Yolo Moves Towards Death Penalty Case As More and More Places Consider Scrapping Theirs Amid an Array of Problems

Defense Attorneys, in what will likely be our first death penalty case that we will cover, the Topete case, have argued that “The excessive delays in California’s death penalty system constitute cruel and unusual punishment in violation of the Eighth Amendment and results in a denial of due process. Based on this violation, the Defense respectfully requests that this Court preclude the People from seeking the death penalty in this case.”

And, given the numbers of people currently on death row, the state would have to execute five prisoners a month for the next 12 years just to carry out the sentences of those currently on death row.

So, once again we are left to wonder, given the expenses involved, why bother to try this as a death penalty case?  The defense would likely take a plea for life without the possibility of parole, and it would save the county and state huge amounts of money. 

But we all know that is not going to happen.  A law enforcement officer was brutally killed and the culprit must at least theoretically pay for his crimes.

This once again moves Yolo County away from where the rest of the nation is going – even Texas.  Perhaps one saw the frontline episode last fall on Cameron Todd Willingham.  He was executed for setting an arson fire in his home that killed his children.

Unfortunately, the forensic science used to determine it was arson was flawed and was actually known to have been discredited before his execution.  But the Texas Governor, Rick Perry, who was the last resort, refused to grant a stay in this case.  That was in 2004.

A lot has come out in this case since then, of course, and perhaps Governor Perry feels a bit guilty.  Additionally, Anthony Graves spent 18 years in a Texas prison for murders he did not commit. 

According to a Texas newspaper, he was convicted of killing six individuals back in 1992.  “The conviction depended, in part, on testimony from co-defendant Robert Earl Carter, who implicated Graves in the horrendous crime.”

But, reports the paper, Mr. Carter, who was convicted for the same murders, recanted moments before he was executed on May 31, 2000.  Upon his death he said, “To the Davis family, I am sorry for all of the pain that I caused your family. It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court. … Anthony Graves don’t even know anything about it.”

Often, that is not enough to free someone.  But six years after the execution of Mr. Carter, the 5th U.S. Circuit Court of Appeals overturned Graves’ capital murder conviction on the basis that “prosecutors improperly withheld information that defense lawyers were entitled to know about. The court also said prosecutors elicited false testimony.”

Moreover the paper reports, “There was no retrial because special prosecutors brought in to handle the case determined there could be no fair retrial because of grievous errors during the initial investigation.”

Mr. Graves is entitled to $1.4 million in compensation, and the authorities are trying to deny that compensation because he has no declaration of actual innocence, but Governor Perry, to his credit, is fighting to get compensation for the exonerated man.

There are certainly cases, and perhaps the Topete case is one of them, where we have a good deal of certainty that the convicted man is the one who actually committed the crime.  But the system does not do a good job of discerning those cases from the ones that are more questionable.  Our system treats all jury verdicts as the same – when in fact, they are not.

Newsweek has an article this week that reports that more and more, courts are starting to question the facts proved by scientific evidence.  The problem, as we have noted in the past, is that often forensic techniques are never themselves scientifically tested to see if the claims made by science are indeed accurate.  Thus, we have false findings of positive matches for bullet-lead analysis, that are baseless in science.

Reports Newsweek, “In the age of CSI and Dexter, we’re led to believe that forensic science is a high-tech discipline, powerful and sophisticated enough to catch any criminal.”

Instead they find, “As it turns out, whether blood-spatter analysis and disciplines like it qualify as ‘science’ at all is a matter of increasing debate. In a sharply critical report issued in 2009, the National Academy of Sciences said, ‘The simple reality is that the interpretation of forensic evidence  is not always based on scientific studies.’ Taking aim at disciplines as varied as ballistics, hair and fiber analysis, bite-mark comparison—[and] even fingerprints—the report declared, ‘This is a serious problem.’ “

There are cases where elite crime labs all over the nation have been involved in various scandals that involve the mishandling of evidence or false or misleading forensic testimony.

We got a bit of a taste of this a few weeks ago with the Frontline discovery of Thomas Gill, the Forensic Investigator that worked hundreds of autopsies in Yolo County for the private company, Forensic Medical Group.  We still do not know which autopsies that investigator performed and how it might impact notable cases in Yolo County.

As Newsweek notes, “A year-long investigation  by the independent journalism non-profit ProPublica revealed major problems in the nation’s coroner system: pathologists not certified in pathology, physicians who flunk their board exams, even coroners who are not physicians at all. ‘In nearly 1,600 counties across the country,’ the investigation found, ‘elected or appointed coroners who may have no qualifications beyond a high-school degree have the final say on whether fatalities are homicides, suicides, accidents or the result of natural or undetermined causes.’ “

In the meantime, Newsweek reports, “This past summer, a North Carolina attorney general’s audit discovered that the state’s Bureau of Investigation had withheld or distorted evidence in more than 200 cases.”

They add, “Even some of the best funded and most sophisticated crime-fighting organizations are being taken to task for their use of forensic evidence. This week, the New York Times reported that the Federal Buerau of Investigation had ‘overstated the strength of genetic analysis’ during the investigation of Bruce E. Ivins, who allegedly mailed anthrax to newsrooms and Senate offices in the wake of the 9/11 attacks.”

Newsweek cites the forthcoming book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” where University of Virginia law professor Brandon Garrett examined the trial transcripts and other legal documents of the first 250 people to be exonerated by DNA in this country.

They note that Professor Garrett  discovered that, in more than half these cases, trials were tainted by “invalid, unreliable, concealed, or erroneous forensic evidence.”

“The errors ranged from analysts making up statistics on the fly, implying that their methods were more scientific than they actually were, and exaggerating or distorting their findings to support the prosecution,” according to the Newsweek article.

Peter Neufeld, a lawyer in New York and co-founder of the Innocence Project, which has helped to facilitate many of these exonerations, calls it the “elastic expert: no matter what you see, I can distort it so that it would be a match.”

The troubling nature of this research is that defense attorneys are powerless, often, in the face of “science.”  It is difficult for a lay person to question the objective findings of a scientist.  And it is impossible to know for sure when the science backing the findings is correct and when it is not.

There are few standards in courts for the scientific examination of evidence.  And yes, the system may eventually get it right in the case of Anthony Graves, but it cost him 18 years of his life.  In the case of Cameron Todd Willingham, it was too late to save his life.

This may seem bad, but the news is actually far worse.  On February 16, 2011, Iowa State in Ames, Iowa, released a study to examine why innocent suspects may confess to a crime.  The statistics are alarming, as since 1989 there have been 266 post-conviction DNA exonerations.  25 percent of those involve a false confession.

According to a new study from Iowa State, “In two experiments simulating choices suspects face in police interrogations, undergraduate subjects altered their behavior to confess to illegal activities in order to relieve short-term distress (the proximal consequence) while discounting potential long-term (distal) consequences”

“The thing about these exoneration cases is that they all pertained to heinous crimes; that’s why there was DNA evidence available. And so we wanted to determine why someone may be willing to falsely confess to one of those crimes,” said Stephanie Madon, an ISU associate professor of psychology and the study’s lead author. “We thought it might have to do with the pay-off structure of police interrogations. Some interrogation methods — like physical isolation and the presentation of false evidence — have immediate consequences for suspects that encourage them to confess. Though they also face consequences that encourage them to deny guilt — such as the possibility of conviction and incarceration — these consequences are more distal.

“So the suspect is weighing these two consequences at once and that’s going to shape their behavior,” she continued. “That’s what we were interested in understanding. Which of these consequences is going to influence confession decisions — those that are happening right now, or the ones that may happen in the future?”

The problem that this poses is that a lot of convictions are built on confessions.  The stress of the interrogation and sloppy interrogation techniques play a huge role in this problem.  Investigators often test validity of confessions based on the suspect being able to provide details of the crime, but they often inadvertently drop enough clues for the suspect to put together a good enough description to convince them of his guilt – something they obviously were predisposed to believe in the first place.

According to a report, “The researchers say these results may help explain why some suspects confess to crimes in order to avoid a police interrogation — even though they increase their risk of conviction and severe penalties by doing so. The study’s authors theorize that innocent suspects so strongly believe that the truth will eventually be borne out, they may perceive the distal consequences facing them — conviction, prison, or even a death sentence — to be remote and unlikely.”

“One of the things we wanted to do in this research was to identify an underlying process at play during interrogations, so it can apply to a variety of police interrogation methods,” Professor Madon said. “Our findings have implications for any [police interrogation] method that causes suspects to focus on immediate consequences over future consequences.”

All of this weighs heavily on the increasing movement away from the death penalty.  We have elsewhere talked about the unequal application of the death penalty, which tilts strongly towards minority suspects and those who lack the resources to hire private counsel.

Marco Topete faces another huge obstacle, in that the victim was a law enforcement officer carrying out his lawful duties at the time of his murder.

However, given the costs of trying a death penalty case (something that perhaps could be avoided altogether) and the costs of incarcerating an individual on death row, providing automatic appeals, etc., and the length of time that he will likely spent on death row and the unlikelihood of his ever being executed, it seems from a fiscal standpoint, Yolo County would be better off having him take a plea and receive his life sentence.

Unfortunately, that will not happen.  And Yolo County and the state will have to pay for it.

—David M. Greenwald reporting