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This week Stanley Z. Fisher, a NEIP founding member and trustee, participated in a Boston University Law School/Legal Talk Network Podcast. Fisher, a professor at BU law, teaches classes on criminal law and wrongful convictions. Listen below to hear him speak about the causes of wrongful convictions, specific cases in New England, and what can be done to help reform the justice system.
Listen to the podcast here!
Last Friday, Victor Rosario became one of the first Massachusetts inmates to be ordained as a minister while incarcerated.
Rosario is serving a life sentence for arson in connection to a 1982 Lowell fire that killed 8 people. Rosario was present at the scene of the fire and heard cries for help coming from the burning building. He was 24 years old at the time and had abused alcohol for most of his life.
Just hours after the horrible fire, Rosario sought the help of a local minister. “When he was praying for me, I went down to the ground, and I felt this kind of peace in myself,’’ Rosario said in an April prison interview. “Like a Christian person, … you’re reborn, I felt that peace in me and I went back with the Bible thinking Sunday I would be in church.’’
Rosario, however, was in jail by Sunday and has remained behind bars ever since. During his incarceration, Rosario has run marathons, mentored fellow prisoners, and married. While still physically incarcerated, Rosario says he is mentally free from drugs and alcohol. Rosario writes, “I believe that God has called me to prison ministry. I also believe that one day I will be a free man and able to minister both inside and outside these walls that currently confine me.’’
Two weeks ago, a Boston Globe article highlighted numerous shortcomings in the investigation that raise serious questions about the validity of Rosario’s conviction. Rosario’s legal team is expected to file a motion for a new trial later this summer.
Over 10 years ago, the New Jersey Supreme Court handed down a landmark ruling requiring judges to instruct juries about the reliability problems with cross-racial identifications when the identification is not corroborated by other evidence. This ruling came after McKinley Cromedy was exonerated through DNA testing. Cromedy spent five years in prison for a rape he did not commit. The only hard evidence presented at his trial was the victim’s testimony identifying him as her attacker.
Last month the Special Master appointed by the New Jersey Supreme Court in State v. Henderson released a report calling for a major overhaul of the legal standards used by courts to determine the admissibility of eyewitness identification evidence. Geoffrey Gaulkin, a retired appellate judge, submitted the report after extensive hearings on the state of the law and science of eyewitness identification. The report recognized the major scientific developments in the area of eyewitness identification and concluded that the widely-used Manson test and procedures are not “valid and appropriate in light of recent scientific and other evidence.” The Special Master made numerous findings to support his conclusion, including the following: suggestive procedures can falsely inflate the reliability of eyewitness testimony; eyewitness memory is more like physical trace evidence than a videotape recording and can be mishandled, contaminated, or degraded; non law enforcement actors can contaminate a witness’s memory. The report recommended that the reliability inquiry be expanded to include “all the variables left unaddressed” by Manson, that at least an initial burden be placed on the prosecution to produce evidence of the reliability of the eyewitness identification evidence, and that judges and juries be informed of and guided by the scientific findings regarding eyewitness identification.
“A new framework is urgently needed to address what the science has told us,” said Ezekiel R. Edwards, a lawyer with the Innocence Project in New York who participated in the New Jersey investigation on the issue.
Many factors have been found to affect the reliability of an identification. The way lineups and photo arrays are administered drastically affects the dependability of an identification. New Jersey has guidelines for police officers administering lineups. These guidelines include telling the witness that the perpetrator may not be present and showing photos sequentially rather than simultaneously. Such procedures have been found to reduce the risk of misidentification.
According to the Innocence Project, eyewitness misidentification was a contributing factor in over 75 percent of US convictions later overturned by DNA evidence.
Lounsberry, Emilie. “New Jersey is a leader in addressing problems with eyewitness testimony.” The Pennsyvania Inquirer. June 28, 2010. Read the article.
March 5, 1982: the deadliest fire in Lowell, MA’s history takes the lives of 8 people.
March 7, 1982: Victor Rosario, a 24 year old bystander, was named the prime suspect. Hours after that, Rosario signed a confession stating he and two others threw Molotov cocktails into the building, starting the blaze.
A recent Boston Globe article focuses on the shortcomings of the prosecution’s case against Rosario.
Although Rosario signed a confession, the translator who assisted with the interrogation now says that Rosario was delusional at the time. Dr. Judith Edershiem, a forensic psychiatrist who reviewed with the case, opined that Rosario was suffering from alcohol withdrawal, resulting in delirium tremens (“DT’s”). An examination revealed that Rosario had severe liver damage; at the time of the interrogation he had gone 48 hours without a drink. Dr. Alison Fife, a forensic psychiatrist who examined all the evidence from the interrogation, claims that the interview should have been stopped. Fife observed that Rosario was not making sense and seemed “out of control.”
There are also shortcomings with the fire science used in Rosario’s case. Even though he “confessed” to using Molotov cocktails, no accelerant was found at the scene of the fire. John Lentini, a prominent fire scientist, stated that if Molotov cocktails were used, there would be physical evidence of them. “It’s hard to break a beer bottle; the neck almost never breaks because it’s small and compact, and the bottom is usually in one piece,’’ said Lentini. “If they were there, they would’ve found them.’’
Arson experts who reexamined the evidence believe that the fire could have been started accidentally. The police experts cited the fire’s speed, two points of origin, and certain patterns of charring as evidence of arson. But fire experts today and the National Fire Protection Association 921 Manual both state that the evidence cited is consistent with an accidental fire.
The new fire investigators say it’s possible that a space heater could have been the cause of the fire. The heater was located between three rooms that had the most burn damage.
The Globe article also points out other significant shortcomings in Rosario’s case, including suspect eyewitness testimony and problems with Rosario’s defense attorney.
Victor Rosario, 52, has now spent more of his life in jail than out. He has filed two unsuccessful appeals. The New England Innocence Project and The CPCS Innocence Program have joined together to support Boston attorneys Andrea Petersen and Esther Horwitz in challenging this conviction.
To read the entire Globe article, click here.
Conviction, a movie based on the incredible true story of NEIP exoneree Kenny Waters and his sister Betty Anne, is set to be released October 15, 2010. The movie stars Hilary Swank as Betty Anne Waters. After her brother was wrongly convicted of murder and robbery, sentenced to life in prison, and had exhausted all of his appeals, Betty Anne determined it was up to her to save her brother. A mother of two small boys, Betty Anne worked tirelessly for her brother’s cause, earning her GED, Bachelor’s Degree, and finally a law degree in the hopes of exonerating Kenny. She worked with Innocence Project and NEIP attorneys to prove Kenny’s innocence.
The well accepted fire science that convicted George Souliotes in 1997 is now coming under question. Souliotes, a Greek immigrant, was convicted of arson that killed three people including two children in Modesto, CA. He was the landlord of the building.
Arson investigations have recently come to the forefront after the execution of Todd Willingham in Texas in 2004. The fire deemed arson in Willingham’s case seems now to be probably accidental. Because of this, many fire scientists have begun to review old cases to see if questionable science is convicting innocent people.
The science started to unravel because of the1992 groundbreaking guide by the National Fire Protection Association. The report is now widely embraced, but some experts still retain their old beliefs. The report shows that some assumptions about arson science are now known to be false. For example, conditions thought only to be present in arson cases have now been confirmed as typical in accidental cases, too: including melted steel and glass etched tiny cracks.
John Lentini, a prominent fire scientist who testified for Souliotes’, says that a sizable number of experts still “don’t want to admit they were doing it wrong.”
Souliotes’ fate rests on the forthcoming decision of the 9th Circuit Court of Appeals, which will soon decide whether to reexamine the case. The Northern California Innocence Project has taken on Souliotes’ case. Souliotes’ sister, Aleka Pantazis, 63 has also helped to bring attention to his case. Souliotes’ lawyers argue that arson investigators misinterpreted the evidence at the scene.
The prosecution claimed that substance on Souliotes’ shoes matched the compound that started the fire. But, Lentini says they do not have a common origin, and now the prosecutors are not disputing this.
In the meantime, all Soulites and his sister can do is wait for the decision to be handed down. Pantazis says, “what I live for is to see the day my brother will walk out. Whatever years he has left, at least he will be free.”
Dolan, Maura. “13 Years Later, an Arson Case Begins to Unravel” Los Angeles Times. May, 31 2010. Read the article.
A recent article published in the The Providence Journal discusses the importance of legislation that would improve eyewitness identification methods in the state of Rhode Island. In the wake of a 2007-2008 survey conducted by the Rhode Island Office of the Public Defender, which reported that there have been at least seven cases of wrongful convictions as a result of faulty eyewitness IDs, Rhode Island legislators have proposed a bill that would require law enforcement agencies to follow more stringent eyewitness identification policies. Out of the 42 law enforcement agencies that responded to the survey, only 3 have written policies outlining proper eyewitness ID procedures. The legislation proposes a statewide standard for proper procedures. One of the sponsors of the bill, Sen. Harold M. Metts, (D-Providence) believes law enforcement agencies should implement best practices. “Anything to enhance the process, that’s what we need to do,” Metts said.
Both law enforcement agencies and attorneys understand the persuasive force of eyewitness testimony in the courtroom. Many social scientists, however, are skeptical of such evidence. According to the article, “Social scientists say stress, gaps in memory or the desire to make an identification at all costs can lead to mistakes.” With these factors in mind, the proposed legislation would mandate certain practices, such as live and photo lineups that include “fillers” who fit the suspects general characteristics.
The article also examines the experience of Brown University student Reade Seligmann. In 2006, Seligmann learned the consequences of misidentification firsthand when he and two Duke lacrosse teammates were wrongfully accused of raping an exotic dancer who picked them out of a faulty photo array made up of only Duke lacrosse players. According to data compiled by the New York based Innocence Project, 79 percent of the 252 people exonerated through DNA evidence were convicted on the basis of faulty eyewitness identification. “When you have your life taken out of your hands, it’s terrifying,” said Seligmann.
Today, the Alaska State Legislature passed legislation granting access to post conviction DNA testing. Additionally, the law will require the preservation of evidence following a conviction. This milestone legislation is a significant step forward for inmates seeking post conviction relief through DNA testing, many of whom did not have the technology available at the time of their trial. The success in Alaska leaves only two states without such laws, Massachusetts and Oklahoma. A link to the legislation is provided below.
NEIP exoneree Dennis Maher will be speaking before the Boston Rotary Club to discuss the many issues involved with wrongful convictions as well as his own 1984 wrongful conviction. Additionally, Mr. Maher is expected to address the problem of Massachusetts’ DNA access laws and the importance of the legislation. The event will be taking place at the Boston Park Plaza Hotel on Wednesday, May 12th from 6 to 7:30.
Background:
Dennis Maher was convicted in two separate trials of attacks on three women. In March 1984, he was found guilty of the rape and assault of two women in Lowell on consecutive evenings in November 1983. In April 1984, he was convicted of the August 1983 rape of another woman in Ayer. After the second trial, Maher was sentenced to life in prison. Under Massachusetts law in effect at the time of his convictions, he was also civilly committed to Bridgewater Treatment Center. Maher, a U.S. Army sergeant at the time of his arrest, had always asserted his innocence and wrote to The Innocence Project for help. The Innocence Project tried repeatedly to gain access to the biological evidence collected from the victims, but was told that the evidence couldn’t be found. In 2001, NEIP located long-misplaced evidence from the Lowell trial in the basement of the Middlesex Superior Court. In December 2002, DNA test results excluded Dennis Maher as the source of semen on the evidence. After Maher was excluded as the source of semen in the Lowell case, in February 2003, the Middlesex District Attorney’s Office located at the Ayer Police station a slide prepared from the rape kit of the Ayer rape victim. This slide was submitted for DNA testing and Maher was again excluded as the source of semen. Dennis Maher was exonerated in April 2003 after 19 years in prison. He was represented by NEIP attorneys and by the Innocence Project in New York.
Bruce Lisker had his murder conviction overturned on Friday after spending 24 years in prison for a crime he did not commit. He is currently free on bail while the prosecution decides whether they wish to appeal. Lisker was 17 years old when his mother was murdered. Lisker saw his mother on the floor, broke into his parents’ home to help her, and called paramedics. At the time, he was living elsewhere and was battling a drug addiction. He was arrested the same afternoon. Lisker was convicted primarily on four pieces of evidence, including blood spatter on his clothes, a bloody foot print in his parents’ home, and a confession to a jailhouse informant. Evidentiary rulings later cast considerable doubt on the evidence that had been used against Lisker at trial, and the original prosecutor admitted that he now had “reasonable doubt”. At the time of the murder, the police failed to follow a lead on another suspect, who had been to Lisker’s mother’s home the day before and who had lied about his whereabouts at the time of the crime. That suspect later committed suicide.
Congratulation to Bruce Lisker and the California Innocence Project!
The Los Angeles Times: Judge overturns Bruce Lisker’s conviction in 1983 killing of his mother
Dennis Maher was convicted and sentenced to life in prison for committing three rapes in 1983. In 2003, after spending 19 years behind bars, Dennis was freed because DNA tests proved that he was innocent of the crimes. In a recent editorial in The Patriot Ledger, Maher emphasizes the importance of access to DNA testing for inmates with claims of actual innocence. In Maher’s case, it took an extra six years to get the DNA tested because Massachusetts is one of only three states that lack a post-conviction DNA access law. Maher says, “That needs to change this year.”
Maher also refers to a report released by the Boston Bar Association Task Force to Prevent Wrongful Convictions in December 2009, which is entitled “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.” The Task Force was composed of police, prosecutors, defense attorneys and former judges, including four New England Innocence Project board members. Along with a variety of other recommendations for increasing the accuracy and reliability of the results the criminal justice system produces in Massachusetts, the Task Force calls for the creation of a statute providing defendants with claims of factual innocence with post-conviction access to and testing of forensic evidence and biological material (and for preservation of biological material).
Boston Bar task force report:
Read the report.
Justice John Cataldo of the New York State Supreme Court recognized a judicial basis for claims of actual innocence this month when he overturned Fernando Bermudez’ conviction. The decision, rendered on November 12, moves the state of New York closer to recognizing actual innocence as grounds for appeal. Justice Cataldo wrote, “I find the due process clause of our state Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence.”
Bermudez was convicted in 1992 of fatally shooting a sixteen-year-old in Greenwich Village. Five witnesses spoke against him at trial. No physical evidence tied him to the crime. In 1993, all five witnesses recanted their testimony, claiming that they were manipulated by prosecutors and police. They have stuck to their recantation ever since, and Bermudez has been petitioning to have the state court re-evaluate the evidence in his case since that time, but to no avail. The justice system seems to view recantations as inherently untrustworthy. A 1995 judge called the five who recanted in Bermudez’ case simply too many to believe. Bermudez has stuck to his original story all along– he did not know the victim, he had no motive to kill him, and he was elsewhere with friends at the time of the murder. Two friends spoke to his alibi, and have consistently maintained their testimony.
Legislation has also recently been brought in the state of New York that would amend the criminal procedure law to include a definition of actual innocence and the grounds by which a judge could vacate a sentence due to actual innocence.
The New York Times, November 22, 2009: Hope for the Wrongfully Convicted
The New York Times, April 13, 2007: Accusers Recant, but Hopes Still Fade in Sing Sing
The New York Times today reported on the phenomenon of dog “scent line ups”, in which a dog is exposed to a scent from a crime scene and then walked past vials containing swabbed samples from suspects and non-suspects. The dog indicates to the handler that it has reached a match, by stiffening its back or barking. Using dogs to follow scents has long been a practice of law enforcement officials, and is still employed by the FBI. But even the FBI agrees that dog scent line ups should not be used as the primary piece of evidence against a suspect. Dogs are liable to suggestion by their handlers, smells are often easily mixed and difficult to distinguish, and handlers may misinterpret their dog’s signals. Many states do not accept scent line ups as evidence, but several do, including Texas, Florida, New York and Alaska.
New York Times: Read the article.
Northwestern University School of Law has launched a new joint project between the Center for Wrongful Convictions and the Children and Family Justice Center. The Center for Wrongful Conviction of Youth (CWCY) will address the specific concern of exonerating and advocating for children and adolescents who are wrongfully convicted. Children and adolescents are particularly susceptible to police coercion and false confession. A Miranda warning is often not enough for a child or adolescent to adequately understand the ramifications of their words and actions while in police custody.
Media pages for CWCY:
Kenneth Ireland of Connecticut was released last week after a judge granted him a new trial. The prosecutor is expected not to retry the case. Ireland was 20 years old when he was convicted of the rape and murder of Barbara Pelkey, a mother of four. He was sentenced to 50 years in prison. At his original trial, witnesses testified that Ireland confessed to them. Ireland contended that those witnesses lied for a large monetary reward. Ireland was released by means of DNA evidence which proved his innocence, obtained with the help of the Connecticut Innocence Project.
Congratulation to Kenneth Ireland and his family, and to the Connecticut Innocence Project!
The Boston Globe: DNA clears Conn. man of killing after 20 years
The state of Georgia recently reported that more than 1,500 cases have been solved because of the Georgia DNA database. Georgia began testing DNA in 1991 and began adding samples to the FBI database in 1998. In 2000, the Georgia legislature passed a law requiring that DNA samples be taken from all convicted felons. Previously, samples had only been taken from convicted sex offenders. In the first year after the database was expanded, 70 cases were solved. DNA databases also aid those claiming factual innocence, as actual perpetrators may already be in the database.
The Atlanta Journal Constitution: Georgia DNA solves 1,500 cases
A new law in Texas will create a state office to handle the appeals of death row inmates. The office was created in response to a series of well publicized scandals which brought international attention to the subpar representation of capital offense appeals. Texas, unlike other states with capital punishment, had not used the public defender’s office to handle the habeus corpus writs for their capital offenders, but instead had hired outside attorneys who often missed deadlines or wrote “skeletal writs”. The new office will have a budget of a million dollars and a staff of nine, but its services will not be available to those capital inmates who have already used up their appeals. The Office of Capital Writs is expected to handle approximately ten appeals a year.
The Houston Chronicle: State to handle capital appeals
The estate of the late Kenneth Waters, who was exonerated in 2001 after spending 18 years in prison, has settled their case against the town of Ayer for a total of 3.4 million dollars. The estate, headed by Waters’ sister, Betty Ann Waters, is still in negotiations with one final insurer. Kenneth Waters was convicted in 1983 of first degree murder and armed robbery. He remained wrongfully incarcerated until his sister Betty Ann Waters became a lawyer and fought to free her brother by means of DNA testing. The civil rights suit against the town of Ayer included the charges that police officers coerced false testimony to convict Waters and withheld exculpatory evidence from the defense. Waters died just nine months after his exoneration, and Betty Ann Waters has worked on his behalf for compensation for his time in prison. Waters was represented by the New York Innocence Project and by New England Innocence Project attorneys when his conviction was overturned.
The Boston Globe: Ayer to pay $3.4m for unjust conviction
Stacey Barros was convicted in 2008 of murder, and is currently serving two life terms plus ten years. Barros was convicted of killing Deivy Felipe in 2005, in what appears to have been a drug deal gone wrong. Now the New England Innocence Project has filed a supporting friend-of-the-court brief in Barros‘ appeals case. Among the issues raised in the brief is the question of why the police recorded only twelve minutes of a four hour interrogation of Barros. Barros confessed to the crime in that recording, but later claimed he was coerced into that confession. In his confession, Barros got facts of the case wrong, including the number of shell casings and the angle at which Felipe was shot. There is no physical evidence linking Barros to the murder. NEIP filed their brief in part to pressure the Rhode Island legislature to pass a law mandating recording of all police interrogations. Similar laws have been proposed in recent years but have failed to pass.
Troy Davis’ habeus corpus petition was not heard by the Supreme Court last week when they ended their session, and will be heard when the Court resumes in the fall. Davis is on death row for murder, even though evidence has surfaced since his conviction which raises considerable doubt as to his guilt. The Court’s decision to delay hearing his petition means Davis receives a stay on his execution through the summer, a small victory for his supporters.