Death row exoneration show flaws in sex offender registration concept

While we're on the subject of botched capital murder cases in Plano, I'd be remiss not to mention another recent exoneration from death row - Michael Blair, who was convicted of raping Ashley Estell in a case that spawned Texas' sex offender registration laws. The Texas Court of Criminal Appeals overturned his conviction last week based on an actual innocence claim. Reported the Dallas News ("Appeals court overturns Michael Blair's conviction in Ashley Estell case," June 26):

Steve Miers, Mr. Blair's defense attorney who handled the original trial, said he doubts his former client will be tried again in Ashley's death.

"In my opinion, that's not very likely, because exhibit number one is going to be the press release from Mr. Roach saying that there's another suspect," Mr. Miers said.

Collin County investigators found a "person of interest" who might have been connected to Ashley's death. That man could not be cleared as a suspect, but he died more than 10 years ago.

Hair evidence that supposedly connected Mr. Blair to Ashley's body has been disproved by DNA testing that was not available at the time of the trial. Additional DNA testing showed that there was no forensic evidence placing Mr. Blair at the crime scene or connecting him to Ashley.

Ashley's death prompted state Sen. Florence Shapiro, R-Plano, to create a series of stricter sex offender legislative changes, now known as "Ashley's Laws." She said in a written statement Wednesday that Mr. Blair's overturned conviction doesn't lessen the value of those laws.

"That does not diminish the fact that Ashley Estell was molested and murdered; and that Ashley's Laws ... stand as strong today as they ever have," Mrs. Shapiro said. "From 1995 until today, these laws forever changed the way the state of Texas deals with these heinous crimes."

Sen. Shapiro sounds a little defensive, and perhaps she should. She's correct that Blair's exoneration indeed does not "diminish the fact that Ashley Estell was molested and murdered." What it does do, however, is demonstrate how easily the harsh laws Sen. Shapiro spearheaded can be applied to the wrong person. (The man DNA identified as Estell's actual killer died ten years ago without being prosecuted for the crime.)

Three factors contributed to Michael Blair's wrongful conviction: Inaccurate eyewitness testimony, shoddy forensic science, and assumptions of guilt by police based on Blair's past conviction for sex crimes. The sex offender laws Shapiro spearheaded institutionalized such assumptions - encouraging instead of preventing them - making it more likely in such cases the wrong person gets convicted and the guilty man goes free.

Frankly, IMO the whole sex offender registry idea was always more a public relations stunt than a public safety strategy. The registries includes too many petty offenders, they tend to be filled with errors and perhaps most importantly from a public safety perspective, research shows that "community notification deters first-time sex offenses, but increases recidivism by registered offenders." (emphasis added)

Sen. Shapiro is correct that the registration laws she passed "forever changed the way the state of Texas deals with these heinous crimes," but not for the better, and not in ways that necessarily make anyone safer. Indeed, to the extent the laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception.

Exoneration shows sex offender registration based on faulty premise

During the legislative process when it first passed, Texas' sex offender registration statute was dubbed "Ashley's Law," named after 7-year old Ashley Estell who was raped and murdered in Collin County in 1993. Authorities at the time decided a man named Michael Blair committed the crime, targeting him in part because he'd been convicted previously of a sex offense.

As it turned out, though Blair was no angel, he had nothing to do with Ashley Estell's death. DNA tests this year cleared Blair - who had been sent to death row for the crime - and identified a culprit who died ten years ago without ever being prosecuted for the offense. This week the courts finally dismissed the case against Blair, reports AP. (Though leaving death row he remains in prison for other offenses he admitted to while behind bars.)

The collapse of the case against Blair shows the wrong thinking behind modern sex offender registration laws, which make public information about offenders' past criminal history and portray this as having predictive value as to whether people should fear them. As in Blair's case, though, that can backfire if sex offender registration causes police and the public to develop a "round up the usual suspects" mentality.

The premise behind Texas' sex offender registration laws was that if Ashley's family could have known about Blair's past they could possibly have better protected their child. Except that since Blair didn't do it, his case instead shows how widely distributing that knowledge can lead to wrongful persecution and prosecution. As a result, the real killer was never held accountable. As I've written previously, "to the extent [Texas' registration] laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception."

The worst part: That error produces more crime and more victims. Research shows that sex offender registration can increase recidivism for those on the registry "by imposing social and financial costs on registered sex offenders and making non-criminal activity relatively less attractive."

DNA evidence has been an incredibly valuable tool, not only for solving old cases but providing a window onto a variety of common errors in the justice system from faulty eyewitness ID procedures to unregulated use of informants and shoddy forensic techniques. With Blair's case we can add the premises behind sex offender registration laws to the list of errors identified post facto thanks to DNA evidence.

Will next Texas DNA exoneree come from death row?

Will the next "actual innocence" exoneration in Texas come from death row?

Michael Blair was condemned to death for raping and killing Ashley Estell, but now collin County DA John Roach admits DNA evidence proves he didn't do the deed. Says the Texas Death Penalty Blog:

Don't worry, though. Because this man has confessed to other brutal sexual assaults, he won't be freed. Ever. But a Texas DA, a Texas jury and several appeals courts almost had the blood of an innocent man (in this case) on their hands. He was convicted because he was a known child molestor who showed an interest in the case. If the process moved as quickly as death penalty proponents wished it did, he'd be dead by now.

Even more to the point, authorities wouldn't know they should still be looking for Ashley Estell's killer. See early media and blog coverage of the story:

• Stand Down Texas' analysis and news roundup
• Collin County Observer: Roach calls to void Blair's death sentence
• Dallas News: Michael Blair Case Unravels
• Capital Defense Weekly: Texas death row exoneration in the works?
• Defending People: Actual Innocence in Collin County

Blogger wants Collin County to follow Dallas in reviewing capital cases

Upon observing that Dallas County District Attorney Craig Watkins this week told the press he wanted to re-examine about 40 death penalty cases from Dallas County, Bill Baumbach at the Collin County Observer said the Charles Hood and Michael Blair cases show a similar review is needed in his county, offering this blog-cry in the wilderness about the damage recent incidents have caused to pubic confidence in the courts:

Collin County is well known for its no-nonsense harsh sentences and vigorous prosecution of evil doers. Unfortunately, it appears that, at least some of the time, our zeal to convict has overrun our sense of justice.

Our notion that all defendants are innocent until proven guilty in a fair trial is one of the glues that holds our society together. Most of us don't fear our courts, because we are confident that even if we are wrongly charged, the truth will prevail.

When that confidence is lost, we no longer live under the rule of law, but the rule of men - men who wish us harm.

In a letter to DA Roach on the Hood case, Texas Attorney General Greg Abbott wrote, "... a death sentence is most serious and solemn act of any state. The impartiality of a defendant's trial and conviction must be beyond reproach."

As important as the notion of a fair trial is the unavoidable problem that when an innocent man is convicted, a guilty criminal is left free to commit new crimes - to hurt more victims.

Beyond those high-profile cases, he said, "Judicial and prosecutorial zeal has caused the recusal of another Collin County judge in the case of Mark Bell," an incident I hadn't heard about.

While I share Baumbach's sentiment that these cases show something may be deeply wrong with Collin County justice, asking John Roach to review these cases is a lot different from Craig Watkins doing it in Dallas. There are reviews and then there are reviews.

One facet of Watkins decision I found interesting was when the man he beat in the DA's race, Republican Toby Shook, complained to the Dallas News, "Perhaps he hasn't thought this through, but essentially what he's saying is, 'There is one more court of appeal and that's me."

That's a clever way to phrase it, but it's not really what's happening. The DA has a role in when executions get set and his office is exercising its prerogative. Instead, Watkins is issuing a no-confidence vote on the work of his predecessors at the Dallas DA's office, including Shook, in light of the rising tide of successful actual innocence claims.

Michael Blair's exoneration shows that even in death penalty cases the system can make mistakes and get the verdict 100% wrong, with appellate courts routinely approving even obvious mistakes. Watkins is right to want to identify and correct any errors before they become irreversible.

DNA Forensics Roundup

Several recent DNA-related items deserved Grits readers attention.

Do DNA exonerations merit death penalty moratorium?
Twenty men exonerated by DNA evidence all gathered in Austin on Friday to call for a moratorium on Texas' death penalty in light of the state's recent slew of long-time inmates proven innocent by applying modern forensics to old evidence, including most recently the exoneration by DNA of Michael Blair who'd been sitting on Texas' death row. Reported the Austin Statesman:

The exonerated men, members of Witness to Innocence, a Philadelphia-based organization that is holding its annual meeting in Austin, want Texas to create a commission to search for wrongful convictions. And while the commission works, they want a moratorium on executions in the busiest death penalty state — with 419 executions since 1982 and six more scheduled this month. ...

Sam Millsap, former Bexar County district attorney, said he slowly came to believe that the death penalty must be abolished because of the growing number of exonerated death row inmates — 130 since 1973, including nine in Texas, according to the Death Penalty Information Center. "I am no longer convinced that our courts will in fact guarantee the protection of the innocent," Millsap said.

Millsap said he has taken responsibility for the 1993 execution of Ruben Cantu , a San Antonio man who Millsap said might have been innocent of a 1984 murder. The conviction was based on one eyewitness who later recanted, and no physical evidence tied Cantu to the crime, he said. "My decision to seek the death penalty was a mistake."

The most recent Texas exoneration was in September , when a Collin County court dismissed the capital murder case against Michael Blair , sentenced to die for the 1993 murder of 7-year-old Ashley Estell.

However, the reporter (perhaps rightly) warned the exonerees:

any bill to halt executions stands no chance of passing the Texas Legislature, [Austin state Representative Elliott] Naishtat said. Capital punishment has substantial support in Texas. The 2007 Texas Crime Poll by Sam Houston State University found 74 percent of Texans support the death penalty. And 66 percent said they were confident that innocent people are protected from execution.

Research underlying DNA forensics began in Houston
The Houston Chronicle published a story commemorating the 20th anniversary of a Harris County case that launched the international boom in the use of DNA in forensic science and interviewing Dr. Tom Caskey, whose patents on the early technology still fund research positions at the Baylor College of Medicine:

"Don't ever say crime doesn't pay. Crime does pay," quipped Caskey, who now directs the Brown Foundation Institute of Molecular Medicine for the Prevention of Human Diseases, a part of the University of Texas Health Science Center at Houston.

Caskey's early work on a Houston homicide case became the foundation for today's national network of criminal DNA sampling, reported the Chronicle's Eric Berger:

Caskey's primary scientific interest at the time involved the identification of genes linked to human disease. But, during the course of his research, he identified short segments of DNA — called short tandem repeats, or STRs — that vary widely from person to person.

His lab developed an STR identification technique that soon became the gold standard for criminal cases.

The method underlies the U.S. Combined DNA Index System, or CODIS, which contains DNA information on more than 6 million offenders. The system also forms the basis of Interpol's criminal database and that of most governments.

A constitutional right to DNA testing?

The US Supreme Court will soon decide whether a federal right exists to have DNA evidence tested that could prove a long-ago convicted defendant's innocence, even if he confessed to the crime:

William Osborne was accused of raping a prostitute at gunpoint, beating her with an ax handle and leaving her for dead in the snow. His lawyer declined a DNA test of the evidence, thinking that it would confirm his guilt.

Osborne was convicted, spent more than a decade in prison and gave a detailed confession to a parole board. But after recanting that confession, the Alaska man won a federal lawsuit seeking new DNA tests that he now says can clear him, a judgment that was affirmed by the U.S. Court of Appeals for the 9th Circuit. It is the first time an appellate court has ruled that an inmate has a federal constitutional right to such testing.

Now, the Supreme Court is being asked to evaluate that ruling in a case that pits the administration of Alaska Gov. Sarah Palin, the Republican vice presidential nominee, against a Republican-appointed judge who accuses her state attorney general of being "obstinate" in blocking Osborne from getting to test the evidence used to convict him. The high court debated Alaska's request to take the case in a private conference on Friday and could announce its decision as early as today.

Touch DNA evidence could overwhelm crime labs
Finally, if you're not yet familiar with the concept of "touch DNA," be sure to check out this piece from the back pages of Scientific American which answers the question:

So what’s touch DNA?

The touch DNA method—named for the fact that it analyzes skin cells left behind when assailants touch victims, weapons or something else at a crime scene—has been around for the last five years. In fact, the prosecutor in the Ramsey case, Boulder County District Attorney Mary Lacy, learned about touch DNA when she attended a course here at the West Virginia University Forensic Science Initiative in the summer of 2007.

The technique has dramatically increased the number of items of evidence that can be used for DNA detection. In the 1980s, in order to perform DNA analysis on a crime scene or victim, forensic investigators needed a blood or semen stain about the size of a quarter. The sample size fell in the 1990s to the size of a dime and then became: “If you can see it, you can analyze it.”

Touch DNA doesn’t require you to see anything, or any blood or semen at all. It only requires seven or eight cells from the outermost layer of our skin.

Here’s how it works: Investigators recover cells from the scene, then use a process called polymerase chain reaction (PCR) to make lots of copies of the genes. Next, scientists mix in fluorescent compounds that attach themselves to 13 specific locations on the DNA and give a highly specific genetic portrait of that person. The whole process takes a few days, and forensic labs are often backed up analyzing data from other cases.

These cautionary asides about touch DNA, backed up labs and evidence retention problems echo concerns voiced recently to the Court of Criminal Appeals "Criminal Justice Integrity Unit that:

The advent of "touch DNA" ... threatened to overwhelm agencies' storage capacity. Potentially lots of new items could be stored for touch-DNA testing, even though labs already have tremendous backlogs. That means long lag times during which the evidence must be securely stored despite limited space.

Texas' DNA labs right now are backed up and understaffed, but the trend will be for their caseloads to dramatically expand in the near term as these techniques become more widely used (especially considering the range of possible uses to which it could be subjected). For these reasons, ironically, demand for DNA lab services will inevitably increase regardless of whether crime rates go up or down.

Forensic science errors and the introduction of junk science as evidence are responsible for up to a quarter of false convictions among Texas DNA exonerees. The focus on DNA forensics in Texas has been to bring existing labs up to snuff quality-wise, but nobody's planning pro-actively, to my knowledge, how the state will make the labs independent, much less eliminate current backlogs, or meet the inevitable, expanded future demand for forensic capacity.

The advent of touch DNA is an amazing and wonderful thing evidence-wise, but it exacerbates an already problematic situation with regard to lab backlogs and DNA-related forensic errors.

Bad facts, tales of dead men, and NSA pick up lines

Here are a few odds and ends that didn't make it into their own Grits posts this week but deserve readers' attention:

David Dewhurst makes the call
Note to public officials: If your relative is arrested, don't call the cops to ask that they be released. Get them a lawyer. That's how it's done.

'Stuck in jail'
So much for the right to a speedy trial. Reported the Houston Chronicle, "Dozens of suspects have remained behind bars in the Harris County jail for years without going to trial, according to a Houston Chronicle investigation. Legal experts and judges called the situation outrageous and said it may be a violation of the suspects’ constitutional rights." See a slideshow on some of the cases involved.

Bad facts make bad law: Exoneree compensation edition
Michael Blair was falsely convicted of capital murder but, while incarcerated for the murder he didn't commit, confessed to four child molestation cases that earned him four life sentences. He will almost certainly die in prison. A divided Texas Supreme Court ruled that he is not eligible for compensation for the false conviction. See the Texas Tribune's coverage. Reading the opinion, a concurrence, and the dissent, the old adage "bad facts make for bad law" comes to mind. Blair's unique situation is unlikely to be repeated. Meanwhile, some exonerees have had prior convictions and part of the reason they were convicted was that police had a "round up the usual suspects" mentality. I understand the justices not wanting to see Blair compensated, but the contortions undertaken by Justice Nathan Hecht to reach his desired outcome flew in the face of what the Legislature intended, which was that future, post-exoneration convictions would make people ineligible for compensation, not past crimes. The main decision was only fully joined by a plurality (four judges), so it's possible these issues could come back to the court with different and less prejudicial facts surrounding them the next time the Comptroller denies a compensation claim under Justice Hecht's standard.

Cop regained job after excessive force incident
A man won an excessive force lawsuit against the Carrollton PD after an officer slammed his head against a wall while in custody. The cop was fired but (unsurprisingly) regained his job through the civil service appellate process.

New law lets police sell confiscated guns
The Texas Tribune has the story.

Houston PD finally testing old rape kits
Houston PD has eliminated its rape kit testing backlog by sending all the old kits to an outside lab for independent testing. No word yet on how many cases may be solved, but each one will be its own mini-scandal.

Tales of dead men
Dead men tell no tales, but an historian is seeking people who can tell tales about them, searching for answers to mysteries regarding old inmate graves before those who might know about them are all gone.

NSA Pickup Lines
The offerings at Twitter hashtag #NSApickuplines are hysterical. E.g., "You look way prettier in person than in your webcam." Let's hope it's true that Twitter memes are an accurate predictor of political behavior. The Twitterverse doesn't appear to think much of NSA phone snooping.

Texas concerned about cost, flawed risk assessments in Adam Walsh Act

The Wall Street Journal has a story about states including Texas refusing to participate in the federal Adam Walsh Act expanding sex offender registries. Here's a notable bit:

Objections have arisen in such states as Texas, where officials say existing local laws are tougher on sex offenders than the new standards.  The federal act "contradicts what our research over 30 years indicates," said Allison Taylor, executive director of Texas's Council on Sex Offender Treatment, an advisory body with a governor-appointed board. "Public safety would not be enhanced."

Texas also complains that the price of implementing the federal law — about $38.8 million, according to one state estimate — far exceeds the $1.4 million in federal money the state would lose if it didn't comply....   Federal officials say states' worries about costs are overblown. Scott Matson, a senior policy adviser in the U.S. Justice Department office that is helping states implement the act, said one estimate pegged the cost at $18 million in Ohio, but the program turned out running closer to $400,000....

Police say the vast majority of sexual assaults are committed by family members or acquaintances of victims, not unknown perpetrators who might appear in a database.  In Houston, Lt. Ruben Diaz, who heads the sex crimes unit at the Harris County sheriff's department, said it was very rare to find the perpetrator of a new sex crime among those already in the registry....

Other states are also balking at the federal standards.  In a letter to Congress last month, the office of California's attorney general cited "serious concerns" with implementing the Adam Walsh act, including not only cost, but also its inclusion of some juvenile offenders. Some states are raising another concern: that the federal standards use the crimes for which offenders were convicted to assess the threat they pose.  Several states, including Arizona and Texas, prefer a ranking system that uses factors such as the offenders' ages and their relationships to their victims to determine how likely they are to offend again.

Lt. Diaz's comment hits the nail on the head: It's "very rare," by any measure, for new sex crimes to be committed by those on the registry, making  all the extra supervision for such offenders a quite expensive, if ineffective, dog and pony show. Indeed, from the beginning the concept was flawed: In Texas, our registry was created in a bill dubbed "Ashley's Law," after a past sex offender named Michael Blair was convicted of raping and murdering a girl named Ashley Estell. Mr. Blair turned out to be actually, factually innocent of the Estell murder (he was cleared via DNA). So literally from its inception, Texas' registry was based on a false premise.

The grant money Texas would lose is de minimus compared to the cost of implementing the Adam Walsh Act, but misplaced public safety priorities stemming from the law arguably are an even more important reason to reject this unfunded mandate. In an era of scarce resources, there's little cost-benefit argument for devoting so much extra supervision resources toward low-risk offenders on what's become a bloated, politicized listing.

Via Sentencing Law & Policy.

DNA tests may clear man convicted in case that spawned "Ashley's Laws"

This from AP:

The man convicted of killing 7-year-old Ashley Estell in 1993, a crime that prompted tough laws against sex offenders, is arguing in a new motion that DNA evidence proves he is innocent.

"Given the nature of this evidence ... his actual innocence can hardly be disputed," death row inmate Michael Blair's attorney Phil Wischkaemper said in Wednesday editions of The Dallas Morning News.

Blair was convicted in 1998 of molesting and strangling Ashley after she was abducted from a suburban Dallas soccer field. The case sparked the Legislature to pass tough sexual-predator measures called "Ashley's Laws." The measures require longer prison terms and public registration for sex offenders.

So the case that spawned Texas' sex offender registration laws appears to have been based on a situation that caused a wrongful conviction! The vengeful sentences and lifetime registration requirements passed by the Legislature were created to spite someone who likely wasn't responsible for the crime.

Today, about 45,000 people are registered in Texas' public sex offender database under that law. I wonder how many of them are in the same boat?

UPDATE: See more from Corrections Sentencing on sex offender laws, plus additional links from Sentencing Law and Policy.

Texas Voices profiled; broad sex offender registry criticized

Doc Berman points to an article ("Texas group fights sex crime's stigma," Dec. 14) by the Houston Chronicle's Lisa Sandberg about the group Texas Voices, made up of sex offenders, their families, and others who believe that

community notification laws fail to protect the public, because they don't distinguish dangerous predators from otherwise harmless men and women who foolishly had sex with underage lovers, served their sentences and don't need a lifetime of public scrutiny. ...

Texas Voices is finding agreement in unusual places.

Ray Allen, the former Texas House Corrections chair who helped shepherd into law tough sex registration bills, said he and his colleagues went too far.

"We cast the net widely to make sure we got all the sex offenders. Now, 15 years on, it turns out that really only a small percentage of people convicted of sex offenses pose a true danger to the public," he said.

Sen. John Whitmire, D-Houston, the Senate Criminal Justice chair, said, "If we're not careful, we're going to have a sex offender registry that is so large and so encompassing, it's not much good."

Texas Voices members know their chances for success hinge on politicians risking their careers on a population with just about zero political clout.

Sen. Florence Shapiro, R-Plano, who has been a driving force behind the community notification laws, isn't ready to assume that risk. She insists that if the registry is too large, it's because there are too many people out there committing sex crimes.

Dozens of offenders, along with moms, dads and significant others, show up for the monthly Texas Voices' meetings, sharing stories and plotting strategy.

The most committed spend days and nights scrolling through the registry seeking to recruit new members. Nearly 1,000 offenders have been contacted, and about 300 have heeded the call to action, organizers say.

The article mentions that most states' sex offender registration laws begin after some heinous crime, even though they're often written to capture a wider array of offenses:

"If you look at almost all the laws out there on the books, they usually have been enacted following a horrible crime, a sexual assault and murder, which represent a tiny fraction of sex offenses," said Dr. Fred Berlin, founder of the John Hopkins Sexual Disorders Clinic.

I wish Sandberg had mentioned that the heinous crime which spawned Texas' sex offender registry actually resulted in a false conviction that was later overturned by DNA evidence. She writes, "Texas' first community notification law was passed in 1995 and named for Ashley Estell, a 7-year-old girl snatched from a North Texas playground and murdered by a sex offender parolee." But she failed to add that the man convicted of that crime - Michael Blair - was exonerated this year and did not commit the offense. As I've written previously, "to the extent [Texas' registration] laws arose from lessons learned in the Ashley Estell case, they were literally based in error from their inception."

I'm in broad agreement with the group's stated agenda and agree the issue deserves this kind of focused advocacy effort. I'll look forward to seeing what Texas Voices will be working on during the 81st Texas Legislature.