Tuesday, May 31, 2005


Only a $4,000 fine for fatal negligence causing thousands of deaths? Nobody brought to book for the negligence?

The Canadian Red Cross pleaded guilty Monday to distributing blood tainted with HIV and hepatitis C in the 1980s, and was fined $4,000 in the public health disaster that infected thousands. More than 1,000 Canadians contracted blood-borne HIV and up to 20,000 others were infected with hepatitis C after receiving the tainted blood products. About 3,000 people had died by 1997 and the death toll has grown, but recent estimates were not available.

"(The) Canadian Red Cross Society is deeply sorry for the injury and death ... for the suffering caused to families and loved ones of those who were harmed," said Dr. Pierre Duplessis, the secretary general of the Red Cross. In a public apology demanded by survivors of the victims and played via videotape in the courtroom, Duplessis said the charity accepted responsibility for "having distributed harmful products for those that rely on us for their health."

In exchange for the guilty plea and public apology, prosecutors dropped criminal charges against the charity, including criminal negligence and common nuisance.

John Plater, who contracted HIV and hemophilia from the tainted blood, said the plea offered a measure of vindication. "We (had) thought a terrible mistake had caused the worst public health disaster in this country's history and what we've heard today is: No, in fact, people broke the law," said Plater, who is also Ontario president of the Canadian Hemophilia Society.

In addition to the fine, the charity will set aside $1.2 million for scholarships for family members of those affected as well as a medical research project.

Federal prosecutor John Ayre said the fine was adequate given the Red Cross's status as a humanitarian organization, noting it no longer engages in blood collection or distribution. The Canadian Red Cross has already paid victims $55 million in a separate fund.

The proceedings Monday were separate from charges against Dr. Roger Perrault, former director of blood transfusion for the Red Cross. He is charged along with three other doctors and the New Jersey-based Armour Pharmaceutical Co. They are accused of criminal negligence and endangering the public for allegedly allowing Armour's blood-clotting product, infected with HIV, to be given to hemophilia patients. Perrault's lawyer has denied the doctor committed a crime.

Report here

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Monday, May 30, 2005

Man serving life for TV theft released from prison

Comparative justice was certainly not being done here

After 35 years in a North Carolina prison for stealing a $US140 television set, Junior Allen is finally a free man. Allen walked out of prison yesterday on his way to live with relatives in Georgia, ending a well-publicised case that saw the 65-year-old sit in jail while people convicted of murder, rape or child molestation were released. "I'm glad to be out," Allen told supporters outside Orange Correctional Centre. "I've done too much time for what I did. I won't be truly happy until I see a sign that says I'm outside of North Carolina."

Allen was sentenced to life in prison for second-degree burglary in 1970 for sneaking into an unlocked house and stealing a black-and-white television. At the time, he was a 30-year-old migrant farm worker from Georgia with a criminal history that included burglaries and a violent assault. The law governing his crime has since been changed, and the most severe penalty anyone can now receive for second-degree burglary is three years.

Rich Rosen, a University of North Carolina at Chapel Hill law professor who took up Allen's cause three years ago, said it shouldn't have taken so long for Allen to be released. "It's a shame it didn't happen 20 years ago," Rosen said. "But he's finally out. At least he's got some years left."

The Parole Commission decided last year to release Allen if he behaved and completed a transitional work-release program. He worked at a restaurant washing dishes and floors, and didn't break any prison rules during the past three years. He performed so well that he was released several months early - on his 26th try at parole. Allen will be supervised by Georgia authorities. His parole could last up to five years, meaning he could gain complete freedom by age 70.

Report here

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Sunday, May 29, 2005


This is a case where a black ran amok in public so the cops were probably justified in Tasering him. But the refusal to investigate the matter fully is unwise, to say the least

A year ago, a Lawrenceville deacon and father of four died after struggling with deputies and being shocked with a Taser at the Gwinnett County Detention Center.
Calling for criminal charges against the deputies involved in the scuffle, a crowd of about 100 people gathered Friday on the anniversary of Frederick Jerome Williams’ death to protest what they believe has been a miscarriage of justice. About 100 people marched around the parking lot of Gwinnett Justice and Administration Center demanding that District Attorney Danny Porter reconsider seeking criminal charges against deputies. A coalition of human rights organizations, including the Southern Christian Leadership Conference, the National Association for the Advancement of Colored People and the Rainbow PUSH Coalition, organized the rally. Among those picketing the courthouse were Williams’ widow, Yanga, and their children, ages 10, 8, 5 and 2.

The crowd urged Porter to convene a special grand jury that would review evidence in the case to determine whether any criminal charges are warranted against Gwinnett County sheriff’s deputies. Last month, Porter presented the case to the grand jury. However, grand jurors declined to view a videotape of Williams’ struggle with deputies at the Gwinnett jail and decided not to investigate the case. “We are here to take this worldwide,” SCLC national president Charles Steele Jr. told protesters. “Mr. Porter, we will shut this place down. If you don’t reconvene a grand jury, we are asking that you resign.” The human rights groups also called for a moratorium on the use of Tasers until more research can be done to determine if they are safe.

Porter’s decision to seek a civil inquiry by the grand jury April 27 drew criticism from Melvin Johnson, an attorney for Williams’ widow. Johnson said Porter reneged on a promise in January to seek criminal charges against three deputies for involuntary manslaughter. “I guess reconsidering the case meant he would empanel the grand jury and ask them if the county should be investigated for its Taser usage, not whether the deputies unlawfully killed Mr. Williams,” Johnson said last week.

Porter said he never told the Williams family he would seek criminal charges. Instead, Porter said, he advised Johnson and Yanga Williams that he would prepare evidence for all applicable charges for grand jurors to decide. Porter changed his mind and closed the state’s case after Johnson asked the FBI to investigate in January, saying that Johnson went behind his back in asking for an additional probe.

“(Porter) has chosen to handle the case not based on evidence or law but based on his personal feelings,” Johnson told protesters Friday.
Porter admitted he was angry at Johnson, but he said Johnson put the state’s case in jeopardy when he publicly criticized the investigation, prompting him to defer to the FBI and close his file.

More here

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Saturday, May 28, 2005


Most Westerners who know the case seem to think that the criterion of "beyond reasonable doubt" was nowhere near satisfied in this case, particularly as contemporaneous tampering with the luggage of other passengers by Australian baggage-handlers had been proven and the workers concerned disciplined

An Australian tourist was sentenced to 20 years in jail yesterday for attempting to smuggle more than 4kg (9lb) of marijuana into the Indonesian holiday island of Bali, concluding a trial that has gripped her country. Schapelle Corby, 27, a trainee beautician from Brisbane, was also fined 100m rupiah (£5,800), although the end of the verdict was barely heard as the sweltering courtroom, crowded with family, friends, holidaymakers and an army of Australian journalists, descended into pandemonium. Loud boos drowned out the cheers of a few anti-drug campaigners. Corby's mother, Rosleigh, stood up and shouted at the three judges: "Liar, liar. Honey, we are going to take you home." Corby, who fainted once during the trial and has had to be treated for stress, cried briefly but remained relatively calm, although clearly stunned by the verdict. She mouthed the number "20" in Indonesian several times and then turned and told her mother: "Mum, it's OK, it's OK."

Her plight has galvanised Australia into an unprecedented outpouring of public sympathy for an alleged drug smuggler after defence lawyers claimed she was an unwitting victim of gangs who employ airport baggage handlers to stuff drugs into luggage. It had been maintained that the drugs found in her unlocked surfboard bag were planted. The claim appeared to gain weight when it emerged that baggage handlers at Sydney airport had been involved in a drug smuggling ring that had been operating the day Corby flew to Indonesia.

Scores of people flocked to her defence after learning she faced the death penalty. A former mobile phone businessman, Ron Bakir, agreed to finance her defence, several websites were set up to campaign for her freedom, a lawyer regularly flew to Bali to help and the case has dominated radio chat shows. The vast majority of callers have been Corby supporters. One newspaper survey said 90% of Australians thought she was innocent. They included the film star Russell Crowe, who said the government should be doing more to secure Corby's release.

Corby was arrested last October when customs officers at Bali airport discovered the marijuana in her bag as she arrived to visit her sister, Mercedes Blake. The officials testified that Corby had refused to open the bag and then had tried to prevent them doing so. The former student, who gave up her studies to help care for her sick father, vehemently pleaded her innocence. Australia's media soon latched on to the case, with analysts pointing out that the clear plastic bag the drugs were in had not been fingerprinted and that her surfboard bag had not been weighed after being seized.

The country's government also intervened. It provided Corby with legal aid and allowed a prisoner, John Ford, to go to Bali to tell the court he had overheard two people in jail talking about the case and admitting they knew who put the drugs in the bag. Legal experts dismissed his evidence as hearsay upon hearsay, particularly as he could not name any of the people involved. Canberra is now lobbying for a one-off deal to allow Corby to serve her sentence in Australia. Authorities in Indonesia, where the case has generated little interest, have reacted coolly to the suggestion.

Both Corby's lawyers and the prosecution said they would appeal. The state had demanded a life sentence; the defence has already prepared its appeal against the conviction. Two QCs from Perth have volunteered to help with the appeal.

More here

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Friday, May 27, 2005


And the do-gooders who got him released are not a bit bothered by the latest deeds. Whatever he does is the fault of others. How many more little girls does he have to kill before they want to lock him up?

Lionel Tate, who was given a second chance after he beat and stomped a little girl to death when he was 12, was back behind bars Tuesday — exactly as some juvenile-justice experts had warned might happen. Tate, now 18, was charged Tuesday with holding up a pizza delivery man at gunpoint at a friend's apartment. "We had a real chance. The right thing would have been to get this young man some help," said Michael Brannon, a forensic psychologist appointed by a judge to examine Tate after the 1999 killing of 6-year-old Tiffany Eunick.

Tate made international headlines in 2001 — and touched off a debate over Florida's practice of prosecuting juveniles as adults — when he became the youngest person in modern U.S. history to be sentenced to life in prison. The hulking, 160-pound boy had claimed at first that he killed the girl while imitating pro-wrestling moves he had seen on television, then later said he accidentally hurt Tiffany when he jumped on her from a staircase.

His conviction and sentence were overturned on appeal in 2004 — after he had served three years in prison — and prosecutors gave him a plea bargain that that placed him under house arrest for a year, followed by probation for 10 years. Now, Tate again faces the possibility of a long stretch in prison, especially since a judge last October said he would have "zero tolerance" for probation violations after Tate was caught with a knife blocks from his home late at night.

Katherine Federle, director of the Justice for Children Project at Ohio State University, said that by the time Tate got out of prison, it may have been too late to save him. "Juvenile court systems and adult court systems have become extremely punitive," Federle said. "One reason is that it's politically easy to do that. But once we set off down that path, I don't know if there was ever any chance to rescue Lionel."

Back in 1999, Brannon examined Tate just after his arrest and concluded that while the boy did not suffer from mental illness or retardation, he had "a high potential for violence" along with "uncontrolled feelings of anger, resentment and poor impulse control." Brannon, who works at the Institute for Behavioral Sciences and the Law in Fort Lauderdale, recommended that instead of being sent to prison, Tate be placed in a juvenile treatment center and get intensive counseling. Instead, the boy was prosecuted and convicted as an adult on first-degree murder charges and received the mandatory life sentence prescribed under a new, tough-on-crime Florida law.

Bishop Thomas Masters, a minister and juvenile justice advocate, said that "it's very hard to come back to society" even for adults who have gone to prison. Children, he said, have it far worse. "A child is still a child," Masters said. "Because he commits a crime, that does not make him an adult overnight."

Tate, who had been been living with his mother, a Florida Highway Patrol trooper, was jailed without bail for a court appearance Wednesday. No one answered the door at the apartment Tuesday. In the latest arrest, police said Tate called for a pizza delivery from the apartment of a 12-year-old friend, then pulled a gun on the delivery man and chased him, police said. The delivery man threw down the pizzas, authorities said. Tate was also charged with forcing his way into the friend's apartment and roughly shoving the boy aside.

Report here

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Thursday, May 26, 2005


Another case of "verballing" (alleged confessions actually written by police)

A man who served 25 years for the attempted murder of a nine-year-old boy had his conviction overturned by the Court of Appeal yesterday. Paul Blackburn, 41, from Warrington, Cheshire, who was 15 when he was found guilty by a jury 26 years ago, was present in the London courtroom to hear three judges declare his December 1978 conviction unsafe. His lawyer said that he would be seeking a substantial sum in compensation. Lord Justice Keene, Mr Justice Newman and Mr Justice Walker had been told by Mr Blackburn’s barrister that he did not have a fair trial, judged by current standards.

Mr Blackburn was released on life licence in March 2003. The court was told that his detention had been “clearly prolonged” by his persistent assertions that he was wrongly convicted.

After his trial at Chester Crown Court, Mr Blackburn was sentenced to life detention and served 25 years in 18 prisons. He continued to protest his innocence. His case was referred back to the Court of Appeal for a fresh review by the Criminal Cases Review Commission (CCRC), the independent body which investigates possible miscarriages of justice. There was applause in court as a clearly emotional Mr Blackburn was congratulated by well-wishers after the ruling. He said: “I’m just pleased about what’s happened. I’d rather there had been other evidence that had helped me out but the CCRC deals with technicalities and I’ve had to be satisfied with that.”

He said of being in prison: “Life is made as tough as possible, as prolonged as possible, as painful as possible.” He said that a project was being set up to establish a retreat in Scotland where people who had been released after miscarriages of justice could start to rebuild their lives. He added that he had not been helped with rehabilitation and had “no comment” about the police officers involved in the case. “I don’t know if I can put this behind me. Everyone who has been involved in cases like this before has been so damaged. It takes a long, long time.”

Giving judgment, Lord Justice Keene said that the Crown had conceded that there was linguistic evidence now available which suggested significant police involvement in the wording of Mr Blackburn’s written admissions in July 1978. That called into question the credibility of both of the senior police officers who carried out the crucial interview and testified on oath that they sat quietly by while Mr Blackburn wrote his statement. Mr Blackburn should have been told of his right to consult a solicitor, the interview should have taken place at a police station and not at the approved school where Mr Blackburn was in care, and a parent or Mr Blackburn’s social worker should have been present.

Report from The Times

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Wednesday, May 25, 2005


An Adams County man imprisoned for 16 years for a murder he did not commit filed a federal lawsuit yesterday against the county, the state police and investigators, accusing them of lying and doctoring evidence to obtain the conviction. Attorneys for Barry Laughman, 42, of Hanover, charge in the suit that Laughman's wrongful conviction "is part of a persistent and troubling pattern of manipulating and falsifying evidence and testimony that exists and is condoned within certain law enforcement units of the commonwealth and the county." The suit, which seeks unspecified damages, names troopers John J. Holtz and Donald Blevins, state police chemist Janice Roadcap and four former state police commissioners as defendants, as well as Adams County and its district attorney's office. It charges that the commissioners and other high-ranking members of the state police knew the investigators would fabricate evidence and did nothing to stop it. "The aforementioned misconduct of defendants troopers Holtz and Blevins and Chemist Roadcap is consistent with a pattern of misconduct which has existed, been condoned and even encouraged within the PSP for at least the last 34 years," the suit says.

Laughman was convicted of raping and murdering Edna Laughman, 85, a distant relative, in 1987. His conviction was based largely on a confession obtained by Holtz, who claimed the mildly retarded man knew details of the crime known only to the killer. While Laughman's blood type is different from that of semen left on the victim, Roadcap offered explanations for the discrepancies. In later testimony, experts called her explanations "junk science." Both Holtz and Roadcap have been involved in other cases that were overturned.

The prosecution had sought the death penalty against Laughman, but the jury spared his life after former Adams County Judge Oscar Spicer told them they should consider the fact that the police had destroyed evidence that could have exonerated Laughman. DNA testing was in its infancy at the time, but Spicer gave the remaining samples to Laughman's court-appointed attorneys and left the case open. An attorney sent the samples to a Penn State University professor in 1994, but never followed up when the professor asked for a comparative sample. In May 2003, The Patriot-News traced the DNA to Professor Mark Stoneking, who was teaching at the Max Planck Institute for Evolutionary Anthropology in Leipzig, Germany. Stoneking had preserved the samples, and subsequent testing cleared Laughman. Laughman's attorney, William C. Costopoulos, said the DNA proves his client was railroaded. "I feel very strongly about the fact that we have proof of actual innocence in this case because of the DNA revelations," Costopoulos said. "My hope is to try to remedy what's been done to this innocent person."

The state attorney general's office, which must defend the suit, declined comment, saying it must review the complaint with the state police. State Police spokeswoman Trooper Lynette Quinn said her agency does not comment on pending litigation and had probably not been served with the suit yet. Adams County District Attorney Shawn Wagner, who was not in office during Laughman's prosecution and ultimately dropped the charges against him, also declined comment.

The suit lists other cases involving Holtz and Roadcap that were overturned, including the case of former Upper Merion High School principal Jay C. Smith, who was released from death row in 1992 by the state Supreme Court, and Steven Crawford of Harrisburg, who has a similar suit pending against Roadcap and the state police for allegedly doctoring evidence in a murder case that left him behind bars for 28 years until his release in 2002.

After his release in November 2003, Laughman returned to his job as a laborer at a fertilizer company where he had worked before his arrest. The boss gave him his job back, saying no one in the community ever believed he was guilty.

(Report from here)

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Tuesday, May 24, 2005


James Driskell has recovered his innocence. Now he's looking for accountability. The 46-year-old Winnipeg man spent more than 12 years in prison because forensic scientists made mistakes and witnesses lied. And for more than a decade, Manitoba prosecutors concealed evidence that two key witnesses were paid more than $80,000 and given immunity and housing deals in exchange for testifying against him at his trial.

Driskell always insisted he was innocent of the 1990 murder of his friend, Perry Dean Harder. Yesterday, his case took what his lawyer described as an "exhilarating" turn, when federal Justice Minister Irwin Cotler quashed Driskell's first-degree murder conviction and ordered a new trial, saying "a miscarriage of justice likely occurred." Cotler went on to detail repeated and "serious" breaches of the Crown's duty to disclose evidence in the case. The two key witnesses "likely committed perjury" but that was never disclosed to Driskell's lawyers, he said. And a DNA test has discredited hair evidence that was at the heart of the Crown's case.

Almost immediately, Manitoba Attorney General Gord Mackintosh announced the province would not re-prosecute and was instead staying charges against Driskell and setting up a public inquiry. Hobbling on a leg broken in five places — a mishap that occurred during an auto repair — Driskell, a father of eight, said he was "shocked" everything came to such an abrupt end. But the questions have really just begun.

"I'm glad it's over, but my main concern still remains that I'd like to see someone accountable for this, because I've spent the last 15 years being told I have to be accountable — I have to admit this, I have to admit that," Driskell told the Star in an interview from Winnipeg. "Now that the whole, general public knows there was information hidden and stashed in the corner somewhere and not turned over to defence lawyers, someone has to be answerable for that," he said. "It hasn't only happened in my case. It goes back to Tommy Sophonow, David Milgaard and Guy Paul Morin."

Mackintosh said he's also looking for accountability. "These are very difficult matters and this is very troubling and disturbing," he told the Star. "And yet, you know, the positive aspect is there have been revelations in this case that can provide justice." Mackintosh said he will be considering the names of potential inquiry commissioners over the next few weeks and consulting with the Toronto-based Association in Defence of the Wrongly Convicted on the terms of reference for the probe.

Depending on the timing, it could mean three inquiries will be running simultaneously into miscarriages of justice in Canada. An inquiry is currently underway in Saskatchewan into Milgaard's 1969 murder conviction and another is examining three wrongful murder convictions in Newfoundland. It will also be at least the sixth Canadian inquiry into a wrongful conviction. "It's been going on and on and on," Driskell said yesterday. "This can happen to absolutely anybody, and it seems there are no checks in place." .....

Driskell was convicted by a jury on June 14, 1991 and sentenced to life in prison, with no chance of parole for 25 years. He lost every appeal. Five years ago, he approached the Toronto-based association. "We took this case, we shook it and we won it," said James Lockyer, Driskell's lawyer and one of the group's founding directors. "We put it in the wringer, turned it upside down and all these coins fell out." The association met with Manitoba justice officials in 2000 and asked them to release trial exhibits for DNA testing. Two years later, the province agreed and paid for tests, which showed the three hairs in the van did not belong to Harder.

Lockyer and the association pressed Manitoba justice officials to disclose other evidence still sitting in government files. They discovered that Zanidean and Gumieny received "tens of thousands" of dollars in exchange for their testimony, Lockyer recalled this week. Zanidean, in particular, was paid nearly $83,000, including a $20,000 lump sum payment to move to Alberta. Manitoba justice officials also took over his mortgage payments. Saskatchewan justice department officials had urged their Manitoba counterparts to disclose the deal to Driskell's trial lawyer, Greg Brodsky. But it would be 10 years before Brodsky learned of payments or deal.....

After DNA results were obtained in Driskell's case, Driskell's lawyers obtained his release on bail, pending yesterday's decision by Cotler. Driskell had asked Cotler to review the case using his powers under sec. 696.1 of the Criminal Code and was only the second federal prisoner to be set free while the review was ongoing.

More here

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Monday, May 23, 2005


Rep. Ross Paradis, D-Frenchville, has introduced LR 2115, a legislative resolve that urges Attorney General G. Steven Rowe to back a new trial for Dennis Dechaine. This bill is a response to the latest red herring thrown in the path of justice by Rowe's staffers, who claim that the mysterious male DNA found under Sarah Cherry's thumbnail may have come from a dirty crime-laboratory clipper. This tactic is consistent with the state's stubborn position that Dechaine is guilty no matter what the evidence shows.

From day one of this case, tunnel vision, triggered by rumors, has guided the actions of police, prosecutors and the press. Alternate suspects were ignored; evidence was overlooked, lost, and some -- hairs and the rape kit -- incinerated even after an appeal had been filed. Damning police testimony apparently was "juiced up." Crucial evidence was concealed from the jury.

Rowe has appointed a panel to review the his staff's conduct, but its findings will not address guilt or innocence and will have no bearing on Dechaine's motion for a new trial, now postponed until next fall, thanks to the dirty clipper caper.

The job of the Office of the Attorney General is to convict the guilty and protect the innocent, not the reverse. LR 2115 urges Rowe to back a new trial in which all the evidence -- at least, that evidence that his office has not lost or destroyed -- is heard by the jury. Rowe enjoys the best of reputations. He should now live up to his good notices by fulfilling his responsibilities to justice

(Report from here)


A teenage girl apparently tried to kill herself the day after a Melbourne judge ordered her to justify in front of her father - who faces incest charges against her and her brother - why she did not want to testify in his presence. Judge Leo Hart ordered the girl, 16, and her brother, 14, to appear in open court with their father in the dock to explain why they wanted to give evidence televised from outside the courtroom. The girl became distressed and said she was going to be sick under Judge Hart's pre-trial questioning earlier this month in the County Court. Covering her face with her hands so as not to see her father, the girl told Judge Hart she could not breathe because she felt uncomfortable and nervous. The judge earlier told her brother, when he said he felt uncomfortable, that "I can understand uncomfortable, but that's not good enough".

A barrister for the Department of Human Services told Judge Hart before he questioned the girl that she was an "extremely vulnerable young woman" whose mother had committed suicide in 2003. "(She) has a very troubled background and many fraught experiences over the past five years which have led to serial and sustained departmental intervention in relation to her welfare," Dr Ian Freckleton said. The children's request to testify using the remote witness facility was applied for by prosecutor Ian Heath. The request was supported by the defence. Mr Heath said the witnesses felt they could not do "justice" to their evidence in open court while being able to see their father.

Judge Hart responded that "ideally a jury should have a witness right here in front (of) them, where they can see the person in real life, reasonably close up and can not only listen but can watch and see and observe, and so on. "I think in that way a jury is best able to assess the credibility or reliability, or whatever you like, of a witness," he said. He described the use of the remote witness facility as a "second-best practice". Judge Hart asked the girl if she wanted to give evidence from another room, and she replied: "Yes, please." Asked why, she said: "Because I can't do it here." "Why not?" Judge Hart asked, to which she replied: "Because I think I'm going to pass out. I can't do it with all these people in the room. I want to do it by myself."

After she left the courtroom, Judge Hart said that to let the girl give evidence as she wished, "I've got to be satisfied that was all genuine". He said: "I'm not saying it wasn't, but I, of course, can't see her now outside there (the courtroom). "I don't know what she's like normally, I don't know whether this is for the occasion or not. The jury won't have the opportunity to assess all of this if it's done by remote." He reluctantly granted the children's request because he worried that a "repeat performance" - a word he used "without connotation" - by the girl was likely to abort the trial.

She then gave about an hour's evidence, denying a defence suggestion she had made up the allegations, before the court was adjourned. When the trial resumed the next day, Mr Heath said the girl had grabbed the steering wheel of a car being driven to court that morning by a social worker. Judge Hart was concerned there was a "grave risk" the girl would "break down again" and, in her state, to continue with her evidence would add or repeat the stress that caused the car incident. He later discharged the jury without verdict.....

The case comes after the announcement of new Victorian laws to protect sexual abuse victims in court.

(Report from here)

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Sunday, May 22, 2005


A former Lodi man whose conviction was tossed out of court after he served 10 years in prison for a crime DNA later showed he did not commit, has filed a claim against the city of Lodi. Peter Rose was convicted of raping a 13-year-old girl in 1994 after the alleged victim named him as the man who grabbed her from behind and dragged her into an alley behind the 400 block of Eden Street. In 2004, the girl later admitted she had no idea who raped her, and DNA evidence later cleared Rose of the crime. He was released from Mule Creek State Prison in Ione after a San Joaquin County judge tossed his conviction in October 2004.

Rose's three children have also filed claims against the city. In his claim, usually a precursor to a lawsuit, Rose alleges that members of the police department used interview techniques that "were so coercive and abusive" to the alleged victim that the interviewers should have known "the techniques would and did yield false information," including the identification of Rose as the perpetrator.

Rose, now 37, also alleges members of the police department "deliberately concealed evidence" they should have known would clear Rose's name and "pressured and coerced" others involved in the investigation to "alter and suppress exonerative evidence," according to the claim.

Transcripts from a portion of a police interview with the alleged victim, now 24, indicate the girl adamantly denied knowing who had attacked her. The News-Sentinel is not naming her since she was sexually assaulted. "I'm telling you I don't know who it was," the girl told police detectives Matt Foster and Ernie Nies, according to the transcript.

Both Foster and Nies are named in Rose's claim. It also states Rose was unable to have normal interactions with his children, family and friends and missed out on family events and business opportunities as result of the wrongful conviction and subsequent jail time.

Rose seeks from the city damages in excess of $25,000. The date of loss is listed as Feb. 18, the date the order of exoneration was entered. The city, however, did not receive the claim until April 28. Claims filed by Rose's children each seek damages in excess of $25,000 because the children were denied the right to associate with their father as result of the wrongful conviction. All four claims are scheduled to go before the Lodi City Council at its meeting Wednesday. City staff has recommended the council deny the claims, which is a routine action.

(Report from here)

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Saturday, May 21, 2005


The usual dishonest police

There’s the old cliché ... that it ‘hasn’t sunk in yet’… Let me tell you: It has sunk in. I knew for years that this day would come. I don’t get excited by things very easily, after what I’ve had to endure, so I am dealing with it like I deal with everything else, calmly …" Barely 90 minutes after being freed by the Court of Appeal, Robert Brown, one of Britain’s longest-serving prisoners, who has protested his innocence for 25 years, sits in a fashionable London club looking relaxed and cool. His biggest problem is simultaneously eating his Kentucky Fried Chicken and fielding calls from well-wishers. Two TV crews are waiting for him and a radio satellite link is hooked up on the roof of the building he’s in, waiting on his comments. The sudden media interest in his case both pleases and rankles him: "Where were you years ago?" he asked reporters when he emerged from his cells in the Appeal Court. "There’s more like me still inside, please go and listen to them …"

Three-quarters of an hour earlier at exactly 11:54am, Lord Justice Rose, sitting alongside two other judges, announced at the end of an hour-long finding: "This verdict cannot be regarded as safe. We could not possibly be sure on what we have heard that the jury, had they known what we know, would have reached the same verdict. It is, to put it at its lowest, a possibility that they might have reached a quite different verdict."

Suddenly, Robert Brown’s quarter-of-a-century nightmare came to an end. The stain on his character that said he was the murderer of a 51-year-old woman named Annie Walsh from Manchester, in January 1977, was gone. His reaction, he says, was: "Disgust. The judges didn’t even look at me. They didn’t apologise to me. They only said the conviction was unsafe. How am I supposed to react to that? Am I supposed to be pleased. Yes, I am pleased I am free. But still …"

The court had heard a sorry tale of police corruption, denial of basic legal rights, physical violence and non-disclosure of evidence during the 1977 investigation and trial. It was shocking, deeply disturbing stuff. But for Robert Brown it all had a familiar, appallingly tragic ring to it. He sat, a middle-aged man, listening to the same material that he had as a fresh-faced young 19-year-old nearly three decades ago. "I should never have been convicted in the first place." he says.

Robert Brown was living in the Hulme area of Manchester in 1977 when in January of that year a local factory worker, Annie Walsh, was found brutally murdered in the flat where she lived alone. She’d suffered multiple lacerations to the head. Detectives from Greater Manchester Police were so worried about the frenzied nature of the murder that they scoured local mental units in case a violent patient had escaped without notice.

What they did have was a tenuous eyewitness who claimed she’d seen Annie Walsh with a man who had either a Scottish or Irish accent, was in his 30s and had a scarred upper lip, on the day she was presumed to have been murdered. Within two months detectives traced a man with this description, arrested him and placed him on an identification parade. The eyewitness was brought in and picked this man out. Later, after his clothes were forensically examined, a link between his clothes and a fibre found at the scene of the crime connected him to the murder. But, inexplicably, no charges were ever brought against the man, named Robert Hill.

By May 1977 Robert Brown, then unemployed and living with his 16-year-old girlfriend Cathy Shaw, had been arrested for the crime. He was beaten at the time of the early morning arrest, never read his rights, then abused physically and mentally during the next 32 hours of interrogation. When he asked for a lawyer a detective told him, "only guilty men ask for lawyers". By the end of the interrogation he cracked and signed a bogus confession.

The confession document itself was the only plank of evidence of any value presented at court when the case came to trial in October 1977. The judge presiding over the trial accepted that the main eyewitness who’d placed Annie Walsh with the man on the day of her death was unreliable - she’d been taken through three separate ID parades, picking out one man in March 1977, then another featuring men with beards, before finally picking Brown out with the doubtful words: "He’s the only one that looks like … [him]" Later eyewitnesses who claimed Brown had visited them with blood on his clothes that weekend were shown to be unreliable because they constantly changed their accounts. No forensic evidence was ever found linking Brown to the scene of the crime.

But the judge did, inexplicably, allow a pair of heavily bloodstained jeans to be shown to the court. These had been shown to Brown during questioning with the insinuation that they belonged to him and were worn when he’d killed Annie Walsh. Upon seeing the bloodstains on the crotch Brown had reportedly broken down and wept. It was known at the time of the trial however that these jeans actually belonged to a woman unrelated to the case who’d been wearing them when she suffered a miscarriage.

Mr Justice Milmo, the judge sitting in the Annie Walsh murder trial, told the jury in his summing-up that the "principal issue" they’d have to deal with was whether they believed Brown or the police detectives who said he’d confession without pressure. The jury chose to reject Brown’s pleas of innocence and instead believe the policemen. What none of them knew however, was that crucial forensic evidence had been withheld from Brown’s defence team. No-one had told them about the fibre linking the March 1977 suspect to the Walsh murder scene. Nor did they know that forensic documents had been altered by another senior detective to dilute the connection between the first suspect and the murder even further.

Even more damning was the presence of DI Jack Picton Butler, a senior investigating officer who’d played a major role in every aspect of the case. The jury was not aware that he’d already committed criminal acts of corruption and perverting the course of justice in between 1973 and 1975 for which he’d later be sentenced in exactly the same court in Manchester in 1983. Nor were they aware that the entire Manchester CID were under suspicion at the time for committing an array of illegal acts centring on their use of a local brothel where they mingled with local underworld figures. Later they’d all feature heavily in the Topping Report into corruption in the Greater Manchester Police.

The three areas the Appeal Court focused heavily on were the non-disclosure of the fibre evidence, the linguistic analysis showing Brown’s confession was not valid, and in particular, the involvement of DI Jack Butler whose name constantly cropped-up in the still PII (Public Interest Immunity) certificate-protected Topping Report. Such was the sheer weight of the case against the original verdict even standing that within 18 minutes of the hearing starting at 10:30am on Wednesday, the Crown Counsel, Julian Bevan QC, was on his feet manfully explaining that he had no fight to fight. In legal terms he explained that he was, to all intents and purposes, throwing the towel in.

Sitting behind bars in the dock, Robert Brown, who’d prepared most of his adult life for this moment, was taken by surprise at the speed of the cave-in. "I was quite stunned by it after reading the skeleton arguments from the Crown because obviously the Crown in those were saying it was safe … I think the Topping Report was the nail in their coffin. I have to admire Bevan as a man because he could have fought on every point but he never. He gave up and never fought - he folded - then I thought that Judge Rose was going to put my QC Ben Emerson through the wringer and have to get up and prove to the Crown the conviction was unsafe. It was quite refreshing actually, it put my faith back in the truth - but not the justice system. I think it’s in a bad, bad way. I think there’s good intentions but it’s in a hell of a state. When you consider that they had that documentation that could have cleared my name for almost 20 years, and didn’t disclose it, that must have been lying somewhere, the Crown must have known that it was in existence."

All of this must have come as a disappointment to two detectives from Greater Manchester Police who were present throughout the case yesterday. "I smelled them. They were staring at me …" says Brown in disgust.

Within minutes of the verdict announcing Brown’s conviction had been overturned, Greater Manchester Police issued a rapid damage-limitation press release explaining they’d co-operated with the Court of Appeal and that new procedures meant corruption was a thing of the past. No mention was made of re-opening the Annie Walsh murder inquiry. Nor was any mention made about possible prosecutions involving officers from the original case......

More here

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Friday, May 20, 2005


Mental health campaigners have called for a review of the system for releasing mental health patients after a paranoid schizophrenic was convicted of killing a policeman. Birmingham Crown Court ordered Glaister Earl Butler to be detained indefinitely under the Mental Health Act yesterday after he stabbed to death Detective Constable Michael Swindells, 44, on a canal towpath near Spaghetti Junction last May. Butler, 49, who had a history of mental illness and violence and was known to harbour paranoid delusions about the police, MI5 and the security services, was cleared of murder but convicted of manslaughter on the ground of diminished responsibility.

The Jamaican-born mechanical engineer, who joined Rolls-Royce in 1979 as the company's first black graduate trainee, was under the supervision of a community care team from the Birmingham and Solihull Mental Health Trust when he stabbed DC Swindells, a father of four who had 14 years' police service. Butler had been released into the community by a three-person tribunal.

In court, Timothy Raggatt QC, for the prosecution, questioned why Butler was released into the community. The jury also asked the judge, Mr Justice Calvert-Smith, in a note read to the court: "By what process does a three person (mental health) tribunal decide if he's safe to be released into the community?" The judge said it was a "what if"" and "if only" type of question that many people would raise, but he explained that it was not a matter for the trial.

The stabbing happened when Butler was being pursued by police on May 21 last year after earlier threatening to decapitate a council carpenter who had gone to fix his fence.

West Midlands police were sent to detain him, but he ran away, ignoring their shouts to stop and appeared unaffected when sprayed with CS gas. DC Swindells was two to three feet behind him and had shouted, "Stop, police!" when Butler swung round and stabbed him. Butler was hit in the back with a baton round from armed officers before finally being stopped.

Last night, Marjorie Wallace, chief executive of the mental health charity SANE, said that the system of mental health tribunals, which enabled Butler to be discharged into the community, needed to be reformed. Ms Wallace said: "The tribunal system has failed time and again. Sometimes they go against the wishes of medical officers and frequently they take no heed of what patients' families say."

Michael Howlett of the Zito Trust, added: "All that tribunals have is a snapshot of what a patient is like on a particular day, and that is not enough." Mr Howlett said that mental health workers needed to be given more discretion in the way they handled patient confidentiality, so that they could warn the police if suspects had a history of mental illness and violence.

When police called the health authorities for information about Butler's history on the day of the stabbing they were wrongly told that he was not known to be aggressive or violent.

Sue Turner, chief executive of the Birmingham and Solihull Mental Health Trust, said that there would be an internal inquiry into the case as well as an independent inquiry.


Peter Bryan, who became known as the cannibal killer after he cooked and ate the remains of one of his victims, committed two murders after a three-man mental health review tribunal agreed in January 2002 to release him from Rampton Special Hospital, Retford, in Nottinghamshire, where he had been detained for killing a woman.

John Barrett was conditionally discharged by a mental health review tribunal in October 2003 and was being cared for in the community when he stabbed to death Dennis Finnegan, a former banker, who was cycling in Richmond Park, southwest London.

Anthony Hardy was jailed for life in November 2003 after he admitted murdering three prostitutes, less than two months after being discharged by a panel of lay people from St Luke's Hospital in Muswell Hill, North London, despite repeated warnings from psychiatrists that he was a danger.

From The Times

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Thursday, May 19, 2005


Western Australia's Supreme Court Chief Justice aborted a trial yesterday after making a string of factual and legal mistakes in his summing-up to a jury, including confusing dates relating to the alleged murder. The embarrassing decision to discharge the jury comes 14 months after judge David Malcolm was criticised by the High Court for making basic factual errors in an appeal judgment. In an interview two months later, Justice Malcolm - one of the nation's most respected jurists - said mistakes were a symptom of undue pressures on judges. The bungle will fuel the debate over the competence of judicial officers and the mechanisms for reviewing their performances.

Late last year, NSW Supreme Court judge Jeff Shaw, 55, resigned after admitting he had an alcohol problem. NSW District Court judge Ian Dodd had complaints against him upheld after allegedly falling asleep at the bench and was later revealed to have been suffering from chronic sleep apnoea. In Tasmania, Family Court judge Michael Hannon came under fire for taking up to four years to deliver decisions.

Justice Malcolm yesterday discharged the jury near the conclusion of the murder trial after lawyers raised concerns he had presented a muddled version of facts. Their concerns also included Justice Malcolm making incorrect statements about the sequence of events leading up to the alleged murder, an inadequate direction on the alternative verdict of manslaughter available to the jury and misleading statements about the prosecution case. It was also submitted that at one stage of the directions, Justice Malcolm said the words "not guilty" of murder when he should have said "guilty".

Defence counsel Richard Utting submitted that a re-direction to the jurors could not remedy the errors. "Your honour, I rise with reluctance - I don't think a redirection is going to cure the problem," Mr Utting said. "I think there is a danger it will simply further confuse the jury. "I have done a lot of trials and I just think this one has run off the rails and I don't think it can be corrected. "It is a step I take with reluctance for my client, who has now been in custody for some 14 months, but I feel that it can't go further."

Mr Utting's client, 27-year-old Bradley James Mawdesley, is alleged to have killed Dale Dunstan, a friend of his ex-partner, by running him over with a car in March last year.

Justice Malcolm started delivering his summation to the jury on Monday after three days of evidence, but Mr Utting and prosecutor Dave Dempster raised multiple concerns about his directions the following day. Justice Malcolm - a 67-year-old Rhodes scholar and chief justice of the Supreme Court since 1988 - immediately recognised it would be difficult to redirect the jury given the totality of the concerns raised. Yesterday, Mr Dempster acknowledged Justice Malcolm's charge to the jury contained mistakes but said the errors could be remedied by giving fresh directions. Justice Malcolm conceded it was a serious step to discharge a jury at such a late stage in the trial, but said he gave weight to the submissions of Mr Utting, a senior criminal lawyer. "In order that there be no shadow of a doubt over the fairness of the trial, the proper course of conduct, notwithstanding the prejudice to your client, would be to discharge the jury," Justice Malcolm said.


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Wednesday, May 18, 2005


The lawyer for a Chinese-born Australian wrongly held in a detention centre has warned overseas-born Australians to carry proof of their citizenship at all times. Sydney solicitor Nick McNally said his client, whom he identified only as "Howard", was held for three days at Sydney's Villawood detention centre in 2002 despite showing immigration officials a valid driver's licence. The man's girlfriend and three-year-old son were also held for 48 hours at the centre.

The case follows the wrongful deportation to the Philippines of Australian woman Vivian Alvarez, who says she was kicked out of the country after she was unable to prove her citizenship. Mr McNally, who has filed a civil lawsuit, said Howard showed the officials his driver's licence, Medicare card and proof of employment but did not have his passport on him at the time. He was freed only after a lawyer took his passport to the immigration department.

Mr McNally issued a warning to overseas-born Australians. "If you're not obviously not someone from overseas you need to carry conclusive proof of your citizenship status at all times," he told ABC Radio. "Howard was carrying his driver's licence which was not regarded as good enough and if you need some stronger proof of your identity the next thing in line is a passport."

Mr McNally said legal action was the only option available after his client's rights were infringed. "At the end of the day there are fairly limited ways of keeping the government accountable. How does one really hold the authorities accountable if your rights are infringed other then to bring it to the courts?"

Mr McNally said Howard's girlfriend from China, who had overstayed her visa, was later deported. He said he would not object if Howard's case was investigated under by the inquiry into immigration bungles, which is looking at the Alvarez case and that of Cornelia Rau. Ms Rau, a German-born Australian resident who has schizophrenia, was mistakenly detained as an illegal immigrant for 10 months.


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Tuesday, May 17, 2005


On December 20, 1973, about 1:00 p.m., Gwen Jones (now Gwen Baird) was working at the Harbor Wig and Record Shop at 129 E. Main in Benton Harbor, Michigan. A black male entered the store wearing an army-type fatigue jacket and black stocking cap, and began looking at records. He asked Jones about a record by Ahmad Jamal. She detected the odor of alcohol. At that point, off duty Officer Thomas Schadler and his wife Ruth entered the store. Mrs. Schadler, after inquiring about a tape of Christmas songs by Elvis Presley, was looking at earrings, and Ms. Jones heard a conversation between Schadler and the black male. Shortly thereafter, she heard shots, and saw the black male shooting at Officer Schadler. Officer Schadler was seriously injured in the incident.

Investigating officers found no useful prints. Gwen Jones described the gunman at 5'9" to 6' tall, dark skinned, heavy set with broad shoulders, and with an accent to his voice. She said she will never forget his face. When officers showed her some photos, they kept stressing the photo of Maurice Carter, who was light skinned. Jones told them it was not Carter, and that she had waited on the man for about 15 minutes and was quite certain. However, she did identify another photo as looking a lot like the shooter. That was a photo of a Mr. Meridy.

Tom Schadler told investigators he did not know who was the assailant, and that he "did not get a description." He said he paid little attention to the man, but that he was 5'10" or 5'11", wearing a green fatigue coat. Mrs. Schadler could only say that she didn't realize what was happening until her husband pushed her to the floor. She said that she didn't pay much attention to the gunman while he was in the store, but he was left-handed, heavy build, approximately 5'8" tall. Maurice Carter is 6'1" tall, right-handed, slim to medium build.

After the shooting, Officer Larry Morrow went to the Ponderosa Bar and picked up Maurice Carter, who was wearing a grey overcoat with a black fur type collar. He falsely told Carter that he matched the description of the perpetrator. Carter had no weapon, or any of the clothes described by the witness. He was brought to the shop, where Gwen Jones told them he was not the man. After hours of questioning, police released Carter.

Two years later, Wilber Gillespie, a former associate of Carter, was arrested on drug charges. Because of his record, he was subject to being imprisoned for life. After police had informed him of their interest in Carter, as part of a plea bargain, and in exchange for $5000 reward money, he signed a statement and told police that Maurice Carter had done the shooting, and he had seen Carter running away from the vicinity of the shop. He testified to this at Carter's preliminary examination. Later, the Berrien County Prosecutor's Office prosecuted Gillespie for perjury because of his testimony against Carter. Gillespie was convicted and sentenced to prison for 15 to 30 years for perjury against Carter.

After Gillespie's statement to police, Carter was arrested January 5, 1976, and police photographed him and provided his photo to reporters. On January 6, 1976, his photo appeared on the front page of the local newspaper, the Benton Harbor-St. Joseph Herald Palladium. Then, a lineup was held on January 13, 1976. Both Schadlers identified Carter, even though they denied any ability to identify anyone after the shooting. Oddly enough, Gwen Jones was not invited to the lineup.

Carter's court-appointed attorney, James Jesse, never objected to an identification made after Carter's photo was on the front page of the paper. Jesse never got police reports about the case. Discrepancies in height, complexion, facial hair, clothing, and left or right handedness were not inquired into by Jesse at trial. Jesse was unprepared because he did not have the police reports and witness statements. None of the statements made by the Schadlers after the shooting, where Mr. Schadler denied any ability to identify, and where Mrs. Schadler described someone who clearly was not Maurice Carter, was ever heard by the jury.

Nancy Butzbach, a white employee of the Berrien County Prosecutor's Office, told police she was looking out the window of her second floor office, a half-block away, and caught a "fleeting glimpse of a black man." By the time of trial, this fleeting glimpse evolved into a full scale identification, based largely on her identification of the shape of the nose of the man.

An all-white jury convicted Carter, even though Berrien County has many black citizens legally eligible to serve on juries. Three blacks, all that there were on the panel, were dismissed from serving before they ever got to the courtroom. One was Clementine Brown, an employee of Michigan Bell, then the phone company in that area. Bailiff Edwin Bartz testified at a hearing that Clementine Brown was excused by him because Michigan Bell said she was vitally important to their operations and requested that she be excused from serving.

However, Brown testified that she was a low level statistical clerk, easily replaced. The company in fact excused her from working, and she showed up at the courthouse to serve as a juror, only to be turned away. Harold Hewitt, regional manager for Michigan Bell, said that it was company policy to encourage employees to serve on juries, and all requests to serve on juries would be decided by him personally. However, a Mr. Donald Quick, a lower level Michigan Bell employee and father of two local police officers, and personal friend of the judge on the case, Judge Hammond, said that he told authorities that Clementine Brown could not be spared a few days to serve as a juror. Quick had first told investigators that Hewitt was right, but that Carter was "guilty as hell." Quick, who told investigators that he was prejudiced against "criminals," wanted to know about Carter's criminal record before deciding what story to tell.

Carter was sentenced to life in prison for assault with intent to commit murder. To seal Carter's fate, the same attorney who did such a poor job at trial, James Jesse, was appointed by the court to represent Carter on appeal. Needless to say, ineffective assistance of counsel was not one of the issues raised, nor was there any complaint about the removal of all blacks from the jury panel.

If Carter could get a new trial, and it were conducted fairly, there is little chance that Carter could possibly be convicted. That is why Berrien County frantically opposes all efforts to give Carter a new trial. And, based on the rules of "finality," courts are unlikely to reopen the case unless the state Attorney General gets involved. See our Report on Finality. Judge John Hammond is a former local policeman in Berrien County. Carter cannot be paroled without his approval. The head of the Michigan Parole Board is Stephen Marschke, a former deputy and sheriff of Berrien County. Both men have a long record of not crossing law enforcement in their home county. Carter almost certainly will never be released as long as Hammond is judge and Marschke heads the Parole Board, even though Carter has been eligible for parole since 1986.

A one hour CNN investigation by Larry Woods featured the Maurice Carter story. They hired one of the nation's most reputable polygraph examiners, and examined Carter 3 times. The conclusion of the operator was that Carter was innocent "beyond the shadow of a doubt." Carter was also the subject of an expose on the CBS program 48 Hours. However, Berrien County cannot admit any mistakes without confessing their treacherous activities in framing Carter.

Report here

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Monday, May 16, 2005


One of the key public concerns voiced in the general election campaign was Britain’s unacceptably high crime rate. Long-suffering communities believe that not only are they suffering from epidemic crime and disorder, but to add insult to injury criminals are not dealt with effectively even when they are caught. Now, a senior police officer has lent his authority to the suspicion that the courts have simply lost the plot. Paul Kernaghan, chief constable of Hampshire, has made the remarkably outspoken charge that judges and magistrates appear to be more concerned with the needs of criminals than their victims, and in particular are simply refusing to lock up serial offenders.

As an example, he highlighted the case of one such criminal in his area who, despite having 120 previous convictions, was sentenced to merely 14 days in jail. In an alarming number of cases, serious repeat offenders are not even sent to prison. In Winchester, a teenager who was caught trying to sell heroin and crack cocaine was given a two-year supervision order after Judge Andrew Barnett said he was ‘giving him a chance’. In Manchester, Judge Stuart Fish told a pair of serial criminals with more than 100 convictions between them that he would not jail them because it would cost too much money and previous sentences had not stopped their crime spree. So for attacking a woman and stealing her benefits money, they walked away with rehabilitation orders and community punishments. And in a particularly appalling case last month, a man was finally jailed in Leeds for murdering two sisters and an elderly couple — after having previously been given only a community sentence and probation for a vicious knife attack.

It seems scarcely credible that such criminals are being given such derisory sentences, which bear no relation to the gravity of these crimes and fail to lock up people who pose a danger to the public. The judges protest that they are not soft sentencers at all, and point to the fact that Britain imprisons more people than any other European country. This claim is disingenuous. True, we jail more people per head of population than in the rest of Europe. But that is simply because we suffer far more crime than those countries do. So it’s not surprising that more people in total are locked up.

The much more telling question, however, is whether we jail those who commit that crime as often as other countries jail their own criminals. And here the figures show that our rate of imprisonment per crime is well below the European average. So faced with one of the highest crime rates in the industrialised world, our courts are sending people to prison less frequently. Might there not be, just possibly, a connection between the one trend and the other? .....
So what on earth is causing our judges and magistrates — supposedly pillars of a prudent establishment — to behave in such an irresponsible way? As Mr Kernaghan suggested, one reason is their obsession with keeping prison numbers down because of the chronic overcrowding in our jails. No one disputes that this is indeed a serious problem. But the obvious solution is therefore to build more prisons. Instead, the bureaucratic tail is wagging the criminal justice dog. As Mr Kernaghan said, if someone needs to be locked up it is absurd not to do so because no cell is available. Yet the justice system is indeed suspending punishment because there isn’t enough capacity.

However, that is not the only reason. For like so much of the criminal justice establishment, the judges are gripped by a visceral distaste for prison. The Lord Chief Justice, Lord Woolf, has repeatedly advocated community sentences for non-violent offenders. This is because of a profound belief that prisons are merely ‘universities of crime’ that make bad people worse and thus even more likely to commit offences. Community sentences are therefore considered to be more effective. However, all the evidence contradicts this. The distressing fact is that neither prison nor community sentences have much success in preventing criminals from committing more crime. But at least while they are in prison, the community has some relief from their activities; and at least these offenders are being punished.

But then, to the bien-pensant criminal justice establishment, the notion of punishment itself is viewed with utter contempt as no more than a primitive lust for vengeance, and therefore deeply uncivilised. Yet inflicting a measure of pain commensurate with the crime is an essential part of justice. No punishment, no justice. And as any parent knows, punishment for misdeeds is an essential part of the process by which a child learns the distinction between right and wrong and becomes a civilised human being. Hence, no punishment, no civil society.....

Sentencing is not the only aspect of the criminal justice system which has lost its way. After all, very few crimes end up being prosecuted in court at all. That’s because at every stage the system fails — including the police, whose performance leaves much to be desired....

Our criminal justice system is currently mired in a combination of bureaucratic inertia, political pusillanimity and ideological perversity. Hapless citizens run the gauntlet of a crime wave dismissed as an exaggeration by a disdainful and out-of-touch establishment, which regards calls for imprisonment as further evidence of unsophistication. Accordingly, it is delivering a sentencing policy which enables criminals to thumb their noses at the system, and is now increasingly making a mockery of justice itself.

More here

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Sunday, May 15, 2005

The unjust conviction of Chester Schimberg

Chester Schimberg was convicted of criminal sexual conduct (rape). A woman was raped by a single attacker in her home, while her husband was at work. Schimberg was not identified by the victim, who said it was too dark to tell who the man was. She did say the man had a southern accent. Schimberg grew up in the north, and has no southern accent. The lawyer never brought out to the jury that she told police the man had a southern accent

Schimberg was convicted because there had been a breakin at the house and some items stolen. His fingerprints were found in several places in the house, and on some stolen items found abandoned outside the house. The prosecutor and jury theorized that the rape and breakin occurred at the same time, and that since Schimberg was apparently guilty of a breakin at sometime, he must be guilty of the rape at the time in question.

The scientific evidence, however, says something different. The rapist left behind semen with blood group A. Schimberg, who has Type O, cannot leave blood group A. Yet, chemist Marie Bard-Curtis testified at trial that:

* "Q [by prosecutor] All right. And what about Chester Schimberg?
* A Chester Schimberg, being a Type O secreter, it is possible for him to be involved in this stain. However, he cannot be the sole donor of that seminal stain.
* Q Would it be fair to say that your findings in relation to Chester Schimberg, while they don't single him out, they don't eliminate him as a possibility, either?
* A That's correct."

Because the chemist testified at trial that Schimberg was not eliminated as a possibility, that would provide a basis for thinking that maybe he did commit the rape. The chemist's testimony at trial, as it came out, was very damaging to Schimberg.

However, at an evidentiary hearing held after trial, the chemist admitted that her trial testimony that Schimberg was not eliminated was based on there being more than one semen donor. That is, it was possible that Schimberg could be one of the rapists, if there had been 2 or more, but it was impossible for him to be the sole rapist. She gave the testimony that Schimberg was not eliminated because she was never told that there was only one rapist. Indeed, in response to questioning on this topic, the witness testified at the evidentiary hearing (where no jury was present):

* "Q So if there was only one rapist, it could not be Schimberg; is that right?
* A That's correct."

This testimony leaves a radically different impression than the testimony the jury was actually presented with, i.e., that the chemist's findings "don't eliminate him [Schimberg] as a possibility." The jury was also not told that the victim's husband, like Schimberg himself, and like the victim, cannot secrete Type A semen.

A tracking dog followed the trail of the rapist, but instead of going to where Schimberg lived, the dog went to the home of Douglas Kelshaw. The chemist tested both Schimberg and Kelshaw against the semen stain, and reached the following conclusions in her written report:
Assuming one semen donor contributed the stain detected on the victim's pajama top, the suspect Douglas Kelshaw is included in the population of possible donors."

The chemist's report extensively discusses both Defendant Schimberg and Mr. Kelshaw. The fact that the Conclusions section of the report mentions Kelshaw as being included, but does not mention Schimberg as being included, we would think to be significant, even if Kelshaw is completely innocent. The jury might conclude from this language in the chemist's report that the chemist found Schimberg could not be the rapist. Again, the lawyer did not bring this out for the jury.

The prosecutor argued at the motion hearing that a person could fake a southern accent, so the failure of the attorney to bring out the fact of Schimberg's accent and heritage was harmless. But would a person be so careful about ingeniously devising a plan to use a southern accent, maintaining the accent throughout the attack and never slip up even once, and then carelessly leave his fingerprints in several places in the house and on abandoned stolen property outside the house? If a jury heard all the evidence, could a jury not conclude that the bungling burglar is not the same person as the clever rapist? Could they not conclude that the chemist's opinion that if there was only one rapist, it could not be Schimberg, was an important fact they would want to know before issuing a verdict?

Judge Michael Harrison of Lansing, Michigan, heard the testimony that there was only one rapist, and heard all the evidence at the evidentiary hearing. The defense was not seeking a complete dismissal, but only a new trial at which the jury could hear all the evidence. Judge Harrison, a politician and the son of former head of the Michigan Department of Corrections Gus Harrison, made the following comments when confronted with this evidence:

"Like it or not, Mr. Schimberg has stated to this Court that everybody in this courtroom knows of his innocence. Well, I hate to suggest to him that this is certainly beyond my ability to discern...And so as far as this, quote, unquote, knowledge of innocence, it belies me."

The motion for a new trial was denied. By the way, Chester Schimberg received a sentence of life in prison for this rape.

Report here

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Saturday, May 14, 2005


I have highlighted how the complacent asshole of a judge justified the token sentence

A man who punched, kicked and shook a young child so violently she was left with permanent brain damage has been jailed for a minimum of six months. Brian John Taylor, 36, pleaded guilty to intentionally causing serious injury to two-and-a-half-year-old Rowena Payne on January 15, 1996. County Court judge Tony Duckett jailed Taylor for a maximum of two years but fixed a non-parole period of six months.

Taylor was living in Bendigo in a de-facto relationship with the girl's mother at the time of the attack. Judge Duckett said girl cried out that she had wet her bed about 6.30am (AEST) on the day of the incident. Taylor went into the girl's room and said "say sorry to daddy". When Rowena complied, Taylor punched her in the mouth, kicked and shook her. Her head was flopping and her eyes were turned up when Taylor finished the assault by banging her head twice against the wall.

Rowena suffered a brain haemorrhage and remained in intensive care for six days after surgery for her injuries. She now walks with a limp because of the brain damage that resulted in mild paralysis of the muscles on the left side of her body and impaired intellectual capacity. Ms Payne feared for her safety and Taylor persuaded her not to speak to the police, the judge said....

Judge Duckett said Taylor's record over the past nine years suggested he no longer posed a threat to the community. "Violence against defenceless children, in circumstances similar to those outlined here, is widespread," he said.

More here

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Friday, May 13, 2005


As so often happens lately, Michael Anthony Williams is lost. The driver's license examiner towers over him, rattling off orders through the rolled-down window on the driver's side. But at each command, Williams, 40, hesitates. He signals to the left when he is told to turn right. He forgets to turn off the windshield wipers. He fails the test, another blow in Williams' quest to put together a life that was taken from him when he was just a boy. At the age of 16, a sophomore in Jonesboro High School in northern Louisiana, he was arrested and convicted of raping his female math tutor. He spent 24 years in the Angola state penitentiary. Two months ago, he walked free. A DNA test -- which didn't exist when he was growing up -- proved what Williams had claimed all along: the state had gotten the wrong man.

Now, like dozens of others wrongfully accused and subsequently exonerated, a bewildered, once-young man finds himself, without resources, thrown into a world with which he is entirely unfamiliar. Tasks that are second nature for most adults -- using a cell phone, leaving a voice message, going to an ATM, paying the phone bill or turning on a blinker -- for Williams are pieces of a puzzle he has yet to figure out. "I got to find a new life," says Williams, a heavyset man who was an inside linebacker on his prison football team. A black skullcap covers his receding hairline; a key to his apartment hangs on a ribbon strung around his neck. "It's not gonna be easy. It's not gonna be fast."

Williams is one of 159 people who have been jailed and then freed in the United States through post-conviction DNA testing since it became available in 1989, according to the Innocence Project, a national group that works on preventing and reversing wrongful convictions. Justice may have been served, but in most cases these people have lost virtually everything they ever owned.

Almost half suffer from depression, anxiety disorder or some form of post- traumatic stress disorder, according to a study by Lola Vollen, director of the DNA Identification Technology and Human Rights Center in Berkeley. None has access to public services such as health insurance, job training and anger management that are routinely available to ex-convicts on parole to help their transition back into society. Some states, including California, award financial compensation to the wrongfully convicted. Compensation packages vary from state to state, and in California reach $100 per day of incarceration. But Louisiana, where 18 people have been exonerated since 1989, has no compensation for people such as Williams. Upon his release, the state of Louisiana cut Williams a check for $10. He keeps it in a frame on his coffee table.

"They are expected to jump right in and pick up their lives where supposedly they left them off," said Ernest Duff, who heads the Berkeley-based Life After Exoneration program. "But after being institutionalized like that it's very, very hard to move forward." Like most exonerated inmates, Williams, who finished high school in prison, has no marketable job experience and few social skills. Unlike most others, Williams had almost no contact with the outside world during the years he was inside. His mother died when he was 12. Both of his grandparents, who brought him up, and his father died while he was in prison. His four brothers and two sisters stopped calling, writing or visiting him in 1990. During the last 15 years of his imprisonment, Williams' only visitors were his lawyers from the Innocence Project......

On Wednesday, he saw someone lock the car using a remote control for the first time. Yellow "Support Our Troops" ribbons on cars surprise him. Angola inmates didn't talk much about the war in Iraq. "We had our own war in there," Williams says with a quiet laugh, massaging the scar near his left elbow, where an inmate stabbed him with an ice pick. Surviving 24 years in Angola, one of the nation's most notoriously violent prisons, is a memory Williams prefers not to share. He describes his time there simply as "terrible."

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Thursday, May 12, 2005


Who can read of it and not be enraged? Each day the Government fails to act on behalf of wronged farming couple Keith and Margaret Berryman reaps further contempt from New Zealanders disgusted at the injustice of it all. The Berrymans were ruined after being made to account for the death in 1994 of beekeeper Kenneth Richards when a bridge on their King Country farm collapsed. For failing to maintain the eight-year-old bridge, built by the army, the couple have lost their farm, and their health in trying to clear their name. At an inquest in 1997 into Mr Richards' death the New Zealand Army said the bridge was properly constructed in accordance with UK and Australian Army manuals. The coroner ruled the collapse was due to disrepair resulting from the lack of maintenance by Mr Berryman.

However, 2 1/2 years earlier an Army inquiry into the collapse produced a report by former army engineer George Butcher which, the Berrymans' lawyer Bob Moodie says, fully exonerates the couple. It shows the Army knew of design and construction faults and some materials used in the bridge. No mention of the Butcher report was made at the inquest. A petition to the High Court to have the inquest reopened was declined. Costs were awarded against the Berrymans and the court agreed with the Army that it couldn't release the report because of "Army discipline code requirements". In frustration Dr Moodie defied the court and put his job on the line by posting the report on the web.

Former Defence Minister Max Bradford says the Army's top brass should explain why they concealed the Butcher Report from him. The present minister stays mum and sits on his hands. In 1998 the prime minister supported the Berrymans after she visited the couple's farm during the Taranaki-King Country byelection: "It's an issue of National having lost touch with its traditional constituency," she said at the time. Who's lost touch? Two matters need to be addressed. First, full restitution must be made to the Berrymans immediately and with an unqualified apology. Second, the defence minister must make the Army come clean. The Berrymans and the public deserve to know why the report continues to be suppressed and why its findings were contradicted in evidence given to the coroner. To do less implicates the minister in a cover up.

The Government is fond of grand gestures like the Civil Unions law. Treatment of the Berrymans reveals what it really thinks about justice.

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Wednesday, May 11, 2005

A monstrous injustice underway in Florida

It ought to be impossible to imagine an American government that deliberately leaves innocent people in prison. But in Florida, present reality is precisely that savage scenario. In 157 cases across the nation, it has been established to a moral certainty that innocent prisoners can be exonerated by the recent science of DNA testing. Wilton Dedge, the Floridian who lost 22 years of his life for a rape he did not commit, is one of them. Without doubt, there are more prisoners whose innocence cries to Florida's collective conscience.

Yet with less than two weeks left in this year's session, the Florida Legislature is not only apparently unwilling to compensate Dedge, but it is also failing to extend an Oct. 1 deadline to file testing petitions on behalf of at least 700 other people still in prison. Their cases have languished because only a handful of volunteers, unpaid by the state, are available to help them or to lobby for extension of the deadline. On that date, clerks of court and other keepers of DNA evidence in closed cases will be technically at liberty to destroy it.

This unconscionable situation owes to no external force. The state attorneys do not oppose an extension. Neither does the governor. Attorney General Charlie Crist said in an interview last week that the prisoners' advocates are entitled to "the appropriate amount of time to do the job and do it right." The reason appears primarily a matter of indifference on the part of committees that should have undertaken to extend the deadline, complicated by turf-guarding, finger-pointing and ego among some members who could not be bothered to listen. "It just fell through the woodwork," claims House Criminal Justice Committee Chairman Dick Kravitz, R-Jacksonville. None of that resembles a pardonable excuse.

Were Florida legislators not listening, or did they choose not to hear, when President Bush spoke to the subject in his State of the Union address? This is what the president said: "Because one of the main sources of our national unity is our belief in equal justice ... we need to make doubly sure no person is held to account for a crime he or she did not commit - so we are dramatically expanding the use of DNA evidence to prevent wrongful conviction." The president also asked Congress for money to finance DNA testing grants for state prisoners under a law he signed last year. To qualify, Florida needs the legislation that the House and Senate will not hear.

Many technicalities stand in the way of pending attempts to pass the extension as amendments to other legislation. There is almost nothing the Legislature cannot do, however, when its leaders set their minds to it. It is now the inescapable moral duty of House Speaker Allan Bense and Senate President Tom Lee to get the extension enacted. It bears remembering that everything that Florida legislators do, or do not do, is in the name and by the authority of the people. In our names and by our authority, they are on the verge of perpetrating a monstrous injustice.

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Tuesday, May 10, 2005


The New Orleans chapter of a national, nonprofit legal-aid clinic organization that has exonerated five wrongfully-convicted Louisiana inmates is investigating seven Mississippi cases. Among those cases is the 1997 murder and armed robbery convictions of then 19-year-old Cedric Willis in Hinds County. The group also is trying to find evidence that could exonerate Nelson McKinney, then 36 when he was convicted of rape and armed robbery in Lee County in 1985.

Emily Maw of the Innocence Project said Willis deserves a new trial because evidence that could have cleared him wasn't allowed at trial. Willis was convicted of shooting Carl White Jr. and robbing White's wife, Gloria, and daughter, Jamilla, at their home at 3570 Michael Clay Drive. White died six days later. Willis later was sentenced to life in prison. Maw said jurors never heard evidence that the gun used in the homicide and robbery also had been used in four cases, including an armed robbery and rape. Willis also was indicted on the armed robbery and rape charges. But a DNA test excluded him in the rape, Maw said. Prosecutors dropped the rape and armed robbery charges, but jurors never heard that those charges were dropped, Maw said. "This struck us as particularly unfair," she said.

That excluded evidence could have given jurors reason to doubt Willis' guilt, Maw said. She hopes the DNA sample that exonerated Willis in the robbery and rape case hasn't been destroyed. She said it could be entered into the national DNA database to see if a match exists. A match would lead police to a suspect in the robbery and rape case, Maw said. It could also give police a suspect in the homicide and robbery case. "Cedric has faced 11 years of injustice," Maw said. "But the victims in these cases are the victims of the greatest injustice of all."

Former Hinds County District Attorney Ed Peters, who prosecuted Willis, couldn't be reached. Hinds District Attorney Faye Peterson said she didn't know the Innocence Project had taken Willis' case or had filed a request for a new trial on Feb. 25. The case has not yet been scheduled for a hearing, Peterson said. The Hinds County Public Defender's Office had been appointed to represent Willis in 2002. Public Defender Tom Fortner couldn't be reached.

Maw said it was a mistake that Willis wasn't allowed to present his defense. "Everybody suffers when the wrong person goes away," she said. The Innocence Project decided to investigate Willis' case after he contacted the national Innocence Project, Maw said. The national Innocence Project, founded in 1992 at a New York City law school, has exonerated 158 inmates.

In the McKinney case, the state Supreme Court on Feb. 1 decided McKinney is entitled to all evidence related to his conviction. McKinney was convicted of robbing and raping a 50-year-old clerk at the Town House Motel in Tupelo. The woman identified McKinney as her attacker, even though he and his neighbors testified he was home when the crimes happened. Maw wouldn't discuss McKinney's case. She said she fears publicity will make it harder for her to get information she needs that could exonerate him.

Lee County District Attorney John Young prosecuted the case. He said he found out the Innocence Project had begun investigating it about four months ago when he was asked for evidence. "We looked for the file, but we couldn't find it," Young said. "It's hard to put something together that happened 15 or 16 years ago." He said he thought he had a strong case against McKinney. He's not surprised McKinney is trying to get a new trial. "For some of these guys, it's a matter of keeping on to keep on, regardless of how strong (their arguments) are," Young said. I think a lot of these things that are filed are frivolous. If I thought someone was purely innocent, they wouldn't be prosecuted."

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Monday, May 09, 2005


It was a sickening abuse of police power. Here's how one victim described it: "I think what hasn't been reported is the aggressiveness of it. They came in with guns drawn, lasers trained on people's heads. They swarmed in screaming, 'Put your hands over your face and don't move.' I don't think I've ever been that frightened in my life." So what emergency, what crisis, prompted this massive display of police force? Was a terrorist threatening to blow up part of the town? Had somebody kidnapped a child? Was a murderer on the loose? Had a gang of thieves been discovered? No. People were playing a game of cards.

That was the pretext for the militarized police raid, featuring storm troopers "with guns drawn, lasers trained on people's heads." A GAME OF CARDS. (All allegations of criminal activity are currently just that -- allegations.) Here's how Walter Schlomer, from whom I first heard of the case, described the absurdity: "Law enforcement officials in Palmer Lake, Colorado, have successfully eliminated all crime from their community. All actual crimes, the ones that might cause damage to you or your property, no longer occur there. It must be true, because they just spent a month conducting an undercover investigation of a $15 poker game held weekly at a local restaurant."

Of course, while the police involved in the raid deserve nothing but contempt and moral censure, they were merely acting on the power given to them by the state legislature. The Colorado Revised Statutes state: "18-10-103. Gambling - professional gambling - offenses. (1) A person who engages in gambling commits a class 1 petty offense. (2) A person who engages in professional gambling commits a class 1 misdemeanor. If he is a repeating gambling offender, it is a class 5 felony." The legislature sets various additional rules about gambling, many of which can be read online (search for "gambling"). For instance, the legislature saw fit to write some 3,476 words regulating bingo raffles (see section 12-9-107). The state also sets various rules for owners of bars.

At the same time, the monopoly gambling ring run by the Colorado state government (a.k.a., the "stupid tax") is running up large figures. The lottery brags of "record sales of $407 million for fiscal year 2002." The same page notes that the legislature renewed this gambling ring several times. The Trust for Public Land notes, "Approved on the ballot by voters in 1980 and passed by the General Assembly in 1982, SB 119 established a state-sponsored lottery which began in January of 1983."

So let's review. If you participate in recreational card playing with a tiny pool that costs less than the price of two adult movie tickets, you will be raided by a swarm of card police who point their guns at your head and threaten you with imprisonment. If, on the other hand, you run a half-billion-dollar per year monopoly gambling ring okayed by Colorado politicians, then you get a cushy salary, benefits, and the praise of the political class.

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Sunday, May 08, 2005


New South Wales Police may face legal action after charges against a 21-year-old man over a Sydney fast food restaurant shooting were dropped. The arrest followed a shooting at Stanmore in inner-western Sydney about 2am (AEST) on Saturday, April 16, but NSW Director of Public Prosecutions (DPP) today dropped the charges against Norman Yammine, of Auburn in western Sydney', after evidence proved he was interstate at the time of the offence.

Mr Yammine's solicitor Brett Galloway said he would meet NSW Police after the charges were formally dropped next week to give representatives a chance to settle out of court. "We will be pursing our own costs and we'll then be pursing NSW Police in the civil courts for malicious prosecution and false imprisonment," Mr Galloway said.

Mr Yammine was arrested in April and charged with attempted murder and shooting with intent to inflict grievous bodily harm. A second man, Yousef Saraya, 20, was also arrested over the attack, and police said detectives would proceed with the charges against him. Mr Yammine applied for bail twice, and was released the second time after DNA evidence failed to link him to the crime.

He said he had been on the Gold Coast attending a friend's funeral on April 14, and stayed at a Holiday Inn hotel during his visit. He said he boarded a flight to Sydney from the Gold Coast about midday on the day of the shooting – 10 hours after the attack. Mr Galloway said Mr Yammine was identified by a woman in a police line-up, despite her giving an earlier description that did not match his characteristics.

An airline boarding pass that showed Mr Yammine had been interstate was given to police when they searched his house, but police did not investigate it and relied on the line-up identification, Mr Galloway said. "The proper thing for them to do was to investigate that rather than locking him up and refusing bail," he said. "The conduct (of police) has been absolutely appalling."

Mr Yammine had suffered a lot of stress since his arrest, and was today celebrating the DPP decision, Mr Galloway said. "He's absolutely ecstatic," he said. "He knows he wasn't there, he knows he didn't commit the offence. "He's been very distressed by the whole thing, knowing that there's always a prospect when someone's charged, even if they're not guilty, they can be found guilty."

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