Bluhm Blog

What's a prosecutor to do?: Rosemary Lehmberg and the Yogurt Shop Murder Case

It’s one of the most infamous false confession cases in the annals of false confessions.  It’s also a case of unrequited innocence as the two defendants who falsely confessed over eight years after the murders, still remain wrongfully convicted.  But the magic of DNA evidence, coupled with excellent legal work, has finally resulted in the release of Michael Scott and Robert Springsteen, who, like the four female victims, in the Austin Yogurt Shop murder/rape cases, were only teenagers when the crime shocked the Austin, TX community.  DNA evidence which excludes the defendants and identifies an unknown perpetrator has caused prosecutors in this case to obtain the DNA of a wide array of over 130 potential suspects and persons who may have contaminated the evidence.  Still no matches to the defendants.  Some of the new DNA came from the same unknown male and was found in two of the victims (according to the Austin American Statesman) instead of only one of the girls (as reported by the NYT). In the face of this new evidence --what’s a prosecutor to do?

Austin DA Rosemary Lehmberg is weighing her options.  She is continuing to try to link the defendants to the crimes and to find out whose DNA was found on the girls.  But she has also raised concerns about whether the case can go to the jury without a name to match the DNA.  She deserves some credit for at least raising this issue as there are several cases where prosecutors have pushed forward anyway, putting before the jury explanations without evidence – claims that the victims had consensual sex or that the DNA was contaminated. Michael Waller and Mike Mermel of Lake County, Illinois did just that in the recent conviction of Juan Rivera for the murder and rape of Holly Staker. 

The moral of the story is that confession evidence is so powerful in court and the notion of a false confession so counterintuitive that jurors may reject science and convict innocent defendants.  DA Lehmberg may get there yet – and join the ranks of the unprincipled prosecutors who are more concerned with preserving convictions than with justice – but so far she is proceeding with caution. Let's hope it she stays the course.  Stay tuned.  

Trial by stealth

My colleagues are today starting the third trial in the Juan Rivera case, and I have been monitoring the media coverage with great interest. In a WBEZ story aired this morning, a couple of statements attributed to prosecutors in Lake County (Illinois) raised my hackles.

By way of very brief introduction, Lake County is continuing to prosecute Juan Rivera for the rape and murder of an 11-year-old child in 1992 even though DNA evidence has excluded him as the source of the semen found in her body. According to WBEZ: “Prosecutors say they have effective arguments to explain the DNA evidence but they're not about to show their hand.”

Excuse me?

The suggestion that prosecutors are attempting to keep their theory of the case secret from the defense is disturbing. A trial is intended to be a truth-seeking process; hiding evidence or theories from the other side frustrates that goal. Critical testimony or evidence might be susceptible to contradiction or impeachment, but if it is sprung on the opposing party for the first time at trial, there may be no opportunity to rebut it. The losers, of course, are the jury and anyone with an interest in a reliable verdict—including the public.

Indeed, the difference in that regard between civil cases and the average Illinois criminal case is striking. There is a broad right to pretrial discovery in civil cases and witnesses are subject to deposition before testifying at trial. In contrast, prosecution witnesses in criminal cases are generally not required to speak with defense attorneys before trial and frequently refuse to do so—including police officers, who are public servants with job responsibilities that include testifying. (Capital cases are an exception; discovery depositions may be requested for “good cause.”) In other words, the parties have more rights when money is at stake than they do when person's very freedom is on the line.

In one well-known wrongful conviction case, that of Robert Wilson, the victim now says that the prosecutor advised her not to talk to the defense attorney before trial. Had she done so, she might have learned about an alternative suspect whom law enforcement officials were ignoring but who greatly resembled the description of the offender (which Mr. Wilson did not). A decade later, when the victim finally learned about this suspect, she recanted her identification of Mr. Wilson and the prosecutors dismissed the charges against him. Perhaps Mr. Wilson would not have lost those years of his life to prison had his lawyer been able to talk to the victim before trial.

The WBEZ story about the Rivera case also reports that the elected State’s Attorney of Lake County refused to be interviewed on tape because Rivera’s attorneys are “like rabid dogs who might try to twist his public statements.” This prosecutor's unprofessional accusation that defense attorneys do their job by “twisting” the facts (which, happily, is not a universal opinion) may be a convenient justification for litigation by stealth—but it only moves us farther from the arriving at the truth.

Accountability for prosecutors

I have written previously about the need to hold prosecutors accountable for misconduct in pursuing convictions.  Prosecutors play a unique and powerful role in criminal justice: they often direct police investigations, they determine when and how to charge crimes, and they decide what information generated by law enforcement will be turned over to the defense prior to trial.  Jurors commonly view prosecutors as altruistic and objective defenders of victims' rights and the common good, in contrast to "hired gun" defense attorneys.  Therefore, an unscrupulous or overzealous prosecutor has an unparalleled opportunity to distort the criminal justice process.

Please don't misunderstand -- I am not out to get prosecutors.  In fact, I have tremendous respect for the office and I admire a great many prosecutors whom I know professionally and personally.  But as in any other profession, a few bad apples can taint the entire barrel.

When prosecutorial misconduct is serious enough to require overturning a conviction, consequences are in order.  Prosecutors are largely immune from lawsuits based on their actions in prosecuting a case, so we must look elsewhere for disincentives.  Many years ago, when the Chicago Tribune still supported in-depth investigative reporting on criminal justice, the paper ran a series that pointed out how prosecutors who commit misonduct are rarely identified by name in appellate court decisions: Chicago Tribune series: Trial and Error

Therefore, when these same prosecutors run for judge or other higher office, the public is unaware of this important information.  For instance, when the Illinois Supreme Court reversed the conviction of Center on Wrongful Convictions client Alan Beaman last year because the prosecutor suppressed exculpatory information, the Court did not name the prosecutor, James Souk, who is now an elected judge in McLean County: Illinois Supreme Court decision in Alan Beaman case

Compare this to a recent decision by the Seventh Circuit Court of Appeals, blasting a federal prosecutor - by name - for her false and misleading statements at trial: Chicago Tribune article: federal judge scolds prosecutor  Such judicial criticism might serve as a powerful deterrent against prosecutorial overreaching -- even for non-elected federal prosecutors.

A Texas legislator has suggested going so far as to criminalize prosecutorial failure to disclose exculpatory information to the defense. While this proposed bill may be extreme, it is a reaction to a large number of Texas wrongful convictions recently uncovered through DNA testing, some of which involved prosecutorial misbehavior: Fort Worth Star-Telegram article 

Certainly some form of sanction for flagrant misconduct is appropriate: to educate young prosecutors, to dissuade the veterans from crossing the line, to inform the public, and to preserve the good name of the majority of prosecutors who uphold their oath of office with integrity and honor.

When do you stop fighting for your innocence?

As I have started my career as a wrongful conviction/innocence attorney, I have been struck by how many limitations there are on individuals in Illinois who are even given the opportunity to prove their innocence.  A few weeks ago, I wrote in this space about how courts have held that the Post-Conviction Hearing Act (the primary vehicle for asserting claims of actual innocence not based on DNA evidence) cannot be utilized by individuals adjudicated delinquent in juvenile court.  Another unfortunate limitation has come clear to me recently:  the "imprisoned in the penitentiary" clause of the Act.

The first sentence of the PC Act limits its application to those "imprisoned in the penitentiary."  Case law has interpreted this clause broadly to include those on parole/msr, probation, or appeal bond).  But, as I see it, this broad interpretation is not enough.  I've come across several people recently who have either completed their sentences (including their subsequent parole), or who are very close to doing so, yet have no desire to stop fighting for their innocence.  They want their names cleared, and they don't care if they are no longer in the custody of the State.  They also have a right to be compensated for their wrongful conviction no matter how long it takes.  Having any crime on your record, let alone a serious felony, will continue to haunt you the rest of your life.

The post-conviction DNA statute has no such time limitation. But we know that DNA is available only in a small minority of cases.  Innocent individuals who are not so lucky to have DNA available should nonetheless be allowed to prove their innocence whenever they are able to garner the evidence to prove it.

UPDATE: Charges dropped against Rowley and Lee

http://abqjournal.magnify.net/video/Yi-Killing-Charges-Dropped

To her credit, District Attorney Kari Brandenburg today dropped all charges against Travis Rowley and Michael Lee in the murders of the Yis.  Although the District Attorney dismissed the charges, she did not yet exonerate Lee and Rowley.  She acknowledged the lack of physical evidence -- no DNA and no fingerprints --against the two men and also noted that Rowley's defense team presented a "reasonable alibi." She also acknowledged that the authorities have been unable to place Lee and Rowley together with Bloomfield.  In February, the DA's office received an expert report (from Dr. Richard Ofshe) which raised questions about the reliability of Rowley's statement.  According to Brandenburg, the DA's office has retained an expert of its own to address the statement.  The "investigation continues" and charges can be refiled depending upon the results. 

Another False Confession in New Mexico?

     

Clockwise from the Top (Clifton Bloomfield, Travis Rowley, and Michael Lee)

In December 2007, Travis Rowley and Michael Lee were arrested and charged with a brutal double murder in Albuquerque, New Mexico.  The two men were accused in the deaths of Tak and Pung Sil Yi, an elderly Korean couple.  The police brought the men in for questioning after several neighbors told them that a man who had been selling magazines door to door had been in the area and had been acting creepy.  Rowley appeared to match a composite drawing circulated by police.  After several hours of interrogations, during which Rowley repeatedly denied any involvement in the crime, he was persuaded to admit being present at the crime scene as his friend Michael Lee beat the couple.  It was a reluctant admission, one secured with a mix of promises of leniency and false evidence ploys.  Notably, Rowley did not admit to the one critical fact that the police held back -- that the female victim had been sexually assaulted.  Both men were charged with capital murder and the State declared its intent to seek the death penalty.  Early in the investigation, however, questions began to surface about the guilty of the defendants.  Both had alibis that placed them far away from the scene of the crime and not a shred of physical evidence, including the DNA, linked the men to the crime scene.  And then came a huge break in the investigation.  DNA testing linked a third man, Clifton Bloomfield, to the crime.  Bloomfield was a suspect in several murders in the area, all of which involved attacks in people's homes.  And there was no connection between Rowley, Lee, and Bloomfield.  Case closed, right? Police and prosecutors admitted their mistake and released Lee and Rowley, right? Keep dreaming.  According to information published by the Albuquerque Journal, the police tried to get Bloomfield to agree that he committed the crimes with Rowley and Lee, in exchange for a plea that took the death penalty off the table.  Bloomfield, to his credit, has refused to implicate the men.  Efforts to get the case dismissed by the defendants have, to date, failed.  The case is set for trial on March 16 and guess who is testifying for the defense -- Clifton Bloomfield.  Unless prosecutors can legitimately link the three men, they should cut their losses now, rather than later.  Each day these probably innocent men sit in jail for crimes they did not commit may end up costing taxpayers big money down the road in judgments from civil lawsuits.  This is the second high profile rape murder case from Albuquerque in which a confession has been proven false by DNA evidence -- the other one being the case of Robert Gonzales about which I blogged last summer.

 

False Guilty Pleas and Juvenile Injustice

 

 

    

Bruce Lisker 1988                                Bruce Lisker 2009 (Robert Durrell LA TIMES)

If it is hard for people to believe that someone would confess to a crime he or she did not commit, it is even harder for people to grasp why anyone would plead guilty in open court to a crime he or she did not commit.  By pleading guilty, defendants not only forfeit the right to prove their innocence but they often foreclose any chance of prevailing on appeal or in post-conviction proceedings (and, in several states, are excluded from seeking DNA testing).  False Guilty Pleas are the dirty little secret of the criminal justice system.  We don't know how often this occurs, but in light of the increasing power given to prosecutors and the increasing severity of sentences, there is every reason to think that false guilty pleas are not uncommon.  Imagine that you are a juvenile (under the age of 18) charged with a serious crime, you live in a state in which the prosecutor has broad power in deciding whether to prosecute you as a juvenile or as an adult (perhaps a state in which the prosecutor can "direct file" your case in adult court.)  If you are convicted as a juvenile, the harshest consequence is a sentence in a juvenile prison until your 21st birthday (or perhaps your 25th), but if you are sentenced as an adult, you could face anywhere from 20 years in prison to life without parole.  You know that you are innocent, but the case against you appears to be strong -- perhaps you made a false confession or have been fingered by a jailhouse snitch or a shaky eyewitness -- and your lawyer tells you that you will probably be convicted.  What do you do?  The incentive to plead guilty is simply too powerful --even if you are innocent -- in such cases.  Add to the equation that you are an adolescent, that you are prone to making risky decisions which are focused on the short-term and not the long term consequences, that you lack maturity and judgment, and that your lawyers and parents are telling you to take the deal, and you can see why it happens. 

Two recent cases involving juveniles who appear to have been wrongfully convicted illustrate the point.  The first hails from Virginia, where a 15 year old boy admitted to rape and burglary, in exchange for a juvenile sentence.  The reason, he admitted to rape, was that the prosecutor was preparing to try the boy as an adult, a move which could have led to a 25 year sentence.  As Pamela Gould, of the Fredericksburg, Va. Free Lance Star writes, the case took an unusual turn http://fredericksburg.com/News/FLS/2009/022009/02052009/442642/index_html  A few months after the guilty plea, the victim's mother hired an attorney to help right a wrong --her daughter recanted her claim of rape, stating that the two had engaged in sexual activity consensually and that they had done so on a previous occasion: "[The boy] didn't rely rape me in fact we did it befor. [He] was a friend of mine befor this even happend. Me and [the boy] where good friends, but now it just seems that I lied about [him]. Now I will never forgive myself. [He] didn't realy come in by himself, I let him in." The boy has been released but his conviction still stands.  Lawyers from the Virginia Innocence Project and JustChildrencq, a program of the Virginia Legal Aid Society are seeking to vacate the conviction.  If the conviction stands, the boy will remain on the state's sex offender registry.

Bruce Lisker's case is even more tragic.  In 1988, Lisker was wrongfully convicted of killing his mother, a crime which took place in 1983 when Lisker was only 17.  Five days into his first trial, the judge made known that he would sentence Lisker to a juvenile sentence until his 25th birthday in exchange for a plea.  Here's how Scott Glover and Matt Tait described the scenario in their brilliant investigative series on Lisker's case in the LA Times: 

"Mulcahy (Lisker's attorney) ordered him to do it (take the plea). Then Bob Johnson, a lawyer and family friend spoke to him.  "He got right in my face and said I had to take the deal. 'They are going to convict you of first degree murder if you don't, Lisker recalled."

http://articles.latimes.com/2005/may/22/local/me-lisker22

Lisker took the deal.  When questioned by psychologists as part of a pre-sentence investigation, Lisker admitted killing his mother, going so far as to blame Satan: "I fell to what he wanted me to do.... It was so stupid."  The psychologists saw through Lisker's lies.  They, however, did not see them as lies, but as evidence of manipulation and a lack of remorse.  Upon receiving these reports, the judge backed out of the deal.  Lisker was allowed to withdraw his plea and go to trial. He was convicted and sentenced to life. 

Lisker became eligible for parole in 1992.  Hoping that it would help him gain his freedom, Lisker again admitted to killing his mother -- another false guilty plea. And again, it did not work.  When he next appeared before the Board in 1999, he again claimed his innocence. After his parole was denied, Lisker set out to prove his innocence and to get his conviction reversed.  As Lait and Glover have reported, Lisker's efforts, coupled with a reinvestigation of the case by the LA Times and the LA Police Department, have raised serious questions about Lisker's guilt.  This past week, a federal magistrate has ordered that Lisker's conviction be vacated and that he be retried or released.  While the magistrate's decision is not final -- it must be reviewed by a federal district court -- the prospects for Lisker's release are looking good for the first time since he was taken into custody -- 26 years ago.  To review the magistrate's decision and and news of the decision, read Lair and Glover's latest piece at:

http://www.latimes.com/news/local/la-me-lisker4-2009mar04,0,6497197.story

There are many good reasons for revisiting laws that make it too easy to try children as adults, the best being perhaps that it leads to higher recidivism rates when youth are released.  Youth tried as adults are more likely to commit crimes upon release, they commit them sooner and their crimes are more violent.  But another reason is that it creates too big a punishment gap between juvenile and adult court, a gap which gives prosecutors too much power to coerce guilty pleas from innocent suspects.  One way to solve this problem is to take the decision of whether to transfer a minor out of the hands of prosecutors (whose decisions are unreviewable) and place it into the hands of judges.  For those who are still transferred, the idea of "youth discounts" for juveniles sentenced in adult court, an automatic reduction of sentences for juvenile offenders which makes the court take their youth as a mitigating factor, is critical in reducing the punishment gap between juvenile and adult court, a gap which gives prosecutors too much power in plea negotiations and gives too strong an incentive for innocents to plead guilty.  Such discounts would also except juveniles from life without parole, mandatory minimum sentences, and "truth in sentencing" schemes which have exacerbated the punishment gap between juvenile and adult sentencing.  For juveniles sent to adult court, there must also be an opportunity to send the juvenile back to the court for trial sentencing -- "a reverse waiver" option. 

 

 

A mother's love . . . Remembering Bobbie Steidl

What does a mother do when a son is sent to death row for a double homicide he didn't commit?  One can only imagine the personal anguish Bobbie Steidl felt for 17 years while her son Randy fought for his life and his freedom.  But what she did was attend each and every one of Randy's court appearances and provide him the inner strength that enabled him to survive those dark times.

Bobbie was there, of course, when Randy walked into the sunshine and away from Danville Correctional Center on May 28, 2004.  Bobbie lived to see Randy make a life for himself on the outside, maintain employment, purchase a home, and become a national spokesperson against the death penalty.  By the end of Bobbie's life, Randy had moved close enough to his mom to be able to stop and check on her every day.  He was finally in a position to care for her, just as she had cared for him all those years of his wrongful incarceration.

Bobbie was a tiny woman, but her heart was huge and her love was boundless.  Next to any list of exonerees should be a companion list of those family members and friends behind the scenes who push lawyers, investigate facts, raise funds, and lend critical moral support to wrongfully convicted prisoners awaiting vindication.

Barbara "Bobbie" Steidl belongs at the top of that list.  She passed away on February 23, 2009, at the age of 79.  She will be greatly missed by all who knew her and especially by her sons Randy and Rory Steidl.

Read about Randy's case

Read about Randy's anti-death penalty work

  

(Randy Steidl and his mom on the day of Randy's release from prison)

A lonely death . . . then exoneration

Timothy Cole, separated from family, friends, and decent medical treatment for his asthma, lapsed into unconsciousness in his Texas prison cell and died on December 2, 1999.  He had served 14 years of a life sentence for a rape he always maintained he did not commit.

Earlier this month, Cole was officially exonerated after DNA testing proved him innocent.  It is unutterably sad that Cole, a college student with a promising future at the time of his arrest, did not live to see his complete vindication, especially after he turned down an offer of parole if he would just admit his guilt.

What is particularly disturbing about this wrongful conviction is that the actual perpetrator, Jerry Johnson, confessed to the crime as far back as 1995, four years before Cole's death.  Johnson wrote to the court and asked for assistance in confessing to the crime.  He also wrote to the district attorney who had prosecuted Cole.  Johnson was ignored.  Only after he penned a letter in 2007 to Cole, whom he did not know had died, did someone take Johnson seriously.  Cole's family received the letter and started the process that exonerated Cole -- and conclusively fingered Johnson.

Even as far back as Cole's trial, though, there were red flags that called into question Cole's guilt.  These included:

• The rapist was a chain smoker, whereas Cole was an asthmatic who did not smoke.
• Cole had an alibi: he was at his brother's apartment with several friends at the time of the crime.  (These witnesses were branded liars by the prosecutor.)
• No physical evidence linked Cole to the rape.
• The evidence against Cole rested on the cross-racial identification testimony of the victim, who first identified Cole from a photo lineup consisting of a color Polaroid of Cole and five black-and-white photos of other men.

It is therefore not surprising that Johnson, who was a chain smoker and who was jailed for similar crimes in the same geographic area, should turn out to be the true rapist.

I would hope that the judge and prosecutor who received Johnson's confessions gave them serious consideration and had good reasons for not replying or initiating DNA testing on their own.  I fear, however, that Johnson's letters were either filed or trashed without a second thought.  In all likelihood, systemic reluctance to admit error resulted in Timothy Cole never again breathing free, and indeed never again breathing at all.

NPR story on Timothy Cole

Innocence in Juvenile Court?

In a decision that is otherwise not particularly noteworthy for wrongful conviction purposes, the First District appellate court recently pointed out that the Post-Conviction Hearing Act does not apply to juvenile proceedings.  In re Timothy P., No. 1-07-1518 (January 28, 2009).  Several previous appellate court cases have so held, although the Illinois Supreme Court has never spoken on the issue. 

The Post-Conviction Hearing Act is the primary procedural vehicle used for asserting innocence claims based on new evidence.  It is also the means of attacking constitutional violations that occurred at a defendant's trial.  What are we to take from the exclusion of minors' adjudicated delinquent in juvenile court from this Act?  Does this mean that no innocent minor is ever found guilty in juvenile court or that no minor has his constitutional rights violated?

We know this is not the case.  Rather, there is reason to believe that young people may be even more susceptible to wrongful convictions.  The growing list of exonerees includes many individuals who were accused when they were under 18.  While most were tried and convicted in adult court, this is because the vast majority of exonerations are in murder and rape cases, which are most often tried in adult court even when the accused is under 18.  We also know that the likelihood of a false confessions increases when the accused is a young person.  Certainly, there are young people who have falsely confessed to lesser crimes who have subsequently been convicted in juvenile court.

In fact, there is reason to believe that juvenile court might be particularly susceptible to wrongful convictions.  With no jury trial right, the same trial judge that may have previously presided over a case of the minor is the fact-finder in the new case.  This mihgt create an inherent bias in the judge's mind against the minor. Moreover, very few juvenile cases are appealed, so the appellate court is not given the opportunity to correct errors in judgment.  Further, the culture of juvenile court -- which at times discourages zealous advocacy in lieu of "the best interests of the minor" -- may contradict the presumption of innocence.  The reality is that the issue of wrongful convictions in juvenile court is largely unexplored.

Why should we care?  While it is true sentences in juvenile court may be less severe, there are serious consequences.  A minor may be imprisoned until he is 21.  A sentence of probation puts a minor in the system, and a subsequent, even non-criminal infranction could lead to prison time.  Even a small adjudication may affect a young person's future. For example, a misdemeanor sex offense requires a minor to register as a sex offender.  All felony offenses require the minor to submit his DNA into a state and national federal database.  And a juvenile adjudication may affect a minor's job or college prospects in the future, specifically a government job.  

The Illinois Supreme Court should address the issue of the applicability of the Post-Conviction Hearing Act to juvenile proceedings.  Alternatively, the general assembly should clarify the Act to make clear that it includes delinquency proceedings.  It does not make sense that Act does not apply to juvenile adjudications.