UP-DATE: PATHOLOGIST STEVEN HAYNE; ANOTHER BALKO EXPOSEE; HOW HAYNE BECAME MISSISSIPPI'S "CHIEF STATE PATHOLOGIST."

"IT’S REALLY PRETTY INCREDIBLE TO CONTINUE TO DISCOVER THE EXTRAORDINARY LENGTHS TO WHICH MISSISSIPPI OFFICIALS HAVE GONE OVER THE YEARS—AND CONTINUE TO GO—TO KEEP HAYNE ON THE WITNESS STAND."

RADLEY BALKO; REASON;

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"CARRINGTON, WHOSE GROUP DID NOT PLAY A ROLE IN DEFENDING EDMONDS, SAYS THEY ARE CONCERNED THAT DR. HAYNE’S TESTIMONY MAY HAVE HELPED TO CONVICT OTHER INNOCENT PEOPLE. THEY HAVE LAUNCHED A COMPREHENSIVE REVIEW OF DR. HAYNE’S TESTIMONY, AND WORRY THAT DR. HAYNE MAY HAVE BEEN WILLING TO TAILOR HIS TESTIMONY IN ORDER TO HELP PROSECUTORS.

“WE HAVE FOUND CASES WHERE DR. HAYNE, LIKE HE DID IN TYLER EDMONDS’ CASE, STRAYS BEYOND THE BOUNDS OF SCIENCE, BEYOND THE BOUNDS OF GOOD OBJECTIVE FORENSIC WORK, AND OFFERS TESTIMONY THAT IN MANY CASES, AMOUNTS TO NONSENSE,” EDMONDS SAID."

JONEIL ADRIANO; CNN; 360 DEGREES;

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Radley Balko has done a superb journalistic job of exposing Dr. Steven Hayne - and protecting the public from him.

One of the unanswered questions to date - at least until Balko published his latest exposee on September 1, 2009, under the heading, "Update in Mississippi: Titles Are Free!" - is how Hayne received the official designation as Mississippi's "Chief State Pathologist."

"Criminal defense attorney Matt Eichelberger has found an fascinating little document I haven’t yet seen in my reporting on Steven Hayne, Mississippi’s controversial, fallen, and possibly rising again, medical examiner," the story, published in Reason, begins,

"To set up the document, a quick recap: By law, Mississippi is required to have an official state medical examiner," the story continues.

"Hayne briefly held the position on an interim basis in the late 1980s, but was forced to step down when it was discovered that he wasn’t board certified in forensic pathology. State law requires certification in forensic pathology by the American Board of Pathology. Hayne took the certification exam in the mid-1980s, but failed it.

The state then hired a trio of reputable, qualified state examiners, all of whom eventually left the position in frustration after continually battling Hayne and his allies in the state’s coroner and DA offices. The last of the three, Emily Ward, left in 1995. The position has remained vacant since, leaving Hayne to do 80 to 90 percent of the state’s autopsies with no oversight.

Hayne is a doctor in private practice. Officially, he holds no position in Mississippi. Or at least he isn’t supposed to. Yet Hayne has testified in court a number of times that he is Mississippi’s “chief state pathologist,” a position that has no basis in state law.

The document Eichelberger explains where Hayne got that title. It’s a contract signed in 2006 between Hayne and the state’s then Commissioner of Public Safety, George Phillips. The contract essentially creates the uncompensated, non-position of “chief state pathologist,” and gives the title to Hayne. The position includes nearly all of the powers of the official state pathologist, save for the ability to make the rules other medical examiners are to follow while conducting official state autopsies. Given that Hayne was essentially the only game in town, and that he flagrantly violates the standards of his profession, Phillips probably found that portion of the law unnecessary.

To give Hayne the position outlined by state law would have required the legislature to eliminate the certification requirement, which probably would have attracted some negative attention. So Phillips just created a new position with most of the same powers and a similar title, and quietly bestowed it upon Hayne.

As Eichelberger points out, another interesting portion of the contract allows Hayne to conduct private autopsies at the modern, state-funded lab in Jackson at just $100 a pop. That worked out well for Hayne. For most of his career, he had been performing his all-night, marathon autopsy sessions in the basement of a funeral home owned by Rankin County Coroner Jimmie Roberts. Roberts and Hayne had a falling out in 2006. Some of my sources in Mississippi have wondered, and never been able to explain, how Hayne was able to move into the state facility despite not holding any official state position. Now we know.

It’s really pretty incredible to continue to discover the extraordinary lengths to which Mississippi officials have gone over the years—and continue to go—to keep Hayne on the witness stand."

The story can be found at:

Ahttp://www.theagitator.com/2009/09/01/update-in-mississippi-titles-are-free/

Publisher's note: Some of Radley Balko's fans get riled when the mainstream media pick up the shocking Steven Hayne story which Balko has doggedly exposed. Although Balko is one of my heroes - he is a courageous journalist - I think the fact that some mainstream media organizations have picked up the story is a great tribute to his skill and persistence. CNN AC360 Degree producer Joneil Adriano's post entitled "Pathologist’s work raises questions," which was published on August 21, 2009, is a case in point.

Harold Levy; Publisher; The Charles Smith Blog;

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"When other boys were playing football, learning to drive and chasing girls, Tyler Edmonds was a child locked up with adults, serving a life sentence in a Mississippi prison for a crime he didn’t commit," the post begins.

"Today, Edmonds is a free man. But he still holds a lot of resentment toward the state expert who helped to convict him of murder," it continues.

"“I think that he’s the dirt of the Earth, the scum of the Earth,” Edmonds, 20, told CNN. “If anybody deserves to be in jail, it’s him.”

The target of Edmond’s scorn is Dr. Steven Hayne, a Mississippi forensic pathologist who testified at Edmonds’ 2004 trial. Edmonds, then only 14, was accused of murdering his brother-in-law, Joey Fulgham, who had been shot in the head with a single bullet.

Dr. Hayne performed the autopsy on Fulgham and concluded that “within reasonable medical certainty,” two people had likely fired the murder weapon. Dr. Hayne based his findings on his examination of the gunshot wound.

“Since it would be past the center line of the decedent’s head when fired, 20 degrees past the center line of the head, so therefore, it would be consistent with two people involved,” Dr. Hayne said on the witness stand.

Critical Testimony

Dr. Hayne’s testimony seemed to give credibility to the prosecution’s theory that Edmonds and his older sister acted together to murder her husband.

Edmonds’ attorneys appealed his conviction all the way to Mississippi Supreme Court, which overturned his conviction and ordered a new trial. The court seemed troubled by Dr. Hayne’s “speculative” and “scientifically unfounded” testimony.

“You cannot look at a bullet wound and tell whether it was made by a bullet fired by one person pulling the trigger or by two persons pulling the trigger simultaneously,” the court said.

In 2007, four years after he was arrested, Edmonds was released on bond. In 2008, he was retried and acquitted.

“They went to a second trial,” said Tucker Carrington, Director of the Mississippi Innocence Project, “and the one thing essentially that was missing was Dr. Hayne’s opinion.”

Carrington, whose group did not play a role in defending Edmonds, says they are concerned that Dr. Hayne’s testimony may have helped to convict other innocent people. They have launched a comprehensive review of Dr. Hayne’s testimony, and worry that Dr. Hayne may have been willing to tailor his testimony in order to help prosecutors.

“We have found cases where Dr. Hayne, like he did in Tyler Edmonds’ case, strays beyond the bounds of science, beyond the bounds of good objective forensic work, and offers testimony that in many cases, amounts to nonsense,” Edmonds said.

Carrington’s group is also alarmed by the number of autopsies Dr. Hayne had been performing every year – more than 1500. The National Association of Medical Examiners recommends that pathologists perform no more than 325 autopsies annually.

Accusations Refuted

Dr. Hayne’s lawyer, Dale Danks, maintains that his client has never sent an innocent man to jail and that he has never done anything improper to aid any side in a trial.

“The role of Dr. Hayne and any other pathologist is to state in his opinion, the cause of death and the manner of the cause of that death. And that’s all he testifies to,” said Danks. “His job has always been and should be and will be if I know him as well as I know him, to be impartial and fair and not take sides in either issue.”

If there was a mistake made in Edmonds’ first trial, according to Danks, it was made by the trial judge, who should not have allowed Dr. Hayne to testify about the two-shooter theory.

“It’s up to the judge as to whether or not that’s admissible or not. Not Dr. Hayne, not the prosecution, not the defense attorney.”

Danks also says it was Edmonds himself – in a false confession that was almost immediately recanted – who said he and his half-sister were both responsible for shooting Fulgham.

“That confession was part of the facts that were presented to Dr. Hayne. And based on Dr. Hayne’s findings of his autopsy report, he said it was more in tune with what the defendant had already confessed to,” said Danks.

High Number of Autopsies

As for the criticism that Dr. Hayne is performing autopsies at a rate far higher than nationally recommended, Danks says his client’s numbers are in line with other noted pathologists.

Still, the College of American Pathologists sent Dr. Hayne a letter last year to express “concern relating to the volume of autopsies you claim to perform on an annual basis.”

And last year, the Mississippi Department of Public Safety abruptly terminated its contract with Dr. Hayne to perform autopsies, citing a backlog of nearly 500 hundred reports. Forensic Medical, Inc., in Nashville, Tennessee, now conducts autopsies for the state. But several county coroners, citing the inconvenience of using an out of state company, want Hayne to be allowed to perform autopsies again.

Hayne is also suing the Innocence Project, claiming the group’s criticism of him is defamatory. Meanwhile, two wrongfully convicted men have filed federal civil rights lawsuits against Hayne over testimony he provided at their trials.

Picking Up The Pieces

Edmond’s half-sister, Kristi Fulgham, is now on Mississippi’s death row for the murder of Joey Fulgham.

Since being acquitted last November, Tyler Edmonds has been slowly putting the pieces of his life back together again. He has his high school diploma and plans to take classes to become an EMT.

But the transition back to freedom was difficult for him and his family, and he says he now has an appreciation for the simple things in life.

“The things that most people take for granted, or don’t even think about,” Edmonds said. “Like fixing your own plate when dinner’s ready. Being able to fix your own plate and not having it fixed for you and brought to you.”

Although Dr. Hayne insists he did nothing wrong, Edmonds thinks he played a major role in his wrongful conviction, and hopes someday he will hear an apology.

“I guess for me, the biggest thing it would show is that he’s taken some kind of accountability,” Edmonds said. “I’ve already had six years of my life stolen away because of it, and you’re not even man enough to stand up and say, It was unprofessional, I was wrong.”"

The post can be found at:

http://ac360.blogs.cnn.com/2009/08/21/pathologists-work-raises-questions/

Harold Levy...hlevy15@gmail.com;

CORSICANA DAILY SUN PUBLISHES A REBUTTAL TO PROSECUTOR JOHN JACKSON'S COLUMN DEFENDING CAMERON TODD WILLINGHAM'S CONVICTION;

"IN CLAIMS (2) AND (3), MR. JACKSON DISPARAGES MR. WILLINGHAM’S INITIAL CLAIM THAT HE ATTEMPTED TO RESCUE HIS CHILDREN — A CLAIM THAT WAS COLLABORATED BY WITNESSES WHO WERE FIRST ON THE SCENE. IN FACT, MR. JACKSON BASELESSLY ATTACKS THE CREDIBILITY OF ONE OF THE NATION’S FOREMOST EXPERTS, DR. CRAIG BEYLER, BUT MOCKINGLY REFERRING TO “WELL-ESTABLISHED BURNS.” IN FACT, ACCORDING TO A DALLAS MORNING NEWS ARTICLE, DR. BEYLER WROTE THAT “EVIDENCE OF THE BURNS WILLINGHAM SUFFERED WERE WELL-DOCUMENTED, INCLUDING SCORCH MARKS ON HIS HANDS, SINGED HAIR ON HIS CHEST AND HEAD, AND A BURN ON HIS SHOULDER.” DR. BEYLER, ALONG WITH EIGHT OTHER TOP FORENSIC SCIENTISTS IN THE NATION RECRUITED TO INVESTIGATE THE CASE CAME TO THE CONCLUSION THAT THERE WAS NO EVIDENCE OF ARSON."

VICTOR STEINBOK: GUEST COLUMN; THE CORSICANA DAILY SUN;

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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Victor Steinbok's commentary is significant because it appears in the Corsicana Daily Sun - the same paper that gave prosecutor Hohn Jackson the opportunity to defend Cameron Todd Willingham's murder conviction.

Steinbok is described as a "lawyer and independent researcher."

"I am very puzzled by Mr. Jackson’s column on the Cameron Todd Willingham’s case and by the Daily Sun’s willingness to print it," the commentary begins, under the heading, "No arson means no crime occurred."

"The column does not try to contradict the findings of the Texas Forensic Science Commission — it can’t," the commentary continues.

" Mr. Jackson is presenting the impossible case that even if Mr. Willingham could not have been convicted of arson — as there was no evidence to support the theory that the fire was set — he still should have been convicted of murder and executed. This claim is like trying to convict someone of murder by firearm when there is absolutely no evidence that he has ever held a gun in his life or ever tried to procure one.

But Mr. Jackson does not stop with the claim alone. He cites seven “facts” in support of the conviction. Unsurprisingly, none of the “facts” have any bearing on the case, even if Mr. Jackson reports them accurately. Mr. Jackson is using his status in the community and in the legal profession to protect a conviction that should not stand.

The first claim may be the strongest. If indeed Mr. Willingham had attempted to kill his children twice before the fire, it may go to establish a pattern. But such pattern is only valid if there is actual evidence that the children were murdered — no arson, no murder. To make matters worse, Mr. Jackson “supports” this claim with a reference to “attemp[ing] to abort both pregnancies”. He further buttresses it by pointing out, in claim (5), that Mr. Willingham was “a serial wife abuser” of “violent nature” and prone to “vicious attacks on animals.”

But in his attempt to paint a “violent sociopath,” Mr. Jackson arrives at a contradiction — if Mr. Willingham was impulsive and violent, murder by arson — which requires premeditation and careful planning — would have been quite uncharacteristic. Mr. Jackson was a prosecutor on the case, not an expert forensic psychologist. The conclusions of claims (1) and (5) are irrelevant and nonsensical.

In claims (2) and (3), Mr. Jackson disparages Mr. Willingham’s initial claim that he attempted to rescue his children — a claim that was collaborated by witnesses who were first on the scene. In fact, Mr. Jackson baselessly attacks the credibility of one of the nation’s foremost experts, Dr. Craig Beyler, but mockingly referring to “well-established burns.” In fact, according to a Dallas Morning News article, Dr. Beyler wrote that “evidence of the burns Willingham suffered were well-documented, including scorch marks on his hands, singed hair on his chest and head, and a burn on his shoulder.” Dr. Beyler, along with eight other top forensic scientists in the nation recruited to investigate the case came to the conclusion that there was no evidence of arson.

But even if we except that the evidence in (2) and (3) suggests, as some neighbors had claimed, that Mr. Willingham did not sufficiently attempt to rescue his children from the raging fire, this would merely paint him as a less foolishly heroic figure than he tried to portray himself initially. This may be evidence of humiliation and despondency over the inability to save the children, but not of guilt. There can be no doubt that Mr. Willingham attempted to rush into the house after the firefighters arrived, which required first a neighbor, then a firefighter to restrain him.

Claim (4) concerns the use of a polygraph. Polygraph examination results or a refusal to submit to such may not be used as evidence of guilt in any US courtroom. The claim of a vulgar and insulting outburst that accompanied Mr. Willingham’s refusal is the worst kind of hearsay.

The same is true of claim (6). We have no idea why Mr. Willingham might have said what is claimed, what he actually said or if he said it at all. And, again, if there is no arson, there is no reason to suspect anything nefarious behind the statement even if he did make it.

Finally, claim (7) — the a refrigerator was blocking the rear exit — has no bearing on the murder conviction. If anything, it may suggest a path to prosecution on negligence — one never taken or considered. But does Mr. Jackson actually suggest that the refrigerator was placed at the back door specifically in order to block the exit path for the one- and two-year old children? According to Willingham’s testimony, the children were behind a far more benign child-proof barrier and could not have reached the rear exit even had they tried. Negligently creating a hazard that blocks an escape route is not the same as setting fire to the house.

It is also telling that Mr. Jackson did not use the alleged jail-house confession to support his case — after he cited it in a number of interviews with other publications, it has been pointed out that the general reliability of jail-house snitches is less than stellar. Given the circumstances and the character of the witness, the reliability of the testimony, in this case, is at the lower end.

In his column, Mr. Jackson wrote that Mr. Willingham was “charged as a multiple child murder, and not an arson-murder to achieve capital status.” But this is meaningless. The method of killing of which Mr. Willingham was convicted was arson. It does not matter if arson was not the aggravating factor in promoting the charge to capital status. If there is no arson, there cannot be a murder. And the TFSC finding is unambiguous — there is absolutely no evidence of arson at the Willingham home. No one is claiming that we know with certainty that Mr. Willingham was innocent — but we do know that he should not have been convicted for causing death through arson..."


The commentary can be found at:

—————http://www.corsicanadailysun.com/thewillinghamfiles/local_story_246212744.html

Other rebuttals to Jackson's column;

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=3600356645951441150

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE: JOHN FEEHERY WEIGHS THE IMPERFECTIONS OF THE JUSTICE SYSTEM AGAINST THE PERFECTION OF THE DEATH PENALTY IN A DNA WORLD;

"GETTING INTO ALL OF THE FACTS IN THIS PARTICULAR CASE, IT IS CLEAR THAT WE LIVE WITH AN IMPERFECT JUSTICE SYSTEM. THE SYSTEM MAKES MISTAKES. WRONG PEOPLE ARE ACCUSED AND CONVICTED. WITNESSES SOMETIMES MISREMEMBER THE FACTS, AND SOMETIMES THEY LIE FOR THEIR OWN SELF-INTEREST. SOMETIMES COPS MAKE MISTAKES, AND SOMETIMES PROSECUTORS REACH THE WRONG CONCLUSIONS.

BUT THE DEATH PENALTY, WHEN CARRIED OUT, IS ALWAYS PERFECT. IT ALWAYS KILLS THE TARGET, AND KILLS THE TARGET PERMANENTLY. AND ONCE YOU KILL THE ACCUSED, YOU CAN’T REALLY TURN BACK THE CLOCK. IF THE SYSTEM TURNS OUT TO BE WRONG, AS IT DOES ON OCCASION, SAYING YOU ARE SORRY DOESN’T DO MUCH GOOD...

DNA TESTING HAS PROVEN TO BE BAD FOR THE DEATH PENALTY. DOING THOSE TESTS AFTER THE ACCUSED HAS BEEN KILLED, AND FINDING OUT THAT THE ACCUSED WAS ACTUALLY INNOCENT (WHICH HAS HAPPENED ON MORE THAN ONE OCCASION), HAS RAISED QUESTIONS IN MY MIND ABOUT WHY WE HAVE THE DEATH PENALTY IN THE FIRST PLACE."

JOHN FEEHERY: THE PUNDIT'S BLOG;

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

-------------------------------------------------------------------------------"WITHOUT

"I never agree with Bob Herbert, the New York Times columnist," John Feehery's August 1, 2009 post on the Pundit's Blog, under the heading "Is the death penalty defensible?", begins.

"But on this one, he may have a point," Feehery continues.

"He wrote a column today about the plight of Cameron Todd Willingham, a Texan who was put to death for the crime of starting a fire in his own home, a fire that killed his three small children.

He was charged with murder, and refused to take a plea deal because he insisted that he was innocent. It turned out that he was right and the folks who had him executed him were wrong. Later evidence proved to exonerate him, but that exoneration did little good. He is still dead.

Without getting into all of the facts in this particular case, it is clear that we live with an imperfect justice system. The system makes mistakes. Wrong people are accused and convicted. Witnesses sometimes misremember the facts, and sometimes they lie for their own self-interest. Sometimes cops make mistakes, and sometimes prosecutors reach the wrong conclusions.

But the death penalty, when carried out, is always perfect. It always kills the target, and kills the target permanently. And once you kill the accused, you can’t really turn back the clock. If the system turns out to be wrong, as it does on occasion, saying you are sorry doesn’t do much good.

DNA testing has proven to be bad for the death penalty. Doing those tests after the accused has been killed, and finding out that the accused was actually innocent (which has happened on more than one occasion), has raised questions in my mind about why we have the death penalty in the first place.

Like many Americans, I used to be a strong proponent of the death penalty. In the 1970s, when crime was out of control, when our cities became shooting galleries, and when gang-bangers and drug bandits preyed on the innocent and the unarmed, the death penalty was seen as one tool to combat lawlessness.

But that tool has been applied all too often with a tint of unfairness. There is a perception, whether it is true or not, that blacks are more likely to get death than whites. And in too many cases, for my taste, innocent people have been put to death.

I understand why the death penalty is still popular in some parts of the country, especially where crime is still prevalent. I also understand and appreciate the desire to put some evil-doers to death, especially monsters like John Wayne Gacy and Jeffery Dahmer. And I get why the death penalty is a very good tool for law enforcement to compel convictions of suspects who will plead guilty to avoid the gas chamber.

But I am bothered by the examples of people who are put to death even though they are innocent, like the one mentioned by Bob Herbert today. We should rethink the death penalty in this country. If even one innocent person is wrongly put to death on behalf of the state, for me, that is enough to get rid of it."


The post can be found at:

http://thehill.com/blogs/pundits-blog/crime/56927-is-the-death-penalty-defensible

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE; NEW YORKER REPORTER DAVID GRANN'S REBUTTAL TO THEN PROSECUTOR JOHN JACKSON'S INSISTENCE THAT WILLINGHAM WAS GUILTY;

"LEADING FIRE INVESTIGATORS WHO REVIEWED THE CASE TOLD ME THAT WILLINGHAM’S FIRST-DEGREE AND SECOND-DEGREE BURNS WERE CONSISTENT WITH BEING IN A FIRE BEFORE THE MOMENT OF “FLASHOVER”—THAT IS, WHEN EVERYTHING IN A ROOM SUDDENLY IGNITES. THE LIME STREET EXPERIMENT, ON WHICH I GO INTO GREAT DETAIL IN MY ARTICLE, EXPLAINS WHY WHAT HAPPENED TO WILLINGHAM WAS CONSISTENT WITH ALL THE PHYSICAL AND SCIENTIFIC EVIDENCE."

REPORTER DAVID GRANN: THE NEW YORKER. SEPTEMBER 4, 2009;

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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New Yorker reporter David Grann, author of an analysis of the Cameron Todd Willingham case called "Trial by Fire," offers a rebuttal to prosecutor John Jackson's defence of Willingham's conviction in a "note" published September 4, 2009, under the heading "The prosecution defends itself."

"Several people have asked me what I thought of the op-ed that John Jackson, the prosecutor in the Willingham case, recently published in the Corsicana Daily Sun," writes Grann.

"Some observers have already responded to the op-ed," he continues.

"In my article, “Trial by Fire,” I examine in depth all the key elements of the prosecution’s case that led to Willingham’s indictment and conviction. These elements included the jailhouse informant; the eyewitness testimony regarding Willingham’s behavior during and after the fire; and, most important to the case, the original arson investigation, which Jackson, in his article, acknowledges was “undeniably flawed.” The reporting in my article speaks for itself, but I thought that it was worth addressing a few points raised by Jackson in his op-ed.

He writes that it has been “omitted” from reports on the Willingham case that Willingham had allegedly moved a refrigerator against the back door of the house. “Any escape or rescue route from the burning house was blocked by a refrigerator,” he says. But, as I detail in my story, I discovered during the course of my reporting that there were, in fact, two refrigerators in the house, and one of them was stationed by the back door. Both the police detective and assistant fire chief, who investigated the fire, told me that they had concluded that the fridge was not part of the arson plot. As the assistant fire chief, Douglas Fogg, put it to me, “It didn’t have nothing to do with the fire.” Even Jackson told me that he did not think the fridge was a “huge factor in the case.”

Jackson also alleges that the fire was “the third attempt by Todd Willingham to kill his children.” As I note in my story, there is evidence that Willingham hit his wife, even when she was pregnant, but there were no police reports or medical evidence indicating that Willingham had tried to abort or kill his children. And Willingham’s wife insisted during the trial and under interrogation that Willingham had not physically abused the children. She told police, “Our kids were spoiled rotten.”

Jackson further says that Willingham’s burns were so superficial that they seemed to have been “self-inflicted in an attempt to divert suspicion from himself.” During the trial, the fire investigator Manuel Vasquez speculated on this. But, as the noted fire scientist Craig Beyler writes in his recent report on the Willingham case for the Texas Forensic Science Commission (pdf), Vasquez never offers a rational basis for this or other conjectures; Beyler says that Vasquez’s method was more characteristic of “psychics.” Leading fire investigators who reviewed the case told me that Willingham’s first-degree and second-degree burns were consistent with being in a fire before the moment of “flashover”—that is, when everything in a room suddenly ignites. The Lime Street experiment, on which I go into great detail in my article, explains why what happened to Willingham was consistent with all the physical and scientific evidence.

Jackson argues that it is incriminating that Willingham did not suffer from severe carbon-monoxide poisoning. During the trial, Vasquez also suggested this, even though Vasquez had no medical expertise and did not meet with Willingham until about a week after the fire. As I note in my article, the Lime Street and other scientific experiments have proven that Vasquez’s notion of carbon-monoxide poisoning is no more than an old wives’ tale: before a room goes to flashover, levels of carbon monoxide outside the thermal cloud are relatively low.

Jackson also claims in his article that Willingham was offered a polygraph and refused. I do not know if this is true, though it may be. After Willingham was charged with murder, he stopped coöperating with authorities. (On death row, Willingham wrote to several legal organizations asking them if they could give him a polygraph so that he could prove his innocence.) But even if he refused to take a polygraph after he was arrested, polygraphs are notoriously unreliable, and are not admissible in a court of law. (I highly recommend Margaret Talbot’s piece on this subject, “Duped,” which appeared in The New Yorker, in 2007.) As a result, defense attorneys routinely do not let their clients take polygraphs. Ernest Willis, who I discuss in my piece, was also convicted of committing arson, in a case that was eerily similar to Willingham’s. He had taken a polygraph, and the results were interpreted by police and the prosecutor as a sign that he was guilty. Evidence later emerged, however, that he had not set the fire, and he was exonerated and released, after seventeen years on death row. The idea that a lie-detector test (or the refusal to take one) could be considered evidence cuts to the core of the problems in the Willingham case: a reliance on unreliable and unsound scientific techniques.

The other points that Jackson makes have to do with Willingham’s character and behavior. He reports that a witness overheard Willingham saying, beside his daughter’s coffin, “You’re not the one who was supposed to die.” In my article, I demonstrate that the eyewitness testimony concerning Willingham’s behavior grew increasingly damning once police suspected him of murder. Jackson also notes, as I point out in my article, that Willingham refused to accept the prosecution’s offer to plead guilty and take a life sentence. Jackson says Willingham almost had a physical confrontation with his lawyers over the offer, which, in his view, suggests that he was guilty.

But all these actions can just as easily be interpreted as evidence of Willingham’s innocence. If the arson investigators had concluded there was no scientific evidence that a crime had occurred—as the top fire investigators in the country have now determined—Willingham’s words at the funeral would surely be viewed as a sign that he was tormented by the fact that he had survived without saving his children. And his fury over the prosecution offer would have confirmed that Willingham would never, as he always insisted, admit to “something I didn’t do, especially killing my own kids.”"


The note can be found at:

http://stopexecutions.blogspot.com/2009/09/david-grann-of-new-yorker-responds-to.html

Two other rebuttals can be found at:

http://smithforensic.blogspot.com/2009/09/cameron-todd-willingham-case.html

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM CASE: NEW YORK TIMES COLUMNIST TELLS US HOW TO CONVICT AN INNOCENT MAN;

"WHEN OFFICIAL SUSPICION FELL ON WILLINGHAM, EYEWITNESS TESTIMONY BEGAN TO CHANGE. WHEREAS INITIALLY HE WAS DESCRIBED BY NEIGHBORS AS SCREAMING AND HYSTERICAL — “MY BABIES ARE BURNING UP!” — AND DESPERATE TO HAVE THE CHILDREN SAVED, HE NOW WAS DESCRIBED AS BEHAVING ODDLY, AND NOT HAVING MADE ENOUGH OF AN EFFORT TO GET TO THE GIRLS.

AND YOU COULD ALMOST HAVE GUARANTEED THAT A JAILHOUSE SNITCH WOULD EMERGE. THEY ALMOST ALWAYS DO. THIS TIME HIS NAME WAS JOHNNY WEBB, A JUMPY INDIVIDUAL WITH A LENGTHY ARREST RECORD WHO WOULD LATER ADMIT TO BEING “MENTALLY IMPAIRED” AND ON MEDICATION, AND WHO HAD STARTED TAKING ILLEGAL DRUGS AT THE AGE OF 9."

COLUMNIST BOB HERBERT: THE NEW YORK TIMES;

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

-------------------------------------------------------------------------------Op-Ed

"There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children," Bob Herbert's August 31, 2009 column begins, under the heading, "Innocent but Dead."

"Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged," the column continues.

"In other words, it was an accident. No crime had occurred.

Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.

It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. “I was extremely skeptical in the beginning,” said the New Yorker reporter, David Grann, who began investigating the case last December.

The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army.

Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.

There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson.

They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but Willingham would have set it?

With no real motive in sight, the local district attorney, Pat Batchelor, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”

Willingham was arrested and charged with capital murder.

When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.

And you could almost have guaranteed that a jailhouse snitch would emerge. They almost always do. This time his name was Johnny Webb, a jumpy individual with a lengthy arrest record who would later admit to being “mentally impaired” and on medication, and who had started taking illegal drugs at the age of 9.

The jury took barely an hour to return a guilty verdict, and Willingham was sentenced to death.

He remained on death row for 12 years, but it was only in the weeks leading up to his execution that convincing scientific evidence of his innocence began to emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case and began systematically knocking down every indication of arson.

The authorities were unmoved. Willingham was executed by lethal injection on Feb. 17, 2004.

Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.

The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

Grann told me on Monday that when he recently informed the jailhouse snitch, Johnny Webb, that new scientific evidence would show that the fire wasn’t arson and that an innocent man had been killed, Webb seemed taken aback. “Nothing can save me now,” he said."

The column can be found at:

http://www.nytimes.com/2009/09/01/opinion/01herbert.html?_r=2

Harold Levy...hlevy15@gmail.com;

CAMERON TODD WILLINGHAM AND TROY DAVIS CASES: PHILADELPHIA INQUIRER MAKES THE CRUCIAL LINK;

"DAVIS' AND WILLINGHAM'S CASES AGAIN RAISE STRONG QUESTIONS ABOUT CAPITAL PUNISHMENT AND WHETHER IT CAN EVER BE FAIRLY ADMINISTERED, ESPECIALLY WHEN THE DEFENDANT IS POOR OR A MINORITY, LIKE DAVIS, AND STATISTICALLY MORE LIKELY TO GET A DEATH SENTENCE. TWO MEN SENT TO PENNSYLVANIA'S DEATH ROW WERE LATER EXONERATED. THE RISK OF A WRONGFUL EXECUTION IS SIMPLY TOO GREAT TO CONTINUE WITH CAPITAL PUNISHMENT."

THE PHILADELPHIA INQUIRER;

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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."

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The Philadelphia Inquirer

"If justice is served, Troy Davis won't become another Cameron Willingham," the September 2, 2009 Philadelphia Inquirer editorial, under the heading, "The risk in getting it wrong," begins.

"Davis is facing execution in Georgia for the 1989 murder of an off-duty Savannah police officer, but whether he actually committed the crime is questionable," the editorial continues.

"Questions were also raised about the guilt of Willingham, but he was executed in Texas five years ago for murder in an alleged arson fire that killed his three children. Now, there is new scientific evidence that Willingham was innocent.

An arson expert hired by the Texas Forensic Science Commission has issued a report that says there was no basis for a conclusion that arson caused the 1991 fire. He said the blaze that killed the three children may have been accidentally set.

"I have been persecuted 12 years for something I didn't do," were Willingham's last words.

His case epitomizes why capital punishment must end. Even if it happens only once, that's too often when the result might be the execution of an innocent person.

Davis received a last-minute reprieve last month, when the U.S. Supreme Court ordered his case reheard to consider new evidence that might clear him. It was the first time in half a century that the high court took such a step.

"The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing," said Justice John Paul Stevens in the majority opinion.

Until the Supreme Court's ruling, lower federal and state courts had repeatedly denied Davis' appeal for a new trial.

Georgia prosecutors maintain they convicted the right person. But they have presented neither physical evidence nor a weapon linking Davis to the crime. And seven of the nine witnesses who testified that Davis was the killer have since either recanted or changed their stories.

Pope Benedict XVI, former President Jimmy Carter, and Archbishop Desmond Tutu are among those who have called for clemency for Davis.

States such as Pennsylvania, which remain committed to the death penalty, should take note.

Davis' and Willingham's cases again raise strong questions about capital punishment and whether it can ever be fairly administered, especially when the defendant is poor or a minority, like Davis, and statistically more likely to get a death sentence.

Two men sent to Pennsylvania's death row were later exonerated. The risk of a wrongful execution is simply too great to continue with capital punishment."


The editorial can be found at:

http://www.philly.com/inquirer/opinion/20090902_Editorial__The_risk_in_getting_it_wrong.html

Harold Levy...hlevy15@gmail.com;

THE JOSEPH ABBITT CASE (NORTH CAROLINA); A PROSECUTOR WITH A CONSCIENCE AND A FEAR OF BANISHING "OTHER INNOCENT MEN" TO PRISON;

"AS THESE THINGS GO, ABBITT, 49, WAS LUCKY. HE WAS CONVICTED IN FORSYTH COUNTY, WHERE THE EXONERATION OF ANOTHER MAN HAD WEIGHED ON THE CONSCIENCE OF THE DISTRICT ATTORNEY.
DARRYL HUNT WAS FREED IN 2003 AFTER SERVING 18 YEARS FOR THE RAPE AND MURDER OF A WINSTON-SALEM WOMAN. HIS INNOCENCE WAS A SUCKER PUNCH FOR FORSYTH COUNTY DISTRICT ATTORNEY TOM KEITH."WE DID NOT WANT ANOTHER DARRYL HUNT CASE," KEITH SAID. "I COULDN'T TAKE IT." KEITH WANTED TO SLEEP THROUGH THE NIGHT NOT WONDERING WHETHER HIS OFFICE HAD BANISHED OTHER INNOCENT MEN TO PRISON.

REPORTER MANDY LOCKE: THE NEWS AND OBSERVER;

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Publisher's note: This News and Observer story, by reporter Mandy Locke, tells us how, Forsyth County District Attorney Tom Keith agonized over the possibility of convicting another innocent man after Darryl Hunt wrongfully spent 18 years behind bars for rape and murder. "Keith wanted to sleep through the night not wondering whether his office had banished other innocent men to prison," wrote Locke. In light of the mounting evidence that Texan Cameron Todd Willingham was an innocent man - and no murders were ever committed - it's fair to wonder how well Texas Governor Rick Perry is sleeping - and how he can continue to countenance the death penalty in his state. How can anyone concerned with justice sleep well knowing what was so wrongfully seized from Cameron Willingham - an innocent man - including his freedom and his life?

Harold Levy. Publisher: The Charles Smith Blog;

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"WINSTON-SALEM -- While Joseph Abbitt grew older in prison, forensic science grew more sophisticated, enough to prove the truth he'd been telling since 1991," reporter Mandy Locke's story, published earlier today began, under the heading, "DNA exonerates a second Forsyth inmate: Six years after the Darryl Hunt case, Joseph Abbitt is cleared of raping two girls in 1991."

"Abbitt walked out of jail Wednesday, 14 years after a jury found that he raped two teenage sisters in the early morning darkness as they dressed for school," the story continued.

"He swore his innocence from the day police found him, which, at the time, sounded like hot air from a man who had seen plenty of trouble on the streets of Winston-Salem.

On Wednesday, new DNA tests on long-kept evidence proved that an unidentified man had violated the girls.

"We're here today not because of any wrongdoing by any one person," David Hall, a Forsyth County assistant district attorney, told the judge. "We're here because of the inexact science long ago. Science has marched on over the years."

Abbitt is the seventh man in North Carolina exonerated by DNA evidence years after being sentenced. Nationally, he joins 241 men exonerated by more sophisticated testing of DNA; three quarters of them, like Abbitt, had been wrongly identified by witnesses. An untold number of others never had the chance to prove their innocence because evidence from the crime was destroyed long before the state passed laws requiring that the pieces be kept forever.

As these things go, Abbitt, 49, was lucky. He was convicted in Forsyth County, where the exoneration of another man had weighed on the conscience of the district attorney.

Darryl Hunt was freed in 2003 after serving 18 years for the rape and murder of a Winston-Salem woman. His innocence was a sucker punch for Forsyth County District Attorney Tom Keith.

"We did not want another Darryl Hunt case," Keith said. "I couldn't take it."

Keith wanted to sleep through the night not wondering whether his office had banished other innocent men to prison. In 2005, his office compiled a list of every suspect from Forsyth County in prison -- 2,247 total. Keith mailed each a letter, advising the inmates that if they thought a new DNA test would help prove a claim of innocence, he'd make the test happen.

Only 150 inmates took him up on the offer. Of those, 80 were reviewed by the local bar association and students at Wake Forest University Law School, who looked for cases that had evidence that could be tested. Only Abbitt's case resulted in exoneration.

Abbitt appealed directly to the N.C. Center for Actual Innocence, a nonprofit group dedicated to helping prisoners who believe they were wrongly convicted. In 2008, Christine Mumma, the center's director, solicited the help of Keith and the Winston-Salem police department to look for any shred of evidence remaining in Abbitt's case.

In one of the department's six warehouses, Winston-Salem Capt. David Clayton hit pay dirt: the girls' two rape kit exams, undisturbed since the day the state lab sent them back with a report saying it couldn't get a positive read. Clayton immediately drove them to a state lab for more testing. The kits were eventually sent to a private lab for more sophisticated work.

A logical suspect

In 1995, Abbitt's conviction made sense. He'd been in trouble with the law before; he had even been charged in another sex crime years before. The girls, 15 and 13 at the time of the crime, knew him, and said, with certainty, that he was the man who snuck into their house and raped them at knife-point. They saw paint on his shoes and pant-legs; Abbitt had been working as a painter.

Abbitt always swore his innocence. His family believed him and never thought a jury would convict him.

"We all knew he didn't do it," his brother Thurmond Abbitt said Wednesday. "It hurt to watch that fall upon him."

A hulking man in a beige dress shirt and glasses, Joseph Abbitt wept as a judge granted his freedom. Abbitt hung his head and shook with sobs; Mumma rubbed his arm.

The judge offered an apology. Abbitt nodded.

When Abbitt finally spoke, he did not rant against the system that wronged him. Instead, he focused on the girls violated by someone years before.

"I pray for those two young victims every day," Abbitt told a judge. "I hope they catch the one who did this because these two young girls are still the victims of this awful crime."

Keith plans to do that. On Wednesday, a judge signed an order allowing $5,000 to pay for more DNA tests at a private lab, where they hope to decipher the signature of the real rapist."

The story can be found at:

http://www.newsobserver.com/news/story/1673098.html

Harold Levy...hlevy15@gmail.com;