We've been on the road today, and won't have a chance to post more thoughts on the five wrongfully convicted youths in the Central Park Jogger case until late tomorrow. In the meantime, we like what Instapundit has to say on the matter.

We have blogged a lot on this case, some of our prior posts on why the convictions should be set aside, and on why the prosecutors should come under scrutiny, are here, here and here.

We also agree with Professor Reynolds that the wrongfully convicted should be compensated. Our last report on that is here.

And from Jim Dwyer's update in the Friday New York Times titled A Test the New York Justice System Failed:"13 years later, the verdict is in: The system failed, and in ways that cannot be made right. The man responsible for the rape of the Central Park jogger eluded police attention and continued a sporadic siege of violence on the Upper East Side for the next four months that included rapes, slashings and one murder. "

"Most basically, the Manhattan district attorney has asked for the dismissal of all charges against the teenagers, and provided a list of compelling reasons to believe that another man, Matias Reyes, was the sole attacker. No longer do the prosecutors endorse a story of gang rape. The sexual assault on the jogger, long viewed as the signature piece of violence in a night of mayhem by teenagers, is recast in the prosecutor's report as another episode in a rampage of crime by Mr. Reyes. "

A group of retired state and federal judges is urging clemency for Illinois's death row inmates "whose conviction was tainted by flaws in the state's capital punishment system."

"Individually, however, some justices said the system is so riddled with problems that the governor should grant blanket clemency."

"The only way to be fair, the only way to be just, the only way to be equal is for the governor to change the death sentences ... to life without the possibility of," said R. Eugene Pincham, a former state appellate judge."

"Retired state appellate Judge Anthony Scariano said that while there must be changes in the law to protect defendants in the future, "clemency is the proper way to address the problems of the past."

Outgoing Illinois Governor George Ryan has the matter under consideration. He has said he doubts he will grant blanket commutations, but will consider each case individually.

We support clemency for all current death row inmates. For background on the Illinois clemency issue, see our prior post here.

Too often we forget that many people are languishing in jails for crimes they did not commit whose wrongful conviction cannot be detected by DNA testing. The New York Times today reports on such a case:J udging a Mother for a Crime by Someone Else

"Tabitha Pollock was sleeping when her boyfriend killed her 3-year-old daughter. For failing to anticipate that crime, Ms. Pollock was convicted of first-degree murder and has served 7 years of her 36-year sentence."

"Last month, the Illinois Supreme Court overturned Ms. Pollock's conviction, saying the prosecution's theory -- that she should have known that her boyfriend, Scott English, who is serving a life sentence, was going to murder her child -- has no basis in the law. Barring something unusual, she will be released from the prison here in the next few weeks."

"Ms. Pollock's first appellate lawyer gave up her case as hopeless in 1999 and declined to appeal it to the State Supreme Court. Ms. Pollock will go free only because "a student plucked her letter from among the 17,000 that the law school clinic at Northwestern University receives every year, and the clinic persuaded the Supreme Court to hear an appeal filed after the deadline had passed. The court reversed the conviction outright rather than order a new trial."

"Illinois and many other states accept the notion that parents may be held legally accountable for the deaths of their children when they have witnessed or otherwise know of grave threats to their safety. Ms. Pollock's case differed in that she was held responsible on what lawyers call a negligence theory — that she should have known of the potential danger, even if she did not. A negligence standard is seldom used in the criminal law. "

Ms. Pollack's conviction is especially egregious considering that at trial, the prosecution produced no witness who had suspected her boyfriend of prior abuse. "How could I have known he would murder my precious baby girl?" Ms. Pollock wrote. "I did not know, yet I received 36 years in prison for not being a mind reader."

Innocence Project Clinics have been formed at law schools in several states in recent years. It is important that these new clinics accept not only cases where factual innocence can be proven by DNA testing, but also cases where the conviction was wrongfully obtained, such as through a false confession, incompetent counsel, police or prosecutorial misconduct, or the lone word of a jailhouse informant.

We couldn't help thinking as we read of Ms. Pollack, how many more prisoners like her are out there, serving double-digit or life sentences, who have no lawyer or law or journalism student to raise these claims?

The best selling edition of People Magazine ("Sexiest Man Alive", Dec. 2, 2002) features the issue of wrongful convictions and profiles Peter Limone, Gary Gauger, Ray Krone and others. It also links to the Campaign for Criminal Justice Reform .

Bernard Webster served over twenty years for a rape he didn't commit.

Bernard Webster is the third person in Maryland and the 115th nationwide to have a conviction overturned by DNA evidence, according to the nonprofit Innocence Project in New York City.

"Webster was 19 when a 47-year-old teacher identified him as the man who broke into her home and raped her in 1982." The recent DNA testing pointed to another man, Daniel Powell, who was arrested for the crime as he walked to work this morning.

"Webster's lawyers said he wasn't entitled to compensation from the state for his time in prison, and he has no family, friends, job or home. He had been scheduled for release in February."

"Two Baltimore-area state senators have pledged that if neither the governor nor the governor-elect takes steps to compensate him, they will push for a bill that pays him for his time behind bars."

One more time, this is why we need Congress and every state to pass the Innocence Protection Act.

A Baltimore man who has spent 20 years in prison for a rape that DNA tests show he did not commit is scheduled to walk free today after a hearing in Baltimore County Circuit Court, the first person to be exonerated under Maryland's new DNA law."

"Bernard Webster was 19 when a 47-year-old schoolteacher identified him as the man who broke into her Towson home and raped her. The DNA law, which took effect in 2001, allows judges to order DNA testing for people serving sentences for murder and rape when that testing could prove their innocence."

"Webster will be the third person in Maryland - the 115th nationwide - to have a conviction overturned by DNA evidence, according to the Innocence Project at the Benjamin N. Cardozo School of Law in New York City, a nonprofit legal clinic that seeks to identify and free people who have been wrongly convicted."

The victim had picked Webster out of a photo lineup as her attacker. The jury believed her, and disbelieved his alibi witnesses. In October, the results of DNA testing on the hospital slides recently found through diligent work by the Maryland Innocence Project showed the semen could not have come from Webster. Last week, the state's attorney's office got the results of its own testing, which also confirmed Webster's innocence.

The victim said yesterday that she was upset and did not want to talk to a reporter. The prosecutor said she still believes she identified the right man and is not convinced Webster is innocent.

Mistakes in identification are common when the victim is of one race and the suspect of another. According to the Innocence Project, mistaken eyewitness identfication occurs in 70% of their cases.

"Webster's conviction is the second to be overturned in Baltimore County because of DNA evidence. Death row inmate Kirk Bloodsworth was exonerated in 1993 after DNA testing showed he could not have committed the murder and rape he was convicted of in 1985."

Webster is homeless now and has no family. His lawyers are trying to figure out where he is going to sleep tonight. He has a 10th grade education and was taken from his biological mother at age 3. He grew up with a foster mother who died while he was in prison. He was refused because he wouldn't admit his guilt.

Webster began writing the Maryland public defender's office asking for help in 1983. Before the advent of DNA testing there was nothing they could do. He kept writing them, and in 2001, filed his own pro se motion for a DNA test. The judge granted it under the new statute and a public defender began trying to locate DNA in the then 19- year old crime. Her search led her to the pathology department at the Greater Baltimore Medical Center "where she located three slides of potential DNA evidence preserved from the July 6, 1982, sexual assault evaluation of the victim."

Webster is not entitled to any compensation from Maryland for the 20 years he spent in prison.

The five youths convicted in the Central Park Jogger case speak out in this week's Village Voice article Marked as the Enemy by Dasun Allah.

A related article, Across 110th Street, chronicles the changed lives of the families of the youths.

A plea from Innocence Project co-founder Barry Scheck for donations of money and frequent flier miles to Send an Exoneree to Chicago, Help Save a Life:

"This is a fundraising plea for a tax deductible contribution you'll never regret -- help sponsor a trip to Chicago, using frequent flier miles or traditional money, by someone who was innocent but wrongly sentenced to death. On December 15th as many as 50 death row exonerees will assemble in Chicago in what will undoubtably be the most important event surrounding Illinois Governor George Ryan's decision as to whether or not to grant clemency to the nearly 160 people currently on the state's death row before he leaves office in January. We need your help! "

"As you know, the Governor declared a moratorium on IL's death penalty several years ago after 13 innocent persons who had been sentenced to death were exonerated, a total that exceeded the number of executions (12) in the state to date. Faced with this shocking error rate and his own crisis of conscience, Gov. Ryan not only declared a statewide moratorium on the death penalty, but convened a blue-ribbon commission of notables from across the political spectrum to study the flaws in Illinois' system and ensure that no innocent person would ever again be sentenced to death. The majority of the Commission stopped short of calling for an outright end to the death penalty, but recommended 86 comprehensive, meaningful reforms based on nearly two years of review of the system's flaws. Months later, however, the State Legislature has yet to act on these recommendations (and has, in fact, rejected many of the most fundamental ones). Governor Ryan's imminent departure from office thus presents what may be the final opp ortunity to obtain meaningful results from the Commission's painstaking work and his own courage in taking on this difficult issue. It also affords an unprecedented opportunity to save the lives of almost 160 people -- some of whom are likely innocent, and far greater numbers of whom were victims of grossly unfair trials and sentencing. "

"A coalition of groups in Illinois are about to launch a two-month campaign to remind the public about the arbitrariness and unfairness of the death penalty in system in Illinois that led to the moratorium in the first place. This message has been largely buried in recent weeks during public clemency hearings, which, as expected, have focused on the heartrending expressions of grief by members of the victims' families who testified and the horrible details of many of the underlying crimes. Once those hearings conclude, however, we hope and expect that the public may once again become receptive to the notion that IL's flawed death penalty system has also exacted a terrible human cost on others, including the families of those who were wrongfully convicted and sentenced to death, and that deciding to commute existing death sentences to life without is the best way to ensure that both fairness and justice are achieved. It is crucial that this message be disseminated and received as widely as possible in th e coming months -- not only to maximize the chances that the Governor will take meaningful action, but to prevent a public backlash on the issue of death penalty reform if and when he does so."

The most important single event in this upcoming campaign will be a historic gathering of innocent men and women who have been released from death row. The goal is to bring as many as 50 of the nation's 102 death row exonerees to Chicago on the weekend of December 15th, for two days of events that will both honor and allow them to speak out in favor of meaningful action by the Governor. As you may recall, the first such Conference on Wrongful Conviction and the Death Penalty was held in Chicago in 1998, and helped set the stage for the IL moratorium.

"Bringing the exonerees to Chicago will be not only the most crucial, but also the most expensive piece of the IL campaign. Organizers have estimated that it will cost an average of $1250 for each exoneree's travel, lodging, and expenses (while some are in major cities or in-state, others live in remote areas and/or need a companion's assistance to travel). As the campaign is already operating on a shoestring budget, this event will be difficult, if not impossible, to pull off without the generous support of others."

"Contributions in any amount will be welcomed to support an exoneree to attend the 2nd National Conference on Wrongful Convictions and the Death Penalty. The recipient is the Illinois Death Penalty Education Project, a 501©(3). The address is 850 N. Lake Shore Drive, 4th Floor, Chicago, Illinois 60611. Contributions will be deductible for federal income tax purposes to the full extent allowed by law."

"Please make out checks, frequent flier miles, etc. to the Illinois Death Penalty Education Project c/o NACDL, Attn: Steven Frazier, 1150 18th St. NW #950, Washington DC 20036."

Please help spread the word.

As if there weren't enough to discredit the convictions of the five youths convicted of raping the Central Park Jogger in 1989, Jim Dwyer writing for the New York Times had more this week, in Hair Evidence in Jogger Case Is Discredited

"Contrary to arguments made by a prosecutor at two trials in 1990, four strands of hair were never "matched" to any of the Harlem teenagers accused of beating and raping a jogger in Central Park, a former police scientist said this week."

"The hairs, attributed to the victim and recovered from the clothing of two suspects, were the only pieces of physical evidence offered by prosecutors directly linking any of the teenagers to the crime. The hairs were also cited by the prosecution as a way for the jury to know that the videotaped confessions of the teenagers were reliable."

"Nicholas Petraco, who examined the hairs when he worked in the Police Department's criminalistics division and testified at the trials, said the technique for hair examination in 1990 was not powerful enough to tie anyone to the crime with certainty."

"You can't say `match,' " Mr. Petraco said. "It's impossible. You could never say it `matched.' It's ridiculous."

"At most, Mr. Petraco said, the hairs could be described as "consistent with and similar to" those of the defendants and the victim. The reason he used those words when he testified at the two trials, he said, was to make sure that the jurors and lawyers realized it was entirely possible for the hair to have come from other people."

Petrarco is right. Microscopic hair comparision, which is all that was available in 1990, cannot identify two hairs as the same. They can only say that two hairs have similar characteristics, but they can't say the hairs "match."

Now we have DNA hair testing that can accurately test hairs. It's done through a mitochondrial DNA test which examines the DNA in the hair shaft. It can eliminate suspects as being the source of a strand of hair.

Earlier this year, the hair attributed as being similar to one of the youths, Keven Richardson, was found definitively not to have been his. Nor did it link to any of the other convicted youths.

During his trial testimony, Petrarcho was careful to avoid describing the hair as coming from Kevin Richardson. Not so Prosecutor Elizabeth Lederer.

In her closing arguments, she used emphatic language to assert that hair found on a defendant, Kevin Richardson, had been "matched" and vouched for the reliability of the vigorously contested confessions. "Perhaps the most telling of all," Ms. Lederer said, "is the hair that was found on Kevin Richardson's clothes."

She referred the jurors to the testimony of Mr. Petraco, the expert witness called by the prosecution. But in parts of her recitation, his cautious phrasing vanished. "He found on Kevin Richardson's underpants a hair that matched the head hair of" the victim, Ms. Lederer told the jurors. "And there was a second hair on the T-shirt that matched" the victim's pubic hair. She continued: "There was yet a third hair on his jeans, on his blue jeans, that was consistent with and similar to" hair from the victim's head."

"I submit to you that Kevin Richardson's clothing got those hairs when he was with" the victim, Ms. Lederer said. "And it was because he was touching her, because he came in contact with her and with her clothes and when he was on top of her and around her, that's how he got her hair on his clothing."

In other words, D.A. Elizabeth Lederer mistated the evidence.

Law enforcement officials now believe that the hair evidence alone will warrant a new trial. DA Morganthaw has said "state law requires that a verdict be overturned if it seems that newly discovered evidence would have resulted in a different verdict."

Jim Dwyer writes another excellent article on the five convicted youths in the Central Park Jogger case in Sunday's New York Times called Crimes Admitted, but Not Committed.

Trying to explain why someone would confess to something they didn't do is not easy. Jim makes it a little more understandable.

"In place of the rubber hose, the law grants wide latitude in the use of psychological pressures — the kind of cajoling good-cop-bad-cop routines seen on "NYPD Blue" that are part of standard police training manuals. That these techniques produce thousands of authentic confessions from criminals every year is beyond dispute. That these same techniques also produce a number of false confessions is also beyond dispute."

Using actual cases, not just that of the Central Park jogger, Jim reviews some of more prevalent reasons. Here's an example:

"Last Thursday, in Illinois, Gov. George Ryan pardoned four men who had been sent to prison as teenagers for the rape and murder of a medical student. Two of them had confessed and implicated the other two. None of them, DNA tests later showed, had anything to do with the attacks. That same DNA evidence recently implicated two other men. Why did the first group falsely confess? One man said he figured that at age 17, by cutting a deal, he would get out of prison by the time he was 23. The second man had an I.Q. between 65 and 70, according to his lawyer, and quickly buckled under questioning."

Illinois Governor George Ryan today pardoned four wrongfully convicted men. DNA evidence proved them innocent. The four, including one who was an 8th grader at the time who could barely read, say their confessions were coerced.

Two other men were charged ain February and are facing the death penalty in the case after DNA testing allegedly identified them as the killers.

"It was very clear to him by looking at the totality of the circumstances that there was a terrible injustice that occurred," Ryan spokesman Dennis Culloton said Thursday.

The four Marcellius Bradford, Omar Saunders and cousins Calvin Ollins and Larry Ollins were convicted in the 1986 death of medical student Lori Roscetti in Chicago. Calvin Ollins was 14 at the time, an eighth-grade special education student who could barely read.

Jim Dwyer and Susan Saulny report in today's New York Times that records show three of the five convicted youths in the Central Park Jogger case lost their best chances for by persisting in their claims of innocence. The records were released after the New York Times filed a Freedom of Information Act request.

Raymond Santana, Yusef Salaam and Kevin Richardson were the three youths who consistently denied involvement in the crime and suffered at the hands of the Board because of it.

The records show Kharey Wise, "was equivocal in his discussions of the crime at state hearings. Mr. Wise attended sex offender programs but refused to admit any guilt, a failure noted by the board as it repeatedly denied him. After losing three hearings in six years, Mr. Wise refused to attend any more hearings and was automatically denied. He left prison in August, after 13 years."

The fifth youth, Antron McCray served a juvenile sentence and no records were available for him.