At the behest of outgoing Illinois Governor George Ryan, clemency hearings began today in the cases of Illinois prisoners on death row. All prisoners will be given a hearing. The process is expected to last nine days with hearings lasting approximately one hour for each inmate.

The first inmate to have a hearing this morning was Leonard Kidd. "During Kidd's hearing, attorneys attacked the death penalty on two fronts. Attorneys said he is mentally retarded and that executing him constitutes cruel and unusual punishment. And in an argument that is expected to be made several times, attorneys said Kidd was tortured by Chicago police detectives."

"Lawyers also questioned the legitimacy of a system that has sent men to death row who were later exonerated. "It has become apparent that our state's death penalty system is severely flawed," said lawyer Charles W. Hoffman in a hearing for Kenneth Allen, who pleaded guilty to the 1979 shooting deaths of two Chicago police officers."

"Prisoner Review Board members in Chicago and Springfield will listen as defense lawyers, prosecutors, expert witnesses and victims' relatives argue for or against execution in what might be the most sweeping review in U.S. history."

"This is remarkably historic and without precedent," said David Elliot of the National Coalition to Abolish the Death Penalty. "All eyes in the death penalty movement are on Illinois."

The board's recommendations will be confidential and the final decision as to whether to grant clemency will be up to Governor Ryan.

We think it is important to recognize why this is happening. It is not because Governor Ryan, a Republican, opposes the death penalty, is "soft on crime" or is acting out of some sort of anger over the bribery scandal that plagued his term as Governor.

It is because during his term, 12 people were executed in Illinois but another 13 on death row were found innocent by later DNA testing. The system is broken.

Ryan commissioned a study of the system. In the Commission's report, 85 death penalty reforms were recommended. The Illinois legisature did not implement any of them. For an excellent article on the Report , we recommend Think First, Execute Later, written by one of the Commissioners. We applaud Governor Ryan's actions and hope other states follow suit, with both a moratorium on the death penalty and clemency hearings until and unless the system can be fixed.

The New York Times reports explosive new evidence in the Central Park Jogger case today. Investigators are nearing completion into their inquiry of Mattias Reyes' recent confession to the crime and statement that he acted alone, which if true, would clear the five youths who confessed and served time for the jogger's rape.

Journalist Jim Dwyer reports that Reyes has now told investigators that he committed another rape two nights earlier in the same area of the park, again acting alone. They have confirmed the key details of his account. But the defendants in the jogger's case were never told there was another rape, despite the woman having been taken to the hospital after being beaten and raped.

Investigators say that the first rape was investigated by the sex crimes unit of the Police Department while the jogger's rape was referred to the homicide division of Manhattan North because it was believed the jogger would die. Apparently, the information on the first rape was never turned over those investigating the jogger's rape.

"On the afternoon of April 17, 1989, a Monday, a woman in her 20's went to do tai chi exercises in an area of Central Park called Fish Fort, off 106th Street. A young man strolled up and began chatting with her. Something in his manner made the woman uncomfortable, she later told detectives, so she moved to leave. Then the man pounced. He beat her face and head, pulled off her clothes and assaulted her sexually until another man, hearing the woman's screams, arrived on the scene. The attacker fled. The woman's injuries were so severe that she was admitted to St. Luke's Hospital and spent at least two nights there, officials said."

"Those two rapes, on April 17 and April 19, were the second and third of the year in the Central Park precinct. The investigation into the April 17 attack was handled by the sex crimes unit of the Police Department. Detectives from another unit, Manhattan North Homicide, oversaw the investigation into the attack on the jogger, because her condition was so grave that officials originally expected that she would not survive....For reasons that are not clear, investigators say, there is no sign that the information about the April 17 rape was turned over to the detectives handling the attack on the jogger."

Lawyers at the trial of one of the defendants had argued that the "real attacker was still unknown and would be out committing more rapes and possibly even murder." But they had never been told of the first rape which surely would have strengthened their defense.

"After the two assaults in Central Park, Mr. Reyes continued to rape women on the Upper East Side, and killed one in an apartment on East 97th Street before he was arrested in August 1989 leaving a building on East 92nd Street after another rape attempt." Reyes was convicted of these last crimes, but he was not charged with either the jogger's rape or the one that occurred two nights earlier.

The current investigation has confirmed no physical evidence links any of the five youths who were convicted of raping the jogger with the crime. A hearing on their motion to vacate their convictions is scheduled for October 21.

(Thanks to The Minute Man for sending us this article, he's going to write about it Monday.)

The Chicago Tribune is on top of the death penalty and innocence issues this week in a forceful series of editorials. We recommend you read them all.

Today's editorial Disparities on Death Row calls for a centralized, statewide system of approving death penalty prosecutions and reviewing their results.

"According to the research, done for the Governor's Commission on Capital Punishment, the decision to impose the death sentence spins not just on the depravity of the act or the place it occurred, but also on the race of the victim. In Illinois, a murder defendant is four times more likely to be sent to Death Row if his victim is white than if the victim is black."

...."To fully understand how the system is working in Illinois and to make sure death penalty is rooted in law rather than race, geography or any other extra-legal factor, how we deal with those who murder must be monitored through windows rather than keyholes."

Yesterday the Tribune highlighted the problems with eyewitness testimony in When Believing Isn't Seeing.

The editorial calls for police to conduct sequential rather than simultaneous lineups which research has shown dramatically reduces the number of false identfications, blind testing (where the person conducting the procedure does not know which one is the suspect) and videotaping or at least audiotaping an eyewitness's statement of how certain they are at the time they make their selection.

"Since the U.S. Supreme Court restored capital punishment, 86 Death Row inmates across the nation have been exonerated based on claims of innocence. The convictions in more than half of those cases depended at least in part on eyewitnesses, according to a 2001 study by the Center on Wrongful Convictions at Northwestern University School of Law. In 33 of the cases, eyewitness testimony was the only evidence used against the accused."

Coincidentally, we reported on these exact issues Sunday in a post called Faulty Eyewitness Testimony and linked to an article we wrote on the topic, Could This Happen To Your Spouse or Child: Wrongful Convictions and Eyewitness Testimony, available here.

Sunday's editorial in Chicago Tribune was Fixing the Death Penalty in which it calls upon the Illinois Legislature to implement the reforms recommended by the Governor's Commission on Capital Punishment.

"Wrongful convictions, mistaken eyewitness identifications, arbitrarily applied punishment--profound errors at every level of the process--have deeply shaken many people, including some of the most ardent supporters of capital punishment."

"There are 13 people alive today who bear personal witness to that. Those are the people who have been freed from Death Row in recent years because evidence proved they had been wrongfully convicted."

"This is not a system of justice. This is a system of rank injustice. It is deeply fractured, and it must be repaired if Illinois is ever again to carry out a sentence of execution."

"Illinois has issued more than 300 death sentences since the legislature reinstated capital punishment in 1977. We know at least 13 of those sentences were terrible mistakes. We know that in one of those cases, the people of Illinois came within hours of killing an innocent man."

"If the state is to impose irreversible punishment, if the state is to take a life in the pursuit of justice, it must do so with far greater confidence that no innocent man or woman will be executed."

DNA tests have proven Jimmy Ray Bromgard to be innocent of the rape for which he is serving a 40 year sentence. Tuesday he expects to walk out of Montana's Yellowstone County Courthouse a free man. At 33, almost half his life has been spent in prison for a crime he didn't commit. Questions linger, but they are not about Bromgard's innocence.

Bromgard's lawyers, one of whom is Peter Neufeld, co-director along with Barry Scheck of the Cardozo Law School Innocence Project, "have assembled a peer review committee of forensic scientists, which has issued a report asking for an audit of the hundreds of cases in which the manager of the state's crime laboratory at the time testified. The manager, Arnold Melnikoff, played a central role in Mr. Bromgard's case."

The rape victim's father said he always had doubts about the case. The victim, then 8 years old, said she was "not too sure" Bromgard was the man who raped her.

There was no physical evidence except some hairs. Melnikoff testified "that head and pubic hairs found at the scene could not be distinguished from samples provided by Mr. Bromgard. The chances that two hair samples are microscopically indistinguishable, he said, are one in a hundred. Since head and pubic hairs are different, he went on, "it's a multiplying effect, it would be one chance in 10,000."

We know enough about microscopic hair comparision to know that's a crock. Bromgard's lawyers say Melnikof manufactured the statistics and "deliberately ignored the scientifically accepted practices to help secure a conviction."

Now Melnikoff is back-tracking. In an interview he said "there has never been a thorough, proper study where they looked at a large number of samples" that would allow quantification of the kind he used...."I did my job," he said. "I didn't say it was him exclusively. Hair evidence is class evidence. It's not specific. It's possible by coincidence it could be similar to another person."

Microscopic hair comparison does not result in identification. A hair may be similar to another hair, but it cannot be termed a "match." Only mitochondrial DNA testing, which has not been available until recently, can positively identify two hairs as coming from the same person.

Mr. Bromgard had a court-appointed lawyer at trial. "Mr. Adams worked for the county for a monthly fee. According to Mr. Bromgard and his lawyers, Mr. Adams met with him once before trial, hired no investigators or scientific experts, filed no motions to suppress evidence, made no opening statement, failed to prepare Mr. Bromgard for his testimony and, after indicating he would appeal, did not."

"In an interview, Mr. Adams said he did not recall Mr. Bromgard's case and was no longer practicing."

Mr. Bromgard did some very hard time according to prison officials. Inmates don't much like child rapists, and he had his jaw broken a few weeks after his arrival. He was 18 then. He is leaving prison 15 years later with thinning hair but in good spirits. When asked what he planned to do when he got out, he said he'd he like to go swimming.

Update: As expected, Mr. Bromgard was released from jail with an apology from the Judge Tuesday morning. The Innocence Project reports he is the 111th person to be freed from jail after DNA testing proved their innocence.

Kevin Drum of Calpundit makes a convincing argument about why photographic lineups as well as police interrogations should be videotaped:

"Eyewitness testimony is notoriously untrustworthy and witnesses in criminal trials routinely convince themselves in retrospect that they were always sure that was the guy. But juries might feel differently if they saw videotape showing exactly what those witnesses really thought the first time around, and how that changed the second and third times around and then again in court. Like the use of DNA evidence, there's simply no reason to object to videotaping. It doesn't coddle criminals, it just forces police to focus on making sure they catch the right person, not just any person."

What Kevin is describing is termed "confidence inflation" or "confidence growth" by the psychological researchers in the field. It describes those cases where the witness becomes more certain of his or her opinion over time. Often this is due to repeated interviews by the police in which the witness' prior identification, even if tentative, is reinforced.

Videotaping is one way to judge how certain the witness was at the time of their original selection. Another is for the person conducting the lineup to ask the person who makes a selection "How certain are you?" right away and write it down.

For more on this, here is an article we wrote on the subject called Could This Happen to Your Spouse or Child? Wrongful Convictions and Eyewitness Testimony

Law enforcement is gradually changing the ways it interviews eyewitnesses to crime to conform to the findings of psychological researchers in the field. For example, the Department of Justice, through its reasearch arm, the National Institute of Justice has released a publication Eyewitness Testimony: A Guide for Law Enforcement.

PBS's Frontline had an excellent show on the topic, What Jennifer Saw. The website is still up and you can read more about the topic there.

For more, check out the websites of Professors Elizabeth Loftus and Gary Wells, two of the nation's leading experts in the field of memory and eyewitness evidence.

ABC News has a special report on false confessions.

Also, Prime Time Thursday will highlight the Central Park Jogger case with an interview with Matias Reyes saying he was alone that night. We will weigh in on this again after watching Matias.

From the ABC article:

"Just as DNA evidence has raised questions about traditional crime-fighting tools such as fingerprinting and eyewitness testimony, a slew of recent cases have shed light on the frequency of false confessions. "

"Of the 110 exonerations due to post-conviction DNA evidence in recent years, 27 included confessions as evidence, according to the non-profit legal clinic Innocence Project. "That number is really shocking," said Richard Ofshe, a leading expert on false confessions and University of California at Berkeley professor. Systemwide, no one knows how often phony confessions occur. "

"In my wildest fears I do not imagine the number can be 20 percent. On the other hand, if that's the result to come out of the Innocence Project, that's really scary," Ofshe said. Indeed, dubious confessions have surfaced in several recent exonerations, reopened cases and police abuse lawsuits."

"The infamous Central Park Jogger case, thought long solved, will go to court again in October even though five teens who confessed already served their sentences. Now, a convicted rapist-murderer says he committed the brutal 1989 rape and beating of a New York City woman. In an interview to air on ABCNEWS' Primetime on Thursday, the man, Matias Reyes, says no one else was involved: "I was alone that night."

"Falsely admitting to a crime may seem unfathomable to those who have never stepped inside a police interrogation room. Experts say the young, old, mentally or emotionally disabled, and people with substance abuse problems are particularly vulnerable to coercion."

"Asking a jury to judge the credibility of a confession without seeing the interrogation is like a medical examiner conducting an autopsy without a body," [Professor Saul] Kassin said.

"Taping interrogations can also protect police from false accusations of abuse and coercion, Ryan said. "Courts have already ruled police can lie, as long as I am not using any force on the suspect it's OK," he said. "

For more on false confessions and other forms of injustice, visit TalkLeft's Injustices page.

Instapundit supports compensating the wrongfully convicted and asks:

"...now that the system appears to be correcting its mistakes, how far will it go to make things right? I think a million bucks each is reasonable, though no more than reasonable, compensation if these guys turn out to be honest-to-God innocent. Think they'll get that much?"

Probably not. New York and Illinois were pioneers in passing laws allowing compensation. The Innocence Protection Act, as originally introduced, provided for $50,000 per year in federal cases. The recent amendment to the bill lowered it to $10,000 per year.

From the Justice Policy Project analysis of the original bill and amendment:

"The bill includes a substantially smaller increase in the federal cap on compensation for unjust imprisonment. Under current law, the U.S. Court of Federal Claims may award up to $5,000 against the United States in cases of unjust imprisonment. The IPA as introduced raised this cap - which has not been raised since 1938 - to $50,000 for each year that the plaintiff spent in prison, or $100,000 per year if the plaintiff was sentenced to death. The [amended] bill raises the cap to $10,000 per year. In addition, while the original bill conditioned federal prison grants on States agreeing to pay reasonable compensation to exonerated death row inmates, the bill simply expresses the sense of Congress that States should provide such compensation."

Lots of people are weighing in this week on the topic of the recently disclosed wrongful convictions of five youths in the 1989 Central Park Jogger case. Recent DNA testing (and the confession of someone previously uncharged in the crime) has established that the five defendants who were convicted of the rape and served time for it were in fact not the rapists.

Instapundit believes that the real issue is not whether the system makes mistakes, because they all do, but whether the mistakes were made in good or bad faith. Robert Prather of the Neo-Libertarian News Portal agrees with him.

We think good or bad faith is important, but we don't think it resolves the issue. Providing the convicted with an opportunity to obtain the necesary evidence to establish their factual innocence after conviction, without being subjected to unrealistic time constraints, is equally important. So is requiring the police to maintain the physical evidence of the crime (such as samples that might contain DNA and tapes of any purported confessions) so that later review can be had. So is analyzing the cases after the fact to find out what went wrong.

Elsewhere in the Blogosphere, Jeanne D'Arc of Body and Soul has been writing on various aspects of the case all week. How much did the fact that the five innocent youths were black have to do with them not being believed at trial? Would people have paid more attention to their claims of coerced confessions had they been white?

Yesterday, Avedon Carol of The Sideshow weighed in. While agreeing with Jeanne D'Arc on almost everything she wrote, Avedon takes issue with Jeanne's statement that lots of guilty people say they are innocent when they are not. She writes:

A plan to speed testing "of hundreds of thousands of DNA samples from unsolved rape cases to reduce a national backlog of untested evidence is headed for the House after the Senate passed it without dissent."

"The DNA samples, which could identify or clear suspects in hundreds of thousands of sexual assault cases, now sit untouched at police laboratories across the country because of a lack of money."

The bill also contains "new privacy safeguards for DNA evidence and increases criminal penalties for misuse or unauthorized disclosure of DNA information."

We posted earlier in the week about the wrongful conviction of Bruce Godschalk in Pennsylvania. In response today, we received the following from another wrongfully convicted Pennsylvania inmate whom the prosecution had sought to put to death. It's long, but well worth the read.

"I too was fervently prosecuted by the Montgomery County PA DA's office for a serious crime I was innocent of. The incident was "investigated" poorly -even so all involved were comfortable with filing a notice to seek my execution. I wrote a page or so about it. Please publish it if it fits your needs."

Death Decisions by Paul Camiolo

Having once been through the process where I was accused of a crime punishable by death, and the prosecutor filing notice to seek the death penalty against me, I can offer unique perspective on this issue.

I believe when the District Attorney accuses a person of a heinous crime, and states their intention to seek the death penalty, the DA has a moral obligation to ensure that the investigation completed has exhausted all possibilities of innocence, and to demonstrate that death is the only appropriate penalty for the crime.

Here's the new Village Voice article, Guilty Until Proven Innocent, with many more details on the Central Park Jogger case and the five youths who did the time but didn't do the crime.

A man who spent more than 15 years in prison before DNA tests exonerated him has filed a civil rights complaint against prosecutors and two former detectives who took his confession. Bruce Godschalk, 42, claims former Detectives Bruce Saville and Michael Karcewski coerced him into confessing to raping two women in 1986.

One of the prosecutors sued is protesting too loudly in our opinion.

"The lawsuit, filed last month, also accuses the Montgomery County District Attorney's office of refusing to release the DNA evidence that eventually cleared Godschalk and prompted his release in February. District Attorney Bruce L. Castor Jr. was not involved in the case at the beginning, but was in office during the struggle over releasing the DNA samples."

Castor, Jr. belongs in the suit because he is alleged to have played a role in blocking the DNA tests which proved Godschalk's innocence. If he didn't do it, a jury can so find. But to claim he shouldn't be sued at all over the allegation is plain wrong.

Here is more from the Innocence Project on the actions of prosecutors in the Godschalk case.

"Godschalk's appeals were denied. He contacted the Innocence Project in 1995, after his own motion for DNA testing was denied. The Innocence Project tried for years to obtain a copy of the taped confession, which the prosecution refused to provide until 1999. The tape was sent to an expert, who concluded that it was likely that Godschalk had falsely confessed. The analysis of the confession notwithstanding, the District Attorney refused to allow access to the biological evidence for testing."

"In November 2000, the Innocence Project and local counsel filed a Section 1983 civil rights complaint seeking access to the evidence. After the Federal District Court granted access to the evidence and the prosecution's motion to dismiss was denied, the District Attorney consented to release the evidence in the spring of 2001. Delays in setting a testing protocol and delivering the evidence led to the Innocence Project filing of a motion for summary judgement in June 2001. "

"In their response to this motion, the prosecution revealed that they had sent the relevant evidence to a laboratory and had it tested, without the knowledge or consent of the Innocence Project. Prosecutors reported that their laboratory had not been able to obtain results and, furthermore, represented that the evidence had been consumed in this secret testing. The District Attorney also included an affidavit from the police officer that had elicited the confession from Godschalk."

"Several of the "facts" represented in the District Attorney's motion were false. Though they claimed that all of the evidence from one of the crimes was sent to the laboratory, a carpet sample with semen was never received by the laboratory. The District Attorney's Office told the Court that the carpet sample was not introduced as evidence and was not significant to the case, though this sample originated from the home of the victim that could not identify Godschalk and was used at trial to tie him to the scene of the crime."

"The prosecution had entrusted the same police officer that had elicited Godschalk's confession with the delivery of the evidence to the laboratory. He had also been the investigating officer that had removed the carpet from the crime scene. The carpet sample resurfaced in October 2001."

"The evidence from both cases was tested at Forensic Science Associates in January 2002. Not only were profiles obtained from the evidence in both rapes, the male profiles matched, meaning that the same perpetrator committed both crimes. Bruce Godschalk was excluded. The District Attorney had their own laboratory perform testing."

"Despite the fact that their own laboratory obtained similar results from the evidence, the District Attorney's Office refused to release Godschalk from prison, citing possibly flawed testing in the face of the evidence, namely the confession and the identification. "

"Finally, on February 14, 2002, Bruce Godschalk was released. He has maintained not only his innocence, but that his confession was coerced and the details it contained were provided by the investigating officer, allegations supported by the test results. After fifteen years in prison and seven years of fighting for DNA testing, Bruce Godschalk has been exonerated and freed from prison. "

This is another reason to write and call your elected officials in Congress and have them pass the Innocence Protection Act now. It provides for DNA testing for these inmates, taking the decision out of the hands of prosecutors, some of whom are so self-righteous they block the tests, holding the innocence-determining process up for years.

We say let the jury decide about DA Castor, Jr.