Texan Freed

Here is an example of what i spoke of re wrongful conviction and reasons why they happen. Good comments at the link. Dallas has another one. wish i knew how to post a link with my new droid...

dallasnews.com

Wall St Journal carries the story too.

Technology

Technology allows me to post via mobile device. I joined the new revolution due only to fact my home computer is fubar.

Taking 3 years following my release Texas's innocence commision report fails to mention at least one reason for a wrongful conviction, environmental factors and outside influence including prosecutor misconduct.

Postconviction Practices

Thanks to Doug, as alway, here is the ABA symposium on postconviction practices:

Prof. Berman also posts here on Second Amendment cases, Heller and McDonald, suggesting that the cause of criminal justice reform is related, discussing the politics as well.

Remarkably there is in the air a question whether SCOTUS might overrule a one hundred year old decision in the Slaughterhouse cases regarding the Privileges or Immunities clause of the Second Amendment! Doug suggests liberals should tend towards favoring the overruling. You have to go read the McDonald brief.

That would place liberals in bed with the NRA. Gives new meaning to the phrase intercourse between nations, or in this case national political parties. You gotta love how those clever libertarians love to stir the pot. Karl Rove, where are you now?

Yes, the states should and can be incubators for reform (in all vectors). But which one has the balls to move sensibly toward what we might call, fiscal responsibility, anti- tough (stupid tough) on crime? Restore judicial discretion, remove mandatory minimums, for starters.


Symposium link

Topics include

collateral consequences
clemency
claims of innocence
procedural obstacles

and a primer by Prof Taslitz at Howard University in DC.

Actual Innocence and DNA Testing Waivers

In this post exploring DNA testing waivers, the real issue of interest to me is why innocent accused plead guilty to crimes they did not commit. Does this interest anybody else? Does it not trouble you?

A snippet: Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....

from the Post article Doc cites.

Actual Innocence in Scotus

Here is a link to WP picking up a Scotus order for a hearing in the case of a Georgia man on death row who has put forward recantations of seven witnesses in support of his claim that he is innocent.

Actual Innocence, DNA Testing, Sec. 1983, Osborne in the Supreme Court

At this link is the transcript of oral argument in the Supreme Court in the Osborne DNA case from Alaska in which the government argues that new evidence in the form of DNA testing should be denied, remain untouched, apparently in the interests of "finality", one, because 1983 civil claim is not the appropriate way to ask for it, and it is more of a discovery request, and prisoner does not have a federal constitutional right to his own DNA for testing, and because he refuses to swear unde penalty of perjury that he is actually innocent and has confessed twice, and remarkably, that there is no right to present new evidence that shows, or could show, your actual innocence (more to come) -- HuH?

I took some notes yesterday and stupidly kept thinking I'd return to post to the blog and didn't so it's lost, only to be retrieved from memory. Perhaps I'll not bother. Now to return to finish reading the transcript...,

For now, let's just say that this case tests whether or not there is a constitutional right to obtain evidence of actual innocence that is in the possession of the state.

Doc Berman's post on the case has the usual good commentary, here.

Section 1983, DNA, Claims of Innocence (and Potty Fodder for Newsletter)

Here is a new cert grant in a DNA evidence case, District Attorney’s Office v. Osborne (08-6) courtesy of SCOTUSBLOG. An implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

Fodder for the Newsletter, which I promise will be out before December. Now for the POTTY FODDER UPDATE, Dahlia Lithwick gives us the following in Slate: (Shit Doesn't Happen, The Supreme Court's 100 percent Dirt-Free Exploration of Dirty Words)

FCC v. Fox Television is not a First Amendment case. It's a First Amendment-minus case, in that while the various justices insist that it need not be decided on constitutional grounds, it nevertheless provokes one of the best First Amendment debates I have ever heard. Since the Supreme Court decided FCC v. Pacifica in 1978, which found the midday radio broadcast of George Carlin's "Filthy Words" monologue to be indecent, the FCC rule has been this: The agency may regulate a daytime broadcast of the sort of "verbal shock treatment" of the Carlin monologue, but it will overlook the "isolated use" of one-off potty words. A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word "describe or depict sexual or excretory organs or activities" and be "patently offensive as measured by contemporary community standards."

Enter Bono, who accepted his 2003 Golden Globe with the heartfelt (live) declaration that the honor was "really, really fucking brilliant." Oh. And Cher, who received her 2002 Billboard music award with the gracious, "I've also had critics for the last 40 years saying that I was on my way out every year. So fuck 'em." And the ever delightful Nicole Richie, who wowed them at the Billboard awards the following year with the observation that "it's not so fucking simple" to remove "cow shit out of a Prada purse."

Texas Justice

Here is more new evidence from Grits that Texas justice means lock 'em up, actually innocent, accused, and falsely convicted. Just don't become accused, and you're alright if in Texas. Got enemies? Tuff. Stay out of Texas.

UPDATE: More on Texas "yo yo" justice as applied to - well, matters of life and death, here.

Politics of Crime

This qualifies for politics of crime (even if it's not habeas stuff which is the more keenly honed edge on this blog), as does the following item from Prof. Berman.
The President can do no wrong, except if his name was Nixon, in which case he gets pardoned, or if his name was Clinton, in which case he gets impeached. The real question:

does the issuance of the signing statement for this technical amendment simply signal the Bush Administration's unusual overreliance on signing statements — so much that they would make a statement to restate existing law even when the paragraph is just moved from one place to another — or does it hint at a previously unknown Administration's practice?*** It may be that this signing statement is nothing, and it just reveals the Administration's willingness to issue signing statements about everything. On the other hand, it may be that it hints at a program allowing the government to open postal mail under the claimed authority of the AUMF.

More by Orin Kerr here.

Prof. Berman lays this one out in the flats (not the ones out west, near where those Casinos are):

The over/under on tonight's big game right now is set at 46. Were I a betting man, I would take the over. But if 46 was set as an over/under for the number of executions in the United States in 2007, I probably would take the under. *** But, as spotlighted by ODPI in posts here and here, the death penalty landscape is probably more impacted by evolving political realities than legal issues. If elected officials (including state judges) discover they can disrupt marches to death chambers without serious political fall-out, there could be amazingly few executions (except perhaps in Texas) throughout 2007.

Who can take this one in for the TD?

Nothing good can come of this, then too I could be wrong. Scot Henson just reminded me of this one (the Texas Panetti SCOTUS cert), from Prof. Berman. Here Scot spotlights another innocence issue:

Whitley quotes Vanessa Potkin, chief counsel of The Innocence Project at Cardozo Law School, who points out that "no other county in the country beats Dallas. It’s a county that beats out most states in the country. It’s an indication of a system that needs reform.""So why is Dallas having such staggering numbers of the innocent put in prison?," queries Whitley. "One clue: Potkin says that almost all of those exonerated were convicted with eyewitness testimony that proved to be wrong. 'And these cases are recent, not from the ’80s,' she says."

No wonder so many innocent people are sitting in Texas prisons. The eyewitnesses are "wrong"? That sounds more than just a little "feeshy to mee." Scot assumes that the "eyewitnesses" are not subject to coercion (there are some things that best practices cannot cure) whereas IMO coercion is precisely where, and how, Texas is going wrong in obtaining its convictions.

Lot more goodies here on alternatives to prison, from Scot,

and here, victim advocates oppose "tuffer" penalties (truly amazing, if it did not make so much sense). My earlier post about hearts and heads here.

Chilly, but Nice in Western Maryland

Just a little something to get you going on a chilly Tuesday morning in Western Maryland. Thank god it's not Vietnam and thank god its not Iraq.

1 Over at SCOTUSblog, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in Carey v. Musladin. The short majority opinion is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more. For some additional blogosphere commentary, check out Crime Consequences and Althouse (blogs). Hat Tip Doc Berman at Sentencing Law and Policy.

2 California's Prison Problems Spotlighted in NYT:

More on that in LA Times: "Punishing Prisoners at all Costs." As I note in my header (the blurb at the top, describing my blog), "there has to be a better way." (by Joe Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," -- Domanick is senior fellow in criminal justice at the USC Annenberg Institute for Justice and Journalism)

3 Texas Parole: This is of special interest to me so I'm going to do a bit more reading and post further on this. Meanwhile, read Doc Berman on the future of parole here.

4 Unintended Consequences: Iowa's residency restrictions creating more problems than they solve. Hat Tip Doc Berman.

5 Sentencing and SCOTUS:
Sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.

Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring. Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who knows what we should expect from slow-poke SCOTUS these days.

Doc Berman's blog Sentencing Law and Policy has all this and more. My hat is permanently tipped in your direction Doug. Thanks!

Christmas Is Time For Giving: As it will soon be Christmas, or Holidays, or just time for gift giving and spending money, let's not forget that lots of people will be missing their loved ones who might be soldiers fighting overseas, or locked away in prison: there is no justice. Lots of prisoners are just plain innocent. Too many. That's why I started the Innocence Project and write this blog and newsletter. Please donate. Send your check to Innocence Project, PO Box 200, Jefferson, MD 21755.

It is an especially hard time of year if you are in prison. It's hard even if you're not. It is an especially good time to begin thinking of new resolutions and turning over a new leaf. If you have not done your good deed for the day, month or year just start today and give a little. It will make you a better person! There is always room for improvement, right?

Odds and Ends

Stink of MS still lingers...

Hard to Ignore Case of Police Brutality: here

More Prisons Not the Answer, Makes Sense Now, but we did not know back then,

The Texas Board of Pardons and Paroles recently came under fierce attack for denying parole to scores of low-risk offenders. Talk about boosting parole rates worries Dianne Clements, of the Houston-based victim advocacy group, Justice for All. "These influential lawmakers seem to be leading us to where we were 15 years ago, when we had a prison population that was a revolving door because we didn't have enough prison beds and parole boards had no alternative but to release people," she said. But Marc Levin, director of the Texas Public Policy Foundation's Center for Effective Justice, a conservative think tank, said the winds were shifting in Texas. "There's an alliance on both the right and the left. There's a consensus we need to do something besides build more prisons," he said.

Innocence Stuff