Tuesday, July 31, 2007

Help Jesse Friedman Overturn his Wrongful Conviction

There was great news in this morning's inbox from Elisabeth Friedman, wife of Jesse Friedman. After running into wall after brick wall in his attempt to have his conviction overturned, Jesse's finally caught a break: A federal judge has granted his habeas corpus petition.

Jesse was one of numerous innocent victims of the wave of mass-child-sex-abuse cases that swept the country in the l980s and l990s. Convicted as a teenager of molesting boys who took computer classes from his father, who was also convicted, he served 13 years in prison for a crime that looks more and more like one that never happened. ( See the celebrated documentary Capturing the Friedmans for more on the case.)

The ingredients common to sex-panic cases were all present: an over-zealous police and prosecutor, a hostile community, frenzied media, dubious therapeutic practices like recovered memory and hypnosis, immense pressure put on kids to say what the prosecution wanted to hear, evidence withheld from the defense, and so on. In the light of what we now know about false confessions, which minors are particularly likely to make, Jesse's plea bargain stands as yet more evidence that too often innocent people can be made to look guilty.

Our system of justice runs on money -- shouldn't be so, but that's the way it is. After almost 20 years entangled in the case, the Friedman family is reaching out for help. If you can contribute even $5 to Jesse's defense fund, you can help him take his fight to prove his innocence to the next level. You can make a donation through Paypal at www.FriedmanDefenseFund.org. Or you can write a check to NCRJ with Jesse Friedman on the memo line and mail it to National Center for Reason and Justice P.O. Box 230414 Boston MA 02123-0414.

Please help get the word out -- forward this e mail to your friends, post it on your blog. This case is about one person railroaded by the justice system, but it's also about all of us. Our system. Our justice.

Elisabeth's letter is long, but I'm quoting it in full and hope you'll read the whole thing. It gives a clear account of what's at stake in the upcoming phase of the case, and is also quite moving.

Dear Friends and Supporters,

After 20 years of fighting for justice, we finally have our first significant victory. Jesse has been granted a hearing in Federal Court. Finally we have the opportunity to call witnesses, depose those involved in the prosecution, and possibly have Jesse's conviction overturned. The legal issues are somewhat complicated, but I'll try to explain:

In the Federal appeal we raised three issues each relating to the withholding of information which should have been provided to Jesse prior to trial. These were Constitutional violations and had we known of any of this information at the time, Jesse would have most certainly have taken his case to trial rather than pleading guilty.

The following are three issues raised.

1) More than 100 children were present during the computer classes (at the same time as the alleged abuse was going on) who told the police, I was there and nothing happened. This was never disclosed to the defense.

2) As our lawyers put it: "There was a crucible of suggestion, intimidation, and falsification on the part of the police. The prosecution failed to disclose exculpatory evidence showing that the police utilized aggressive suggestive and coercive interrogation techniques they knew, or should have known, would yield false allegations."

3) The use of hypnosis during therapeutic sessions resulted in a situation of potential "implanted memory" or "repressed memory syndrome" and should have been disclosed to the defense at the time.

In her decision the federal judge ruled on the first two issues that the statute of limitations had expired and denied our petition. It is worthy to note that she did NOT rule our issues were meritless, merely that they were time-barred.

However, on the third issue, relating to hypnosis, Judge Seybert ordered a hearing to determine to what extent hypnosis was used, and how gross a constitutional violation this newly discovered evidence proves itself to be. Our lawyer told us the chance of being granted a hearing from a habeas corpus was about as probable as walking into the corner deli and winning a million dollars on a scratch off lottery ticket.

In our hearts we never thought it would be possible for Jesse to have a fair day in court. Nonetheless, we did everything possible to prove Jesse's innocence. He never hurt those children. The lie perpetrated on his life was also perpetrated on the lives of those children who were "accusers." The relentless questioning by the police, and the therapists who used hypnosis on children as a means of eliciting testimony, destroyed the lives of the children involved. Jesse has been fighting not only to prove his innocence, but also to try and bring healing to those who have grown up believing they were sexually abused, when indeed they never were.

As a result of Jesse's conviction we live under the oppression and restrictions of Megan's Law. There is no way to explain how dehumanizing and difficult this is. One example is a fear of reprisal from law enforcement, as well as the community, if we were to become parents. We live our life, always with a cloud of fear. This new chance for justice not only gives us an opportunity to shed a light on the truth, it also gives us the small and tender hope that we may someday live normal, simple lives.

Before I married Jesse, I knew our lives would be difficult, but I married him anyway. Even though it meant giving up on some things I hold so completely dear (like my hopes of being a mother). I love him that much. I love him more than I ever thought I could love at all.

We are overjoyed with having won a hearing, but we are also in shock: happy, terrified, wonderful immense shock.

I think perhaps one of the largest concerns is money, and the lack there of. Jesse and I keep thinking of Michael Moore's movie "Sicko" with the story of the guy who looses his fingers on a table saw. The doctors tell him, "We can save the middle finger for $60,000 or the ring finger $12,000." That is how we feel. I don't know if people realize that justice goes for a high price, and that indeed a lack of money often means a lack of justice.

As of now, where we stand, there is pretty much nothing left to pay the lawyers. The money Jesse got from his father's life insurance claim has long since evaporated in legal bills. This appeal was only possible because of a generous team of people donating time, money, support, and effort, most specifically Andrew Jarecki (the director of Capturing the Friedmans) without whom there would have been no movie, and no appeal. It would no longer be fair to expect so much more from Andrew for he has already given so much and continues to be a wonderful friend.

Our lawyer, Ron Kuby, knew of our meager funding. While Mr. Kuby never agreed to working pro bono, he did agree to do what he could with what was available, and he has done some outstanding work. This past March we got what we thought would be the last bill from Ron and there was no money to pay him. Out of the goodness of his heart he agreed to keep working on the case in good faith, agreeing to wait and see, knowing I would do what I could to eventually pay him for all his work.

Because of this wonderful turn of events this case now stands to be significantly more expensive than we ever had funding for. It is no longer Mr. Kuby working late into the night on his laptop with a pile of books. It's now about hiring private investigators; tracking down witnesses; finding experts on hypnosis; and full days in court deposing witnesses.

The thought of having to ask for money to help fund continue fighting this case makes us feel terrible. It's just not the kind of thing that feels good to anyone. Especially knowing there were those who have already donated to the defense fund. At this point, we just don't know what else to do. There is really not much that I can say, just that, if it falls on your heart to give then please help, even if it's only $5. If a thousand people could give $5 that can make a significant difference. I also ask that if you can pray, please pray that we will be able to go into this hearing with everything we need to see justice prevail.

Donations made to the National Center for Reason and Justice, who sponsor Jesse's case, are tax-deductible (as they are a 501(c)(3) organization). The NCRJ is an advocacy and issue-awareness group dedicated to helping those much like Jesse. Donations can be made to the NCRJ, allocated for Jesse Friedman, and mailed to:

National Center for Reason and Justice P.O. Box 230414 Boston MA 02123-0414

Donations may also be made on-line via the Friedman Defense Fund. There is information and a link for Pay-Pal at http://www.FriedmanDefenseFund.org. All that money will go to pay legal bills directly.

My mother once told me that people bow down to God because the weight of the world crushes them, not because they are particularly submissive. That is how it has always been with me. When my world gets too heavy I bow down, because I can't always carry my heart when it gets so heavy. Jesse on the other hand has always had a mind-boggling reservoir of strength.

He carries the immense weight of these injustices with his head up, heart strong, one foot in front of the other, and none of this has been able to bring him down. This past week I have seen him bow down, not because he was crushed, but because he was in awe. He is in awe of seeing even just a chance of justice in his life, and that is significant because justice and freedom are things most of us take for granted.

Keep your eyes on the media, and check-in with Jesse's website for updates and breakthroughs in the case.
Thank you so much for your support. Your kind letters have been a wonderful influence on our lives.

Elisabeth Friedman

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

Monday, July 30, 2007

Australia: Mallard Inquiry opens this week

AFTER 12 years in jail, a mental breakdown and numerous appeals, the public hearings into the wrongful conviction of Andrew Mallard begin this week. In December 2005, when the Corruption and Crime Commission first announced the inquiry that begins on Tuesday, Andrew Mallard was still a prisoner in Casuarina Prision. Surrounded by murderers, rapists and thieves, his days were filled with drudgery and depression. A few months later, almost 12 years of incarceration ended -- but he was still the "prime suspect'' in the 1994 murder of Pamela Lawrence.

Just a few months after that, in April 2006, a police cold-case review found the palm-print of convicted murderer Simon Rochford among the old evidence. Within weeks Rochford was dead. A suicide note was found in his Albany jail cell.

Today, Mr Mallard is a full-time student in a university art course, accepted by the WA community as an innocent man. He has come a long way from the homeless 31-year-old who sat without a lawyer in a police interview room in 1994. "I was mentally vulnerable at the time, but I wasn't the psycho the police and prosecution made me out to be,'' he said this week. "I was suffering a mental breakdown at the time, but this is 13 years later: I'm a different person to what I was then. "I've matured and I'm well, though I certainly am emotionally scarred and the wounds are still fresh.''

A full-time student with a widening group of friends, Mr Mallard has accepted support and counselling as he edges closer to a "normal'' existence. He is still baffled by the extraordinary events that have dominated his adult life. And while he is philosophical about the way a terrible experience has taught him valuable lessons, he remains angry at the police and prosecutors involved in his case. He believes the public will be horrified by the details of how he was investigated, arrested, tried and kept in jail for killing a woman he'd never met.

"I still have a shadow of scepticism that hangs over me because of my experiences with the WA justice system, so I'm just hoping that the CCC does not let me down and really exposes everything that happened,'' he said. "I'd probably be more confident if it was totally outside WA, like the High Court was in Canberra. "I'm encouraged that the Attorney-General, Jim McGinty, has done the right thing by getting the commissioner (former judge John Dunford QC) and senior counsel (Jeremy Gormly SC) from New South Wales.''

On Tuesday morning, Mr Mallard plans to be working on his art, trying to block out the stresses of the CCC inquiry. Meanwhile, the eyes of Australia's legal community will be focused on a small, quiet hearing room in Perth. Mr Gormly SC will deliver his long-awaited opening address, outlining the scope of the hearings. The case is a long and complex one but the basic question is quite simple: Did an innocent man spend more than a decade in jail purely by mistake? Or was there unethical -- or even illegal -- conduct involved?

Police Commissioner Karl O'Callaghan and Director of Public Prosecutions Robert Cock QC have apologised to Mr Mallard, but maintain that he was simply the victim of human error and unfortunate circumstances. Mr O'Callaghan, who suspended the five investigating officers during the cold-case review, but later reinstated them, said he had seen no evidence of misconduct. And Mr Cock has said that the non-disclosure of evidence during the trial by his trusted deputy, Ken Bates, was an oversight. The DPP from that time, Supreme Court judge John McKechnie, has said he was unaware of the undisclosed evidence.

South Australian law professor Robert Moles, who has written several books on miscarriages of justice, said people around Australia would take great interest in the CCC hearings. "It's a case that has gripped the imagination of people around the country who saw what the High Court had to say in 2005,'' he said. "Imagine that three West Australian judges said nothing was wrong with the case and then five High Court judges said there was nothing right with it. "Thankfully, you have the CCC and let's hope they get stuck into this in the same way they've gotten stuck into some other matters recently. "We will be looking at this and hoping you get to the bottom of it, and then we might just learn about what happens in the rest of the country, too.''

Mr Mallard's sister Jacqui, who championed his case for more than a decade, hoped the inquiry would be the last chapter in her family's ordeal. "There is no doubt in our minds that people in public service have behaved badly in regard to the investigation and conviction of Andrew,'' she said. "Those responsible must face the consequences of their actions and , the police and prosecutors. We are expecting that the CCC inquiry will show who, what and how it came to be that Andrew came to be treated so unjustly. "We hope the CCC does not disappoint us with these expectations.''

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Sunday, July 29, 2007

English-Speaking Defendant on Trial for Raping Seven-Year-Old Gets Free Pass Because Court Could Not Find Interpreter in His Obscure Language

Post below recycled from Patterico

This is one of the most outrageous decisions I have ever heard about — on several levels.

Charges against a man accused of raping and repeatedly molesting a 7-year-old girl have been dropped because the court took too long to find an interpreter fluent in his native West African language.

Montgomery County Circuit Judge Katherine D. Savage dismissed the nearly three-year-old case against Mahamu Kanneh last week, saying the delays had violated the Liberian immigrant’s right to a speedy trial.

The evidence sounds strong, as multiple “witnesses told police he assaulted the girl multiple times.”

No matter. The courts couldn’t find an interpreter to translate proceedings into “Vai, a tribal language that linguists estimate is spoken by about 100,000 people mostly in Liberia and Sierra Leone.”

Minor point: he probably didn’t need the interpreter anyway.

Prosecutors pointed out that Kanneh attended high school and community college in Montgomery and spoke to detectives in English.

A court-appointed psychiatrist recommended that an interpreter be appointed and judges who handled subsequent hearings heeded that advice.

So the courts didn’t even try to find a qualified interpreter? No they tried. Lord, how they tried:

But officials could not find a competent interpreter of Vai who would stay.

The first interpreter stormed out of the courtroom in tears because she found the facts of the case disturbing.

Advantage: defendant.

A second interpreter was rejected for faulty work. A third Vai interpreter was located, but at the last minute, that person had to tend to a family emergency.

In recent weeks court officials had found a suitable interpreter, but Savage ruled that too much time had already passed.

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Saturday, July 28, 2007

Border agent says China ordered his prosecution

Now seeks $25 million from government after acquittal on excessive force charge

A Customs and Border Protection agent who was acquitted of a charge of using excessive force during a 2004 arrest of a Chinese national on suspicion of drug smuggling is suing the U.S. Department of Homeland Security for $25 million. And in a companion lawsuit, Robert Rhodes is seeking another $25 million from three Immigration and Customs Enforcement agents with the Office of Professional Responsibility.

He says the agents disregarded their oaths by pursuing a politically motivated prosecution against him to appease their superiors, who allegedly were seeking to do what communist China wanted. "I was involved in a political prosecution that our government began at the demand of the government of communist China," Rhodes told WND. "The prosecution was promised to China by then-Secretary of State Colin Powell and then-Secretary of the Department of Homeland Security Tom Ridge."

His lawyer, Steven Cohen, concurs. "My client's prosecution was ordered by the Bush administration to appease the Chinese government," Cohen told WND.

WND requests for comment from the U.S. Department of Justice and U.S. Customs and Border Protection in the Department of Homeland Security did not produce a response from either agency. But it's not the only time there have been indications that U.S. prosecutors have agreed to file a case against a border agent at the direction of a foreign government. WND has reported that Border Patrol agents Ignacio Ramos and Jose Compean were prosecuted only after the Mexican Consulate intervened and presented Osvaldo Aldrete-Davila, the Mexican national drug smuggler who had illegally entered the U.S. in the Ramos-Compean incident, and demanded the Border Patrol agents who shot Davila be prosecuted.

WND also reported Rocksprings, Texas, Deputy Sheriff Gilmer Hernandez was only prosecuted at the insistence of the Mexican Consulate. WND has printed copies of a series of letters the Mexican Consulate wrote demanding that the U.S. government protect the civil rights of the Mexican national illegal immigrants who were in the fleeing van that Hernandez shot at, after the van allegedly tried to run Hernandez over in the process of fleeing from a routine traffic stop.

In Rhodes' case, the record shows that Powell and Ridge both apologized to China over the incident and promised to investigate the border agents involved. "By filing this lawsuit," Andy Ramirez, chairman of the Friends of the Border Patrol, a national advocacy group for federal border patrol agencies, explained to WND, "Robert Rhodes is standing up to the government and saying you cannot continue doing to my fellow ... officers what you did to me."

The July 21, 2004, incident that led to Rhodes' prosecution involved Zhao Yan, a Chinese national woman who was arrested by Rhodes at the Rainbow Bridge in the Port of Buffalo, New York. Zhao Yan was with two other female suspects who fled when Rhodes and 13 other border agents attempted to arrest them. Rhodes grabbed Zhao Yan, who proceeded to punch, kick, and scratch Rhodes as he attempted to subdue her. Even though Rhodes was armed with a duty-issued Glock 9 mm weapon, he chose to use non-lethal pepper spray to subdue Zhao Yan. But within a day of the Rainbow Bridge incident, Rhodes was arrested and charged with violating Zhao Yan's civil rights by having used excessive force in arresting her.

Other border officers who had assisted Rhodes in the arrest gave inconsistent statements to investigators, claiming that Rhodes had forcefully grabbed Zhao Yan by the hair and smashed her head against the ground. At his trial in August and September 2005, the jury acquitted Rhodes of all charges, after deliberating less than three hours.

Rhodes' allegations he was prosecuted at the insistence of the Chinese government are backed by postings yet archived on Chinese Consulate websites. The Consulate-General of the People's Republic of China in Houston, Texas, continues to document on their website that Powell wrote a letter to the Chinese government promising that the U.S. government would "thoroughly investigate the beating case" of Zhao Yan. The Chinese Consulate in Houston argued that Zhao Yan was "a business woman from China's northern coastal city of Tianjin," who was on her first U.S. business trip when "she was attacked at Niagara Falls near the U.S.-Canadian border on July 21 by Rhodes and other officers of U.S. Customs and Border Protection." The Consulate went on to claim that six days after Zhao Yan was "brutally attacked," she "was still suffering from a bad headache, swollen eyes and mental trauma. She also had a broken tooth and severe back pains which forced her to ride in a wheelchair."

But nowhere does the Chinese Consulate in Houston say she was suspected of drug smuggling. Instead, the Consulate emphasized that Powell apologized because the U.S. is an "open society" that welcomes visitors. "Our goal is to ensure that visitors from around the world have a safe and enjoyable stay in the United States," the Consulate quoted Powell as saying. "The United States will continue to work that incidents such as this one do not occur again."

The Consulate-General of the People's Republic of China in New York still posts the apology from Ridge, who is quoted as expressing his "great regret" over "the beating of Chinese businesswoman Zhao Yan by officers of the U.S. Customs and Border Protection last week." Ridge is further quoted as saying, "We have communicated to the Chinese Government that the U.S. customs officer was arrested by Customs and Border Patrol police and his case referred for criminal prosecution."

Even though he was acquitted at his trial, Rhodes paid a huge price for being indicted. "Since the incident," Rhodes told WND, "I've lost my house, I've lost my pension. I have tried to find a job and I always get turned down. I feel like I have been black-balled by the government. I am on food stamps and public assistance. Right now, I have no health care insurance." "Many Border Patrol agents tell us they're truly concerned about what will happen to them if they get into a struggle with someone trying to enter the country illegally," said Cohen. "How many terrorists and criminals will enter our country because our government won't support its own border enforcement officers?"

A complicating factor is Rhodes' admitted homosexuality. He earlier had complained to the Equal Employment Opportunity that Customs and Border Protection harassed him for minor offenses.

Cohen contended that every aspect of Rhodes' trial was political. "Every day," he told WND, "the entire front row of the courtroom would be taken up by Chinese government officials and outside the courtroom Asian students picketed against Rhodes." Cohen told WND that for two years after his trial Rhodes pursued unsuccessfully administrative paths to get his job back. "Robert was suspended without pay immediately, right when the incident occurred," Cohen told WND, "But he wasn't formally terminated until a few months ago."

He said Rhodes legal fees including lawyers, expert witnesses, and investigators amounted to more than $200,000. "The vast majority of the legal fees have gone unpaid," Cohen told WND. "Rhodes was tremendously outgunned by the government. The government brought a staggering amount of resources to the job, not of searching for the truth, but making sure Rhodes was convicted, regardless what it cost."

Michael Battle was the U.S. attorney whose office prosecuted Rhodes. In the controversy surrounding Attorney General Alberto Gonzales, Battle resigned his position as the director of the executive office of U.S. Attorneys. Cohen said Rhodes' lawsuit against DHS alleges that the government investigators knowingly disregarded pertinent information and violated standard investigation procedures to pursue a politically motivated prosecution.

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Friday, July 27, 2007

Judge slams 'absurd' FBI, orders huge payout

It will probably take $100 million to get arrogant and irresponsible government employees to think

A federal judge has ordered the US government to pay more than $US101 million in the case of four men who spent decades in prison for a 1965 murder they did not commit after the FBI withheld evidence of their innocence. The judge called the government's defence that the FBI had no duty to get involved because it was a state case "absurd".

Peter Limone, Joseph Salvati and the families of the two other men who died in prison had sued the federal government for malicious prosecution. They argued Boston FBI agents knew mob hitman Joseph "The Animal" Barboza lied when he named them as killers in the 1965 death of Edward Deegan. They said Barboza was protecting a fellow FBI informant, Vincent "Jimmy" Flemmi, who was involved.

The government argued that federal authorities had no duty to share information with state officials who prosecuted Limone, Salvati, Henry Tameleo and Louis Greco. Federal authorities cannot be held responsible for the results of a state prosecution, a Justice Department lawyer argued.

The men's lawyers said the four were treated as "acceptable collateral damage" in the FBI's priority at the time - taking down the Mafia through the use of criminal informants. "It took 30 years to uncover this injustice, and the government's position is, in a word, absurd," US District Judge Nancy Gertner said today. "No lost liberty is dispensable," she told the packed courtroom. "We have fought wars over this principle. We are still fighting these wars."

Salvati and Limone were exonerated in 2001 after FBI memos dating back to the Deegan case surfaced, showing the men had been framed by Barboza. The memos were made public during a Justice Department task force probe of the FBI's relationship with gangsters and FBI informants James "Whitey" Bulger and Stephen "The Rifleman" Flemmi.

"Do I want the money? Yes, I want my children, my grandchildren to have things I didn't have, but nothing can compensate for what they've done," said Salvati, 75.

Gertner awarded $US26 million to Limone, $US29 million to Salvati, $US13 million to Tameleo's estate and $US28 million to Greco's estate. The wives of Limone and Salvati and the estate of Tameleo's deceased wife each received slightly more than $US1 million. The men's 10 children were each awarded $US250,000.

Justice Department lawyer Bridget Bailey Lipscomb declined immediate comment on the ruling. The lawyers for the four wrongfully convicted men had not asked for a specific amount in damages, but in court documents they cited other wrongful conviction cases in which $US1 million was awarded for every year of imprisonment.

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Thursday, July 26, 2007


That sure gives you a lot of confidence in UCLA research

A UCLA researcher tampered with data in a study of drug users and stole more than $5,000 in cash intended for study participants, a federal oversight office said. James David Lieber, staff research associate at the Semel Institute for Neurosciences and Human Behavior, "knowingly and intentionally falsified and fabricated" interviews, urine samples and urine sample records, according to an oversight review by the Office of Research Integrity at the Department of Health and Human Services.

The department's conclusions were disclosed in a notice published in Monday's Federal Register. "This is something we're quite unhappy about, obviously," Christine Grella, the UCLA research psychologist who led the study, told the Los Angeles Times. Attempts to contact Lieber were unsuccessful.

Grella said Lieber was falsifying the information over a six-month period in 2005. UCLA convened a panel to review his work after allegations surfaced the following year, said Roberto Peccei, vice chancellor of research. Lieber was fired and researchers removed the compromised data from the study, Peccei said.

The study looked at what happened to female opiate addicts who had visited methadone clinics in Central and Southern California counties in the late 1970s, and received funding from the National Institutes of Health. Lieber was assigned to interview 53 people, for which he fabricated interviews and falsified the urine samples for 20 of the participants, the notice said. He also pocketed $5,180 intended to cover stipends and travel expenses for subjects in the study, the notice said.

The Office of Research Integrity has barred Lieber for three years from participating in any federal government contracts or serving in any advisory capacity to the U.S. Public Health Service.

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Tuesday, July 24, 2007

Virginia: Study of wrongful convictions

A groundbreaking study of the first 200 people cleared by DNA testing in the U.S. identifies flaws that led to the wrongful convictions and to the failures of appeals courts to detect and remedy them. The author, Brandon L. Garrett, a professor at the University of Virginia School of Law, says the first empirical examination of how such cases were handled from start to finish will be published in the Columbia Law Review in January. Garrett is a former associate of lawyers Peter Neufeld and Barry Scheck, founders of the Innocence Project that helped many of the 205 people cleared by DNA testing since 1989.

DNA testing not only revolutionized law enforcement when it began helping to solve crimes two decades ago, but it also has demonstrated the fallibility of the criminal-justice system by scientifically proving the innocence of prisoners, some of whom were sentenced to death. Though the number of such exonerations is relatively small, most convictions do not involve biological evidence and cannot be overturned with DNA.

Garrett said the DNA exonerations provide an unprecedented opportunity to conduct analyses on how things can go wrong despite the safeguards built into the legal system to prevent and then correct such errors. Because the standards and rules are so unforgiving in appeals, many wrongfully convicted individuals do not even challenge the accuracy of flawed evidence, be it false or mistaken, he said.

Appeals court judges have a tough time ruling on the validity of evidence years later without thorough records, Garrett said yesterday. He said reforms such as requiring the videotaping of police interrogations [This already exists in some jurisdictions. A disgrace that it is not nationwide] could greatly aid the appeals courts or prevent a wrongful conviction from happening.

Ten men convicted of rape or murder have been cleared by DNA in Virginia, the fourth-highest total in the country. A long-term DNA effort involving testing of old evidence -- primarily in rape cases -- is under way in Virginia and is expected to clear even more.

In response to the exonerations, Virginia created exceptions to its "21-day-rule" for DNA testing and for non-DNA evidence in very narrow circumstances. The 21-day rule does not permit evidence of innocence discovered more than 21 days after sentencing to be used in a state court. The state's exception for non-DNA evidence, called a "writ of actual innocence," has been in effect for more than three years and has not resulted in an exoneration.

Of the 200 cases studied by Garrett, 141 were convicted of rape, 44 of rape-murders, 12 of murders and three of other crimes. Fourteen were convicted of capital murder, including seven who falsely confessed and three who were mentally retarded. Eight of the 200 pleaded guilty. In 70 of the cases, DNA testing implicated the real criminal.

The wrongful convictions were the result of incorrect eyewitness identification in 79 percent of the cases, forensic evidence in 55 percent, informants or snitches in 18 percent, and false confessions in 16 percent. Of the 133 who appealed convictions before DNA testing and received a written opinion, one-third of the time the judges ruled that while constitutional errors were found in their cases, the errors were "harmless due to outweighing evidence of guilt." In 9 percent of the cases, the rulings said there was overwhelming evidence of guilt.

While appeals courts sometimes excuse constitutional errors, the courts do not provide wrongfully convicted people a way to claim innocence. Garrett said there is no federal constitutional claim of innocence that can be filed, and states do not have effective means of doing so.

Twelve of the wrongfully convicted whose convictions were reversed on appeal were convicted in a retrial before DNA freed them.

Garrett's suggested reforms include adopting more dependable eyewitness identification procedures nationwide, videotaping identifications and interrogations, evaluating the use of jailhouse informants, improving or establishing oversight of crime labs, and giving defendants access to independent forensic experts.

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Monday, July 23, 2007

Black child-rapist not prosecuted in Australia

The underlying assumption would seem to be that indigenous blacks are sub-human

AN 11-year-old boy forced two pre-school-aged girls to have sex with him, infected them with sexually transmitted diseases, but will not be prosecuted by Western Australian authorities. Police yesterday confirmed that criminal charges would not be laid against the boy from Balgo, a troubled indigenous community in the northeastern reaches of the Great Sandy Desert 100km from the Northern Territory border, despite his being above the age of criminal responsibility under state law. Although the incident is part of a continuing investigation, senior police have decided to treat the issue as a health matter, not a criminal one.

The Australian also understands the offender was never removed from the remote community, but was warned by a court not to go near his victims, believed to be aged five and six, and several other vulnerable youngsters. Balgo's Palyalatju Maparnpa Health Committee chief executive Christopher Cresp said the realities of outback life and the disjointed inter-agency response to such issues meant the boy could remain a danger to young girls in the area. "If you're asking me if there are workable, practical steps in place to make sure this boy and others like him don't do this again, I must honestly say no," Mr Cresp said.

Nineteen Aboriginal men and juveniles have been charged with 39 child sex offences in just two weeks as police move methodically across the remote Kimberley region of Western Australia in a major police blitz against rampant abuse in Aboriginal communities. In February, another 15 men from the remote Kalumburu community, in the far north of the state, were charged with 103 offences.

As public concern deepened, the federal Government offered to replicate for Western Australia the package of support it had imposed on the Northern Territory, including army support, but the offer was flatly rejected by the Carpenter Government. Acting Premier Eric Ripper said last week he wanted financial support, federal police and Medicare-funded doctors, but not the army.

The revelation about the 11-year-old Balgo boy highlights the difficulties police, health workers and child protection officers face trying to uncover the extent of child sex abuse in communities such as Halls Creek and Kalumburu. Aboriginal children are sexually active at an early age and detectives were trying to separate clear criminal conduct from consensual sexual activity among minors to determine which cases could be successfully prosecuted.

Kimberley Inspector Paul LaSpina was reluctant to discuss the Balgo matter, but confirmed the investigation was continuing. He said senior police had the discretion to prosecute and although the boy was older than 10 and criminally responsible under law, those who had examined the case believed it would be better handled as a health issue and it was in the public interest to do so. He refused to elaborate.

The Australian understands the incident happened late last year. Detective Tom Mills, who is heading the Halls Creek investigation, said there were often mitigating circumstances that were not apparent when such a decision was made.

Mr Cresp said court orders meant nothing unless they were enforced. "Out here, quite often that responsibility rests with the family of the offender, and I can say with some authority that many families are in no position to enforce these orders," he said. "And to warn someone of that age that they are not to go near someone else in a community this size is a nonsense. Many kids just don't see any problem with this sort of sexual behaviour." Inter-agency and government responses to many issues facing remote communities were achieving little, Mr Cresp said. This would affect the boy's rehabilitation. "Apart from the obvious question of why someone so young had an STD to pass on in the first place, what happens when he goes off with his family to another town and doesn't finish his treatment?" he said. "It's carried on into adolescence and the problem as a whole just never goes away."

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Sunday, July 22, 2007

How lucky can you get? Man exonerated because the real villain confessed

Not quite as lucky as Barry Mannix, though

The Ontario government is negotiating a wrongful conviction settlement with a man sent to prison for a rape that was perpetrated by notorious sex killer Paul Bernardo. The apparent wrongful conviction came to the government's attention after Bernardo, serving a life sentence for the slayings of two Ontario schoolgirls, told government lawyers and police almost two years ago about several sexual assaults he had not been charged with.

Bernardo provided investigators with enough specific details about some attacks for police to identify the victims. When they tracked one rape in Toronto -- expecting to find an unsolved case -- they instead learned that another man had already been arrested, charged and convicted for it after pleading guilty in court, according to several sources familiar with the case. He was released from prison after serving his sentence.

The account of the rape provided by Bernardo, which occurred in the late 1980s and was prosecuted soon after, was believable because of his intimate knowledge of the attack. The government is now seeking to rectify the situation. "The matter is under review," said Howard Leibovich, a senior Crown prosecutor familiar with the case.

Robert Nuttall, the Crown attorney in Scarborough who prosecuted the case, said members of the Toronto Police Service's Sexual Assault Squad recently interviewed him about the matter but he has little memory of the original case. "I gave them the best and most accurate recollection I could." "There was a case to be prosecuted, I prosecuted it and if the fellow decided to plead guilty, really, that's coming from him. What his motivation was, God only knows," said Mr. Nuttall, who is now a Toronto defence lawyer. "Nobody likes to see an innocent man convicted."

Tony Bryant, Bernardo's lawyer, confirmed his client worked with police on the case. "He was able to describe the event. He was able to give specifics and they were able to track it down. The Crown has identified the person and were taking some steps to fix it as best they can," Mr. Bryant said. "He was found guilty and sentenced for a crime that he did not commit," he said.

It is a mystery why the man, who has not been identified, pleaded guilty to the crime if he was innocent. The plea came in the midst of his trial on the advice of his lawyer after hearing some of the evidence against him, sources said. It is not known what evidence led to his arrest.

In October, 2005, Bernardo confessed to several attacks he said he had committed two decades earlier. Toronto police assigned detectives in its Sexual Assault Squad to work with officers from the original "Scarborough Rapist" file in the 1980s to investigate Bernardo's claims. Four months later, Toronto police said no new charges would be laid against Bernardo. At the time, Deputy Chief Tony Warr said the cases included a number of assaults the force was aware of, but for which the victims did not wish to proceed with an investigation. In others, not enough information was provided by Bernardo to launch an investigation; still others may have gone unreported to police, he said at the time.

What was not addressed was the possibility of someone else having been convicted for any of the assaults that Bernardo claimed to have committed. Deputy Chief Warr could not be reached yesterday.

Accepting Bernardo's information comes with some baggage. Bernardo was interviewed just last month by police and Crown attorneys working on the appeal of Robert Baltovich, 41, who was convicted in 1992 of murdering his girlfriend, Elizabeth Bain. Baltovich spent eight years in prison before he was released on bail and granted a new trial. Baltovich's lawyers have long pointed to Bernardo as the likely killer of the 22-year-old Toronto woman. Bernardo, however, adamantly denied killing Ms. Bain, who disappeared in 1990 from her Scarborough neighbourhood. Bernardo said he did not know her and had never met her.

That might put both champions of the wrongfully accused and Crown prosecutors in an awkward position: believing Bernardo in one instance but dismissing him in the next. James Lockyer, Baltovich's lawyer, declined to comment on the matter as his client's case is still before the courts. A source familiar with the case believes that the freedom enjoyed by Bernardo's former wife, Karla Homolka, who was released from prison in 2005, has rekindled a belief that he, too, will one day get out of prison. To that end he is working to show his remorse and rehabilitation. Mr. Bryant, however, said his client simply "did what he thought was the right thing."

He said the government has acted quickly in seeking to remedy the situation. Sources say government officials are working on a settlement with the man despite no civil suit being launched. Such settlement could include a court application to have the conviction vacated. There might also be a financial component. "They haven't exactly sat back on the case. You can't fault them on that side," Mr. Bryant said. He has had no involvement in the case beyond helping to arrange Bernardo's jailhouse confessions.

Bernardo is serving a life sentence for the rape and murder of Kristen French, 15, and Leslie Mahaffy, 14, and has been declared a dangerous offender after a string of sexual assaults he committed during the late 1980s.

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Saturday, July 21, 2007

Mullins-Johnson case grinds on

Toronto man imprisoned for niece's murder gets Appeal Court review; Federal justice minister says 'miscarriage of justice likely'. He said the same thing in late April. Why the delay?

Canada's justice minister has referred the case of a Toronto man, who served 12 years in prison after being convicted of killing his four-year-old niece, to the Ontario Court of Appeal. Rob Nicholson's decision announced Tuesday follows the revelation that the pathologist whose testimony led to William Mullins-Johnson's conviction may have been faulty.

Mullins-Johnson, 37, was convicted of first-degree murder in the June 1993 death of young Valin Johnson. However, there was no forensic evidence linking him to the crime. An independent panel reviewing 45 child autopsies performed by former chief pathologist Dr. Charles Smith found that he made mistakes in 20 of the investigations, and Mullins-Johnson's case was among those flagged as resulting in criminal convictions. The panel's findings were made public this April. Ontario then ordered a public inquiry into Smith's practices.

A Department of Justice media release issued Tuesday said Nicholson was satisfied "there is a reasonable basis to conclude that a miscarriage of justice likely occurred" in Mullins-Johnson's conviction in 1994.

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Friday, July 20, 2007

Canada: Police protect police and justice be damned

Honest cop (Joe Slemko) hindered from testifying against another cop

An internationally recognized police blood-spatter expert said his own force, the Edmonton Police Service, supplied the RCMP with information to attack his credibility at a hearing into the shooting death of a B.C. man by a Mountie.

The Edmonton police force has confirmed Edmonton Police Service Const. Joe Slemko is now the subject of an internal investigation for testifying, without Chief Mike Boyd's permission, at the public inquiry into the death of 22-year-old Ian Bush inside the RCMP detachment at Houston, B.C. "This is an example of the Edmonton Police Service acting to protect another police officer, no matter what the evidence," said Howard Rubin, the Bush family's lawyer. "This is exactly the sort of behaviour that undermines the justice system and causes it to grind to a halt."

Slemko, a 20-year veteran, had sought permission to testify at the coroner's inquest from Edmonton Police Chief Mike Boyd. In a June 19, 2007, memo, Slemko told Boyd he had been asked by the lawyer for the Bush family to review the RCMP investigation "in hopes of providing an explanation and some closure to the family that a proper and complete investigation was conducted and was consistent with [RCMP Const. Paul Koester's] version." Slemko also provided Boyd with his detailed findings because he was required by the city force to seek permission to testify as a private blood-spatter expert. Slemko already knew his request likely would not be granted. The police service had decided he could testify for the prosecution in criminal cases, but not the defence.

Senior management of the Edmonton Police Service, including Boyd, believed the police and the prosecution were "indivisible" and Slemko would be in a conflict if he testified for the defence. Boyd never responded to Slemko's request.

Instead, Slemko has confirmed, when a lawyer representing the RCMP called the Edmonton Police Service seeking information about Slemko that could be used to discredit him at the public inquiry, the city police provided that information.

According to evidence heard during the inquest, Bush was arrested outside a hockey game after he gave Koester a false name when stopped for having an open bottle of beer. In the detachment interview room where he was taken to be booked, a fight erupted and Bush ended up shot in the back of the head. Koester said Bush sucker-punched him, got the better of him and was at his back throttling him when the officer managed to free his gun and fire. But Slemko testified the physical forensic evidence did not support Koester's account.

During the July inquest, RCMP lawyer David Butcher vigorously attacked Slemko credentials, pointing out he was not a member of the Edmonton police forensic identification unit and was still a general duty constable after 20 years. At the height of the attack, Slemko, his bottom lip quivering, told Butcher: "If you want to challenge me, challenge me in court. Not through the back door."

Slemko told Butcher and the inquiry that he had twice been found guilty of insubordination for defying orders not to testify for the defence. "I told them that because I wanted to show that I felt so strongly about my principles that I was willing to suffer the consequences," Slemko said in a recent interview. As a private consultant, Slemko is paid for his testimony, but does not solicit or accept fees in cases involving what he believes is a wrongful conviction or a miscarriage of justice. "Joe considered the testimony in this case to be his public duty, in the same category as testifying for someone wrongfully convicted," Rubin said. "He specifically made it clear from the outset that he was not asking for any fee and I only paid his travel expenses."

In fact, in his memo to Boyd, Slemko said, "It is my strong belief and conviction that my personal duties and responsibilities are prioritized in the following order: for the public interest, my personal integrity, ethical values and conscience; the reputation and credibility of the profession of policing and, lastly, the interests' of the Edmonton Police Service."

After the Edmonton Journal publicized the police service's treatment of Slemko earlier this week, the Edmonton Police Commission asked Boyd to explain its policy at a commission meeting Wednesday night. Boyd has declined comment until after he appears before the commission.

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Thursday, July 19, 2007

Man Suing For Wrongful Conviction In 1997 Attack

Police coercion again. Victim Recanted Her Identification Of Robert Wilson As The Man Who Slashed Her Throat

CHICAGO: A man who spent nine years in prison for attacking a woman and was later exonerated is now suing the Chicago Police Department and others. CBS 2's Kristyn Hartman reports that the federal lawsuit says Robert Wilson spent nine years in prison for a crime he didnt commit. He was exonerated last year when the victim recanted her identification of Wilson as her attacker. But Wilson had already lost almost a decade of his life behind bars, missing out on things like raising his kids and pursuing a career. "Going through the system was very stressful and very degrading ... You know, it's hard to sit in the penitentiary for something you didn't do," Wilson said.

Wilson's ordeal began in March of 1997. Police arrested him at the same bus stop where a woman was attacked the day before, her throat slashed. His suit says Chicago police officers forced a confession out of him after threatening him, intimidating him, denying him medication and promising him leniency if he did confess.

The complaint also says a series of similar attacks followed Wilson's arrest. Another man was charged in those cases, but Wilson's attorney was barred from presenting that as evidence during his trial.

For all those reasons and others, WIlson and the man representing him from the MacArthur Justice Center hope to send a message. "The message that this lawsuit has to send is that it's time for the police to get control of their operation. I mean, you know, we see this over again and again; police systematically engaging in abuse of people that they are interrogating; manipulating eyewitnesses; producing erroneous convictions," said attorney Locke Bowman.

They're suing for unspecified damages. The suit also names as defendants an assistant Cook County state's attorney, the City of Chicago and Cook County. CBS 2 has not been able to get comment from any of those agencies, but at least one said that they plan to have some sort of statement later in the day.

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Wednesday, July 18, 2007

Great! One crooked lawyer in the dock in Australia

Far too rare

A 34-year-old Perth lawyer has been charged with attempting to pervert the course of justice by trying to stop a witness testifying at a trial. The woman, from east suburban Shenton Park, was the instructing solicitor for a defendant in a trial which started in August 2006, police say.

"When a potential witness came forward during the time of the trial, he was then allegedly contacted by the woman and advised not to give evidence," police said in a statement. The witness subsequently told prosecutors he no longer wanted to testify.

The woman is due to appear in the Perth Magistrates Court on Friday, charged with attempting to pervert the course of justice.

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Tuesday, July 17, 2007

Withheld evidence again

Colorado in the dock:

Timothy Masters' current bid for a new trial hinges on the belief that not only could someone else have committed the murder, but that the jury would have agreed if only they'd been given information by the prosecution about other people who defense lawyers believe should have been considered as suspects in Hettrick's death. One of them was a confessed murderer who killed two women the same year Hettrick was murdered by stabbing them in the back; another confessed specifically to killing Hettrick.

While either of these individuals may have cast doubt on Masters' guilt in the eyes of the jury, none offered as compelling -- or complicated -- a case as that of Dr. Richard Hammond, a prominent Fort Collins eye surgeon who was arrested in 1995 for surreptitiously videotaping girls and women in his guest bathroom. Hammond had set up his video equipment to film extreme close-ups of his victims' genitals, and when police searched his house, they found hundreds of videotapes labeled with victims' names.

Some of the victims were family members of those in the District Attorney's office, creating a conflict of interest that required the office to disqualify itself from prosecuting the crime. However, the Hammond case never got to the prosecution stage. After his arrest, Hammond was placed on a 72-hour mental health hold, but shortly after he was released from protective custody, he checked into a Denver hotel and committed suicide.

According to court documents, several police detectives believe Hammond should have been thoroughly investigated for Hettrick's murder. Not only did he have an obvious morbid fascination with female genitalia, he also had the medical skill and biological knowledge to perform the precise and delicate excisions that were performed on Hettrick's body. Finally, Hammond's home, like Masters', overlooked the field where Hettrick's body was discovered.

But rather than expand their investigation of Hammond, police instead closed the case after his suicide -- in fact, investigators didn't even look at all the videotapes to see if Hettrick appeared on one. Instead, they burned the evidence to spare Hammond's victims, including family members of those in the DA's office, further embarrassment and humiliation.

The defense knew nothing of this investigation, or that some members of the police department thought Hammond should have been investigated as a suspect in Hettrick's murder. "The evidence appears extremely strong and incontrovertible that we weren't given the information we needed," said Erik Fischer, who along with Nathan Chambers (who also served on Oklahoma City bomber Tim McVeigh's defense team) represented Masters during his trial and appeals. Fischer adds that he believes Gilmore "perjured himself" during Masters' trial when he told the jury that law enforcement had cleared all other suspects in Hettrick's murder. "I believe ... we should have gotten Hammond as an alternate suspect," he said. "I think Tim would have walked in 10 minutes."

Through a message left by a court assistant, Gilmore declined to comment for this article, citing the ongoing litigation in the Masters case. Blair is out of town and was unavailable to respond to a request for comment. The lead detective in the Masters case, Jim Broderick, also declined to comment in light of the possibility of a new trial.

But Stuart Van Meveren, the district attorney at the time of Masters' trial, said it was up to the judgment of investigators and prosecutors to decide what information to turn over to the defense. "Those decisions were left to the investigating agency," he said, "and if they knew about (the cases), they obviously thought they weren't significant." He said he doesn't believe Gilmore or Blair did anything wrong. "They're both outstanding prosecutors and very ethical individuals," he said, "and that's evident in that they both were appointed to the bench."

Other observers aren't as certain. Daniel Coyne, an associate professor of clinical law at the Chicago-Kent College of Law, said that it's not up to the prosecution to decide what is relevant for the defense. "The case law is really clear that that's not the prosecutor's right to make that determination," he said. "If it's useful to the defendant, then a prudent prosecutor will turn over (the evidence) or make it available for inspection. "If there was a decision to withhold information," Coyne continues, "and the response as to why the information was withheld was that, 'we didn't determine it to be important,' that may call into question the competency of the people who made that decision."

It could also call into question their motives, said Richard Moran, a professor of sociology and criminology at Mount Holyoke College in Massachusetts. Moran recently completed a study of wrongful convictions in death penalty cases. He found that since the death penalty was reinstituted in the late 1970s, 81 of 123 exonerations were the result of what he calls "illegal prosecutions." "When there is a wrongful conviction, if that's what the court ends up deciding, they're not usually the result of good faith efforts," he said, "but the result of a criminal or malicious act committed by one of the members of the court, either the police, the prosecutors or sometimes the judges. "You put a guy in jail for life because you're convinced that he did it. You don't want to share evidence that he might not have done it with the defense because you think he's going to walk, so you misbehave so that he gets convicted."

Gavaldon, the Fort Collins attorney, said it's up to the courts to decide whether information in the Masters case was improperly withheld. But he agrees with Moran. "The criminal justice system is not an arena for hide and seek," Gavaldon said. "What ensures that justice is served is that there is full disclosure on both sides, of all the evidence, so that those issues are decided by a jury on something as serious as a life sentence."

It remains to be seen if Masters will get a new trial, but defense attorneys Maria Liu and David Wymore are gaining momentum in that direction since beginning in 2003 a so-called 35 (c) proceeding, which seeks a post-conviction review of the trial. This is different than the appeals in which matters of evidentiary rules and the introduction of character evidence were reviewed and found to be sound; the hearings now being prepared for will determine if Masters deserves a new trial based on the allegations of prosecutorial misconduct and defense inadequacy.

Since 2003, his attorneys have succeeded in having the entire Eighth Judicial District removed from the case. Likewise, the Larimer County District Attorney's Office has turned the case over to special prosecutors from Adams County after the defense filed a motion in January alleging a conflict of interest. Although a hearing on whether or not to grant a new trial will be held in Fort Collins, the case is now in the hands of the special prosecutors and a retired judge under special contract to hear motions in the case.

Recent allegations point to why the defense doesn't want the locals involved in the case any further. In court documents filed in January, Masters' lawyers claim that evidence from the victim was illegally sent by the District Attorney's office to the CBI lab in Denver, where it was subjected to destructive DNA testing. Masters had been granted a motion allowing his own DNA testing to look for evidence that someone else killed Hettrick, but before the evidence was turned over, the DA's office sent the material to the lab for its own testing. This, Masters' lawyers argue, amounts to theft and destruction of evidence.

The DNA evidence is crucial to the defense's contention that Masters deserves a new trial. In an affidavit filed with the court, forensic investigator Barie Goetz -- who worked for the CBI from 1981 to 2004 and is now employed by Masters' defense team -- outlined an entirely new scenario explaining Hettrick's death that he believes can be proven by DNA. He believes the evidence will show that Hettrick was not murdered or mutilated where her body was found, but stabbed in the back while seated in a car. He said the evidence will also show that her mutilations were surgical in nature and occurred at "a suitably equipped location other than the scene at Landings" and that two people carried her body into the field and left in a vehicle.

If any of this turns out to be true, or even possible in the minds of jurors, it could lead to Masters' acquittal. And an overturned murder conviction could wreak havoc in the Eighth Judicial District and those who tried the case the first time. "If in fact he is innocent or he did not get a fair trial, that obviously reflects badly on the justice system," said Pat Furman, who was a defense attorney for 20 years before his current position as professor of clinical law at the University of Colorado-Boulder. "If there was prosecutorial misconduct, it might rise to the level of something that the (state) Supreme Court looks at in terms of unethical behavior."

Furman said sanctions could involve disbarment, which, in the case of Gilmore and Blair, would mean they could no longer serve as judges since district judges are required to be lawyers. There could also be criminal penalties, he said. Repercussions could also be felt more widely, since an overturned verdict could lead to other appeals on the same grounds in different cases.

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Monday, July 16, 2007

NJ: Another DNA exoneration

Innocent man jailed as a result of predatory police interrogation -- while the real offender went on offending

Byron Halsey, who narrowly escaped the death penalty when he was convicted in 1988 of the brutal sexual assault and murders of two young children in New Jersey, was fully exonerated earlier this week based on DNA evidence that proves his innocence. Halsey’s conviction was vacated on May 15, and at a hearing Monday the Union County District Attorney’s Office dismissed pending indictments against Halsey because he is innocent. Halsey is the 205th person nationwide – and the fifth in New Jersey – exonerated based on DNA evidence, according to the Innocence Project, which represents Halsey.

“Byron Halsey has waited 22 years for this day. For 22 years, he has waited to walk into court and have prosecutors and the judge acknowledge what he always knew but what nobody would believe – that he is innocent,” said Vanessa Potkin, staff attorney at the Innocence Project, which is affiliated with Cardozo School of Law at Yeshiva University. “Byron can now begin the long, slow, difficult process of rebuilding his life. We hope the community will continue to embrace and support him, and we hope the state compensates him promptly and appropriately for the unimaginable ordeal he has endured.”

Halsey’s conviction was overturned in May after DNA testing on several key pieces of evidence used to convict Halsey actually indicated the guilt of another man, Cliff Hall, who is already in prison for several other sex crimes in New Jersey and who testified against Halsey during his trial. In March 1988, Halsey was convicted of several charges stemming from the November 1985 murders of a seven-year-old girl and an eight-year-old boy he was raising with his girlfriend; Hall, who lived next door to the family, had dropped Halsey off across town and then returned home on the night the children were brutally killed.

DNA testing over the last 16 months links every critical piece of physical evidence from the crime to Cliff Hall, not Byron Halsey, the Innocence Project said. The District Attorney’s office consented to the DNA testing, which was conducted in state labs and at Orchid Cellmark, one of the nation’s leading private labs, which provided some of the testing pro bono. The physical evidence that was subjected to DNA testing includes semen on the seven-year-old girl’s underwear, semen elsewhere at the crime scene and a cigarette butt at the crime scene. The cigarette butt was central in the initial police investigation of the crimes, and the semen was linked to Halsey (through blood typing, since DNA testing was not available) and used to convict him. DNA testing on both semen samples and the cigarette butt matches Cliff Hall, according to papers filed jointly by the Innocence Project and the Union County District Attorney’s Office. Hall has now been charged with the crimes for which Halsey was wrongfully convicted.

The brutal rapes and murders of the two children were among the most horrific crimes in memory in Northern New Jersey, and the prosecution sought the death penalty for Halsey. The girl had been brutally raped, beaten and strangled to death. The boy was sexually assaulted, and a piece of cloth had been hammered into his head with large nails while his face had been slashed with scissors (it was later determined that he died as a result of the nails being hammered into his brain). In public statements in 1987 leading up to the trial, one of the public defenders who represented Halsey accused the prosecution of “encouraging a lynch mob kind of feeling.” When the jury returned a verdict convicting Halsey on multiple charges, but not on charges that would have led to a death sentence, spectators in the courtroom jeered loudly.

“By the grace of God, Byron Halsey is alive today to clear his name. He came within a hair’s breadth of being sentenced to die and ultimately being executed for a crime that DNA now proves he didn’t commit,” said Barry Scheck, Co-Director of the Innocence Project. Earlier this year, a New Jersey Senate committee approved legislation that would abolish the death penalty in the state. “It is impossible to think about the risks and costs of the death penalty in New Jersey without thinking of Byron Halsey – and realizing just how close the state came to sentencing an innocent man to die,” Scheck said.

Since the May 15 ruling that vacated his conviction, Halsey has been out of prison on bond, living under state supervision (on electronic monitoring) while the District Attorney decided whether to dismiss the indictment against him. He has been living in an apartment in the Newark area and recently started a job making signs and banners at a local company, Potkin said.

New Jersey is one of 22 states nationwide with a law compensating people who were wrongfully convicted. New Jersey’s law does not provide any services (job training, health insurance, college tuition, etc.). It provides $20,000 for each year of wrongful incarceration or twice the amount of the individual’s annual income at the time he was wrongfully convicted (which, as in Halsey’s case, is often at or below the poverty level). The federal government (for federal cases) and an increasing number of states provide $50,000 for each year of wrongful incarceration; Texas legislators just passed a law doubling compensation for exonerated people, from $25,000 per year to $50,000 per year.

“From implementing eyewitness identification procedures that improve accuracy to preventing false confessions by requiring that interrogations be recorded, New Jersey has been a leader in reforming the criminal justice system to address wrongful convictions. But the state does not adequately compensate people who were wrongfully convicted, which has devastating consequences. It’s impossible to undo such a grave injustice, but when the state robs an innocent person of decades of freedom it has an obligation to provide services and adequate financial compensation,” Potkin said. Larry Peterson, an Innocence Project client who was exonerated a year ago after more than 16 years of wrongful incarceration, has still not been compensated – and struggles to make ends meet, which includes caring for his family. The state fought his claim for compensation under the New Jersey law, and he has since filed a civil lawsuit (represented by private attorneys).

The events leading up to Halsey’s wrongful conviction began on Nov. 14, 1985. Halsey was living with Margaret Urquhart and her two young children in a rooming house in Plainfield; Halsey helped support the family and raised the children as his own. Halsey worked days at PMS Consolidated, and Urquhart worked nights as a health aide. On the night of Nov. 14, Urquhart was at work and Cliff Hall (who lived in the same building) took Halsey across town while the children were home alone. After dropping Halsey off with friends, Hall went home. Cliff Hall’s whereabouts are unaccounted for the following two hours. Halsey, meanwhile, walked home a couple of hours after Hall dropped him off (which several witnesses corroborate) and discovered that the children were missing. Throughout the night, he repeatedly called Urquhart at work and checked with several friends and relatives to see if they had the children. The next morning, the children were found in the basement of the rooming house.

From his behavior and other evidence, police suspected Cliff Hall from the beginning. But as the lengthy interrogation of Halsey progressed, leading to a supposed confession, police stopped investigating Hall. The supposed confession was the result of 30 hours of interrogation over a 40-hour period of time during which Halsey (who has a sixth-grade education and severe learning disabilities) had little sleep. Even the detective handling the interrogation characterized Halsey’s statements as “gibberish.” On every key fact of the crimes, Halsey gave incorrect answers during the interrogation and had to guess several times before giving police accurate answers (on everything from the location of the bodies to how they were killed). Halsey “confessed” to things that DNA now proves did not happen.

By the time Halsey’s trial began, nearly three years later, Hall was called as a witness for the prosecution. Even though his testimony was contradicted by other witnesses, it was damaging to Halsey’s case. Halsey’s attorneys, both public defenders, presented evidence of Halsey’s alibi and argued strongly that his supposed confession was not valid. Regardless, the jury convicted him. Halsey – who had actually been born in prison in New Jersey to a mother who was convicted of fornication and essentially put in prison for being pregnant – was sentenced to two consecutive life terms, plus 20 years, in prison.

Cliff Hall committed three separate sex crimes in Plainfield during an 11-month period in 1991-1992. In June 1991, he grabbed an 18-year-old woman from behind on a street and, holding a knife to her throat, orally, vaginally and anally raped her for up to three hours. Three months later, he abducted a 19-year-old woman and took her to a building where he repeatedly and violently raped her vaginally and anally for two hours. Several months after that, he punched and attempted to rape a 26-year-old woman as she walked toward a train station in Plainfield. Hall pled guilty to all three of these crimes (all off which were committed while Halsey was in prison for the murders that DNA now indicates Hall committed).

As in Halsey’s case, DNA in more than 37% of exoneration cases nationwide also helped identify the true perpetrator of the crimes. Raymond M. Brown of Greenbaum, Rowe, Smith & Davis in Woodbridge is co-counsel with the Innocence Project on Halsey’s case.The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent further injustice. 7-11-07

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Sunday, July 15, 2007

Doing time for no crime: A young man freed after being wrongly imprisoned argues for three remedies

By Arthur Carmona

ONE WEEK after my 16th birthday, I was arrested and charged with crimes I did not commit. I remained behind bars in a life unsuitable for any innocent person. After I served nearly three years of a 17-year sentence, the real facts of my case began to emerge and a judge let me go free. My life, however, will never be the same, and I am determined to change the laws that make it so easy for innocent people to be convicted.

On Feb. 12, 1998, I decided to visit a friend. While I was walking down a residential street, a Costa Mesa police officer stopped me at gunpoint. I was handcuffed and surrounded by other police officers with guns drawn. One officer forced a baseball cap onto my head and made me stand on the curb. I did not know it at the time, but witnesses from a robbery had been brought to identify me in what is known as an "in-field show-up," a procedure that is highly likely to produce mistaken identifications. I was arrested in connection with 13 strong-arm robberies.

My mother was able to gather evidence proving that her 15-year-old son was in school during 11 of the robberies. But we had no evidence to prove that, at 2 a.m. on a school night, I was home asleep while someone robbed a Denny's restaurant, and we had no proof that I was home baby-sitting my 11-year-old sister during the time a juice bar in another city was being robbed.

The getaway driver, a parolee with a long criminal record, admitted being involved in the robberies. He first told police he did not know me and that I was not involved. Then the Orange County district attorney offered him a sentence of two years if he would say I was. He took the plea bargain and his story changed; he was freed from prison before I was.

The court found me guilty of two strong-arm robberies, and I was facing 35 years for crimes I took no part in. The judge sentenced me to 12 years in state prison. I was 16, with no criminal record. I would have been eligible for parole in nine years, with two strikes to my name, one strike away from a life term.

Two and a half years later, just before my hearing on getting a new trial based on a writ of habeas corpus, the Orange County district attorney offered me a deal, and after three years of suffering beatings, threats and degradation in a series of juvenile and state prisons, I accepted it. I signed a "stipulation" — a piece of paper stating that I would not sue any city, county or state prosecutors. Orange County Superior Court Judge Everett Dickey ordered me released and my felonies vacated.

Although I could finally go home, I could not go back to my old life. While I was behind bars, my high school class graduated without me. I was no longer the fun-loving teenager I once was. The criminal justice system took my innocence from me. I have not received any compensation, or even an apology. And the two felonies remain on my record, despite the judge's order and the intervention last year of then-Atty. Gen. Bill Lockyer.

Now, I am fighting to prevent wrongful convictions and to help innocent people still in prison. I am also supporting a series of state bills that would make it harder for what happened to me to happen to other people. I have traveled to Sacramento in the last two years to urge the Legislature to pass legislation that would help prevent wrongful convictions. Two of these bills passed last year, only to be vetoed by the governor. This year, three bills are being considered.

Senate Bill 756, sponsored by Mark Ridley-Thomas (D-Los Angeles), would require the state Department of Justice to develop new guidelines for eyewitness identification procedures. For example, guidelines in other states limit the use of in-field show-ups like the one that led to my wrongful conviction.

Senate Bill 511, sponsored by Elaine Alquist (D-Santa Clara), would require recording of the entire interrogation, including the Miranda warning, in cases of violent felonies. Electronic recording of interrogations would not only help end false confessions but also discourage police detectives from lying during interrogations — as they did in my case by claiming to have videotaped evidence of me.

Senate Bill 609, sponsored by Majority Leader Gloria Romero (D-Los Angeles), would prevent convictions based on uncorroborated testimony by jailhouse snitches.

The Legislature should pass all three bills, and the governor should sign them. These reforms are urgently needed to prevent wrongful and unjust incarcerations.

Prison is no place for an innocent man, let alone an innocent kid.

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Saturday, July 14, 2007

Australia: Police sued over murder charge

About time police got sued for arresting people on suspicion only!

POLICE had no evidence against a man they arrested for a 2001 murder and had merely been trying to satisfy a theory they'd concocted, a court has been told. The case – which looms as a test of the standard of evidence required by police to arrest and detain suspects – stems from the arrest of Toowoomba university student Neil Ferguson in 2001 after police alleged he had killed and dismembered a local drug user, Nicholas Moore.

Police made the grisly discovery of the headless, limbless torso at Helidon on May 5, 2001. Ten days later, police arrested Mark Ferguson. Believing the crime must have involved two people, police also arrested Mark's brother Neil Ferguson. Mark Ferguson's first trial ended in a hung jury and he died of an overdose before a second trial could begin. The case against Neil Ferguson was thrown out nine months after he was charged, when a Toowoomba magistrate found there was no evidence against him.

Neil Ferguson, 24, is suing the State Government and police officer Detective Senior-Sergeant Marc Hogan over his arrest, arguing that police made a quantum leap from believing he was at the crime scene about the time of the murder to believing him to be a murderer. He is claiming general damages of $250,000 and a further $200,000 in economic loss.

Senior police officers have admitted in evidence at a civil trial in Toowoomba Supreme Court this week that they had only circumstantial evidence against Neil Ferguson. Barrister Peter Nolan, for Neil Ferguson, said police had nothing more than a theory, and set about arresting two people who fitted their scenario. "That mindset makes the arrest of my client unlawful," he said. Justice Ann Lyons reserved her decision to a date to be fixed.

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Friday, July 13, 2007

Australia: Crooked cop behind wrongful conviction

Previous mention of the Stafford case on June 3rd

ONE of the state's most notorious killers will launch a fresh bid to clear his name within weeks as a cloud hangs over the detective who produced one of the key pieces of evidence to convict him. Graham Stafford remains adamant that he did not kill 12-year-old Ipswich schoolgirl Leanne Holland in 1991 and his family are planning an appeal to overturn the conviction, despite his release on parole earlier this year.

It comes as the Crime and Misconduct Commission continues to probe Detective Senior-Sergeant Graham Richards, the officer who arrested and charged Stafford for the brutal slaying. Sgt Richards was last month identified as one of four officers at the centre of an investigation by the CMC over alleged improper relationships between prisoners and police. Sgt Richards, the officer in charge of Rockhampton CIB, has been stood down pending the outcome of that investigation.

He was disciplined for a separate matter when the CMC found that he failed to comply with police guidelines and the Police, Powers and Responsibilities Act 2000; unlawfully detained a woman and lied to CMC investigators during a disciplinary interview.

Sgt Richards was serving as a senior-constable when assigned to investigate Holland's murder. His evidence at Stafford's trial was crucial in securing a murder conviction.The Courier-Mail, which broke the news of the CMC investigation, can reveal that Sgt Richards was responsible for identifying a maggot – used as a crucial piece of evidence – found in the boot of his car as being of similar size to one found on Holland's decomposing body.

Stafford's mother Jean told The Courier-Mail yesterday she "couldn't help but notice" the link and hoped it would boost her son's push to have his name cleared. But, she said she did not want to comment further so as not to interfere with an appeal against her son's conviction expected to be lodged within the next few weeks. "I have to be careful what I say (at the moment)," she said.

Sgt Richards and his partner, Detective Senior-Constable Allan Fynes-Clinton, were also responsible for interrogating Stafford and subsequently charging him with her rape and murder. Shortly after the murder, Constable Fynes-Clinton told Stafford's committal hearing that Sgt Richards had been the officer who reported finding a maggot.

Stafford, 44, continues to deny any involvement in slaying Holland with a hammer. Holland disappeared from the Goodna home she shared with Stafford and her sister, his girlfriend, on September 23, 1991. Her body was found in bushland at Redbank Plains three days later. Stafford was convicted of her murder on March 25, 1992. Stafford launched two unsuccessful appeals against his conviction. In rejecting his second appeal in 1998, Justice Michael McHugh made special reference to evidence against Stafford, including the maggot reported by Sgt Richards. "You have blood and maggots linked to the girl in the car boot, a missing mallet, his car tyre marks at the scene, an injury to his arm he could not explain, the fact he put out the garbage when it was not his job, the fact he was alone with the girl – these are just a few," Justice McHugh said.

A police spokeswoman yesterday said Commissioner Bob Atkinson would not comment due to the ongoing CMC investigation. A spokesman for Attorney-General Kerry Shine said the department had yet to receive any petition for Stafford to be granted a pardon.

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Thursday, July 12, 2007

California panel to probe wrongful convictions and withheld evidence

For 20 years, Mark Sodersten insisted he was innocent of the brutal murder of a Visalia woman that sent him to prison for life. Year after year, Sodersten lost one court ruling after another. Finally, in January, an appellate court ruled that he "most certainly did not receive a fair trial" in Tulare County because the prosecution team improperly withheld evidence that could have cast doubt on two key witnesses. But the ruling was too late for Sodersten. He had died in prison months earlier.

The case of Mark Sodersten - which the court said "calls to account the American system of justice" - is one more striking example of the damage that can be done when errors infect trials, an issue documented throughout last year by the Mercury News series "Tainted Trials, Stolen Justice." The series established that questionable conduct by prosecutors, defense lawyers and trial judges often infects Santa Clara County criminal trials and that such conduct increases the small but significant chance of wrongful convictions.

A state commission Wednesday will examine the impact prosecutorial misconduct and ineffective defense have on wrongful convictions. Wrongful convictions involve two common errors: either prosecutors have withheld evidence or defense attorneys have failed to devote adequate time and money to their cases. For Sodersten, the issue was tape-recorded statements from the victim's 3-year-old daughter and a witness whose fingerprints were found at the crime scene - statements the defense contended were never turned over.

Sodersten was prosecuted, initially by Ronn Couillard and at trial by Phillip Cline. By the time his conviction was overturned, Couillard had become a Superior Court judge in Tulare County and Cline the county's elected district attorney. Both men gave sworn declarations to support the state's contention that no evidence was withheld; their practice, they said, is to turn over such statements. Nevertheless, a three-judge panel of the 5th District Court of Appeals concluded that the tapes were wrongly withheld and found that failure "carried with it grave risk of convicting an innocent man."

The integrity of the system was compromised "by the conduct of the very people who are sworn to uphold the system, and who are charged with seeing that justice is done," wrote presiding Justice James A. Ardaiz.

In any trial, the prosecutors' duty seems clear enough: They are required to turn over all material evidence that might help the defense, whether it is in their files or in the files of police, prosecution experts or other members of the prosecution team. But that duty is not as simple as it seems. Disputes over withheld evidence have repeatedly marred Santa Clara County cases and are frequently contentious, with both sides arguing about the value of the information.

Sometimes, the argument hinges on who is a member of the prosecution team. That is the case with Agustin Uribe, convicted last year on charges that he had sexually assaulted a child. Uribe insisted he was innocent and the girl's version of what happened was not consistent. That gave special importance to the findings of a physical examination of the girl conducted by Mary Ritter, a physician's assistant at Santa Clara Valley Medical Center. Ritter concluded that the exam supported the allegation of sexual assault.

But experts disagreed about whether photographs taken during the exam supported Ritter's conclusion. The defense expert, Dr. Theodore Hariton, concluded that Ritter was misreading the images and focused on one key photograph to support his view. Ritter's boss testified that the defense expert was relying too heavily on a "bad photograph" with a shadow. Only after Uribe's conviction did the defense learn a videotape of the exam existed, which provided additional evidence. Hariton contended that the videotape reinforced his conclusion that no sex occurred.

When Uribe sought a new trial based on the withheld evidence, the district attorney's office argued that the videotape was conducted for training purposes only. As a result, they said, the prosecutor had no duty to provide it to the defense. Trial Judge Paul Bernal agreed. Uribe has appealed to the 6th District Court of Appeals.

Minutes after Dennis Sierra killed his grandfather, police made a tape recording of his statements that was not turned over to the defense until after Sierra's conviction for first degree murder in 2005 by a Santa Clara County jury. The issue on appeal is whether that tape provides important evidence of Sierra's mental state. No one disputed that Sierra suffered from significant mental illness. The jury heard testimony that at the time of his arrest, Sierra was walking the streets, naked, with his eyes closed, saying he was a government agent named James Dean. But deputy district attorney Richard Titus, who has since retired, contended that Sierra was exaggerating his symptoms to avoid punishment.

It is not clear why the tape was not turned over. Court records show that before trial, Deputy Public Defender J.J. Kapp repeatedly asked Titus for the tape without success. After he finally got it, Kapp contended the conviction should be overturned based on the withheld evidence. A Superior Court judge rejected that motion, agreeing with the prosecution that jurors heard sufficient testimony from police about Sierra's statements that night.

When the case was argued last month before the 6th District Court of Appeals, Sierra's appellate lawyer, George L. Schraer, said the tape provides a far more powerful picture of Sierra's mental state. The court has not yet ruled. But Presiding Justice Conrad L. Rushing telegraphed his sense of the evidence: "The tape is devastating," Rushing said in court. "It's very helpful to the defense" and demonstrated that Sierra had "very serious problems." ....

Inadequate defenders

One critical way defense attorneys can save time and money is if defendants agree to plead guilty ahead of time, forgoing the expense and time of a trial. Last month, a federal district court overturned the conviction of Milan Pakes after finding that Pakes' San Jose attorney, Miguel Chacon, wrongly advised his client to enter a guilty plea that clearly was not in his interest.

Pakes was arrested after he hit the rear of an off-duty police officer's vehicle and sped away. There was a 12-year-old girl in Pakes' car, and he was charged with evading arrest and endangering a child. Santa Clara County prosecutors dropped the evading arrest charge in return for a guilty plea to endangerment. Pakes - who was a "three strikes, you're out" defendant - received a sentence of 26 years to life.

But the federal court concluded that Chacon never advised Pakes of a key legal issue: It was unlikely he could be convicted of both charges, meaning there was no benefit to Pakes in pleading guilty to the "third strike" crime. Chacon testified that he did tell Pakes of the legal issue, but last month, U.S. District Judge Vaughn R. Walker accepted a magistrate's finding that Chacon's testimony "lacks credibility." That conclusion was based on several factors. There was nothing in Chacon's file suggesting he had researched the issue. And because Pakes gained nothing from the plea bargain, the court ruled, that suggested he thought he faced a longer sentence if he went to trial.

The determination that Chacon was not believable marked the second time in a year that a federal judge has found Santa Clara County defense attorneys not credible when they have been called to explain their performance. Last year, U.S. District Judge Jeffrey S. White overturned the robbery conviction of Michael Hutchinson, finding that Hutchinson's attorney, Dennis Kazubowski, failed to properly investigate the case and that the attorney's post-trial explanations were not credible.

Chacon's representation of Carlos Toscano, convicted of raping a child, is also at issue in an upcoming Santa Clara Superior Court hearing. The appellate court ordered that hearing into evidence the jury never heard: Toscano had undergone a series of reconstructive bone surgeries and was wearing metal frames and a cast at the time of the crime, and medical evidence raised doubts about whether the girl had been raped. Chacon could not be reached for comment. He failed to respond to a letter and phone calls from appellate attorney Philip Brooks about the matter, court records show.

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Wednesday, July 11, 2007

Appeals Court Rejects Compensation for SF man who was declared innocent

Amazing: No "innocent until proved guilty" in the People's Republic of California, it seems

A California appeals court has rejected a claim for $445,000 in state compensation by a San Francisco man whose murder conviction was overturned after he spent nearly 14 years in prison. The Court of Appeal said on Thursday that John Tennison, 35, hadn't met the "heavy burden of proof" needed to prove he was innocent of a 1989 murder, even though a Superior Court judge granted Tennison a finding of factual innocence.

The court said the standard for proving innocence to gain compensation from a state board was different from the standard used when Tennison won the finding of factual innocence in 2003. The court upheld decisions by the California Victim Compensation and Government Claims Board and a Superior Court judge denying Tennison compensation.

A state law allows people who can prove they were innocent of a crime for which they were imprisoned to claim compensation of $100 for each day wrongly spent in prison. The board found in 2004 that evidence in the case was inconsistent and Tennison hadn't proved he was innocent.

Tennison was originally convicted of murdering Roderick Shannon, 18, in a gang-related killing in the Vistacion Valley section of San Francisco on Aug. 19, 1989. Tennison was 17 at the time of the slaying and was tried as an adult in San Francisco Superior Court. Tennison appealed in the federal court system after losing state court appeals. In 2003, U.S. District Judge Claudia Wilken of Oakland overturned the conviction on the ground that prosecutors had suppressed five key pieces of evidence that favored his claim of innocence. Tennison was released from prison and later in 2003 obtained a Superior Court declaration of factual innocence.

Daniel Purcell, an attorney for Tennison, said he is considering an appeal to the state Supreme Court. Purcell said, "We're disappointed. We think this process was set up to deny John relief."

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