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


Rolfe said...

You're book's about the USA, but of course the same thing happens in Britain, with depressing regularity. In the 1970s and 1980s it was all about IRA terrorists. You just had to be Irish to be a suspect, as Gareth Peirce points out in her new book. The Birmingham Six, the Maguire Seven, the Guildford Four. One of these (Guiseppe Conlon I think) died in prison. Others had served their entire sentences and were released before they were exonerated.

Nobody was executed of course, but that doesn't mean there weren't people who would have liked to do that. During the appeal mounted by the Birmingham Six, Lord Denning tried to make the case that these men should not be allowed to challenge their convictions.

Just consider the course of events if their action were to proceed to trial ... If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. ... That was such an appalling vista that every sensible person would say, "It cannot be right that these actions should go any further."

This is absolutely obscene. I'm not sure if it was Denning who declared that it would have been better if the men had been hanged at the start, and then the whole thing would have been fogotten about, but that opinion was expressed by at least one high-ranking legal eagle.

Now, of course, you just have to be Moslem to be a suspect. This isn't helping with Megrahi's case, because of course he is a Moslem. It wasn't an issue at the time of the investigation or even the trial, which all happened pre 9/11. Megrahi was never a crazed fundamentalist islamist jihadist. Whatever Libya did in the 1980s was politically motivated, not religiously. But now, all the anti-Islam, anti-jihadist sentiment is feeding into the hate-fest that's being directed at him.

Rolfe said...

Then the injustice turned on mothers who had lost young babies to Sudden Infant Death syndrome. It was far too big a coincidence that the same thing could happen to two children in the same family, it must have been murder! So natural deaths were decreed to be crimes, and grieving mothers were tried and jailed. Sally Clark, Angela Cannings, Donna Anthony. It was only when they tried the same thing on Trupti Patel that it all fell apart. She was quite shiningly innocent, in contrast to the others who all had backgrounds that could be twisted to make them seem to be bad mothers (for example, Sally Clark had a bit of a drink problem). Also, her legal team had learned from what they saw being done to the earlier women, and mounted a better case. In particular, they were able to get her family medical history from India and show that several close relations had also lost more then one child to SIDS. The jury took about ten minutes to acquit her, and the process started to free the others.

Then there are all the sporadic cases. Stefan Kiszko, Barry George, plenty more whose names I can't immediately recall. Kiszko was a particularly sad case, because he was of low intelligence, and had been induced to confess so he could go home to his mother. Oh, read the story, it's all on Wikipedia. He was kept in jail long after he should have been eligible for parole, because he "showed no remorse". Of course he didn't, he steadfastly denied having committed the crime. He was eventiually cleared on appeal, and the rightful killer convicted, but he died not long after he was released - just like Sally Clark.

It seems to me there are three grades of culpability among the investigators of these crimes. First, there are cases where the police genuinely believe the suspect to be guilty (although this is often a negligent belief), and they're just doing their best to make sure justice is done. Then there are cases where the police either don't care is the suspect is guilty or not, or may even suspect or know him to be innocent, but for them the important thing is getting a conviction and ticking off a successful conclusion to their investigation. And then there's Megrahi.

Obviously, with so many investigators involved, different people are going to be in different categories. I suspect many of the ordinary PC McPlod participants (like John Crawford) genuinely believed Megrahi to be guilty. Did Harry Bell, who was responsible for faking up the Gauci identification evidence? I suspect not, actually. I think Bell must at least have suspected that he had the wrong man, but this was the only man he had, so let's go for it.

But what makes the Megrahi case different from almost all the others is the perisistent theme of deliberate turning away from far more plausible suspects. The impression that convicting Megrahi isn't primarily about getting the only person we can possibly put in the frame convicted, but getting Megrahi convicted so we don't have to get too close to the PFLP-GC and whatever-the-hell was going on in Frankfurt at that time.

This overarching political side to the case makes it almost unique, and seems to be the reason why attempts to have the conviction reviewed are being stymied at every turn. Even the press, who were quite vocal about the perverse verdict from 2001 to early 2009, are now treating it all as a mad conspiracy theory amd closing ranks to have Megrahi branded as "the Lockerbie bomber" in perpetuity.

Which is why we need blogs like this.

Rolfe said...

Another point to note is that the people who are wrongly convicted are seldom upstanding citizens without even the tiniest skeleton in their cupboard. Kizsko was mentally subnormal and a bit weird. George ditto, plus a stalker with an obsession with guns and the military and an old conviction for sexual assault. The Maguire Seven were petty criminals living in a squat. Even Sally Clark, who was an upstanding citizen, had been doing a bit of solitary drinking. Or if she hadn't, the prosecution produced evidence suggesting she had.

In the Barry George case there was an infamous photo which he'd posed for, where he was wearing a gas mask, a balaclava and black clothes, and was brandishing a replica gun.


This was shown to the jury to demonstrate what an evil monster he was. He was obviously guilty! Except, look at the background. A small living room with hideous curtains, a small TV, certificates on the wall, a lot of clutter. The picture is of a small boy dressing up - except it's not a small boy, it's a mentally deficient adult.

All these irrelevancies are brought out in court to bolster the spurious case, but they have nothing to do with it. This is why I get annoyed with people like Frank Duggan, who bring forward similar irrelevancies about Megrahi - some true and some not. He was a JSO officer. He knew Edwin Bollier. He was travelling under an assumed name. This is the sum total of the "enormous amount of evidence" they claim there is to support Megrahi's guilt.

It's pernicious, and it's nonsense.

BenSix said...

Interesting post, CL (and interesting posts, Rolfe).

I thought this piece on false confessions was interesting...

Leo (1998) points out three reasons why it is impossible to even estimate the incidence or prevalence of false confessions: (1) police interrogations are conducted in secrecy and they are usually not recorded...(3) it is difficult to establish what actually occurred to elicit a confession, especially if the confession resulted in a conviction...

Pertinent, perhaps, to Libya's *ahem* "acceptance of responsibility".

BenSix said...

(Christ, I seem to be find everything "interesting" at present. How very --- uninteresting.)

FullInquiry said...

I wonder what Richard Marquise has to say about all this?

Even he can't deny that sometimes investigators get it wrong - this is fact.

What do high up officials like Richard do to ensure they aren't convicting innocent people, or do they just accept that some innocents get convicted?

Rolfe said...

Oh, Richard has EVIDENCE, doncha know?

Evidence like Megrahi told lies to a journalist. I mean that clinches it, everyone who lies to journalists is guilty of mass murder, that's for sure.

And he's certain that Giaka was telling the truth. As was every single other witness except one. He won't say who of course but we can guess. (Gimme a W, gimme a B....) Which shows he's an even worse judge of human nature than I thought.

But police interviews in Britain are recorded now. They're talking about videoing them.

Rolfe said...

Actually, come to think of it, what Richard is coming out with (this very evening over on the Black blog), is a prime example of what I said above about investigators choosing people with stuff in their history that makes it easier for them to be portrayed as guilty, and emphasising irrelevancies as if they were a substitute for evidence connecting the accused to the crime.

Megrahi lying to Salinger is the Lockerbie parallel of that photo of Barry George.

I remain amazed that so many seemingly intelligent people would continue to support someone who claimed to not be a member of Libyan intelligence, "believe me, I was here in Tripoli with my family (12/20-21)," and I never heard of MEBO or Abdusamad.... As we now know the facts are somewhat different. Mind boggling.
(Richard's comment tonight.)

Yeah, mind boggling that someone accused by Americans of a capital crime went into "deny everything" mode. Or even that he was told to deny everything by his government.

(As an aside, what is it about Arabs and "Believe me...."? I had a PhD student from Saudi once, and every time he let me down he fixed my face with these beautiful dark eyes and said, "Believe me, Dr. [Rolfe]...." and I knew absolutely he was telling porkies. I don't think he ever bombed any airliners though.)

Just as it's mindboggling that a mentally deficient man with fantsies about being in the SAS posed in black clothes and a gas mask with a toy gun in front of his garish living-room curtains.

That proved he murdered Jill Dando, you see. Just like Megrahi lying to Salinger proves he bombed Pan Am 103.

Yeah, right.

Caustic Logic said...


This article isn't as good as I meant - as usual, a little rushed to just get it up. But it seems to have jiggled loose about what I was hoping for anyway.

Rolfe brings up several UK cases, where high-profile IRA crimes have been wrongly pursued. Over here as you may gather, it seems an unstated race and class war has served a similar role to the Northern Ireland situation. It seems to me so far that in either epic struggle, the higher its stature and greater its atrocity, the more likely a crime is to be misattributed.

Large truths, when ugly, will be covered up if possible. That's one end of it that I think applies here. Petty crimes like shoplifting no one is framed for. Higher-stakes crimes, like blowing up an airliner in flight, might be expected to try harder to cover their tracks and leave few clues. (That's not so much the case here, of course, as the investigators ignoring and obscuring and overshadowing the clues with bigger and dumber and thicker ones) But the public will demand a head on a platter, and one way or another it's usually delivered.

Rolfe, I was thinking of a part three, outlining how some parallels run with the Megrahi/Fhimah case. But it would be mess of a flop I fear, unless someone with more legalistic mind and deeper knowledge of relevant examples were to write it up.

Dunno, seems to have some potential, especially if it's not part three or tied down to this one book, and compares specific moves from previous terrorism cases, in he UK system, that were ruled foul with similar moves from this one.

Rolfe said...

Adam, I take it you know that one of the forensic officers heavily criticised in connection with the fabrication of evidence against the Maguire Seven was - Thomas Hayes.

The bizarre thing is, the May inquiry into these miscarriages of justice was going on in 1989, and the upshot of it was that Hayes left RARDE in late 1989 to re-train as a chiropodist. Quite a come-down for someone with a PhD in electronics or whatever it was. Why anyone who was under such a cloud would be allowed to work alone on the Lockerbie evidence is inexplocable.

FullInquiry said...

Unfortunately law enforcement professionals particularly Federal employees, including Hayes, Thurman and Marquise, are paid to convict people and act in the perceived interests of their country.

Sadly that often does not equate with determining the truth or using the evidence to find the actual perpetrators.

I suppose most don't care that much until it affects them.

I wonder if Barry Schick might become interested in PA 103?

Caustic Logic said...

Adam, I take it you know that one of the forensic officers heavily criticised in connection with the fabrication of evidence against the Maguire Seven was - Thomas Hayes.

Yes indeed. If it involved alleged traces on a pair of gloves, I found the section of Maltese Double Cross dealing with it very informative. It seems his job as the doctor was to affirm and explain and give credence to the shady work of others? It sort of seems that way with Lockerbie as well. If onlt Feaday were sure PK/689 was witnin the blast zone ...

Caustic Logic said...

Oh yeah, and Feraday's involvement in numerous cases overturned on appeal, like Danny MacNamee, where Feraday's electronics obsession and suspicious mind made it all fit.

FullInquiry said...
Unfortunately law enforcement professionals particularly Federal employees, including Hayes, Thurman and Marquise, are paid to convict people and act in the perceived interests of their country.

Sadly that often does not equate with determining the truth or using the evidence to find the actual perpetrators.

I suppose most don't care that much until it affects them.

Well put and thank you. Cops in lab coats should never be accepted as scientists. Thurman's role is interesing - dicredited by the trial, he wasn't called, and really only did three things anyway, the first two obvious:
1) Contacted a CIA guy he knew who has a MST-13 on hand
2) compared it with the item/photo/whatever and saw the match, as a trained dog could do
3) With his explosives supposed expertise, he didn't know anything about electronics, but he did indirectly vouch for it being from the explosion by its appearance and thus relevant.


Caustic Logic said...

I wonder if Barry Schick might become interested in PA 103?

Believe me, I kept wondering that as I read. I imagine its well out of their jurisdiction and usual MO (no DNA, etc.), plus unwise from a PR perspective. Next they'll be saying Hitler was innocent, some will think.

Nonetheless, you helped give me an idea that I'll never mention again unless it goes somewhere.

FullInquiry said...

I dunno. It might be the kind of PR Schick would like? Besides what lawyer would shirk from finding the truth? From Justice?

That brings me to another pet peeve of mine: when judges are referred to by the title of Justice (insert name) or Madame Justice (insert name). I see this as the epitome of hypocracy. Definitely Judges judge, but they do not always serve justice (evidence the written verdict in the Lockerbie Trial).