Bahrain’s Cat and Mouse Games

By William Fisher
Even as Bahrain accepted many of the recommendations to end human rights violations made during a UN review this week at the Human Rights Council in Geneva, Bahraini human rights defenders reported threats against them as a result of their participation in the process.

At the upper levels of Bahraini Government, officials appeared to be using the rhetoric of statesmanship to convey their wish for sweeping reforms and maximum dialogue with citizens who have been demonstrating against the official repression that has kept the tiny country’s revolution alive for more than a year.

Bahrain, strategically positioned in the Arabian Gulf, is a kingdom ruled by Hamad bin Isa bin Salman Al Khalifa, the King of Bahrain, and the al Khalifa family. King Hamad is a Sunni Muslim while a large majority of the country’s population is Shia Muslim. Shia citizens complain against discrimination in landing top jobs, accessing credit and property ownership. The country is of particular concern to the US as it is the home of the Fifth Fleet and a close neighbor to US ally, Saudi Arabia. At least 50 Bahrainis have been killed in clashes with the country’s security forces and with Saudi troops, who were dispatched under the aegis of the Gulf Cooperation Council.

The King and his men have taken a number of bold moves to neutralize their opposition. He commissioned as blue-ribbon task force, headed by a distinguished Egyptian judge, to study the conflict from the very beginning and present findings and recommendations. He accepted the judge’s report personally and promised to begin immediately to implement its recommendations.

The report corroborated many of the people’s complaints, including the use of torture in the county’s prisons. The King made a number of appointments to correct that situation, including the appointment of John Timoney, former chief of police in Miami, Florida, as a senior consultant, and the naming of a new head of the Interior Ministry, which is in charge of police and prisoners. The King also approved the establishment of an Ombudsman to investigate and adjudicate complaints made by either government or citizens against authorities.

In his final remarks at Bahrain's UPR adoption, H.E. Mr. Shaikh Khalid Bin Ahmed Bin Mohamed Al Khalifa, Minister of Foreign Affairs, denied that anyone was kept in jail for exercising their free expression. He claimed all charges related to free expression had been dropped, and admitted “there may be some controversies” over certain cases.

Another major move by the government has been its attendance, along with several human rights groups, at the United Universal Periodic Review (UPR) of Bahrain, a United Nations process whereby states and NGOs contribute towards improving the human rights record of a country. Bahrain was presented with 176 recommendations, immediately accepted 145 of them, and promised to study others.

Yet another major idea put for by Bahrain was its proposal that the Arab League establish a Human Rights Tribunal. The League also announced two high level appointments it said would represent a greater involvement of Bahraini women in decision-making positions, as well as providing regional support and recognition for working women.

Arab League Secretary General Dr. Nabeel Al-Arabi reinforced the proposal by declaring that the Tribunal will contribute to the regional efforts of the Arab states in supporting respect for Human Rights.

In her oral intervention at the UN, Maryam Al-Khawaja, of the Bahrain Council of Human Rights, noted, "The situation of targeting human rights defenders and the use of reprisals has dramatically escalated. Human rights defenders are constantly arrested, mistreated and the government continues to use the judiciary system as a tool to lock them up. Most, if not all of their charges are based on freedom of expression."

Among those detained are her father Abdulhadi Al-Khawaja, a founder of BCHR, who was sentenced to life in prison for his role in peaceful protests last year, and BCHR's President Nabeel Rajab, sentenced in August to three years in prison for calling for "illegal gatherings." During its intervention at the UN, Reporters Without Borders (RSF) also noted that blogger Abduljalil Al-Singace had been sentenced to life and blogger Ali Abdulemam had been sentenced to 15 years in absentia - in violation of their right to free expression.

Maryam Al-Khawaja noted that there are approximately 1,400 political prisoners in Bahrain, 50 of whom are under 18.

As well, she reports, "The security forces are still using excessive force to repress all daily protests. Security forces continue the unprecedented use of tear gas during protests and inside residential areas. Also, arbitrary arrests using excessive force on the streets and during home raids by beating and insulting detainees are still ongoing and are not excluding minors. Many detainees are held in very bad conditions in the prisons and systematic torture is still ongoing in official and unofficial torture centers."

Dr. Nada Dhaif, of the Bahrain Rehabilitation & Anti Violence Organization (BRAVO), made an oral intervention highlighting the impact on families of having their loved ones detained, and mentioning that protesters are hurt by police, such as Zainab Al-Khawaja, currently detained with a broken leg. She also mentioned the reprisals against human rights defenders who travel to Geneva and forcefully called on the Foreign Minister to immediately release all political prisoners. “Activists are not criminals,” she said.

Among Bahraini human rights defenders lobbying in Geneva at the UN Human Rights Council (UNHRC) who have been threatened or harassed was Mohammed Al-Maskati, president of the Bahrain Youth Society for Human Rights, who received death threats over the past week. Pro-government newspaper Al-Watan published photos of the civil society activists who were in Geneva, and the threats continue.

However, the UN is taking the question of reprisals seriously, including at a panel session on the topic on 13 September. Maryam Al-Khawaja and Al-Maskati met with the UN HRC President Laura Dupuy Lasserre to discuss concerns about reprisals against Bahraini civil society. The President herself came under attack after she spoke out in the council against threats to Bahrain human rights defenders during Bahrain's UPR in May.

According to a statement by US-based Human Rights Watch, the recommendations accepted include "more than a dozen calling on the government to hold security forces accountable for rights abuses, including wrongful deaths and mistreatment of detainees in government custody." Other recommendations include immediately releasing prisoners who have been convicted solely for exercising their rights to peaceful assembly and free expression during pro-democracy demonstrations in February and March 2011.

The UPR "needs to be quickly followed by releasing leaders of peaceful protests, holding accountable high officials responsible for policies of torture, and adopting broader reforms to uphold human rights,” said Joe Stork, deputy Middle East director at Human Rights Watch. “The government has been claiming for months that it accepts the recommendations of the Bahrain Independent Commission of Inquiry (BICI) but continues to stall on the core issues and to deny that political detainees are still in Bahraini jails.”

Adding to the schizophrenic flavor of seemingly contradictory actions taking place simultaneously, was the action of a Bahraini appeals court which upheld the convictions of nine medics who treated demonstrators in last year’s uprising. Human Rights First charged that “the verdicts are indicative of the human rights backslide” happening in the Kingdom.

“Today was another moment of truth for the Bahrain regime, one it again failed miserably,” said Human Rights First’s Brian Dooley, who was in one of the appeal court hearings with the medics in March 2012. “These medics are going to prison for treating the injured and for telling the world about the regime’s crackdown. This isn’t the kind of progress that the Kingdom keeps promising the world is under way.”

The appeal verdicts follow the original sentences given by the military court to the 20 medics in September 2011. The medics were arrested, detained and tortured into giving false confessions last year and were released from custody while their appeal was under way. In June 2012 some of the 20 were acquitted while nine had their convictions confirmed and were sentenced to jail terms of between one month and five years. It was an appeal against these convictions and jail terms that was rejected today.

The United States government sent observers to the medics’ trial, and has urged the Bahrain regime “to abide by its commitment to transparent judicial proceedings, including a fair trial, access to attorneys, and verdicts based on credible evidence conducted in full accordance with Bahraini law and Bahrain’s international legal obligations.” Dooley notes that this has clearly not happened today, and the U.S. government should say so clearly and publicly.

“September was a terrible month for human rights in Bahrain,” observed Dooley. “Thirteen leading dissidents had long prison sentences against them upheld by the courts, prominent human rights defenders Nabeel Rajab and Zainab al Khawaja lost appeal cases to release them from prison and a teenage boy was killed by the police. These verdicts open October in a similarly ominous style.”

In another case brought against 28 other medics, a verdict is expected shortly.

Turning its other cheek, on 19 September, Bahrain accepted 145 of the 176 recommendations made as part of the Universal Periodic Review (UPR) of Bahrain, a process whereby states and NGOs contribute towards improving the human rights record of a country. The process occurs every four years.

According to a statement by Human Rights Watch, the recommendations accepted include "more than a dozen calling on the government to hold security forces accountable for rights abuses, including wrongful deaths and mistreatment of detainees in government custody." Other recommendations include immediately
releasing prisoners who have been convicted solely for exercising their rights to peaceful assembly and free expression during pro-democracy demonstrations in February and March 2011.

A week before, Salah Ali, Bahrain's minister of state for human rights, said the government fully accepted 143 of the 176 recommendations in response to the report of the UN working group on Bahrain's UPR that was issued in July 2012.

The UPR "needs to be quickly followed by releasing leaders of peaceful protests, holding accountable high officials responsible for policies of torture, and adopting broader reforms to uphold human rights,” said Joe Stork, deputy Middle East director at Human Rights Watch. “The government has been claiming for
months that it accepts the recommendations of the Bahrain Independent Commission of Inquiry (BICI) but continues to stall on the core issues and to deny that political detainees are still in Bahraini jails.”

Many UN member states have been using the BICI, Bahrain's own internal review of the human rights violations that occurred following peaceful pro-democracy protests that began in early 2011, as a benchmark for accountability. Following the oral intervention by the United States, Assistant Secretary Michael Posner
said, “progress is slowing down, and that's a concern." He noted, "everyone who is peacefully dissenting and expressing their views has the right to do that and shouldn't be prosecuted.”

The United Kingdom parliament's Foreign Affairs Select Committee is to launch an inquiry into human rights abuses in Bahrain and Saudi Arabia, following a briefing organised by Index on Censorship with Maryam Al-Khawaja, Acting President of the Bahrain Centre for Human Rights (BCHR).

In his final remarks at Bahrain's UPR adoption, H.E. Mr. Shaikh Khalid Bin Ahmed Bin Mohamed Al Khalifa, Minister of Foreign Affairs, denied that anyone was kept in jail for exercising their free expression. He claimed all charges related to free expression had been dropped, and admitted “there may be some controversies” over certain cases.

Yet in her oral intervention at the UN, BCHR's Maryam Al-Khawaja noted, "The situation of targeting human rights defenders and the use of reprisals has dramatically escalated. Human rights defenders are constantly arrested, mistreated and the government continues to use the judiciary system as a tool to
lock them up. Most, if not all of their charges are based on freedom of expression." Watch the video online here.

Among those detained are her father Abdulhadi Al-Khawaja, a founder of BCHR, who was sentenced to life in prison for his role in peaceful protests last year, and BCHR's President Nabeel Rajab, sentenced in August to three years in prison for calling for "illegal gatherings." During its intervention at the UN, Reporters
Without Borders (RSF) also noted that blogger Abduljalil Al-Singace had been sentenced to life and blogger Ali Abdulemam had been sentenced to 15 years in absentia - in violation of their right to free expression.

Among Bahraini human rights defenders lobbying in Geneva at the UN Human Rights Council (UNHRC) who have been threatened or harassed was Mohammed Al-Maskati, president of the Bahrain Youth Society for Human Rights, who received death threats over the past week. Pro-government newspaper Al-Watan published photos of the civil society activists who were in Geneva, and the threats continue.

However, the UN is taking the question of reprisals seriously, including at a panel session on the topic on 13 September. Maryam Al-Khawaja and Al-Maskati met with the UN HRC President Laura Dupuy Lasserre this week to discuss concerns about reprisals against Bahraini civil society. The President herself came under attack after she spoke out in the council against threats to Bahrain human rights defenders during Bahrain's UPR in May.
According to the Cairo Institute for Human Rights Studies (CIHRS), during a 17 September event about human rights defenders in the Gulf region, “Several individuals who possessed badges from the Bahrain government mission began to harass and attempted to intimidate the speakers on the panel before the event
began. The organizers of the event then asked these representatives of the Bahrain Mission to kindly remove their video camera from the room.” Likewise, some of the same people turned up at an event organized by Civicus, CIHRS and other groups on 18 September, Bearing Witness: Bahrain and the UPR Process, to
try to intimidate the participants.

CIHRS, the Gulf Centre for Human Rights (GCHR) and the International Service for Human Rights (ISHR) jointly called “on the government of Bahrain to abide by its commitments to provide security and protection for human rights defenders who co-operate with the UN.”

A Bahraini appeals court has upheld the convictions of nine medics who treated demonstrators in last year’s uprising. Human Rights First notes the verdicts are indicative of the human rights backslide happening in the Kingdom.

“Today was another moment of truth for the Bahrain regime, one it again failed miserably,” said Human Rights First’s Brian Dooley, who was in one of the appeal court hearings with the medics in March 2012. “These medics are going to prison for treating the injured and for telling the world about the regime’s crackdown. This isn’t the kind of progress that the Kingdom keeps promising the world is under way.”

Today’s appeal verdicts follow the original sentences given by the military court to the 20 medics in September 2011. The medics were arrested, detained and tortured into giving false confessions last year and were released from custody while their appeal was under way. In June 2012 some of the 20 were acquitted while nine had their convictions confirmed and were sentenced to jail terms of between one month and five years. It was an appeal against these convictions and jail terms that was rejected today.

The United States government sent observers to the medics’ trial, and has urged the Bahrain regime “to abide by its commitment to transparent judicial proceedings, including a fair trial, access to attorneys, and verdicts based on credible evidence conducted in full accordance with Bahraini law and Bahrain’s international legal obligations.” Dooley notes that this has clearly not happened today, and the U.S. government should say so clearly and publicly.

“September was a terrible month for human rights in Bahrain,” observed Dooley. “Thirteen leading dissidents had long prison sentences against them upheld by the courts, prominent human rights defenders Nabeel Rajab and Zainab al Khawaja lost appeal cases to release them from prison and a teenage boy was killed by the police. These verdicts open October in a similarly ominous style.”

A verdict is expected soon in another case brought against 28 other medics.

Last month, the Bahraini Government pledged to implement more than 140 of the 176 recommendations laid out in the Universal Periodic Review (UPR) conducted by the United National Human Rights Council. At the time, Human Rights First noted the pledge was welcome news, but cautioned that the Kingdom has reneged on similar promises in the past.

Meanwhile, the Minister of Justice, Islamic Affairs and Endowments, Sheikh Khalid bin Ali Al Khalifa, reaffirmed that the Kingdom continues to press forward in its comprehensive reforms and modernization through the national institutions and the rule of law, upholding and ensuring the respect and protection of the principles of pluralism, human rights and justice.

Whether the right words will add up to the right policies and practices remains to be seen.

For one lucky guy, Mardi Gras comes early!

By William Fisher

I told this story to a few friends last week. They were as blown away as I was. They called it the only "good news" story all week. Since "good news" stories are few and far between in my line of work, let me share it with you.

At one end, it's a story about corruption, cruelty, bad police work, and a criminal justice system that's broken beyond repair and grows more sclerotic by the day, and the rage triggered by injustice "in plain sight" being ignored by authorities.

So far, doesn't sound much like a good news story? Right? Stay with me.

The good news parts of the story are about the determination of the human spirit, the compassion to want to correct injustice, intimate knowledge of the law and all its hazardous potholes and alleys, and the toughness to never give up.

Fifteen years ago, in 1997, a 24-year-old Louisiana man was convicted of the rape and murder of his 14-year-old step cousin, Chrystal Champagne.

The case was had all the earmarks of a slam-dunk: The young man, Damon A. Thibodeaux , had confessed. He admitted his guilt after nine hours of non-stop interrogation by police. He later recanted that confession.

He was sentenced to death. He says he almost gave up hope. "But if you give up hope in here, you begin to die," he said.

He never gave up. And that's one of the main reasons this young man, now 38, walked out of Angola Prison last week, a free man, after an order by a Jefferson Parish court overturning the conviction and dismissing the indictment. Jefferson Parish includes most of the suburbs of New Orleans .

In walking out of what he had to call home after almost 15 years, Damon A. Thibodeaux became the 18th person to serve time on Louisiana's death row, only to be exonerated later by DNA evidence and a bunch of remarkable pro bono lawyers who refused to cave, even facing the entire panoply of prison officials, judges, and other officers of the court.

These brave men and women spent 12 years interviewing figures involved in the case, reading thousands of pages of testimony, and reviewing DNA tests that became more credible as the science itself matured.

Mr. Thibodeaux enjoyed one asset that's not very often present when the requirement is for a full post-mortem of a case: The District Attorney, U.S. District Attorney Paul Connick, Jr. Connick joined the Innocence Project and Thibodeaux's other counsel in agreeing to overturn Thibodeaux's conviction and death sentence after DNA and other evidence proved that he had not committed the crime for which he had been coerced into falsely confessing.

A more conventional scenario finds prosecutors unwilling to re-test DNA samples because of the cost involved, or saying they've been lost. Frequently, both statements are untrue. Fear of professional embarrassment -- and collateral career damage -- is the real reason for their opacity.
That opacity was not part of the Thibodeaux case. That fact and his release gave him the honor of being the 300th person to be exonerated by DNA evidence in the US.
Listen to Barry Scheck -- whom you may remember as the DNA wizard at the OJ Simpson trial: "Like the other 299 DNA exonerees, there is no question that Mr. Thibodeaux suffered terribly because of the faults in the criminal justice system," said Scheck, who is a founder and co-director of the Innocence Project, which is affiliated with the Cardozo School of Law.

"But the incredible cooperation that we have received from District Attorney Connick is a powerful illustration of how transformative DNA evidence has been to the criminal justice system. District Attorneys now recognize that the system doesn't always get it right, and many, like District Attorney Connick and his team, are committed to getting to the truth. This case can serve as a model to other district attorneys around the country who are interested in developing conviction integrity units to review old cases."
Thibodeaux echoed that sentiment, adding "I'm grateful to Mr. Connick and his people for studying my case and for their commitment to justice. I'm looking forward to life as a free man again, but I have great sympathy for the Champagne family that lost their daughter and sister. I sincerely hope that the person who murdered her is found and tried."
Crystal Champagne's family last saw her alive on the afternoon of July 19, 1996 when she left the family's Westwego Apartment for a Winn-Dixie at the nearby strip mall. After she did not return home when expected, her family, several friends, and law enforcement began a search for her that ended on the following evening with the discovery of her body along the levee in Bridge City.

That same evening, law enforcement began interrogating and interviewing potential witnesses, including Thibodeaux. After some nine hours of interrogation, he provided an apparent confession to raping and murdering the victim. That confession was virtually the sole basis for his conviction and death sentence in October 1997.

Thibodeaux's legal team included Denise LeBoeuf and Caroline Tillman of the Capital Post-Conviction Project of Louisiana (LeBoeuf is currently Director of the ACLU's Death Penalty Project and Tillman is now an attorney with the Capital Appeals Project in New Orleans); Barry Scheck and Vanessa Potkin of the Innocence Project; and Steve Kaplan and Richard H. Kyle, Jr., of the Fredrikson & Byron law firm in Minneapolis.

Assisted by several DNA and world-class forensic scientists, homicide and police interrogation methods expert Thomas Streed, PhD, and private investigators, they obtained evidence demonstrating that Thibodeaux was not the murderer, that the victim had not been raped, and that she had also not been murdered in the manner that Thibodeaux had described after some nine hours of interrogation.

In 2007, Thibodeaux's team approached Connick and his staff, and presented the then-known evidence of actual innocence to them. Both sides then began a cooperative process that was rigorous and transparent, including mutual exchanges of evidence and information. Connick was assisted primarily by Steve Wimberly, Esq., and Chief Investigator, Vince Lamia, who reviewed the evidence and actively participated in both the joint investigation and the District Attorney's own independent review of the case.

During the course of this joint investigation, the parties conducted multiple rounds of DNA and forensic evidence testing of the crime scene evidence and the other physical evidence and interviewed numerous fact witnesses. This additional evidence confirmed that the confession that Thibodeaux had given was false in every aspect. In addition, the joint investigation included a thorough examination of the reasons why Thibodeaux had falsely confessed. His lawyers have promised to make this information public at a later time.
The joint effort has also given rise to potential new leads and suspects. Because, however, the investigation into the murder is ongoing, this information cannot be disclosed at present.

"This is a tragic illustration of why law enforcement must record the entire interrogation of any witness or potential suspect in any investigation involving a serious crime," said one of Thibodeaux's legal team.

"When juries learn that the accused has apparently confessed, they invariably have a difficult time questioning the reliability and truthfulness of the confession--unless they can see the entire interrogation and determine whether it's truthful and reliable not only in light of the interrogation methods used in obtaining the confession, but also in light of other evidence that contradicts or disproves the confession."

Another of his attorneys noted, "This journey to freedom was a long time coming. The solitary conditions that Mr. Thibodeaux was forced to live under as a death row inmate were almost more than he could bear at times, but he never gave up hope that one day he would be free."

"The death penalty is a human rights violation in any case, for anyone. But, there can be no stronger argument against capital punishment than the condemnation of a truly innocent man," said Denise LeBoeuf of the Capital Post-Conviction Project of Louisiana (LeBoeuf is currently Director of the ACLU's Death Penalty Project.)

LeBoeuf added, "Louisiana came--to use Justice Blackmon's phrase--"perilously close to simple murder' and Louisiana citizens should demand a moratorium on executions until they can be assured that there are no more miscarriages of justice like the one that occurred in this case." Since 2000, six innocent people have been exonerated from Louisiana's death row, versus just three executions.

The 300 DNA exonerees have served a combined 4013 years in prison, with an average of 13 and a half years each. The real perpetrator was identified in nearly half of the cases, and at least 130 violent crimes could have been prevented if the true perpetrator was initially arrested instead of the wrongly convicted. More than a third of those cleared by DNA have not been compensated for the time they spent wrongly imprisoned.

While DNA testing has been widely available in criminal prosecutions since the late 90s, people convicted as late as 2008 have been cleared by DNA, indicating that this powerful tool will continue to be helpful in proving wrongful convictions for the foreseeable future.

The leading cause of wrongful convictions overturned by DNA is eyewitness misidentification, which has played a role in nearly 75 percent of the 300 exonerations. Unvalidated or improper forensic science played a role in approximately half (51 %) of wrongful convictions later overturned by DNA testing. False confessions and admissions lead to wrongful convictions in just over a quarter (27%). Informants contributed to wrongful convictions in 18 % of cases.

Thibodeaux is the 18th person who served time on death row to be exonerated by DNA in the U.S. The 18 death row exonerees were convicted in 11 states and served a combined 229 years in prison -- including 202 years on death row -- for crimes they didn't commit. Another 16 were charged with capital crimes but not sentenced to death. Seventeen people were threatened with the death penalty but not ultimately charged with a capital offense.
Louisiana has a well-established reputation as the prison capital of the world. Writing in the Louisiana Times-Picayune, Cindy Chang said, "The hidden engine behind the state's well-oiled prison machine is cold, hard cash. A majority of Louisiana inmates are housed in for-profit facilities, which must be supplied with a constant influx of human beings or a $182 million industry will go bankrupt."

She added, "Several homegrown private prison companies command a slice of the market. But in a uniquely Louisiana twist, most prison entrepreneurs are rural sheriffs, who hold tremendous sway in remote parishes like Madison, Avoyelles, East Carroll and Concordia. A good portion of Louisiana law enforcement is financed with dollars legally skimmed off the top of prison operations."

Giving Voice to the Voiceless

By William Fisher
Have you noticed? Aside from the dangerous mythology we’re fed on the various CSI television programs, we’re reading more and more real stories about innocent people being sent off to death row or serving long jail sentences for crimes they didn’t commit. And then being freed – usually years later – by new evidence or old evidence intentionally buried.

Here’s another:

Michael Keenan, now 62, spent close to a quarter century on death row. He is now free. He walked out of an Ohio courtroom after a judge determined that evidence that could have exonerated him in the 1988 stabbing death of a man found dead in a brook in a Cleveland park was withheld from his trial attorneys.

The judge dismissed the murder charge.

This is clearly a case of prosecutorial misconduct. There are many such cases, and we’re beginning to read about these as well. There is a panoply of groups working to clean up our criminal justice system.

But dishonest or overzealous prosecutors, while able to wield their enormous power to inflict lifetimes of pain on innocent people, are not in fact the major causes of wrongful imprisonment.

Incorrect eyewitness identification is still the Number One cause.

But ranking a very close second is a faut discipline that sometimes appears to be less science and more Kabuki.

This was the case back in the 1980s when the Federal Bureau of Investigation (FBI) laboratory – until that point considered to be the gold standard for forensics – got caught in a fraud – possibly a massive fraud.

A senior forensic agent falsified the result of a test performed on a single strand of human hair, testifying incorrectly that forensic science could identify the hair precisely, thus frequently placing the accused at the scene of the crime.

But this was not a one-trial mishap. It was the standard analysis for most crime labs. So this junk science statement was being introduced as evidence in courts across the country in as many as 10,000 trials simultaneously.

In the 1980s, a DOJ/FBI task force admitted the “error” and one of the agents responsible was fired. But now a different DOJ /FBI Task Force is re-investigating the incident. Sad to say, they have already corrupted the inquiry by advising only the attorneys for the convicted – not the actual prisoners themselves – of the lapse.
In Philadelphia, Frederic W. Whitehurst, a Ph.D. chemist and former supervisory special agent at the FBI, discussed a colleague’s false or misleading forensic testimony in multiple cases. He also described how scientists would “run dead flat into a sledgehammer” when their results didn’t agree with their supervisors’ thinking. Whitehurst’s whistle-blowing led to the 1995 Justice Department investigation of the FBI Lab.

DNA is the star who hit the ball out of the park. Since the late 1980s, DNA analysis has helped identify the guilty and exonerate the innocent nationwide. The Innocence Project (IP) affirms that while DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques -- including hair microscopy, bite mark comparisons, firearm tool mark analysis, and shoe print comparisons -- have never been subjected to rigorous scientific evaluation.

And the organization added, “forensic techniques that have been properly validated -- including serology, or blood typing -- are sometimes improperly conducted or inaccurately conveyed in trial testimony. In some cases, forensic analysts have fabricated results or engaged in other misconduct.”

Forensics go back a long way in the US. In the 19th century, forensic medicine was a recognized branch of medicine. By 1910, a French criminologist, formulated the basic forensic principle, "Every contact leaves a trace,” and established the world's first crime laboratory.

IP reveals that hair has become one of the most common types of trace evidence. It says hair can help rule out certain populations or help identify an unknown victim. The transfer of hair from a victim to a suspect can raise the probability that the victim and perpetrator came in contact. Like other forensic evidence, information from hair is expressed in terms of probabilities of a match.

But IP points out that hair is never used as definitive proof to indicate guilt because visual comparison is subjective. But when hair is used with DNA, it adds, it becomes a powerful tool for an investigator. Today, hair analysis is only done when DNA tests can also be done.

Still, IP cautions that results from hair analysis can be controversial. The factors that affect these results include where on the body the hair was removed, the person's age and race, and even the color. Because standards vary, a single lab can report different results from the same hair sample and false-positives for illegal drugs are not uncommon.

Because forensic science results can mean the difference between life and death in many cases, fraud and other types of misconduct in the field are particularly troubling. False testimony, exaggerated statistics and laboratory fraud have led to wrongful convictions in several states.

IP declares that, since forensic evidence is offered by "experts," jurors routinely give it much more weight than other evidence. But when misconduct occurs, the weight is misplaced. IP finds that, in some instances, labs or their personnel have allied themselves with police and prosecutors, rather than prioritizing the search for truth. Other times, IP says, criminalists lacking the requisite knowledge have embellished findings and eluded detection because judges and juries lacked background in the relevant sciences, themselves.

In some cases, critical evidence has been consumed or destroyed, so that re-testing to uncover misconduct has proven impossible. Evidence in these cases can never be tested again, preventing the truth from being revealed.

The identification, collection, testing, storage, handling and reporting of any piece of forensic evidence involves a number of people. Evidence can be deliberately or accidentally mishandled at any stage of this process.

The Innocence Project has seen forensic misconduct by scientists, experts and prosecutors lead to wrongful conviction in many states. Here is one of the more notorious:

Of the first 289 convictions overturned by DNA testing, 45% involved faulty forensics. One of those exonerations was Ray Krone. An honorably discharged veteran, Krone served 10 years “in a cell the size of most of y’all’s bathroom,” he said in Philadelphia, for a murder in Phoenix he did not commit.

An expert for the prosecution had testified that bite marks on the victim matched an impression Krone made for police on a Styrofoam cup. With help from the Innocence Project, DNA evidence cleared him in 2002. “I can’t tell you what it was like to be called a monster,” he said. “Thank God for DNA.”

But there were many faults revealed.

• A former director of the West Virginia state crime lab, Fred Zain, testified for the prosecution in 12 states over his career, including dozens of cases in West Virginia and Texas. DNA exonerations and new evidence in other cases have shown that Zain fabricated results, lied on the stand about results and willfully omitted evidence from his reports.

• Pamela Fish, a Chicago lab technician, testified for the prosecution about false matches and suspicious results in the trials of at least eight defendants who were convicted, then proven innocent years later by DNA testing.

• A two-year investigation of the Houston crime lab, completed in 2007, showed that evidence in that lab was mishandled and results were misreported.

Other forensic tests lag behind DNA in several ways, IP says. These tests include the bite-mark analysis from Krone’s trial. They cannot point to an individual, and little to no research has been conducted toward standardizing them or defining their error rates.

In an excellent article in the journal of the American Chemical Society, writer Carmen Drahl quotes attorney Josh D. Lee, co-chair of the Forensic Science section of ACS’s Division of Chemistry & the Law, as saying, “problems arise when attorneys, judges, or juries attach the same aura of reliability to all forensic sciences regardless of their scientific merit.”

IP has uncovered these kinds of abuses since 1992 and has developed recommendations for forensic labs, law enforcement agencies and courts to ensure that forensic science misconduct is prevented whenever possible. It is currently acting as a consultant to the DOJ and FBI in the second iteration of the task force investigating the errors made by the lab during the 1980s.

IP is calling on states to impose standards on the preservation and handling of evidence. When exonerations suggest that an analyst engaged in misconduct or that a facility lacked proper procedures or oversight, the Innocence Project advocates for independent audits of their work in other cases that may have also resulted in wrongful convictions.

And bills have been introduced in both the House and the Senate for Congress to play a far more active role in providing oversight, beginning with studies and hearings that, it is hoped, will establish credible standards for the forensics industry.

It’s unlikely that erroneous convictions or even many more exonerations are ever going to become a campaign issue in the presidential election. The U.S. has about 2.5 million people locked up in federal, state prisons and county and town jails. And another 5,000 are under some form of supervision by the prison system.

These people are invisible. They don’t vote. That’s why they’ll never rise to anywhere near the top of politicians’ priorities. That’s why we need groups like The Innocence Project.

To give voice to the voiceless.

Indefinite Detention

By William Fisher

If President Obama now feels safer, knowing that there’s a law that gives him the power to imprison someone until the end of the “war on terror,” he must have little faith in such legal formalities as charges, indictments, trials, transparency and appeals.

That’s because none of these niceties are required for you to be jailed under the NDAA – the National Defense Authorization Act. President Obama signed the NDAA in mid-December, (after promising during his 2008 campaign that he would veto it).

According to the New York Times, you could be thrown into “indefinite military detention on suspicion that they (you) “substantially supported” Al Qaeda or its allies — at least if they had no connection to the Sept. 11 attacks.”

This is not a new idea. The government has been imprisoning – yes, let’s use the actual word, not the euphemistic “detention,” which sounds like a late homework assignment in grade school.
The United States has been detaining terrorism suspects indefinitely since 2001, basing its actions on Congress’ Afghanistan “use of military force” law against perpetrators of the Sept. 11 attacks and those who helped them. The NDAA created an actual law governing such imprisonments.

The judge, sitting in the powerful U. S. District Court for the Southern District of New York, said the language of the statute was too broad, too subject to misinterpretation because it covered not only active terrorists but “people who were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies.”

But there were no specific definitions of words like “associated forces.” The law also failed to specify whether it extended to American citizens and others arrested on United States soil. The Judge felt such lapses could lead to confusion and wrongful convictions. And the government also failed to state unequivocally that no First Amendment-protected activities would subject them to indefinite military detention.

The lawsuit was brought by Chris Hedges and a group of other writers, including Daniel Ellsberg and Noam Chomsky. Hedges is a former N.Y. Times reporter whose reporting involves interactions with terrorists. The other plaintiffs were supporters of WikiLeaks.

The New York Times quoted them as saying, the law’s “existence chilled their constitutional rights by creating a basis to fear that the government might seek to detain them under it by declaring that their activities made them supporters of an enemy group.”

Judge Forrest also weighed in on another piece of legislation. Back in May, The House of Representatives approved (301-118) extension of the FISA Amendments Act until 2012, which would have codified the power of the president to issue FISA warrants without approval from the FISA Court. According to The Times, it also retroactively rejected the George W. Bush administration’s unlawful snooping in broad violation of Americans’ constitutionally protected privacy.

But the House bill was never considered by the Senate, so no new law was passed. Republicans say they intend to re-introduce the legislation after the election in November.

Judge Forrest also slammed provisions of the FISA law, which, in combination with the National Defense Authorization Act, could result in indefinite detention. According to Greenwald, she “emphasized how dangerous this new law is given the extremely broad discretion it vests in the president to order people detained in military custody with no charges.”
But lest you think you’ve read the last page of the last chapter of this book, the Obama DOJ lost no time in filing not only an immediate appeal, but what Glenn Greenwald characterized as “an emergency motion asking the appeals court to lift the injunction pending the appeal.”

“Obama lawyers wrote a breathless attack on the court's ruling, denouncing it as ‘vastly troubling’ and claiming that it ‘threatens tangible and dangerous consequences in the conduct of an ‘active military conflict’ and ‘threatens irreparable harm to national security’. "

No one knows how all this will end. Perhaps in the Supreme Court. But for the moment, the United States does not practice indefinite detention – except in Guantanamo where there are now 167 men in prcisely that condition – a substantial number already cleared for release.

So does the President actually need the NDAA to be able to imprison people indefinitiely without charge or trial? History tells us ‘no.’

George W. Bush shipped 600+ “enemy combatants” into GITMO only with the “law” of Presidential Power. More than half the American people think Barack Obama is twice as smart as George W.

Is there anyone who thinks he won’t find a way?

Arab NGOs Getting More Active

By William Fisher

According to The National Center for Charitable Statistics (NCCS), there are currently over 1.5 million – edging up toward two million — nonprofit organizations in the United States.

Of these more than a million are 501(c)(3) organizations, which means they are tax exempt from Section 501 (c)(3) of the Internal Revenue Code. None of its earnings may inure to any private shareholder or individual. In addition, it may not be an action organization, i.e., it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates.

Organizations described in section 501(c)(3) are commonly referred to as charitable organizations or NGOs—non-governmental organizations.

In the US, non-governmental organizations play a critical role in bringing human rights and many other humanitarian situations to the attention of lawmakers, the president and the executive branch of government – even the courts. These groups mobilize public opinion to put pressure on various parts of government to reach conclusions that will satisfy one charitable organization while disappointing another, or bring victory to a group of organizations acting as a coalition.

This is distinctly not the case in many other parts of the world. In the Middle East, in particular, NGOs are usually thought of as enemies of the government. The government is suspicious of NGOs because of the possibility that they will covertly receive foreign funds to carry out foreign agendas. They fear that NGO executives will provide cover for foreign intelligence agents. And they fear that the NGOs will launch unauthorized programs that will undermine the government’s direction. In Egypt, a group of well-established indigenous and foreign NGOs have been effectively closed down and are being prosecuted by the new Egyptian government.

In the Middle East and North Africa, nearly every government has a law governing NGOs and they are customarily highly restrictive – the government often has the power to stop programs before they start, to discontinue programs already underway, and to vet prospective Board and Staff members, and force resignations in either category.

Government interference substantially reduces the effectiveness of NGOs, and last week a large number of NGOs, under the aegis of the Cairo Institute for Human Rights Studies (CIHRS), were in Geneva to present their complaints to the members of the United Nations Human Rights Council (HRC). CIHRS is able to provide observations and testimonies about the situation of rights in the Arab region through its interventions and reports to the HRC.
In Egypt in 2000-2001, U.S. AID established an MGO Training Center, dedicated to teaching men and women associated with NGOs how to do their work more efficiently and at less cost. It didn’t last long.

In preparation for this week’s session of the HRC, CIHRS has drafted five written interventions. Among the issues dealt with in these written interventions is the situation of human rights defenders in Saudi Arabia and other Gulf states, including their subjection to judicial harassment and other reprisals. The interventions also address the situation of human rights in Lebanon and Sudan, where the rights situations have deteriorated significantly, as well as the report of the Universal Periodic Review of Morocco, which failed to adequately address the severity of the rights situation in Western Sahara.

CIHRS is also scheduled to participate in a number of oral interventions at the HRC. It will address the rights situations in Egypt, Bahrain, Tunisia, Morocco, Libya, Syria and the occupied Palestinian territories.

These interventions will focus on the most prominent human rights violations witnessed in these countries, as well as the demands related to the implementation of some of the resolutions of the Council or its subsidiary bodies to improve conditions in those countries. CIHRS will also comment on the most evident violations against citizens and activists in these countries as described in the reports of fact-finding missions and of the Special Rapporteurs. For example, CIHRS is expected to present its observations regarding the report of the fact-finding mission to Syria as well as on the follow-up report of the UN Secretary General about the fact-finding mission on “Operation Cast Lead” in the Gaza Strip.
Special attention will be paid to the state of human rights in the Gulf states in general at an event held in cooperation with the Gulf Center for Human Rights and the Bahrain Center for Human Rights. This event will deal with the evident deterioration of the standards of human rights in these countries, seek to identify the nature of violations committed against rights defenders in the Gulf due to their work to protect human rights, and make recommendations in this regard.
CIHRS will also deal with human rights violations and conflict increasing in Lebanon as Conflict from Syria spills-over into Country, the ongoing crackdown on peaceful demonstrators, Human Rights defenders and journalists, in Morocco and the Issue of Western Sahara, and the case of a Saudi human rights defender who risks imprisonment for cooperating with the UN Human Rights Council

CIHRS will report on the “Alarming increase in repression and attacks against civil society in the Gulf region. It will tell the Minister of Justice, state and “Security reform requires political will, not additional repressive laws.”

CIHRS says it is also “deeply concerned by the unresolved issues surrounding the independence of South Sudan, including issues of border demarcation and cross-border trade, which are exacerbating the already severe humanitarian situation in the border states of South Kordofan and Blue Nile and the region of Abyei. We also express alarm regarding the fact that the Government of Sudan has denied international NGOs access to the areas affected by the armed border conflict in these regions, thus severely limiting possibilities for monitoring the situation of human rights in these states.

The organizations also report that aerial bombings of villages continue to be heard from refugees arriving in South Sudan from the two Border States, and internationally condemned weapons like cluster bombs have been allegedly found in civilian areas bombarded by government forces.

Recently, when tensions between the two Sudans intensified in April in the oil-rich area of Higlig, some 4,000 civilians in the area were forced to flee to refugee camps in South Sudan. According to the most recent estimates, approximately 665,000 people have been either internally displaced or severely affected by the ongoing conflict in these two states.
This continued violence has had the added consequence of preventing farmers from cultivating their crops for two seasons. The resulting food shortage has been exacerbated by new laws passed by the government of Sudan to prohibit all trade in the border areas. Such policies have in effect created a food embargo imposed by the Sudanese government on South Kordofan, especially in areas controlled by the Sudan People’s Liberation Movement-North (SPLM-N), and constitute a violation of Sudan’s obligations to protect its citizens.

Moreover, restrictions to entry have been imposed on aid agencies, thereby preventing them from providing humanitarian relief to thousands of people trapped in the border regions by fighting between the Sudanese Armed Forces (SAF) and the Sudan People’s Liberation Army-North (SPLA-N). As a result, hundreds of thousands of Sudanese in these states faced severe levels of food insecurity entering the second half of 2012.

Violence in Darfur similarly continues. Most recently, in early August 2012, a militia attacked the Kassab camp for internally displaced persons (IDPs), looting homes and markets and committing several extrajudicial killings, and the entire population of the camp – some 25,000 people, according to UN statements – was forced to flee to the wilderness where they struggle to survive without shelter. No serious investigations or protection strategies for the IDPs have been carried out.

Who Guards the Guards?

By William Fisher

Fabian Avery III was seventeen when he died.

And were it not for how he died, we might offer our condolences, maybe we’d say he was in prison anyway, but we probably would not be reading this story. There’d have been no one to write it.

You’re reading about his death because he was yet another victim of a prison system that is utterly broken and whose inmates are just about utterly forgotten.

If you have a strong stomach, here’s Fabian’s story as told by Jean Casella and James Ridgeway in the Atlanta Constitution.

He died last year in solitary confinement. He died because the jail he was locked up in had only the services of a doctor and a nurse who allegedly failed to try to get any specialist professional help from anywhere else.

Fabian was sick, very sick. He died of appendicitis and complications from a bowel obstruction, according to investigative documents compiled by the Georgia Bureau of Investigation. He first reported being ill on Feb. 24, 2011 and was given minimal attention. He complained of nausea, stomach pains, vomiting and lower back pains, as well as frequently vomiting and defecating on himself and failing to clean himself up – reportedly the reason he was placed in solitary. Jail staff allegedly did little to help get Avery the necessary care.

He had been arrested in December 2010 on armed robbery charges. He was transferred from the Fulton County jail in late February 2011 to alleviate overcrowding and placed in a small-town lockup at the Mize Street Municipal jail in the South Georgia town of Pelham.

According to Casela and Ridgeway, Fabian Avery III weighed 153 pounds when he was transferred to Pelham. He was found dead nearly a month later -- on the morning of March 18, 2011 -- on a mattress on the floor of his 6-by-10-foot isolation cell. They write that his 6-foot-1-inch frame had shriveled to 108 pounds.

The Atlanta Journal Constitution reported that the Georgia Bureau of Investigation found that the teenager had been placed in “the hole” after he first reported being sick, ”because he began frequently soiling himself and not cleaning up or showering.” The jail’s nurse reportedly “suggested that Avery might have been faking some of his symptoms,” despite his apparent extreme weight loss.

Now, Fabian’s mother has filed a federal lawsuit against the town of 4,500, the jail’s nurse and doctor, its police department, and four correctional officers, claiming wrongful death and civil rights violations, based on allegations that her son’s serious medical condition was ignored.

The defendants’ attorney reportedly told the AJC: “This is an unfortunate case…If [the jail staff] had any indication that he needed any more medication, it would have been provided.”

Right!

OK, you say, this is a tragic story but surely it is not the norm. Well, probably not the norm. In 1930, the year the Federal Bureau of Prisons was founded, there were eleven federal prisons. In 2000, 84 Federal facilities were in operation, 9% more than in 1995

Today, there are 116 institutions, 6 regional offices, a Central Office (headquarters), and community corrections offices that oversee residential reentry centers and home confinement programs.

At the State Prison level, there are 1,320 facilities, 3% more than in 1995; and 264 private facilities, 140% more than in 1995. The maximum number of beds or inmates assigned by a rating official, known as rated capacity, expanded 31%, from 975,719 in 1995 to 1,278,471 in 2000.

In addition, there are thousands of county and town jails. And that’s not counting the infamous immigration detention centers operated by Immigration and Customs Enforcement, part of the Department of Homeland Security.

But even this humongous number is not enough to house the 1,278,471 prisoners recorded in 2000, up 31% from 975,719 in 1995. On June 30, 2000, State prisons were operating at 1% above their rated capacity, down from 4% over capacity in 1995. The Federal prison system was operating at 34% over capacity at midyear 2000, up from 25% over capacity in 1995.

So with the largest prison population of any modern industrialized country – and easily a third of inmates suffering from mental illness – I could be reasonably sure that we haven’t heard the last of a lot more deaths.

People opt for prison jobs for many different reasons. Some might actually want to do some good.

But putting a prisoner in solitary confinement instead of a hospital because he’s very sick – come on now. Who was it who interviewed these folks for their jobs? Or were they?

Can We Turn Hatred Into Dialogue?

By William Fisher

I’ve been racking my brain to find something – anything -- good to say about the US-made pathologically Islamophobic film that has triggered the deadly riots now creating bloodshed across the Muslim world.

My conclusion: There is nothing good to say about this film.

Is there anything at all to salvage from the dangerous contretemps is has caused?

Well, maybe.

If Egyptian Muslims – and all Muslims – could come to understand two things: The US government had nothing to do with this film at any point – the US Government doesn’t make films attacking – or praising – particular religions. In America, it’s known as the Separation Between Church and State. And it is a cornerstone of our Bill of Rights.
The second thing angry Muslims need to understand is much harder because it runs counter to so much of Arab culture. It is a quote usually attributed to Voltaire. It says: “I disagree with what you have to say but will fight to the death to protect your right to say it."

“Protect your right to say it” – this is the essence of free speech. At the risk of restating the obvious, this is the free speech that Muslim and Arab revolutionaries throughout the Middle East have only so recently won.
Yet it would be unreasonable of us to suggest that “protect your right to say it” is a construct about which Middle Eastern peoples know anything at all. In fact, it is totally alien to them. And, quite likely, rejected out of hand.

Whether this thought will ever find a home in the majority of Arab minds is a work in progress. Today there are literally thousands of Arab and Muslim intellectuals who are totally comfortable with Voltaire’s words – who live his aspirations every day of their lives.

It is going to be largely up to these men and women to adopt this cornerstone of free speech. It’s difficult to see how George W. Bush’s “Democracy-Building” programs could make a substantial contribution.

But whoever works at it can be certain that it won’t happen quickly and without pain.