When will we ever learn?

Two news stories reported in today’s L.A. Times should be linked to appreciate their full import.

First, well hidden on page A12, is a report of “2 Innocent men freed in ‘79 rape and killing.” In yet another revelation triggered by DNA testing spurred by The Innocence Project, two men who served 30 years for crimes they did not commit were exonerated by a Mississippi court.

Since many of our Draconian laws have responded to anecdotal evidence, you have to wonder what it will take to change the public’s attitude about rape. The true incident of "The Scottsboro Boys“ and the dramatized fame of "To Kill A Mockingbird” wasn’t enough to raise skeptical eyebrows when black men are accused of rape, especially (but not exclusively) in the south.

I’ve reported several of these cases before:
A death row inmate cleared.
A personal acquaintance was freed after serving years in prison.
Alaska justice.
Post Mortem.

The second report involves the ongoing saga of Bruce Lisker, whose ironic connection to my own life I have previously observed. Lisker was released after a lengthy hearing by a federal judge who determined that he was wrongly convicted of the murder of his adopted mother in 1983. She ruled that his lawyer failed to adequately investigate evidence that pointed to a different suspect and noted that the police detective apparently committed misconduct in the investigation. Lisker was freed after 26 years in prison, while the prosecution decided whether to dismiss the case.

Now, the L.A. District Attorney’s office, which is notorious for its refusal to admit its own errors, is urging the Attorney General to seek his re-incarceration, by appealing to the 9th Circuit. The legal grounds for the appeal would be the hyper technical one that Lisker missed a deadline in one of his habeas corpus writs over the many years of his efforts to gain a retrial.

The law relating to habeas corpus writs, the traditional last resort of prisoners claiming injustice, has been stiffened to severely restrict access to the courts. The purpose was to assure "finality" in the system and to bring an end to multiple appeals and writs, in other words, to encourage speedier justice.

The nagging question that has been argued ever since is what about the inmate who isn’t just complaining that his or her conviction was wrongful because a perceived “technicality” i.e., a violation of some ephemeral constitutional right, but is strongly asserting his or her actual innocence, willing to accept the burden of proving it, as by DNA evidence or other convincing proof?

The 9th Circuit (claimed by conservatives to be the most liberal appellate court) recently denied release of a prisoner whose child molesting conviction was overturned by a district court, ruling that he was in fact innocent, on the ground that his habeas writ was “untimely” because he had failed to meet the stringent deadlines for filing his papers.

Will the California Attorney General try to apply that ruling to Lisker’s case? The A.G. has decided to delay deciding, to study the issues more fully. Lisker’s lawyer suspects the decision might have something to do with Attorney General Jerry Brown’s run for governor (and L.A. D.A. Steve Cooley’s run for the A.G. job).

That crime is a political football is no shock. In our democracy, politicians gain no benefit by asserting the rights of convicted criminals. This is particularly true this year of the tea party, the neo neo John Birch Society.

Another DNA reversal

NY man wrongly convicted of killing woman in 1988 is cleared by DNA evidence, goes free.

BEN DOBBIN, Associated Press Writer
April 28 2010, 2:47 PM PDT

ROCHESTER, N.Y. (AP) — A former truck driver who spent nearly 19 years behind bars for a 1988 slaying he didn't commit walked free Wednesday after DNA testing exonerated him and instead pointed to a man who strangled a 4-year-old girl in 1994.

The Midnight Sun

Once upon a time in the land of the midnight sun, a nearsighted woman was raped by two men. She identified a man as one of them and he was sentenced to prison. Now, with the aid of the Innocence Project, he wants his DNA compared with fluids donated by the rapist to prove his innocence, asserting his willingness to pay for the tests himself so the state will have no financial excuse.

Many states have fashioned procedures for such post conviction testing. Alaska is not one of them. Their high court denied his request in 2001. Now the U.S. Supreme Court has issued a 5-4 opinion upholding the denial. Chief Justice Roberts wrote for the majority. He could find no provision in the Constitution that mentioned the right to a DNA test. As an example of the philosophy of judicial restraint, he suggested that this was an issue that state legislatures are better able to address. He was joined by Alito, Thomas, Scalia, and Kennedy (the so-called swing vote).

Justice Stevens dissented, finding it outrageous that a man must serve a life sentence when there is a means of proving or disproving his guilt which is available, cheap, and certain. And, oh yeah, isn’t there a provision called the 14th Amendment which guarantees "due process"? He was joined by Ginsberg, Breyer and Souter, who filed as separate dissenting opinion - differing from the other dissenters in the issue of how broad a "right" should be.

The case presents a fairly clear example of what is at stake in the selection of Supreme Court justices. The trenches are deep and apparent: judicial restraint vs. judicial activism. The issue: is there a court of last resort when an injustice is ignored by legislatures and state courts?

To be clear, before trial, an accused has a recognized right to access of the evidence to test it. That right was recognized long ago by the same Supreme Court (in Brady v. Maryland). Also, during post-conviction habeas corpus proceeding, most states and federal courts authorize appointment of experts for DNA testing. State rules about these processes vary greatly - most impose nearly insurmountable obstacles to overturn convictions.

The fact is that the legal system is psychologically defensive about admitting its possible errors. The tradition and bias is to favor closure over certainty. Conservative jurists wax eloquently about the need for finality in the system. Public opinion generally concurs - how many times have you heard the media decry the "endless appeals" by prisoners alleging "technicalities" and using "legal tricks" to overturn convictions?

In the 90's, Congress passed legislation (with President Clinton’s support) limiting access to habeas corpus post-convictions appeals. We are now living with the effects of that misguided law. To date, more than 200 guilty verdicts have been proven by DNA evidence to have been wrong. Many of those innocent people had been condemned to death or life sentences.

Another Death Row Inmate Proved Innocent

Is the appointment of a Supreme Court Justice important?
Have innocent people been executed?
Is speedy justice in death penalty cases desireable?

L.A. Times of May 13, 2009 cites another in a long line of convictions which have been proved to be wrong by D.N.A. evidence which showed the condemned prisoner to have been innocent.

This one was from Tennessee. The inmate, Paul House, had been convicted of rape murder in 1985. He was a paroled rapist, who had been walking on a road near where the body was found. He "had no good" alibi - in other words couldn't prove his innocence.

Now, Peter Neufeld of the Innocence Project obtained tests of hairs, semen and material from under the victim's fingernails. The semen proved to be her husband's, and DNA of someone other than House was found in the other material.

Nonetheless, the Tennessee appeals courts and Federal appeals courts all denied a new trial, finding that the new evidence still didn't conclusively prove House's innocence, which is the standard a habeas corpus claim must satisfy to overturn a conviction.

The U.S. Supreme Court, in a 5-3 vote authored by J. Kennedy ordered the reversal. Chief Justice Roberts dissented. The Times article notes that a 4-4 vote would have resulted in House's execution.

The local prosecutor has now declined to retry House, saying "the new evidence 'raises doubts about his culpability...'" He noted that DNA science was not available 24 years ago when House was convicted. However, he still believes "House knew something about the slaying, even if he was not the killer."

The Federal Public Defender commented: "He is conclusively innocent... If the state ... had its way in this case, he would have been dead 10 years ago."

Did Texas Execute An Innocent Man?

The L.A. Times today reported that a panel of arson experts has found that a man executed in 1994 for the arson murder of his 3 children was convicted on faulty expert testimony. (Los Angeles Times, May 3, 2006, Page A-16, "Panel Says Faulty Arson Evidence Led To Execution").

The most important issue this development should impact is the rush to speedy executions. The crime in this case occurred in 1991. Cameron Willingham was executed in February, 1994. Texas is proud of its efficiency. The state far surpasses any other in rapid executions.


This case may answer the often shouted demand for "speedy justice." Complaints about lengthy delays and multiple appeals deny the need for thorough review of every aspect of these cases BEFORE the terminal event, not afterward.

Willingham had continued to proclaim his innocence up to the moment he was lethally injected. He had claimed that the fire was accidental, but prosecution expert testimony opined that the fire was of human origin based on interpretation of patterns of burn marks.

I suspect that Texas will defend their actions by denigrating the panel as biased, citing the fact that Barry Scheck of the Innocence Project commissioned the report, although no member of the panel was connected with Willingham's case, and none were paid for their work.

All are apparently independent, well-respected in their field. Their stated concern is that arson investigators are too often field educated firemen who have insufficient training and education in the scientific foundations of thei field.

Previous revelations (including conclusive DNA examination) have proved the unreliability of testimony by eyewitnesses, informants, police officers' versions of defendants' confessions, psychiatric experts, and fingerprint experts.


The unreliability of expert testimony is troubling because it strikes at the judicial system's reliance on scientific evidence as "the best" form of proof. Recent studies have cast doubt on work done by police lab experts in Texas and California, including incompetent analysis of blood, fingerprints, ballistics.

One bad expert employed by a police lab can screw up hundreds of cases.

Another obvious point this case speaks to is whether innocent people have been in fact been executed in recent years.


Although many cases have been documented, prosecutors, judges, elected executives and legislators, and many in the public continue to believe that claims are exaggerated, unproved, involve antiquated practices, or are motivated by soft headed opposition to capital punishment.

The fact that this article was "buried" on Page 16 of the newspaper is also troubling. If these findings are upheld, it should persuade more people that the implementation of the death penalty is fatally flawed.