Good on AG Dana Nessel's Conviction Integrity Unit.
Gilbert Lee Poole will be getting out of prison after Michigan's Conviction Integrity Unit cleared him of a murder he didn't commit. Poole had been convicted and sentenced to life in 1989, largely on the basis of "bite mark analysis," a once common form of evidence that in recent years has been debunked and branded as pseudoscience. DNA evidence proved that Poole was not the killer.
When we established this team in 2019, we made a commitment to ensuring those convicted of state crimes are in fact guilty while also providing justice to those wrongfully imprisoned.
Nessel also thanked the Western Michigan University-Cooley Law School Innocence Project, which had worked on the case for 10 years.
Here's an idea for a new series, Dick Wolfe. "Law and Order: Criminal Integrity Unit." It could show how people get wrongly convicted, and then after decades in prison, some of them are finally proven innocent. DUN DUN!
Poole was convicted and sentenced to life without parole in the 1988 killing of Robert Mejia in Pontiac, Michigan. We'll let the Detroit News do the summarizing here:
Mejia, whose body was found in a Pontiac park, had eight stab wounds to the face, neck and upper chest and other injuries consistent with having been in a fight, an autopsy determined. [...]
The killing went unsolved for five months before Poole's then-girlfriend told North Carolina authorities he had confessed to killing a man he had met in a bar. The girlfriend said she and Poole had earlier argued over money and he left saying he was "going out to get some money." He returned several hours later scratched up and red-faced, the girlfriend told authorities.
Nessel's office said that at trial, much of the case against Poole relied on "bite mark analysis," a now-discredited forensic technique. An expert witness testified that marks on Mejia's body definitely matched Poole's teeth. But as Law & Crime points out, the method is just plain not scientifically valid.
In 2009, some two decades into Poole's sentence, the National Academy of Sciences released a groundbreaking report titled "Strengthening Forensic Science in the United States: A Path Forward," which found "a high percentage of false positive matches of bite marks using controlled comparison studies."
"No thorough study has been conducted of large populations to establish the uniqueness of bite marks; theoretical studies promoting the uniqueness theory include more teeth than are seen in most bite marks submitted for comparison," the report states. "There is no central repository of bite marks and patterns."
The Innocence Project is even more blunt about the technique's lack of scientific rigor, noting that "Bite mark 'experts' cannot even agree on the answer to the most basic of questions: Was this injury caused by teeth?" At least 26 people convicted based on bite mark "evidence" had been exonerated by other evidence when that article was published in April 2020, although "there are likely many more innocent people behind bars because of the use of this discredited science."
During yesterday's remote hearing that ended with his conviction being vacated, Poole said, according to his attorneys,
I have to say that I didn't understand what was happening back in 1988 when I came to court to be tried for a murder I didn't commit. [...] At 22 years old, and a thousand miles away from anyone I knew, I kicked and screamed and stomped my feet and said "This is not right."
Poole is 56, just two years younger than I am. I'm trying to get my head around the idea of having the last 32 years carved out of my life by an unreliable witness and shitty evidence.
That would have erased the end of my first marriage, the relationship that became my second, my mother's death, the entire life of Kid Zoom, the two years we lived in Japan, our move from Tucson to Boise, the reasonably amicable end of that marriage, the entire 15 years I knew Noted Pundit Our Girlfriend, including her death in January, and of course the nine years I've had the pleasure of writing for Wonkette. And those are merely the broad strokes.
Others have been incarcerated even longer for false convictions. Richard Phillips, released in 2019, spent the most time in prison before an exoneration, 46 years. (Coincidentally, his was another Michigan case.) He was 72 when he was finally released; I'm not sure the $1.5 million he received under the 2016 Michigan Wrongful Imprisonment Compensation Act was exactly compensation for a lifetime, but at least Michigan has such a fund.
Mr. Poole spent his time in prison reading and studying law, and he became a born-again Christian, which has been a source of great comfort to him. The work of the Innocence Project is invaluable, and every state should absolutely set up its own version of Michigan's Conviction Integrity Unit. Even more important, we need reforms to make sure such false convictions are more rare. As far as we can tell, the real killer of Robert Mejia was never found, so there's another reason the justice system should be more, in a word, judicious.
Nessel says that the Conviction Integrity Unit has received over 1,300 requests to examine cases. Even if only a fraction of them are valid, that's a hell of a lot of integrity that needs to be restored.
Yr Wonkette is funded entirely by reader donations. If you can, please give $5 to $10 a month to help Dok get all moody about people he's never met. And if you have a little extra, a donation to The Innocence Project would help fund some vital work.
California judge dismisses murder charges against Chelsea Becker
Yesterday, a judge in California dismissed murder charges against Chelsea Becker, for having a stillborn baby.
Prosecutors had argued the baby died because Becker, who struggles with addiction, caused the stillbirth by ingesting meth during her pregnancy, but Kings County Superior Court Judge Robert Shane Burns ruled that they hadn't presented any evidence that Becker knew when she took the drugs that doing so could kill her baby.
The outcome is right. Pregnancy should not be criminalized.
But, unfortunately, this is not the end of the bigger fight.
In September 2019, Chelsea Becker, then 26 and nearly 9 months pregnant, delivered a stillborn son. After she gave birth to Zachariah Joseph Campos, at Adventist Health hospital in Hanford, California (near Fresno), hospital workers who thought she might have used drugs while she was pregnant alerted the Kings County Coroner's office.
Two months later, prosecutors charged Becker with murder, citing an autopsy report that Zachariah had "toxic levels of methamphetamine in his system." The court set her bail at $5 million.
Becker sat in jail for more than a year before eventually being transferred to a drug treatment center earlier this year. (After the ruling, Becker's lawyers said she would be staying at the treatment facility for now.)
Rather, this is an attempt to "polic[e] pregnancy and pregnancy outcomes in general." Paltrow celebrated the dismissal but noted that Judge Burns had left the door open for future prosecutions of pregnant women.
"This is such an important victory," Lynn Paltrow ... said Thursday. "We are so grateful that Chelsea Becker was willing to fight this egregious charge to try to ensure that no one else has to face a murder charge for experiencing a stillbirth."
Still, she said, the outcome was slightly bittersweet.
"This prosecution based on a misinterpretation of state law resulted in somebody being deprived of her liberty and exposed to the real danger of COVID for 16 months of her life," she said. "This cost taxpayers innumerable dollars in terms of the incarceration as well as all of the time to pay for the prosecution in this case, money that could have been used to improve access to healthcare in their community."
So why the fuck is this happening?
In 1970, the California Supreme Court overturned the conviction of Robert Harrison Keeler. Keeler had been found guilty of murder after he badly beat his ex-wife, trying and succeeding at killing the baby she was having with another man.
In response the California legislature added fetuses to its murder law, with the intention of being able to charge people who attack pregnant people. The law included an exception for abortion, saying it does not apply to acts "solicited, aided, abetted, or consented to by the mother of the fetus[.]"
That language would seem to preclude prosecutions against women like Chelsea Becker. Unfortunately, however, the California Supreme Court has never explicitly ruled that you can't prosecute someone for losing a baby.
So initially Judge Burns sided with the DA, allowing the case to proceed. And when he dismissed the case against Becker, Judge Burns also made it clear that the case was being dismissed because of a lack of evidence, not because the law was being improperly applied.
Becker's nightmare isn't over yet. The prosecution can still appeal the ruling or request a new preliminary hearing. According to executive assistant district attorney Phil Esbenshade, Kings County District Attorney Keith Fagundes, the asshole who chose to prosecute her in the first place, "will review the record and the transcript of Thursday's proceedings before deciding how to move forward."
Fagundes also said he disagreed with the court's ruling.
"It is the opinion of our office that sufficient evidence was presented at the preliminary hearing to hold Ms. Becker to answer for trial," he wrote in an email. "The judge who presided over that preliminary examination, upon hearing that evidence and considering arguments from both sides, did find such sufficient evidence existed. Judge Burns, the judge who dismissed the case this morning, apparently disagrees with that finding."
So it's very possible that Fagundes will keep trying to throw Becker in prison.
For their parts, both former California Attorney General and current HHS Secretary Xavier Becerra and current AG Rob Bonta have both strongly opposed Becker's prosecution. Like Becerra wrote in an amicus in Becker's case, prosecutions like this "subject all women who suffer a pregnancy loss to the threat of criminal investigation and possible prosecution for murder."
Stop criminalizing pregnancy
Robert Burns. Phil Esbenshade. Keith Fagundes. Xavier Becerra. Rob Bonta.
That sure is a lot of men making decisions about people with ovaries.
Sadly, Chelsea Becker isn't the only person being prosecuted for losing a child. She wasn't even the only woman in California behind bars for it.
"We are seeing an increasing number of women who are arrested for experiencing miscarriages and stillbirths," said Lynn M. Paltrow, founder and executive director of National Advocates for Pregnant Women.
Between 1972 and 2005, Paltrow's organization documented 413 cases in 44 states and the District of Columbia in which women were arrested or detained for reasons related to pregnancy, she said. About 84% of them involved drug use. In the 14 years since, she estimates there have been about 900 additional cases.
Like Chelsea Becker, Adora Perez also delivered a stillborn baby at Adventist Health hospital in Hanford, where staff again called the coroner to report suspected drug use after delivering a stillborn baby.
The same prosecutor, Keith Fagundes, charged Perez with murder. The same judge, Robert Burns, allowed the case to proceed.
It's not exactly shocking that these cases involve all of the same players. Things like this happen when you have religious hospitals and shitty local politicians who are all too happy to work together to persecute women and pregnant people.
A hospital ready and willing to accuse its patients of murder. An obliging coroner, district attorney, and local judge.
Apparently, those are all the things you need to criminalize pregnancy. Even in California. In 2021.
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NOT SHINY, NOT NORMAL: Chevron Allowed To Literally Prosecute Lawyer For Winning Judgment Against It
US vs. Donzinger? THIS WHOLE CASE IS OUT OF ORDER.
Yesterday, the final day of his criminal trial, was Steven Donziger's 650th day under house arrest.
Donziger's crime? Pissing off Big Oil.
For decades, the oil giant had destroyed the local ecosystem, dumping billions of gallons of toxic waste, leaving pits of oily waste water the size of football fields.
In 2011, an Ecuadorian court awarded Donziger's clients $19.5 billion in damages.
Rather than finally pay for some of the damage it had done, Chevron — which has some $260 billion in assets — quickly sold all of its holdings in Ecuador and got to work doing everything it could to get out of paying the people it harmed.
And, in addition to fighting the judgment, Chevron had a new goal: Ruin Steven Donziger's life.
Let's start at the beginning
As you can probably already tell, this is a long and complicated story. So let's start at the beginning.
From 1964 to 1992, Texaco dumped some 19 billion gallons of toxic waste into the area around the Lago Agrio oil field. The pollution and contamination have caused all of the problems you would expect. High cancer rates. Birth defects. Miscarriages. Unsafe drinking and bathing water. Lots of death. In 2000, Chevron bought Texaco, assuming its liabilities.
The case that would eventually be won in Ecuador was originally filed in the United States. It was Chevron that argued the case should be tried in Ecuador. Once the case got to Ecuador, Chevron tried to argue the case shouldn't be brought there, either. Because they would really just prefer it if no courts had jurisdiction over them.
The trial court in Ecuador ruled in favor of Donziger's clients and awarded them $19 billion. The judgment was upheld by Ecuadorian courts, though the country's highest court cut the damages down to $9.5 billion.
To this day, Chevron has not paid a dime for the damage it inflicted on the people of Ecuador. Instead, it quickly sold off its Ecuadorian assets, making it impossible for the plaintiffs to collect on their judgment.
Chevron v. Donziger
Soon after the verdict in Ecuador, Chevron and Donziger were back in court in the US — this time with Chevron accusing Donziger of committing a RICO fraud and bribery.
Chevron v. Donziger, filed in the Southern District of New York, drew Judge Lewis Kaplan to oversee the case. Judge Kaplan, a Clinton appointee, was a career corporate defense attorney before taking the bench. While in private practice, he represented Brown & Williamson Tobacco Corp. and was part of "the inner sanctum of top tobacco lawyers that mapped the companies' joint legal and political strategies."
Originally, Chevron had sued Donziger for some $60 billion in damages. On the eve of trial, Chevron dropped its damages claims, leaving Judge Kaplan to deny Donziger a jury of his peers.
After a bench trial, Judge Kaplan ruled in favor of Chevron, finding in a 500-page opinion that Donziger had fraudulently procured the Ecuadorian verdict. Judge Kaplan's decision was based in large part on the testimony of Chevron's star witness, former Ecuadorian judge Alberto Guerra, whom the judge deemed to be credible.
Chevron paid more than $2 million to move Guerra to the US, pay for his immigration attorneys, and pay him a monthly salary.
Guerra has since admitted that he lied under oath at the 2013 trial. During proceedings in front of the International Arbitration Tribunal, Guerra also described how Chevron employees paid him huge amounts of money, saying things like "Money talks, gold screams."
"One of [Chevron's employees] took me by the arm and said, 'Look, look, look what's down there. We have $20,000 there,'" Guerra explained in his testimony before the tribunal. "Specifically, one of them was the one that led me to take a look at it. It was inside a safe."
In testimony before the tribunal, Guerra admitted that at this point he tried to get more money from Chevron. "At some point, I said, well, why don't you add some zeroes to that amount, and then later on I said, 'I think it could be 50,000.'"
In the order, Judge Kaplan went out of his way to say that Donziger was guilty of criminal activity, despite the fact that Donziger had never been charged with, tried for, or found guilty of any crimes. This order would also be the basis for Donziger's disbarment.
Despite the fact that Chevron dropped its monetary damages claim against Donziger to avoid a jury trial, Judge Kaplan ordered Donziger to pay Chevron $800,000 for doing the RICO.
And by now, Judge Kaplan has ordered Donziger to pay around $10 million in fines, fees, costs, and attorneys fees to Chevron and its lawyers at Gibson Dunn.
US v. Donziger
Because Donziger has only been charged with misdemeanor contempt, he can't be sentenced to more than six months in jail. Meanwhile, he has spent nearly two years under house arrest.
This criminal case is an offshoot of Chevron's civil suit. Because Donziger — who lives in a two-bedroom apartment in New York with his wife and kid and is not, in fact, a billionaire like Chevron — now owes Chevron and its lawyers a lot of money that he doesn't have.
As part of its attempt to collect, Chevron requested access to all of Donziger's electronics — and Judge Kaplan obliged. Donziger, who was worried about his legal and ethical obligations to his clients, objected and appealed the order. While the order was still on appeal, Judge Kaplan ordered Donziger to show cause why he shouldn't be held in criminal contempt.
And just wait, it still gets worse!
Kaplan referred his criminal contempt charge against Donziger to the US Attorney's office. The US Attorney for the Southern District of New York declined to prosecute the case. AND JUDGE KAPLAN JUST CHARGED DONZIGER ANYWAY!
The judge also hand-picked Seward & Kissel, a corporate defense law firm that represented Chevron as recently as 2018, to go after Donziger on behalf of the United States. (Seward & Kissel didn't disclose its attorney-client relationship with Chevron until it had already been prosecuting Donziger for seven months.) Do judges often farm out prosecutions to private counsel? NO! NONE OF THIS IS NORMAL.
Ignoring the standard procedures for case reassignment, Judge Kaplan also chose to assign the case to George H.W. Bush appointee Judge Loretta Preska. Another career corporate defense attorney, Judge Preska took senior status in 2017 so that Donald Trump could appoint another judge to the Southern District of New York. She also tried to kill the CFPB but was overturned by the Second Circuit. Judge Preska is also still active with the Federalist Society, which, as we all know, only likes people who are corporations. Unsurprisingly, the Federalist Society also gets a whole bunch of money from — you guessed it! — Chevron.
Judge Preska denied Donziger's attempts to disqualify both herself and Seward & Kissel from his case.
Seward & Kissel has been paid more than half a million dollars to prosecute Donziger — more than 150 times what a court-appointed criminal defense attorney is allowed to bill for defending indigent clients against a misdemeanor.
Even Donziger's criminal case wasn't heard by a jury. The Supreme Court has decided that criminal defendants with contempt charges are only entitled to a jury trial if the potential sentence is longer than six months, so Judge Loretta Preska was like, "I got this one."
The trial ended on Monday, with Donziger declining to call any witnesses in his defense. Donziger and his lawyers made it clear they did not believe they were getting a fair trial and were preparing to appeal the inevitable guilty verdict.
Martin Garbus, a well-known criminal defense and civil rights lawyer who was name-dropped in The Big Lebowski, told Judge Preska, "No justice will be done here. We know you won't return a verdict of not guilty."
"We spent a lot time preparing for Steven to testify at trial," Kuby said. "But we've also been paying attention to what the court has deemed to be relevant, and nothing that Steven would have to say would be deemed relevant by this court.
"His good-faith efforts to comply with the orders: irrelevant! The Second Circuit's ruling that his belief was completely reasonable: irrelevant," Kuby said. "His attempt to act as a lawyer fighting a case from his kitchen table when he had no legal representation and was facing lawyers who were billing over $3 million: irrelevant.
"So given the fact that the judge has so cabined the case to what the judge believes to be the only issues, he simply has nothing to say in that courtroom, and it's unfortunate but that courtroom is not the last word."
Judge Preska asked the parties to submit briefs in two weeks with their proposed findings of fact and findings of law. She did not give any indication of how quickly she intended to rule. Garbus said he expects Judge Preska to find Donziger guilty in about 30 days.
So that's fucked up
If, at this point, you're wondering whether any of this is normal, the answer is no. It's entirely unprecedented.
Six prominent members of Congress — Jamie Raskin, Cori Bush, Rashida Tlaib, Jamaal Bowman, AOC, and Jim McGovern — have asked Attorney General Merrick Garland to review the case, which is still technically being pursued on behalf of the United States government. Retired federal judges, 68 Nobel laureates, 475 lawyers and legal organizations, 200 law students from 55 law schools, and human rights organizations like Amnesty International have all spoken up in Donziger's defense.
After the trial, Donziger said it was clear he "was never able to get a fair trial before Judge Preska."
He's almost certainly right.
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They've taken up Mississippi's 15-week abortion ban.
The shoe we've been staring up at for nearly five years is about to drop.
Today, the Supreme Court announced it will be take up a case disputing the constitutionality of Mississippi's 15-week abortion ban. The 6-3 conservative majority court will be hearing the case this fall and, most likely, deciding on it in the summer of 2022. We'll just go ahead and start calling it "Forcibly Pregnant Girl Summer," because this is their chance to at least start to overturn Roe v. Wade, and we all are pretty sure they're going to take it.
Here's the deal. In 2018, Mississippi passed the Gestational Age Act, which would prohibit abortions after 15 weeks. The Jackson Women's Health Organization, the last remaining abortion clinic in the state, challenged the ban in a federal court and won, because the law violated the viability standard determined in Roe, later clarified in Planned Parenthood v. Casey. The state then took the case to the US Court of Appeals for the 5th Circuit, which upheld the lower court's ruling.
The state lost because Roe v. Wade found that, up until viability — meaning the ability of the fetus to live outside the womb, which normally occurs at about 24 weeks — the decision on whether or not to have an abortion is a private one that should be left between the patient and their doctor. Therefore, states are not allowed to ban anyone from having an abortion prior to that.
Following these losses, the state's attorney general's office then petitioned the Supreme Court for a writ of certiorari on three questions related to the case. SCOTUS has decided to only address their first question, which is "[w]hether all pre-viability prohibitions on elective abortions are unconstitutional." In other words, the one of the central questions asked and answered by Roe and Casey. The petition argues that the state's case allows for the court to resolve its supposedly "conflicting statements" regarding the viability standard versus the state's interests.
Part of the state's argument was that the district court was mean to them when it said their supposed interest in "women's health" was disingenuous due to their refusal to expand Medicaid.
The district court held that under controlling precedent, the 15-week law is unconstitutional because it would "ban" pre-viability abortions. The district court did not apply the undue burden test, and it refused to consider any of the legitimate government interests furthered by the 15-week law. Instead, the district court disparaged Mississippi's acknowledged interest in women's health as "pure gaslighting" and criticized Mississippi for following the lead of many states who declined to expand Medicaid following enactment of the federal Affordable Care Act.
That court was extremely correct. Hell, if I were on that court, I would have also casually mentioned the state's incredibly high infant and maternal mortality rates, which they don't really seem to be nearly as concerned with.
The state of Mississippi argued in the petition that the viability standard isn't specific enough and also that it is an unfair test to apply to their wonderful law, which they claim "protects women's health, the dignity of unborn children, and the integrity of the medical profession and society."
No, really. It actually says that. They have the actual gall to talk about women's health here. Not to mention the "integrity of the medical profession," which they apparently mean to improve by injecting themselves into the doctor-patient relationship.
"[T]he viability rule was created outside the ordinary crucible of litigation, failed to take account of the state's accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best. The court should revisit it."
The state argues that their law does not present an "undue burden" or "substantial obstacle" to obtaining an abortion because those who want one can just get one before their 15 weeks is up. Of course, given that there is just one abortion clinic left in the state — Jackson Women's Health — it may not actually be as easy as all that.
That little fact also factors into the state's explanation of how their terrible law "protects women's health."
Any surgical abortion taking place after 15 weeks' gestation carries inherent medical threats to the mother. The risk of a mother's death from abortion at 16 to 20 weeks' gestation is 35 times more likely than at eight weeks, and the relative risk of mortality increases by 38% for each additional week at higher gestations.
Let's be clear about what's really going on. The state of Mississippi enacted a bunch of TRAP (Targeted Regulation of Abortion Provider) laws over the years that resulted in the closure of all but one of the abortion clinics in the state, making it extremely difficult for anyone to obtain an abortion in-state. They enacted various other regulations making it difficult to obtain an abortion early in pregnancy, such as requiring waiting periods and mandatory "counseling." They outlawed the dilation and extraction method, which is the safest method for second trimester abortions.
They made it difficult as hell to actually get an abortion early on in a pregnancy, and would now like to be able to limit the time in which people can obtain abortions ... based on the fact that it is safer to get an abortion early on in a pregnancy. That's some kind of racket. That's like opening up a "Parachutes And Caskets R Us" store and then acting shocked when people want to purchase their skydiving gear elsewhere.
The Center for Reproductive Rights, which is representing Jackson Women's Health in this case, explained in its own petition that the Supreme Court has not actually been all that conflicted — because the standard has always been that it is in the best interest of the pregnant person's health for this to be a decision between them and their doctors.
Mississippi urges this Court to take this case because of a non-existent conflict in this Court's own abortion precedent. The State's argument should be rejected, and the petition denied, because it is based on a misunderstanding of the core principle of those decisions: that, while the State has interests throughout pregnancy, "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion." [...]
Roe and Casey, and the Court's subsequent cases, are clear that, before viability, it is for the pregnant person, and not the State, to make the ultimate decision whether to continue a pregnancy. A pre-viability abortion ban unquestionably contravenes this fundamental tenet of the Court's abortion jurisprudence.
It's not actually that hard! In every other instance on earth (excluding assisted suicide in most states, which should also be allowed), medical decisions are left to the doctor and patient. You don't see any states out there arguing that they know how to treat cancer better than an oncologist and should therefore have a say in chemotherapy decisions. This is apparently the only situation in which the state feels that doctors simply cannot be trusted to help their patients make the decision that is best for them.
Of course, regardless of how right the Center for Reproductive Rights is, regardless of how very full of shit the state of Mississippi is on this one, we've got a 6-3 conservative court that is itching to take Roe down. And even if this particular case doesn't lead to it being overturned completely, there are loads of others waiting in the wings that might — and when that happens, multiple states have trigger laws that will go into effect and make abortion immediately illegal.
So if you haven't already been thinking about contingency plans and how you can help those in states that will prohibit abortion — now's a good time to start.
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