• Headline of the day.
• For a glimpse at the absurd reach of the regulatory state, take a look at the federal regulations for miniature golf courses.
• Here’s an update on the case of Virginia death row inmate Justin Wolfe, who is only still in prison because of Virginia Commonwealth’s Attorney Paul Ebert, a three-time nominee for TheAgitator.com’s Worst Prosecutor of the Year award.
• “This is the most transparent administration in the history of our country.”
• You know we’re losing ground when the Berkeley campus gets a Bearcat. Oh, and Stop & Frisk may be coming to San Francisco.
• Houston woman jailed for 12 hours for warning motorists about a speed trap.
• Another forensics scandal is brewing. This time it’s in Dallas, over a drug testing specialist who is alleged to be a fraud.
• Another survey, this time of 2,000 retired NYPD officers, suggests that commanding officers regularly pressured their subordinates to manipulate crime data.
• Popehat has more on the outrageous censorship of Massachusetts blogger Dan Valenti.

I just heard from the Mississippi Innocence Project that Leigh Stubbs and Tami Vance will soon be released from prison. This is fantastic news. They’ll be transferred to a local jail and will be able to post bond as soon as the judge signs an order vacating their convictions. Mississippi Attorney General Jim Hood will then decide if he wants to try them again.

Stubbs was convicted based on more absurd testimony from Michael West, although in this case it was particularly nutty. He not only gave his “expert” opinion with respect to his usual bite mark quackery, but also in videography (enhance!), and some bizarre theory about the crime patterns of lesbians. (A male dentist in Hattiesburg, Mississippi would naturally be who’d I’d turn to for expertise on lesbian domestic violence.)

My Huffington Post article on the case here. Check here to watch the video of West actually using a dental mold of Stubbs’ teeth to create the bite mark that he’d later testify came from Stubbs on the night of the alleged crime.

Kudos to the Mississippi Innocence Project for their great work on this case. I’ll have more later.

• Koch, Cato settle their lawsuit. Details still not clear.
• Another questionable death penalty case from Texas.
• Jeff Bezos is building a giant clock.
• U.S. Conference of Mayors backs plan to let parents take control of failing public schools.
• “The institute estimates a wrongful conviction rate in sexual assault cases of between 8 to 15 percent . . .“
• U.S. Senate committee holds hearing on extended solitary confinement.
• Trial is not a crime. Someone should show Rick Reilly the documentary Witch Hunt.
• Nice to see someone outside libertarian circles notice the nefariousness of the taxi medallion system.

• Teacher disciplines bully by letting his classmates punch him.
• Tulsa code enforcers mow down elderly woman’s garden.
• Two happiness-inducing stories from the Internet, both via Reddit.
• The dingo really did eat her baby. Remarkable thing here is the shame the entire country of Australia seems to feel over this single wrongful conviction.
• ACLU defends (PDF) student’s right to wear anti-gay marriage shirt at public school.
• It’s true, the Walton family has more wealth than the bottom 30 percent of the rest of the country. But many of you probably do, too. More detail here.
• “How Drones Help Al-Qaeda”
• After his release from a 30-year prison term for importing pot, the federal government continues to harass Robert Plathsorn, now for advocating drug law reforms.

• This USA Today investigation is just mind-blowing. The quotes from DOJ officials are just surreal. There are innocent people in prison, everyone knows it, yet the government won’t work to get them out, due to “procedure.” Just when you think you’ve seen every way the criminal justice system can screw someone over . . .
• Headline of the day.
• Government is just another word for the things we do together, like setting up staged drug buys at a concert venue, then arresting the venue’s owner, imprisoning him, and taking his property from himbecause he didn’t do enough to stop the staged drug buys.
• How your tax dollars helped the Obama administration pay off the auto unions.
• Hard to even know where to begin with this story.
• Ten commercials directed by Wes Anderson.
• Indian skeptic shows that the “miracle water” dripping from a crucifix, which Indian Catholics were drinking, was actually sewage. Naturally, he was arrested for this.

• Was money really that big of a factor in the Wisconsin recall?
• Illinois politicians decide they’d rather just not know the extent to which Chicago cops have tortured people, and whether any innocent people are still in prison as a result.
• Public employee pension reform also passed overwhelmingly this week in San Diego and San Jose.
• Fullerton, California recalls city council members in response to the Kelly Thomas beating.
• Amazing time-lapse video of Venus in transit across the sun.
• K-9 officer shoots his own dog.
• Waco deputy demands reporter turn over her cell phone.
• Your latest tedious defense of Bloombergian paternalism. Includes bonus defenses of drug and prostitution bans and organ markets.
• But for video, Philadelphia edition.

• Scott Walker wins. Ensuing progressive tantrums include weeping, death threats, sad laments about the end of America, and wishing for cancer to kill Wisconsin’s lieutenant governor.
• Ray Bradbury dies.
• Nashville suspends the First Amendment.
• New Haven woman says she was arrested for filming police officers. New Haven has quite a bit of recent history on this issue.
• Will Wilkinson on Bloomberg and paternalism.
• Texas finally agrees to test the DNA in the Hank Skinner case.
• And he didn’t even have to use his AK.

CORRECTION: Please see a major correction to this post here.

Florida Gov. Rick Scott has saved Florida taxpayers a whopping $200,000 . . . by eliminating the state’s two-year-old Innocence Commission.

This would be the state that has seen 12 DNA exonerations since the onset of DNA testing, and 23 exonerations of death row inmates since 1973. The Innocence Commission was set up in response to those cases, as well as the particularly outrageous exoneration cases in which four men were convicted of rape based on the junk science testimony of quack police dog handler John Preston.

I suppose everyone thinks his own pet issues deserve government funding. So let’s set aside the human costs, and put this in purely monetary terms. The average wrongful conviction costs taxpayers about $2 million. (I don’t know of any national studies, but several state studies of the total cost of DNA exonerations in those states arrive at about $2 million.) That figure only covers the average costs of trying, imprisoning, exonerating, and compensating the person who was wrongly convicted. It doesn’t include the costs associated with any additional crimes the real perpetrator may go on to commit, or the costs of resuming the investigation to find him, and then to arrest, try, and convict him.

So at minimum, if this commission’s recommendations prevent a single wrongful conviction, the commission funds itself for 10 years.

And lest you think Scott defunding the Innocence Commission is all about his economic principles and not just misguided tough-on-crime idiocy, consider Florida HB 177. The bill would have allowed for early release of non-violent drug offenders who successfully complete a prison treatment program. It would have saved the state millions in incarceration costs. It passed the Florida legislature by a combined vote of 152-4.

Scott vetoed it.

• Immigrant lives dream through D.C. taco stand.
• Winners of the America’s Wackiest Warning Label competition.
• Obama administration: If we kill you while you’re standing in geographic proximity to a terrorist, you’re probably a terrorist.
• Robert Mugabe: United Nations tourism ambassador.
• TV networks may soon sue you for taking a bathroom break during commercials.
• The Brett Kimberlin fiasco gets yet more outrageous.
• Excellent use of the format.
• Judge clears 14-year-old who had falsely confessed to killing his brother in 1998.

This pretty incredible two-part post from the appellatesquawk blog demonstrates how even good policies like videotaping interrogations can be undermined by bad expert witnesses and indifferent judges.

In 2008, the Troy Police Department videotaped the whole interrogation of Adrian Thomas.  The tape shows Adrian with cops in his face for 9 hours, not including a 15-hour intermission in a secure mental health facility where they took him because he was so depressed.

And no wonder.  Adrian and his wife had awakened that morning to find their 4-month old son barely breathing.  They immediately called 911 and the baby was rushed to the hospital. Although he showed no signs of abuse or neglect,  Child Protective Services swooped down on the Thomas household a few hours later and hauled away their six other children. Adrian was invited to the police station for questioning. He ended up charged with murder.

The post then goes into the details of Adrian Thomas’s interrogation, including some intense psychological manipulation of a grieving father. It’s too long to excerpt here, but it’s well worth reading. This part is key:

There’s one little problem:  there was no head trauma.  No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.

Yet somehow, the police were able to get Adrian Thomas to admit first that he may have accidentally bumped the child, then to admit that he must have blacked out memories of something more intentional, then, finally, to demonstrate with a binder how he violently threw the child to the ground. The confession is all they had. The confession and all the psychological manipulation that went into it was videotaped. But Thomas was still convicted. Here’s how:

The judge saw the whole videotape and thought the interrogation was A-ok. He wouln’t let the defense call Dr. Richard Ofshe to testify about police interrogation techniques and false confessions. False confession research is all anecdotal,  he sneered.  Besides, the jury could see the videotape for itself.

The jury thought it was rather bad of the police to lie, but the sight of Adrian throwing a binder to the floor was enough to make them ignore the medical evidence.

In the second post, appellatesquawk discusses the expert witness the judge did allow to testify: Utah law professor, former judge, and former prosecutor Paul Cassell. Cassell is at the forefront of the “victim’s rights” movement, an occasional contributor at the Volokh Conspiracy, and one of the loudest voices on the law-and-order right. Here’s what Cassell said at Adrian Thomas’ trial:

Unencumbered by training in the behavioral sciences, Cassell  asserted that he was “a practitioner of social psychology.” His psychological research consisted of collecting 219 case files from the Salt Lake County District Attorney’s Office. Lo and behold, in densely populated Salt Lake County, where the leading crime is probably having too many wives, not a single one of the 219 cases involved a claim of a false confession! From which Cassell scientifically concluded that false confessions are as rare as unicorns.

The Einstein of Utah didn’t stop with a single experiment.  He went on to calculate that, according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. Cassell divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, Cassell concluded that the frequency of false confessions is one hundredth of one percent. Well, yes, if 20 million arrests is the same as 20 million true confessions.

Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings.  Needless to say,  there should be no expert testimony on the non-existent phenomenon of false confessions.

The trial judge swallowed this whole.

This is reminiscent of Justice Antonin Scalia’s back-of-the-envelope calculations in Kansas v. Marsh about the frequency of wrongful convictions. And by reminiscent I mean, “also utter bullshit.” Which is appropriate, I guess, given that Cassell once clerked for Scalia.

And yet Thomas’ conviction was still recently upheld by a New York appeals court.

There was some good discussion on the MSNBC show Up with Chris Hayes this morning on the innocence movement. Innocence Project co-founder Barry Scheck was talking about the impressive legislative and policy victories the organization is collecting on issues such as improving how lineups are conducted for eyewitnesses, and recording policing interrogations. The Nation’s Liliana Segura asked Scheck a good question, which I don’t think he really answered. These policy changes are important and shouldn’t be understated, but Segura asked how we change the more fundamental problem, which is that the law enforcement side of the criminal justice system is and has long been strongly incentivized to convict and imprison. And it is prosecutors, not defense attorneys, who inevitably go on to become judges—and who then too often bring that mentality to the bench.

I don’t really blame Scheck for avoiding the question, because it’s a really difficult question to answer. A thorough answer would also involve some harsh words for the bar associations, prosecutors, and the policymakers Scheck is now working with to implement reforms. This isn’t a criticism of Scheck. It’s just realpolitik.

But the answer to that question gets to the heart of the single biggest barrier to meaningful criminal justice reform. The Thomas case illustrates it as well as any. So long as people like Paul Cassell are willing to spout nonsense on the witness stand, and so long as there are judges who will let him (and who will prevent people who have some actual expertise from testifying), even good policies like mandatory videotaping of police interrogations can fall short, even when a coerced, videotaped confession is the meat of a murder charge, even when it isn’t supported by any medical evidence.

So what is the answer to Segura’s question? I don’t think there is one that is satisfactory—or at least one that’s as simple as a new law or a new policy. To change the incentive to convict and imprison, you have to effect a sea change in how the public perceives the roles of law enforcement, especially prosecutors.

There are of course plenty of prosecutors in America who everyday choose not to pursue charges against someone because there isn’t enough evidence, or even when there is enough evidence, because a criminal charge wouldn’t be in the interests of justice. But this is key: Even these conscientious prosecutors don’t tend to publicize those decisions. They don’t put out press releases boasting about their sense of fairness in these cases the way put out releases boasting about their toughness when they’ve charged someone with felonies. That’s because they know that the public doesn’t attach much value to these decisions. They don’t respect a prosecutor who puts a premium on fairness and justice the way they value one who puts a premium on putting the bad guys away. These values aren’t mutually exclusive, of course. But they’re commonly perceived to be.

Look at a guy like Dallas DA Craig Watkins. For several years now Watkins has been bathed in positive press for his role in seeking out and freeing the wrongly convicted. He has been profiled, interviewed, and praised all over the country for his efforts. Elected officials around the country yearn for the kind of press he’s received, and most would ride it to an easy reelection. Yet when Watkins was up for reelection in 2010, he just barely squeezed out another term in office. This is a county with a history of reelecting law-and-order DAs—the DAs whose wrongful convictions Watkins is undoing—by wide margins.

Part of the answer to changing the incentive structure is of course to pressure bar associations to sanction prosecutorial misconduct, particularly willful misconduct. Part of it is waging public campaigns to oust from office prosecutors who make egregious errors. Part of it is to push for serious penalties, even criminal charges for prosecutors who engage in willful misconduct. Part of it is dialing back absolute immunity. As a Reason commenter once put it, convicting an innocent person of a serious crime ought to be akin to a physician amputating the wrong limb. It could well be an honest error, but at the very least, it’s a mistake with an order of magnitude that ought to have you looking for another line of work. That a guy like Forrest Allgood is still coasting to reelection despite two exonerations and five overturned murder convictions (that I know of) shows just how far we are from the ideal.

But public shaming, sanctions, and fighting the reelection of bad prosecutors is just the stick. The carrot is even tougher. We need to start praising prosecutors who make the tough decision not to press charges, particularly in high-profile cases. Actually, it’s even more difficult than that. The prevailing sentiment in this country is that a prosecutor’s job is to bring the most serious charge they possibly can, to stack charges so they have maximum leverage in plea bargaining, and to always charge when they have even the least bit of evidence—and let a jury sort it out. If you’ve read this site for a number of years, you can probably recall a number of cases where a prosecutor publicly said that his or her job was to win a conviction on the most serious charge possible. That, of course, is not their job at all. The George Zimmerman indictment is only the most recent high-profile example of this mentality. But it was disappointing to see how many otherwise smart, reform-minded people were perfectly find with that indictment, which most criminal attorneys I’ve read and spoken to found aggressive and unprofessional nearly to the point of malpractice.

The good prosecutors, the conscientious ones, obviously make the correct calls because it’s the right thing to do. But incentives do matter. I’ve sometimes wondered whether it’s smart to publicly praise prosecutors who make good calls on tough cases, because I wonder if drawing attention to them may actually hurt them. We need to get to the point where a prosecutor is just as likely to put our a news release or call a press conference to announce he’s not pressing charges as he is to seek attention when he is.

I don’t know exactly how we get there. I do think public opinion is, very slowly, moving in the right direction, though. To speed it up, maybe bar associations or a group like the Innocence Project could start giving out awards to courageous prosecutors who show (appropriate) restraint and caution when the public is baying for blood. Maybe such public honors would help generate discussion of these issues.

Somehow, the public needs to begin to grasp that a well-honed sense of fairness and propriety isn’t the same thing as appeasement. And that it’s just as important an attribute as aptitude at winning convictions.

(Via Scott Greenfield, who has more commentary.)

Just, wow.

A former high school football star whose dreams of a pro career were shattered by a rape conviction burst into tears Thursday as a judge threw out the charge that sent him to prison for more than five years.

Brian Banks, now 26, pleaded no contest 10 years ago on the advice of his lawyer after a childhood friend falsely accused him of attacking her on their high school campus.

In a strange turn of events, the woman, Wanetta Gibson, friended him on Facebook when he got out of prison.

In an initial meeting with him, she said she had lied; there had been no kidnap and no rape and she offered to help him clear his record, court records state.

But she refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

During a second meeting that was secretly videotaped, she told Banks, “‘I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back,” according to a defense investigator who was at the meeting.

It was uncertain Thursday whether Gibson will have to return the money.

Uncertain. Jesus. In a just world, she’d be forced to sign what’s left of it over to Banks. Along with half her paycheck for the rest of her life. And that would be only once she gets out of prison.

Let’s not overlook that Gibson hurt a hell of a lot more people than Banks, here. It’s stories like hers that make it more difficult for women to come forward when they actually have been raped. And that make it more difficult for authorities to charge and convict their assailants.

What a nightmare.

U.S. District Court Judge Joan A. Lenard is keeping a man in prison even though prosecutors have dropped the charges against him, even though the FBI says he should be released, and even though the only evidence against him was from a police officer who has since resigned after he was caught selling drugs and shaking down massage parlors.

Why? Paperwork.

Elroy Phillips will remain in federal prison in Miami while prosecutors and his defense attorney file a joint motion outlining again why they think he should be set free. U.S. District Court Judge Joan A. Lenard demanded the paperwork at a hearing this afternoon instead of accepting a joint motion to release Phillips.

The new paperwork is yet another legal hurdle for Phillips, who thought he was going to be released two weeks ago when prosecutors finally agreed to drop the charges.

Phillips spent years while behind bars trying to prove his innocence. He requested documents, hired a private investigator, and got a paralegal’s license so he could file his own court paperwork. When he learned two weeks ago that prosecutors planned to drop the charges, his daughter, Shatroyia Phillips, brought him clothes to wear when he’s released. At his hearing today, he wore a jail-issued white shirt and brown pants, his hands handcuffed behind his back.

Lenard said she couldn’t release Phillips because she needed to see it on paper. “It has a very broad sweep and differing legal theories,” Lenard said. “There are a lot of moving parts here.”

Lenard also happens to be the judge who presided over Phillips’ trial in 2003.

Another head-scratching case in which prosecutors—in this case the Missouri Attorney General’s Office—are fighting an exoneration:

There was no dispute in court Friday in Jefferson City that favorable evidence was improperly withheld from George Allen’s defense in a St. Louis murder trial almost three decades ago.

What stands between Allen, 56, and freedom is the question of whether that evidence exonerates him or is likely to have swayed the jury that convicted him.

On that, there was no agreement in the daylong hearing.

Cole County Circuit Judge Daniel Green, in charge of the case now, said he would decide later in what are two options: exonerating him with the possibility of a retrial, or leaving him in prison to finish his 95-year term.

Among the evidence casting doubt on Allen’s guilt:

• A coerced confession from a schizophrenic suspect. Even after the confession, the suspect continued to give police incorrect information about the crime. One of the detectives who conducted the questioning now concedes the interrogation was not consistent with department policy.
• Allen also confessed to a number of other rapes he couldn’t possibly have committed.
• A jailhouse informant says he was coerced by police to claim Allen had confessed to him in a jail cell.
• An admission from the same detective above that investigators weren’t certain of Allen’s guilt.
• Three fingerprints at the crime scene that were never analyzed.
• In Allen’s first trial, the jury deadlocked 10-2, with the 10 voting to acquit.

But here’s the most convincing part:

[Defense attorneys] also focused heavily on a written report by a St. Louis police crime lab technician, Joseph Crow, in which there were crossed-out references to analysis of the crumpled, bloody robe found near Bell’s naked body. The blood type from semen on it did not match hers, her live-in boyfriend’s or Allen’s. A typed report presented to prosecutors, and used at trial, did not make reference to those findings.

Scheck pointed out that a police report, which never went beyond lead detective Herb Riley, showed police had been looking for a suspect with the same blood type as found on the robe.

“The defense should have had this,” he said. “That’s a powerful argument they never got to make.”

Assistant Missouri Attorney General Michael Spillane said the semen wasn’t relevant because, “This was not truly a forensics case. It was a confession case.”

Well yeah. Of course it wasn’t a forensics case. It wasn’t a forensics case because the forensic evidence was improperly kept from Allen’s attorneys. If it had been a forensics case, the forensic evidence would have excluded Allen, and he would never have been arrested, much less charged, convicted, and imprisoned. (Serology is a poor way to pin a crime on someone to the exclusion of everyone else. It’s much stronger evidence when used to exclude someone.)

This was an “arrest a mentally disabled guy walking in the area of the crime because he looks vaguely like a sex offender, then coerce a confession out of him” case. But that probably doesn’t sound very convincing in a courtroom.

• Dallas County, Texas, prosecutors have decided to wait to be sure they have the right man before executing him. Sounds rather reasonable, doesn’t it?
• This new study brought to you by the Institute of Fuddy-Duddiness.
• The U.S. government can’t bring itself to apologize to the innocent it sent to Syria to be tortured.
• This 15-year-old kid will probably save thousands of lives.
• As someone put it on Twitter, the perfect gift for the Texas A&M alum in your life.
• Very good Matthew Yglesias piece on licensure requirements.
• Twitter hates Garfield.

The Innocence Project has agreed to pay Mississippi pathologist Steven Hayne $100,000 to settle his defamation suit against them. The Innocence Project admits no guilt, but apparently the organization was getting pressure from its insurer to settle the suit. (Disclosure: Much of my reporting made up part of complaint asking the Mississippi Board of Medical Licensure to revoke Hayne’s medical license.)

It’s a paltry figure, which I think speaks volumes about the strength of Hayne’s case. Unfortunately, that they paid any money at all allows Hayne’s attorney to make claims like this:

Hayne’s attorney, Dale Danks Jr., said he “most definitively” believes Hayne has been vindicated by the judgment.”Very derogatory statements were made against him,” Danks said. “He is pleased to get this behind him. It was not a matter of money.”

Vindicated. Sure. I mean, he has been barred from doing any more state autopsies in Mississippi. And the Mississippi legislature passed a bill specifically aimed at keeping him from ever being used by prosecutors in the state again. And he was forced to resign his membership in the National Association of Medical Examiners in the face of an ethics inquiry. But sure. Let’s go with vindicated.

Here’s where the story accelerates from mildly irritating to outright appalling:

The project’s work helped lead to the exoneration of several individuals, including Kennedy Brewer and Levon Brooks, each of whom had been convicted of raping and murdering a child. Brewer spent 15 years behind bars and had been on death row, and Brooks, sentenced to life in prison, had spent18 years.

Both men from Noxubee County have lawsuits against Hayne, who testified for the prosecution at their trials.

But Danks said Hayne deserves credit for helping to prove the innocence of Brewer and Brooks by preserving the DNA evidence that exonerated the men.

The attorney for the guy who, along with Michael West, was the main reason two innocent men spent nearly two decades each in prison—one of whom was nearly executed—says we should thank Steven Hayne for their eventual exonerations.

This is a great idea.

There is no official record-keeping system for exonerations of convicted criminals in the country, so academics set one up. The new national registry, or database, painstakingly assembled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, is the most complete list of exonerations ever compiled.

The database compiled and analyzed by the researchers contains information on 873 exonerations for which they have the most detailed evidence. The researchers are aware of nearly 1,200 other exonerations, for which they have less data.

They found that those 873 exonerated defendants spent a combined total of more than 10,000 years in prison, an average of more than 11 years each. Nine out of 10 of them are men and half are African-American.

Nearly half of the 873 exonerations were homicide cases, including 101 death sentences. Over one-third of the cases were sexual assaults.

DNA evidence led to exoneration in nearly one-third of the 416 homicides and in nearly two-thirds of the 305 sexual assaults.

And of course these are merely those who were able to get a court’s attention. I’ve been told by defense attorneys, for example, that there are people in Parchman Penitentiary going back to the 1960s and 1970s for whom there isn’t even any record of a trial. That 2,000 figure also wouldn’t include someone like Cory Maye.

You can peruse the registry here.

• People really did this?
• Something else to worry about: Worms eating your brain.
• Videos exonerate photographers wrongly charged with crimes in New York, Seattle. Be sure to appreciate those first three paragraphs.
• Walter Olson takes on Nicholas Kristof’s latest crusade: Boycotting alcohol manufacturers because of alcoholism on American Indian reservations.
• Pakistan bans Twitter.
• Congressman from the party of limited government procured millions in earmarks to purchase $17,000 helicopter drip pans from a contractor in his district.
• Before he was taken off the case, a Texas judge was preparing to posthumously exonerate Cameron Todd Willingham.
• Photo of the day (via Brian Tannebaum, via Carlos Miller):

An exhaustive investigation from Columbia Law School argues yes.

It is now clear that a person was executed for a crime he did not commit, and his name – Carlos DeLuna – is being shouted from the rooftops of the Columbia Human Rights Law Review. The august journal has cleared its entire spring edition, doubling its normal size to 436 pages, to carry an extraordinary investigation by a Columbia law school professor and his students.

The book sets out in precise and shocking detail how an innocent man was sent to his death on 8 December 1989, courtesy of the state of Texas. Los Tocayos Carlos: An Anatomy of a Wrongful Execution, is based on six years of intensive detective work by Professor James Liebman and 12 students.

Starting in 2004, they meticulously chased down every possible lead in the case, interviewing more than 100 witnesses, perusing about 900 pieces of source material and poring over crime scene photographs and legal documents that, when stacked, stand over 10ft high.

What they discovered stunned even Liebman, who, as an expert in America’s use of capital punishment, was well versed in its flaws. “It was a house of cards. We found that everything that could go wrong did go wrong,” he says.

Carlos DeLuna was arrested, aged 20, on 4 February 1983 for the brutal murder of a young woman, Wanda Lopez. She had been stabbed once through the left breast with an 8in lock-blade buck knife which had cut an artery causing her to bleed to death.

From the moment of his arrest until the day of his death by lethal injection six years later, DeLuna consistently protested he was innocent. He went further – he said that though he hadn’t committed the murder, he knew who had. He even named the culprit: a notoriously violent criminal called Carlos Hernandez.

The two Carloses were not just namesakes – or tocayos in Spanish, as referenced in the title of the Columbia book. They were the same height and weight, and looked so alike that they were sometimes mistaken for twins. When Carlos Hernandez’s lawyer saw pictures of the two men, he confused one for the other, as did DeLuna’s sister Rose . . .

All the evidence the Columbia team has gathered on the DeLuna case has been placed on the internet with open public access . . .

Carlos DeLuna commented on his own ending in a television interview a couple of years before his execution. “Maybe one day the truth will come out,” he said from behind reinforced glass. “I’m hoping it will. If I end up getting executed for this, I don’t think it’s right.”

You can read the book and review the evidence here.

A DNA exoneration in Colorado:

A Colorado man wrongly convicted and sentenced to life in prison for the rape and murder of a woman found strangled with a dog leash was exonerated on the basis of new DNA evidence and set free on Monday after spending more than 16 years behind bars.

Robert “Rider” Dewey walked out of a courthouse in Grand Junction, Colorado, a free man after a judge found him innocent of the 1994 killing and said his exoneration marked a “historic day” for the state.

“Mr. Dewey spent 6,219 days of his life incarcerated for a crime he did not do,” Mesa County District Judge Brian Flynn said during the brief hearing. “This is a reminder to the entire system that it’s not perfect.”

Flynn said prosecutors had not committed misconduct, Dewey had been represented by good defense attorneys, and an impartial jury had heard the case but added: “Despite all these things, the system didn’t work.”…

Prosecutors announced earlier on Monday they were seeking an arrest warrant for a new suspect in the 1994 killing who was identified by DNA testing and is already serving a life sentence for a similar 1989 murder.

And two more in Dallas County, Texas:

This morning, two men stood in the same courtroom where they were convicted of aggravated assault and sentenced to life in prison for a rape and shooting that happened almost 30 years ago. This time, both were smiling, as they were one step closer to exiting the criminal justice hell that consumed the last three decades of their lives.
Raymond Jackson and James Curtis Williams donned suits and were surrounded by friends, family and fellow exonerees, as Judge Susan Hawk, with her declaration of relief from conviction based on actual innocence, granted them entrance into the ever-expanding brotherhood of Dallas County exonerees. This morning’s double exoneration hearing comes just weeks after the exoneration of three men for one crime.

With dozens of men having come before them and about 10 sitting behind them in the audience, it’s clear that systematic flaws that have lead to so many wrongful convictions. Under District Attorney Craig Watkins, Dallas County has been famously proactive in freeing the wrongfully convicted. But what’s less readily apparent is how deep the problem runs.

“I know for a fact” there are other innocent men in prison, Williams said to the crowd gathered after the hearing. “You will not get the proper representation if you are poor,” he added. “A lot of them had to cop out to cases that they knew they was innocent on because they didn’t want to face the jury.”

I’ve made this point a number of times before, but it’s always worth making again: DNA testing did not “fix” the system, it only confirmed that the system is broken. DNA simply isn’t a factor in the vast, vast majority of criminal cases, including most murder cases. But the flaws that exist in the small percentage of cases where DNA is dispositive of guilt are almost certainly at work in all of those other cases, too.

Imagine having 27 years of your life taken from you.

Despite being convicted of the 1984 shooting of a South Pasadena, Calif. man, Frank O’Connell always maintained his innocence throughout the 27 years he’s been in prison.

Now, O’Connell is getting a second chance to prove it. Last month, a Los Angeles County Superior Court judge ruled that he was entitled to a new trial because the Los Angeles Sheriff’s Department failed to disclose evidence pointing to another potential suspect, reports the Los Angeles Times. The detectives may also have improperly influenced witnesses.

O’Connell’s family was able to post $75,000 bail Friday, and he was released Saturday morning.

“I feel great,” O’Connell said in a phone call to The Huffington Post. “Getting acclimated back into society is going to take a little while, but the excitement, the love and the joy I’ve been receiving from everyone, as well as the well-wishing and prayers, helps.”

I’m continually impressed by the attitude of these exonerees upon their release.* I’m sure there are examples out there, but I can’t recall a single time when one of these guys expressed anger or bitterness after getting out. Even in cases of gross misconduct by government officials.

I’d like to think I’d be as gracious. But I kinda’ doubt it.

(*Technically, O’Connell isn’t yet an exoneree, and could still be tried again.)

When you cover and read about this sort of thing everyday, you can sometimes build up a resistance to headlines like the one above.

But I mean holy hell. This ought to be pictchforks-in-the-streets stuff.

Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.

Officials started reviewing the cases in the 1990s after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials. Instead of releasing those findings, they made them available only to the prosecutors in the affected cases, according to documents and interviews with dozens of officials.

In addition, the Justice Department reviewed only a limited number of cases and focused on the work of one scientist at the FBI lab, despite warnings that problems were far more widespread and could affect potentially thousands of cases in federal, state and local courts.

As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects.

If it isn’t there already, the next sentence should put your chin on the floor.

Justice Department officials said that they met their legal and constitutional obligations when they learned of specific errors, that they alerted prosecutors and were not required to inform defendants directly.

I mean, think about that. Taxpayer-paid employees of the Justice Department had direct and exclusive knowledge that there may be hundreds of innocent people in prison, they knew that flawed forensics in these cases needed to be reviewed, and their justification for not doing more as these people continued to rot in prison was, Hey, we did the bare minimum required of us by law.

The immediately obvious problem here is that the ethical requirements need to be strengthened. If the task force charged with investigating possible wrongful convictions is only required to report what it finds to the prosecutor offices that won those convictions—and who obviously have a strong incentive to keep the new information under wraps—what the hell was the point of forming the task force in the first place? And why keep the task force findings from the public?

But even beyond the problematic ethical requirements, I’m having a hard time fathoming how no one on this task force felt morally compelled to go beyond those requirements—to, you know, actually reach out defense attorneys, or attempt to actually reach the convicts or their families. How in the world can you possess this sort of information, then still sleep at night, year after year, knowing that (a) the information obviously isn’t reaching the people who have an incentive to actually put it to use,  (b) you’re one of the few people who could make that happen, and (c) because the information was only available to select group of people, if you or one of your colleagues doesn’t act, no one else will?

I’m obviously fairly skeptical of government. And the criminal justice system is loaded with bad incentives. But I can’t really even think of what poorly-structured incentive would have prevented the members of this task force from doing more than the bare minimum that was required of them. It isn’t as if they were personally responsible for these mistakes. The mind boggles at the mental firewalls an otherwise decent person would have to construct to know this was happening, and still do nothing to stop it.

First from Glenn Reynolds, who throws out one proposal for reform:

That “absolute immunity,” by the way, is entirely a judicial creation and — except, I suppose for absolute judicial immunity — as overweening an example of “judicial activism” as you’ll ever find, though this is seldom noted. If such immunity is to exist, it should be legislatively arrived at, not the product of judicial fiat.

Personally, I think that overcharging should cost prosecutors something. How about this — the state is on the hook for a pro-rata share of defendant’s legal expenses based on the number of offenses charged, but not convicted. Charge with 20 crimes, convict on 2, you pay 90% of the defendant’s legal fees.

Or maybe it should be based on years: Charges adding up to a maximum penalty of 100 years; actual sentence, 1 year. Government pays 99%. What do you think? I think that we need more oversight of prosecutors, and since I have little faith that the legal establishment will provide it, I’m looking for structural ways to give them skin in the game.

I think defendants should definitely be reimbursed for legal fees any time they’re acquitted. Or to be honest, any time they’re charged and never convicted. They should probably be compensated for any time they spent in jail awaiting trial in those cases, too. They certainly should be compensated in cases where there’s both prosecutorial misconduct and there was never a conviction. As I understand it, that’s supposed to be how the federal system works, but it doesn’t usually happen that way.

Absolute Immunity is just insanity. And as Reynolds points out, we only have it by way of SCOTUS fiat, a point it was amusing to see former Bush Solicitor General Paul Clement make to Justices Roberts and Alito during oral arguments in the most recent immunity case. At the very least, prosecutors should be subject to civil suits when they actually break the law.

New York criminal defense attorney Scott Greenfield, who is probably one the few people more cynical about this stuff than I am, also weighs in with the gloomy but probably observation that even if some reform were to pass, it’s unlikely that it would be enforced. After detailing how the system is supposed to work in theory, Greenfield opines:

The problem with this very nice, very sanitary discussion is that the process doesn’t necessarily happen this way.  Radley attributes this to a need or a higher burden before subjecting a person to the rest of the ride (since courts have refused to do much of anything to eliminate the first 24 hours or so of hell, from arrest to arraignment).  I have little faith in amorphous legal standards to begin with, and am firmly of the view that all the players in the system can ignore a higher standard just as easily as it ignores a lower one.

Not that I have anything against a higher burden before subjecting a person to the nightmare of prosecution, but the fundamental problem with the system as it currently works is that it relies on each of the players faithfully performing the duties of their office.  Until that happens, and happens in every case, the system fails. No standard, no matter how clear or vague, high or low, is going to make a system work when those charged with protecting people from baseless prosecution close their eyes and pass their responsibility down the line.

I think he’s probably right. But if I may be so naive as to posit at least a flickering bright spot in all of this gloom, I do think public opinion on these issues is changing. The great work the Innocence Project is doing to shed light on the problems in the criminal justice system is having an impact. We’ve seen a few cases now where bad prosecutors have been voted out, or at least faced tough reelection challenges. In Colorado, two prosecutors who hid exculpatory evidence in an innocence case had actually gone on to become judges when voters recalled them in the 2010 election. So I think there’s merit in continuing to draw attention to these issues, and to highlight cases that illustrate where the system goes wrong.

But that’s kinda’ what I get paid to do. So grain of salt, and all of that.

• California liberals worry that federal pot raids will make people distrustful of government. Let’s hope so!
• National Guard Units aiding state drug war efforts. And possibly in defiance of the Supreme Court’s ruling in Kyllo.
• This article on the Otto Zehm killing aptly demonstrates the many problems with police unions.
• Both Reuters and Walter Olson throw water on the notion that Stand Your Ground and Castle Doctrine laws are filling the streets with blood.
• The sponsors the 1978 California law that substantially expanded the state’s use of the death penalty are now arguing for its repeal.
• Clark County, Nevada DA won’t charge a cop who was caught on film repeatedly kicking a man in the head. The man was in diabetic shock at the time. The officer has a history of misconduct, which the DA apparently didn’t know about until it was uncovered by the Las Vegas Review-Journal.
• Union claims it should be able to force anyone who wants to work in a particular field to join the union and pay dues, and that it should then be able to use a portion of those dues for political activities. And it claims that preventing it from doing so is a violation of the union’s free speech.
• How the pun changed world history.

• Here’s a writeup of the talks I and other panelists gave at Ohio University last week.
• “All four telecom firms also offer so-called “tower dumps” that allow police to see the numbers of every user accessing a certain cell tower over a certain time at an hourly rate.”
• Cop shoots other cop while trying to kill dogs.
• Chicago police managed to “persuade” a man to confess to two murders that were committed while he was in the custody of Chicago police.
• Tape captures Alabama public school teachers verbally abusing a student with cerebral palsy.
• For those of you who, like me, have a thing for photos of abandoned places.
• (Attempted) puppycide: Woman calls police to report a burglary. Police respond, shoot and kill her dog, don’t catch the burglars.

• Let’s put the Yoga stuff aside, and just focus on the fact that New York City has a tax on “weight control or health salons.” How does this fit into Bloomberg’s fanatical healthism?
• “There should be no indictment of the system.” Incorrect. When a father is wrongly imprisoned for a decade raping his daughter, it most certainly is an indictment of the system.
• The ugliest buildings in the word. I would add the U.S. Dept. of Housing and Urban Development. Just for the irony. Or maybe it isn’t so ironic. Of the FBI Building, another D.C. brutalist monstrosity.
• SCOTUS grants absolute immunity to investigators for prosecutor’s offices who give false testimony to grand juries.
• “I should not have to fight with my children every warm day on the playground just so someone can make a living!”
• Headline of the day.
• Things that seem pretty legit.