Last Saturday Victor Rosario, along with Team Innocence, ran the 2016 New York City Marathon. We did a short profile on Victor and his love of long distance running. Check it out below:
Victor finished in 4:35:36!
Last Saturday Victor Rosario, along with Team Innocence, ran the 2016 New York City Marathon. We did a short profile on Victor and his love of long distance running. Check it out below:
Victor finished in 4:35:36!
By Hannah Riley
On September 9th – which marked the 45th anniversary of the infamous Attica Prison uprising—prisoners across the country launched a new kind of protest: by the tens of thousands, they refused to show up for work. Since then, the strike has spread to at least 24 different states. Though there is not one unified list of demands, from state to state prisoners are calling for fair pay for their labor, humane living conditions, and increased access to educational programs.
The strike began in Alabama, a state whose prisons consistently rank among the most overcrowded and understaffed in the nation, according to a recent lawsuit filed by the Southern Poverty Law Center. Essentially powerless and voiceless behind bars, perhaps the only leverage possessed by inmates is the cheap (and sometimes free) labor they provide. According to Bureau of Justice statistics, roughly 600,000 inmates have daily jobs which help prisons to function smoothly (food preparation, custodial work, landscaping, library work, etc.) while an additional 60,000 inmates generated $472 million in sales last year through their participation in the Federal Prison’s Unicor program, where they manufacture items ranging from eyeglasses to furniture.
New England Innocence Project Board Member Dennis Maher knows more than he’d like to about prison labor. During the 19 years he spent wrongfully imprisoned, Dennis had a number of jobs. “My first job in the prison was making eyeglasses – I put in for it, and because I was a lifer, I got it,” he told me. “They prefer someone with a long sentence. I made 50 cents an hour, working about 6 hours a day, 5 days a week.” $15 a week, for 30 hours of labor. Working nearly full time for an entire year would net him only $720.
It’s perfectly legal for prisoners to be forced to work for no pay: the United States Constitution’s 13th Amendment still permits involuntary servitude, provided that it’s used as punishment for a crime. Mandatory work programs in federal prisons can pay up to a maximum of $1.15 per hour; state prisons average roughly 20 cents an hour. In Texas, Georgia, and Arkansas, prisoners are not paid at all.
To the extent that he was able, Dennis worked his way up the ladder, finally landing a job cooking for the prison staff. “When I finally ended up in a leadership position, working in the staff kitchen, my pay went up to $2 an hour. Then the DOC took over and it was reduced to $8 per day, then to just $5 a day. The DOC paid you what they paid you – doesn’t matter if you’re guilty or innocent. They don’t care what the inmates think. The prison system is a warehouse. Period.”
The most conservative estimate is that 2.5% of the prison population is wrongfully convicted – which means that up to 16,500 of the 660,000 inmates providing cheap or free labor are innocent of the crimes for which they are serving time.
A Former Detective Speaks Out About False Confessions
For the vast majority of us who have never experienced a police interrogation, it’s difficult to imagine confessing to a crime you didn’t commit.
However, according to the National Registry of Exonerations, 12% of the 1,900 wrongful convictions in their database were caused, at least in part, by a false confession. Jim Trainum, a former Washington D.C. homicide detective, authored “How the Police Generate False Confessions” after recognizing that he unintentionally elicited a false confession from a suspect. Among other things, Trainum's new book discusses how false confessions start in the interrogation room and continue, unchecked and unchanged, to the courtroom.
Read the full story here.
Adnan Syed, Subject of 'Serial,' Asks to be Released on Bail
Adnan Syed, who has been incarcerated for seventeen years for the murder of his ex-girlfriend, Hae Min Lee, has asked a judge to release him on bail. Syed’s case was explored extensively in the first season of the wildly popular podcast, Serial (which became the most downloaded podcast of all time). Syed is currently waiting to go to trial — again. This summer, a judge agreed that Syed's defense attorney had mishandled his case during his initial murder trial in 2000, and granted a new trial.
Read the full story here.
In a New Twist in the Rosenberg Spy Drama, Sons Seek Mother's Exoneration
In 1953, Ethel and Julius Rosenberg were executed on charges of being Soviet spies. Now, their sons are asking President Obama to fully exonerate their mother after decades of work towards proving her innocence, citing recently disclosed 'proof' that she was framed. Attention surrounding Ethel’s case heightened when a segment aired on 60 Minutes all but proving that she was not, in fact, a spy. So far, 13,000 people have signed a petition calling for her exoneration.
Read the full story here.
$6 Million Settlement for Wrongfully Convicted North Carolina Man
The Greensboro, North Carolina City Council voted to settle Lamonte Armstrong’s civil lawsuit against the city for $6.42 million. Thanks to evidence contrived by Greensboro Police, Lamonte was wrongfully convicted of murder and spent 17 years in prison. The City Council worked to protect taxpayers, to the extent possible, from financial liability, and to offer fair compensation for wrongs done to Lamonte in the city’s name.
Read more here.
Federal Judge Exonerates Two (More) of the Norfolk Four
On Monday, a federal judge vacated the convictions of Danial Williams and Joseph Dick, two of the four Navy sailors known as the Norfolk Four, who were wrongfully convicted of a 1997 rape and murder. The two other members of the Norfolk Four are Derek Tice and Eric Wilson. Tice had his conviction overturned in 2009, but Wilson, who was convicted only of the rape, has been unable to persuade courts to do the same, since he has already completed his sentence.
Read more here.
Victor Rosario Keeps Fighting
Our client Victor Rosario was featured in the Boston Globe last week, speaking about his continued fight for full exoneration. Victor spent 32 years in prison after he was wrongfully convicted of intentionally setting a 1982 house fire in Lowell, Massachusetts. Two years after a judge freed Victor, now 59, he's leading a new life as a pastor and a dedicated long-distance runner. Victor’s fight for freedom is not over yet-- on November 8th, just two days after he runs the New York Marathon, he'll be back in court.
Read the Globe story here.
This is the first of our new, bi-weekly news roundup where we will highlight stories currently in the media relating to wrongful convictions and criminal justice reform, particularly in the New England area. We hope you read and share these stories- and feel free to comment and keep the conversation going!
Progress on Criminal Justice Reform in MA
Top state officials from all three branches of government convened in Governor Charlie Baker’s office yesterday to hear the latest research by an outside non-profit that could help reduce incarceration and recidivism rates in Massachusetts. This Justice Center review is on track to produce recommendations by January, which could put criminal justice reforms at the forefront of the Beacon Hill agenda for the next legislative session. The research will be further discussed at a public meeting on Thursday.
The South Coast Today has the story here:
Mourning the loss of Brooklyn DA Ken Thompson
Kenneth P. Thompson, Brooklyn’s first black district attorney, died of cancer on Sunday, October 9th, at the age of 50. His death is a tremendous loss not only to his family and friends, but to the broader causes of
Ken Thompson’s passing has been covered extensively, here are a few articles:
Trump and the Central Park Five
In 1989, five black and Latino teenagers were accused of assaulting and raping a white woman in Central Park: they became known as the Central Park Five. Young and under duress, they falsely confessed, leading to wrongful convictions and prison time for all of them. In 2002, DNA evidence and the confession of the true criminal led to their exoneration, and the city of New York has subsequently given them monetary compensation for their false imprisonment- so why can’t Donald Trump let it go? In 1989, Trump spent nearly $100,000 placing full page ads in the four New York City daily papers calling for the return of the death penalty (in clear reference to this case), and to this day maintains that the Central Park Five
The New York Times has the story here:
And here, Yusef Salaam, one of the Central Park Five, discusses how Trump’s assertions have affected his life:
"An Ex-Cop's Remorse:" An investigator who probes wrongful convictions now doubts a case of his own"
By Stephanie Clifford
A thoughtful and substantive look at the many causes that can lead to wrongful convictions in our criminal justice system, examined through the lens of one particular case in which an investigator, who has spent his life fighting for the wrongfully convicted, comes face to face with his own involvement in a case that sent an innocent man to prison.
Last Saturday night, we at NEIP were thrilled to be present at Joan Baez’s concert at the Wang Theater. Joan has teamed with the Innocence Project to use her fall tour as a platform to raise awareness of the costs and causes of wrongful conviction. Joan has made issues of social justice a focal point of her expansive and outstanding career, and we are grateful to have her as a supporter of the innocence movement.
During the concert, Joan set time aside to speak about the Innocence Project: “I’ve teamed up with the Innocence Project. They are lawyers who work pro
She went on to highlight some of the issues of criminal justice reform that often come up in cases of wrongful conviction, and that she is passionate about: “it’s about racial profiling, racial inequality, mass arrests, torture...
She followed this up by singing her song “Billy Rose” as a tribute to these issues.
At this event, NEIP highlighted the case of Alfred Trenkler, who has been in prison for 25 years for a crime he did not commit. We were thrilled to collect over 100 signatures on our petition to get his case re-opened. You can sign the online version of the petition here:
It was a pleasure to talk to concert attendees, many of whom, like Joan, are passionate about issues of criminal justice reform. We were moved and inspired by them, and greatly appreciate the interest they expressed in our cause and this case.
Joan Baez will be performing tomorrow night in Westbury, NY, and her tour continues through November!
Alfred Trenkler has been incarcerated in federal prison for nearly twenty-five years for a crime he did not commit.
25 years ago, police in Roslindale, MA received a phone call from a Thomas Shay Sr., who told them that a suspicious device had dislodged from the underbelly of his car. Officers Jeremiah Hurley and Francis Foley showed up to the scene, where they found a dynamite bomb encased in a black box. In the process of attempting to dismantle the device, it detonated. Officer Hurley was tragically killed, and Officer Foley severely injured.
Thomas Shay’s son, Thomas Shay Jr., was focused on by police early in the investigation, due to a number of incoherent statements he made, implying that the bomb had in fact been meant for him. Despite Shay Jr.’s documented history of mental illness, the police moved forward with the lead, and from an address book belonging to Shay Jr., they found Alfred Trenkler. Baselessly, the prosecution alleged that Trenkler and Shay Jr. had been involved in a relationship, and that Trenkler had built the bomb at the behest of Shay Jr., who wanted to kill his father in order to cash in on an insurance policy. Police interest in Trenkler intensified when it came to light that he was an electrical engineer. Years prior, he had been involved in the prankish creation of an explosive device for a friend, which was then attached to the bottom of a car and detonated, creating a very loud explosion but no property damage or injuries. Trenkler was not convicted of any crime relating to this incident, though it undoubtedly served as the catalyst for the prosecution’s interest in and case against him.
At trial, the evidence against Trenkler was entirely circumstantial. A jailhouse snitch, David Lindholm, testified that Trenkler had confessed his guilt in assembling the bomb to him while they were incarcerated together. In exchange for his testimony against Trenkler, Lindholm received a substantial reduction in his sentence – though at trial he vehemently denied the existence of any such agreement. Lindholm has since gone on to make a career as a government witness. Shay Jr.’s implication of Trenkler also went forward at trial, despite the fact that Shay Jr. had been diagnosed with pseudologica fantasica, a mental illness which results in pathological lying and delusions. Trenkler was convicted of murder in 1993 and sentenced to life in prison.
Since trial, the evidence originally supporting Trenkler's conviction has been roundly discredited, piece by piece. Five jurors have come forward to publically state their belief in Trenkler’s innocence. Virtually all of the circumstantial trial evidence has been undermined by new and more reliable information. After inculpating Trenkler, Shay Jr. recanted his statements and claimed to have been threatened by government attorneys. Fingerprint evidence, not disclosed at trial, also exculpated Trenkler.
Additionally, in their myopic focus on Trenkler and Shay Jr,. the government ignored some highly coincidental evidence involving Thomas Shay Sr. At the time of the incident, Shay Sr. was something of a professional plaintiff, having filed over 10 lawsuits, including several personal injury suits, four automobile accidents, one suit against Burger King after his young daughter cut her finger in a restaurant, a suit against Mickey Mouse after he claimed injury on a ride at Disneyland, and a plethora of others. He was at the time embroiled in a $400,000 suit against his former landlords, who owned the space in which his auto-body shop had previously been located. Shay Sr.’s suit against his landlords alleged that they threw a stick of dynamite into a barrel at his auto-body shop in an attempt to intimidate him, and subsequently dumped metal scraps in his driveway. In the suit, he was claiming that the dynamite incident caused him grievous physical injury and mental paranoia, which together prevented him from continuing to work. At the time that Shay Sr. purportedly discovered the device which killed Officer Hurley, the insurance company from whom he was hoping to receive money was unconvinced of the fact that Shay Sr.’s previous landlords were in fact making threats against his life, as he had been claiming.
Trenkler’s conviction and subsequent attempts at post-conviction relief perfectly illustrates the “piecemeal problem” in our criminal justice system – the failure of courts to recognize post-conviction innocence claims when evidence of innocence emerges piece by piece, rather than all at once. While all of the new evidence has come to light bit by bit, strict post-conviction statute of limitations periods have demanded immediate filings. Additionally, since his conviction in 1993, Trenkler has been largely unrepresented by counsel and has pursued post-conviction relief on his own behalf. The courts have effectively reviewed each new claim in isolation – meaning no court has had the benefit of assessing all the new evidence in the aggregate. This means that there has been no opportunity to view the evidentiary landscape as a whole, and recognize that virtually every piece of evidence originally supporting Trenkler's conviction is no longer viable. In short, the courts have failed to see the forest for the trees. Trenkler sits in federal prison despite the absence of any credible evidence that he actually committed the crime.
On October 8th, Joan Baez, who has partnered with the Innocence Network, will be highlighting Trenkler's case at her show at the Wang Theater in Boston.
We are asking United States Attorney for Massachusetts Carmen Ortiz that Trenkler’s case be reopened in light of the numerous items of post-conviction innocence which have emerged. Will you add your name to our petition?
On September 15, 1999, Ronjon Cameron was arrested and charged with two counts of rape. A rape he did not commit. A rape that did not happen.
The New England Innocence Project is sharing Ronjon’s story today in honor of Wrongful Conviction Day, to raise awareness of the causes and remedies of wrongful conviction and to recognize the tremendous personal, social, and emotional costs of wrongful conviction
September 30th, 2016
“Night Out with NEIP” was a great success! The evening, held last Friday night at the beautiful Cambridge Multicultural Arts Center, was a wonderful celebration of NEIP’s work on behalf of wrongfully convicted prisoners. The reception was held in the large ballroom where guests, staff and recent exonerees and their families mingled and spoke about what NEIP and its work means to them. Guests enjoyed delicious hors d’oeuvres from Above and Beyond catering, and wine donated by Truro Vineyards of Cape Cod. In the Center’s art gallery, we held a successful silent auction with items donated from local artists, restaurants and professional Boston sports teams (see complete list below). Live music was provided by Kurt Reynolds on the harp, and later on in the evening guests enjoyed vocals by Emma Zack, accompanied by Joe Reid on the piano.
The program began with a welcome address from board member Stephanie Hartung, Professor of Law at Suffolk University, who acknowledged the exonerees and their families present at the event, which included: Ronjon Cameron, Dennis Maher, George Perrot, Victor Rosario, the family of Raymond Tempest and Crystal Squire, niece of Barnard Barron. Next, NEIP board chair David Siegel highlighted NEIP’s accomplishments of 2016, and discussed some promising legal developments of the past year; particularly, the fourth consecutive unanimous decision by the SJC interpreting MA post conviction access and testing statues in an expansive way, which facilitates more access for persons who claim to be wrongfully convicted.
Sharon Beckman, board member and Professor at Boston College Law School, presented the Joe Savage award to Lisa Kavanaugh, the CPCS Innocence program director. The award is named for Joe Savage, a highly respected criminal defense attorney and founder of NEIP. Beckman described Lisa as a brilliant lawyer, a visionary, and a genius collaborator, and noted that over the past five years, under Lisa’s leadership, the CPCS Innocence Unit has had a role in bringing about the release, new trial, or exoneration of nine men, who together spent a total of over 161 years in prison for crimes that they did not commit.
Lisa Kavanaugh discussed her journey as a public defender, and how NEIP and the innocence movement are changing the conversation around wrongful convictions. She thanked the exonerees present, some of whom are her clients, for teaching her that “the lesson that I have to keep learning, again and again, is that I can’t stop fighting for the impossible.” She also discussed attorney Bryan Stevenson’s idea of brokenness, and the challenges and opportunities of living in a broken world: “If we have any hope of making a difference in fighting wrongful convictions, we have to recognize that not only are we all broken- not just our clients or the system, but every single one of us; but we also have to manage to find some strength in those places of brokenness, and then we have to have the daring to advocate for the impossible.”
Next, Dennis Maher presented his namesake award to Ronjon Cameron. Dennis served over 19 years in prison for a crime he did not commit, and since his release has had a tremendous impact on Massachusetts law and the innocence movement by sharing his story and working to help exonerees in a multitude of capacities. Dennis noted that same spirit of giving back in Ronjon: “I had nothing when I was in prison,” Dennis said, “when I got out, I decided to leave everything behind, and chose to embrace life- Ronjon has made that same choice.”
Ronjon spoke about the struggles he faces to clear his name (he has still not been officially exonerated) and receive compensation, the challenges his family faced during his incarceration, and his gratitude to NEIP for taking on cases of innocence. He also noted the strange irony that on the very same day that Dennis finally walked out of prison, he himself was taken to prison- a poignant reminder that for every wrongfully convicted person who is freed, there remain many more caught in the snares of the criminal justice system. Ronjon finished with an important message to those in the field: “You attorneys, well-seasoned attorneys, please, you know what’s going on. You new attorneys- change it.”
We at NEIP hugely enjoyed connecting with our guests, honoring our exonerees, and hearing the words of our inspiring speakers. We are truly grateful to all of those who joined us last Friday night, and to all of our staff, board members, and volunteers who helped make the evening possible. We hope you will join us again next year, and in the meantime, keep supporting NEIP and join us at future events!
We would like to particularly thank the following organizations and individuals for their generous silent auction donations:
It was a
At 7am, Victor, joined by Lisa Kavanaugh, one of the creators of Running for Innocence, and a small team of dedicated runners, set off from Brighton. They passed through Cambridge, Arlington, Lexington, Bedford, Billerica, and Chelmsford, before ending in Lowell. Many other supporters joined at various points along the route to run alongside them, or cheer them on from the sidelines. They finished at the Lowell North commons around noon, where they were met by an enthusiastic crowd ready to celebrate their accomplishment and Victor’s birthday!
Victor Rosario was wrongfully convicted in 1982 and spent 32 years incarcerated for a crime he did not commit. This Freedom Run was a celebration of his freedom and birthday, and has so far raised $1,341! NEIP thanks all of those who supported this run- these donations form an essential part of our funding the expenses associated with post-conviction litigation. We are so grateful for this incredible support. It’s not too late contribute!: https://www.crowdrise.com/running-for-innocence-the-2016-freedom-run
Congratulations to Victor and everyone who participated, donated, and cheered them on! The Freedom Run was a remarkable expression of the very best qualities of the innocence movement: determination, positivity, and team spirit in overcoming adversity. We hope to see you at future events- check out the Running for Innocence website to learn more! https://runningforinnocence.com/
The New England Innocence Project is delighted to honor two champions of innocence at its September 23rd, 2016 “Night Out with NEIP” event at the Cambridge Multicultural Arts Center.
Lisa Kavanaugh will be awarded the 2016 Savage Award, named for NEIP founder and supporter Joseph F. Savage, Jr., given annually to someone who has made significant contributions to ending wrongful convictions. Ms. Kavanaugh is the director of the Innocence Program at the Committee for Public Counsel Services (CPCS). In addition to litigating numerous post conviction cases herself, many resulting in exonerations, she has also developed statewide training programs in the proper use of forensic evidence, convened a working group of criminal justice leaders composed of prosecutors, law enforcement, forensics scientists and defense counsel addressing the causes of wrongful convictions, and is a board member of the Innocence Network, a coalition of projects from the USA and abroad that address wrongful convictions. Ms. Kavanaugh is also the driving force behind the Running for Innocence campaign that NEIP uses to pay the expenses associated with post-conviction litigation. “It is impossible to overstate Lisa’s contribution to innocence work,” said Denise McWilliams, NEIP’s Executive Director. “Her efforts have not only contributed to the release of innocent, yet incarcerated people, but have also resulted in the reforms of the conditions that led to their conviction in the first place.”
More information and tickets to the event are available at:
The New England Innocence Project is pleased to announce that, with the help of the attorneys at Goodwin Procter, the Suffolk County Supreme Judicial Court has ordered a new trial for our client, Michael Cowels.
Cowels was convicted in the 1993 stabbing of a young woman in Chelsea, Massachusetts. The prosecution’s case was circumstantial, and largely based on two bloody towels found in the home of a friend of the defendant. New DNA testing revealed that Cowels’ DNA was not present on the towels.
Mr. Cowels’ attorneys, David Apfel, Nicholas Mitrokostas and Joshua Daniels, successfully appealed the lower court’s denial of the Motion for a New Trial, arguing that the DNA testing of a blood soaked towel excluding Mr.Cowels constituted newly discovered evidence and warranted a new trial.
The towel was the only “physical evidence corroborating a key element of an important prosecution witness’s testimony”. (Commonwealth v Michael Cowels) That witness’ testimony, changed from his original statement which was consistent with Mr. Cowel’s account, “enabled him to avoid prosecution as an accessory after the fact, but it also allowed him to avoid jail time on an unrelated motor vehicle offense.” (Id.) Finding that the DNA was of an unknown male and not Mr. Cowels’ significantly undercut the Commonwealth’s case.
This is an incredible victory; congratulations to attorneys Apfel, Mitrokostas, and Daniels of Goodwin Proctor. And a very special congratulations to Michael Cowels!
Read more about the decision here
She did it!!!
NEIP friend and colleague Lisa Kavanaugh braved the harsh winds and elements this weekend as she ran the New York City Marathon! Lisa had been training around the clock in the months leading up to her big run, and her hard work paid off as she finished her very first marathon with an outstanding time of 4:25:57!
Lisa’s effort has also helped the New England Innocence Project raise nearly $8000 in our Running for Innocence campaign! These donations will go a long way towards helping NEIP to prove the innocence of those who have been wrongfully convicted in the New England area. We at NEIP would like to thank all of you who have donated, and shared our story. Without your generosity, we could not accomplish our mission, and could not give hope to the innocent men and women who are currently serving time for crimes they have not committed.
It is not too late to contribute to our campaign! We are still accepting donations and contributions of all kinds to help towards our goal. Please visit our campaign at www.indiegogo.com/projects/running-for-innocence and email us at email@example.com if you are interested in joining us for future Running for Innocence events!
The New England Innocence Project is proud to sponsor our friend and colleague, Lisa Kavanaugh, as she runs the 2014 New York City Marathon in our first ever Running for Innocence campaign!
According to the National Registry of exonerations, there have been over 1,300 inmates exonerated in the past 25 years. In 2014 alone, over 80 inmates were exonerated of their crimes in the US. Even more shocking, is the estimation that over 4% of death row inmates are innocent of the crimes they are convicted of. The New England Innocence Project, and organizations across the country are working towards awareness on the issue, and helping to litigate the cases of those who have been wrongfully convicted. Conservative estimates are that 2.5% of all convictions are of people who are factually innocent – they did not commit the crime that has lead to their conviction, and yet they are incarcerated because of faulty evidence or a lack of modern scientific advancements. As director of the innocence program at the Committee for Public Counsel Services, Lisa has committed her career to finding justice for clients who could not afford legal representation, and clients who are not guilty of the crimes for which they have been convicted. But proving innocence is both time-intensive and costly. As of now, there are not funds available to pay for the initial investigation, evidence gathering and hiring of specialists and experts in scientific and technical fields necessary to get the nearly 50 cases we are litigating into court, and to fight to ensure that these innocent people are freed.
Lisa has chosen to run the New York City Marathon to help promote awareness of the issue of wrongful convictions. With her efforts, we hope to raise the money necessary to investigate these cases, pay for scientific testing and experts, and exonerate the nearly 50 men and women in New England that the New England Innocence Project is currently fighting for. You, together with Lisa and NEIP, can make a difference, by helping us gain access to the tools that will help us determine innocence and free the wrongfully convicted.
We sincerely appreciate donations and contributions of all types and sizes. We would like to thank our contributors who give over $25 by offering a NEIP wristband or a hand-written thank you note from Lisa and NEIP Executive Director Denise McWilliams on a card with artwork designed by an inmate. We will also offer a Running for Innocence athletic performance shirt as a thank you for donors who contribute $100 or more. Your contribution will be vital in assisting our mission that no one be left in prison for a crime they did not commit.
Please support Lisa in her efforts by raising awareness, and donating to our IndieGoGo campaign page at https://www.indiegogo.com/projects/running-for-innocence You can also email us at firstname.lastname@example.org to learn more about Running for Innocence and our mission!
Our Evening on the Cape with NEIP and Truro Vineyards of Cape Cod was an extraordinary success! This was the first of what we plan to make an annual fundraising event, and we could not have done it without help from our staff, board members, volunteers, and contributors! The weather was perfect, and the food from Terra Luna and local oyster farmers Jason, Elizabeth and Baby Leif was delightful. Guests sampled wines from Truro’s award-winning vineyard, including the Sauvignon Blanc, Chardonnay, Cabernet Franc and Rosé, as well as cocktails featuring Truro’s own Twenty Boat Spiced Rum. Local harpist Kurt Reynolds provided lovely background music all evening, making it a night that truly exemplified the best of what Cape Cod has to offer. Not to be lost amid the simple enjoyment of the evening, was the recognition of NEIP’s mission – that no one person in New England should ever be in prison for a crime they did not commit.
The program began with an introduction by Stephanie Roberts-Hartung, a professor at Suffolk Law and trustee on NEIP’s board. Stephanie gave us the pleasure of recounting her personal experience as a public defender with an innocent client, and how the advances made by the Innocence Project gave her the tools to prevent his conviction. Rob Feldman, one of the founders of NEIP, presented fellow board member and colleague Joe Savage with the first ever Savage Award. The award, named for Joe himself, will be presented annually to a person who has significantly advanced the cause of the wrongfully convicted.
But the most striking example of the importance of our work came from the words of exoneree Dennis Maher. Dennis was convicted of rape in the early 1980s, when many of the factors that give rise to wrongful convictions, such as faulty eyewitness protocols, poor defense lawyering, and lack of DNA testing were still prevalent. In his own words he described the details of his arrest, prosecution, and nearly twenty years of wrongful imprisonment. His ability to forgive, and go on to restart his life was exemplified when his speech culminated in an embrace with his lovely wife Melissa, and their two children.
We at NEIP truly believe that the event was a success in all aspects. We enjoyed being able to connect with our guests, and promote our mission to fight for the freedom of those who have been wrongfully convicted using advancements in DNA testing and evidence retention. We sincerely hope you can join us next year for An Evening on the Cape with NEIP and Truro Vineyards of Cape Cod. And be on the look out for upcoming events with NEIP, including our Running for Innocence campaign in November!
The New England Innocence Project is grateful to everyone who participated in and attended our fourth annual innocence training. Each year, NEIP’s training offers the most current information about causes of wrongful convictions, related cases, and relevant litigation. This year’s event, which took place on Friday, July 11 at the Goodwin Procter Conference Center, was a huge success. Our expert speakers provided a range of interesting and interactive presentations attended by over 100 attorneys, prosecutors, law enforcers, and others. This year’s topics included CODIS 101, Canine Scent Detection in the Forensic Arena, FBI Hair Analysis, and State of the Science 5 Years after the NAS Report. We were lucky to welcome our key note speaker, Glenn Cunha, the Massachusetts Inspector General. We have received so much positive feedback about the presentations at the training. We’d like to give a special thank you to Sidney Collins, Terri Bright, Chris Fabricant, Lisa Kavanaugh, and Glenn Cunha for their outstanding and memorable work. We’d also like to thank Goodwin Procter for their continued support hosting us. We are so excited for next year’s training and can’t wait to see everyone there! Thanks again to everyone who participated in the event, it was a great success!
by Denise McWilliams, Esq., Executive Director
1. Dog Daze
Even in the elite world of detection dogs, Billy was special. Her handler, Sergeant Douglas Lynch of the Massachusetts State Police, characterized her singularity:
Her uniqueness, there was a lot of uniqueness to her alert, it was beyond the odor, sit, food. There were certain things that over the period of time that I handled this dog, I read her face. I was with her 365 days a year. It was the first thing I did every morning, it was the last thing I did every night for the entire time that I had that dog. I knew her personality; I knew the ways her eyes shifted. I knew the ways her ears shifted when she located stuff. There were things she did. Her ears would cock to the sider, her ears, I don’t know if anyone owns a Labrador. Their ears are kind of expressive. Her ears would go up in the corners, her head would tilt to the side and her tail would start to got [sic]. There were very distinctive things that she did at the fire scenes that I didn’t see at other places with her. It was an excitement in the dog that she had located what she was looking for. (Trial Transcript, III, 150-151)
According to Sergeant Lynch, Billy found what she was looking for in a convenience store owned by James Hebshie in Taunton, Massachusetts. Along with several other businesses, the store burned pretty much to the ground on April 21, 2001.
Sergeant David Domingos of the Massachusetts State Police Fire Marshal’s Investigative Unit was in charge of the investigation. Domingos concluded that the fire began in Hebshie’s store; ignited along the left hand wall, moved several feet to a pipe in the wall and finally through a pipe up to the second floor. The destruction was significant. Domingos called in Lynch so that Billy could confirm Domingos’s conclusion.
Lynch brought Billy to the only safe place in the store: the left-hand sidewall and the floor immediately in front of it. There was one spot on the carpet along the wall where Billy alerted. Lynch took a single sample from the carpet for laboratory analysis. A staff member from the police laboratory testified at trial that the sample was a light petroleum distillate.
Lynch’s deep attachment to Billy (who died before the trial) was evident. According to Lynch, Billy’s prowess bordered on mystical. He testified that Billy was 97% accurate, and whatever mistakes she made were the handler’s fault rather than her own. Lynch knew that Billy had located something by the way her ears or eyes shifted. He testified, “I’d go into a room, I’d almost know immediately if the room was hot by listening to her nose…Even if I couldn’t visibly see her until my eyes adjusted, I audibly heard the deep nose working and the blow-out. I didn’t have to see her to know she had found something.”
The prosecution needed a bit of context before resting its case. Motive? Hebshie was trying to sell the store, supposedly because of financial difficulties. Hebshie lost his license to sell lottery tickets after he failed to pay fees owed the Commonwealth. When a scheduled sale was delayed because of a death in the purchaser’s family, Hebshie decided to collect on his $30,000 insurance policy. Opportunity? The fire started seven minutes after Hebshie set the security alarm and left the store. Standing on its own, it was not enough for a conviction. But by the time Sergeant Lynch finished extolling Billy’s virtues and emphasizing that she alerted to only one place on the carpet, Hebshie was a convicted man.
The only problem was that Hebshie was innocent.
But what about the dog? How could this spiritual descendant of RinTinTin and Lassie be wrong? With apologies to Shakespeare, the fault lies not in the dog, dear reader, but in ourselves.
2. Behind the Smoke and Mirrors
Scent travels. It pools, it seeps, it wafts, it eddies. Streams of water or gusts of air can push it along. It can travel on clothes or other fabrics. The location of scent is the point on its travel, not necessarily the beginning or the end. A dog can locate the scent, but cannot describe how it arrived there. That’s the human’s job.
Dogs like Billy do not alert to a single substance; they are trained to alert to a class of chemicals: petroleum distillates. Many petroleum distillates – such as lighter fluid, glue, and even materials used in newsprint – are found in variety stores. They result from the decomposition of materials damaged by fire, such as carpeting and building materials.
Hebshie’s store was a disaster by the time Billy got there. Only one of the four walls, the left-hand one, was still standing; the other three had collapsed. The surviving wall was covered with quarter-inch plywood that had only partially burned. The remainder of the store was buried in debris-collapsed walls, ceiling panels, and inventory, all of which had been blasted by the fire and the hoses used to extinguish the blaze.
The damage was so severe that Sergeant Lynch, concerned for Billy’s safety, would only bring her to the area directly in front of the left-hand wall, the area that Sergeant Domingos had already concluded was the origin of the fire. It was there that Billy alerted and there that Sergeant Lynch cut a single sample from the carpeting. An analyst from the State Police Laboratory classified the sample as a light petroleum distillate.
The National Fire Protection Association (NFPA), the largest association of its kind in the world, promulgated NFPA 921, which has become the standard for arson investigations: NFPA recognizes the limitations of a handler’s ability to interpret a dog’s alert and restricts the use of canine/handler teams to “[a]ssist with the selection of samples that have a higher probability of laboratory confirmation than samples selected without the canine’s assistance.” In other words, recognizing that a dog can tell where but not why or how a fire began, canine/handler teams are used to find samples for laboratory analysis. Multiple samples from different sites are collected to determine whether a substance is restricted to one or two sites or found throughout the premises.
Hebshie’s attorney did not ask why the left-hand wall was the least damaged if it was the place of origin. He did not ask if Billy would alert to chemicals that had innocent uses other than to start fires. He did not ask if some of those chemicals would be found in a variety store. Nor did he object to what the trial judge described as “a [t]ruly extravagant testimony about Billy the dog.” In her later order vacating Hebshie’s conviction, Judge Gertner wrote that “there was not a complete failure of defense (although candidly, counsel’s performance came close).”
Fortunately for Hebshie, his post-conviction attorney, Jeanne Kempthorne, successfully pursued his case and convinced Judge Gertner that Hebshie’s conviction was a miscarriage of justice.
Sadly for Hebshie, it was four years before Kempthorne’s Motion was heard by Judge Gertner. Hebshie spent those four years in federal custody. Because of his poor health, Hebshie served his time at the Federal Medical Center at Devens, a better facility than many federal prisons. Still, it was a difficult time. “The prison was like a concentration camp,” Hebshie said after his release, “That’s the honest to God truth. If you want me to say something good about it, I can’t.”
Since Hebshie’s case, there have been more studies exposing the problems with the use of “accelerant detection” dogs. Even so, police departments across the country still cling to traditional, scientifically discredited practices. But the situation has improved, and those who are investigated by knowledgeable police departments or represented by competent counsel should be fine.
As for the rest, there is always the chance that they will be exonerated some years down the line. Perhaps not the most satisfying ending, and certainly not the most just. Just ask Hebshie.
I saw this sign on a recent trip to California’s redwood country. Obviously designed for the north end of the park, it was instead placed at the southern end. Some kind soul took it upon him- or herself to alert the unwary of the mistake. Recognizing that the correction was bound to be imprecise, the kind soul settled upon “This is where you really are, ish” as the best description of the location. It struck me how many convictions are more “guilty… ish” than guilty.
And unfortunately, “are, ish” is an apt metaphor for the present state of forensic science. The years following the ground-breaking report, Strengthening Forensic Science in the United States: A Path Forward (National Research Council of the National Academies Press-2009) have seen little actual progress. Among the critical problems identified was a fragmented, under-resourced forensic science system, which relied on invalid or un-validated “science” that results in the convictions of an untold number of people. Conservative estimates indicate that approximately 2.3% of those convicted are factually innocent (i.e., they did not commit the criminal act for which they were convicted).
Since the report, there have been monumental efforts by law enforcement, the defense bar, and the Innocence community to bring about necessary reforms. The effort has been stalled by inadequate resources, a fractious Congress, and resistance of both elected and appointed officials to acknowledge the flaws in our criminal justice system.
There have been some fledgling signs of progress. Members of the National Commission on Forensic Sciences have been appointed and have held their first meetings. The National Institute on Standards and Technology (NIST) is in the process of selecting members for the Scientific Area Committees, advisory bodies charged with supporting the development and promulgation of standards and guidelines for forensic sciences. Thus, more courts have recognized the fragility of some assertions made in the name of science.
Still, there are thousands of innocent people sitting in prison and more being convicted while the Commission and NIST undertake their work. What relief is available to them?
There are legal pathways for some. Others, if they’re lucky, might be able to use DNA testing to show their innocence. There are almost certainly some who will benefit from forensic scientists and lawyers who are willing to donate their services or provide them at greatly reduced costs, but their efforts are an inadequate substitute for justice.
A criminal conviction is not supposed to rest on an approximation of guilt. “Are..ish” may be acceptable for locating one’s position on a map, but “guilty..ish” has no place in our justice system.
It’s been almost three weeks since the release of the Office of the Inspector General’s report on the Hinton drug lab scandal: Investigation of the Drug Laboratory at the William A. Hinton State Laboratory Institute (OIG Report). The report, for the first time, focuses attention on the problems with the Hinton Lab’s systems instead of the “rogue chemist” that has so captivated the media’s attention.
The OIG report simplest finding is perhaps its most important: Management Failed. And because there was no feedback loop independent of management, the problems at the lab were invisible to the outside world.
Stafford Beer coined the phrase: “The purpose of a system is what it does.” (POSIWID) The systems at the Hinton Laboratory produced unreliable results that nonetheless resulted in convictions, imprisonments and foreclosure of opportunities (for jobs and housing among other things) for large numbers of people.
This situation persisted for years despite complaints by staff and obvious discrepancies in drug tests. The system pulled for productivity, not correct results. Given the limited resources that state and federal government have allocated to the criminal justice system, while at the same time exponentially increasing the number of prosecutions, it was entirely predictable that the Hinton Lab scandal would happen.
The New England Innocence Project and our partners across the nation have focused on flawed science, corruption and attorney ineptitude as the drivers behind wrongful convictions. The Hinton Lab scandal illustrates another cause. Overworked bureaucracies measure outcomes in numbers and do not self-correct. They require external structures such as accreditation and protections for whistle-blowers to impose quality assurance. Without them, the system that produces the greatest numbers will continue until an external force (here the take-over of the Hinton Lab by the Massachusetts State Police) forces reforms.
It is tempting to call the Hinton Lab scandal a unique anomaly, to believe that these problems do not exist in other labs across the country. But it wasn’t five years ago that everyone in Massachusetts would have said that such problems didn’t exist here either.
Think about it.
Denise McWilliams, Esq.
NEIP Executive Director
On Friday, the Massachusetts Supreme Judicial Court issued its first decision interpreting M.G.L. ch. 278A- the important law that provides access to forensic and scientific analysis. This ruling strongly confirms that the legislative purpose of the Act was to create a new pathway for access to evidence for those claiming actual innocence.
Relying on legislative findings, the court determined that the act’s purpose was to “remedy the injustice of wrongful convictions of factually innocent persons by allowing access to analyses of biological material with newer forensic and scientific techniques” and the Court declined to adopt the more stringent interpretation urged by the District Attorney of Plymouth County.
Instead, the SJC held that the legislature, cognizant of the problem of wrongful convictions, intended to create a new procedure for the factually innocent to utilize the advancements in science and technology in re-examining evidence used to convict them.
Specifically, the SJC held that at the threshold stage of 278A motion, the judge is to determine only that the requirements of §3 have been met. If the moving party has done so , a hearing shall be held. In order to be successful at the hearing,, the moving party must show, by a preponderance of the evidence, that s/he is entitled to have access to the evidence and have it tested with the “newer forensic and scientific techniques” all the information required by statute.
This is a significant recognition by the SJC that wrongful convictions do occur and that the traditional post-conviction procedures are inadequate to correct them.
278A creates a two-step procedure . The first step is the submission of a Motion. Once submitted, the court must determine that the contents of the Motion meets the preliminary criteria set out in §3 of the Act, namely:
name and description of the requested forensic or scientific analysis;
information demonstrating admissibility of the requested analysis;
description of the requested evidence or biological material including its location and chain of custody;
information demonstrating that the analysis could produce evidence material to the moving party’s identification as the perpetrator; and
information showing that the requested analysis hadn’t been utilized:
i. because it wasn’t available at the time of conviction;
ii. the analysis wasn’t admissible in the Commonwealth at the time of conviction;
iii. the moving party and his/her attorney did not have reason to be aware of the biological material at the time of the conviction
iv. that although a reasonably effective attorney would have sought the analysis, the trial attorney either failed to seek the analysis or the judge denied the request; or
v. information demonstrating that the evidence was otherwise unavailable at the time of the conviction.
Additionally, the moving party must file an affidavit averring factual innocence.
Once a determination is made that the above requirements has been met, a hearing is held affording parties the opportunity to present evidence and argue their case.
278A provides a crucial tool for attorneys litigating post-conviction claims and today’s SJC decision is an acknowledgement that new procedures are necessary to provide relief to the wrongfully convicted. It’s now up to the defense bar to ensure its use.
–Denise McWilliams, Esq.
NEIP Executive Director
The government shutdown this past October was enough to show that Americans are right to be distrustful of politicians. But this latest opinion piece from the Attorney General of New York is a real doozy. In the piece, Mr. Schneiderman, highlights the case of Fernando Bermudez, a Danbury, CT resident and friend of the NEIP family. For those of you unfamiliar with Fernando’s case, he was imprisoned for 18 years for a crime he did not commit. He had an alibi, and several alibi witnesses, but was convicted on the snitch testimony of an individual who was actually responsible for the murder.Read more about his story here.
Back to the op-ed. Mr. Schneiderman starts out saying that Fernando’s case is an example of the injustice exonerees face. Fernando’s case certainly is filled with injustice, and should be used as an example to prevent future miscarriages of justice. Our disagreement is with the truth behind the article. The truth is that in the article, Mr. Schneiderman is hiding the role he plays in making sure Fernando’s suffering and fight continues for as long as possible. Because Fernando’s attorney signed the wrongful conviction claim in his case seeking restitution, Mr. Schneiderman claims that this forces the Attorney General’s office to fight the compensation case, stating “So, because his claim did not comply with this strict and highly technical requirement, my office must challenge his case in court.” What Mr. Schneiderman fails to note is that because of something called prosecutorial discretion, he could actually refuse to challenge the case in court; it’s well within his power to refuse to challenge, and help to rectify this injustice. However, for political and financial reasons, not having anything to do with a mistaken signature, his office is fighting this case, denying their financial obligations to the Bermudez family, while writing an article claiming to want the opposite, which would be fine, if it weren’t completely within his control to right this wrong.
Time and time again we see exonerees treated this way. They are wronged by the system, fight to prove that wrong, and when that wrong is finally recognized (in Fernando’s case, the judge declared him actually innocent – a first in NY history) they are given NOTHING. They then have to fight to get money owed to them under compensation statutes, which means going back to court. Prosecutors on behalf of the state, look for whatever reason, like say a supposedly invalid signature (though lawyers sign documents for their clients all the time when filing, so it’s a bit unclear as to why this should be any different) to fight the state’s obligation. We have a person who has spent 18 years in prison for a crime he did not commit, who is seeking what the state owes him for this grave injustice, and the state is pointing fingers to avoid paying the bill. The Attorney General wants us to believe it’s because there’s a wrong signature somewhere, when really he just doesn’t want to be the one to sign the check.