Saturday, April 30, 2005


How reprehensible can you get? An out-of-control NYC bureaucracy that was supposed to PROTECT kids used little kids in its foster care to test toxic AIDS drugs!

"New York City's Administration for Children's Services (ACS) has announced an "independent review" of the controversial AIDS-drug trials conducted between 1988 and 2001 on children in its foster care. The highly experimental and toxic drugs were administered to infants as young as 4 months old. For over a year, medical-rights watchdogs and some media voices have demanded transparency on the experimental drug trials. Why has it taken so long? Transparency is the key to dissolving criticism, but transparency is precisely what has been lacking. Perhaps because disclosure is a slippery slope into accountability......

The Alliance for Human Research Protection (AHRP) - self-described as "a national network of lay people and professionals dedicated to advancing responsible and ethical medical research practices" - filed a complaint against ACS with the FDA and the federal Office of Human Research Protections. The complaint accused the ACS of violating federal regulations. The specific federal regulations that ACS was accused of violating? 45 CFR 46.409 and 21 CFR 50.56, intended to protect wards of the state from medical experiment involving "greater than minimal risk." The AHRP stated, "Phase I and Phase II experiments involve the greatest level of risk and discomfort for children insofar as they test the safety and toxicity of the drugs as well as maximum dose tolerance." In short, the risks seem to have been greater than minimal. The complaint against ACS ended, "We ask for...full disclosure of the adverse effects suffered by these children; disclosure of institutional and physician conflicts of interest; and the children's condition following their participation."

The story received considerable attention from media abroad. For example, last November, the BBC aired a documentary titled "Guinea Pig Kids: Vulnerable NYC foster children forced to test AIDS drugs." The documentary also pointed an accusing finger at the drug companies, such as GlaxoSmithKline, who supported some of the tests. ACS stonewalling continued. No information about the children's condition before and after the experimentation was revealed, which raised questions about the public value of such 'secret' testing.

On July 6, John B. Mattingly was appointed as Commissioner of NYC-ACS. It is Mattingly who announced that the Vera Institute of Justice, a New York-based nonprofit research group, would conduct an investigation and that a panel of national health care experts would review its findings. In doing so, Mattingly defended the appropriateness of the testing. But, according to the New York Times, the commissioner believes an outside investigation is required to allay the concerns raised by "some reporters" and by "a minority advocacy group." Virtually all of the children in the tests were African-American or Hispanic. Mattingly added, "we acknowledge the need for transparency in all of our dealings with the public...For us to be effective...we must have a sense of mutual trust with those families we seek to serve." After all, ACS is the agency charged with investigating and preventing child abuse.

An "exhaustive" internal review, conducted at Mattingly's request, has reportedly exonerated ACS. For example, the review rejects the accusation that children not perilously ill were included in the experimental tests. By contrast, Vera Hassner Sharav, President of AHSP, claims that documents filed with the federal government show many of the foster children were only "presumed" to be HIV positive. If true, those children would not have been perilously ill.

Moreover, although Mattingly's announcement of an independent review was meant to calm the issue, some statements raised further concerns. For example, according to the New York Post, "Vera has also been asked to locate as many of the children as possible to ascertain their current medical conditions." Mattingly also indicated that records will be reviewed to see if there were more children who participated. How exhaustive could the ACS internal review have been if the number of children involved and the long-time effects on their health are still unknown?"

More here

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Friday, April 29, 2005


And he was held on the flimsiest of evidence

His faith in God enabled a former policeman to get through four nightmare years in Pollsmoor Prison, where he was awaiting trial on a litany of trumped-up charges including rape, attempted murder, corruption and theft. Now David Neil Baard has launched a R5-million case against the police and prosecution authorities for malicious prosecution. Baard, who police investigated but never charged for involvement in the 1998 St Elmo's restaurant bombing in Camps Bay, endured multiple threats of sodomy and nearly had his throat slit twice during the years he spent in Pollsmoor. He also lost both his fiancée Cynthia Erasmus and father Edward to heart attacks while in jail. He also had to "beg" to attend his father's funeral, after he was denied permission to be present at his betrothed's burial.

Baard (39) was eventually acquitted of every charge against him in March last year. Magistrate Gaynor de Wee said she found it "extremely strange" that he had ever been prosecuted. The cases against him collapsed after the woman he was said to have raped proved an unreliable witness, the results of DNA tests were never submitted in court, a leading witness against him later admitted he had been lying, recordings of alleged confessions were never produced by the State and the policeman who was supposed to have made the recordings didn't remember doing so.

A police informant and self-confessed drug addict, Deon Mostert, was arrested hiding out in Lakeside for involvement in the St Elmo's and Blah Bar bombings but was never charged. Mostert implicated Baard in the St Elmo's bombing, but Mostert later admitted this was a lie. Court records reveal that Mostert had been one of the State's main witnesses in the rape, attempted murder and corruption case against Baard.

Evidence before magistrate De Wee showed that the "mentally challenged" woman who claimed Baard had raped her had also made rape allegations against four other men, including her own high-ranking police officer father and brother, during the same period. She had also been found to be an unreliable and immature witness in another rape case, which she brought against one of Baard's colleagues before Baard's trial. Baard's colleague was acquitted.

Strangely, DNA tests revealing that Baard had not had sex with the woman were never placed before the court. No medical evidence was presented to show that she had been raped. The State alleged that Baard had later tried to arrange the murder of the woman by asking another policeman and Mostert to inject rat poison into her heart in exchange for an illegal firearm. Mostert also claimed that Baard told him, during a meeting at the Golden Dragon Restaurant in Sea Point, that he wanted to kill the policeman who was investigating the rape case against him. But tapes of the alleged meeting, on which the attempted murder charges were based, were never produced by the State. The policeman who Mostert claimed was responsible for recording the conversation testified that he could remember nothing about them - a claim that De Wee said she found "odd".

Mostert said he met Baard while Baard was awaiting trial for the September 1998 rape charge. As part of an undercover operation in August 1999, Mostert claimed he had contacted Baard to organise a firearm for him through gangster contacts. But the weapons were later shown to be legally licensed and the State was unable to produce any evidence that Baard had sold an illegal weapon to Mostert.

Supported by his new fiancée, Desiree Afrika, Baard said he believed pressure on police to find those responsible for the urban terror attacks of the 1990s had played a part in the investigation against him. "I often asked God why this happened to me." A deeply religious man, Baard said he had only been able to survive his time in jail because of his faith in God, but was devastated that his father had not lived to see him vindicated.

From here

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Thursday, April 28, 2005


But they are "supervised" when they are let out -- with a policeman following them day and night, no doubt!

Thousands of criminals including burglars and thieves will serve less time in prison under new guidelines that urge courts to cut jail terms by 15 per cent. The change means that a non-violent and non-sexual offender sentenced to six years will spend one year and five months less in jail. The guidance - issued by the Sentencing Guidelines Council, headed by Lord Woolf, the Lord Chief Justice - led last night to accusations that the public was being deceived by the Government and the legal establishment.

Dominic Grieve, the Shadow Attorney-General, condemmed the new regime, which came into force this month, as a "deceit on the public". He said: "Once again the public is being hoodwinked because prisoners will not serve sentences that bear any relations to the penalty imposed."

Norman Brennan, director of the Victims of Crime Trust, said: "The fact is that prison works. People say it is a 'university of crime', but while inside they cannot be at the open university of life, down at the bar or club deciding to do a burglary that night."

Despite the shorter time that many criminals will spend in jail, the Sentencing Guidelines Council said that the new regime was harsher than its predecessor because criminals serving 12 months or more will be supervised after leaving jail halfway through their sentence. Previously, many were released without supervision.

The new penalties came into force this month, but the full effects will be noticed only in the coming weeks as cases go through the courts. Judges should make allowance for "more demanding" early-release conditions and reduce sentence length by 15 per cent, the council said....

An offender given six years under the old system would be automatically released after four years and would be under supervision in the community for a further six months. Under the new system, the same offender would be given about five years and two months - the 15 per cent cut - and be released from jail automatically after serving two years and seven months. He would spend the rest of the sentence under supervision or on licence.

The terms of the licence are intended to be much tougher than under the old sentencing regime.
The new framework covers a large range of offences such as theft, burglary, drug-dealing, some assaults, immigration offences and fraud.....

More here

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Wednesday, April 27, 2005


Judge Ian Dodd slept and snored through the evidence of an alleged rape victim in the fourth and most shocking case of his appalling performance on the bench. And while the judge has admitted to being asleep - and the Judicial Commission has upheld the woman's complaint - no action will be taken to discipline him. The judge has not even apologised directly to the woman, who was giving evidence about alleged sex attacks which began when she was just six years old. Instead, he sent a half-hearted letter to the Judicial Commission, which was passed on to the woman.

Documents show Judge Dodd snored out loud as he slept for 15 minutes at a time, causing laughter and comments from the jury. Not only did the victim leave the stand "destroyed and humiliated", she also feared the judge's behaviour may have influenced the jury's verdict after the defendant was found not guilty. The accused rapist was later convicted to 12 years' jail for a sexual assault on another person, in a hearing before a different judge.

The case is the latest in a series in which the sleeping judge has been accused of failing to administer justice in the manner demanded by the public from its highest judicial officials. Even before the complaints began to roll in, Judge Dodd was notorious on the court circuit for his propensity to snooze on the bench. In his letter to the Judicial Commission Judge Dodd, 56, acknowledged the woman was "subjected to the effects" of an untreated condition known as sleep apnoea. He wrote: "The complainant feels that I did not treat her humanely and with courtesy and respect, and that I was gruff and arrogant. "I apologise for any behaviour which has caused her to feel that way."

But while the commission has found that Judge Dodd "fell asleep momentarily on occasions during the trial", it ruled he was fit to remain on the bench. It said "the transcript and sound recording do not disclose any examples of non-responsiveness" and that it had not affected "his understanding of what was going on".

The woman, now aged 30, complained to the commission about the trial in November 2003. She wrote: "Whilst giving an account of some of the more painful and distressing events, I detected and became aware of the sound of snoring. "I wondered about the impact of Dodd's conduct on the jury who would look to him ... to set an example." The woman, a fitness industry worker from Sydney's south, has lobbied Premier Bob Carr calling for Judge Dodd to face "serious disciplinary action". She also contacted Attorney-General Bob Debus, who outlined his intention to pursue "a number of unresolved issues with the commission". He invited the woman to meet him next month to discuss her complaint.

The woman told The Daily Telegraph yesterday she felt the judge missed crucial details of her testimony which could have affected his summing up. "It was like a circus. I felt like pure entertainment because he was sleeping constantly," she said. "You could actually hear him snoring - he'd sleep for 15 minutes and wake up in a panic.

The Judicial Commission has received at least four complaints relating to Judge Dodd's drowsiness. Among them is the defendant in a corporate fraud trial, Jim Kearns, who is appealing his conviction. But similar avenues are not open to complainants. The Attorney-General refused to comment further and the Chief Justice's office complained about being contacted on a public holiday. Judge Dodd could not be contacted.

From here

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Tuesday, April 26, 2005


Two brothers jailed for more than eight years without a trial were ordered released after a murder case that went nowhere because of a succession of postponements, changes in attorneys, and motions denied or never ruled on. Percy Dyer and James Thomas had been awaiting trial in the slaying of a Baton Rouge man whose bound body was found next to his burning car.

A state appeals court ruled last month that prosecutors waited too long to try the case, and Judge William Dupont signed an order Monday throwing out the second-degree murder charges. Prosecutors planned to appeal the dismissal to the state Supreme Court.

"We're not sitting here gloating. We're not going to brag before it's bragging time," said Leo Berggreen, Dyer's lawyer. "In the meantime, this boy's been incarcerated for a little over eight years. So this is a great day for him."

The men's trial was delayed for a variety of reasons. The state took over the case when the parish prosecutor was elected to the Legislature. The case was further slowed because Thomas originally was charged with first-degree murder, requiring an attorney qualified to handle a death-penalty case. One of Thomas' public defenders withdrew because of heart trouble. Another withdrew after losing a motion.

From here

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Monday, April 25, 2005

I guess we'll hear no more about this one: "The Metropolitan Police Department is investigating an assistant police chief who refused to give an officer his license and vehicle registration after the officer had pulled him over for driving more than 20 mph over the speed limit in Southeast on Tuesday. It was the second time in a little more than a year that the officer ticketed Assistant Chief Willie Dandridge for speeding on that stretch of road, police union officials said. Chief Dandridge was driving an unmarked cruiser on Branch Avenue Southeast near Alabama Avenue about 6:30 a.m. Tuesday when the officer clocked the cruiser traveling at 46 mph on a two-lane stretch where the speed limit is 25 mph, union officials said. Police sources familiar with the incident said it is under investigation, but police spokesman Sgt. Joe Gentile would not confirm that a probe is under way."

Coverup, coverup! "A federal appeals court turned aside efforts to open closed-door arguments Thursday in the case of a fired FBI contractor who alleged there were security breaches and misconduct at the bureau. Sibel Edmonds is seeking to revive her lawsuit against the government. It was thrown out of U.S. District Court when the Bush administration invoked the state secrets privilege, which allows the government to withhold information to safeguard national security. Edmonds says she was dismissed from her job as a wiretap translator because she told superiors she suspected a co-worker was leaking information to targets of an ongoing FBI probe. A three-judge panel closed the court arguments, even though Edmonds' allegations have been outlined in court papers, in a report by the Justice Department's inspector general and on Capitol Hill."

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Sunday, April 24, 2005


A Brisbane teenager who raped his 10-year-old cousin while she was trying to sleep has been jailed for five months. The 18-year-old youth, who cannot be named for legal reasons, appeared in Brisbane District Court today charged with one count of rape and one count of indecent dealing with a child under the age of 12. Prosecutor April Freeman told the court that on November 13, 2003, the youth sought out his cousin's bedroom while he was staying with her family on Stradbroke Island. He was working as an employee at the girl's father's business at the time. The court was told that he moved his mattress into her room while she was sleeping and made her touch his penis. He also attempted to kiss her and even commented at one point "what if we get caught?" to which she replied: "what do you mean we? " He then digitally raped her for around half an hour. Afterwards she got up and went to her parents' bedroom in a distressed state.

The court was told the incident was attributed to the man's confusion over his sexual orientation, his needy partner and the fact that he had fallen prey to the sexual advances of an uncle. However, Judge Julie Ryrie ruled that a term of imprisonment was necessary because of the perception in the community of such acts and the fact that there were not "exceptional circumstances to justify remaining in the community". She sentenced him to 18 months in jail, suspended after five months with an operational period of 18 months.

From here

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Saturday, April 23, 2005


With Texas' criminal justice system the subject of intense scrutiny for a crime lab scandal and a series of wrongful convictions, a state Senate committee heard testimony Tuesday about the possibility that Texas had experienced the ultimate criminal justice nightmare: the execution of an innocent person. Fourteen months after Cameron Todd Willingham was executed in the nation's busiest death chamber, a renowned arson expert and Willingham's lawyer told the Senate Criminal Justice Committee that they believed Willingham might have been innocent but found nobody willing to listen to their claim in the days before the execution in February 2004. "This was a frustrating case, and it was frustrating because it appeared that we could not get anybody to listen," said attorney Walter Reaves, who represented Willingham. "To say that this case was thoroughly reviewed," Reaves added, "I have my doubts."

The execution of Willingham, convicted of the December 1991 arson fire that killed his three young daughters, was a focus of a hearing into a proposed innocence commission. Texas Gov. Rick Perry has, by executive order, set up his own committee. But critics, including state Sen. Rodney Ellis, a longtime advocate of criminal justice reform in Texas, and Barry Scheck, a co-founder of the New York-based Innocence Project, told the senators that to be effective the governor's panel needed to subpoena sworn testimony, obtain documents and seek forensic testing. Ellis, a Houston Democrat, has sponsored legislation to beef up the power of Perry's panel. "Without subpoena power and the ability to order testing, I don't see how the committee can get to the bottom of these cases," Scheck said after testifying. "I haven't heard of a committee that didn't want all of those things. If you want to find out the truth, you have to have the mechanisms to do it."

A Tribune investigation of the Willingham case last December showed that he was prosecuted and convicted based primarily on arson theories that have since been repudiated by scientific advances--a fact backed up by testimony Tuesday by one of those experts, Gerald Hurst. According to Hurst and three other fire experts who reviewed evidence in the case at the Tribune's request, the original investigation that concluded the fire was arson was flawed, relying on theories no longer considered valid. It is even possible the fatal fire at the Willingham home in Corsicana, a small town about an hour south of Dallas, was accidental, according to the experts.

Nonetheless, before Willingham died by lethal injection on Feb. 17, 2004, Texas judges and Perry turned aside a report from Hurst in which he questioned the arson evidence and suggested the fire was an accident. "The state," Hurst testified Tuesday, "needs to take an interest in these matters." Willingham maintained his innocence until the end. Strapped to a gurney in the death chamber last year, an angry Willingham said: "I am an innocent man, convicted of a crime I did not commit."

The scientific advances that Hurst and the other experts cited in the Willingham case played a role in the exoneration last year of another Texas Death Row inmate, Ernest Willis. Hurst told the Senate committee that the two fires were identical, and that an investigation is needed to determine why Willingham died and Willis lived.

More here

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Friday, April 22, 2005


To start the story:

A man has admitted to the murders of twin sisters and an elderly couple in North Yorkshire last summer. Mark Hobson, 35, killed his girlfriend Claire Sanderson and her sister Diane, and James and Joan Britton. The twins were found in a flat in Camblesforth, near Selby, on 18 July - the Brittons were found later that day at their home in Strensall, near York. Paul Worsley, prosecuting, said: "The circumstances surrounding these deaths are horrific and chilling." The judge, Mr Justice Grigson, said he would sentence Hobson on 27 May. He faces life imprisonment.

Leeds Crown Court was told in a statement from the twins' parents, George and Jackie Sanderson: "They were our life, the reason we lived and worked. Now they are gone we have nothing." Catherine Wilkins, a daughter of the Brittons, said her parents were elderly, but Hobson did not have the right to say when and how they would die.

The court was shown handwritten notes made by Hobson which suggested he had planned the murders and was even planning to kill the twins' parents. One note listed items used in the killings - another was a reminder for Hobson to ring Diane, who was lured to the house. She was battered and subjected to a "macabre and bizarre" sexual attack, Mr Worsley said. He said Hobson's friend Ian Harrison, who was Diane's boyfriend, came to his house and noticed the smell of the decomposing bodies.

And here is the background to the story. A previous attempted murder got only "community service":

Two years before the killings, Hobson stabbed William Brace, 31, a father of two, in daylight outside an off-licence in Selby. Mr Brace needed emergency surgery after Hobson plunged a knife into his stomach five times in front of horrified shoppers during a row over a woman. Hobson, who admitted wounding with intent to cause grievous bodily harm, was freed on bail for pre-sentence reports at York Crown Court. He went on the run for nine months before he was re-arrested and sentenced at Leeds Crown Court to 100 hours' community work and two years' probation.

The sentence did little to change his behaviour. Five months before the killing, he stole his sister's 18-carat gold wedding and nine-carat engagement rings after his mother had refused to give him money. He pawned them at a jeweller's shop for œ25 which he spent on lager. When his sister discovered they were missing, she immediately suspected her brother and called in police who recovered the items. Hobson, who admitted theft and deception, told the court in Selby he planned to buy them back when he got a job. Magistrates deferred sentencing him for six months to give him a chance to stay out of trouble.

He was made the subject of a 50-hour community service order when he re-appeared at the same court in February last year and was ordered to pay the jeweller œ25 compensation with œ50 costs.

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Thursday, April 21, 2005


An inquiry has identified "systemic weaknesses" in the handling of a sex offender who tried to rape a two-year-old on release from jail. James Campbell abducted the toddler from her Coatbridge home two months after his release on licence.
At the time he was under supervision by North Lanarkshire Council. It said in response to the investigation ordered by Justice Minister Cathy Jamieson that it would "tighten up its procedures".

Campbell snatched the two-year-old from her home in the middle of the night while armed with a knife. The 19-year-old was given a life sentence on 21 October last year for the attack. At the High Court in Glasgow, temporary judge Alistair Stewart QC told him that he must serve a minimum of 10 years before possible consideration for parole.

He had been living in a social work hostel after being released early from a three-year jail term imposed after attempting to rape a 90-year-old woman in her home in Cumbernauld.

In its report, the Social Work Inspection Agency said Campbell sought to mislead people into believing that he was going straight. [How Amazing!] However, it said: "In our opinion the weaknesses in managing this case occurred across all of the agencies and at all stages through the prison sentence and back to the community. They were wholly systemic in nature." It said North Lanarkshire Council failed to give sufficient priority to the case and did not ensure Campbell undertook addiction treatment - one of the key conditions for his release from prison.

Council spokesman Gavin Whitefield said: "We've taken steps to implement a number of actions already and we'll continue that process in conjunction with all the other agencies."

The report said the Scottish Prison Service did not provide the sex offender with access to rehabilitation while serving his original sentence. There was a lengthy delay in interviewing him on his arrival at prison and it took six months to appoint a new prison social worker after his original one left. It also found that there was "poor communication" between Strathclyde Police and social work staff involved in Campbell's risk assessment.

Ms Jamieson has told all council, prison and police bodies to ensure that sex offenders undergo comprehensive risk assessments. The minister said agencies must pay attention to the report's findings. She said: "Sex offenders may be small in number but they rightly generate considerable public concern. "As today's report makes clear we cannot completely eliminate the risk they pose."

Strathclyde Police said Campbell's post-release risk assessment was still under way when he attacked the child. However, a spokesman added: "Following this incident, Strathclyde Police and North Lanarkshire Council have commenced a review or our joint review procedures for the assessment of sex offenders."

From here

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Wednesday, April 20, 2005


Three policemen were cleared yesterday of the manslaughter of a heroin addict who was found frozen to death. The body of Michelle Wood, 25, a mother of three, was discovered a month after officers drove her to the boundary with another police force on a cold January night and left her, five miles from home. She weighed less than seven stone, was in a poor mental state and behaving irrationally, her clothes were wet and she had no money or mobile phone, Hull Crown Court was told.

After an investigation, three Lincolnshire police officers were charged with manslaughter due to gross negligence. The prosecution said that they had breached their duty of care towards Miss Wood. The case collapsed after a six-day trial when Mrs Justice Dobbs, the judge, instructed the jury to return not guilty verdicts for all three men. She said that the prosecution had not established that there was a case to answer because insufficient evidence had been produced about the duty of care owed by police officers to drug addicts who are released from custody in a town where they do not live.

Sergeant Andrew Hickinbottom and PCs Andrew Wood and Ian Clark made no comment as they left court. A statement issued later on their behalf described them as “dedicated police officers with many years of unblemished public service” who were victims of a prosecution which had “no credible factual basis”.

Miss Wood’s mother and stepfather, Joan and Alwin Call, said in a statement that the collapse of the trial meant that they “still [didn’t] know why Michelle had to die”. “Michelle had problems in her life but she did not deserve to die in this way,” they said.

During the trial the court was told that Miss Wood was from Grimsby, which falls under the jurisdiction of Humberside Police. She was taken to Skegness police station, on the Lincolnshire coast, after being arrested in Louth on suspicion of burglary in January 2003. Sergeant Hickinbottom, 40, the custody sergeant at Skegness, decided to release her without charge. He asked PC Wood, 44, and PC Clark, 43, to drive her to a point on the A16 road, five miles from Grimsby, which was just across the boundary between Lincolnshire and Humberside. The constables left Miss Wood near a motor dealership at 8.30pm. A month later, a pigeon shooter found her body off the A16 near New Waltham. She had died from hypothermia.....

After the hearing, Richard Crompton, the Deputy Chief Constable of Linconshire, said that the judge’s comments would be considered before it was decided whether to bring disciplinary proceedings against the officers, who remain suspended from duty.

More here

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Tuesday, April 19, 2005


Seven years to START looking into a dangerous doctor?

A hearing is due to get under way into a hospital doctor who was suspended from his post in Leicester after misdiagnosing children with epilepsy. Dr Andrew Holton was suspended after he prescribed the wrong treatment to hundreds of patients in the late 1990s.

The General Medical Council launched an inquiry more than three years ago. Its hearing into the case begins on Monday.
Parents' groups had hit out at the long wait for the hearing.

Dr Holton was working as consultant neurologist at the Leicester Royal Infirmary in 2000 when he was investigated for misdiagnosing more than 600 children as epileptic and prescribed potentially damaging medication. A report by an independent NHS inquiry team in 2003 found complaints were first made about Dr Holton, who worked at the Leicester Royal Infirmary, almost three years before he was suspended.

Dr Holton was suspended on full pay in May 2001, but later left the University Hospitals of Leicester NHS Trust.

From here

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Monday, April 18, 2005


I suppose that telling the lesbian "parents" concerned to share support of the child would have been "homophobic"

A court in Sweden has ruled that a man who donated sperm for artificial insemination, enabling a lesbian couple to have three children, must pay child support after the two women separated, a Swedish newspaper reported on Sunday.

The regional daily Nerikes Allehanda said on its Internet Web site a county court ruled that the man was undoubtedly the children's biological father and hence obliged to pay child support of $265 per month after the women's 10-year relationship broke up.

The verdict poses a legal dilemma, however, because under Swedish law a sperm donor is not regarded as the legal parent of children conceived with the help of his semen. Sperm donors, however, are normally strictly anonymous, while in this case the man was a friend of the couple and his identity as the father is in no doubt.

From here

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Sunday, April 17, 2005


Wells Fargo. Intel. Walt Disney. Cisco Systems. Most Californians would have little difficulty identifying these corporate giants, which are the state's largest high-profit, high-growth companies — save one. Far bigger than any of these biggest of big businesses are the operations of the plaintiffs' attorneys we at the Manhattan Institute have dubbed "Trial Lawyers, Inc.," who rake in over $46 billion a year from their American operations.

The Manhattan Institute first explored the inner workings of Trial Lawyers, Inc. in an eponymous report issued in fall 2003. Today, we are releasing an update, focused this time on our nation's largest state.

What we find is that California is peculiarly dominated by lawyers. California's legal system is enormous, with over 136,000 practicing attorneys — that's 50 percent more lawyers than in Britain, twice as many as in Germany and almost 10 times as many as in Japan.
The cost of supporting those lawyers is large and growing. Punitive damages grew more than 300 percent in the state in the 1990s, and nonpunitive awards in the state's largest counties grew almost 150 percent from 1996 to 2001. By 2001, those verdicts, on average, topped $1.5 million apiece.

Trial Lawyers, Inc. has exploited these trends by focusing on its most lucrative profit opportunities, which are more a function of legal loopholes than actual merit. For example, in the 1990s, California lawyers made a killing from construction-defects claims by peppering condominiums with flyers to gather clients and filing suits for even minor infractions. Predictably, construction insurance premiums skyrocketed by as much as 500 percent, and new condominium construction plummeted, falling from 18,691 units in 1994 to 2,945 in 1999. The California Legislature subsequently tightened the laws for suing condo builders, but litigators have now taken on single-family homes, and single-family housing is increasingly unaffordable for most California families.

At least as troubling for California is the state's employment litigation, another profit center for Trial Lawyers, Inc. Workplace litigation has become so severe that half of all California's major companies have "explicit policies" to stop employment growth in the state. California's courts were early leaders in stretching the law to eviscerate "at-will" jobs, even in the face of a state statute that provided for such employment, and over time California's Legislature has helped create a maze of wage-and-hour regulations that provide almost limitless opportunities to sue your boss.
For corporate shakedowns, though, nothing surpasses shareholder lawsuits, which typically shift money from one class of stockholders to another with little or no deterrent effect. With almost one-fourth of all federal securities cases filings in recent years coming in California, and fully half of those against technology companies, securities class actions are a tax on the state's top engines of job creation. Disturbingly, such suits are often instigated by the state's own public pension funds, CalPERS and CalSTRS, which are led by highly political boards.

The politicians on the public pension fund boards, such as state Treasurer Phil Angelides, are heavily financed by Trial Lawyers, Inc., as are key politicians at all levels of state government. Plaintiffs' attorneys have given roughly $10 million to state political candidates in the two most recent electoral campaigns, and these "government relations" efforts have effectively stymied efforts at civil justice reform in Sacramento.

Fortunately, Gov. Arnold Schwarzenegger has shown a willingness to stand up to powerful foes, and California's initiative and referendum process provides an opportunity to circumvent government gridlock, as voters proved last fall in passing Proposition 64. Let's hope this positive momentum continues, because the list of essential reforms left to enact is long: California not only needs to stop abusive construction defect suits, employment litigation and shareholder "activism" by the state's pension boards, but also needs to reform its class-action process, the way it processes asbestos claims and the way it pays out attorney contingency fees.

The litigation industry won't go down without a fight, but with Gov. Schwarzenegger's leadership and determined efforts, Californians can say "hasta la vista" to Trial Lawyers, Inc.'s most egregious lawsuit abuses.

From here

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Saturday, April 16, 2005


An Ipswich judge yesterday granted a man five weeks of freedom to spend time with his children and sick grandmother despite pleading guilty to tethering, digitally raping and threatening to kill his children's mother. District Court Judge Deborah Richards yesterday granted the man bail to get his affairs in order, which included quitting his full-time job, spending time with his 85-year-old grandmother and organising supervised visits with his young children before he was jailed for up to six years. Under Queensland Law, accused criminals are usually only afforded bail until they are either convicted or plead guilty to crimes of a serious nature.

The man, 31, was to stand trial on Thursday, but changed his mind at the 11th hour to plead guilty to one count each of rape, deprivation of liberty and assault causing bodily harm of his former wife on May 10 last year. Barrister Steve Kissick, for the accused man – who cannot be named to protect his victim's identity – said his client was undergoing outpatient hospital treatment for a psychological condition and wanted four to six weeks to get his affairs in order. Mr Kissick said the man, 31, was not a flight risk, did not pose a threat to his victim and was aware he would be jailed for a long time. He said the man lived with his elderly grandmother and wanted to be there to support her when she received eye surgery on Monday and to spend time with her and his children outside of a prison environment.

The court was told the man digitally raped his children's mother with numerous fingers, telling her that if she intended to leave him he would "guarantee" she could never have any more children. Prosecutor Michael Lehane said the man had previously breached his bail conditions, had ample time to get his affairs in order and is alleged to have asked his former partner to drop her rape complaint less than a week ago. Mr Lehane said the Crown did not oppose bail, but argued the man was expected to be jailed after a trial that would have ultimately ended with him being found guilty of all the charges and jailed for between five to six years. He said the man choked his wife, tied her up, digitally raped her and threatened to kill her with a sword.

Judge Richards yesterday granted the man bail, saying she accepted there were special circumstances in this case to allow him to live in the community until sentenced on May 20. .....

From here

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Friday, April 15, 2005


Because "proper procedures" had been followed!

More than ten years ago, two defendants were charged with a brutal rape and murder. They were convicted at separate trials, albeit based on what the Court described as radically different and inconsistent theories and evidence. The defendant in this case, Thomas Thompson, was scheduled to be executed on August 5, 1997. Two days prior to that date, a deeply divided en banc court intervened by taking the unusual step of recalling its earlier mandate not to rehear the case. The majority then vacated the execution order on a number of grounds, and reinstated the very writ of habeas corpus that it had earlier vacated.....

To understand what happened, it is necessary to review just some of the evidence that all of the judges appeared to accept without reservation. A State coroner testified that there was no "anatomical" evidence of any rape, but that sperm and semen analysis "might" provide such evidence. Defense counsel never cross-examined the coroner to clarify those statements. (Id., at 1052). The victim was covered with bruises, but subsequent testimony by an independent pathology expert brought out that, had he been called to testify, he would have testified that the bruises were several weeks old. The lawyer never called the pathology expert to testify; and the Court concluded that the lawyer's "failure to investigate, develop, and present evidence rebutting the State's forensic evidence fell below a reasonable standard of professional responsibility."

The most dramatic and damaging State's evidence against the defendant came from two jailhouse informants who swore that Thompson had admitted raping and murdering the victim. While the trial attorney made a pass at attacking the credibility of those two informants, he failed to make much of a dent. At subsequent evidentiary hearings in this case, it was unequivocally established that one of the informants had an extensive history as an informant; he "frequently claimed that fellow inmates confessed their crimes to him"; he "frequently received favors in exchange for cooperating with the police"; and there were statements in the files of law enforcement officials that he was "an unreliable informant, a con man, and a heroin addict." (Id., at 1054). The second informant "parroted almost verbatim inaccurate news reports"; he had served as an informant since the age of fourteen; two police agencies for whom he worked "considered him unreliable"; and his parents considered him a "pathological liar." (Id.).

The Ninth Circuit concluded that the lawyer's "failure to investigate and impeach" those witnesses severely prejudiced Thompson; and that had he done a professional job, he "could have destroyed" their credibility. (Id.). Sadly, there was much more. In the words of the Court: "The prosecutor manipulated evidence and witnesses, argued inconsistent motives, and at [the co-defendant's] trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson's trial." (Id., at 1057). Combined, all of that led the Court to conclude that it was reasonably probable that "the jury convicted Thompson of a rape he did not commit and then erroneously sentenced him to die for a capital offense." (Id., at 1050).

When a majority of the judges finally realized that a horrible miscarriage of justice was about to occur, the Ninth Circuit took the admittedly extraordinary step of recalling its earlier mandate not to hear the case en banc; and it vacated the death penalty - just two short days before the execution. Five judges dissented from the decision to recall the earlier mandate - not because they felt that what had happened to Thompson was fair - but because they concluded that "A properly constituted panel of this court has heard and decided Thompson's appeal. The time to review that decision en banc has come and gone." (Id., at 1045). In addition, some of those judges concluded that there were no "exceptional circumstances" that warranted any further intervention in this case. And one of those judges, Judge Kozinski, made the extraordinary comment that if the court had erred in its earlier reviews of the case "for whatever reason, the error can be corrected in a future case where the problem again manifests itself. Since any problem worthy of en banc consideration will perforce appear again and again, missing an en banc call in a single case does not terminate forever the opportunity of judges troubled by the error to raise the issue." (Id., at 1060).

Judge Reinhardt was appalled. He lashed out at Judge Kozinski's conclusion, which he called "bizarre and horrifying in its implications." He continued: "We cannot correct the error of an unconstitutional execution in the next case. Surely no responsible judge could believe otherwise. . . . Reading Judge Kozinski's strange dissent, one would think that justice is irrelevant in this nation and that all that matters is whether . . . some recondite internal General Order was complied with to the last detail. That is surely not the type of legal system in which most of us believe. That is surely not the type of nation that we represent ourselves to be when we offer ourselves as a model of fairness and decency, democracy and civilization, throughout the world." (Id., at 1060-61).

From here

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Thursday, April 14, 2005


A murderer could be walking the wards of Perth's main maternity hospital more than four years after the suspicious fatal poisoning of a one-week-old baby. "How many other deaths have there been which have been mistakenly attributed to Sudden Infant Death Syndrome which might have been a deliberate poisoning and work of a murderer?" lawyer Peter Collins asked state coroner Alastair Hope. Mr Collins, representing the baby's mother, Sharon Anderson, said the infant's family, authorities and the broader community would never know the full circumstances surrounding the tragedy. In his closing submissions, Mr Collins said King Edward Memorial Hospital's response to the massive overdose of the baby on November 15, 2000, was "utterly dilatory, shamefully disorganised and contemptuously complacent". "We wonder whether the parents of a professional, middle-class family from suburban Perth whose child collapsed in similar circumstances would have excited the same level of disinterest as the child of an unsophisticated, traditional Aboriginal woman from the central desert," Mr Collins said, declaring Ms Anderson's innocence.

The baby boy, who is not named for cultural reasons, died four months after being given the overdose. Earlier during the inquest, Mr Hope was told staff initially thought the baby was a victim of SIDS, but a test uncovered the lethal levels of codeine and paracetamol in his system. The overdose would have required three to four Panadeine Forte tablets to have been deliberately and secretly crushed, dissolved and given to the baby orally.

Ms Anderson, 37, a shy woman from a remote community near the northern Goldfields town of Wiluna, was interviewed by police after the overdose and denied giving her son any drugs. Police, hospital management and the Australian Nursing Federation came under fire during the inquest for delays in investigating the death, with some staff not giving statements until more than a year after the overdose.

Felicity Zempilas, counsel assisting the coroner, yesterday submitted that Mr Hope should make a finding of unlawful homicide, but said the perpetrator of the offence could not be identified. Ms Zempilas, who has written to 11 other children's and maternity hospitals to ensure the tragedy has not been repeated elsewhere in the state, said Ms Anderson had had the greatest access to the baby. But she said Ms Anderson had no motive to harm her child, no history of abusing her three other children and little opportunity to administer the overdose. "All staff members who had access to the baby remain under suspicion ... it is unfortunate no staff member can be positively excluded," Ms Zempilas said.

More here

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Wednesday, April 13, 2005


In NSW, of course, Australia's rival to California for strange law

Four youths who bashed a teenager to death in a "mindless explosion of violence" could all be released before the end of next year. NSW Supreme Court judge Greg James shied away from possible maximum sentences of up to 25 years, instead sentencing the men to between four and six years in prison, with non-parole periods as short as two years. One of the four could be freed as early as October after they all pleaded guilty to the manslaughter of Kurt Smith, whose head was rammed into a power pole. Anger over the leniency of the sentences erupted as Attorney-General Bob Debus last night ordered a full report from the Director of Public Prosecutions.

He said: "Given the circumstances of this tragic case, I have asked the DPP to provide a full report on this matter and have sought his opinion on the prospect of a successful appeal."

The sentences came after the court heard how Mr Smith, 19, of Penrith, was attacked and robbed while on his way to a New Year's Eve party in 2002. After his head hit the pole, the four youths, aged 16 and 17, kicked him in the head as he lay helpless on the ground. Mr Smith, his friend Sean Clifford and three female friends had been crossing dimly-lit Duke's Oval in Emu Plains about 9.30pm when they were confronted by the gang of drunken and probably drugged youths, who can only be named as MD, JT, NA, and BM. Mr Smith, who was forced to hand over his mobile phone, was rammed head-first into the pole.

But Justice James said there was not enough evidence to say who was to blame.

As he lay barely breathing on the ground, Mr Smith was kicked in the head and Mr Clifford was attacked, rendering him unable to help his friend. Mr Smith died in hospital and a post-mortem examination showed he died from the result of brain damage caused by multiple blows to the head.

More here


I actually agree with the decision of the European judges in this matter. What is disgraceful is that the British authorities created the grounds for this judgment by taking so many years to carry forward the prosecution. It is the BRITISH legal system that should be taking the flak

A decision by the European Court of Human Rights to award a paedophile more than 5,000 pounds has caused anger throughout the region where he lived and worked. 59-year-old Rupert Massey, a former barrister in Dorset, was awarded four thousand euros (over 2,800 pounds) in costs and a similar amount in compensation by a court in Strasbourg, because of the length of his trial and subsequent appeal.

Builder David Meek, 41, from Poole in Dorset who was abused by Massey when he was just eight years old, waived his right to anonymity and told the Press Association that the decision “beggars belief”. He said that it was wrong for people to profit financially from crime and that it had just “added insult to injury”. Mr Meek had been befriended by Massey as he played on the beach at Branksome Chine.

Human Rights judges in Strasbourg ruled that under Article Six of the European Convention, everyone is entitled to a trial “within reasonable time”. From the date of his arrest, Massey’s trial had lasted nearly five years. He had complained that the delay in his accusers coming forward made a fair trial impossible and took the case to the ECHR.

Dr Howard Davis of Bournemouth University Law School said: “Article Six is a fundamental human right, which is essential to the working of the European Convention. The point about human rights is that it applies to everyone. Justice delayed is justice denied and that applies to everyone, regardless of what crime they have committed.” Manager of the Dorset Survivors Group in Poole, Graham Christopher said: “It’s ridiculous. Criminals are treated better than the victims in this country. Dorset seems to be a haven for paedophiles because of the coastline, and this decision is just laughing the face of justice.”

Currently the Home Office only offers an appeal in cases like these when the circumstances are “exceptional” and the ruling has angered residents in Meek’s hometown of Poole.

Hairdresser Laura Steadman, 25, of Kingston Road, Poole said: “It’s disgusting. I think that people like that shouldn’t be protected by laws. He should just be locked up for good, I can’t believe they’ve awarded him five grand.” Social worker Tony Bellows, 47, Garland Road, Longfleet said: “I can understand that everyone deserves a fair trial, but this is absurd. Americans keep people on death row for years without violating their ‘human rights’. Europe has gone crazy.” Article Six of the European Convention on Human Rights states that: "In the determination of... any criminal charge against him, everyone is entitled to a... hearing within a reasonable time."

Massey, now of Richmond, Surrey, was jailed for six years in December 1999 after being convicted of 16 counts of assaults on young boys in the 1970s and 1980s.


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Tuesday, April 12, 2005


It shows what boneheads the police can be. The guy should sue

A man trying to pay a fee using $2 bills was arrested, handcuffed and taken to jail after clerks at a Best Buy store questioned the currency's legitimacy and called police. According to an account in the Baltimore Sun, 57-year-old Mike Bolesta was shocked to find himself taken to the Baltimore County lockup in Cockeysville, Md., where he was handcuffed to a pole for three hours while the U.S. Secret Service was called to weigh in on the case.

Bolesta told the Sun: "I am 6 feet 5 inches tall, and I felt like 8 inches high. To be handcuffed, to have all those people looking on, to be cuffed to a pole – and to know you haven't done anything wrong. And me, with a brother, Joe, who spent 33 years on the city police force. It was humiliating."

After Best Buy personnel reportedly told Bolesta he would not be charged for the installation of a stereo in his son's car, he received a call from the store saying it was in fact charging him the fee. As a means of protest, Bolesta decided to pay the $114 bill using 57 crisp, new $2 bills. As the owner of Capital City Student Tours, the Baltimore resident has a hearty supply of the uncommon currency. He often gives the bills to students who take his tours for meal money. "The kids don't see that many $2 bills, so they think this is the greatest thing in the world," Bolesta says. "They don't want to spend 'em. They want to save 'em. I've been doing this since I started the company. So I'm thinking, 'I'll stage my little comic protest. I'll pay the $114 with $2 bills.'"

Bolesta explained what happened when he presented the bills to the cashier at Best Buy Feb. 20. "She looked at the $2 bills and told me, 'I don't have to take these if I don't want to.' I said, 'If you don't, I'm leaving. I've tried to pay my bill twice. You don't want these bills, you can sue me.' So she took the money – like she's doing me a favor." Belesta says the cashier marked each bill with a pen. Other store employees began to gather, a few of them asking, "Are these real?" "Of course they are," Bolesta said. "They're legal tender."

According to the Sun report, the police arrest report noted one employee noticed some smearing of ink on the bills. That's when the cops were called. One officer reportedly noticed the bills ran in sequential order. Said Bolesta: "I told them, 'I'm a tour operator. I've got thousands of these bills. I get them from my bank. You got a problem, call the bank.' I'm sitting there in a chair. The store's full of people watching this.

All of a sudden, he's standing me up and handcuffing me behind my back, telling me, 'We have to do this until we get it straightened out.' "Meanwhile, everybody's looking at me. I've lived here 18 years. I'm hoping my kids don't walk in and see this. And I'm saying, 'I can't believe you're doing this. I'm paying with legal American money.'"

Bolesta was taken to the lockup, where he sat handcuffed to a pole and in leg irons while the Secret Service was called. "At this point," he says, "I'm a mass murderer." Secret Service agent Leigh Turner eventually arrived and declared the bills legitimate, adding, according to the police report, "Sometimes ink on money can smear." Commenting on the incident, Baltimore County police spokesman Bill Toohey told the Sun: "It's a sign that we're all a little nervous in the post-9/11 world."

From here

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Monday, April 11, 2005


From the Glenn Sacks show

This week we had one of the most stunning and unconscionable court rulings I’ve ever seen. We’ve spoken before about the Bridget Marks case, in which a judge gave custody of twin four year old girls to the girls’ father because she found that the mother had coached the girls to make false accusations of child molestation against their father. The children were born out of an affair between the mother, a former playboy model, and John Aylsworth, a married casino mogul, and Marks had been the girls’ primary caregiver.

A few days ago a New York Appellate court found that Bridget Marks did in fact coach her 5 year-old twin girls to make false allegations of sexual molestation against their father--and then granted her sole custody of the girls! I’ll repeat that….a New York Appellate court found that Bridget Marks did in fact coach her 5 year-old twin girls to make false allegations of sexual molestation against their father--and then granted her sole custody of the girls! According to the Appellate Court:

“There is ample support in the record--that the mother coached the girls to make false accusations that their father sexually abused them. The Law Guardian and the neutral expert witnesses who testified in this case--the psychiatrist appointed by the court as the independent forensic evaluator, two certified social workers retained by the Law Guardian, and two social workers who supervised the father's visitations--all take the view that the accusations are false, and that the children were coached to make them. Even the expert witnesses called by the mother seem to have recognized that the accusations were made in a manner consistent with coaching. Apart from the opinions of the Law Guardian and the neutral experts, the accusations… are, as even the mother's psychiatric expert witness seems to have recognized, difficult to believe. We note that the father, a successful middle-aged businessman, has no prior history of inappropriate conduct with children, including the four children from his marriage (who are now adults) and his grandchildren.

Certainly, the record fully supports Family Court's determination that the sexual abuse accusations against the father are unfounded…It is clear from reading Family Court's 36-page decision that the court reached its conclusions after a painstaking consideration of the testimony of all the witnesses, and on its independent assessment of the credibility and character of each party. The court did not simply rubberstamp the conclusions of any expert witness, neutral or otherwise. Any suggestion that the court relinquished its role as judge of the children's best interests to one of the experts is not supported by the record.”

Despite all of this, they’re determined to give custody to Bridget Marks. Here’s some of their logic. One of the judges writes: “since July, 2003, the children have not been induced to make any further unfounded accusations against their father.” Wow—she hasn’t tried to destroy the father’s life and his relationship with his girls for 18 whole months—what does she want, a cookie? A pat on the head? The opinion continues “such misconduct may or may not harm the child or interfere with the child's relationship with the other parent.” Huh? When does it NOT harm the child? The justices continue: “Although Justice Friedman asserts that ‘it is psychologically abusive for a parent to plant in the mind of a three- or four-year-old the false notion that the other parent is sexually abusing the child’ as if this is an absolute fact, the question of the effect of such coaching on a child must be decided in each case.” Excuse me, but when is it NOT psychologically abusive?

The justices also say that because the father’s bond with the girls is strong, the false allegations aren’t important because they didn’t work. I’d love to see that principle in force in other areas of our law—if someone plants a bomb in an airport and the police find it before it explodes, does that mean no harm, no foul—the guy walks free? Of course not…

One of the things that does seem to be a factor here—and we’ll find out more about this in a minute—is the conduct of the father in carrying on extramarital affairs. Now I would never suggest for a moment that infidelity is 1/1,000,000 as bad as coaching young girls to believe they’ve been molested by their father. However, I do get a little weary of some of these guys who get themselves into trouble because they can’t keep the pistol in the holster. Still, according to the court Aylsworth is a capable and loving father. His four adult children and his wife all gave the court glowing reports of him as a father, and, according to Judge Goldberg, "all persons who have seen him interact with the twins testified that he is a very good parent and that the twins love him and are happy with him."

Marks won custody in part due to the widespread media sympathy she created through constant theatrics, playing victim, and her determination to place her little girls in the public spotlight. Some of you may remember that hysterical scene she created on a Manhattan street during the custody transfer. She appeared on Larry King Live, PrimeTime Live, The O'Reilly Factor, and Dr. Phil, and was quoted in many so-called "news" articles in the New York Daily News and the New York Post. In contrast to Marks, Aylsworth and his attorney, Patricia Grant, have, protected the girls from the media circus Marks has created, and declined to speak publicly about the case"

More -- much more -- here

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Sunday, April 10, 2005


Sense dawned only after much harm was done

The crown prosecution service yesterday abandoned an attempt to prosecute an 11-year-old boy for racially aggravated assault after he allegedly called a classmate a "Paki bastard" in a playground fight. Lawyers for the crown conceded it was not in the public interest to pursue the charge against the boy, who can not be named for legal reasons, after he admitted a lesser charge of common assault.

The boy and a 10-year-old friend, both of whom are white, admitted waiting for an Asian boy outside their school and tripping and punching him, but denied using racial language. Magistrates were told the pair were angry that the Asian youngster had called one boy a "Teletubby" because of his size and had called the second white boy "Dipsy" because of problems he was having with schoolwork.

Magistrates in Ipswich gave the two boys an absolute discharge. An attempt by their families to have the case thrown out failed at the high court last month. Lord Justice Kennedy said at the time that he could not interfere with the discretion of the director of public prosecutions and the CPS, but said that "even to think in terms of a prosecution was using a sledgehammer to crack a nut".

The incident took place in September last year outside the school all three boys attended in Ipswich. Caroline Bryant for the prosecution told the court there was a history of friction between the three, and that after being called the names of the Teletubbies by the Asian boy, the two white children decided to wait for the him outside school and "have it out with him". She said the Asian boy was called a "Paki bastard" and was tripped, punched in the back and shoved into a fence, before his parents happened to drive past. He was taken to hospital but was not badly injured.

But Stephen Ferguson, for the older white boy, said he had not used racial language. "The boy does not have an ounce of racial bigotry in him. In my estimation his understanding of racial issues is limited, and he has friends from different racial groups."

Mr Ferguson said the stress of the case had "emotionally and psychologically devastated him" and that the boy had started skipping school and had threatened to harm himself and to run away from home. At one point the boy broke down in tears and proceedings were halted for 10 minutes.

Criticising the decision to bring the case, Mr Ferguson said: "If this case is prosecuted then tens of thousands of 10- and 11-year-old boys are going to be filling the courts from morning to night. The schoolyard doesn't seem to be the schoolyard any more. The sooner this is all over and they are friends again the better." Nikki Millar, for the second white boy, said "It was a silly schoolyard spat and he should be allowed to carry on being a happy, carefree boy."

Lawyers estimate the cost to the taxpayer of bringing the trial could be up to £25,000.

Jayne Fiske, chairman of the magistrates, said: "It is not in the interests of justice for this to go on any longer."

The father of the older boy said outside the court that the matter could have been dealt with by police giving his son an informal warning.

The CPS said in a statement that lawyers had examined the history and nature of the case before deciding a prosecution on racially aggravated common assault was justified. CPS and police sources have indicated privately that there were concerns about racial harassment against the Asian boy's family.

From The Guardian

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Saturday, April 09, 2005


Just mention "child abuse" and all judicial principles fly out the window

The Secret of Bryn Estyn, the former children's home in North Wales that became the focus of one of the biggest child abuse scandals of recent years, is, according to Richard Webster, the very opposite to the version of events supplied by the police, the media, the courts and the government. In a 700-page book, the result of nine years of research, Webster claims that, far from being members of a 'paedophile ring', staff at the North Wales children's homes were the victims of a modern witch hunt and grotesque miscarriages of justice.

The bare bones of the Bryn Estyn story, also supplied on the Orwell Press website, are this. On 15 March 1992, 40 police officers arrested 16 men and one woman in and around Wrexham in North Wales. All but one had worked at Bryn Estyn, a care home for adolescent boys on the outskirts of Wrexham, which was closed down in 1984. According to reports which began to appear in the press in 1991, Bryn Estyn had lain at the centre of a conspiracy which supposedly involved the extensive homosexual abuse of adolescent boys by a paedophile ring, whose members terrorised their victims and subjected them to a regime of violence and brutality.

This triggered the largest child abuse investigation in Britain, which used a novel method of police investigation: trawling former residents of care homes for retrospective allegations. This method means that, instead of acting upon allegations of abuse made spontaneously by individuals, the police contacted those who were resident at the care home at the time of the alleged abuse.

The trawling method resulted in allegations from 650 witnesses, who accused 365 people of abusing them at homes throughout North Wales. When only six prosecutions followed, with only two new convictions for sexual abuse, the police and the authorities were accused of mounting a cover-up, with police officers said to belong to the very paedophile ring they were supposed to be investigating.

The story became a national scandal. A senior police officer, publicly accused of raping adolescent boys at Bryn Estyn, sued two national newspapers, a magazine and a television company for libel and won. However, rumours of a cover-up persisted; and in 1996 the government set up the largest Tribunal of Inquiry in British history, under Sir Ronald Waterhouse. In February 2000, the Tribunal made damning findings of extensive abuse in North Wales - although it did not find evidence of a police cover-up. By then, the police trawling operation which had begun there had spread to the whole of Britain. Police forces collected allegations against 5,000 former care workers and teachers, and hundreds were arrested.

What really happened? One purpose of Webster's book is to conduct his own investigation into the Bryn Estyn affair, providing a powerful counter-narrative to the officially endorsed story of widespread institutional abuse. Webster argues that, while there were cases of abuse at Bryn Estyn, and two former members of staff pleaded guilty to physical and sexual abuse respectively, many of the allegations of abuse, and particularly those related to supposed police cover-ups and paedophile rings, simply could not be true. Using an impressive volume of documentation and a tight chronology of events, the book details inconsistencies and implausibilities in many of the allegations, and points out the flaws in official procedures that prevented these from being identified. He concludes that the 'secret of Bryn Estyn' is that 'it was an ordinary community home where the majority of the staff did their best to look after the difficult adolescents in their care' (p579).

This investigation is compelling, and at times fascinating. But it is not the most significant aspect of the book. While Webster's writing skill makes the tome readable, what Webster terms 'the story of the story' is ultimately bewildering. Even when you make it through the mass of names, dates, and places, all of which are confused by the fact that Bryn Estyn closed in 1984 but the police investigation did not start until 1991, the gulf between the official version of events and the version uncovered by Webster's investigation is so wide as to be incredible. The more persuasive Webster's version seems, the harder it is to believe that official procedures came to such different conclusions. By page 581, when the appendices start, you are left not really knowing what to believe.

But that, in many ways, is the point. For in exposing the difficulties in attempting to prosecute for alleged cases of child abuse that happened in the past, The Secret of Bryn Estyn offers some undeniable truths. Allegations of child abuse, solicited from damaged young men by police officers and social workers actively seeking such allegations, should not simply be accepted as matters of fact. Changes in the law, which have sought to make prosecutions for child abuse more efficient and effective, make people highly vulnerable to being convicted as a consequence of false allegations. And these changes have taken place in a climate of insecurity and mistrust, which provides fertile ground for witch hunts of the most dark and dangerous kind. In these circumstances, not knowing what to believe is far preferable to accepting allegation as fact.

The police method of trawling for allegations of abuse that happened is based, it would seem, on a humane and commonsense notion: that children who are abused often do not report the abuse, with the result that their abusers can get away with it. If an adult later reports that they were abused as a child, it is even more difficult to prove the abuse, and convict the abuser. But by trawling the alleged victims' peers, who would have also been in contact with the alleged abuser, it is deemed possible to ascertain whether the accused is likely to have committed those crimes, or whether the individual complainant is making a false allegation. In short, the idea seems to be that if a lot of people claim to have been abused by the same person, they probably were.

Logically, this process seems to make sense. However, it is fraught with dangers. The fact that allegations of abuse collected by trawling are not made spontaneously immediately introduces the power of suggestion into the proceedings. This can be compounded by certain psychological theories to do with the denial of abuse by its victims and the need for 'disclosure'. This assumes that victims of abuse often initially deny they are abused, and therefore need to be prompted, or questioned several times, in order to disclose the 'truth' that they were in fact abused. It is not hard to imagine that individual police officers, working to build a case, can sometimes inadvertently steer their witnesses in a particular direction.

Major press coverage, with lurid stories of unimaginable horrors allegedly suffered by former care home residents, appeared at the time of the North Wales investigation. The offers of financial compensation to those who had been abused during their time in care could, one would think, easily sway young men with little money at their disposal towards making allegations when they might not otherwise - and how much more so when law firms realise the potential rewards of seeking compensation on behalf of those who could be victims.

All of this creates a situation ripe for false allegations of abuse - which, it should be stressed, often does not mean stories that are consciously or systematically made up. False allegations are fundamentally untrue. However, in a climate where individuals are continually confronted with the possibility they may have been abused and the awareness that their peers were allegedly abused, and when they are offered rewards for saying they were abused, they become highly suggestible, to the point where it is possible for them to believe that they were abused by a particular person in a particular way, even if it never happened in reality.

This is especially the case when dealing with such a vulnerable group as the former care home residents in North Wales. For the most part, these were young men with troubled backgrounds, who often ended up in care because of their brushes with the law and gained criminal records when leaving care. The significance of finding oneself suddenly on the other side, treated with respect by the police officers who would normally be arresting you, and hailed as a victim/hero, should not be underestimated.

As Webster writes: 'People who have previously felt overlooked and insignificant may suddenly find themselves the centre of attention, concern and sympathy. At the same time the idea that they are now engaged in a battle against evil, in which many other people, including counsellors and social workers, are fighting alongside them, can be a source of great emotional energy. It may give people both a raison d'etre and a feeling of strength and solidarity which they did not previously have.' (pp131-132)

This is not to say that police trawling operations, such as the one in North Wales, will solicit nothing but false allegations. Some allegations will be true. The difficulty lies in sorting which cases of abuse actually happened from which did not. But this is where Webster's criticisms of the legal process used to prosecute child abuse cases comes into play.

As Webster notes, different alleged offences are normally tried separately in order to protect innocent defendants against the presumption of guilt. However, in certain circumstances, if crimes are sufficiently similar they can be tried together under the rules governing 'similar fact' evidence - meaning that testimony about one crime can be offered as corroboration of another. Again, this makes a certain logical sense - and it is easy to see how, if somebody stands accused of indecently assaulting several children in a similar way a long time ago, to try the crimes together appears to be both an efficient use of resources and the only possible way to secure a conviction.

But what if the allegations are false? Focusing on the sheer volume of allegations of depravity against an individual must surely sway a jury in a particular direction, and when many allegations are being dealt with, the quality of the specific allegations comes under less scrutiny. A crime that, because of the lapse of time between the alleged abuse and the allegation, is necessarily a case of the defendant's word against the complainant's, is tried on the basis of a defendant's word against that of several presumed victims. At worst, this invites the possibility that false allegations are collected against individuals who are not guilty of the charges they face, and these false allegations are used as corroborative evidence that other false allegations are true. How can somebody hope to defend himself against that? ........

Residential care workers are not the only group to find themselves vulnerable in this climate. An excellent review in the Times Educational Supplement encourages teachers to read Webster's discussion of 'similar fact evidence' with care, as teachers too are 'potentially vulnerable to allegations'. Daycare workers, too, have found themselves accused of the most depraved acts, and been unable for several years to clear their names, despite acquittal early on by the criminal courts (see Child protection questions: Issues raised by the Lillie and Reed case, by Jennie Bristow). Where can this lead, except to a situation where we do not trust anybody to care for children without abusing them? Is this the kind of society that we want to create?

Introducing his book, Webster argues that 'of all of the misconceptions about historical witch hunts, perhaps the most important is the notion that they were driven forward by the common people - that they were based on the untutored instincts of the mob. This is the very opposite of the truth .[The witch hunts of the sixteenth and seventeenth centuries] were sent in motion not by ordinary people but by an educated elite consisting of bishops, ministers, magistrates and judges. Historically, indeed, witch hunts have always relied upon judges and magistrates, and on official inquiries, in order to maintain their power and authority' (pp9-10).

Occasionally, our society does worry that it is in the grip of a 'paedophile panic', and points to illiterate mobs on housing estates running intimidation campaigns against the local paediatrician. The Secret of Bryn Estyn reminds us that the real danger comes, not from the passionate mob, but from the higher echelons of the British state. However the North Wales children's home scandal started, in the end the protagonists were politicians, the police, and the law courts.

In the name of protecting children and punishing perverts, the state was able to embark on a crusade to cleanse society of an unspeakable evil, overturning core principles of truth and justice as it went, regardless of the wider damage this could cause to care workers around the country and those who had grown up in children's homes. And now, it takes a book like Webster's to force us to think what has become the unthinkable: that not every residential care worker is a paeodophile just waiting to get caught.

More here

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Friday, April 08, 2005


The former Supreme Court judge John Dowd has been lambasted by fellow judges for sitting on a case for 17 months and then delivering a judgement that was so bad it could not be allowed to stand. The NSW Court of Appeal yesterday said the delay was "inordinate" and even then "there was every indication it [the judgement] had been written in haste and under pressure". Mr Dowd, 63, who resigned in August shortly after qualifying for a lifetime pension, declined to comment yesterday. He is also a former attorney-general and state opposition leader.

However, David Rofe, SC, said that in 50 years at the bar he had "never been involved in a more unfair trial" and that Mr Dowd should be called to account. His clients - Peter Monie, his wife, Jennifer, and son, Samuel - sued the Commonwealth after a job seeker referred to them by the Commonwealth Employment Service shot Mr Monie on June 15, 1993. The man, Darren Winsor, was sentenced to 12 years' jail. He will be eligible for release at the end of this year. He had 43 earlier convictions for dishonesty, violence and other offences.

However, the then Justice Dowd rejected Mr Monie's personal injury claim and claims by his wife and son for nervous shock. There were 14 hearing days in Armidale and Sydney in June 2002 but it was not until December 2003 that judgement was delivered. Acting Justice David Hunt, with whom Justices John Bryson and Roger Giles agreed, said there had been "a substantial miscarriage of justice".

In December 2002 the Monies began expressing concern at the delay. From May they wrote twice to the Chief Judge in Common Law, James Wood, but seven promised days of judgement between July and October passed. A further appeal to the Chief Justice, Jim Spigelman, resulted in an assurance that November 26 would be the day. "I expect that on this occasion you will not be disappointed," the Chief Justice wrote in reply. The Monies were. It was only after another three missed dates that judgement was finally handed down on December 4, after being put back from 9.30am to 2pm and then 2.30pm.

Justice Hunt said the delay was "never satisfactorily explained" and "destructive to the quality of the judgement". "No confidence can be placed on the judge's findings of fact or rulings of law in relation to at least two principal ways in which the plaintiff's case on liability was put ... Many other findings by the judge have been demonstrated to have been insubstantially based in his judgement."

Mr Rofe said the Monies would now face a new trial at considerable cost. "I can think of nothing more distasteful to a client than nodding off. But what he [Mr Dowd] did was wrong. This judge was so bad he has to be asked to account for what he did." Mrs Monie said her husband was still suffering the after-effects of the shooting. She said the family was happy with the decision but declined to comment on Mr Dowd. "The judges have said their piece," she said.

(From here)

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Thursday, April 07, 2005


You are guilty unitil proven innocent in child-abuse cases. And no word of the false accuser being charged with perjury

Ii is a question as old as the act of protest itself: "What price justice?" In the case of David Luxford, the answer is easy; 96,586.14 pounds. That is how much Luxford's wife, Greer, spent in proving that he was wrongly convicted not once, but twice, of raping a 13-year-old girl. Luxford, a family man with no previous criminal record, was languishing in prison, sharing a wing with the paedophile and former music impresario Jonathan King, when it first dawned on Greer to "go private" for justice. If you could pay for a second opinion from a doctor or fork out on private education for your child, why not hire a team of detectives to investigate your husband's case?

Five months later, after almost three years' of incarceration, David Luxford was a free man when the private investigation proved that he could not possibly have committed the crimes of which he was convicted. It was an inquiry that highlighted how very differently things can turn out for a defendant when there are the resources to conduct an exhaustive investigation.

David Luxford had never imagined in his wildest dreams that his freedom would one day depend on the work of a gumshoe. Now aged 38, he was a postman living and working quietly in Orpington, Kent, when, in February 2000, he was accused by a 26-year-old woman of having raped her 13 years earlier. Greer, now 51, takes up the story. "We had been out one night and when we came home there was a piece of paper that had been slipped under the door asking David to contact the Police Child Protection Unit in Catford," she says. "There was no explanation and at first we were concerned that something had happened to our daughter, Sara." Sara, now 14, was away on holiday and the Luxfords were quickly able to establish that she was fine. The next day, Luxford contacted a friend in the police to ask what could be the matter. He was advised to take a lawyer with him when he went to see the child protection team.

When he turned up, frightened of the unknown, he was told that a woman - we shall call her Kimberley - had alleged that he had repeatedly raped her between 1988 and 1989. "I listened to what they had to say and I took it all in and then I just burst into tears," Luxford recalls. "It was as if my whole world had collapsed around me. I had done absolutely nothing wrong and here I was, 13 years after the supposed events, being asked to prove a negative. She had made all sorts of allegations against me and all I could do was say, no, I didn't do it. But from the very start, I got the impression that the police believed her instead of me."

After the interview, Luxford went outside and told Greer and his father, also David, what had happened. "I asked him straight away, `Did you do it?' and he said `No'," says Greer. "I believed him completely." The following July, after a five-day hearing at the Old Bailey, Luxford was convicted of two charges of rape and one of indecent assault. There was no medical evidence and no corroboration. The jury apparently believed that Kimberley was a better witness than Luxford. Sentencing was deferred for two months and then he was given a total of seven years in prison.

"It was her word against mine," he says. "But whereas she came up with all these very emotional allegations in great detail, all I could say was `I didn't do it'. When I was sentenced I tried to keep my composure but when they took me down to the cells I just burst into tears. I must have cried solidly for 12 hours. "I was taken to Belmarsh prison but I wasn't put on the wing with the sex offenders - the `vulnerable prisoners' unit' - so I had to lie about what I was in for. I claimed I'd been involved in postal fraud. If the other prisoners knew I was supposed to have raped a child, they'd have torn me to pieces. I lived in fear of being found out all the time. Eventually, I had to be housed on the same paedophile wing as Jonathan King. I think that was even worse."

In May 2001, some new evidence earned Luxford an appeal which resulted in three judges ordering a retrial. That took place in November 2001 but it was essentially a re-run of the first. "It went exactly the same way - no medical evidence, no other witnesses and the jury simply believing her word over mine," says Luxford. "I thought that was it. I'd just have to do the time

Greer, however, was having none of it. All along, she and Luxford had enjoyed the support of hundreds of friends and family who believed in his innocence. One friend in particular, Colin Richardson, suggested that they consider employing a private detective. Greer wasn't convinced but she had reached the point where she would try anything.....

Cooper and his team revisited all the evidence and began tracking down witnesses. With a few exceptions, Kimberley had alleged that all the sexual abuse had taken place around 4am before Luxford set off for work as a postman. "Timing was very important - I couldn't see how David could possibly have had time to carry out the abuse," Cooper says. "Greer testified that she set the alarm for 4am on her side of the bed. When it went off, she woke David up and went to make tea. He had to wash and dress for work, drink his tea and then walk to a certain point where he was picked up at 4.30am by a Post Office van. "I walked every route of that walk and we tracked down all the drivers who used to pick him up. Every one said he had never been late for the pick-up.

"Kimberley gave detailed statements which, in general, followed the same pattern. My colleagues and I re-enacted what she said took place - and it lasted 57 minutes. "But if David was never late, he was supposed to have got up at 4am, washed, dressed for work, had tea with his wife, walked to an alloted point and abused Kimberley for 57 minutes all in the space of half an hour. It wasn't possible. There is evidence that Kimberley had been infatuated with David."

Cooper and his colleagues also tracked down and interviewed former boyfriends of Kimberley's. One, who met her after the alleged abuse took place, gave evidence to say that she had told him she was a virgin. She had told the court she was a virgin before the alleged abuse took place, but another boyfriend gave a statement to the effect that he had had sex with her before the abuse began - a clear inconsistency.

On November 5, 2003, three Appeal Court judges ruled that Luxford’s conviction was “unsafe” and he was immediately freed.

(Excerpt from The Times)

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Wednesday, April 06, 2005


The judge who threw out the verdict on the basis of a technicality is the one most in need of censure. He acted like a robot instead of showing proper judicial balance. But the prospect of rich fees for his fellow lawyers is obvious. No wonder the lawyers want to put the victim through it all again. Decency is lost where sharks are concerned.

The gang rape case unravelled after it was revealed two rogue jurors had made an unauthorised visit to a Sydney park. Sitting on the gang rape trial of Bilal and Mohammed Skaf, the foreman and another juror wanted to check lighting conditions at Greenacre's Gosling Park, where the brothers allegedly raped a 16-year-old girl in August 2000. But jurors are banned from making independent investigations and their visit - the evening before the jury delivered its guilty verdict - eventually resulted in the brothers' convictions being overturned on appeal.

Bilal Skaf, now 23, was jailed for a record 55 years for a string of rapes, including that of the 16-year-old, known as Ms D. Mohammed Skaf, 21, was jailed for up to 32 years. But nine years and eight years were shaved off their respective overall sentences after their convictions for the Gosling Park rape were scrapped. Sentences for other rapes were not affected. The Skafs were to face a retrial later this month, but it was abandoned on Thursday because Ms D was too traumatised to endure another court ordeal.

The Director of Public Prosecutions, Nicholas Cowdery, said there was no hope of obtaining a conviction without her evidence and there was "potential for serious psychological harm" if she were forced to testify again.

But the NSW government is adamant the case will not end there. It is planning legislative changes that could allow the Skafs to be retried. Under current law, transcripts can be used in court if a witness has died, was overseas or was too ill to attend. The government wants to expand the legislation to allow the use of transcript evidence in retrials for sexual assault, in cases where a witness is too psychologically traumatised to give evidence again. Premier Bob Carr denies the planned changes are a knee-jerk reaction to the Skaf case, although the new laws could be applied to it. But even without a retrial, he said: "The Skafs are going nowhere". "They're still facing 46 and 24 years respectively in tough prison conditions," Mr Carr said.

However, the proposed changes have been criticised by civil libertarians and lawyers. NSW Council for Civil Liberties president, Cameron Murphy, said the amendments were "likely to result in yet another unfair trial". "If you're going to have a fresh trial, it needs to be a fresh trial, not a trial where you're using the same evidence as in the past trial," he said. The changes could turn proceedings into a "circus", he said, with a further round of appeals and quashed convictions. "It may well be that the government is just setting up the process for this (case) to fail again," Mr Murphy said.

NSW Law Society president, John McIntyre, said the proposed use of written transcripts in retrials was "fraught with danger and could have the unintended consequence of actually hampering a successful prosecution". Transcripts did not effectively convey the emotional impact of evidence, he said. On the other hand, transcripts could also disadvantage the defence, as the accused was entitled to have witnesses' credibility assessed by the jury. "Ideally, when you're on trial for such a serious crime as sexual assault and you're liable to life imprisonment, the accused is entitled to the fairest trial," Mr McIntyre said. "The fairest trial obviously involves, unfortunately, the victim giving evidence ... in person, in front of the jury." Mr McIntyre said it was inappropriate to use written transcripts and suggested evidence in sexual assault trials could be videotaped to avoid future problems.

But NSW Rape Crisis Centre manager Karen Willis said she failed to see why a retrial was necessary in the Skaf case. The alleged victim's evidence had already been tested in court, she said. "I don't see why the whole lot has to be thrown out and started again ... you throw the baby out with the bath water." It was understandable Ms D did not feel able to give evidence again, Ms Willis said. "She's quite young, and reliving that experience (of assault) in such phenomenal detail in that court environment is always really difficult," she said. "Five years after the event she may feel like she's starting to get her life back on track. "To then be put back through all of that again, she'd just be saying, 'There's too much pain involved and I can't do it.'"

(From here)

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