Ray Towler Spent 29 Years Behind Bars for a Crime He Didn't Commit, Ohio to Pay Him $2.5 Million

Last year I wrote several posts about Ray Towler (pic) the inmate who spent 29 years behind bars for a child rape he did not commit.  Cleveland.com is reporting that Towler has settled with the state of Ohio over his wrongful imprisonment.  Something called the Controlling Board has agreed to pay Towler $2.5 million.

 Towler was sentenced to life in prison for raping an 11 year old girl.  DNA evidence obtained with the assistance of the Ohio Innocence Project.

Frontline: The Execution of Cameron Todd Willingham Examined

Mike Hale at the New York Times reviews the Frontline documentary on the Cameron Todd Willingham execution, the so-called forensic science, and other issues that scream out in the aftermath of this fine piece of Texas "justice."  As both the NYT review and the Frontline episode, “Death by Fire,” tonight, make clear, it isn't over. 

What's Wrong With the Justice System?

Mike Thomas at the Orlando Sentinel has this story of disparate treatment in Florida's system of justice that should outrage anyone who cares about justice.

"Dr. David Mackey (pic, left), the former chief of staff at Winter Park Hospital, hired a hit man to kill a business partner who cheated him. It was captured on videotape. Yet Mackey never saw the inside of a jail cell for that crime.


Malenne Joseph (pic with her children, above) a poor and deeply religious immigrant from Haiti, was arrested for vandalizing a home. She did not do it. Yet she sat in a jail cell for three months, praying to be returned to her young children, as the State Attorney's Office sat on information that proved her innocence.   Welcome to law and order in the Ninth Judicial Circuit.

Dr. Mackey was arrested in 2003 after the hit man he hired turned out to be an undercover cop.  'If I could kill this guy and get away with it, I would,' Mackey told him.  Possible penalties ranged up to life in prison.

But Mackey hardly needed defense counsel, as prosecutors and the judge rushed to his defense.  Assistant State Attorney Bill Vose said that  'sending a person of Dr. Mackey's stature for this offense away to prison would certainly not be justice.'

Judge Bob Wattles seemed to agree.

'I don't believe this is the end of you practicing medicine,' he told Mackey.  'You're a tremendous asset. I'm not going to waste that.'
Mackey got probation.

'All I can say,' said Bill Vose, 'is there is not two systems of justice in the cases I prosecute, and I manage all the prosecutors in the office, and we do our best to make sure that doesn't happen.'
Malenne certainly lacked Dr. Mackey's stature.

She was 29, poor and worked menial jobs. And it was her misfortune to be black and speak with an accent — because that vague description also fit a woman hired by a contractor in 2007 to paint the inside of a house.  The contractor did not pay her. Angry, the woman splashed paint over the interior of the house.

Malenne Joseph was not a painter. She never set foot in the house. She never met any of these people.  But that didn't matter once Orlando police Detective Jose Varela was on the case.  The contractor gave Varela the painter's cell-phone number. He dialed it and got a woman named  'Marlene' who confessed to the crime but would not come down to the police station.  Varela never traced the cell-phone number to see whom it was registered to. Varela had another clue.

He told prosecutors that the owner of the house gave him the tag number of a vehicle that she saw the painter driving. And Varela said he traced that tag to Malenne or a relative.  In fact, the owner of the house had said she saw a black man driving a truck slowly in her neighborhood and got suspicious — so she gave the tag number to Varela.  The truck belonged to a black man with the last name of Joseph. Apparently, Varela then went fishing through motor-vehicle records until he came up with a black woman with the last name of Joseph — Malenne Joseph.

Varela got a photocopy of her drivers-license picture and showed it to the owner of the house and her sister. A more conscientious detective would have put that picture in with other pictures to see whether the women could pick out Malenne.  He did not. And, not surprisingly, the two women identified Malenne as the painter. This happens so often there are studies about it. Witness identifications are the most unreliable evidence, especially when white victims are identifying black suspects. Cops know what they are doing. Why else would a cop be showing me this picture if she didn't do it?

The phone number wasn't linked to Malenne. The truck wasn't linked to Malenne. She wasn't picked out of a photo lineup.  None of that bothered the State Attorney's Office, which took the case to trial in June.  It also didn't seem to bother Judge Walter Komanski, who allowed — over defense objections — Varela to testify about  'Marlene's' phone confession.

The jury heard eyewitness identification and a confession. Guilty.   A pre-sentence investigation would take two months. Komanski could have released Malenne, given her lack of a record and the fact this was a nonviolent crime.  Instead, he sent her to jail.

When new lawyers took over her case from the Public Defender's Office and asked for a retrial, that cost Malenne another month in jail, almost as if she were being punished for insisting on her innocence.   She continued to sit there after her lawyers filed evidence that proved her innocence — evidence that included phone records linking the number Varela dialed to a woman named Merline, and work records that showed Malenne was working at a nursing home on two of the days she supposedly was painting.

She continued sitting after Sentinel reporter Anthony Colarossi reported that evidence on the front page.

'The State will NOT reconsider it's [sic] position on the defendant being released…' prosecutor Mexcye Roberts wrote defense attorneys on Sept. 10.

The State Attorney's Office, so anxious to keep an obviously guilty Dr. Mackey out of jail, was set on keeping an obviously innocent Malenne Joseph in jail. But faced with the overwhelming evidence, it finally relented and set her free Sept. 15."
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Cameron Todd Willingham Update--Texas Angels of Death

The Dallas Morning News updates its reports on Cameron Todd Willingham the Texas man wrongly convicted and executed for arson murder of his children.  The District Attorney and Governor Rick Perry's continue their machinations in this appalling case of Texas Republic-sanctioned murder.

Actual Innocence--Practical Advice: Don't Get Arrested In Texas

The Bad Lawyer does not give legal advice, but here's a tip (one that should be obvious to anyone who follows crime and law blogs): do not get arrested in Texas.  Actual innocence will not save you as once again we see from this Associated Press account:

Through a sign-language interpreter at the Dallas County Jail, Stephen Brodie (pic)cops to all sorts of crimes save the one that put him behind bars for 10 years: sexual assault of a 5-year-old girl. He insists he is innocent, and there's support for his claim.

A fingerprint at the crime scene matches another man convicted in the sexual assault of a child. Brodie's confession came during 18 hours of questioning and included admissions to fictitious crimes made up by investigators to test his credibility. Also, Brodie is deaf and doesn't speak clearly, but police didn't use an interpreter for about half of their interviews.

'I want people to know that I'm not a bad person,' said Brodie, 38, straining to be understood as he signed and spoke in a recent interview. 'I want to be a law-abiding citizen.'

He soon may get the chance. The Dallas County District Attorney's office has a unit that focuses on possible exoneration cases, and it is investigating whether Brodie is innocent. His new attorney, Michelle Moore, is a public defender known for helping to free the wrongly convicted. She acknowledged she is close to finishing key documents seeking his release.

'If they find me not guilty and I'm exonerated,' said Brodie, 'I'm getting out of Texas.'"
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Good plan! 

By the way, major hat tip to the KC Crime Blog for both the story and the observation about the wisdom of being arrested in Texas.

Florida Has a Good Idea--Let's Figure Out Why We are Jailing Innocent Floridians?

The Orlando Sentinel has an encouraging report on the steps taken by the Florida Supreme Court in response to Florida's justice system failures resulting in the prosecutions and incarceration of many innocent Floridians.  Florida is convening a commission and providing funding to look at processes and procedures for a top to bottom look at the Florida criminal justice system.  A Bad Lawyer might think that it makes sense as a matter of due process, social justice, maybe even morality, that 49 other jurisdictions follow suit.

Michael Ray VonAllman Is Not a Rapist

For another stunning account of actual innocence and "justice" misfiring, don't miss the Louisville Courier-Journal story of Michael Ray VonAllman's eleven years behind bars for a rape he did not commit.   The details of this miscarriage of justice are well-told by Jason Riley, and I will not detract from the narrative by abstracting from it.  It should be read in its entirety.

What I find moving in these innocence project examples is the freedom from bitterness these men and women have after decades, in some cases, spent behind bars after wrongful conviction.  More importantly, look at how "evidence" of guilt is frequently wrong, eyewiteness testimony is unrelaible, and what seems damning proof is distorted by prosecutors, law enforcement, judges, and jurors through bias.

Ray Towler Update

The Daily Beast has a remarkable story on this remarkable man.  Don't miss the follow up.  From the darkest place you can be to breathe free.  I love the pic, . . . it says it all!

Innocence

My February 2 post on Chicago priest Father Przybylo continues to draw posts, the most recent comment was from an anonymous Catholic who suggeted that sinces it's LENT we should withdraw "judgment" of Father Przybylo and contmeplate whether there might be a false allegation.  I responded to the comment, and I won't repeat the remark I left there, if you're interested click on the link.

However I did note that this Blawg has repeatedly highlighted situations where people have not only been falsely accused of crimes, they have been convicted, incarcerated and in at least one instance executed in Texas, (see the posts relating to Cameron Todd Willingham.) 

A friend of mine is or rather I should was a school teacher here in OurTwon,a nd he was accused of "kidnapping and rape," and after endless delays and continuances, his case wen tot trial last week.  I knew "Ryan" because like me he's a veteran and like me he went to school on the GI Bill and worked his ass off while he got his degree.  During the several years prior to his indictment he earned a fantastic reputaton and was a rising star.  More charismatic, than good looking; I knew that he would attract attention from the girls, and before he obtained his teaching certificate we actually talked about the necessity of "maintaining boundaries."  When he was removed and accused, I was devastated.  I can only imagine the horror he felt; my efforts to reach him were unavailing as he disappeared off the radar.

Shortly before Ryan's trial my daughter's friend, "Sally," received a subpoena to testify for the prosecution. Sally retained the Blonde Super Lawyer to represent her, because as Sally reported to the BSL, she didn't have any information; and Ryan had always been appropriate with her even though Sally liked to talk to him after school.  When the prosecutor heard from the BSL, he decided he didn't need Sally's testimony afterall.  Last week Ryan went to trial and he was acquitted of all charges.  Ryan was actually innocent. 

Can Ryan revive his moribund teaching career?  Probably not.  It's hard for schools to reinstate even "falsely accused" former teachers in light of potential liability.  I pray my friend Ryan can make peace with this awful experience and find something deeply satisfying in life. 

In this world, all things are possible.  Do false allegations get made, get prosecuted, result in conviction, end up in incarceration?  Yep.

Texas Death Penalty Procedures Declared Unconstitutional

My pal, Chris pointed out a brief item in todays, NYT that led me to track down a more compehensive report at the Houston Chronicle website; the guy in the pic is Harris County Judge Kevin Fine.  In a rarely seen act of political profile in courage this good judge declared the procedures around the Texas Death Penalty unconstitutional.  The excerpt is from Brian Roger's article at the Chronicle:

"When asked direct questions Thursday about his ruling, Fine said he was declaring the death penalty unconstitutional because he believes innocent people have been executed.  Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.

'As a practical matter, if you strike down that statute, you're not necessarily striking down ‘the death penalty' but you're striking down the way we try death penalty cases,' said Bill Exley, an assistant Harris County district attorney. 'So the effect is that you can't have a death penalty because you can't get there.'

Exley and Assistant District Attorney Kari Allen are pursuing the death penalty for Green in the robbery and fatal shooting of Huong Thien Nguyen, 34, on June 16, 2008. Police said she and her sister, My Huong Nguyen, had returned to their home in the 6700 block of Bellaire Gardens about 1:20 a.m. when Green approached them, demanded money and shot them.Green's lawyers, Bob Loper and Casey Keirnan, heralded the decision as the 'beginning of the end of the death penalty.'

'We don't necessarily think we're the ones who will make this happen. But it certainly is a chink in their armor. This is going to raise everyone's consciousness,' Loper said. 'It appears as though it's going to go up on appeal. It certainly has people talking.'

If Fine's ruling were to be upheld, it effectively would take away the option of the death penalty in Green's case.Most legal commentators said the ruling wouldn't stand up at the appellate level.
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Can you believe it, a Texas Judge who doesn't want to be reelected!

Wow, someone with judicial power in Texas who actually gives a damn whether innocent people get executed.  I'm pinching myself.

God bless, Judge Fine!

Govenor Perry Won't Issue a Posthumous Pardon For An Innocent Man

It must gall the shit out of Govenor Rick Perry that he has to hear this bullshit about posthumous pardons of innocent inmates.  I mean afterall doesn't the Texas Attorney General have anything better to do than to stir the pot?

The Dallas Morning News has this report about the case of Timothy Cole who went to prison in Texas and died there for a crime he didn't commit.  Cole's family wants their loved-one pardoned posthumously and the Govenor says he won't even think about it because of a 45 year old opinion from the AG's office.  Now the current AG Abbott, says that the law has evolved (even in Texas?!)

This is from Christy Hope's excellent look at the controversy:

"Cole was the first person in Texas exonerated by DNA evidence posthumously.  A state court judge, looking DNA evidence and another inmate’s confession, found conclusively that Cole did not commit the 1985 rape for which he was convicted. He was a student in Lubbock at the time. Cole, who grew up in Fort Worth where most of his family still lives, died of asthma in prison in 1999.

'It’s the final hurdle in a marathon race that we’ve been in for a quarter century to clear Tim’s name,' his brother Cory Sessions said. His family, with the court’s ruling of innocence, was already eligible for state recompense, which amounts to just over $1 million based on his 13 years of wrongful incarceration.  Sessions said that the family hasn’t put in a claim for the money yet because there was still work to be done. 'That’s not what we were after,' he said.  In letters Cole wrote to family members from prison, he repeated that he wanted three things: vindication, exoneration and a full pardon.  'Tim’s name was soiled by the state and we want it cleaned by the state,' Sessions said."

And Govenor Perry won't do it.  Consistent. Consistently a shithead.

Another version of the story is at USA Today.

California Gets Ready To Kill Kevin Cooper and He May Be Innocent!

California is planning to kill Kevin Cooper, (pic) and once again we are confronted with the dilemma that he may be "actually innocent."

The LA Times has this story about Mr. Cooper and his long, crazy road to gurney. 

The murders Kevin Cooper stands convicted for are horrible:  4 members of the Chino Hills, California Ryan family all stabbed or hacked to death allegedly by this one man; but there is a some compelling reasons to believe that he may not have been the perpetrator or perpetrators.  Astonishingly, 11 federal judges and five of he original jurors are trying to stop the execution, here's what the LAT has to say:

"[Twenty-six] years [after Kevin Cooper's conviction], the legal hurdles to [his] execution have been surmounted. With the Supreme Court's decision last month not to review his claim of innocence, the 52-year-old becomes only the sixth of California's 697 death row prisoners cleared for lethal injection once a federal judge approves revised procedures.


But the exhaustion of Cooper's legal recourse hasn't silenced supporters who claim he was the victim of corrupt law enforcement and stunning bad luck.

The opponents of capital punishment who have long clung to puzzling clues and hints of police misconduct have been joined by a prison warden, 11 federal judges and five jurors now bothered by allegations that Cooper was framed.

'The State of California may be about to execute an innocent man,' Judge William A. Fletcher of the U.S. 9th Circuit Court of Appeals wrote in an impassioned dissent from the last review upholding Cooper's conviction. Deputies, he said, 'manipulated and planted evidence in order to convict Cooper' and 'discounted, disregarded, and discarded evidence pointing to other killers.'"

This case is so disturbing. The positions--of those in favor of moving forward with the execution of Cooper and those opposed to his execution--are at polar extremes.  The perpetrator(s) of Ryan family murders committed heinous acts, but was it Kevin Cooper?   There is a lot of reason to believe the crimes were committed by several men, uh the surviving child originally indicated three white men, (revenge killings by a drug gang on the wrong house?)  So why is California intent on killing Cooper? 

I guess, somebody's gonna get it and it might as well be this crazy, black guy!

35 Years for a Crime He Didn't Commit!

In 1974, James Bain, then 19, went to prison for kidnapping and raping a 9 year old boy.  James Bain didn't do it.  Today he was released from a Florida prison following DNA proof that he could not have committed the crime.

Please keep two thoughts together when thinking about Mr. Bain--not that many years ago, the abutting state of Georgia still put rapists, particularly black men to death for rape; secondly, there is at least one US Supreme Court justice who thinks actual innocence should excuse a death row inmate from his date with the executioner. 

James Bain spent 35 years in prison, according to news reports he isnot angry.  That's ok, James, I'm angry for you.  Have a very good life.

Source:  http://www.naplesnews.com/news/2009/dec/17/florida-man-exonerated-after-35-years-behind-bars/

Actual Innocence or Actual Death

One of the first posts to this Blawg was prompted by the remarks of Supreme Asshat 'Nino Scalia, to the effect:  that,  "[the Supreme] court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

This stunning statement came in dissent to the Supreme Court order remanding the case of Georgia prisoner, Troy Davis who was awaiting imminent execution despite compelling evidence of "actual innocence."   Yesterday, The New York Times reported on the declaration in the State Supreme Court of New York for Manhattan that Justice John Cataldo declared Fernando Bermudez "actually innocent" in overturning a conviction for murder.  Mr. Cataldo spent 18 years in prison for a crime he in fact did not commit.   The judgment of Justice Cataldo hastens the day that jurisprudence in this country will take cognizance of actual innocence as a substantive defense to being put to death; imagine that...actual innocence!  Wake up 'Nino!

On a separate track, the Ohio's official killers think they have figured out how to deal with killing people without the "3-drug cocktail" problem that screwed up the September scheduled killing of Romell Broom (pictured at with the next guy Ohio intends to kill.)  The new 1-drug method is how they kill dogs and cats, and is "more humane" according to the official killers for Ohio.


For more on our "humanity" see:  http://blog.cleveland.com/metro/2009/11/new_lethal_injection_policies.html
and http://www.nytimes.com/2009/11/23/nyregion/23innocence.html?_r=1&ref=nyregion

Oh, and in Iran, the official killers, cut to the chase--your politics will suffice to get you the death penalty; and, in both Iran and Somalia, your alleged sexual activity.  Oh they don't care about actual innocence either. Nice company we keep.

See:  http://www.nytimes.com/2009/11/23/world/middleeast/23iran.html?scp=1&sq=iran%20executions%20&st=cse and ://www.nytimes.com/2009/10/24/world/africa/24somalia.html?scp=1&sq=somalia%20stoning&st=cse