IF EVEN THE BRITISH POLICE THINK THIS GUY IS INNOCENT, IT IS A PRETTY GOOD BET THAT HE IS

One of Devon's most notorious murder cases could be referred to the Court of Appeal after a reinvestigation. Robert Kennedy was sentenced to life in 1991 for battering Arthur Eathorne, 74, to death in his Plymouth Hoe flat. Police have submitted a file to the Criminal Cases Review Commission after 18 months of work. A BBC correspondent says legal experts believe there is sufficient doubt to see it referred to the Court of Appeal as a possible miscarriage of justice.

Kennedy, 41, who has been put on suicide watch, says he is innocent. Advances in DNA technology have cast doubt on evidence linking cigarettes in Mr Eathorne's flat to Kennedy. At least two unidentified people were at the flat before Mr Eathorne was murdered. He was homosexual and entertained a large number of men at the flat, one of whom was Robert Kennedy.

BBC South West Home Affairs Correspondent Simon Hall said the new evidence could lead to the safety of the conviction being reconsidered. He said: "At the original trial there was other evidence against Robert Kennedy, including confessions to his friends and fellow prisoners. [Jailhouse "confessions" are notoriously fabricated]

"The judge also warned the jury to be cautious about the DNA evidence on the cigarettes. So it is a case which I think it's fair to say is in the balance." The Criminal Cases Review Commission say they expect to make a decision on whether to send the case to appeal sometime next year. [Take your time guys!]

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CRAZY COMPENSATION RULES

James Newsome and Anthony Porter were convicted of murders they did not commit. Both languished behind bars for more than 15 years before their innocence was established. Both sued the Chicago Police. Newsome's jury awarded him $15 million. Porter's jury awarded him -- nothing. The disparate outcomes hinged on one factor: Newsome was able, but Porter unable, to prove to a jury that he had been the victim of overt police misconduct.

Police are immune from civil damages as long as they act in good faith. There is little doubt that a competent police investigation would have shown that the witnesses who claimed to have seen Porter commit the crime were lying -- a building blocked their line of sight. But Porter, in his jury's view, established only that his wrongful conviction resulted from negligence, which is worthless in a wrongful conviction case. Unless you can prove that the police acted in bad faith, you are entitled to nothing.

After denying Porter's claim, jurors said they would have awarded him millions, if they could have. Porter, however, deserves more than sympathy. He deserves fair compensation, which either the City Council or the Illinois General Assembly ought now to provide through special legislation.

Porter also deserves a legacy in the form of legislation named for him to assure fair compensation for innocent persons. At present, automatic compensation in Illinois is limited to about $160,000, in addition to which a lawsuit may be filed. It would be preferable to increase that amount substantially but require that a wrongfully convicted person waive the right to sue.

The General Assembly should extend the principle of eminent domain -- which requires fair compensation when private property is taken for a public purpose -- to the priceless commodity we call freedom. The law should recognize that those who commit serious crimes forfeit their freedom and deserve no compensation, but that, when innocence itself is brought to the bar and condemned, prompt and ample remuneration should be the government's legal obligation.

More important, the compensation ought not depend on proving that the police acted in bad faith, but rather -- borrowing the no-fault insurance concept -- strictly on the degree and duration of the pain and suffering resulting from the wrongful conviction.

The Newsome case illuminates the concept of fair compensation. The award might appear frighteningly high -- a million dollars a year. But it shows why it would be in the interest of most litigants to settle for far less.

Newsome's legal fees consumed one-fifth of the award and, more significantly, he assumed a huge risk in taking his claim to trial. Thus, given a reasonable offer at the onset, litigants in Newsome's situation might find elimination of risk could easily be would be worth as much as half of a prospective settlement and take into account the value of being compensated promptly after exoneration, rather than waiting seven years, as Newsome did, for a resolution. Taking these various factors into account, many litigants in Newsome's situation would have an incentive to settle for as little as $250,000 a year.

The offer should be automatic, with the state and the local government entity splitting the amount equally. But if a wrongfully convicted person were unwilling to take the deal, the case could proceed to litigation or arbitration.

From the taxpayers' perspective, such a system could be a boon. The savings in one just case like James Newsome's would be enough to fairly compensate an Anthony Porter several times over.

(Article from here)


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THE FARCE OF A NYC GRAND JURY

My Grand Jury service finished, it is inevitable, if not right, that I now draw definitive inferences about the way the system works. I will tell my students that it is a mass of contradictions and a feast of ironies. It's a volley between abomination and blessing. I'd rather not rely on it, but I wouldn't trade it for the world. Being a conscripted jurist is a duty as daunting as watching a kindergarten class on a field trip to a pumpkin farm. But not being a lawyer who could volunteer his services to a political club in exchange for an eventual payoff of a judgeship,( as a favor from the governor to a loyal club politician), this is as close as I can get to being called "your honor."

Mental deficiency is no ground for exclusion from jury duty, nor is anything else. We twenty-three citizens were convened to impersonate a cross section of our often morbidly diverse society. We were highly qualified by virtue of random selection from drivers licenses and willingness of our employers to save the court system money by paying us full salary for the duration of our term. Who better to determine "reasonable cause to believe" and "legally sufficient evidence."

Unless my experience was a fluke, the system works to a decent, now and then inspiring degree, in spite of itself. The odds of justice prevailing are more favorable than the calling of unloaded dice, which is more than can be said of most nations. After a month, we Grand Jurors felt more imbedded than impaneled. We saw human tragedies and sometimes came to pity those who caused them, even as we dispatched them to face the consequences. We also observed prosecutions that reflected more malice than vigor.

Arson to bail jumping, murder to insurance fraud, kidnaping and car jacking to robbery, burglary and sex abuse, the docket was in a heavy bleed for four weeks. Each case was presented by an assistant district attorney, nearly all of whom were female thirty-somethings. Their styles varied. Some were aloof; others acted like party animals, no doubt to charm jurors. They mostly kept to a rigid line of interrogation, which we soon realized was scripted and memorized. They verbally "painted by numbers" by filling in testimony from fastidiously prepped and briefed witnesses. If I ever hear "Did there come a time..." again, I will embrace Islamic law.

District attorneys often must think fast to get a witness back on track after he has contradicted or strayed from his original testimony. Some are virtuosos at this, their agility driven by ravenousness for indictment. Others get flustered and cannot ad-lib. Like matinee understudies, some of these legal thespians are better at improvisation than others.
"The People against..." This standard phrase implies that we jurors, the exclusive judges of the evidence, are society's conscience. Is there such a thing anymore? It is a sacred trust, and when the honor system is in effect, somewhat shaky too.

Comic relief peeks through gravity. When voting on whether to hand up an indictment or dismiss felony charges, we heard a fellow juror snoring. One of us raised his slumbering hand and he thus tipped the balance. In a different case we were being shown autopsy photos when a district attorney's cell phone went off to a mambo motif.

Typically, cases are continued more than a week after testimony was heard by the grand jury. During that time, dozens of unrelated cases may have been heard in their entirety or drips and drabs. The district attorney always asks cursorily and rhetorically whether the jury has a sufficient recollection of the facts of the old case, but juries tend to automatically answer in the affirmative, even with a person's freedom at stake.

Defense attorneys are forbidden from addressing the grand jury. The district attorney is the orchestrator of the presentation, as well as the jury's legal advisor. After a witness has testified and the district attorney concluded her delivery, grand jury members can ask their own questions of the witness. The juror must whisper it privately to the district attorney out of earshot of all others except the stenographer. Often the district attorney will not permit it because it inadmissible on legal grounds. But even when this is not the case, she may so skewer by paraphrase, that the intended meaning of the original question is sacrificed to suit the interested party of the prosecution.

Often there is dramatic and enlightening testimony that the jury is instructed to disregard as "hearsay", even if its consideration would reverse the jury's finding. Fortunately, it is not realistic to expect people to unhear what they have heard.

Despite the district attorney's pointed, poised, and intermittently slick ways, we have seen them flustered and even outsmarted by some dysfunctional and ignorant street kid who might have nothing but the stubborn truth on his side. Police officers, in some cases, would not bear up as well, were it not for the district attorney walking them through the testimony.

Before the Grand Jury votes on whether the evidence merits a trial, it hears the applicable standards of law speed-read by the district attorney. Most of the time we knew which charges, which counts, and which defendants were which.
If the justice system has a "wonder of wonders" it is the court reporter. Not only does she render into code instantly every syllable of rapid speech, but again and again she acts like a de facto advisor to district attorneys forgetful of routine procedures.

Ms. Blind Justice, upholding the scales of justice, might sometimes as well be wearing a Halloween mask for the treatment that guilt and innocence get in our riddled system. But to a majestic extent, it is viable. None of us voted along racial, political, economic, or other prejudicial lines. Plain folks really do rise to a supreme bar of responsibility. They are exalted into expertise as by the solemn commission of a religious mystery. It works. I cannot wait to tell my students about the "way" of the American Way.

(From here)



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Policing the Policing of Psychiatric Patients in Canada

Chances are that when someone with a mental illness ends up in the hands of police, he is suffering from one of what's known in law enforcement as the big three: depression, schizophrenia, or bipolar disorder. "These people used to be dealt with in the mental-health system; now they are left until police intervention is necessary," said Gary Glacken, executive director of the B.C. Schizophrenia Society, during a telephone interview with the Georgia Straight. "Jails have become the new asylums."

It's not a role the police have chosen, and the consequences are sometimes tragic. Although relatively few in number, the deaths make the headlines. In February 1997, Toronto police shot and killed Edmund Yu, a paranoid schizophrenic, who threatened officers with a hammer when they tried to handcuff him. In December 1999, an RCMP officer shot Donald Mayer as he lunged at police with scissors after being cornered in a Langley hospital. That same month, Sai Ming Wai, suffering from paranoid schizophrenia, was shot and killed by police in B.C. In August 2000, an RCMP officer shot and killed Norman Reid, who came at them with a hatchet when Newfoundland police tried to apprehend him. There were 13 such incidents in Canada between 1992 and 2002.

Whether or not they should be, the fact is that police are increasingly called on to intervene in situations of psychiatric crisis. A 2000 Canadian study estimates the time spent on such calls doubled from 1997 to 2000. More troubling, over half the fatal police-shooting deaths in B.C. between 1980 and 1994 involved people with mental disorders, even though only 20 percent of Canadians experience mental illness during their lifetime. And 30 percent of these involved people with a history of schizophrenia, despite the fact that the disorder affects only one percent of Canada's population. (There are approximately 40,000 people with schizophrenia in B.C.)

Such tragedies could have been avoided, many judicial and mental health experts believe, if the officers involved had been better trained on how to handle calls involving the mentally ill. Overall, police handling of cases involving the mentally ill is inconsistent and unpredictable. Two years ago, the Surrey RCMP detachment rolled out Car 67, a copycat of the Vancouver police department's Car 87 program, in which a core group of experienced officers team with veteran psychiatric nurses to take mental-health calls. "Before Car 67," said Surrey RCMP Insp. Amrik Virk by phone, "there were 497 different ways of handling these situations."

That is precisely the problem, according to an April 2004 report by the Commission for Public Complaints Against the RCMP, which reviewed allegations of excessive force by RCMP officers when apprehending a young man with schizophrenia in October 2000. It recommended specialized training for all RCMP members and the development of national policy guidelines on mental-health crisis intervention. It's one in a series of such recommendations. Inquests into all the aforementioned deaths--except the Reid case, which is still pending--also called on the RCMP to provide more training on how to respond to people suffering from mental illness.

But RCMP brass have not been receptive. As a result of the complaints commission report, they have reinstated specialized training for new recruits, a pilot program suspended in January 2004, but they are denying the need for such training for all members and for policy guidelines. In an official response from RCMP commissioner Giuliano Zaccardelli to Shirley Heafey, chair of the complaints commission, Zaccardelli stated that policy is not the appropriate forum to provide guidance and that current training is more than adequate.

From her office in Ottawa, Sharron Ellis, senior communications officer for the complaints commission, said that although the commission applauded Zaccardelli for reinstituting training, it stands by its recommendation that all members should receive the program, especially those in the field. Ellis cited the example of the officer who killed Norman Reid. "He had received three hours of training on dealing with the mentally ill 11 years before the shooting, and during the inquiry he said the incident would haunt him for the rest of his life. It's just not fair to ask our police officers to deal with these situations without proper training," Ellis said.

During an interview at his Cambie Street office, Chief Const. Jamie Graham of the Vancouver police department said he has both a personal and professional interest in ensuring his officers get appropriate training. "We work in a singular environment here," he said. "The Downtown Eastside is one of the most unique places in the world. There's no RCMP jurisdiction that compares to this one and that drives our training. The new phrase I'm using is socially relevant policing. The things we do have to be relevant to what's going on around us." Graham's department is cited in the commission report, along with nine others, including Victoria, for having implemented training that recognizes the specific needs of people suffering from mental disorders.

It has also been commended for creating a pocket-size tips sheet for defusing situations involving people in psychiatric crisis. The bright-yellow card advises officers, among other things, to speak and move slowly, and to reassure the subject by saying things like "Take it easy" or "I'm here to help you." It's a departure from standard police-tactical training, which is action-oriented and based on quick response. "We've adopted current techniques used by the medical field," Graham said.

They are the techniques mental-health advocates, service providers, and consumers would like to see used more often. But until the RCMP adopts ongoing training programs, the positive outcomes resulting from a kinder, gentler approach may well depend on which police jurisdiction the person happens to be in at the time of crisis.

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Why we cannot rely on firearm forensic "science"

Tyrone Jones is serving a life sentence, in part because of a microscopic particle that Baltimore police found on his left hand. At his trial for murder in 1998 the crime-lab examiner gave evidence that the particle was residue from a gunshot. He claimed Jones must have held or fired a gun shortly before his arrest. Jones denies this and still protests his innocence. His defence team is appealing the conviction, claiming that the science of gunshot residue (GSR) analysis is not as robust as the prosecution claims.

Now, a New Scientist investigation has found that someone who has never fired a gun could be contaminated by someone who has, and that different criminal investigators use contradictory standards. What's more, particles that are supposedly unique to GSR can be produced in other ways. Forensic scientists often testify that finding certain particle types means the suspect handled or fired a weapon. Janine Arvizu, an independent lab auditor based in New Mexico, reviewed the Baltimore county police department's procedures relating to GSR. Her report concludes: "The BCPD lab routinely reported that gunshot residue collected from a subject's hands 'most probably' arose from proximity to a discharging firearm, despite the fact that comparable levels of gunshot residue were detected in the laboratory's contamination studies." The BCPD did not return calls requesting comment.

Some specialists argue for a more cautious approach. "None of what we do can establish if anybody discharged a firearm," says Ronald Singer, former president of the American Academy of Forensic Sciences and chief criminalist at the Tarrant county medical examiner's office in Fort Worth, Texas. Peter De Forest of John Jay College of Criminal Justice in New York goes further. "I don't think it's a very valuable technique to begin with. It's great chemistry. It's great microscopy. The question is, how did [the particle] get there?"

GSR analysis is commonly used by forensic scientists around the world. In Baltimore alone, it has been used in almost 1000 cases over the past decade. It is based on identifying combinations of heavy metals in microscopic particles that are formed when the primer in a cartridge ignites. The primer sets off the main charge, which expels the bullet. There is no standardised procedure to test for GSR, but the organisation ASTM International, which develops standards that laboratories can look to for guidance, has developed a guide for performing the technique that was approved in 2001. This states that particles made only of lead, barium and antimony, or of antimony and barium are "unique" to gunshot residue. The particles are identified using a scanning electron microscope and their composition analysed using energy-dispersive spectrometry.

But recent studies have shown that a non-shooter can become contaminated without going near a firearm. Lubor Fojt sek and Tom s Kmjec at the Institute of Criminalistics in Prague, Czech Republic, fired test shots in a closed room and attempted to recover particles 2 metres away from the shooter. They detected "unique" particles up to 8 minutes after a shot was fired, suggesting that someone entering the scene after a shooting could have more particles on them than a shooter who runs away immediately (Forensic Science International, vol 153, p 132).

A separate study reported in 2000 by Debra Kowal and Steven Dowell at the Los Angeles county coroner's department reported that it was also possible to be contaminated by police vehicles. Of 50 samples from the back seats of patrol cars, they found 45 contained particles "consistent" with GSR and four had "highly specific" GSR particles. What's more, they showed that "highly specific" particles could be transferred from the hands of someone who had fired a gun to someone who had not. This doesn't surprise Arvizu. "If I was going to go out and look for gunshot residue, police stations are the places I'd look," she says.

Scientists using the technique are aware of the potential contamination problem, but how they deal with it varies. In Baltimore, for example, the police department crime lab's protocol calls for at least one lead-barium-antimony particle and a few "consistent" particles to be found to call the sample positive for GSR. The FBI is more cautious. Its protocol states: "Because the possibility of secondary transfer exists, at least three unique particles must be detected...in order to report the subject/object/surface 'as having been in an environment of gunshot primer residue'." So a person could be named as a potential shooter in Baltimore, but given the benefit of the doubt by the FBI.

Even worse, it is possible to pick up a so-called "unique" particle from an entirely different source. Industrial tools and fireworks are both capable of producing particles with a similar composition to GSR. And several studies have suggested that car mechanics are particularly at risk of being falsely accused, because some brake linings contain heavy metals and can form GSR-like particles at the temperatures reached during braking. In one recent study, Bruno Cardinetti and colleagues at the Scientific Investigation Unit of the Carabinieri (the Italian police force) in Rome found that composition alone was not enough to tell true GSR particles from particles formed in brake linings (Forensic Science International, vol 143, p 1).

At an FBI symposium last June, GSR experts discussed ways to improve and standardise the tests. The bureau would not discuss the meeting, but special agent Ann Todd says the FBI's laboratory is preparing a paper for publication that "will make recommendations to the scientific community regarding accepting, conducting and interpreting GSR exams".

Singer maintains that the technique is useful if used carefully. "I think it's important as part of the investigative phase," he says, though not necessarily to be presented in court. But he adds: "There are people who are going to be a bit more, shall we say, enthusiastic. That's where you're going to run into trouble."

(From issue 2527 of New Scientist magazine, 23 November 2005, page 6)



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Amazing case: State Supreme court judges seen as so biased that a man declared not guilty by Australia's highest court refuses to go before them to get his freedom!

Perth man Andrew Mallard has protested his innocence over a brutal murder and called for a Corruption and Crime Commission hearing into his case. Writing from Casuarina Prison on Friday, Mallard said he was overjoyed by a High Court decision this week to quash his conviction for the 1994 murder of Mosman Park jeweller Pamela Lawrence, 45. But he told the Sunday Times he would not apply for bail, as his lawyers suggested, because he did not trust the Supreme Court to be fair.

"I was elated and relieved when I heard that the High Court had quashed my conviction," he wrote in a letter to his sister Jacqui. "I feel that the end of this traumatic ordeal will soon be over and I will walk out of prison an innocent and free man. "If my bail application were to be heard by a High Court judge, I would be then making a bail application immediately, but I will not willingly go back before a West Australian judge who will only support the office of the Director of Public Prosecutions. "I do not trust the WA Supreme Court judges."

Five justices of the High Court unanimously criticised the Supreme Court's 2003 rejection of Mallard's appeal, which was based on evidence not disclosed at his 1995 trial.

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SEMI-RANDOM JUSTICE IN BRITAIN

Criminal suspects are up to eight times more likely to go free in some parts of the country than others because of a postcode system of justice, The Times can disclose. A detailed analysis of the work of Britain's prosecutors shows stark differences in conviction rates around the country for offences ranging from dangerous driving to murder. Data obtained by The Times under the Freedom of Information Act established that:

34 per cent of homicide prosecutions in London involving murder and manslaughter failed

Almost 40 per cent of sexual offence prosecutions in London failed

37 per cent of sex crime prosecutions failed nationally

Hundreds of victims of sexual and violent attacks in Bedfordshire were left with their cases unresolved after almost 50 per cent of prosecutions for sex crimes and offences against the person failed. Bedfordshire came bottom of the first, unofficial league table of the Crown Prosecution Service's 42 regional teams in England and Wales, with an overall conviction rate of 76 per cent.

The performance measurement, compiled from casework data spanning an 11-month period, placed Warwickshire on top with a 93 per cent success rate. The statistics also exposed systemic inefficiencies within the CPS, which took 41,000 cases to court then dropped them at the last moment when lawyers offered no evidence.

Conviction rates reflect other factors including the social composition of juries in different crown courts and the contrasting nature of crime in different parts of the country. But the performance figures coincide with growing concern about courtroom prosecution. HMCPS Inspectorate will begin grading the 42 CPS areas next month as excellent, good, fair or poor. The Times has also learnt that Avon & Somerset Constabulary is conducting its own audit of CPS performance in the Bristol area....

Mr Macdonald said that different levels of performance could be explained in part by contrasts between shire counties and metropolitan areas and in different practices. He said that where prosecutors had taken over the task of charging from police officers, performance was improving. But he expressed concern over the low rate of conviction for sexual offences and the collapse of so many cases.

Ian Kelcey, chairman of the Criminal Law Solicitors Association, said that defence lawyers were increasingly frustrated by CPS delays. Mr Kelcey said: "You can write letters for months and never receive a reply, and there are huge differences in levels of efficiency . . . Every delay hampers the smooth running of the justice system."

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CORRUPTION IN MILITARY JUSTICE

With lies obviously abundant why does this prosecution continue? What sort of prosecution service gives witnesses incentives to lie? And after all the lies, how can "beyond reasonable doubt" ever be satisfied?

A Soldier convicted of murdering unarmed Iraqis testified Thursday that he falsely implicated his platoon leader in one of the slayings so that he could get a lighter prison sentence. The startling testimony came near the conclusion of a military hearing to determine whether 2nd Lt. Erick J. Anderson should be court-martialed on murder charges. A decision isn't expected until after Thanksgiving. Pvt. Michael Williams said, contrary to his earlier statements and those of other Soldiers, that the Iraqi victim was already dead when Anderson arrived. He said Anderson never gave any order to kill him. "I just felt that pressure of getting a life sentence instead of 25 years," Williams said. "It's just a lot of my fear."

On Wednesday, an Army investigator testified that Williams implicated his platoon leader only after his prison sentence was reduced to 25 years from life. Williams' original statement led to murder charges being filed against Anderson in October. Anderson was charged with ordering Williams and a second Soldier to kill Iraqi civilians while the platoon was conducting missions in August 2004 near Sadr City, outside Baghdad.

Prosecutors said in closing arguments that many of the witnesses changed their stories of the events out of loyalty to Anderson, whom many considered a good leader. Capt. Chuck Neill said the original statements given to investigators in Iraq spoke volumes. "These are the kind of events that would stay in someone's mind," Neill said.

Neal Puckett, Anderson's civilian attorney and former Marine Corps judge, said the government's case was a "used car" that would "never pass go in a courtroom." Puckett characterized Williams as a crazed killer who looked out only for himself. "Who knows what's in his brain? He was looking to send bad guys to Allah," Puckett said. The private was given immunity from being charged with crimes related to his testimony.

Williams testified that after entering a house during a search, he and his team found an Iraqi man with an AK-47 rifle. Williams said he shot the man twice in the chest after the man reached for the gun. Contradicting his own statements and those of other Soldiers in the platoon, Williams said he fired a third shot at the Iraqi to make sure he was dead before Anderson arrived at the house.

Prosecutors argue that after entering the house, Anderson told Williams the man was not dead yet and said to finish him off. In the separate incident, prosecutors allege Anderson ordered two sergeants to kill a wounded teenager during night operations near Sadr City. The two sergeants were convicted; they claimed it was a "mercy killing" authorized by Anderson.

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CALIFORNIA: ANOTHER ABSURD SEX PROSECUTION

Gangs roam free shooting and murdering while police and prosecutors waste their time on this rubbish

Margaret De Barraicua, the McClatchy High intern teacher arrested nine months ago for having sex with a 16-year-old special-education student, was sentenced Friday to a year in jail. The 31-year-old mother of a 2-year-old boy declined to speak at her sentencing in Sacramento Superior Court. She pleaded guilty in September on the eve of going on trial on four felony counts of having unlawful sex with a minor. "Her moral compass was broken," Judge Talmadge R. Jones said of the former teacher. De Barraicua was a "novice" and an overwhelmed teacher of "uncontrollable" special education students, the judge said.

Though the 16-year-old was a "troubled youth" who propositioned De Barraicua several times before she consented, the woman "violated a tremendous trust," Jones said. "If he was messed up before he is probably more messed by this offense." Deputy District Attorney Rochelle Hao, who described the four sex acts as "premeditated," urged the judge to require that De Barraicua register as a sex offender to preclude her from ever becoming a teacher again. The judge declined for the time being, providing De Barraicua serves her sentence and does not violate any terms of her five-year probation.

In De Barraicua's favor were two "positive" psychiatric evaluations, her lack of a criminal record, family and community support and a history of volunteerism, the judge said. Sacramento police arrested De Bar-raicua on Feb. 19 after they found her with the student in the front seat of her parked car behind Leonardo da Vinci Elementary School. Her son was strapped into a safety seat in the rear of the car.

Although the student did not attend the sentencing, he wrote a letter that was read in court. "Ever since this, my life has changed completely. I'm not the same boy. At school I became the center of attention. Everyone knew my name. I can't express my feeling," wrote the boy who is not being identified because he is a victim of a sex crime. The teen's sister, who sat next to her father in court, said the family has noticed a change in the teenager. "I believe my brother is mad at life," said the sister. [So he should be at such idiotic events]....

The judge allowed De Barraicua to remain free through the Thanksgiving holiday to spend with her family and ordered her to report to the Sacramento County jail on Dec. 2.

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ABSURD POLITICALLY CORRECT PERSECUTION OF A SEXY MAMMA

Teacher Karen Ellis denies she is a pedophile, despite being jailed for sleeping with a boy young enough to be her son. And her lover Benjamin Dunbar, who was 15 when their affair started, insists he instigated their relationship. In an interview to air tonight on 60 Minutes, the former Melbourne physical education teacher, 38, described the past two years as a "nightmare". "I did come out (of prison) a pedophile," she said. "I don't think I am but the law says I am."

Ellis was released from a Victorian prison this month after serving six months. She had pleaded guilty to six counts of sexual penetration of a child under 16. In 2003, Ellis had a sexual relationship with Dunbar, one of her students. She was married at the time and is the same age as Dunbar's mother. Ellis, whose marriage broke down after the scandal broke, defended the affair. "Ben knew what he was doing, I knew what I was doing. I'm not making excuses at all, it was wrong and if I could I'd take it all back."

Dunbar said he had pursued Ellis. "The way it happened, you could say I was the predator. I mean, I went after her. "I suppose you could call it that (lust). Just a crush that went too far."

While in prison Ellis allegedly told other inmates she wanted to resume the relationship when she was freed, and the pair exchanged letters. They were interviewed after a $40,000 deal with Channel 9, with Victorian police watching to ensure Ellis does not receive a fee because it would be illegal for her to profit from her crimes. It is believed Dunbar will get the money.

But the interview has angered police who investigated the case. Sgt Mark Wakefield warned parents to keep their sons away from her because she continued to display classic pedophile traits. He believes the interview shows she has control over Dunbar, 17, and people who believe no harm was done to him should think again.

Before the affair he had promising scholastic and sporting careers ahead of him. Ellis had also turned him away from his family. "It's all down the drain now. He dropped out of school at Year 10 when all this became public," Sgt Wakefield said. [I don't suppose all the adverse publicity and portrayal of the boy as a victim had anything to do with any subsequent problems he had!]

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HOW ABSURD IS THIS VERDICT?

Two men were cleared yesterday of defrauding a partially sighted pensioner out of a house she owned by asking her to sign for a package on her doorstep. David Graves, 39, bought the house for £5,000 and sold it to developers within weeks for £110,000. He said he spent most of the profit on paying off his mortgage, buying a BMW and giving his ex-girlfriend £5,000 for breast enhancement surgery.

The prosecution claimed that Graves's friend, Richard Skidmore, 35, delivered an envelope containing chocolates to Ambrosine St Clair Fretwell, 87. Underneath the package was a folded Land Registry document and Mrs Fretwell, who is registered blind, said she thought that she was signing for a parcel.

Graves and Skidmore, both from Rotherham, denied conspiracy to defraud. Graves also denied transferring criminal property. Both were cleared after a nine-day trial. Mrs Fretwell bought the detached house at Swinton, South Yorks, for £42,500 in 1990. She told the court it was "impossible" that she could have signed away the title deeds. Graves claimed that Mrs Fretwell had "gifted" him the house because she did not want her son to have it.

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INDIAN SUPREME COURT REVERSES STATE HIGH COURT ON DAUGHTER RAPE

Disturbing that a State High Court refused to take the matter seriously

Terming it as a rarest of rare crime, the Supreme Court has awarded life sentence to a man for raping his minor daughter. “When the perpetrator of the crime is the father against his own daughter it is more rarest of rare which warrants deterrent judicial hand,” the apex court ruled.

Expressing ‘displeasure’ and ‘dismay’ against Himachal Pradesh High Court for acquitting the accused, who was convicted and sentenced to five year’s imprisonment with a fine of Rs 1000 by a trial court, a Bench comprising Justice H.K. Sema and Justice P.P. Naolekar not only awarded maximum punishment for the crime but also enhanced the amount of fine to Rs 25,000. The court also cancelled his bail bond and surety and directed the police to take the accused in custody forthwith.

Setting aside the verdict of the High Court and retaining the trial court judgement, the Bench said, “We are clearly of the view that the High Court has erred in law as well as on facts and thereby committed a grave miscarriage of justice in acquitting the accused by reversing the conviction by the trial court under Section 376 (punishment for rape) IPC”.

The accused Asha Ram, living in the servant quarters attached to Raj Bhawan, had raped his minor daughter on the intervening night of August 28-19, 1988 and the trial court had `prime facie' found him guilty of the crime. Observing that even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of the hapless woman, Justice Sema writing the judgement for the Bench, said, "this is more so when the perpetrator of the grave crime is the father of the victim". "Father is the fortress, refuge and trustee of his daughter. By betraying the trust and taking undue advantage of the trust reposed in him by the daughter. He ravished the chastity of his daughter, jeopardised her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated," the Bench observed. "Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives," it added.

However, the apex court said, "we record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case in hand, overlooking the alarming and shocking increase of sexual assault on the minor girls".
"The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sexual violence against minors much less by the father," the Bench said.

It said from evidence it was established that despite strained relation, the family was happily living and there was no reason why the daughter should depose falsely so as to expose her honour and dignity and also expose the family risking outcasting or ostracisation by the society.

The court said, "no girl of self respect and dignity who is conscious of her chastity and having expectations of married life and livelihood would accuse falsely against any person of rape, much less against her father, sacrificing thereby her chastity and also expose the entire family to shame and at risk of condemnation and ostracisation by the society". "It is unthinkable to suggest that the mother would go to the extent of inventing a story of sexual assault of her own daughter and tutor her to narrate a story of sexual assault against a person who is no other than her husband and father of the girl at the risk of bringing down their social status and spoil their reputation in the society as well as family circle to which they belong," the Bench observed.

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Petty prosecution of GI: "A Mesa military man heading to Iraq on Thursday must decide if his drunken driving trial should wait until he comes home in 18 months, or if it should go on without him. Michael Denofre, an Army National Guardsman, contends he was simply sleeping in an idling truck to avoid arguing with his wife -- not driving it drunk. His trial is scheduled to begin Dec. 14 in Maricopa County Superior Court. If convicted, he would be dishonorably discharged. Standing trial in absentia would mean passing on the chance to take the stand, or he can try and postpone it until his return. Either choice is unfair, his attorney said. 'If I continually move (for postponement) for a year and a half, is that still a fair and speedy trial,' said defense attorney Bethany Jacobs. The 30-year-old supply sergeant from Mesa-based 1/ 180th Field Artillery Unit, is going to trial because he contends he did not drive Feb. 5 when Mesa police arrested him outside his wife's house. He was found behind the wheel of his truck drunk, asleep, surrounded by empty beer cans and with the engine running."




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ARROGANT JUDGE SACKED

If only there were more of it

A state agency removed a judge from the bench Wednesday, concluding that he engaged in "a shocking abuse of power" that led to the wrongful conviction and two-day jail stay for a woman challenging a traffic infraction. Superior Court Judge Kevin Ross was also cited for filming a pilot television series, called "Mobile Court," in which a real small-claims case was heard in a Los Angeles strip club, with Ross presiding.

In 2003, Ross threw a woman in jail who was challenging a seat belt violation. The judge concluded she lied when she said she wasn't the motorist who was pulled over. Ross never read the new charge to the woman, never informed her of her right to an attorney or right to challenge the case, according to the Commission on Judicial Performance, a state judicial watchdog agency.

Once officials learned of the woman's plight, another judge released her and dismissed the case. The commission concluded Ross illegally assumed "the function of the prosecutor to add additional charges." The panel said Ross tried to cover up the 2003 jailing during hearings before the commission.

Ross, who first won election to the bench in 1999, said in a statement he was unsure whether he would appeal the commission's decision to the state Supreme Court. "As I have previously indicated, I accept complete responsibility for those specific actions that did not exemplify the highest standards of judicial excellence," Ross said....

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BRITISH KEYSTONE COPS

If being caught speeding meant a two-day spell in police cells with only a bowl of cornflakes for company, perhaps more motorists would stick to the limit. But for one woman, a long-forgotten 14-month-old speeding offence led to a police response more akin to that reserved for terrorist suspects. Michelle Keating, 43, a mother of four, was held in solitary confinement, deprived of contact with her family and taken on a 400-mile (644km) trip to appear before a weekend sitting of a court where she was handcuffed to a male security officer. She is now considering suing for wrongful arrest after prosecutors dropped the charges against her because they were "not in the public interest".

"All I did was commit a speeding offence which I admitted immediately at the time. It is not as it I am a terrorist. It is disgusting that this can happen to someone like myself," Mrs Keating said. Her "hellish ordeal" began last Thursday after Mrs Keating, who runs an aviation business with her husband,Christopher, was stopped during a routine police check. Unbeknown to Mrs Keating, who lives near Inverurie, Aberdeenshire, an outstanding warrant for her arrest had been issued after she had been caught speeding at 100mph on the M180 motorway in North Lincolnshire last September. When a notice of her offence arrived in the post, she wrote back confirming that she was at wheel and over the speed limit. However, she thought that Humberside Police had dropped the charge when a court summons failed to arrive and thought no more about it.

That was until last Thursday. After her arrest she was taken to Aberdeen's Queen Street police station where she was held overnight in solitary. Mrs Keating was transferred on Friday evening to Scunthorpe after officers made a 900-mile round trip. "I was petrified the car would crash. They had to drive all the way to Aberdeen and back with only a 15-minute break. I was worried the driver would fall asleep. I was only given a bowl of cornflakes on Friday morning in my cell. I had a couple of mouthfuls and it actually made me sick."

Much to the relief of the Keatings, Andrew Horner, for the prosecution, confirmed that she had been found guilty of speeding in her absence and then withdrew the case. The summons and letters presented in court had all been returned and marked "unknown at this address" despite the fact that the Keatings had moved house after the offence, had all their mail forwarded and had reregistered the car. Stuart Cranidge, Mrs Keating's solicitor, said: "It is one the most outrageous cases I have dealt with."

A Humberside police spokesman said: "It shouldn't have got to this situation. We've not received a complaint from her but if we do then we will investigate the circumstances."

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JUDGE THROWS OUT SEVEN-YEAR, MULTI-MILLION DOLLAR PROSECUTION

A crucial piece of prosecution evidence was completely missing. Justice was done in the end but why was the prosecution ever brought?

Three key players in Australia's biggest corporate failure walked free yesterday after a case involving what prosecutors described as a "breathtakingly dishonest scheme" sensationally collapsed. Former FAI Insurance executives Timothy Mainprize, Daniel Wilkie and Stephen Burroughs can never be tried again. NSW Supreme Court judge Rod Howie directed a jury to acquit the trio on all charges relating to the $5.3billion collapse of the HIH insurance group in 2001.

The three men hugged friends and family inside the court as a seven-year ordeal that saw them adversely named at a royal commission and the loss of high-flying careers came to an end. "We won't ever come back here again," Marjoh Mainprize said to her husband as they left the court arm in arm.

The trial centred on jailed businessman Rodney Adler's former company, FAI Insurance, which was taken over by HIH shortly before its collapse. The Australian Securities and Investments Commission brought dishonesty charges based on evidence given to the 15-month royal commission into the nation's biggest corporate collapse. The prosecution accused the trio of a "breathtakingly dishonest scheme" of hiding secret side-deals to a reinsurance contract that allowed the struggling and under-reserved FAI to post an $8.6million profit instead of a $19.9million loss just before HIH acquired it in a $300million takeover in September 1998.

Justice Howie said he agreed with the defence that the prosecution had failed to answer a critical question in the case. He was "troubled" because of a lack of evidence of an oral agreement between the accused men and executives from reinsurers General Cologne Re that FAI would not claim against a $12.5million reinsurance policy. "The Crown's circumstantial case can't be proven beyond reasonable doubt that there was an oral agreement," Justice Howie said yesterday.

Defence barrister Philip Strickland SC had earlier described the prosecution case as a "corpse" and defence barrister Geoff Lindsay SC said there was a "yawning gap in the evidence".

Former chief operating officer Mr Wilkie and FAI finance director Mr Mainprize pleaded not guilty to two charges each of failing to act honestly as company officers and one each of misleading FAI's auditors. Mr Burroughs pleaded not guilty to one charge of failing to act honestly as a company officer. Mr Wilkie and Mr Mainprize were acquitted last week on charges of misleading FAI's auditors, on a direction from Justice Howie. Justice Howie said it was the first time in his 10 years at the bench that he had been forced to direct a jury to acquit on all charges.

ASIC chairman Jeffery Lucy yesterday blamed the failed attempt to have the men jailed alongside HIH founder Ray Williams and Adler on the complexity of financial prosecutions. But he said the acquittal would not deter the corporate regulator from pursuing complex matters where it believed the law had been breached. "Just because a case is complex should not provide a shield against prosecution," Mr Lucy said in a statement. But defence lawyers rejected Mr Lucy's claim, pointing to the Crown prosecutor's comment to the jury on the first day of the trial. "It was very, very simple indeed," prosecutor Stephen Rushton SC told the 12 jurors.

The committal hearing held last year and three-month trial cost millions of dollars in taxpayers' funds.

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ANOTHER CASE OF CORRUPT PROSECUTORS WHO JUST WON'T ADMIT THAT THEY WERE WRONG

I mentioned the case in more detail on 13th June

A 54-year-old former death row inmate has asked the Illinois Prisoner Review Board to recommend to the governor that the slayings of two people be erased from his record. But the Appellate Prosecutor's Office told the board yesterday that it needs a few more months [They have already had 20 years!] to decide whether to retry Gordon "Randy" Steidl.

Steidl was the 18th person since Illinois reinstated the death penalty in 1977 to be freed because of a wrongful conviction after serving time on Illinois' death row. A federal judge ruled in June 2003 that the jury that convicted him of the 1986 murders of newlyweds Dyke and Karen Rhoads of Paris did not hear all the evidence. Steidl is seeking a pardon from Governor Rod Blagojevich (bluh-GOY'-uh-vitch). But prosecutors have said he Steidl still a suspect in the case.

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IF A LAW DOES NOT EXIST, MAKE IT UP!

Corey Eason doesn't proclaim to be a saint. At 26, he already has two felony drug convictions on his record, one for dealing cocaine and the other for possession of cocaine and marijuana. But the Bloomington man felt good Tuesday morning when he walked out of the McLean County Law and Justice Center. McLean County prosecutors agreed to overturn a third, more dubious felony -- failure to register as a sex offender.

What's unclear is how Eason ended up being convicted of that crime in the first place. According to Illinois State Police, the agency that maintains the names and addresses of Illinois' sex offenders, Eason never should have been placed on the list. He was convicted of a sex offense as a juvenile in Livingston County in 1995, but the state didn't begin requiring minors to register their addresses with authorities until 1999. So why was Eason charged with failing to register three times during the last year in McLean County?

It's a question Bloomington attorney Leann Hill began asking after Eason approached her last month hoping to get his picture removed from the state's sex offender Web site. She turned to the county's probation department, which started questioning the state police about the matter. Hill believed their answer, confirming Eason should not be considered a sex offender, would persuade county prosecutors to overturn his conviction in March for failing to inform police about an address change.

With a pending case for drug possession, Hill said prosecutors initially refused to acknowledge the wrongful conviction. But during a hearing Tuesday, prosecutors vacated Eason's conviction for failing to register. Eason was placed on two years' probation for the drug possession. "The law works in mysterious ways," McLean County Circuit Judge Ronald Dozier told Eason during the hearing. "I'm glad we got this straightened out before it got too much further down the line."

Rick Hector, spokesman for the Illinois State Police, said there's an investigation to determine how Eason ended up on the sex offender registry. State police are provided information about known sex offenders so another law enforcement agency likely is to blame, Hector said. Mark Messman, the county's chief felony prosecutor, said he's unsure why Eason was charged or convicted of the crime. By looking at the original sex offense, either the prosecutor or public defender assigned to his case could have recognized he's not required to register. "Making good charging decisions is one of the most important things we do here," Messman said. "It's a system run by people and mistakes can happen. Somewhere along the line, somebody should have caught this."

Eason, who says he knows he hasn't made the best decisions in life, said being listed as a sex offender has been a terrible stigma during the last three years. He was originally forced to register after being paroled from prison for dealing cocaine in 2002. "I'm just tired of dealing with it," Eason said. "It just made my life miserable. I've been through a lot over this. I've lost jobs, my house. Police harass me. Prosecutors call me child molester in open court. I couldn't even go out in public without having people thinking I'm a sex offender." Eason said a lawsuit against the state and perhaps even the county could be forthcoming. He's working on retaining an attorney, and says McLean County won't be spared just because prosecutors did the right thing by overturning his wrongful conviction. "They know that something was wrong. That's why they gave me the deal," Eason said after leaving the courthouse with one less felony on his record. "They think I'm just going to go away. No. This is just the beginning

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BOSTON POLICE NO LONGER TRUSTED WITH FINGERPRINT EVIDENCE

How unsurprising! If this case brings to general awareness that fingerprint evidence needs independent civilian scrutiny in all cases, something will have been gained

Boston police have hired two civilian fingerprint analysts as part of an overhaul of their fingerprint unit.

Commissioner Kathleen O'Toole shut down the unit a year ago. The unit was blamed for the wrongful conviction of Boston resident Stephan Cowans, who was jailed for the shooting and wounding of a police officer in 1997. It had been plagued by backlogs and long-standing problems with accuracy. The Boston Globe reports that two civilian analysts who worked with Vermont State Police have been hired. The department has not announced the changes.

Cowans was released from prison in January 2004 after serving about six-and-a-half years and is in the process of collecting money from the state for his wrongful incarceration.

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See my post of July 14 for more on the Cowans case



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JUSTICE COMING TO CHINA AT LAST

A Chinese man is suing a regional court for sentencing him to death and putting him in jail for nearly 600 days for a murder he says he was tortured into confessing. The case is the latest in a series of high-profile wrongful arrests that have surfaced in China and raised hard questions about police methods and local courts' apparently arbitrary use of the death penalty.

Zhou Rukou, 51, filed a suit against the Intermediate People's Court and the prosecutor's office of Yancheng city in eastern Jiangsu province, after the murder and robbery charges that kept him in jail for 567 days were dropped in April.

Mr Zou was arrested in April 2002 on suspicion of robbing and murdering an 84-year-old man from his village. At the time of the arrest, police said a bruise on Mr Zhou's neck was proof of a struggle between the two, his lawyer was quoted as saying. Police were not able to produce a weapon or other evidence of the crime.
Yet a local court sentenced Mr Zhou to death in September 2002. That ruling was overturned at a 2003 retrial by a provincial court for lack of evidence. Mr Zhou was released on bail in November that year and has since said he was tortured by 12 policemen into confessing to the crimes.

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DISGRACEFUL POLICE-WORK IN DETROIT

Detroit native Ann Mullen won a first-place AltWeekly Award in the News Story--Long Form category for her in-depth piece "Confessions and Recantations," which ran in Detroit's Metro Times in 2004. The paralegal turned journalist spent several weeks researching and writing this story about a 13-year-old boy, Antoine Morris, who gave police a written statement saying that he had helped his 18-year-old friend, Vidale McDowell, kill Antoine's mother.

Almost immediately after the boy "confessed" he tried to recant, saying the police had scared him into signing the statements by convincing him he was bound for jail otherwise. Even so, Antoine's statement helped get McDowell convicted of second-degree murder and sentenced to life in prison, while Antoine accepted a plea bargain that let him go free on probation.

Through her thorough investigation, Mullen exposed the Detroit Police Department's faulty and inconsistent work. While the murder has never been solved, six months after Mullen's article appeared, the Michigan Court of Appeals overturned McDowell's conviction, and he was not retried.

A year ago, Mullen left the Metro Times after more than seven years as a staff writer to work as a reporter for ABC's WXYZ Channel 7 Action News. Here, she talks about her award-winning story.

How did this story come to your attention?

The forensic psychologist who worked on this case was familiar with some of my previous work and contacted me. After evaluating Antoine, he was convinced these kids hadn't committed these crimes. As soon as I started investigating, I kept finding evidence that didn't add up. For one thing, Antoine said he had been sleeping upstairs the night his mother was murdered. The police insisted that Antoine could not have slept through the murder -- his mother was shot several times. But it was later discovered that he had a hearing problem and may have been able to sleep through gunfire.

What challenges did you face working on this story?

There had been a lot of sloppy, lazy police work. There was a lot that didn't make any sense. The police said they had a statement from a man who said he had been in the basement of Antoine's home with Antoine's mother just before she went upstairs and was killed. But the police said that the man's initial statement, supposedly made on the night of the murder, was lost, though the police originally said it didn't exist.

There were theories that seemed like they had been invented. The police said the kid across the street had come over with a gun and some wire cutters. But then they said the murder hadn't been premeditated. There was just a lot of stuff that didn't add up. Antoine's mother's ex-husband lived next door, and he had several guns. He also threatened her life in the past. Another man had beaten her up recently. But both were quickly ruled out as suspects. Antoine's dad wasn't present for portions of the interrogation, which is illegal.

The main detective involved in the case agreed to be interviewed, and I thought he was being pretty cagey with me. With Antoine, it was hard to get his attorney to agree to let him talk to me, and in fact his attorney never really did agree, but I did anyway. It was funny because I was trying to help him. The attorney also didn't want me talking to Antoine's father. but I did anyway.

Do you know what has happened to Antoine Morris since your story was published?

I bumped into Antoine and his father at a gas station recently. I hadn't seen them in a couple of years. We all hugged, and they seemed fine. And after everything they had gone through, Vidale and Antoine are still friends.

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DNA LOOPHOLE

Something similar to the case below can happen with blood donors and blood recipients, though the effect seems not to be as long-term

It sounds like an open-and-shut case: a clear DNA match is made between semen from a serious sexual assault and a blood sample from a known criminal. Yet in a recent case from Alaska, the criminal in question was in jail when the assault took place. And forensic scientists had already matched the crime sample to the DNA profile of another person who was their prime suspect. It was only after careful detective work that the mystery was solved: the jailed man had received bone marrow from the suspect many years earlier.

This week, at a meeting of the American Society of Human Genetics in Salt Lake City, Utah, Abirami Chidambaram of the Alaska State Scientific Crime Detection Laboratory in Anchorage described the case to highlight the danger of miscarriages of justice. Given the retribution that can be doled out to sex offenders by other jail inmates, the consequences could be severe. "If you implicate the wrong person, they can be killed in prison," says Chidambaram. “As forensic DNA databases grow and more people undergo bone marrow transplants, the risk of a miscarriage of justice increases”

When Chidambaram discovered the perplexing match, she initially thought there had been a sample mix-up. But there was no mistake. What's more, the jailed man and suspect shared the same surname. Because medical records are confidential, a detective had to make further enquiries among family and friends of the two men. That revealed that not only were the convict and suspect brothers, but the inmate had received a bone marrow transplant from his brother. As a result, his blood was populated with cells bearing his brother's DNA profile.

It's an instance of life imitating art: in November 2004, US TV channel NBC broadcast an episode of Law and Order: Special victims unit in which a rapist nearly got away with his crimes because of a similar bone-marrow mix-up. The chances of cases like this arising are very low. But as forensic DNA databases expand, and more people undergo marrow transplants, the risk of a miscarriage of justice will increase. "It makes sense for investigators to be savvy to this," says David Lazer of Harvard University, who studies the policy issues surrounding forensic DNA testing.

Until recently, bone marrow transplants involved destroying the patient's own bone marrow. In such cases their blood will contain the DNA profile of the donor alone. But some treatments in recent years, such as therapies to treat sickle cell disease, retain some of the patient's original bone marrow, so their blood can contain a mixed DNA profile. Mixed profiles can also occur when DNA is collected from swabs taken from the inside of the cheek, rather than blood samples. This practice is already standard in the UK and is increasingly being used by US police.

Cheek cells of a bone marrow recipient will contain mostly their own DNA, but can become contaminated with the donor's DNA over time. So police may have to check both blood and cheek samples to be sure of spotting a transplant recipient. Lazer believes it would cost too much to routinely check both types of sample to confirm whether a suspect has received a bone marrow transplant, and Helen Ng, spokeswoman for the US National Marrow Donor Program, based in Minneapolis, stresses that it would happen only very rarely. "I hope it doesn't prevent people giving patients what they need," she says.

But Chidambaram argues that potential marrow donors should be informed of the small risk of their DNA profile turning up in a crime database if the recipient later commits an offence.

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WISCONSIN: AMAZING DETERMINATION TO "GET" AN INNOCENT MAN

On July 29, 1985, Steven Avery spent the day with his family, first shopping in the morning, then helping to pour concrete at his father's home, then buying paint at a Shopko in Green Bay with his wife and five children in the late afternoon and early evening.

Late that same afternoon, a woman was brutally attacked, sexually assaulted, and nearly killed on a beach in Manitowoc County, Wisconsin.

Sixteen witnesses, including Avery's family and friends, a cement contractor, and clerks at Shopko, along with store receipts from Shopko, corroborated Avery's alibi. But the state didn't believe Avery or his 16 alibi witnesses. He was charged with and convicted of the brutal attack on that beach in Manitowoc County, based almost entirely on eyewitness identification testimony of a single witness. The state also presented microscopic hair examination evidence indicating that a hair found on Avery was "consistent" with the victim's hair. Avery was sentenced to 32 years in prison in March 1986.

Avery's conviction was affirmed by the Wisconsin Court of Appeals, and the Wisconsin Supreme Court denied discretionary review. Ten years later, in 1995, Avery sought DNA testing on fingernail scrapings taken from the victim immediately after the crime. Those tests revealed genetic markers consistent with both the victim and Avery, so that the laboratory could neither conclusively exclude Avery (on the off-chance that he and the victim shared those markers), nor identify him as the perpetrator. Those tests, however, also revealed DNA from another, unknown person, which could not have come from Avery. Despite this evidence of a third-party, the Wisconsin courts denied relief, holding that the DNA evidence was not sufficient to warrant a new trial.

In April 2002 the Wisconsin Innocence Project of the University of Wisconsin Law School obtained a court order, over the state's objection, under Wisconsin's postconviction DNA testing statute for new testing under newer, more powerful DNA technology. The Wisconsin Crime Laboratory succeeded in developing a PCR/STR profile from a pubic hair retrieved immediately after the assault from the victim's pubic hair combings. On September 10, 2003, the lab results were released, proving that Avery and his witnesses were telling the truth, that he was not at that beach on July 29, 1985, that he had nothing to do with the crime, and that the eyewitness was simply mistaken, as eyewitnesses often are. The DNA test conclusively excluded Avery as the source of the pubic hair, and also identified the true perpetrator of this crime, a man named Gregory Allen, who is currently serving a 60-year sentence in prison for sexual assaults committed after this one. Allen was matched to the DNA profile in this case through a search of the state and national DNA databases.

The very afternoon that the final results were in from the lab, on September 10, 2003, the new District Attorney stipulated that Avery is innocent and that he should be freed and the case dismissed. Later that same afternoon, the court signed an order officially exonerating Avery and ordering his immediate release. Shortly before 9:00 a.m. the next morning, September 11, 2003, Avery walked out of the Stanley Correctional Institution. He had served over 18 years in prison for a crime he did not commit.

When Avery was hauled off to prison he lost virtually everything. When he was arrested he had a wife and five children, a job, and a supportive extended family. His wife divorced him while he was in prison. When he walked out of prison, his children were all grown. Two of his children-twins-were less than a week old when he was imprisoned. When he was released, they were 18. He never had a chance to know those children.

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Someone still seems to have it in for Avery. Some damaging evidence in a new crime seems to have been "planted" on him just recently -- and "found" via an anonymous tipoff!



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MORE ON THE PETER ROSE WRONGFUL CONVICTION

Guilty police are still untouched. I mentioned this case previously on Oct 22.

A year ago, 37-year-old Peter J. Rose walked out of Mule Creek State Prison in Ione (Amador County), straight into the arms of his children. He had served nearly 10 years of hard time for the 1994 rape of a 13-year-old girl before DNA testing proved his innocence. If not for the Northern California Innocence Project, he'd likely still be behind bars. To date, there has been no official inquiry into the failures that led to his wrongful conviction, nor has anyone been held accountable. Sadly, that means it will take longer for Rose and his family to heal from this miscarriage of justice and the decade they lost. Which is precisely why California needs an "innocence commission."

From the get-go, Rose maintained his innocence, telling the judge, "I don't need a lawyer, I'm innocent." But the jury chose to believe the 13-year-old victim who identified Rose in court as her rapist. What the jury didn't know was that before her three-hour interview with Lodi police, she had insisted she never saw her attacker's face. But according to court records, detectives goaded her into naming the rapist. They even insisted she take off her crucifix so she "wouldn't be lying in the presence of the Lord." After hours under pressure, the young girl said: "Maybe it could be Pete? My aunt thinks it was Pete. Is it Pete?" At that point, the detectives changed their tone. "You're doing good here," they said. And slowly but steadily, the young girl's hesitancy turned into certainty. The jury found Rose guilty, and when the judge sentenced him to 27 years in prison, Rose wept.

Law students enrolled in Golden Gate University's Northern California Innocence Project, who investigated Rose's claim of innocence, were initially told that all the evidence in the case had been destroyed, but they kept looking. Their persistence was rewarded: A small cutting from the rape victim's underwear turned up in a laboratory where it had been sitting since Rose's trial. The students filed a motion for DNA testing. The results were clear: The DNA profile obtained from the cutting could not have come from Rose. On Oct. 29, 2004, San Joaquin Superior Court Judge Stephen Demetras ordered Rose's immediate release. Students and lawyers from the Innocence Project carried the judge's order to the prison and watched Rose walk to freedom.

Earlier this year, Rose was declared factually innocent, wiping the conviction from his record, and on Oct. 20, his request for compensation from the state, at $100 for each day of post-conviction wrongful incarceration, was approved. But Rose has yet to receive an apology or explanation. Not from the Lodi Police Department, whose internal investigation cleared itself of any wrongdoing. Not from the San Joaquin D.A.'s office which, as far as we know, has never questioned its handling of the case. Not from the victim, now 24, who upon learning of Rose's release recanted her testimony, saying she only named Rose because of police pressure. And not from his court-appointed attorney, who not only failed to inform the jury that blood tests should have excluded Rose as a suspect, but who also failed to bring up the coercive tactics police used with the rape victim.

Since 1989, 163 prisoners in the United States have been exonerated through post-conviction DNA testing, according to the New York Innocence Project (www.innocenceproject.org). In each case, the system failed, due to police or prosecutor misconduct, questionable identification procedures, coerced confessions, racism or ineffective counsel. All this underscores the need for an innocence commission, a blue-ribbon panel of criminal justice professionals whose job it is to conduct post-mortems of wrongful convictions, such as Rose's, and make recommendations for change. If other catastrophes, such as hospital malpractice cases, terrorist attacks and airplane crashes, are subject to investigations that result in someone taking responsibility and instituting reforms, why not wrongful convictions? Ten years stolen from a man's life deserves no less.

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CANADIANS GOOF YET AGAIN

A man convicted of a brutal 1990 murder of a teenage girl in Manitoba has been granted bail while the federal Justice Minister reviews his case. Kyle Unger, who has been in jail for more than 13 years, will be released under a ruling delivered yesterday by Madam Justice Holly Beard of the Manitoba Court of Queen's Bench. "There are very serious concerns that [he] may have been wrongfully convicted and . . . there is no reason to refuse to release Mr. Unger," Judge Beard said in her ruling. Mr. Unger and another man, Timothy Houlahan, were convicted of the murder of 16-year-old Brigitte Grenier at a rock music festival at a ski resort near Roseisle, southwest of Winnipeg, in June, 1990. Her body was found in a creek, brutally beaten, raped and strangled.

Mr. Houlahan's conviction was overturned after an appeal, but he committed suicide before he could be retried. Mr. Unger, who was 19 at the time of the slaying, has consistently proclaimed his innocence. Now Judge Beard has said he should be released pending the federal review because "there is . . . strong evidence that [Mr. Unger's] conviction may not be sustainable."

James Lockyer, the lawyer who argued for Mr. Unger's release, said yesterday that the ruling "is a very encouraging judgment." The conviction, he said, "is potentially a classic case of wrongful conviction for a horrid, brutal crime [where there was] a rush to judgment."

One of the main pieces of evidence tying Mr. Unger to the slaying of Ms. Grenier was a hair found on her body. A process known as hair microscopy suggested it was Mr. Unger's hair, but a DNA analysis conducted last year showed that was a mistake. The Crown also used testimony from a jailhouse informant, but that has now been discredited.

Third, Mr. Unger made a confession to undercover police officers who were posing as drug dealers in a sting operation set up to get him to talk. At his trial, however, Mr. Unger said that he lied about the killing to impress the men, because he thought if he looked tough they would give him a job.

Judge Beard noted in her ruling that some of the details of the killing that Mr. Unger gave to the undercover officers were wrong, and this raised questions about the validity of what he said. With the other two pieces of evidence now removed, "all that is left is the confession to the police . . .," the judge said, and that is "fraught with serious weaknesses."

Mr. Lockyer said his client will probably be released some time next week, after Judge Beard talks to the lawyers about terms and conditions for his bail. When he is released from a British Columbia prison, Mr. Unger wants to live with his parents in Merritt, B.C. A report on Mr. Unger's case by the Justice Department's criminal conviction review group is not expected to be ready until the end of the year. As a result, Justice Minister Irwin Cotler won't likely make a decision on what to do with the case until some time in 2006.

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THE MANNIX CASE

Yesterday's account of an innocent man being released only because the real killer confessed is not a totally isolated event. In the following Australian case a young boy was pressured by police threats into confessing to the murder of his father -- and was only released because the real guilty parties owned up. The behaviour of the corrupt police involved was later the subject of an official whitewash and they were never charged with any offence

In the early hours of 22 June 1984, Kevin Mannix met a horrible death. He had been bound, gagged, blindfolded and was carried from his Gold Coast unit for reasons which were not immediately clear when his body was discovered. In the course of his abduction, Mannix managed to free one hand, and to remove part of the adhesive tape covering his mouth. When he uttered a cry for help, he was thrown bodily down the flight of stairs leading from the unit, his head striking a concrete pillar. Mannix was stabbed numerous times in the chest, and his throat cut. It was a particularly brutal murder.

The nature of the crime and the background of its victim were to attract considerable attention. Mannix was the proprietor of a sex shop across the New South Wales border in Tweed Heads. He was a well-known purveyor of erotic literature, videos and assorted paraphernalia, and a producer of occasional strip-shows, who had previously been the subject of minor prosecutions on charges relating to obscene publications.

Detectives from the Broadbeach Criminal Investigation Branch, Queensland Police, began their inquiries the morning of 22 June. But the detectives had a difficult time, as the motive for the killing was not immediately apparent, and there were no obvious suspects. The days wore on without anyone having been charged. After more than ten days had passed, the inspector in charge of the Queensland Police Homicide Squad arrived from Brisbane with a senior detective to check on the progress of the investigation.

The suspicions of investigating detectives soon focused on the victim's son, Barry, who had initially notified police that he discovered his father's corpse outside the block of units. Barry had appeared remarkably composed when police had arrived at the scene of the crime. He reported having returned to his father's unit shortly after midnight on 22 June finding it unlocked with the lights on. The television set and room heater were both on as well. The father's coin collection was scattered on the floor.

Barry Mannix told police that he did not regard this situation as suspicious and he assumed that his father had gone out. Barry, who had been working at his father's sex shop, said that on returning to his father's unit, he watched television briefly, then fell asleep and discovered his father's body the next morning when he awoke and went out on the balcony of the unit to check the condition of the surf.

Barry's unusual behaviour before and after notifying the police aroused suspicion enough. Investigators also learned that Barry had arranged for the removal of a pistol belonging to his father from the crime scene shortly before police arrived. On 6 July 1984, Barry Mannix was asked to accompany detectives to the Broadbeach CIB office. He went willingly.

The techniques of interrogating a person suspected of having committed a crime have evolved considerably from ancient practices of ordeal by fire. No longer is it regarded as acceptable to use or threaten physical force to coerce a suspect to confess. The practice of 'verballing' - fabricating a confession and attributing it to a suspect - is similarly frowned upon, at least officially.

In order to maintain a psychological advantage over a suspect, interrogators do not encourage consultation with family, friends or legal counsel. They seek to convey the impression that they know more about the suspect's involvement in the alleged offence than they actually do. Interrogation over a prolonged period is designed to weaken a suspect's defences. Upon occasion, interrogators may resort to methods of deceit or guile which might not be considered appropriate in conventional social discourse. The language which they employ tends to depart from standards of polite formality.

After intermittent interrogation over the following twelve hours, during which, he later alleged, he was neither free to leave the police station nor permitted to contact his mother, Barry Mannix signed two written confessions to having murdered his father. At 1.48 a.m. he was charged with his father's murder. When his mother arrived at the station his first words to her were 'I want you to know I didn't do it'.

Barry Mannix was taken to the Southport Watchhouse for the weekend, and on Monday 9 July 1984 was moved to Her Majesty's Prison Brisbane. On 20 July 1984 he appeared before Mr O'Connell SM, in Southport Magistrate's Court and was remanded to 10 September for committal proceedings. On 15 October 1984, Mannix was committed for trial. But before the trial commenced the case took a strange turn. On 7 November 1984, another person was being questioned by police about a stolen car. Burdened with guilt, he confessed to being a party to the murder of Kevin Mannix. In doing so, he implicated three accomplices - none of whom was Barry Mannix.

Three of the suspects were arrested on 8 November, and the fourth surrendered a few days later. One had been a former employee of Kevin Mannix, and had felt that he had not received a fair share of the strip-show profits. The four had intended to abduct Mannix and to rob his home and sex shop. On 15 November, Barry Mannix lodged a complaint with the Police Complaints Tribunal of Queensland. The following day he applied for bail and was released from custody. On 6 December 1984, the Attorney-General of Queensland filed a 'No True Bill' in the Mannix case, and Barry, fearing that he might become a target for police harassment, fled to New Zealand.

In his complaint to the Tribunal, Barry Mannix alleged that he confessed only after police threatened to charge other members of the family with the murde. Referring to one detective's questions, Barry Mannix testified:

Then he started saying that my parents were both 'evil' and told me that if I don't give them a statement of what happened, that he would lock my mother up with me and if my grandparents knew anything about it they would be locked up as well and then my brother and sister would spend the rest of their lives in foster homes. They also said that my mother would be charged with accessory to murder and I would be charged as well if I didn't make a statement. After that they said they were going to bring in the photos of my father's autopsy and I just kept on saying 'no, don't, I don't want to see them.' (quoted in Queensland 1986, p. 14).

He further alleged physical abuse at the hands of police. Referring to the conduct of one detective, he alleged.

He told me the CIB were fed up with my lying and he started asking me how I did it and why and when I told him that I knew nothing about it, he slammed his fist on the table, got up and grabbed me by the hair at the back of the head and pulled his other hand in a clenched fist up to his side and said: 'I ought to smash you right in the face you shithead' (quoted in Queensland 1986, p. 13).

The Mannix case was hardly the first occasion in Queensland in which police investigative practices had been called into question. Indeed, disclosures by a police constable in 1975 that a substantial portion of the evidence in one case had been concocted by police gave rise to a wide ranging judicial inquiry into police practices.

Anyone whose goals are thwarted by legal technicalities is likely to become impatient. There are those police who embrace an ideology which holds that the ends of policing justify the means. There are others, for whom policing is simply a way to make a living. As is the case with ordinary citizens, the inconveniences of life often tempt one to cut corners.

Few laypersons can appreciate the frustration which police experience when they have identified a person whom they are virtually certain of having committed an offence but lack sufficient evidence to lay charges. Such frustration may be particularly acute amongst those police who view their work not in terms of adventure, professional advancement, gamesmanship or intellectual challenge, but rather in terms of a crusade against evil.

The Lucas Inquiry, as it came to be called, found evidence of assaults on suspects, planting of evidence, forgery of warrants and fabrication of confessions by police on a significant scale. Its most significant recommendation called for the routine mechanical recording of interrogations conducted by police in all cases involving indictable offences. (Queensland 1977, p. iv). The proposal met with resistance from the Queensland Police and was not implemented.

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HOW LUCKY CAN YOU GET?

An innocent Rhode Island man was freed only because the guilty man came forward

The former Warwick police detective imprisoned for murder is filing a civil lawsuit against those involved in his wrongful conviction. Jeffrey Scott Hornoff served six years, four months and 18 days for a murder he didn't commit. He was released in 2002 only after Todd Barry, a carpenter from Cranston, stepped forward and admitted to killing Victoria Cushman in August 1989.

Now, Hornoff has filed a lawsuit. The complaint states that "beyond compensating Hornoff ... the lawsuit seeks to redress the unlawful municipal policies and practices." The complaint names as defendants several Warwick and state police detectives, many now retired, and accuses them of willfully mishandling and omitting evidence that led to Hornoff's wrongful conviction. The complaint also details Hornoff's time in prison, saying because he was a police officer, "he had to be held in protective custody," was "deprived of spending time with his three young sons" and "often shared a cell with violent sex offenders." It also alleges Hornoff suffers from post traumatic stress disorder, physical problems, depression and claustrophobia, among other things.

There are 12 counts in all. The counts against all defendants include violation of due process and intentional infliction of emotional distress. Hornoff told NBC 10 News in a phone interview that although he would like to talk about the case, he can't at this time. His attorney also declined comment, as did state police. Warwick police Col. Stephen McCartney told NBC 10 News he's not surprised by the suit, and said Hornoff has his right to have his day in court.

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An earlier report of the case below:

A former police detective who spent six years in prison for a murder he didn't commit said Tuesday that he is experiencing a wide range of emotions -- but anger toward the man who committed the crime is not one of them. "There were a lot of moments of bitterness while I was in prison," former detective Jeffrey Scott Hornoff said in an interview with NBC's "Today" show. "But I'm doing my best to leave the anger and the resentment at the door and not let it consume me."

Hornoff was officially exonerated Monday, hours after another man pleaded guilty to the crime and began serving time. Todd Barry was sentenced Monday to 30 years in prison for killing 29-year-old Victoria Cushman in 1989. Barry, a Cranston carpenter, stunned investigators in November when he confessed to beating Cushman to death. "Over 13 years ago, I did a horrible thing," Barry said Monday in Kent County Superior Court. "I killed a fellow human being, Victoria Cushman. I've lived in torment since that day."

Hornoff was convicted of the murder in 1996 and sentenced to life in prison. He was released after Barry confessed. However, the charges against Hornoff couldn't be dropped until Barry entered a guilty plea or was convicted. A Providence Superior Court judge vacated Hornoff's life sentence Monday and dismissed the first-degree murder charge against him.

"There's a lot of emotions going on," Hornoff said on "Today." "On one hand, I was happy for me and for my family, you know, finally having this weight off our shoulders and this shadow taken away," he said. "I felt a great deal of sadness for his family and also for Vicki's family."

Prosecutors say overwhelming guilt led Barry to come forward. Choking back tears, Barry said he was ready to accept the consequences of his actions. "I would like to express my heartfelt remorse and sorrow to the Cushman family. Nothing I say is adequate but I am truly sorry," he said. Cushman's sister, Jennifer Poghossian, wiped away tears as state prosecutor Randy White recounted the Aug. 10, 1989 slaying of her sister. White said Barry told investigators he broke into Cushman's apartment, strangled her and then beat her with a jewelry box and a 17-pound fire extinguisher. "As he sits incarcerated, I hope he will be tormented knowing the many, many lives he's destroyed," Poghossian said.

Barry also apologized to Hornoff, who sat in the back of the courtroom with his fiancee, Tina Dauphinais. Dauphinais, 34, said the couple would try to plan their wedding, and Hornoff planned to spend time reconnecting with his three young sons. Hornoff also said he was unsure if he'll resume work as a detective.

Cushman worked at a Warwick sporting goods store where Hornoff, a member of the police department dive team, bought his scuba gear. She'd had an affair with Hornoff, who at the time was married with an infant son. On the morning of Aug. 11, 1989, Cushman failed to show up for work and a co-worker discovered her body, bloody and beaten, in her Warwick apartment. The fire extinguisher was found nearby.

Detectives quickly ruled out Hornoff as a suspect, but an independent investigation later found problems with the Police Department's handling of the case. Hornoff was charged with first-degree murder in December 1994 and a jury convicted him two years later. Hornoff always maintained his innocence even as he lost appeals.

Barry also was romantically involved with Cushman. He was never a suspect in the murder. Barry first told his wife and siblings of his crime in late October. He then confessed to police and state prosecutors.


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WHAT A LOT OF RUBBISH!

A young Australian guy gets lucky. So what? The woman is a victim of political correctness if ever there was one

A female teacher who had a sexual relationship with a 15-year-old student has been sentenced to five years jail in the Victorian County Court. Cindy Leanne Howell, who has pleaded guilty to one count of maintaining a sexual relationship with a child under 16, sobbed loudly today after receiving the jail sentence with a minimum term of two-and-a-half years.

The court was told the 36-year-old was employed as an integrated aid teacher at a high school on the Mornington Peninsula and assisted the student with a reading difficulty. The mother of four began a sexual relationship with him over eight months last year after he started dating her daughter. In the following months Howell would have sex with the teenager at her home, his home and at a nearby beach.

Judge Jan Pannam said the facts of this case were "particularly disturbing" as the mother of four was in a position of trust when she engaged in a relationship with the student. However, she said she took into consideration Howell's plea of guilty saved her victim from having to give evidence in court and it demonstrated remorse.

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