Thursday, November 30, 2006


The police chief placed all eight members of a narcotics investigation team on leave Monday after a confidential informant said they had asked him to lie during the investigation of the death of an 88-year-old woman, shot and killed by police officers during a drug raid last Tuesday. Chief Richard J. Pennington said the Federal Bureau of Investigation would investigate the death of the woman, Kathryn Johnston, who was killed after she fired at three officers who breached the door of her small house, with its green shutters and a wheelchair ramp. The Georgia Bureau of Investigation is also examining the case.

The informant’s claim fueled more outrage over Ms. Johnston’s death, which had already prompted Chief Pennington to announce a review of the Atlanta Police Department’s policies on the use of no-knock warrants and confidential informants. Since the shooting, civil rights activists and community groups have demanded a federal investigation, saying excessive force was used.

In a news conference Monday afternoon, Chief Pennington said the officers involved and the informant had given contradictory accounts. “There are many unanswered questions,” he said. “But we must all exercise patience as we examine and re-examine every aspect of these tragic events.”

The events leading to the death of Ms. Johnston, whose photograph in news reports showed her with a cane and a birthday crown, began with a warrant stating that an unnamed informant had bought two bags of crack cocaine from a man at the house, near Vine City, the neighborhood where the Rev. Dr. Martin Luther King Jr. and his family once lived. The warrant was known as a no-knock, giving the police the authority to burst through the door without warning in order to prevent the destruction of drugs.

But in an interview broadcast Monday by the local Fox affiliate, the informant, whose identity was concealed, said he had never been to the house in question and had not bought drugs there. Ms. Johnston’s family has said that she lived alone. “They were going to pay me just to cover it up,” he said in the interview, arranged after he placed a call to one of the station’s reporters on Thursday. “They called me immediately after the shooting to ask me, I mean to tell me, ‘This is what you need to do.’ ” He added that the officers told him explicitly that he was needed to protect their story. The reporter, Nicole Allshouse, said in her report that the informant had told her Ms. Johnston’s death had prodded him to come forward.

Mr. Pennington said it was not clear if the drug dealer, referred to in the warrant only as Sam, existed. He said the officers claimed they had found a small amount of marijuana, but no cocaine, in the house.

In asking a judge for the no-knock warrant before the raid, the narcotics investigator named in the warrant, Jason R. Smith, had said it was needed because a drug dealer inside had several surveillance cameras and monitored them closely. But Chief Pennington said it was not clear if that was true, either. He confirmed that the informant’s account in the television interview was the same as what he had told the internal affairs division of the Police Department. Department procedures call for investigators to observe drug buys conducted by informants, and to watch them enter and exit if a deal takes place indoors. But again, Chief Pennington said it was not clear if that had occurred. He said the informant was considered reliable and had been involved in previous cases.

Once the search warrant was signed, three officers appeared at Ms. Johnston’s door with bulletproof vests and raid shields emblazoned with the word “police.” Department officials have insisted that the officers went to the correct address. They announced themselves as the police after cutting through the burglar bars and forcing down the door.

But Ms. Johnston was already at the door with her revolver, which neighbors said she kept for self-defense in an area where drugs are rampant and an elderly woman was recently raped. She shot Officers Gary Smith, 38, Gregg Junnier, 40, and Cary Bond, 38, in the face, chest, arm and leg, prompting them to release a volley of bullets. Ms. Johnston died of a bullet wound in the chest; the officers are expected to recover.

Ms. Johnston was initially said by family members to have been 92, but the medical examiner and public records indicate that she was 88. At the news conference, David E. Nahmias, the United States attorney for the Northern District of Georgia, issued a warning. Now that the case is under federal investigation, he said, “anyone who lies or obstructs justice is committing a serious crime.”

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Wednesday, November 29, 2006


More than a dozen people charged with murdering children in the past decade in Victoria have struck deals to dramatically reduce their time behind bars. Families, police and victims' groups are appalled by the "institutionalised injustice" that lets child killers beat murder charges in favour of manslaughter. A wave of community outrage over the death of five-month-old Rachael Joy Arney has prompted calls for a review of the law.

The Herald Sun has identified 12 cases where attackers inflicted horrific injuries on young children. In each, the offenders were charged with murder but prosecutors accepted a plea of guilty to manslaughter. All but one received sentences of less than half the 20-year maximum penalty for manslaughter. Their minimum non-parole jail terms totalled just 64 years. In developments yesterday:

VICTORIAN Premier Steve Bracks took the rare step of urging the Director of Public Prosecutions to appeal against the minimum five-year sentence imposed this week on the killer of baby Rachael.

FRUSTRATED police called for juries to be left to decide child murder charges.

THE father of one victim spoke of his devastation at seeing his son's killer jailed for just four years.

A PROMINENT barrister called for the DPP to make public the reasons for accepting lesser pleas.

The list of case studies reveals the horrific injuries and torment suffered by the child victims. They include skull fractures, broken ribs, bleeding on the brain, and torn internal organs. The highest sentence - 10 years' jail with a minimum of seven - was given in 2000 to Gary Stanley Kesic, who violently shook Jed Britton, 2, over the child's inability to learn toilet training.

David Scott Arney, 25, was sentenced on Monday to a minimum five years for repeatedly punching daughter Rachael in the stomach. Mr Bracks, clearly moved by baby Rachael's death, said he hoped the DPP would consider an appeal. "This is a horrific case, a dreadful case. I'm appalled by all of it," he said. "It would be up to the DPP to decide if it wishes to appeal on that matter . . . and you would hope if there is an opportunity . . . they would take that up."

One homicide squad detective said police were resigned to such sentences being imposed. "It's sad but it's at the top end," he said. "When a bloke gets nine (years in prison) with a six (year non-parole period), it's above average. "The little baby's got no choice. They're gone forever." The detective said it was a sad reality that if judges handed down stiffer sentences, they would be reduced on appeal. He said sustained public outrage might be the only thing that changed the situation.

Australian Childhood Foundation CEO Joe Tucci said the law was letting children down by reducing the seriousness of a horrific crime. "The price of a child's life is 5-10 years at the most and that, to me, is a tragic indictment on the way we see the sanctity of childhood," Mr Tucci said. He said the Office of Public Prosecutions should be transparent and accountable when it accepted a reduction in the charge. Mr Tucci wants plea bargaining abolished and a new child homicide offence with a minimum term introduced.

The father of Jonathan Guiver, 3, who was beaten to death by Mark Mietto in 2001, said the penalty for his son's death did not fit the crime. Mietto received a minimum four-year jail term and was released this year. "A fair penalty? There probably isn't one," Mr Guiver said. "Ten years is what I thought he would have got but nothing could be right for what he's done. "A child is defenceless. A child needs the protection of the courts."

Barrister Peter Faris, QC, said a jury should decide between murder and manslaughter in child homicide cases. "You hear that a jury is the hallmark of democracy and it reflects the views of the man in the street . . . why wouldn't you leave the case to them?" Mr Faris said. He said a culture had developed where child-killing cases were put in their own category with their own rules. "It's the theory that these are usually horrific circumstances for everybody," Mr Faris said. "It's an overly sympathetic attitude for factors that can be reflected in the sentence for murder."

Office of Public Prosecutions spokesman Bruce Gardner said plea offers were always considered, but whether they were acted on depended on differing legal factors. The Arney case, like all others, was being considered for appeal.

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Tuesday, November 28, 2006


If you make injustice very expensive, there might be less of it. See my earlier post of August 25 for background

Lawyers for Earl Washington Junior are seeking one-point-six (m) million dollars in fees and expenses for their successful federal suit against a late state police investigator. The legal fees are in addition to the two-point-25 (m) million dollars that jurors awarded to Washington in May.

Washington spent nine-and-a-half years on death row for the 1982 rape and murder of Rebecca Lynn Williams, a 19-year-old Culpeper woman. DNA testing led to Washington's pardon in 2000.

In May, a federal jury in Charlottesville found that Curtis Wilmore, a state police officer who died in 1994, fabricated parts of Washington's confession. Wilmore got a confession from Washington in 1983 in which Washington was said to have known details of the crime only the killer could have known. Washington is mildly retarded.

Robert Hall, one of Washington's lawyers, said U-S District Judge Norman Moon will decide whether the state should pay the fees.

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Monday, November 27, 2006

Well done ... now free the Scot on death row

The 6th circuit Court of Appeals has already overturned Kenny Richey's conviction, but in Ohio, as in Pakistan, that does not seem to matter. He is still in jail. See my post of July 12, 2005

I am delighted to see that Briton Mirza Tahir Hussain has at last been released after 18 years on death row in Pakistan. Here I can only applaud the decision of Pakistan's president Pervez Musharraf to use his discretionary powers to commute Hussain's death sentence on humanitarian grounds. Hussain's life for the past 18 years has surely been torture. He went to Pakistan all those years ago to visit family and ended up in some sort of hell. It was also wonderful to see so many members of parliament, prime minister Tony Blair and Prince Charles stepping in to fight for Mirza Tahir's life. All of this is incredibly poignant for me.

For the past decade and a half I've campaigned for justice for another British man on a foreign death row - the Scot Kenny Richey, still languishing in Mansfield Correctional Facility in Ohio after almost 20 years. Kenny, who has a Scottish mother and grew up in Edinburgh, has fought a long campaign to clear his name. As a young man, Kenny was convicted of arson and murder in Ohio in 1986 and sentenced to death in January 1987.

He has been on death row since then, but has always protested his innocence. Evidence has since emerged casting serious doubt over his guilt, and human rights organisations such as Amnesty International have always said his original trial was shoddy and that he should be allowed to present the fresh evidence that could clear his name. In fact, Kenny's lawyers are going to get the chance to present information to the 6th Circuit Federal Court of Appeal in Cincinnati in the new year, but when this ordeal for Kenny is ever going to end is still anyone's guess.

Kenny Richey, like Mirza Tahir Hussain, has been a victim of a gross miscarriage of justice. After what appears to have been a timely and vital intervention in Mirza Tahir's case from Tony Blair and Prince Charles, is it now not time for something similar with Kenny Richey? After this month's mid-term elections in the US, Ohio has a new governor-elect in Ted Strickland and this could be just the time for high-level representations to him.

As the Sunday Herald has reported, Kenny has already written to Mr Strickland pleading with him to look afresh at his case. Kenny's supporters are doing the same. It would be fantastic if Prince Charles and Tony Blair personally intervened in Kenny's case, and I will be writing to them to praise their work for Mirza. But I will ask that they extend the same support to an innocent Scot who has spent half of his life rotting on death row for a crime that never happened.

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Sunday, November 26, 2006

English case paves way for Scotswoman to appeal salt conviction

For more than six years, Susan Hamilton has lived with the stigma of child abuse. She is ostracised by neighbours, who vividly recall the day in 2000 when she was first accused of attempting to murder a girl aged eight. Despite daily taunts and recriminations, she maintains her innocence and refuses to move from her home in Sighthill, Edinburgh. But now she has been given real hope that she can prove her innocence. An expert involved in clearing a woman in England of murdering her child by salt poisoning sees remarkable similarities with Mrs Hamilton's case - and has called for an inquiry.

The key could be a drug called Domperidone, which Mrs Hamilton, 42, claims was prescribed to the child - and could have caused the high salt levels. The drug is the subject of a medical review because of possible links with high sodium levels.

For many in the community, Mrs Hamilton's name is synonymous with evil, and she will always be known as the woman jailed for poisoning a sick and defenceless little girl with huge doses of salt. But being spat on or jeered at by passers-by is nothing new to the mother of two, who she says she has nothing to hide. "I'll keep fighting because I'm innocent and the people that are closest to me, my family and friends, have all stood by me, because they know I didn't do it," she said. "My lawyers kept telling me to plead guilty and they'd spare me a jail sentence, but how on earth could you plead guilty to a crime you didn't commit? It's been three years of absolute hell, but I know we'll be proved right in the end."

At the time of her arrest, Lothian and Borders Police believed she was suffering from Munchausen's syndrome by proxy - a largely discredited condition which causes people to harm children in order to draw attention to themselves. In March 2000, the child was admitted to Edinburgh's Royal Hospital for Sick Children suffering from a level of sodium described by Thomas Marshall, a consultant paediatrician, as among the highest he had even seen. He concluded the girl had been "deliberately poisoned" with salt and police were called in. Mrs Hamilton was arrested and charged in September 2000, but it was an agonising three and a half years before the case came to court.

After a trial, she was cleared of attempted murder but convicted of assault and leaving the child brain-damaged. She was jailed for four years. The prosecution claimed she had been able to administer a potentially deadly dose because the youngster, who was fed through a tube directly into her stomach, could not taste what she was being given. It was claimed the girl, who cannot be named for legal reasons, suffered a stroke after receiving a particularly strong dose and would never fully recover from the salt doses, which were administered over a period of four and a half years.

But campaigners believe Mrs Hamilton is one of a growing number of women in Britain wrongly accused of child abuse and say a review of medical evidence will prove she has been the victim of a miscarriage of justice. Within the past month, she has been given new hope after the acquittal of Marianne Williams, 24, from Wiltshire, who was cleared of murdering her 15-month-old son, Joshua, with an overdose of salt. Joshua, born 12 weeks prematurely in November 2002, had chronic renal problems and found it difficult to retain enough sodium as it flowed through his bloodstream. His tiny kidneys led doctors to prescribe medications high in salt to provide him with appropriate nutrients.

The Hamilton and Williams cases have remarkable similarities and centre around the drug Domperidone. During Mrs Hamilton's trial, the High Court in Edinburgh heard the girl was repeatedly admitted to hospital suffering from high levels of sodium in her blood. The jury was told she had a history of ill- health, including weakness in her throat muscles which made it hard for her to swallow and hold down food. Mrs Hamilton's supporters insist Domperidone was prescribed by doctors to prevent nausea and vomiting, and that it could have exacerbated the child's illness. They say none of these factors was mentioned in court.

Now a government watchdog is to investigate the drug, amid concerns about its use in the salt-poisoning cases. Painstaking research by Penny Mellor, who runs Dare to Care, a pressure group for parents accused of harming children, has resulted in the drug being reviewed. "This is a major boost for all the people caught up in these allegations of child abuse," she said. "We have major concerns about Domperidone and how it can cause sodium levels to rise. There are so many similarities between these salt cases."

Ian and Angela Gay, from the West Midlands, were jailed for five years for poisoning their foster son with salt but had a manslaughter conviction overturned this year after the defence team argued the boy had a rare condition and could not regulate salt in his system.

Mrs Hamilton has drawn strength from the Williams case. "I was so pleased when I heard Marianne had been acquitted because I knew exactly what she was going through and I finally began to think I could clear my name," she said. "It brought back a lot of memories from the day I stood in the dock. Up to the very last minute, I never believed I was going to be convicted. This whole thing has been a living nightmare and I want to be able to clear my name and move on. I only hope that finally people are going to believe I was sent to jail for a crime I didn't commit. To be accused of harming a child is the worst thing that can happen to anyone."

Dr Michael Moritz, a professor of paediatrics in the US, was called as an expert witness in the case of Marianne Williams, who last month was cleared of killing her 15-month-old son, Joshua. The prosecution suggested she had force-fed the baby with the equivalent of three and a half teaspoonfuls of table salt. Dr Moritz said there are disturbing parallels between the case of Miss Williams and Susan Hamilton, jailed in 2003 for poisoning an eight-year-old girl with salt. His intervention comes as The Scotsman reveals a government watchdog is to conduct a review of the drug Domperidone - prescribed to the children in both cases.

"I'm keen to talk to the Scottish lawyers to investigate this case," said Dr Moritz. "If a child has been salt poisoned, you must have a witness. Just because a doctor can't work out how it happened, it doesn't mean the child was deliberately poisoned."

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Saturday, November 25, 2006


A state panel Monday urged tighter standards on the use of jailhouse informants in criminal cases, noting the danger of manufactured ``confessions'' from cellmates. Saying the use of such informants is a leading cause of wrongful convictions, the California Commission on the Fair Administration of Justice unanimously recommended statewide safeguards that would require, among other measures, independent corroboration before informants are used.

The recommendations fall far short of strict rules enacted in Los Angeles County, where the criminal justice system was stung by a scandal involving jailhouse informants in the 1980s. In Santa Clara County, a ranking prosecutor says the guidelines largely represent policies already in place, but one defense lawyer Monday called the county procedures a ``disgrace.'' The recommendation by the panel, which includes Santa Clara County District Attorney George Kennedy, comes amid a brewing controversy over the use of jailhouse informants in the South Bay.

The use of jailhouse informants locally was examined as part of ``Tainted Trials, Stolen Justice,'' a series of Mercury News articles that have highlighted a variety of issues raising the small but significant risk of wrongful conviction. One case that the newspaper looked at, the murder trial of Roy Garcia, ended in an acquittal last month after the prosecution relied in part on the testimony of an informant who had been found not credible in another case.

And earlier this month, the Texas inmate sharing a cell with Tyrone Hamel, who was charged in the 1988 killing of a Palo Alto lawyer, was called to testify at a preliminary hearing that he heard Hamel confess.

Because such confessions are easily manufactured, and because inmates have so much incentive to curry favor with authorities, the state commission is urging statewide rules. The commission wants the Legislature to require that juries be told that corroborating evidence must accompany a jailhouse informant's testimony about either the crime or the existence of special circumstances that could lead to the death penalty. The commission also called on district attorneys to adopt policies requiring a supervisor to approve the decision to call a jailhouse informant, to maintain a database of informants within the office, and to record all interviews with inmates. ``I believe these recommendations are a step forward in terms of the most egregious situations'' involving informants, said the commission's executive director, Gerald F. Uelmen.

He said many district attorney's offices throughout the state have no written policy at all. The commission report credited Santa Clara County for having a written policy, though that document is far less elaborate than that of Los Angeles County, where jailhouse informants may not be used without the approval of a committee of top officials within the office. David Tomkins, an assistant district attorney in Santa Clara County, said he and other supervisors dislike and discourage the use of informants. He said prosecutors in his office must be satisfied an informant is credible and that the informant's testimony is vital to the case. The office has developed a computer system to track and identify witnesses in cases, but that database is not yet complete and some attorneys use it more diligently than others. Tomkins said the office ``is reviewing'' the decision to use the Texas inmate at the preliminary hearing in the Hamel case. He was arrested after DNA tied him to the slaying of Gretchen Burford, a case that went unsolved for years. Tomkins said no decision has been made on whether to call the inmate as a witness if the case goes to trial.

But last month Deputy District Attorney Javier Alcala called inmate Timothy Villalba as a witness in the Garcia trial, despite doubts about Villalba's credibility. Villalba, hoping for parole while serving 25-years to life for murder, contended that Garcia had implicated himself in the 1998 killing of Deborah Gregg while he and Garcia were in custody together. Villalba was already ruled not credible in another case, after he testified in 2002 that he heard another inmate -- Glen ``Buddy'' Nickerson -- confess his part in a notorious 1984 drug-related double homicide. A federal judge ruled Villalba ``entirely without credibility,'' and overturned Nickerson's conviction. Wednesday, Garcia's attorney, Doron Weinberg, said he was ``outraged'' by any suggestion that Santa Clara County had model standards on the use of informants. ``Any policy that would permit the testimony of somebody like Villalba . . . is not a policy worth talking about.''

The commission earlier this year approved recommendations on protecting against mistaken identification and on wrongful confessions. Those recommendations led to bills that ultimately were vetoed by the governor. Nevertheless, Uelmen said Monday he was ``optimistic'' that the new report -- which carried unanimous support -- would be enacted and that he ``also remains optimistic that the governor will give a second look at the earlier measures as well.''

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Friday, November 24, 2006

Britain: No justice at all. Huge numbers of violent criminals are avoiding jail as police issue more "cautions"

More than half of people charged with offences of violence against the person receive a caution rather than going to court, according to government figures published yesterday. Hundreds of thousands of criminals, including violent offenders, are escaping punishment after a surge in the use of police cautioning. Figures published by the Home Office revealed a 17 per cent rise in police cautions in England and Wales to reach almost 300,000 last year.

For the first time people charged with violence against the person are now more likely to receive a caution than go to court and face the prospect of a fine, community punishment or jail term.

A caution is a formal warning given by a senior officer in a police station where a person admits to a criminal offence. The caution gives an individual a police criminal record.

The jump in use of cautions was condemned by opposition politicians who accused the Government of talking tough on crime while being in charge when the cautioning rate was increasing.

Nick Clegg, the Liberal Democrat home affairs spokesman, said: “The public will be confused that a government that spends so much time talking tough is in fact presiding over an increasing number of cautions for serious violent crimes. Cautions should not be used in a way that lets people off the hook who have committed serious offences.”

David Davis, the Shadow Home Secretary, said that the figures were an insult to victims of crime. “It is bad enough that so many people suffer from soaring violent crime. It is outrageous that so many people get away with it.

“This is a direct consequence of Labour’s failure to address the chronic lack of capacity in our prisons, meaning people who should be in jail are not. People want to see offenders properly prosecuted and convicted.”

A Home Office spokeswoman said: “We are quite clear that more serious cases of violent crime will lead to a custodial sentence. But in certain cases, involving much less serious injuries, a simple caution may be appropriate and it is right for the police to decide whether to issue a caution or whether to charge.”

The Home Office figures show that the number of suspects found guilty by the courts fell by 4 per cent last year. A total of 1.4 million people were convicted in the magistrates and Crown Courts, compared with 2.1 million in 1981 and 1.5 million in 1991. When cautions were included, 1.78 million offenders were dealt with by the criminal justice system, a fall of 1 per cent.

Within the overall increase in cautions, there was also a 17 per cent increase in cautions for the most serious offences, to reach 183,000.

A total of 55 per cent of the 91,900 people accused of violence against the person were cautioned in 2005, compared with 48 per cent the previous year. Almost half of 588 people accused of threat or conspiracy to murder received a caution from the police. But the figures show that the number of people cautioned for rape has fallen sharply from 40 in 2004 to 22 last year.

The cautioning rate for indictable, or more serious, offences rose four points to 38 per cent.

Three police forces — Dyfed-Powys in Wales, Surrey and Warwickshire — had caution rates for more serious offences of more than 50 per cent. The rate in Dyfed-Powys and Surrey was 57 per cent, compared with just 18 per cent in North Yorkshire.

Yesterday’s report also highlights the struggle that the Government has to speed up justice. The average time from an offence being committed to the case being completed in the magistrates’ court rose from 118 days in 2004 to 122 days last year.

The figures also show that the proportion convicted of sexual offences remained at 56 per cent despite wideranging government measures to boost guilty verdicts.

The number of murder convictions in the year reached 394, up from 361 in 2004.

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Thursday, November 23, 2006

Australia: One year's jail for an habitual criminal!

Burglar Drue Phillip Tryhorn is a perfect example of the debate raging about Queensland's parole system. Tryhorn, 23, made headlines earlier this year when he escaped from the Sandgate watch-house while held for a series of break-and-enter type offences. He was before the District Court in Brisbane yesterday, where he pleaded guilty to 16 offences including escaping from lawful custody, serious assault, break enter and stealing, unlawful use of a motor vehicle, stealing and obstructing police.

Prosecutor Zoe Rutherford said that during a two-month period from April to June this year Tryhorn committed seven break and enters and other offences with a total loss to the community of $51,600. Tryhorn was being held at the watch-house for the offences when he overpowered a female police officer and escaped from a secured yard. Ms Rutherford said Tryhorn had begun reoffending recently after being released from jail.

Barrister Chris Wilson, for Tryhorn, said his client was 17 years old when jailed for robbery and sentenced to 41/2 years with a recommendation for parole after 15 months. "But he didn't get parole and served every day of the 41/2 years before being released without supervision," he said. Mr Wilson said his client had received no help for his drug addiction and it was obvious Tryhorn needed lengthy supervision. "My client is only 23 years old but has already spent nearly six years in jail where he has received little help," he said.

Judge John Newton noted the case highlighted both sides of the debate on granting early parole. It was a matter of regret Tryhorn had not received some assistance while in jail and when released for his obvious problem with drugs. "On the other hand the parole board was shown to be correct when it refused you parole because you were considered a threat to the community of reoffending," he said.

Judge Newton told Tryhorn his criminal record for a man of his age was "disgraceful". But he said he would give Tryhorn one last chance to rehabilitate with help. Judge Newton jailed Tryhorn for 3 1/2; years on the dishonesty charges and a cumulative six months for escaping from custody. But he suspended the total four years' jail after one year and ordered Tryhorn perform three years' of probation.

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Wednesday, November 22, 2006

Britain: Stark reminder of how an innocent man can be railroaded into spending years in jail

The context has changed since the case of Stefan Kiszko, but not the risk

There is an understatement on the gravestone that marks the burial place in Rochdale cemetery of Charlotte Kiszko and her son, Stefan. "A loving wife and a very devoted mother," reads the inscription commemorating Mrs Kiszko. No one could possibly have been more devoted than Charlotte Kiszko, who campaigned tirelessly for 16 years to prove the innocence of her son, Stefan, convicted, after a bungled police investigation, of the murder of 11-year-old Lesley Molseed in 1975. This week, many years after both she and her son were buried in the vast old cemetery, a man has been charged with the murder.

It is 30 years since Stefan Kiszko, an Inland Revenue clerk with the mental and emotional age of a 12-year-old, was found guilty, and 13 since he died after a brief taste of freedom. His mother died a few months later. Could a case as shocking happen today?

The man who helped to prove Kiszko's innocence, and who acted as his mother's ally, believes we are now just as much in danger of ignoring equally egregious miscarriages of justice. "In the current climate more miscarriages will take place," said Campbell Malone, the solicitor who took over the case and saw it through its successful appeal. "It is nonsense to suggest miscarriages of justice are less likely to happen now. We are more at risk - the climate is just as bad as it was in the 1970s when you had all the Irish cases. I am profoundly gloomy about the situation."

Mr Malone accepted that changes in the law through the Police and Criminal Evidence Act (Pace) had removed some of the dangers. Kiszko was, for instance, initially questioned without a lawyer and made his confession after being told that, if he did so, he would be allowed to go home.

In recognition of the large number of potential wrongful convictions, the Criminal Cases Review Commission (CCRC) was established by law in 1995. The commission, which has a staff of around 110, receives more than 900 applications annually and refers about 40 cases to the appeals courts. "The CCRC are under pressure and have had their resources cut back," said Mr Malone. He cited the government's many attempts to reduce compensation paid to victims of miscarriage of justice. "In the early 1990s there was a willingness to investigate. That is no longer the case."

Two highly regarded television series, the BBC's Rough Justice and Channel 4's Trial and Error, also used to put the resources into researching such miscarriages. "Trial and Error is just a memory and the Rough Justice programmes are as rare as hen's teeth," said Mr Malone. "It's getting harder and harder to have cases reopened. It's scary."

Few new lawyers were entering the field, as such cases were time-consuming and may have been worked pro bono. Michael Mansfield QC, who has acted in many of the best known miscarriage of justice cases, agreed that there were now serious risks of the wrong people being convicted, although the reasons may have changed. "In the 70s and 80s, there were the usual allegations of fit-up [framing], verbals [alleged admissions] and fabricated confessions. Since Pace, that has dwindled to almost non-existent. But forensic science can be equally suspect because of the desire to convict." He cited the case of Angela Cannings, cleared on appeal in 2003 of the murder of her two baby sons. "If that had been carefully analysed it should never have led to a conviction," he said. "There are other cases where scientific evidence is not being scrutinised carefully."

The rules on fingerprinting had been loosened rather than tightened. "Most solicitors are very reluctant to get tied up in cases of this kind and a lot of lawyers shy away from this [forensic issues] because it's very specialised," he added. He said television in the past had been able to lay out budgets that led to new information being turned up, as with cases like the Birmingham Six. A new series about miscarriages of justice, The Innocence Project, was, coincidentally, launched this week by the BBC. It is a fictional account of students investigating potential miscarriages of justice, as happens in real life at Cardiff, Bristol and Leeds universities.

A CCRC spokesman acknowledged budget cuts. "As a result of reduced funding the commission has needed to make savings without compromising the quality of the service that we provide. We are working hard to erode our backlog of cases and extra resources would obviously speed that process up." He added: "New problem areas have emerged in recent years, such as expert evidence, disclosure and critical errors in the directions given by judges. While still rare, miscarriages of justice are still occurring and will continue to do so."

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Background to the Kiszko case:

The headnote in R v McKenzie [1993] 1 WLR 453 reads:

"Where the prosecution case depends wholly on confessions, the defendant suffers from a significant degree of mental handicap and the confessions are unconvincing to a point where a jury properly directed could not properly convict on them, the judge should take the initiative at any stage of the case in the interests of justice and withdraw the case from the jury." One of the cases cited in argument, but not referred to in the judgment, is R v Kiszko (unreported) 18 February 1992, CA.

Stefan Kiszko was convicted of murder twenty five years ago - on 21 July 1976. The victim was11 year-old Lesley Molseed. She had been stabbed to death on the Yorkshire moors. The killer had ejaculated on her underclothes. Kiszko spent the next 16 years in prison. He was released in February 1992 after the decision of the Court of Appeal. He had collapsed mentally and physically. Stefan Kiszko was innocent. Lesley Molseed's real killer has never been prosecuted.

* * * * * *

Stefan Kiszko was the son of a German mother and a Ukrainian father who had fled to England after the second world war. They were hard-working ordinary folk who lived in Rochdale in the north country and were proud of their son when he got a job in the tax-collector's office: he was the first in the family to wear a suit and tie to work.

Stefan was a large child-man: although apparently of average intelligence, he was grossly immature because of hypogonadism - his testes were completely undeveloped. This condition was not diagnosed until he was 23. As a student, he had been the butt of schoolyard jokes; when he began work as a clerk, he became the butt of office jokes. He had no friends, and no social life beyond his parents and his aunt Alfreda. Then his father died, and he had only his mother and aunt - but he wanted nothing more. He was a lumbering, good-natured child in a man's body.

Lesley Molseed was a small, frail 11 year-old. She lived in Rochdale with her mother and step-father. On 5 October 1975, she agreed to go down to the shop to get some bread. Her body was found 3 days later, on the moors nearby. She had been stabbed 12 times. Her clothing was undisturbed, but the killer had ejaculated on her underwear.

An enormous police investigation began when the body was found. The police took statements from over 6000 people, including girls in the Rochdale area who had seen a man indecently exposing himself during the weeks immediately before Lesley Molseed was killed; and people who had seen vehicles in the parking area near the place on the moors where the body was found.

Two girls identified Kiszko as the man who had exposed himself to them. Police quickly formed the view that Kiszko fitted the profile of the person likely to have killed Lesley Molseed. They pursued evidence which might incriminate him, and ignored leads which would have taken their enquiries in other directions.

The police questioned Kiszko closely. They were convinced he was the murderer, and they seized on inconsistencies between his various accounts of the relevant days as further demonstration of his guilt. They paid no attention to his gross social backwardness; they did not tell him of his right to have a solicitor present; when he asked if he could have his mother present when he was questioned, they refused; they did not caution him until well after they had decided he was the prime suspect.

Kiszko made a confession, which he retracted shortly afterwards. He explained that he had confessed because the police had assured him he could go home to his mother if he told them what had happened.

* * * * * *

The trial began on 7 July 1976. Kiszko was defended by David Waddington QC and Philip Clegg. The prosecutor was Peter Taylor QC (later Taylor LCJ) with Matthew Caswell. The defence made 3 significant mistakes:

First, they did not seek an adjournment when the Crown delivered thousands of pages of additional unused material on the first morning of the trial. Among the additional material was a statement by a taxi driver who admitted being the person who had (inadvertently) exposed himself in front of the two girls: it was the incident which had initially attracted police attention to Kiszko; it was an incident to which he had confessed in his statement to police. It gave the clearest grounds for suspecting the reliability of Kiszko's confession.

Second, instead of seeking to exclude the confession on a voir dire, they sought to impeach its voluntariness and veracity in the course of the trial itself. This meant not only that the jury saw the confession, but also that they heard all of Kiszko's pitiable frailties and shortcomings as a human being.

Third, and most difficult to understand, they ran inconsistent defences. Kiszko had recently been put on a course of hormone treatment to deal with the consequences of his immature testes. The scientific evidence was that this could cause uncharacteristic changes of mood, although even here the defence put forward an exaggerated version of the likely effects. So the defence involved a denial that Kiszko committed the murder, coupled with a defence of diminished responsibility: "if he did it, it was because of the hormone treatment which turned him into a sex monster". It is hard to imagine how any jury could exclude the effect of the second defence from their consideration of the first. In any event, Kiszko's endocrinologist would have said (if called) that the effect of the hormone treatment was only to exaggerate existing personality traits, and that the effect of the hormones on Kiszko would certainly not have caused him to commit a crime so grotesquely at odds with his normal personality.

Kiszko appears not to have been consulted about the second line of defence. From first to last (apart from the retracted confession) Kiszko insisted that he had never met Lesley Molseed, and did not kill her. He was convicted and sentenced to life imprisonment.

* * * * * *

For a person convicted of sexually molesting and killing a child, life in gaol is hard. Kiszko was frequently beaten by other prisoners, and eventually retreated into a world of private delusion, in which he was the victim of an immense plot to incarcerate an innocent tax-office employee in order to test the effects of incarceration. He ultimately came to believe that even his mother was party to this elaborate conspiracy.

Meanwhile Kiszko's mother was the only person who clung tenaciously to a belief in his innocence. She pleaded his case to anyone who would listen. She was steadfast in her certainty that Stefan was innocent. As her entreaties became more desperate and forlorn, so her audience became less receptive. But eventually, in 1987, Campbell Malone agreed to take a look at the case. He consulted Philip Clegg (who had been Waddington's junior at the trial). Clegg expressed his own doubts about the confession and the conviction. After lengthy investigations, they prepared a petition to the Home Secretary. The draft was finally ready on 26 October 1989. On the same day, by the most remarkable coincidence, a new Home Secretary was announced: David Waddington QC MP. Despite (or perhaps because of) Waddington's exquisitely delicate position in the matter, more than a year passed before a police investigation into the conduct of the original trial was begun. Detective Superintendent Trevor Wilkinson was assigned to the job. After a great deal of painstaking work, Wilkinson's team of investigators discovered 4 vital things:

First, that the additional unused material disclosed to the defence on the first day of the trial included crucial evidence, but the late disclosure had made it impossible for the defence team to pursue the ramifications of that evidence; the evidence, if pursued, would have cast doubt on the reliability of the confession.

Second, the matter of the two girls who identified Kiszko as the person who had exposed himself to them. Their statements had been read to the Court; they were not cross-examined. During the investigation in 1990, the girls (by then they were mature women) admitted that they had made up the story: they had simply seen the taxi driver urinating behind a bush.

Third, that the pathologist who examined Lesley Molseed's clothing had found sperm in the semen stains on the underwear. This fact had not been disclosed to the defence or the Court.

Fourth,that the police had taken a sample of Kiszko's semen at the time of the investigation: it contained no sperm at all. This fact had not been disclosed to the defence or the Court.

It therefore became apparent that the evidence led against Kiszko had been flawed and partial, and that vital evidence had been withheld from the Court and from the defence.

These investigations culminated in an application which was heard by the Court of Appeal on 17 & 18 February 1992. At the conclusion of the argument, the appeal was allowed. Lane LCJ said "It has been shown that this man cannot produce sperm. This man cannot have been the person responsible for ejaculating over the girl's knickers and skirt, and consequently cannot have been the murderer". On the same day, Peter Taylor QC was appointed Lord Chief Justice.

* * * * * *

Kiszko was released immediately. He needed 9 months rehabilitation before he could go home to his mother. He received 500,000 pounds in compensation for his 16 years in prison. However his physical and mental health had been destroyed. He died eighteen months later, aged 41. The date of his death was 23 December 1992: exactly 18 years after his arrest. His mother died 6 months later. The Court of Appeal decision by which Kiszko was released is not reported. So far as the legal system is concerned, the life it destroyed is nothing but a footnote in R v McKenzie.

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Tuesday, November 21, 2006


There's good news and bad news for James Perry, the Oak Park kindergarten teacher facing life in prison for two sexual assaults he insists never happened. Perry, 32, was convicted Sept. 20 after two kindergartners testified that he accosted them in an empty classroom at Key Elementary School. But Oakland County Circuit Judge Denise Langford Morris postponed his sentencing earlier this month after Perry's attorneys argued that testimony by newly discovered witnesses proves the crime described by his accusers could not have taken place. Langford Morris says she wants more time to review the transcript of Perry's trial and affidavits provided by two school employees whose testimony Perry's jury never heard.

The good news for Perry is that police and prosecutors have begun interviewing witnesses overlooked in their original investigation. The bad news is that the guy leading the expanded investigation is the same Oak Park detective whose sloppy police work raised so many questions about the original verdict, and that Oakland County Prosecutor Dave Gorcyca seems more interested in protecting his office's reputation than in scrutinizing new evidence with an open mind.

The gist of Perry's claim is that the classroom in which police and prosecutors maintain he molested his victims during the middle of a busy school day was occupied all day by students and adults, none of whom recall seeing Perry or the boys. Perry's attorneys argue that eyewitness testimony refuting the prosecution's version of events, combined with the striking absence of evidence to substantiate the children's ever-evolving accusations, is sufficient to warrant a new trial.

But what is most unsettling is the state's response. Assistant Oakland County Prosecutor Andrea Dean doesn't dispute the new eyewitness accounts, and she seems unconcerned that they cannot be reconciled with the scenario she described to jurors. Instead, Dean makes the astonishing argument that the state has no obligation to prove that the assaults took place in the time and place asserted during Perry's trial, but has only to establish that he assaulted the kindergartners sometime or other, somewhere in Oakland County.

It's not clear prosecutors can still meet even that heavily discounted burden of proof. But surely time and place are more than technical details with which Perry's accusers need not be concerned. Ultimately, Gorcyca's obligation is not to defend Perry's conviction at any cost, but to assure that justice prevails. If new evidence raises serious doubts about Perry's culpability, as many people familiar with his case believe, Gorcyca should rejoice in its discovery, and his office should take the lead in surfacing anything else that points to a miscarriage of justice. Anything less is a betrayal not just of James Perry, but also of the public Gorcyca serves and the principles every officer of the court is sworn to uphold

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Monday, November 20, 2006

Innocent man who made China more cautious about the death penalty

She Xianglin is lucky. He could have been executed for the murder of his wife. But a judge sentenced Mr She to 15 years’ jail instead of adding his name to the thousands put to death each year. Then his wife turned up, alive and farming pigs.

Mr She became a cause célèbre and the miscarriage of justice became a factor in a decision that will require the Supreme Court, from January, to review every death sentence passed in China. He prefers not to dwell on the 11 years of his life that he lost in China’s prison system. He told The Times: “I’ve heard about the change in the death penalty and I am pleased. It’s a good thing.” But he is reluctant to discuss his feelings, focusing instead on his search for a job in the central city of Yichang.

No one knows how many people are executed in China each year. That number is a state secret. However, Amnesty International estimates that at least 1,770 people were executed last year and 3,900 were sentenced to death — more than in the whole of the rest of the world put together. Chinese legal experts say that the actual number may be far higher.

The decision to restore to the Supreme Court the right to review all death sentences was motivated not only by a series of reports in the increasingly courageous Chinese media of miscarriages of justice. Debate about the widespread and arbitrary use of the death penalty has also raged in recent years. China holds that the death penalty should be used sparingly. However, the number of capital crimes has more than tripled since China promulgated its criminal law in 1980, many of the additions being non-violent or economic crimes such as VAT and insurance fraud. Today nearly 70 crimes qualify as capital offences.

One reason was a call by China’s leaders for “Strike Hard” campaigns to curb crime that began to rise with the introduction of economic reforms in the 1980s. By 1983 the Supreme Court could no longer cope with the workload and began to delegate the death penalty to lower courts.

People have been executed for hooliganism. Some have been executed for stealing pigs or cattle; others for stealing VAT receipts, and yet more for corruption. Summary trials are not unusual.

Officials have described the change as the most important reform of capital punishment in China in two decades and have said the number of executions could fall by as much as one third. Xiao Yang, president of China’s highest court, said: “In cases where the judge has legal leeway to decide whether to order death, he should always choose not to do so.” But it is far from clear how the new system will work. After all, Chairman Mao issued almost the same pronouncement in the 1950s and there was no reduction in executions.

He Weifang, a law professor and director of the Centre for Judicial Studies at Peking University, said: “This is a good thing but it should have happened years ago.”

Mr She was fortunate. The judge had doubts about his case. By rights he faced the death penalty for the murder of his wife, a charge brought after police found an unidentifiable woman’s body in a pond some weeks after Mr She’s wife disappeared. Mr She said: “The past is past. I have just one thing to say: the truth lies in people’s hearts.”

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Sunday, November 19, 2006

A "Civil liberties" activist turned judge loves criminals, spurns victims

Two reports below about the verdicts of a judge who was formerly President of the Queensland Council for Civil Liberties. Strange that to bleeding-heart types it is the criminals who have that sacred "victim" status instead of the real victims.

District Court judge Ian Dearden's decision not to jail a teacher who filmed himself fondling a 14-year-old former pupil has been criticised by two of Queensland's most senior judges. The judges have intervened in the case and ordered the man go straight to prison.

Steven Peter Quick, 29, received a wholly suspended 18-month jail term and a 12-month intensive correction order when he pleaded guilty before Judge Dearden in August. But the Quick case was considered by the Court of Appeal following an appeal by the Attorney-General on the grounds Judge Dearden's sentence was "manifestly inadequate".

Quick was the girl's former maths and science teacher in central Queensland in 2004 and he subsequently became friends with her. During the September school holidays he drove the girl to an isolated location near Bundaberg where he filmed himself caressing her breasts. He later rang the girl and told her to lie for him or he would harm her when he discovered the Crime and Misconduct Commission were investigating the incident.

Judge Dearden imposed the non-custodial sentence after accepting a defence submission of exceptional circumstances in the case. But in a 2-1 majority decision yesterday, the Court of Appeal set aside Judge Dearden's sentence and imposed two concurrent 18-month jail terms. It ordered Quick must serve three months in actual custody.

In his published reasons, Chief Justice Paul de Jersey said the primary consideration in a case such as Quick's was general deterrence and "community denunciation". He said the gross breach of trust, large age gap between the pair and Quick's deliberate conduct "strongly supported" a jail sentence while the circumstances relied on by Judge Dearden to suspend the sentence were "not sufficiently unusual" to justify Quick avoiding jail. Among Justice de Jersey's criticisms of Judge Dearden were that he'd given too much weight to the effect of the events on Quick and not enough to the impact on the victim; had wrongly regarded as relevant a claim that the victim had shown some consent to the crime, and had not given enough weight to Quick's threat to harm the victim.

Justice Richard Chesterman also ruled the circumstances relied on by Judge Dearden to wholly suspend the jail term were not exceptional and said general deterrence in the case was important. "The sentencing judge here may well have had regard to the need for deterrence but the sentence imposed reveals that His Honour cannot have given it sufficient weight," Justice Chesterman said.


An arsonist who watched as a fire he lit destroyed a building containing seven Gold Coast businesses has been declared eligible for parole despite serving only 10 months of a four-year sentence, after a judge accepted he was disadvantaged. A woman who fled the burning building with her husband has slammed the parole recommendation as "a disgrace". "He cost an awful lot of people an awful lot of money and he nearly cost us our lives," said Yvonne Atkins, who was inside the Currumbin Boat Shed complex with husband Allan when Mark Brendan Roderick set it ablaze.

Roderick, 29, pleaded guilty in Southport District Court to one count of arson and eight counts of wilful damage. The boat shed was razed on September 22 last year, destroying a popular restaurant and businesses including the Atkins' kiosk. Judge Ian Dearden said Roderick had crushed "people's dreams, their hopes and their ability to earn a living". But he said Roderick had started life with a "terrible disadvantage" after being born to a drug-addicted mother. He imposed a four-year jail sentence but ordered Roderick be eligible for parole after serving 317 days in pre-sentence custody.


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Saturday, November 18, 2006

Wisconsin: Court-Ordered Meeting Between City and Zimmerman

A case so weak that the prosecution eventually dropped it but still no compensation

One meeting could end a long-running dispute between the City of Eau Claire and Evan Zimmerman.

Zimmerman sued the city for wrongful conviction in the death of Kathy Thompson. He was later freed after the charges were dropped in a second murder trial. Two months ago, a judge dismissed Zimmerman's lawsuit against the city. He appealed and now the court is calling for a conference between the two sides Friday. The meeting is being called to see if they can end their dispute to prevent the lawsuit from going back to court.

There is a chance the two sides could reach a settlement on Friday, but the city says it doesn't plan to give in. It says it feels like it has a strong case because the judge dismissed Zimmerman's lawsuit.

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Declaring that his prayers had been answered, an emotional Evan Zimmerman left the Dodge County Courthouse Friday a free man after the murder case against him was dropped.

Eau Claire County District Attorney Rich White asked a judge Friday to throw out the case mid-trial, saying he lacked the evidence to show "beyond a reasonable doubt" that Zimmerman had killed his former girlfriend.

White told Eau Claire County Circuit Judge Benjamin Proctor he understood the impact of halting the trial at this stage, including a ban on charging Zimmerman again in the crime.

It was the second trial for Monona native Zimmerman, whose conviction in the murder of Kathleen Thompson, 38, of Eau Claire, was overturned in 2003 after the state's 3rd District Court of Appeals ruled he didn't get a fair trial.
After the short hearing was adjourned, Zimmerman, 58, grabbed his attorneys, Keith Belzer of La Crosse and Keith Findley, a UW-Madison law professor, in a tear-filled embrace. He later held up a white T-shirt declaring "Freed by the Wisconsin Innocence Project."

Zimmerman of La Crosse spent 3 years in prison before he was released on bond last year. Zimmerman is the fourth inmate freed through the efforts of Findley's group, the Wisconsin Innocence Project, which operates out of the UW-Madison Law School.

Watching the trial were Zimmerman's three children, their spouses, a handful of supporters and about half a dozen UW-Madison law students who'd worked on his case. The trial, which began Monday, had been scheduled to last two weeks. It had been moved 200 miles from Eau Claire to Juneau to avoid pretrial publicity. Asked what he planned to do next, the former Augusta police officer joked, "I'm just gonna take a long nap and do my laundry. It's been a long time."

Speaking after the hearing, Belzer said the defense team never wavered in its belief that Zimmerman had been wrongfully convicted. Findley added that Friday's move to dismiss the charge even before White had put on his entire case "fortified that belief."

White's prosecution was based primarily on Zimmerman's past romantic relationship with Thompson and the belief by Eau Claire police that he'd been inconsistent in his statements about where he was on Feb. 26, 2000, when Thompson was strangled and left on an Eau Claire street. Thompson was last seen at 3 a.m. walking from the Eau Claire County Jail, where she had been taken along with her husband after the two had a violent fight just hours after their wedding. The husband was in jail at the time of the murder and never considered a suspect.

Zimmerman's son, Shannon, said his father's jumbled statements stemmed from the fact that he was in an alcoholic haze at the time of the crime and during subsequent police interviews. He said the case against his father consisted of "out-of-context statements, misleading statements and very, very shaky facts."

Last summer, White's case was bolstered when police found a single hair from a dog that could have come from Zimmerman's dog, Boots, in a bag of evidence taken from Thompson's bra. But Findley strongly challenged that evidence, forcing White's expert witness to acknowledge the hair could've come from a number of dogs.

The defense also challenged the police theory that Zimmerman killed Thompson in his minivan, noting that not a single dog hair was found on her black sweater or jeans although the interior of the vehicle was covered in hair from Boots.

In asking for the dismissal, White said his ability to prove his case had become "untenable," adding that he had an "ethical obligation at this juncture to dismiss this charge." Belzer said White's motion "is the closest you can get to an exoneration." He said Zimmerman's second trial "resembled everything that's good and true about American justice . . . because ultimately an innocent man was given a second chance."

However, Findley added that the cost to Zimmerman was high. "I don't think we should lose sight of the fact that Evan lost an awful lot in the process," Findley said. "He was in prison for 3 years. He suffered a stroke in prison. He lost everything he had. So he's got to rebuild now."

Findley said he believes the Eau Claire police developed "tunnel vision" about the case and refused to change direction even after DNA and other physical evidence pointed away from Zimmerman and their theory of how Thompson was murdered.

Eau Claire Police Chief Jerry Matysik defended his department's investigation and noted that the first jury convicted Zimmerman. He attributed Friday's dismissal to a successful defense strategy to "inject doubt" into the case and the difficulty in proving a case so long after the crime. "Obviously, we felt we focused on the right person," Matysik said.

However, Belzer said, "I don't think the evidence showed anything except that there's no way that he (Zimmerman) did this."

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Friday, November 17, 2006

Trial begins over FBI role in wrongful convictions

There's no question that the FBI recruited notorious hitman Joseph "The Animal'' Barboza as a witness against local Mafia leaders, then turned him over to state prosecutors in a case that led to the wrongful conviction of four men for a 1965 gangland murder in Chelsea. But Thursday, on the first day of a civil trial seeking more than $100 million in damages from the federal government, a Justice Department lawyer insisted the FBI can't be blamed because state prosecutors were responsible for investigating and trying the case. "The FBI is not liable,'' said the government attorney, Bridget Bailey Lipscomb.

But lawyers for Peter Limone, Joseph Salvati, Henry Tameleo, and Louis Greco accused the FBI of making a "mockery'' of justice by failing to tell state prosecutors or defense lawyers about evidence that suggested Barboza had framed the four men for the slaying of small-time hoodlum Edward "Teddy'' Deegan. Limone, 72, and Salvati, 74, spent more than 30 years in prison before they were exonerated five years ago, while Greco and Tameleo both died in prison.

"The FBI initiated the prosecution by delivering a perjurious witness to the state prosecutor, knowing his testimony was false,'' said Boston attorney Juliane Balliro, who represents Limone and Tameleo's family. "But for the deliberate misconduct of the FBI, these men would not even have been indicted, let alone convicted for the murder of Edward Deegan.''

The lawsuit accuses the government of malicious prosecution, intentional infliction of emotional distress, negligent supervision of FBI agents, conspiracy, and loss of consortium by the men and their families.

Deegan was gunned down in a Chelsea alley in March 1965, but local police were unable to solve the slaying until the FBI struck a deal with Barboza. He was sentenced to a year in prison for his role in Deegan's murder and his testimony led to the 1968 conviction of the four men. Tameleo, Limone, and Greco were initially given the death penalty, then later sentence to life. Salvati was also sentenced to life in prison.

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A former bookie who served more than 32 years for an underworld murder he said he didn't commit was released Friday after his conviction was thrown out at the request of prosecutors. Prosecutors said newly discovered FBI files from the 1960s cast doubt on 66-year-old Peter Limone's guilt. It appeared to be yet another embarrassment for the FBI's Boston office, which is under scrutiny for some agents' allegedly cozy relationships with the mob.

Last month, Justice Department investigators looking into allegations of corruption in the office gave Limone's lawyer secret FBI reports from the time around Edward ``Teddy'' Deegan's 1965 murder. The documents showed that an informant had given the FBI a list of suspects that did not include Limone's name. Limone was convicted in part on the testimony of mob hitman Joseph ``The Animal'' Barboza, one of the names on the list.

Superior Court Judge Margaret Hinkle on Thursday ordered Limone released without bail, criticizing the FBI for withholding information that could have led to Limone's acquittal. ``It is now time to move on,'' the judge said. ``Mr. Limone's long wait is over.'' About 50 friends and relatives of Limone broke into applause at the ruling.

Prosecutors would not say Friday whether they plan to retry Limone. The former prosecutor and defense attorneys in the Deegan killing have said they didn't know about the FBI informant reports at the time of the trial. An FBI spokeswoman declined comment Friday.

Outside the courtroom, surrounded by his wife, children and grandchildren, Limone said he was bitter about his 32-year incarceration and accused the FBI of framing him. ``I'm just happy that I have my family still and they've been with me all this time,'' Limone said. ``Every day you look at it, and every day you know you're innocent, but you wait for this day.''

Prior to his murder conviction, Limone had once been reputed to be a Mafia associate, but only had been convicted of running a dice game, said his lawyer, John Cavicchi.

A motive for Deegan's slaying remains murky. Among the speculation that arose is that he was targeted in a mob hit after he and two friends allegedly robbed the home of the wrong man. Since the new information from the FBI files was publicized, two lawyers who had underworld clients have stepped forward to say their clients - who have since died - told them innocent men had been convicted.

At the same time, the Justice Department is investigating FBI ties to reputed mob boss James ``Whitey'' Bulger and his lieutenant Stephen ``The Rifleman'' Flemmi. FBI agent John Connolly was indicted last year on charges he took gifts from Bulger and Stephen Flemmi and tipped them off to the identities of FBI informants and witnesses who were later murdered. He is also accused of warning Bulger of an impending indictment, prompting him to flee in 1995. Bulger is on the FBI's Ten Most Wanted List, and Flemmi is awaiting trial on murder charges.

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Thursday, November 16, 2006

Exonerated Man Sues NYC For $50M

Prisoner Freed After 14 Years For A Now-Overturned Murder Conviction Says NY City Mishandled The Case

A man whose murder conviction was overturned after he spent 14 years in prison has filed a $50 million lawsuit against the city, claiming authorities mishandled dozens of cases and failed to train and supervise prosecutors. The lawsuit filed Monday in federal court for Olmado Hidalgo seeks damages for false arrest, malicious prosecution and false imprisonment. Hidalgo, now in his 40s, returned to his native Dominican Republic after his release from prison in summer 2005.

Hidalgo was freed last year after a judge threw out his conviction, saying there was 'powerful" evidence that someone else committed the murder of nightclub bouncer Marcus Peterson in 1990. The lawsuit claims the lead police investigator and the case prosecutor both ignored evidence that contradicted their theory of the crime, and that prosecutors did not keep records that might have proven Hidalgo's innocence, The New York Times reported in Tuesday's editions.

The lawsuit cites 27 other cases that it says reflect similar misconduct, and it suggests some problems were due to insufficient training, supervision and discipline of prosecutors. "There seems to be a type of pattern," said Irving Cohen, Hidalgo's lawyer. "I think there's a desire to clear cases as quickly as possible. I think there's an interest, sometimes a desire, for advancement within the Police Department and maybe even the district attorney's office." "It is much easier to put an innocent man in jail than it is to get an innocent man out of jail," Cohen said.

A spokeswoman for Manhattan District Attorney Robert Morgenthau declined to comment on the lawsuit Monday, saying prosecutors had not yet seen the court papers. A call to the office early Tuesday was not immediately returned. Paul J. Browne, deputy commissioner of the Police Department, said he would not comment because of the pending litigation.

Hidalgo and another man, David Lemus, each spent more than a dozen years in prison for the attack on Peterson, who was shot after he and another bouncer scuffled outside the Palladium nightclub with a clubgoer who refused to go through a security check. Prosecutors have said that the clubgoer and at least one other man returned with a gun and opened fire. James Callahan, the second bouncer involved in the scuffle that set off the attack, has testified that the fight outside the club involved neither Lemus nor Hidalgo. Lemus also had his conviction overturned, but the district attorney decided to retry him. His trial is now scheduled for next year.

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Wednesday, November 15, 2006

Only six months detention for false rape accusation

The guy would have gone to prison for years if convicted

A teenager whose "wicked lies" condemned an innocent man to 10 weeks in prison after falsely claiming she had been raped was locked up for six months today. Katie Davis, 18, had sex with Frank Chisholm at his house after meeting him as he was walking home from a night drinking on 6 March last year. But during a week-long trial at Lewes Crown Court, a jury heard she invented the false rape allegation as she feared she could be pregnant.

A police investigation led to former railway labourer Mr Chisholm being charged with rape after DNA evidence linked him to Davis. But Mr Chisholm, 24, denied raping her, saying they had consensual sex at his home in Battle Road, St Leonards. He was held on remand at Lewes Prison for 10 weeks before scientific evidence emerged which led to the case against him being dropped. Davis showed no emotion as she was sentenced to six months in a young offenders' institute by Judge Richard Brown. He said: "It's clear to me that your lies have had, and will continue to have, a dramatic effect on his life. "His family have also suffered considerably. You were responsible for him being in prison for several weeks and when you pursued those wicked lies you put him through the trauma of giving evidence in your trial."

Davis, of Blackman Avenue, St Leonards, was found guilty of perverting the course of justice by making a false claim of rape, after the jury spent an hour deliberating following her trial last month. Jurors heard the rape charge against Mr Chisholm was dropped after fibres found on Davis's fleece were forensically examined and showed her jacket had come into prolonged contact with the duvet cover on Mr Chisholm's bed. The Crown claimed the evidence discounted Davis's repeated claim that she was raped in an alleyway.

But Davis - who was aged 16 at the time of her rape claim - stuck by her story in the face of the forensic evidence and insisted she had never met Mr Chisholm before, nor been to his house. Davis also failed to explain other inconsistencies in her version of events. Detective Constable Shoni Grant, of Sussex Police, told the trial that Davis had initially said her attacker confronted her from the front but later claimed he had approached from her righthand side. In addition, Davis claimed she had struggled with the rapist but later said she had not resisted him. Davis also failed to explain two witness sightings of her walking up Blackman Avenue with Mr Chisholm's arm around her before the alleged attack took place.

DC Grant told the jury that the series of discrepancies and inconsistencies in Davis's accounts of the incident led police to cast "serious doubt" on her allegation. Mr Chisholm was not in court to see Davis sentenced today, but in his evidence at the earlier trial he had told the court that the allegations against him had made him "angry and upset".

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Tuesday, November 14, 2006

Canadian Supreme Court: A long-overdue attempt to penalize negligent police

After a previous failure in State courts -- see my post of Sept. 29, 2005

An aboriginal man who was wrongly jailed for a bank robbery he did not commit is taking the police to the Supreme Court of Canada today to determine if criminal investigators can be held legally negligent for shoddy probes and whether they should be forced to pay compensation when they fail. The court's decision is expected to set a guide for lower courts across Canada, who have handed down mixed rulings on police responsibility when they finger the wrong person. The Supreme Court is tackling the issue at a time when there is growing concern internationally about the plight of the wrongly convicted.

Jason Hill, of Hamilton, Ont., contends the local police violated his constitutional rights by failing to re-investigate his case in the mid-1990s, despite mounting evidence of his innocence. ''There is a simple question at the heart of the appeal,'' Hill's lawyers, Louis Sokolov and Sean Dewart, say in a written court brief. ''Where substandard policing causes a miscarriage of justice, should the victim be able to obtain compensation from the police service which caused his or her losses?'' The Hamilton-Wentworth police force counters, in a court brief, that imposing legal liability for negligent investigations ''is inconsistent with the long-established principle that police owe a duty to society as a whole, not to any particular member thereof.''

Hill was 26 years old when he was charged with 10 counts of robbery following a police investigation in 1994 and 1995. He was convicted on one count and he spent 20 months in jail before his conviction was overturned on appeal. He was later cleared in a new trial. Police maintained they had the right man even when the bank robberies continued, while Hill was in jail, and they received fresh evidence from an anonymous tip two days before Hill's arrest, which eventually led them to the true thief.

When he was freed, Hill filed a lawsuit against the Hamilton-Wentworth police force, alleging malicious prosecution, negligence and breaches of his Charter rights. One of his complaints was that witnesses were asked to identify him from a photo-lineup that included one aboriginal person and 11 photos of Caucasians, which singled him out, especially when police were looking for a man with dark skin.

''This case has many of the usual ingredients of a wrongful conviction,'' say his lawyers.'' Among other things, police ''solved'' the case by jumping to conclusions, the accused was a member of a racial minority who was falsely identified by unreliable eye witnesses, and police wilfully ignored any evidence that didn't fit their theory, says Hill's legal brief. His lawyers further assert the ''law of negligence must be brought to bear on the problem of wrongful convictions'' to keep police tactics in check.

The case is drawing several intervenors on both sides, including the Canadian Police Association, the Canadian Association of Police Chiefs, the Association in Defence of the Wrongly Convicted and the Canadian Civil Liberties Association.

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Monday, November 13, 2006

Australia: "Compensation" to family of killed standover man

The family of the murdered standover man Michael "No Thumbs" Pestano has been awarded compensation - believed to be the maximum $50,000 - enraging the people he harassed. But now Tim Nam, the man who was driven to kill Pestano in self-defence during a 2004 siege at Arthurville, in the state's central west, has told the Herald he plans to sue the police, the Department of Corrective Services and the people who hired and assisted Pestano during the siege. Police have also begun an investigation into the actions of police during the siege, in which two of Pestano's associates were wounded.

"The police didn't act the way they were supposed to, but if they had correctly done their job I wouldn't be in jail to start with and all these other people would've been arrested," said Mr Nam, 29, who was freed from jail in September. A judge described the actions of Pestano on the night he died as "disgraceful, cowardly and unlawful". Yet his family - including his son Jason, who the judge said was part of his father's siege party - was compensated by the Victims Compensation Tribunal, which is designed to assist victims of violent crime.

News of the payout has infuriated the Nams, who have been told that any compensation relating to the incident has already been claimed by the Pestanos. A spokesman for the Attorney-General, Bob Debus, said the tribunal was unable to provide information on individual cases.

Mr Nam's parents, Laurie and Margaret, became embroiled in a dispute with their former friends Colleen and David Taylor. The Taylors, who had won $10 million in Oz Lotto, had installed their friends on a property outside Wellington, which they bought after their win in 1999. When the Nams refused to leave it, the Taylors hired Pestano to "mediate" on their behalf. Colleen Taylor has told the Herald she did not know of Pestano's background and that she had hired him as a debt recovery agent.

On July 22, 2004, Pestano and his associates met Mrs Taylor in Wellington before setting up camp on the property. Over the next day they terrorised the Nam family, burned their fences, emptied their water tanks and cut their power. Later, thinking they were being shot at, the Nams opened fire, leaving Pestano dead and two of his associates, Ron Howell and Frank Croker, wounded. Tim Nam and his father Laurie were arrested and refused bail. Laurie spent several months in jail before charges against him were dropped. His son spent more than two years in jail awaiting trial. In July this year he pleaded guilty to the manslaughter of Pestano, 53.

When the matter came before Justice Michael Adams of the NSW Supreme Court for sentence in August, he questioned whether Mr Nam should have been charged, saying he had "found himself caught up in a terrifying nightmare, which was not of his own making". Justice Adams also said that Pestano was "known to police as a standover man and extortionist" and that "at the time of his death he was subject to an outstanding charge of [demanding] money with menaces and intimidation. His conduct on the night he died was entirely consistent with his reputation".

In response to desperate calls by the Nams, the police had gone to the property the previous day, and twice on the night Pestano was shot dead. Justice Adams said that at the conclusion of the last visit, about 9pm, a police inspector "spoke to the Nams and told them and the Pestano group that he was fed up with what was happening and the police would not come out again. I believe that Pestano thought he was now free to do virtually what he wanted". The judge gave Mr Nam a two-year sentence. But because of the time he had already served, he was eligible for release and walked free on September 1.

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Sunday, November 12, 2006

Big damages award should make someone more careful -- we hope

Oliver, one of two Elyria men awarded $1 million each for being falsely accused of setting off fireworks at Jacobs Field, is vowing to use his money to try to exonerate his friend who was convicted for the incident. A Cuyahoga County jury on Thursday awarded Oliver, 26, and Donald Krieger, 27, both of Elyria, $1 million apiece in a civil lawsuit against the city of Cleveland for malicious prosecution, false arrest and intentional infliction of emotional distress. Oliver and Krieger were each awarded $400,000 in compensatory damages and $600,000 in punitive damages. The jury deliberated about an hour and a half. ''The jury spoke loud and clear about how these innocent guys were treated,'' said John Spellacy, Krieger's attorney. ''Obviously, they were disgusted and wanted to send the message so this doesn't happen to other people.''

A firecracker was allegedly smuggled through stadium security checkpoints, then was lit and thrown from the upper-level area onto the people below, injuring four, according to police. The blast in a lower-level smoking area of Jacobs Field near East Ninth Street was heard throughout the ballpark in the top of the ninth inning on June 11, 2002. The Indians were playing the Philadelphia Phillies. A security video showed that Oliver and Krieger were watching the game on the first level at the time of the explosion, but the perpetrator threw the fireworks from the third level, Spellacy said.

Judge Burt Griffin of Cuyahoga County Common Pleas Court in 2003 convicted their friend, Andrew Mendez, 24, also of Elyria, of aggravated arson, assault and three counts of negligent assault.

Oliver said he plans to hire an attorney for Mendez to clear him of what he believes was a wrongful conviction. ''My buddy still has a felony on his record that he doesn't deserve,'' Oliver said. Oliver said money he was awarded was not the main concern. ''The biggest part is that my voice has been heard,'' he said. Oliver said he and his friends still wonder who was responsible for the explosion.

A spokesman from the Cuyahoga County Prosecutor's Office declined to comment yesterday.

Oliver, Krieger and Mendez went to the Indians game with Oliver's sister and her friend in June 2002. Oliver's other younger sister, a star softball player at Elyria High School, won the tickets for her MVP season but gave them to her family because she couldn't attend. Oliver, who served in the Marine Corps from 1999 to 2003, was on medical leave at the time after he sustained a fractured neck in an auto accident in North Carolina.

After the game, they were arrested and held at the Cleveland City Jail for four days under deplorable conditions, Spellacy said. ''They had no blankets, no pillows, no showers, no mattress,'' Spellacy said. ''They stuffed toilet paper in their ears to keep cockroaches out.'' Krieger lost 10 pounds in just the four days he was in jail, Spellacy said. Krieger, who is serving in the Air Force in Anchorage, Alaska, testified via satellite video during the civil trial. ''He unfortunately was not present to hear the jury's verdict,'' Spellacy said.

A spokeswoman for the city of Cleveland could not immediately be reached for comment yesterday.

Oliver, now an auto salesman at Liberty Ford in Vermilion, said the ordeal prevented him from re-enlisting in the Marine Corps. ''I was devastated,'' he said. ''They took my career.'' After serving seven months in prison, Mendez graduated from Lorain County Community College and now works in customer service in the area, Oliver said. Attempts to reach Mendez yesterday were not successful.

A state appeals court upheld Mendez's conviction in June 2004, and the Ohio Supreme Court dismissed the appeal in November 2004 because it found the case did not involve any constitutional question, records show. Judy Knight, a Strongsville woman injured in the fireworks incident, sued Mendez for damages after his criminal conviction, but the lawsuit was dismissed, according to records.

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Saturday, November 11, 2006

Texas awards $450,000 to man who spent 18 years in prison on wrongful conviction

Arthur Mumphrey was released from prison in January after his lawyer found DNA evidence clearing him in the rape of a 13-year-old girl. Mumphrey had been sentenced in 1986 to 35 years in prison. Gov. Rick Perry pardoned Mumphrey in March, clearing his record and making him eligible for compensation. Under state law, a person pardoned based on innocence is eligible for up to $25,000 for each year in prison with a cap at $500,000. Mumphrey recently got his first payment of $226,041, according to the Texas Comptroller's Office.

Mumphrey, who was 42 when he was released, declined to talk about his plans for the money. His brother, Charles, confessed to the rape while serving time in jail for unauthorized use of a motor vehicle, shortly after his brother's release. No criminal charges will be filed against Charles Mumphrey because the statute of limitations has expired, prosecutors said.
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Background: Another conviction based on the highly dubious practice of testimony given in exchange for leniency

Arthur Merle Mumphrey was set free by a Texas judge on January 27, 2006, after postconviction DNA testing showed that he did not rape a 13-year-old girl in 1986. Mumphrey was convicted of the crime based on the testimony of a co-defendant. He had served 18 years in prison. Mumphrey’s brother Charles had confessed to committing the rape during the police investigation of the 1986 rape, but recanted his confession at Arthur’s trial, saying he had been lying in order to take the rap for Arthur.


On February 28, 1986, a 13-year-old girl was walking down the railroad tracks toward town in the Dugan neighborhood of Conroe, TX, a small city about 50 miles northwest of Houston. Two African-American men began walking behind the victim and talking to her. One of them grabbed her, lifted her off the ground, and carried her into a wooded area. There, both men raped the girl, holding a knife to her throat. Other people were walking along the tracks, and the men told the victim that they would kill her if she screamed. The men were drinking wine during the attack. Eventually the men released the girl and she fled the area.


The victim was examined at the hospital on the same night. Doctors noted signs of sexual assault and collected a rape kit. A police investigation led to the questioning of Steve Thomas, who admitted that he committed the rape and told police that Arthur Mumphrey was the second rapist. Thomas agreed to testify against Mumphrey in exchange for a 15-year sentence.

During the investigation, Mumphrey’s 15-year-old brother Charles confessed to police that it was he, not Arthur, who had committed the rape. The police told Charles that they knew he was lying because he did not know enough about the details of the rape. Police threatened Charles with a perjury charge. Charles eventually changed his story and told police he falsely confessed in order to take the rap for Arthur because Charles, as a juvenile, would get a lighter sentence.

At trial, Thomas said he committed the crime with Arthur Mumphrey and a witness testified that Thomas told him about the crime later that February night while Mumphrey was standing four feet away. The witness testified that Mumphrey was quiet while Thomas described the rape. The witness also said that both men were drunk. Charles Mumphrey testified about his original statement at trial, and said he had lied in order to attempt to take the rap for his brother.

The victim testified at trial about the attack. She said she did not look into the faces of either man and was unable to identify Arthur Mumphrey as one of the perpetrators.


Arthur Mumphrey was released on parole in 2000 after serving 14 years in prison, but was readmitted in 2002 for a violation of the conditions of his parole.

In 2002, Mumphrey hired Houston defense attorney Eric Davis to pursue his innocence claims. Davis began to seek DNA testing on the rape kit evidence collected from the victim in Mumphrey’s case. After twice being told by officials at the Texas Department of Public Safety (DPS) that the evidence was not stored in the department’s custody, Davis reached a supervisor and requested a third search. The evidence was found in a refrigerator at a DPS storage facility.

A motion for DNA testing was granted in the fall of 2005 and results showed that semen on the rape kit and on the victim’s underwear was left by both Steve Thomas and an unknown male. Arthur Mumphrey could not have been the source of the second profile.

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Friday, November 10, 2006


A man's life ruined on the basis of the always-dubious "testimony in exchange for immunity"

The most high-profile stock-tipping conviction in Canada was overturned yesterday by an Ontario judge who said that Andrew Rankin may be the victim of a "miscarriage of justice" and should get a new trial. Mr. Justice Ian Nordheimer of the Ontario Superior Court ruled the provincial judge who sentenced Mr. Rankin to six months in jail for insider tipping in July, 2005, had made legal errors and relied too heavily on the testimony and credibility of Daniel Duic, Mr. Rankin's childhood friend who testified as the star witness for the Ontario Securities Commission in exchange for immunity. Judge Nordheimer raised doubts about the credibility of Mr. Duic's testimony and said the OSC must now decide whether it is "in the public interest" to pursue a fresh trial against the 41-year-old former Bay Street investment banker.

The OSC can also appeal Judge Nordheimer's ruling, which emerged 16 months after Mr. Rankin was found guilty of "tipping" confidential information to Mr. Duic. The OSC alleged Mr. Rankin -- who has been free on bail pending his appeal -- passed on insider information about coming takeover and merger deals to his friend, who made more than $4-million in profit on a series of stock trades in 2000 and 2001. The regulator claimed that Rankin tipped Duic about impending transactions, including the reorganization of Canadian Pacific Ltd., Shaw Communications Inc.'s $992-million acquisition of Moffat Communications Ltd. and De Beers Consolidated Mines Ltd.'s $174-million acquisition of Winspear Diamonds Inc.

Mr. Duic bought shares in those companies before the transactions were made public and sold them at a profit afterward, OSC lawyer Kelley McKinnon said at Mr. Rankin's trial. Ms. McKinnon said Mr. Duic spent as much as $100,000 on shares of such companies as Prudential Steel Ltd., which was bought by Maverick Tube Corp. in 2000 for $521-million, and Cobequid Life Sciences Inc., which was bought in that same year for $21-million by Novartis AG.

Mr. Rankin was cleared of more serious insider-trading charges. However, he appealed his tipping conviction. "With the numerous deficiencies in Daniel Duic's testimony ... I fear there may have resulted a miscarriage of justice in this case," Judge Nordheimer said. Ms. McKinnon -- who wanted Mr. Rankin slapped with a three- to five-year prison sentence -- said she will consider Judge Nordheimer's ruling before "assessing the appropriate next steps."

Friends and relatives hugged Mr. Rankin after the judge threw out his conviction, handed down more than a year ago by Mr. Justice Ramez Khawly. "I'm absolutely delighted," said Dr. John Rankin, the man's father. "It's been miserable ... and this has been very, very hard on Andrew knowing that he was not guilty and was betrayed by his old friend." Mr. Rankin has been unable to land a job in Toronto so he moved to Los Angeles with his wife and found work assisting relatives of hospital patients, his father said. Described by one relative as a "pariah" on Bay St., Mr. Rankin was making $1-million annually with RBC's investment-banking unit before he was fired in 2001.

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