Category Archives: Editorials/Opinion

Tuesday’s Quick Clicks…

Politics and Justice – A Very Bad Combination

I’ve said it before, and I’ll say it again, and again, and again. The justice system has been putrified by politics. I’ve stressed this point numerous times in the past with regard to the pernicious effect politics has on the actions of prosecutors. And of course, it’s not limited to just prosecutors. Elected judges are effected by politics as well. See Judicial Independence – How Do We Get There?

The fact that judges are influenced by politics, particularly big money politics, is supported and amplified by this recent article in The Atlantic: Big Money Propping Up Harsh Sentences.

And by the way, state attorneys general, sheriffs, and coroners are also powerful players in the justice system who are elected political officials.

West Virginia Supreme Court Rules that Brady Requirement Applies to Plea Negotiations

From the West Virginia Supreme Court’s ruling released Tuesday, November 10, 2015:

“This Court is presented with a situation in which a defendant repeatedly requested the results of DNA testing; was incorrectly informed that such testing was not yet complete; and was presented with a time-limited plea offer that he accepted upon advice of counsel. We find that the DNA results were favorable, suppressed, and material to the defense. Thus, the Petitioner’s due process rights, as enunciated in Brady, were violated by the State’s suppression of that exculpatory evidence.”

Further, “…This Court…remands this matter for an order granting habeas relief and permitting the Petitioner to withdraw his guilty plea.”

The West Virginia Supreme Court’s unanimous ruling in Buffey v. Ballard, reversing the June 3, 2014, order of the Circuit Court of Harrison County, enables Joseph A. Buffey to withdraw his 2002 guilty plea in the case of the rape of an 83-year-old woman and requires the prosecutor to either retry the case or Continue reading

“Automatic” Justice? Is Technology Eliminating the Presumption of Innocence?

A recent legal research paper from the School of Law at Queen Mary University of London has raised the issue of technology’s impact upon the criminal justice system, and how its effect may be replacing presumption of innocence with presumption of guilt. A truly frightening prospect. You can download the paper here: Automatic justice? Technology, Crime and Social Control.

The nature of evidence in the justice system has steadily been evolving to be ever more founded in technology, be it legitimate and proven technology … or not. And the tendency is for the prosecution (and police) to say, “We have ‘scientific’ evidence of your guilt; therefore, you are guilty.”

And here’s the problem: much of this “technology” has not been verified and statistically validated. It just gets presented in court as “science,” and judges, lawyers, and juries don’t have a clue as to whether or not it’s actually accurate or relevant. How do you know the latest “computer app” is actually true and accurate? You don’t. We’ve seen frequent examples of so-called forensic “science” being proven wrong. Just three of these would be compositional analysis of bullet lead (CABL), microscopic hair comparison, and bite marks. There are currently thousands of cases under re-investigation as a result of scientifically flawed FBI hair comparison work and testimony. There are some infamous cases of fingerprint identifications being wrong; one of these being the case of Brandon Mayfield. Most people, (including lawyers) don’t understand that there is huge margin for error in locating a cell phone through cell towers.

The agents of the justice system – lawyers, judges, police, and especially juries – have been notoriously ignorant regarding the scientific, technological, and mathematical issues of evidence. This is why so much of the justice system depends upon so-called  “experts” to try to understand and explain what all the technology means; but, these experts, often self-styled, may be legitimate — or they may not be. Unfortunately the lawyers, judges, and juries have no way to tell. Defense attorneys will most commonly not technically question (cross examine) prosecution “experts.” This is too bad, because, in my opinion, a technically knowledgable and logically-penetrating defense attorney could just “take apart” many prosecution “experts” – even medical doctors. The typical legal defense strategy is to present “your own” expert, which puts the poor jury in the position of having to decide which of the dueling experts to believe. All this, unfortunately, leaves the justice system, and the defendant, at the mercy of “experts,” and there is no scientific way built into the justice system to sort through which “science” is true and correct, and which is junk – and which experts are truly expert, and which are charlatans.

From the conclusion of the paper: “Our deepest concern is the emergence of a potentially unfettered move towards a technologically driven process of ‘automatic criminal justice.’”

We – all of us – have a problem. The justice system was never conceived or designed to comprehend the explosion of technology. And the lawyers and judges are not trained or prepared to deal with it. It’s a problem.


Texas Judge Frees Steven Mark Chaney, Convicted of Murder by Junk Science

State District Judge Dominique Collins ordered the release from prison of Steven Mark Chaney yesterday after he had served more than a quarter of a century behind bars. He was convicted of the 1987 murders of an East Dallas couple, John and Sally Sweet. Nine witnesses testified to support Chaney’s alibi. Yet he was convicted by bite-mark junk science.

This case — and widespread official recognition of the unreliability of this type of forensic evidence — should prompt new consideration of all cases in which bite-mark testimony contributed to the conviction.

Chaney’s release yesterday was supported by Dallas County District Attorney Susan Hawk, his New York based Innocence Project Attorney Julie Lesser, and the Dallas County Public Defender’s Office. They all recognize that Chaney did not receive a fair trial.

As reported in The Guardian, Chaney will remain free while the Texas Court of Criminal Appeals reviews the case. His attorneys believe he will be exonerated… Continue reading

When Prosecutors Can’t be Bothered With Innocence

An insightful article by Radley Balko, writing for the Washington Post.

From the article:

“That they (the two prosecutors cited in the article) have yet to be sanctioned or disciplined by a court or state bar speaks volumes about the legal profession’s ability to police itself. That they continue to be reelected is more evidence that the criminal justice reform movement should get more directly involved in electoral politics.”

A Cogent Comment About the Wrongfully Convicted Sex Offender and Sex Offender Registries

A reader recently posted a comment about our article The Wrongfully Convicted Sex Offender that struck me as being representative of the hideous situation faced by the wrongfully convicted sex offender. So I thought it deserved “front page” status.

This from “Deborah:”

“Make sure if you are on the registry you cross your tees and dot your i’s. My husband recently was arrested after the swat team surrounded our home and took him away. Reason was he neglected to register his Facebook account. Class 3 felony. 4 days in jail, five thousand dollars bail. Now waiting for court hearing. $4500 for an attorney. Happened twenty years ago and was falsely accused by step daughter who has admitted that he never touched her. What a society we live in.”


Courtney Bisbee Case – Redux (Sentencing)

This post is in regards to our recent post A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee.

Courtney, who is demonstrably innocent, was sentenced to 11 years in prison for “touching” a 13-year-old. This was clearly the result of a false accusation, and was a “crime” that never happened.

Let’s put this outrageous sentence into perspective.

Mary Kay Letourneau was a school teacher in Washington who not only had sexual relations with a 12-year-old, but also actually bore his child, which she delivered during her trial. She wound up spending a total of 6 years in prison.

Debra Lafave was a school teacher in Florida who had multiple sexual encounters with a 14-year-old boy. She wound up with no prison time and three years of house arrest.

In all these cases, you have to question whether these weren’t actually victimless crimes. Regardless, Courtney’s sentence should appear to the logical, rational person to be excessively draconian and punitive. PLUS, she will have to be on the sex offender registry for the rest of her life – for “touching” – which actually didn’t happen. What’s wrong with this picture??

Is it any wonder that the US has only 5% of the world’s population, but has 25% of the world’s prisoners?

ADDENDUM, October 5, 2015:

Yet another case, Jennifer Mally, and this time in Arizona. Jennifer Mally was a high school teacher and cheer coach who was charged with 17 counts of sex with a minor. This was just two years after Courtney’s conviction. She wound up spending six months in prison – NOT 11 years!

A Broken Justice System – Cases in Point – Part 2 – The Case of Courtney Bisbee


From time to time, I become aware of cases that are particularly good examples of the flaws, the problems, the shortcomings, the failures, and the actual injustices of our so-called justice system (that I have been writing about here for the last 3 1/2 years). This is Part 2 of what is intended to be a continuing series highlighting these cases. These cases have been selected as representative and demonstrative examples, but be aware they are just the “tip of the iceberg.” This kind of stuff is happening every day in every state. You can see Part 1 here.

[Note: To the best of my knowledge, everything in this article is a matter of public record. If it can be shown that there are any misstatements, I will immediately post a retraction and an apology. This article has been reviewed and approved for posting by both Courtney Bisbee and her family.]


“Part 2” is the case of Courtney Bisbee in Arizona. Courtney Bisbee is a clearly innocent woman who was wrongfully convicted of improperly “touching” a male adolescent. There is compelling, documented evidence of Courtney’s innocence, but she continues to be incarcerated in Perryville prison in Arizona, where she has been for the last ten years. I’ve been studying this case for two years, and it is a “perfect storm” of what is broken and wrong with the justice system. At the end of the article, I’ll enumerate at least some reasons for this, and the list is long. Let me also comment that this is an overview of the case. The more deeply one digs into the details of this case, the murkier, the dirtier, and the more putrid it gets. We just don’t have the time or the space to cover all of that here., but I can say that, in general, it relates to the state of the justice system in both Arizona and Maricopa County. This is the kind of horror story that the average citizen would say “can’t happen here,” but it does.

Stephen Lemons, writing for the Phoenix New Times in 2008, wrote a comprehensive and detailed summary of Courtney’s case. See that story by Stephen Lemons here. If you have even a casual interest in the case, I suggest you read the article. Here’s an “abbreviated” version of the case:

Courtney Bisbee was raised in Michigan in a traditional family that worked hard, played by the rules, and was living the American dream; and had never had any exposure to the justice system. In 2004, she was a successful single mom of a 4 1/2 year old daughter, living and working in Scottsdale, AZ, and life was grand. She had begun a new job as a high school nurse, while completing the final weeks of her master’s degree. A compassionate and caring person, she was even tutoring some troubled teens, and therein begin the problems, because two of these troubled teens had an even more troubled non-custodial mother, with a prior criminal record.

To understand the details of the alleged incident, I refer you to the Lemons article. But basically what happened was that the non-custodial mother of two of the teens Courtney had been mentoring learned, by accident, that the boys were secretly living with another family while their custodial father was completing work-furlough for DUI. She was irate about this, and after learning that Courtney had been at this family’s house with her two sons and several other teens, cooked up a plot to sue for money based upon Courtney’s allegedly “touching” her 13-year-old son inappropriately. She even consulted several attorneys prior to ever taking her son to talk to the police.

After the accusation was made, Courtney was arrested at her home by a SWAT team, without a warrant, and in front of her 4 1/2-year-old daughter. This was after the detective on the case, just prior to her warrantless arrest, had illegally searched Courtney’s home, also without a warrant, confiscating her computer and her camcorder. And because that same detective later lied to the Grand Jury about the case, Courtney was held non-bondable for 66 days, until a second Grand Jury could be convened, which was forced by her initial attorney. Only then was she able to be released on $100,000 bond in this “he said – she said” case.

The only detective on Courtney’s case clearly went into it with the presumption that she was guilty, failing to thoroughly investigate, and concocting his own information to support his preconceived belief. This included not following established rules and protocols for interviewing children (Multidisciplinary Protocol.2003), badgering and coercing Courtney during her lengthy interrogation, lying to the Grand Jury, and lying in court. He also did not investigate one critical, verifiable fact that would have disproved the “victim’s” story (see the Lemons article), and would have, most likely, resulted in Courtney’s acquittal.

From the onset, the prosecution employed a “win at all cost” strategy to obtain a a conviction in Courtney’s “high profile” case. At that time, the Maricopa County Attorney had been conducting a five year “witch hunt” reign of terror, even investigating and charging sitting judges and county supervisors who he believed had “crossed him.” Please see the very revealing American Bar Association Journal article about this prosecutor here. He openly boasted about his 200,000 felony convictions. Also at that time, there was a nationwide moral panic going on about the safety of children in schools, and this was a hot-button political issue for the prosecutor; resulting in a rush to judgement based upon false allegations with no presumption of innocence. Courtney was clearly a victim of all this, and her family has documented multiple instances of prosecutorial misconduct during the course of the investigation and trial in the prosecution’s drive to rack up another politically advantageous conviction.

At trial, Courtney was represented by an expensive but inadequate attorney from a well known Phoenix law firm who presented a lackluster defense. This attorney had coerced Courtney into opting for a bench trial. He even failed to call a key defense witness who was there waiting in the court house to testify during the trial, and who had exculpatory testimony to give.  This witness had been present when two of the state’s key witnesses had discussed the fact that the accuser was lying, and that nothing ever happened between Courtney and the alleged victim. In my opinion, this very well could have changed the outcome of the trial. Also in my opinion, this was just boneheaded legal incompetence. (Either that, or it was intentional. I’m sure we’ll never know. Why would he not call this witness?)

In 2006, the bench trial judge, who had been under investigation by the Maricopa County Attorney, ultimately found Courtney guilty, and imposed the mandatory minimum sentence plus one year – 11 years.

In 2007, the state’s key trial witness, the “victim’s” older brother, who was present at the time of the alleged incident, came forward with a sworn affidavit stating that he had lied in court during Courtney’s trial, that his brother had lied in court, and that the whole case was a scam for money perpetrated by their mother. Additionally, the “victim’s” (accuser’s) best friend was deposed by Courtney’s civil attorney, and stated under oath that the victim had confessed to her several times that nothing ever happened between Courtney and him, and that his mother was making him do it for the money. I have read the transcript of the deposition, and it is unequivocal; and what’s particularly striking about this is that the prosecutor was present for the deposition, and has failed to take any action as a result of it. This just makes my brain explode. This affidavit and the deposition have yet to be acknowledged or considered by a court. The Maricopa County Attorney’s Office has steadfastly ignored all this new evidence. Phoenix Fox News 10 did a story about the older brother’s affidavit recanting his testimony, saying that nothing ever happened, that his brother (the alleged victim) was also lying, and that their mother made them do it so she could sue for money. See that video here. In the video you’ll see Courtney sobbing as she declares her innocence and begs the judge not to separate her from her daughter; and maybe it’s my imagination, but I could swear the judge is actually smirking.

When Courtney was tried, convicted, and sent to prison in 2006, her parents lived in Atlanta. They moved to Phoenix with the idea that it would take them a year or two to get Courtney out of prison. They would ultimately have to sell Courtney’s and their homes, close their successful businesses, and cash in many of their assets to pay for Courtney’s failed defense. Ten years later, they are still in Phoenix, and Courtney is still in prison. Over this time period, they have dealt with a veritable parade of attorneys, none of whom have actually accomplished anything – except for collecting their fees. This was up until the point that her New York City attorneys were retained and filed her Writ of Habeas. Courtney has had an absolutely compelling habeas petition pending before the court for the last 2 1/2 years, but it is yet to be heard. I’ve read the petition, and it’s very well done, and anybody who reads it has to say, “Wait a minute. There’s something very wrong with this conviction.”

And here’s the real kicker. The people in this case who actually committed crimes – false accusation, perjury – get off scot-free. And the prosecutors, the judge, and the lawyers all suffer no consequences whatsoever. And they were all, all, complicit in sending an innocent mother to prison. And on top of all that, Courtney has been separated and alienated from her daughter by an antagonistic ex-husband, and has neither seen nor heard from her daughter in over 10 years.

What I believe this case exemplifies and demonstrates is ….

Continue reading

“CSI” FINALLY Going Off the Air

See the CNN story here.

Thank you. Thank you. Thank you.

CSI – I hate the show. A pile of fictitious forensic junk that has been a burden to innocence work since its inception.

Prosecutors complain about it because they think it instills in the minds of jurors that there needs to be fancy, technical forensic evidence in order to convict a defendant. Maybe so, and if so, this might possibly result in a jury finding a defendant innocent who is actually guilty.

But there is a much more pernicious “other edge” to that sword. My view has always been that it instills in the minds of jurors that fancy, technical, forensic evidence is infallible, even though it may be scientific garbage. And this can, and does, result in a jury finding a defendant guilty who is actually innocent.

CSI, RIP. (No, not really.)

Oklahoma May Be About to Execute an Innocent Man

Richard Glossip is scheduled to be executed by lethal injection in Oklahoma next Wednesday, 9/16.

He was convicted of a murder-for-hire plot based solely upon the testimony of the actual murderer, who implicated Glossip after coercion by the police, and to save his own skin.

See the CNN story by Helen Prejean here.

Amanda Knox – The Period at the End of the Sentence.

Italy’s Court of Cassation has issued a final, formal opinion on the resolution of the Amanda Knox case.

It is a resounding exoneration of Knox and Sollecito, and a scathing indictment of a sloppy, inadequate, hastily contrived prosecution case.

See the ABC News story here.

Perspectives of a Public Defender

Tina Peng is a public defender in New Orleans, and has authored an opinion piece that recently appeared in the Washington Post.

Her insight and commentary on the job of public defender are eye opening.

See her article, “I’m a public defender. It’s impossible for me to do a good job representing my clients.”,  here.


New York Considers Independent Prosecutorial Conduct Review Boards

“Plagued by misconduct, New York is considering the establishment of independent review boards for prosecutors, just like the ones for judges.”

See the article by Bennett Gershman, Pace Law School professor and expert on prosecutorial misconduct, here.

From the article:

“Legislation has been proposed to establish a state Commission on Prosecutorial Conduct—the first in the nation—to investigate and discipline prosecutors for misconduct.

The Commission on Prosecutorial Conduct is modeled after state commissions on judicial conduct, which exist in every state to review complaints of misconduct by judges and impose discipline. New York’s judicial commission was created in 1975 and has made a significant contribution to enforcing standards of judicial integrity. Indeed, for the previous 100 years, only 23 judges in New York State were disciplined. Since 1975, 826 judges have been disciplined, and 166 removed from office.

The Commission bill is supported by numerous organizations—United Teachers Association, Catholic Archdiocese, Legal Aid Society, New York Association of Criminal Defense Lawyers, and others. Committees in the state Senate and Assembly approved the bill late last term, but it did not reach the floor in time for a vote.”


Parole of the Wrongfully Convicted Requires Admission of Guilt



We’ve written here before about the quandary faced by actually innocent, wrongfully convicted prisoners seeking parole.  Please see The Catch 22 of Parole for the Wrongfully Convicted.

The issue here is that it’s uniformly standard practice for parole boards to refuse parole for defendants who will not admit guilt. So, what’s a wrongfully convicted, actually innocent prisoner to do?

However, a California appeals court has recently ruled that the parole board cannot keep refusing parole to a prisoner simply because he will not admit guilt. See the article By Maintaining Innocence, Convicted Murderer is Denied Parole by Seth Augenstein here.

This is a big deal. Could this be precedential?

Criminal Law 2.0, by The Hon. Alex Kozinski (Why the US Justice System Really Isn’t Just)

Alex Kozinski is a judge on the U.S. Ninth Circuit. He has recently authored an article for the Georgetown Law Journal, which he simply titles “Criminal Law 2.0.” It is a comprehensive review and critique of the flaws and shortcomings of the current US justice system. My opinion is that this article is a masterpiece, a classic. Here is an experienced, seasoned, knowledgable justice system “insider” who has “figured it out.” And not only has he figured it out, but he also has some very good ideas about fixing the problems, or at least some of them. You can see the full text here: Kozinski, Criminal Law 2. I strongly encourage reading the full article.

Here is a topical summary: (Please see the full article for Judge Kozinski’s discussion of each point.)

A. The myths that cause us to think that the justice system is fair and just, when it’s really not.

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive proof of guilt.
  12. Long sentences deter crime.

B. Recommendations for reform – Juries

  1. Give jurors a written copy of the jury instructions.
  2. Allow jurors to take notes during trial and provide them with a full trial transcript.
  3. Allow jurors to discuss the case while the trial is ongoing.
  4. Allow jurors to ask questions during the trial.
  5. Tell jurors up-front what’s at stake in the case.
  6. Give jurors a say in sentencing.

C. Recommendations for reform – Prosecutors

  1. Require open file discovery.
  2. Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations.
  3. Adopt standardized, rigorous procedures for eyewitness identification.
  4. Video record all suspect interrogations.
  5. Impose strict limits on the use of jailhouse informants.
  6. Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process.
  7. Keep adding conviction integrity units.
  8. Establish independent Prosecutorial Integrity Units.

D. Recommendations for reform – Judges

  1. Enter Brady compliance orders in every criminal case.
  2. Engage in a Brady colloquy.
  3. Adopt local rules that require the government to comply with its discovery obligations without the need for motions by the defense.
  4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
  5. When prosecutors misbehave, don’t keep it a secret.

E. Recommendations for reform – General

  1. Abandon judicial elections.
  2. Abrogate absolute prosecutorial immunity.
  3. Repeal AEDPA § 2254(d). (Antiterrorism and Effective Death Penalty Act)
  4. Treat prosecutorial misconduct as a civil rights violation.
  5. Give criminal defendants the choice of a jury or bench trial.
  6. Conduct in depth studies of exonerations.
  7. Repeal three felonies a day for three years. (Refers to the fact that there are too many vague, overlapping laws on the books.)

I would add two more to the General category:

•  Have all trial counsel, prosecution and defense, sworn in at the beginning of every trial.

•  Abandon political election of prosecutors.

Modern Forensics vs. Good Old-Fashioned Texas Justice: The Trials of Ed Graf


By Jeremy Stahl

Ed Graf was a bad employee. While working at Community Bank in Texas in the 1980s, he allegedly embezzled from his employer, eventually paying the bank more than $75,000 to avoid prosecution. Ed Graf was a bad husband. His ex-wife, Clare, would call him “the most possessive person I’ve ever known.” Clare’s best friend, Carol Schafer, said her husband, Earl, saw Graf having sex with another woman the night of Graf’s bachelor party. Ed Graf was, according to Clare and her family, a bad father. Two of Clare’s family members accused him of beating his adopted stepsons, Joby and Jason, with a board and belt.

In 1988, a Texas jury found that Ed Graf was also a murderer. Prosecutors argued that two years earlier, on Aug. 26, 1986, Graf had knocked out Joby, 9, and Jason, 8, and placed the boys in the back of their family shed. Graf had then spread gasoline, locked the shed, and set the boys ablaze. The two inseparable, athletic, blond-haired brothers died of smoke inhalation and severe burns in the backyard of their home. The address was 505 Angel Fire Drive.

On the day of the fire, Graf broke the news to his wife, telling Clare that both boys had been lost in the blaze. But Graf had been informed that the body of one child had been found, not both. It was one of many pieces of circumstantial evidence that prosecutors would pile up to present Graf as a calculating, greedy, and callous monster who murdered the children in a desperate attempt to keep his troubled marriage together.

Other small clues seemed to point to Graf’s guilt. Multiple witnesses say they saw a gasoline container on the porch, not far from the kids’ bikes. Graf also acted strangely after the fire. He suggested the boys be buried in one coffin, according to multiple witnesses. He didn’t offer his wife consolation, or apologize that they died in his care. A few weeks after the fire, Graf returned about $50 worth of Joby and Jason’s new school clothes that he had previously insisted they keep the tags on. There was more of what others saw as signs of foreknowledge. The normally meticulous Graf, who was said to keep lists for everything, neglected to buy the boys’ cereal or fill Jason’s Dimetapp prescription the week of their deaths.

In addition to the circumstantial evidence, prosecutors were able to present motive. Weeks before the fire, Graf had taken out $100,000 worth of combined life insurance on the boys if they were to die in an accident. The policies had been mailed out the day before the fire.

The real motive, prosecutors argued, was to get the boys—a source of regular bickering between Graf and his wife—out of their lives. His wife testified that shortly before the fire, she had threatened to leave him over his strict discipline of Joby and Jason, sons from a previous marriage, and to take their newborn third son, Edward III, with her.

The case was still largely circumstantial, though. The thing that likely clinched Graf’s conviction was the scientific testimony of a pair of forensic examiners. Joseph Porter, an investigator with the State Fire Marshal’s Office, testified that, based on his analysis of photos of the remains of the scene, the door of the shed must have been locked from the outside at the time of the fire, which would indicate foul play. He also said there were obvious charring patterns on the floor of the shed left by an accelerant. “The fire was definitely incendiary,” Porter declared. The prosecution’s other expert, a top fire investigator from New York known for his report on the Osage Avenue fire, a notorious fire set by Philadelphia officials that destroyed a primarily black neighborhood, was brought in to testify that there was “no doubt” that this was arson.

If the fire was intentionally set, then Graf was the only suspect with means, motives, and opportunity. Even if there was no direct evidence connecting him to the crime, the circumstantial evidence and the word of two arson experts was enough. The jury deliberated for four hours before pronouncing him guilty of capital murder.

The jurors then had to decide the punishment. The district attorney, Vic Feazell, said that the “facts of the case cry out” for the death penalty—two boys burned alive, murdered by a trusted parent.

Defense attorney Charles McDonald gave an impassioned plea that the jurors had convicted an innocent man and would make the injustice irreversible if they chose execution over life in prison. “I’m asking for this man’s life because if you did make a mistake there’s going to be some folks, somewhere down the line, it may be years … but maybe the mistake can be corrected,” McDonald argued. “If you take this man’s life, there ain’t no way to ever correct it.” The jurors must have found this argument compelling, because they spared Ed Graf’s life.

Twenty-five years later, the Texas Court of Criminal Appeals decided that a mistake had, in fact, been made. The investigators who testified the fire was arson used what in the years since has been discredited as junk science. A state review panel set up to examine bad forensic science in arson cases said that the evidence did not point to an incendiary fire. A top fire scientist in the field went one step further: The way the boys had died, from carbon monoxide inhalation rather than burns, proved the fire couldn’t have been set by Graf spreading an accelerant, and was thus likely accidental. The defense’s theory was that the boys, who multiple witnesses said had a history of playing with matches and cigarettes, had set the fire themselves, attempted to put it out, and been quickly overcome by carbon monoxide poisoning.

The reason Ed Graf’s case was reviewed a quarter of a century after he barely escaped the death chamber was because of one man: Cameron Todd Willingham. He was convicted, based on similarly faulty scientific evidence and the testimony of a jailhouse informant who later recanted and said he was bribed, of murdering his three children by setting their home on fire two days before Christmas in 1991. Willingham was executed 11 years ago. Only after Willingham’s death was it revealed publicly that the forensic evidence used to convict him was bunk. In 2009, the New Yorker’s David Grann wrote a groundbreaking article describing Texas’ flawed case against Willingham. The story sparked a national uproar over forensic science and the death penalty.

Then Texas did something surprising. While the state has not budged in its use of the death penalty—just last year topping 500 executions since the state brought back capital punishment in 1982—it has reinvented itself as a leader in arson science and investigation. A new fire marshal, Chris Connealy, revamped the state’s training and investigative standards. He also set up a panel comprised of some of the top fire scientists in the country to reconsider old cases that had been improperly handled by the original investigators.

Graf’s case was one of the first up for review, and it was determined that the original investigators had made critical mistakes. The Texas Court of Criminal Appeals agreed, overturning the original conviction.

Graf’s successful appeal proved that Texas was serious about correcting past forensic errors, but his story was far from over. Prosecutors in Waco were not convinced of his innocence. They felt that they had enough evidence to reconvict. Just because the forensic science was flawed didn’t change the fact that, in the eyes of prosecutors, Ed Graf was a bad employee, a bad husband, and a bad father—a man capable of murdering his adopted children.

So there was a new trial, and Graf became the first man in Texas to be retried for an arson murder that had been overturned thanks to advances in fire science. His new trial set up a clash between modern forensics and the old way of pursuing criminal justice in Texas, a state where prosecutors have often gone to questionable lengths to win convictions against high profile murder defendants—including multiple men later proved innocent.

Prosecutors in Graf’s retrial spared no effort to win a second conviction in a strange and dramatic retrial last October. The trial’s surreal and unforeseeable conclusion would have a profound impact not just on the fate of Ed Graf, but on the lives of other prisoners who in the wake of the Willingham case held out new hope that their convictions might be overturned and their innocence acknowledged…

Continue reading on at Chapter 2 New Memories

When Innocence Is No Defense

The ancient Greek playwright, Euripides, once wrote, “Ours is a world in which justice is accidental, and innocence no protection.”

Interestingly, there is an op-ed piece in the NY Times today with the title “When Innocence Is No Defense.”

This quote from the article: “What is most troubling (about the Georgia Supreme Court’s decision) is that the issue of innocence becomes irrelevant if there has been a failure of due diligence. In effect, the ruling elevates finality over justice to the point that an innocent person can be imprisoned, even executed, because of errors made by his lawyer. Absent a constitutional safety net, an innocent person convicted after a procedurally adequate trial is out of luck.” (Highlighting is mine.)

See the NY Times op-ed piece by Julie Seaman here.

The Sex Offender Registry Strikes Again

We’ve posted  here before about the insanity and injustice of the sex offender registries. Please see Sex Offender Registries – TIME-FOR-A-CHANGE.

A recent CNN article captures the situation very well. This quote from the article by a judge familiar with the case: “If we caught every teenager that violated our current law,” says former Judge William Buhl, “we’d lock up 30 or 40 percent of the high school. We’re kidding ourselves.”

See the CNN story – “How a dating app hookup landed a teen on the sex offender registry” – here.


“Toe Tag Parole” – a Documentary About Extreme Prison Sentences in the US



More Than 50,000 Americans, Consisting of Men, Women And Juveniles, Are Currently Sentenced To Life Without The Possibility Of Parole – America is the most punitive nation in the world, handing out historically harsh sentences that largely dispense with the concept of rehabilitation.

Alan and Susan Raymond (Oscar® and Emmy® winners for HBO’s “I Am a Promise:The Children of Stanton Elementary School”) explore the reality of “the other death penalty” in TOE TAG PAROLE: TO LIVE AND DIE ON YARD A, debuting MONDAY, AUG. 3 (9:00-10:30 p.m. ET/PT), exclusively on HBO.

Other HBO playdates: Aug. 3 (5:05 a.m.), 6 (4:15 p.m., 12:30 a.m.), 7 (8:00 a.m.), 9 (3:00 p.m.) 11 (3:00 p.m.) and 15 (10:00 a.m.)

            HBO2 playdates: Aug. 12 (8:00 p.m.), 20 (12:30 a.m.), 23 (9:05 a.m.) and 25 (12:45 p.m.)

Featuring exclusive, unprecedented access, TOE TAG PAROLE: TO LIVE AND DIE ON YARD A was shot entirely at California State Prison, Los Angeles County, a maximum-security facility in the Mojave Desert.

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