[Deathpenalty]death penalty news----TEXAS, VA., VER., USA, CALIF.
rhalperi at mail.smu.edu
Sun Jul 10 22:53:22 CDT 2005
Courts aim to set execution standard
For 3 days, Elkie Lee Taylor sat beside his attorney in a Tarrant County
courtroom as psychologists debated whether he was smart enough to die for
the 1993 robbery-slaying of a Fort Worth man.
Taylor shuffled a yellow legal pad, but his writing skills were limited,
and he didn't take notes. He looked at copies of his statements to police,
but he couldn't read them.
"He did pay attention to the testimony," said his attorney, James
Rasmussen of Wichita Falls. "Mentally retarded people are not like tables
"He observes things that you don't, but his depth of understanding is
Experts agree that Taylor is mildly retarded, with an IQ identified since
childhood as below 70, at least 20 points below what is considered the low
end of the normal range.
At issue, however, is whether Taylor's social and living skills are
sufficiently advanced to make him eligible for the death penalty in the
killing of Otis Flake, a 65-year-old Korean War veteran.
It's an issue that Texas courts and lawmakers have struggled with since
2002, when the U.S. Supreme Court banned execution of the mentally
retarded but did not define competency or set guidelines for courts to
"I'm not saying what he did was right," said Taylor's sister, Sarah
Rogers, who traveled from Mississippi to testify at her brother's hearing
in late June.
"If he did anything wrong, he ought to be punished," Rogers said. "But I
don't believe he ought to get the death penalty. I'm putting this in God's
Hugh Flake, the victim's brother, said it's "a travesty" that Taylor is
being given a chance to avoid the death penalty.
"I understand that the courts want to cross the t's and dot the i's so you
can't come back and say you didn't give him a fair hearing," said Flake, a
retired California educator. "But I do feel it's a waste. This guy has
been living off the state too long."
State District Judge Everett Young is expected to decide in coming months
whether Taylor should be spared the death penalty. Young has already
concluded once before that he should not.
Taylor is 1 of 19 Texas death row inmates whose cases were set aside after
the Supreme Court's ruling in the case of Daryl Renard Atkins, a mentally
retarded man who had been scheduled to die in Virginia.
At least 33 other death row inmates whose cases were under appeal at the
time of the Atkins ruling have been referred to courts for mental health
Taylor, a crack addict with a prior burglary conviction, was sentenced to
die for strangling Flake while ransacking Flake's southeast Fort Worth
home in April 1993.
Taylor had burglarized Flake's home before, during a 1991 spree that sent
him to prison the 1st time. Witnesses said he had vowed revenge on Flake's
family for petitioning the court to keep him behind bars -- and pledged
that his next prison term would be for something more than burglary.
He kept both promises.
Police say Taylor and a partner, Darryl Birdow, broke into Flake's home,
bound and gagged him, rifled his belongings for jewelry and cash and, at
some point, strangled him with 2 wire coat hangers.
The 2 men propped open Flake's door so they could return to retrieve more
items to sell for crack. Taylor was spotted leaving the house 3 days later
and was arrested after leading police on a circuitous, 120-mile chase that
ended in Waco when an officer shot out the tires of the stolen semitrailer
truck he was driving.
In considering whether to hand down the death penalty, jurors were told
about the slaying 11 days earlier of Ramon Carrillo, an 87-year-old
Mexican immigrant who was beaten and strangled when Taylor and Birdow
burglarized his house for the third time.
Taylor had bragged to neighbors about both killings. He later acknowledged
the burglaries to police but blamed Birdow for the killings.
Birdow pleaded guilty to aggravated robbery in the Flake case and was
sentenced to life in prison. Neither man stood trial in Carrillo's
Taylor was evaluated and determined to be competent, said his trial
attorney, Louis Sturns, who testified at last month's hearing.
The Supreme Court's ruling left it up to the states to decide who is
mentally retarded and therefor exempt from the death penalty.
"They left everyone hanging," said Shannon Edmonds, an attorney for the
Texas District and County Attorneys Association. "They identified the most
important question, but they didn't answer it."
Texas is 1 of 12 states that has not passed legislation to comply with the
Atkins ruling, which has left the Texas Court of Criminal Appeals to set
Defense attorneys say the state court's rulings have circumvented the
intent of the Supreme Court.
The requirements have been set so high that few inmates will qualify, said
Andrea Keilen, deputy director in Austin for the Texas Defender Service, a
nonprofit legal defense group.
The Texas definitions were set forth in a February 2004 opinion upholding
the death sentence of Jose Briseo for the 1991 slaying of Dimmitt County
Sheriff Ben Murray.
Briseo, a career criminal, shot Murray with the sheriff's own pistol and
hid money he took from the home. He later helped plan a successful
Justice Cathy Cochran, who wrote the appellate court's majority opinion,
cited those details as evidence of Briseo's ability to formulate plans and
adapt to his surroundings.
Texas judges have used the Briseo guidelines to decide mental retardation
issues in other death row cases. Most have found that the inmates should
not be spared.
The appellate judges who wrote the guidelines, however, appear to be
struggling with the issue. In a ruling last month in another case, Cochran
expressed doubts about the Supreme Court's Atkins ruling and the resulting
"As schoolchildren, we were taught that King Solomon weighed all of the
evidence before him and made a reasoned decision; Nero divined merit on
whim and just pointed his thumb up or down," Cochran wrote.
"I fear that, under Atkins ... we are moving farther from King Solomon and
closer to Nero."
In September, the district judge relied on the Briseo guidelines in
recommending that Taylor not be spared the death penalty.
The recommendation was based on sworn statements submitted to the court.
The recent hearing was scheduled after an appellate court ordered the
judge to consider the evidence through direct testimony.
The 3-day hearing was filled with often-conflicting opinions from experts.
Rogers, 1 of 3 Taylor sisters who attended the hearing, and 2 defense
psychologists testified that the 43-year-old man had been "slow" mentally
since he grew up in Mississippi, where he dropped out of the 6th grade at
State expert Randy Price agreed that Taylor's IQ was below 70 and that he
had been identified as mentally retarded when he was a child. But Price
said Taylor's adaptive behavior -- established by his planning, leadership
and other skills used in the robbery-murders -- allows him to overcome his
Price said Taylor's long flight from police in the 18-wheeler and his
other efforts to evade and mislead police are evidence that he does not
fall under the court guidelines for mental retardation.
Defense expert Denis Keyes disagreed. He testified that Taylor is
impulsive, "a follower" and incapable of planning 2 murders. Keyes
suggested that Birdow was the leader who came up with the plan.
Assistant District Attorney Michael Casillas said Taylor should die for
"A lot of defendants are mentally retarded but are completely morally
culpable for what they did," he said.
The judge is expected to issue a written recommendation to the appellate
court after attorneys file written legal arguments by Aug. 22.
Julie Malone, Carrillo's granddaughter, said she has mixed feelings about
whether Taylor should be executed.
"I can see where his IQ is low, but I'm still not clear whether it's
because he didn't finish school or because he had a learning disability,"
said Malone, a teacher.
"I just want to see that the justice system has done everything it's
supposed to do, whether he's executed or not."
For years Texas lawmakers have struggled unsuccessfully to set guidelines
for determining whether mentally retarded inmates should be executed.
Rep. Terry Keel, R-Austin, has repeatedly pushed a bill that would allow a
jury to consider mental retardation when deciding punishment during a
Sen. Rodney Ellis, D-Houston, has authored bills that called for a judge
to decide before trial whether a capital murder defendant is mentally
In 2001, Gov. Rick Perry vetoed a compromise bill that would have allowed
a judge to decide after conviction if a mentally retarded defendant should
"We joke here there's going to be a Texas office for cases reviewed by the
Supreme Court," said Jeremy Warren, Ellis' communications director.
"It's incumbent on the Texas Legislature to pass laws that reflect the
mandates of that court. We need to get this done now before another Texas
case is overturned and we have another black eye for the Texas criminal
Keel said he believes there is little likelihood the Legislature will pass
a law on the issue in the next 2 years, even if Perry includes it in a
It's more likely, he said, that the Court of Criminal Appeals will fashion
procedures for deciding mental retardation claims in new capital murder
cases, as it did in the Briseo case.
"Death penalty cases will not stop," said Keel, a trial attorney and
former Travis County prosecutor. "It's not unusual for courts to fashion
new procedures on appeal and the Legislature to come back and put it into
IN THE KNOW
Defining mental retardation in death penalty cases
Although definitions vary, psychologists, psychiatrists, educators and
others who diagnose mental retardation have published standards defining
it as a disability characterized by 3 major symptoms:
- Significantly subaverage general intellectual functioning. Recently,
that has been defined as an IQ of 70 or below.
- Accompanying deficits or limitations in adaptive behavior, skills or
functioning in such areas as self-care, home living, social skills,
community use, self-direction, health and safety, communication,
functional academics, leisure and work.
- An onset that originates during the developmental period. Most states,
including Texas, have defined this as age 18 or younger, although a few
states have extended it to 22, the age limit for schools to educate
mentally retarded students.
(source: Fort Worth Star Telegram)
THE SCOPE OF THE SCANDAL----Falsification of evidence can only be called
corruption. It must be stopped.
A team of lawyers and scientists has just issued its 3rd report in
connection with the scandal-plagued Houston Police Departments crime lab.
The report comes at the end of what the investigative team, headed by
Michael R. Bromwich, calls its 1st phase.
During this phase, the team spent around ninety90 days exhaustively
reconstructing the history of the lab, and the activities of its key
players. The investigators have not yet examined in detail the serology
and ballistics cases, areas where it is most likely more wrongful
convictions will be found, so the report does not yet describe in human
terms the consequences of incompetent or corrupt forensics work.
Nevertheless, what the report does say should cause Houstonians shame and
alarm. According to the investigators, the problems with the crime lab
resulted from a combination of negligence, inattention, inadequate funding
and outright corruption. The crime lab was insufficiently funded,
supervision of employees was desultory and morale among analysts was
To some extent, these characteristics are typical of many government
bureaucracies, especially bureaucracies forced to contend with irrational
budget cuts - high police officials appeared clueless about the
consequences of crime lab budget cuts, and crime lab officials had no real
independence or leverage to make the case for funding their line.
Indeed, when it comes to the issue of independence and adequate funding,
the report gives no reason to believe, without strong support from the
Mayor Bill White and the Houston City Council, these problems will not
But the most disturbing feature of the report is its identification of
what can only be called corruption. In at least four cases, involving 2
different analysts, lab employees engaged in what is known as dry-labbing.
Dry-labbing is the knowing and intentional falsification of scientific
evidence. It occurs when a scientist simply makes something up. In other
words, it is fraud, and the consequences of this fraud are that a jury may
believe that someone committed a crime, when in fact there is no
scientific evidence supporting that conclusion at all, and the real
perpetrator can evade apprehension.
So what happened to these 2 analysts? One received a minor punishment; the
other received no sanction at all. The police chief should have fired
these analysts immediately and without delay, and the Harris County
district attorney should have filed criminal charges. But neither of those
Why not? If civil service laws prevent the discharge of employees who
commit fraud, they should be changed. If District Attorney Chuck Rosenthal
could not bring charges because of some legal problem, we need to know
what it is. If he was simply unwilling to do so, an explanation should be
given. If crime lab fraud cannot be appropriately punished, it surely
cannot be deterred.
What makes the discovery of drylabbing in the first phase of the Bromwich
investigation so stunning is that it represents just the proverbial tip of
the iceberg. Vast sections of the crime lab - serology, ballistics,
toxicology, hair and fiber analysis (trace evidence) - have not yet
received serious attention from the investigators. The safe bet is that
there is much below the surface that we have yet to learn. And, in any
event, the fact that we have learned so much already is an indisputable
reason to provide the investigative team with all the resources that they
need to complete the job.
While there is much we still do not know, there are 3 points we can make
with certainty on the basis of this report:
- The 1st is that the problems in the DNA unit were multidimensional,
implicating the former mayors and city council members who did not
adequately fund the lab, former police chiefs who paid inadequate
attention to the lab, current and former laboratory supervisors, and
current and former laboratory technicians. The report tells us, therefore,
that to fix the problems in the lab, each of those dimensions must be
addressed. It is a big job, and an expensive one.
- 2nd, and most disconcertingly, we know with absolute certainty that not
all the problems have been innocent mistakes. Lab technicians have lied,
and their supervisors, upon learning of these lies, have done nothing.
This fact alone raises disturbing yet important questions, like: Did the
prosecutors who used this false testimony know that they were obtaining
convictions on the basis of fraud? If they did not, why didn't they? If
they did, why weren't they terminated?
There is plenty of scientific illiteracy among lawyers - defense lawyers,
prosecutors and judges - that contributes to the persistence of unreliable
and fraudulent forensic science. When a forensic and legal disaster is of
the dimensions the Bromwich team has found so far at the HPD crime lab, it
is unlikely that any group within the criminal justice system will
ultimately be faultless.
Except the victims: the wrongly convicted; the crime victims whose
assailants were never apprehended because of crime lab failures; and, of
course, the citizens of Harris County who are entitled to have confidence
that their system of justice can perform the fundamentals of criminal
- So, the 3rd and final point to make about the Bromwich report is there
is still much to be done and it is essential that Mayor White and City
Council spare no expense in getting to the bottom of this enduring
scandal. The public's safety depends on it.
(source: Barry Scheck is a professor of law at Cardozo Law School, Yeshiva
University, the co-founder of the Innocence Project, and a member of the
New York State Commission on Forensic Science. He can be e-mailed at
innocenceproject.org. David Dow is the Distinguished University Professor
at the University of Houston Law Center and the founder and director of
the Texas Innocence Network. He can be e-mailed at ddow at uh.edu; Houston
Commute This Sentence
Unless the U.S. Supreme Court or Gov. Mark Warner intervenes, Virginia
will put to death tomorrow night a man named Robin Lovitt for a murder at
a pool hall in Arlington 7 years ago. The evidence that Mr. Lovitt stabbed
Clayton Dicks to death in a late-night robbery is strong enough to support
his conviction. But it isn't overwhelming, and it should not be strong
enough to support his execution -- particularly because the state has
destroyed all of the physical evidence that might be ripe now for
post-conviction DNA testing. This fact has not moved the courts so far.
But Mr. Warner ought not permit execution of a man who has steadfastly
maintained his innocence when the state itself has unlawfully made the
final assessment of that claim impossible.
Virginia law obligates it to preserve physical evidence. This case is a
good illustration of why. DNA testing at the time of Mr. Lovitt's trial
was inconclusive; testing now might be more informative. Yet an Arlington
court clerk -- over the objections of 2 subordinates -- arranged for the
destruction of nearly all of the exhibits in Mr. Lovitt's trial. This was
not, the courts have ruled, an effort to sabotage his case, just a
good-faith administrative foul-up.
This distinction is potentially pivotal in federal court review of Mr.
Lovitt's conviction and death sentence. It shouldn't be, however, for a
governor considering commuting his sentence to life in prison without
parole. Exactly why Mr. Lovitt has been blocked from precisely the sort of
retroactive testing Virginia law seeks to ensure doesn't really matter,
Even were the state's evidence ironclad, this isn't the sort of case that
typically produces a death sentence. Under the state's own theory of the
case, Mr. Lovitt killed Mr. Dicks -- a friend and former co-worker --
after being surprised while trying to steal the pool hall's cash box. It
is a horrible crime, to be sure, but Mr. Lovitt is not the kind of
worst-of-the-worst for whom the death penalty is normally reserved.
An execution in Mr. Lovitt's case would be unusually harsh for a crime of
this type. It involves a risk, however small, of a grave injustice where
the state itself has frustrated the legal means of averting that
injustice. Mr. Warner should not let the commonwealth take that risk.
(source: Editorial, Washington Post)
Lovitt evidence is still an issue----Killer faces execution, but expert
cites way to anaylze data in case
Unless the U.S. Supreme Court or Gov. Mark R. Warner intervene, Robin
Lovitt will be executed by injection Monday night for a 1998 murder in
Lovitt's lawyers have appealed to the high court, and on Thursday they
filed a clemency petition with Warner's office asking that Lovitt's death
sentence be commuted to life, in part because evidence has been destroyed
and cannot be subjected to new DNA testing.
Meanwhile, William C. Thompson, a professor of criminology, law and
society and a DNA expert at the University of California, Irvine, said
that while the evidence has been destroyed, there is still a way that
earlier, inconclusive DNA testing might be clarified.
The state lab should still have computer files from the original DNA
results and those electronic files could be re-examined, Thomson said
In recent years, new techniques have been developed for the analysis of
such data, analogous to the enhancement of a digital photo by a computer
program, Thompson said.
"I can't say for sure that that analysis would clarify matters, but there
is certainly a good chance that it might," he said. "It just seems to me
as a citizen that is something you would want to know before proceeding
with an execution."
However, a June 21 request for the electronic data by Lovitt's lawyers was
Ellen Qualls, spokeswoman for Warner, said yesterday it is the governor's
position that a recent review by five independent scientists that found no
problems with the state lab's work in the Lovitt case is sufficient.
In a letter yesterday, one of the scientists, Arthur J. Eisenberg, told
the governor's office: "Please be advised that all 5 members of the
scientific review team have now completed our review of the [state lab]
file, data and laboratory notes involved in this case.
"We conclude that the case contains no technical procedural errors or
deviations from accepted protocol that may have substantially affected the
integrity of the results in that case. Similarly, in our view, the case
contains no interpretive conclusions that are not scientifically
supported," wrote Eisenberg.
The scientists are reviewing more than 160 cases handled by the state lab
as part of a study ordered by Warner after an independent audit sharply
criticized the crime lab's performance.
Lovitt, 41, was on parole when he was arrested for the Nov. 18, 1998,
capital murder of Clayton Dicks, an Arlington pool-hall manager stabbed 6
times in his chest and back with scissors.
According to the state, DNA played a marginal role in Lovitt's
prosecution. Lovitt's lawyers disagree and say retesting might cast doubt
on his guilt.
The evidence in his trial included three state DNA tests. One identified
Dicks' DNA on the murder weapon, a pair of scissors. The other two tests,
on Lovitt's jacket and on another part of the scissors, were inconclusive.
Dicks was the only employee at the pool hall about 3 a.m. A patron who
entered around 3:25 a.m. saw a man behind the bar stab another man 6 or
seven times. The witness later said he was "80 % certain" that Lovitt had
done the stabbing.
Police discovered a pair of scissors missing from the pool hall in a
wooded area nearby. A pool hall employee testified that Lovitt, who once
worked there, had helped her open the cash register months earlier by
wedging a pair of scissors into it.
On the same morning of the murder, Lovitt went to the home of a cousin who
lived near the pool hall. Lovitt had the drawer from the pool hall cash
register. His cousin opened the drawer and they divided the money.
After Lovitt was arrested and put in jail, he told another inmate that he
saw a Hispanic man stabbing Dicks and that he spotted the cash drawer on
the floor, took it and ran. But he later told the inmate he stabbed Dicks.
In papers filed with the U.S. Supreme Court, the Virginia attorney
general's office urged the justices not to consider Lovitt's appeal,
noting the high court has already turned down his appeals twice.
The evidence in Lovitt's case was erroneously destroyed by the Arlington
Circuit Court clerk's office just weeks after a new law went into effect
requiring the preservation of such evidence.
If executed, Lovitt's would be the 1st execution in Virginia this year and
the 95th in the state since the U.S. Supreme Court allowed the death
penalty to resume in 1976.
(source: Richmond Times-Dispatch, July 9)
Death penalty makes murderers of us, too
Donald Fell's defense team is making the case for mercy this week,
balancing the brutality of his childhood against the brutality of his
actions as an adult, making me wonder if we are losing sight of why we
have opposed the death penalty in Vermont in the first place.
When we embrace the idea that someone deserves to die we lower our
collective humanity to that of the criminal. We become the murderers. Not
executing Donald King does not lessen the severity of his crime, nor does
it lessen the value of Terry King's life (or the other two people he
murdered). As long as we have the ability as a society to lock up violent
criminals and throw away the key when necessary there is no need for moral
justification for the death penalty.
While it's difficult to imagine a jury of Fell's peers, the reality is
that he is not being judged by one, for a true cross-section of Vermonters
would have rightfully included persons opposed to the death penalty in any
circumstances. Instead he is being judged by a jury screened by federal
prosecutors, approved only if they support the death penalty. Let us not
allow this dark cloud of Texas-style "moral clarity" to descend upon the
civil society we embrace here in Vermont.
(source: Letter, Barre Montpelier Times Argus)
Stop this Bill
Congress has a novel response to the rash of prisoners over the past few
years who have been exonerated of capital crimes after being tried and
convicted: Keep similar cases out of court. Both chambers of the national
legislature are quietly moving a particularly ugly piece of legislation
designed to gut the legal means by which prisoners prove their innocence.
Habeas corpus is the age-old legal process by which federal courts review
the legality of detentions. In the modern era, it has been the pivotal
vehicle through which those on death row or serving long sentences in
prison can challenge their state-court convictions. Congress in 1996
rolled back habeas review considerably; federal courts have similarly
shown greater deference -- often too much deference -- to flawed state
proceedings. But the so-called Streamlined Procedures Act of 2005 takes
the evisceration of habeas review, particularly in capital cases, to a
whole new level. It should not become law.
For a great many capital cases, the bill would eliminate federal review
entirely. Federal courts would be unable to review almost all capital
convictions from states certified by the Justice Department as providing
competent counsel to convicts to challenge their convictions under state
procedures. Although the bill, versions of which differ slightly between
the chambers, provides a purported exception for cases in which new
evidence completely undermines a conviction, this is drawn so narrowly
that it is likely to be useless -- even in identifying cases of actual
It gets worse. The bill, pushed by Rep. Daniel E. Lungren (R-Calif.) in
the House and Jon Kyl (R-Ariz.) in the Senate, would impose onerous new
procedural hurdles on inmates seeking federal review -- those, that is,
whom it doesn't bar from court altogether. It would bar the courts from
considering key issues raised by those cases and insulate most capital
sentencing from federal scrutiny. It also would dictate arbitrary
timetables for federal appeals courts to resolve habeas cases. This would
be a dramatic change in federal law -- and entirely for the worse.
The legislation would be simply laughable, except that it has alarming
momentum. A House subcommittee held a hearing recently, and the Senate
Judiciary Committee is scheduled to hold one and then mark up the bill
this week. Both Judiciary Committee chairmen surely know better. House
Judiciary Chairman F. James Sensenbrenner Jr. (R-Wis.), after all, has
fought for better funding and training for capital defense lawyers. And
Senate Judiciary Chairman Arlen Specter (R-Pa.) has long opposed efforts
to strip federal courts of jurisdiction over critical subjects. Neither
has yet taken a public position on the bill. Each needs to take a careful
It is no exaggeration to say that if this bill becomes law, it will
consign innocent people to long-term incarceration or death.
(source: Editorial, Washington Post)
Will Michael Morales Be The Next To Lose the Death Penalty Lottery?
2 death penalty cases are tried in the same county, at the same time, and
are marred by the same illegal conduct by the prosecutor. Both involve
false testimony by informant witnesses to whom the prosecutors gave
valuable benefits. Why is one defendant getting a new trial and the other
rushing towards a date with death?
On March 1, 2005, the Ninth Circuit Court of Appeals denied Michael
Morales petition for an en banc hearing, leaving only one petition for
certiorari to the U.S. Supreme Court standing between Morales and an
execution date. 6 days later, the same court reversed the death sentence
and conviction of Blufford Hayes because the prosecutor knowingly
presented the false testimony of an informant witness. The San Joaquin
County District Attorneys Office tried both Hayes and Morales within the
same year. The prosecutor in the Morales case committed the same
misconduct as his colleague in the Hayes case.
We now know that the risk of wrongful convictions is greatly increased by
the double-headed hydra of illegal conduct by prosecutors coupled with
their reliance on informant witnesses who have something to gain from
their testimony. San Francisco Magazine recently reported that "[s]ince
1989, at least 200 inmates have been released from California prisons
after courts found that they were unjustly convicted."
(http://www.sanfran.com/archives/view_story/200/, viewed March 2, 2005.)
Of these cases, "50 percent entailed misconduct or serious error by
prosecutors at trial[, . . . and] 20 percent involved false testimony by
an informant at trial." (Ibid.) The Illinois Commission on Capital
Punishment found that of 13 death row exonerations, 6 involved false
testimony by jailhouse informants or accomplice informants.
(http://www.idoc.state.il.us/ccp/ccp/reports/index.html, viewed March 17,
Indeed, the abuse of jailhouse informants and the ease with which
informants may fabricate "confessions" has been well documented in the
largest county in California. A Los Angeles County Grand Jury report
concluded that from 1979 to 1989, the Los Angeles County District Attorney
"failed to fulfill the ethical responsibilities required of a public
prosecutor by its deliberate and informed declination to take the action
necessary to curtail the misuse of jail house informant testimony."
(Report of the 1989-1990 Los Angeles County Grand Jury, Investigating the
Involvement of Jail House Informants in the Criminal Justice System in Los
Angeles County, p. 6.)
What has only recently come to light is the prevalence of this problem in
death penalty cases in San Joaquin County during the 1980s. In Blufford
Hayes case, the prosecutor, from the San Joaquin County District Attorneys
office, entered into a secret deal with the attorney representing an
informant witness, agreeing to dismiss felony charges pending against the
witness. The prosecutor then hid the deal from Hayes attorneys, the court,
and the jury. At trial, the prosecutor elicited false testimony from the
witness to the effect that he was receiving nothing in exchange for his
testimony. The prosecutor not only failed to correct this false testimony,
he affirmatively represented to the court that there was no deal, going so
far as to argue to the jury that this demonstrated the witnesss
The prosecutor consistently concealed the truth, writing a letter to the
California Supreme Court during Hayes appeal reaffirming that he never
made "a specific offer of any particular disposition" to the informant. It
was not until 1997, 16 years after Blufford Hayes was convicted and
sentenced to death, that the prosecutor finally acknowledged the existence
of the deal, and then only because he was forced to testify in another San
Joaquin County proceeding and was confronted with evidence documenting the
secret deal. Hayes had to wait 8 more years for the court to review and
reverse his conviction.
Michael Morales is still waiting and may be running out of time. The
Morales case prominently featured the testimony of a jailhouse informant
who claimed that Morales had confessed to him. This purported confession
was the only evidence to support the special circumstance; it was crucial
to securing Morales death sentence.
It was later discovered that, prior to trial, the prosecutor, also from
the San Joaquin County District Attorney's office, entered into a secret
agreement with jailhouse informant Bruce Samuelson. In exchange for
Samuelsons testimony, the prosecutor agreed to dismiss four of six felony
charges pending against Samuelson in another case. The prosecutor also
secured court approval of a minimal county jail sentence for Samuelson.
The prosecutor then hid this deal from Morales attorney, the judge, and
the jury. Even more disturbing, the prosecutor promised Samuelson these
benefits before Morales allegedly confessed to him.
When asked on the stand whether he had received anything in return for his
testimony, Samuelson falsely stated that the prosecutor would only be
making a "recommendation" on his behalf. The prosecutor let this false
testimony stand in front of the jury, without correction or clarification.
Beyond covering-up the deal, the circumstances surrounding Morales
so-called confession to Samuelson are questionable at best. Samuelson was
never housed in the same jail cell with Morales. Given the physical layout
of the jail, in order for Morales to confess to Samuelson, other inmates
would have heard the conversation. Yet, no other inmates ever corroborated
Samuelsons story. Inmates also knew that guards monitored all of their
conversations with an intercom system.
In 1993, the California Attorney Generals office confronted Samuelson with
these facts. Samuelson stated that he and Morales spoke together in
Spanish so others would not listen in. Unbeknownst to Samuelson, however,
Morales does not speak Spanish. His parents do not speak Spanish. He is a
fourth generation American.
An FBI expert who examined Samuelsons polygraph test years later concluded
that the test unequivocally established that Samuelson was lying when he
said Morales confessed. But the polygraph report that the prosecutor gave
Morales attorneys at the time of the trial claimed that Samuelson was
telling the truth.
Both the California Supreme Court and the U.S. Court of Appeals relied on
Samuelsons testimony to uphold Morales death sentence.
Yet, every organization and commission to investigate the problem of
wrongful convictions has concluded that this is just the type of testimony
that should not be relied on in death penalty cases. The Constitution
Project, a bi-partisan organization including former prosecutors and
judges, observed that informants "frequently have the opportunity and the
clear motivation to fabricate evidence to benefit their status at the
expense of justice . . ."
(http://www.constitutionproject.org/dpi/MandatoryJustice.pdf, viewed March
Both the Illinois Commission on Capital Punishment and the Constitution
Project recommend that the death penalty should not be sought in cases
based solely or substantially on the testimony of a jailhouse informant.
In addition, both recommend reforms to prevent illegal conduct by
prosecutors, including "open file" discovery, depositions of prosecution
witnesses, and greater judicial review of the discovery process in death
penalty cases, practices which California has yet to adopt.
In August, the California Senate established the California Commission on
the Fair Administration of Justice. The Commissions mandate is to
investigate the problem of wrongful convictions in California and whether
the death penalty is administered in an arbitrary and unfair manner. The
Commission must investigate the widespread abuse of informant witnesses
and related illegal conduct by prosecutors.
In the meantime, the question remains, will Michael Morales be the next to
lose the death penalty lottery?
(source: ACLU of Northern California, March 29, 2005; published in the
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