SOME JUSTICE FOR DEDGE AT LAST

But cold comfort for other innocents in Florida

Gov. Jeb Bush did a gracious thing Wednesday. He flew to Brevard County to apologize on behalf of the state to a man who spent half his life behind bars for a rape he didn't commit. While he was there, Bush signed a bill granting Wilton Dedge $2 million in compensation. It's not enough. No dollar figure can be assigned to the agony of Dedge's parents, who never lost faith in his innocence. There's no way to pay Dedge for the wife and family he never had. Money can't erase the trauma of 22 years in the correctional system. But the state owes Dedge a chance to heal, a chance to build a new life to replace the one taken from him. Money helps accomplish that.

The Legislature authorized the payment in this month's special session after it stalled in the regular spring session. In historic terms, lawmakers acted quickly: Dedge's conviction was overturned in 2004. His case contrasts favorably with the pitiful history of Freddie Pitts and Wilbert Lee, who were beaten into confessing the murders of two gas-station attendants in 1963. After seeing convincing evidence that the men were innocent, Gov. Reubin Askew pardoned them in 1977. But it took 19 tries for the Legislature to approve compensation. In 1998, the two men received a miserly $500,000 apiece for their time on Death Row.

Forcing innocent men wronged by the state to go begging to the Legislature is wrong. The Dedge case proves the need for protocols that take politics out of the process of compensation. The contrast between Dedge's case and that of Pitts and Lee proves the need for a uniform system. Most states that have compensation programs for innocent prisoners start with a set amount of money per year -- Alabama sets a minimum $50,000 per year sum, for example, while Ohio sets a $40,050 per year sum that can be increased to cover lost wages. New York calls for "fair and reasonable damages" but sets no cap. Florida would be best served by a system that sets a minimum payment for each year behind bars but allows additional compensation for lost wages or other factors, says Jennifer Greenberg of Florida's Innocence Initiative. Payments should be increased in cases where prosecutors or police are proven to have lied or obstructed justice to obstain a conviction. Instead of taking these petitions to the Legislature, the state should have an independent panel or judge making determinations about fair compensation.

Dedge's case has other lessons for state officials. He's still struggling to have his record expunged of the rape he didn't commit. Florida should follow Tennessee's lead, and make expungement automatic when a conviction is overturned.

Senate Judiciary Chairman Dan Webster filed a bill for this year's session that would have created a compensation system, and versions of it passed both House and Senate. The final version of the legislation fell short of the mark in some ways -- for example, it denied compensation to people who plead guilty, even if scientific evidence proves they're innocent. It also would have barred compensation to people who have criminal records outside the wrongful conviction -- even if the crime was a minor felony. The proposed legislation would have restricted payments for pain and suffering, cold comfort to innocent people raped or assaulted while in prison.

The Legislature did well to compensate Dedge. Now it should look for ways to enshrine that fairness in state law, and protect the wrongfully accused from seeing justice swept away by politics.

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ARROGANT FLORIDA

There are some 86,000 convicts in your prisons this Christmas Day, good people of Florida. Care to speculate on how many are innocent? Maybe a thousand. Maybe twice that. Florida prison officials used to say that "one-third of the inmates don't belong here, one-third are ready to go, and the rest should never leave." With respect to the first third, they were on to more than they knew. A recent experiment in Virginia implies horrifying numbers.

Gov. Mark Warner last year ordered random DNA testing of forensic samples from old cases in the state's files. It took until now to complete. Among the first 31 reviewed, DNA established the innocence of two men who had finished serving long prison terms for rape. (Warner pardoned them last week and has directed testing in every one of several thousand other cases.) That was 6.5 percent of the testing universe. The same ratio among the 9,000 people serving time in Florida for sexual offenses would mean that nearly 600 of them are innocent. A similarly significant probability applies to convictions for robbery and homicide, which would mean some 1,300 more innocent people on Florida's conscience.

What's worse is how few people give a damn. Even California and Texas, larger states that share Florida's lock-'em-all-up, we-make-no-mistakes style of fighting crime, have provided substantial appropriations to their local Innocence Projects. But in Florida, the one surviving Innocence Project, based in Tallahassee, still depends on voluntary donations and labor to process the hundreds of inmate DNA petitions already on hand.

Nothing is being done in Florida to identify and correct the reasons why the innocent are punished and the guilty go free. National studies have established the causes of wrongful conviction. The most common is mistaken identification by victims and other witnesses, which happened to both of the men Warner pardoned. It figured in 125 of the first 163 DNA exonerations nationwide. That's 77 percent. False confessions, lying co-defendants and jailhouse snitches - like the one who framed Wilton Dedge - and preventable mistakes on the part of police and prosecutors are other significant factors.

"Tunnel vision is insidious," said the report of an official investigation into a wrongful conviction in Manitoba. "It results in the officers becoming so focused upon an individual or an incident that no other person or incident registers in the officer's thoughts." The report recommended annual retraining to guard against this. Tunnel vision, mistaken identification and false confessions figured in Florida's legendary "Quincy Five" case, where five men were charged with murder and two convicted before a tip led defense attorneys to the identities of the real killers.

But there has yet to be the first official investigation of any wrongful Florida conviction, whether Dedge's or any of 21 confirmed death row exonerations. This willful indifference cannot be blamed simply on the Legislature, the governor or the courts. People of Florida, they work for you. When are you going to demand that they do their jobs right? Those of you who are lawyers - "officers of the court," as you so often boast - are twice as responsible. You are the Florida Bar. When will you insist that it act? When are you going to petition the Supreme Court for a commission of inquiry?

Virginia's dramatic example owes to an unsung angel of mercy, the late Mary Jane Burton, a crime laboratory scientist who saved every sample of bloodstained clothing, every semen swab, long before DNA testing was invented. The files came to light in 2001 and prompted Warner's experiment. The significance was its randomness. Peter Neufeld, co-director of the Innocence Project in New York, remarked that so high an innocence rate among people who had not asked for testing "should give pause to people who think mistakes in our criminal justice system are flukes." "This should be a beacon for other governors across the country to implement post-conviction DNA testing," he said.

In fact, it needs to be a beacon for much more than DNA testing. There is no DNA evidence in thousands of convictions, particularly for robbery, where it is just as possible that eyewitnesses could be wrong, co-defendants may have lied, or tunnel vision took authorities off the right trail. DNA is a window onto a vast underworld of arrogance, indifference, suffering and shame.

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IMPROVING EYEWITNESS EVIDENCE

Barbara Hervey sits on the top criminal appeals court in Texas. But her interest in the subject of eyewitness identification dates to her days as a law student when she was robbed at gunpoint. It was in the late 1970s when Hervey and two friends were held up on the San Antonio Riverwalk. They were able to get the license plate of the car in which the gunman and his two companions fled and flag down a nearby police officer. Their quick action helped police, who stopped the car about 10 minutes later. But when Hervey was presented with the suspects, she found herself struggling to identify them. "I could only recognize one. I had been too busy looking at the gun," she said. "Quite frankly, I was urged to identify the other two, but I could not do it."

Hervey, a Republican, is one of several members of Gov. Rick Perry's new Criminal Justice Advisory Council who believe Texas needs to consider ways to improve the reliability of eyewitness identifications. "I appreciate when people raise the issue of questionable identity," Hervey said.

One change being discussed is to use a so-called "blind presenter," someone not involved in the investigation, to show the photo or live lineup to a victim or witness. Since the presenter doesn't know who the suspect is, there are no suggestive expressions or comments to influence the witness. A more controversial change involves presenting photos to a witness one-by-one instead of simultaneously in a photo spread. Some studies have found that witnesses are less likely to make a selection — either correctly or incorrectly — when photos are shown sequentially.

Faulty eyewitness testimony has been implicated in a number of cases where convictions were overturned after DNA evidence was tested. "In 75 percent of the nation's first 164 DNA exonerations, at least one mistaken eyewitness contributed to the wrongful conviction," said Stephen Saloom, policy director of the Innocence Project at the Benjamin N. Cardozo School of Law in New York City.

Cantu witness at issue:

A flawed identification is at issue in the possible wrongful execution of Ruben Cantu, who was put to death in 1993. The Houston Chronicle reported last month that the lone eyewitness to a 1984 murder-robbery has recanted. The witness, Juan Moreno, identified Cantu only after San Antonio police officers showed him Cantu's photo three times. He said he felt pressure by police to identify Cantu, even though he knew it was wrong. Bexar County District Attorney Susan Reed has reopened the case.

Hervey was an assistant in the Bexar County DA's appellate section in 1993 when she wrote a letter to the head of the state's pardons and paroles division opposing Cantu's request for a 30-day reprieve and commutation. She said at the time that there was no new evidence to cast doubt upon his guilt. Hervey said the Cantu case has raised the issue of eyewitness evidence to the public and those who work in criminal justice. "We really are looking at these issues very seriously," she said....

In 2001, New Jersey became the first state to adopt eyewitness evidence guidelines issued by the U.S. Department of Justice. Then-state Attorney General John J. Farmer Jr. used his authority to implement the use of blind presenters and sequential lineups. Farmer acted after a New Brunswick man was freed from prison following new DNA findings that showed he had been wrongly convicted in the rape of a Rutgers University student. The New Jersey Supreme Court also pushed for the change. "Our Supreme Court indicated to us we needed to find a way to make the use of eyewitness evidence better or change our court rules and our evidence rules to make it very difficult to use (eyewitness identification) unless we had significant physical corroborating evidence," said Lori Linskey, a deputy attorney general with the Division of Criminal Justice in Trenton, N.J.

Linskey said there was an initial backlash when law enforcement agencies complained they didn't have enough personnel to meet the blind presenter requirement. Police also worried that the sequential lineups might result in guilty individuals escaping justice. The division spent six months training the officers. Nearly 600 New Jersey law enforcement agencies that responded to a survey indicated overall satisfaction with the guidelines. "I think the anticipation of the change was far more difficult," she said. "The sky hasn't fallen. Witnesses are still making ID's, criminals are being prosecuted."

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STAR-CHAMBER (SECRET) "JUSTICE" IN NEVADA

When Flo Crew Jones got the news, her heart soared. There was hope -- hope that one of her two incarcerated sons might finally get out of prison after more than 20 years. When Marisa Zappa got the news, her heart sank. For her, there was a chance that her brother's killer might again walk the streets. But while the two women were on opposing sides of the issue, both were confused and angry when the Pardons Board changed its mind about hearing Norman Crew's plea for early release--and wouldn't tell them why. Their stories illustrate the secrecy with which the board operates, a secrecy that some say amounts to a lack of accountability for life-and-death decisions.

The news the two women got was a notification that Norman Crew would have a hearing before the state Board of Pardons at its meeting Wednesday. Crew and his brother, Russell Crew, killed two men in an alleged drug deal gone bad and buried them in a shallow grave near Lake Mead more than 20 years ago. In 1982, the brothers were sentenced to four consecutive life sentences with the possibility of parole after 40 years. The only recourse for inmates who are not eligible for parole is the state's Board of Pardons, which can shorten prison terms. But few inmates manage to get a hearing with the board, a nine-member panel composed of the governor, the attorney general and the seven justices of the state Supreme Court.

At the upcoming meeting, just nine inmates will have their cases heard out of 530 who applied, according to the board's executive secretary, David Smith. Last month, Smith said there were 10 inmates on the agenda. One of them was Norman Crew, according to the letter Zappa received, which was dated Nov. 4. But then something mysterious happened. The number went down to nine, and Norman Crew was told he was not getting a hearing after all.

For Jones, the mother of Norman and Russell Crew, the news was difficult. "It was almost as hard as when they were first convicted," she said. "To receive a call with the good news that my son was on the agenda, and then to hear again that they'd changed their mind -- it was hard because I had some hope," she said. For Zappa, the sister of Teddy Zappa Jr., one of the Crews' victims, the news was a relief. "I have been dealing with this for 25 years," she said. "The emotional strain, over and over -- it just doesn't end."

After Zappa was notified that Norman Crew was getting a hearing, she wrote a letter to the board's members. In it, she noted that the brothers had already had two Pardons Board hearings and that after the last one, in November 2002, Gov. Kenny Guinn said they would not get another chance. Guinn noted at the time that the pair had already appeared twice, while hundreds of other inmates were waiting for a turn. "The severity of this crime, and the victims that lost their lives, and the victims that remain must be seriously considered," Zappa wrote in her Nov. 18 letter. "We all feel that we have been deceived in believing that there would not be any more appearances before the board" for the Crews. It was after Zappa's letter that Norman Crew's name was taken off the agenda, but Smith, the board staffer, would not say whether the letter led to the removal. "The board doesn't have a policy of confirming or denying communications with victims," he said.

Both women want to know who put Crew on the agenda and who later took him off. But Smith said that, too, is confidential. "If a member (of the board) places somebody on the agenda, the name of the member is not disclosed," Smith said.

There are two ways to get on the Pardons Board's twice-annual agenda. One is to fill out an application, in which the inmate makes his case for mercy. The applications are reviewed by Smith and Director of Corrections Glen Whorter. The two choose those they think are worthy, but their reasons for picking one inmate and not another are not disclosed. The other way to get on the agenda is to be put there directly by one of the board members. They, too, do not explain their reasons for picking inmates who deserve a hearing.

The personal influence of the board members appears to be more effective than the application process. Of the nine inmates on the upcoming agenda, five were personally put there by board members, while only four of the 530 applications were deemed worthy by Smith and Whorter.

Richard Siegel, a UNR political science professor and president of the state chapter of the American Civil Liberties Union, says the small number of pardons hearings relative to Nevada's large prison population is a symptom of Nevada's harsh justice system. "Nevada has one of the most repressive criminal justice systems in the country," he said. "We rank in the top two for the rate of death penalties and the top five for rate of incarceration."

Part of the reason is the low rate of pardons, which mirrors a worldwide trend, Siegel said. While the power to pardon was once a frequently used check on the idiosyncrasies of the justice system, most jurisdictions now reserve its use for cases where a miscarriage of justice can be proven.

The board operates almost completely out of the public eye and largely without documentation. Board members do not have to explain what factors led them to vote for or against a particular case. Because the board members' personal influence is so powerful, Zappa wonders whether the Crews have a connection to a Supreme Court justice or other top official. After all, they were set to go before the board three times, while most inmates never get even one hearing. Jones says she has met some members at social functions, including Supreme Court Justice Bill Maupin, and has brought up her sons, but has no special influence and has not received any commitments. She says she is as mystified as Zappa about how her son was put on, and then taken off, the agenda. "I just don't understand why they would give me hope and then take it away," Jones said. "They won't tell me anything. They won't even tell me which board member it was."

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DNA results call for new trial

Lots of officials would rather kill an innocent man than be proved wrong

Virginia's governor recently spared a death row inmate because potentially important DNA evidence had been discarded. As said here earlier, it was the right thing to do. It would have been immoral to kill the man when there was unresolvable doubt about his guilt. A similar moral choice is before the Florida Supreme Court in the case of Paul C. Hildwin, convicted of murdering Vronziette Cox in Hernando County 20 years ago. He deserves a new trial because DNA has now refuted two key pieces of evidence that helped to convict him. A circuit judge agreed with the state that the new findings don't matter. But they do.

The disparaged evidence consists of semen stains on the victim's underwear and saliva on a washcloth found near her body. Blood typing was not possible but the prosecution stressed expert testimony that Hildwin was among 11 percent of the population whose blood type doesn't show up in other bodily fluids. Among the millions of other men with similar body chemistry was the victim's boyfriend, whom Hildwin has tried to blame for the killing. Now, however, DNA testing has excluded Hildwin as the source of the body fluids. Yet the state insists that doesn't matter. Incredibly, the state has yet to try to match the results against any of the 2.7-million offender samples, including 267,000 from Florida, already in the national DNA database.

The rest of the case against Hildwin turned heavily on another prisoner's testimony that Hildwin had confessed and on the fact that he had forged one of her checks and was caught with her checkbook, ring and radio. Trouble is, jailhouse snitches often lie, and the circumstantial evidence, which Hildwin admitted, did not necessarily prove he killed the owner. For jurors struggling to determine the truth, the underwear and the washcloth very likely overcame any lingering doubt.

It is fundamental to American justice that someone's guilt be proved to the exclusion of any reasonable doubt. In light of the proof that Hildwin had nothing to do with the underwear and the washcloth, it would be a gross miscarriage of justice for the Supreme Court to deny him a new trial.

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GUILTY WHEN CHARGED

While enjoying the Christmas season in the comfort of your home, take a minute to say a prayer for the wrongfully convicted. American prisons are full of wrongfully convicted persons. Many were coerced into admitting to crimes they did not commit by prosecutors’ threats to pile on more charges. Others were convicted by false testimony from criminals bribed by prosecutors, who exchanged dropped charges or reduced sentences in exchange for false testimony against defendants.

Not all the wrongfully convicted are poor. Some are wealthy and prominent people targeted by corrupt prosecutors seeking a celebrity case in order to boost their careers. Until it happens to them or to a member of their family, Americans are clueless to the corruption in the criminal justice (sic) system. Most prosecutors are focused on their conviction rates, and judges are focused on clearing their court dockets. Defendants are processed accordingly, not in terms of guilt or innocence.

"Law and order conservatives" wrongly believe that the justice (sic) system is run by liberal judges who turn the criminals loose. In actual fact, the system is so loaded against a defendant that very few people, including the totally innocent, dare to risk a trial. Almost all (95–97%) felony indictments are settled by a coerced plea. By withholding exculpatory evidence, suborning perjury, fabricating evidence, and lying to jurors, prosecutors have made the risks of a trial too great even for the innocent. Consequently, the prosecutors’ cases and police evidence are almost never tested in court. Defendants are simply intimidated into self-incrimination rather than risk the terrors of trial.

According to Yale University law professor John Langbein, "The parallels between the modern American plea bargaining system and the ancient system of judicial torture are many and chilling." Just as the person on the rack admitted to guilt in order to stop the pain, the present day defendant succumbs to psychological torture and cops a plea, whether he is innocent or guilty, in order to avoid ever more charges.

Michael Tonry, director of Cambridge University’s Institute of Criminology, reports that the US has the highest percentage of its population in prison than any country on earth, including dictatorships, tyrannies, and China. The US incarceration rate is up to 12 times higher than that of European countries.

Unless you believe Americans are 12 times more criminally inclined than Europeans, why is one of every 80 Americans (not counting children and the elderly) locked away from family, friends, career, and life? Part of the answer is the private prison industry, which requires inmates to fuel the profits of investors. Another part of the answer is career-driven prosecutors who want convictions at all costs. Yet another is the failure of judges to rein-in prosecutorial abuses. Another part of the answer is the hostility of Americans to defendants and indifference to their innocence or guilt.

The US invasion of Iraq has brought the breakdown in American moral fiber to the fore. The horrific tortures and abuses at Abu Ghraib prison, the public justifications of torture by the president and vice president of the United States, and the CIA kidnappings and torture of detainees in secret prisons put the American "liberators" in the same camp as Saddam Hussein. It is ironic that mistreatment of Iraqis is one of the justifications that Bush uses for overthrowing Saddam.

In his book, "Constitutional Chaos: What Happens When the Government Breaks Its Own Laws," Judge Andrew P. Napolitano reports on cases of torture, psychological abuse and frame-ups that he discovered as presiding judge.

I have reported a number of wrongful convictions. Anytime a new offense is created, the word goes out to "produce convictions." Over a decade ago William R. Strong, Jr., was made a victim of Virginia’s new wife rape law. Strong discovered his wife in an affair with her boyfriend and was about to serve her with divorce papers. She found out and struck first, accusing him of rape. Mr. Strong has been trying to get a DNA test for many years, confident that the semen in the perk test is that of the lover of his unfaithful wife, but Virginia’s criminal justice (sic) system is unresponsive.

Another innocent victim of Virginia justice (sic) is Chris Gaynor. Gaynor took his skateboard team to a competition. When one of the kids tried to buy drugs, Gaynor threatened to tell his parents. To preempt Gaynor, the kid accused him of sexual abuse. There was no evidence against Gaynor, and the entire team knew the real story. However, Gaynor was framed by a corrupt prosecutor, reportedly a man-hating lesbian, with the connivance of a corrupt judge, who intimidated Gaynor’s young witnesses by jailing one of them without cause. Gaynor’s innocence was of less importance to the criminal justice (sic) system than a desire to increase convictions for child sex abuse.

In America, defendants are no longer innocent until they are proven guilty. They are guilty the minute they are charged, and the system works to process the guilty, not to determine innocence or guilt.

Americans in their ignorance and gullibility think that only the guilty would enter a guilty plea. This is the uninformed opinion of the naïve who have never experienced the terror and psychological torture of the US criminal justice (sic) system.

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MORE IMPRISONMENT WITHOUT TRIAL IN THE GOOD OLD USA

A man was jailed for more than a year without ever seeing a lawyer as he waited for a repeatedly postponed court hearing, gaining release only after a cellmate told an attorney about the case. Walter Mann Sr., 69, was released Dec. 16 after a year and three months - more than twice the time he would have served if he had been convicted in his contempt-of-court case.

Mann's legal troubles began in 2002, when his 13-year-old son assaulted him and was sent to a juvenile detention center. Mann, who was unemployed and on disability benefits, was ordered to pay $50 a month for the boy's housing but never did, according to court records. Prosecutors sought to have Mann held in contempt of juvenile court, which led to an order that he be brought before a judge. The judge then incarcerated him in September 2004 for three warrants alleging that Mann wrote bad checks. Then he waited more than a year as his contempt case was postponed again and again.

"He wasn't lost in the system," said Sheriff's Department spokesman Sgt. Don Peritz. "We knew he was here ... we hold them until the judge says to hold him no longer." An October 2004 court docket entry suggests the judge's order was lifted, but Sheriff's Department records do not show it being lifted or Mann's release ordered.

Had he been convicted in the contempt case, he would have served a maximum of six months in jail and faced a $500 fine. His release came after cellmate Jim Brooks, 64, heard from Mann that he had never seen a lawyer. "I said, 'Man, why don't you call your people?' He said, 'Nah, I don't want to bother them with anything,'" Brooks said.

Brooks, jailed on minor theft charges, told his public defender, who told another public defender, Shoshana Paige. She made several calls and Mann was released the same day. "I was shocked, and then part of me was shocked that I was shocked because I've read enough other stories about things like this," Paige said. "This one seems to be pretty egregious."

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CROOKED POLICE AGAIN

Steven R. Dewitt says he spent 13 1/2 years in prison for a murder he didn't commit. Now he wants the people who put him there to pay.

Dewitt, 33, once a District resident but who now lives elsewhere, has gotten the white-shoe law firm of Akin, Gump, Strauss, Hauer & Feld LLP to file a civil suit on his behalf, claiming that four Metro Police detectives framed him for the 1991 slaying of Paul Ridley, who was gunned down as he pumped gas into his BMW at a Northeast Amoco station.The suit, filed in D.C. Superior Court Thursday, names the District and a handful of Metropolitan Police detectives who investigated Ridley's shooting. Dewitt claims that the detectives who arrested him manipulated - even beat -- witnesses, withheld exculpatory evidence and gave erroneous testimony under oath. "An innocent man spent 13-plus years in jail for a crime he didn't commit. Absolutely, it's a miscarriage of justice," said Akin, Gump's Michael A. Fitzpatrick. Dewitt was released from prison last year after his lawyer found new evidence that he claimed pointed to different man as Ridley's killer.

Through his lawyers, Dewitt released a statement Thursday. "I can't explain what's it's like to be in prison for something I didn't do. There were two tragedies. It was a tragedy that Paul Ridley's life was taken. But it was a tragedy that I had to spend 13 years in prison for a crime I didn't commit," Dewitt said.

Prosecutors had alleged that Dewitt killed Ridley in a drug dispute. But his lawyer claimed that new evidence showed that another man - who looked like Dewitt - shot Ridley to keep him from testifying in a separate murder trial. Last year, a D.C. Superior Court judge vacated Dewitt's conviction and ordered a new trial.

Prosecutors opposed Dewitt's release at the time and have not charged anyone else with the crime. Channing Phillips, a spokesman for the U.S. Attorney's office, refused to comment on Thursday's suit. The D.C. Attorney General's office will defend the suit. "We have not received the complaint but we will of course respond in court to any allegations made against the District of Columbia and its employees," said Attorney General's spokeswoman Traci L. Hughes.

Thursday's suit is one of the first to be filed under D.C.'s Unjust Imprisonment Act, which allows wrongfully convicted inmates to be compensated for their lost years. In order to win an Unjust Imprisonment case, Dewitt's lawyers have to show that he's innocent of the crime. But the suit also claims false imprisonment and malicious prosecution, which could push the damages into the tens of millions.....

It took years to track down old witnesses and to dig up new witnesses. But the biggest delay was in waiting for the law to change. Until Congress passed the Innocence Protection Act, convicts couldn't bring new evidence forward if it surfaced more than three years beyond their conviction, D'Antuono said. Dewitt, though, never gave up hope, D'Antuono said. "He knew that he was innocent," she said. "It was a real privilege to represent him."

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18 MONTHS JAIL FOR THE ANAL RAPE OF A CHILD?

Lovely how the law protects children!

An Aborigine's [black Australian] jail term has been lifted on appeal to 18 months for having sex with his 14-year-old promised wife. The case has flamed debate about the role of customary Aboriginal law in the wider Australian legal system, as the traditional Aboriginal man believed his actions were allowed under tribal law. The man - who speaks English as his fourth language and lives in the remote NT outback - also did not know his actions were illegal under NT laws. The Northern Territory Court of Appeal today found the 55-year-old's earlier sentence was "manifestly inadequate".

The court had heard the girl was promised to the man - who cannot be named for legal reasons - when she was just four. He became angry after she struck up a friendship with a young man in June last year, during her school holidays. Believing the girl had a sexual relationship with the boy, the man beat her with a boomerang at the outback Aboriginal community, south-west of Katherine. He later took her to his remote outstation - where he lived with his wife and young children - threatened her with a boomerang and had anal sex with her. The child later told police: "I told that old man I'm too young for sex, but he didn't listen".

The man believed that intercourse with the girl was acceptable because she had been promised to him and had turned 14, the court heard. In August, the man pleaded guilty to a charge of aggravated assault and a charge of carnal knowledge. At the time Chief Justice Brian Martin imposed a total two-year sentence, but suspended it after one month.

The Director of Public Prosecutions appealed the leniency of the sentence, and the Court of Appeal today imposed a total sentence of three years and 11 months, suspended after 18 months. In handing down the court's ruling, Justice Dean Mildren issued a stern warning that violence would not be tolerated by the courts. "The courts view very seriously and will not tolerate violence by Aboriginal men upon Aboriginal women or children, whether that violence is tolerated by Aboriginal law or not," Justice Mildren said. He said it was important Aboriginal people know sexual intercourse with a child under 16 was a serious offence. "The fact that the child has been promised in marriage according to Aboriginal customary law does not excuse such offending," he said. However, he said it was important to remember the man was not charged with rape.

Justice Mildren said the law had stopped short of making promised marriages illegal. "(But) such marriages cannot be consummated until the promised wife has turned 16," he said. "Plainly the purpose of (the law)... is to give Aboriginal girls some freedom of choice as to whether or not they want to enter into such a marriage, and to thereby empower them to pursue ... employment opportunities or further education rather than be pushed into pregnancy or traditional domesticity prematurely."

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GREAT MOMENTS IN FORENSIC SCIENCE

Moments before taking the stand to testify in a 1989 capital murder trial, Houston crime-lab analyst James Bolding still was testing blood evidence — not in the controlled conditions of a laboratory but in the courtroom itself. Experts who reviewed trial transcripts from the case of Preston Hughes III, who was sentenced to death and is awaiting execution, found Bolding's actions troubling and emblematic of a pattern of problems in the Houston Police Department crime lab's serology division. "It is ridiculous," said Keith Inman, a California-based scientist with expertise in serology — the science of typing body fluids — which was a precursor of DNA testing. "A lab is a lab, and a courtroom is a courtroom, and they are not interchangeable. The willingness to do this raises questions about standards at HPD."

A panel of scientists who reviewed HPD analysts' testimony about serology tests in that case and 12 others, culled from a sampling of more than 100 examined by the Houston Chronicle, found problems in more than half of the cases that mirror some found in the crime lab's troubled DNA division. Analysts overstated the strength of evidence in some cases, offered misleading statistics to juries and displayed a poor command of the principles of serology, said the experts, who reviewed the testimony at the request of the Chronicle. "They certainly were undertrained, undereducated and did not have a very sophisticated understanding of how to make sure results got expressed correctly," said Norah Rudin, an independent forensic consultant. "The potential for a miscarriage of justice is huge."

Concern within HPD: At least one of HPD's own serologists voiced concerns to her superiors about ineffective management, lack of training and the poor quality of HPD's serology work years before problems were exposed publicly, according to a review of hundreds of personnel records. Several scientists from the serology division went on to fill the ranks of the crime lab's now-infamous DNA division after HPD began using that science in 1989. The DNA division was shuttered three years ago, amid questions about the quality of its work. Its closure prompted scrutiny that has revealed a sweeping forensics scandal.

Since then, flawed work has been uncovered in four other disciplines — ballistics, toxicology, controlled substances (drugs) and serology — casting doubt on thousands of cases and leading to the release of two men from prison thus far. Although serology was not used in every homicide and rape investigation prior to the advent of DNA testing, during the four-year period from 1985 through 1988, according to its own crime statistics, HPD investigated 1,630 homicides and more than 5,200 sexual assaults.

The independent investigator hired this year to conduct a comprehensive probe of the crime lab is devoting a significant portion of an ongoing case review to analyses from the serology division, whose faulty work contributed to the conviction of George Rodriguez. Rodriguez was released from prison last year after serving 17 years for a rape that DNA tests indicated he did not commit. The investigator, former U.S. Justice Department Inspector General Michael Bromwich, is expected to release his team's preliminary findings before the end of the year.

In the Hughes case, Bolding performed tests to determine whether there was blood on a knife and shoe from the murders of La Shandra Rena Charles, 15, and 3-year-old Marcell Lee Taylor. He tested the items in front of the judge, prosecutor and defense attorney in a Harris County courtroom just before he was to testify. Bolding apparently was unable to perform the tests earlier, according to testimony. The lack of quality control concerned state District Judge George Godwin. "I find this cavalier attitude and lackadaisical attitude of doing tests right while we've got jury waiting to come in and hear testimony unacceptable," said Godwin, who nonetheless allowed the tests into evidence over defense objections.

Experts who reviewed Bolding's testimony questioned why he agreed to perform analyses outside a lab. "He was an experienced analyst who should have known better," Rudin said. Bolding, who retired from HPD in 2003 to avoid being fired, did not return phone calls for comment.

Statistics skewed: Experts also questioned testimony about tests during the 1988 trial of Charles Lee Hawkins, accused in the rape of a deaf woman at a Houston motel. They concluded that Bolding's testimony overstated the probability that evidence from the crime came from Hawkins. Bolding, who at the time of the trial supervised the serology section, told jurors about tests on blood and semen samples from the crime scene and a rape kit. Using basic blood typing, he compared types for the victim and Hawkins with the evidence and testified that Hawkins and fewer than 40,000 other people in Houston could have contributed to the samples. So, it eliminated a large portion of the population in Houston?" Assistant District Attorney Leslie Brock asked. "That is correct," Bolding said.

But other scientists found that Bolding failed to include numerous other possible contributors. "Bolding botched his stats in a ludicrous way," said William Thompson, a professor at the University of California-Irvine, who was central to uncovering problems in the Houston crime lab's DNA division three years ago. "He is excluding large numbers of people who could have contributed to that sample." By Thompson's calculations, more than 50 percent of Houston's male population could have contributed to the sample. The case against Hawkins also included an identification by the victim. He was convicted and sentenced to life in prison.

Bolding's error, Rudin said, may have been caused by a problem prominent in HPD's DNA cases: that analysts often gave juries numbers for the prevalence of evidence itself and not for the statistical strength of a match between a suspect and the evidence — an error that leads to exaggerations of the evidence's strength. "This looks like the beginning of the same mistake, which skews the conclusions," Rudin said. "The testimony makes the conclusion too strong."

The overlapping problems in the DNA and serology divisions, experts said, no doubt are related in part to their common personnel, several of whom have been at HPD for more than 15 years. Among them: Bolding, who led the DNA division when it was shut down; Joseph Chu, who received a written reprimand for shoddy DNA work on several cases but remains at the lab; and Christy Kim, who retired last year after surviving an attempt to fire her and who collects more than $2,700 a month in a pension.

Bolding was the crime lab's only serologist when he assumed the job in 1982, after less than one year of training. "He had not yet received any formal training in fundamental serological techniques, including (blood) typing," Bromwich, the independent investigator, wrote in a June report. "Mr. Bolding told us that he 'took books home and did the best he could.' "

Also among the scientists in the serology division was Holly Hammond, who left HPD after three years. She alerted administrators to problems in the division as early as 1986 in a letter she filed in response to her largely positive evaluation. "It has been my observation and experience that training programs in this laboratory are ineffective, inconsistent and inefficient at the practical level and, in many cases, are simply nonexistent," she wrote. "Even requested training, on relatively simple procedures, is often put off indefinitely by supervisory personnel."

Hammond raised similar concerns in an August 1988 letter after that year's evaluation, noting that she was writing not in response to her review but because it was the only forum for expression. She repeated her concerns in her Nov. 21, 1988, resignation letter. "Problems with equipment, personnel, compensation and training are holding the laboratory in a position of inadequacy compared to much of the rest of the forensic community," she wrote.

Misstating basic rules: Just before Hammond lodged her protest, HPD analyst David Kaufman testified in the trial of Alphonse Norris Jr., who was convicted in a 1985 assault. In describing ABO typing tests to the jury, Kaufman misstated the most basic rules of determining how different blood types show up in such tests. In ABO typing, some people with the different blood types — A, B, AB and O — reveal themselves through the presence of different antigens in their body fluids. If someone displays their blood type in their body fluids, they are called secretors. A secretor with type-A blood will display A and H antigens while one with type O will display only an H antigen. In his testimony, Kaufman confused how different blood types show up in tests. "Either he is a very poor communicator or he doesn't understand the technical issues involved," said Inman, the California serology expert. "It's hard to know exactly what the problem is, but clearly, his testimony is inaccurate." Kaufman could not be located for comment.

The problems in the Norris case, Thompson said, can be found in others from the serology section and suggest that problems in the Houston police crime lab were pervasive across divisions. "It is now clear to me that problems in the DNA division were just a continuation of earlier problems with serology," he said. "These problems stem from a long history of low standards and the tolerance of bad work. "The question is when we will stop finding more instances of errors," he said. "After seeing these cases, I am certain it won't be anytime soon."

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CROOKED JUSTICE SYSTEMS UNDERMINE THE CASE FOR THE DEATH PENALTY

With a number of last-minute exonerations handed to death row inmates lately, a crisis of conscience appears to be growing over the death penalty in this country. For those who doubt it, one need only look at Alabama, one of the unlikeliest of places for the penalty's re-evaluation. The fire-engine red state, where evangelism readily mixes with a socially conservative brand of politics, is tied with South Carolina for the eighth-highest number of executions in the United States since 1976. But even in Alabama, the death penalty is now opposed by the state's largest and most powerful newspaper. In November, the regularly conservative editorial board of The Birmingham News announced it had found gaping irregularities in that state's criminal justice system, forcing it to about-face and oppose capital punishment. "Cases where inmates have been convicted and later cleared challenge long-held notions about the reliability of eyewitness identification, the use of jailhouse snitches and, in some cases, the integrity of police and prosecutors," the editors said in the introduction to a series examining how death penalty convictions are won in Alabama. "While these questions apply to all criminal cases, they are particularly troubling in death penalty cases where mistakes can go, literally, to the grave."

Capital punishment's most vocal critics have long been liberals and civil rights groups who say blacks and Latinos are more likely to end up on death row than whites. Religious conservatives, including most recently Sen. Rick Santorum, R-Pa., have also joined in the chorus of doubts. But the American public still overwhelmingly supports the death penalty, and politicians remain hesitant to voice any opposition.


The debate over the death penalty is often over whether certain killers deserve to die. The more horrific the crime, the more persuaded fence-sitters may be that capital punishment is an effective tool. Every story about a Jessica Lunsford, Dylan Groene and Carlie Brucia — children who were kidnapped, sexually assaulted and brutally murdered — seems to validate those who want government to mete out the ultimate punishment.

The Birmingham News took a different approach to the issue. The power to take life is not a right the government should have, the newspaper said. Rather, it is a privilege that must be earned by the system. The board called on the state to establish more and better resources for poor defendants, including a higher wage for defense attorneys; removal of elected judges' power to override a jury's decision and impose the death penalty; mandated pre-trial hearings to determine the credibility of witnesses and jailhouse informants; and preservation of all evidence, especially DNA, in capital cases. "Is that standard too high to demand?" the editorial board asked. "Not when we're talking about a punishment that can't be undone, a sentence as final as death."

Political Perils

National awareness of the risk of wrongful capital convictions dates back at least to 2000, when former Illinois Gov. George Ryan, a pro-death penalty Republican, declared a moratorium on executions after a series of investigations uncovered faulty capital convictions. After a state probe, Ryan commuted the sentences of all 167 Illinois death row convicts, saying he'd rather that 166 guilty men live than put to death one potentially innocent prisoner.

Mark R. Warner, Virginia's popular outgoing governor and a possible 2008 presidential candidate, announced on Wednesday that two prisoners — one of whom is in his 20th year behind bars — would be set free after DNA evidence disproved rape charges against them. He also said that all 660 boxes of cases filed in the state's Department of Forensic Science would be reviewed, with DNA testing done as needed. Last month, Warner granted clemency to a man who would have been the 1,000th inmate to be executed since capital punishment was restored by the Supreme Court in 1976. Warner commuted the man's sentence to life in prison without parole because evidence in his trial was improperly destroyed by a court clerk, making DNA testing that could potentially exonerate him impossible.

Few other states have taken such dramatic measures. Only 13 states, including Illinois and Virginia, have formed panels to study capital convictions. Among them is California, which saw a high-profile execution on Tuesday when it administered a lethal injection to quadruple murderer Stanley Tookie Williams, co-founder of the infamous Crips gang.

Not on that list of 13 is Texas, which has a smaller death row than California but has outpaced the rest of the country in executions by miles — a whopping 355 in less than 30 years. In total, the states and federal government have put to death 1,003 inmates since 1976. Though President Bush used Texas' death penalty statistic to prove in the 2000 election that he was tough on criminals, the Lone Star State has found itself increasingly isolated in the world in its fervent embrace of capital punishment and has become the butt of comedians' jokes. A recent pro-death-penalty editorial in the Yakima (Washington) Herald-Republic was headlined: "Death Penalty Isn't Reckless in U.S. — Well, Maybe in Texas."

Some death penalty opponents believe a groundswell of discomfort is emerging toward capital punishment as it is currently practiced, but politics has stymied efforts at re-examination. Since 1988, when Democratic presidential candidate Michael Dukakis, a death penalty opponent, crashed and burned in his effort to defeat Vice President George H.W. Bush, politicians have declared their opposition to capital punishment at their peril. "Democrats have failed to get out the message that they're tough on crime," conceded Democratic strategist Cliff Schecter. "For that reason, they've often felt like they need to sound tougher on it." Schecter said he did not know of a politician who was publicly pro-death penalty and secretly opposed to the practice. But simply expressing reservations about how it is carried out also appears politically untenable.

Nonethless, a spate of high-profile exonerations moved Congress to pass the 2004 Innocence Protection Act, which among other things expanded inmates' access to DNA testing. The passage of the act was a concession by federal lawmakers that the criminal justice system did not contain as many fail-safes as it should.

Still, criticizing the death penalty can leave politicians open to charges that they are soft on crime. In last year's U.S. Senate race in Colorado, Ken Salazar, a Democrat, ran an ad charging that his Republican opponent, Pete Coors, was against the death penalty even for Usama bin Laden. Salazar went on to win the election, although the death penalty issue was not the sole reason for Coors' defeat.

Ironically, some observers say, leadership on re-examination of the death penalty may be more likely to come from religious conservatives like Coors than social-issue liberals. Virginia Governor-Elect Tim Kaine is an example of this new breed of candidate. The Democrat is both anti-abortion and anti-death penalty, and handily defeated his Republican opponent despite ads that took a similar tack as the one Salazar used to run against Coors. "Tim Kaine [proves] you can show religious conviction [and be a Democrat]. He believes in life and therefore believes the death penalty is wrong," Schecter said.

While the Catholic Church has long been on the frontlines of the anti-death penalty movement, religious conservatives in the United States have been slow to approach the issue with the same fervor they bestow on abortion, assisted suicide and stem cell research. "We believe all life is sacred," said the Birmingham News editorial board on Nov. 6. "And in embracing a culture of life, we cannot make distinctions between those we deem 'innocents' and those flawed humans who populate death row." Bob Blalock, the News' editorial page editor, said he did not expect the investigative series to be well received. "We live in a state that probably is even more in favor of the death penalty than what you might see nationally," Blalock told FOXNews.com. "If you had asked me beforehand, I would have said readers would be 2-to-1 against what we did. But in e-mails and letters and phone calls, readers were more than 2-to-1 supportive of what we've done."

Voters OK With Mistakes

The majority of Americans remain in favor of the death penalty, though that figure is down from where it was just a few years ago. A Gallup poll conducted Oct. 11-13 shows that 64 percent favor capital punishment for murderers, as compared to 70 percent two years ago. Support for the death penalty peaked in 1994 at 80 percent, according to the poll. As long as that's the case, Blalock said, lawmakers will be too timid to criticize the death penalty openly, miscarriages of justice notwithstanding. "I don't know that that's going to change nationally or in Alabama until the polls make it seem OK for politicians to step out in front of the crowd," Blalock said. "As long as you have polls showing seven out of 10 people favoring the death penalty, it's going to be the rare politician who's going to say, 'The death penalty troubles me.'"

Most polls show that support for the death penalty goes down when life imprisonment is also an option. Perhaps surprisingly, while 61 percent of respondents to the Gallup poll said they believe the death penalty is applied fairly, 59 percent also said that they believed an innocent person has been wrongly executed in the past five years. The mantra for many death penalty reform advocates is "mend it, don't end it." They believe strongly that people who commit heinous and calculated murders do not deserve to live, but want fixes in the criminal justice system to reduce the chance that the government will execute the innocent.

Death penalty proponents contend that the threat of false convictions is greatly exaggerated, despite the fact that more than 120 death row inmates' convictions have been overturned since capital punishment was reinstituted. "The system errs decidedly on the side of caution. Many guilty murderers are relieved of a death sentence because of technical flaws," said Michael Rushford of the Criminal Justice Legal Foundation. "If an innocent person were executed in this country, I'd know about it and so would you."

Time-consuming and costly probes into capital convictions after convicts have died are rare. But recently, investigations by journalists at The Houston Chronicle and The Chicago Tribune cast serious doubts on the guilt of some who had already been put to death. To deduce that an innocent person has never been executed from the fact that no proven cases have been uncovered "just defies common sense," said Samuel Gross, professor at the University of Michigan Law School. "When you look at the stories of people who were exonerated in capital murder cases, you see time and again that essential steps along the way were caused by chance. What if the real killer hadn’t confessed?" Gross wondered. "Maybe the real killer could've gotten hit by a truck or wasn't arrested for another homicide."

Gross was speaking from personal experience. He participated in an investigation that recently led the St. Louis Circuit Attorney's office to reopen a murder investigation — 10 years after the man convicted of the crime had been executed. "The importance of luck in cases we do know about almost certainly implies there were others who weren't so lucky," Gross said.

Another, perhaps more disturbing, observation may explain the lack of national outrage over the possible execution of innocent people. When most voters look at death row, they may simply just not see a reflection of themselves. "Let's face it — middle-class Americans are less likely to be in the desperate circumstances that studies show criminals disproportionately come from," said Jody Armour, a professor at the University of Southern California Law School. "People may be willing to accept some error. If the criminal justice process is disproportionately falling on the poor and minorities, many Americans may feel like neither of those groups are ones that characterize them or the ones they care most about.

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ANOTHER BRITISH "SLEEPWALKER" GETS OFF

See a post on this blog of 3rd April for a previous such case

A man accused of rape was cleared by a jury yesterday after claiming he suffered from sleepwalking.
James Bilton, 22, said that he could not remember the alleged attack at his flat in York and that he must have been asleep at the time. The bar worker, who told police that he had sleepwalked since the age of 13, was cleared of three counts of rape by a jury at York Crown Court after the week-long trial. The acquittal coincides with fresh moves by law officers to boost the conviction rate for rape cases.

During the trial, the jury was told that the alleged victim knew Mr Bilton. After a night out with her in March this year, Mr Bilton put her to bed in his flat while he slept on the sofa. The 22-year-old woman said that she woke to find her trousers had been taken off and Mr Bilton assaulting her. She denied she consented to sex.

Mr Bilton said he had no knowledge of the attack but he had a history of sleepwalking which ran in the family. He could only remember waking up on the sofa and was "completely oblivious" as to what had allegedly happened, the court was told.

A sleep expert, Dr Ishaad Ebrahim, said that Mr Bilton did suffer from the condition and revealed that sleepwalkers could carry out actions that they did when awake. The court was told that between 1 and 2.5 per cent of the adult population suffered from the condition. Of those, 4 per cent carried out sexual behaviour.

Last month, a High Court judge threw out the case of a student who said that she had been raped while drunk and unconscious on the basis that "drunken consent is still consent".

Only 5.6 per cent of Britain's reported rape cases result in conviction in court, the lowest of any European country except the Irish Republic. Michael O'Brien, the Solicitor-General, is sending proposals this week to the Bar Council and Ken Macdonald, the Director of Public Prosecutions, after winning the backing of the ministerial committee on sexual offences. The package includes a definition of "capability" to give consent in cases where a victim may have been drinking or was asleep when the attack took place. Other proposals include training judges and allowing expert witnesses to present "behavioural evidence". Mr O'Brien has ruled out lowering the burden of proof in rape cases.

One of the main obstacles to a rape conviction is jurors' attitude to female behaviour, according to police and legal experts. Now, for the first time, there may be a legal definition on whether a victim was able to grant consent, making it more difficult for alleged attackers to show that sex was consensual.

Whether the sexual history of a victim is relevant will be outlined at pre-trial hearings. It is hoped that this will prevent the defence raising traumatic past events unless they are exceptionally relevant.

Yvonne Traynor, of the Rape and Sexual Abuse Support Centre, said: "We have waited a long time for someone to listen to us about the miscarriage of justice during rape trials."

Mr Bilton slumped forward in the dock as he was cleared on all counts. He left the court in tears, supported by friends and family, and declined to comment.

Although the defence of sleepwalking is extremely rare, the case follows a similar acquittal in Canada last month, when Jan Luedecke, 33, was acquitted of rape after a judge ruled that he was asleep at the time.

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Drunk as a skunk, in the middle of the road

Remember those days of long ago when people were prepared to face the consequences of their own actions and mistakes, instead of blaming others? The extraordinary burgeoning of personal injury litigation that has followed the eclipse of that spirit has come at great cost to the community, including through the increased insurance premiums imposed on professionals and businesses. Ultimately, it is only the legal fraternity, and those lucky victims who have managed to displace responsibility, who have been the winners. Witness, for example, the facts of a civil case decided on appeal in the High Court on Wednesday.

In the middle of a rainy night in Albany, WA, in October 2000, tow-truck driver Wayne Edward Manley ran over fisherman Iain Stewart Alexander as he lay in the middle of the road, drunk. Adding to Mr Alexander's perils as he lay on the asphalt, supine after the consumption of 12 beers over eight hours, was the fact that his friend Cameron Turner was standing unsteadily at the side of the road and looking as if he might stumble on to it: this distraction occupied Mr Manley's attention during the critical few seconds in which he might have noticed Mr Alexander and applied the brakes. Mr Alexander, who was seriously injured, unsuccessfully sued Mr Manley for damages in the District Court of Western Australia. But the Full Court overturned the decision, ordering Mr Manley to pay the 30 per cent of Mr Alexander's damages that could be sheeted home to his negligence.

This has now been upheld in the High Court. In response, most people would be inclined to say, first, that a motorist could be forgiven for failing to avoid a drunk who was lying stationary in the middle of the road, wearing dark clothes on a dark night. Of course, High Court judges are provided with a commonwealth car and driver: perhaps they have forgotten what it is like to drive at night. Second, and more important, most people would likely feel that the activity of lying drunk on the road at night is an inherently risky and stupid one, and that those who pursue it should be prepared to carry the full freight of the consequences of their actions. For most of us this is, quite simply, reality. It is clearly not so for the courts.

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A Tale of Two Executions

The many groups that coalesced to protest the execution of Tookie Williams did nothing for contract killer John Nixon

One day after notorious gang leader and vicious killer Tookie Williams was executed in California -- despite weeks of very vocal, vociferous, protests by Hollywood stars, political and civil rights leaders -- another man was executed in Mississippi.

John B. Nixon, Sr. was 77 years old when he was executed December 14, 2005. He was the oldest man to be executed since the death penalty was reestablished in 1976 and the oldest to be executed since 1916.

Unlike the Tookie Williams execution, there were no protests about this execution. There were no claims about discrimination when imposing the death penalty involving John Nixon. Jesse Jackson and Al Sharpton did not travel to Mississippi to meet with the condemned. Former actor Mike Farrell did not fly to Mississippi to appear in front of the prison on TV and rant about the inequities of this particular case or of the criminal justice system in general. Fox News Channel and Air America host Alan Colmes did not say Nixon might be innocent because there was no DNA evidence.

One has to wonder why this execution went ignored. After all, there were more circumstances involved with this case than with Williams that may have provided a reason for commuting the sentence to life.

Nixon was convicted of the 1985 murder for hire of a Mississippi woman. The woman’s ex-husband hired him. He shot and wounded the woman’s current husband before killing the woman as he was contracted to do.

The man who hired him only received a life sentence (Nixon was sentenced in 1986). Nixon made every possible appeal. All were rejected and Mississippi Governor Haley Barbour did not grant clemency.

Many differences between the two cases would lend themselves for clemency for Nixon as opposed to Tookie Williams.

Nixon only murdered one person, one time. Williams murdered four people, two different times. Nixon was twenty years older than Tookie and spent less time on death row. Nixon was a former auto mechanic who volunteered for service in the Navy during World War II and was honorably discharged. Tookie was the founder and leader of a murderous gang.

Unlike Tookie, Nixon was diagnosed with a mental disorder. Unlike Tookie, Nixon saved the lives of other people.

So there were a great many reasons to spare Nixon. Yet the only protests made about executing him was a simple statement from the website of the National Coalition Against the Death Penalty and something from a Canadian anti-death penalty group. Other than that, there were some news reports -- not much though.

Contrast that with the showering of media stories, TV programs, websites, and radio shows all about Tookie Williams. He even had a movie made about him.

John Nixon had no savejohnnixon.org, website going for him, like there was a savetookie.org. There were no articles in the Revolutionary Worker Online for Nixon as there were for Williams. Nothing on CNN, Fox, MSNBC, NBC, CBS, ABC, or anyplace else for Nixon as there was for Williams.

Unlike the Tookie Williams execution, there were no interviews with college professors offering their years-long studies indicating that the administration of capital punishment in the US is discriminatory. When it came to John Nixon academicians, lawyers groups, civil rights groups, and anti-death penalty groups were all MIA.

There were no witnesses when John Nixon was executed chanting: “The State of Mississippi has killed an innocent man,” as there was when Tookie was killed.

Europeans were not outraged by Nixon’s execution as they were about Williams’.

Not one Catholic Bishop made a public statement about the execution of John Nixon. Yet, they were very outspoken about Williams’ execution. Bishop Nicholas DiMarzio of Brooklyn, N.Y., the chairperson of the U.S. Conference of Catholic Bishops Committee on Domestic Policy, wrote a letter to California Governor Schwarzenegger requesting Williams not be executed.

Bishop DiMarzio did not write anything to Governor Barbour.

The NAACP said nothing. The Death Penalty Information Center said nothing. Amnesty International said nothing.

They were all there for Tookie. They went AWOL for Nixon.

Why though? This is the real question. Why not protest the Nixon execution? This is the mystery.

As already stated the differences between the Nixon and Williams cases lent themselves to Nixon being more worthy of commutation than Williams. Yet, no sound was made to save him.

However, there was another difference between Williams and Nixon. One that may explain why so many groups coalesced to protest the execution of Tookie Williams and not John Nixon. A difference other than Williams’ history of violence, his history of crime as opposed to Nixon’s history of working for a living. A difference other than Williams’ creation of an organized crime group and Nixon’s military service.

Nixon was white. Tookie was black. Maybe that explains the reason why the silence was deafening when John Nixon was executed and a din of protests for Williams.

Could it be that the protests about the Tookie Williams execution were just another example of racial exploitation by liberals?

Probably.

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KANGAROO COURTS IN JORDAN

The Jordanian justice system has failed dramatically in the murder case against Bilal Musa, executing him for murder based on a confession that was likely obtained as a result of torture, but exonerating another man who voluntarily confessed to committing the same crime. “These two cases exemplify the Jordanian judiciary’s failure to conduct even the most basic inquiry into the facts, even in the most serious cases,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “Jordan should urgently follow King Abdullah’s call to abolish the death penalty to prevent tragic cases like this in the future.”

On April 27, 2000, the Serious Crimes Court in Amman ordered the execution of Bilal Musa for the 1995 murder of Najih Khayyat, despite his claim to have been tortured into confessing and the lack of any apparent connection to the victim. But on September 26, 2005, the same court cleared Zuhair Khatib, who insisted that he was the real killer.

The judges also convicted Musa of murdering nine other people over a period of four years, based entirely on his contested confessions. The prosecution failed to present any evidence linking Musa to the death of Khayyat or to the other murders. The court relied solely on a confession that was obtained as a result of torture, according to the court testimony of a witness who testified he had heard Musa screaming from beatings he received while being interrogated.

Musa never disputed an eleventh case, in which he claimed he killed a friend who was sexually assaulting Musa’s wife, Susan Ibrahim. She was a co-defendant in the cases against Musa. The court failed to investigate Musa’s and Ibrahim’s allegations of torture.

On December 7, 2000, Musa was executed by hanging at Swaqa Prison, just south of Amman. The court also convicted his wife, Susan Ibrahim, of murder but reduced her sentence to life in prison with hard labor. Ibrahim died in prison several months after her husband’s execution.

On May 15, 2005, five years after this high profile case had been closed, two of the same judges at the Serious Crimes Court convicted Khatib for the murder of Khayyat and two others. According to court papers, Khatib had voluntarily and spontaneously confessed to the murder of Khayyat, although the police sought him only in connection to two unrelated murders, to which he also confessed. The court accepted his confession and convicted him of all three killings

“The Khayyat case points to the dangers of relying on disputed confessions without further evidence to establish the truth,” Whitson said. “Rigorous scrutiny of evidence and the court’s desire to establish the truth are sadly absent in these cases.”

When the court realized that it had already sentenced Musa to death for the same murder, the case went to the Court of Cassation, which sent it back to the lower court for review.

On September 26, the Serious Crimes Court reversed its decision to convict Khatib for the murder of Khayyat, arguing that Musa’s confession corresponded more closely with the facts of the murder, notwithstanding Musa’s claim that police had dictated his confession. The court’s dismissal of Khatib’s voluntary confession to the murder of Khayyat was apparently based only on their realization that they had already executed a man for the crime.

Three times this court has issued a verdict on who murdered Najih Khayyat. Two of the three judges on the bench ruled in both cases. Confronted with exactly the same facts, the judges once found Khatib “guilty” and once found him “not guilty.” Despite a lack of corroborating evidence and allegations of a confession obtained as a result of torture, they found Musa guilty and had him executed.

“The same judges who initially relied on Musa’s and Khatib’s confessions without significant testing of the evidence should not be called on to review the verdicts,” Whitson said. “There needs to be an independent inquiry.” ..

“These two cases are a stunning example of the Jordanian judiciary’s failure to conduct even the most basic inquiry into the facts surrounding the most serious crimes with the most serious penalty,” said Whitson. “The police, prosecutors and judges appear to have had little interest in establishing the truth, and every interest in rushing through murder verdicts based on confessions likely extracted under torture.”

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MORE ON THE CORY MAYE CASE

While the fate of Stanley “Tookie” Williams drew plenty of attention in the in the mainstream media, many in the blogosphere – on the right and the left (Battlepanda has assembled a list of them, conveniently organized by political ideology) – have been lamenting the lack of similar attention to the death penalty case of Cory Maye. Maye is on death row for killing a police officer. Radley Balko of the libertarian blog The Agitator was first to blog about Maye, and those who have followed seem to agree that Maye is the victim of overzealous police and racial bias and doesn’t deserve the death penalty.

Balko offers a detailed summary of his findings in the case and sums it up as such:

Cops mistakenly break down the door of a sleeping man, late at night, as part of drug raid. Turns out, the man wasn't named in the warrant, and wasn't a suspect. The man, frigthened [sic] for himself and his 18-month old daughter, fires at an intruder who jumps into his bedroom after the door's been kicked in. Turns out that the man, who is black, has killed the white son of the town's police chief. He's later convicted and sentenced to death by a white jury. The man has no criminal record, and police rather tellingly changed their story about drugs (rather, traces of drugs) in his possession at the time of the raid.

Glenn Reynolds at Instapundit says the case “sounds like a total miscarriage of justice”:

If the facts are as [Balko] reports, this guy never should have been charged -- and he should have had a lawsuit (though those, unreasonably, are usually losers) against the police for breaking down the wrong door. The cop who was shot was the police chief's son. And there's a racial angle, too.

Obsidian Wings, who notes that “I don't have any moral qualms about the death penalty as a concept,” adds:

If it is true that Maye was mistakenly thought to be a drug dealer and he reacted as many innocent citizens might to an intruder, he ought not be executed. Maye is not the kind of killer that I have in mind when I argue in defense of the death penalty.

Kevin Drum at Washington Monthly’s Political Animal, who is “not opposed to the death penalty qua death penalty” writes:

Regardless of whether or not there's more here than meets the eye, there's not much doubt that Maye doesn't deserve to die. It's yet another example of how capriciously the death penalty is applied in the United States, and Maye's case is an almost perfect demonstration of the intersection of race, lousy representation, and likely police misconduct that are so often the hallmarks of capital cases.

The Volokh Conspiracy chides the mainstream media:

The MSM hasn't paid any attention to this story, but it should. And I hope the Mississippi Supreme Court will be paying lots of attention, too.

And amid much talk of the influence of bloggers and citizen journalism, Mark Kleiman at Huffington Post chimes in about what this latest crusade might reveal:

This case is an interesting test of the power of the blogosphere. Though the apparent injustice is two years old, it seems to have attracted exactly zero attention in the mainstream media, at least according to a Google News search for "Cory Maye."

(Article from here)



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CORY MAYE DEFENDED HIS HOME AND FAMILY -- AND IS NOW ON DEATH ROW FOR IT

A local narcotics task force conducted a drug raid on the Prentiss, Mississippi duplex apartments of Jamie Smith and Cory Maye on December 26, 2001. Smith was arrested without incident. Significant quantities of marijuana were found in his home. Both Maye's current and former attorneys say Smith was never charged for drug possession or distribution. District Attorney McDonald says he doesn't remember Smith being charged or convicted. Maye was never charged with a drug time. So the only criminal charge of any kind to come out of this raid was the murder charge against Maye.

Police executed the warrant on Maye's home sometime after 11pm. They first attempted to enter through his front door, then went around to the back. Maye was in his bedroom with his 18-month old daughter when the door was forced open by a cop other than Officer Jones. Officer Ron Jones was the first one to enter Maye's apartment. Maye fired three times. One bullet struck Jones, and killed him.

Jones was not a regular member of the narcotics task force. He was a K9 officer for the Prentiss police department. At the time of his death, Jones was the son of the Prentiss, Mississippi police chief. Chief Jones is now retired. Maye is black. Jones was white. Jones was armed when he entered Maye's apartment, but his gun was holstered.

Maye fired three times in rapid succession. After the third shot, the remaining members of the task force shouted "police!" and entered the apartment. At this point, Maye dropped his gun, put up his hands, and surrendered. Maye had no criminal history, no history of violence, and no prior drug arrests -- not even misdemeanors.

The search warrants and affidavits list Jamie Wilson by name, and refer to him as a "known drug dealer." There was also a warrant for a search of Maye's home, but it didn't list Maye by name. None of the affidavits or warrants mention Maye by name. The only direct evidence in favor of a search warrant against Maye seems to be a confidential informant's tip to the investigating officer that a "large amount" of marijuana was being stored in Maye's apartment 24 hours before the raid. The officer also says he saw considerable traffic coming to and from the duplex at unusual hours.

Immediately after the raid, police first said they found no drugs in Maye's apartment. Days later, they say they found a small bag of "allegedly marijuana," and three pieces of a burnt cigar, also containing "allegedly marijuana." Officer Ron Jones, the one who was killed, was also the sole officer who conducted the investigation that led to the raids. Because of this, we'll never know the details of his investigation. Nor will we learn the identity of his confidential informant. Jones apparently kept no records of his investigation into Maye or Smith. According to DA Buddy McDonald, all record of the investigation "died with Officer Jones."

Nevertheless, judging by the information included in the warrant affidavits, it appears Jones made no effort to identify Maye, to make a controlled drug buy from Maye to corroborate the informant's story, or to do a criminal background check on Maye. In fact, there's no evidence that Jones knew the identify of the person occupying Maye's apartment.

The gun Maye used to shoot Jones was stolen, though by all indications, it wasn't stolen by Maye. Maye says he got the gun from a friend. Documents show that the gun was stolen in Natchez, 100 miles from Prentiss, at least a year prior to the raid on Maye's home. The trial judge deemed the fact that the gun was stolen to be prejudicial, and withheld it from the jury.

Facts in Dispute:

Whether or not the narcotics task force sufficiently announced themselves and gave Maye time to peacefully answer the door before forcing entry. Where the drugs in Maye's apartment came from. Why the times listed on the evidence sheets for both Maye and Smith's apartments were repeatedly scribbled out. Why Maye's sheet lists no exact time the evidence was collected. Why the evidence in Smith's apartment was collected on the 26th, immediately after the raid, while the evidence in Maye's was apparently collected at 5:20am the next day (though again, that time was the last of three times entered, the first two being scribbled out to the point of being illegible).

The legitimacy of the warrant for Maye's residence. It appears to have been issued solely on the word of a confidential informant, who says he spotted marijuana in the apartment. If the warrant was illegitimate, police should never have broken down Maye's door. If it was legitimate, they'd still have to have clearly announced themselves, and given Maye time to answer the door, for him to be guilty of capital murder.

More here


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CRITICISM OF CANADIAN JUDGES MUZZLED BY PROSECUTION OF A CRITIC

Canadian judges are all perfect, you see (!!!)

The Law Society of Newfoundland and Labrador has dropped a complaint against a lawyer who said unqualified judges are one of the causes of wrongful convictions. Jerome Kennedy was charged with professional misconduct after he said in a speech in July, 2003, that judges who "don't know what they're doing" are one of the many reasons why innocent people are found guilty. In his speech, Mr. Kennedy said part of the problem is that some judicial appointments are political, and that some judges have "intentional or unintentional biases." Mr. Kennedy has worked on high-profile, wrongful-conviction cases in the province, and he is a director of the Association in Defence of the Wrongly Convicted.

His words prompted a complaint to the law society from Chief Justice Derek Green of the trial division of Newfoundland's Supreme Court, who said the comments could dent the public's faith in the impartiality of judges. Mr. Kennedy was charged with bringing the administration of justice into disrepute. An adjudication panel began a hearing in January, 2005, but was put on hold for months when one of the tribunal's rulings was appealed through the court system. The matter was finally diffused after a recent ceremony at which Chief Justice Greene invested 10 lawyers as Queen's Counsel -- including Mr. Kennedy.

Mr. Kennedy said he talked to the Chief Justice and told him his earlier criticisms were not of the court as a whole, but that he was merely pointing out that there are several players behind wrongful convictions, including the individual judges. He then wrote a letter to the Chief Justice saying he has "respect for the court" even though it is "subject to fallibility in specific cases." Chief Justice Greene wrote to the law society that he was satisfied that "Mr. Kennedy recognizes the importance of the court as an institution and has not intended to attack it as such."

When the law society's disciplinary panel reconvened on Friday, it dismissed the complaint. If the complaint had been upheld, Mr. Kennedy could have faced a fine, suspension, or even disbarment. Mr. Kennedy said his comments were initially made in anger, but he is gratified they generated "a healthy debate" about the role of judges. He said in 2003 that he was frustrated that a public inquiry into three wrongful-murder convictions in Newfoundland, conducted by former federal chief justice Antonio Lamer, was not going to look into the role of judges in the cases.

His controversial speech was made at a convention of wildlife enforcement officers. He said he was trying to impress upon them that they, too, needed to investigate properly and have reasonable grounds for laying charges.

James Lockyer, a Toronto lawyer who specializes in fighting wrongful-conviction cases, said yesterday that Mr. Kennedy's contention that trial judges can cause wrongful convictions is an "obvious fact" that shouldn't be taken as an insult. "Trial judges, like everybody else, make mistakes," he said. "Every player in the system, from witness to defence to Crown to police to judge, can all separately and independently be a cause of a wrongful conviction." Mr. Lockyer was set to be a witness for Mr. Kennedy at his hearing, but his appearance was cancelled.

Mr. Kennedy noted that one of the issues his comments raised -- the politics behind judicial appointments -- has become a hot topic nationally. A subcommittee of the House of Commons justice committee held hearings into the issue over the past few months, and heard much stronger condemnation of the appointments process than that voiced by Mr. Kennedy.

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SENILE JUDGE KEEPS INNOCENT MAN IN JAIL FOR 21 MONTHS

The following account appeared in "The Australian" newspaper of December 10th. (Excerpts):

Bradley James Mawdesley has been acquitted of murder after four trials and spending 21 months behind bars. His first two trials were aborted after the then West Australian Chief Justice David Malcolm made a string of errors and a witness blurted out prejudicial information to the jury.

The third trial was abandoned after the jury was deadlocked and unable to reach a verdict. But a jury took just over five hours to reach a not guilty verdict late on Thursday, acquitting Mr Mawdesley of the murder of 34-year old father of two.

The Weekend Australian has previously been denied access to the transcript of the second trial, which Justice Malcolm aborted. The Supreme Court refused to release the transcript before the outcome of the retrial. During the trial before Justice Malcolm, defence counsel Richard Utting submitted that the jury should be discharged, saying the trial had "run off the rails".

Last July, the Court of Appeal quashed a manslaughter conviction after finding Justice Malcolm had misdirected a jury. After months of speculation about his health, the Chief Justice last month announced his retirement from the bench...

Mr Mawdesley was accused of killing Dunstan by running him down with a car in March last year and has been held in custody ever since. Mr Utting said the 28-year-old had spent more than 21 months in prison and was relieved to finally have a verdict. "He is obviously very, very relieved it's over," Mr Utting said. "He has spent a long time in custody for offences that the jury has now found him not guilty of. "But notwithstanding the jury verdict that this was a tragic accident, he will carry the burden of what has happened for the rest of his life."...

The prosecution alleged Mr Mawdesley used his car as a murder weapon to kill Dunstan, who was catapulted 15m into the air after being struck by the vehicle.


Update

An account of the above matter has just appeared online here. Excerpt:

"Bradley James Mawdesley walked free from jail yesterday after four murder trials and 21 months behind bars and with almost $10,000 in fines to pay. Mr Mawdesley was found not guilty last week of murdering 34-year-old father-of-two Dale Dunstan by running him down with his car in a Perth suburb in March last year.

But the 28-year-old has admitted that at the time of the accident he was driving while his licence was suspended - his third such conviction - and has built up more than $9000 in unpaid fines.

Mr Mawdesley, who was whisked away from Perth's maximum security Hakea prison yesterday, had his first trial aborted in May after a witness blurted out prejudicial information to the jury.

His second trial began the next day but was aborted after West Australian Chief Justice David Malcolm, who has since retired after months of speculation about his health, made a string of errors in his summing up to the jury, prompting defence counsel Richard Utting to submit that the trial had "run off the rails"."


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Man who fathered kids to 14-year-old twins praised by their mum

It does seem like an injustice was done here. The feminist dogma that the man is always in control and to blame is garbage

A mother who allowed her underage twin daughters to have four children to the same man has defended his actions. The woman blames her daughters, aged 14 at the time the love triangle began, for the bizarre relationship that took place under her roof for several years in a town near the Queensland coast. No names or details can be given, to protect the children involved. "The father was a good man, he still is," says the woman, 43, who now lives in Brisbane. "My girls were nothing but trouble, they were sexually active and fighting over him. They actually fought for his attention and one of them always came out of it with a black eye. He's just a man who didn't know what he was in for. He was overwhelmed."

According to their mother, the girls shared the man after he moved into a workshop under her rental home in late 1995. There, the teenagers vied for the then-18-year-old's affections. The twins each had two children to him. Three of the babies arrived when they were 14 and 15, the fourth at 18. "He was homeless when we met him, I think a girlfriend of mine introduced him and he moved in as a kind of lodger," said the twins' mother, who has four other children.

She said the "strong-willed" sisters, now aged 23 and living elsewhere, "swapped and changed", sharing the man's attention. The relationships turned sour in 2003 when custody of two of the children was awarded to the father. One of the girls turned on the father in a bid to regain custody of her girl and boy. "One of my girls decided he'd stolen her childhood so she went to the police and they charged him," the mother said. "Then the police charged me."

The man was sentenced to nine years' jail after pleading guilty to charges of maintaining a sexual relationship with minors. But the twins' mother refused to turn her back on the man. Instead she wrote a strongly-worded letter which was read in the Queensland Court of Appeal. The letter stated the twins were "uncontrollable". "He was just a kid" and "other guys they ran around with would not have stuck around like he did". Her daughters had chased him with great intensity . . . he was a fantastic father who worked to provide for his families . . . both twins often left their children with him "to suit their party schedule".

The appeal court recently reduced the sentence to five years, with a recommendation the father be released with supervision after 18 months. He could be released in eight months. Justices Phil McMurdo, Pat Keane and Ros Atkinson said it was unlawful and irresponsible conduct to take advantage of unfortunate young girls. But it was not a case of a cold-hearted and calculating quest for sexual gratification. They said the man had done tolerably well, meeting fatherly and financial responsibilities. The twins' mother said: "He can't wait to see the kids and he's paying $10 a week towards their upkeep . . . He's a good father and he wants to be part of their lives." The mother was charged with two counts of permitting abuse of a child on the premises. She will appear in court on December 20.

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LYING POLICE AGAIN

Ten years after a Pittsburgh Housing Authority police officer shot an unarmed motorist to death in the Armstrong Tunnels, a coalition yesterday alleged that Pittsburgh Police Chief Robert W. McNeilly Jr. and former top police officials might have broken the law in connection with the case and requested an independent investigation of their actions. The allegations were contained in a four-page letter by attorney Robert McClenahan that described a decadelong "miscarriage of justice" stemming from the April 6, 1995, shooting death of Jerry Jackson by John Paul Charmo. Mr. McClenahan, representing the Citizen Police Review Board, the Urban League of Pittsburgh and several other organizations, wrote that "malfeasance" by some members of the police bureau "has been officially ignored for a decade." The letter was hand-delivered to Allegheny County Common Pleas President Judge Joseph James, who has authority to ask the state attorney general to intervene. A copy was mailed to Attorney General Tom Corbett.

Mr. Charmo pleaded guilty in 2001 to involuntary manslaughter for shooting Mr. Jackson, 44, of Hazelwood, in the tunnels after police chased the stolen car he was driving following a traffic infraction. Mr. Charmo has said he fired his gun because Mr. Jackson spun his car 180 degrees inside the tight tunnels and came at him. However, evidence that was available but never presented during a 1995 coroner's inquest, but came to light four years later, showed the car could not have performed such a maneuver.

Mr. McClenahan alleges that Chief McNeilly, former Assistant Chief Craig Edwards and retired Cmdr. Ronald Freeman might have obstructed the administration of law and been in breach of their official duties by not coming forward with certain crucial evidence during the coroner's inquest. "Because these individuals did not come forward, the case was obstructed and the criminal justice system was corrupted," the letter said.

Mr. McClenahan, former chairman of the Pittsburgh Commission on Human Relations, claims that interviews, photographs and crime lab reports went missing from the Jackson case file, but does not allege who took them. He also suggested that the law was broken when accident investigators were not called to reconstruct the accident scene, allegedly in violation of a standing Police Bureau order.

In response to the letter, Chief McNeilly said in a statement that he welcomed an investigation but discounted the legitimacy of any complaints. "I find it interesting that the timing of these unfounded accusations coincides with the changing of the city's administration and that some individuals who have animosity toward me are using it to discredit me," Chief McNeilly said. Mr. Freeman also said he would cooperate with an investigation. "I welcome any legitimate independent investigation into this and I'll cooperate in any way without benefit of counsel," Mr. Freeman said. "I have nothing to hide."

The letter was supported by the Black Political Empowerment Project, the Urban League of Pittsburgh, the Pittsburgh Commission on Human Relations, the Citizen Police Review Board and city police officers Charles Bosetti and Robert Swartzwelder.

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