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One of the "Exonerated" Arrested for Rape

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Nolan Clay has this story in the Oklahoman, touching on several themes.  One is the misrepresentation of the notorious "innocence list."  Another is the difficulty in prosecuting gang-related crimes.  A related issue is why fewer black-victim homicides result in the death penalty.  I will depart from our usual practice here and quote the story in its entirety.

A former death row inmate was arrested Friday, accused of involvement in a gang rape at an Oklahoma City apartment last October.

Paris Lapriest Powell, 37, of Oklahoma City, was identified by DNA evidence as a suspect in the assault of two women, police reported.

The victims said three "males pushed their way into their apartment" sometime after 2 a.m. Oct. 6 "and raped ... and assaulted both of them throughout the night," police reported. One woman described being tied to her bed and blindfolded during the attack.
Three young children were in the apartment at the time. The victims said they obeyed the men's commands "because they were afraid for their lives and the children," police reported. The victims said they eventually escaped through a window and the men then fled.

Powell had pleaded no contest Oct. 5 to marijuana and cocaine possession. He was put on probation for three years.

Powell and another former death row inmate, Yancy L. Douglas, 37, were freed on Oct. 2, 2009. Both had won appeals of their murder convictions and prosecutors decided not to retry them because of witness problems.

Powell and Douglas had been convicted at separate murder trials in the 1993 fatal drive-by shooting of a 14-year-old girl. Prosecutors alleged they intended to kill Derrick Smith, who was then a 17-year-old drug dealer. Smith was wounded but survived.

The girl, Shauna Farrow, was walking home with Smith at night when she was killed. The two had met only once before, prosecutors said.

Death penalty opponents put Powell and Douglas on "The Innocence List." They were identified as the 136th and 135th death row inmates exonerated since 1973. Prosecutors dispute that characterization, saying Powell and Douglas were not exonerated.

Prosecutors contend both still are suspects in the 1993 shooting but that the evidence is too contradictory to go forward again.

Powell in December filed a wrongful-conviction lawsuit against the state, Oklahoma County and former prosecutor Brad Miller. He asked for $32 million in damages. Powell's attorney in the civil case could not be reached for comment Friday.

The Oklahoma Court of Criminal Appeals opinion on direct appeal is here. The Tenth Circuit opinion on federal habeas is here.

The murder was a drive-by gang shooting.  The big problem is that the surviving witness to the shooting is the intended target, himself a gang punk, with all the problems that entails.

The path to the overturning of Powell's conviction is an all too familiar one.  The criminal witness denies a deal, and there is no express deal, but the prosecutor is later found to have not turned over notes indicating a "tacit agreement."  By this time, the gangster-witness has completely changed his tune, so retrial is out of the question.

Is this the kind of trial that engenders confidence in the system? No.  Does this constitute a finding that Powell was innocent?  Not by a country mile.  Is it sufficient to get Powell on the DPIC's "innocence list"?  Yep.  Is Powell still a dangerous criminal, did he probably get away with murder, and is he ready, willing, and able to commit more violence?  It would appear so, although we always hedge pretrial and say "allegedly."

The murder is the kind of killing that would rarely result in a death sentence in the first place, although the perpetrator thoroughly deserves it.  Gang-related killings are a large portion of the high murder rate with black victims, and they are very often more difficult to prosecute because of the witness problems illustrated by this case.  So many gang-involved homicides, difficult to prosecute at all and with more than enough "residual doubt" to preclude a death sentence, bloat the denominator of the death sentences to murders ratio for black-victim cases. Yet far too many people are willing to jump directly from statistical "disparity" to a charge the system is racist without considering such complications.

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For as many times as that exercise in sophistry otherwise known as DPIC's Innocence List is cited in news coverage, one would think this incident would prompt some coverage as well.

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