On 28 Jul 2002 at 9:37, Blunderov wrote:
Interesting pieces. It seems to me that the chances of the first person
being innocent of the rape are small, since he had committed sexual
assault before and there would appear to be no doubt that he
committed the murder (that issue does not appear to be in contention).
The second case is more problematical. Despite the obvious
appearance that the case was chosen as a 'vehicle' by a person with a
blatant political agenda, this vehicle also appears to be well-chosen, for
the facts reported, if true, do constitute reasonable doubt to me. Some
people say it is better for 1000 guilty to go free than for one innocent to
be executed. I cannot say this, considering that 1000 freed murderers
would statistically subsequently kill many more than one person.
Perfaction is not possible, so we have to look carefully at the hard
equations to determine the most utilitarian path. If these people were
imprisoned without hope of parole, and if murderers were segregated
from the rest of the prison population and only allowed to associate with
each other, this might be more equitable, but I anticipate the same
howls of outrage to that alternative that accompanied my suggestion
that sexual predators should receive the same treatment (incarceration
with others of their kind). After all, some of these murderers would
certainly kill some of the other murderers with whom they were
incarcerated, and for some unknown reason, some people on this list
would seem to prefer that they kill innocent citizens. But lifetime
solitary confinement for all of them would not only be prohibitively
expensive, but also bring further howls concerning such isolation being
in their opinion cruel and unusual.
>
> The funny thing is that I do not believe that anyone has been able to
> present a single case in which an actually executed person was
> subsequently found to be innocent of the crime for which (s)he was
> executed. Do you know of any?
>
> [Blunderov]
> The evidence that wrongful executions can and do take place on a
> frequent basis is pretty overwhelming it seems to me. Here follows just
> two instances of what can be found...
>
> http://www.beloitdailynews.com/700/dnaa27.htm
>
> <snip>
> Media will pay to prove innocent man executed
>
> ATLANTA (AP) _ Three newspapers and CBS News said Wednesday they would
> pay for new DNA tests on evidence from a 1981 Georgia murder case to
> explore whether the man executed for the crime was innocent.
>
> If the DNA testing shows that Ellis Wayne Felker did not rape and kill
> 19-year-old Evelyn Joy Ludlam, it would be the first time DNA evidence
> exonerated an American inmate who was put to death. DNA evidence has
> cleared eight death-row inmates.
>
> Felker, executed in 1996, claimed he was innocent.
>
> The Boston Globe, The Macon Telegraph, The Atlanta Journal-Constitution
> and CBS are calling for new DNA tests on evidence in the murder of the
> college student, whose body was dumped in a creek.
>
> ``We've been very interested, like other news organizations, in finding
> a case where perhaps a man was wrongfully executed,'' said Ben Bradlee
> Jr., the editor overseeing the project for the Globe. ``If this could be
> proven, it could dramatically alter the terms of the death-penalty
> debate.''
>
> The tests would be run on material that authorities still have,
> including Ludlam's and Felker's hair, scrapings from under Ludlam's
> fingernails and hair found in Felker's house.
>
> Kelly Burke, district attorney in Houston County, where the case was
> prosecuted, said the examination was ``a total waste of their time.''
>
> Even so, Burke said he expected to approve the new tests, and the
> evidence could leave his office as early as Friday for a lab in
> California. The results could come back in several weeks.
>
> Advances in DNA testing have been at the forefront of the national
> debate of the fairness of the death penalty. Opponents of capital
> punishment have called for measures to give death row inmates more
> access to post-conviction DNA testing; even many death penalty
> supporters say such tests should be used to eliminate any doubt about
> convicts' guilt.
>
> Last month, Texas Gov. George W. Bush, a death penalty supporter,
> stopped the execution of Ricky McGinn until evidence found on his
> alleged victim, his stepdaughter, could be tested. Preliminary results
> failed to clear McGinn, but more tests are planned, according to
> published reports.
>
> In the Georgia case, Ludlam was assaulted and bound for as long as six
> hours before she was strangled. Her mouth and eyes had been covered with
> duct tape. Her body was dumped in a creek, where it lay for two weeks.
>
> Felker was connected to the crime through hair fibers found in his home
> and on the victim. He was found guilty in 1983 after a five-day trial
> and sentenced to death.
>
> Authorities said Felker would not have been subject to the death penalty
> without rape as an aggravating circumstance. Years later, Felker's
> lawyers asked a court to delay his execution so they could run a DNA
> analysis. The court rejected the request, saying it came too late.
>
> ``We're doing something now that no one else is in a position to do,''
> said Jim Walls, the Atlanta newspaper's special projects editor. ``The
> defense won't do it after the man's been executed. The prosecution won't
> do it.''
>
> Burke, the district attorney, pointed out that Felker had been convicted
> of a similar sexual assault five years before Ludlam's murder and that
> circumstantial evidence clearly pointed to Felker as the killer.
>
> ``This is not a case of an innocent man getting convicted,'' Burke said
> Wednesday. ``The part that's tragic is that it's got to be opening up
> wounds for both families for something that they thought was a done
> deal.''
>
> Burke said he was concerned that the evidence will have disintegrated to
> the point of making it inconclusive, creating the impression that Felker
> was wrongly prosecuted.
>
> ``Then we're right back to the same argument,'' he said. ``What proved
> Wayne Felker did it wasn't necessarily a little piece of evidence. It
> was all kinds of things that went into the case.''
>
> Walter Bush, a lawyer representing the Macon newspaper, said he expected
> the cost of the new testing to be between $10,000 and $30,000. But he
> said that may change depending on how long the testing takes and whether
> Felker's body must be exhumed to gather more of his DNA.
>
> Kevin Tedesco, a spokesman for CBS News, said the network's policy was
> not to discuss stories before they are aired.
> <snap>
>
> Also http://www.truthinjustice.org/yant-byrd.htm
>
> <snip>
> In Memoriam: John W. Byrd Jr.
> LUCASVILLE, Ohio - John W. Byrd Jr. died by injection on February 19,
> 2002, the first inmate executed since Ohio reinstated the death penalty
> in 1981 to claim he was innocent.
>
> Journalist, author and private investigator Martin Yant worked literally
> to the end of Byrd's life to save him. Martin tells us, "Ohio in all
> probability just executed an innocent man. Equally important, Ohio just
> needlessly killed a good man. John W. Byrd Jr. may have been a
> troubled-and troublesome-young man. But he grew into a self-educated man
> of great strength, wisdom and insight. We will continue to fight to
> prove his innocence even though he is now gone."
>
> The following Affidavit outlines why Martin became convinced of John
> Byrd's innocence. John Byrd is not the first innocent man executed by
> the government for a crime he did not commit. Let us redouble our
> efforts to ensure he is the last.
>
> STATE OF OHIO
> COUNTY OF FRANKLIN, SS:
>
> I, Martin D. Yant, depose and state under oath as follows:
>
> 1. I am an investigative journalist with 30 years of experience. I am
> also a licensed private investigator specializing in the investigation
> of possible wrongful convictions.
>
> 2. I am the author of four investigative books, three of which concern
> the American criminal-justice system.
>
> 3. My first book, Presumed Guilty: When Innocent People Are Wrongly
> Convicted, was published in 1991. Presumed Guilty was the first overview
> of the problem of wrongful convictions to be published in 30 years. An
> August 2000 review of all books on the subject written in the 20th
> Century pronounced Presumed Guilty "the most readable, [which] in no way
> detracts from its wealth of information."
>
> 4. I reviewed hundreds of documented wrongful convictions to determine
> how and why they occur before writing Presumed Guilty. I also consulted
> many leading criminologists, lawyers, investigators and journalists who
> had expertise in the subject.
>
> 5. I have devoted most of my time to investigating and writing about
> wrongful convictions in the 11 years since Presumed Guilty was
> published. In the process, I have discussed the subject on numerous
> national and local TV and radio talk shows; had two investigations
> featured on NBC-TV's Unsolved Mysteries and one on CBS Evening News; and
> aided in the release of several innocent inmates as a result of
> investigations I conducted from Rhode Island to California. I also was a
> consultant for Final Appeal, an NBC-TV series on wrongful convictions,
> in 1992.
>
> 6. Most recently, the findings of my three-year investigation on the
> strong wrongful conviction claims of two Columbus men originally
> sentenced to death in 1978 were featured on the front page of The
> Columbus Dispatch on Sunday,
> February 10, 2002. I conducted the investigation for Centurion
> Ministries, and organization that has freed 26 wrongly convicted
> inmates-two of them from death row-since 1983.
>
> 7. Many of my investigations have been of death-penalty cases. One of
> those cases is that of John W. Byrd Jr. In the course of that
> investigation, I have thoroughly reviewed the record and traveled as far
> away as California to track down and interview witnesses. The results of
> my investigation were incorporated into a series of investigative
> articles I co-wrote with Robert J. Fitrakis for Columbus Alive.
>
> 8. Of the many revelations in our articles that raise doubt about Byrd's
> guilt, in my opinion four stand out:
>
> A. A statement that Robert Fitrakis obtained from Robert E. Pottinger
> Jr. During that interview, Pottinger stated that he and John Brewer
> committed the robbery after the one in which Monte Tewksbury was killed.
> Pottinger said Byrd was passed out in the truck at the time. Pottinger's
> statement is important because the Ohio Supreme Court has ruled that
> Byrd's identification as the knife-wielder in the second robbery was
> "highly probative" evidence that he stabbed Tewksbury to death at a King
> Kwik store one hour earlier. If, as Pottinger claims, Byrd didn't
> participate in the second robbery, then he couldn't have been wielding
> the knife.
> B. A statement came by Dennis Nitz, a witness at the second robbery.
> Nitz told me that he stands by his testimony that the robber wielding
> the knife at the second robbery wore tan pants and a red-and-black shirt
> or coat. Byrd, the alleged knife-wielder, was wearing blue pants and a
> blue-and-white sweater that night. In his closing argument, the Hamilton
> County prosecutor said Nitz was mistaken about the pants' color. Nitz
> disagrees.
> C. A statement by John Lee Fryman, who said he was with Brewer, Byrd and
> a friend of his when they planned the robbery at the King Kwik store at
> which Monte Tewksbury worked. Fryman told me in an interview that it
> didn't surprise him that Pottinger said that Byrd was passed out because
> Byrd had already consumed a fifth of whiskey before noon that day.
> Fryman also said that Brewer had a large knife with him. Fryman said he
> never saw Byrd with a knife. Finally, Fryman said that Brewer bragged to
> him when they were in prison together in Lucasville that he, not Byrd,
> killed Tewksbury.
> D. The affidavit of Larry Kidd, who says he was in the Hamilton County
> Jail with Byrd and that he never heard him discuss his case, let alone
> with a black inmate, because Byrd did not like or trust blacks. It was
> for this reason, Kidd says, that he has always doubted the testimony of
> Ronald Armstead, who is black, that Byrd bragged to him about killing
> Tewksbury. On the other hand, Kidd says he did hear Byrd's co-defendant,
> John Brewer bragging about the murder to Armstead. Kidd believes
> Armstead got many of the details of Tewksbury's murder from Brewer
> during this conversation. Kidd also believes Brewer planted the idea
> with Armstead that Byrd killed Tewksbury so that Brewer himself would
> not be charged with being the principal offender.
>
> 9. During my review of the Byrd case, I also isolated the following
> factors that are common causes of wrongful convictions:
>
> A. The dubious testimony of jailhouse snitch Ronald Armstead that Byrd
> confessed to him. According to the Innocence Project at the Benjamin N.
> Cardozo School of Law, which has exonerated 102 innocent inmates with
> DNA in little more than a decade, testimony by snitches or informants
> was a factor in 16 of the first 70 exonerations the organization
> achieved. This should make all testimony by such witnesses highly
> suspicious. That is why the bipartisan Constitution Project's
> blue-ribbon death-penalty panel unanimously concluded that the death
> penalty should be "off limits where the guilt of the defendant or the
> likelihood of receiving a capital sentence" depends upon uncorroborated
> testimony from co-defendants and jailhouse informants.
> B. Ineffective assistance of counsel by Byrd's trial attorneys. The
> Innocence Project says that bad lawyering was a factor in 23 of its
> first 70 DNA exonerations. The mistakes made by Byrd's attorneys are
> well-documented. What has not been documented is the indifference of
> Hollis Moore, who failed to inform Byrd that he previously had
> represented Armstead when, purportedly at his request, he was appointed
> to represent him. Moore was extremely reluctant to discuss Byrd's case
> when I called him on February 16, 2002, and he refused to fully answer
> important questions. Even more telling, Moore didn't inquire about the
> new evidence I told him that had surfaced or even how his former client
> was doing only days before his scheduled execution.
> C. Prosecutorial and police misconduct. The lengths that the prosecutors
> and investigators have gone to achieve Byrd's scheduled execution are
> among the worst I have seen in my study of hundreds of documented
> wrongful convictions. The steps they have taken to camouflage an obvious
> deal made with Armstead in return for his testimony is an affront to
> justice. Prosecutorial misconduct played a role in 34 of the Innocence
> Project's first 70 exonerations. Police misconduct was a factor in 38 of
> the 70 cases.
> 10. Based my review of the record and investigation, it is my
> professional opinion that John W. Byrd Jr. did not kill Monte Tewksbury.
> What's more, because of an off-the-record statement by one of the
> individuals interviewed
> during our investigation, I do not believe Byrd participated in either
> robbery that night. According to this individual, who asked that this
> part of his statement be kept off the record because he feared that he
> otherwise might be charged with murder, Byrd was unconscious during both
> robberies.
> 11. I also have concluded that if Mr. Byrd is executed for this
> crime-with medicines the U.S. Food and Drug Administration has approved
> only for the use of saving lives, not taking them -his death would
> constitute cruel
> and unusual punishment and would be an affront to the standards of
> justice of the people of Ohio.
>
> 12. As part of my work, I go to great lengths to network with the few
> other people who specialize in studying or investigating wrongful
> convictions. There have been several pertinent developments in just the
> past few weeks that demonstrate a clear movement in the courts,
> academia, the media and the population at large against the death
> penalty. Among those examples were:
>
> A. In a case remarkably similar to Byrd's, the Maryland Court of Appeals
> ordered a new trial for Clarence Conyers Jr., who was sentenced to die
> for the murder of his girlfriend's mother. The court said the state
> failed to disclose to the defense important information about the
> testimony of Charles Johnson, a cellmate who testified that Conyers
> admitted killing the woman. The majority opinion said the prosecution
> "was an active participant in the 'smoke and mirrors' effort to mislead
> [Conyers] and the jury as to the full circumstances preceding and
> precipitating Johnson's plea agreement." The opinion said the state did
> not tell Conyers' lawyers or the jury that Johnson was awaiting trial on
> a 19-count armed robbery indictment and that he was allowed to plead
> guilty to one misdemeanor charge of conspiracy to commit robbery.
> B. In her nationally syndicated column, Ann Landers stated that she was
> "strictly opposed to the death penalty, no matter how heinous the
> crime." Landers, who was responding to a letter from the Constitution
> Project, noted her support for the Project's proposed legislative
> reforms of the death penalty, calling them "compassionate and sensible."
> C. A report released by Columbia University concluded that the high rate
> of mistakes in death penalty cases is related to aggressive overuse of
> the punishment. "What our study shows is that aggressive death
> sentencing is a magnet for serious error," said Professor James Liebman,
> the leading researcher for the study. (Hamilton County, where Byrd was
> convicted, is the most frequent user of the death penalty in Ohio.) The
> report was a follow-up to a June 2000 study, "A Broken System, Error
> Rates in Capital Cases 1973-1995," which revealed that 68 percent of all
> capital judgments were reversed by the courts due to serious error.
> D. The Miami Herald reported that nearly a decade after two teenagers
> were convicted of murdering a Broward County sheriff's deputy, a
> 32-year-old man has admitted committing the crime. If the statement
> holds up, it would be the third time in the past two years that a
> Broward Sheriff's Office murder conviction has collapsed because of a
> false confession. One man went to death row, where he died of cancer
> before DNA tests exonerated him. Another served 22 years before being
> freed.
> E. Rob Warden, head of the Northwestern University Center on Wrongful
> Convictions, said he believes public opinion is turning against the
> death penalty. Warden noted that a Gallup poll last May showed support
> for the death penalty at 65 percent, a 20-year low. When the alternative
> of life without parole was offered, support for the death penalty
> dropped to 52 percent, Warden said. Warden noted that 288 people in
> Illinois have been sentenced to death. Thirteen of those were later
> found innocent, several of them thanks to Warden's investigations. That
> is an error rate of 4.51 percent.
> 13. I believe it is time for the state of Ohio to join those taking a
> more critical view of capital punishment. John W. Byrd's questionable
> conviction is a good place to start.
> Further I sayeth naught.
>
> Martin D. Yant
> Author, Journalist & Private Investigator
> <snap>
>
>
>
>
>
>
>
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