FBI Stops Gun Residue Testing

FBI lab scraps gunfire residue
Agency won't do analysis, putting evidence in doubt
By Julie Bykowicz
Sun reporter
May 26, 2006

The FBI is no longer analyzing gunshot residue in its investigations, a blow to once highly regarded evidence used to suggest that a suspected criminal had fired a weapon.

Lawyers, scientists and law enforcement officials across the country said they were astonished by the decision and said it could mean the end of using such evidence. It also could become a weapon for defense attorneys in pending cases and in efforts to overturn convictions.

"If the premier forensic science organization in the world isn't using gunshot residue, that certainly raises some questions about it," said Timothy S.Brooke of the American Society for Testing and Materials, which sets the policies used by many police crime labs, including Baltimore's.

Special Agent Ann Todd, spokeswoman for the FBI Laboratory, said the change was communicated electronically to FBI field offices on March 15, though it has not been widely publicized.

Todd said the FBI stopped analyzing gunshot residue because of a shift inpriorities, not a lack of confidence in the science. The lab had performed the analysis for decades but in recent years had been receiving fewer than 10 requests per year, she said. The agency decided its resources were better used in "areas that directly relate to fighting terrorism," she said.

But the FBI's abandonment of the evidence followed a closed-door summit last June to discuss its gunshot residue policies and subsequent tests at the agency's crime lab in Quantico, Va.
The resulting contamination study, obtained by The Sun, documents the presence of hundreds of particles consistent with gunshot residue in several areas of the lab. Such contamination could jeopardize criminal cases because it casts doubt on the origin of the residue in a sample.

This marks the second time in a year that the FBI has distanced itself from forensic evidence. In September, the agency announced it had stopped making comparative bullet lead analyses, a four-decades-old technique that purports to link a fired bullet with a particular box of bullets. The FBI cited concerns about costs of maintaining the equipment and the resources necessary to do the examination as reasons for its decision, while saying it "still firmly supports the scientific foundation" of the analysis.

But that change came on the heels of a National Academy of Sciences report that called comparative bullet lead analysis unreliable. "In my experience, forensic labs only abandon techniques they've been usingfor decades when they realize that what they're doing is junk science," said Michele Nethercott, co-chairman of the forensics committee of the NationalAssociation of Criminal Defense Lawyers and a public defender in Baltimore.

Even as jurors - exposed to television shows such as CSI: Crime Scene Investigation - are increasingly hungry for forensic evidence, skepticism has grown about the way in which it is used in court. A key problem has been that all trace evidence, including gunshot residue, can be presented to jurors with a false degree of certainty. And some once-powerful prosecution tools, such as microscopic hair analysis and bite-mark comparisons, have been discredited in recent years.

Gunshot residue is made up of the microscopic particles that explode from a gun when it is fired. The particles can be collected from suspects' hands, analyzed and used as evidence in court. Called "GSR," the particles float like ash and never disintegrate. There can be a danger that surfaces - from a police officer's hands to laboratory worktables - can become contaminated and then contaminate fresh samples.

An ASTM committee also is in the process of reviewing its policy about
gunshot residue, which was last revised in 1995, said Brooke, director of ASTM's technical committee operations. FBI agents, along with state and local police officers, scientists and academics, are on the review committee.

On a local level, Baltimore prosecutors said they have been using the evidence sparingly in recent months, though the city Police Department's crime lab turns over about 400 gunshot residue tests each year.

Reports last year in The Sun raised questions about the gunshot residue analysis conducted by the city crime lab. A 2001 study found gunshot residue in testing areas that were supposed to be clean, according to internal police documents.

Police officials have said they solved that problem by moving the testing area away from firing ranges. And unlike dozens of other agencies, including the Maryland State Police and, until March, the FBI, Baltimore's crime lab counts a two-element particle as gunshot residue. Most agencies use a higher standard: considering only a three-element particle to be gunshot residue.

Matt Jablow, spokesman for the city Police Department, said the city lab will revisit its policies after the ASTM has completed its review of the gunshot residue standard.

ASTM's current policy includes the two-element particle as gunshot residue. Frederic Whitehurst, a former FBI crime lab employee who became a whistle-blower in 1997 when he questioned the lab's evidence handling, said the science behind gunshot residue analysis is basically sound. It's the unavoidable contamination, he said, that has been a pervasive problem.

A.J. Schwoeble, director of forensic science at Pennsylvania-based RJ LeeGroup, which services 500 law enforcement agencies and crime labs, said contamination concerns can be overcome. Police departments and crime labs simply must take precautions, he said, such as wearing gloves at the crime scene, storing samples in sealed vials and frequently testing the lab.

Three years ago, the FBI opened a $130 million, 500,000-square- foot laboratory on its campus in Quantico. Officials touted the building's modern layout of lab rooms and office space separated by corridors and independent venting systems as a way to ensure a sterile environment for conducting scientific analysis.

But the contamination study shows particles of gunshot residue scattered throughout parts of the lab. "Of course they can't keep the gunshot residue out - there are firing ranges all over the place out there," Whitehurst said.

Samples collected over a five-day period in late June and early July from surfaces such as desks, door handles and railings revealed the presence of 93 gunshot residue particles and more than 100 additional particles consistent with the residue.

On June 30 - the day with the highest levels of contamination - a dozen particles were found on a conference table, 58 were found on a "desk/case file"and 16 were found on railings and door handles, according to the report.

The report offers no conclusion of the findings or suggestions about decontamination. Todd, the FBI lab spokeswoman, dismissed the study as "unofficial and limited."

Some defense attorneys say they plan to seize upon the FBI's abandonment of gunshot residue analysis as a way to unravel pending criminal cases and overturn convictions.

Matt Hennessy, a Houston lawyer involved in a high-profile murder case with gunshot residue evidence analyzed by the FBI, said he would be "shocked" if an FBI agent took the stand to testify about gunshot residue.

Hennessy represents David Temple, a high school football coach accused of executing his pregnant wife with a shotgun in 1999. He said a gag order prevents him from talking specifically about the Temple case, which has been delayed for months because the FBI's gunshot residue analyst has been on medical leave.

"If the FBI isn't using [gunshot residue] anymore," Hennessy said, "that tells me they no longer have confidence in it."

Whitehurst, now a North Carolina attorney who runs a nonprofit wrongful-conviction group called the Forensic Justice Project, said he likely will ask the FBI to submit names of defendants convicted in cases that involve gunshot residue.He said he has asked for a similar list with regard to the discredited comparative bullet lead analysis evidence.

"The reality of the science we're dealing with is that it's very iffy," Whitehurst said. Gunshot residue evidence, he said, is no exception."Most of the violent crimes that people are convicted of involve guns. Many people have been convicted on the basis of GSR. That makes this a potential 'Ohmygosh.'"
Copyright © 2006, _The Baltimore Sun

An interesting idea: vacations for prisoners

from the May 23, 2006 edition - http://www.csmonitor.com/2006/0523/p07s02-woeu.html In Bosnia, convicts get weekends off Our reporter learns that the former Yugoslav state offers annual vacations and weekend furloughs to prisoners. By Beth Kampschror Prison furloughs in a relatively lawless country like Bosnia may seem like a really bad idea. But they're the norm here, as I discovered while talking to a local journalist who recently took a wasted trip to northern Bosnian prison to interview a murderer. "They told me he was at home" for Labor Day, Bosnia's May 1 beach-and-barbecue holiday, Svjetlana Celic told me. She shrugged. "I wasn't surprised, because I know that's the way it works." Stories like this are common in the region, and I figured that granting furloughs was another leftover of the former Yugoslav system, which fell apart during four wars in the 1990s. Bosnia, however, seemed a sketchy place to continue the practice. Since the 1992-95 war ended, this West Virginia-sized country has been divided into two ethnically based ministates, and ethnic divisions still hamper police cooperation. In a phone call to Bosnia's Muslim-Croat Federation, the justice official Resad Fejzagic confirms that the policy is based in Yugoslav history. He tells me furloughs are humanitarian, and suggests I go to prison - or rather, on a visit to Sarajevo's medium-security jail in the center of town - to get the lowdown. I'm buzzed into the Austro-Hungarian building, where a guard is languidly X-raying a pile of prisoner care packages stuffed with cookies and juice. Furloughs are rewards for good behavior, prison director Muhamed Agic tells me, and it's easier to assimilate prisoners back into society if they've already been out in it. The prison's deputy director for treatment, Ferid Niksic, says granting furloughs depends on the length of the sentence and the type of crime. "Privileges aren't math," he says. But the rule of thumb is that a prisoner in for up to five years has to serve at least one-fifth of his sentence before he's eligible for a furlough. For sentences of up to 10 years, at least one-fourth of the sentence has to be served. It's two-fifths, or 40 percent, of the sentence for anything above 10 years. While I ponder out loud the fact that someone could behead an entire family, get Bosnia's maximum 40-year sentence, and be sitting on a beach 16 years later, Niksic admits that Americans are often flummoxed by the practice. He recalls how after the war, he gave his inmate list to an American officer with the UN's International Police Task Force (IPTF), which was working with the Bosnian police and inspecting prisons, including the Sarajevo prison. "Some convicts on the list were here, and some were on their annual vacation," Niksic says. "The American said, 'Annual vacation?' And he repeated it three times. He couldn't believe that was the way it worked." Other European countries have similar practices. In Hungary, as in Bosnia, well-behaved prisoners can get weekends off. French prisoners can be released for the death or imminent death of a relative. But few European jails can rival Greenland's Institute for Convicts, featured by The Wall Street Journal in 2004. Besides enjoying weekend furloughs, most of the 60 inmates have day jobs outside the prison and don't need to return until 9:30 p.m. Others can go on solo shopping trips. In the summertime inmates are handed shotguns to go reindeer hunting. The only rules for such trips? They must be accompanied by armed guards. Oh, and they can't be drunk. One prison in Bosnia's Serb half, the Republika Srpska (RS), is apparently taking a page from Greenland's book. Inmates at Tunjice prison aren't given firearms, but a recent surprise inspection by RS officials revealed 40 prisoners absent during the daytime, and dozens of cars parked out front at night, leading inspectors to conclude that the prisoners are doing time only at night - while they're sleeping. Niksic says that not even 1 percent of inmates abuse their furloughs. "It happens," he acknowledges, but says that the prison lets the police in the inmate's hometown know ahead of time that a prisoner will be out for the weekend. Furloughed prisoners must carry a paper permit, with communist-era columns of typewritten dates and ubiquitous blue stamps, with them at all times. Permits and police aside, some jailbirds do return to crime. In a well-publicized case last year, two drug dealers on a weekend furlough from Tunjice prison were promptly re-busted for transporting and producing narcotics. But a police spokesman in nearby Banja Luka recently told Radio Free Europe that in the past year RS police had evidence of just three cases of weekend recidivism - two of which were the drug dealers. (The other was a car theft and racketeering case.) Or maybe reoffenders just aren't caught. Highly respected Romanian journalist Paul Radu, cofounder of the Romanian Center for Investigative Journalism, told me that he was in Bosnia awhile back to interview a Bosnian man doing time for trafficking - buying and selling women as prostitutes, and usually brutalizing them in the process. Not only was the man on a weekend furlough, he was also once again ensconced in his central Bosnian nightclub that doubled as a brothel. Mr. Radu met him there, and the man said that he was no longer the owner. But then he trotted out the women to persuade Radu that they were being treated well. And the self-styled reformed pimp fell right back into his old job. "Those girls were half naked," Radu says, "And he also proposed that I go up to the rooms." Copyright © 2006 The Christian Science Monitor.

Should we follow England in this area

DNA of Criminals' Kin Cited in Solving Cases

By Rick Weiss
Washington Post Staff Writer
Friday, May 12, 2006; A10

Cops would solve more crimes if they expanded their use of the nation's DNA fingerprinting system to test close relatives of known criminals, according to a research report that raises novel and difficult civil liberties issues.

The proposed crime-control strategy, already in growing use in Britain, is based on two central facts: Close relatives of criminals are more likely than others to break the law, research has shown, and, because those individuals are related, their DNA "fingerprints" will be similar. That suggests that if police find a crime-scene specimen with a DNA pattern close to -- but not exactly the same as -- that of a known lawbreaker, a relative of that known criminal may be the culprit.

In Britain, where rules governing the use of DNA for fighting crime are more permissive than in most U.S. states, the approach has been used dozens of times and has helped solve several cases, said Frederick R. Bieber, a Harvard medical geneticist who led the new study with colleague David Lazer and Charles H. Brenner of the University of California at Berkeley.

In one recent case, for example, a specimen from a 1988 murder scene was found to have a DNA pattern similar to that of a 14-year-old boy whose DNA was on file with the police. Investigators obtained a sample from the teenager's uncle, which perfectly matched the crime scene specimen and led to his conviction.

The new analysis, published yesterday in the online edition of the journal Science, is the first to use sophisticated computer models to predict just how useful such "familial" searches may be.

The computation is based on well-established facts -- such as the prevalence of certain DNA variants in the population -- and less precise assumptions, such as the odds that a criminal has a close family member whose DNA is already on file.

In the United States, those odds are rather high: A 1999 Justice Department survey found that 46 percent of prison inmates had at least one sibling, parent or child who had been incarcerated at some point.

All states take DNA from all convicted felons, and many get specimens from a wide range of others.

Using conservative assumptions, Bieber and his colleagues calculated that U.S. law enforcement authorities could increase their "cold hit" rate (the percentage of DNA searches that result in perfect matches) by 40 percent if they were to check the DNA patterns of criminals' family members when searches generate near misses.

Cold-hit rates vary widely today. Assuming they average about 10 percent, Bieber said, a 40 percent increase would bump that rate up to 14 percent.

"This is proof of concept that existing methods of kin analysis could be used in forensic analyses with an expectation of success in a fair proportion of cases," said Bieber, who is to present the findings tomorrow at a meeting of the American Society of Law, Medicine & Ethics in Boston.

The approach raises hackles among many civil libertarians, who note that Britain does not have a Bill of Rights. Under the Fourth Amendment, U.S. authorities are generally required to show compelling evidence that a person has committed a crime before they can demand a DNA sample.

"If I give up a sample, does that mean I've also committed all my blood relatives to a search?" asked Carol Rose, executive director of the American Civil Liberties Union of Massachusetts. "That's where the technology is moving faster than the law."

Familial testing would also amplify racial inequities in the criminal justice system, which already focuses disproportionately on blacks, said Troy Duster, a New York University sociologist.

In the United States, where the DNA fingerprints of about 3 million people are stored in a national criminal database, familial testing has only rarely been acknowledged. Tom Callaghan, custodian of that database, said the FBI, which handles federal cases and those in the District, does not pursue partial matches.

But no state is precluded by law from using the approach. And at least two -- New York and Massachusetts -- have statutory language expressly allowing it.

A few years ago, DNA from a specimen saved from a 1984 North Carolina rape and murder was compared against that state's database and was found to be very similar to the pattern of a man whose DNA was on file. Police trailed the man's brother and performed a DNA test on a cigarette butt the brother discarded. When the pattern was found to match the crime specimen's exactly, the brother confessed and was convicted.

Bieber acknowledged that the strategy could impinge on civil liberties.

"It's a balancing act," he said. "But I think we are duty-bound to explore the potential."

© 2006 The Washington Post Company

What Justice Really Is

Friday, May 12, 2006
Justice and its imperfections
Let's take the cases one by one.
Copyright © 2006 Blethen Maine Newspapers Inc.


Verdicts and sentences in three high profile criminal cases in the news this week provide an object lesson in the imperfections of our legal system, as well as an understanding that if we are looking to that system for neat answers and satisfaction, we're looking in the wrong place. Sometimes justice can leave us unsatisfied.
Let's take the cases one by one.
Earlier this week, Zaccarias Moussaoui -- who last week was convicted by a jury of being part of the 9/11 conspiracy and sentenced to life in prison by the presiding judge -- recanted his guilty plea.
Why?
Evidently, when jurors refused to recommend he be put to death for his secondary role in 9/11, Moussaoui realized that the American judicial system was not stacked against him. "After reviewing the jury verdict and reading how the jurors set aside their emotions and disgust for me and focused on the law and the evidence," he said, " I now see that it is possible that I can receive a fair trial even with Americans as jurors."
It was an extraordinarily rational statement from a defendant who did virtually everything in his power during the trial to demonstrate his craziness, and an unexpected -- if patently self-serving -- tribute to our legal system from one who had vilified it as incapable of meting out justice.
But for a nation that looked to this trial as the one place where our collective need for revenge could be satisfied, it was also a bizarre moment. For many Americans, the fact that Moussaoui wasn't sentenced to death demonstrated that our justice system was fundamentally flawed.
But in fact, what it really demonstrated is that the law is complex and nuanced, and that we have moved beyond the primitive level of an eye for an eye, a tooth for a tooth. Moussaoui's sentence came as a surprise to some, a disappointment to others -- but in the end, it was just because it came at the end of a fair trial, and even the defendant from hell recognized that.
On Wednesday, in two New England courthouses, justice was perhaps more controversial in its applications.
In a Providence, R.I. courtroom, Judge Francis J. Darigan, Jr. sentenced Daniel Michael Biechele to four years in jail for having lit the fireworks that caused a night club fire which killed 100 people and injured more than 200 others.
The sentence -- which was far less than the 10 years the judge could have meted out -- came after a tearful and moving statement of remorse from Biechele, who told the packed courtroom that "I would do anything to undo what happened that night...I'm so sorry for what I have done."
Judge Darigan's relative lenience came in a case with virtually no precedent; the charge against Biechele was "misdemeanor manslaughter," which is when a petty crime (in this case, lighting fireworks without a permit) causes someone's death.
"This court is most acutely aware that there is no sentence which could be imposed today...which could possibly reflect the value of the lives lost," noted Darigan, before he imposed the sentence. "Any attempt by me here today or others to correlate any sentence imposed today with the value of these lives...would be a dishonor to the memory of the victims of this tragedy."
Judge Darigan is a wise man, and he did something unusual in delivering the verdict -- he admitted that the justice system was unequal to the task of punishment or even of giving partial comfort to those hurt in the tragedy. He quoted the Greek poet Aeschylus when he said that wisdom will ultimately come to the families of victims "through the awful grace of God," not through any act of law.
Which brings us to the case of Jon Dilley, who was convicted Wednesday in a Portland courtroom of manslaughter, not murder, for shooting his wife and mother to death in 2004. The defense claimed that Dilley's psychological state at the time of the killings rendered him virtually incapable of intent in the act he was committing; it was a complex defense that clearly gave the jury pause.
They deliberated for more than eight hours over two days and two women on the panel appeared to be crying when they delivered the verdict.
The jury's conclusion satisfied neither the defense nor the prosecution, and it is likely the case will face numerous appeals. But we are left with a singular impression from this and the two other trials of note this week: That justice is not about comforting us.
It is not about pat answers and perfect sentences. When people are killed, the truth is that there is no sentence that can bring them back, nor is there true justice for those who are left behind.
What we can take satisfaction in is that we have a system that requires us to behave honorably even when dealing with thieves and murderers, in which we respect the rights of individuals and the requirements of due process.
In the end, the legal system is less about what it produces, than how it is done. And in all three cases, from Virginia to Rhode Island to Maine, we did the best we could do.

Government Corruption

2006

F.B.I.'s Focus on Public Corruption Includes 2,000 Investigations

By DAVID JOHNSTON

WASHINGTON, May 10 — A post-9/11 effort by the F.B.I. to concentrate on public corruption now includes more than 2,000 investigations under way, highlighted by the Jack Abramoff lobbying inquiry, the racketeering and fraud conviction of former Gov. George Ryan of Illinois, and the multipronged corruption probes after the guilty plea by Randy Cunningham, a former Republican House member from San Diego, bureau officials said.

As one of the Bush administration's least known anticrime efforts, the F.B.I. initiative has yielded an unexpectedly rich array of cases. The results suggest that wrongdoing by public officials at all levels of government is deeply rooted and widespread. Several of the highest profile cases in which the F.B.I. played an active role involve Republicans.

Bureau officials believe that the investment in corruption cases is easily worth the cost. In 2004 and 2005, more than 1,060 government employees were convicted of corrupt activities, including 177 federal officials, 158 state officials, 360 local officials and 365 police officers, according to F.B.I. statistics. The number of convictions rose 27 percent from 2004 to 2005.

In a telephone interview on Wednesday, the F.B.I. director, Robert S. Mueller III, said the bureau was uniquely positioned to investigate corruption. Recalling his days as a prosecutor in Boston, he said: "Having prosecuted public corruption cases, you come to realize first of all that public corruption tears the fabric of a democratic society. You lose faith in public officials, it leads to cynicism, it leads to distrust in government."

The bureau's corruption effort has forced it to shift agents from other criminal programs. Violent street gangs, organized crime and large-scale narcotics trafficking organizations remain high priorities. But bureau officials like Chris Swecker, the top criminal enforcement official, acknowledged that the F.B.I. had reduced its investigation of single-victim fraud cases; smaller, localized drug rings; and nonviolent bank robberies. "We've had to make some very difficult choices," Mr. Swecker said.

Mr. Mueller is giving his first speech on the bureau's corruption effort on Thursday in San Diego, which Mr. Cunningham represented in Congress before he resigned and pleaded guilty to accepting more than $2 million for steering military contracts to friends and supporters.

In the interview, Mr. Mueller said the F.B.I. paid no attention to whether a public official was a Republican or a Democrat. "We have traditionally had the independence to investigate corruption regardless of political affiliation and no matter how powerful the official is," he said, adding: "Over the years it has not made any difference to the F.B.I. People from both parties have been investigated."

The F.B.I. is starting a Web site, reportcorruption.fbi.gov, through which people can send tips on corruption, although not anonymously, to be reviewed by agents at the bureau's headquarters.

Perhaps the most far-reaching of the cases is the one involving Mr. Abramoff, the former lobbyist at the center of a sweeping federal investigation into whether he improperly influenced decisions in Congress. He pleaded guilty to corruption related charges in Washington and Florida earlier this year.

In Illinois, Mr. Ryan was convicted last month of 18 counts of helping to award state business to supporters and misusing state resources for political benefit.

Not all high-profile cases involve Republicans. Last week, a Louisville businessman pleaded guilty in federal court in Virginia to bribing Representative William J. Jefferson, Democrat of Louisiana, with more than $400,000 in payments, stock in his high-tech company and a share of the profits to promote the firm's high-tech business ventures in Africa. Mr. Jefferson has denied ever accepting payments in return for government service.

Much of the public corruption caseload involves state and local officials. The F.B.I. has reach into government operations throughout the United States, with names like Lively Green, an investigation into corruption along the southwest border; Wrinkled Robe, a bribery inquiry that led to several arrests, including two state judges in Louisiana; Tennessee Waltz, a sting operation that led to the arrest of several Tennessee state lawmakers; and Midas Touch, an investigation of the New Mexico state treasurer's office.

The agency has long prosecuted public corruption, but in the 1980's and 1990's, street gangs, drugs and violent crime had a higher priority. "In the field offices, corruption wasn't always the highest priority," Mr. Swecker said. He said top officials in the bureau's 56 field offices largely set their own priorities.

"The director recognized the need for greater clarity and priorities," Mr. Swecker said. "I don't think anybody recognized the number and quality of cases we would generate."

In the restructuring of the F.B.I. after the Sept. 11 attacks, as hundreds of agents were shifted from criminal work to counterterrorism, bureau officials moved more than 200 agents to corruption as an area in which the F.B.I. had almost exclusive responsibility and in which Mr. Mueller and his aides believed the bureau could have the greatest impact.

"We looked at what we really needed to do that nobody else does," said James W. Burrus Jr., a senior official in the criminal division and an architect of the anticorruption program. "This is 100 percent ours."

Almost every one of the F.B.I.'s cases has been the subject of widespread news reports by local news organizations, and Time magazine has reported on the national scope of the effort. In some instances, for example in the cases of Mr. Cunningham and Mr. Abramoff, reporters appear to have been the first to uncover some aspects of possible wrongdoing. Agents regard such articles as tips for which they can claim success if they succeed in bringing a case.

Copyright 2006 The New York Times Company

Criminal 10 Percenters

L.A.'s Busiest Crooks to Do More Time
Police and prosecutors focus on the 10% behind half the crime. Civil libertarians are wary.
By Patrick McGreevy, Times Staff WriterMay 8, 2006
Working from research showing that 10% of criminals commit up to half of all crime, Los Angeles police officials and prosecutors have agreed on a program to seek the stiffest possible penalties for the most frequent repeat offenders, even for relatively minor crimes.The so-called 10 percenter program, which could begin operating in Los Angeles County courtrooms this summer, aims to reduce crime on the streets by keeping repeat criminals behind bars as long as possible. Police Chief William J. Bratton said that would help the Los Angeles Police Department, which has fewer officers per capita than other major cities.
ADVERTISEMENT "With our limited resources, we can't do everything, everywhere, all at the same time," Bratton said. "This gives us the maximum bang for the buck by focusing on that 10%." The program does not require passage of any laws but rather involves police and prosecutors working together to identify repeat offenders. They will use a new, standardized form to document why convicted criminals merit special attention, then ask judges to sentence them to the maximum amount of time possible.In some cases, repeat offenders will be spotted through court records, which list convictions. But in others, those targeted for longer sentences will be identified based on police reports, intelligence data and arrests or other accusations that did not result in convictions. That material is not admissible against a defendant during a trial but can be considered by a prosecutor in deciding what penalty to seek and by a judge at sentencing.The program has raised red flags among civil libertarians and defense attorneys, who fear it could be abused. The brainchild of Assistant Chief George Gascon, the 10 percenter program holds that because those who commit major crimes tend also to be responsible for minor ones, locking up criminals who repeatedly commit minor offenses could help protect the city from their more serious crimes. Though the idea remains a novel one, some Los Angeles officials are embracing it.Gascon said studies done throughout the country have concluded that 10% of suspects commit 50% of crimes, 10% of crime victims are involved in 40% of crimes and 10% of crime locations are involved in 60% of crimes.Taking into account those factors is a strategy that is especially important for an understaffed department like the LAPD. Los Angeles, with 3.8 million residents, has 9,314 police officers. Chicago, by contrast, has 2.9 million people and 13,500 officers. The LAPD has been focusing enforcement on 10 percenter criminals for more than a year, but now the Los Angeles County district attorney's office has agreed to carry the program into the courtroom.After an identified 10 percenter is charged with a crime, LAPD officials say, prosecutors have the authority to help determine the eventual punishment, including whether the person is sentenced to state prison, goes to county jail or gets probation. Prosecutors can offer plea bargains that result in reduced sentences, and they have some discretion in recommending sentences. Currently, they often look at a person's rap sheet of convictions, but there is no formal mechanism for police officers to provide additional information about the person's criminal history. Prosecutors have discretion to ask for the most severe penalty that's appropriate, but they need evidence that it is justified, said Janet Moore, director of central operations for the district attorney's office.The 10 percenter program would ensure that prosecutors had the information they needed to seek stiffer sentences.In a series of meetings during the last few months, police and prosecutors have agreed on the basic rules of the program. Now they are developing a standard form that will be filled out by officers to provide information that justifies seeking more jail time, Moore said.Police "are making a request that we look at the person more carefully," Moore said. "It is incumbent on the officer to designate a person as a 10 percenter. They must explain to us why that designation is justified. There has to be a solid basis in law for doing so."Lt. Tom Murrell of the LAPD's Foothill Division said some 10 percenters don't have long histories of convictions on their rap sheets, but there can be evidence that they were involved in other crimes.After a person is arrested, officers can look through past arrest reports to determine whether there are similarities to other cases. For example, a robber might have used the same words in shaking down victims in several instances. If that information is added to the rap sheets provided to prosecutors, it could provide a basis for seeking a tougher penalty."If the LAPD is able to show us the designation is justified, we will try to seek the maximum penalty that is appropriate," Moore said.L.A. County Dist. Atty. Steve Cooley, who likes the concept, said his office might expand the program to include other cities in the county if it works in Los Angeles.However, the idea that some offenders would get treatment different from others has raised red flags with civil libertarians and defense attorneys, who say they plan to scrutinize the program rules when they are finalized. "We would be very concerned if people are targeting individuals that someone perceives to be [a problem] without hard evidence," said Robert E. Kalunian, chief public defender for Los Angeles County. Others see parallels with the state's controversial "three strikes" law, which requires sentences of 25 years to life for a felony if a person has been previously convicted of two violent or serious offenses."Over-incarceration doesn't work," said Geri Silva, executive director of the L.A.-based Families to Amend California's Three Strikes. Silva said a repeat-offender burglar may be stealing to support a drug habit, so a better solution might be drug rehabilitation.Catherine Lhamon, an attorney for the American Civil Liberties Union of Southern California, said the program could open the door for illegal profiling of suspects.Cooley said he was aware of the potential concerns. He has been assured by his top deputies that the program would have appropriate safeguards."Where you target certain offenders, you have to make sure you are not profiling. You have to make sure the criterion is based upon something that is otherwise lawful, like a prior criminal history," Cooley said. "You can't have it left to some officer's sense that this is a bad guy. It has to be something they can document."Gascon said each of the LAPD's 19 divisions maintains a list of 15 to 30 people in their areas that they believe are disproportionately involved in crime and who should be closely monitored. A coordinator at each station manages the list.In most cases, stations simply use the list to make officers more aware of suspected repeat offenders, but they can put a person under surveillance if he or she is believed to be on a crime spree, police said. Murrell provided an example of how his Foothill Division detectives use their list, which includes a 41-year-old man who has 14 felony bookings on burglary and narcotics charges and five convictions dating to the 1980s.Ten of his arrests involve crimes committed in two reporting districts of the Foothill Division, so detectives know to look at him if there is a string of burglaries in those neighborhoods. The man's file indicates that prosecutors repeatedly refused to file minor charges or agreed to lesser charges as part of plea bargains, so he has served little time during his three stints in prison.Murrell said that without the additional information developed by officers from police reports and other sources as part of the 10 percenter program, prosecutors might not get the full picture.One challenge the program must overcome is the overcrowding of jails, which frequently causes the county Sheriff's Department to release criminals early. However, prosecutors can seek state prison as an alternative for serious offenders.In addition, the LAPD has assigned an officer in the jail system to alert deputies about repeat offenders who are considered serious threats to the community and who should not be considered for early release. In one recent case, a 10 percenter convicted of auto theft was sentenced to 270 days in jail and could have been released after 27 days, but an alert by the LAPD liaison resulted in the repeat offender's serving 150 days."The advantage to the community if we keep someone like this in jail for a couple of extra months is that is time when there is less crime in the community," Murrell said. "It buys the community some time."

I can defend myself but not my disabled child?

May 6, 2006
Nonlawyer Father Wins His Suit Over Education, and the Bar Is Upset
By ADAM LIPTAK
Several years ago, Brian Woods sued the school board in Akron, Ohio, on behalf of his autistic son Daniel. Mr. Woods wanted to make sure that Daniel received an appropriate education, and he won several concessions and about $160,000.
"I soundly defeated a team of lawyers," Mr. Woods, an adjunct professor at Cuyahoga Community College, said yesterday.
When the Cleveland Bar Association got wind of Mr. Woods's victory recently, it also went to court — to sue Mr. Woods.
The bar association said he had engaged in the unauthorized practice of law. It sought a $10,000 fine, lawyers' fees and a promise that he would not continue to assist other parents seeking to represent their own children in court.
The Ohio Supreme Court was not impressed. On April 20, it ordered the bar association to produce evidence by next week in support of its complaint, saying the available facts suggest that Mr. Woods "has not engaged in the unauthorized practice of law."
With that deadline looming and after reports on the controversy in The Plain Dealer in Cleveland, the bar association backed down. Sort of.
In a statement on Wednesday, its president, P. Kelly Tompkins, said the complaint against Mr. Woods "had a legitimate, technical basis." Mr. Woods did, after all, represent someone else in court — his son — without being a lawyer.
The filing of the complaint was nonetheless a mistake, Mr. Tompkins said, withdrawing it and apologizing to the Woods family. The association should not have considered filing the complaint, he said, until after the United States Supreme Court acted in a case it might decide to hear this month.
That case involves two other Ohio parents, Jeff and Sandee Winkelman. In November, the federal appeals court in Cincinnati gave the Winkelmans, who had been representing their autistic son Jacob in a suit against the Parma, Ohio, school district, 30 days to find a lawyer or have their case dismissed. Justice John Paul Stevens issued a stay of that order in December.
Federal courts around the country are divided over the circumstances in which parents who are not lawyers may represent their children in federal court under the Individuals With Disabilities Education Act.
Ms. Winkelman said the ruling of the appeals court effectively barred the courthouse doors to her son. Her family, she said, simply could not afford a lawyer.
"One quoted $60,000," Ms. Winkelman said. "She wanted $2,600, biweekly. I was in tears. I decided to go on my own. We had no money, and we had nowhere to send Jacob to school. When you're in a do-or-die situation, you do what you have to do."
Christina H. Peer, a lawyer for the Parma district, said there were good reasons for requiring that only lawyers might handle such cases.
"People who are not attorneys cannot represent the interests of another in a court of law," Ms. Peer said.
Where disabled minors are involved, she added, courts should be even more reluctant to let others, even parents, speak on the minors' behalf.
"Do they have the skills," Ms. Peer asked, "to adequately represent the rights of their children?"
A lawyer for Susan Woods, Daniel's mother, said he was furious that the bar association had pursued charges of unauthorized practice of law against her and her husband.
"I'm very angry about it," the lawyer, Allan M. Michelson, said. "I'm upset that my fellow attorneys should spend their time like this."
In an interview, Mr. Tompkins of the bar association sounded conciliatory.
"Our board had not approved this filing," he said. "We had a breakdown internally on this."
But he refused to rule out the possibility of further action after the Supreme Court acted in the Winkelman case.
"We'll stand down until it's resolved," Mr. Tompkins said.
Mr. Woods said he suspected that the peace might be temporary.
"The issue is," he said, "to shut me up so that I can't beat them again."
Copyright 2006 The New York Times Company

Is this truly an innocent executed

May 3, 2006

Faulty Testimony Sent 2 to Death Row, Panel Finds

By RALPH BLUMENTHAL

HOUSTON, May 2 — Faulty evidence masquerading as science sent two men to death row for arson in Texas and led to the execution of one of them, a panel of private fire investigators concluded in a report released Tuesday in Austin.

The report, prepared for the Innocence Project, a legal clinic dedicated to overturning wrongful convictions, was presented to a new state panel, the Texas Forensic Science Commission, created by the Legislature last year to oversee the integrity of crime laboratories.

Barry C. Scheck, a co-director of the Innocence Project, said the report offered "important evidence of serious scientific negligence or misconduct in the investigations, reports and testimony of Texas state fire marshals" and called into question not just the two cases but also many others based on similar arson analyses.

The nine-member forensic panel, late to start up and as yet unfinanced, "will review it and investigate," said its chairwoman, Debbie Lynn Benningfield, a fingerprint expert and retired deputy administrator of the Houston Police Department's latent laboratory section.

The report examined prosecution arson testimony in the trials of two men: Ernest R. Willis, convicted of killing two women in a house fire in 1986 in Iraan, and Cameron T. Willingham, convicted of burning his home in Corsicana in 1992, killing his three young daughters.

Mr. Willingham was executed by lethal injection on Feb. 17, 2004, after Gov. Rick Perry rejected a plea for a last-minute stay, once the courts and the State Board of Pardons and Paroles had declined to intervene.

Mr. Willis was exonerated and pardoned on Oct. 6, 2004, and collected almost $430,000 for 17 years of wrongful imprisonment.

The report says that prosecution witnesses in both cases interpreted fire indicators like cracked glass and burn marks as evidence that the fires had been set, when more up-to-date technology shows that the indicators could just as well have signified an accidental fire. In one case, the signs were accepted as proof of guilt, the report said; in the other, they were discarded as misleading.

"These two outcomes are mutually exclusive," Mr. Scheck said. "Willis cannot be found 'actually innocent' and Willingham executed based on the same scientific evidence."

Mr. Willingham's stepmother, Eugenia Willingham, who traveled to Austin from Ardmore, Okla., to attend a news conference about the report, said, "I've known it all along," adding, "I wish it could have happened before he was executed."

To analyze the evidence, the Innocence Project commissioned five unpaid experts: Douglas J. Carpenter of Combustion Science and Engineering in Columbia, Md.; Daniel L. Churchward of Kodiak Fire and Safety Consulting in Fort Wayne, Ind.; John J. Lentini of Applied Technical Services in Marietta, Ga.; Michael A. McKenzie of the law firm Cozen O'Connor in Atlanta; and David M. Smith of Associated Fire Consultants in Tucson.

In the Willingham trial, the committee found, a deputy state fire marshal, Manuel Vasquez, erred in tracing the blaze to an accelerant. The committee discredited his finding of arson. "Each and every one of the 'indicators' listed by Mr. Vasquez means absolutely nothing," the report said.

A Corsicana assistant fire chief, Douglas Fogg, "seemed to harbor many of the same misconceptions held by Mr. Vasquez," the report went on. It concluded that the fire had been "grossly misinterpreted." Mr. Fogg did not respond to a message left on his answering machine. Mr. Vasquez is dead.

Calls to offices in the Texas Fire/Arson Investigation division of the Texas Department of Insurance were not returned Tuesday.

Other Texas arson investigators and a retired agent of the Federal Bureau of Investigation testified that the fire charged to Mr. Willis was also arson, the report said. One prosecution witness said fires were rarely caused by accidentally dropped cigarettes; in fact, cigarettes are the leading cause of fire deaths, the report said.

Many arson investigators were self-taught and "inept," the report said, adding: "There is no crime other than homicide by arson for which a person can be sent to death row based on the unsupported opinion of someone who received all his training 'on the job.' "

Texas leads the nation in inmates serving time for arson, the report said: 666 as of 2002, the latest year for which statistics are available.

Kathy Walt, a spokeswoman for Governor Perry, said the forensic science commission, to which Mr. Perry names four members, was the right body "to help the criminal justice system improve by establishing appropriate standards for labs and investigations."

• Ms. Walt said that minutes before Mr. Willingham's execution, the governor was faxed an earlier report by an arson specialist, Gerald L. Hurst, disputing the prosecution's arson testimony, but that Mr. Perry had no way of evaluating it after the courts and pardons board had turned down the final appeals.

Copyright 2006 The New York Times Company