Saturday, June 30, 2007

Another "child welfare" disgrace in Britain

A couple who fled to Ireland to stop their baby being taken into care at birth have won an assurance that they can keep him after doubts were raised over the original evidence that they were guilty of abuse.

Mark and Nicky Webster, 34 and 26, from, Cromer, Norfolk, have waged a legal battle to stop their fourth child being taken from them after expert evidence led to their three elder children being removed and adopted in 2003.

But fears that they would lose their youngest child, Brandon, now 13 months, were finally laid to rest yesterday when Norfolk County Council told a High Court judge in London that it was no longer relying on expert evidence of physical abuse that led to the removal of their other children.

In a hearing expected to last for several days, Mr Justice Holman was told that original evidence had now been challenged by fresh medical opinion. The adoption of their three elder children is irreversible.

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Friday, June 29, 2007

Another predatory New York prosecutor

Two elderly hoteliers won their battle against extradition to the US yesterday as a British judge suggested a prosecutor had lied to get his hands on them. Stanley and Beatrice Tollman spent four years trying to escape the clutches of Stanley Okula, an assistant US attorney, who once threatened to make their life "as miserable as possible". Their nemesis was found by District Judge Timothy Workman to have given untruthful evidence, even under oath. The judge condemned his behaviour as "reprehensible".

The judgment turns the tables dramatically on Mr Okula, who faces the risk of an action for perjury and the possibility that he would have to fight extradition to Britain. However, his office last night rejected the accuracy of the judgment and gave warning that the US was planning to appeal for the Tollman extradition to go ahead.

The Tollmans were the most prominent remaining alleged white-collar criminals sought by the US under fast-track extradition. The most notorious case involved the bankers known as the NatWest Three. The elderly pair, friends of Baroness Thatcher, run a string of luxury hotels in Britain, Switzerland, America and South Africa. Mr Tollman, 76, a former director of Chelsea Football Club, and Mrs Tollman, 74, were accused variously of alleged offences involving bank and tax fraud, which they denied vigorously. At one stage they were alleged to have hidden $35 million (œ17.5 million) from the US taxman.

Their lives became a misery after Mr Tollman failed to attend an early court hearing in New York for alleged bank fraud. Mr Okula, a local prosecutor, is said to have decided to pressurise Mr Tollman's relatives to make him give himself up. "It is alleged that Mr Okula has displayed personal animosity towards Mr Tollman and his family, which went far beyond the responsibilities of a thorough prosecutor," the judge said at City of Westminster Magistrates' Court yesterday.

"He is said to have declared that he intends to make Mr Tollman's life `as miserable as possible', which is a comment he has not denied. He is also said to have commented that he was looking forward to having a `perp walk' with Beatrice Tollman. I understand this to mean that he intended to walk publicly through the streets of New York from the processing centre to the court house with her handcuffed and chained for the benefit of the press. In his affadavit, Mr Okula denies this allegation." But the judge said that a lawyer to whom the "perp walk" threat had been made, gave entirely honest and trustworthy evidence. "I find Mr Okula's affadavit on this point to be untruthful," Judge Workman said.

The Times reported how Mr Okula hatched a plot last year to seize Mr Tollman's nephew, Gavin, at Niagara Falls, bypassing extradition rules, when he visited Canada on business. A Canadian judge released Gavin Tollman, finding that there had been unequivocal abuse of process and that Mr Okula had misled the Toronto court. "Mr Okula claims that his actions had the support and approval of superiors," Judge Workman said. "I find that evidence unlikely to be true."

Mr Tollman's son, Brett, was prosecuted in America by Mr Okula who, in spite of the suspect's voluntary attendance at court, had demanded $25 million bail for his release. Mr Okula had made clear repeatedly that things "would be easier for Brett if his parents came back".

Judge Workman decided it would be oppressive to extradite the Tollmans owing to the time since the alleged offences, dating back to the early 1990s, and Mrs Tollman's poor health. The couple's solicitor Mark Spragg, who also represented the NatWest Three, now awaiting trial in Texas, said that it would be possible to extradite Mr Okula. Mr Spragg called on Gordon Brown to reinstate the requirement for overseas countries to show a prima facie case before suspects are surrendered. Fast-track extradition was introduced as an anti-terror measure but critics say that it has been seized on by US prosecutors zealously pursuing white-collar criminals.

A spokeswoman for the US Attorney's Office for the Southern District of New York, where Mr Okula works, said: "We respectfully disagree with the court's factual and legal findings and expect to appeal."

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Australia: Compensation for wrongful conviction denied

Two brothers jailed over the 1982 Perth Mint gold swindle have lost a bid to sue the West Australian Government over their wrongful convictions. Peter, Ray and their late brother Brian Mickelberg were convicted in 1983 of defrauding the mint of $653,000 in gold bullion in exchange for worthless cheques.

Each of the brothers spent time in jail, although Brian Mickelberg appealed against his conviction and was released after nine months. After numerous appeals, the two surviving brothers had their convictions overturned in 2004. Ray, Peter and Brian's estate later launched a bid to sue the State Government and seven police officers over their convictions.

In the WA Supreme Court today Justice David Newnes struck out their claim against the state government 'as disclosing no reasonable cause of action'. The brothers' lawyers were given leave to submit a minute containing a new statement of claim.

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Thursday, June 28, 2007

Vile and secretive British family courts

Denied access to his three children after his divorce, Mark was jailed for standing outside his house to wave to them. It took ten years and 133 hearings before they were reunited. How CAN the Government insist cases like his are kept secret?

Every day there is some reminder of what Mark Harris calls 'the lost years'. It could be his daughter's reference to a particular birthday party or a family holiday. It could be talk of exams sat, dentists visited or pop stars worshipped. Each time it happens, he feels a stab of regret. 'I missed so much,' he reveals, with understandable bitterness. 'They took my daughter's childhood, her formative years, from me. Lisa is 20 now. I didn't see her between the ages of ten and 16. An awful lot happens in a child's life in that time, and I missed it all.'

Lisa missed a lot, too. She sits by Mark's side as he talks, a beautiful and assured young woman, but one still coming to terms with the fact that her father simply wasn't there when she needed him - and for an entire decade she did not know why. 'There were times when I needed a father figure - for reassurance and advice,' she says, with quiet restraint. 'There just wasn't one there.'

But the story of what happened to the Harris family isn't just another tragic case of broken homes and estrangement. Mark, Lisa and her two younger sisters were wrenched apart by the state. Mark was not a feckless, irresponsible father. He did not walk out of his children's lives. Rather, he was ordered out by the family courts, and when he objected - insisting it was his right to see them - he was dealt with in a scandalous way.

Mark Harris went to prison for his girls. He was jailed for waving to them after a court order demanded he sever all contact. It was the most shameful chapter in an extraordinary ten-year custody battle. He has now 'won' - today, two of his daughters live with him - only because they shared their father's determination to re-establish their relationship. He has lived every father's worst nightmare, and every miserable step is etched on his face. 'It took ten years, 133 court appearances before 33 different judges, two prison sentences and a hunger strike before I was given permission to be with my daughters again,' he says quietly. 'What happened to my family is unforgivable. And that it was all sanctioned - ordered - by a system that is supposed to help families is outrageous.'

The controversial family court system has much to answer for in this case. Mark Harris isn't the first father who has questioned how it operates. Family court proceedings are notoriously secretive, and campaigners have long appealed for the proceedings to be more open and judges more accountable. That is not to be, however. Last week the Lord Chancellor ruled that proceedings must remain secret - something that horrifies Mark and his girls.

So angry is he about his experiences that he has written a book, Family Court Hell. 'Surely my story is evidence enough that the system needs to change. 'If it doesn't, the family courts are open to abuse by unaccountable judges and social workers with their own agendas, whose word is taken as law and who almost invariably favour the mother. 'It's a scandal which has left hundreds of fathers like me in desperation. The only solution is to have a court system that's transparent. Otherwise it is simply not fair to fathers or, more importantly, to the children it is supposed to protect.'

When Lisa was born in 1988, Mark felt 'like the happiest man alive'. He had been married to his wife - whom we cannot name even now for legal reasons - for three-and-a-half years, and he had longed for fatherhood. Over the next four years, two more daughters followed. Mark says: 'I remember thinking how lucky I was because I had a job that I could organise around the children. I'm a driving instructor, so my work was flexible. I loved the time I spent with Lisa. Not every father could read their children stories, bath them or take them out for walks in their pram.' Mark thought he had a happy marriage, too. The only difficulty was his strained relationship with his mother-inlaw. Yet it didn't concern him much.

'Looking back, we rowed constantly about my mother-in-law, but I never thought it would lead to drastic action,' he says. Perhaps he will never know exactly what was wrong in his marriage, but his wife was clearly unhappy. One day in 1993, Mark returned from a football match to find the house 'looking as though it had been ransacked'. Almost all the furniture had disappeared. So, too, had his wife and children, and he had no clue where they had gone. 'I went to the police,' he says. 'I was beside myself, distraught. They said my wife was in a rented house nearby, but that I shouldn't go round until the next day. When I did, she told me she no longer loved me, but said I could see the children whenever I wanted. I was bereft.

'I took the children home for a few hours and they spent the time crying - they were only six, four and two, and it must have been horrific for them to see their parents like that. They wanted to know when we'd all be at home together again, and I didn't know what to say. I was as shocked and bewildered as them.' Over the next few weeks, Mark stumbled through life in a daze. He saw his girls every day he wasn't working, but his anger towards his wife was building up. Two months after she left, she asked if he would take her back. Mark was too hurt to contemplate that. Instead, he launched divorce proceedings. 'At that point, it didn't even occur to me that access to the children would be an issue. I was granted unrestricted access - but later I discovered that even then my wife was seeing a solicitor, with a view to having my time with them reduced. She said it was confusing for them to see me.'

The family court agreed, and his access was reduced to three times a week, then to once a week and finally to once a fortnight. Mark was stunned to discover he was powerless to resist. 'I petitioned the judge every time, but there was nothing I could do,' he says. A year after they had separated, the couple divorced. Again, Mark made a bid to see more of his girls, and asked the court if they could live with him. His wife retaliated, claiming that seeing him at all was unsettling them. The court's reaction? It banned him from any contact at all with his daughters.

'I was just floored, disgusted. On my wife's word, the judge simply severed all my rights of access. When I protested, no one listened. I was devastated, but there was no way I was going to turn my back on my children. How could a court order stop me from being a father?' Every morning, while he waited for a court date to argue against this judgment, Mark saw his children being driven past his house to school by their mother. He'd wave - angry that he couldn't say hello, but grateful for their smiles.

Then his former wife was granted an injunction stopping him even gesturing to his children as they passed. 'It was incredible. She said it was harassment, and the court believed her. But I carried on waving. I was looking for a job and I'd walk to the Jobcentre every morning - knowing how to time it so they would come past. 'I was damned if I was going to be prevented from waving at my own children. Naively, maybe, I assumed the whole business would be cleared up at the next court hearing.' It wasn't. Instead, Mark left that courtroom in handcuffs, sentenced to four months, having been told that waving was tantamount to stalking his ex. He couldn't believe what was happening. 'On my first night in jail I shared a cell with a murderer,' he says. 'It was so intimidating. The next few weeks just blurred into one long nightmare. Every waking hour I pined for my girls, wondering if I would ever see them again.

'When I got out, the nightmare continued. It took another year for me to convince the courts I should be allowed to see them at all. Life was an endless round of court hearings. It was a wretched existence. Time and again I'd be facing a new judge and having to re-tell the story. To me, it was a matter of life and death, but to them, it seemed I was just another pushy, undeserving father who was trying to interfere in his former wife's life. 'I was so messed up by it all that I had a vasectomy to ensure I couldn't find myself in that position again.'

Finally, five years after the separation, Mark was granted permission to see his daughters. He was excited about the planned date - but devastated-when Lisa didn't turn up. 'By then I was livid at the system. It was destroying my life. I know it was a foolish thing to do, but I started picketing the homes of the judges who had denied me contact, hoping they would take pity on me.'

His protests were to no avail. Instead, in 2001, he was sentenced to ten months in prison for contempt of court for driving past his girls' house to catch a glimpse of them. By then spiralling into depression, he went on hunger strike. For two weeks he refused food and water. 'I stopped only when I realised that if I died I would never see my precious daughters again,' Mark says.

Who knows how this desperate fight to be a father would have ended had Lisa, then 16, not intervened. 'After a row with her mother, she called Mark and told him she and one of her sisters wanted to live with him. 'I got this call saying they had packed their bags and were at a bus stop. Would I pick them up? In breach of all court orders, I got in the car and brought them home. Seeing Lisa again, for the first time in six years, was incredible. I didn't know how to speak to, or look at, this young woman before me. She was wearing make-up. She had her 6ft boyfriend in tow. It was surreal, but in the end we fell into each other's arms and sobbed.'

It was only then that the family court system seemed to consider Mark's rights. He called the High Court emergency hotline and eventually spoke to a 'decent, humane judge'. Ten minutes after their conversation-he was faxed a temporary residency order. In court the following week, every previous court order was set aside. 'It took ten minutes to put right and ten years of injustice, which made me realise just what power those judges have,' says Mark.

The ruling meant that Lisa and her sisters could choose which parent they lived with. Lisa and her youngest sister - who, again, we can't name for legal reasons - now live with him. Lisa is studying to be a legal secretary. Her story is even more poignant. She tells of the confusion that has blighted most of her life, and you cannot help but wonder what long-term damage has been inflicted on her and her sisters. 'One minute we were normal children. The next we were in a rented house with Dad hammering on the door demanding to be allowed to see us,' she says. 'We were scared. None of it made sense. Sometimes we'd be allowed to see Dad regularly, then there were times with no contact at all.

'When Dad disappeared out of our lives, we just thought he had stopped loving us. I was certain I'd done something wrong. 'The first time we saw him waving to us as we went to school, I was thrilled. I remember thinking: "He still cares." 'Every morning, Mum would tell us we shouldn't look at him - that he was a bad man - yet we couldn't help but grin when we saw him. It made our day.' It was impossible for Lisa's mother to go a different route.

WHEN her father went to prison, no one explained to Lisa why. 'Mum said: "You see - I told you he was bad." I was ten years old. As far as I knew, you had to do something pretty awful to go to prison.' She turned against her father, telling social workers she didn't want to see him. Yet with hindsight she explains she was simply trying to gain control over the horrific situation. 'There was this endless pantomime with social workers wanting to know what I thought. All I wanted was to be allowed to love both my parents, but I knew that was never going to happen. 'Mum's hatred for Dad was so deep that to keep her happy, and to get them off my back, I said I wouldn't see him. Turning love to hate made that easier. I told myself that my dad had been wicked, so he deserved it.'

When the courts finally granted access, Lisa was so tortured that she often didn't turn up to see her father. She thought she was protecting her mother by siding with her. However, when she fell out with her mother during a phase of teenage rebellion, it was to her father that she fled - and when she discovered he had never stopped loving her, she was left reeling. 'I'd never forgotten Dad's number. I know I was only ringing him then to get back at Mum, but when I heard his voice, I wanted to cry. I told him I loved him and that I wanted to see him. Everything just flooded out.'

The first meeting was as hard for her as it was for him. 'The last time I'd seen him I'd been ten and carrying a skipping rope. When I walked into my old bedroom - and saw it was as I had left it - I wanted to sob. I didn't dare do so, though, because I knew if I did I'd never stop.' Four years on, Lisa and Mark are only just beginning to rebuild their relationship. Every day, more gaps are filled, and more trust regained. Meanwhile, Lisa rarely sees her mother, and she is angry at her mother's behaviour. It is a desperately sorry story, with no real winners. But then, as Lisa points out, it was never supposed to be a contest.

'I wish to God that my parents had avoided the courts from day one, and simply shared us, the children they created together,' she says. 'Instead, complete strangers were allowed to get involved in our lives to such an extent that everyone lost sight of the needs of us children. 'I love both my parents; I always will. But I will never get my childhood back. It is gone for ever.'

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Wednesday, June 27, 2007

Girl "provoked" pedophile - British judge

A PEDOPHILE who raped a 10-year-old girl will be free in just four months after a British judge said his victim had "dressed provocatively". Window cleaner Keith Fenn, 24, could have been jailed for life after twice attacking the girl in a riverside park. Judge Julian Hall was at the centre of a storm over the "pathetic" sentence he imposed after hearing the girl had appeared much older than her age. The same judge caused uproar earlier this year by setting free another paedophile and telling him to give his victim money "to buy a nice new bicycle".

In the latest case, Oxford Crown Court heard harrowing details of the assault on the 10-year-old. She was attacked in a park in South Oxfordshire by Fenn and his accomplice Darren Wright, 34, on October 14 last year. Fenn removed all her clothes and raped her, then Wright took her to his home and sexually assaulted her.

Yet Judge Hall said the case was exceptional because the "young woman" had been wearing a frilly bra and thong. The girl has been in local authority care since the age of four. She was on her own when she met the pair in the street. They went to the park together. The judge said he faced a moral dilemma. The court heard that the girl regularly wore make-up, strappy tops and jeans. "It is quite clear she is a very disturbed child and a very needy child and she is a sexually precocious child. She liked to dress provocatively," the judge said. "Did she look like she was 10? Certainly not. She looked 16."

He gave Fenn concurrent two-year and 18-month sentences but he will be free in just weeks after spending eight months in jail awaiting sentence. Wright is a free man because he too had served eight months on remand.

Yesterday Dr Michele Elliott, of Kidscape, said: "This is beyond pathetic, it is utterly derisory. For the judge to say that the way she was dressed in any way excuses a 24-year-old man having sex with her is disgraceful and ridiculous." Fenn admitted two counts of rape of a child under 13 and Wright admitted one charge of causing or inciting sexual activity with a child aged under 13.

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Monday, June 25, 2007

Videotaping police

Last month, Brian Kelly of Carlisle, Pa., was riding with a friend when the car he was in was pulled over by a local police officer. Kelly, an amateur videographer, had his video camera with him and decided to record the traffic stop. The officer who pulled over the vehicle saw the camera and demanded Kelly hand it over. Kelly obliged. Soon after, six more police officers pulled up. They arrested Kelly on charges of violating an outdated Pennsylvania wiretapping law that forbids audio recordings of any second party without their permission. In this case, that party was the police officer. Kelly was charged with a felony, spent 26 hours in jail, and faces up to 10 years in prison. All for merely recording a police officer, a public servant, while he was on the job.

There's been a rash of arrests of late for videotaping police, and it's a disturbing development. Last year, Massachusetts Attorney General Tom Reilly threatened Internet activist Mary T. Jean with arrest and felony prosecution for posting a video to her website of state police swarming a home and arresting a man without a warrant.

Michael Gannon of New Hampshire was also arrested on felony wiretapping charges last year after recording a police officer who was being verbally abusive on hisdoorstep. Photojournalist Carlos Miller was arrested in February of this year after taking pictures of on-duty police officers in Miami. And Philadelphia student Neftaly Cruz was arrested last year after he took pictures of a drug bust with his cell phone.

As noted, police are public servants, paid with taxpayer dollars. Not only that, but they're given extraordinary power and authority we don't give to other public servants: They're armed; they can make arrests; they're allowed to break the very laws they're paid to enforce; they can use lethal force for reasons other than self-defense; and, of course, the police are permitted to videotape uswithout our consent.

It's critical that we retain the right to record, videotape or photograph the police while they're on duty. Not only for symbolic reasons (when agents of the state can confiscate evidence of their own wrongdoing, you're treading on seriously perilous ground), but as an important check on police excesses. In the age of YouTube, video of police misconduct capturedby private citizens can have an enormous impact.

Consider Eugene Siler. In 2005, the Campbell County, Tenn., man was confronted by five sheriff's deputies who (they say) suspected him of drug activity. Siler's wife surreptitiously switched on a tape recorder when the police officers came inside. Over the next hour, Siler wasmercilessly beaten and tortured by the officers, who were demanding he confess to drug activity. Siler was poor, illiterate and had a nonviolent criminal record. Without that recording, it's unlikelyanyone would have believed his account of the torture over the word of five sheriff's deputies.

Earlier this year, Iraq war veteran Elio Carrion was shot three times at near-point-blank range by San Bernardino, Calif., deputy Ivory Webb. Carrion was lying on the ground and was unarmed. Video of the arrest and shooting, however, was captured by bystander Jose Louis Valdez. Webb since has been fired from the police department and is on trial on charges of attempted voluntary manslaughter and assault with a firearm. The video is the key piece of evidence in his trial. While it's possible that police and prosecutors would have believed Carrion's version of events over Webb's even without the video, it seems unlikely. Webb is the first officer to be indicted in the history of the San Bernardino Police Department.

These are merely recent examples. There are more. Many police departments across the country recently have added roof-mounted cameras to patrol cars that record traffic all stops. This is a positive development, and protects not just citizens from rogue cops, but cops from citizens who make frivolous complaints. I've argued in the past that other police activities should be recorded, particularly SWAT-style raids that involve forced entry into private homes.

But it shouldn't end there. Legislators need to repeal laws explicitly forbidding the recording, photographing or videotaping of police officers. And to the extent that more generalized wiretapping laws meant for the general public also apply to the police, they should be amended to allow private citizens to record officers while they're on duty. This isn't to say police don't have the same privacy rights as everyone else. They do — when they aren't on duty, in possession of a sidearm and carrying with them the authority thatcomes with enforcing the law of the state. But while they're on duty, they serve the public. And the public, their employer, should have every right to keep them accountable.

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Sunday, June 24, 2007

Car crime OK in Australia

P-PLATER [provisionally licensed driver] Luke Dodd has one of the worst driving records in Victoria's history. But that did not stop the 24-year-old, who has 61 convictions for driving while disqualified and 71 for stealing cars, getting behind the wheel after drinking and smashing head-on into a car driven by a mother with four children. A court heard Dodd had a blood-alcohol reading of .066 when he lost control of his Ford ute and crashed into an oncoming Mazda MPV, which was a write-off. The mother and her children, who were on their way to Salvation Army band practice, escaped unhurt.

Despite his shocking history - committed before he had a licence - Dodd was fined just $500 yesterday and his licence was cancelled for a minimum of six months. Dodd, of Frankston, swore he was a changed man from his troublesome days when he was involved in a car stealing racket. He told the Herald Sun he wanted to say sorry to the mother and children for drink-driving and writing off their car. "I want to apologise. It was a stupid thing to do. I could have killed them," Dodd said outside Dandenong Magistrates' Court. "I am responsible for my actions and I have changed. Everyone deserves a second chance."

Dodd said he saw the light after he bore the brunt of the blame for the car theft racket and spent three months at the Melbourne Assessment Prison. "I wasn't even old enough to drive when I committed these offences," he said. "It was a stupid thing to do."

Dodd yesterday admitted there was no excuse for driving irresponsibly on August 18 last year and he was willing to cop his punishment on the chin. He pleaded guilty to three charges, including careless driving, exceeding the prescribed concentration of alcohol (zero) and crossing double yellow lines. Prosecutor Sen-Constable Rick Ellin told the court Dodd had drunk four stubbies of beer before he lost control of his car, crossed double lines and slammed into the oncoming car on Cranbourne-Frankston Rd in Cranbourne.

Dodd's lawyer, Greg Martin, said the road was wet and Dodd's foot slipped off the clutch. Magistrate Raffaele Barberio said Dodd was fortunate nobody was injured or killed because he would have been facing the County Court. "Accidents sometimes happen, but it's the nut behind the wheel not the motor car that cause them," Mr Barberio said. "Obviously there has been a fair bit of history but hopefully that's water under the bridge now.
"At the end of the day you have to be mindful of control of a motor car."

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Saturday, June 23, 2007

New Zealand sex attacker gets only one year!

For kidnapping and molesting a young girl!

A 12-year-old New Zealand girl outsmarted a man who kidnapped her for sex, a court has been told. The frightened girl got into a car with Anthony Treanor, 31, who had approached her repeatedly and tried to grab her as she walked to catch a bus home late on October 11 last year, Christchurch District Court was told.

Judge Murray Abbott said Treanor stopped at a park and tried to get the girl to drink alcohol, while rubbing her arm and upper leg. But unknown to Treanor the girl had guided him to park near where her aunt lived. Treanor had locked the car doors but the girl used a ruse to lean across him, flick the switch that unlocked the doors, and made a successful break for her aunt's house, the court heard.

"Were it not for the victim's presence of mind it may well be that what happened could have developed a far greater seriousness," Judge Abbott said.

Treanor, who had suffered a serious head injury in a car crash in his teenage years, pleaded guilty to kidnapping the girl, and doing an indecent act. He was jailed for one year and nine months, granted leave to apply for home detention, and ordered to undergo alcohol treatment and psychological counselling.

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Friday, June 22, 2007

Australia: Police protect their own again (1)

A huge cop put his knee through a black guy's liver, killing him. But reluctant testimony of other police present cleared him of any wrongdoing. "The white O.J. Simpson"?

SENIOR Sergeant Chris Hurley, whose fatal watchhouse fall on Cameron (Mulrunji) Doomadgee sparked almost three years of racial tension and a string of legal and political battles, was yesterday acquitted of unlawfully killing the Palm Islander. After a trial lasting seven days in the Townsville Supreme Court, a jury took three hours and 45 minutes to find Sergeant Hurley not guilty of assaulting and killing Doomadgee in the Palm Island police station in November 2004.

The towering 200cm police officer was emotional, cuddling his crying partner after the verdict was delivered, and receiving the backslaps and congratulations of family members and more than a dozen uniformed police and police union representatives in the court.

But the verdict devastated Palm Island supporters of Doomadgee's family, and brought calls for "dignity and calm" from activist Gracelyn Smallwood and lawyer Andrew Boe, the Palm Island Aboriginal council's legal representative. Doomadgee's partner, Tracey Twaddle, had to be supported by friends after the verdict, and said she was "tired of fighting" and she did not "really have any faith" that there would be any other outcome. His sister, Valmae, equally upset, said she and other family members "just can't keep it up any longer".

The initial autopsy report into Doomadgee's death, which revealed he had died in police custody from massive internal injuries including a liver cleft in two, triggered days of rioting on Palm Island in November 2004. The police station was burnt to the ground.

In September last year, Coroner Christine Clements found Sergeant Hurley had caused the fatal injuries to Doomadgee and referred the matter to Director of Public Prosecutions Leanne Clare. In December, Ms Clare ruled there was not enough evidence to convict Sergeant Hurley of any offence, prompting outrage. Queensland Attorney-General Kerry Shine ordered a review of her decision by former NSW chief justice Laurence Street, who said Sergeant Hurley should face a manslaughter trial.

With the trial over, The Australian can reveal that the only police witnesses to the events surrounding Doomadgee's death - Sergeant Michael Leafe and Constable Kristopher Steadman - refused to provide statements to the prosecution "unless directed by the commissioner".

That direction by Police Commissioner Bob Atkinson was eventually given, and a statement provided by each officer. But at the trial, both remained with other police and the Police Union representatives rather than with the prosecution. A senior Queensland prosecutor told The Australian it was outrageous police could "even think about" withholding evidence in a criminal trial and said it should be investigated by the Crime and Misconduct Commission.

With Sergeant Hurley cleared yesterday, Queensland Premier Peter Beattie called for the community to "move on". Mr Atkinson revoked the suspension he had imposed on Sergeant Hurley in October and reinstated him to active duty at the Gold Coast regional police headquarters. "I know this is a difficult time in our history ... but the rule of law has prevailed here and it's important we accept the decision of the jury, and we move on," Mr Beattie said.

Mr Boe told Palm Islanders and family members after the verdict they had all "been on a long journey" and that the case had taken indigenous justice further than anything previously, particularly with the admission by Sergeant Hurley and his counsel that it was his actions in the police station that had killed Doomadgee.

Sergeant Hurley admitted under cross-examination by prosecutor Peter Davis SC that in a "tussle" with Doomadgee at the back entrance to the Palm Island police station the two fell to the concrete floor, and said he "must have come into contact" with Doomadgee, causing the injuries that killed him. On three previous occasions he had told investigating police he had fallen "beside" Doomadgee, and not on top of him. Medical evidence was that Doomadgee suffered four broken ribs and a liver split in two - cleaved when it was compressed on to his spine.

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Australia: Police protect their own again (2)

A DETECTIVE at the centre of a prisoner cash-for-favours scam unlawfully detained a suspect, disregarded police guidelines and lied to anti-corruption fighters. But the Queensland Police Service last year determined that counselling Senior-Sergeant Graham Richards about his conduct was punishment enough.

The Crime and Misconduct Commission found damning evidence against Rockhampton's Sen-Sgt Richards, Senior Constable Jo-Anne Arthur and Sergeant Stephen Crouch in the case against Ann Aboud, who was jailed for murder in 2001 but acquitted in 2004. The CMC's findings against Sen-Sgt Richards, which can be revealed for the first time, comes just days after The Courier-Mail reported that four detectives had been paying prisoners to falsify witness statements. Sen-Sgt Richards has been suspended with pay over the current investigation, codenamed by the CMC as Operation Capri. Two Brisbane detectives also have been stood down and another one has been suspended with pay.

It's alleged the foursome, who are believed to have varying roles in the scheme, used Australia Post outlets to pay prisoners as much as $1000 to provide false witness statements against other suspects. The CMC yesterday released a statement about Operation Capri, saying that it started a "series of pro-active and covert inquiries . . . into allegations involving possible police misconduct" in 2005. "In part the investigations extend to issues involving the propriety of certain relationships between police officers and convicted criminals."

The statement said Police Commissioner Bob Atkinson had been briefed on the matter which was unlikely to be finalised for "some months". Four months after Operation Capri began, the CMC handed down its findings into Ms Aboud's matter. It found: "The conduct of the various officers does not constitute a criminal offence, however, there is sufficient evidence to warrant consideration of disciplinary action against each of the three officers." It said Sen-Sgt Richards failed to comply with police guidelines and the Police, Powers and Responsibilities Act 2000; unlawfully detained Ms Aboud and lied to CMC investigators during a disciplinary interview.

Sen-Const Crouch was found to have failed to have complied with legislative requirements for obtaining an order for extension of Ms Aboud's detention and for obtaining a telephone warrant. The CMC also made recommendations for procedural change

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Thursday, June 21, 2007

Why you won't see a disbarment like Mike Nifong's again

Now that justice has prevailed in the Duke rape case, with the nice innocent boys exonerated and the prosecutor who hounded them disbarred, it is tempting to chalk the whole incident up to an unusual and terrible mistake—a zany allegation taken too seriously by a run-amok prosecutor. It would be pretty to think that Nifong's humbling suggests that our system of justice works well, harshly punishing the few rogue prosecutors who subvert the legal process. But this is simply not true.

Prosecutors almost never face public censure or disbarment for their actions. In fact, it took a perfect storm of powerful defendants, a rapt public, and demonstrable factual innocence to produce the outcome that ended Mr. Nifong's career. And because only a handful of prosecutors will ever face the sort of adversaries Nifong did or come close to the sort of scrutiny the former DA endured, the Duke fiasco will make little difference in how criminal law is practiced in courthouses around the country. Regardless of Nifong's sanction, the drama leaves prosecutorial misconduct commonplace, unseen, uncorrected, and unpunished.

As Angela Davis explains in her book Arbitrary Justice: The Power of the American Prosecutor, young prosecutors too often see their goal as winning rather than doing justice. The culture of their offices and the adversarial nature of the criminal justice system push them in this direction. Over time, they move further toward, and eventually across, the line separating fair play from systemic manipulation. How often this actually happens is hard to say. Because more than 90 percent of the criminal cases result in pleas, most instances of prosecutorial misconduct never even come to light. Nonetheless, in the rollicking back and forth of a normal state trial, it is a rare case in which problems involving the withholding of potentially exculpatory evidence (as Nifong was accused of doing) don't arise. In most of these instances, a judge deals with late disclosure by adjourning the trial to give the defense more time to respond, or by issuing an ineffectual reprimand. This isn't exactly remedying the problem.

There are, of course, a few particularly egregious cases that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors. And as previously noted in Slate, of the 2,012 cases since 1970 in which appeals judges actually threw out an indictment, conviction, or sentence because of prosecutorial malfeasance, in only 44 did prosecutors even appear before state ethics boards to answer for their actions. Another indicator: A Chicago Tribune investigation found 381 Illinois murder convictions that were reversed because prosecutors withheld evidence or prompted witnesses to lie. The number of those prosecutors publicly sanctioned or disbarred as a result? Zero.

Mike Nifong did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution. Indeed, they'd be vilified if they did. The cardinal rule of sexual assault complaints is "believe the victim," and since anyone who complains is deemed a victim, even a semi-credible complainant can generate an arrest and prosecution in the absence of physical evidence, additional witnesses, or even a prompt accusation. This isn't just the case in Durham; it's true almost everywhere. The widespread support for this questionable practice is such that if the Duke case had gone to a jury and the defendants had been convicted, Nifong would not only still have his law license—he'd have been lionized for his dogged pursuit of rich white kids.

In addition to the charge that he temporarily withheld key evidence from the defense, Nifong faced disbarment because of his public excoriation of the former Duke students. His statements, it was alleged, crossed the ethical line by whipping up public sentiment against the young men, making it harder for them to get a fair trial. As a prosecutor, Nifong obviously had a special obligation to fairness. But in an era of breathless, round-the-clock coverage of big criminal cases, his over-the-top remarks were often defended. Within hours, a cadre of current and former prosecutors flooded the airwaves to condemn the young men, lament their devious ways, and defend Nifong's press strategy. In the heat of the moment, Joshua Marquis of the National District Attorney's Association insisted, "when someone has been arrested for a scandalous crime, the public has a right to know why you brought the charges." And Wendy Murphy, a former sex-crimes prosecutor, opined with no basis whatsoever about the physical evidence related to the sexual assault charges, "There's likely to be stuff in [the DNA report] that the defense doesn't like."

Later, of course, the same prosecutors who so vigorously defended Nifong's conduct became vocal proponents of a severe sanction. Marquis has worried over the undermining of prosecutorial authority, due to the "Nifong effect," and Murphy has also recently edged away from the former DA. What once played as reasonable conduct is now portrayed as the misdeeds of an outlier. A simple calculus explains the shift: If Mike Nifong's conduct is commonplace, then the whole system is corrupt. If other DAs do what he did, then we have to face up to how widespread and corrosive prosecutorial misconduct really is—a discussion Marquis and Murphy and other prosecutors would strongly prefer to avoid.

Though the Duke case has been spun from the outset as a parable about race, it has always been far more about class, access, and power. From the beginning, the three boys had extraordinary legal talent, unusual political access, and significant press savvy. With a steady stream of exculpatory evidence and investigative triumphs that would have eluded all but the wealthiest of defendants, the defense team mounted an extremely well-funded and successful public campaign, exerting tremendous pressure on Nifong and other state officials. In the end, the Duke defendants orchestrated Mr. Nifong's downfall and also won an outcome almost unheard of in our criminal justice system—a pretrial exoneration.

The disbarment of Mike Nifong, and the civil suit or even criminal charges that are almost sure to follow, might seem a pleasing end to a sad saga. And yet Nifong is a scapegoat. Despite their terrifying power to ruin lives, prosecutors are afforded almost unparalleled discretion to do their jobs and extraordinary deference from the courts. As a result, serious sanctions for prosecutorial misdeeds are virtually unheard of. This makes it highly unlikely that Nifong's comeuppance will deter aggressive prosecutors. Instead, his punishment will be seen for what it is: a freakish anomaly.

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Wednesday, June 20, 2007

New Jersey disgrace: Still no justice for Larry Peterson

A big official interest in ass-covering but no interest in justice. I last blogged on this case on Dec. 18 last year

The state of New Jersey owes Larry Peterson a six-figure apology. Throughout Peterson's ordeal - convicted in 1989 of a murder he didn't commit, imprisoned wrongfully for 17 years, freed in 2005 after DNA tests exonerated him - nobody in authority has had the decency to tell him, "We're sorry." Worse, when Burlington County Prosecutor Robert Bernardi finally agreed not to seek a new trial, he went out of his way to imply that he still believed Peterson was guilty. Now Peterson is suing New Jersey under a 1997 state law that allows people wrongfully imprisoned to be compensated $20,000 for each year they spent behind bars.

Paying out is the least that the state can do for Peterson. This rarely used law was born of compassion, but in practice it throws a tall legal hurdle in Peterson's path: Even though DNA tests cleared Peterson of the crime and a judge dismissed the charges, the law requires him to prove in court with "clear and convincing evidence" that he is innocent. "Not guilty" means a prosecutor couldn't prove the case. "Innocent," in this case, means the accused essentially must disprove a charge lodged 20 years ago. "It places an incredibly high burden on someone who was wrongfully imprisoned," said Peterson's lawyer, William Buckman.

The DNA of another man was found on murder victim Jacqueline Harrison, but that man has never been identified. And there's no indication that anyone in law enforcement is looking for him. If the state Attorney General's Office disputes Peterson's lawsuit vigorously, it could take several years to resolve. Instead, the state should finally show Peterson the compassion he deserves and work to settle his claim quickly.

Buckman also has filed a civil-rights suit in federal court on Peterson's behalf against the Burlington County prosecutor, the state police crime lab and detectives involved in the prosecution. Among the excellent questions this suit seeks to answer:

Why were the victim's hairs identified by a state crime-lab technician during the trial as belonging to Peterson? Why did investigators allow a witness to "overhear" them discussing details of the crime before he implicated Peterson? And why was Peterson kept in prison for six months after DNA tests showed he was the wrong man?

Peterson's lawyer should pursue those answers to make sure an injustice like this one never happens again. In the meantime, the state should recognize its moral and legal duty to say, "We're sorry" for the many years of freedom it took from Peterson.

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Tuesday, June 19, 2007

Another "jailhouse snitch" racket -- this time in Australia

DETECTIVES struggling to charge suspects have allegedly paid prisoners thousands of dollars to provide false witness statements. Four police are facing corruption charges over the scheme, which could severely undermine the convictions of some criminals currently serving in Queensland jails. Embroiled in the controversy is Rockhampton Senior-Sergeant Graham Richards, a veteran police officer who in 2001 received damning evidence that Natasha Ryan, dubbed the back-from-the-dead teenager, was alive.

Sen-Sgt Richards was last week suspended with pay over the "noble-cause" corruption allegations. Another detective has also been suspended and a further two have been stood down. All three of those detectives were based in Brisbane.

The Crime and Misconduct Commission has held secretive chamber hearings into the matter. But under the CMC Act it is illegal to publish the names of witnesses who have provided evidence to the commission. It is believed a number of prisoners were paid thousands of dollars to falsify the witness statements, which is a crime.

It is alleged the detectives used Australia Post outlets throughout the state to send express money orders into the inmates' bank accounts at Capricornia Correctional Centre, near Rockhampton, and Arthur Gorrie at Wacol. It has not yet clear whether it will be alleged that the transactions came from the police officer's own money or from a pool of funds.

However, it is understood that the four police believed the suspects they were securing witness statements against were guilty. Sen-Sgt Richards received an anonymous hand-written letter in 2001 during the ongoing search for Ryan suggesting she was alive. The exhaustive investigation into her disappearance continued until 2003, when Ryan was found in her boyfriend Scott Black's Rockhampton home during the trial of serial killer Leonard John Fraser.

Attorney-General Kerry Shine and the Justice Department refused to comment on the potential ramifications because of the ongoing CMC investigation. Police Commissioner Bob Atkinson also refused to comment on the investigation. If the police are charged over the allegations then they face jail sentences.

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Monday, June 18, 2007

Australia: No money available to chase internet pedophiles

PEDOPHILES preying on children over the internet are going unpunished because state and federal police do not have the resources to investigate. The Daily Telegraph has obtained a series of letters from Federal Police agents asking NSW Police to take over cases because they do not have the staff to investigate pedophiles. In one alarming case, a NSW man who "groomed'' a 14-year-old boy in the US for sex on the internet and confided he had molested 100 children was not picked up by NSW Police until four months after the case was handed over by the AFP.

"This matter was originally referred to an operational area of the AFP, however due to operational and resource issues, no investigational activity was able to be commenced at the time," an agent from the AFP's online child sexual exploitation team wrote to NSW Police on November 7 last year. The man, referred to as the "truck driver" in the police file, was not arrested until March, eight months after US authorities first alerted the AFP's Washington bureau to the predator.

"These delays – or in some cases failure to investigate – are unacceptable and the public expects crimes where children are involved to be a top priority," Police Federation of Australia chief executive Mark Burgess said yesterday. The man is known to possess firearms and posed as a scout leader in New Zealand until he was caught with a child in his sleeping bag while on camp. He is currently on bail and awaiting trial. "He made admissions to having a problem with boys, having interfered with 100 children," the AFP letter said. "It is believed one male victim was slightly retarded and has since been in an institution."

In another case offloaded by the AFP due to lack of resources, nine Australians caught sharing child pornography through a global child pornography network are yet to be charged. This is despite the AFP referring the case to NSW on July 26, 2006, listing the names and addresses of the alleged offenders. "The above persons have been identified as residing in NSW and this referral package is provided to your agency for whatever action you deem necessary," the letter read.

Three other NSW offenders were caught trying to share child pornography on the internet with an undercover police officer based in Germany, but once again the AFP halted the investigation because of lack of funding.

The Daily Telegraph has been told more than 100 child exploitation cases had been handed to NSW police in the past year but only half are likely to be investigated by child protection police. The rest will be farmed out to local commands or dropped. The State Government has promised to boost the specialised NSW child exploitation internet unit from four to 11 officers, but will not deliver until 2010.

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Sunday, June 17, 2007

Northern Ireland hunger striker vows to die if rape conviction is not quashed

Hunger striker Oswald Brown said today he was prepared to starve himself to death rather than live with a "wrongful" rape conviction. Entering the second week of his second hunger strike, Brown accused the judiciary of tricking him into abandoning his initial hunger strike, which lasted 54 days, by agreeing to re-examine his conviction. However, he claims that several months later no movement has been made on his case.

Brown told the Belfast Telegraph that he has written to the Coroner's Office detailing his protest so it can be recorded in the event of his death. "I want to live if the wrongful conviction is quashed, but I want to die if the wrongful conviction is not quashed. I will not come off the hunger strike protest until the wrongful conviction is quashed," he said. "All I have been living on is water and I have no intention of eating again until my case is looked at."

Brown (38), who is currently living in Bangor, was sentenced to six years in prison in February 2001 for rape, and was released three years later having served half his term. The father-of-two went back to jail in August 2006 when he failed to sign the sex offenders' register, and later began the hunger strike, during which he says his eyesight was damaged.

As his health deteriorated in December his case sparked a disagreement between High Court Judge Mr Justice Deeny and Belfast City Hospital after his physician chose not to force-feed him on the grounds that he believed he was of sound mind and fully aware of what he was doing.

Brown told the Belfast Telegraph he took the decision to go on another hunger strike after receiving a letter from the Official Solicitor to the Supreme Court stating that she could not find a QC to look at his trial papers for no fee and therefore no headway has been made in his case. She told him: "Even if I am able to get a QC to look at these papers you and your family will have to push the matter forward. I am going to keep trying to get some help for you but you must do likewise."

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Saturday, June 16, 2007

Negligent Canadian prosecutors in trouble

About time

James Driskell was convicted of murder and was imprisoned for more than 12 years before his conviction was quashed. Driskell and his mother filed a wrongful conviction lawsuit against the authorities responsible for his conviction, and now a court has ruled that most of the claims may proceed.

The case arose out of the murder of Perry Dean Harder in September 1990. Driskell and Harder were friends, and authorities believed Driskell shot his friend to death because Harder had implicated Driskell in other crimes. Driskell, however, has always said that he did not kill Harder.

Driskell stood trial for first degree murder, and was convicted in 1991. After he spent over than 12 years in prison, a federal justice minister who reviewed the case quashed the conviction and ordered a new trial. But the authorities decided not to bring Driskell to trial a second time.

After these events, Driskell and his mother, Florence, filed suit against several governmental parties, including police officers and Crown prosecuting attorneys involved in his conviction. The lawsuit alleges that the defendants' acts of negligence, which included failure to disclose evidence to defense lawyers, caused Driskell to be wrongfully convicted.

The defendants' lawyers filed motions seeking to dispose of many of the claims. Among other things, lawyers for the Crown argued against allowing civil claims for damages against Crown attorneys for their actions in the prosecution of criminal cases. For the most part, Justice Shawn Greenberg left the lawsuit intact, and the defendants must now decide whether they will appeal. Driskell and his mother are seeking $20 million dollars in damages in their lawsuit.

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Friday, June 15, 2007

Law lets pedophiles off the hook in Australian State of New South Wales

Hundreds of paedophiles could be removed from the state's child protection register after a successful court bid by a sex offender. The court case has exposed a legal loophole in the legislation that tracks convicted paedophiles. Police have so far contacted 26 men who received a suspended prison sentence or good behaviour bond for child sex offences, informing them their names have now been scratched from the register.

It follows a successful Supreme Court challenge by Wollongong man Ajan Khanna, 33, who was convicted of committing an indecent act on a six-year-old girl while staying with her family during a "spiritual education" conference in Melbourne. Khanna received a 12-month suspended jail sentence and fought attempts by NSW Police to place him on the paedophile database.

Justice Paul Brereton agreed with him, ruling the law required only those offenders who had been given a "supervised" sentence be placed on the register. Now Khanna's name, and those of up to 200 other convicted paedophiles, will be removed. Outraged victims groups said the ruling would give predators the opportunity to apply for jobs with children because their whereabouts will no longer be tracked.

Latest police figures show as at August 31 last year there were 2308 child sex offenders on the register. Since 2001, 1117 people have been convicted of child sex offences, with approximately 200 given suspended sentences or unsupervised good behaviour bonds.

Police Minister David Campbell last night described the court ruling as setting "an awful precedent" and vowed to close the loophole by introducing fresh legislation next week. "It is the strongly held belief of this Government that anyone convicted of a registrable offence should be on that register regardless of what any judge thinks," he said.

At a hearing earlier this year, Justice Brereton said Khanna had been convicted of what would be a "class 2" offence in NSW – punishable by a term of imprisonment of 12 months or more. Because his sentence was suspended it never "took effect", so he was never under the supervision required by law for his name to be placed on the register.

Mr Campbell said he would ensure the names of paedophiles already removed from the register would be reinstated. "NSW has the toughest and longest-standing register in the country and the highest rate of compliance," he said. "This case let 32 people off the . . . register on a legal technicality." He said he would urgently introduce legislation next week to put these child sex offenders back on the register "where they belong." He said police had acted on advice from the Crown Solicitor when they advised the 32 men they would be removed from the register.

BraveHearts executive director and child protection campaigner Hetty Johnston said the community would view the judge's decision as completely unacceptable. Ms Johnston said a suspended jail term was not a light sentence. "There is no sexual offence against a child which is insignificant," she said.

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Thursday, June 14, 2007

Rogue California cop on trial at last

There is video of what happened here -- showing that the aggressive cop did not give the guy a chance. It's sheer luck that the guy survived three bullets in him. Extended commentary on the matter here. It will be a disgrace if the cop gets off -- but we know how heavily cops are protected from the consequences of their misdeeds

A sheriff's deputy abandoned core training practices and engaged in "extraordinarily risky" behavior when he confronted, then shot, an Iraq war veteran after a high-speed chase, an expert witness testified. Senior Airman Elio Carrion was shot three times by Ivory J. Webb, then a San Bernardino County Sheriff's Department deputy, in a videotaped confrontation after the car crashed into a concrete wall. Webb, 46, has pleaded not guilty to felony charges of voluntary attempted manslaughter and assault with a firearm. If convicted, he could face more than 18 years in prison.

Joe Callanan, the prosecution's expert, testified Monday that as a lone officer on the scene, Webb was trained to stay in a defensive position by his patrol car, using his open door as a shield. "You have to have discipline and, personal control," said Callanan, a retired Los Angeles County sheriff's training officer and police use-of-force specialist.

According to earlier testimony, Webb never reported over his police radio that he was engaged in a pursuit. His first transmission was to report that he was holding two suspects at gunpoint. He then gave backup officers at least two erroneous reports of his whereabouts, leaving them unable to find and help him.

Defense attorneys argue Webb may have believed Carrion was reaching for a weapon in his jacket pocket as he stood up. Carrion testified last week that he never reached into his jacked but acknowledged that both he and the driver, a high school friend, were intoxicated and did not follow Webb's orders to be quiet.

The shooting happened after Carrion and his friend left a barbecue in the airman's honor. He was home on leave after serving a six-month tour in Iraq and preparing to return to his base in Louisiana.

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Wednesday, June 13, 2007


And is horrified that basic reforms are still being refused by NY legislators

In 1976, I was indicted, charged and tried in less than three months for a murder I did not commit. As shocking and traumatizing as the accusation was, hearing the guilty verdict and death sentence was far more so. I had previously thought that only the guilty were convicted, except perhaps in relatively minor cases where the consequences were hardly death by electrocution — then the more “humane” method — or life imprisonment.

The guilty verdict hit me like something I’d never come close to experiencing. It was unreal. Now I think I better understand why deer just don’t jump out of the way when a car with headlights is bearing down on them. They are paralyzed with fear. It was like a nightmare in which I couldn’t move. Guilty. Impossible words were said. I wasn’t there to see it happen, but my mother collapsed shortly afterward, either in the courthouse or just outside. The guilty verdict meant death.

I had read the statutes and knew that if I was convicted, a death sentence would be mandatory as long as I maintained my innocence. I had refused a plea bargain to a reduced charge of manslaughter prior to trial — I had told the lawyer I would refuse all deals — and I knew I wouldn’t compromise the truth here either. Death it was, by electrocution.

During my trial we learned that the actual murderer — who was the state’s chief witness and had been an escapee from prison at the time of the murder — had told at least one other person that he had “killed this guy” and was setting me up in a deal to gain his freedom. The judge, a cynical and extremely biased former prosecutor, ruled that this evidence was irrelevant — I was on trial, not the state’s chief witness — so the jury never heard it.

After the state and defense rested, the judge charged the jury. The jury then picked a foreman, ate dinner, “examined” all of the exhibits and convicted me in three hours. The real killer was released the day after my trial despite the fact that the prosecution’s witnesses swore this would not be the case.

Today I know that it takes very little to convict, sometimes nothing. But back then I continued to think that my innocence would prevail. There is nothing stronger than the truth. I thought we had the best criminal justice system in the world. Yes, mistakes were made, but not when someone’s very life was at stake. I was white, fairly intelligent and even knew something about the law. They wouldn’t — or couldn’t — take advantage of me. I was not rich, though. In fact, I was relatively poor. But what did that matter when it came to actual innocence?

As I tragically realized later, not having money, or affluence, had a lot to do with everything, especially in the criminal justice system. Wrongful convictions occur far more frequently than most of us realize, than most of us can even imagine. There is no doubt in my mind that those Duke lacrosse boys would be in prison right now if their families had not had the means to challenge those allegations.

I have little doubt that the prosecutor would be addressed as Judge Mike Nifong today if the system had brought its awesome power to bear on those who did not have the means to fight back, which is happening very frequently.

The Duke Law School also has a “Wrongful Convictions” class, and there’s little doubt in my mind that that class was seeing the earmarks of a wrongful conviction very early on. Nifong made a thoughtless blunder, but he revealed a phenomenon that is commonplace in our country.

There have been 124 exonerations from death row. You would think it would be hard to end up on death row; imagine how hard it would be to get off death row. You practically have to prove you’re innocent, and incredibly, sometimes even that is not enough. When a crime incites the public’s passion, it is easy for the public to assume that someone with little status in society is guilty. There is no doubt in my mind that the killing of a police officer sets up circumstances where the possibility of wrongful conviction increases. The public assumes guilt once someone has been charged. Sadly, I catch myself assuming it often enough. The media assume it in a big way and they play up on it. It sells. The police and prosecutors of course know, and too often judges and even defense attorneys assume guilt. It is an interwoven fact of our legal system.

Recently, my next-door neighbor stunned me with a question she blurted out. After having known me for more than two years, and then just learning that I had once been on death row, she said, “But how could you have been on death row and not killed someone?!”

What happened to me was that the police were so intent on convicting me that they used the testimony of a man who turned out to be the real killer. That man was an escaped prisoner, who sold me out in a deal with prosecutors that sent me to death row. It was only during my second trial that the real killer was arrested again, and bragged to fellow inmates that he had set me up to take the fall for a murder he committed. Five of those inmates testified in my behalf, and that is the only reason that I am free today — and not among the wrongfully executed.

I made it out because I had the ability to represent myself, and luckily got a judge who cared to look at the facts. As in the case of Roy Brown, recently released from prison here in New York, it was not the system that worked but his own efforts. He solved the murder in his case from jail, and fortunately there was DNA evidence to exonerate him.

With Texas, New York leads the country in the number of wrongful convictions. Most of these came to light years after legal appeals were exhausted. If New York had an active death penalty, some of these men may not be here today. It boggles my mind that the New York State Senate would vote for a new death penalty bill without enacting the many reforms needed to lessen the possibility of wrongful convictions.

Before that recent vote, Sen. Eric Schneiderman, D-Manhattan, proposed that some changes to protect the innocent be added to the bill. The proposed amendment would have required improved preservation and access to DNA evidence, videotaping of interrogations and revised eyewitness identification procedures. These are the minimal reforms suggested by the Innocence Project to prevent wrongful convictions.

I know that the system can never be fail-proof, but it can be better. Sen. Dale M. Volker, R-Depew, and 36 others voted against these protections, and then for the bill without any changes whatsoever.

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Tuesday, June 12, 2007


And a resultant death again. The unfortunate woman should have accused someone of a "hate crime" and then she would have got instant action

An inquiry was under way last night into a series of police blunders which ended in the “honour” killing of a young woman at the hands of her father and uncle. At the centre of the police investigation will be the role played by PC Angela Cornes, who ignored the claims by Banaz Mahmood that her life was in danger and instead dismissed the 20-year-old Kurdish woman as being melodramatic. After her father Mahmod Mahmod, 52, and her uncle Ari Mahmod, 51, were convicted for murder yesterday at the Old Bailey, The Times can reveal that Miss Mahmood had told police on at least four separate occasions that the men were going to kill her because she had fallen in love with a man they disapproved of. She had even handed them a list of other men who she believed had been ordered to kill her because she was deemed to have shamed the family.

The investigation will analyse why officers appear to have ignored guidelines on how to treat suspected “honour” victims within Britain’s Asian community. They were issued to all police forces only 11 months before Miss Mahmod first voiced her fears. Last night the Home Office and chief constables promised fresh action to ensure that police recognise the complex issues facing women who are accused of dishonouring their families, often by adopting Western values by rejecting arranged marriages and traditional – often religious – dress from their home countries.

The Metropolitan police investigation will examine how PC Cornes dealt with Miss Mahmod as she lay covered in blood after fleeing from her father, who had plied her with drink and tried to kill her. In evidence to the trial the officer decided that Miss Mahmod was a melodramtic New Year’s Eve drunk. She even considered charging her with criminal damage for breaking a window to escape the attempted murder at her grandmother’s house.

Miss Mahmod, who came to Britain after escaping the brutality of Saddam Hussain’s regime in Iraq, was strangled at her South London home because she had ended an arranged marriage and started a relationship with another man. While the father and uncle showed no emotion as the unanimous verdicts were returned at the Old Bailey, their victim’s boyfriend, Rhamat Sulemani, 28, sobbed.

Last night support groups for “honour” victims joined Mr Sulemani, 28, in criticising the police failings. He said: “I hope that police are going to take this more seriously because it is happening every day in Britain. If somebody goes to the police and complains that they are threatened by someone and they fear for their lives, I just hope that they are going to do something before it’s too late.”

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Monday, June 11, 2007

Coverup for Canadian politician becoming unglued

The trial of former B.C. government aides Dave Basi, Bob Virk and Aneal Basi took a controversial twist this week when the judge in the case slammed the prosecution for failing to disclose evidence. The three men are on trial for fraud, bribery and breach of trust in the wake of the Dec. 28, 2003 raid on the provincial legislature.

B.C. Supreme Court Justice Elizabeth Bennett, growing impatient with defence and prosecution arguing over the disclosure of documents, ordered the full and complete disclosure of “every piece of paper” related to the case. Bennett gave the Crown until June 30 to disclose “all photos, videos or other information relating to” the RCMP’s surveillance of former Finance Minister Gary Collins’ meeting with officials from OmniTRAX, one of two unsuccessful bidders on the project.

The defence alleges that OmniTRAX officials felt the BC Rail bidding process was deeply flawed and demanded a “consolation prize” as compensation.

The RCMP have said that neither Collins nor any other elected officials were under investigation in the case, but have yet to disclose the evidence gathered during Collins’ meeting with OmniTRAX. A notice of application for disclosure filed in B.C. Supreme Court in February alleges that Dave Basi, Collins’ ministerial assistant at the time, was acting on orders from his boss.

Police and prosecutors have yet to provide documentation outlining why Collins was not considered a suspect, a sore point with both Bennett and defence lawyers for Basi, Virk and Basi. The disclosure application lists hundreds of documents that were either withheld or “provided in a vetted form.”

The defence has also been clamouring for transcripts of wiretapped conversations between Dave Basi and Victoria area associates that were under investigation for drug trafficking in the fall of 2003.

Known as Project Everywhichway, the investigation that led police to Dave Basi began as a probe into drug-trafficking, money-laundering and organized crime. In November 2003, the case shifted focus when police intercepted calls suggesting criminal wrongdoing in the BC Rail deal.

Bennett told the court Monday that ordering full disclosure of evidence is the only way “to ensure no miscarriage of justice will occur.” However, some observers have suggested that investigators and prosecutors have mishandled the vetting of evidence badly enough to cause a mistrial.

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Sunday, June 10, 2007

Police goons in Maryland

Annapolis police raided the wrong apartment Wednesday night, using flash grenades and kicking a resident in the groin before they realized their mistake, police and the family said.

Police spokesman Hal Dalton said something must have gone amiss in the briefing beforehand. "We don't know how the mistake was made," Dalton said.

Silvia Bernal, 30, told The (Annapolis) Capital that about 15 officers burst through the front door of her apartment while she was cooking dinner about 8:20 p.m. She said the officers kicked her husband in the groin while she fled into a bedroom and barred the door with her body.

Then she said both of them were taken to the ground and handcuffed. The Capital said a police officer went outside and realized they had raided the wrong residence.

Dalton said they were supposed to have raided a different apartment and said the incident was regrettable.

Spa Cove apartment manager Latisha Marshall says there is a large dent in the front door. And she said there are two large black stains from the flash-bang grenades police deployed after entering the apartment.

When officers and the city's tactical squad went to the right unit, they said it was empty.

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Saturday, June 09, 2007

U.S. judge stops California state thievery

But it has been going on for years and the State is not giving up yet

The state's habitual seizure of supposedly unclaimed property in bank and stock brokerage accounts, safety deposit boxes and other repositories of wealth has always been more than a little questionable. The theory of "escheat," as it's called, is faintly medieval, assuming that idle property can be taken by a king for his personal use by divine right, a distant cousin of the doctrine of "eminent domain" under which property may be taken for public use. California, however, refined it into a lucrative source of income, even making it easier to seize property when the state's budget was, as it often is, out of balance.

Banks and other holders of property have been required to transfer the assumed unclaimed assets to the State Controller's Office (although they often held onto it as long as possible for their own reasons). The controller would then make a token effort at finding the rightful owner, often nothing more than a fine-print newspaper ad, before depositing the property -- sold if necessary -- into the state treasury. So far, the state has seized $5.1 billion in property from 8.2 million accounts over the last half-century.

Last week, a federal judge ordered the state to stop seizures until it had vastly improved its efforts to find the rightful owners -- rejecting the state's rather unseemly claims that it would lose a lucrative source of income, about $400 million a year currently. His ruling followed a federal appellate court ruling that seizing property and giving faint notice to owners was unconstitutional. "If the purpose of the law is, as the controller has reportedly said, to reunite owners with their lost or forgotten property, its ultimate goal should be to generate little or no revenue at all for the state," Judge William Shubb observed. He hinted that he would seize control of the system if he was not satisfied that the revised system was workable.

Controller John Chiang, while fighting the lawsuit filed on behalf of those whose property has been seized, said he would sponsor legislation to improve locating owners. The Legislature had previously rejected efforts to tighten up on escheat, unwilling to choke off a source of revenue for the state's chronically imbalanced budget.

It's high time for reform. The California Taxpayers' Association took a look at the list of unclaimed property in the controller's office and found, among other things, that the state itself was often listed as an owner, with millions of dollars at stake. Cal-Tax also learned that such well-known institutions as Disneyland and the Los Angeles Times were among those listed. The research undercut the Controller's Office's arguments that it had not been able to identify who rightfully owned escheated property.

The cases that triggered the lawsuit were especially egregious examples of official pocket-picking. Sacramentan Jafer Ehtesham said stock being held for him by a broker was seized and sold for $54,000, just half of its value. Another victim, a resident of England, alleged that the state took 52,000 shares of stock in Intel Corp. and sold it without notifying him, costing him $3 million.

The courts' intervention in what was clearly an outrageous process -- legalized theft, in reality -- could be costly for the state government. It not only can't count on escheats for several hundred million dollars a year in revenue, but those whose property was taken can now seek damages, and they could get hundreds of millions of dollars more. State officials expect dozens, if not hundreds, of suits seeking recovery to be filed. "The state still hasn't awakened to what's going on here," said William Palmer, the Sacramento attorney who won the federal lawsuit. "I have clients all over the country. I represent people from Greece that have lost property here."

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Friday, June 08, 2007

Suppressed evidence in New Orleans -- and nobody cares

Dan Bright stood in the middle of Laussat Street in the Ninth Ward and pointed to the spot where Murray Barnes was shot to death in 1995. He walked across the street to Creola’s Bar, now a flood-ravaged shell of a building. “And this is where he ran inside and collapsed,” Bright said. It was late afternoon and the sky was gray with storm clouds. Bright pointed to a one-story brick apartment building two blocks down the street and around the corner from Creola’s. The windows and doors were gone. There was nothing inside except scattered bottles and cracked mud left over from the storm. “That’s where I was when the guy got shot,” Bright said, and then he grew quiet. “If there had been a stop sign or a red light, something that would have made me five minutes latey. “It’s like walking someone through my worst nightmare.”

An Orleans Parish jury convicted Bright, 26, of first-degree murder in 1996 for slaying Barnes and sentenced him to death. Eight years later, the Louisiana Supreme Court ordered Bright’s release and a new trial because evidence suppressed at the time of trial included a statement from a confidential FBI informant positively identifying the real murderer as Tracey Davis. The state declined to retry Bright. “I’m angry because nothing is being done. No one is taking any responsibility for what they did to me,” Bright said.

In April, DNA evidence helped exonerate the 200th person wrongfully imprisoned in the United States. Louisiana has had nine DNA exonerations, the fourth-highest rate in the country, according to the Innocence Project, a New York-based organization dedicated to freeing wrongfully convicted people through DNA evidence. Emily Maw, director of the New Orleans Innocence Project, said Louisiana’s wrongful incarceration rate follows naturally with having the highest incarceration rate in the world and a broken indigent defense system.

Bright, however, is not counted among these numbers because he has never been fully exonerated. When the state declined to retry the case, it robbed Bright of the opportunity to have the charges dismissed in a new trial. Now he fears he will forever be labeled a murderer for a crime he didn’t commit. “First thing and last thing anyone sees in me is death row,” Bright said.

Bright and many others are products of Harry Connick’s reign as Orleans Parish district attorney, Maw said. In 1995, the U.S. Supreme Court ruled a defendant’s constitutional rights are violated if the suppression of evidence denies a person a fair trial. The landmark ruling arose from a trial overseen by Connick’s office, in which the suppression of evidence was ruled egregious by the Supreme Court. “Suppression of evidence like in Dan’s case is a legacy in New Orleans,” Maw said.

Bright’s trial took two days and ended with a death sentence. “Everything was in a fog,” Bright said. “It was going too fast for something I didn’t do.” Bright spent five years in Angola State Penitentiary on death row in a coffin-sized cell for 23 hours out of every day. After the courts commuted his sentence to life, Bright was thrown into a dormitory populated by 72 hardened felons.

In his first six months in general population, Bright saw a man tied to a bed, doused in oil and burned alive, and another whipped with a sock full of padlocks. And then they came after him. One day Bright found himself in the shower threatened by a 6-foot-6, 300-pound inmate. He had two choices — run and risk being labeled “easy prey” or fight back. “Violence breeds violence,” Bright said. “You have to become what the rest of them are in order for you to stay alive. If you don’t protect yourself in Angola, every little fish in the sea is going to take a bite out of you. So I whipped him with a bat.”

Bright’s self-defense earned two years in solitary confinement in a cell the size of a bathroom with no television, radio, newspapers or human contact. “There were 237 bricks in the walls, which were 10 paces apart,” he said. “Once you hit Angola you’re as good as dead.”

While Bright was fighting for his life on the inside, he made a strange ally on the outside — Kathleen Hawk Norman, the forewoman of Bright’s jury and one of the people responsible for sentencing him to death. Norman said the responsibility of holding a man’s life in her hands was a terrible burden but she believed they had convicted a guilty man at the time. Four years later, when she heard attorneys had discovered a statement from an FBI agent identifying the real killer, she requested a meeting with Judge Dennis Waldron, who presided over Bright’s trial. “After the judge heard my testimony, he said either I was confused or misguided and showed me the door,” Norman said. “These guys were perpetrating a fraud on the public and let me sentence an innocent man to death.”

Norman devoted the next four years to securing Bright’s release with suppressed evidence that could have proven his innocence at the original trial. The Louisiana Supreme Court said the FBI failure to release the informant’s statement “cannot be tolerated in a society that makes a fair and impartial trial a cornerstone of our liberty from government misconduct.” Prosecutors also concealed the criminal history of Freddie Thompson, the only witness to implicate Bright. Of the first 130 DNA exonerations in the United States, 101 involved false identification, according to the Innocence Project.

Eight years after Bright entered Angola, the court ordered his release. Bright has been a free man for more than two years but continues to struggle. He can’t get a loan to buy a house and can’t land a steady job. The children he left behind to be raised by his parents think of him as a big brother instead of a father.

During his first year of freedom Bright said he filled a paper bag with receipts to prove where he was at all times. If he went to a store he would stand in front of the security camera to make sure it recorded his face. “They weren’t going to get me again.” But because his charges were never dismissed, he remains a legal target.

“When the cops pull me over and run my license, ‘death row’ pops up,” Bright said. “It’s not that I’m innocent. It’s that I got out on a technicality. One time the cops drew their guns on me, made me get out of the car, put the cuffs on me and brought me down to the police station all because death row is still on there. I thought, ‘Here we go again.’”

Bright and Norman remain close friends but she said the experience destroyed her faith in the justice system. “Dan’s sister Donna saw the guy who did the murder on the streets for years after. She asked him how he could do this, let her brother be executed, and he said, ‘They don’t have any evidence on him. No way he goes down.’”

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Thursday, June 07, 2007

Slack Australian forensic science again

FOR 17 months a vital clue to the killer of Sevda Bayrak was at the fingertips of police. It lay in a strand of hair found under the right thumbnail of the Turkish-born 33-year-old during an autopsy that revealed she had been stabbed 22 times. It lodged there as she fought for her life on the night of Saturday, November 26, 2005, inside her unit in Betts Street, Parramatta.

The technology exists in Australia to compare the DNA of blood from suspects to blood found at a crime scene, but Australia does not have the capacity to test for mitochondrial DNA from hair follicles, a Sydney court was told yesterday. So the weeks passed until last month, when police decided to send the strand of hair for testing in New Orleans. It was compared to saliva volunteered by a number of persons of interest, including Yusif Aytugrul, 41, a Turkish-born immigrant of Auburn. The US experts allegedly found a positive match.

Aytugrul was charged with murder before Burwood Local Court yesterday. The court heard that he had a brief relationship with Ms Bayrak. Samantha Mitchell, for the Director of Public Prosecutions, alleged Aytugrul was obsessed with Ms Bayrak after the couple ended their brief relationship in 2003 and had "stalked" her and threatened her family. Ms Mitchell said Aytugrul was interviewed by police a few days after the murder and denied ever having gone there. During a second brief interview 12 days after the murder he volunteered his DNA.

The court was not told why it took so long for police to send the hair follicle for tests abroad.

During an unsuccessful bail application for Aytugrul, the single father of a 10-year-old boy, his solicitor Iknur Bayari said her client intended to plead not guilty. The magistrate, Jane Mottley, remanded him in custody

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Wednesday, June 06, 2007

Great! Negligent forensic scientist gets stung!

Far too rare

Ontario's highest court ruled yesterday that an embattled pathologist must pay $44,000 to a woman who is filing a lawsuit against him. Louise Reynolds was cleared to proceed with a suit against Charles Smith last month, nearly a decade after she served jail time in connection with her daughter's death. Dr. Smith's autopsy found that seven-year-old Sharon died from multiple stab wounds, but later investigations revealed she was mauled by a pit bull. Ms. Reynolds's suit claims Dr. Smith performed a negligent autopsy on her daughter.

Yesterday's ruling by the Ontario Court of Appeal says Dr. Smith must pay Ms. Reynolds $44,000 within 30 days. The money is intended to cover her legal costs incurred during previous court proceedings and her recent appeal. The ruling stated that Ms. Reynolds, who currently has no money, has been receiving pro bono legal services in her continuing attempts to "have her day in court."

The ruling is meant to ensure that Ms. Reynolds and others in similar circumstances have fair access to the justice system, according to the court. Dr. Smith is at the centre of a provincial inquiry after a coroner's review raised concerns about 20 of 45 child autopsies he performed since 1991. Of the 20 questionable cases, 12 resulted in criminal convictions, while one ended with a finding of not criminally responsible. No date has been set for the commencement of Ms. Reynolds's lawsuit.

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Tuesday, June 05, 2007

Another forensic science lab falls under a cloud

Another Australian one

HUNDREDS of suspicious deaths may be reviewed after a damning report into the NSW's CSI laboratory - the NSW Institute of Forensic Medicine. The possibility of a mass review by health authorities follows a finding that senior forensic pathologist Dr Allan Cala was guilty of unsatisfactory professional conduct after he wrongly ruled a double murder was an accident.

The findings of the NSW Medical Board's professional standards committee can now be revealed after a suppression order was lifted. Dr Cala, who worked at the Glebe institute but is now South Australia's top pathologist, was fined $5500 for bungling the inquiry into the deaths of Pam and Bill Weightman, who were murdered by their adopted son David in 2000. The Weightmans' bodies were found in their car at the bottom of an embankment at Heathcote, south of Sydney. Dr Cala, who performed post mortem examinations on the couple, ruled they had died in a car accident.

But, last year, it was revealed David Weightman had staged the accident after he drugged, strangled and suffocated his parents. Their bruises were sustained as they fought for their lives.

The Health Care Complaints Commission later took action against Dr Cala, whose high-profile cases include the Norfolk Island murder of Janelle Patton. Dr Cala told the hearing he had requested more information from the police, but completed his autopsy report without receiving it. He also failed to document his concerns to the police and the coroner, the committee found. Photographs of the bodies, which Dr Cala initially denied taking before saying he had, have gone missing.

In a further bungle, Dr Cala discovered he had prepared a post mortem report on the wrong body after typing an incorrect number for Mr Weightman's brain into his computer. The committee said Dr Cala was "genuinely contrite" for his mistakes.

An international forensic pathologist called as a witness at the inquiry said Dr Cala should not be made a scapegoat for systemic problems between the institute, police and the coroner. Emeritus Professor Rex Ferris told the hearing that responsibility for the bungle had to be shared. "There appears to have been a culture of poor interdisciplinary communication in the institute, the police and the coroner's office," he said.

However, the Weightmans' brother-in-law Alan Urwin said yesterday: "The public needs some confidence back in the judicial system." A spokesman for Attorney-General John Hatzistergos said the HCCC had reviewed all Dr Cala's cases and no other bungles had emerged. But, he invited families concerned about the handling of a case by the institute to approach the HCCC, which can conduct an independent review.

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