedly, including several times in the neck. The medical examiner testified stab wounds to Skipper's back may have been made after his death.
Cass Castillo said the injuries were the result of "great rage." "The extent of the injuries in this case are the results of hatred, contempt, utter disregard for another human being because he is gay," Castillo said.
Defense attorney Bryron Hileman argued witness testimony in the case was unreliable. In closing arguments, Hileman said "They are, at the time, at the very least heavy drug users and that effects one's ability to perceive and describe what is going on, and thus makes that person's testimony potentially suspect."
If convicted, Joseph Bearden could face the death penalty.
(Source : www.tampabays10.com)
Florida budget crunch puts the squeeze on prisons
February 20, 2009
Florida budget crunch puts the squeeze on prisons
A powerful business lobby wants Florida to deal with its exploding inmate population by releasing nonviolent offenders rather than building more prisons.
CAROL MARBIN MILLER, cmarbin@MiamiHerald.com
Florida's desire to build more prisons to house a growing inmate population is running into harsh economic realities, with the state predicting a need to build as many as 19 new prisons over the next five years even as state revenues shrink.
The problem has caught the attention of the state's most powerful business lobby, which is proposing what its leaders acknowledge is a radical idea: Stop building beds and instead release nonviolent inmates.
The group, Associated Industries of Florida, has released a position paper calling on lawmakers to halt the scheduled construction of three new prisons, each to house 1,300 inmates. Building the prisons is expected to cost a total of $300 million, plus an additional $81 million per year in operating costs.
The state Department of Corrections could forgo the prison construction by releasing about 3,900 inmates, the group recommends, saying the prisoners should be near the end of their term, and the release should not include any violent felons, pedophiles or sexual predators.
Barney T. Bishop, Associated Industries' president, acknowledges that some conservatives might find it "left-wing for a business association executive" to support the release of prison inmates. But "it doesn't make sense to me," he said, "to build those prisons."
Bishop is not alone in seeking unconventional solutions to the state's budget woes. State Sen. Victor D. Crist, the chairman of the Justice Appropriations Committee, said he, too, has been looking at ways to avoid a new prison-building binge with tax dollars that don't exist.
Crist, a Tampa Republican, supports the idea of halting prison construction. But he says Bishop's proposal to release some inmates will be a tough sell.
"Both AIF and the Florida Senate are on the same page with the idea of saving money by slowing down the construction of beds," Crist said. "But we're on two different pages on how to accomplish that."
Among other things, Crist proposes the state save about $24 million by contracting with either public or privately run prisons just outside Florida's borders to house 450 inmates.
"The correctional systems in surrounding states, especially private operators, have a significant amount of beds available," Crist said.
He also suggests the Department of Corrections could take over operation of secure facilities recently vacated by juvenile-justice administrators, who have been aggressively cutting costs as well. The facilities could house inmates nearing the end of their sentences who are in work-release programs.
State Rep. J.C. Planas, a Miami Republican and lawyer, said there's another speed bump on the way to releasing some inmates: The proposal would require revising state law, which requires that prisoners serve most of their sentences before release.
"From my perspective, everything is on the table," said Planas, who chairs the House Public Safety & Domestic Security Policy committee. "But [release] is a quasi-last resort."
Tom Blomberg, dean of Florida State University's criminology and criminal justice department, said he's not surprised that even conservative groups are looking at what used to be considered radical ideas for curbing the prison population.
As the economy worsens, "a lot of people feel this is the time to exploit the opportunity to get members of the public and policymakers to realize they must approach various alternatives," Blomberg said.
Bishop's proposal also recommends that released inmates receive services to help keep them from returning to prison.
DOC spokeswoman Gretl Plessinger said Corrections Secretary Walt McNeil agrees with Bishop's recommendation that inmates released from a state prison receive life skills training, basic education and substance abuse and mental-health care to improve their chances of staying out of prison. About one-third of inmates are back behind bars within three years.
Florida lawmakers may have $5 billion less for the budget that begins on July 1 than the current year's budget, Crist said. Citing tanking state revenues, McNeil announced last month that he had laid off 66 probation officers.
In recent weeks, Florida's prison population topped 100,000, though the census stood at 99,691 on Wednesday, Plessinger said.
The state Criminal Justice Estimating Conference, which forecasts prison admissions, estimates a state prison population of 106,086 by the end of the next budget year, June 2010, a slight drop from previous forecasts, records show. Based upon previous forecasts, prison administrators have said they would need to build 19 new prisons in the next five years, Plessinger said.
Why the constant need to build more beds? Bill Bales, an FSU criminology professor who is a former researcher and forecaster at DOC, said a handful of get-tough-on-crime laws, all passed within the past two decades, have kept inmates locked up longer.
.
Years ago, Bales said, prisoners could expect to serve a fraction of their sentences before being released on gain time or parole. But with mandatory minimum sentences and mandatory life terms for career criminals, "there is no release valve available, unlike in states that have parole."
"It is not a big surprise that the population has skyrocketed, especially the last couple of years," Bales said.
Group seeks new DNA tests in teenage girl's murder
Group seeks new DNA tests in teenage girl's murder
By CHRISTINE ARMARIO
Associated Press Writer
TAMPA, Fla. -- The Innocence Project of Florida is asking the Hillsborough County state attorney's office for more DNA testing in the case of a Tampa man executed earlier this month, the group announced Wednesday.
Wayne Tompkins was convicted of murdering his girlfriend's teenage daughter in 1983. Her body was found a year later under the porch of the couple's home and she had been strangled with the belt of her bathrobe.
Tompkins, 51, was put to death by lethal injection on Feb. 11, despite efforts by his attorneys and the Innocence Project to have it delayed so more DNA testing could be done.
On Wednesday, the nonprofit organization's executive director sent a letter to the state attorney's office asking for help in answering questions about Tompkin's guilt and the identity of the remains. The group said the identification was based solely on the fact that both 15-year-old Lisa DeCarr and the body had a single occluded tooth.
The Innocence Project, which helps free wrongly convicted prisoners, called that method "wholly unpersuasive."
"More troubling are the signed affidavits from several witnesses stating that they had seen or had contact with Ms. DeCarr since the date of the supposed murder," the organization said in a news release.
The state attorney's office declined comment, saying they had not received the group's letter.
Tompkins was arrested in early 1984 after he robbed and sexually assaulted two convenience store clerks in separate attacks. He was charged with DeCarr's murder, and a cellmate testified Tompkins had confessed, saying he strangled the girl after she kicked him in the groin while rebuffing his advances.
That cellmate, Kenneth Turco, now says a prosecutor told him to lie to the jury. The state Supreme Court has ruled Turco's recantation a harmless error that would not have affected the outcome of the trial.
A few months after DeCarr's disappearance, her friend Jessie LaDon Albach, 15, also went missing and her remains were found in a vacant field in 1984. She had been strangled, and police said Tompkins was considered a suspect.
Tampa police said they are reviewing physical evidence in the Albach case.
The Innocence Project is requesting that DNA tests be performed on evidence in both cases. They asked the state attorney's office to have the examination done at a private lab and have offered to cover the cost.
Martin McClain, one of the Tompkin's defense attorneys, welcomed the request.
"I absolutely do think it's appropriate and it should be done," McClain said.
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