Dennis Perry: Georgia: An extraordinary "DNA link" story from The Atlanta Journal-Constitution (Reporter Joshua Sharpe) about a likely innocent white man who has already been in prison 35 years for the murder of a beloved couple in an African American church. I will follow developments closely. In the meantime, here is a brief taste. (This is a story that deserves to be read word for word two the very end. H)..."One night in 1985, a white man walked into an African American church in southeast Georgia and fatally shot a beloved couple. For 35 years, DNA found at the crime scene didn’t match that of any of the suspects who were tested — until now. Erik Sparre, a suspect whom police dropped from their investigation in 1986 based on his alibi, is a match, according to a new court filing by the Georgia Innocence Project and the King & Spalding law firm. The lawyers, working for the man convicted of the murders, decided to do the test after learning that reporting by The Atlanta Journal-Constitution uncovered problems with Sparre’s alibi.."

STORY: "DNA link leads to bid for new trial in 1985 Ga. church murders," by reporter Joshua Sharpe, published by The Atlanta Constitution-Journal.

SUB-HEADING: "AJC reporting leads to DNA match in murder."

SUB-HEADING: "AJC Investigates: DNA points to former suspect in 1985 church murder."

GIST: One night in 1985, a white man walked into an African American church in southeast Georgia and fatally shot a beloved couple. For 35 years, DNA found at the crime scene didn’t match that of any of the suspects who were tested — until now. Erik Sparre, a suspect whom police dropped from their investigation in 1986 based on his alibi, is a match, according to a new court filing by the Georgia Innocence Project and the King & Spalding law firm. The lawyers, working for the man convicted of the murders, decided to do the test after learning that reporting by The Atlanta Journal-Constitution uncovered problems with Sparre’s alibi. The test compared DNA taken from Sparre’s mother to DNA in hairs stuck in the hinge of a pair of glasses found near the bodies. The results show that the hairs in the glasses belonged to someone from Sparre’s maternal line, the Tuesday court filing says. “The new DNA evidence is critically significant because it for the first time provides reliable forensic physical evidence linking a known suspect, Erik Sparre, to physical evidence at the crime scene, the glasses,” the lawyers wrote. Dennis Perry, the man imprisoned nearly 20 years for the crime, has never been linked to the crime by physical evidence and has maintained his innocence. A DNA test before his trial showed he did not match. The DNA match with Sparre comes after decades of investigation by police, prosecutors, lawyers and journalists. The case has been the subject of a podcast and an episode of TV’s “Unsolved Mysteries.” It has sown grief and division in Camden County and among law enforcement officers. At least three detectives who worked the case have long believed that Perry is innocent."

The entire story can be read at:

https://www.ajc.com/news/crime--law/ajc-investigation-dna-points-former-suspect-1985-church-murders/9FShJP9KXC328aeOOQpZiM/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Darrill Henry: Louisiana: Covid-19/Criminal Justice; Major (Welcome) Development: Awaiting retrial on a double murder, a judge has ruled that Henry can be released with conditions, after defence lawyers put forward newly developed DNA evidence that cast doubt on the eyewitness testimony that sent Henry to prison for life, The Times-Picayune (Reporter Matt Sludge) reports: "A state judge on Friday again granted bail to a New Orleans man whose double murder conviction was overturned based on new DNA evidence, but his release would come with catches."

PASSAGE OF THE DAY: "Henry was convicted in 2011 in the vicious double slaying of an octogenarian seamstress and the daughter who raced to her aid at a 7th Ward home. But after his conviction, defense attorneys said newly developed DNA evidence cast doubt on the eyewitness testimony that sent him to prison for life. In March, Waldron agreed with Henry’s defense team and granted the 44-year-old a new trial. Prosecutors are appealing that decision. He also set a $400,000 bail — assuming that amount was out of Henry’s reach, since the New Orleans man said he was a pauper after years in prison. However, Henry’s supporters used an internet GoFundMe campaign to raise the fraction of the bail needed to free him from the Louisiana State Penitentiary at Angola while he awaits a possible second trial. Relatives and defense attorneys said the coronavirus outbreak in Louisiana’s prison system gave them added urgency. Henry had already given his possessions to other prisoners when the Orleans Parish District Attorney’s Office obtained an emergency order blocking his release." 

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STORY: "Man awaiting retrial in 7th Ward double murder can be released with conditions, judge says, by Reporter Matt Sledge, published by The Times-Picayune on April 24, 2020.

GIST: "A state judge on Friday again granted bail to a New Orleans man whose double murder conviction was overturned based on new DNA evidence, but his release would come with catches.

Darrill Henry must remain in Orleans Parish, refrain from using alcohol and drugs and wear an electronic ankle bracelet at all times, ad hoc Judge Dennis Waldron said. The judge also paused his order until May 7 so prosecutors can appeal it to higher courts.

Waldron added those conditions to Henry’s bail after the Louisiana Supreme Court sent Henry’s hotly disputed case back to him for a fresh hearing. Henry was convicted in 2011 in the vicious double slaying of an octogenarian seamstress and the daughter who raced to her aid at a 7th Ward home. But after his conviction, defense attorneys said newly developed DNA evidence cast doubt on the eyewitness testimony that sent him to prison for life. In March, Waldron agreed with Henry’s defense team and granted the 44-year-old a new trial. Prosecutors are appealing that decision. He also set a $400,000 bail — assuming that amount was out of Henry’s reach, since the New Orleans man said he was a pauper after years in prison.

Double murder conviction tossed by judge, New Orleans man remains in Angola prison

However, Henry’s supporters used an internet GoFundMe campaign to raise the fraction of the bail needed to free him from the Louisiana State Penitentiary at Angola while he awaits a possible second trial. Relatives and defense attorneys said the coronavirus outbreak in Louisiana’s prison system gave them added urgency. Henry had already given his possessions to other prisoners when the Orleans Parish District Attorney’s Office obtained an emergency order blocking his release. Prosecutors took their objections up to the Louisiana Supreme Court, which on April 17 sent the bail question back to Waldron for another hearing.

In a telephone hearing on Friday, Assistant District Attorney Kyle Daly said Waldron should give greater consideration to Henry’s run-ins with the law before his arrest in the 2004 killings of Durelli Watts, 89, and her daughter Ina Claire Gex, 67.

On one occasion Henry was accused of punching his mother, and his girlfriend told police that Henry had a problem with crack cocaine, according to Daly. Prosecutors said in a legal brief that Henry was “not the choir boy he recently claimed to be.”

Gex’s son, Las Vegas obstetrician Gregory Gex, told the judge he was worried that Henry would commit crimes upon release.

“We’re afraid because of the nature of the crime. My grandmother was stabbed 14 times. My mother was shot in the head,” he said. “We are devastated.”

However, a member of Henry’s defense team, Vanessa Potkin of the national Innocence Project, pointed to Henry's plan to live at his aunt's house, his participation in faith-based programs at Angola and the prison system’s assessment that he posed a low risk.

DNA under fingernails revives appeal for man in elderly New Orleans woman's murder

“He has both the legal team and the scientific evidence to be vindicated, and he has every reason to appear in court until the day these charges are ultimately dismissed,” she said.

Waldron said he was convinced that Henry had the right to a bail after his convictions were tossed, despite prosecutors’ assertions to the contrary.

However, he tacked on numerous conditions to Henry’s release. In addition to the others, Henry must find a job or educational opportunity, stay out of the French Quarter and submit to court-ordered drug tests."

The entire story can be read at:
https://www.nola.com/news/coronavirus/article_47c2b0d2-8669-11ea-9346-97e152ccb359.html

Rosa Jimenez: Texas: Major (Welcome) Development. As the Statesman (Reporter Chuck Lindell) reports: "Ending months of speculation, Travis County’s top prosecutor has agreed to give a new trial to Rosa Jimenez, the Austin babysitter who has served 17 years of a 99-year prison sentence for the death of a toddler in her care."

PASSAGE OF THE DAY: "A new trial was recommended by members of Moore’s trial division, special victims unit and conviction integrity unit who reviewed new evidence presented by defense lawyers and concluded that Jimenez did not have an adequate opportunity at her 2005 trial to present a theory that the boy’s death by choking was accidental.  “It was a consensus among my attorneys that the newly developed potential testimony could be credible to a jury,” Moore wrote in a letter sent Monday to Jimenez’s lawyers."

PASSAGE TWO OF THE DAY: "In her letter, Moore said her lawyers have not made a recommendation on whether Jimenez should be released on bond, saying the matter is in Yeakel’s hands and includes details developed by other attorneys But in a reply brief filed Monday with Yeakel, Jimenez’s lawyers argued that Paxton’s opposition to bond was “unconscionable.” “Ms. Jimenez seeks release so that her life and heath are preserved pending the resolution — and what should be imminent dismissal — of the State’s appeal,” they wrote."

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STORY: "DA supports new trial for Austin babysitter in 2003 death, by Reporter Chuck Lindell, published by The Statesman on April 27, 2020.

GIST: "Ending months of speculation, Travis County’s top prosecutor has agreed to give a new trial to Rosa Jimenez, the Austin babysitter who has served 17 years of a 99-year prison sentence for the death of a toddler in her care.

Whether that trial happens, however, depends on factors outside of the control of local officials, District Attorney Margaret Moore said.

A new trial was recommended by members of Moore’s trial division, special victims unit and conviction integrity unit who reviewed new evidence presented by defense lawyers and concluded that Jimenez did not have an adequate opportunity at her 2005 trial to present a theory that the boy’s death by choking was accidental.

“It was a consensus among my attorneys that the newly developed potential testimony could be credible to a jury,” Moore wrote in a letter sent Monday to Jimenez’s lawyers.

Moore, however, stopped well short of endorsing claims by defense lawyers that charges should be dropped because Jimenez is innocent.

“The reviewing attorneys ... recommended that the DA’s Office prepare to try the case again because there is sufficient factual evidence upon which a reasonable juror could vote to convict,” she wrote.

Moore also said a trial depends on whether Texas Attorney General Ken Paxton drops an appeal of a federal judge’s ruling that tossed out Jimenez’s conviction last year.

“I am confident that the (office of the attorney general) has heard and respects the conclusion we have reached” about giving Jimenez a new trial, Moore wrote. “The matter is now in their hands.”

Paxton’s office declined to discuss Jimenez’s case, saying Tuesday that “we cannot speculate or comment on future litigation.”

Paxton’s office, not local prosecutors, handles federal court challenges to convictions, and in a Jan. 14 hearing on the Jimenez case, a Paxton lawyer indicated that state prosecutors retained the right to continue the appeal regardless of Moore’s decisions.

Vanessa Potkin, a lawyer for Jimenez, said that if Paxton’s office declined to dismiss the appeal, “it will now be fighting to uphold a conviction in a case where the prosecuting agency, the Travis County district attorney’s office, has said ... that the defendant did not receive a fair trial.”

Conviction tossed:

Jimenez, now 37, was 19 when she called emergency crews to her North Austin apartment in 2003 after 21-month-old Bryan Gutierrez began clutching his throat and choking.

A compacted wad of paper towels was removed from deep within the boy’s throat, and he died three months later after sustaining a serious brain injury due to oxygen deprivation.

Jimenez, who said the child had been playing with a roll of paper towels, was found guilty of murder and injury to a child in a trial that focused on only two possible scenarios: Either she forced the paper towels down the boy’s throat, or the child did it himself. Jurors believed prosecution experts who testified that it would have been impossible for Bryan to have swallowed the mass on his own.

But last October, U.S. District Judge Lee Yeakel tossed out Jimenez’s convictions, ruling that she did not receive a fair trial because her lawyer failed to seek money from the court for pediatric experts who could have testified that the child’s death was likely an accident.

In addition, Yeakel ruled, the trial court failed to provide Jimenez with enough money to hire expert witnesses, denying her the ability to present an adequate defense and leaving her with only one trial expert who was unqualified, unprepared and easily discredited.

Challenging Jimenez’s conviction, defense lawyers presented three pediatric airway experts and a forensic pathologist who concluded the child probably swallowed the mass on his own. The new defense experts provided a crucial understanding of pediatric choking that Jimenez’s jurors did not have but should have heard, Yeakel said.

The judge gave prosecutors until Feb. 25 to give Jimenez a new trial or release her from prison.

Lawyers for Paxton appealed, and the 5th U.S. Circuit Court of Appeals blocked the deadline to allow time to consider the case. That appeal is ongoing.

Emergency request:

Last week, Jimenez’s lawyers filed an emergency motion asking Yeakel to let her leave prison while the case proceeds, arguing that Jimenez has a heightened risk of death because stage 4 chronic kidney disease has compromised her immune system.

If a personal recognizance bond is granted, the Innocence Project has secured an Austin home where Jimenez can shelter while the pandemic continues, they said.

Paxton’s lawyers opposed the move, telling the judge in a brief filed Friday that prison officials have taken “extensive steps to safeguard the health” of at-risk inmates and that Jimenez, a Mexican citizen who was in the country illegally when she was arrested, is a flight risk. They also argued that Yeakel could not free Jimenez because he lost control of the case once it was accepted by the 5th Circuit Court.

In her letter, Moore said her lawyers have not made a recommendation on whether Jimenez should be released on bond, saying the matter is in Yeakel’s hands and includes details developed by other attorneys.

But in a reply brief filed Monday with Yeakel, Jimenez’s lawyers argued that Paxton’s opposition to bond was “unconscionable.”

“Ms. Jimenez seeks release so that her life and heath are preserved pending the resolution — and what should be imminent dismissal — of the State’s appeal,” they wrote."

The entire story can be read at:

https://www.statesman.com/news/20200427/da-supports-new-trial-for-austin-babysitter-in-2003-death

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Podcast of the Day: Daniel Villegas: Texas: "Wrongful Conviction: False Confessions" presented by Laura Nider and Steve Drizen..."

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Access the Podcast at:

https://player.fm/series/wrongful-conviction-podcasts/wrongful-conviction-false-confessions-daniel-villegas

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PUBLISHER'S NOTE. The topic of false confessions leading to wrongful convictions has come to play a central role on this Blog. As I explain to our readers at the outset of each post: "This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of  scientific research showing how vulnerable suspects are to widely used interrogation methods  such as  the notorious ‘Reid Technique.’ As  all too many of this Blog's post have shown, I also recognize that pressure for false confessions can take many forms, up to and including physical violence, even physical and mental torture."  This  podcast is an absolute false confession" treasure chest worthy of listening episode by episode. It's hard to imagine any more knowledgeable and experienced  Podcast   hosts than Laura Nider and Steve Drizen. They know of what they speak, having been personally involved in  many of the cases  featured on the podcast. Not surprisingly, many of the episodes - such as this one (Daniel Villegas)  - feature cases I have been following on this Blog, such as: Huwe Burton, Billy Wayne Cope, Damian Echols, Teina Pora, The Dixmoore 5, Rodney Reed, Brendan Dassey and many more. As you can imagine, you will find much in these episodes to be angry about. Still, it is comforting to know that there are  attorneys  such as Laura Nider and Steve Drizen  who are devoting their lives to listening to, investigating,  and fighting for freedom and exoneration for the  victims of such odious practices  - and to fighting for reforms that will prevent future such miscarriages of justice.  The Daniel Villegas case is an excellent example of their fine work.

Harold Levy: Publisher: The Charles Smith Blog.

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Episode description: "How can one man save the life of a perfect stranger? The case of Daniel Villegas shows how ordinary people can make an extraordinary difference in the fight against wrongful convictions. Laura Nirider and Steve Drizin tell the story of an unexpected hero who fought for years to turn tragedy into triumph, ending in one of the most dramatic courtroom exonerations ever seen. A portion of this podcast series’ proceeds will be donated to the Center on Wrongful Convictions, which has exonerated more than forty innocent people."

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BACKGROUND: Read the National Registry of Exonerations entry by Ken Otterbourg at the link below:

PASSAGE OF THE DAY: (National Registry entry): "After a delay of about an hour, Villegas ( then 16: HL) was taken to Juvenile Investigative Services. He was handcuffed to a chair and questioned by Marquez, who threatened him and said he would take him to the desert and “beat his ass.” Villegas had never been interrogated before and would later say he was “terrified out of his mind.” Finally, Villegas agreed to give a statement. First, he said Williams did the shooting. Marquez slapped him and told him that was wrong and that he would die in the electric chair if he didn’t confess. During the next hour or so, Marquez and Villegas worked on Villegas’s confession. Marquez was also in communication with Graves, who was interrogating Gonzalez at police headquarters. The officers kept adjusting the two statements until they nearly matched (although still contained inconsistencies) and also more closely lined up with the statement given by Williams. Gonzalez was charged, but the case was later dismissed. Villegas recanted his confession a few hours after signing his statement. He told a juvenile probation officer that “he didn’t do it,” and that he had confessed because he was tired and the police “were harassing him.” By then, it was too late. He was charged with capital murder. "Just after midnight on April 10, 1993, four young men – Jesse Hernandez, Juan Medina, Armando Lazo, and Robert England – were walking home from a party in northeast El Paso, Texas. They were at the intersection of Transmountain Road and Electric Street when a car pulled up beside them and someone from the passenger side began shooting.

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"Just after midnight on April 10, 1993, four young men – Jesse Hernandez, Juan Medina, Armando Lazo, and Robert England – were walking home from a party in northeast El Paso, Texas. They were at the intersection of Transmountain Road and Electric Street when a car pulled up beside them and someone from the passenger side began shooting.

 Medina and Hernandez ran. England, who was 18, was shot once in the head and died in the street.  Lazo, who was 17, was shot in the abdomen and thigh. He made it about 100 yards to a house up the street, where his body was found after the residents called 911.

Witnesses said they heard a burst of gunfire -- five or six shots all at once -- and police recovered six .22 shell casings in the street.

In their initial statements to police on April 10, Medina and Hernandez said they could not identify the shooter or give a detailed description of the car, although they said it was probably red or maroon.

The investigation was led by Detective Alfonso Marquez of the El Paso Police Department. He brought Hernandez back for questioning on April 12. When Hernandez repeated what he knew and did not know, Marquez became angry and said that Medina had already told police that Hernandez had killed their friends. The interrogation continued, and Hernandez would later say he was close to confessing to a crime he didn’t commit.

Three days later, after receiving a tip, Marquez and other officers arrested Michael Johnston, who was 15. He was handcuffed to a chair, interrogated for eight hours, threatened with the death penalty, and told that his friends had already implicated him in the shooting. Marquez told the boy that he would be raped in jail if he did not confess. Johnston then gave a statement saying he shot Lazo and England. He was never charged, and Marquez would later acknowledge the confession was false.

On April 21, Marquez brought in David Rangel, who was 17, for questioning. Again, Marquez said that others had implicated Rangel in the shooting, and that if he didn’t come clean, he would spend the rest of his life in prison and be sexually assaulted because he was young and pretty. Rangel told Marquez that his cousin, Daniel Villegas, said he had shot Lazo and England with a sawed-off shotgun.  He added, however, that he was sure Villegas, who was 16, was joking, as he was always boasting about things that in truth he hadn’t done. After Rangel wrote down a statement that included the shotgun, Marquez told him to do it again, this time leaving out the type of weapon used.

The final statement Rangel signed was inconsistent with the statements of Medina and Hernandez, as well as the evidence gathered at the crime scene.  Rangel said that Villegas was in a black car, not a reddish car, and that Villegas had told him he chased Lazo and shot him a second time at the house, although no shells were found there.

That same day, Rodney Williams, who was 15, was brought in for questioning. A detective interviewed him but said the boy had nothing new to offer. Then Detective Scott Graves took over. Williams asked to see his mother. Graves refused the request. The interrogation lasted around six hours. Williams initially said he and Villegas were not involved with the shooting; they had been watching television at a nearby apartment. Graves said that was a lie. He told Williams he would go to prison where he would be raped, but that if he signed a statement implicating Villegas, he could go home. 

In his statement, Williams said he and Villegas went out on the night of April 9, which was Good Friday, with Fernando Lujan, Marcos Gonzalez, and Enrique Ramirez, who was driving a white sedan. He said they stole a case of beer from a convenience store and just after midnight came upon the four young men on Transmountain Road. Some words were exchanged, and then Villegas started shooting. Williams said Villegas killed England first and then shot Lazo in the back as he ran away. Williams was charged with murder, although the charges were later dismissed for insufficient evidence.

At 10:00 p.m. on April 21, Gonzalez and Villegas were arrested at Villegas’s home. At the time, the police only had an arrest warrant for Gonzalez, who was 18.

After a delay of about an hour, Villegas ( then 16: HL) was taken to Juvenile Investigative Services. He was handcuffed to a chair and questioned by Marquez, who threatened him and said he would take him to the desert and “beat his ass.” Villegas had never been interrogated before and would later say he was “terrified out of his mind.” Finally, Villegas agreed to give a statement. First, he said Williams did the shooting. Marquez slapped him and told him that was wrong and that he would die in the electric chair if he didn’t confess. During the next hour or so, Marquez and Villegas worked on Villegas’s confession. Marquez was also in communication with Graves, who was interrogating Gonzalez at police headquarters. The officers kept adjusting the two statements until they nearly matched (although still contained inconsistencies) and also more closely lined up with the statement given by Williams. Gonzalez was charged, but the case was later dismissed.

Villegas recanted his confession a few hours after signing his statement. He told a juvenile probation officer that “he didn’t do it,” and that he had confessed because he was tired and the police “were harassing him.” By then, it was too late. He was charged with capital murder.

Villegas’s first trial was in December 1994. He was represented by Jaime Olivas. Williams, Gonzalez, and Rangel all testified for the prosecution. Rangel maintained that Villegas had been kidding about his involvement with the shooting. Williams and Gonzalez said that their statements implicating Villegas were false and obtained through threats. Villegas also testified about Detective Marquez’s interrogation tactics. In addition, several defense witnesses said that Villegas was easily manipulated and had a history of lying. Villegas had dropped out of school in the seventh grade, and a forensic psychiatrist who examined him said he had emotional problems and possible mild mental retardation, conditions that would make him susceptible to police pressure. The trial ended with a hung jury, deadlocked at 11-1 in favor of conviction.

Villegas’s second trial was in August 1995. Jaime Esparza, the district attorney for El Paso County, was again the lead prosecutor, but Villegas, who had been declared indigent, now had a new attorney. Olivas had offered to again represent him, but that request was denied. Barely two months before the trial was to begin, the case was assigned to attorney John Gates. He had little time to prepare and didn’t ask for a continuance. Gates called only one witness, a sharpshooter who testified about how difficult it would be to shoot the two young men in the manner suggested by Villegas in his confession. In his closing statement, Gates said that Villegas had no intention of killing anyone; he had just been reckless.

On August 24, 1995, Villegas was convicted and sentenced to life in prison. He appealed his conviction, but his appeal was rejected by the Eighth Court of Appeals in 1997.
In 2007, Villegas filed for a writ of habeas corpus, seeking a new trial on the basis of ineffective counsel. The petition would later be amended to also include a claim of actual innocence, after two potential witnesses came forward. The Center on Wrongful Convictions of Youth at Northwestern University School of Law assisted his team of local attorneys on the petition.

Judge Sam Medrano Jr. held hearings in 2011. On Aug. 6, 2012, he recommended that Villegas receive a new trial. Judge Medrano said Gates had provided ineffective counsel.
Judge Medrano said that Gates should have attacked the inconsistencies in the statements and testimony given by Villegas, Rangel, Williams, and Gonzalez. First, there was no evidence of beer being stolen that night from any of the convenience stores the young men mentioned. Second, Lujan and Ramirez couldn’t have been involved. Ramirez was in jail at the time, and Lujan was under electronic house arrest. Third, their statements about the shooting itself didn’t match the forensic and physical evidence.  Witnesses only recalled one burst of gunfire; there were no shell casings found near Lazo’s body; and nothing to suggest he had been shot while running away.

But rather than noting these inconsistencies, Gates had cut off his line of questioning in this area. Moreover, at the prosecutor’s request, he had stipulated to the state’s account of what the autopsy report concluded, although this account contained an error and an omission. It said Lazo had been shot three times, not twice, and it failed to note that the bullets had struck Lazo in the front. In closing arguments, Esparza used this misinformation to argue that Villegas had shot Lazo three times, which he said indicated an intent to kill (At the first trial, Esparza had correctly said Lazo was shot twice.).

In addition, Gates failed to challenge both the truthfulness of Villegas’s confession and the manner in which it was obtained. Marquez, Judge Medrano found, violated Villegas’s rights by delaying his intake at the juvenile center and not reading him his Miranda rights until more than an hour after he was in police custody.

The judge also found that there was new evidence of innocence.  Early in the investigation, police had interviewed Rudy and Javier Flores, two brothers who knew England and Lazo. Javier Flores, who was 20, and Lazo had fought at school. Rudy Flores, who was 15, had gotten in a heated argument with England and Lazo at a party two weeks before the shooting and threatened to kill Lazo. In addition, Javier Flores’s car, which Rudy occasionally drove, was similar to the one described by Medina and Hernandez, and he was seen just a few hours later firing a .22-caliber gun. Officers responded to that shooting and confiscated the weapon, but the ballistics tests were never released. Despite these leads and others, Marquez and the other officers dismissed the Flores brothers as suspects. 

There was extensive publicity in El Paso about Villegas’s habeas motion. Jamarcquies Graves heard about the hearings and came forward at the urging of his girlfriend. He testified that he had heard the Flores brothers say that Villegas was being “locked up because he went down for something that they had did.”  Separately, a woman named Connie Martinez Serrano said she had gone to the Flores’s house after the shooting with another woman who was going to pick up a gun there. It was a .22, and the woman refused to take it after she learned it had been used. Serrano also said that a close friend of Rudy Flores had told her that Flores had admitted shooting Lazo and England. Serrano said she called Crime Stoppers several times, but was repeatedly told that the police had the right suspect in custody.

The state appealed Judge Medrano’s ruling, but the Texas Court of Criminal Appeals ruled on Dec. 18, 2013 that Villegas was entitled to a new trial because of ineffective counsel. The court disagreed with Judge Medrano’s finding that Villegas had met the standard to show actual innocence. Villegas was released on bail on Jan. 14, 2014. The state prepared for a third trial.

That trial was supposed to begin in early 2015 but was delayed for several reasons. Villegas’s attorneys had moved to suppress his 1993 confession, and Judge Medrano ruled in late 2014 that it was inadmissible, obtained by “coercive conduct by police officers.” The state didn’t appeal that decision, but instead moved to have recorded prison telephone conversations between Villegas and his friends and family admitted into evidence. Judge Medrano ruled that those conversations could not be admitted, as did the Eighth District Court of Appeals, and then the Texas Court of Criminal Appeals.

The third trial began Oct. 1, 2018, after Villegas had rejected an Alford plea that would have allowed him to remain out of prison. This time, prosecutors couldn’t use his confession, and much of the police’s investigative work had been discredited. Instead, the state relied on Rangel, who again testified that Villegas had said he had shot the men. Under cross-examination, Rangel also said he knew his cousin was joking. In addition, a childhood friend, Oscar Gomez, testified that he told police in 2014 that Villegas had hinted to him in 1993 that he shot the men, although Gomez also testified that he only said that because the police were pressuring him, and he was afraid he would be put in jail over some traffic warrants. The jury deliberated for eight hours over two days before finding Villegas not guilty.

Prosecutor James Montoya said that despite the verdict, the El Paso County District Attorney's Office still believed that Villegas was responsible for the two deaths. “There are no other suspects. There is no one else to investigate. We believe when the defendant confessed to his cousin, to his friend that those were truthful confessions and that he was admitting his guilt.”

After the verdict was announced, Villegas went to pray at St. Mark Catholic Church. He said, “Even in court when we were waiting, people were coming up to us and saying, ‘We are rooting for you.’ Even law enforcement in the courtroom, I can’t say who they are, were even saying, ‘We are rooting for you. We are rooting for you.’”

Villegas filed a civil lawsuit in 2015 in U.S. District Court against the City of El Paso and several police officers, including Marquez and Graves, for violating his civil rights. That litigation was stayed pending the outcome of his third trial, but now is scheduled to move forward."

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5389
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

----------------------------------------------

Covid-19/Criminal Justice: California: Rape kits: A bizarre 'pandemic' twist: 'Forensic Magazine' reports: "Fears of getting infected with the coronavirus have prompted authorities in Northern California to allow some sexual assault victims to collect evidence with a nurse directing them in the hours-long process through a video call." But will this 'evidence' hold up in the criminal courts if a rape charge is laid? HL)

PUBLISHER'S NOTE: The proper collection collection of forensic 'rape kit'  evidence as part of sexual assault investigation is crucial to both complainants and suspects alike - and therefore of interest to this Blog.      I was fascinated by this story as it shows the challenges of collecting forensic evidence during a pandemic - especially  where shelter-in-place orders are in effect. What a strange new world!

Harold Levy: Publisher: The Charles Smith Blog.

----------------------------------------------------------

QUOTE OF THE DAY: "The way the evidence is collected could lead to cross-contamination and would raise reasonable doubt, criminal defense attorney Mark Reichel said. “It is absolutely fraught with danger because when you have a dispassionate law enforcement officer collecting evidence and replace that with the victim who then manufactures the most critical evidence, that’s going to cause reasonable doubt,” Reichel said. “If you want to frame someone, it’s easy to get their DNA onto a swab where you do a sex assault kit, and say, ‘Oh, look, here’s their DNA,’ ” he added.

-------------------------------------------------------------

PASSAGE OF THE DAY: "The temporary measure put in place in Marin County after shelter-in-place orders were issued last month to stop the spread of the virus raises issues of evidence contamination and other problems that would be challenged in court, defense attorneys said.

-------------------------------------------------------------

STORY:"Some California Sex Assault Victims Collect Own Evidence Amid COVID-19," published by Associated Press on April 17 2020.

GIST: "Fears of getting infected with the coronavirus have prompted authorities in Northern California to allow some sexual assault victims to collect evidence with a nurse directing them in the hours-long process through a video call.

The temporary measure put in place in Marin County after shelter-in-place orders were issued last month to stop the spread of the virus raises issues of evidence contamination and other problems that would be challenged in court, defense attorneys said.

Monterey County Deputy District Attorney Lana Nassoura said Thursday the temporary measure doesn’t apply to victims of sexual assault who are children or who have been injured and is allowed when the victim is comfortable and able to conduct the forensic examination on themselves.

“The last thing we want is a victim not reporting the assault to law enforcement because they’re worried about getting sick, so we wanted to give them an option to be able to do that without those concerns,” Nassoura said.

She said the measure also aims to protect the nurses who normally conduct the prolonged examinations in small rooms and who lack the proper equipment to protect them from exposure to the virus.

So far two sexual assault victims have collected the evidence in their cases, one on April 5 and the other one Monday, Nassoura said.

In one of the cases, the victim was exhibiting COVID-19 symptoms. The victim hadn’t yet received results from their coronavirus test, and officials offered the victim the virtual self-examination to protect personnel.

The examination was done through a Zoom video call “because of concerns that the victim might be infected and to not postpone the examination because it’s best to collect evidence as close in time to the assault as possible,” Nossoura said.

Nossoura said the “temporary protocol” starts when a police officer drops off a rape test kit outside the victim’s residence and then waits in his patrol car. Once the victim retrieves the kit and goes inside, they both join a Zoom video call along with a forensic nurse and a victim advocate.

As it’s done during a normal examination, the nurse interviews the victim and after the officer takes the victim’s statement, the officer and the advocate leave the call. The nurse then directs the victim on how and what evidence to collect.

After the victim places the kit outside their door, the officer collects it and takes it to a forensic lab for analysis. The nurse then offers the victim to do a video call with just the victim advocate, who can offer counseling.

The way the evidence is collected could lead to cross-contamination and would raise reasonable doubt, criminal defense attorney Mark Reichel said.

“It is absolutely fraught with danger because when you have a dispassionate law enforcement officer collecting evidence and replace that with the victim who then manufactures the most critical evidence, that’s going to cause reasonable doubt,” Reichel said.

“If you want to frame someone, it’s easy to get their DNA onto a swab where you do a sex assault kit, and say, ‘Oh, look, here’s their DNA,’ ” he added.

Nossoura disagreed and said the chain-of-custody protocols are in place throughout the process and the collection of evidence is observed by a nurse in real time.

“This isn’t a situation where someone goes to a pharmacy and picks up a kit, goes home and does it themselves and then drops it off at the police station,” she added.""

The entire story can be read at:

https://www.forensicmag.com/563367-Some-California-Sex-Assault-Victims-Collect-Own-Evidence-Amid-COVID-19/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

-----------------------------------------------------------------

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

------------------------------------------------------------------

Rosa Jimenez: Texas; Major Development: Her lawyers have brought an emergency motion in federal court, which, as reported by Statesman Reporter Ryan Autullo, "states that the health of Rosa Jimenez — an undocumented Mexican national serving 99 years for a crime four judges now believe she may not have committed — is at a heightened risk because she is immunocompromised with stage 4 chronic kidney disease."

BACKGROUND: "United States District Judge Lee Yeakel has overturned the murder conviction of Estela Rosa Jimenez and ordered a new trial based on Jimenez being denied her constitutional right to present qualified medical experts at her trial in August 2005. The decision is grounded on the earlier recommendation of United States Magistrate Judge Andrew Austin issued in September 2018. It has been almost 15 years since Jimenez was convicted of murder for the death of a 21-month-old child in her care. Jimenez has always maintained her innocence and stated the child’s death was a tragic accident and not murder.  Lawyer Bryce Benjet:  “Rosa Jimenez was convicted based only on the scientifically invalid medical theory that was physically impossible for an infant to have choked on a wad of paper towel. There were no signs of abuse, Ms. Jimenez immediately tried to resuscitate Bryan Gutierrez and called for help. As any parent knows, the state’s theory made no sense. We have since presented leading experts in pediatric choking who described similar incidents of accidental choking and confirmed that nothing about this case suggested foul play.  Unfortunately, Ms. Jimenez’s appointed defense counsel failed to hire a competent medical expert and the jury made its decision based on invalid science. Judge Yeakel’s decision today granting a new trial confirms the findings of both the trial judge and the state habeas judge that there is a reasonable likelihood Ms. Jimenez was wrongfully convicted. There is simply no evidence that this little boy’s death was anything but a tragic accident. Ms. Jimenez and her family have likewise suffered immeasurably. Her children have grown up without their mother, and Ms. Jimenez’s health has deteriorated while she spent almost half of her life imprisoned for a murder that never even happened."

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PASSAGE OF THE DAY: The motion also cites four pediatric doctors who question the evidence used to convict Jimenez in 2005. They concluded that a bloody mass of paper towels extracted from 1-year-old Bryan Gutierrez’s throat were likely consumed accidentally by the boy and not, as trial experts theorized, forced there by Jimenez, his babysitter. Jimenez, 19 at the time, told responding officers that the boy walked into the kitchen at her home clutching his throat and choking after playing with a roll of paper towels earlier in the day. After failed attempts to clear the boy’s airway, Jimenez said she rushed him to a neighbor’s house, where she could call emergency services. The boy died three months later. Lawyers with the New York-based Innocence Project, who are handling Jimenez’s appeal, are requesting a personal recognizance bond that would release Jimenez pending the resolution of the appeal — a move that many defense attorneys are now employing during the pandemic for clients with underlying health conditions. Jimenez, now 37, was diagnosed with the kidney disease in 2017."

----------------------------------------------------

STORY: "Babysitter's convictions questioned; Lawyers seek her release amid coronavirus threat," by reporter Ryan Autullo, published by The Statesman on April 22, 2020.

GIST: "As they await their next move in a fight to overturn a babysitter’s conviction in a toddler’s choking death, lawyers for the sitter are focused on getting her out of prison, fearing she’ll contract the coronavirus while locked up.

An emergency motion for release filed last week in federal court states that the health of Rosa Jimenez — an undocumented Mexican national serving 99 years for a crime four judges now believe she may not have committed — is at a heightened risk because she is immunocompromised with stage 4 chronic kidney disease.

The motion also cites four pediatric doctors who question the evidence used to convict Jimenez in 2005. They concluded that a bloody mass of paper towels extracted from 1-year-old Bryan Gutierrez’s throat were likely consumed accidentally by the boy and not, as trial experts theorized, forced there by Jimenez, his babysitter.

Jimenez, 19 at the time, told responding officers that the boy walked into the kitchen at her home clutching his throat and choking after playing with a roll of paper towels earlier in the day. After failed attempts to clear the boy’s airway, Jimenez said she rushed him to a neighbor’s house, where she could call emergency services. The boy died three months later.

Lawyers with the New York-based Innocence Project, who are handling Jimenez’s appeal, are requesting a personal recognizance bond that would release Jimenez pending the resolution of the appeal — a move that many defense attorneys are now employing during the pandemic for clients with underlying health conditions. Jimenez, now 37, was diagnosed with the kidney disease in 2017.

As of Tuesday, 557 inmates in Texas state prisons had tested positive for COVID-19, the disease linked to the coronavirus. Three died.

The Mountain View Unit in Gatesville where Jimenez is staying had zero positive tests, but just down the road, the Lane Murray Unit reported 37 positive tests.

Jimenez’s attorney, Vanessa Potkin, solicited a medical opinion from Dallas nephrologist Dr. Bruce Wall, who suggested Jimenez is 60% more likely to contract viral illnesses, pneumonia, and bladder infections, and will likely be similarly susceptible to COVID-19."

Jimenez’s attorney, Vanessa Potkin, solicited a medical opinion from Dallas nephrologist Dr. Bruce Wall, who suggested Jimenez is 60% more likely to contract viral illnesses, pneumonia, and bladder infections, and will likely be similarly susceptible to COVID-19.

Jimenez, according to the filing, can move into an apartment in Austin that the Innocence Project secured that will allow her to safely shelter in place if she’s released pending the resolution of her appeal.

The court’s decision will follow a response from prosecutors with Texas Attorney General Ken Paxton’s office, who are likely to oppose Jimenez’s release. Friday is the deadline for that response.

The underlying appeal is on hold while the 5th U.S. Circuit Court of Appeals reviews a directive that U.S. District Court Judge Lee Yeakel made to prosecutors last fall to either retry the case or release Jimenez from custody.

Yeakel is among four judges who have expressed a belief that Jimenez might be innocent. Their rationale, more or less, is that a medical examiner who testified for the defense lacked the necessary expertise to refute testimony from his counterpart for the prosecution who said it would have been “impossible” for the boy to have digested the towels accidentally.

Four pediatric doctors cited in last week’s filing concluded, “the medical evidence makes it far more likely than not that this was an accidental ingestion. This is a tragic outcome, but an outcome stemming from an accident, not a malicious act on the part of Rosa Estela Jimenez.”

Their findings were presented to Travis County District Attorney Margaret Moore and a team of her prosecutors during a virtual conference with Jimenez’s lawyers on March 31, the motion stated.

Moore, whose office is working with the attorney general’s office to review the case, is under political pressure after five state representatives from the Austin area wrote a letter in February requesting that Moore take a good look at the evidence used to convict Jimenez.

Though stopping short of demanding Jimenez’s release from prison, state Reps. Donna Howard, Celia Israel, Gina Hinojosa, Sheryl Cole and Vikki Goodwin expressed concern that Jimenez is innocent and might not live much longer because of her kidney problems.

“There may indeed be some legal technicalities of which we are we are not fully appraised, but instances like this challenge us all to do what is humane,” they wrote.

Moore, in a responding letter, told the lawmakers that the case is “receiving our careful and most compassionate attention.”

Moore did not return a message for comment Wednesday about Jimenez’s request for release.

The entire story can be read at:

https://www.statesman.com/news/20200422/babysitterrsquos-conviction-questioned-lawyers-seek-her-release-amid-coronavirus-threat

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

-----------------------------------------------------------------

FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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JoAnn Parks, Suzanne Johnson, Rodney McNeal, and David Jassy: California: Governor Newsom has been unjustly vilified for his humane use of his clemency powers: Kudos to the Crime Story for publishing Amanda Knox's excellent interview (with Christopher Robinson) of California Innocence Project Director Justin Brooks on Newsom's decision to grant clemency to these four California Innocence Project clients..."On March 27, 2020, Governor Gavin Newsom granted clemency to 26 Californians, four of whom were clients of the California Innocence Project (CIP): JoAnn Parks, Suzanne Johnson, Rodney McNeal, and David Jassy. These CIP clients are each middle-aged or senior citizens who have spent decades behind bars. JoAnn Parks, 67, has been in prison since 1993 for allegedly starting a fire that killed her three children. The CIP presented evidence in 2015 that discredited the state’s theory of arson. Suzanne Johnson, 75, has spent the last 22 years in prison, convicted of murder in the 1997 death of an infant who accidentally fell out of her high chair. Rodney McNeal, 50, was found guilty in 2007 for the murder of his pregnant wife. The CIP uncovered evidence that another man―also guilty of two other murders―committed the killing. David Jassy, 45, has served 11 years after accidentally hitting a pedestrian with his car following an altercation. '

INTERVIEW: "Amanda Knox interview: Gavin Newsom's outbreak of mercy, published by Crime Story on April 6, 2020.

SUB-HEADING: "Governor grants clemency to four California Innocence Project clients."

PASSAGE OF THE DAY: "One of my clients, Susan Johnson, if people could see her, they would really see the failings of our correctional system. We have definitive proof that she’s innocent. And every time I go visit her, she’s in her mid-70s, she just sits there knitting, and this woman, just is zero zero harm to society. And one of the things she says to me is she cares more about being able to visit with her grandchildren than anything else. But because she’s in prison for the death of the child, they won’t even let her visit with her own grandchildren. And it’s just so heartbreaking and ridiculous to see her locked up in this high security prison, and taxpayers spending all this money. And we’ve just turned some of these facilities into very expensive senior citizen housing. And her family are so sweet and so supportive, that members of her family actually moved to this little town in the middle of California where the prison is just to be close to her and going and seeing her constantly and it’s just you know, it’s heartbreaking when you see that impact on these families."

PASSAGE OF THE DAY: Justin Brooks: "

GIST: "On March 27, 2020, Governor Gavin Newsom granted clemency to 26 Californians, four of whom were clients of the California Innocence Project (CIP): JoAnn Parks, Suzanne Johnson, Rodney McNeal, and David Jassy. These CIP clients are each middle-aged or senior citizens who have spent decades behind bars. JoAnn Parks, 67, has been in prison since 1993 for allegedly starting a fire that killed her three children. The CIP presented evidence in 2015 that discredited the state’s theory of arson. Suzanne Johnson, 75, has spent the last 22 years in prison, convicted of murder in the 1997 death of an infant who accidentally fell out of her high chair. Rodney McNeal, 50, was found guilty in 2007 for the murder of his pregnant wife. The CIP uncovered evidence that another man―also guilty of two other murders―committed the killing. David Jassy, 45, has served 11 years after accidentally hitting a pedestrian with his car following an altercation. The decision to grant their clemency petitions came shortly after news that COVID-19 had begun to spread throughout the California prison system. Newsom’s office stated that, “In addition to the public safety and justice factors that the governor normally considers when reviewing clemency cases, he also considered the public health impact of each grant, as well as each inmate’s individual health status.” In the midst of the pandemic, this is a rare outbreak of mercy, and Chris and I reached out to Justin Brooks, Director of the California Innocence Project, for his thoughts on Governor Newsom’s decision. 

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Amanda Knox

So, four clemencies in one day.

Justin Brooks 

I cried like a baby. I was so overwhelmed with emotion. Some of those cases, I have just been fighting for 15 years, and it’s just, to see the end of the battle was just overwhelming and to have for it to happen really suddenly was crazy.

Amanda Knox

It sounds like it was unexpected.

Justin Brooks  

I’ve been fighting these clemencies for years and years and I’ve constantly been in touch with the governor’s office and giving them all the information and pushing and pushing. It felt shocking, that finally the door that I’ve been pushing on for so many years just suddenly opened.

Amanda Knox  

What is the precedent for four clemencies in one day for an Innocence Project?

Justin Brooks  

I’m not aware of anyone who’s done that. I mean, clemency is a very extraordinary remedy. It goes all the way back to the Queen before the United States, they called it the Queen’s prerogative, and it’s a safety valve. And that’s what I’ve always argued, is, clemency is the perfect vehicle for innocent people in prison because it’s supposed to be a safety valve when the system fails. The problem is, it’s become so politicized and there’s so much backlash in these cases that very few governors are willing to take any risks. So most of the time what you see in the news, you know, “So-and-so governor gave 100 clemencies,” they’re mostly old drug cases where you’re clearing people’s records for people who are out of custody. It’s more extraordinary that you’ll see a clemency in a case where someone’s in custody. And in my case, it was four homicide cases. And that’s really extraordinary that the governor is willing to take that political risk.

Chris Robinson 

Was there any chance of exoneration for these four before the clemency? Or had you kind of given up on that and clemency was the final alternative?

Justin Brooks   

Yeah, we’d pretty much exhausted the habeas remedies of getting an exoneration. The good thing about clemency, though, is there’s still a door open to be exonerated, because what I plan on doing is going back with these cases a few years later and seeking pardons, and you still have the opportunity to do that. 

Amanda Knox 

You mentioned that these clemency requests had been on the books for years. What was the state of them before coronavirus?

Justin Brooks 

For the last eight years, I’ve been saying, you know, I’ve been sending more documents. I’ve been doing everything they asked. I’ve been begging them to go meet with my clients. I’ve been telling them I’ll bring witnesses to Sacramento. It’s just been constantly banging my head against the door, trying to get movement. And, you know, this is the one silver lining maybe in this, this virus, is that the state got in a situation where they realize that the biggest problem in our state is going to be the correctional population, because this virus is going to go like wildfire through the prisons and jails. And they’re trying to get as many people out, but they’re trying to get everyone out who’s in pre trial detention, and get everyone out who’s got misdemeanor charges, and these are four homicide cases. But fortunately, Gavin Newsom was willing to take a chance on these cases. And, and it’s a big chance because, if you look back in history, the reason that Mike Dukakis didn’t become president of the United States was a guy named Willie Horton. And George Bush the First figured it out, that the best way to beat Mike Dukakis was to say he was soft on crime. And they used Willie Horton, who was an inmate who had been released in Massachusetts and had gone on to commit crimes. And they said, “Look, Mike Dukakis is soft on crime. He’s letting murderers out of prison.” And in the last 35 years, every politician has learned that lesson. Don’t take chances with criminal justice. 

Chris Robinson 

It’s an infamous ad. Right? I mean, it’s one of the most famous political ads.

Justin Brooks 

That fear is a very powerful political tool. So, I’ve been really impressed by Governor Newsom. I mean, he, as soon as he got in office, he suspended the death penalty, which is a big move. And then to do this, you know. And I just, but I can’t, I mean, I know you guys understand that feeling, but it’s just, it is, it’s so overwhelming. You fight and fight and fight and fight and fight and it’s almost like you can’t believe you’ve got to the end of it. And being able to call the family members and give them the news is just the most joyful experience that you can have. It was, they were screaming and crying. One of my clients, Susan Johnson, if people could see her, they would really see the failings of our correctional system. We have definitive proof that she’s innocent. And every time I go visit her, she’s in her mid-70s, she just sits there knitting, and this woman, just is zero zero harm to society. And one of the things she says to me is she cares more about being able to visit with her grandchildren than anything else. But because she’s in prison for the death of the child, they won’t even let her visit with her own grandchildren. And it’s just so heartbreaking and ridiculous to see her locked up in this high security prison, and taxpayers spending all this money. And we’ve just turned some of these facilities into very expensive senior citizen housing. And her family are so sweet and so supportive, that members of her family actually moved to this little town in the middle of California where the prison is just to be close to her and going and seeing her constantly and it’s just you know, it’s heartbreaking when you see that impact on these families.

Amanda Knox  

Have you been able to speak with them since the decision? And how are they doing now?

Justin Brooks 

Suzanne Johnson, she’s going to get out this week. I haven’t had a chance to be able to talk directly with her yet, but I’ve had a lot of messages back and forth between her family. David Jassy is actually a Swedish citizen, and so we’re going through the Swedish Embassy and trying to get him out of the country so he doesn’t go into ICE custody and end up in a really bad situation. And with the other two clients, what the governor did is he sent them to the board to do an expedited review of their cases. And the governor has been doing that to make sure that they have an exit plan and support on the outside. Normally I think it’s actually not a bad idea, but in this case, it’s kind of unfortunate because it’s slowing down the process of getting them out. And we’re really in exigent circumstances here, in terms of the virus.

Amanda Knox  

How many more clients do you have that are awaiting similar decisions?

Justin Brooks  

I’ve got two in-custody clients. I think what the governor did is put to the backburner some other petitions I’ve put in for pardons of clients that have already been released. Right now the focus is getting people out.

Amanda Knox  

Any habeas corpus petitions that are newly on the docket as an attempt to reduce the prison population?

Justin Brooks

Not that I’m currently pursuing, but California has ordered the release of 3500 inmates who all are short termers. They said anyone who had under 60 days left is going to be immediately released. And obviously, that’s the thing to do. And they should go beyond 60 days. I mean, if someone’s in there, let’s say they have a year left on their sentence, like, why would you put them in a deadly situation when they’ve got that kind of time left on their sentence? 

Amanda Knox

Are we seeing any nonviolent offenders being given the opportunity to serve a year sentence or a three year sentence with, like, electronic monitors at home?

Justin Brooks 

I haven’t heard of them doing that, but that’s absolutely what should be happening. 

Chris Robinson 

Every business and school is rushing to figure out how to do remote learning and remote meetings. You’d think we’d be rushing to figure out how to have remote detention, if detention is still necessary.

Justin Brooks  

Yeah, because it’s all about density. Right? I mean, that’s what we’re trying to do is decrease density everywhere we can, so people can be separate. And you know, I don’t have to tell you, Amanda, how difficult in a prison it is to stay separate from people. 

Chris Robinson 

Have you thought forward about in the future when the pandemic is passed, whether or not there’s going to be a lasting legacy of the sorts of decisions that are being made now? 

Justin Brooks   

That’s a great question. I hope what happens is they see that nothing bad came from letting these people out of prison. And I think they’d be more willing to take more chances that way. 

Chris Robinson

You know what you need? You need data over the next, you know, five years of all the people that were given early releases of different forms due to the corona panic. Look at the data and see how many of them reoffended. See how many of them caused problems and how versus becoming productive members of society. 

Justin Brooks

That’s actually a terrific idea. The data is always the most important thing. And I think if we could prove that, it could move it. I’m lucky. I mean, I feel very lucky today to be in California where we have a governor who is open to that, but that’s certainly not the norm across the country. 

Amanda Knox 

Do you know if other Innocence Projects are seeing a similar rise in clemency grants and prison releases for their clients?

Justin Brooks

I haven’t seen people posting that they’ve been very successful at accomplishing that. I think the issue is they have so many other things they’re thinking about. But hopefully you can get their attention on these cases. That’s the hard thing. It’s getting people’s attention. And getting politicians to focus on your issue is always the challenge.

Amanda Knox

What do these moves to reduce the prison population reveal about the necessity of confining people in the first place?

Justin Brooks  

Those of us who’ve been studying it for decades know that the reason our prisons are filled is mostly political. It’s not about, that there is this heavy impact in improving our society by filling up our prisons. We know that it’s had a devastating impact on society in terms of families left alone, who then end up on welfare, children who don’t have their parents who end up in the system themselves. We know that economics is what drives crime, not how many people you have locked up in prison. So the hope is that enough citizens can become aware of that, that they’re no longer frightened into supporting tough-on-crime policies, and that we can start taking some of the power away from the whole prison industry. That’s a multi-billion dollar industry built on our fears. So I think as these numbers continue to go down, if people don’t see that all of a sudden, you know, this turns into a scene out of Batman.

Chris Robinson 

Arkham Asylum doors open.

Justin Brooks

Exactly.

Chris Robinson

I’m curious, Justin, about on a personal sort of ego note. You dedicate your life to this stuff. I imagine it’s got to be a little bit like struggling to push a boulder up a hill for decades and you’re getting so close, and then a big gust of wind comes along and pushes it the rest of the way for you. How does that feel?

Justin Brooks

Every one of these cases, I just said this to my wife the other night, it just, I don’t realize until it happens the weight I’d been carrying with individual cases. It feels like a brick coming off my chest. And it’s one after the other. And that’s what it feels like. It’s like when we lose it’s devastating and when we win it’s exhilarating. So yeah, these are just, these are the weeks, this is what I live for. What I absolutely live for are these moments in time.

The entire interview can be read at:
https://www.crimestory.com/2020/04/06/amanda-knox-interview-gavin-newsoms-outbreak-of-mercy/

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher: The Charles Smith Blog;

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FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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