By K. W. Locke

Here are some links to organizations working to help those harmed by the criminal justice system.  Neither I nor this blog is affiliated with any of these organizations and they do not pay us in any way for listing them here.  I haven't even informed most of them that they are being listed.

 

 

Law schools across the country, and elsewhere, have established innocence projects to exonerate those wrongfully convicted.  You can locate the innocence project near you using the Innocence Network's online directory.

 

The oldest organization working to exonerate those wrongly convicted may well be Centurion Ministries, founded not by a law school but by Princeton University divinity student Jim McCloskey.  You can read about it in McCloskey's memoir, When Truth Is All You Have.  Reportedly, writer John Grisham patterned the main character in his novel, The Guardians, after McCloskey.

 

 

After the McKinney, Texas SWAT team caused $50,000 to a woman's home and the city refused to compensate her, the Institute for Justice sued on her behalf.  When the Pasco County, Florida sheriff's department began using a computer to predict who would commit a crime, and then harassing those people until they moved away, the Institute for Justice sued the sheriff.  It also fights on behalf of victims of civil asset forfeiture, whose property has been taken by law enforcement even though they have not been convicted of any crime.

 

Laws schools at the University of California - Irvine, the University of Michigan, and Michigan State University have established the online National Registry of Exonerations.  It lists innocent people  who were convicted and sent to prison, but only later cleared.  It also provides information about each case.  So far, 2,932 innocent people, who together spent more than 25,600 years behind bars for crimes they didn't commit, appear on the list.

Banner photo by Juliescribbles (https://www.scribbler.com/) via Wikimedia Commons.

Here's more proof that no good deed goes unpunished.

In May 2012, Louisville police arrested a man suspected of firing a shotgun into the home of a confidential police informant.  Detective Barron Morgan interviewed the suspect, whose brother was facing federal drug charges.  Hoping to get his brother a more lenient sentence, the suspect confessed to murdering a man, Kyle Breeden, 14 years earlier.

In November 1998, fishermen had found Breeden's body in a river near Gratz, Kentucky.  Breeden had been shot twice in the head.  His legs had been tied with a guitar amplifier cord.

The murderer explained that Breeden had stolen $20 from him to buy cocaine.  However, he added that he really had killed the man "just to do it."

Various details of the story fit the evidence.  For example, the murderer said that he had gone to Breeden's trailer and found him smoking cocaine.  An autopsy had found cocaine in Breeden's blood.

The murderer said he had lied to Breeden, inviting him to attend a birthday party at his father's home.  On the way, he said, they stopped at a finance company, where Breeden got about $200.  This fact, too, checked out.  Records established that Breeden had taken out a $250 loan.

The two then drove to an abandoned farmhouse which the murderer told Breeden was his father's.  Breeden walked ahead to the gate and likely did not see the pistol aimed at the back of his head.   "I blowed his fuckin' brains out," the murderer told police.

He dragged Breeden's body to the side of the house and left.  However, he came back later to dispose of the body.  He drove to the Gratz bridge and heaved the body, with a 40–pound weight tied on, into the Kentucky River.

 Cold case solved!  But there was a problem.

A woman was in prison, serving time for the killing.

In 2008, a hairdresser who had known Breeden, entered into a plea bargain with the prosecutor.  Susan King, although innocent, got bad legal advice.  Rather than chance a whole lifetime in prison, she made a deal which resulted in her spending 6-1/2 years behind bars for manslaughter.

King entered an "Alford plea," which is similar to pleading nolo contendere or "no contest."   King did not admit guilt but only agreed that the prosecution had enough evidence to prove she committed the crime.

If King could have afforded a good lawyer and entered a not guilty plea, a jury almost certainly would have acquitted.  The murder victim weighed about 180 pounds.  King weighs around 100 and has only one leg.

At the time of the murder, King didn't even have a prosthesis.  She relied on crutches or used a wheelchair.

Yet somehow, King supposedly had killed Breeden, dragged his body to her car, driven 40 miles, and then heaved it into the river.  Really?  With a 40–pound weight attached to hold the body down?

In 1998, when Kentucky State Police first investigated the case, King wasn't charged.  But 8 years later, another officer got involved.  State Police Lieutenant Todd Harwood (who was then a sergeant) became convinced that King was guilty.

According to a lawsuit which King later filed against Harwood, the state police detective misled a grand jury, concealed evidence, and threatened King with the death penalty if she did not plead guilty.  Harwood reportedly settled this lawsuit by agreeing to pay King $750,000.

But at the time the true killer confessed to Louisville detective Morgan, King remained in prison.

After checking with his supervisor and the local prosecutor, Morgan notified the Kentucky Innocence Project about the confession.  With the documentation provided by Morgan, the Innocence Project ultimately secured King's exoneration.

An agency of state government, the Commonwealth's Department of Public Advocacy, had established the Kentucky Innocence Project to do precisely that: To right the terrible wrong which occurs when the justice system finds the wrong person guilty.

So, it should have been okay for Detective Morgan to communicate with this state agency, right?

It should have been.  Morgan had served justice and helped right a wrong.

But in fact, Morgan's good deed upset a lot of people, including the state cop who had put King behind bars.  State Police Lieutenant Harwood visited the real murderer in jail and, Morgan suspects, convinced him not to cooperate.  The murderer recanted his confession.

Harwood has denied telling the murderer to keep his mouth shut.  However, we don't know what was said because the lieutenant lost the tape recorder.

Obviously, if Harwood misled the grand jury and tried to intimidate King into a plea deal, he would have a reason to try to squelch a new inquiry.  But why didn't his superiors in the State Police support a fresh investigation?

They went tribal, trying to stop the Louisville Police Department from treading on their turf.  A state police commander contacted a high–ranking official in the Louisville Police Department and complained about Morgan "interfering" in a state police matter.

Reportedly, the Louisville police chief and the head of the Kentucky State Police were longtime friends.  That might help explain the reaction of those in command.

A major in the Louisville department apologized to the state police for Morgan's "sticking his nose" into one of their cases.  The major also urged that Morgan be subjected to a disciplinary investigation.

According to Morgan, a lieutenant colonel in the Louisville department left a voicemail message cursing Morgan for providing information to "the other side" – the Kentucky Innocence Project – and ordered him to stop doing so.  In a deposition, the lieutenant colonel admitted asking Morgan about the Innocence Project's involvement.  Although this official could not recall cursing Morgan, he testified that if he did, it was in a "joking manner."

Morgan also received orders not to appear in court on the King matter unless subpoenaed.

In the past, Morgan's superiors had praised him.  A month before the murderer confessed to Morgan, the detective received a letter from the Louisville police chief commending his work on a case involving half a million dollars of cocaine.

But just a few months later, a "departmental reorganization" resulted in Morgan no longer being a narcotics detective.  Instead, he was assigned to be a patrol officer on the graveyard shift. 

Morgan filed a whistleblower lawsuit against the Louisville Police Department.  He received a $450,000 settlement, but the department would not return him to the narcotics unit.

In June 2020, the police chief lost his job shortly before his scheduled retirement.  However, he wasn't fired for demoting Morgan.

Two months before the chief's ouster, Louisville officers executing a no-knock warrant entered the home of Breonna Taylor, allegedly without identifying themselves.  The raid resulted in Taylor's death.

Large protests resulted.  So did an order requiring police to wear body cameras.

In late May, Minneapolis police officer Derek Chauvin killed George Floyd.  The news prompted demonstrations nationwide, including in Louisville.

The governor of Kentucky called out the National Guard to assist the Louisville police.  In an incident which took place some distance from downtown, a member of the Guard shot and killed a barbecue cook, David McAtee, who reportedly had fired on the soldiers.

Two of the Louisville officers on the scene either did not have bodycams or had not activated them.  The officers were suspended and the police chief removed.

Sometime is wrong with the culture of a police department in which officers ignore an order to wear and use bodycams.  And something is very seriously wrong with the culture of a department which punishes a detective for telling a state agency that an innocent woman is in prison.

 

STATE UNLIKELY TO COMPENSATE STRICKLAND

By K. W. Locke

It took a lot of lawyers to free an innocent man.  In 1979, Kevin Strickland went on trial in Kansas City for a triple murder perpetrated by four attackers.  The prosecution charged that Strickland was one of the four.

The jury could not reach agreement on a verdict and the judge declared a mistrial.   At the second trial a jury convicted Strickland, based on a mistaken identification by a witness who survived the attack.

The witness did not realize she had pointed to the wrong man until after Strickland's conviction, when two of the actual murderers confessed.  One of them bore a resemblance to Strickland.

The real killers stated that Strickland had not been involved.  Nonetheless, Strickland remained in prison, his appeals denied.

In 2020, lawyers from the Midwest Innocence Project teamed up with three attorneys from a prestigious international law firm, who donated their services.   They assembled the evidence indicating that Strickland was innocent and took it to the prosecuting attorney for Jackson County, Missouri, which includes Kansas City.

The prosecuting attorney, Jean Peters Baker, became convinced of Strickland's innocence and joined the effort to exonerate him.   Ethically, a prosecutor's duty is not merely to try to convict the guilty but to do justice.  However, it is rare to see a proscutor work hard to free someone already convicted and in prison.

A previous post explained how Peters actually did more than Missouri's canon of legal ethics requires.  Some states have adopted ethical codes requiring a prosecutor to seek to undo a conviction if there is clear and convincing evidence that the defendant was innocent.  Missouri does not.   Peters did it anyway.

She supported the Innocence Project's attempt to get the Missouri Supreme Court to overturn Strickland's conviction.  The Court did not.   That result was not too surprising, considering that Missouri did not have a law specifically allowing the Court to  act.

However, the Missouri legislature had enacted a new statute allowing prosecutors to return to the court which convicted a defendant and ask the court to undo it.   When the law took effect in August 2021, Peters filed a 25-page motion.

The Missouri attorney general opposed Peters, disputing that there was clear and convincing evidence of Strickland's innocence.  After a 3-day hearing, the judge ruled that Strickland did not commit the crime and ordered his release from prison.

On November 23, Strickland became a free man for the first time in 43 years.   However, it is unlikely that the state will compensate Strickland for those years.   Missouri law allows such compensation in very few cases, and Strickland's exoneration was not based on DNA evidence.

In contrast, an innocent man recently pardoned in North Carolina may receive up to $750,000 for his wrongful imprisonment.

In 1994, because a witness lied on the stand, a North Carolina jury convicted 19-year-old Montoyae Dontae Sharpe of murder.   Weeks later, the witness admitted she had lied but Sharpe remained behind bars for a quarter century.

In 2019, a court overturned Sharpe's conviction and the prosecution dropped the charges.  However, that did not qualify Sharpe to receive compensation from the state.

On November 12, 2021, North Carolina Governor Roy Cooper granted Sharpe a "pardon of innocence."  Cooper now is eligible to receive $50,000 for each year he spent in prison, up to a total $750,000.

JONES TO SERVE LIFE IN PRISON WITHOUT PAROLE

By K. W. Locke

When Thursday morning dawned, Julius Jones had an appointment with death. He would meet it at 4:00 that afternoon in the execution room of the Oklahoma State Penitentiary in McAlester.

Jones consistently has denied committing the murder for which he was sentenced to die. The Innocence Project took up his case and Kim Kardashian ralied public support. The family of the murder victim believes Jones is guilty.

Both sides presented their arguments at a September 13, 2021 meeting of the Oklahoma Pardon and Parole Board. which then recommended that Governor Kevin Stitt commute Jones' sentence to life in prison with the possibility of parole. However, Stitt was not satisfied and asked for another hearing, specifically focused on clemency.

On November 1, 2021 the parole board conducted the clemency hearing and again recommended that the governor commute Jones' sentence. But the governor took no action. The silence seemed ominous. 

On November 17, the day before the scheduled execution, Jones' mother went to the governor's office, but he refused to see her.  That refusal seemed even more ominous.

Just 4 hours before Jones' appointment with death the governor canceled it. But although the parole board twice had recommended that Jones' sentence be commuted to life with the possibility of parole, the governor only gave him life without parole. Still, Jones is alive.

In 1988, a Memphis jury found Pervis Payne guilty of murdering a 28-year-old woman and her 2-year-old daughter. It sentenced him to death. Payne has maintained that he was innocent and many believe him.

Defense attorneys say that police investigators focused on Payne and ignored the person they believe committed the crime, the victim's ex-husband, who had a history of violence. They also argue that racial bias and Payne's low IQ tilted the scales against him.

Both Tennessee and federal courts have held that it is unconstitutional to execute a mentally disabled person, but up until now, prosecutors have not conceded that Payne met that standard. A new Tennessee law gave Payne a new opportunity to raise the mental disability issue.

Recently, a state expert who reviewed Payne's records "could not say Payne's intellectual functioning is outside the range for intellectual disability." In the absence of a clearcut pronouncement that Payne absolutely, unequivocally met the standard, many prosecutors would have argued that Payne should be executed. But not District Attorney General Amy Weirich. She decided that Payne should be taken off death row and will concede in court that Payne should not be executed.

Payne's lawyer said that the district attorney general's concession will "avoid years of needless litigation." 

Of course, taxpayers would foot the bill for the litigation. The district attorney general deserves a double round of thanks: First, for having the courage to do justice and second, for saving tax dollars.

Although Payne is off death row he is still in prison, serving two life sentences.  Payne's lawyer said efforts will continue to prove that his client did not commit the crime.

JULIUS JONES WAITS ON DEATH ROW

by K. W. Locke

Why is it taking Oklahoma Governor Kevin Stitt so long to decide whether Julius Jones will die on November 18?

In 2002, a jury found that Jones had killed a man and sentenced him to death. Jones consistently has maintained that he is innocent and that his inexperienced attorney failed to call alibi witnesses at his trial. The ABC television network aired a documentary about the case and Kim Kardashian has taken up his cause.  Lawyers at the Innocence Project, similarly convinced that Jones didn't commit the crime, brought his case before the Oklahoma Pardon and Parole Board.

But others, including some members of the victim's family, believe that Jones is guilty.  When the parole board met two months ago, they argued that Jones deserved to die.

At the conclusion of its September 13 hearing, the parole board voted to recommend that the governor reduce Jones' sentence from death to life in prison with the possibility of parole. But in Oklahoma, the parole board only can recommend, and the governor is free to reject the recommendation.

Governor Stitt neither adopted nor rejected this recommendation. Instead, he asked for another hearing. The September 13 hearing had been a parole hearing. The governor wanted the board to hold a clemency hearing. At such a hearing, Jones himself would be allowed to speak.

 On November 1, the parole board held the clemency hearing.  Again, it recommended that Gov. Stitt commute Jones' sentence from death to life imprisonment with the possibility of parole. As of this writing, the governor has not made a decision. The November 18 execution date draws closer and closer.

People concerned that an innocent man may be put to death have been writing letters (such as this one) to the governor.

Apart from the issue of Jones' innocence is the matter of execution Oklahoma style. Although Oklahoma was the first state to enact a law providing for execution by lethal injection, it's not very good at it.

When it executed Clayton Lockett in 2014, the phlebotomist inserting the IV needle made a mistake. Instead of going into the Lockett's bloodstream, the lethal drugs infused surrounding tissue.  Lockett regained consciousness, moaned and struggled. More than 40 after the execution began, he died from a heart attack. 

The next year, the execution team administered the wrong drug to Charles Warner. Lying on the gurney, Warner said it "feels like acid."

Witnesses do not sit in the execution chamber itself but outside, watching through windows and listening to a loudspeaker. Prison officials cut off Warner's microphone but a reporter, outside the chamber, heard him say "my body is on fire" and "no one should go through this."

After Warner's execution, Oklahoma waited 6 years before trying another one.  That pause gave prison officials time to study and improve execution procedures.  (The current procedure can be found here.)

However, when Oklahoma resumed executions less than 2 weeks ago, on October 28, it didn't go well.  John Grant convulsed repeatedly and vomited before he died.

Julius Jones is next in line.

The development and widespread use of DNA testing has revealed a shocking truth:  The criminal justice system sends innocent people to prison far more often that anyone had imagined.  The National Registry of Exonerations lists 2870 people sent to prison for crimes they did not commit.

The actual number of innocent people behind bars likely is much larger simply because they have no one on the outside willing to spend the time and effort needed to get a court to take another look at a convict's case.  Every dog may have his day in court, as the saying goes, but it is a rare dog who gets two.

In the past few decades, a number of law schools have established innocence projects.  Attorneys and law students screen requests from prison inmates.  When a conviction looks particularly dubious, they take the case.

The various innocence projects have created an innocence network.  It now includes 68 innocence organizations in the United States and 10 other countries.  To call attention to the number of innocent people still in prison, the Innocence Network designated October 2 "International Wrongful Conviction Day."

 Maybe Oklahoma officials are not trying to inflict cruel and unusual psychological punishment on death row inmate Julius Jones but right now he must feel he's riding an emotional roller coaster.  As a previous post reported, in 2002, a jury convicted him of murder he consistently has maintained he did not commit.

Lawyers at an innocence project took on his case and an ABC television documentary focused on the efforts to exonerate him.  Kim Kardashian also became involved, attracting further public attention to the case.

These developments gave Jones a reason to hope.  However, the past three weeks brought ups and downs.

On September 13, the Oklahoma Pardon and Parole Board voted, 4 to 1, to recommend that the governor commute Jones' sentence from death to life in prison with possibility of parole.  At that point, no execution date had been set.  But days later, a court scheduled Jones for death on November 18.

The governor had not yet acted on the parole board's recommendation to commute Jones' sentence.  So, there was reason to hope.

However, on September 28, the governor announced that he was sending the case back to the parole board for another hearing.  The board had conducted a commutation hearing on September 13, but the governor wants the board to conduct a clemency hearing.


There's a difference.  Jones did not testify at the commutation hearing.  However, he would have that opportunity at a clemency hearing.  The board is going to conduct such a hearing this Tuesday, October 5.

 

Banner based on photo by  Teemu Mäntynen, via Wikimedia Commons.

On September 13, the Oklahoma Pardon and Parole Board recommended that Governor Kevin Stitt take Julius Jones off death row and commute his sentence to life in prison with the possibility of  parole.  The Jones case has divided public opinion so markedly that the governor's decision will be criticized no matter what it is.

A news story about the parole board’s action drew comments which starkly illustrated the split.  One reader wrote:

Gov. Stitt needs to do the right thing and let this innocent man out of jail. It is a complete tragedy what has happened here. I don't know how ANYONE can say this man is quilty after you take in ALL of the evidence!. PLEASE GOVERNOR STITT DO THE RIGHT THING!!!!

However, another reader thought exactly the opposite:

Gov Stitt will see to it that this monster gets his just desert! Julius is 100% guilty and deserves the death penalty! NOW!!

In 1999, a carjacker murdered Paul Howell.  Jones denied committing the crime, but in 2002, a jury found him guilty.  He has been on death row 19 years and could be executed later this year if the governor rejects the parole board’s recommendation.

The Innocence Project has championed Jones and so has celebrity Kim Kardashian.  Portions of the ABC documentary series “The Last Defense” focused on his case.

On the other side, the Oklahoma attorney general  emphatically argues that Jones committed the murder.  So does Oklahoma City district attorney David Prater, who told the parole board, “If the Board objectively considers the truth, they will quickly vote to deny the killer's commutation request.”

Some of the victim’s relatives also attended the parole board meeting and spoke against a reduction in Jones’ sentence. “I was there when my brother Paul Howell was murdered,” Megan Tobey said, I know beyond a doubt that Julius Jones murdered my brother.”

But some parole board members did have doubts.  Adam Luck said he believed that before executing someone, there should be no doubt about the person’s guilty: “I have doubts about this case”  which he could not ignore, “especially when the stakes are life and death.”However, some believed it improper for the parole board to consider the issue of innocence or guilt, a matter already decided by a jury, whose verdict was affirmed on appeal.  The murder victim’s brother, Brian Howell, complained that the board had not followed its own rules but instead had relitigated facts already decided by the jury.

“Our family continues to be victimized by Julius Jones and his lies," Howell said.  "Almost 20 years ago, we trusted the jury in this case and over the last 18 years, we have trusted the appellate process.”

In Oklahoma, the governor is free to follow or reject the recommendation of the parole board.  It stands to reason that if the governor properly can take into account doubts about whether Jones committed the crime, then the parole board likewise may take into account whether Jones is actually innocent.

It seems appropriate to allow a governor to consider the possibility of actual innocence because the power to grant clemency is both a safeguard to prevent injustice - part of the scheme of checks and balances - and also an act of mercy.  We don't know yet whether Governor Kevin Stitt will consider mercy appropriate in this case.

However, we do know that in 2019, Governor Stitt believed that there were too many people in Oklahoma prisons.  So the governor made two appointments which you might not expect from a Republican.  He put two “bleeding hearts”  - Kelly Doyle and Adam Luck - on the parole board.

 

A 2019 law created an expedited process for commutations. Doyle and Luck went to work. In a November 2019 newspaper article, Doyle wrote:

This month, Oklahoma saw the largest single-day commutation in our nation’s history. The Oklahoma Pardon and Parole Board recommended, and Gov. Kevin Stitt approved, the commutation of more than 500 people serving time for drug possession and low-level property crimes.

District attorneys went ballistic.  The Oklahoma District Attorneys Association, a private organization, filed a broad open records request to obtain Luck’s emails.  Various DAs also have accused Luck and Doyle of bias and requested they disqualify themselves.

Additionally, before the parole board's hearing concerning Julius Jones, Oklahoma City district attorney David Prater went so far as to  file a lawsuit seeking to have Doyle and Luck disqualified.  The Supreme Court ruled against Prater.

Luck's lawyer called Prater's lawsuit a veiled attempt to attack the executive power of the governor.  The lawyer, Evan Gatewood, said "Mr. Prater thinks his idea of what the parole board should look like should override what the governor of this state thinks the parole board should look like."

Why do the district attorneys, and  particularly DA Prater, object so strenuously to Doyle and Luck?  Shouldn't the district attorneys be upset with the elected officials who decided to lower the number of people in prison, rather than those carrying out the new policy?

Both Doyle and Luck have "day jobs" with nonprofit organizations.  Doyle helps manage a charity which assists convicts in finding jobs when they leave prison.  Luck heads a nonprofit which provides shelter to the homeless.  (Amazingly, some of the district attorneys claim that Luck's job creates a conflict of interest.  They argue that he would be motivated to let more people out of prison so that there would be more homeless individuals for his organization to serve!) 

 Perhaps Prater's earlier career explains some of the hostility.  Before going to law school he was a police officer.

In fact, Prater may have been a bit of a Supercop.  In addition to serving on the police department’s tactical unit, he belonged to the department's underwater rescue team and its pistol team, and was a firearms instructor.  Prater received more than 20 commendations.  Then he went to law school at the University of Oklahoma.

By comparison, Luck has a masters degree in public policy from Harvard.  He speaks Korean and served  in the Air Force as a “cryptologic linguist.”   He describes his background in this TEDx talk.

Kelly Doyle has a masters degree from the University of Chicago.  When announcing her appointment, the governor's office noted that Doyle had worked for an international aid agency, “completing tours in Darfur, South Sudan, and the hurricane-affected areas of Louisiana and Mississippi” before beginning her work helping released convicts find employment.

With these differences in background, it would be unlikely for Doyle and Luck to agree with Prater about everything.  And some disagreements are not only inevitable but productive.

But it seems quite unusual, even extreme, that a district attorney would go to court to disqualify members of the parole board from considering a particular case.   Moreover, DA Prater has extensive legal experience, so it's reasonable to assume he realized he had a thin case.  What motivated him to go ahead anyway, despite the risk?  Politics?

Execution chamber photo in update is from the California Department of Corrections, via Wikimedia Commons.