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Tuesday’s Quick Clicks…

Update: Henry Keogh retrial dropped. South Australian DPP not to pursue case.

Further to my post here…. Exoneration in Australia?: Henry Keogh freed after 20 years. The South Australian DPP has now dropped murder charges against Henry Keogh, and his planned retrial in March will now not go ahead. This is apparently because of the illness of a witness – however, it seems likely that the pathologist at the original trial – who subsequently changed his opinion dramatically, will not now testify given his later opinion. Keogh served 21 years for the murder of his fiancee, accused of drowning her in the bath. He was released from prison last year after winning an appeal.

read more here: Murder charge against Henry Keogh, accused of drowning fiancee in bath, dropped by SA DPP

Dead Bodies and Live Minds: How Investigating a Real Murder Can Inspire Curiosity in the High School Classroom

By Seán Arthurs’

Recently published in Social Education

There are lots of reasons why adolescents are drawn to television shows about crime, forensics, and the intersection of the two. The Hollywood characters and intriguing crime-related plot lines, the drama and suspense around motive and planning, the surprises and accountability of forensic science, and the satisfaction in seeing a wrongdoer brought to justice are certainly among those reasons. However, I hypothesize that there is something more fundamental that draws a youth audience to these shows: people like to solve mysteries. Humans, and particularly adolescents, are naturally curious. We like looking at different pieces of a puzzle and figuring out how those pieces fit together. We like using clues, testing assumptions, and coming up with our own hypotheses around motive, execution, and escape in order to move from suspects to perpetrator. continue reading

Can’t Complain: How Post-Conviction Procedure Rules Inhibit Truth Finding


JURIST Guest Columnist Daniel J. Wright of the Law Offices of Daniel Wright discusses how post-conviction procedure rules hinder the ability to seek truth in faulty sentences… old criminal law court

Those accused of a serious crime are entitled by the Sixth Amendment to the United States Constitution to representation by an attorney. This right extends in most states not only to the initial trial, but also to at least one level of direct review. In many states, more than half of the criminal docket is handled by public defenders or attorneys appointed by the court to defend the indigent.

Following a conviction and appeal, there may or may not be further review of the judgment by way of a permissive appeal to the state’s highest court. Review is normally discretionary, and the highest courts emphasize that they are not merely courts of “error correction.”

But some kinds of errors escape this form of review, and are only correctable later by way of post-conviction proceedings. These would include allegations that the defendant did not receive effective assistance of counsel, for example, either at trial or on direct review. In some states, post-conviction representation is offered through the public defender’s office to prisoners, just as at trial. For example, Maryland offers post-conviction counsel to defendants through the public defender’s office.

Typically, post-conviction cases involve the most serious crimes—murder, armed robbery, burglary, and so on—and prisoners with the longest sentences. This is because prisoners with shorter sentences parole out of the system before their post-conviction cases can be heard by the courts. Non-violent criminals in Maryland are generally eligible for parole after serving 25 percent of their sentence. Even defendants convicted of a crime of violence are parole eligible after serving half their sentences. However, the most serious crimes can result in life sentences, life without parole (LWOP), or a term of years stretching past the life expectancy of the defendant (death-in-prison, or DIP). A defendant convicted of murder in Maryland typically receives a life sentence, plus another twenty years consecutive if a handgun was used in the crime. A second-degree murder or carjacking defendant may receive a sentence of more than a hundred years.

LWOP and DIP sentences are disproportionately [PDF] applied to minorities.The defendants typically are between the ages of 18 and 30 and normally lack a strong educational background. They seldom come from families able to afford private legal representation.

Overworked public defenders often meet with their clients only a few times before trial. This leads to a hands-off approach by many defendants. They allow the attorney to do his job and are not actively involved in their defense. Likewise, when a direct appeal is taken from a trial court’s judgment, it is not unusual for the appellate attorney to develop the arguments and draft the brief without substantial input from the defendant, who may be locked up in a prison hundreds of miles away from his attorney. Communication can be difficult in both directions. Post-conviction proceedings can be equally as difficult.

When all the appeals are exhausted, and the initial post-conviction proceeding is completed, the defendant for the first time is faced with the reality that he alone is now responsible for any efforts to overturn his conviction and win his freedom. At this point, the defendant’s attorney may for the first time hand over the file. A freedom of information request for police files may take a year or more and may be prohibitively expensive.

Legally, however, the situation is most difficult. The defendant has already been convicted and finished a post-conviction proceeding. Any further review is discretionary at best. Judges are often very reluctant to grant post-conviction relief. In states where judges are elected, public opinion often supports a tough-on-crime approach that is anything but defense-friendly.

Nevertheless, when the defendants review their transcripts and court papers, sometimes years after the trial, errors often are revealed. Sometimes this is because the prisoner—with time on his hands—spends months or even years educating himself on the law and reviewing the details of his case. The prisoners sometimes form study groups to help each other learn. Maximum-security prisoners are not always let out of their cell every day, and often have limited access to a law library. For them to learn the applicable law of their case can take years. And yet, even under the horrific circumstances of America’s prisons, many do just that.

Jarmal Johnson was incarcerated for more than 16 years when he discovered that he had been convicted of a crime for which he had not been indicted by the grand jury. He was indicted for Attempted Murder, but convicted of Assault with Intent to Murder, a different crime with different elements. Maryland’s highest court ultimately vacated the conviction. His prior attorneys had simply not noticed the discrepancy.

Edwin Pile faced three trials. One trial resulted in a hung jury, the second judgment was overturned on appeal, and the third resulted in a conviction. He had different lawyers. After 20 years of incarceration, his personal review of his docket records revealed that a judgment of acquittal had been entered in the first trial to his crime of conviction in the third—a clear Double Jeopardy violation. This only came to light, however, because his attorney died and the firm sent him his file. He reviewed all the papers from his trial for the first time almost two decades after his conviction.

The case of John Artis involved faulty jury instructions concerning the definition of reasonable doubt. Mr. Artis fought for more than 20 years against the trial judge’s instructions to the jury concerning reasonable doubt. The court has now conceded that the instructions were erroneous, yet at every turn in the road over the course of more than a decade of appeals the defendant faced resistance, disbelief and stonewalling over his claims of error, from both the prosecutors, the courts, and even his own court-appointed attorney.

Some prisoners benefit from a change in the law. Prior to 1981, courts in Maryland routinely informed jurors that the judge’s instructions were merely advisory and not binding. The jurors were free to disregard the instructions of the judge. This situation was overturned in the early 1980s and made retroactive about 30 years after that. State prosecutors tried to argue, for example, that Jarmal Johnson had waived his right to object to being convicted of a crime for which he wasn’t indicted.

Similarly, prosecutors sometimes try to raise high evidentiary bars to post conviction defendants. Rules may require defendants to produce transcripts of trials when files have long since been discarded. The file of Edwin Pile was missing from the clerk’s office, yet state officials tried to have the case dismissed because a transcript was not compiled.

Federal rules require an inmate to bring a post-conviction challenge to a state court conviction within 12 months. This is an unrealistic time frame given the delays in state courts and the reality that prisoners rarely will have their paperwork available to them in that time, yet such a challenge can normally only be made by a prisoner on his own.

Joseph Miller was convicted of armed robbery in 1988 and sentenced to life without the possibility of parole under Maryland’s repeat offender statute. A review of his case, however, showed that his court appointed attorney had not made an opening statement, not made a closing statement and failed to ask a single question of any witness. The situation came to light more than 25 years after the initial trial. Maryland rules, however, impose higher legal standards on attempts to reopen post conviction proceedings and prevent them altogether if an inmate hasn’t filed within the first ten years.

The legal system cannot be faulted for giving priority to defendants facing trial for the first time. However, post-conviction procedures impose an array of rules that, however well intended, prevent a court from seeking the truth. The reality is that often an inmate’s own efforts years after the fact will uncover errors at his trial. For a variety of reasons these efforts are not likely to occur soon after the initial trial. Concepts such as waiver and time limits on filing petitions (such as 12 months at the federal level) fail to reflect the grim reality that errors are made at trial, often significant errors, and they cannot necessarily be brought to light in the same time frame as a small claims case or landlord-tenant matter. These rules are in derogation of the truth seeking function of the court, yet are imposed on inmates who are often seeking review of life-without-parole or death-in-prison sentences.

Daniel Wright is an attorney in the State of Maryland. He has been practicing law for 35 years and concentrates on trial work, including criminal trials and post conviction. He is a graduate of the University of Wisconsin Law School.

Click Here For the Original Article

60 Minutes Profiles Glenn Ford Exoneration

Glenn Ford was released from prison in March 2014 after his wrongful conviction for murder was vacated. Until that point, he had spent 29 years, three months and five days in solitary confinement on death row at Angola State Penitentiary in Louisiana. A little over a year after his release, Ford died of lung cancer at the age of 65. Three weeks prior to his death, Ford was interviewed by CBS news. His interview aired last night on a 60 minutes segment discussing Ford’s exoneration and Louisiana’s staunch support of Capital Punishment.

Marty Stroud, the former prosecutor who convicted Ford, was also interviewed. After learning of Ford’s release, Stroud came forward and publicly assumed full responsibility for the wrongful conviction. He turned himself into the Louisiana Bar Association’s Ethics Committee, asking to be reprimanded for his role in Ford’s prosecution.

Stroud’s, however, were not universally supported. Current Louisiana Prosecutor Dale Cox, who was also interviewed for the segment, expressed his belief that Stroud did not owe Ford an apology. Cox also defended Ford’s capital conviction and expressed his belief that, despite the number of death row exonerations, Louisiana needed to impose the death penalty more often.

When asked about the Louisiana’s failure to compensate Ford’s family for the 30 years he spent in prison, Cox defended the State’s sole gift to Ford: a $20 gift card.

 Cox: I got him out of jail as quickly as I could. That’s what the obligation of the state is.

Bill Whitaker: And that’s the end of the state’s obligation?

Dale Cox: As far as I’m concerned.

Cox is a vehement supporter of the death penalty, his Parish along In the sentenced more people to death per capita from 2010 to 2014 than in any other county in the United States.

To view the entire 60 Minutes segment click here.

Jarrett Adams: From Wrongfully Imprisoned to a Clerk Fellowship at the 7th Circuit Court of Appeals

On August 10, 2012, this blog published an article entitled “Update on Wisconsin Innocence Project’s Case: The Rape that Wasn’t.” It was the story of Jarrett Adams. In 1998 when he was 17 years old, Adams was accused of sexual assault and convicted after his court-appointed lawyer advised him to take a “no-defense strategy.”

A key witness who would likely have prevented Adams’ conviction never was called to testify. Adams was convicted and sentenced to 20 years in prison, a sentence that was immediately increased to 28 years when he told the judge he was innocent. Continue reading

Northern California Innocence Project Client Larry Pohlschneider Exonerated

Earlier this week Sandee Magliozzi, Executive Director of the Northern California Innocence Project, sent out the following notification detailing a recent victory for NCIP…

Dear Friends,

We wanted to share some great news with you: yesterday afternoon the Tehama County Superior Court overturned the wrongful conviction of NCIP client Larry Pohlschneider, 46, after nearly 15 years of wrongful imprisonment! Mr. Pohlschneider’s attorneys and the Tehama County District Attorney agreed that his 2000 conviction should be vacated and the charges dismissed due to the ineffective assistance of Mr. Pohlschneider’s trial counsel.

NCIP Assistant Legal Director Maitreya Badami, Mr.

Pohlschneider’s lead attorney, commended the Tehama County District Attorney’s Office for its willingness to look at this case with fresh eyes when presented with evidence from NCIP’s investigation. “Without the District Attorney’s fairness and cooperation, Mr. Pohlschneider’s unjust incarceration might have been even more prolonged,” explained Ms. Badami. “The failure of Mr. Pohlschneider’s trial attorney to investigate and challenge the medical evidence resulted in an untrustworthy verdict and his wrongful imprisonment.”

Larry Pohlschneider and legal team
From left: NCIP Legal Director Linda Starr, NCIP Assistant Legal Director Maitreya Badami, Larry Pohlschneider, and NCIP volunteer attorney Thom Seaton beam after a Tehama County Superior Court judge overturns Mr. Pohlschneider’s conviction. Photo: Audrey Redmond.
“Today marks the first step toward freedom and complete vindication for Mr. Pohlschneider,” said NCIP volunteer attorney Thom Seaton. “An innocent man was pulled into a child-molestation case because of junk science which led police wrongly to focus on him as an additional perpetrator — despite the fact that the true, sole perpetrator, Albert Harris, had been charged, confessed, and ultimately pled guilty to the crime.”

“Tragically, junk science passing as expert testimony is a contributing factor in 22 percent of wrongful convictions and NCIP is actively working to free innocent people and establish policies to prevent wrongful convictions like Larry’s,” said NCIP Legal Director Linda Starr.

The court ordered Mr. Pohlschneider’s release, and his discharge from Tehama County Jail is expected imminently.

It is because of your support that together we are able to celebrate this victory. We look forward to telling you soon that Larry has been released!

Sandee Magliozzi

Sandra “Sandee” Magliozzi, Esq.
Interim Executive Director, NCIP
Associate Dean of Experiential Learning, Santa Clara University School of Law

P.S. Send Larry a message of support here.

Donate to NCIP

From left: NCIP Legal Director Linda Starr, NCIP Assistant Legal Director Maitreya Badami, Larry Pohlschneider, and NCIP volunteer attorney Thom Seaton beam after a Tehama County Superior Court judge overturns Mr. Pohlschneider’s conviction. Photo: Audrey Redmond.

Congratulations to Mr. Pohlshcneider and the NCIP!

New California Law Addresses Prosecutorial Misconduct

Prosecutors who intentionally withhold evidence from defense attorneys or the court could face tougher punishment and greater scrutiny under a new state law prompted by the misuse of jailhouse informants by Orange County prosecutors.

The legislation, signed by Gov. Jerry Brown, strengthens the ability of judges to remove individual prosecutors and, if warranted, their offices, from cases if prosecutors are found willfully withholding evidence.

The new law also requires judges to report offending prosecutors to the state bar, which licenses attorneys.

From the Orange County (CA) Register:

Link to full article:

C. Ronald Huff

Investigation by Sarasota Herald-Tribune Results in Release of Florida Inmate

Investigative Journalism often plays a vital role in overturning wrongful convictions. Such is true in the case of Andre Bryant. Bryant was convicted of robbery in 2006 and sentenced to serve 30 years in prison. Last year, Sarasota Herald-Tribune journalist Elizabeth Johnson began looking into Bryant’s case. After nine months of reporting, the Herald-Tribune published an investigation that raised questions about the arrest and conviction of Bryant in the 2006 robbery of a deputy’s wife and children. The investigation led the Innocence Project of Florida to represent Bryant and the State Attorney’s Office to re-examine the case. Last week, Bryant was released from prison following the the State’s decision to set aside the robbery conviction.

Kudos to Johnson and all other investigative journalists whose efforts are key to correcting the issue of wrongful conviction.

For more on Andre Bryant’s release click here

Four Decades, Three Trials, Two Death Sentences, One Exoneree. Almost.

From: Texas Monthly

Thirty-eight years after Kerry Max Cook was convicted of murder, he continues to seek exoneration. And now he might finally have a chance to convince the courts of his innocence. – See more at:

Editor’s note: This story has been updated below to reflect that Smith County district judge Christi Kennedy recused herself from Kerry Max Cook’s case. A new judge has been appointed to consider Cook’s writ: Jack Carter, age 72, from Texarkana. Carter is a Democrat who last year retired from the Sixth District Court of Appeals, which handles appeals in cases from 19 Northeast Texas counties—but not Smith County, where Cook’s trials have taken place.

The long, strange ordeal of Kerry Max Cook—perhaps the most bizarre series of capital murder proceedings in Texas history—just got longer. And stranger. Cook, convicted of the 1977 rape, mutilation, and murder of Linda Jo Edwards, spent 20 years on death row. While there, he was stabbed and repeatedly raped. The abuses led him to twice attempt suicide. He always maintained his innocence, and though his death sentences were overturned—twice—and the people who prosecuted him were reprimanded by a high court for extensive malfeasance and he was eventually freed from death row in 1997, he has never been exonerated. That’s because back in 1999, on the eve of an unprecedented fourth capital murder trial, he took a “no contest” plea. So even as he became a celebrity—writing a book about his experience, becoming a subject of a popular play and movie called The Exonerated, giving anti-death penalty speeches and hanging out with anti-death penalty celebrities—Cook is still considered a convicted killer. Especially in Tyler, Texas, where the murder took place.

And so today he ventured there again, at least legally, accompanied by lawyers from the Innocence Project and the Innocence Project of Texas, who filed two motions at the Smith County courthouse: a writ of habeas corpus to get his murder conviction thrown out and a motion to recuse the judge who would actually rule on the writ.

To win on a habeas writ, a person must have new evidence contradicting his verdict. Cook has that: DNA tests on 15 crime scene items, none of which show his blood or semen anywhere on or near the victim. In fact, these tests actually show a profile of another man: the victim’s lover, a married man with whom she’d been having a tempestuous affair. While this isn’t mind-blowing news—DNA tests from 1999 also excluded Cook and included the lover—this is the first time the test results have actually gone before a court. And they could eventually lead to a new trial for Cook.

Cook’s ordeal began with the bloody rape and murder of Edwards, a young secretary who lived in the same Tyler apartment complex he did. Over the next 16 years, prosecutors took Cook to court three times, even though they didn’t have much evidence: fingerprints on a patio door, a jailhouse informant who said that Cook told him he killed her, the recollections of a gay man who said that on the night of the murder he and Mr. Cook had had sex and watched a movie that involved a cat torture scene. Prosecutors came up with the bizarre but effective theory that Cook, whom they said was a latent homosexual, was aroused by the torture scene and then left the apartment and raped and killed Edwards, cutting off body parts (including the inside wall of her vagina), which he then stuffed in a stocking of hers that had gone missing.

But all of the evidence used against Cook proved to be problematic or downright fraudulent. It turned out that three different witnesses had testified to a grand jury that Cook told them he had met Edwards three days before the murder and had gone to her apartment, where they made out on the couch, which explained the fingerprints (prosecutors didn’t tell the defense about the witnesses). The jailhouse snitch confessed that he lied because he had been offered a reduced sentence for a murder conviction. The man who testified he’d had sex with Cook had previously told a grand jury there was no sex—and that Mr. Cook had ignored the movie in the first place. And the missing stocking that was supposed to be full of souvenir body parts was found in 1992 rolled up in a pants leg of Edwards’s jeans by a juror who’d asked to look closely at the trial exhibits—15 years after the murder.

Cook’s first conviction in 1978 was overturned on a technicality. The second trial, in 1992, ended in a mistrial. The third two years later led to a second guilty verdict and death sentence, but in 1996 the Court of Criminal Appeals overturned it too, thundering that “prosecutorial and police misconduct has tainted this entire matter from the outset.” A concurring opinion said, “The state’s misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the state, over a fourteen-year period—from the initial discovery proceedings in 1977, through the first trial in 1978, and continuing with the concealment of the misconduct until 1992.”

It looked like Cook was finally on his way to exoneration, and he was released on bond in 1997. But Smith County wasn’t finished and set about trying him for a record fourth time. As the February 1999 trial date approached, prosecutors made him an offer: plead guilty in exchange for 20 years (which he had already served), and the charges would be dropped. Cook refused. He was innocent, he said.

Then, on February 4, a DPS analyst, examining Edwards’s underwear, found a previously unseen semen stain; the state moved to run modern DNA testing on the stain as well as a hair found on her buttock. According to reporter David Hanners of the Dallas Morning News, Assistant DA David Dobbs told him that the semen “could only have been left by the killer.” On the morning of jury selection, the DA shocked Cook with a final offer: plead no-contest and the case would be dismissed. Such a plea had never been allowed in a Texas death penalty case before, but with it, Cook could maintain his innocence (even though he wouldn’t be legally exonerated), while the state would keep its conviction. Cook’s advisors—suspicious that prosecutors were panicking because they knew his DNA would not be found in the sample–urged him to go to trial. Cook, though, terrified of going before a Smith County jury again and returning to death row, took the plea.

He should have waited. The DNA results came back two months later, and, as Cook had always insisted, it wasn’t him. In fact, the semen came from James Mayfield, a former college dean with whom Edwards (a secretary in his division) had been having a stormy affair. Three weeks before she was murdered, in fact, she had tried to kill herself, and when news of the attempt became public, both were fired from their jobs. Not only did Mayfield and Edwards see each other several times in her final days, according to a friend of hers who talked with her five hours before she was murdered, she had informed Mayfield she was going to date other men—and he did not take the news well. On that last night, her roommate saw a man standing in the doorway of her bedroom; she told police and others that it was Mayfield (though more than a year later she would change her mind and testify that it was Cook).

Cook was ecstatic with the results, but the Smith County DA’s office now said that they just confirmed what everyone knew—Edwards and Mayfield had a sexual relationship. Though Dobbs had told Hanners the DNA was essentially the smoking gun, now he told another reporter, “It’s irrelevant. Cook has been convicted of the murder.” And indeed he had.

Cook tried to move on with his life—and had a terrible time of it. He was free but still had a murder conviction on his record. “I couldn’t get a job, couldn’t sign a lease,” he said later. “We’ve had to move five times because people would find out about me. One woman threatened to put up posters in the neighborhood saying ‘Convicted murderer lives here.’” He couldn’t vote, own a gun, or run for office. In 2009 Cook befriended Marc McPeak, a civil lawyer who offered to help him. Three years later, McPeak, working with Dallas lawyer and Innocence Project of Texas member Gary Udashen, filed for DNA testing on other crime scene evidence—including the bloody knife. The lawyers also moved to recuse the judge who would rule on the testing. That judge was Jack Skeen, who had prosecuted Cook twice. Judge John Ovard okayed the testing and the recusal, sending all further matters to be decided by fellow Smith County district judge Christi Kennedy.

Next Udashen contacted the Innocence Project, which has used DNA testing to exonerate more than 300 people nationwide. Fifteen items from the crime scene, including Edwards’s stained bra, her jeans, cigarette butts, and blood on the knife, were sent to Cellmark Forensics lab near Dallas. They were tested over the next two and a half years; the final results came in March. The results corroborated the 1999 findings: None of Cook’s DNA was found on anything at the bloody crime scene. More elaborate DNA testing on the underwear, though, got an even stronger profile of Mayfield.

The DNA evidence is the biggest part of the writ of habeas corpus, and the lawyers use it to make the claim that Cook is actually innocent. To prevail in such a case, someone like Cook has to show that his innocence has been unquestionably established with newly discovered evidence, and the lawyers are banking on the fact that none of Cook’s DNA evidence has ever been brought into a court, not even the 1999 results. Cook’s lawyers are also using Texas’s “junk science writ,” passed in 2013, which says that new forensic science can be used to successfully attack a conviction; all a petitioner has to do to get a new trial is show that with the new scientific evidence, it’s more likely than not that a jury wouldn’t have convicted him. If Cook’s trial were held today, with the DNA results pointing to the victim’s ex-lover, would he still be found guilty? Almost certainly not.

The Innocence Project also alleges that prosecutors knew when they made the “no contest” plea offer that Mayfield’s DNA profile would show up in the semen, not Cook’s—and urge an evidentiary hearing to look into the matter. And the lawyers attack law enforcement for destroying evidence, in particular the hair found on Edwards’s buttock, which doubtless came from the killer. Prosecutors knew the hair wasn’t from Cook or Edwards–an expert had already testified, back in 1978, that it couldn’t have come from either person.

But in early 2002, two years after the results of the DNA testing pointed to Mayfield, Tyler police destroyed the hair. This wasn’t just an unbelievably wrongheaded action, it was also against the law, violating Chapter 64, the law the legislature had passed in 2001 that allowed inmates to ask for post-conviction testing. It also forbade law enforcement from destroying any piece of biological evidence that was eligible for testing. When police destroyed that hair, they destroyed an important clue to the killer of Linda Jo Edwards.

Almost four decades into his ordeal, Cook, aided by the powerful, well-funded Innocence Project, has his best shot at vindication. But given (in the CCA’s words), “the deliberate misconduct by members of the bar, representing the state, over a fourteen-year period,” the one thing he says he hasn’t had is an objective hearing of his claims.

And so his lawyers filed a second motion, this one to take the case out of the court of Judge Christi Kennedy, one of four district judges in Smith County. Tyler is a small town, they say, with a close-knit legal community, and there’s no way Kennedy can objectively adjudge a writ of habeas corpus dealing with the most controversial case in the history of Smith County—she’s just too close to the major players. For example, one of Kennedy’s fellow district judges, Carole Clark, is married to A.D. Clark, the first DA to prosecute Cook. Another fellow judge is Skeen, who, of course, prosecuted Cook in his second and third trials. Kennedy’s late husband Richard was an ADA under Skeen during Cook’s second trial. The Texas Rules of Civil Procedure say, “A judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned; (b) he has a personal bias or prejudice concerning the subject matter or a party…” Could Kennedy be fair in ruling on the possible innocence of a man whom her friends and peers tried for so long to execute?

There is precedent for judges stepping aside when their impartiality—or just the appearance of favoritism—might become an issue. In 2010, before Michael Morton’s retrial in Williamson County, the judge set to hear the case, Billy Joe Stubblefield, recused himself when it became clear he was going to have to rule on charges of serious misconduct by former DA and current judge Ken Anderson, one of Stubblefield’s peers on the Williamson County bench. Stubblefield never gave a reason for his recusal, but one can surmise that he thought the public’s confidence in what was already a controversial trial would be higher if he didn’t oversee it.

Kennedy has three days to decide whether to recuse herself or to stay on and hear the case. Either way, the issue will go to Mary Murphy, presiding judge of the 1st Administrative Judicial Region in Dallas, which oversees Smith County. If Kennedy steps aside, Murphy will choose a replacement court and judge; if Kennedy refuses to recuse, Murphy will decide whether, in fact, she should or not. One way or another, Murphy will ultimately decide which judge—in which county—adjudicates the writ.

How much stranger could the case of Kerry Max Cook get? After 38 tortured years, everyone would like to see a fair, impartial, and totally normal end to it. But at this point, there’s only one way for that to happen: put Cook’s writ of habeas corpus—which contains compelling evidence that he is an innocent man—in front of fresh eyes, in a courthouse unsullied by the taint of bitter memories and years of deliberate misconduct.

UPDATE (9/18/15, 9:30 a.m.): Late on Thursday, Judge Christi Kennedy of the 114th Judicial District Court in Smith County voluntarily recused herself from considering the writ of habeas corpus filed by Kerry Max Cook earlier in the week. In addition to Monday’s writ application, Cook also filed a motion asking Kennedy to recuse herself from considering it, for the simple reason that she’s too close to the major players. Kennedy is one of only four district judges in Smith County—one of the others, Carole Clark, is married to A.D. Clark, the first DA to prosecute Cook, and another fellow judge is Jack Skeen, who also prosecuted Cook. A third deep connection is that Kennedy’s late husband Richard was an ADA under Skeen during Cook’s second trial. “For these reasons,” Cook’s motion read, “it would be unreasonable to expect any individual in Judge Kennedy’s position—particularly one who presently serves alongside Judge Skeen and Judge Clark in a small, four-district-judge courthouse—to serve as the trier of fact on these claims.”

In the order, Kennedy was insistent that the recusal motion had the facts wrong. “Having considered the motion,” she wrote, “the Court FINDS that factual allegations contained in the motion are false. The Court does not harbor any personal bias or prejudice against Applicant nor does the Court lack impartiality.” However, Kennedy writes, “the Court finds the interest of judicial economy along with the appearance of impropriety dictate the Court sua sponte recuse itself from any further proceedings in this case. So that all parties in this case will have confidence in a fair and impartial tribunal, the Court asks that the Presiding Judge of the First Administrative Region assign a judge to preside over this case.”

That judge is Mary Murphy, who lives in Dallas. She will choose which judge in which county will hear Cook’s writ of habeas corpus, in which he claims to be actually innocent of the murder of Linda Jo Edwards.

UPDATE (9/18/15, 12:00 p.m.): Mary Murphy, presiding judge of the 1st Administrative Judicial Region in Dallas, has appointed a judge to hear Kerry Max Cook’s writ of habeas corpus: Jack Carter, age 72, from Texarkana. Carter is a Democrat who last year retired from the Sixth District Court of Appeals, which handles appeals in cases from 19 Northeast Texas counties—but not Smith County, where Cook’s trials have taken place.

See more at:

Satanic cult hysteria still capable of putting people through hell

If you thought that the Satanic Panic and child-abuse hysteria, which caused dozens of wrongful convictions in the 1980s and 1990s, are no longer a threat, think again. Pacific Standard magazine writer Dan Shewan says there still are a lot of true believers out there.

“The specter of Satanic cult hysteria continues to color many cases marked by unusual barbarity and cruelty, little having apparently been learned from the lessons of the 1980s,” Shewan writes. “In some quarters, crude symbolism and token teenage dabblings in the occult are still seen as evidence that legitimate, violent Satanic cults exist.” You can read Shewan’s frightening story 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.

Monday’s Quick Clicks…

Tradition-bound U.S. system mired in scientific illiteracy, author says

The American legal system assumes that innocent people don’t confess to crimes they didn’t commit. It also assumes that eyewitness testimony is reliable and that jurors are impartial even though scientific research shows otherwise.  Therein lies the cause of many wrongful convictions.

“The legal system is resistant to change and resistant to paying attention to scientific research,” Adam Benforado, author of the book Unfair: The New Science of Criminal Injustice, tells Wired magazine. You will find the informative story here.

Exoneree Band Rocks it out in Cleveland

Exoneree Band2The Exoneree Band performed live last week in guitarist Raymond Towler’s hometown, Cleveland, Ohio. Among the concert attendees were several students from the Ohio Innocence Project who traveled from Cincinnati to Cleveland to see the band play. The band features Raymond Towler (Ohio) on guitar; William Michael Dillon (Florida) on guitar and vocals; Antoine Day (Illinois) on vocals and drums; Eddie Lowery (Kansas) guitar and vocals; Ted Bradford (Washington) on bass; and Alan Northrop (Washington) drums. Each member was once imprisoned for a crime they did not commit. Collectively, they served over 100 years for these crimes before being exonerated.

Thembekile Molaudzi Update

Earlier this month Wits Justice Project client Thembekile Molaudzi was released from prison after his conviction for murder and robbery was reversed by the Constitutional Court of South Africa. Molaudzi served eleven years of a life sentence, during which time he was subjected to torture and forced into solitary confinement.

See below for recent new stories and podcasts featuring Molaudzi and Carolyn Raphaely, the journalist who investigated his case and helped prove his innocence.


Kaya FM – Today with  John Perlman:

Cliff Central, Host Gary Herzberg, on “Laws of Life”


ENCA – Thulasizwe Simelane


Innocent man’s long walk to freedom – The Star

For Thembekile Molaudzi, justice delayed was justice denied – Daily Maverick. Also appeared in All Africa

Wrongful Arrest: 11 Agonising Years Behind Bars – EWN

Wrongfully Arrested Man Opens Up About 11-year Imprisonment – EWN

Man Finally free after 11 years of wrongful imprisonment – North Eastern Tribune

Onskuldige Pta-man vry na 11 jaar agter tralies – Nuusneus

Former Ohio Innocence Project Fellow Catlin Wells Describes Her Experience

Catlin Wells, a rising 3L at the University of Cincinnati College of Law, dedicated an entire year of her life to the Ohio Innocence Project. During that time she witnessed six overturned convictions, the most to occur in any single year for the OIP. After being asked to write about her experience, Catlin found  it difficult to describe the profound impact working at the OIP had on her.

I thought about what I would put on a resume, but I couldn’t figure out how to reduce a whirlwind of a summer internship into a few bullet points […] I used the control A function to delete my draft and started over, this time trying to think about what I would tell if I had to turn my experience into one of those thirty second networking elevator speeches. “My name is Catlin, and I…” I couldn’t finish that one either.

Last week, I watched Ricky Jackson, a man who spent thirty nine years in prison for a crime that he did not commit, walk out of the jail doors and into life as a free man. Surrounded by a sea of microphones and questions, Ricky shrugged off questions about systematic injustice and the twelve year old whose testimony led to his incarceration. “I’m just glad to be out. I’m glad to be free.” At lunch a few hours later, Dean Gillispie, a Dayton exoneree, looked at Ricky and asked him if he’d used the bathroom yet. “Those sinks,” Dean said, “they just turn on by themselves.” When Ricky laughed, Dean gestured towards a line of exonerees and said, “It’s hard to get used to, but we’ll take care of you. You’re our brother now, you’re one of us. ”

Nothing follows the “I” of my elevator speech because what I am doing is not about me. My job is not about accumulating credentials, but about a man who, after almost four decades in jail had the compassion to forgive the kid who put him there. It’s about Dean, his line of brothers, and the other innocent men and women who still sit behind bars waiting until they too can throw their hands up and say, “I’m free.”

This article was featured in the Winter edition of the Dayton Federal Bar Association Newsletter. Read the full article here.

New child-abuse panic could cause wrongful convictions, prof warns

Child-abuse hysteria has spurred hundreds of wrongful convictions and even more destroyed lives in the past 30 years — first with sexual-molestation charges and then the bad science of shaken-baby syndrome. Now comes ”medical child abuse,” an outgrowth of the Munchausen syndrome by proxy panic. And Maxine Eichner, a law professor at the University of North Carolina, says the ill-founded concept is starting to cause similar harm. You can read her astute warning here.

Tuesday’s Quick Clicks…

In Ghana, a newspaper reporter is suing the government for 2 million Ghanaian Cedi ($500,000 USD) for wrongful imprisonment…

In Scotland, family members of the Lockerbie bombing victims lose bid to overturn the conviction of Abdelbaset al-Megrahi…

In the US, President Obama has signed a bill that will expand clemency powers to allow the release of nonviolent drug offenders…

Judge identifies 12 huge lies about Justice in America…

Wednesday’s Quick Clicks…

Adnan Syed of “Serial” podcast seeks evidentiary hearing on new alibi evidence…

new bill designed to strengthen the UK court system’s ability to overturn wrongful convictions has been presented to Parliament…

A year after being exonerated, Kevin Martin files $30 million compensation suit against the District of Columbia for the 26 years he spent wrongfully imprisoned…

Illinois exoneree Darrell Williams finally gets a shot at playing in the NBA