April 29, 2008

New Look at Death Sentences and Race

New York Times, April 29, 2008

By ADAM LIPTAK

About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.

Yet Harris County’s capital justice system has not been the subject of intensive research — until now. A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

It has never been conclusively proven that, all else being equal, blacks are more likely to be sentenced to death than whites in the three decades since the Supreme Court reinstated the death penalty in 1976. Many experts, including some opposed to the death penalty, have said that evidence of that sort of direct discrimination is spotty and equivocal.

But the author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

His statistics have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, “five black defendants would be sentenced to the ultimate sanction because of race.”

Scott Durfee, the general counsel for the Harris County district attorney’s office, rejected Professor Phillips’s conclusions and said that district attorneys there had long taken steps to insulate themselves from knowing the race of defendants and victims as they decided whether to seek the death penalty.

“To the extent Professor Phillips indicates otherwise, all we can say is that you would have to look at each individual case,” Mr. Durfee said. “If you do that, I’m fairly sure that you would see that the decision was rational and reasonable.”

Indeed, the raw numbers support Mr. Durfee.

John B. Holmes Jr., the district attorney in the years Professor Phillips studied, 1992 to 1999, asked for the death sentence against 27 percent of the white defendants, 25 percent of the Hispanic defendants and 25 percent of the black defendants. (Professor Phillips studied 504 defendants indicted for the murders of 614 people. About half of the defendants were black; a quarter each were white and Hispanic.)

Mr. Holmes was, Professor Phillips said, selective but effective: he asked for the death sentence against 129 defendants and obtained 98.)

But Professor Phillips said that the numbers suggesting evenhandedness in seeking the death penalty did not tell the whole story. Once the kinds of murders committed by black defendants were taken into consideration — terrible, to be sure, but on average less heinous, less apt to involve vulnerable victims and brutality, and less often committed by an adult — “the bar appears to have been set lower for pursuing death against black defendants,” Professor Phillips concluded.

Professor Phillips wrote about percentages and not particular cases, but his data suggest that black defendants were overrepresented in cases involving shootings during robberies, while white defendants were more likely to have committed murders during rapes and kidnappings and to have beaten, stabbed or choked their victims.

When the nature of the crime is taken into account, Professor Phillips wrote, “the odds of a death trial are 1.75 times higher against black defendants than white defendants.” Harris County juries corrected for that disparity to an extent, so that the odds of a death sentence for black defendants after trial dropped to 1.49.

Jon Sorensen, a professor of justice studies at Prairie View A&M University in Texas, said he was suspicious of Professor Phillips’s methodology.

“It’s bizarre,” Professor Sorensen said. “It starts out with no evidence of racism. Then he controls for stuff.”

Moreover, Professor Sorensen said, Professor Phillips failed to take account of other significant factors, including the socioeconomic status of the victims.

Professor Sorensen said he remained convinced that racial disparities, if they exist at all, “are victim-based only,” as earlier studies have found.

This discussion, at least where the courts are concerned, is entirely academic. Twenty-one years ago, the Supreme Court ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not offend the Constitution. The vote was 5 to 4, and the case was McCleskey v. Kemp.

That ruling closed off what had seemed to opponents of the death penalty a promising line of attack, and they are still furious about it, comparing it to the court’s infamous 1857 decision that blacks slaves were property and not citizens.

“McCleskey is the Dred Scott decision of our time,” Anthony G. Amsterdam, a law professor at New York University, said in speech last year at Columbia.

“It is a decision for which our children’s children will reproach our generation and abhor the legal legacy we leave them,” said Professor Amsterdam, who worked on the McCleskey case and many other capital punishment landmarks.

The majority opinion in McCleskey was written by Justice Lewis F. Powell Jr. After he retired, his biographer asked Justice Powell whether, given the chance, he would change his vote in any case.

“Yes,” Justice Powell said. “McCleskey v. Kemp.”

October 1, 2007

Exoneration Using DNA Brings Change in Legal System

New York Times, October 1, 2007

By SOLOMON MOORE

State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence.

All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions. Many states are also overhauling the way witnesses identify suspects, crime labs handle evidence and informants are used.

At least six states have created commissions to expedite cases of those wrongfully convicted or to consider changes to criminal justice procedures. One of them, the California Commission on the Fair Administration of Justice, will hold a hearing this month on remedies for people who have been wrongfully convicted.

Laws in several states, including Illinois, New Jersey and North Carolina, have bipartisan backing, with many Democrats supportive on civil rights grounds and Republicans generally hoping that tighter procedures will lead to fewer challenges of convictions.

“Technology has made a big difference,” said Margaret Berger, a DNA legal expert who is on a National Academy of Sciences panel that is looking into the changing needs of forensic scientists. “We see that there are new techniques for ascertaining the truth.”

Maryland, North Carolina, Vermont and West Virginia passed legislation this year to create tougher standards for the identification of suspects by witnesses, one of the most trouble-ridden procedures.

Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions.

Legislatures considered 25 witness identification bills in 17 states this year, the National Association of Criminal Defense Lawyers reported. Five states approved bills, while five states defeated them. Bills are pending in seven states.

“It’s become clear that eyewitnesses are fallible,” said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques.

Two states, Vermont and Maryland, passed laws this year to improve crime lab oversight to eliminate errors and omissions. Maryland recently passed a law that will hold its crime labs to the same standards as clinical labs, a much more rigorous requirement. Other legislative changes to crime lab oversight are pending in 21 states, including New York.

More than 500 local and state jurisdictions, including Alaska, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, Wisconsin and the District of Columbia have adopted polices that require the recording of interrogations to help prevent false confessions, according to the Innocence Project.

The California Legislature also passed a bill this year that requires informant testimony to be corroborated before it can be heard by a jury. Critics say such testimony can be unreliable, especially when it is offered by convicts or suspects in return for leniency. The bill awaits approval by the governor.

Advocates of efforts to use DNA to exonerate those wrongfully convicted say the changes in the state laws are welcome and long overdue.

“The legislative reform movement as a result of these DNA exonerations is probably the single greatest criminal justice reform effort in the last 40 years,” said Peter J. Neufeld, co-director of the Innocence Project.

But some law enforcement officials oppose some of the changes, saying they create legal minefields for the police and prosecutors. Any deviation from the new standards, no matter how minor, could be taken up by defense lawyers in an appeal, the critics say.

The California State Sheriffs’ Association is fighting two bills there that would mandate electronic recording of interrogations and corroboration of informant testimony. The bills have been passed by the Legislature and are awaiting final approval by Gov. Arnold Schwarzenegger, a Republican.

“Simply put, these two bills create loopholes for defendants to get an edge in court on technicalities,” according to a letter from the sheriffs’ organization to the California Commission on the Fair Administration of Justice. The association also opposed a state bill that would create guidelines for suspect lineups.

Even some proponents of the new standards balk at making them state law, insisting they are better dealt with by local law enforcement agencies.

“I’m not fond of legislation,” said Lieutenant Patenaude, the Massachusetts police commander. “I’ve been asked to review bills in several states, and I haven’t seen one that mirrors the best practices that we’ve put out here. I’d like to see police agencies mold the procedures instead of legislatures or courts.”

Studies of wrongful convictions suggest that there are thousands more innocent people in jails and prisons. The Innocence Project, the nation’s most prominent organization devoted to proving wrongful convictions, is pursuing 250 cases and at any given time is reviewing 6,000 to 10,000 additional cases for legal action. Approximately 1 percent of those cases will be accepted, and half of those accepted cases are closed because evidence has been lost or destroyed.

Other smaller efforts to overturn wrongful convictions also receive thousands of letters from inmates.

In a 2005 study, a University of Michigan Law School professor, Samuel R. Gross, estimated that 340 prisoners sentenced from 1989 to 2003 had been exonerated. Of those, 205 were convicted of murder and 121 of rape. Half of the wrongful murder convictions and 88 percent of the wrongful rape convictions included false eyewitness identification, the study found.

DNA evidence was used to exonerate 144 of those inmates.

In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from 1973 to 1989 and found that 86 death row inmates, or 2.3 percent, had been exonerated through 2004

Professor Gross said the total number of innocent prisoners was likely to be far higher. In his view, well-documented wrongful convictions in capital cases provided a window on systemic problems, with even larger numbers of convictions for less serious and less publicized convictions.

“Of the 340 exonerations I looked at” in the 2005 study, Professor Gross said, “96 percent are for rape and murder.” He added: “Does that mean nobody was wrongfully convicted for drug possession, or drunk driving or burglary? Chances are there are many, many more false convictions for lesser crimes.” The most recent prisoner to be exonerated by DNA evidence was Dwayne Allen Dail, who served 18 years in North Carolina for a false conviction of child rape. Prosecutors had used the victim’s identification of Mr. Dail and hair found at the crime scene to convict him. Years later, after repeated inquires from defense lawyers, the police found a box of additional evidence in the case that contained the victim’s semen-stained nightgown. DNA analysis ruled out Mr. Dail and implicated another man. Mr. Dail was released from prison in August.

The proposed laws on witness identification are intended to reduce cases like Mr. Dail’s by requiring things like sequential photo lineups of suspects, in which police officers show witnesses photographs of one suspect at a time. Studies have shown that witnesses tend to compare photos when they are shown them simultaneously, a tendency that can lead to errors.

The legislation would also create “double blind” systems so that the police officers administering the photo lineups are unaware of the suspects’ identities in order to avoid influencing witnesses.

The North Carolina legislature adopted both lineup procedures this year.

Crimes labs are also getting additional scrutiny in some states.

William E. Marbaker, president of the American Society of Crime Lab Directors, an independent accreditation body, said the group had accredited more than 300 crime labs. But some law enforcement agencies are finding that even more oversight is needed.

A two-year review of the Houston Police Department’s crime lab called into question more than 600 cases. The review was initiated after a court found in 2005 that faulty forensic evidence led to the conviction of George Rodriguez in 1987 for kidnapping and assaulting a child. Mr. Rodriguez served 17 years of a 60-year sentence before his release two years ago.

Houston crime lab officials erroneously concluded that hair found at the crime scene belonged to Mr. Rodriguez. The crime lab also failed to rule out Mr. Rodriguez as a suspect after finding that semen collected from the scene matched that of another man.

Eight states — Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota and Wyoming — do not have laws that give inmates access to DNA evidence.

Advocacy groups, including the Innocence Project, said they intend to lobby for the passage of access laws in those states during the next legislative session.

September 25, 2007

New Scrutiny as Immigrants Die in Custody

New York Times, September 25, 2007

By DAVID STOUT

WASHINGTON, Sept. 25 — With the 2008 presidential and Congressional elections on the horizon, the Supreme Court agreed today to consider whether voter-identification laws unfairly keep poor people and members of minority groups from going to the polls.

The justices will hear arguments from an Indiana case, in which a federal district judge and a panel of the United States Court of Appeals for the Seventh Circuit in January upheld a state law requiring, with certain exceptions, that someone wanting to vote in person in a primary or general election present a government-issued photo identification. Presumably, the court would rule on the case by June.

Before the law was enacted in 2005, an Indiana voter was required only to sign a book at the polling place, where a photocopy of the voter’s signature was kept on file.

Voter-identification requirements have divided Democrats and Republicans, and the courts, for years. In July, the Michigan Supreme Court upheld that state’s identification law. A month earlier, the Georgia high court threw out a challenge to that state’s identification law. But last year, the Missouri Supreme Court overturned a state voter-identification statute. Other states are considering various identification statutes.

Election-law experts had hoped that the United States Supreme Court would take the Indiana case because that state has perhaps the toughest law in the country. “The court better resolve this question before ballots start getting counted next fall,” Pamela Karlan, a Stanford University law professor, told The Associated Press.

In general, Republicans argue that identification laws reduce voter fraud, while Democrats oppose them on grounds that they lower the turnout among people who tend to vote Democratic.

Coincidentally or otherwise, the two Seventh Circuit judges who voted to uphold the Indiana law, Richard A. Posner and Diane S. Sykes, were put on the bench by Republican presidents (Ronald Reagan and George W. Bush, respectively), while the one dissenting judge, Terence T. Evans, was elevated by President Bill Clinton.

Writing for the majority, Judge Posner acknowledged that the Indiana law favors one party. “No doubt most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates,” he wrote.

But the purpose of the law is to reduce voting fraud, “and voting fraud impairs the right of legitimate voters to vote by diluting their votes — dilution being recognized to be an impairment of the right to vote,” Judge Posner said. And assertions that many people will be disenfranchised, or that there is no significant voter-fraud problem in Indiana, are based on unreliable data and “may reflect nothing more than the vagaries of journalists’ and other investigators’ choice of scandals to investigate,” the judge held.

In dissent, Judge Evans wrote that the Indiana law imposed an unconstitutional burden on some eligible voters. “Let’s not beat around the bush,” he wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.”

Arguments that the law’s purpose is to stamp out voter fraud amount to a mere “fig leaf of respectability,” Judge Evans wrote. Furthermore, he said, the law is too extreme in view of the fact that no one in Indiana has ever been prosecuted for voter fraud. “Is it wise to use a sledgehammer to hit either a real or imaginary fly on a glass coffee table?” he asked rhetorically. “I think not.”

June 26, 2007

New Scrutiny as Immigrants Die in Custody

New York Times, June 26, 2007

By NINA BERNSTEIN

Sandra M. Kenley was returning home from her native Barbados in 2005 when she was swept into the United States’ fastest-growing form of incarceration, immigration detention.

Seven weeks later, Ms. Kenley died in a rural Virginia jail, where she had complained of not receiving medicine for high blood pressure. She was one of 62 immigrants to die in administrative custody since 2004, according to a new tally by Immigration and Customs Enforcement that counted many more deaths than the 20 previously known.

No government body is charged with accounting for deaths in immigration detention, a patchwork of county jails, privately run prisons and federal facilities where more than 27,500 people who are not American citizens are held on any given day while the government decides whether to deport them.

Getting details about those who die in custody is a difficult undertaking left to family members, advocacy groups and lawyers.

But as the immigration detention system balloons to meet demands for stricter enforcement of immigration laws, deaths in custody — and the secrecy and confusion around them — are drawing increased scrutiny from lawmakers and from government investigators.

Spurred by bipartisan reports of abuses in detention, the Senate unanimously passed an amendment to the proposed immigration bill that would establish an office of detention oversight within the Department of Homeland Security. Detention capacity would grow by 20,000 beds, or 73 percent, under the bill, which is expected to be debated again today in the Senate.

Complaints focus on a lack of independent oversight and failures to enforce standards for medical care, suicide prevention and access to legal help.

The inspector general in the Department of Homeland Security recently announced a “special review” of two deaths, including that of a Korean woman at a privately run detention center in Albuquerque. Fellow detainees told a lawyer that the woman, Young Sook Kim, had pleaded for medical care for weeks, but received scant attention until her eyes yellowed and she stopped eating.

Ms. Kim died of pancreatic cancer in federal custody on Sept. 11, 2005, a day after she was taken to a hospital.

Some of the sharpest criticism of the troubled system has come from officials at one of the largest detention centers in the country, York County Prison in Pennsylvania.

“The Department of Homeland Security has made it difficult, if not impossible, to meet the constitutional requirements of providing adequate health care to inmates that have a serious need for that care,” the York County Prison’s warden, Thomas Hogan, wrote in a court affidavit last year.

Officials with the immigration agency say that some deaths are inevitable, and that sufficient outside scrutiny comes from local medical examiners. Detention expanded by more than 32 percent last year, and the average length of stay was cut to 35 days from 89, said Jamie Zuieback, a spokeswoman.

“We spend $98 million annually to provide medical care for people in our custody,” Ms. Zuieback said. “Anybody who violates our national immigration law is going to get the same treatment by I.C.E. regardless of their medical condition.”

She declined to release information about the 62 detention deaths since 2004, including names, dates, locations or causes.

Twenty deaths were reported over the same period in a recent briefing paper for the United Nations’ special rapporteur on the human rights of migrants from a list compiled by civil liberties lawyers from reports by relatives, advocates and the news media.

Detention standards were adopted by the immigration agency in 2000, but are not legally enforceable, unlike rules for the treatment of criminal inmates. The Department of Homeland Security has resisted efforts by the American Bar Association to turns the standards into regulations, saying that rulemaking would reduce the agency’s flexibility.

“The deaths bring forward in the worst way the systemwide problems,” said Sunita Patel, a lawyer for Legal Aid who prepared the United Nations briefing paper.

Some advocates of curbs on immigration say the solution is quicker deportations.

“The taxpayer cannot be expected to underwrite the elaborate detention facilities that some of these organizations want,” said Dan Stein, president of the Federation for American Immigration Reform.

In the case of Ms. Kenley, a legal permanent resident of the United States for more than 30 years, detention interrupted her medical care for high blood pressure, a fibroid tumor and uterine bleeding. An autopsy attributed her death to an enlarged heart from chronic hypertensive disease. But a report by emergency medical services said that she had fallen from a top bunk, and that a cellmate had pounded on the door for 20 minutes before guards responded.

Ms. Kenley’s sister, June Everett, said her questions had gone unanswered.

“How did my sister die?” she asked, as Ms. Kenley’s daughter, Nicole, wept. “It’s a whole set of confusion, so who knows, really? And I would like to know.”

Ms. Kenley had been traveling with her 1-year-old granddaughter when she arrived at Washington Dulles International Airport, records show, and she was ordered to return without the baby to discuss two old misdemeanor drug convictions that had surfaced in an airport database.

She obeyed. A transcript shows she admitted a conviction for drug possession in 1984 and one in 2002 for trying to buy a small amount of cocaine. She described a life derailed by drug addiction after 11 years of working in a newspaper mailroom.

“I turned my life around,” Ms. Kenley told the immigration inspector, pointing to three drug-free years after probation and treatment, completion of a nursing course, and legal custody of the granddaughter, Nakita. She also showed that she was taking blood pressure medication and was scheduled for surgery.

The inspector arrested her, invoking the law: two drug-related convictions made her subject to exclusion from the United States.

“I am barely living,” Ms. Kenley later wrote her sister from Pamunkey Regional Jail, in Hanover, Va., “trying to hold on until you get a lawyer to help me.”

She died at Hampton Roads Regional Jail in Portsmouth, Va.

Her only court appearances were by video monitor, waiting for a volunteer lawyer who never came.

Even detainees with legal counsel sometimes do not survive.

Abdoulai Sall, 50, a Guinea-born taxi cab mechanic in Washington with no criminal record, died in detention last December.

Mr. Sall, whose boss of 17 years had sponsored him for a green card, was at an immigration interview with a lawyer, Paul S. Allen, when he was unexpectedly arrested on an old deportation order — part of a legal tangle left when another lawyer abandoned his case in the 1990s, Mr. Allen said.

The case file shows that Mr. Allen’s office urged medical intervention for Mr. Sall, who had been taking medication for a serious kidney ailment at the time of his arrest. While in detention at the Piedmont Regional Jail in Farmville, Va. he complained that he was not getting his medication and that his symptoms were worsening in a barracks-style unit.

Fellow detainees described Mr. Sall huddling next to the unit dryer for warmth, barely able to walk. “The medical staff told him they don’t have what he needs because immigration don’t pay enough money,” one detainee wrote.

The accusation was denied by Lou Barlow, the jail’s superintendent, who said Mr. Sall had received good care, including a visit to the local emergency room.

“We’ve never done anything unethical, illegal or immoral,” Mr. Barlow said.

Autopsy results are still pending.

Some deaths, like Ms. Kim’s, come to light well after the fact. Ms. Kim, a cook of about 60, was swept up in a raid on a massage parlor and detained for a month at the Regional Correctional Center in Albuquerque, a county prison operated by the Cornell Companies, a publicly traded corporation.

Months after her death, a lawyer in Santa Fe, N.M., Brandt Milstein, learned about the case from other Korean detainees, since deported. Mr. Milstein said that under New Mexico law, the death should have been reviewed by the state’s medical inspector, but officials had not reported it as a death in custody.

About two weeks ago — nearly two years after Ms. Kim died — the inspector general’s office called him, Mr. Milstein said. The investigation is now under way.

June 20, 2007

Fighting Back

San Francisco Bay Guardian, June 20, 2007

By JOSEPH PLASTER

It was a week of triumph for workers and union activists opposing the conservative agenda of the owner and operators of the Emeryville Woodfin Suites hotel.

The Guardian last week ("Calling in the Feds," 6/13/07) revealed that the hotel called on its owner's political connections to blow the immigration whistle on housekeepers involved in a campaign to enforce a living-wage law at the Woodfin. That revelation came a day after Emeryville city officials ordered the hotel to pay $125,000 in back wages and $31,500 in fines for failing to show it was paying adequate wages.

The Woodfin chain has fought the living-wage law, Measure C, since even before voters approved it in 2005, originally refusing to comply. Then the Woodfin Suites fired workers who were organizing to enforce the measure, claiming they were undocumented immigrants. After being ordered by the city to reinstate the workers, hotel officials claimed the firings were justified by an April immigration audit by Immigration and Customs Enforcement (ICE).

The Guardian found that US Rep. Brian Bilbray (R–San Diego) asked ICE to investigate the hotel after a representative of the Emeryville Woodfin Suites — whose president, Sam Hardage, has close ties to Bilbray — contacted his office for assistance Feb. 1. That revelation was at the center of a June 13 rally at the Oakland Federal Building by members of the East Bay Alliance for a Sustainable Economy (EBASE), which helped pass Measure C and supports the laid-off workers.

"It is now clearer than ever that [the Woodfin's] real motive was to get rid of workers who were standing up for their rights," organizer Brooke Anderson said through a loudspeaker.

Among those at the rally were Berkeley City Council member Kriss Worthington, Emeryville City Council member John Fricke, and representatives of California Assembly member Sandré Swanson (D-Oakland) and US Rep. Barbara Lee (D-Oakland).

Lee's district director, Leslie Littleton, said Lee was "proud to stand strong with the Woodfin workers in support of their continued fight for the back pay that they are owed," and cited Lee's "strong opposition to the ICE raids that have been terrorizing our community."

Littleton also said Lee was "deeply concerned by the allegations that another member of Congress — acting on behalf of a campaign contributor — may have gotten a federal agency to intervene in that dispute in a way that hurts workers in my district."

Emeryville special counsel Benjamin Stock told the Guardian that letters between Bilbray and ICE located as a result of our article will be cited in a pending lawsuit charging Woodfin officials with retaliating against whistle-blowing workers. It is against the law for an employer to fire workers for organizing for better working conditions, regardless of immigration status.

In a prepared statement, Woodfin officials said they contacted Bilbray's office "to be certain we were in compliance with all laws governing our business." They claim that Measure C's regulations "directly contradict federal immigration laws and violate the Constitution's due-process clause." Both of the Woodfin's federal lawsuits challenging Measure C's constitutionality have been rejected; the last was dismissed June 7.

Emeryville has already spent hundreds of thousands of dollars litigating these two federal court cases and a pending state court case and processing worker complaints. The Woodfin now says it will appeal the city's decision regarding back wages. City officials are urging the Woodfin to accept defeat.

"Please," Emeryville City Attorney Mark Biddle said, "let's move on with life. Measure C is a pretty simple concept, and all the other hotels seem to be on board." The Woodfin, he told us, can "either keep fighting a useless cause and continue ringing up the bill or pay the workers what the law requires."

May 20, 2007

The DNA 200

The New York Times, May 20, 2007

By CHRIS CONWAY

DAVID VASQUEZ was a janitor of borderline intelligence when he confessed to the 1984 rape and murder of a young woman in Arlington, Va. He was sentenced to 35 years in prison and spent 5 years there, before DNA evidence from a series of similar rapes and murders committed after he was jailed convinced the police that Mr. Vasquez was innocent.

Mr. Vasquez was pardoned in January 1989, becoming the first inmate to be exonerated by the then-nascent science of DNA testing, according to the Innocence Project, a legal clinic at the Benjamin N. Cardozo School of Law in Manhattan that pioneered its use.

Late last month, the number of inmates formally cleared on the strength of DNA evidence reached 200, a moment that led to the first in-depth analysis of those cases by the project.

The first 200 who were cleared, shown below, served an average of 12 years in prison. They ranged in age from 14 to 56 at the time of their convictions. Eighty-eight percent were convicted of sexual assault; 28 percent of murder. Fourteen were on death row.

Several more have been all but cleared but await official exoneration — like Byron Halsey, above, who spent 19 years in a New Jersey prison for the sexual assault and murder of two children. Last week, a judge threw out the convictions citing new DNA evidence that pointed to another man as the killer. Mr. Halsey was released on bail. Prosecutors are expected to say soon if they will seek a new trial or drop the charges.

In the 18 years since the Vasquez case, DNA testing has revolutionized forensic science and upended long-held notions about the reliability of evidence used routinely to convict people of crimes, including confessions.

In the 200 cases, often more than one factor led to the initial convictions, the analysis showed. Three-quarters were marked by inaccurate eyewitness identification, and in two-thirds, there were mistakes or other problems with the forensic science. Fifteen percent featured testimony by informants at odds with the later evidence. There were confessions or admissions in about 25 percent of the cases. In about 4 percent, the people had pleaded guilty.

As these cases have captured the public’s attention, various states and law enforcement agencies have made reforms, including improving the standards for eyewitness identifications, recording interrogations and upgrading their forensic labs and staffs. Several states have appointed commissions to re-examine cases in which inmates were exonerated by DNA. Some states are reconsidering their death penalty statutes.

DNA testing has also helped law enforcement officers exclude suspects from further scrutiny. And, in turn, it has helped the police and prosecutors convict an untold number of people of crimes, stamping those outcomes with an equal sense of scientific finality.