Prosecuting innocence: Louis C. Taylor is about to be freed!

Believe it or not, all sorts of innocent people end up in prison and on death row - especially in this state, it seems.  I heard from Arizona prisoner Eddie Sanders not long ago; he's doing life for the rape and murder of an elderly woman in Tucson at a time when there was a rash of such assaults, and can't seem to get anyone to listen to his defense, which he has tried to wage himself - check out his heartbreaking plea below. I think he was an easy  homeless suspect with a checkered past when he was arrested and prosecuted...his case was in Pima County, too, like Louis Taylor's was.

I am not at all impressed with Barbara LaWall, frankly. Look at this, for example.

I don't know how to begin to help this guy - the AZ Justice Project apparently hasn't decided to pick up his case; I think he applied for their help. If you have any ideas or wish to spend some time helping Eddie get a reasonably fair shake, please drop Peggy Plews a note at arizonaprisonwatch@gmail.com...

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

----now for the POST at HAND: Louis Taylor is about to be freed under a new plea agreement---

 louis c. taylor

This guy was only sixteen when we locked him away for 28 life sentences 40 years ago - he's just now getting his day in court. This kind of thing happens far too often - thank God for the Arizona Justice Project, as well as the Arizona Daily Star for paying attention. We wouldn't need them so badly if our cops and prosecutors were more interested in justice and public safety than in convictions and private prisons in this state, and if they took responsibility for their mistakes a little more often...

--------------------from CBS NEWS 60 minutes-----------

 Historical photographs provided by Arizona Historical Society

 via CBS News 60 Minutes

Arizona's Pioneer Hotel fire re-examined

CBS NEWS 60 minutes
 March 31, 2013 7:45 PM

Watch the Segment »

Steve Kroft revisits the case of Louis Taylor, who may have been falsely accused and imprisoned for decades for setting a hotel fire in Tucson that killed 28.

Web Extras

• Arizona's Pioneer Hotel fire re-examined
• Attorney: Pioneer Hotel was a "fire trap"
• Arson or accidental fire: How can you tell?

The following script is from "The Pioneer Hotel Fire" which aired on March 31, 2013. Steve Kroft is the correspondent. James Jacoby and Michael Karzis, producers.

60 Minutes Web Extra

Arson or accidental fire: How can you tell? »

The week before Christmas, back in 1970, an historic fire swept through an Arizona landmark, the Pioneer Hotel in downtown Tucson. Twenty-eight people were killed that night, some of whom were forced to jump to their deaths to avoid being burned alive in their rooms. It was front page news all over the country, and the following morning, a 16-year-old boy named Louis Taylor was charged with setting the fire and later convicted of 28 counts of murder.

The evidence was weak, and even the trial judge later admitted he would not have voted to convict. We first looked into the case back in 2002, along with Court TV, and found evidence that the 16-year-old had been railroaded; a convenient suspect for police and prosecutors eager to resolve the city's worst disaster. Taylor is still serving his life sentence, but new developments in fire science and new testimony from a key witness, may now change that and shed new light on a tragedy that's haunted Tucson for nearly 42 years.

Today, the Pioneer is a non-descript office building near the center of town. But behind the precast concrete slabs, you can still see the bones of the old hotel, built when Tucson was still a frontier outpost, and on December 19th 1970, it was still the heart of the city.

[Unidentified Man #1: Somebody's yelling, "Fire," over near the Pioneer Hotel.

Unidentified Man #2: Engine 1, 2, 3, Pioneer Hotel. Fire reported.]

When the first alarm sounded the hotel was packed with Christmas revelers. No one had noticed smoke on the upper floors. And by the time firemen arrived, it was already too late.

The Pioneer was a death trap: no sprinkler system, fire exits padlocked shut for security reasons, and the tallest ladder the fire department had reached only between the fourth and fifth floors.

Trapped hotel guests could be seen at the windows and on ledges. Some people tied sheets together and climbed to safety; others tossed mattresses out the window and died trying to land on them. As rescue teams fought their way up the stairwells, they encountered 16-year-old Louis Taylor on the third floor landing. Police officer Bill Briamonte put the boy to work.

Bill Briamonte: I said, "Come with me. There's a fire in this building. Start banging on doors," and I sent him to the left, and I went to the right.

To many fireman, Louis Taylor was a hero that night. But the police weren't looking for a hero. While the fire was still smoldering, and before the fire department even had time to begin an investigation into the cause, the police department decided it had the answer: Louis Taylor. One officer who had been with the boy during the fire, went up to thank him a few hours later at police headquarters only to be told to stay away - that Taylor had set the fire. The officer, Klaus Bergman, said he was dumbfounded.

Klaus Bergman: I don't know how in God's name somebody could declare a fire to be an arson, and arrest and book somebody for setting the fire before the fire is out.


Louis Taylor had voluntarily gone to police headquarters as a witness, but after an all-night interrogation by eight different police officers without a lawyer or a guardian present, Taylor had gone from cooperative witness to prime suspect.

David Smith: My conclusion was that Louis Taylor was evasive, and that he was involved in the incident.

Juvenile Detective David Smith was the last police officer to interrogate Louis Taylor. He said the boy was seen near the place where the fire started, had five partial packs of matches on him, and was unable to give a legitimate reason for being in the hotel. We interviewed Detective Smith back in 2002.

David Smith: I asked him, "Louis, did you set this fire?" And he said, "No, I didn't want to kill those people." Immediately there was a look of-- one of those looks of "I wished I hadn't have said that," or "I didn't mean to say that."


Steve Kroft: That doesn't sound like an admission.

David Smith: It certainly isn't a confession.

Smith says Taylor told him something else that would provide the prosecution with a motive for Taylor setting the fire.

David Smith: He said, "You know when you go into a hotel, and you take change of your pockets and your wallet, and you lay it on the dresser?" And he said, "That's why they set the fire, so that they could steal from the rooms when people would panic and run."

Steve Kroft: Did you know that Sergeant Gastaway, one of the officers who had questioned Louis Taylor before you, reported that at about 4:15, he went in and told Louis, "You set that fire so you could rob some of the guest rooms, didn't you?"

David Smith: No.

Steve Kroft: You didn't know that?

David Smith: No.

Steve Kroft: So you don't know if that's the first time that Louis Taylor ever heard that theory?

David Smith: No, I--I--I don't.

Not one word of Louis Taylor's interrogation was recorded, and if police officers took notes, they were never produced. Yet based on his inconsistent statements and circumstantial evidence -- and the since discredited testimony of two jailhouse snitches -- Taylor was charged with 28 counts of murder and convicted by an all-white jury, sentenced to life in prison. And that is where we found him a decade ago when we first began looking into this case with Court TV. He was 47 years old.

[Unidentified voice: Did you set that fire that night Louis?

Louis Taylor: No I did not. The evidence was so, you know, so frivolous that I thought for a while that maybe, you know, they'd maybe find me not guilty. But unfortunately I fell into the cracks.]

In a brief phone conversation, Taylor said he'd gone to the hotel hoping to hustle food and free drinks.
His mistake, he said, was trusting the police.

Louis Taylor: I guess they just--they had me, and they said, "Well, you know, just we'll try to get a conviction." So they did.

At the time we reported that important information that might have helped Louis Taylor was never heard by a jury and never investigated by the police: like this letter from the assistant fire chief, which acknowledged a number of suspicious fires at the Pioneer Hotel in the months leading up to the tragedy, along with the description of a suspect that did not match Louis Taylor. Detective Smith said he didn't know anything about it.

Steve Kroft: But you didn't turn up in your investigation the fact that there had been previous fires at this hotel?

David Smith: No.

Steve Kroft: And the fact that they had a description of somebody who had been setting these fires?

David Smith: No. I can guarantee you that if I knew that, then that's something I would have followed up on.

The description was much closer to a serial arsonist named Donald Anthony, who left the state the day after the Pioneer fire and was never questioned.


Steve Kroft: Did it ever dawn on you that perhaps that Mr. Anthony might have something to do with the Pioneer fire?

David: Don wasn't a suspect in the Pioneer. The fact is, that there was never any information of any type that was received indicating that anybody else but Louis Taylor was there acting suspiciously.


When our first story about Louis Taylor aired back in 2002, it attracted the attention of the Arizona Justice Project, a nonprofit legal organization that helps people it believes have been wrongfully convicted. The group took on the case and after a decade of work it has discovered some striking new evidence that could get Louis Taylor out of prison.

Steve Kroft: Do you think Louis Taylor set the Pioneer Hotel fire?

Ed Novak: No, I don't.

Steve Kroft: You think he was railroaded?

Ed Novak: Yes.

Edward Novak, a prominent Arizona attorney, is now leading Louis Taylor's defense team which is made up of volunteer lawyers, students and law professors from the Arizona Justice Project. They've dug into old court records and revisited the testimony of key witnesses like Cy Holmes, the original fire investigator, who testified that the fire had been intentionally set.

Steve Kroft: How important was that testimony at the trial?

Ed Novak: Critical, absolutely critical.

[Bailiff in Holmes deposition: Do you swear or affirm to speak the truth, the whole truth, and nothing but the truth?

Cy Holmes: I do.

Bailiff in Holmes deposition: Thank you.]

Just five months ago, Novak conducted a sworn court deposition of Holmes and got him to reveal some startling new information. For the first time, Holmes said that he did a quick-walk through of the hotel 10 days after the blaze, then told the city council that he'd already reached some preliminary conclusions about the type of person who set the place on fire.

[Cy Holmes (Deposition): I had indicated that I felt that the culprit was probably black and that he was probably 18. ]

Steve Kroft: What was your reaction when he gave this testimony?

Ed Novak: I was trying to maintain my composure so that Holmes wouldn't know that he'd said something that really startled me.

Steve Kroft: How did he determine that it was a young man of color?

Ed Novak: I asked him that.

[Cy Holmes: Blacks at that point, their background was the use of fire for beneficial purposes. In other words, they were used to clearing lands and doing cleanup work and things like that and fire was a tool. So it was just a tool for them. In other words, you're comfortable with it. And if they get mad at somebody, the first thing they do is use something they're comfortable with. Fire was one of them.]

That new deposition has destroyed the credibility of a key witness against Louis Taylor. And, in fact, the very idea that the Pioneer Hotel Fire was even an arson is now under serious challenge, because the science of fire investigation has changed dramatically over the past 40 years. The Arizona Justice Project put together a panel of the country's top five fire experts and had them evaluate the evidence and the testimony in the Pioneer case records, using today's science.

John Lentini was one of them. He has conducted more than 2,000 fire investigations and has been at the center of the most important developments in fire investigations over the past 30 years. He took this case on for free.


Steve Kroft: What was the state of fire science 40 years ago?

John Lentini: Terrible. Particularly when it-- as it related to fire investigation.

Steve Kroft: What was your reaction when you looked at all the material?

John Lentini: Just another false accusation of arson. It's a shame. It has been very common for people to start with the proposition that the fire's set and if they can't find an innocent cause for it then they say, well, somebody must have set it. That presumes that we're good enough fire investigators to find the cause of every fire and that's simply not true.

Steve Kroft: What caused the Pioneer fire?

John Lentini: Undetermined.

Steve Kroft: Undetermined.

John Lentini: Undetermined. Could have been a cigarette. It could have been an overhead light.

Steve Kroft: Did you find any evidence of arson?

John Lentini: No.

Ed Novak: You can't have a murder conviction based on arson if there was no arson. Take away the arson, there's no murder.

Based on the new evidence and testimony, Ed Novak and the Arizona Justice Project petitioned the county prosecutor and the court to vacate Louis Taylor's murder conviction, release him from prison, and conduct a new trial.

The current prosecutor, Barbara LaWall, then commissioned the Tucson Fire Department to do its own reinvestigation of the Pioneer fire using the latest science. It, too, concluded that the cause of the fire should now be ruled undetermined.

Steve Kroft: So the report that she requested--

Ed Novak: Didn't back her up.

Steve Kroft: Not only didn't back her up, it solidified the defense's case?

Ed Novak: Yes.

Yet in spite of the fire department's report and the embarrassing testimony of the original fire investigator, the county prosecutor is holding her ground. She offered to release Louis Taylor from prison, but only if he would plead no contest to arson and murder charges.

Steve Kroft: Not much of a deal?

Ed Novak: It's not a deal. It stinks.

Steve Kroft: All to protect a conviction?

Ed Novak: Yes, exactly. I'm not sure I can do it.

Steve Kroft; What do you mean you're not sure you can do it?

Ed Novak: I'm not sure I can stand in the courtroom and let a prosecutor tell a judge that there's sufficient evidence for a judge to accept a plea of no contest when I don't think a crime occurred.
We asked an interview with County Prosecutor Barbara LaWall, but her office declined our request. So we decided to approach her on the street.

Steve Kroft: Ms. LaWall? Steve Kroft from "60 Minutes."

Barbara LaWall: How do you do Steve?

Steve Kroft: How you doing? I just have a couple of questions to ask you about the Louis Taylor case. What about this report from the Fire Department that you requested...


Barbara LaWall: Well you know --

Steve Kroft: That came back and said that there's no evidence that this fire was intentionally set?
 
Barbara LaWall: I don't believe that that's exactly what the report said --

Steve Kroft: No conclusive evidence.

Barbara LaWall: But they said it was undetermined, but you know, we have a hearing, this is a pending prosecution. And it's not the practice of this office to speak about pending prosecutions

Steve Kroft: But you've got somebody who's in prison for arson and murder and now it's not clear whether it was even an arson.

Barbara LaWall: Well nobody can say for sure whether it was or whether it wasn't.

Steve Kroft: The law says that if you're going to convict somebody of arson you have to have conclusive proof that it was in fact arson.

Barbara LaWall: Steve! We did, 42 years ago! 42 years ago, 12 members of this community made that determination. That's not what this legal issue is about right now.

We also asked the prosecutor about the controversial racial views of fire investigator Cy Holmes.

Steve Kroft: What about Cy Holmes? I've seen that deposition.

Barbara LaWall: Cy Holmes can make a determination as to whether or not it's arson or not arson.

Steve Kroft: He said some pretty embarrassing things.

Barbara LaWall: Yes, he did.

Ms. LaWall says the fate of Louis Taylor should be decided by the court. And she says just because the latest fire science finds the cause of the Pioneer fire to be undetermined, doesn't rule out the possibility of arson.

Ed Novak: And the last time I checked we don't convict people on a possibility. We convict people on proof beyond a reasonable doubt -- which you would never get in a retrial of this case.

It's now almost certain that the retrial will never happen. Louis Taylor, who is now 58 and has spent more than two-thirds of his life in prison, decided this past week to accept the prosecutor's deal.


On Tuesday, he is expected to plead no-contest to the charges in exchange for his freedom. Taylor told his lawyers that after maintaining his principles for 42 years, he is tired, uncertain of the appeal process, and wants to begin living the rest of his life as a free man. He still maintains his innocence.

AZ prosecutors fight proposed ethical rules to protect the innocent...

It's frightening how protected some agents of the court are from taking reponsibility for correcting wrongful convictions - they aren't even necessarily being blamed for misconduct.  Prosecutors act like they are infallible and never need to take responsibility for their mistakes, while holding all the rest of us accountable for ours. Their resistance to being held to a higher standard than currently exists is the very reason we need these proposed rules to go into effect.

Arizona's prosecutors seem especially shameless. Instead of fighting these new rules they should be leading the way to building a more just system. I'm especially disappointed with Maricopa County attorney Bill Montgomery's response, but not surprised. He's refused to take action in the wrongful conviction of Courtney Bisbee: one of her accusers recanted several years ago, and has been fighting to get her case re-heard, but Montgomery won't even talk to the kid, who authored this petition.

Courtney's judge, Warren Granville, and Bill Montgomery both have the power to have her case re-opened tomorrow, if they wanted - they just refuse to exercise it because they don't want to admit liability for her wrongful conviction and prolonged imprisonment in the first place - she was convicted in a trial by judge, not jury. Prosecutors should not be allowed to represent counties in civil action because of the conflict of interest it creates, undermining the primary duty of the prosecutor being to the People, as evidenced here. If Montgomery's most pressing sense of duty was to justice for the People, Courtney's case would have had a new hearing by now.

Meanwhile, Courtney- whose family was financially ruined by her trial and who now has to represent herself - has been spending the past six or seven years in prison going through the appeals process trying to exercise her rights - the appeals process is cumbersome and time-consuming and often doesn't work to trigger new trials because of "technicalities", people - a trial can conform perfectly and still result in convicting an innocent person if all evidence wasn't available at the time, for example, as opposed to the evidence being withheld. In Courtney's case, the recantation of a chief accuser and witness hasn't guaranteed her a new trial. 

 Courtney Bisbee and daughter 

Taylor Lee

The damage by wrongful convictions isn't just to the life of the accused -  Courtney's whole family has been devastated, and her daughter is growing up without her. Criminal prosecution destroys lives and those people should get it right the first time, and should be mandated to fix things when exculpatory evidence presents itself - clearly what's in place now isn't working. Maybe these rules will compel prosecutors to be a little less reckless convicting people in the first place, too. Members of the public should read the petition Courtney's accuser wrote about her conviction, and write to the Arizona Supreme Court and tell them to support the proposed rule changes.

Here's their web comment form:

AZ Supreme Court: Contact us

Here's the postal address:

Chief Justice Rebecca White Berch 

Arizona Supreme Court

1501 W. Washington St

Phoenix, AZ 85007

 
excellent coverage here by Gary Grado the AZ Capitol Times, by the way...

----------------from the AZ Capitol Times------------------------

Proposed ethical rules would require prosecutors to disclose evidence even after convictions

By Gary Grado - gary.grado@azcapitoltimes.com 

Published: December 17, 2012 

 

 

Henry Hall was on death row when police found the remains of Ted Lindberry in the desert west of Phoenix in March 2001.

A jailhouse snitch had testified that Hall bragged he beat Lindberry to death, breaking his wrist and smashing his skull. But an autopsy of the skeletal remains found no broken bones. And worse yet, prosecutors didn’t inform Hall’s defense attorney about the discovery until a year later, after the remains had been cremated.

A bevy of defense attorneys led by Larry Hammond, who heads the Arizona Justice Project, are citing troubling cases like Hall’s and wrongful convictions throughout the country as reasons for proposing new ethical rules requiring prosecutors to turn over new evidence that might prove a defendant’s innocence after a conviction.

The Arizona Supreme Court, which sets the rules governing attorneys and court procedures, has drafted the proposed new rules and is seeking input from the legal community. If the rules are adopted, prosecutors could be disciplined by the State Bar of Arizona for violating them.

Under the proposal, a prosecutor would have to inform the court and the defendant if credible evidence surfaces that raises a reasonable likelihood the defendant didn’t commit the crime for which he was convicted.

Prosecutors oppose the change for several reasons, said Yavapai County Attorney Sheila Polk, chair of the Arizona Prosecuting Attorneys’ Advisory Council. She said there are already rules of professional conduct, or ethical rules, in place related to the concealment of evidence and administering justice. There is also case law that requires prosecutors to disclose evidence that clearly shows a defendant’s innocence after conviction.

Polk said defendants are also afforded the right to challenge their convictions and offer evidence of innocence or new evidence after trial in Superior Court.

The proposed rules also require a prosecutor to “undertake further investigation, or make reasonable efforts to cause an investigation” to see if the defendant was wrongfully convicted after coming across new information of possible innocence.

“I think that’s a fundamental misunderstanding of prosecutors,” Polk said. “Law enforcement investigates and they present to us cases to charge.”

Prosecutors don’t have the resources to conduct investigations and they would probably lose their immunity from lawsuits by venturing into investigations, Polk said.

She said rules of professional conduct apply to all attorneys across the board, but prosecutors will have the extra obligations.

“Why all of a sudden are prosecutors being singled out?” she asked.

Hammond said the proposed rules don’t impose a duty for prosecutors to personally investigate, only that the prosecutor would be required to ask local police to investigate.

“It amazes me this has been controversial at all,” said Hammond. “It is a hot-button issue for some prosecutors.”

Hammond said the American Bar Association’s board, which consists of 500 people, unanimously approved the proposed rules in 2009, and the National District Attorneys Association and prosecutors from around the country have supported them.

“Everybody thought it was a great thing to make clear that every public prosecutor has a duty to disclose newly discovered evidence when somebody is in prison,” Hammond said.

Hammond leads the Arizona Justice Project, a nonprofit organization that fights for prisoners it deems to have been wrongfully convicted or who have suffered clear and unmistakable injustice. The organization is involved in several cases disputing the science used to convict people in cases of shaken-baby syndrome and arson.

Siding with the defense attorneys are former Attorneys General Terry Goddard and Grant Woods and former Arizona Supreme Court Justices Stanley Feldman, Charles Jones and Thomas Zlaket. Mark Harrison, an attorney with expertise in attorney ethics, wrote a brief on their behalf in support of the new rule.

“Wrongful convictions unfortunately occur, and Arizona’s ethics rules currently provide very little guidance to prosecutors post- conviction,” Harrison wrote.

The language in the proposed Arizona rules is nearly identical to model rules, or guidelines, adopted by the American Bar Association in 2008. As of Sept. 26, eight states have adopted the ABA guideline or a modified version of it, while Michigan, Maryland and North Carolina, rejected them. Nine states are studying whether to implement the rules. The rest have done nothing.

The ABA guidelines grew out of a 2006 report of the Association of the Bar of the City of New York, which recommended the expanded ethical rules for prosecutors “[i]n light of the large number of cases in which convicted defendants have been exonerated, most often as a result of DNA testing but also as a result of other proof that they were wrongfully convicted.” The report stated that prosecutors should be obligated to give serious consideration and devote resources to credible claims of innocence after a conviction.

Maricopa County Attorney Bill Montgomery filed a written response with the Supreme Court opposing the rules, stating that Arizona is not facing a problem with wrongful convictions.

Montgomery pointed to the state’s poster-child of wrongful convictions, Ray Krone, to prove that prosecutors do the right thing when presented with new evidence. Krone was convicted of first-degree murder and sentenced to death for the 1991 murder of Phoenix bartender Kim Ancona. He was eventually exonerated in 2002 when DNA testing proved Kenneth Phillips, a convicted rapist, was the killer.

“Revised ethical rules are not necessary to further the goal of releasing inmates who are actually innocent,” Montgomery’s chief deputy, Mark Faull, wrote to the court.

Hammond has a different recollection of how prosecutors reacted to Krone, saying the Maricopa County Attorney’s Office fought efforts to have evidence tested for DNA. It took media attention and a DNA match to Phillips to get the state to pick up the pace in releasing Krone, Hammond said.

“If we didn’t have the good fortune of Phillips having the DNA in the database, they would have fought that too, but they don’t like to talk about that,” Hammond said.

Hammond pointed out one case in which a Tucson woman, Carolyn June Peak, was convicted of second-degree murder in the shooting death of her husband after the prosecutor withheld reams of material, some of which would have cleared her. Pima County prosecutors discovered the hidden evidence after the original prosecutor, David White, died of cancer. The case was eventually dismissed in 2003.

A group of defense attorneys on the State Bar of Arizona’s Criminal Practice and Procedure Committee also urged the Supreme Court to adopt the rules. They stated that in Hall’s case the prosecutor in 2001 wasn’t legally or ethically obligated to turn over the evidence of the remains while the case was pending appeal. The state was able to argue to the Arizona Supreme Court that the victim’s bones were broken, while not mentioning the discovery of the remains or the autopsy finding that no bones had been broken.

The court’s March 2003 decision in the case said Lindberry’s body has never been recovered.

Court records show Hall’s attorney, Thomas Gorman, was informed six months before the Oct. 31, 2002, oral arguments. Gorman said that didn’t necessarily matter because the body wasn’t part of the trial record and couldn’t be used as an issue on appeal.

Gorman said prosecutors still should have told him about it and not destroyed the remains, but instead he was left without an opportunity to have his own pathologist examine the body.

He said he believes the prosecutors in the case acted unethically even without the proposed new rule.

“They are required to act in the interest of justice,” Gorman said.

“They’re there not just to secure a conviction, they’re there to do justice.”

Gorman was able to convince the Supreme Court to reverse Hall’s murder conviction and order a new trial based on misconduct of a bailiff.

Hall’s new judge, Roland Steinle of Maricopa County Superior Court, ruled that the defense could tell Hall’s new jury how the state didn’t disclose the information on the remains. That wasn’t necessary because Hall pleaded no contest to second-degree murder on Jan. 31, 2011, and he was sentenced to 16 years in prison with 13 years credit. He is due to be released in October 2013.

 

Prosecuting Innocence: 8-15% of sex offenders wrongfully-convicted.

Those folks who know that I advocate for all prisoners, regardless of their convictions, occasionally ask me how I can stomach dealing with people who have perpetrated crimes against children. Apart from my belief that all prisoners should be treated according to basic standards protecting human rights, there's a body of research on wrongful convictions and sex offenses - here's a good, current study on the subject by the good people at the Urban Institute:

Post-Conviction DNA Testing and Wrongful Conviction

"This study analyzed the results of new DNA testing of old physical evidence from 634 sexual assault and homicide cases that took place in Virginia between 1973 and 1987 in the first study of the effects of DNA testing on wrongful conviction in a large and approximately random sample of serious crime convictions. The study found that in five percent of homicide and sexual assault cases DNA testing eliminated the convicted offender as the source of incriminating physical evidence. When sexual assault convictions were isolated, DNA testing eliminated between 8 and 15 percent of convicted offenders and supported exoneration. Past estimates generally put the rate of wrongful conviction at or less than three percent."

 Wrongfully-convicted Courtney Bisbee

 and daughter Taylor Lee...

That said, please hit this petition for the release of Courtney Bisbee. I have witnessed this woman's battle to maintain a relationship with her daughter from prison, and have no doubt that she's innocent. The petition was authored by one of her juvenile accusers, Nik Valles, now old enough to resist his mother's influences.

-------finally, this in today from the Arizona Justice Project at ASU-----

Drayton Witt: Case Dismissed With Prejudice 

The Arizona Justice Project has great news to share about a win in a shaken baby case. On Monday, October 29, the Arizona Superior Court dismissed the State's case against Drayton Witt with prejudice, meaning that the State may never again bring charges against him for the death of his son, Steven. Drayton was convicted back in 2002 of second-degree murder after being accused of shaking his nearly 5 month old baby to death.

Steven Witt was born a "blue baby" with the umbilical cord wrapped tightly around his neck, had aspirated meconium (fecal matter), and was in respiratory distress. Steven suffered medical problems almost every day of his short life and was in and out of doctors' offices and hospitals. After being prescribed medicine for flu-like symptoms (Cefzil), Steven began to suffer from seizures. After the first seizure, Steven was taken to the hospital and spent 6 days in care of doctors. On June 1, 2000, less than a month after his release from that hospital stay, Steven suffered a catastrophic seizure, which led to his death.

The State charged Drayton Witt with second degree murder. The State's witnesses relied on the SBS triad—subdural hematoma, retinal hemorrhages, and cerebral edema to conclude that the baby must have been shaken by his father, the only adult with him at the time of the ultimately fatal seizure. No cuts, no bruises, no grip marks, no fractures, no dislocations, nor spinal cord injuries—but the doctors at the Phoenix Children's Hospital in 2000 insisted that the "triad" of injuries meant an SBS homicide.

The Justice Project began working on this case in 2008 under the leadership of Carrie Sperling. Eight different experts in a variety of fields reviewed the case and provided sworn testimony in support of Mr. Witt.

Dr. A. Norman Guthkelch, famed British pediatric neurosurgeon who authored the seminal paper on SBS, acknowledged that aspects of SBS are now "open to serious doubt" and that a diagnosis of SBS as cause of death in Witt's case was "inappropriate."

Dr. Patrick Barnes, chief of pediatric neurology at Stanford, believed Steven Witt did not die of SBS but rather the medical records suggest a "classic picture of venous thrombosis" with no indicators of non-accidental trauma.

Dr. Horace Gardner (an ophthalmologist), Dr. John Lloyd (a biomechanics expert), Dr. Waney Squier (pediatric neuropathologist), and Drs. Karen Griest and John Plunkett (forensic pathologists), all found no evidence of the child being shaken to death, and—like Dr. Barnes—believed the child died of natural causes. The most likely cause was venous thrombosis, a condition the doctors at Phoenix Children's Hospital never even considered in 2000.

Perhaps most notably, the medical examiner at the time of Steven's autopsy in 2000, re-examined the case and swore an affidavit stating:

Based on my review of these materials from an expansive body of post-2000 SBS literature, as well as the significant developments in the medical and scientific community's understanding of SBS and several of the conditions that mimic its symptoms, I have determined that I cannot stand by my previous conclusion and trial testimony that Steven Witt's death was a homicide. Steven had a complicated medical history, including unexplained neurological problems. He had no outward signs of abuse. If I were to testify today, I would state that I believe Steven's death was likely the result of a natural disease process, not SBS. It is my hope that the court will see fit to revisit Drayton Witt's conviction.

In April 2012, the State elected not to oppose Witt's motion to vacate his original 2002 conviction after receiving his post-conviction petition seeking relief. However, the State continued to press its case against Witt, preparing for a new trial. Eventually, faced with a motion to exclude the scientific basis for the original conviction, the State moved to dismiss the charges against Mr. Witt. The Court heard the State's motion to dismiss this morning and took the additional step of ordering the dismissal with prejudice so that Mr. Witt will never have to face these unfounded charges again. After spending 12 years in prison for a crime that never occurred, Witt and his wife Maria can now get on with their lives.

A HUGE thank you to the phenomenal (pro bono) legal team—Carrie Sperling, Randy Papetti, Christina Rubalcava, Erin Ronstadt, Adam Adinolfi, and a handful of students from ASU's Sandra Day O'Connor College of Law who spent hundreds of hours working on this case. Finally, a very special thank you to our eight experts who spent hours reviewing the evidence and writing reports, all without any monetary compensation.

Prosecuting Innocence: Avenging shaken babies or breaking more hearts?

The assumption that criminals in prison get what's coming to them is deep, and I get flack for helping people convicted of crimes against children escape their due punishment - that being the "justice" doled out to them by other prisoners - by helping them get protective custody. First of all, most pedophiles are already in protective custody of some kind and don't need me to help them stay safe behind bars. Second of all, they were sentenced to prison, not perpetual rape, repeated beatings, or execution on the yards. 

There's a reason we don't have that kind of torture as part of our penalty system, though, even when it would seem most just to order it for a man who rapes an infant and leaves the child to die, for example. It's not only dehumanizes prisoners - the victims as well as their punishers - it dehumanizes the rest of us who condone it.

Furthermore, as suggested by this article below, the reality is that the public as well as other prisoners don't know what really happened in these people's lives based on the media reports or even a police report of their crimes. Just because someone has a conviction on paper and is doing time in prison, doesn't mean they're guilty of what the state says they did. Cops and judges and juries can be wrong - they make plenty of mistakes, in fact. National estimates on exonerations from death row suggest that as many as 10% of all serious convictions are wrongful. So when we condemn the "guilty bastards" to repeated brutality by justifying or ignoring prison violence as retribution for one's crimes or perceived crimes, we condemn the innocent to the same as well.

I'm impressed by the AZ Republic's reporting of late - what follows is a good article about a wrongful conviction that was overturned. I hope someday they take up the case of Courtney Bisbee, too...

Above: Wrongfully convicted Courtney Bisbee and her daughter, Taylor Lee.
Even though her prosecution was initiated under Andrew Thomas' office, the current Maricopa County Attorney, Bill Montgomery, refuses to hear new evidence in her case - the recanted testimony of a key witness, who is the brother of the "victim." 

Courtney is a little over half way through an 11-year prison term for a child molestation that never occurred. 

Support her quest for justice here:

Help Free an Innocent Woman.

------from the AZ Republic-----

New doubts in 'shaken baby' fatalities

Some in Arizona see convictions overturned

Richard Ruelas

Sept. 15, 2012 10:53 PM
The Republic | azcentral.com

Drayton Witt kept insisting he had nothing to do with the death of his 4-month-old baby. He said it the night he brought the near-comatose infant into the emergency room on June 1, 2000. He said it during his sentencing, following his conviction on murdering the boy by shaking him. And he was still proclaiming his innocence as he started serving his 20-year sentence in 2002.

His lamentations didn't gain legal and medical weight until 2012. The Arizona Justice Project, a volunteer group of attorneys, filed a motion to toss out his murder conviction based on the evolving science around what was known as shaken-baby syndrome. The state did not file an argument in response. Witt was released on May 31, becoming the second Arizonan in the last two years to see his guilty verdict in a shaken-baby case erased.

'Shaken baby' diagnosis disputed | More on child abuse


Among those who helped secure Witt's freedom was the 97-year-old British pediatric neurosurgeon who, in 1971, first identified the trio of telltale symptoms that became accepted as proof that a baby had been violently shaken. Attorneys also secured a sworn statement from the medical examiner who originally ruled the baby died from being shaken. His revised conclusion was that the baby died of a disease.

Fifteen months earlier, in February 2011, a Buckeye man named Armando Castillo, 42, had his conviction overturned in the 1998 death of a toddler. Like Witt, Castillo maintained his innocence throughout. And, like Witt, Castillo would be imprisoned a long time before attorneys found medical evidence to back up his story.

In both cases, judges ruled that a jury would likely acquit each man after hearing the new medical understanding of the evidence.

The overturned convictions didn't erase the charges, just sent the cases back for a possible retrial. Prosecutors decided to keep pursuing murder charges in both cases. Castillo pleaded guilty to a reduced charge to avoid the risk of a retrial. Witt's murder trial is scheduled for 2013.

Maricopa County Attorney Bill Montgomery said that his office still believes that Witt was responsible for the death of the 4-month-old baby boy. "Obviously, we believed it the first time around," Montgomery said.

He said prosecutors now focus more on proving that a child was injured, not necessarily that he was shaken. Montgomery said speculation that suspected abused children died from diseases was just defense-attorney theories.

"I think we're still looking at cases where children were injured," Montgomery said. "How we prove that may change."

That's because a growing body of medical and legal experts, nationally and internationally, are casting doubt on what became known as shaken-baby syndrome. Pediatric neurologists and forensic pathologists say the long-held triad of symptoms -- bleeding on the brain, swelling of the brain and bleeding in the eyes -- thought to indicate a baby was violently and intentionally shaken could also be caused by a host of diseases, including infections.

DePaul University law professor Deborah Tuerkheimer, who wrote a 2009 study on the use of shaken-baby syndrome in courtrooms, said the easily spotted symptoms became not only a medical diagnosis but also a legal tool adopted quickly and used convincingly in courtrooms nationwide.

Physicians would testify that a shaken child would become unresponsive or go limp almost immediately after the abuse. So the last adult with the child would be the primary suspect. And the shaken-baby diagnosis also provided a motive: a frustrated caregiver looking to quiet a crying child.

Some shaken-baby cases included other signs of violent abuse, such as broken bones, bruises or fractures. But others, like in Witt's case, had no outward signs of injuries. Cases were built solely on the symptoms of shaken-baby syndrome.

"(The syndrome) did all of the work," Tuerkheimer said. Jurors would hear the experts testify with certainty and couple that with an "inclination to want to convict and hold someone responsible for such an awful outcome," she said.

In the last half of the 1990s, the Maricopa County Attorney's Office handled shaken-baby cases at the rate of two a week. During one stretch, it had a conviction rate, in non-fatal cases, of 84 percent.
Tuerkheimer said many of the defendants were convicted in emotional trials, while others took plea deals because they saw little chance of winning. She said there's no way to know whether the Witt and Castillo cases are isolated wrongful convictions or signs of a systemic flaw that will produce hundreds of reversals.

"No one has any sense of the numbers here," Tuerkheimer said.

Witt knows he is No. 2, the second shaken-baby conviction in Arizona to be vacated. But he figures the pattern that police and prosecutors followed in his case was repeated many more times.
"The system is flawed," he said. "I'm sure there's a lot of people like that."

* * *

Maria Holt's baby son, Steven, was just shy of being 5 months old on June 1, 2000. Dressed in a blue and white onesie, he slept in his car seat as Witt dropped Holt off for her evening shift as a waitress at the Bill Johnson's Big Apple restaurant in north Phoenix.

Witt, then 18, and Holt, then 20, had been boyfriend and girlfriend since they'd met two years before, but Steven had been conceived with another man during a breakup. Regardless, Witt saw the baby as his son; he was in the delivery room when Steven was born, and the child carried his last name. It was routine for Witt to care for Steven when Holt was at work; she often called home between tables to check in.

During one call around 8 or 9 that night, Witt told Holt he thought Steven might have had another seizure. His eyes appeared odd, Witt said, and he was fussy. Holt said to come get her at the restaurant and they would take the baby to the emergency room.

Steven had been a sickly baby, in and out of the hospital three times during his short life, including a six-day stay at Phoenix Children's Hospital just a month earlier when doctors couldn't get a bead on what was causing the baby's vomiting and seizures.

On this night, the boy stopped breathing during the 6-mile drive from the restaurant to Paradise Valley Hospital. Witt pulled over and climbed into the back seat to perform CPR while Holt took the wheel. At the hospital, doctors worked to get Steven breathing again. Then the baby's heart stopped. It took them about 30 minutes to stabilize him, after which he was flown to Phoenix Children's Hospital.

A doctor at Paradise Valley Hospital, in a report, diagnosed the cardiac arrest and said the baby was suffering from dehydration and possibly sepsis, a severe reaction to bacteria. He also expressed concern about brain injury caused by dehydration, too much acid in the blood, and not enough oxygen. There was no mention of suspected abuse.

Witt and Holt left Paradise Valley Hospital to drive to Phoenix Children's. Expecting another long hospital stay, they stopped by their home to pick up extra clothes.

* * *

The idea that violent shaking of infants could cause brain injury was first proposed in a medical-journal article in 1971. Not only did it gain acceptance in the medical community over the next two decades, it also seeped into popular culture. Child-abuse prevention groups started awareness campaigns; the phrase "shaken-baby syndrome" entered the Random House dictionary in 1996.

By 2001, the American Academy of Pediatrics produced a position paper on shaken-baby syndrome, saying that doctors should presume abuse in any baby under a year old who had head injuries absent obvious trauma, such as a car accident. The paper, published in the journal Pediatrics, said the "constellation" of injuries in a shaken baby could not result from an accidental trip or fall.

The article also offered a psychological profile of adults who shake a child. "Such shaking often results from tension and frustration generated by a baby's crying or irritability," the journal article said, "yet crying is not a legal justification for such violence." It went on to warn that shaken babies were often misdiagnosed, meaning doctors needed to be extremely vigilant to spot them.

After Steven arrived at Phoenix Children's Hospital, a doctor who evaluated him wrote that the baby had no bruising or skull deformities, but showed some bleeding in the eyes. The doctor also noted that "the infant is flaccid. There is no response to pain."

At 3 a.m., a pediatrician wrote on a progress report that the baby's symptoms "raise the possibility of non-accidental trauma."

Medical records show doctors knew their infant patient had been at the hospital a month before for projectile vomiting and flulike symptoms. But by 7 a.m., doctors felt sure of what they were looking at.
"The findings are most consistent with shaken baby, plus or minus hypoxia injury," read a doctor's progress report on the case. Hypoxia refers to an injury caused by lack of oxygen.

Steven's condition did not improve. At noon, doctors declared him brain dead. One wrote the following: "Mom is currently hugging the patient and we are planning to withdraw support and allow him to progress to cardiac death later on this afternoon. The police have been notified of the findings."
Steven was pronounced dead at 3:30 p.m. on June 2.

* * *

In a case where shaken-baby syndrome seems a possibility, events quickly and simultaneously move along parallel tracks: doctors working to save a baby, police working to find a suspect.
But once doctors and police believe they are dealing with a shaken-baby case, they often ignore evidence that might suggest a different reason for a baby's illness, said Christina Rubalcava, an attorney with the Arizona Justice Project.

"You're already locked in to what it is," said Rubalcava, an attorney with Osborn Maledon who volunteered her time on the Witt case. She says that in general, once a doctor sees the triad of symptoms, a call to child-welfare agencies and police becomes automatic. The belief in shaken-baby syndrome "is like gospel to them," she said.

But Kathy Coffman, a pediatrician at Phoenix Children's Hospital who specializes in abuse cases, denied that doctors automatically diagnose shaking and ignore disease or infections or other causes. "We go through all the factors to make sure we're not missing something," Coffman said.

Coffman, a pediatrician for 20 years, was not at Phoenix Children's Hospital when Steven was treated and would not comment specifically on this case. She now is the medical director of a specialized unit at the hospital, made up of doctors and social workers, that handles suspected cases of abuse. "I don't think anybody who works in this field, law enforcement or anybody, is cavalier about making these calls," she said.

"The absolute last thing I want to do," she said, "is have someone go to prison for something they didn't do."

In the early morning hours of June 2, Phoenix police interviewed Witt and Holt as they sat in a room near their child. The questions seemed accusatory from the start, Witt said, and he ended the interview. A worker with the state's child-protection agency, in a report written later that morning, would say officers described Witt as "short-tempered and volatile."

After Steven died and Witt and Holt were leaving the hospital to go home, they found their car missing; police had seized it from the parking lot to search it for possible evidence. Friends drove them home, where they found two officers, armed with a warrant, who had been searching the trailer since 11:30 a.m. -- 4 hours before Steven died -- to find evidence to build a case.

"One thing after another," Holt said. "It's heartbreaking."

The police left at 9:30 p.m. They had pulled up carpet samples and took some baby items. The next day, officers knocked on the door and asked to take Witt in for questioning.

"Let's go," Witt said. "I ain't got nothing to hide."

Witt is a man of few words and didn't offer many to police. When detectives questioned him about what happened to the baby, Witt replied that he didn't know and that they should ask the doctors.

Witt was booked into jail on charges of first-degree murder and child abuse. He would remain jailed until his trial.

Holt said the arrest was devastating. "I lose my son, and then I lose the man who's done nothing but love me and love my son," she said. She had support from her extended family but felt some friends slip away. When she visited Witt in jail, which was often, she worked to buoy his spirits: "You'll be home soon," she would say. "This is just a misunderstanding. We know the truth."

Witt had a public defender who tried to get a plea deal, but Witt refused to take it. "When they arrested me, I figured somewhere down the line they'd come to their senses and figure out the right stuff," Witt said. "But clearly they didn't."

The trial started in February 2002.

"Steven Witt lived only five months," the prosecutor, Dyanne Greer, told the jury in her opening statement, according to a transcript. "He died as the result of violent, severe shaking. ... He died at the hands of a person who was supposed to be the caretaker ... and that man, ladies and gentlemen, is Drayton Witt."

Holt was called to the stand; she would be the first witness. It would be her job to tell the couple's story: how they "just clicked" when they first met through a friend; how Holt's extremely protective dog immediately warmed up to Witt; how, when she became pregnant by another man, Witt treated the child as if he were his own. She also told the jury about the baby's history of illnesses and hospitalizations, which included a respiratory infection, pneumonia, seizures and vomiting, and how the medicine he was given only seemed to make him worse.

After Holt, four doctors and the medical examiner took the stand. Each testified that Steven's injuries were most likely caused by shaking. To the jury, the evidence would have seemed strong and specific: The boy had certain injuries that, in the absence of major trauma, were possible only if he had been shaken violently. And the narrow, medically accepted time frame of the onset of the baby's symptoms pointed to Witt.

Witt, seated at the defense table, still held out hope. But his defense attorney called only one expert to cast doubt on whether the injuries were caused by shaking. Karen Griest, a forensic pediatric pathologist and former New Mexico coroner, said that "shaken-baby syndrome is sort of a hot topic of debate in the medical community. It's sort of an evolving process to figure out what is going on."

In closing arguments, the prosecutor painted a picture for the jury of Witt shaking the child.

"The defendant knowingly grabbed Steven, shook him so violently that he started to seize," Greer said. "Drayton had to know that Steven was being violently injured while he was shaking him to death, inches in front of his face," she said.

Jurors found Witt guilty of second-degree murder. When it came time for Witt's sentencing in April 2002, he told the judge that although he had been an unruly teenager, he had turned his life around with Holt and Steven. But he was not apologetic.

"I am not sorry, for I didn't do no wrong," Witt said, according to a transcript of the hearing. "I came up here to tell you how much my son meant to me."

The judge sentenced him to 20 years.

* * *

Though Witt asked for protective custody in prison, he said the request was denied, and he was put into the general inmate population. Three years into his sentence, he was attacked in the recreation yard by three men with improvised knives. Witt tucked himself into a ball and tried to cover his head, but said he was stabbed some 70 times before it was over. Ten of those wounds went through one or the other of his hands.

Witt was flown to a Flagstaff hospital, where doctors did surgery to repair his hands. Holt was at work when she got the call from Witt's parents telling her of the attack. When she saw him in his hospital bed, she knew they had to get married.

"Just wanting to make sure that he knew that I was there," she said. "And no matter what, he knew that if it came to 2020, I might be old and gray, but that I would be the one standing by that gate (waiting) for him to come home."

The wedding was in September 2006. The groom wore orange, his "carrot suit," as Witt called it. Prison rules dictate what a bride may wear: A wedding dress must have a neckline above the collarbone and sleeves that cover the arms. And no orange; that color is reserved for inmates. In the end, Holt just bought a dress she liked -- it was maroon -- and pulled a T-shirt over it during the ceremony to cover enough bare skin.

Tradition endures even in the strangest of settings. Witt said he paced in his cell nervously before the ceremony, held just before visiting hours. He would get to wear his wedding band in prison, but the bride had to provide prison officials proof of purchase. Guards did allow the groom to kiss the bride.
"It's emotional, no matter what," Holt said.

At the time of the wedding, all of Witt's appeals had been denied and exhausted. It appeared he would be in prison until 2020.

* * *

In 2009, Deborah Tuerkheimer published her paper, "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts" in the Washington University Law Review.

"In its classic formulation, SBS comes as close as one could imagine to a medical diagnosis of murder," Tuerkheimer wrote. "Prosecutors use it to prove the mechanism of death, the intent to harm, and the identity of the killer."

Also that year, the American Academy of Pediatrics revised its position paper on shaken-baby syndrome. It urged physicians to stop using that term and instead describe injuries as "abusive head trauma." The group said it urged adoption of the "less mechanistic term" to stop the focus on shaking. Instead, the journal said, doctors should look at a wider range of possible causes.

Witt's prison records show that he was a model inmate after his marriage. He had been moved into protective custody following his assault. While there, he met Armando Castillo, another man who had been convicted of shaking a child to death.

The Arizona Justice Project filed its motion in Castillo's case in April 2010; his conviction was vacated 10 months later. The project took up Drayton Witt's case in 2011, and the news was a blast of hope, Maria Witt said. "You get that light sparked back in your life."

Those working on Witt's case assembled a list of medical experts who reviewed Steven's autopsy photos and medical records. Most concluded that Steven's death was likely caused by a blockage in the vein that drained blood from his brain.

The attorneys also spotted a letter in the New York Times Magazine from Norman Guthkelch, the British pediatric neurosurgeon who first wrote about the symptoms that indicated a shaken baby. In the letter, a response to an article about the changing medical opinions about shaken-baby syndrome, Guthkelch defended his 1971 paper that concluded babies can get severe brain damage from shaking. The city under Guthkelch's name: Tucson.

The Project attorneys asked Guthkelch to look at the records in the case. He filed an affidavit in support of Witt, which marked his first legal involvement on behalf of a person trying to reverse a shaken-baby conviction.

"The death of Steven Witt is the type of case where a diagnosis of Shaken Baby Syndrome should not have been made," Guthkelch wrote. He said there were too many other possibilities that could explain the baby's death, and that while his process offers a possible explanation for some head injuries, any presumption that an injured child was shaken was a "distortion" of his theory.

Also key to the case was the affidavit of A.L. Mosley, the county medical examiner who performed the autopsy on Steven. Mosley was shown new analysis of his autopsy by doctors who spotted errors in his work. Most notably, doctors said, autopsy photos showed a blocked and swollen vein that was not noted in the report.

Mosley, in his affidavit, concluded that "if I were to testify today, I would state that I believe Steven's death was likely the result of a natural disease process, not (shaken-baby syndrome)."

Witt's attorneys filed the motion in February. The state did not file a response. The judge vacated Witt's conviction and ordered his release.

* * *

The newly cast scientific thought on shaken-baby syndrome is affecting other cases. A 2007 case against Lisa Randall, a day-care operator, originally filed as a death-penalty case, was tossed out before it reached trial. An expert hired by the prosecution in 2010 concluded that the child did not die from shaking as originally thought.

In 2009, prosecutors dropped murder charges against Craig Rettig in a shaken-baby case from 2004. The defendant's lawyer located experts who found that the baby died from striking his head on a coffee table, not from being shaken.

Also, in 2009, Keith Roberts asked that expert testimony about shaken-baby syndrome not be allowed in his trial on charges that he killed his infant son. The Maricopa County Attorney's Office argued that both sides should present their experts and leave it for the jury to decide. The judge agreed. Roberts took a plea offer the day before his trial was scheduled to begin. He was sentenced to eight years in prison.

Witt was released from custody wearing a jail-issued paper suit. He borrowed a cellphone from a passer-by to call his wife. It was 8 a.m. She had been told he wouldn't be released until noon. She broke speed-limit laws driving from the opposite end of town to get him.

Maria Witt said having her husband out of prison is validation.

"To finally have people believe in me," she said, "and be able to start the grieving process and what we missed out on, and be able to start on the life that we missed out on, is more precious than anything."
Drayton Witt, who is working on a construction crew, said he often feels like a modern-day Rip Van Winkle, awakening to find a world where so much is accomplished by cellular phone, or that there are self-checkout lanes at the grocery store.

Witt does not want to take a plea deal like his friend, Castillo, did. He hopes prosecutors drop the case before his trial next year.

He does not blame police or prosecutors for the decade he spent behind bars. He said officers and attorneys were just doing their job. And he always figured the truth would win out.

"You keep screaming," he said. "Eventually, someone will hear you."

Reach the reporter at richard.ruelas@arizonarepublic.com.

Old Code Lifers, Bill Macumber, and Sentencing Reform

Ever since learning about William Macumber, I've been wondering what else I can do to help. The Change.org petition seems to be going pretty well. I also made some postcards to send the Governor and the media (and to Bill) for his birthday (AUG 31 he'll be 75). Feel free to download, or get creative and make some of your own - you can still send them out after his birthday; I just thought the timing was good. Here's the photo and text I used:

State of Arizona Capitol, Executive Tower. Phoenix.
“Free William Macumber!”


August 28, 2010

Dear Governor Brewer:

William Macumber will be 75 on August 31. He is an innocent man, whose fate is in your hands. Please free him from prison and send him home to his family. It’s the right thing to do.

Thank you.

Sincerely,
Margaret Jean Plews

Arizona Prison Watch


I also found the the Freedom for Bill Macumber website - you folks really need to go there and read more on his case. There are a couple of different petitions there, one being for sentencing reform for Old Code Lifers. Check it out, sign their petitions, and send your "Free Bill Macumber" postcards and letters to the Governor, Rep. Cecil Ash (Chair of the House Study Committee on Sentencing); members of the AZ House and Senate Judiciary Committees, and your own legislators in Bill's support. Changing the Old Code Lifers law seems to be Bill's only shot at getting free, unless the Governor can be convinced to change her mind. The Arizona Justice Project that helped Bill get through the clemency process seems to be behind that.

Actually, I'd like to see some new legislation that requires the state to free people from prison in prison who the Board of Executive Clemency finds to be innocent. We also need to prohibit the courts from refusing to hear new evidence where there remains a claim of innocence, as in Courtney Bisbee's case. It's incomprehensible that either Bill or Courtney are still in prison, and that there isn't a huge public uproar over it. The lives of too many wrongfully convicted people hinge on politics, not justice, when it's up to a governor or the trial judge whether or not to take a second look at a conviction.

Here's a bit on the Old Code Lifers law (from http://freedom4bill.com):

---------------------------------------

What Else Can I Do?

HELP REFORM THE OLD CODE LIFER STATUTE

As of March, 2010, Bill Macumber is still in prison in Douglas, Arizona. His son Ron and family traveled to Arizona in February to preview the documentary film and visit Bill in the Douglas Prison facility. Bill remains upbeat although he is very disappointed that the petition for clemency was vetoed by the Governor.

Bill’s life sentence is considered to be defined by the “old code” (the 1956 Criminal Code). Because of this, he is not eligible for parole. In 1973, the Arizona State Legislature rewrote Arizona’s death penalty statutes, adding a minimum sentence a period of 25 years. However, in doing so, they left a group of prisoners (now 29) ineligible for parole, with only “natural life” as their guideline for time served. Each of these 29 “old code lifers” has served over 32 years, and all are over the age of 55 (the average age is 65).

Many life-sentenced inmates since that time have served at least the minimum, then applied for and received parole. In one of his case’s many heartbreaking circumstances, Bill Macumber has never been allowed this privilege. He is effectively sentenced to life without parole, even though “life without parole” was not a sentence in Arizona at that time.

A proposition is currently being drafted for the Arizona legislature which would allow these 29 “old code lifers” to be eligible for parole. It does not guarantee parole, yet provides an opportunity for those who are trapped in the situation created by the 1973 amendment.

You can help support this bill by adding your name to the petition below and reading more at www.oldcodelifer.com. You are encouraged to email or write to your legislator and let them know that you strongly support a reform proposition which would allow Bill Macumber to apply for parole.

Update: Free William Macumber

I just started a petition to Free William Macumber at Change.org. Help us out with it. Here's the New York Times article you'll find as part of the letter there to Governor Brewer, if you need a refresher. William will turn 75 on August 31. Lets try to give him and his family some encouragement. He may have been juggled around because of the escapes, but his last known address there was:

William Macumber 033867

ASPC-Douglas/Mohave
PO Box 5002
Douglas, AZ 85608

-----------------------------------------

Governor Rebuffs Clemency Board in Murder Case

By ADAM LIPTAK

New York Times

June 14, 2010

WASHINGTON — Ronald Kempfert was a young boy in 1975 when his father was sent to prison for murder, and they had no contact for 28 years.

Then, in 2003, Mr. Kempfert heard from a lawyer who had been looking into the case. “Your father is innocent,” said the lawyer, Larry A. Hammond. “And we’re pretty sure your mother framed him.”

That would seem a lot to digest, but Mr. Kempfert, 42, said he felt no hesitation. “My reaction was that it didn’t surprise me,” he said. “She’s my mother, and I love her. But I think she’s capable of anything.”

Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed.

But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.

The case against Mr. Macumber began in 1974 as his marriage was disintegrating. His wife, Carol, who worked in the local sheriff’s office, went to her superiors with a surprising story. Her husband, she said, had recently confessed to the unsolved murders of a young couple shot to death a dozen years before, in 1962, in the open desert north of Scottsdale, Ariz.

Largely on the strength of his former wife’s testimony, Mr. Macumber was convicted and sentenced to life without the possibility of parole.

But the jury did not hear a significant piece of evidence.

In 1967, five years after the murders in the desert, a drifter named Ernesto Valenzuela was charged with a similar double homicide. He told his lawyer that he had also killed the couple in the desert.

“He was just making a point about bragging about the people he killed,” the lawyer, Thomas W. O’Toole, said. “He was a cold-blooded killer who relished committing the murders.”

Mr. O’Toole, who went on to serve 24 years as a state judge, said his client was dead serious about claiming responsibility for the 1962 murders. “There is no doubt in my mind that Ernesto Valenzuela committed those crimes,” Mr. O’Toole said.

For years, Mr. O’Toole kept his client’s secret, as he was required to do by the canons of legal ethics. But after Mr. Valenzuela was himself killed in prison in 1973, and with the permission of Mr. Valenzuela’s mother, Mr. O’Toole offered to testify at Mr. Macumber’s trial.

The judge refused to let the jury hear from Mr. O’Toole, saying his account was unreliable hearsay. The judge also excluded testimony from a second lawyer and a psychiatrist who had heard similar confessions from Mr. Valenzuela.

The jury did hear about two kinds of physical evidence — a partial palm print and bullet casings — that prosecutors said connected Mr. Macumber to the killings.

Mr. Kempfert said he believed that his mother had done more than lie.

“I can fully see how my mother could have set him up and framed him,” Mr. Kempfert said. “She had access to the evidence. She was doing fingerprint courses at the time.”

Last year, the five members of the Arizona Board of Executive Clemency unanimously recommended to Ms. Brewer that Mr. Macumber be released after 35 years in prison “to correct a miscarriage of justice.”

But Ms. Brewer rejected the board’s recommendation without explanation in November. It is possible that politics played a role in her decision; Ms. Brewer, a Republican who became governor last year, is running for a full term in November.

“She denied the application right after she announced that she was running for governor,” said Katherine Puzauskas, a lawyer with the Arizona Justice Project at the Sandra Day O’Connor College of Law at Arizona State University. The project, which was founded by Mr. Hammond and works to overturn wrongful convictions, has represented Mr. Macumber since 2000.

There is little political upside to granting clemency, but there is a substantial risk, as Mike Huckabee learned when a man whose sentence he commuted as governor of Arkansas in 2000 killed four police officers last year.

P. S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., has been fuming about Ms. Brewer’s handling of the Macumber case. “I have been following state clemency for 30 years,” Mr. Ruckman said, “and this is easily, easily, the most disturbing. It’s borderline despicable.”

“Common-sense notions of justice should compel a governor to provide an explanation for imprisoning a man deemed innocent by an official board created to make such judgments,” he added. “You don’t imprison a man for no reason.”

A spokesman for the governor said Ms. Brewer had reviewed the case thoroughly, but he provided only boilerplate concerning her reasoning.

“Every executive clemency case is carefully scrutinized as the governor balances the very real and important concepts of public safety, justice and mercy,” the spokesman, Paul Senseman, said in an e-mail message.

Mr. Macumber is 74 and in failing health, with heart problems and arthritis, and the threat he poses to public safety is not obvious.

But Mr. Macumber’s former wife, now known as Carol Kempfert, said he was a dangerous sociopath who deserved to die in prison. She denied making up his confession and tampering with the evidence used to convict him.

It is her former husband, she said, who is a pathological liar. “I was in law enforcement for almost 20 years, and no one came close to being able to manipulate like Bill,” she said. “This man could sell water to a drowning person.”

Mr. Macumber, she said, would have said anything to save their marriage.

For instance, she said, he once falsely claimed to have a heart condition. “He intimates that if I hang around long enough, he’ll die and I’ll get the insurance money,” she said. “Well, I hung around, and he didn’t die.”

Then he threatened to kill himself. “If you’re going to do it, go outside” she recalled telling her husband. “I don’t want blood on the walls.”

In the course of a half-hour conversation, Ms. Kempfert accused Mr. Macumber of terrible and disturbing crimes beyond the killings in the desert. Asked if he deserved clemency, she said, “Absolutely not.”

“Actually,” she added, “I think he’s lucky. If he had been caught sooner, he would have gotten the death penalty.”

Ms. Kempfert and her son no longer speak. Ronald Kempfert, who took his stepfather’s last name when he was a child, is in the process of changing it back to Macumber.