Exposing Guilty Projects, part one

15 October 2010
last update 16 October

In this post and one more I’d like to discuss a fascinating and horrifying book I just read - Actual Innocence by Barry Schick and Peter Neufeld of the Innocence Project (with Jim Dwyer). [Amazon.com links for the 2000 edition I'm reading, and the 2003 re-issue] It details some of their victories in using new (at the time) DNA technologies to overturn wrongful convictions in the United States. As such, it offers only indirect light of the Lockerbie investigation and trial, but a perhaps useful frequency.

Actual Innocence interweaves topical expositions with gripping personal stories of injustice. Each innocent victim is followed through the nightmarish process of becoming legally guilty and paying the price with years in prison and up to cusp of execution. All were saved or freed early by the inspirational characters who are of course writing about themselves.

The sad parallel is the number of cases where innocents have had their lives taken by jail or execution with no exoneration possible or affected in time. Only when hard scientific proof is found and presented does rescue become possible, if not inevitable. Consider Kevin Byrd, convicted of rape in Texas, but later exonerated by DNA. Governor George W. Bush’s office said in refusing the pardon, despite clear scientific proof, the victim still felt Byrd was her rapist. Under political pressure Bush eventually signed off.

The book is not just about individual cases, but systemic injustice seen along the way. Politicians and their prosecutors needing to appear tough on crime and protective of the voters, as in Byrd’s case, is just one branch of a rotten tree. The men wrongly convicted in the book were exonerated by advanced science and, it often seems, honesty of process that were both unavailable at the time of conviction.

Victim: Robert Lee Miller
A shocking pattern emerges in Ada, Oklahoma, starting in late 1986: Two very elderly women were raped and smothered to death after an intruder pulled the phone line and broke in. Three “Negroid” hairs found at one of the scenes had nearly 200 black men in the neighborhood tested for blood type to match.

As one of many matches, Robert Lee Miller was later approached. “He was a regular user of drugs,” the book notes (as would his blood,), and at the moment they arrived, “he believed that someone had slipped PCP into something he had ingested.” He was willing to help anyway, and did so at the station. “I’ve got these powers,” he said by way of helping. “I can see things through the killer’s eyes.” Oops.

The 12-hours of video-taped interrogation following became prime evidence in more ways than one. The suspect’s guided drug visions morphed into demonic exorcism and the detectives' pleas to Jesus to clear his view of the crime. Miller said his Choctaw grandmother's spirit was telling him someone was trying to frame him.

They tried frantically to get him to remember something “only the killer could know,” like the Fruit of the Loom underwear left at one crime scene. Miller was asked if the killer left anything behind, steering him from weapons to clothes. After at least a dozen wrong guesses, Miller said at one point “maybe it was underwear.” They returned to this:

“And you told me that, ah, you this uh, was his underpants, his shorts, that he left at one of them… what kind, what kind of underwear was it? ... What kind of underwear do you have on?”

It was his brand all right. This smoking gun would cap the closing arguments just before Miller was sentenced to two death penalties plus 725 years, whatever the hell that means. The menace was locked away and the community felt safer.

That is, until two more rapes happened after Miller was locked up, almost exactly like the ones he was convicted for. This time both victims were a bit younger, neither died, and one clubbed the attacker with a gun, which he took. Ronald Lott still had it when police arrested him. He had the same blood and hair type as the original rapist. He confessed to other such “attacks” (plural) in the same neighborhood. The police had their rapist finally.

But this information was kept from the defense and the judges in the unfolding trial, even as the same attorney worked the Prosecution in both the Miller and Lott cases and could see the parallels (he later admitted so, just that it dawned on him slowly, and near the end). Miller was finally able to contact the Innocence Project with the help of friends on the outside. DNA tests were conducted on the remaining samples and found to match Lott only. The science said Miller had raped no one.

But the state wouldn’t back down. “The DNA tests do not erase the statements given by Mr. Miller himself concerning these crimes,” explained assistant DA Ray Elliot. It only proved he was not the "donor" of the semen, but was still one of "two rapists." Barry Schick swears that when he ran into the assistant DA in Denver, he gloated “we’re gonna needle your client." He knew about Lott at the time, but later said he “believed” that man had been ruled out from the first two rapes. Or perhaps they were both involved, with Lott as the actual rapist in all four cases, Miller as some sort of accomplice in the first two. The position became fuzzy.

Since the first two victims had died, Miller was still tacked with the twin death sentences and ten life sentences, while Lott was originally given only 40 years for the two later rapes. Ray Elliot offered him a plea deal - implicate Miller as an accomplice in his first two, and he’d face no further charges – for those same deadly rapes he was known to have committed. If he’d taken the deal, who knows what Elliot had planned. But the rapist's refusal to play along finally convinced Elliot, he says, that Miller wasn’t even a lookout. But he was heard to complain when Miller was freed that they should have killed him sooner. He denies he said that.

Repeat Offenders
Certain themes pop up time and again in the tragedies relayed in the book. Some are built into the court system itself and come across as natural and unavoidable. Incompetent or ineffective counsel undermines many trials and helps send innocents away. There are rules to protect against this, but they are set extremely loose and rarely enforced. In essence, so long as the lawyer is alive and breathing, his or her failings are usually deemed to be no matter as far as due process goes.

And once a guilty verdict is wrongly reached, the supposed protection of the appeals process seldom does any good. In numerous instances highlighted in the book, appellate courts as a rule give ultimate credence to and side with the prosecutorial “good guys.” Unless faced with something egregiously obvious they’d look foolish to accept, they rule seemingly independent of the facts before them and the facts they learn were withheld from them. Lies are upheld time and again, and innocent people continue to rot in prison, for structural reasons that are hard to trace with certainty.

But the pivotal practices are those that bring the wrong people before the court to begin with – flawed investigations, like the one against Walter Miller above.

Jailhouse “snitches” are central in a couple of the cases reviewed in Actual Innocence. These are not the kind that rat out the tidbits they actually hear, but those like Leslie Vernon White, who once showed astonished detectives how easy it was to concoct false confessions. They were amazed to find he’d been lying to them, skating through numerous sentences by selling a dozen others up the river. [128] The use of snitches continues unabated despite (or because of?) this knowledge.

Ronald Williamson in Oklahoma went down based on a “confession” reported by prisoner Terri Holland, a serial check forger, serial murder-confession-reporter, and serial early releasee. In fact, Oklahoma detectives intently sought her out in a New Mexico prison to see if she'd heard anything on Williamson back in OK. She gave it to them, inaccurate details and all, and her prey was sentenced to die for the crime he had “confessed” to as she skated out early again. [135]

Perhaps that was honest mistake, but the same authorities took drastic measures to get a confession from Williamson’s detained “accomplice,” Dennis Fritz. They sent a spy, more or less, working for the prison (off the records at the time) to coax a confession of any kind. Williamson's old friend, dragged in by a shady hair analysis, only insisted his innocence, and the spy (named Tenney) had to make something up. He did so, and the case was solved with a second confession-based conviction and a life sentence. [137, 141]

Both men were exonerated years later by Innocence Project DNA analysis, and the same science showed the true rapist/killer was Glenn Gore, a prosecution witness who had first identified Williamson as a suspect and started this rush for confessions.

Interrogation methods to secure confessions are addressed. From the little I know, PCP-assisted questioning like that used on Walter Miller is seldom used on chance or purpose. And absent the “third degree” beatings of old, forced confessions are rare. In the same place now, we usually see claimed admissions with no record, as with Fritz above, or semantic ones based on twisting aspects of what the witness said, as we’ll see in part two. When unambiguous records do not exist, the victims dispute the police, and the court sides against the victim.

Bad science also helps in the process with alarming regularity in this age of scientist-worship, and not always on accident. Crackpot “experts” are on file, who will say whatever you want for a price about hairs, shoe prints, blood samples, whatever. Like a lacquer, prosecutors can pour this nonsense over anything they want to give it a nice veneer. Take Ralph Erdmann in Texas, who used to boast of conducting 400 autopsies a year. Exhumations showing he rarely made even a single incision, but the book notes “Erdmann often would want to know the police theory of the death before he wrote up his report … to keep his story straight.” [p 117]

That is, this scientist was a political one – he wanted to know the official story, and play-acted that science supported that. He was exposed repeatedly, including by Ed Bradley on 60 Minutes, and finally it was too many times. His license was suspended for a decade, then revoked after he was arrested with a houseful of machine guns. [119] Less extreme versions of Erdmann that haven’t self-destructed still operate freely.

Another extreme case is trooper Fred Zain, “a cop in a lab coat,” who was for years used by police and prosecutors in West Virginia and several other states to bring pseudo-science to bear in court. Later audits showed the amazing tests he swore to carrying out were rarely or never done, and his lab was physically incapable of much of what he claimed from it.

But Zain would blithely brandish his supposed authority with theatrical flair that brought the convictions steadily in. In dozens of cases, people were put away based largely on his acting, some for life. As long as unsolvable high-profile crimes needed solved, and he knew how it had to be solved, he'd do it, and suffered no shortage of work or appreciation.  One fellow officer wrote in and praised Zain’s work and vowed to “assist” him with the inevitable “bleeding hearts” "dripping" on his lab coat. [121]

[... to be continued in part two ... we're not done with Zain]

See also: Innocence Project Case Files