Tag Archive | false conviction

Series of Articles Alleging Prosecutorial Misconduct alleged Capital Cases

Prosecutorial misconduct alleged in half of capital cases

Part 1 of 4

Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first-degree murder for allegedly helping to plan the murder of her 4-year-old son.

A year later, he convinced a judge to send her to death row.

It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child.

The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.

But neither man would agree to testify against Milke, and the state’s case depended on a supposed confession Milke made to a Phoenix police detective.

Milke denied confessing.

The detective had not recorded the interview, and there were no witnesses to the confession.

When Milke’s defense attorneys tried to obtain the detective’s personnel record to show that he was an unreliable witness with what a federal court called a “history of misconduct, court orders and disciplinary action,” the state got the judge to quash the subpoena.

“I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out,” Levy recently told The Arizona Republic.

But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state’s failure to turn over the detective’s personnel record so that Milke’s defense team could challenge the questionable confession.

The 9th Circuit put the onus on the prosecution.

“(T)he Constitution requires a fair trial,” the ruling said, “and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence.”

The 9th Circuit judges ordered that Milke be retried within 90 days or be released.

The chief circuit judge referred the case to the U.S. Attorney General’s Office to investigate civil-rights infringements. Under the 9th Circuit order, prosecutors must allow the detective’s personnel record into evidence if they use the contested confession.

Prosecutors are responsible for the testimony of the law-enforcement officers investigating their cases. Cops and prosecutors are the good guys. They put criminals in prison, sometimes on death row. Juries tend to believe them when they say someone is guilty. They don’t expect them to exaggerate or withhold evidence. They don’t expect their witnesses to present false testimony.

Yet The Arizona Republic found that, when the stakes are highest — when a trial involves a possible death sentence — that’s exactly what can happen.

In half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. Those allegations ranged in seriousness from being over emotional to encouraging perjury.

Nearly half those allegations were validated by the Arizona Supreme Court.

Only two death sentences were thrown out — one for a prosecutor’s tactics that were considered overreaching but not actual misconduct because a judge had allowed him to do it.

Two prosecutors were punished, one with disbarment, the other with a short suspension.

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

In fact, they are often congratulated.

Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic’s examination of court documents.

And when prosecutors push the limits during criminal trials, whether crossing the line into misconduct or just walking up to it, there are risks: Convictions like Milke’s get overturned, even if it takes 24 years, and innocent people, like Ray Krone, go to prison.

See more stories at:

New York Times Editorial on the Brady Rule

The New York Times

The New York Time’s Editorial Board advocates laws that require open file policies in felony criminal cases.

DNA evidence frees Texas man convicted in ’81 stabbing death

AP/ February 11, 2013, 5:32 PM


CORSICANA, TEXASA 58-year-old Texas man was allowed to walk free Monday after spending half his life behind bars for a crime he didn’t commit — the repeated stabbing of a woman whose body was found on a dirt road in rural North Texas.

Randolph Arledge, left, speaks to one of his attorneys, Innocence Project co-director Barry Scheck, before a court hearing in Corsicana, Texas, Feb. 11, 2013. / AP

Randolph Arledge was sentenced to 99 years in prison in 1984 for killing Carolyn Armstrong. But a state district judge in Corsicana, about 50 miles southeast of Dallas, agreed with prosecutors and Arledge’s attorneys that he could no longer be considered guilty after new DNA tests tied someone else to the crime.

Judge James Lagomarsino agreed to release Arledge while the process of overturning his conviction is pending. The Texas Court of Criminal Appeals must accept Lagomarsino’s recommendation for the conviction to be formally overturned, a process that is considered a formality.

Arledge was wearing shackles around his wrists and ankles at the start of the hearing. He later was taken into a back room by two deputies to have the shackles removed. When he returned, Arledge hugged his two children. His daughter was 4 years old and his son 7 when he was sent to prison.

Armstrong’s body was found in August 1981 on a rural dirt road in Navarro County, according to a court filing by Arledge’s attorneys. She had been stripped naked from the waist down and stabbed more than 40 times.

Her abandoned car was found miles away with several pieces of evidence, including a black hairnet on the left side of the driver’s seat. Hair taken from that net was preserved for three decades. In 2011, more advanced DNA testing linked a hair sample to someone else.

Armstrong’s relatives declined to comment Monday.

Like many wrongfully convicted inmates, Arledge was sent to prison with the help of faulty eyewitness testimony. Two co-conspirators in an armed robbery testified at his trial that he had admitted to stabbing someone in Corsicana and that he had blood on his clothes and knife, according to the filing by Arledge’s attorneys.

One of those witnesses has since admitted to lying about Arledge due to a personal dispute, the filing said.

Arledge became the 118th person in Texas state courts to have his conviction overturned, according to the University of Michigan’s national registry of exonerations.

State lawmakers have passed several measures to try to prevent wrongful convictions. Texas now has a law allowing all inmates convicted of a crime to seek new DNA testing. It also has the nation’s most generous law for ex-inmates who have proven their innocence, providing a lump-sum payment of $80,000 for each year someone wrongly spent behind bars, as well as an annuity and other benefits.

© 2013 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

DNA evidence frees Texas man convicted in ’81 stabbing death

Texas opens court of inquiry into claims of prosecutor misconduct


Texas opens court of inquiry into claims of prosecutor misconductMichael Morton, left, was exonerated in the beating death of his wife after 25 years. Monday he attended a Texas court of inquiry focused on the prosecutor in his case. (Ricardo B. Brazziell / Statesman.com / February 4, 2013)
By Molly Hennessy-Fiske

February 4, 2013, 6:58 p.m.

GEORGETOWN, Texas — In emotional testimony Monday, a Texas man told a judge how it felt spending 25 years in prison for a murder he did not commit.

“Brutal,” Michael Morton said. “But after a couple decades, I got used to it.”

Morton, 58, who grew up in Los Angeles, was convicted in the 1986 beating death of his wife, Christine, at their home. He was exonerated and released almost a year and a half ago after DNA tests confirmed his innocence. Another man has since been charged in connection with the killing.

Now the man who prosecuted Morton, Williamson County District Judge Ken Anderson, faces an unprecedented “court of inquiry” about 30 miles north of Austin in which a judge will decide whether the then-district attorney lied and concealed evidence that could have cleared Morton.

It is the first time the state has convened such a hearing for prosecutorial misconduct. Although part of Texas law since 1965, the court of inquiry has typically been used to consider allegations against elected officials. Some hope this week’s hearing will lead to a greater examination of alleged misconduct by prosecutors not just in Texas, but nationwide.

“This is going to be a significant case for prosecutorial misconduct. It could lead to judges giving more specific orders about turning over evidence,” said Barry Scheck, co-founder of the New York-based Innocence Project, who attended Monday’s hearing.

Texas District Judge Louis Sturns, who is presiding over the court of inquiry, must determine whether state laws were broken in Anderson’s prosecution of Morton. If so, the judge must issue an arrest warrant, potentially leading to a criminal trial.

Morton’s attorneys — including several from the Innocence Project — appealed for the court of inquiry after uncovering evidence they believe should have been disclosed under the landmark 1963U.S. Supreme Court decision Brady vs. Maryland, which requires prosecutors to share evidence favorable to the accused with defense lawyers.

Rusty Hardin, the special prosecutor appointed for the court of inquiry, asked Morton on Monday how he felt when he learned that information that could have cleared him was not shared with his attorneys during his 1987 trial.

That evidence, Hardin said, included an interview the lead investigator conducted with Morton’s mother-in-law in which she recounted how his 3-year-old son, Eric, at home at the time of the murder, claimed his father wasn’t there but that he saw a “monster … hurt Mommy.”

“I was stunned,” Morton said. “All those years … the primary thing that kept hitting me was why? What purpose, what motivation?”

On the stand Monday, Morton occasionally choked up, but remained mostly composed, at times smiling.

He sat facing Anderson, who appeared impassive. Anderson has apologized, but also denied wrongdoing in the case.

Last fall, the State Bar of Texas filed a lawsuit accusing Anderson of professional misconduct in Morton’s prosecution. A date has yet to be set for that civil trial.

Anderson’s attorney, Eric Nichols, a former prosecutor with the Texas Attorney General’s Office, focused his questions Monday on what the trial judge, who has since died, ordered Anderson to turn over.

He argued that Morton’s lawyers ruled out relying on his son as a witness before his trial and emphasized that Innocence Project lawyers, not Morton, have been pursuing charges against Anderson. Nichols noted that two Innocence Project claims about concealed evidence that could have cleared Morton were recently found to be false.

“You are not interested in seeing someone prosecuted on insufficient evidence?” Nichols said.

“Correct,” Morton said.

Hardin argued that even if the evidence couldn’t have cleared Morton, it should still have been turned over before trial.

Morton said he’s not out for revenge, just accountability.

“I don’t want anything ill for Judge Anderson,” Morton said, tearing up, “But there are consequences for our actions. There needs to be accountability, because without that, everything else falls apart.”

Some said they hope the inquiry leads to increased oversight of prosecutors.

“There is no doubt that the eyes of Texas are going to be on this proceeding,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that trains and assists lawyers who represent death row inmates. “Bad forensic science is not the only reason people get wrongfully imprisoned, and we have to be dedicated to trying to stop that.”

Texas State Sen. Rodney Ellis, a Houston Democrat, has proposed legislation to create an “innocence commission” in Texas like some other states to systematically investigate wrongful convictions. Ellis attended Monday’s hearing and said it showed the need for such a commission to find solutions to prevent future mistakes, especially for poor defendants who cannot afford the “firepower” of the high-caliber lawyers that filled the courtroom Monday.

“It’s really hard to get to the real problem of what went wrong” with prosecutorial misconduct, Ellis said. “You ought to have a system, a way in which hard questions are asked.”


How the system failed William Ziegler: Perjured testimony, trashed evidence, lying jurors

By Brendan Kirby | bkirby@al.com 
February 01, 2013

How the system failed William Ziegler: Perjured testimony, trashed evidence, lying jurors

William Ziegler reacts to his capital murder conviction in the torture death of Russell Allen Baker Jr. on
Thursday,March 8, 2001, in Judge Robert Kendall’s courtroom, in Mobile, Alabama. (Press-Register file photo)

MOBILE, Alabama – On a cold winter night in February 2000, Russell Allen Baker Jr. ended up dead from multiple stab wounds in a wooded patch near the Peach Place Inn apartments on Leroy Stevens Road.Within a week, Mobile County sheriff’s investigators zeroed in on William John Ziegler as the ringleader of a group of people responsible for Baker’s death and charged him with murder.

From that point to the time the defendant moved into a cell on Alabama’s death row, the system failed Ziegler at every turn, according to a Mobile County judge who recently granted the defendant’s bid for a new trial.

Mobile County Circuit Judge Sarah Stewart’s 218-page ruling faults the actions of investigators and prosecutors, the performance of his lawyers before, during and after the trial, and even conduct of two of the jurors.

The judge wrote that Ziegler’s lawyers failed to provide the most basic defense, with one of the attorneys actually throwing away key evidence that could have allowed them to make a compelling argument that one of his co-defendants used his car to move Baker or his body.

To read the entire order by Judge Sarah Stewart, click here.

“Under any analysis, this Court cannot say that Ziegler received a fair trial and, accordingly, under our constitutional system … he is entitled to a new trial,” Stewart wrote.The judge, who conducted an extensive hearing in the case in 2010, determined that Ziegler deserves a new trial for a multitude of reasons related to prosecutorial misconduct and ineffective defense lawyers. The ruling came after Ziegler’s new lawyers filed a rarely successful post-appeal challenge available after defendants have exhausted their regular appeal options.

Stewart’s decision will not stand without a fight, though. The Alabama Attorney General’s Office has indicated that it will appeal, and the Mobile County District Attorney’s Office harshly criticized it. An attorney who represented Ziegler, now 37, also took issue with the findings.

“I strongly disagree with the order,” said Mobile County Chief Assistant District Attorney Deborah Tillman, who tried the case in 2001. “I did not and have not ever done anything improper in not turning over evidence.”

But Benjamin Nagin, a New York lawyer who took Ziegler’s case for free after the defendant lost his appeal, said the shortcomings Stewart cited in her order are well-documented.

“It’s a very detailed decision. It’s very well-reasoned,” he said. “I think it is unusual. But this is an unusual case. These are not technicalities. These are very serious errors raising very serious questions.”

Evidence in the garbage?

Authorities charged five people in connection with Baker’s death, but only Ziegler went to trial. The rest cut deals with prosecutors, and some of them testified against him.

Prosecutors contended at the trial that Ziegler beat Baker in retaliation for a racial slur and then forced him down a dirt road where he and his cousin, Alexander Randall II, stabbed him many times.

Stewart wrote that court-appointed attorneys Habib Yazdi and Greg Hughes largely accepted the state’s allegation of their client’s guilt because they failed to adequately investigate the crime.

Hughes said he did the best job he could but cannot recall many of the details more than a decade later. And he noted that he did not hear the testimony at the 2010 hearing on which Stewart based her ruling.

But Hughes said the very reason that post-appeal challenges exist is to give judges an opportunity to prevent miscarriages of justice that appellate courts have not caught.

“She’s the judge. That’s what she gets paid to do,” he said. “To my mind, it shows the system works.”

Stewart wrote that the lawyers’ inquiry consisted of little more than hiring an investigator who never had worked on a murder case. His previous experience involved arsons and other lesser crimes.

The investigator worked no more than 55 hours, even though Yazdi had previously estimated that he would need 300 hours, according to Stewart’s findings. She pointed to the investigator’s testimony that he talked to only two people who were not in the defendant’s immediate family. Remarkably, Stewart wrote, the attorneys did not speak to either of those witnesses.

Yazdi testified at the 2010 hearing that he viewed it as the job of the investigator, not the lawyers, to seek out potential witnesses.

“Think about going on trial for your life and your attorneys don’t bother to speak to any witnesses,” Nagin said.

Testimony at the 2010 hearing indicated that Ziegler’s lawyers failed to follow up on a “bucket full” of evidence that investigator Gary Cohen did gather. He testified that the defendant’s aunt and legal guardian, Odella Wilson, told him about a videotape showing a blood trail outside of the apartments at Peach Place down the center steps. It contradicted the state’s theory that the blood trail led down an outside stairway.

But the lawyers never watched the tape, Stewart wrote.

Wilson also testified that she gave Cohen a knife, a pair of socks discovered in a burn pile, bloody underwear and blood-stained shoes.

The clothing, which belonged to Randall, contradicted his testimony that he was only minimally involved in the killing and that he tossed the knives he and Ziegler used into a nearby catfish pond.

The attorneys had retained a DNA expert but did not submit the clothing or knives for analysis. In fact, Wilson testified, Yazdi told her that the jury would not care about the evidence and then proceeded to throw the materials in the garbage.

Yazdi adamantly said he never threw away materials and denied even being told about evidence cited in the judge’s ruling.

“These are a bunch of fabricated statements that the family of the defendant, Ziegler, fabricated,” he said in an interview with AL.com.

But Stewart said she found Wilson’s testimony credible because Cohen corroborated it and a memo that he wrote at the time documented the evidence that he had collected.

Holes in the state’s theory

If Hughes and Yazdi had done a more thorough investigation, Stewart wrote, they would have found a slew of other evidence to challenge the state’s theory of the crime.

Dr. Leroy Riddick, who was the chief medical examiner in the Mobile office of the Alabama Department of Forensic Sciences at the time, testified in 2010 that he concluded from the victim’s injuries that it was unlikely he was killed in the woods where he was found. What’s more, Riddick said, it is most likely that a right-handed person inflicted the fatal slashes to Baker’s neck; Ziegler is left-handed.

Riddick also disputed the state’s theory of the time of Baker’s death, around midnight on Feb. 19, 2000. The medical examiner said based on testimony that Baker had been drinking earlier that night, he should have had alcohol in his system when died. He did not, indicating that he died at a later time than the state contended.

Riddick testified that he freely would have told all of this to the defense lawyers had they asked. But he said his only contact with the defense team was a brief conversation with Hughes, who did not ask any of those questions.

According to testimony at the 2010 hearing, law enforcement officials who went to the wooded spot where Baker’s body was found all agreed that it had been dumped there. That included then-Mobile County District Attorney John Tyson Jr., then-Sheriff Jack Tillman and his chief deputy, James Mayo, as well as the investigators on the case.

Having never discovered these critical points, the judge wrote, the defense lawyers had no ability to conduct an effective cross-examination of Riddick when he testified at the trial.

Hughes and Yazdi also failed to follow up on other leads that Cohen turned up, Stewart wrote. She noted that the investigator spoke with Greg Willis, who owned a car lot where co-defendant James Gordon Bennett II bought a 1988 Honda Prelude that law enforcement authorities at one time believed may have been involved in the crime. Cohen reported that Willis told him he had found an evidence bag in the back of the vehicle after he had repossessed it.

Cohen testified that he told the lawyers that he felt Willis was holding something back, but the lawyers never followed up on it. Willis testified in 2010 that the bag contained a bloody sweatshirt and that the back of the car was full of blood.

Hughes said he recalls that the investigator reported that Willis had found an empty bag. He said he does not remember any mention of a bloody mess in the car.

Yazdi took exception to the judge’s characterization of his performance. He said he and Hughes visited the wooded area where the body was found and hired the investigator to probe the state’s evidence.

He said the case presented to him and his co-counsel was damning: The victim’s body was discovered a few hundred feet from Ziegler’s home. Witnesses from the neighborhood testified that Ziegler and Randall were walking him to the area. The victim was the ex-boyfriend of the mother of Ziegler’s child.

Three co-defendants fingered Ziegler as the killer, Yazdi recalled, and the defendant had made several incriminating statements to detectives investigating the case. He said he did not have access to much of the information contained in Stewart’s ruling, adding that he doubts a lot of it is true.

“Many of the facts that (the judge) relies upon, they did not exist at the time, and we were not told about them at the time,” he said. “A lot of them are fabricated.”

But Stewart wrote that attorneys in capital murder cases have a duty to believe their client’s innocence – even when he has confessed. They also have a duty to conduct a thorough investigation to challenge the state’s theory. Yazdi and Hughes fell well short of that standard, the judge wrote.

Prosecutorial misconduct cited

While faulting the performance of Ziegler’s lawyers, Stewart wrote in her order that prosecutors and law enforcement investigators undermined their ability to mount a vigorous defense by failing to turn over key evidence.

It began, the judge wrote, with the failure of Detective Dale Kohn to step aside from the probe when he found out that his niece, Dawn Kohn, may have been involved. Investigators steered away from evidence that could have implicated her, according to the judge.

Dawn Kohn was at Ziegler’s apartment on the night Baker died. Wilson, Ziegler’s aunt and legal guardian, testified that she found a letter Kohn had written to Bennett discussing the victim’s death before law enforcement authorities discovered the body.

Kohn made two statements to investigators. The first, which she hand-wrote at her high school, implicated Bennett but indicated that Ziegler was not involved. She later changed her story after coming to the Sheriff’s Office, according to Stewart.

Stewart wrote that Dale Kohn’s involvement in the investigation was a conflict of interest given his niece’s status as a potential witness. She also wrote that fellow Detective Donald Lunceford attempted to obscure Detective Kohn’s involvement, testifying during a preliminary hearing and again at the trial that he was the only law enforcement officer present during unrecorded questioning of the defendant. This was untrue, the judge wrote.

Stewart also found that Lunceford testified falsely when he said he was in the woods shortly after Baker’s body was discovered. That was not true, either, the judge noted.

Stewart also determined that prosecutors allowed testimony that they knew or should have known was false. During the trial, a Bayou La Batre woman testified that Baker, Ziegler and others were at her house in Bayou La Batre the night before the murder and that Ziegler threatened Baker.

Vicki Bosarge’s testimony that Ziegler told Baker he was a “walking dead man” was important because it supported motive in a case that largely was circumstantial.

But Bosarge recanted that testimony at the 2010 hearing, telling the judge that Ziegler was not the man who made the threats. That person, she said, was a light-skinned, dark-haired man.

“I’m so sorry,” Bosarge said at the 2010 hearing, sobbing an apology as Ziegler sat across from her in the court. “I am so deeply sorry because it wasn’t him.”

Bosarge testified that she was confused when talking to investigators because both Ziegler and Randall are named William.

She said she felt badly about her testimony as soon as she gave it and told a police officer about it when she got off the witness stand. She testified that the officer – she did not remember his name – told her she had done the right thing.

Stewart wrote that she found Bosarge’s testimony credible because two other people who were present that night – her son, Ricky Melton, and a woman named Margaret Roberson — corroborated it.

The judge made no determination about whether prosecutors intentionally withheld evidence favorable to the defense, but she wrote that does not matter. As Nagin, the defendant’s current lawyer said: “As a legal matter, it’s irrelevant. We have never sought to deal with the question of motive.”

Tillman, the prosecutor who tried the case, said nobody at the District Attorney’s Office withheld evidence or allowed false testimony

“I know that our office did not do anything improper, and I did not do anything improper,” she said.

Victim in co-defendant’s car?

Stewart pointed to testimony indicating that the Sheriff’s Office had evidence well before the trial that supported the theory that Bennett killed Baker far from the wooded spot in west Mobile – evidence that should have been given to Ziegler’s lawyers.

The Sheriff’s Office had obtained a warrant to search Bennett’s Honda for evidence that the vehicle was used as a means of committing the murder. The affidavit in support of that warrant has been lost, but Stewart noted that investigators would have needed to show they had probable cause.

And testimony at the 2010 hearing backed up the notion that the Honda played a role in Baker’s death. Then-Bayou La Batre police Chief John Joyner testified that his department received a radio alert from the Sheriff’s Office to be on the lookout for Bennett’s Honda and to check to see if Baker was inside.

Joyner testified that records of the radio call were destroyed by Hurricane Katrina in 2005. But the judge wrote that Joyner’s testimony indicates that it existed and that prosecutors had a duty to alert the defense attorneys to any possible evidence that might help their client.

The judge also pointed to testimony that the attorney for co-defendant Patricia Renee Davis sent the prosecutor a fax before Ziegler’s trial indicating that her client remembered hearing about a bag of clothes in the car.

Melton testified about a conversation with Bennett’s wife, Rose Johnson, in which she said Bennett had brought Baker back to Bayou La Batre in the trunk of his car and was seen cleaning out the trunk with chemicals.

Faulty appeal, dishonest jurors

According to Stewart’s ruling, Ziegler’s appellate lawyer also failed him.

The judge wrote that attorney Arthur Madden failed to raise several important points in his appeal – including a matter that Ziegler had specifically asked him to pursue. The defendant wanted to appeal on grounds that a lawyer who represented co-defendant Davis also represented him at a probation revocation hearing.

Madden, who declined to comment for this story, did not raise the objection in the appeal.

Stewart cited several other points that Madden should have raised in the appeal, including:

  • the fact that the trial judge, Robert Kendall, allowed improper victim impact testimony.
  • the allegations of prosecutorial misconduct.
  • The fact that defense lawyers failed to object to the racial makeup of the jury.

Even the jurors did not escape the judge’s criticism. Several lied during jury selection, she found.

One juror indicated that she “probably” had discussed the death penalty in the past. In fact, Stewart wrote, that juror served on a jury in a capital murder case in 1994, making her assertion that she “probably” had discussed the death penalty misleading.

Another juror answered “no” on a questionnaire asking if she or a member of her family ever had been a victim of a crime. The juror acknowledged at the 2010 hearing, though, that both her brother-in-law and cousin had been murdered prior to Ziegler’s trial.

Hughes testified that he would have struck both women from the jury had he known the truth.

If Stewart’s ruling survives appeal, prosecutors said, they will put Ziegler on trial again. But Tillman, the assistant district attorney, acknowledged that prosecuting an old case will be challenging.

“The case was tried 12 years ago,” she said. “It puts us in a difficult position.”

Nagin, the current defense lawyer, said the state’s problem in not the passage of time but the evidence, itself.

“Witness after witness, including the state’s own forensic expert, contradicted the theory of that case, contradicted the evidence,” he said. “It was never right, and it’s not going to be right 10 years later.”

How the system failed William Ziegler: Perjured testimony, trashed evidence, lying jurors

Unbelievable – Texas Leads U.S. in Executions, Payments to Exonerated Inmates

By Tim Stelloh – Jan 31, 2013 4:00 PM CT

In 2006, after serving 19 years and 11 months in a Texas prison for a rape he didn’t commit, Billy Smith was exonerated of all charges and set free. He was 54. Despite clearing his name, he’s never been able to find a job.

“Who wants to hire someone who’s 61 years old and who’s an ex-convict?” Smith said. “Even though I’m exonerated, people don’t consider that, because I was in prison for 20 years.”

Texas is well known for its prodigious use of the death penalty: On Halloween, it carried out its 250th execution under Republican Governor Rick Perry’s 12-year tenure. It’s also the most generous state in the nation when it comes to showing remorse for locking up the wrong man, Bloomberg Businessweek reports in its Feb. 4 issue. Under a law Perry signed in 2009, Texas will pay Smith about $80,000 a year for the rest of his life. He’s also eligible for the same health-care insurance as employees of the Texas Department of Criminal Justice. Money can’t replace his lost years, Smith says, but he’s now married and owns a home. The activists who persuaded Perry to support the cash settlements are lobbying Texas lawmakers to expand the law to include health coverage for ex-prisoners’ families.

Twenty-seven states and Washington, D.C., provide some form of compensation to the wrongfully convicted. Vermont gives them a one-time payment of between $30,000 and $60,000 for each year they were locked up. Wisconsin pays $25,000 total, regardless of how long a person was incarcerated. So far Texas has paid 88 former prisoners, including two released from death row, a total of nearly $60 million, according to R.J. DeSilva, spokesman for the Texas Comptroller of Public Accounts. A dozen former inmates were added to the rolls in 2012.

Wrongly Convicted

Perry endorsed the reparations under pressure from falsely convicted men and their families. In 1986, Timothy Cole, an Army veteran, was found guilty of raping a classmate at Texas Tech University. He died of a heart attack in prison in 1999. On Mother’s Day nine years later, Cole’s mother, Ruby Cole Session, received a letter from the real rapist, who confessed. As Cole Session and her family lobbied the governor to clear Timothy Cole’s name, several other men who’d been wrongfully convicted in Dallas, including Smith, were suing the city for tens of millions of dollars.

Freedom Money

They agreed to drop their lawsuits if the legislature increased the small payments that Texas then provided. At one meeting, Cole Session grabbed the governor’s hand and said, “I need this bill passed for these gentlemen,” recalls her son, Cory Session, who was there. Session says Perry told his mother, “If it gets to my desk, I’ll sign it.” (A Perry spokesman could not confirm the anecdote.) Perry called the Tim Cole Act a “significant step for justice,” and the men withdrew their lawsuits.

The law provides exonerees with a lump sum based on how many years they spent behind bars, plus the $80,000 annuity. The state also agreed to pay for 120 hours of college credit and $10,000 for job training. Cory Session, who’s now policy director of the Innocence Project of Texas, which helps identify and free falsely convicted prisoners, says even the application process was made simple: Freed prisoners submit a few documents, and about six to eight weeks later the first check arrives. “In most states,” he says, “you need a lawyer.”

Prison State

The Innocence Project, which is funded by private donations and is currently reviewing 14 more claims of false conviction, has become a savvy lobbying force in Austin, in part because Texas courts have locked up so many innocent people and their stories are hard for politicians to ignore. (Texas ranks No. 3 nationally in wrongful convictions over the last 24 years, behind Illinois and New York, according to a 2012 study by the University of Michigan and Northwestern University law schools.)

On Jan. 10, Session led a group of exonerated men to the Capitol in Austin, where they were greeted warmly. Afterward, they pressed a list of new demands in meetings with lawmakers. The legislature is now considering at least six of their proposals, including a change to the state’s habeas corpus rules that would allow challenges to convictions based on shoddy science; a requirement that police record all interrogations of people charged with serious felonies; and funding to help the state’s four public law schools investigate claims of false convictions.

The key to winning over legislators, Session says, is letting the innocent men who lost years in prison do the talking. “I was able to get all the attention just on them.”

To contact the editor responsible for this story: Josh Tyrangiel at jtyrangiel@bloomberg.net

Texas Leads U.S. in Executions, Payments to Exonerated Inmates