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4-1-2010 The nnoI cence Quarterly [Spring 2010] Northern California Innocence Project

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This Article is brought to you for free and open access by the Northern California Innocence Project at Santa Clara Law Digital Commons. It has been accepted for inclusion in Northern California Innocence Project Newsletter by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. Santa Clara L aw SUMMER 2010

Northern California Innocence Project

I am innocent. No one will listen.

Boundaries of Prosecutorial Immunity to be Tested in Upcoming Supreme Court Case

Prosecutors acting within was perjured. After a U.S. District Court protected as envisioned by the Supreme judge later overturned that conviction Court—only the prosecutors have been. the scope of their duties have based on prosecutorial misconduct, An upcoming Northern California absolute immunity from Imbler sued the prosecutor for violation Innocence Project (NCIP) investigation of his civil rights. of prosecutorial misconduct—to be civil liability. There are no The U.S. Supreme Court held published in the coming months— exceptions. The United States that prosecutors could not be sued for demonstrates that the other means Supreme Court laid down this misconduct, no matter how rule in 1976 when it decided egregious or Imbler v. Pachtman, 424 U.S. intentional, saying, “Prosecutors must 409. In Imbler, the Court be free to make decided that prosecutorial discretionary decisions without immunity was necessary to constant dread protect the justice system. of retaliation.” This year, a case coming before The Court also acknowledged the Supreme Court will test that the result whether the court will expand would “leave unredressed the its protections, which have wrongs done by dishonest [prosecutors]” the Supreme Court seemed sure been continually broadened but asserted with confidence that errant would protect society have failed, prosecutors would be dealt with in other and that prosecutorial misconduct since that 1976 ruling. ways, pointing to state bar disciplinary continues without consequence. The In that first case, Paul Imbler proceedings as the proper means to California State Bar is an example of an had been convicted of first-degree regulate the conduct of prosecutors. organization that the Supreme Court murder based upon testimony that the Subsequent history has shown asserted would regulate conduct of prosecutor, Richard Pachtman, knew that our justice system has not been prosecutors. Yet they have only recently,

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I am innocent.

Advisory Board Members Fred Anderson Andrew Ludwick From the Executive Director Jim Anderson Dennis McBride Margalynne Armstrong Donald Polden Brian Dennehy Nikki Pope James Donato Frank Quattrone, Chair There are innocent people imprisoned in California because Gordon Eubanks Dennis Riordan Barbara Fargo Kathleen Rydar of wrongful convictions, and they are the focus of much of the Antoine Goff Barry Scheck work of NCIP, as you’ll see in our case rounds on page 8. But Nancy Heinen Anthony Williams Pat Kern Robin Wright that is not all that we do: we are also actively pursuing critical law Ellen Kreitzberg Elizabeth Zitrin reforms addressing the underlying causes of wrongful conviction, Paul Locatelli, S.J. and have several policy-driven initiatives underway. arry

NCIP Faculty/Staff One is an effort to promote legal reforms designed to reduce B Cookie Ridolfi, Executive Director mistaken eyewitness identification, the leading cause of wrongful harles

Linda Starr, Legal Director C Lee Raney, Associate Director conviction. Research conducted over the past four decades has identified a series of “best practices” that can greatly reduce the Maitreya Badami, Supervising Attorney Rhonda Donato, Supervising Attorney risk of wrongful conviction by mistaken eyewitness identification. While some states have Rhonda Dyer, Database Administrator passed laws implementing these practices, California has not. In an effort to encourage Seth Flagsberg, Supervising Attorney Paige Kaneb, Supervising Attorney further compliance, NCIP is reaching out to police and investigative agencies to learn Haley Kaprelian, Marketing Associate about their eyewitness identification procedures. This project is explained in more detail Amy Kennedy, Acting Case Manager on page 3. Sandy Lichau, Office Manager Sarah Perez, Special Assistant to the Director In addition, NCIP is also nearing completion of the most comprehensive Maurice Possley, Visiting Research Fellow investigation of prosecutorial misconduct in California state history, to be published over Charles Press, Supervising Attorney Audrey Redmond, Marketing Communications the coming months. Follow us on Twitter or become our Facebook fan to receive updates Tina Yang, Special Projects on these stories as they break.

Managing Editor Finally, if you receive our e-newsletters, you’ll already know that we sponsored AB Audrey Redmond 316, which Governor Schwarzenegger signed into law last fall. Effective January 1, 2010, Copy Editor the law is a step forward in addressing compensation for the wrongfully convicted. Kay Paumier, Communications Plus See the details on page 9, and if you’re not receiving our e-newsletters, please email us at Designer [email protected] to subscribe. Texto Graphic Design Our students are involved in these initiatives, and continue to gain real world Photography experience and insight into the arduous effort that goes into investigating and litigating Allan Chen post-conviction criminal cases. With the practical experience they gain at NCIP, our Jen Kennedy Benjamin Martin students continue to win prestigious moot court competitions in law school (page 15), Sherry Tesler and move on to successful legal careers. Special Acknowledgements We are making great progress on many fronts, but none of this would be possible Michelle Waters were it not for your generosity. On March 11, we held our annual Justice for All Awards Julia Yaffee Dinner in a packed ballroom at the Fairmont Hotel in San Jose, where more than four Guest Contributors hundred people honored our award recipients and keynote speakers. It was another Supriya Bhat extraordinary evening, and another reminder of why we do this incredible work. With This newsletter is published twice a year for friends of the Northern California Innocence Project at Santa your support we were able to raise more than $700,000 at the dinner! Look for more Clara Law, 900 Lafayette Street, Santa Clara, CA, 95050; about the event, including photos, on page 12. 408-554-4790 (tel), 408-554-5440 (fax); [email protected]. Thank you for your generous support that allows us to continue this important work. We welcome your comments.

The Northern California Innocence Project at Santa Clara Law, a part of the Innocence Network, operates as a law school clinical program where student interns, clinical fellows, attorneys, and volunteers work to identify and provide legal representation to wrongfully convicted prisoners. NCIP is also dedicated to raising public awareness about the prevalence and causes of wrongful Kathleen “Cookie” Ridolfi conviction as well as promoting substantive legal reforms to prevent future wrongful convictions. [2] Copyright 2010 Northern California Innocence Project

Policy & Reform

NCIP to Study California Eyewitness ID Policies

In fall 2009, Professor Cookie These results were not surprising. are not required to have any form of Hundreds of witness identification written eyewitness-identification policies Ridolfi repeated one of her experiments over the last 40 years or procedures. tried-and-true eyewitness have shown similar results. What is so frightening is that in many cases identification experiments convictions are based on a lone Incorrect eyewitness in her Criminal Law class. eyewitness. And if a witness gets it wrong identification is the She orchestrated a “crime” at the outset, police investigations are hampered or derailed as police focus single largest source of in the middle of class where their efforts on an innocent person, while wrongful convictions, an intruder came into the the true perpetrator remains free. (See playing a role in more page 8 for an update on the pending case classroom and stole her of NCIP client Maurice Caldwell, who than 75 percent of handbag. After the intruder was convicted solely on the testimony of convictions overturned one eyewitness.) fled, Professor Ridolfi Incorrect eyewitness identification through DNA testing. instructed her students to is the single largest source of wrongful write down the thief’s physical convictions, playing a role in more than 75 percent of convictions overturned The California Commission on characteristics. What she got through DNA testing. And while a the Fair Administration of Justice back was all over the map— substantial amount of research conducted (CCFAJ) was established in 2004 to over the past 40 years has identified best examine ways to provide safeguards and students could not agree on practices that can greatly reduce the risk improve the criminal justice system. The what they saw, there was even of mistaken identifications, many states, CCFAJ found that during the 15-year including California, do not require period ending in 2003, seven innocent disagreement about whether law-enforcement agencies to actually California defendants were convicted of the intruder was a man or a implement any of those practices. serious crimes on the basis of mistaken woman. In fact, California investigative agencies identification. continued on page 18

CCFAJ Recommendations for Eyewitness Identification Procedures Partial list from the Final Report, California Commission on the Fair Administration of Justice. See full list at www.ccfaj.org

1. Double-blind identification procedures should be utilized whenever practicable, so the person displaying photos in a photo spread or operating a lineup is not aware of the identity of the actual suspect. 2. When double-blind procedures are utilized, the use of the sequential presentation of photos and lineup participants is preferred, so the witness is only presented with one person at a time. 3. A single subject show-up should not be used if there is probable cause to arrest the suspect. Minimize the suggestiveness of show-ups by documenting a description of the perpetrator prior to the show-up, transporting the witness to the location of the suspect, and separating multiple witnesses. Lineups or photo spreads should be used for remaining witnesses after an identification is obtained from one witness. 4. All witnesses should be instructed that a suspect may or may not be in a photo spread, lineup or show-up, and they should be assured that an identification or failure to make an identification will not end the investigation. 5. Live lineup procedures and photo displays should be preserved on video tape, audio tape or at minimum a still photo. 6. Training programs should be provided and required to train police in the use of recommended procedures for photo spreads, show-ups and lineups.

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Hurdles to Justice Evidence Preservation: Vital to Winning Innocents’ Freedom

An excerpt from “Letters from Prison,” performed at Justice for All 2010. These are composites of real letters that were written by prisoners and NCIP students which show the heartbreaking reality of hurdles we encounter even when DNA evidence exists.

Dear Innocence Project, In 1989 I was convicted of a murder I did not commit. When the police arrested me, I told them I had nothing to do with it. They kept telling me they had me there; that they had the towel I used to clean up my hands after I killed that lady. I say again, in my own words, I am not guilty of this crime! If you test that towel, it will show I was never there. Write me with any questions or anything you need from me to help in your investigation. That’s if you take my case. And I hope and pray you do. Sincerely, André Dumond San Quentin Prison

Dear Mr. Dumond… Thank you for writing the Northern California Innocence Project. Please understand that due to the overwhelming number of requests for our assistance, you may not hear from our office immediately. Please be patient. We will contact you after we have had an opportunity to investigate and evaluate your case. Yours, Jessica Morton Dear Jessica… 2nd year Santa Clara Law Thanks for coming to visit me and talk about my case. You said the next step is filing the petition for DNA testing of the towel. I pray we get the DNA testing because that’s the only thing that will set me free. I know that I am not the only case you are handling and I respect all the real hard work that goes into a day of work. Keep moving Memorandum to Supervising Attorney forward in all the work you are doing for all of us. From: Jessica Morton Re: André Dumond, case turnover I recently spoke to the court clerk who said the district attorney has Dear Jessica... misplaced the relevant documents, including the towel to be tested It’s me again, “Mr. Patient.” I haven’t heard from you in a while. I for DNA. NCIP has to help Mr. Dumond build a viable claim. His case was just wondering if you found the bothers people because it’s clear that something went terribly wrong. towel yet. Thanks! André

Dear André... My name is Adam Gilson, I’ve taken over your case from Jessica who graduated. I’m sorry for the wait. Ever since we were appointed by the Superior Court to investigate and, if appropriate, file a motion requesting DNA testing of evidence in your conviction, we have been searching diligently for the towel. Yesterday we received confirmation that the towel was destroyed as part of the police department’s “standard procedure”; hence, a DNA test is not possible. I am deeply sorry. Regretfully, Adam Gilson [[4]4] Northern California Innocence Project

Evidence Preservation: Vital to Winning Innocents’ Freedom

Pete Rose was released from Mule Creek State in storage can be relocated, reorganized or lost. Evidence can be checked out and not returned. Samples can be left at the Prison in 2004, after 10 years of maintaining laboratory rather than stored with the other evidence and his innocence. With the help of the Northern unhelpful clerks in agencies can simply refuse to look for evidence, requiring litigation to seek cooperation. California Innocence Project and Golden Gate Frequently, evidence that is believed to have been destroyed, University School of Law, evidence was tested is, in fact, still in existence. Sometimes the evidence wasn’t proving he did not commit the assault for which destroyed in spite of a court order permitting destruction. Or, sometimes a clerk looking for the evidence simply checks a he had been convicted. Rose was one of the few computer entry, but never physically searches for the evidence. lucky innocent inmates—evidence, including And because there is no statutory consequence for a failure to comply with 1417.9, agencies have little incentive to implement testable DNA, was found from his case. Many procedures to guarantee compliance. other wrongfully convicted inmates like “André,” Checking every plausible (and even implausible) location can take an incredible amount of time and money. NCIP students whose story is on the facing page, aren’t so lucky. and volunteer investigators are invaluable in locating evidence or, They cannot prove their innocence because in some agonizing cases like “Andre’s,” confirming that evidence evidence that could be tested has been lost, has been destroyed. And the appropriate agencies must be aware of their obligation to preserve that evidence. Remarkably, many destroyed or wasn’t preserved. have no idea a statute requires that they preserve the evidence and conduct the proper notifications if they intend to destroy it. On TV, evidence is always readily available for DNA testing, Proper storage and testing of biological material can be to prove who committed the crime. In real life, it’s not so simple. costly. But there are other costs to be considered if evidence is not It can take hundreds of hours, and even more money, for NCIP stored and DNA tested: an innocent person is in prison; the real investigators and student researchers to determine what, if any, evidence exists. And even if there is evidence, it still has to be located and properly preserved if it is to undergo DNA testing. On TV, evidence is always readily California’s biological evidence retention statute, Penal Code available for DNA testing, to prove section 1417.9, states that “the appropriate governmental entity shall retain all biological material that is secured in connection who committed the crime. In real with a criminal case for the period of time that any person remains life, it’s not so simple. incarcerated in connection with that case.” But the government can dispose of the evidence before the perpetrator remains free to commit more crimes; police spend inmate is released if certain conditions are met. Conditions include time and money investigating these additional crimes; and the notifying the: inmate, inmate’s attorney, public defender in the state spends money imprisoning someone who did not commit a county, district attorney in the county, and attorney general. crime. Storing evidence properly is a small price to pay to prove After all parties are notified, if the government does not someone’s innocence and bring the real perpetrator to justice. receive either a request not to destroy the evidence, a 1405 Memories fade and witnesses move away, so for some inmates motion for DNA testing, or a declaration of innocence, they may DNA evidence is their only avenue to exoneration. Without the destroy the evidence. evidence, they are left to spend years in prison for a crime they The issue of storage is more involved than simply placing the did not commit. It is heartbreaking to believe in an inmate’s evidence in a box and putting it in a warehouse. How evidence is innocence, but not be able to prove it because the evidence no stored is crucial. Biological evidence can be destroyed if it is stored longer exists. California’s statute is a step in the right direction, in direct sunlight or warm conditions. For evidence to help prove but the statute must be complied with. With advancement in an inmate’s innocence, the evidence must be stored in conditions DNA testing technology, preservation of evidence becomes more that preserve the biological material. and more crucial to inmates who can prove their innocence no But even the best-preserved evidence means nothing if it other way. ❖ cannot be found. It can sometimes take years to find evidence, even properly preserved biological evidence. Evidence boxes [5] Santa Clara L aw

NCIP Awarded Two Federal Grants

NCIP recently received two federal grants of more than $2 million designed to help free California inmates who were wrongfully imprisoned. “It is great validation of the work we do for the federal entities to award the Project these grants,” said Cookie Ridolfi. “It’s a huge honor for this Project, and immensely exciting in its potential to exonerate more wrongfully convicted prisoners in California.” Ridolfi added, “The grants, however, are for very specific programs—we still need and greatly appreciate help from our donor base to fund the existing operations of our pro bono legal clinic.”

California DNA Project Begins Work to Help Wrongfully Convicted Inmates

The new California DNA Project of the team are Santa Clara University In addition to CDP’s outreach effort (CDP), funded by an 18-month Law School graduates and another was to find viable cases, the team is also in National Institute of Justice grant a longtime NCIP supervising attorney. the process of collecting information awarded to NCIP and the California The team has already reviewed over from forensic crime laboratories, law Innocence Project (CIP), is now off and 800 inmate requests sent to the two enforcement agencies and prosecutorial running. According to CDP Director Innocence Projects, and is investigating agencies about their procedures and Cathy Dreyfuss, their terrific team will over 50 of them. They are also co- protocols for handling and preserving help eligible California inmates advance counseling with NCIP and CIP on some DNA evidence. To date, CDP has sent their claims of innocence. ongoing DNA cases. introductory letters to 400 agencies and CDP started from the ground up in Last month, in a massive push to is preparing an extensive questionnaire November, with the goal to compile data identify wrongfully convicted prisoners, they will send to all the forensic labs in regarding biological evidence procedures, CDP sent questionnaires to 43,000 the State. The data they collect will be and to test biological material to California prison inmates serving used to recommend policy and legislative determine whether or not an inmate sentences for homicide and forcible sex changes in the area of forensic DNA claiming actual innocence has been offenses, and has received over 2,000 evidence. wrongfully convicted. “We expect our responses so far. The project is looking “This project can have a tremendous efforts will lead to more exonerations of for cases in which there is a possibility impact, both for the wrongfully the wrongfully convicted in California,” of biological evidence that can be tested convicted and for advancing policy said Dreyfuss. for DNA. When they determine that reforms to help prevent future wrongful Three attorneys and a project a case resulted in a potential wrongful convictions,” said Dreyfuss. “We look manager are located at NCIP with conviction, CDP attorneys will work forward to continued progress over the Dreyfuss, and three more attorneys are alongside CIP or NCIP attorneys in an coming months.” ❖ at CIP in San Diego. Three members attempt to set aside that conviction.

Wrongful Prosecution Grant Attorney Hired to Help the Wrongfully Convicted NCIP was recently awarded a Program. It is intended to provide staffing levels can evaluate, investigate $230,000 grant to help identify and quality representation to the wrongfully and litigate, a backlog of cases needs exonerate more wrongfully convicted convicted, help alleviate burdens placed attention. inmates in California. on the criminal justice system through This 18-month grant has enabled The grant, from the U.S. costly and prolonged post-conviction NCIP to hire Attorney Charlie Press Department of Justice’s Office of litigation and, when possible, identify the to help work through the case backlog Justice Programs (OJP) Bureau of actual perpetrator of the crime. with the goal of moving more of the Justice Assistance (BJA), is part of Because NCIP currently receives viable cases into litigation and, hopefully, their Wrongful Prosecution Review more requests for help than their current exoneration.

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NCIP Community Continues to Grow

film star said. “To some extent, she them,” he said. “NCIP, through Advisory Board changed Texas policies in regard to the its relentless efforts can give a person wrongfully convicted, including how a re-birth.” Profile they are compensated. She advanced Kali-Rai was inspired to donate to genuine reform for the people who were the cause when he himself became a institutionalized, simply by leading by victim of the justice system. “I was the Brian Dennehy Joins NCIP example.” victim of a malicious prosecution that, Advisory Board After the awards dinner, NCIP after the expenditure of many resources, Director Cookie Ridolfi asked Dennehy resulted in a dismissal of the case and Brian Dennehy, award-winning to join its advisory board and he didn’t a formal finding of factual innocence,” film, TV and stage star, has long hesitate. “If it helps the Project in any said Kali-Rai. “To say the experience was been associated with the plight of way, why not?” said the actor. Dennehy’s devastating to my reputation, my work the wrongfully convicted through old college friend Bill Campbell, and my personal life is an understate- his craft, beginning with his role a Bay Area business magnate and ment, but it was an incredible firsthand in the stage and TV film versions philanthropist, is also a big supporter view of the flaws in our justice system. of The Exonerated in 2003. of NCIP. Because of his respect for Unless you have the financial resources Today, as the newest member Campbell and his philanthropic work, for a solid defense, it becomes difficult to of NCIP’s advisory board, he has Dennehy was even more inspired to join prove your innocence.” transitioned from an actor playing the board. Determined that poverty should an exoneree to someone involved in “You get lucky in life (and I’ve never cause an American to lose his exonerating innocent prisoners. been pretty lucky) and at some point or her Dennehy became involved in you realize it’s time to give back,” said freedom, the issue last year, after reading about Dennehy. “If you can do something, Kali-Rai Texas exoneree Joyce Ann Brown, who if everybody does something, things pledged had been wrongfully convicted and will change.” to help imprisoned for nine years. “The story was NCIP feels lucky too. ❖ those with- so compelling I couldn’t help but become out the involved,” he said. necessary Dennehy and entertainment guru Why I Give resources, Joe Seldner wrote the screenplay of and NCIP Redemption, now in production. The AN CHEN was the l film tells the story of Brown’s wrongful AL Sean Kali-Rai: Supporting perfect or- conviction and how Jim McCloskey, an Sean Kali-Rai ganization advocate for the wrongfully convicted, an Organization that has to help him carry out his pledge. fought for her release. Passion “I love supporting an organization When Joyce Ann Brown came Sean Kali-Rai first learned about that has passion,” said Kali-Rai. “From to speak NCIP from Silicon Valley philanthropists Cookie all the way throughout the NCIP at NCIP’s Mary Ellen and Mike Fox Sr. He reached organization there is a dedication and a Justice for All out to NCIP Director Cookie Ridolfi, caring that is infectious and palpable the awards dinner and after hearing more about the Project moment you walk through the door.” in March, from her, he was hooked. To make an online donation to Dennehy According to Kali-Rai, a Santa Clara advance our work, visit our web site at flew out to University alum, what sparked his inter- www.ncip.scu.edu. ❖ introduce her. est in the Project was its unique ability “Joyce is an to deliver a person a new life. “Through extraordinary unfortunate circumstances one can lady,” the JEN KENNEDY Brian Dennehy have their unalienable rights taken from

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Case Rounds

2010 Brings Newfound arrest. She did not identify him as one of respond, more than eight months have the shooters at that time. However, two passed. The district attorney has not Freedom for NCIP Client weeks later, when presented with a “six- filed a response and continues to request pack” (mug shots of the prime suspect extensions. In the meantime, NCIP has NCIP client George Shull was and five other individuals of similar race, found yet another witness who saw the recently exonerated of crimes build, complexion, and other factors), murder, and identified Marritte Funches for which he was convicted she pointed to Caldwell’s picture, told and another man as the shooters. police that he had fired a shotgun and NCIP continues to find evidence more than 20 years ago. identified him by his nickname “Twone.” of Caldwell’s innocence while awaiting Shull was convicted in 1989 of She was provided her requested move the district attorney’s response. In the assault with a deadly weapon and from the projects. meantime, Caldwell sits in prison for sexual battery, primarily based on the Two years ago, Marritte Funches someone else’s crime. ❖ victim’s misidentification of him as her signed a sworn declaration confessing assailant. Over the years, however, she to the murder and swore that Caldwell became less certain of her identification. was not involved in any way. Another NCIP Case Argued in U.S. Working together, NCIP and the witness signed a declaration stating Court of Appeals district attorney’s office re-interviewed that he saw Caldwell run towards the the victim, who said she was no shooting empty-handed, after the shots On Friday, February 12, longer confident that Shull was her were fired. Caldwell’s trial attorney assailant. Shull also passed a polygraph signed a declaration stating that, the Ninth Circuit Court of test conducted by the DA’s office. although Caldwell and other witnesses Appeals heard oral argument Based on this new evidence, NCIP had identified Funches as the shooter, the in the NCIP case of George filed a petition for writ of habeas corpus attorney had not hired an investigator or on Shull’s behalf. On December 10, interviewed Funches himself. Souliotes. For more than 2009, the Santa Clara County Superior On February 18, 2009, NCIP filed a eight years, NCIP has been Court granted the petition and set aside petition for writ of habeas corpus in San Shull’s 1989 convictions. ❖ Francisco Superior Court. The petition working on his case along alleges four grounds for relief: with members of the law • Actual innocence NCIP Client Awaits firm Orrick, Herrington and • Ineffective assistance of counsel Delayed Hearing that Sutcliffe, who provide pro • False testimony and Could Put Him Closer to bono representation. Exoneration • Cumulative error. Souliotes was sentenced to life On August 24, 2009, the court in prison for a 1997 fire in Modesto, Maurice Antwone Caldwell issued an order to show cause, directing California, that claimed the lives of his tenant and her two children. Souliotes has been incarcerated for the district attorney to demonstrate why Caldwell was not entitled to have was convicted after investigators testified nearly 20 years for a murder his conviction overturned. NCIP found they found traces of an accelerant on his shoes that matched traces of accelerants he did not commit. another witness who signed a sworn declaration stating that he had seen found at the scene. At the request of He was convicted solely on the Funches fire one gun and another man NCIP, forensic experts re-examined the testimony of one eyewitness, the late fire the larger gun, but did not see evidence, using techniques not available Mary Cobbs, who originally told police Caldwell outside at the time. The witness in 1997. Based on the results of this that the shooters did not live in the area drew a diagram of the scene and placed analysis, the experts have concluded that and that she did not know their names or the shooters in the same locations that the substance from the shoes is not the nicknames. During that first interview, Funches did. same as the substance found at the scene. police brought Caldwell, who had been Although the order to show cause Fire science experts also reviewed Cobbs’s neighbor, to her door under gave the district attorney 30 days to the arson determination here and found

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Governor Signs AB 316, a Bill Addressing Compensation for the that the evidence does not support the conclusion that the fire was deliberately Wrongfully Convicted set. Thus, this case demonstrates not only how new science can provide powerful Governor Schwarzenegger helped move exoneree compensation issues This case demonstrates forward last fall by signing AB 316. The bill, sponsored by Cookie Ridolfi representing the Northern California Innocence Project, does the following: not only how new „„allows the wrongfully convicted to file compensation claims within science can provide two years of the date they were exonerated rather than the six months powerful new evidence, previously allotted but also how a „„gives exonerees a two-year window in which to bring a claim against an attorney whose misconduct or omission caused their wrongful conviction discredited forensic „„improves the chances of securing gainful employment by sealing and science contributed to expunging records of wrongful conviction wrongful conviction. „„allows findings of factual innocence to be admitted as evidence before the Victim Compensation and Government Claims Board when provided by a judge, prosecutor, or law enforcement officer new evidence, but also how a discredited forensic science contributed to wrongful „„no longer allows coerced or involuntary confessions and guilty pleas to bar conviction—a subject called to national recovery for a person innocent of the crime they were pressured to admit attention by the 2009 National Academy or plead guilty to, and of Sciences (NAS) report criticizing „„removes the requirement that claimants prove they did not “negligently many forensic techniques. (See related contribute” to their own wrongful conviction by any act or omission. article in our fall 2009 newsletter, available online at www.ncip.scu.edu.) The bill passed unanimously at nearly every stage, and obtained NCIP attorneys have argued for affirmative votes from all 79 members of the Assembly floor. Assembly years that Souliotes is innocent and that Member Solorio authored the bill, with co-author Senator Leno. he was convicted of arson and homicide AB 316 went into effect January 1, 2010, and is codified in California on the basis of incorrect fire science Penal Code sections 851.8, 851.86, 4901, 4903, and 4904, along with and after receiving ineffective assistance California Code of Civil Procedure section 340.6. of counsel. Souliotes has yet to have “This is a step in the right direction for exoneree compensation,” said any court hear the powerful evidence Ridolfi. “We are encouraged by this, but know we have a lot of work ahead to demonstrating his wrongful conviction. ensure all exonerees receive the compensation they so desperately deserve.” ❖ The Court of Appeals will consider: whether the federal district court erred when it dismissed Souliotes’s federal petition as untimely on March 20, 2008, whether the belated discovery of the Stay Connected! incorrect fire science justifies the timing of the filing of his federal petition, and Join us on Facebook, LinkedIn and Twitter (search for the legal significance of his claim of Northern California Innocence Project), and email us actual innocence. at [email protected] to receive our e-newsletters, to stay Souliotes’s case raises important abreast on NCIP cases and other news as it happens. issues. We look forward to reporting a positive outcome soon. ❖

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NCIP Tribute

Morrison & Foerster Wins NCIP 2010 Pro Bono Award Alison Tucher Accepts Award on Behalf of Firm

In recognition of their work over the past several years on a variety of complex NCIP cases, the Project honored Morrison & Foerster with the inaugural Pro Bono Award at the recent Justice for All awards dinner. The Pro Bono Award was created this year to honor one firm whose work on behalf of NCIP has gone beyond all expectations and the person in that firm who has been the driving force behind their extraordinary effort.

Morrison & Foerster, one of the me to have lunch with her friend, Myrtle most respected law firms in the nation, Walker, because her son Rick had just has made exceptional contributions by been convicted of murder here in Santa working collaboratively with NCIP to Clara County,” she said. “Soon I was free the wrongly convicted. NCIP and reading transcripts and interviewing its indigent clients claiming innocence witnesses trying to figure out how I are grateful to be recipients of their could help.” generosity. oerster Tucher and her colleagues at “Morrison & Foerster has invested & F Morrison & Foerster have helped NCIP thousands of attorney hours, paid orrison tremendously. They have assumed M by for multiple investigators and for the responsibility for difficult and complex production of legal pleadings and cases, involving resistant district rovided other documents,” said NCIP Legal P attorneys, complicated science, and hard- Director Linda Starr. “Not only have Alison Tucher, Partner, Morrison & Foerster LLP to-find witnesses who were sometimes they donated extraordinary legal talent many years on three innocence cases. even harder to talk to. Never has any and resources, the lawyers have always Tucher has a history of working for member of the firm’s team allowed an respected the collaborative nature of the the wrongfully convicted. She won the NCIP case to be ignored or given short work, consulted with Innocence Project freedom of East Palo Alto resident Rick shrift, and they always give the cases their lawyers, and included our students in Walker, who was wrongfully convicted full attention and best effort, according their efforts. We are extraordinarily of murder and spent 12 years in prison to Starr. fortunate to have their support.” before being exonerated in 2003. NCIP congratulates Morrison & Led by Partner Alison Tucher, “When I was a third-year law Foerster and thanks the firm for its the firm has worked with NCIP for student at Stanford, my mother asked dedication. ❖

The Northern California Innocence Project would like to extend its NCIP currently has over heartfelt thanks to the following firms which have provided thousands 900 cases in its backlog. of pro bono hours and resources to pursue justice for all: If you or your firm would Cooley Godward Kronish LLP Morgan, Lewis & Bockius LLP like to help an NCIP client Howard Rice Nemerovski Morrison & Foerster LLP with a case, please contact Canady Falk & Rabkin Orrick, Herrington & Sutcliffe LLP NCIP supervising attorney Keker and Van Nest LLP Quinn Emanuel Rhonda Donato at Latham & Watkins LLP Reed Smith LLP 405-554-4790, McDermott Will & Emery Shearman & Sterling LLP [email protected].

[10] Northern California Innocence Project

Partner Profile

Volunteer Investigator Helps Close Case

“As a police officer I was always later an injury As a volunteer investigator for the cognizant of civil rights and took the job forced him Northern California Innocence Project, very seriously. Cops are supposed to be into early Bruno works closely with Santa Clara law fair, so switching to the defense was easy,” retirement students on many cases. Most recently said private investigator Christopher and, in 1988, he helped locate a key witness who had Bruno. Watching Barry Scheck discuss he began a successfully eluded previous investigators DNA testing during the O.J. Simpson new career for years. Ultimately the witness helped trial had an impact on Bruno, but it was as a licensed determine that there was not an actual imbel not until years later that he discovered private G innocence claim in the case. Bruno eter the Northern California Innocence investigator, P helped to end the investigation, enabling Project and sent an email volunteering working Christopher Bruno NCIP to shift its resources to other his time. “NCIP steps in when the conflict cases for the Stockton Public viable cases. system fails and tries to right some of Defender. In addition to investigative work, its wrongs. It is an important protection After eight years of defense Bruno teaches criminal justice at Kaplan and the last resort when the checks and work, Bruno switched directions and College, all while working on his master’s balances fail,” he said. began working half the year as a law degree in criminal justice. “Thorough Before specializing in investigation, enforcement ranger for the National investigations are an integral part of Bruno was an Air Force air policeman. In Park Service in Colorado, Arizona, resolving our cases,” said Amy Kennedy, 1978, after returning home and getting a California and Washington. Six years NCIP case manager. “Christopher Bruno bachelor’s degree in legal studies, Bruno later, Bruno returned to Stockton has been an invaluable resource in helping began work as a police officer with the and began working as a full-time us move cases toward resolution.” ❖ Stockton Police Department. Eight years investigator for the public defender.

Alumni Profile

investigated the claim of innocence, continues the quest for justice. Maureen Ryan visited the crime lab to view the “This is not a popular constituency,” Maureen Pettibone Ryan’s passion evidence, and searched for witnesses. said Ryan. “When Innocence Projects for innocence work dates back to the Soon Maureen transferred to the win an exoneration, people are early years of NCIP. After reading about University of Michigan to finish her law supportive, but there is little popular the work of Innocence Projects in Time school career. But NCIP was never far support for changing the system that magazine during high school and seeing from her mind. After graduating she creates these wrongful convictions in the NCIP exoneree Ron Reno speak at passed the California Bar Exam and went first place. Our culture has a black-and- Santa Clara Law in 2002, the then legal on to clerk for the Alaska Supreme Court white view of justice; we’re looking so secretary called NCIP repeatedly until and the 10th Circuit Court of Appeals in hard to find the bad guy that sometimes she reached executive director Cookie New Mexico. She recently returned to we short-circuit our critical thinking, Ridolfi. Maureen explained that she was the Bay Area as an associate with Quinn find some guy, convince ourselves that an undergraduate at Santa Clara and Emanuel in Redwood City. he’s bad (and maybe he is), and that he wanted to volunteer her time helping out Upon her return she immediately is the guy. I think we are even more the Project. inquired about Mr. J’s case and found likely to do that with particularly horrific NCIP jumped at Maureen’s it pending. Through her persistence crimes because we desperately want to offer. One of her first assignments she achieved something few associates avenge those victims. It is rare for people was the monumental task of gathering have attempted at Quinn Emanuel—she in our culture to put themselves in the documents for the John Stoll habeas brought her own pro bono case (that of shoes of someone wrongly accused of petition. Maureen soon entered Santa Mr. J)—into the firm, which has been a crime. We are more likely to identify Clara Law, and continued at NCIP as very supportive of her work on the case. with the victim or the victim’s family. part of the Stoll team. She now has a summer associate assisting And that is dangerous for our criminal Maureen also worked up the case her along with an NCIP student as she justice system.” ❖ of Mr. J from Santa Clara County. She [11] Santa Clara L aw Third Annual Justice for All Awards Dinner Honors Those Who Take Action

“Tonight all of you are part of a will be there for others. I will speak in bono wrongful-conviction cases the great movement to free the innocent,” churches….I will mentor others, and I same extraordinary level of attention said exoneree Rick Walker at the will do that without bitterness, without the firm gives its other cases. Starr Northern California Innocence Project’s anger, but with passion and purpose.’” thanked the firm for its willingness to third annual awards dinner on March And Walker has done just that. work collaboratively with NCIP and 11. Alternately moving, funny, poignant, In accepting the Freedom Award, recognized the pro bono work of other educational and inspiring, the event he acknowledged those who are still featured distinguished presenters, fighting for their freedom and thanked award recipients, and speakers who are his attorney, Alison Tucher, for her leaders in the innocence movement. persistence in pursuing justice, and The evening began with Cookie Simitian for his unparalleled efforts Ridolfi, executive director of NCIP, in securing compensation for him. introducing Letters from Prison, a Tucher, a partner with Morrison dramatic reading of letters between & Forester LLP, accepted the inaugural NCIP clients and NCIP clinical Pro Bono Award on behalf of the law esler

law students. The letters were firm for its contributions on cases of T powerful depictions of the daily wrongful convictions. Tucher first heard herry S realities of individuals who spend about Walker’s case as a third-year law Keynote speakers Brian Dennehy and Joyce Ann years awaiting exhaustive appellate student at Stanford University. Her Brown pose for a picture. processes and case investigations in persistence in uncovering the truth hopes of clearing their names. went far beyond Stanford and well California State Senator Joe Simitian into her years as a practicing attorney. presented exoneree Rick Walker with Tucher thanked her mother for having the Freedom Award. Walker, an East faith that she could make a difference, Palo Alto resident, spent 12 years in even as a law student, and stated that prison for a murder he did not commit the most significant moment in her and now is an advocate for justice. legal career was the day Rick Walker Simitian was instrumental in securing walked out of prison a free man. $100-a-day compensation for Walker’s Acknowledging Tucher’s work esler wrongful conviction and said: “Rick on Walker’s case and other cases, T

is an extraordinary person….Imagine Linda Starr, NCIP legal director, herry S the interior strength it would take for recognized that Tucher and Morrison Cookie Ridolfi, NCIP executive director, thanks someone like Rick Walker to say, ‘I & Foerster have always given the pro attendees for their continued support and introduces Letters from Prison. esler esler T T herry herry S S Ronnie Lott, former San Francisco 49er, joins Joyce Ann Linda Starr presents the Pro Bono Award to Alison Tucher who accepts on behalf of Morrison & Brown for a picture. Foerster LLP . [12] Northern California Innocence Project BEN MARTIN Exonerees (wearing yellow roses) are honored. Left to right: George Shull, David Pope, Rick Walker, Ken Foley, Antoine Goff, Gloria Killian, Herman Atkins, Ronnie Carmona (representing her son, the late Arthur Carmona), Bismark Dinius, and Mashelle Bullington. esler esler esler T T T herry herry herry S S S Senator Joe Simitian (right) presents the Freedom Award Maurice Possley (right) presents the Media Award to NCIP Advisory Board Chair Frank Quattrone to Rick Walker, who accepts on behalf of all exonerees. Stuart Taylor Jr., author of Until Proven Innocent. (right) presents the Leadership Award to recipient Jim Anderson. firms that have provided assistance. highlighting prosecutorial misconduct Brown electrified the audience Spotlighting one of Silicon Valley’s and the media’s rush to presume guilt. from the moment she took the stage, venture legends, Frank Quattrone, The Finnertys, parents of wrongfully stating, “In 1986, I made a promise NCIP advisory board chair, presented accused Duke lacrosse player Collin that not if, but when I was released, I the Leadership Award to Jim Anderson, Finnerty, were present, lending support would spend the rest of my days fighting a founding partner of Merrill Picard to the Project and its mission. for those who are less fortunate.” She Anderson, Foundation Capital and Award-winning actor Brian urged attendees to consider donating Legacy Venture. Anderson, also an NCIP Dennehy then introduced exoneree money to NCIP when they next thought advisory board member, has used his Joyce Ann Brown, calling her “a shining about making a purchase. She closed background in venture financing and inspiration to each of us.” Brown was the evening on a lighter note, asking philanthropy to contribute significantly wrongfully convicted in 1980 of a former football star Ronnie Lott to to NCIP’s growth strategies. robbery and murder in Dallas. She spent join her and pose for a photo, and Maurice Possley, visiting research nine years in prison, despite evidence he promptly obliged her request. fellow at Santa Clara Law and Pulitzer proving that she had been at work when Brown’s advocacy served as a Prize-winning journalist, presented the crimes were committed. After her powerful reminder that we must the Media Award to Stuart S. Taylor release from prison, Brown wrote a book not be complacent in striving for Jr., co-author of Until Proven Innocent: entitled Joyce Ann Brown: Justice Denied, justice for all. As Walker said when Political Correctness and the Shameful and started MASS, Mothers for the accepting his award, “Tonight is a call Injustices of the Duke Lacrosse Rape Advancement of Social Systems, to help to action. Please act. Please support. Case. The book details the events other individuals released from prison. Someone’s life truly depends on it.” ❖ surrounding the false accusations of Brown’s life was the inspiration for rape against three Duke lacrosse players, Dennehy’s upcoming film Redemption. [13] Santa Clara L aw

Innocence Cases Picked after Intense Review

Many who write from prison raising Cases are Investigated claims of innocence are not actually innocent. One of the biggest tasks For the cases that remain open, facing Innocence Projects throughout each inmate is sent a questionnaire the country is filtering out the innocent asking for significant details from the rest. The process is tedious and about the case. This information time-consuming. But innocent prisoners becomes the basis for the more are being found. And no one would deny labor-intensive, second screening that the effort is worth it. evaluation, managed by the intake In the nine years since its founding, team with the help of students. the Northern California Innocence The intake team sends for and Project (NCIP) has received roughly obtains documents, makes phone 900 letters a year from inmates claiming calls, and compares the incoming legal innocence. To process this volume of information to the inmate’s claims Snapshot of NCIP cases as of June 1, 2010. letters (to date totaling more than 8,000 to determine if the inmate’s story requests) the NCIP staff has developed can be confirmed or contradicted. In NCIP Students and a methodical and multi-layered case- this early stage, the team also identifies screening system. any old issues that have been fully Attorneys Work Toward litigated and might prevent a court Freeing the Innocent Initial Screening from considering a new claim. To date, 2,838 cases have been rejected The burden for overturning a When NCIP receives a letter, following some investigation. conviction is high, so NCIP will only the inmate gets an almost immediate begin litigation in the most compelling response. NCIP may reject the case if it The Case is Opened and cases. When we find biological material fails to meet the program’s basic criteria, Assigned that can be DNA tested and potentially or refer the inmate to an organization or exonerate an inmate, NCIP will seek person better able to help with a non- When a case reaches the front of the to have the evidence tested, normally innocence request for assistance. Basic queue or can be acted on immediately, by filing a motion for DNA testing criteria for consideration by NCIP are that it is classified as active and assigned to under California Penal Code Section (1) the inmate is raising a claim of factual a supervising attorney and a student 1405. If the motion is granted and innocence, meaning s/he did not commit enrolled in the NCIP law clinical yields favorable results, NCIP may file the crime, (2) substantial time is left to be program. Together, they review the a petition for writ of habeas corpus to served on the sentence (because it takes so entire case file and decide what action to overturn the conviction. In non-DNA long to investigate and prove innocence, take. The team creates an investigative cases, NCIP might also file a petition and NCIP largely limits its scarce plan, contacts attorneys and potential for writ of habeas corpus when there are resources to incarcerated defendants), and witnesses, and communicates with the new witnesses, a confession from the real (3) the case arose in a Northern California client through letters, telephone calls, perpetrator, credible recantations from county (unless the Southern California and prison visits. The case may be previous witnesses or victims, new science project has referred the case to us because rejected after further review, or may be that undermines the conviction, or other they have a potential conflict of interest). more fully investigated to see if there is a compelling new evidence. More than half the requests for assistance factual basis for the claim of innocence. Because of the thorough screening do not meet these criteria and are referred If a factual basis exists, NCIP seeks a process, most false claims of innocence or rejected at this point. legal remedy to exonerate the client. are filtered out and only the most viable Currently NCIP has 96 active cases. Due claims proceed to litigation. NCIP to scarce resources, 952 open cases are currently has 35 cases in litigation and in the queue, waiting to be assigned to is working to secure justice for these a supervising attorney and a Santa Clara individuals. To date 11 innocent people law student. have been freed and the organization looks forward to helping exonerate many more. ❖

[14] Northern California Innocence Project

2010 Moot Court Winners In Their Own Words Credit Their NCIP Training Teecia Kimura, an NCIP Student’s Perspective NCIP applauds its many students who participated in moot court competitions this academic year. Moot court competitions are an opportunity I nervously squirmed in my seat as for law school students to take controversial legal issues and fully litigate them as our professor walked us through though they were practicing lawyers. This includes thoroughly researching and the procedures for our prison visit. briefing the argument, then arguing the issue from both sides in front of a panel No jeans. No blue, green, or brown of attorneys who are typically top legal scholars in that field of law. clothing; we don’t want to be confused Congratulations to the following NCIP students who won awards in their respective with an inmate or a guard. Wear competitions: comfortable shoes. There will be no negotiations for hostages. Courtney Smith won third place overall in the Lefkowitz Wait! What? Trademark Competition. Missy Reinhardt won the What was I doing? I am interested in Snapshot of NCIP cases as of June 1, 2010. Galloway Moot Court patent law for goodness sake. Have Competition, impressing her the first two years of law school finally kennedy final round judge, Pepperdine gotten to me? Law School Dean and former amy Left to right: Courtney Smith, Karri Iyama, Missy federal prosecutor Kenneth Starr. Reinhardt, and Brandon Cabrera. The truth is: I wanted to try something Eden Schwartz and Karri Iyama different. I wanted to get outside of my won best brief in the American Constitutional Society Moot Court Competition comfort zone and see what my legal and advanced to the semifinal round of arguments. Schwartz credited NCIP for her education can do in the real world. ability to master the facts in her problem and view them from all sides depending on I thought the Northern California the argument she presented. Innocence Project was far out of my comfort zone. I was wrong. Brandon Cabrera won third place for the best brief in the same competition, and dominated two out of the three rounds of oral arguments. Cabrera says the research My experience at NCIP opened up my he did on attorney accountability with Cookie Ridolfi last summer prepared him small little patent-law-centered world for thoroughly researching his argument and enabled him to present the strongest to a world of dangerous criminals, brief possible. incompetent attorneys, and a broken Christine Cusick, with her teammates Corey Wallace and Adam Flores, received system. NCIP, however, also opened third place for their appellate brief in the Dean Jerome Prince Memorial Evidence up my world to kind-hearted inmates, Competition. Cusick and her partners made it to the final round in the evidence caring attorneys, and a system that competition. Their performance in that round was so impressive that U.S. Supreme is slowly evolving toward justice. Court Justice Alito complimented their performance. Although our justice system is plagued Congratulations to all. with imperfections, it is a work in progress.

What I valued most about my NCIP experience was having the privilege to help move our justice system forward. One innocent at a time. One change aw

L at a time. We will get there. And I can

lara proudly say that, even if for just a flash C

anta of an instant, I was a part of that effort. S by

Teecia provided

photo

Left to right: the Honorable Margaret McKeown (9th Circuit Court of Appeal), law student Corey Wallace, law student Christine Cusick, Justice Samuel Alito (United States Supreme Court), law student Adam Flores, and the Honorable Victoria A. Graffeo (New York State Court of Appeal). [15] Santa Clara L aw

Prosecutorial Immunity continued from page 1

and in a very small number of cases, of an administrator or investigative actions of a prosecutor who withheld sought to discipline prosecutors while officer.” Goldstein’s complaint was evidence in a death row inmate’s case that they have disciplined hundreds of civil that administrators failed to properly would have proved his innocence. practitioners. train and supervise their deputies The Connick case began on NCIP’s upcoming report has about their obligations in presenting December 6, 1984, when Ray Liuzza uncovered more than 500 California informant testimony and did not Jr., the son of a prominent New Orleans cases in which prosecutors committed have a system in place to facilitate executive, was robbed and shot to death. a vast array of misconduct, including information sharing. The Supreme Police had nothing more than a general hiding evidence and witnesses, Court ultimately agreed that the description provided by two witnesses intimidating witnesses to testify falsely, challenged actions were administrative— who said they saw a large black man altering evidence, misstating the law, but then expanded absolute with short-cropped hair running away. and arguing facts not in evidence. The immunity to cover administrative Three weeks later police had the names investigation reveals a criminal justice functions of the prosecutor. of two suspects, John Thompson and system in which prosecutors commit misconduct inside and outside of At A Glance courtrooms across the State of California, without fear of discipline or reprimand. Imbler v. Pachtman: In the 24 years since Imbler was gave prosecutors “absolute” immunity decided, the Supreme Court has touched on the issue of prosecutorial misconduct Van de Kamp v. Goldstein: in relatively few cases. Recently, however, gave prosecutors' supervisors immunity the Court has shown a heightened Pottawattamie County v. McGhee: interest, agreeing to hear three immunity settled before Supreme Court could rule cases in just the past 22 months. In Van de Kamp v. Goldstein, Connick v. Thompson: Thomas Goldstein had been convicted of to determine whether municipalities are under murder based on the false testimony of the umbrella of immunity; scheduled to be heard a jailhouse informant, who in previous fall 2010 cases had provided valuable information to prosecutors in exchange for personal favors. Benefits to informants bear on Last year, the Supreme Court agreed Kevin Freeman who, according to an their reliability and are critical to the to hear Pottawattamie County, Iowa v. informant, admitted killing Liuzza. defense. For Goldstein, it raised serious McGhee. The prosecutors in that case Around the same time, not far from questions about the witness’s motivation, used perjured and fabricated testimony the scene of the murder, three teenaged and, although constitutionally required and withheld reports on another suspect, siblings were robbed at gunpoint. Their to do so, the prosecutor did not share resulting in the wrongful convictions and assailant, they said, was black man with this information with the defense. 26-year imprisonment of two men. After a bushy Afro haircut, roughly 5'7" to When the information was full briefing and oral argument before the 5'10" with a slim build. They said that ultimately uncovered 24 years later, Supreme Court, Iowa paid $12 million after the man jumped into their car, the Goldstein was exonerated and, like to settle the lawsuit before the Court driver, Jay Lagarde, drove the car onto Imbler, filed a civil rights action. But could rule on it. a median strip and stopped. There, he unlike Imbler who sued his prosecutors, This March, the Supreme Court began fighting with the robber who, after Goldstein sued his prosecutor’s agreed to hear Connick v. Thompson, a brief struggle, gave up and ran away. supervisors, because the rule in Imbler a Louisiana case putting the issue of When the police arrived, they noticed had been a narrow one giving absolute prosecutorial misconduct into the the attacker had left his blood on Jay’s immunity to the prosecutor in his role spotlight again. The Supreme Court pants. Police cut out the stained fabric as advocate, and not, as the Court said, will decide whether a district attorney’s and submitted it as evidence. to activities “that cast him in the role office can be held liable for the admitted Two days after the carjacking, John

[16] Northern California Innocence Project

Thompson was arrested and charged Why had the blood evidence not with the murder, an event that was a been disclosed to the defense prior to trial? major news story in New Orleans. Jay What surfaced next was even Lagarde’s father saw a television report more astounding. Five years earlier, of Thompson being escorted by police Gerry Deegan, one of Thompson’s and wondered if he might be the man prosecutors, was diagnosed with who robbed his children. When the terminal cancer. Knowing he was teenagers saw Thompson’s picture, they about to die, he disclosed to a close were convinced he was their attacker— friend, also a prosecutor, that he had even though the man they described as concealed critical blood test results in black, bushy Afro haircut, roughly 5'7" a robbery case, and as a result, John to 5'10", and slim build, looked nothing Thompson was on death row. Deegan’s like the man the Liuzza witnesses friend did not come forward with this The story of John Thompson, whose described as large and black with short- information—not even after Deegan case the Supreme Court will hear in cropped hair. Lagarde called prosecutors, died. The information surfaced only the fall, is revealed in a compelling new and Thompson was charged with the after the execution was stayed. robbery as well. Thompson filed suit against District book, Killing Time: An 18-year Odyssey Over defense objection, prosecutors Attorney Harry Connick and the from Death Row to Freedom. Authors were permitted to try the robbery case Orleans Parish District Attorney’s Office. John Hollway and Ronald M. Gauthier first, a strategic move because a robbery In 2003, a jury awarded him $14 million take readers inside the mind and heart conviction would make Thompson in damages. The jury found Connick of Thompson from the moment of his eligible for the death penalty in the had acted with “deliberate indifference” arrest for the December 6, 1984, mur- murder case. Thompson was convicted of by failing to train his deputies in their der of Ray Liuzza Jr. until Thompson’s the robbery and, as expected, the murder constitutional obligations to provide release from prison on May 10, 2003, was upgraded to a capital case and exculpatory evidence to defendants. when he was given back his 18-year- Thompson was convicted and sentenced The U.S. Court of Appeals for the to death. Fifth Circuit upheld the award, and the old clothes (which amazingly still fit) Over the next 18 years, Thompson Supreme Court granted certiorari to and $10 for bus fare. exhausted his appeals. But less than three review it. Since his release from prison Thomp- weeks before he was to die, a defense Under limited circumstances, a son has formed an organization called investigator searching an old court municipal government may be held liable Resurrection after Exoneration, which file made an incredible discovery—a for the conduct of its agencies. Since previously undisclosed lab report proving Imbler gave trial prosecutors absolute helps wrongly convicted inmates that the blood on the Jay Lagarde’s immunity and Goldstein extended the re-enter society. A portion of the sales pants was a different blood type than protection to their supervisors, the only proceeds from the book goes directly Thompson’s, proving that he did not avenue left for Thompson was to sue to Thompson. commit the robbery. under the municipal liability theory. The The rest of the story will play out later Based on these findings, Thompson’s Supreme Court granted certiorari on execution was stayed, the robbery the narrow question of the municipal this year in the U.S. Supreme Court. For conviction was overturned, and he liability of the District Attorney’s Office. lawyers, judges and those who love a was granted a new trial on the murder Arguments in Connick v. Thompson historic legal drama, Killing Time should charge. At his second trial, the blood test are expected to be heard this fall, when be required reading. results and other previously undisclosed Americans will see whether the Court Reprinted with the permission of Daily Journal evidence were presented, including police continues the pattern of expanding Corp. (2010). reports, benefits for informants, and new immunity, even as it should be limiting it. Order a copy of Killing Time and sup- eyewitnesses. In under an hour, the jury Follow this case in the fall on the Supreme port NCIP at http://amzn.to/bNEd1S. found him not guilty. After 18 years on Court website, www.supremecourt.gov, death row, Thompson was freed. docket # 09-571. ❖

[17] Santa Clara L aw

NCIP to Study California Eyewitness ID Policies continued from page 3

In an attempt to improve the accuracy of eyewitness identification in this state, CCFAJ made You be the Judge: recommendations in 2006 that included Can Lineups be Suggestive? best practices recommended by the U.S. Department of Justice (see sidebar on The only eyewitness in this criminal case was an 11-year-old, who described the page 3). Ultimately, California legislators perpetrator as “old and fat with bushy hair, like a grandpa.” Based on the description, passed a bill designed to improve who do you think was selected as the perpetrator? California’s eyewitness procedures. Answer, page 19. While the bills passed in both the Senate and the Assembly, Governor Schwarzenegger vetoed the bills. NCIP is now tackling the problem in a different way—through a research grant from the VanLoben Sels/ RembeRock Foundation to examine how eyewitness identifications are currently being performed in California. NCIP has begun reaching out to police and investigative agencies informally to obtain the information, and is sending a California Public Records Act request to every law enforcement agency statewide. The request asks each agency for a copy of its written training materials governing eyewitness-identification procedures. The research project is modeled on similar efforts by the Georgia and Wisconsin Innocence Projects, according to Maitreya Badami, the NCIP supervising attorney overseeing the program. After the Georgia Innocence Project conducted and published its research, Georgia law enforcement agencies voluntarily adopted written policies incorporating some of the best practices for reducing mistaken identifications. Wisconsin’s eyewitness identification research was conducted after a law was enacted, to measure the effectiveness of that law. According to Keith Findley, co-founder of the Wisconsin Innocence Project, the results suggest that the law was largely successful in both getting police to adopt written policies and in getting them to modify their ID procedures to be consistent with most of the recommendations for reform.

[18] Northern California Innocence Project

Wrongful Prosecution Grant Attorney Hired to Help the Wrongfully Convicted continued from page 6 continued from page 18

“We hope to find that lots of No stranger to post-conviction work and habeas corpus California law enforcement agencies have proceedings, Press has spent the past 18 years representing death- already incorporated these practices,” said sentenced prisoners in state and federal habeas corpus proceedings. Badami. “And for those that have not, we He has experience both in California and Mississippi, where he formed hope to encourage their adoption.” a non-profit to represent Mississippi’s death-row prisoners. A former Locally, Santa Clara County death penalty law clerk for the U.S. Court of Appeals for the 9th adopted a lineup protocol in 2002 that Circuit; he was a deputy state public defender and attorney at the incorporates some of the best practices. Habeas Corpus Resource Center in San Francisco. Press has spoken at They have recommended double-blind numerous trainings and conferences on post-conviction representation, and sequential identification procedures. specifically on the issue of a prosecutor’s constitutional duty under In a report to CCFAJ, Deputy District Brady v. Maryland to provide exculpatory material to defense counsel. Attorney David Angel said that all Press has already played a role in reducing NCIP’s backlog, law enforcement agencies in Santa screening nearly 100 cases, while also serving as a resource for project Clara County agreed to the protocol attorneys whose cases are already in litigation. without dissent. The protocol has been “We are elated to have been awarded this grant and to have Charlie successfully implemented without on board,” said Linda Starr, NCIP legal director. “We receive nearly 1,000 complaint, he said. requests for assistance each year and this means we can more quickly NCIP is optimistic that this project identify those who may be wrongfully convicted and pursue litigation.” will prompt agencies throughout the Notification of the award came from U.S. Representative Mike state that have not incorporated the best Honda (CA-15), an advocate for those in his district in both securing practices to reform. funds and creating jobs, who served on the Project’s 2010 Justice for All “Ideally we want law enforcement Honorary Committee. “I was pleased to inform the Northern California agencies to voluntarily incorporate the Innocence Project they had been awarded the Wrongful Prosecution best practices, as it increases the accuracy Review grant,” said Honda. “Their work exonerating the innocent often of good identifications,” said Badami. leads to apprehending the actual perpetrator, and is vital to maintaining “By fostering more accurate means the integrity of our justice system.” ❖ of developing eyewitness testimony, NCIP hopes to reduce the number of wrongfully identified suspects and, thereby, reduce the number of wrongful convictions.” ❖

Answer to “You be the Judge”

defendant’s conviction. defendant’s Fast Fact and was the primary evidence resulting in the the in resulting evidence primary the was and

Yet this identification was admitted in court court in admitted was identification this Yet

approximately 20% of the study’s participants. participants. study’s the of 20% approximately In at least 48% of the misidentification cases where a each subject would have been chosen by by chosen been have would subject each wrongfully convicted defendant was exonerated and a

the witness’ s description of the perpetrator— the of description s witness’ the real perpetrator later identified through DNA testing, suspect but also the “fillers” generally matched matched generally “fillers” the also but suspect

fair lineup—one in which not only the police’s police’s the only not which in lineup—one fair the real perpetrator had gone on to commit (and was

given by the eyewitness. If this had been a a been had this If eyewitness. the by given convicted of) additional violent crimes including rape, perpetrator and were told only the description description the only told were and perpetrator

number four. Participants had never seen the the seen never had Participants four. number murder, attempted murder.

percent of those surveyed chose subject subject chose surveyed those of percent

created a study based upon it in which 87 87 which in it upon based study a created Innocence Project Report, “Reevaluating Lineups”

unduly suggestive, because a social scientist scientist social a because suggestive, unduly

perpetrator. We can tell that this lineup is is lineup this that tell can We perpetrator. Subject number four was selected as the the as selected was four number Subject

[19] Santa Clara L aw

Donor Honor Roll

Thanks to the generous support of our donors, we Shearman & Sterling Suruchi Mohan Silicon Valley Bank Susan and John Paul can continue our important work—fighting for Simpson Thacher & Bartlett Cynthia and Allen Ruby justice for those who have been wrongly convicted, Skadden Arps Slate Meagher & Margie and Dennis Sullivan raising public awareness about the prevalence Flom Connie and Sina Tamaddon DEFENDERS and causes of wrongful conviction, and promoting Van Loben Sels/ ($1,000 – $2,499) substantive legal reforms to prevent future wrongful Rembe Rock Foundation Wilson Sonsini Goodrich & Rosati Jeryl and Ronald Abelmann convictions. Foundation Janice and William Anderson Please note: This list reflects cumulative gifts and pledges received Margalynne Armstrong and between January 1, 2009, and June 1, 2010. We make every effort to PATRIOTS ($5,000 – $9,999) Andrew Pierce compile an accurate list. If your name is missing, misspelled or there are Edward (Ned) Barnholt other inaccuracies, please contact Lee Raney, associate director, at Anonymous (2) Megan and Harris Barton 408-554-4790 or email [email protected]. 2b1 Inc. Benchmark Capital Names in red indicate consistent giving William Carrico and Suzan Woods The Boehlke Family Foundation/ Christopher Carter Robert and Kay Boehlke Cypress Semiconductor Sally and John Bourgoin Pamela Dougherty Diane and Aldo Branch EXONERATORS ($100,000+) Benhamou Global Ventures Stephanie and Mory Ejabat John Burton Marc Bodnick and Michelle Farella Braun & Martel Michelle Gerstel Costello Anonymous (1) Sandberg Kenneth Goldman and Sarah and Jason Dilullo Jean Perkins Foundation Gail and Ron Conway Susan Valeriote Christine and Francis Currie Gerbode Family Foundation/ Cooley Godward Kronish Michael Guthrie Gwen and Roger Dawson Colin, Ian and Sharon Gerbode Davis Polk & Wardwell Eileen and Leonard Herman John Dawson Frank and Denise Quattrone DLA Piper Kamilla and John Hurley Lauren and Alan Denenberg Foundation/ Anne and Adrian Dollard Gail and Tom Kaneb Donna Nguyen Do and Khoa Do Frank and Denise Quattrone Donna Dubinsky and Julie and Mitchell Kertzman Bill Donahoe and Kris Klein Leonard Schustek Latham & Watkins Rhonda and Jim Donato LIBERATORS Patricia Dunn and William Jahnke Legacy Venture Barbara Fargo and Marty Williams ($50,000 – $99,000) Judith Estrin Candace and Mark Leonard Clare and Jack Friedman Ronda and Gordon Eubanks Mayfield Fund Foundation Gregory Gallo The Campbell Family Foundation/ Hackworth Family Foundation/ Paul, Weiss, Rifkind, Wharton & Jean M. Gill Bill Campbell Jean and Mike Hackworth Garrison Melinda Haag Listwin Family Foundation/ Nancy Heinen and Dennis PRx, Inc. Kathleen and Harry Haigood Don Listwin DeBroeck Nikki Pope Deborah and Russ Hall Howard Rice Nemerovski Canady Karen Rudolph and Jimi Simmons Harbourton Foundation/ FREEDOM FIGHTERS Falk & Rabkin Santa Clara Law Amy and Jay Regan ($25,000 – $49,000) Franklin “Pitch” Johnson Marjorie and Judge H. Lee Sarokin Dr. and Mrs. Birt Harvey Miriam and Sean Kali-Rai Kathy Schlein Kenneth Hausman and Anonymous (1) Keare/Hodge Family Foundation/ Zhone Technologies Ellyn Lazarus James Anderson Stacy Keare and John Hodge Stephanie and Gregory Jensen William J. Brady Keker & Van Nest LLP ADVOCATES Craig Johnson John Donahoe Kathryn and Richard Kimball ($2,500 – $4,999) Ron Johnson Elaine and Kenneth Langone Stan McKee Robert Kent Worth and Andy Ludwick Miller Family Foundation/ Marc Andreessen and Laura Robert Kibble Van and Eddi Van Auken Jeff and Karen Miller Arrillaga John Kispert Morrison & Foerster Polly and Thomas Bredt Michael Kresser and Darby Susan and Gib Myers JUSTICE SEEKERS Claire and John Davis Siempelkamp O’Melveny & Myers ($10,000 – $24,999) Margaret and Reid Dennis Steve LaVaute Qatalyst Partners Jeannette and Grant Heidrich Leslie Family Foundation/ Valeta and TJ Rodgers Anonymous (2) Allyson and Robert Kavner Debra and Mark Leslie Linda and Ted Schlein Jeanne and Albert Abramson Mary Jane and William Kelly Craig E. Lighty Fund Ken Schroeder and Marilyn and Fred Anderson Ellen Kreitzberg and Tom Hoglund Mark Magner and Wendy Hawkins Frances Codispoti Asset Management Company Tom Lehrer Lori and David Marquardt

[20] Northern California Innocence Project

Donor Honor Roll

Laurence Masson Patricia Kern and Lawrence Rosania Christian Nielsen Natasha Doner Lori and Dennis McBride Carole and Mark Louie Notkin Family Trust / Shelby Notkin Cathy Dreyfuss Sharon and Stan Meresman Shaun Maguire Bonnie and Robert Peterson Marty Feldman Jessica and Richard Millard Courtney Minick Margaret Russell and Thomas Ferrito Cynthia and Forrest Miller Elaine and Armond Neukermans Lee Halterman Roberta Fitzpatrick Alexandra Pantazis Beverly Norman-Cooper Kathleen Rydar John F. Font, Ph.D. Julia and David Popowitz Susan and Donald Polden Nilima Sabharwal Dennis Fox The Praisner Family Foundation/ Wendy Richards Nick Solotruk Susan Frank Jan and Michael Praisner William Roundtree Ed Steinman Carl Frazier Debra and Andrew Rachleff Mary and John Schmelzer Vonda and J. Daniel Tibbitts Larry Gerston Lawrence Reardon Alan Shanken Jennifer and Victor Tirva Audrey and E. Jackson Going Revolution Partners Margaret and Allan Steyer Lovell Tsai and Seth Flagsberg Barbara Gooding Richard MacDonald Studio, Inc. Craig Taylor Jill and Rob Ultan David Gregorio Dennis Riordan Stuart Taylor Brad Gross Barbara and Dave Roux James Thomson COUNSELORS ($100 – $249) J.J. Hamlyn Martha and Greg Ryan Carolyn and H. Anton Tucher Harrington & Ingram/ Hank Scherf Gregory Turnbull Anonymous (3) Richard Ingram SHB Associates University Corporation at Helen Abruzzini Amara Hayashida Jane and Larry Solomon Monterey Bay Georgia Bacil William Ibershof Steyer, Lowenthal, Boodrookas, Jim Weldon Claire Ballard Deborah and Dale Ikeda Alvarez & Smith LLP Winsor Barbee Arthur Jackson Alice and Kenneth Starr ASSOCIATES ($250 – $499) Cori Barton Mary L. Kennedy Patricia and Stephen Sueltz Benchmark Capital Richard King Jean and Stephen Sullivan Anonymous (2) Karen Bernosky Joan Dempsey Klein and Joshua Tanzer Douglas Ardley Ashvini Bhave Conrad Klein Martha and Gerald Uelmen Gail Bates and Peter Yessne Chris Boscia Barbara and Jerry Kosar W.M. Wood Becky and Jeff Bleich Tanya Bracegirdle Jay and Lael Kovtun Jeanne and Cyril Yansouni Jackie and Richard Boberg Emma Bradford and Nigel Pavao Eleanor Kraft Anne Bossange Marcus Bromley Dave Kwinter PARTNERS ($500 – $999) Jeff and Eva Camp Marco Campagna Alan Lagod Cartwright, Scruggs, Fulton & Guy Conger Margaret Lizaur Anonymous (1) Walther Roy Crawford Linda Mar Cris Arguedas, Ted Cassman & Colleen Chien Melissa Davidson Shelly Masur Laurel Headley Conte’s Generator Service/ Daniel Dean Margaret McAuliffe Michele and Allen Asch Laurel and Frank Conte Richard Doctoroff Sachin Mehta Jennifer and Charles Beeler Crystal Springs Foundation/ Bonora D’Andrea LLC Joyce and Mike Murray Hilton Brown Dermer Law Firm/ Consistent Giving William Burnham Joe Dermer Valerie and Dominick Curatola Anjula and V.N. Dewan How do I get my name in red? Martin Dermer Larry Donatoni James Dirks Janice Dong There are several ways to make sure your giving pattern is con- Peter Dunbar Amy Forbes and Andrew Murr sistent and to join the supporters who are highlighted this year. Community Futures Collective/ Mary and Ross Gilbert EFT: Set up an electronic funds transfer with your bank on a Marina Drummer Marian and Roger Gray monthly, quarterly, or annual basis. Michael Fertik Michele and Brian Gustafon Donald E. Field Donald Hardy Recurring Gifts: Set up recurring payments with your credit John Foderaro Kelli and Matthew Howard card. You can decide the frequency. Maggie Gomez Karin and John Jelavich Pledge: Make a pledge commitment over five years. We will Donald Greenberg Daniel Kelly remind you annually. Deborah and Russ Hall Teresa and William Krivan The Herzig Family Foundation/ Michele Kyrouz Grant: Recommend a multiyear grant to your charitable trust or Alan Herzig Leanne Hull MacDougall community or family foundation. Most foundations can set up Adam Huff Jacqueline and John McMahan annual installments over a five-year period. Lynn Johnson Trudy Niehans

[21] Santa Clara L aw

Donor Honor Roll

Thomas Mitchell Sarah Graham Donna Rowell In Honor of Nikki Pope Patricia Nipper Traci Grant Saundra Kae Rubel Carolyn Silberman Noke Charitable Foundation Abby Green James Rudoy Mary and Craig Noke Karen Guldan Maureen Pettibone Ryan In Honor of Frank Quattrone Merry and Glenn Nolte Minoo Gupta Nicole Ryan Claire and John Davis Frank O’Neill Candace Hale Kylee Sargenti Craig Johnson Michael Pressman Orlinda Hamel Gregory Schultz Kathryn and Richard Kimball Marilyn Proffitt Liz Hamm Kirstin Sego Debra and Andrew Rachleff Redwood City Public Library Rob Harper Ashley Selman In Honor of Jack Sagin Jennifer Rogar Matthew Hathorne David Shelton Barbara and Jerry Kosar N.F. Rusteen Joie Healy George Shull Agnes Rymer Brette Hudacek Stephen Sperber In Honor of H. Lee Sarokin Dallas Sacher Josh Kaminker Margaret Stevenson and Anonymous (1) John Sandersfeld Martina Kanau David Flamm Mary and Ross Gilbert Kandis Scott Christine Kawamoto Mary Strong Eileen and Leonard Herman Patricia Seeds Silvia Keller Mary and Henry Talifer Lael and Jay Kovtun Harriet Siegel Gretchen Kenney Cynthia Taylor and Michael Millman Agnes Rymer Carol and Morton Siegler Kelly King United Way Carol and Morton Siegler Carolyn Silberman Patricia and Michael Knowles Alejandra Vera-Vischer Francie and Mike Silva Carol Koenig Ricky Westmorland Remembering Scott Solis Kristi Kovacich Alec Woodward Barbara Steinberg and Frank Lossy Joseph Kral Norma Yuriar In Memory of Phyllis Baron Kathleen and Neal Stephens Laurie Laird Gail Bates and Peter Yessne Vivian Tan John Lambert Honoring Nino Tolentino Lorraine and Mark Lang In Memory of Robert Berke Varda Treibach-Heck and Tim Heck Marilou Lieman Martha and Gerald Uelmen Chris Waters and Melissa Wardlaw Suzanne Loew In Honor of Jim Anderson Michelle Waters and Peter Golcher Carolyn MacKenzie Suzan and William Carrico In Memory of Jim Flynn Erich Winkler Ben Martin Judith Estrin John Sandersfeld Silvia and Kevin Martinez Foundation Capital Jeannette and Grant Heidrich FRIENDS (Up to $100) Miguel Mateos MATCHING GIFTS Mercedes and Terence McCaffrey Robert Kibble Carleen Arlidge Marlyn McClaskey Steve LaVaute BAE Systems Cecilia and William Arzbaecher Marie McEnery Legacy Venture The Capital Group Companies Michael Berger Liza Meak Leslie Family Foundation/ Debra Charitable Foundation Mary Margaret Blanchard Cynthia Mertens and Jim Rowan and Mark Leslie Microsoft Grace and Marshall Bowers Elizabeth Messmer Lori and David Marquardt Radian Meri Lisa Bozzini Jo Ann Morgan Mayfield Fund Foundation Rockwell Collins International Inc. Jeremy Carroll Karen Mudurian Susan and John Paul Lauren Case Riyan Mynuddin Debra and Andy Rachleff Bridget Cash Adele Negro Martha and Greg Ryan Jeanne and Edward Cavallini Kristi Nevarez Anne and Craig Taylor Bernadette Codrington Barbara and Kevin O’Reilly In Honor of Jim and Rhonda Vince Cogan Henry Organ Donato Sign up for NCIP Andrew Conner Sylvia Palma Becky Bleich e-news Stella Constancio Stewart Park Paul Couming Marina Perelman In Honor of Russ and Debbie Hall Get NCIP news delivered Mary Sue Crawford Mary Jane Perna Carole and Mark Louie Marcella and Ricky Pitts directly to your inbox. Julie and David Cruickshank In Honor of John Hodge and Darien Provence Sign up by emailing us Margit David Stacy Keare Teresa Ramos Laurel Davidson Alan Shanken at [email protected]. Irma Eisenberg Samantha Reardon Amanda Freel Audrey Redmond In Honor of Dennis McBride Eugenio Garcia Mariam Rodriguez Silvia and Kevin Martinez Lauren Geller Jessica Rosenberg Cliff Glickman Jared Rowe

[22] Northern California Innocence Project

Give the Gift of Freedom! Your generosity helps to free the wrongly convicted.

Your donation provides the opportunity to achieve even greater success in 2010.

In 2010 the Innocence Project will process over 900 requests for assistance received from inmates who are among California’s 167,000 prisoners. Currently, Innocence Project attorneys, staff and dozens of Santa Clara University law students are investigating or litigating over 100 active cases! Your support gives us the means to free the innocent and fight for systemic changes to ensure innocent people are not imprisoned for crimes they did not commit.

To donate by phone please call 408.554.4790 o Please accept my gift to the Northern California Innocence Project. o My company will match my gift. Company name Amount o $5,000 o $1,000 o $500 o $250 o $100 Other

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Thank you for your generosity! To donate online, go to www.ncip.scu.edu

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3 Things You Can Do to Help Exonerate Innocent People and Prevent Wrongful Convictions

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