Saturday, March 31, 2007

California: Crooked officials in the gun at last?

A man who spent 24 years in prison before his murder conviction was overturned can move forward with a lawsuit against two former top county prosecutors, a federal appeals court ruled Wednesday. The ruling by a panel of the 9th U.S. Circuit Court of Appeals upheld a lower court's refusal to grant immunity to former Los Angeles County District Attorney John K. Van de Kamp and former Chief Deputy Attorney Curt Livesay.

The two had argued they should receive the same immunity routinely granted to courtroom prosecutors. However, a federal judge ruled last year that they could not be dropped from Thomas Lee Goldstein's civil lawsuit since they had served administrative rather than prosecutorial functions during Goldstein's murder trial.

Goldstein filed suit against Los Angeles County, the city of Long Beach, a Long Beach police detective and others, alleging their actions led to his wrongful conviction. He claimed Van de Kamp, who later became state attorney general, and Livesay failed to train prosecutors in their office on how to share information about jailhouse informants.

Goldstein was arrested after the Nov. 3, 1979, shotgun killing of his neighbor, John McGinest in Long Beach. No physical evidence linked Goldstein to the killing, and the weapon was never found. However, a jailhouse informant testified Goldstein told him in jail that he shot McGinest over a debt.

The county's case fell apart when evidence suggested the informant struck a deal in the Goldstein case to get a lighter sentence, and an eyewitness in the case recanted testimony identifying Goldstein as the gunman. Two federal judges and a federal appeals panel eventually ruled Goldstein was wrongly convicted and he was freed in April 2004. Trial in the civil lawsuit has been scheduled for May 2008.

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Friday, March 30, 2007

Britain: The forces of secrecy are prevailing

Last week a High Court judge denounced the “nightmare” suffered by a couple who were wrongly accused of harming their baby son. They were separated from that child for 12 months, the first and formative year of his life. During that time the mother became pregnant again but had an abortion, because she could not bear to risk the authorities taking that child too. So those who rushed to judgment ruined four lives.

“This is not a case,” said Mr Justice Ryder, “where there is no smoke without fire. This is a case where a family court and the expert who advised it got it wrong.” The consultant neurologist, Wellesley Forbes, was “too absolute” in blaming the parents. Two courts refused to let the parents seek a second medical opinion. The appeal court finally agreed to call a paediatric neurologist, who found that the injury had been caused before birth.

Mr Justice Ryder described a doctor who “strayed from the role of expert into the role of decision maker” and a family court judge who “failed to detect that that was what had happened”. Even more shocking is that we would know nothing had Mr Justice Ryder not chosen to make his judgment public.

Oldham Council, which brought this case against this couple, opposes the Government’s proposals to open up the family courts to scrutiny. No surprise. Oldham’s response to the Government’s consultation is that open courts could worsen “an already upsetting experience” for children. But who will be more upset by transparency, children or sloppy professionals? What is most upsetting about the family courts is that they can pass an effective life sentence, the permanent removal of a child from its parents, on the word of an “expert”, with no criminal conviction and no accountability. The family courts operate in secret. Secrecy is a gift to the incompetent and the corrupt.

County court judges, family lawyers, doctors, children’s charities and councils are massing to block reform. This was predictable. Harriet Harman, the Constitutional Affairs Minister, still has a strong hand to play as her reforms were recommended by the Constitutional Affairs Select Committee. But a new and unexpected obstacle has thundered into her path: her boss. It is becoming clear that Lord Falconer of Thoroton, the Lord Chancellor, is a staunch ally of the forces of conservatism. He is deeply uncomfortable about letting the press and public into family courts. As a lawyer married to a county court judge, he is being heavily lobbied by his profession.

In a little-noticed but important speech last week, Lord Falconer left little doubt where he stands. He explained his extraordinary recent decision to limit the Freedom of Information Act by saying that it had become “a research arm of the media”. He went on to make the breathtaking claim that children had made it “crystal clear” that they did not want journalists in family courts. That is a bizarre interpretation of the consultation findings: a third of children agreed that the media should be allowed into family courts automatically, with a majority agreeing that the decision should be up to the people involved in the case. One can only conclude that he was expressing his own view, not that of children.

That is not to dismiss the genuine concerns about how to protect children. Of course they should not be named, or be at risk of being tracked down by abusive parents. Of course some journalists may seek to breach their privacy for a headline. But other countries have found ways to resolve this, including strong sanctions for breaching reporting restrictions. Many options are being debated. This is not the real issue.

The opponents of openness claim that their concern is the “welfare of the child”. Yet the true interests of the child lie in protecting him or her from a miscarriage of justice. At the moment we are simply protecting the professionals. The Royal College of Paediatricians fears that doctors will not give evidence if they can be named. But the Chief Medical Officer has found that 80 per cent of paediatricians have never been expert witnesses, not because of adverse publicity but because they have never been asked. The lawyers say, in effect: “Trust us.” But the few cases made public reveal errors by judges who were confident that their reasoning would never be read by anyone.

Lord Falconer says that striking the balance between privacy and open justice “may well involve allowing the press or the public in only where the judge expressly agrees as an exception”. That would be the death knell of these reforms, a blatant attempt to preserve the status quo. Judges are free to publicise their judgments now. But few do. It seems that Lord Falconer may not be content only to scupper the Harman reforms and turn the clock back on freedom of information. He is also considering giving magistrates discretion to close their courts. Is that really his solution to the anomaly of family courts being secret and all others open: more secrecy?

Ms Harman will not stop — yet. But she needs the legal profession to understand that more openness is the only way to ensure that justice is done, and is seen to be done. In Oldham, the only reason the parents of that baby boy have got him back is because of the courage and tenacity of their defence lawyers in pursuing a second medical opinion.

They are the heroes. Is it not better that we should know them? Is it not better that we should know if Dr Forbes has been criticised by other judges in the past? In the dark, we cannot see whether patterns of injustice exist. We cannot help the victims. The Lord Chancellor cannot believe that secrecy serves justice. He cannot.

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Thursday, March 29, 2007

Another stupid prosecution of a lusty lady

This one in Australia

A WOMAN'S crime in having sex once with a 15-year-old boy was different from the six-week affair Melbourne school teacher Karen Ellis had with a boy of similar age, a court heard. Diana Nicole Bennett's lawyer said that unlike Ellis, the boy with whom she had intercourse was not under her care, supervision or authority.

The County Court heard yesterday that in January 2005, Bennett, a voluntary worker, then 28, had sex with the boy who had telephoned her at home one morning and invited her to his house. Judge Lance Pilgrim was told they had been friends for about six months and that the boy had earlier promised to give her a kiss for Christmas. After the Department of Human Resources notified police from a sexual offences and child abuse unit in February, 2005, the boy declined to make a statement, as did his parents.

Prosecutor Bill Dwyer said in his summary that Bennett later admitted she had a problem with binge drinking and on that morning she was drunk from the night before. Mr Dwyer said Bennett, who usually drank three bottles of vodka neat a week, told police she only took up the boy's invitation because she was drunk.

The pair began fondling each other and undressed before having sex, which was interrupted when a friend of the boy — who later approached police — entered the room. Bennett said in a record of interview with police that she saw herself as being like an older sister to the boy and was "flattered someone of his age found her sexually attractive".

Defence lawyer Richard Backwell said at the time Bennett was a depressed, lonely and vulnerable alcoholic who had sought "attention, adoration and admiration". He said three weeks after the incident, she voluntarily contacted police to make full admissions without which a case could not have been mounted. Mr Backwell submitted that while there were similarities in the cases of Bennett and Ellis — the boys were similarly aged and each woman was previously of good character and remorseful — his client's offence was not premeditated.

Bennett, now 30, pleaded guilty to one charge of taking part in an act of sexual penetration with a child under 16. Judge Pilgrim said it was in her interests to adjourn sentencing for a further medical report and to prepare a report for a community based order.

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Wednesday, March 28, 2007


A teenage gunman was convicted yesterday of having murdered a young father at the end of a long campaign of violence and intimidation. Bradley Tucker, 18, who shot Peter Woodhams, 22, with a blank-firing pistol converted to fire live ammunition, was found guilty at the Old Bailey. Mr Woodhams, a satellite television engineer, fell dying in front of his fiancee, Jane Bowden, and their three-year-old son Sam after being shot outside the family home in Custom House, East London, last August.

Seven months earlier he had been stabbed in the neck, the blow narrowly missing an artery, and slashed across the face. He had complained to police that he was scared for himself and his family and afraid to go out. Miss Bowden, 24, had phoned the police every day for five weeks after the stabbing but officers did not take a statement. Nine officers face an independent misconduct inquiry into allegations that they failed to investigate the assault.

Miss Bowden burst into tears yesterday as the jury returned its verdict and continued to cry as her victim impact statement was read to the court. Mr Woodhams had been taunted and tormented by a gang of youths since the stabbing in January 2006. In August he confronted the teen-agers outside a supermarket where they were standing around smoking cannabis.

Shortly afterwards a witness heard Tucker rant: “I will f****** have him. If he comes back, if he wants a row, I’ll f****** row with him.” Minutes later Tucker, a painter and decorator of no fixed address, arrived outside Mr Woodhams’s house and shot him repeatedly with a converted self-loading blank-firing pistol, which has never been found.

During the trial Miss Bowden told the jury that she and her son went outside when they heard the shots to see Mr Woodhams staggering towards the house before collapsing into stinging nettles.

On the eve of his trial, Tucker, of Canning Town, East London, pleaded guilty to manslaughter. He later told the jury he only meant to scare Mr Woodhams and thought the gun would just go “bang”. He will be sentenced at a later hearing. A 17-year-old youth who was alleged to have acted as lookout for Tucker was found not guilty of murder and manslaughter.

Detective Chief Inspector Ian Stevenson said: “Peter had no opportunity to defend himself in the face of a man who had complete disregard for his life. My thoughts and those of my team remain with Peter’s family and many friends at this very difficult time who, regardless of this result, have lost a loved one and will have to live with this devastating consequence of gun crime.” He said the investigation into the knife attack on Mr Woodhams was continuing.

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Tuesday, March 27, 2007


I gave details of this case -- including police fabrication of evidence -- on July 13, 2005

The way in which Donegal publican Frank Shortt was treated by some members of the Garda Síochana [police] has led Minister for Justice Michael McDowell to state that there was now "no alternative but for the Government to pursue its radical reform of the force". The Minister's comments were made following a decision by the Supreme Court to increase damages paid to Mr Shortt from 1.9 million to 4.7 million euros for the miscarriage of justice he suffered.

In 1992 Mr Shortt was wrongly convicted of allowing the sale of drugs in his Quigley's Point night-club and served 27 months in prison. And ten years later following a Court of Criminal Appeal decision certifying he had been a victim of a miscarriage of justice he was awarded compensation of ¤1.9 million for his wrongful conviction and jailing.


Mr Shortt (72) is currently in poor health and was represented in Court by his daughter Zabrina and son Jalisco who welcomed the judgement "unreservedly". Speaking after Wednesday's Supreme Court decision, his solicitor, Kathryn Ward stated the Court's award "exceeded our wildest expectations". She added that Mr Shortt now felt "fully vindicated".

In making his judgement, the Chief Justice, Mr Justice John Murray described the affair as "a stain of the darkest dye on the otherwise generally fine tradition of the Garda". He also criticised the "especially grave" abuse of Mr Shortt by Supt Kevin Lennon and Det Garda Noel McMahon. He added that the consequence for Mr Shortt was "a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair".


Mr Shortt's award includes an unprecedented 1 million in punitive damages to mark the Court's abhorrence of the "outrageous conduct" by gardai towards him. The judge stressed it was intended as a warning that such a serious abuse of power by the State would not be tolerated. In his judgement, Mr Justice Adrian Hardiman stated that what happened to Mr Shortt was "so outrageous as almost to defy description but the Garda force has yet to admit this".

His solicitor concluded: "In all the years nobody stood up and apologised to Frank Shortt. It was a very grudging apology that was dragged out of them (The State) in the Supreme Court last year." Mr Shortt, she added, was now aged 72 and while "in indifferent health" was "as well as could be expected".

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Monday, March 26, 2007


An American Airlines pilot arrested at an airport security check-in after apparently arriving for duty drunk was found not guilty by a court yesterday after telling a jury that he must have consumed a third of a bottle of Irish whiskey in his sleep. James Yates, 46, was found to be almost eight times over the legal limit to fly an aircraft shortly before he was scheduled to take the controls of a Boeing 767 carrying 181 passengers from Manchester Airport to Chicago in February last year.

The prosecution said that Mr Yates, an experienced pilot with the airline, had gone on a seven-hour drinking spree with his two co-pilots on the night before the long-haul flight. In evidence, Mr Yates, a former National Guardsman who at one time was involved in policing the Iraqi nofly zone, said that he had woken up late on the morning of the flight. He claimed a sleeping disorder may have led to him drinking from a bottle of Bush-mills the night before.

He insisted that he had not intended to carry out his duties as the flight’s first officer that morning, but was turning up at the airport simply to inform his captain that he was unfit to fly. At the end of a three-day trial, the jury at Minshull Street Crown Court, Manchester, took only 90 minutes to clear Mr Yates of a single charge of carrying out an activity ancillary to an aviation function while over the drink limit. He slapped colleagues on the back and grinned with delight when the verdict was announced.

Earlier, the jury was told that he had left the Renaissance Hotel in Manchester for a seven-hour drinking session with his two fellow pilots. He had drunk pints in at least four pubs before retiring for a Scotch in the hotel bar. Around midnight, he swallowed a sedative to help him to sleep. When he woke up the next morning, after 9am, he could hear his captain banging on the hotel door. He noticed that about a third of the Irish whiskey he had bought the previous day had been consumed, but he had no memory of drinking it. [Drink DOES that to your memory]

He said that, in the past, his ex-wife, mother and fiancée had noticed he was capable of doing “strange things” in the middle of the night. Once he had gone to bed, only to wake up in front of the television.

In evidence, he said that after the taxi driver taking him to the airport had scolded him for his drunkeness he realised he was not in a fit state to carry out his duties. At the airport, a breathalyser test revealed he had 71 micrograms of alcohol per 100 millilitres of breath; almost eight times over the 9 micrograms limit. Three hours later, a blood test gave a reading of 129 milligrams of alcohol per 100 millilitres of blood; more than six times the legal limit. During the trial, senior American Airlines executives gave evidence in Mr Yates’s defence. When the prosecution told Captain John Burton III, the airline’s chief pilot, that Mr Yates was not sick, but was, in fact, drunk, he replied: “I would consider that sick.”

Brigadier-General Thomas Botchie, a senior commander in the Ohio National Guard, told the court he had known Mr Yates since they were both fighter pilots in the 1980s. “I consider James to be a professional prepared to come to the defence of his country,” he said in a written statement. “It takes a certain calibre of person to qualify. I have always found him to be a person of high morals and trustworthy. My opinion is, if James says he’s telling the truth, he’s telling the truth.” Mr Yates, of Columbus, Ohio, may yet face internal disciplinary action.

A spokesman for American Airlines, based in Chicago, said: “We are pleased that the full details of the case have now been heard and that the jury have found James Yates was not guilty of the charges brought. He continues to be on a leave of absence from the company and upon his return from that leave the company will discuss with him his continued employment. These are private discussions and we will not comment further on the outcome. Our primary concern has and always will be for the safety of our passengers and crews”.

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Sunday, March 25, 2007

Official baby-killers again

This story from Australia. Another baby is dead and nobody will be penalized. Social workers treat drug addicts as sacred. They mainly take kids off normal families

An Aboriginal baby who died lying on a filthy mattress between her passed-out mother and father could be alive today if Western Australia's Department of Community Development had intervened to take her away from her alcoholic parents. Handing down his finding on baby Sturt's death in the northern West Australian town of Kununurra in July 2005, state Coroner Alastair Hope said the embattled department's handling of her case was seriously inadequate and deficient.

The five-month-old, who had been neglected her whole life, died in the early hours of Saturday, July 2, 2005. Western Australia's chief pathologist, Karin Margolius, said the baby had the worst case of nappy rash she had seen. The condition was so severe her skin was peeling off and she had ulcers on her bottom and a rash extending to her waist. The baby also had multiple areas of rash on her face and ears and areas of depigmentation on her forehead, nose, cheek and neck that were a result of sweat and other body products not being wiped off. "This was one of the saddest cases to come before the Coroners Court because it appeared that the baby had died in circumstances of extreme neglect," Mr Hope said in his findings.

The Coroner criticised the DCD for ignoring several attempts by baby Sturt's extended family to have her removed from her mother, Elizabeth Carlton. On May 6, 2005, family members attended DCD offices in Kununurra and "effectively begged the department to intervene to save the child", he said. The family was told arrangements would be made for another meeting the following Monday but the meeting never eventuated and baby Sturt and her mother were never seen by DCD officers.

"In my view, DCD's handling of the case, particularly after the meeting of May 6, 2005, with family members, was seriously deficient," Mr Hope said. "The concern of family members was that the mother of the deceased was an alcoholic and, when drinking, was incapable of looking after her very young baby. The department did nothing to address this very real issue and the case was allocated, first, to an unpaid student and a field worker who was never advised that the case had been allocated to her and then was transferred to a new employee who had not yet received the training provided by the department to new workers."

Mr Hope backed the investigating police officer's statement that baby Sturt would have been alive today if the DCD had acted on May 6 -- eight weeks before her death. He said it was particularly alarming that there was a reluctance by DCD to intervene to save Aboriginal children at risk. The Coroner also criticised the DCD for its lack of co-operation with police investigating the death.

The DCD welcomed the Coroner's report, saying it identified work practices and processes the department needed to improve. Executive director of statewide services Judy Hogben said the department had taken steps to tighten operations and implement more rigorous systems to identify and monitor children at risk since baby Sturt's death.

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Saturday, March 24, 2007

Australia: Sexual crimes ignored for 5 years

Must not be nasty to criminals if they are homosexual!

A PSYCHIATRIST who examined a man accused of deliberately spreading HIV told Victoria's Department of Human Services the father of three was the "most evil man I have seen in 20 years". Melbourne Magistrates Court heard yesterday that the department was contacted nine times in four years by doctors and concerned gay men who alleged the 48-year-old was intent on "breeding" the deadly disease.

Despite the fact that Michael John Neal, 48, admitted during his first contact with the DHS that he was having unprotected sex with many men and only sometimes disclosed his HIV status, police were not notified of the case until February last year - five years after the alarm was first raised by a doctor. Mr Neal is facing 122 charges including deliberately spreading HIV, rape, reckless conduct endangering serious injury and possession of child pornography.

During the fourth day of his committal hearing yesterday, a witness told the court Mr Neal hosted a "conversion party" at which a 15-year-old boy was injected with crystal methamphetamine and then "bred" (infected with HIV) by about 15 HIV-positive men who had sex with him. "Mick tried to justify this to me by saying that the kid was asking for more, more, more," the witness said in a statement.

The court heard the DHS went through four "stages" in its dealings with Mr Neal - offering him counselling, education and support, referring the allegations against him to an internal HIV Advisory Panel, issuing a letter of warning and issuing orders that restricted Mr Neal's sexual behaviour and required him to make contact with a department officer each day. When told he must either disclose his HIV status or wear a condom, Mr Neal demanded the department pay for Viagra "due to his erectile dysfunction when using condoms", the court heard.

According to a witness statement of DHS public servant Elizabeth Hatch, tendered to the court yesterday, the department was contacted in November 2001 by the doctor who first raised the alarm, Nicholas Medland. Dr Medland made further contact with the department in March 2003 and "stated that four of his recent HIV diagnoses were linked to Michael Neal", the court heard. Ms Hatch said that in a July 2004 meeting with psychiatrist Finton Harte - who believed Mr Neal was "the most evil man Ihave seen in 20 years" - the psychiatrist also said Mr Neal "enjoys infecting people with HIV".

Dr Harte told the department he believed Mr Neal was incapable of practicing safe sex and "the only way to guarantee the public's safety would be to lock this man up for life". The court heard that as allegations against Mr Neal continued to be received by the DHS, the accused man blatantly flouted orders issued under state health legislation on July 26, 2004, and December 21, 2004. It was only after a year of constant breaches that the matter was referred to Melbourne's sexual crimes squad, in February last year.

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Friday, March 23, 2007

Chicago police try to protect violent cop

But video undercuts them

While an off-duty police officer was pummeling the petite bartender with his fists and feet in an attack caught on video, she said he kept shouting, "Nobody tells me what to do!" Karolina Obrycka, who suffered injuries to her head, arms and ribs, told investigators she stopped serving alcohol to Anthony Abbate because he was drunk, fighting with other patrons and trying to buy rounds of drinks without any money. In the video from Jessie's Short Stop Inn Tavern, shown on television around the nation, the 250-pound Abbate can be seen assaulting the 115-pound bartender.

Prosecutors charged Abbate, a 38-year-old tactical officer, with felony aggravated battery late Tuesday — a week after Chicago police officials had quietly filed a misdemeanor battery charge. He remained in custody Wednesday. Abbate has been stripped of his police powers and the department will move to fire him, said police spokeswoman Monique Bond.

Sources familiar with the investigation but who were not authorized to discuss it publicly said police had preemptively charged Abbate before the Cook County state's attorney's office had completed its investigation. Prosecutors immediately took steps to upgrade the misdemeanor charge after they learned about it.

John Gorman, a spokesman for the state's attorney's office, would say only that "at the time of the arrest for [misdemeanor] battery, there was a lack of communication between Chicago police and the state's attorney's office. After the tape and the case was reviewed by our supervisors, it was decided this week to upgrade the case to [felony] aggravated battery."

When asked when prosecutors learned of the lesser charge filed by police, Gorman declined to comment. But Terry Ekl, Obrycka's lawyer, said, "That's got a stench to it, the way the cops handled that part of it." Ekl said he was waiting to see how the investigation played out before filing a lawsuit. Prosecutors reportedly were looking into whether other police officers threatened to arrest the victim and bar owner on trumped-up charges if they didn't drop the case.

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Thursday, March 22, 2007


These cases never stop coming. This one is from California. A child is dead but none of those responsible for protecting her will suffer any significant penalty

Before 12-year-old Daelynn Foreman was found dead weighing 23 pounds this summer, Child Protective Services officials had received seven reports warning that she was either severely or generally neglected, according to documents released to The Bee under the California Public Records Act. A Sacramento CPS worker visited the Orangevale family about 10 weeks before Daelynn, who had cerebral palsy, was found dead with open sores so deep they exposed her bones. That May 19, 2006, visit came after CPS had substantiated a case of "general neglect," the documents show, but Daelynn was never removed from the care of her mother, 33-year-old Brandy Foreman. The girl was found starved to death July 31 in her bed, wearing pink pajamas with black and white sheep.

Foreman was charged last month with homicide, neglect and methamphetamine sales. Her 5-year-old son was unharmed, according to law enforcement authorities, and was placed in the care of his father.

CPS officials have refused to discuss details of the case, citing privacy laws. Court records show CPS contacted Foreman twice about Daelynn. But documents released to The Bee by the state Department of Social Services outline seven separate reports, and two cases that were substantiated.

Lynn Frank, director of Sacramento's Department of Health and Human Services, oversees CPS. She said Monday that Foreman had deceived all the agencies involved with her daughter. "She was just very believable when she talked to staff about this case," Frank said. Since Daelynn's death, Frank said, an investigation resulted in "personnel actions." She would not elaborate.

The case has sparked outrage, particularly at the Sacramento-based Child Advocacy Institute, which lobbies for stronger protections for at-risk children. "Every man or woman who has ever held a child in their arms should be red-faced and screaming with rage," said Ed Howard, senior counsel for the group. "I want to know what has happened to this child. "Once CPS is involved, that child legally and morally becomes my responsibility and that of every other citizen of Sacramento County and California."

The first allegation of neglect was leveled Feb. 23, 2002, when Daelynn was 7. The next three complaints in 2002 and 2003 alleged severe neglect -- inaction that can endanger the health of a child. Other complaints alleged general neglect, such as having a dirty home or leaving a young child home alone. Of the seven cases reported to CPS, six were made in Sacramento County and one was made to Placer County. The fourth and seventh allegations of neglect -- Aug. 20, 2003, and April 7, 2006 -- were substantiated by social workers.

CPS officials did not comment on what action -- if any -- was taken in those instances. All other reports were determined by CPS workers to be unfounded or inconclusive, according to the documents released by the state. Previously released court documents say CPS had been involved in Daelynn's case twice, including an April 2005 threat to force Foreman to take the child to a medical appointment. The threat worked. Daelynn received her last medical care 15 months before her death, a 10-year-old weighing 46 pounds.

The court document, a request for an arrest warrant prepared by Sacramento County Sheriff's Detective Brian Shortz, also says Daelynn's visiting in-home teacher noticed her becoming quite thin and called CPS in April 2006. That call prompted the final two visits CPS made before the child died.

Daelynn's death came as a shock to Marta Brewer, the girl's step-grandmother, who now lives in Idaho. Brewer's son married Foreman when Daelynn was a young child and later had a son with Foreman. Brewer said she regularly saw Daelynn from 2000 to 2002, when she was a chubby girl with reddish-blond hair tied up in a ponytail. She said Daelynn could not walk, but scooted quickly around the house on her rear. She did not appear to understand everything around her, but enjoyed watching "Barney." "I know when my son would come home from work, she would get all excited when he got there," Brewer said. "She knew who he was."

Brewer recalls Foreman taking good care of Daelynn. But things began to change after 2002, Brewer said, and she began to see drug paraphernalia in Foreman's home. Brewer said that her son divorced Foreman and that when Brewer went to pick up her grandson for visits, Foreman would not allow her in the house. The boy, who is now 5, would frequently need medical care, have diaper rash and appear sleep-deprived, Brewer said. "We knew something was wrong there," Brewer said. Brewer said she was shocked to learn that the once-plump little girl had wasted away.

Frank, who oversees CPS, said the case has resulted in numerous policy changes, including a requirement that social workers assessing the care of a medically fragile child be accompanied by a county nurse. Also, social workers received training from a pediatrician in watching out for children with special needs. "I'm really heartbroken about what she had to endure," Frank said. "It's my worst nightmare and I do not want this to happen again."

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Wednesday, March 21, 2007

No Accountability for Wrongful Conviction

Who pays when a deliberately wrongful conviction takes place? A truly outrageous case:

In light of the current controversy on medical marijuana, here is a classic case of law enforcement/prosecutor overreaching just to get a conviction, then claiming immunity so that no one within the justice system is accountable.

On September 27, 2000 about 20 Plumas County, California Sheriff deputies and federal agents with camouflage clothing, ready weapons, roaring vehicles and helicopter swarmed onto the property of Joseph Robinson. They found Robinson and three friends processing marijuana. Although it was determined that all four had medical certification, they were arrested. Deputies also verified that Robinson had formally offered the California Medical Research Center Research Center to distribute Robinson’s excess marijuana to their patients.

Plumas County District Attorney James Reichle prosecuted Robinson in spite of California Health & Safety Code Section 11362.5, which states that Californians have the right to obtain and use marijuana for medical purposes.

On November 22, December 7, December 14 and December 20, 2001, when Robinson requested that Plumas County Court Officers appoint an attorney to assist Robinson, Judges Garrett Olney, Ira Kaufman and William Pangman conspired, combined and cooperated with prosecutors James Reichle, Jeff Cunan and Gary McGowan to refuse to appoint an attorney for Robinson.

On December 14, 2001, at the preliminary hearing, in spite of Penal Code Section 866.5, which states that a defendant may not be examined unless the defendant has counsel or has waived counsel, Judge Pangman and Prosecutor Cunan examined Robinson. Robinson freely admitted that he intended to distribute some of his marijuana to medical patients and justified this distribution on the ground that most people with the right to obtain and use marijuana for medical purposes have no way other than distribution to obtain the marijuana that a physician had prescribed to ease their suffering.

On August 1, 2001, at trial, Judge Olney and Prosecutor Cunan, prevented Robinson from presenting his justification defense to the jury, in spite of California law, which states that a justification defense may be used for any act. Over Robinson’s written objection, Olney and Cunan deleted the justification part of Robinson’s unlawfully obtained preliminary hearing testimony, gave it to the jury and told them it was a confession. Olney and Cunan instructed the jury that, if they found that Robinson had intended to distribute any of his marijuana, for any purpose, they must find him guilty. The jury obeyed the judge and prosecutor. Olney and Cunan sentenced Robinson to a three-year term in state prison. Robinson appealed his conviction immediately.

On February 18, 2003, Robinson was released from prison on parole.

On March 18, 2003, the California Third District Court of Appeal reversed Robinson’s conviction, ruling that the Plumas County Court officers had violated Robinson’s right to the assistance of counsel for reasons that are “without support in California law”, California Penal Code Section 866.5 and “all the rules of fair play”. The California Attorney General did not appeal to the Supreme Court. When the case was remanded back to the Plumas County Court for a fair trial, Judge Olney and Prosecutor Cunan dismissed all charges against Robinson “in the interest of justice”.

On July 4, 2004, Robinson filed a civil complaint in the United States District Court. This court refused to issue Robinson’s lawful summons for California and the Plumas County judges, proclaiming them immune. The prosecutors claimed immunity and moved to dismiss. District Court Judge Burrell dismissed Robinson’s case.

Robinson made administrative complaints to California Governor Schwarzenegger, California Attorney General Lockyer, the California Commission on Judicial Performance, the California State Bar, and the Plumas County Board of Supervisors.
Robinson made criminal complaints to the Plumas County Grand Jury, California Attorney General Lockyer and United States Attorney Mcgregor Scott. All of the aforementioned agencies and individuals acknowledged receipt of Robinson’s administrative and criminal complaints. None investigated.

Robinson’s appeal in the Ninth Circuit requests that court to resolve the following issues:

1. Do people who have been unlawfully convicted and falsely imprisoned have the right to a civil remedy? If no, why not? If yes, who pays?
2. Are judges and prosecutors in a court with subject matter jurisdiction immune from civil liability under all circumstances no matter how outrageous their conduct, without exception?
3. Are the following circumstances narrow enough to constitute an exception to judicial and prosecutorial immunity pursuant to this Court’s conclusion in Ashelman v. Pope that the exceptions to immunity must be narrowly drawn?
* Allegation of judicial/prosecutorial conspiracy to wrongfully convict and imprison a defendant through intentional violation of his right to counsel
* Post-conviction imprisonment
* Appellate court reversal of the conviction for the violation of right to counsel
* Subsequent acquittal or dismissal with prejudice of all charges
4. If not, how narrow does an exception to judicial immunity have to be?
5. Is the state liable under the foregoing circumstances?

The essential question here is: “Who Pays?”

When state judges and prosecutors violate the right to counsel to unlawfully convict and falsely imprison an individual for 567 days and then dismiss all of the charges when the case is reversed upon appeal and remitted back for a fair trial, who pays, the state, the judges and prosecutors, or the individual who was wrongfully convicted and imprisoned?

In a one-page memorandum, the Ninth Circuit ruled that California, the judges and the prosecutors are all immune from civil liability to Robinson.

This ruling means that Robinson is not entitled to a civil remedy for the 567 days of false imprisonment that judges and prosecutors and the state are immune no matter how outrageous their conduct, and that the right to the assistance of counsel in a criminal prosecution and all other court-related rights have been abolished.

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Tuesday, March 20, 2007

Crooked lawyer walks free

Lazy prosecutors

INVESTORS waiting for money six years after a solicitors mortgage scheme went bust with $38.8 million of their funds say a sentence handed out to the company's principal is manifestly inadequate. Paul Anthony Triscott, a former Queensland solicitor who was struck off the solicitors' roll in 2002, pleaded guilty in the District Court this week to six counts of dishonestly causing detriment to investors and was sentenced to two years' jail, wholly suspended.

Triscott was originally investigated by the Australian Investment and Securities Commission over 48 loans involving $38.8 million, but outside court this week an ASIC spokeswoman said they had prosecuted him over only one that caused $184,000 detriment to investors based on the evidence available and the need to prove the case to a criminal standard.

ASIC's decision has angered consumer advocates and investors, many who are still owed tens and even hundreds of thousands of dollars. Consumer advocate Denise Brailey, who represented the investors, said while she was happy ASIC did pursue Triscott criminally, she didn't accept "this was the only project that they could have taken action on".

She said ASIC's decision to pursue only one loan meant the judge was unable to sentence Triscott in line with the true pain he had caused.

Ernie Robins, who lost about $150,000 in the scheme and is still waiting to see the money, said ASIC's decision was "a farce". Mr Robins, who turns 77 next week, said he had only invested in the scheme after ensuring the valuers and solicitor involved were registered and above board.

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Monday, March 19, 2007

Keep monsters away from our children

By Bob Weir

Two years ago, an innocent child went to sleep in her bed as she had done every night for the short nine-year span of her life. She had no reason to believe that she was in any danger. Her father went to sleep that night feeling that his daughter was safe in her room.

But, like something out of a horror movie, a creature was slithering around outside, waiting for an opportunity to pounce on the little girl. Somehow, the creature managed to get inside that room and snatch 9-year-old Jessica Lunsford from her bed. He carried her to a nearby trailer where he had been living, then raped her, tied her up, buried her in trash bags and left her to die.

Last week, jurors in a Miami courtroom found John Couey, 47, guilty of first degree murder, rape, kidnapping and burglary. The jury considered and recommended the death penalty. Now it is up to the judge. But, what is there to consider? If this isn't a case for the death penalty, there is no case that would qualify.

We're going to hear that he's mentally retarded and psychologically unfit to know right from wrong. This will be an attempt to save his life and allow him to keep breathing as a guest of the state until he dies in a cell.

He didn't consider how Jessica was going to breathe when he stuffed her in a plastic bag and buried her alive. He bound her little hands with speaker wire before shoving her into a shallow grave. When police dug up her body in Couey's yard, two of her fingers were poking through the garbage bags. Only a cold-blooded monster could commit such an inhuman act.

As for him not knowing right from wrong; he knew enough to try to conceal what he did. Couey has an extensive criminal record that includes 24 arrests for burglary, carrying a concealed weapon without a permit and indecent exposure. In 1991, he was arrested in Kissimmee, Fla. on a charge of fondling a child under age 16. During a house burglary in 1978, Couey was accused of grabbing a girl in her bedroom, placing his hand over her mouth and kissing her. Couey was sentenced to 10 years in prison but was paroled in 1980.
Imagine; this cretin was arrested 2 dozen times for serious crimes that we know about. That doesn't include any number of other crimes that we'll never know about. The "justice system" had more than enough chances to lock this animal away for good before he murdered someone. Once again, the system waited until the murder took place, instead of recognizing the obvious threat and removing it from civilized society.

How many times does a person have to be arrested before we realize that he is a menace to society? Well, the system that is entrusted with the safety of its citizens had at least 24 opportunities to save Jessica's life. It failed miserably! And there are many more monsters like Couey who have given society plenty of clues about their future plans. Yet, they are continually put back on the street until they work their way up to murder.

Once a child's life is snuffed out there's no way to compensate for it. Taking Couey's life won't bring back Jessica, but it may send a signal that monsters will be destroyed. Many states, including, just recently, Texas, have passed Jessica's Law, which provides some strict mandatory sentences for child molesters and the death penalty for a second sexually violent offense against a child under 14.

However, the best way to protect our children is to identify the monsters before they strike. Last week, Texas Rep. Tan Parker introduced House Bill 2656 to ensure more accessible identification of registered sex offenders. His initiative would require that all registered sex offenders carry an identifying emblem on their driver's license. Under Parker's legislation, registered sex offenders would have the letters "RSO" printed in bold black print on the upper left hand corner of their issued forms of identification, an idea that seeks to end instances where registered sex offenders successfully conceal their backgrounds and end up working closely with children.

"This week the Texas House of Representatives addressed child predator prosecution with the passage of Jessica's law," Parker stated. "Now its time to look at the prevention side of the equation by better identifying registered sex offenders." Way to go, Rep. Parker! Do I hear an Amen?

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Sunday, March 18, 2007

Mother wrongly jailed over the deaths of her sons is found dead

Sally Clark, the mother wrongly jailed for murdering her two baby sons, has died at the age of 42, four years after being released from prison. The cause of death is not known although her family's solicitor said last night that Mrs Clark, whose body was found at home yesterday morning, had not been in good health. In a statement last night, her family said that she had never got over her conviction in 1999 and subsequent prison term. They described her as a "loving and talented wife, mother, daughter and friend".

At her trial, the prosecution contended that Mrs Clark, a depressive alcoholic, had smothered her 11-week-old son, Christopher, and, 14 months later, shook Harry, his eight-week-old brother, until he was limp and lifeless. While facing trial for murder Mrs Clark discovered that she was pregnant again. Ten days after giving birth, her new son was taken away from her and placed with foster parents.

After being convicted and given two life sentences, Mrs Clark spent more than three years behind bars. At her appeal new medical evidence emerged and she was found to have been wrongly convicted. Professor Sir Roy Meadow gave evidence at her trial, claiming that the probability of two natural unexplained cot deaths in the family was 73 million1. The figure was disputed by the Royal Statistical Society and medical experts who said that the odds of a second cot death in a family were about 200-to1. Sir Roy was later found guilty of serious professional misconduct and struck off the medical register.

After her release, Mrs Clark's husband, Stephen, was accused in 2004 of murdering his two sons by Professor David Southall, a leading paediatrician. Mr Southall was found guilty of serious professional misconduct and barred from child protection work for three years.

Last night a statement by the family said: "Sally was found dead at her home this morning, having passed away during the night. The matter is in the hands of the coroner and it is too early to provide any further information. "Sally's family very much hopes that the media will refrain from making any inquiries or attempts to contact them at this painful time. "Sally, aged 42, was released in 2003 having been wrongfully imprisoned for more than three years, falsely accused of the murder of her two sons. Sadly, she never fully recovered from the effects of this appalling miscarriage of justice."

Angela Cannings, who spent 18 months in prison after a wrongful conviction for killing two of her babies, said last night: "I'm really speechless, I'm so angry. This lady suffered so much - now she's died, I'm just shocked and stunned." Her lawyer, Bill Bache, added: "If Sally Clark's ordeal was in any way connected with her death, as it may well have been, than all those who have contributed to this miscarriage of justice will, I hope, be examining their consciences and reflecting on what they've done."

The Times serialised the book Stolen Innocence: A Mother's Fight for Justice - Sally Clark's Story" by John Batt in 2004. In one of the extracts, Mrs Clark described the pain of being separated from her third son shortly after giving birth to him. "The precious baby I have borne for nine months and felt the same all-consuming love for the moment he came into this world is taken from my arms . . . I am not allowed to see him unsupervised. I am watched while I change his nappy. It is more than distressing, it is an unbearable pain at the core of my being." The child was subsequently returned to the family.

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Saturday, March 17, 2007

Britain: The Cult of Thuggee Rules

Thug who killed man, 78, gets two years

A cattle market worker with a lengthy history of violence was jailed for only two years after killing a pensioner with Alzheimer's who rebuked him for urinating in public.

The family of the pensioner told of their anger last night after learning that Steven Chapman could be free within 20 months. Chapman carried out his attack after deciding to relieve himself outside a supermarket in the middle of the day.

Benjamin Kerr, 78, remonstrated with the 22-year-old, who threw him to the ground. Mr Kerr suffered a broken rib and died in hospital 13 days later after contracting pneumonia. After the attack, Chapman and his friend Christopher Thurley walked into the supermarket and stole some alcohol.

As they left, they stepped over the stricken pensioner....

As we are always told "Don't get involved, leave it to the professionals with their blues and twos." If this thug had killed a copper do you think he would have been treated so leniently? But the point is that a civilised society is one where everyone takes a responsibility, and that the "system" backs them up, and doesn't spit on the memory of a decent man.

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Friday, March 16, 2007


American jurisprudence tells us from day one that we are presumed innocent until proven guilty. But for the wrongly accused, that presumption is turned on its head. They remain guilty until proven innocent.

For people who are convicted of crimes they did not commit, the cards of the court system are stacked against them. Perhaps their race or sexual orientation puts them at risk within a racist, homophobic criminal justice system. Perhaps they just had the extreme misfortune to be in the wrong place at the wrong time. Undoubtedly, they do not have the financial resources to hire any "dream team" of defense attorneys available to the more affluent.

Victims of prosecutorial misconduct, these people may face the ultimate miscarriage of justice - being put to death before anyone can bring to light their lack of culpability and overturn their conviction. Even if they are one of the lucky ones set free, they receive no restitution and, in most states, are not allowed to sue.

"The Exonerated" was written in 2000 by Jessica Blank and Erik Jensen, two actor playwrights who traveled across the United States and interviewed 60 people who'd been sentenced to die and had then had their convictions overturned. Their play was culled from six of those interviews and shaped into the interwoven monologues that form its backbone.

Under the direction of Broadway veteran Allen Fitzpatrick, New Everett Theatre is staging a powerful production of "The Exonerated" that continues its creators' mission to right this wrong.

One of the more harrowing stories belongs to Kerry Max Cook, played by Daniel E. Fling. Cook was convicted in 1978 of murdering a female acquaintance. Authorities pinned the crime on him because of what they termed his "homosexual perversion." Wrongly imprisoned in Texas for 22 years, he sat on death row from 1978 to 1997, and came within 11 days of execution before being exonerated when DNA evidence proved him innocent. "They said that would be the final nail in the coffin," Cook says in the play. "Instead, it finally took the nail out." Cook had been given a public defender who was paid $500. "And in Texas," he says, "you get what you pay for."

Another chilling account belongs to Sonia "Sunny" Jacobs, played by Kathrine L. Newman. Jacobs was convicted in 1977 of murdering two policemen and wrongly imprisoned in Florida for 16 years. Her husband, Jesse Tafero, was wrongly executed for that same crime in 1990, two years before his wife's conviction was overturned. Jacobs didn't get to see her children grow up, and her parents died in an accident en route to visit her in jail. Tafero's death by electrocution achieved notoriety when it was botched. Flames shot out of his head, and the executioners had to pull the switch three times to stop his breathing. In the play, Sunny addresses the hopelessness of her incarceration. "They take your clothes and give you a number. (You're) locked in a tomb. (It's) like being thrown to the bottom of the well."

Delbert Tibbs, portrayed by Clyde E. Grant Sr., was wrongly convicted in 1974 of rape and murder and imprisoned for three years. In the play, his voice is that of a poetic rapper who seems to spring from a Greek chorus. "It's not easy bein' a poet here," he says of his jail existence. On one side, he's fighting the judicial system, and on the other, he's fighting attacks within prison.

Other testimonies are offered by Gary Gauger (Michael Trepp), imprisoned in Illinois for three years after being wrongly convicted in 1993 of murdering his parents; David Keaton (Jeffery Brown), wrongly convicted in 1971 of murder and imprisoned in Florida for two years; and Robert Earl Hayes (Curtis Sims), wrongly convicted in 1991 of raping and murdering a co-worker, then imprisoned in Florida for six years. Hayes, a black man, was convicted by a jury made up of 11 whites and one black.

Asa Sholdez and Paul Benz are frighteningly convincing in their portrayals of Southern, white, racist law enforcement officers. The production incorporates black and white photos of cell blocks projected behind the chairs actors sit on until it's their turn to speak. Also effective are such sound effects as steel bars clanging shut or the high voltage buzz of an electric chair. "The Exonerated" allows us all to feel the nightmare of trying to defend yourself against allegations of a crime you didn't commit. For the disenfranchised among us, that social injustice becomes a nightmare from which they may not awake.

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Thursday, March 15, 2007

It is time to act over the failings of forensic scientists

Too many cases in Britain are going badly wrong — the criminal justice system must take a firm grip now

When Angela and Ian Gay were acquitted of poisoning with salt the three-year-old boy they were adopting, it marked the end of a nightmare that began with Christian Blewitt’s death in December 2002 and the couple’s subsequent arrest. At their first trial, which began at the end of 2004, they were acquitted of murder but convicted of manslaughter. The basis for the conviction was hypernatraemia caused by forcible ingestion of salt — at least four teaspoonfuls in one dose. There was no realistic explanation of how such an amount could have been administered.

They were sentenced to five years’ imprisonment. Like others incarcerated for crimes against children, they suffered humiliation and abuse. After 15 months the Court of Appeal quashed the conviction, ordered a retrial and both of the Gays were released on bail. After their acquittal at the recent retrial, their solicitor, William Bache, observed: “I do not believe that cases of this sort should be brought to trial when so much doubt remained about the science involved.”

Over the past few years, this has become a disappointingly familiar tale which has recurred in the cases of Sally Clark, Angela Cannings, Donna Anthony and Trupti Patel (sudden infant death syndrome); Lorraine Harris and Michael Faulder (shaken baby syndrome); and Marianne Williams (salt poisoning). In each, the defendant parent was ultimately vindicated.

There are several failings common to many of these cases, although not all. Frequently, a prosecution is embarked upon when it is clear from the start that there is a serious division of opinion between reputable experts about the cause of particular injuries. Sometimes the dispute is as basic as what the original findings amount to. In other words, what can actually be discerned from scans, the X-rays, the histology and so forth. The process nearly always involves at least these two stages — the findings and then interpretation; often with the added complication that the original samples have been used up, or lost and, occasionally, that the appropriate examinations were not all done in the first place.

What remains, therefore, tends to be the opinion of one expert against another. This provides a nearly impossible situation for any fact-finding tribunal whether jury and judge, or judge alone. On what basis can a nonscientist arrive at a certain conclusion (guilt) when the choice perhaps comes down to a preference in presentation? Rarely will there be exhibits that can be pored over and, even if there are, they are often unintelligible.

In the Cannings case, the Court of Appeal provided some extremely sensible guidance: Sir Igor Judge suggested that where an investigation into two or more sudden unexplained infant deaths was followed by a serious disagreement between reputable experts, then the prosecution should not be started or continued — without additional cogent evidence. Unfortunately, this advice has not been heeded. Cases proceed in the absence of corroborative evidence. Even when experts have been discredited, cases proceed by substituting other experts who will come up with the same theory or a new one, or who stray beyond their own expertise.

It is time that the criminal justice system took a firm grip of the situation by establishing a clear, regulatory structure with obligatory protocols and guidelines. This has been raised endlessly in professional debate, parliamentary reports, reviews and Royal Commissions. But there persists an extraordinary reluctance to act.

What is needed is a national institute of forensic science to lay down standards and guidelines for experts who give evidence in court. The newly established Council for the Registration of Forensic Practitioners is not comprehensive and membership is only voluntary. There should also be a national and obligatory register of accreditation. In all cases where forensic science is involved there needs to be — as in the United States — a preliminary hearing where the trial judge assesses the admissibility of expert evidence (the Daubert Test). Essentially, the courts exercise a form of quality control. The judge decides which experts are capable of giving evidence and the areas where they are qualified to comment. This ensures that certain basic thresholds are achieved, that the theory or technique employed can or has been tested, subjected to peer-review or publication, scrutinised for any known rate of error and identifies whether there is a consensus within the scientific community.

The present deficiencies have been given a recent and stark illustration by the conviction of a so-called expert forensic psychologist. Gene Morrison was recently convicted of 20 offences involving a deception he had practised for 27 years. His qualifications had been bought from a website — he had no genuine academic or forensic psychology skills. Up to 700 cases may now have to be reviewed because of the bogus opinions he proffered. Besides wondering why forensic scientists, police officers, solicitors, barristers and judges never asked a single fundamental question that would have exposed this individual, what the case really illustrates is systemic failure on a grand scale. Obligatory accreditation and hearings before the admission of such evidence would have weeded Morrison out 27 years ago.

An improvement in standards would also help to prevent future cases where the expert evidence is disputed from going to trial without giving effect to Lord Justice Judge’s wishes.

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Wednesday, March 14, 2007

Australia: Now even police dogs are a protected class

Dubious police interpretation of the law not to be tested in court

Adrian Beadle was playing hide-and-seek when he first saw the dog emerge from the bushes in Sydney's south-west. The dog, believed to be a member of the NSW police dog squad, did not take kindly to the intrusion of the 13-year-old. Slobbering and growling, it attacked Adrian, biting him on his wrist, side and back as he struggled to scramble away. Pale with fear, bleeding and with his clothes torn, Adrian managed to get away from the animal. Using photos, he would later identify it as a German shepherd that was "pretty big - about a metre high and a metre long".

Police were called, and officers from Sutherland Local Area Command began investigating the attack. That was in November 2005. During the investigation Adrian's parents, Peter and Margaret, said they were told by the investigator that the dog that attacked their son belonged to the NSW police dog squad. Dr Beadle said he believed the dog had escaped from its handler's backyard. A NSW police spokesman told the Herald that the dog allegedly involved in the attack had been retrained and that the senior constable involved had been disciplined.

The office of the Director of Public Prosecutions was set to begin a case against the senior constable involved under the Companion Animals Act 1998 tomorrow. But the prosecution is not proceeding. Last week a prosecutor told Adrian's parents this was because police dogs and handlers were exempt from the act. A spokeswoman for the office of the Director of Public Prosecutions said she could not comment on the reasons the case was not being pursued.

Dr and Mrs Beadle are furious about the decision. Adding to their frustration are comments from the Minister for Local Government, Kerry Hickey, who is the minister responsible for the legislation. His spokesman told the Herald that the exemption was only for when a police dog was on official duty. Dr Beadle wants the laws tested in court. "I would rather have a magistrate decide how the law should be interpreted," he said. "My son - who is six foot [183 cm] tall - now has permanent disfigurement on his chest and backside. It's a travesty of justice and makes me lose faith in the whole system." Mrs Beadle added: "Why should the charges be dropped? If it had been a smaller child, that kid could have died."

A NSW police spokesman said police would not be reviewing their guidelines for the home kennelling of dogs by handlers. Mr Hickey's spokesman said police dogs were exempt from prosecution when their dog attacked another person or animal under the Companion Animals Act. "This makes perfect sense because otherwise police would be open to prosecution every time a police dog restrained a fleeing suspect," he said. "However, this only applies when the animal is on official duty." For his part, Adrian, now 15, wants the dog that attacked him put down. "It was a pretty vicious dog, and it wasn't particularly trained."

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Tuesday, March 13, 2007

Guilty until proven innocent — is this the norm in today’s UK?

David Prior, former MP for Norfolk North, was arrested in a dawn raid for a crime he did not commit. Here he describes how the experience has affected his view of justice

The first sentence of Franz Kafka’s novel The Trial has a chilling simplicity. “Somebody must have made a false accusation against Joseph K for he was arrested one morning without having done anything wrong.” I was also arrested one morning, having done nothing wrong. It was just after 6.15am on Tuesday, November 14, last year. Several resounding bangs on the front door woke me and, from our bedroom window, my wife Caroline saw five uniformed police officers. Our immediate reaction was that our teenage daughter, Helena, must have been in a car accident. Thank God she hadn’t. Instead, I was arrested for alleged involvement in a fraud at a psychiatric hospital where I had been the nonexecutive chairman.

One of the officers inquired if he should put “cuffs on him”. Fortunately, I was judged sufficiently wimpish to make this unnecessary. I was allowed to brush my teeth, shave and get dressed — with an officer in attendance. My office was secured, files taken and my computer removed. It was not returned until January 25, 2007. The journey to the police station took about half an hour. Psychologically, I already felt like a criminal. I could see my life disappearing in front of me. Saying goodbye to my wife still haunts me. The feeling got worse. I was “booked in”, with all the attendant paperwork, and my possessions were confiscated save for my glasses and shoes. I was asked a number of what were described as standard questions. One of these was: did I have a history of dressing up in female clothes and impersonating women?

My fingerprints were taken and a DNA swab from my mouth. By now it was about 7.30am and I was placed in a cell on my own for one-and-a-half hours. I have never felt so isolated, numb and disorientated. I wasn’t expecting tea and buttered crumpets but, by 9am, when I was taken away for my interview, I hardly felt human.

The interview lasted for three hours. I was asked whether I wanted a solicitor present. I said: “No.” I had nothing to hide. The interviewers were perfectly civilised. They were doing their job. I was returned to my cell and languished there until my release at 9pm. There is not a lot to do in a cell and I am indebted to the WPC who found me something to read — a Jeffrey Archer novel.

When I got home I discovered that the police had given a full media briefing at 10am. My father heard of my arrest from a friend in Singapore. It was everywhere. In the space of 24 hours I went from “respected former MP... ” to “disgraced former MP... ” I immediately stood down as chairman of the Norfolk and Norwich University Hospital. My business life ground to a halt — just when I started to incur large legal fees. I could hardly bear to go out in public. The impact of an arrest and any attendant publicity is devastating. And I was and am totally innocent.

The investigation continued until February 13, 2007, when I was released from bail and told that I was in the clear. Many people wrongly assumed I had been charged because of the manner in which I was arrested. There was no dialogue with the police working on the investigation. Anything I said could be used against me. I found the nature of the arrest shocking and humiliating, the media coverage devastating, the pace of the investigation excruciatingly slow and the relationship between police and suspect unnecessarily confrontational.

I am, of course, much luckier than most. I have legal training, an amazing family, money and supportive friends. For many, especially from poor backgrounds, an arrest can be an even more terrifying ordeal. I do not accept, as some maintain, that we live in a police state. But we do live at a time when police powers have grown greatly in response to both terrorism and the growth of violent and organised crime. A surprising number of people have suffered an experience similar to my own. It is, perhaps sadly, inevitable that more and more innocent people will be arrested.

So it is especially important that the initial arrest and the investigation are carried out sensitively. Dawn raids should be exceptional, media coverage kept to a minimum, suspects treated with respect and the investigation as expeditious as possible. And the threshold for making an arrest should be high. The present system is an affront to the notion that we are all innocent until proven guilty and to any notion of fairness or justice. It needs reform. It is easy to ignore the issue because this kind of thing only happens “to other people”. It happened to me. It could happen to you.

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Monday, March 12, 2007

Restore property rights stolen by drug warriors

The war on drugs has become a war on basic legal rights -- everybody's rights

The Michigan Supreme Court has an opportunity to reconnect the idea of punishment with actual convictions for crimes. The so-called drug war has separated the two -- in violation of an essential feature of Anglo-American law. Under the rules of the drug war, property can be seized from citizens without their being found guilty of a crime. The government gets away with this by calling the seizures "civil" forfeitures. There's nothing civil about them.

This week, the state Supreme Court heard arguments about the seizure of more than $180,000 from the rented car of Tamika Smith in 2002. She was headed west on Interstate 94 and was stopped for speeding. She was also driving with a suspended license. A state trooper searched her car, without her consent, and found the money in a backpack in the trunk. No drugs, guns or other illegal material was found in the car. Nevertheless, the money was seized.

A trial judge acknowledged that the money was seized improperly, in violation of Smith's Fourth Amendment rights against illegal search and seizure. Nevertheless, following testimony that I-94 is a corridor for the illicit drug trade, which is a cash business, the trial judge allowed the forfeiture. It was also shown that Smith at the time did not have a large amount in savings and had on several occasions rented a car for short trips to Chicago. All of this is suspicious. But it is not conclusive.

Smith was not carrying illegal drugs or guns. The only thing police could show was that Smith was speeding and driving with a suspended license. These are not $180,000 offenses. Her role as a possible drug money courier, for the purposes of this case, remains police speculation. She was not convicted of anything related to the drug trade. Still, under Michigan law, it is now too much to ask of police and prosecutors that they actually obtain a conviction in a criminal case before they seize property. The fact that they can keep the seized money for their own budgets is not thought to be too much of an incentive to engage in illegal searches and take things without warrants.

Whatever happened to the presumption of innocence? What happened to the burden of proof being on the state? These foundations of American law have been given up in the course of our failed "war on drugs." The state Supreme Court in this case has a chance to restore these rights. They need not look far for the authority to restore them. They're right in the U.S. Constitution.

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Sunday, March 11, 2007


This practice has so often led to erroneous convictions that its continued usage is itself corrupt

In the eyes of some observers, Conrad Black is already guilty. To them, he is yet another corporate mogul who ripped off shareholders to fund his own lavish lifestyle. They point to a long list of alleged transgressions, like a $40,000 birthday party for his wife Barbara, a company jet used for a trip to Bora Bora and some $10 million spent on Franklin D. Roosevelt's personal effects when Black just happened to be writing his biography.

To others, Black is not a criminal but the victim of a miscarriage of justice. The charges have much less to do with Black's own actions, they assert, than with a widespread campaign against the wealthy and successful. Emboldened by verdicts in the Enron, WorldCom and Martha Stewart cases, and seeking to portray themselves as heroes of the common man for the purposes of their re-election campaigns, overzealous prosecutors have chosen Black as their next target in a war against highly paid corporate honchos.

What the two camps have in common is that neither has heard or seen the actual trial evidence against the man who once controlled the third-largest newspaper empire in the world. While the public has been exposed to sensational details for months, the real trial has not yet begun; jury selection starts on Wednesday.

To those who enjoy seeing the comfortable afflicted, Black is an easy target. He may not have spent as much money on his wife's birthday bash as Tyco's Dennis Kozlowski but unlike some CEOs portrayed as self-made men of the people, Black relished his aristocracy. This week, for example, a judge ruled that evidence in which Black is alleged to have compared his entitlements as the head of Hollinger International to those of French nobility will be admissible in his trial.

Indeed, if greed were a crime, if conceit and arrogance were punishable offences, then Black might already be serving a life sentence. But the Canadian-born media baron isn't on trial for his personality. He's been charged with fraud, racketeering, money laundering and obstruction of justice.

And much of the case against Black that has been outlined publicly will not be part of the trial. This includes a damning report by former U.S. Securities and Exchange Commission chairman Richard Breeden, who alleged that Black and his associates operated Hollinger as a "corporate kleptocracy." Because the trial centres on the legality of non-competition payments paid to Black and several co-defendants, Breeden's report is considered off-topic.

Nevertheless, the trial promises to be dramatic. The list of potential witnesses includes not just Black and his wife but a parade of former U.S. diplomats, government officials and business executives who served on the board of Hollinger International, the holding company Black controlled. Former U.S. Secretary of State Henry Kissinger, for example, may be called to testify.

Despite the star-studded witness list, the case will likely revolve around the testimony of former Hollinger chief operating officer David Radler. Once one of Black's closest allies, Radler is now effectively his sworn enemy after cutting a deal with prosecutors in 2005. In exchange for agreeing to testify against Black and his co-accused, Radler secured a shortened 29-month sentence and a $250,000 US fine.

What Radler has to say, and how Black's high-priced counsel attempts to refute it and undermine his credibility, will play greatly into the outcome of the trial. So will Black's defence and, if he decides to take the stand, his own testimony. The central question may be who the jury believes: Black or Radler.

But a larger intangible is also in play. Prosecutors have had a field day recently by playing to the visceral disgust of ordinary folk with tales of gluttony on the part of business tycoons. To a dozen working-class individuals chosen for jury duty, it's hard to comprehend the high-flying world of an international chief executive, for whom the line between personal and professional life - and therefore personal and professional expenses - is sometimes blurred.

More here

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Saturday, March 10, 2007

Australia: Piffling sentence for violent rape

The victim had a knife held to her throat, was handcuffed, gagged, raped twice, choked until she thought she would die and robbed. Her attacker was a 22-year-old on “Ice” with 99 prior convictions. An appeal court judge described the crime as cruel, relentless, violent, humiliating and degrading. And the judge said the rapist’s original six and a half year minimum sentence was “manifestly inadequate”. So why wasn’t it increased?

This is another one of those cases that make you wonder whether the scales of justice are tipped in favour of the criminals.

The victim, a 52-year-old woman with a mild intellectual disability identified only as “Ms M”, was attacked as she returned from shopping to her room at a residential hotel in Melbourne.

Jason John Dinsley ambushed her at the door to her room, grabbed her around the neck, held a knide to her throat and forced her inside. She was handcuffed, had a wad of paper forced in mouth to keep her quiet, raped twice and then choked. The choking only stopped when she told Dinsley she would give him money. Dinsley then tied the woman’s hands and feet and took her bank card to an ATM, where he withdrew $20 to buy cigarettes.

The victim was so shattered by the experience she could no longer live independently in Victoria and moved to Darwin, where she had family support.

Dinsley pleaded guilty to seven counts, including rape, aggravated burglary, robbery and assault and unlawful imprisonment. The sentences on the seven counts totaled 19 years. The longest individual sentence was eight years for the most serious of two rape charges. The original judge, however, decided that the total sentence should be the eight years for rape, with only an extra year on top for the assault. All the rest would be served concurrently. He imposed a non-parole period of six and a half years.

Victoria’s DPP appealed against the sentence on the grounds it was manifestly inadequate. Victoria’s Appeal Court agreed. “In my opinion, the toal effective sentence was so manifestly inadequate that it gives rise top the inference that an error in principle occurred,” the appeal court judge said in a ruling on March 1.
“Whilst the sentences imposed for the individual counts can be accepted as being within the range for these offences, the orders for cumulation produced a total effective sentence which did not adequately reflect the gravity of the offences or the moral culpability of the offender.”

But under Australian law it’s not that easy to increase a sentence. Appeal courts have to take into account a form of double jeopardy, which prevents a defendant from effectively being sentenced twice for the same crime – once by the original judge and a second time by an appeal court. Crown appeals on the grounds of inadequate sentencing can only be granted in “rare and exceptional cases”.
“But for that principle, I would have allowed the appeal and re-sentenced the respondent (Dinsley) to a longer term of imprisonment,” the appeal court judge said.

I wonder whether it comes as any comfort to “Ms M” to know that there was nothing rare or exceptional about her traumatic ordeal.

Report here

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Friday, March 09, 2007

California: $320K settlement for man with lucky TV show alibi

He could have got a death sentence

A man who was cleared of murder when outtakes from the HBO comedy "Curb Your Enthusiasm" put him at Dodger Stadium when the crime occurred will get $320,000 in a settlement with the city. The Los Angeles City Council agreed Wednesday to settle the police misconduct lawsuit filed by Juan Catalan, who spent nearly five months in jail before footage from the show cemented his alibi.

Catalan, 28, was arrested for the May 2003 slaying of Martha Puebla, 16, outside her Sun Valley home. He told detectives he was innocent and was at a Dodgers game when the crime occurred.

His defense lawyer, Todd Melnik, went through footage of crowd shots from the televised game between the Dodgers and the Atlanta Braves, but did not find his client. Then he learned that the HBO comedy starring former "Seinfeld" co-creator Larry David had been shooting at the ballpark that day. "There he was in the outtakes," said Gary S. Casselman, the attorney handling Catalan's lawsuit. "He's glad it's over."

The scene, which ended up on the cutting room floor, showed Catalan with his 6-year-old daughter and two friends. The footage was time coded, confirming that Catalan was at the ballpark shortly before the time of the murder 20 miles away. Records of a cell phone call, made from Dodger Stadium, between Catalan and his girlfriend also helped persuade a judge to release him.

Someone else is now being prosecuted for the slaying, Casselman said. Catalan was not a fan of "Curb Your Enthusiasm" before his time in jail. "He is now," Casselman said.

Report here

Background here:

Police arrested Catalan in August, alleging he killed Martha Puebla, 16, in the San Fernando Valley on May 12, 2003, because she had testified against his brother in another case.

Catalan insisted he and his 6-year-old daughter were watching the Los Angeles Dodgers lose to the Atlanta Braves, 11-4, minutes before Puebla was killed about 20 miles north of the stadium.

He said he had ticket stubs from the game and testimony from his family as to his whereabouts the night Puebla was killed. But police still believed he was responsible, saying they had a witness who placed Catalan at the scene of the slaying. Catalan said he asked to take a lie detector test, but was refused.

More background here:

You know Dan, I've got to tell you, this guy spent five and a half months in jail. And the reason that this all went down is because there was one eyewitness at the murder scene who looked at Juan's picture in a lineup and said that's the guy. But Juan didn't really match the height, the weight or the skin color of the man that everybody else had identified there. So it was rather thin to begin with.

An interesting side note for those who care, when presented with this evidence, the District Attorney's office refused to dismiss the case, contending there was a few minute window in which the defendant could have rushed out of Dodger stadium, driven to the scene, and done murder (meaning he would have had to leave in the middle of the game moments after being fortuitously filmed at the stadium). When the judge found out that they wouldn't dismiss, she did it herself. But, the District Attorney's office still wanted to either execute or imprison this person for the rest of his life despite proof of his innocence.

No wonder he sued the b*stards!

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Thursday, March 08, 2007

Tennessee: The case of Ralph Dewayne Brock


Dewayne's 1982 conviction resulted from: testimony prosecutors knew to be perjured, suppression of crucial evidence, falsified evidence, and coached testimony. Ironically, the two actual murderers received shorter sentences upon confessing, while Dewayne -- who had nothing to do with the crime but had originally been accused because he had unwittingly purchased stolen items from the murderers (to supplement his salary, he often bought and traded at flea markets) - was sentenced to life because he refused to lie about having participated in the crime. The murderers (who testified that he had nothing to do with the crime) got out of prison years before the railroaded innocent -- who eventually served a full 21 years for his "crime". He was released in 2004 but there seems to have been no moves since to re-open his case and compensate him.

More details here. Excerpt:

His conviction comes as a result of Tennessee prosecutors using known perjured testimony; suppression of evidence of his innocence; falsification of evidence and a deal made with a witness in exchange for her testimony.

Two men eventually came forward and confessed to the murder. Both have made attempts to advise the trial court of Dewayne's innocence. By confessing these men were given shorter sentences and WERE RELEASED YEARS AGO. Dewayne is in possession of their affidavits which state that he was not at the scene of the crime and that he was not a participant in the victim's death.


The testimony and other evidence used to convict Dewayne was deemed as circumstantial by the prosecutors' themselves. In 1992, ten years after his arrest, he uncovered evidence retrieved from police files which revealed that two state witnesses had in fact committed perjury at trial, that state prosecutors committed perjury at his trial and that certain evidence had been falsified. Dewayne is in possession on all the documented evidence and prior inconsistent statements.

It should be noted that at no time during his trial, did anyone say that there were three men at the crime scene on the night of the murder. In fact, investigators only recovered two sets of fingerprints: those belonging to the two men that have confessed. Furthermore; Dewayne presented three alibi witnesses.

(And don't forget your ration of Wicked Thoughts for today)

Wednesday, March 07, 2007

The Scooter Libby verdict: The InJustice Department Strikes Again

There were two explanations for what Scooter Libby said: That he had a bad memory and that he deliberately lied. Why the jury did not give him the benefit of the doubt on that is rather mysterious but accounts of their deliberations suggest that their verdicts were motivated by a general anger at the machinations discussed in the course of the trial rather than by the actual question in front of them. The post below is taken from Dagney's Rant -- which see for links

As much as I'd like to see President Bush pardon Scooter Libby, after the shameful case brought against him by Fitzgerald, I'd prefer to see Scooter's challenge to the verdict be a success. He needs his reputation back...especially since he did nothing wrong to cause this travesty to be filed against him! I am so angry over this horrid miscarriage of justice that my blood pressure is soaring! Fitzgerald could not accuse Scooter of "outing" a covert CIA agent, because she clearly was NOT covert. Fitzgerald would have been out of a job had he not found someone to prosecute for SOMETHING, and Scooter's lack of photographic memory made him the likely candidate to insure his continued salary! Disgusting! He had NO MANDATE to prosecute memory loss, just outers of whats-her-face. (She's already had too much coverage for me to give her anymore....grrrr!)

The InJustice Dept. lets Sandy (Documents-in-his-pants) Berger-Burglar off with a slap on the wrist for stealing documents from the National Archives. They have filed no action against William Jefferson (D-LA) who had $90,000 stashed in his freezer. Getting a clue why I've renamed our so-called Justice Department?

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Tuesday, March 06, 2007

New York man officially cleared of murder charges

Another jailhouse snitch, a crooked DA and crazy forensic "science" at work

Charges were officially dropped Monday against a man who spent 15 years in jail for a murder he didn't commit. Investigators uncovered no new information to use against Roy Brown and the DNA evidence used to win his freedom "trumped" the bite marks and statement from a jailhouse informant used to convict him, Cayuga County District Attorney James Vargason said during a brief hearing.

"The question is not could he be retried, but should he be retried, and the simple answer is he should not," Vargason told Judge Mark Fandrich. While Vargason said he couldn't say with absolute certainty that Brown was innocent, he acknowledged the evidence was "powerful" that someone else killed Sabina Kulakowski in 1991. In a lowered voice, Vargason expressed his "sincerest regrets" to Brown, calling his case a triple tragedy in which a woman was murdered, an innocent man wrongly jailed, and the real killer never brought to justice. "The worst nightmare for a prosecutor is not getting it right. No one should have to go to jail for a crime they didn't commit," said Vargason, who prosecuted Brown after inheriting his case from his predecessor.

"I hope you can put your life back together," Fandrich said, dismissing the indictment.

Meanwhile, Sheriff David Gould said the investigation had been reopened into Kulakowski's murder.

Brown, 46, was convicted in 1992 of stabbing and strangling Kulakowski, a social worker. He was found guilty mostly on the strength of bite marks on her nude body that a prosecution witness linked to Brown, even though they showed indentations from six upper teeth while Brown had only four.

After his appeals were rejected, Brown filed a Freedom of Information request four years ago and paid $28.50 for copies of all the documents in his case. He found four affidavits relating to Barry Bench, the brother of Kulakowski's ex-boyfriend. Neither Brown nor his lawyers had previously seen the affidavits, which convinced Brown that Bench was the killer. Brown sent a letter from prison to Bench in 2003, accusing him of the murder. Several days later, Bench committed suicide by stepping in front of a train.

Vargason ordered Bench's body exhumed for DNA testing, which matched the DNA the red T-shirt investigators believe Kulakowski was wearing the night she was killed in 1991.

At a Jan. 23 hearing, Fandrich released Brown from prison based on the new DNA evidence. However, the judge allowed the indictment to stand until Vargason's office decided whether it wanted to retry Brown. Vargason admitted to Fandrich that evidence available in 1991 would likely have exonerated Brown but it was never turned over to his defense attorneys.

That evidence involved an examination of the bite marks by Lowell Levine, a nationally recognized forensic dental expert, who said the marks were not made by Brown. However, former District Attorney Paul Carbonaro told Levine not to make a report of his findings, and instead retained a local dentist to testify at the trial.

"This was a tragedy, yes, but one that should have, and could have been avoided," said Nina Morrison, staff attorney for the Innocence Project, which aided Brown in his quest for freedom. Peter Neufield, co-director of Innocence Project, told Fandrich his organization is pushing for a state commission to examine how such a miscarriage of justice could occur to Brown and others. Brown is the eighth person in New York state proven innocent through DNA testing in just 13 months. "We would do a great disservice to Roy ... if we do not learn from this case," Neufield said.

A New York Innocence Commission would examine how wrongful convictions occur and make recommendations on how to prevent them. Neufield said Brown's case illustrated three areas of focus for such a commission _ the reliance on unvalidated scientific analysis, the use of jailhouse informants and prosecutorial misconduct.

Brown, wearing a T-shirt that read "Not Guilty," spoke with reporters after the hearing, saying he was taking his life day to day. He said he was continuing to receive treatment for an ailing liver and is awaiting a transplant. Last week, he spent three days in the hospital after passing out, he said. Brown said he would be seeking compensation for being wrongfully convicted. "To put it mildly, I was framed," Brown said. "Somebody has to look into how something like this could happen." Several film companies are interested in Brown's story, said Katy Karlovitz, one of Brown's trial attorneys.

Report here

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