Sunday, September 30, 2007

Justice Department urged to investigate FBI staffer

The ex-Riverside County deputy was found to have made up evidence that led to a false rape conviction. It is about time there is some retribution against these crooked cops

A coalition of national nonprofit groups asked the Justice Department on Tuesday to investigate and suspend an FBI employee who was found by a jury to have falsified evidence against a man who served 12 years in prison before being exonerated by DNA evidence. The National Innocence Network, which is dedicated to clearing people who are wrongfully convicted, asked Justice Department officials to investigate former Riverside County Sheriff's Deputy Danny Miller, who now works for the FBI. A federal jury found in April that Miller had helped wrongly convict Herman Atkins on robbery and rape charges 19 years ago.

The jury, seated in Los Angeles to hear Atkins' civil rights claim over the wrongful conviction, unanimously concluded that Miller had "intentionally attributed a statement" to a witness that the man did not make. The jury also unanimously concluded that Miller had "failed to disclose" that he had "fabricated" the statement and that there was a "reasonable probability" that if he had told the truth the outcome of Atkins' trial "would have been different." During the trial, Miller testified that he now works as an intelligence analyst for the FBI, focusing on homeland security, at the agency's Little Rock, Ark., office.

Tuesday's action marked the first time that the National Innocence Network, made up of organizations at 31 law schools, "has ever asked that a law enforcement officer be suspended and investigated for misconduct that led to a wrongful conviction," said Kathleen Ridolfi, executive director of the Northern California Innocence Project at Santa Clara University Law School. The coalition made the request in a letter to Inspector General Glenn A. Fine of the Justice Department's Civil Rights & Civil Liberties Complaints Office in Washington.

Atkins, now a Fresno resident, was convicted of rape and robbery in Riverside County and sentenced to 45 years in prison, stemming from a 1986 robbery and rape at a shoe store in Lake Elsinore. He steadfastly maintained his innocence. In 2000, DNA tests conducted by Richmond, Calif., forensic scientist Edward Blake, and later confirmed by the FBI, eliminated Atkins as the source of semen found on the victim's sweater. Atkins was released from prison the same year. The actual rapist was never identified.

Two years later, Atkins filed a civil rights case in federal court, alleging, among other things, that Miller had fabricated evidence and withheld information that raised doubts about whether Atkins had committed the crime. At Atkins' criminal trial, Miller had submitted a statement attributed to a man named Eric Ingram, saying that he knew Atkins to be a gang member and had seen Atkins in Lake Elsinore at the time of the crime. Years later, a private investigator tracked down Ingram, who signed a sworn statement saying he did not know Atkins and had not told Miller that he had seen Atkins in the vicinity of the crime scene.

During Atkins' civil trial this year, Miller denied that he had made up evidence. But on April 30, the jury awarded Atkins $2 million in damages and filled out a special verdict form stating that Miller had fabricated and suppressed evidence.

Ridolfi's letter to the Justice Department said that "in light of these extraordinary developments," the innocence network was asking that Miller be the subject of a formal investigation, "which could result in the termination of his employment with the Bureau. Indeed, given the security and sensitivity of Miller's assignment, we urge you to consider suspending him pending the outcome of the investigation." "We are confident that the FBI and the Department of Justice will conclude . . . that it is inconceivable that our nation's homeland security will rely on the intelligence analysis of a man found in a court of law to be a liar and an evidence fabricator," Ridolfi added.

Peter Neufeld, co-founder of the Innocence Project at Cardozo Law School in New York, said that although there had been evidence of police misconduct in many wrongful-conviction cases, no request of this kind had been made in the past because "in almost all of our cases the cops who engaged in the misconduct have retired or died" before the evidence came to light. This case is different, Neufeld emphasized, because the officer in question still has a significant job in law enforcement.

The Justice Department did not respond to inquiries seeking comment. Last week, in a related development, U.S. District Judge Dean D. Pregerson in Los Angeles awarded $1.3 million in fees and $165,000 in costs to Neufeld and his three co-counsel, who represented Atkins in his civil rights suit against Riverside County. Pregerson said the case involved "complex and novel issues" and that the attorneys' briefs and oral arguments "were excellently presented."

Riverside County has appealed the damage judgment, and it is anticipated that the county will also appeal the fee award.

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Saturday, September 29, 2007

CA: Corrupt prosecution and imprisonment of Ricky Walker finally settled

Police who just KNEW who was guilty made the facts fit

Santa Clara County agreed to pay wrongfully convicted East Palo Alto resident Rick Walker $2.75 million to settle a lawsuit stemming from his 1991 murder conviction, Walker's attorney announced today. Walker, 51, was released from prison in 2003 after DNA tests and other new evidence cleared him of the stabbing and suffocation death of his former girlfriend Lisa Hopewell, a Cupertino resident. "This is going to allow him to have a little bit of financial breathing room at this stage of his life,'' Walker's attorney Matt Davis said.

Walker had already received more than $400,000 from a State of California fund for wrongful convictions. Walker has no other lawsuits pending in connection with his wrongful conviction. "This closes the book,'' Davis said. Santa Clara County Counsel Anne Ravel was out of the office at a State Bar Association meeting and unavailable for comment on the settelement.

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When Quedellis Ricardo ``Rick'' Walker was freed from state prison this month after serving nearly 12 years for a murder he didn't commit, the Santa Clara County district attorney said Walker had been framed by another man who participated in the killing. But a review of Walker's conviction in 1991 for killing an ex-girlfriend also shows that investigators did not check key evidence, and the prosecutor who tried the case misled jurors and struck secret deals with key witnesses.

Detectives did not record a key interview with the man who falsely accused Walker, and did not succeed in verifying his story, documents and interviews with participants in the case reveal. The district attorney's office also did not test potentially exculpatory physical evidence. And the prosecutor who tried the case hid from the court two leniency deals that were decisive in convicting Walker and misled jurors to bolster his star witness's credibility. The district attorney's office now concedes that the two key witnesses repeatedly lied on the stand.

Assistant District Attorney Karyn Sinunu, who is overseeing a review of the case, acknowledged in an interview last week that her office should have done things differently. ``I want to take responsibility for what we did,'' she said. Sinunu said, however, that others also deserve blame. ``There were so many things that went wrong,'' she said, pointing at the sheriff's department, Walker's lawyer and dishonest witnesses.

Indeed, the problems with the case have renewed questions about why Walker's lawyer didn't do more to fight the prosecution's actions and to develop evidence that someone else was guilty. The district attorney's office is now investigating another suspect. But the case against Walker was built by the Santa Clara County Sheriff's Department and the district attorney.

``It stinks,'' said Professor Robert Weisberg, who teaches criminal law at Stanford Law School. ``As a matter of professional ethics, it's very unpleasant. Very, very unpleasant.''

On Jan. 10, 1991, 34-year-old Lisa Hopewell, a troubled, drug-addicted graduate of Princeton University, was found bound in duct tape and gruesomely stabbed in a condominium off Stevens Creek Boulevard in Cupertino. Within days, Walker was a suspect, authorities say. The East Palo Alto auto mechanic, then 35, had dated Hopewell. A year earlier, he had been arrested for stealing her car after an argument. ``Everything we heard pointed to Ricky Walker,'' said Earl Pennington, a veteran sheriff's detective who led the investigation and discussed the case last week. He cited interviews with people in East Palo Alto, Walker's shaky alibi and details investigators learned about Walker's tempestuous relationship with Hopewell. Walker also failed a lie detector test, he said.

``I'm still not convinced that Ricky didn't do it,'' said Pennington, who retired last year. ``I think we did an excellent investigation. If he didn't do it, I'm sorry. But we presented the case to a jury, and a jury convicted him.''

There was never any physical evidence tying Walker to the murder, however. A person linked to the murder scene by evidence was Rahsson Bowers, a 20-year-old crack dealer from East Palo Alto with prior convictions for robbery and embezzlement. When Bowers' prints were identified on duct tape binding Hopewell, Bowers quickly confessed to participating in the killing. He identified Walker as the mastermind.

State and federal courts have long dictated caution when dealing with the accusations of criminal suspects because they have strong motives to shift blame and so are inherently untrustworthy. But investigators did not record the critical conversation in which Bowers named Walker. Their tape recorder wasn't working, one detective testified at trial. Without a recording, it was unclear who first suggested Walker was the murderer. Bowers testified at trial that he did. Sheriff's Sgt. Jerry Egge testified that detectives did.

Another red flag appeared within days when investigators gave Bowers a lie-detector test to check his description of the crime, which initially included two white men who jumped out of a closet to assist in the attack. Like Walker, Bowers failed his test. Bowers subsequently changed his story, removing the white men and placing blame solely on Walker, according to trial transcripts. Investigators did not administer a second lie-detector test to check that version. Pennington said he couldn't remember why a second test wasn't administered.

Authorities did have evidence that might have revealed more about who was at the murder scene. But it wasn't tested. Cigarette butts found near Hopewell's body contained trace amounts of saliva, according to reports from the Santa Clara County Crime Laboratory. Shortly after Walker's arrest, investigators analyzed a sample of his blood. DNA testing in 1991 was not as advanced as today. But serology testing routinely done by the county crime lab, as well as DNA testing that had been in use for years, could have compared the saliva to Walker's blood. The test could not have proved that Walker smoked the cigarettes, but it might have shown that he didn't. ``The technology existed to do the tests,'' said Edward Blake, a leading forensic scientist who testified about DNA testing for prosecutors as early as 1987. The analysis was never done, according to a July 8, 1991, report in the crime lab, because the district attorney's office never asked for it, the crime lab's director, Benny DelRe, said this week.

Assistant District Attorney Sinunu said the testing would not have been useful because it could not positively tie Walker to the murder. Trial transcripts show, however, that prosecutor John Schon used the cigarette butts to try to put Walker at the scene, telling jurors they should consider the fact that Walker smoked the same brand as cigarettes found there.... This year, the saliva was finally subjected to DNA testing as a pro bono lawyer, Alison Tucher, worked to prove Walker's innocence. It showed the saliva belonged to another man. The district attorney is now planning to charge him with Hopewell's murder.

Much more here

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Friday, September 28, 2007

PA: Laughman case finally settled: Guilty party escapes

No wonder it was settled out of court. As I noted on May 25, 2005: "An Adams County man imprisoned for 16 years for a murder he did not commit filed a federal lawsuit yesterday against the county, the state police and investigators, accusing them of lying and doctoring evidence to obtain the conviction. Attorneys for Barry Laughman, 42, of Hanover, charge in the suit that Laughman's wrongful conviction "is part of a persistent and troubling pattern of manipulating and falsifying evidence and testimony that exists and is condoned within certain law enforcement units of the commonwealth and the county." The suit, which seeks unspecified damages, names troopers John J. Holtz and Donald Blevins, state police chemist Janice Roadcap and four former state police commissioners as defendants, as well as Adams County and its district attorney's office. It charges that the commissioners and other high-ranking members of the state police knew the investigators would fabricate evidence and did nothing to stop it. "The aforementioned misconduct of defendants troopers Holtz and Blevins and Chemist Roadcap is consistent with a pattern of misconduct which has existed, been condoned and even encouraged within the PSP for at least the last 34 years," the suit says.

If he never sees the inside of a courtroom again he'll be happy. That's how an attorney sums up the feelings of an Adams County man who's been fighting for justice for more than two decades now. As Myranda Stephens explains, his fight may finally be over. During those 16-years Barry Laughman spent in prison he missed out on a lot of important moments, including the death of his mother. Knowing he spent all that time behind bars for a crime he didn't commit he wanted justice, and now he's finally getting it. "What happened to him should not happen, not in this country."

Laughman was supposed to spend the rest of his life in prison for the 1987 rape and murder of his elderly cousin Edna Laughman. In 2003 DNA evidence proved the mildly retarded man's innocence and set him free. Laughman's Attorney William Costopoulos: "To do 16 years behind bars from the time you were 24 to 40, is a pretty hefty price to pay for any amount of money."

Soon after his release Laughman filed a civil lawsuit against two State Troopers and a former chemist who helped convict him. The trial was supposed to start this week, but late on Friday the parties settled.

Laughman's attorney says he'll leave it to the state to release the terms but did say his client, who went back to the same minimum wage job he had before prison, is financially set for life. "I don't know if he fully appreciates it, but his first question was can I buy a four-wheeler and the answer is `yes'." A spokesperson for the Attorney General's office wouldn't talk about the terms of the settlement because the paperwork is not yet finalized.

Who really killed Edna Laughman is still unknown. [The guilty party might still in fact be traceable if the crooked cops had not destroyed the DNA evidence]

Report here

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Thursday, September 27, 2007

"Self-defence" to be revived in Britain?

People who take on thugs or thieves to protect themselves or others are to have legal guarantees that they will not be prosecuted, Jack Straw will announce today. The strengthening of the law on self-defence to give confidence to “have-a-go heroes” that the law is on their side will be promised by the Justice Secretary at the Labour conference in Bournemouth. Mr Straw is planning to make the law spell out more clearly than before that people’s use of “reasonable force” in defending themselves, their properties, or others is permissible. He wants “good citizens” to know that when they act – for example by chasing after a thief who has snatched a handbag – they will not end up having the law used against them. Many people fear that if they take on an intruder in their own home, for example, they will end up in court. [With good reason. It has happened often]

Mr Straw has asked Justice Department officials urgently to come up with provisions that state clearly in law that people who act bravely to defend themselves, their friends or strangers will not end up as victims. He will say today that the plan is part of Labour’s drive to reform the criminal justice system in a way that better balances the system in favour of the victims of crime. He will promise that a swift review of the law – aimed at bringing forward amendments to the Criminal Justice Bill this autumn – would be aimed at ensuring that those who “seek to protect themselves, their loved ones and their homes, as well as other citizens, have confidence that the law is on their side. “How each of us reacts if we encounter a burglar or a street robber has to be a matter of individual discretion – there’s a critical line between responsi-biity and recklessness,” he will say.

Mr Straw has himself taken action in four incidents in the past 25 years, twice helping to apprehend thieves at Underground stations, once against a street mugger and once helping to catch a burglar at a club in his Black-burn constituency.

He will say: “I know from personal experience that you have all of a milli-second to make the judgment about whether to intervene. In such a situation the law on self-defence works much better than most people think, but not as well as it could or should. The justice system must not only work on the side of people who do the right thing as good citizens, but also be seen to work on their side.”

Mr Straw believes that a key part of citizenship is knowing that “the system will stand up for you if you stand up for fellow citizens”. He will say: “Communities with the lowest crime, the greatest safety, are the ones with the most active citizens, with greater sense of shared values, inspired by a sense of belonging and duty to others, empowered by the State and also supported by it – in other words by making a reality of justice.”

Mr Straw’s announcement comes just two years after Whitehall last gave detailed consideration to changing the law on “reasonable force”. But in January 2005 Charles Clarke, then the new Home Secretary, ruled out giving householders and members of the public more freedom to fight back against burglars and thugs. In his first major decision after taking office, Mr Clarke showed that he was willing to take politically unpopular decisions by defying calls by the country’s senior police officers and victims’ groups for a change to the law. After discussions with chief constables and prosecutors, he said that the existing law allowing “reasonable force” was “sound”.

Mr Clarke’s decision followed confusion in Whitehall, with ministers at odds with each other over how to respond to a campaign to toughen the law on the use of reasonable force. Tony Blair, as Prime Minister, said that he was minded to change or clarify the law but Lord Falconer of Thoroton, QC, then Lord Chancellor, did not want a change in the law. Sir John Stevens, former Metropolitan Police Commissioner, and his successor Sir Ian Blair both wanted the law toughened.

Mr Straw’s announcement today is a clear indication that he is determined that the new Ministry of Justice is going to be on the side of the public rather than being seen as a ministry for judges, lawyers and the rest of the legal profession. Guidance issued by the Crown Prosecution Service and the Association of Chief Police Officers says that anyone can use reasonable force to protect themselves or others, or to carry out an arrest or to prevent crime. The public is not expected to make fine judgments over the level of force used in the heat of the moment. “So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self-de-fence. This is still the case if you use something to hand as a weapon,” the guidance states. But the guidance says that there is a difference if a person chases a suspect running away.

In a speech to the conference today Jacqui Smith, the Home Secretary, will promise a policy of zero tolerance towards wrongdoing ranging from antisocial behaviour to serious and violent crime. She wll announce a new fund worth tens of millions of pounds to help the police to use new technologies, such as handheld computers, mobile fingerprinting units and weapon-detection wands, that will enable them to spend more time on the streets and less in the station.

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Wednesday, September 26, 2007

British police thugs again

They're no good at dealing with Britain's epidemic of violent crime but are good at harassing law-abiding citizens

A man who stopped to help at a motorway accident has made an official complaint after police hit him with a baton, handcuffed him and arrested him.

Graeme Deacon was on the M67 near Hyde, Manchester, when he saw the accident on the opposite carriageway. He crossed over and helped the driver to safety. Then a second car drove into the back of the first and caught fire. Mr Deacon helped to free the young driver. Police arrived and offered to drive him to his vehicle. But Mr Deacon said: “The carriageway was empty. I could have crawled across on my hands and knees. There was absolutely no risk. A police officer said, ‘You’ll wait as long as it takes, whether it’s five minutes or two hours. You’ll stay there.’ I went to walk off and three of them pushed me face down in the gravel, hit the back of my legs with a baton and handcuffed me. One said, ‘Shut up or I’ll spray you with CS gas’.”

Mr Deacon, of Glossop, Derbyshire, was released without charge after an hour in custody.

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Tuesday, September 25, 2007

Lynn DeJac: Is it Capozzi again?

The public has good reason to wonder if an innocent woman is in prison. The Capozzi case was mentioned here on April 2

With all due respect to the district attorney, if Erie County [NY] residents have come down with “Capozzi syndrome,” it’s for a reason. The flaws in the criminal justice system have never been so obvious, with an alarming number of wrongly convicted people being exonerated across the country. Anthony Capozzi is only the most famous one here, though that might change if the conviction of Lynn DeJac falls apart.

Capozzi spent 22 years in prison for a crime he did not commit. DeJac has been behind bars for less time — 13 years — but while Capozzi was convicted of raping a woman he did not know, DeJac was sent to prison for murdering her own daughter.

In Capozzi’s case, his wrongful conviction left Altemio Sanchez, arrested as a serial killer, on the loose. Police now wonder if the same thing happened with DeJac, who has protested her innocence since her arrest in 1993. Police are looking into a possibility that DeJac’s supporters have claimed all along: that a former boyfriend, Dennis Donohue, committed the crime. Donohue was charged Tuesday with the 1993 murder of Joan Giambra of South Buffalo. But police also see similarities between Giambra’s killing and those of Carol Reed of Buffalo and DeJac’s daughter, Crystallynn M. Girard, who was 13 at the time. Donohue knew them all, investigators say.

Erie County District Attorney Frank Clark cautions against a rush to conclude that DeJac was wrongly convicted. “We seem to have the Capozzi syndrome now.” Indeed, a family friend testified that DeJac confessed the murder to him while they were drinking in a bar. But defense lawyer Andrew C. LoTempio complained during the trial that the family friend was also facing life in prison on a forgery indictment and had reason to try to please law enforcement.

What is more, Capozzi’s conviction looked similarly solid, at least superficially. He bore a striking resemblance to Sanchez at the time and to a police sketch based on the victim’s description of her attacker. The mistake may have been innocent, but its consequences were terrible.

The painful fact is that the criminal justice system grinds up innocent people more frequently than anyone ever thought in the days before DNA evidence. The Innocence Project, based in New York, reports that since 1992, more than 200 people in the United States have been exonerated of crimes for which they had been convicted — not released on a technicality, but shown to have been innocent. Fifteen of those had been sentenced to death. DeJac says the Innocence Project is now involved in her case.

Was DeJac wrongly convicted? The question is worrisome enough that police need to devote all the resources they can to examining her conviction and any connection Donohue may have to the murder of Crystallynn. DeJac’s lawyers need to monitor that work closely. An innocent person cannot be left behind bars. More broadly, the criminal justice system, itself, is standing in the dock these days. It can’t save itself except through a relentless determination to correct its mistakes and to figure out how to make them less often.

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Monday, September 24, 2007

NY: Deskovic sues police, medical examiner, prosecutors in wrong conviction

Peekskill police and a Westchester medical examiner fabricated evidence that led to the wrongful conviction of Jeffrey Deskovic in the 1989 murder of a Peekskill High School classmate, a federal lawsuit alleges.

Deskovic was exonerated one year ago this week in the rape and slaying of Angela Correa when the real killer, Steven Cunningham, was identified, but not before Deskovic served more than 15 years in state prison. The lawsuit excoriates police and prosecutors, particularly because authorities knew from the outset that semen recovered from the victim did not come from Deskovic.

"Mr. Deskovic's wrongful conviction and years of wrongful incarceration, despite the fact that police and prosecutors knew of the DNA evidence and other clearly exculpatory facts, was the direct result of a veritable perfect storm of misconduct by virtually every actor at every stage of his investigation and prosecution," says the lawsuit by the Manhattan firm of Cochran, Neufeld and Scheck. Barry Scheck is executive director of The Innocence Project, which fought for Deskovic's release last year.

The lawsuit, filed yesterday in U.S. District Court, does not seek specific monetary damages. It names Westchester and Putnam counties; the city of Peekskill; four Peekskill detectives, including the current chief, Eugene Tumolo; the Putnam County sheriff's investigator who conducted a lie-detector test of Deskovic that forced his false confession; Westchester medical examiners Louis Roh and Millard Hyland; and a New York state correction officer alleged to have groped Deskovic and physically abused him while he was imprisoned.

Stuart Kahan, representing Westchester County, said he could not comment on specifics of the lawsuit because he had not seen it. "Obviously we will look at all the documents and defend the interests of the county," Kahan said. "We think it's a case that can be defended." A lawyer for Peekskill and the three retired detectives would only comment generally because the city had not yet been served with the lawsuit. "The city's view is the officers behaved properly (in the case)," said the lawyer, Brian Sokoloff.

Tony Castro, who represents Tumolo, said the blame should lie squarely with Westchester prosecutors because they ignored the DNA evidence and proceeded to trial. He said it was Tumolo, the lieutenant who oversaw the investigation, who got the FBI to test the semen, expecting the results would either clear Deskovic or prove his guilt. "He had concerns when the results came back and he expressed them to the prosecutors," Castro said yesterday. "But at that point it was out of his hands."

Correa's body was found Nov. 17, 1989, in the woods near Griffens Pond behind Hillcrest Elementary School. The 15-year-old sophomore had been raped, strangled and beaten two days earlier after leaving her Main Street home to take pictures for a photography class. Deskovic, who had turned 16 just a few weeks earlier, soon became a suspect after detectives learned he was particularly distraught about Correa's death, even though he had only a passing acquaintance with the girl.

The lawsuit alleges that the lead detectives, Thomas McIntyre and David Levine, coerced Deskovic into a false confession after interviewing him several times and leading him to believe he was helping their investigation. The lawsuit alleges they falsified police reports to hide that they fed Deskovic information about the killing and that the details he gave them had not been concealed from the public. Other police reports also misrepresented what Deskovic's friends were telling detectives to bolster their case against him, according to the lawsuit. They coerced Deskovic into continuing to talk to them after he had invoked his right to a lawyer, the lawsuit alleges.

After weeks of denials, the confession came after a lengthy interrogation on Jan. 25, 1990, when the detectives brought Deskovic to the Brewster office of Daniel Stephens, a Putnam County sheriff's investigator who moonlighted as a polygraph examiner. The session was meant to force a confession by convincing Deskovic that he had failed the lie-detector test, his lawyers contend.

Deskovic considered McIntyre a "father figure." But when the veteran detective confronted him after the test, it is alleged, McIntyre told him he had known for weeks that he was guilty. The lawsuit contends that McIntyre told Deskovic that Levine, Tumolo and Stephens would physically harm him if he didn't confess and then promised he could go home if he confessed and his only punishment would be treatment in a mental hospital. The teenager eventually told McIntyre that he hit Correa in the head with a bottle and smothered her, although he broke into tears and curled up in the fetal position after they pressed him to repeat his confession.

Castro said Tumolo denied that there was any coercion or threat of violence. "It sounds like they are saying (the detectives) railroaded Deskovic. But how can they be railroading him on one hand if it is the police who then had the DNA tested?" Castro said.

The lawsuit alleges that Roh had no scientific basis to suggest at trial that Correa had previously been sexually active. That suggestion to the jury allowed prosecutor George Bolen to imply that another Peekskill teenager, Freddy Claxton, could have had a consensual relationship with Correa, thereby explaining the presence of semen. The police never documented their interviews with Claxton in which he denied any involvement with Correa, the lawsuit contends.

The lawsuit criticizes the police for relying on a New York City police profile that suggested the killer was likely a teenage loner infatuated with the victim. By focusing on Deskovic, the lawsuit contends, police were unable to recognize that the real killer was Steven Cunningham, a 29-year-old crack addict who left cigarette butts and his semen behind at the crime scene. Cunningham went undetected and four years later killed his girlfriend's sister, a mother of three young boys, during an argument at her Peekskill apartment.

Cunningham was identified last year when new testing of the semen recovered from Correa matched his DNA, which the state had because he was imprisoned for the other murder. He confessed to investigators and in an interview with The Journal News and was charged with murder. He pleaded guilty this year and had 20 years added to his life sentence.

To succeed in the federal lawsuit, Deskovic's lawyers must prove his civil rights were violated because of misconduct. A separate lawsuit is planned in the state Court of Claims seeking compensation for Deskovic's wrongful incarceration.

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Sunday, September 23, 2007

California man who spent years in prison shouldn't be compensated?

Once again the "beyond reasonable doubt" criterion for conviction gets lost. One must expect that gang membership and a criminal record will influence judgments however

DeWayne McKinney deserves no compensation for the 19 years he spent behind bars on a first-degree murder conviction, even though the man who prosecuted him now believes it likely he was wrongfully convicted, a state official has concluded. The recommendation of Kyle Hedum, a hearing officer for the Victim Compensation and Government Claims Board, to deny McKinney compensation will be considered by the three-member board Oct. 16.

No physical evidence connected McKinney to the robbery of a Burger King on Chapman Avenue in Orange, where in December 1980 a gunman vaulted the counter and gunned down 19-year-old night manager Walter Bell. Four restaurant employees implicated McKinney, leading to his life sentence on a conviction for first-degree murder.

Orange County Dist. Atty. Tony Rackauckas prosecuted McKinney in 1982. But 18 years later, after two of his top investigators alerted him to flaws in the case, he decided there was enough evidence to "undermine confidence" in the conviction and endorsed McKinney's release.

McKinney, 46, who now runs a successful ATM business in Hawaii, is seeking about $700,000 in compensation from the state for wrongful conviction -- $100 for each day he spent in prison -- and must prove that it was more likely than not that he was innocent.

But in a Sept. 7 ruling, Hedum ruled that a "preponderance of the evidence" still pointed to McKinney as the Burger King killer. Though two eyewitnesses recanted their testimony, Hedum gave weight to the two who remain convinced of McKinney's guilt.

McKinney's lawyers argued for his innocence at a hearing in January and February in Sacramento, with Rackauckas testifying that McKinney was "likely" not the killer but that he couldn't be certain. An expert on eyewitness identification testified that Orange police botched the photographic lineups from which witnesses picked McKinney. In the photo pack, his face appeared larger than others and was therefore suggestive, the expert said.

McKinney, who acknowledges that he once belonged to the 52nd Street Crips and that he participated in an attempted jewelry store robbery, was a 20-year-old Ontario resident when he was arrested. He had suffered a serious shotgun wound to the leg about a month before the Burger King murder. His lawyers say that would have prevented him from vaulting the restaurant counter, as witnesses said the killer did.

The case was reopened after a Lancaster State Prison inmate, Charles Hill, came forward in 1997 with a letter in which he claimed to have planned the Burger King robbery. Hill's cousin, Willie C. Walker, confessed to being the getaway driver and said McKinney had not been involved.

The state attorney general's office, which argued against McKinney's compensation claim, describes Hill and Walker as "violent serial rapists" who concocted the story of McKinney's innocence in hopes of reduced sentences for their own crimes.

The hearing officer ruled that McKinney's leg wound "did not preclude him from jumping or sliding over the Burger King counter" and that Hill's and Walker's accounts of the Burger King robbery were not credible.

Since 2001, when a California law went into effect allowing wrongfully incarcerated people to claim $100 a day for each day behind bars after conviction, no claimant has prevailed over opposition from the attorney general's office. In light of that, said McKinney's attorney, Jeffrey Rawitz, "our expectations were tempered." He said McKinney was "very disappointed by the recommendation but remains optimistic that the board won't follow the hearing officer's recommendation." He declined to make McKinney available for comment until the final ruling.

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Saturday, September 22, 2007

Slack Australian prosecutors

The Director of Public Prosecutions' office is under official investigation for allegedly dismissing a dead man's family with the words "You should have gotten over it by now." The slur has compounded the grief for the family of slain Woolloomooloo publican Shane Miles, whose killers yesterday enjoyed "disgraceful" sentences of between three and seven years.

The family of Mr Miles - who was struck dead with a bar stool in 2004 - alleges Crown solicitor Patrick Barrett told them, "Oh, you should have gotten over it by now". Mr Miles' brother Rory made the accusations outside the Supreme Court yesterday after the sentencing of the killers.

Concerns over the DPP's decision to downgrade a murder charge to manslaughter were also allegedly dismissed with disregard for the family. "The day before the trial he announced he was going to accept manslaughter," Mr Miles' sister Erin Peterson said. Ms Peterson said she challenged the decision and asked if there was someone "other than you I can speak to about it?" and he said, "No I make the decisions."

The family's anguish was aired yesterday at the Supreme Court when the four men convicted over Mr Miles' death at the Bells Hotel in Woolloomooloo were given sentences ranging from three to seven years. "You should all be ashamed of yourselves," Mr Miles' brother Danny Miles yelled towards the bar table. "What a disgrace... What a waste of time."

Attorney-General John Hatzistergos said an officer from his department had been investigating the conduct claims against Mr Barrett and the decision to accept a lesser offence for a guilty plea since early August. But the DPP will face even further scrutiny next week with a legislative move by the Government to abolish the lifetime tenure of the director and 100 crown solicitors. The Daily Telegraph understands a Bill will be taken to Cabinet on Monday, and introduced as early as Wednesday, which will establish limited terms for the director - possibly as short as seven years.

However it won't apply retrospectively to the current director Nicholas Cowdery QC. It is also believed that a DPP committee may be created to oversee "special" decisions made by the DPP, such as not continuing with a prosecution. Mr Hatzistergos confirmed a Bill was "imminent" which would cover a range of issues with the DPP office.

Tongan-born Joseph Leota, Etuate Taiseni, Amaniasi Tuifua and Taniela Motuapuaka pleaded guilty earlier this year to manslaughter, on the eve of their trial for murder. Mr Miles, 47, died after being hit in the head with a bar stool during a wild brawl at the Bells Hotel on December 18, 2004. The DPP could not be contacted for comment last night.

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Friday, September 21, 2007

Police taser wheelchair-bound granny to death

This blog documented numerous cases where police use of Tasers resulted in the death of the individual. This, allegedly “safe” form of control is, in fact, dangerous and lethal.

When dealing with mentally disturbed individuals there is a problem. Police think that threatening someone with a Taser will get them to obey orders. That assumes a functioning rational process. If the person is irrational this threat rarely works. Instead of finding other means of dealing with the situation the trigger happy cops just Taser someone to make life easy for themselves, even if that leads to the unnecessary death of the person involved. Our previous article on numerous such killings is here.

Emily Delafied had mental problems. She was schizophrenic. She was also confined to a wheelchair, which certainly limited her mobility and the type of threat she could become. It wasn’t as if she could leap at someone and harm them. And to direct her chair she needed to use her hands. She couldn’t pursue someone easily and carry a weapon at the same time. In addition her family says her range of motion was very limited. And due to her medical condition she was on oxygen. Clearly this was a fragile woman who really couldn’t pose a real threat.

In April 2006 Emily didn’t take her medication and she had an episode. I knew a schizophrenic who periodically got the idea in his head that Jesus would heal him, and to show his faith he had to stop taking his pills. The result was always a pretty scary psychotic episode. And that is what happened to Emily.

That day she called the police saying her sister was going to hurt her. When police arrived they found Delafield in her chair holding two knives and a hammer. She would swing them at family who approached her believing they were going to hurt her. It appears from press reports that Delafield was hallucinating that she was under threat and was trying to protect herself. There is no indication that she was planning to harm herself.

Clearly the woman couldn't be reasoned with and threats would make the situation worse. No one else was under immediate threat. Family could vacate the premises quite easily. Delafield was in no position to pursue. The situation seems relatively easy. Vacate the area, keep Delafield confined and under surveillance, try to talk to her from a distance so she doesn’t feel threatened and wait.

If she was trying to harm herself then perhaps a different strategy would be necessary. If she was able to harm others then a different strategy would be necessary. If unable to do either then a little patience, until she calmed down, may have resolved the case. Police were clearly impatient. They used the Taser on the woman after “a 13-minute standoff” -- just 13 minutes. That was the entire amount of time they were willing to invest in trying to find a non-lethal way of solving this problem.

Police were impatient. One police officer used a Taser on Delafield nine times and a second officer used a Taser once, all in under three minutes. The repeated shocks combined with a heart condition to kill the woman. The medical examiner listed cause of death as a homicide.

Police Chief Robert Musco tried to justify the killing saying that the use of the Taser, ten times, “was utilized and the subject was disarmed.” True, she was disarmed, she was dead. It is very critical to remember what sort of threat this “armed” women posed. First, she was in her late 50s, not a spring chicken. Second, she was confined to a wheelchair. She wasn’t going to leap tall buildings in a single bound. She couldn’t even easily hold her weapons and operate her chair at the same time. She had limited range of motion and needed oxygen just to breath. This wasn’t Rambo but an older woman in a wheelchair with extremely limited ability to inflict harm on anyone.

Of course the police officers were cleared. They always are. The only way that bad cops go down is when they are taped committing the offense.

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Thursday, September 20, 2007

Crooked Canadian spoooks

A law unto themselves. They probably think they are James Bond

A former Crown prosecutor who is now a B.C. Provincial Court judge says Canada’s spy agency was neither co-operative nor forthright when he was working with the RCMP on the Air India bombing case. James Jardine told the Air India inquiry Tuesday that he was frustrated for months by the reluctance of the Canadian Security Intelligence Service to protect intelligence it had gathered on the key suspects in the terrorist plot.

Jardine also told Commissioner John Major that he learned that CSIS had erased critical tapes made of suspect Talwinder Singh Parmar’s telephone calls when the agency’s director appeared on CBC in December 1987. He wrote a brief note at the time stating his disbelief, he testified. “In the brashness of the moment, I wrote inconceivable, incomprehensible, indefensible, incompetent,” Jardine said.

Inquiry counsel Mark Freiman took Jardine, who is now on the bench at Surrey Provincial Court, through years of documents showing repeated requests by the RCMP and Jardine’s prosecution team to get details of surveillance and wiretap evidence that would have been helpful in their efforts to build a criminal case against Parmar, Inderjit Singh Reyat and other suspects in both the Air India bombing and same day blast at Tokyo’s Narita Airport.

Jardine assisted the Air India Task Force beginning in July 1985 and felt that there must be wiretaps because he knew that CSIS had surveillance on Parmar. He told RCMP investigators, with whom he had a great relationship that “If there are watchers, there will likely be wires.’” “I certainly made it clear what I required” to mount a successful prosecution, Jardine said. So the RCMP set out on a frustrating quest to get CSIS to hand over tapes and get access to surveillance and notes of the tapes.

They only learned later on that CSIS had decided there was nothing of evidentiary value on the tapes and that CSIS had routinely erased them without police ever getting a chance to review them.

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Wednesday, September 19, 2007

More negligence from Britain's politicized police

With terrible results

A serial sex attacker raped two 15-year-old girls after police failed to link his DNA to a string of earlier offences, a court was told yesterday. Mark Campbell allegedly began a string of sex attacks against women in West Sussex in 1998, four years before he was first arrested in 2002. He gave DNA samples after being detained on suspicion of fondling himself while watching a woman in her room, but an “oversight” meant that the swabs were not sent off for analysis until four years later, Chichester Crown Court was told.

Between 2002 and 2006 Mr Campbell, a welder from Chichester, West Sussex, is alleged to have continued to offend, raping the teenagers as well as carrying out two sexual assaults, two burglaries and an attempted indecent assault. By the time of his arrest in 2002 he had already raped one woman and attacked a number of others including a 12-year-old, the court was told.

His first alleged victim, now aged 36, described yesterday how he assaulted her in February 1998 after tying her up in her home using a pair of her daughter’s tights as her three young children slept in the same house. Another alleged victim, a pregnant former hotel worker, fought back tears in the witness box as she described how she was raped in May 2000 when she was aged 21. She said that she was threatened and then assaulted when she woke up to find a man in her bedroom at the staff quarters of the hotel where she worked.

Mr Campbell, 38, a father of two, was arrested in 2006 after his DNA sample from 2002 was tested during a review of offences linked under Operation Bobcat, the police investigation into a series of sex attacks in West Sussex. Christine Laing, QC, for the prosecution, told the jury that it was “very unfortunate” that the swabs were not sent off when they should have been. One of the strategies of the investigating team in Operation Bobcat was to take DNA samples by means of a swab on a voluntary basis from men in the surrounding area. After Mr Campbell’s arrest it was considered appropriate to obtain a swab from him. This was stored “in appropriate conditions” but, through an oversight, was not sent for testing.

Ms Laing said that the delay made no difference to the “evidential impact” of the match made between the swabs in 2006. “Where it does impact, however, is in the delay in bringing this matter to trial, and the effect that has on the recollection of everyone involved. This is particularly so in relation to the defendant, who was only asked for the first time about these matters in 2006.”

Earlier, the court was told that Mr Campbell preyed on “vulnerable young women” over the six-year period from 1998 to 2004. He allegedly assaulted a 12-year-old girl as she walked home from school and a 16-year-old girl as her younger sister slept in the same bed. In February 2000, it is alleged, he indecently assaulted a 19-year-old Italian student living in Chichester after holding a knife to her throat and blindfolding and stripping her.

His first victim was a 27-year-old woman who was attacked in her home in Bognor Regis in February 1998, the jury was told. Her assailant left DNA evidence on her body that was later matched to that found after other attacks, including the rape of the hotel worker in 2000. By then police were convinced that the assaults were the work of a serial offender but officers could not match the DNA to a name until Mr Campbell’s swabs were tested last year. The series of attacks lasted until August 2004, and all took place within a 25-mile radius of Mr Campbell’s home, the court was told. His final alleged victims were two 15-year-old girls whom he raped within minutes of each other after befriending them and plying them with alcohol in his van in a car park in Pagham, West Sussex, on August 26, 2004. He later telephoned the girls and threatened to kill them if they told anyone.

Mr Campbell denies three rapes, two sexual assaults, five indecent assaults, one attempted indecent assault, two offences of false imprisonment and two burglaries.

Miss Laing said that Mr Campbell appeared to collapse and was taken to hospital after his arrest in October 2006. “As he lay in an examination room, he was heard by the officer standing guard to say, ‘Why did I do it?’” Subsequently, during extensive police interviews, he had denied all the offences. She said: “The Crown say the defendant is a serial sex offender. All the complainants remain deeply affected by the attacks to this day.”

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Tuesday, September 18, 2007

A very lucky DNA exoneration for Dwayne Allen Dail

On Tuesday, Wayne County Superior Court Judge Jack Hooks Jr. declared Dail innocent of a child rape that occurred on Sept. 4, 1987. The nonprofit North Carolina Center on Actual Innocence helped find DNA evidence that proved Dail was not the attacker in a rape at the girl's Goldsboro home.

Standard procedure dictated that all the evidence from Dail’s case should have been destroyed after a period of time, but authorities found a journal kept by the lead investigator in the case, which he passed to another detective upon his retirement. It led Dail's lawyers to a box of evidence stored at the police department that had never been destroyed because it wasn't used at trial.

Strickland said he pushed forward with the prosecution because the 12-year-old victim positively identified Dail as her attacker. Dail had been spending time with numerous friends in the neighborhood before and after the rape, and the girl's mother asked the victim if Dail was the man who had attacked her, said Christine Mumma, Dail's current lawyer. Hair found at the scene was also found to be microscopically consistent with Dail's.

"We had, not the strongest case in the world, but we had a case. And in the days before DNA, that's what we did," Strickland said. "You had a little, 12-year-old girl who, there is no question about it, she was brutally raped. And she said, 'That's the man who did it,'" he continued. Strickland said he told the victim they could stop the case before going to trial if she had any doubts, but she stayed solid in her identification of Dail in testimony at the 1989 trial.

At one point, prosecutors offered Dail a plea deal under which he would plead no contest to charges of taking indecent liberties with a minor and receive only three years' probation in return. Asked by WRAL why he didn't take the deal, Dail responded: "I didn't do it. Nobody would have gotten justice in that. Me or her. Somebody did that to that girl. And somebody needs to pay for that." During the trial's closing arguments, Strickland remarked on Dail's remarkable confidence in his innocence in the face of such serious charges, Dail said.

After being sentenced to two life sentences, plus 18 years, Dail continued to maintain his innocence from behind bars. His exoneration justified all that confidence, Dail said at his release Tuesday. "I'd like to tell Mr. Donald Strickland that I'm as confident and cavalier today as I have ever been in my life," Dail said.

Strickland expressed regret about Dail's wrongful conviction, but said he acted on the evidence available at the time. "I feel very bad about it, but I don't have any guilt, because I don't think I've done anything wrong," he said. "I proceeded with the case as I had it."

Dail said he was undone by his faith in the justice system. "I can tell you this for a fact, I would not walkin there with the faith I had when I was 20," he said. "I never thought that I could ever be convicted. I had faith in a system that I was innocent. "And I didn’t have no idea that innocent people were sent to prison. I thought if you didn’t do anything, then you didn’t have nothing to worry about," he continued. "And that is ignorant."

According to the N.C. Center for Actual Innocence, around 200 wrongly imprisoned inmates across the nation have been exonerated by the work of nonprofit agencies. The Center receives around 1,000 claims of innocence by N.C. inmates each year, said Mumma, who is also the Center’s executive director.

Successfully exonerating wrongly convicted inmates is an uphill battle, because eyewitness testimony and physical evidence can often prove to be inaccurate, helping move juries to wrongful convictions, Mumma said. “You write down all the humans that come into contact with each case, and there is a lot of potential for human error – unintentional, unavoidable human error,” she said earlier.

Strickland agreed that Dail was the victim of judicial system that should have protected his good name and freedom. "I've had some stronger (cases), I've had some weaker, and there is just no perfect system of justice," he said.

With an official reopening of the case by the Goldsboro Police Department, that judicial system is once more investigating the 20-year-old rape. Investigators are talking with the victim again and reviewing the old case files. "It definitely has challenges because of the time frame, but I'd like to feel pretty confident that we'll reach a resolution," Sgt. Chad Calloway of the Goldsboro police said.

The newly uncovered DNA evidence could be the key to breaking the case, said investigators, who declined to say if they had found possible matches in the State Bureau of Investigation database.

Released from prison, Dail said he's moved past anger at the child who identified him as the rapist and bitterness at the real perpetrator. "I cannot possible have hard feelings against a child who has been sexually assaulted," he said. "Bitterness doesn't hurt anyone, but yourself and maybe the people that you love." In the future, Dail said he may write a book or go to college. He's also enjoying reconnecting with his 17-year-old son Chris Michaels, who was born after he went to prison. "He's grown up only seeing his father in prison, and that's a terrible way for a kid to grow up," Dail said. "It's over, so we can now start spending more time together and getting to know each other a lot better," Michaels said. For now, Dail said he's enjoying the "Four F's": "Freedom. Family. Friends. And food."

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Monday, September 17, 2007

Justice delayed is justice denied

The infamous Patriot Act--parts of it, anyway--just may, finally, be on the ropes. I hope you haven't been holding your breath. The scandal over the FBI's abuse of national security letters has reaped appropriate rewards. Last week, U.S. District Judge Victor Marrero ruled (PDF) that the use of the letters, without a warrant, to snoop through e-mail and telephone data is unconstitutional. Specifically, Marrero said the letters violate the separation of powers, since there's little judicial oversight, and the First Amendment, since the FBI can forbid recipients of the letters to reveal that they've received the nasty things.

Not mincing words, Marrero said the use of NSLs is "the legislative equivalent of breaking and entering." Ain't that right.

As court challenges go, this is relatively fast work--only half a decade, give or take, for the courts to find (for the second time) that the Patriot Act's national security letters are an outrageous invasion of our rights. That really is about as fast as the judicial system is capable of moving--which is not a particularly encouraging thought as we tally up the tens of thousands of national security letters the FBI issued every year after the passage of the Patriot Act.

If you're looking for quick solutions to civil liberties violations, lawsuits are probably not the way to go. Even now, the federal government is expected to appeal Marrero's decision and further drag out the process.

On another front, Oregon attorney Brandon Mayfield--he of wrongly-fingered-by-the-FBI -as-a-terrorist fame--is in court with his own challenge to the Patriot Act provisions that resulted in his incarceration in the wake of the Madrid bombings. He spent two weeks in stir before the feds admitted they'd made a mistake.

Note, the Madrid attack, and Mayfield's resulting incarceration, were three years ago. Once again, the legal system proves to be a circuitous route for righting a wrong inflicted by government officials. I'm heartened that the courts are still capable of being outraged by some government actions. But when I consider how much officials can get away with during the long process of lawsuits and appeals, I'm not sure that such civil liberties decisions are much more than hollow victories.

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Sunday, September 16, 2007

Lazy British political police again

Because of their non-investigation, the murderer will now never be found. If someone had spoken ill of homosexuals, however, there would have been a big investigation immediately

When Pauline Holcroft got to her feet in a coroner’s court last week to ask her daughter’s former boyfriend if he had anything to do with her death, she was completing a heroic seven-year journey. Rachel Whitear, a 21-year-old university student, was found dead, apparently from a heroin overdose, in May 2000. The manner of her death was riddled with questions, including whether she had been alone when she died and even whether heroin had been involved at all. But it has taken all this time for Holcroft to be in a position to get some answers.

I know what an ordeal it has been for both Pauline and her husband Mick, who is Rachel’s stepfather, because I was indirectly responsible for a lot of it. In the spring of 2003 I met the Holcrofts to discuss the anomalies behind both Rachel’s death and the initial investigation into it by Devon and Cornwall police, an inquiry that has now been proved to have been pitifully inadequate. As a result of our discussions I wrote an article that resulted in a reinvestigation being conducted under the auspices of the Independent Police Complaints Commission.

Rachel’s name and face had become public property a year earlier when her parents authorised the release of an educational video entitled Rachel’s Story. The film -- to be shown in schools -- told of Rachel’s battle with heroin addiction and was intended as a salutary warning to children. But the video, and Rachel, became a point of discussion because of the inclusion of a single, excoriatingly powerful image.

By allowing the videomakers to use a police photograph of Rachel’s kneeling body, purple with the onset of decomposition, the Holcrofts wanted to grab people’s attention and underline their message of a promising life cut tragically short.

The Holcrofts’ story was one to strike fear into every parent. As a child, Rachel had seemed the ideal daughter, a talented pianist with a can-do, sunny outlook. Her problems began when she fell in love with Luke Fitzgerald, a drug addict of whom, not surprisingly, her parents disapproved. Under his influence, Rachel got into heroin and the spiral that ended in death began.

While Fitzgerald was always unemployed, Rachel was always working or studying. But though she knew he was a destructive influence, she could never bring herself to say goodbye ? until just prior to her death when she had an epiphany. She had stopped taking heroin, left Fitzgerald a Dear John note and moved into a new bedsit, without giving him the address. For the first time in years her mother felt hopeful about the future ? only to have those hopes cruelly dashed.

The photograph of Rachel that the Holcrofts released, hoping to shock others into the reality of drugs, also opened up a Pandora’s box of questions about exactly how she died. There was, for instance, the mysterious fact that the syringe in her hand had the stopper replaced, together with the highly unusual positioning of her body (most overdose victims are found in the foetal position). The blood tests at the time of her death had, confusingly, found insufficient heroin to have killed her. No postmortem was carried out -- it was later discovered that the authorities considered it a waste of taxpayers’ money as this was just another junkie’s death ? and an inquest seven months after her death recorded an open verdict.

Fitzgerald had given contradictory statements to police about his last contact with Rachel. At first he only admitted to seeing her the day before she died when they argued about money on the beach at Exmouth, the town where Rachel had lived with him. But at Pauline’s insistence, he had been questioned again and he revealed having seen her fleetingly in the street the next day, when she gave him 20 pounds.

The Wiltshire police reinvestigation, led by Detective Chief Superintendent Paul Howlett, began in 2003: soon Fitzgerald and his brother Simon were arrested on suspicion of Rachel’s manslaughter after officers heard from witnesses that they might have been involved in covering up her death and making it appear that she overdosed alone.

However, Luke Fitzgerald was an unenlightening interviewee, Howlett found, giving the answer that he “couldn’t remember” to most of the police’s questions. Both he and his brother were later told that no charges would be brought for lack of evidence, but there was soon another traumatic element of the reinvestigation for the Holcrofts to deal with.

The police wanted to exhume Rachel’s body from the peaceful rural Herefordshire cemetery where it was lying in order to carry out a much-delayed postmortem. When Rachel’s coffin was opened, officers were amazed to find that not only had there been no postmortem but she had been buried in the same clothes in which she had died -- a blue and white nightshirt and cream cardigan. The lack of due diligence was breathtaking.

New tests showed heroin had indeed killed her. The question was, who had given her the heroin? Did she take it, or was she injected by someone else? Despite the lack of enough evidence to bring criminal charges against anyone, the dogged Howlett felt a new inquest should be convened to at least give a cause of death for Rachel. He had to apply to the High Court for permission, in the teeth of opposition from the local coroner’s office, which had failed Rachel so spectacularly six years before.

So last week the Holcrofts finally had their day in court. Fitzgerald, someone the Holcrofts had not seen for many years, would finally present himself for questioning. It was something Pauline both looked forward to and dreaded: she was to question Fitzgerald herself as she could not afford to hire a lawyer to do it for her.

I have spoken to Pauline and Mick dozens of times over the past four years and I feel I know their characters fairly well. Mick is naturally pugnacious, Pauline of a more nervous disposition. Many times she would ago-nise over whether they were doing the right thing in continuing to pursue the answers they lacked. She quailed sometimes before the difficulties she faced, but she continued, borne onwards by the feeling that she owed it to her daughter to find out how she died. For that reason I have always considered her to be a genuinely heroic figure.

So it was that she faced down Fitzgerald at the coroner’s court in Exeter last Tuesday, nervous but outwardly composed. By then the inquest jury had already heard electrifying evidence from a former girlfriend of Simon Fitzgerald. She said Simon had told her his brother had injected Rachel with the fatal dose and then called him to help cover his tracks. Simon Fitzgerald, who declined to attend the hearing, denied her evidence. The court was also told forensics experts had found the scene “highly suspicious” and believed it bore all the hallmarks of having been faked by someone.

Luke Fitzgerald’s answers to Pauline’s questions were, predictably, unrewarding. His answer to most questions was that he simply had no recollection. His use of heroin, now a thing of the past he emphasised, had robbed him of much of his memory. At one point Pauline asked Fitzgerald if he had loved her daughter. The question flummoxed him with its poignancy. “I’m not sure I knew what love was,” he said, pathetically.

On Friday the jury gave their verdict: the new forensics evidence had satisfied them that Rachel had died of a heroin overdose, but they were unable to decide whether she, or someone else, had injected it. Although Rachel was now finally graced with a cause of death, the ultimate verdict on her death remains inconclusive.

The Holcrofts may now decide to pursue legal action against Devon and Cornwall police for negligence, and conceivably they could even attempt to sue Fitzgerald. But whatever happens in the future, Pauline will always know she did the right thing in refusing to let her daughter go to her grave without various people being called to account.

The day after Pauline squared up to Fitzgerald I spoke to the Holcrofts at length on the telephone. “You would have been proud of her, Daniel,” was the first thing Mick said to me. And I was.

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Saturday, September 15, 2007

Prosecutors are rewarded for convictions, not justice

Law is supposed to be impartial, with a presumption of innocence. Unfortunately, as we learned from the case of the three former Duke lacrosse players who were exonerated after being indicted last year on charges of rape and sexual assault, the criminal justice system is all too often used to advance political agendas at the expense of justice. “This entire experience has opened my eyes to the tragic world of injustice I never knew existed,” said wrongfully accused student Reade Seligmann after the 395-day ordeal. “If it is possible for law enforcement officials to systematically railroad us with no evidence whatsoever, it is frightening to think what they could do to those who do not have the resources to defend themselves.” What a sad, but true, statement.

Although many want to characterize District Attorney Michael Nifong, who pursued the charges, as a rogue prosecutor, we should examine why he acted as he did and why such a wrongful prosecution could go on as long as it did. The answer stems from the incentives created by our highly politicized legal system, which rewards law enforcement officials for high conviction rates, rather than meting out justice. Indeed, in high-profile cases, law enforcement officials frequently use a conviction to advance their career. But why is law enforcement so political, and has it always been this way?

The answer to the second question is no. Several hundred years ago in England, law enforcement was a private system that included dispute resolution and bore a close resemblance to modern arbitration and mediation. The system was very different from today’s adversarial system of criminal prosecution. When an injustice occurred, people would bring their dispute to private informal courts where the victim was compensated by the perpetrator. Private law enforcement worked quite well until the Normans invaded England and the government decided to use the system to collect revenue, passing laws prohibiting private restitution and requiring all compensation be made to the king. Eventually, when parties could no longer resolve disputes on their own, the system of private law enforcement disappeared. Only later did theorists develop arguments justifying why a government monopoly over law enforcement is allegedly necessary.

Today, most people believe the state needs to provide law enforcement and that nongovernment alternatives would be unfair or ineffective. But the historical record in England, as well as in ancient Ireland and ancient Iceland, shows that nongovernment law enforcement agencies existed for hundreds of years.

Modern America need not turn back the clock to adopt the system of England’s long-ago past, but we might consider how today’s government monopoly could be replaced or supplemented by private institutions and mechanisms. It’s already happening, of course. From private police forces and security guards to private arbitration institutions, Americans are increasingly looking for alternatives to the government law-enforcement monopoly. In Cincinnati, for example, the Queen City Private Police and Queen City Private Patrol provide security for businesses, schools and special events, and police escorts for funerals. In Philadelphia, Wackenhut Corp. guards the Liberty Bell, one of America’s most important national treasures.

Imagine if Duke University controlled law enforcement in the area around the university, rather than the city, county and local court system. It’s hard to imagine any private organization behaving as unjustly as the government did in this case. The university would have been guided in its behavior not only by the pursuit of justice and truth, certainly the top considerations, but also by the impact of the allegations on all of its constituencies—students, alumni, faculty the athletic community, donors and its neighbors in Durham. Rather than the circus atmosphere that prevailed under prosecutor Nifong, who was running for re-election, we probably would have seen a sober effort to arrive at the truth and mete out justice as warranted.

Government monopolies are not responsive to consumer needs in other areas, so we should not expect them to be responsive in the area of police and courts. Luckily, nongovernment alternatives do exist. The more we move away from a government monopoly, the less we are likely to see repeat tragedies such as the wrongful prosecution of the Duke lacrosse players.

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Friday, September 14, 2007

Only 16 years for THIS?

A CALIFORNIAN man who imprisoned a woman in his motorhome, drugged her and tortured her with a homemade electrical device has been jailed for 16 years.

A California court was told that Joseph Robert Hendrix, 43, of Oroville, burned the woman's flesh with cigarettes and cigars and burned her cervix with a homemade electrical device. When the woman woke and discovered her wounds were infected, he choked her into unconsciousness, the Associated Press reported today.

He allowed a relative to drive her to a clinic only when he feared she might die. By then, the woman, is in her 30s, had gone into septic shock.

The victim sobbed as Hendrix was sentenced yesterday. Prosecutor Elizabeth Norton called Hendrix a "sexual sadist" and said it was the worst case of cruelty to another human being she had seen, short of murder. Hendrix's lawyer, Jesus Rodriguez, said his client had a long history of drug abuse.

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Thursday, September 13, 2007

Australia: Cops storm into house and shoot man defending his family

All on mere suspicion. Cops now have some remarkable "memory" failures about the whole thing

MEMBERS of a special operations group involved in a dawn raid in which a man was killed had expressed misgivings about the forced entry plan, a lawyer for the dead man's family told a court yesterday. Mohamed Chaouk, 30, died after being shot in the neck and abdomen by an SOG officer during a raid on his family home in Brooklyn on April 5, 2005. Melbourne Coroner's Court heard Mr Chaouk was shot after he swung a samurai sword at the officer, injuring the man's left wrist.

Yesterday lawyer Michael Rafter, representing the Chaouk family, told an inquest he had been given information that police involved had "misgivings in relation to the form of actual entry" to the house. Mr Rafter's comments came as he was cross-examining another member of the SOG team who conducted the raid.

The SOG officer, who gave evidence via video and was referred to as operator 28, said he was not aware of any misgivings. "Did you hear any operative expressing some resentment . . . that they could be overruled by (operation commander) Inspector Noonan?" Mr Rafter asked. Operator 28 replied he had not.

Earlier, the inquest into Mr Chaouk's death heard the raid, involving 15 SOG officers, came after a six-month organised crime squad investigation into the criminal activities of the Chaouk family. The court heard police chose the option of forced entry because it had the least associated risks, but it had still been classified as medium to high-risk because of the Chaouk family's history of violence and use of firearms.

Yesterday operator 28 told the court his team had been briefed that the raid suspects were Macchour, Fatma, Walid, Mohammed, Ali and Matwali Chaouk. Operator 28 told the court the team was aware others may be present in the house in addition to the suspects. "Were you told two women were on the premises, one of whom was approximately eight months pregnant?" Mr Rafter asked. Operator 28 said he didn't recall. "Were you told there was a child likely to be on the premises?" Mr Rafter asked. Operator 28 said he didn't recall.

The inquest on Mohamed Chaouk is to continue today before coroner Paresa Spanos.

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Wednesday, September 12, 2007

Australia: Negligent police plus crooked government insurance bureaucrats try to stiff a little guy

A VICTORIAN judge has accused the state's Transport Accident Commission and the police major collision investigation unit of omitting evidence and trying to destroy the case of a cyclist who sought compensation after being rendered quadriplegic in a mysterious accident. In a decision handed down on August 31, Judge John Bowman, the acting president of the Victorian Civil and Administrative Tribunal, found in favour of a claim by 23-year-old cyclist Jay Cracknell, of Mooroolbark, and accused the TAC of adopting a "win-at-all-costs" attitude and of improper conduct in the way it fought the claim.

He also called the police investigation inadequate and sub-standard. He said he was stunned to learn that police never asked for Mr Cracknell's version of what happened. He criticised an officer who gave evidence, saying "his credit did not emerge unscathed". "It seems to me to verge on the staggering that an accident of sufficient gravity to warrant the attendance of the major collision investigation unit would occur — it being an accident of sufficient severity to render a young man a quadriplegic, also being an accident occurring by the edge of an important road and with certain peculiar surrounding circumstances — and yet no member of the police force has interviewed the victim," Judge Bowman said.

The bungled handling of the case has triggered an internal review by the TAC of its procedures for handling claims and dealing with litigation and compensation.

But Victoria Police's Assistant Commissioner for traffic, Noel Ashby, rejected the criticism. "We have full confidence in the manner in which the investigation was conducted," Mr Ashby said. "All decisions made were based on well-established and tested methods, and while the findings presented in the hearing were based on the civil burden of proof, police investigations are conducted to the highest standard of beyond reasonable doubt."

Mr Cracknell was found on a nature strip in Manchester Road, Mooroolbark, early on May 28, 2005, laid out straight, with his bicycle leaning upright against a nearby fence. He had a blood-alcohol level of more than 0.2, but he later insisted that he saw headlights behind him just before the accident.

Evidence about an arc of fresh tyre marks imprinted in grass close to where Mr Cracknell fell was given to the TAC and police officers. But it did not go to the TAC's independent investigator, David Axup, who nevertheless concluded it was "a distinct probability" that a vehicle was involved.

The TAC, however, denied liability and suggested Mr Cracknell lost control of his mountain bike. Mr Cracknell took his claim to VCAT in May. The TAC's initial file of evidence to VCAT also omitted any mention of the tyre marks. The TAC apologised to the judge during the case, and rectified it. But a day later, a witness testified about the tyre marks, undermining a statement by MCIU officer Sergeant Colin Schmidt. He swore another statement at the TAC's request, but the judge said the presentation of that statement looked like a "desperate attempt" to destroy the witness' vital evidence.

Judge Bowman said the TAC's exclusion of crucial material "makes me feel decidedly uneasy". He said there was overwhelming evidence that a vehicle forced or pursued Mr Cracknell off the road, and that someone unknown tried to "reorganise the scene of the accident". "The subsequent investigation by the major collision investigation unit was inadequate," the judge said.

The TAC said it would not appeal. Mr Cracknell plans to use any compensation to employ a full-time carer, buy a house and refit it for his needs. "I just felt like the TAC were holding out on me," he told The Age.

Mr Cracknell's sister, Taryn Hinton, wants police to reopen the investigation. "Someone did this to Jay, and that someone should be made accountable for what they did," she said.

TAC spokeswoman Anna Chalko said the commission "deeply regretted" that material was initially omitted. She denied that the TAC harboured "a win-at-all-costs" attitude and that it deliberately attempted to withhold evidence. "The TAC focus is to work closely with Jay and his family to get the medical treatment and support services he needs and for which he is entitled to."

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Tuesday, September 11, 2007

Australia: Killer cops protected

THE family of a man whose hit-run death has been linked to police say they were not formally told of the tragedy at the time. May Rogers, whose brother Hugh Wilson's death is now the subject of the state's oldest cold case investigation, said it was only by chance that one of her brothers found out what had happened.

Mrs Rogers, 82, said her brother Charlie visited Colac police station to register a car when he was told what had happened well after the event. "We were never told. We were never notified," Mrs Rogers said from her home in Western Australia.

Police are investigating whether Mr Wilson was hit by a police car and killed with a blow or blows to the head. Officers from the Victoria Police ethical standards department recently exhumed Mr Wilson's remains to have his injuries re-examined.

Mrs Rogers said she had been aware for many years of rumours that police were involved in her brother's death. She said he would be in her thoughts tomorrow, the 31st anniversary of his death. "He was a very gentle man. He would never swear in front of a woman," Mrs Rogers said. "He liked the simple life and to be left alone."

She said the family was glad the case was now being investigated so there would be some firm answers and, hopefully, justice. "We want some answers somewhere along the line. Even if it was my own son, he'd have to be dealt with," she said.


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Monday, September 10, 2007

Blatant government theft

Anastasio Prieto, a truck driver from El Paso, Texas, doesn't trust banks and prefers to carry his savings with him in cash. While this is a dangerous way to manage one's money, a cursory glance at recent headlines tends to validate Prieto's concerns about the stability of the fractional-reserve banking system. During a stop at a weigh station in New Mexico on August 8, Prieto made a critical mistake: He cooperated with the police, assuming that as a law-abiding individual he had nothing to fear from them. Never make that assumption.

A New Mexico state trooper asked Prieto for permission to search his truck for contraband, such as needles or cash in excess of $10,000. Displaying an ingenuousness that breaks my heart, the truck driver consented, informing the officer that he was carrying nothing illegal -- but admitting that he had $23,700 on board. Never consent to a police search, for any reason. Never admit to a police officer that you are carrying large amounts of cash. Always assume that a police officer would make the same use of that information that would be made by any other armed and potentially violent individual: He would find some way to steal your money.

And that is exactly what the officer did to Prieto, with the help of comrades from the federal Staatspolizei -- agents from the Drug Enforcement Administration and the Border Patrol. Over his objections, Prieto was detained for several hours, photographed, and fingerprinted, while his truck was searched by agents with drug-sniffing dogs.

As Prieto had explained, his truck was devoid of contraband. So the police apologized profusely, returned his money, bought him a cold drink and sent him away with a friendly smile and a wave. Oh, stop it! You're killing me! What country do you think we live in, anyway?

The police "forfeited" -- that is, stole -- Prieto's savings. The DEA agents who presided over the theft "told Prieto he would receive a notice of federal proceedings to permanently forfeit the money within 30 days and that to get it back, he'd have to prove it was his and did not come from illegal drug sales," reported the Houston Chronicle.

You see, under existing laws and recent legal decisions, "possession of a large sum of money" by a motorist "is `strong evidence' of a connection to drug activity."

So ruled the U.S. Court of Appeals for the Eighth Circuit in a decision handed down almost exactly a year before Prieto was robbed at gunpoint in New Mexico. The case was entitled "United States of America v. $124,700 in US Currency" (.pdf).

You see, it's not necessary to find the owner of the money guilty of anything; the money itself can be convicted of involvement in criminal activity and "punished" by being permanently taken into government custody.

Prieto has been told it will take a year for him to recover his stolen money, should the regime condescend to give any portion of it back. Meanwhile, he is apparently left penniless, with no funds to maintain the truck that is the source of his livelihood. The collectivist State ruling us treated Prieto in much the same way the Soviet state treated Ukrainian kulaks -- at least those kulaks who were permitted to live, anyway.

If our money can be seized from us simply because some agent of the State wants to, in what sense is it our property?

Summary seizure and "forefeiture" of property -- including cash -- by police is one of the larger gifts bestowed on our society by the murderous fraud called the "war on drugs." Ten years ago, Congress enacted a "reform" measure intended to rein in the practice, but as we see it is pointless to attempt to reform a practice that should be abolished outright.

Invariably, "forfeited" cash and goods are depicted as the ill-gotten gains of narcotics trafficking; it's never explained, however, how those supposedly dirty proceeds are magically cleansed once they are handed over to the police. The bounties seized by police are often used to buy the latest in tyranny tech, such pimped-out SWAT vehicles and other goodies for the jackbooted pests who are deployed to bring in the loot; this makes a nicely self-sustaining system of official corruption.

In fact, asset forfeiture has made it possible for corrupt police departments (or do I repeat myself) to cut out courts and juries and get straight to the business of plunder. To expedite the process, Bradenton, Florida's Police Department devised a "Contraband Forfeiture Agreement" (.pdf) for use by officers carrying out drug enforcement raids. Citizens who sign such agreements surrender their property -- such as cash or cars -- "to the DEPARTMENT free and clear of all claims or liens"; they also waive their due process rights. In exchange, the police agree not to prosecute.

Janie Brooks, a local resident in her mid-50s, was taken into custody by police who claimed to find drugs in her car. The automobile and $1,200 in cash were confiscated, and Brooks was intimidated into signing the agreement. "He [the officer] kept rushing me, like, `Go ahead, things will be better if you did," recalled Brooks. "It was like, there's gonna be some big time stuff that happens to me if I don't sign it."

Asked for his expert opinion of the practice, law professor Joseph Little of the University of Florida overcame a tragic handicap -- decades of legal training -- to offer a sensible assessment: "It sounds like robbery to me." Indeed it does -- robbery coupled with extortion and more than a hint of terrorism. And it was immensely profitable: The county's asset forfeiture fund at one point topped $150,000.

Using almost exactly the same methods -- traffic stops, contrived searches, and armed extortion in lieu of prosecution -- the Dallas County, Iowa Sheriff's Department sucked up $1.7 billion from motorists traveling along I-80 between 2002 and 2006. This profitable racket had to gear down just a bit after Sheriff Brian Gilbert was convicted of stealing $120,000 in stolen money.

But Gilbert's lenient sentence -- a $1,000 fine, a year's probation, and a brief term of "community service," rather than a prison term -- suggests that his comrades have a license to steal from the general public, as long as they don't skim from the State's take.

The same priorities governed the Soviet Union, of course: The police were free to expropriate the bourgeoise at whim, but stealing from the State was a capital offense.

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Sunday, September 09, 2007

Britain: Only 12 months for killing a kid?

A long-established family butcher who was responsible for food poisoning that killed a five-year-old boy and infected more than 100 other children was yesterday jailed for 12 months. William Tudor, managing director of the firm that supplied school lunches across South Wales, had failed to observe basic food hygiene precautions. Cardiff Crown Court was told that meat sent out by the firm was contaminated with E. coli 0157 bacteria, causing Britain’s second-largest food-poisoning epidemic.

Lax hygiene at the firm’s premises allowed raw meat to come into contact with cooked ham, turkey and lamb. Mason Jones ate the food in his school canteen. For two weeks he was critically ill, suffering fits, high temperatures, diarrhoea and kidney failure before dying in hospital.

Judge Neil Bidder, QC, told Tudor: “You failed to adopt safe procedures. Your staff were inadequately trained and poorly supervised. “Cleaning at the premises was sub-standard and an inspection found blood splashes, cobwebs, dead insects and congealed dirt on your machinery. You put the health of the public at risk for the sake of saving money.” The court was told that Tudor, 56, had cut corners in hygiene, telling staff to clean machinery only when health inspectors were expected. An uncleaned vacuum-packing machine was at the centre of the outbreak.

Graham Walters, prosecuting, said that within days of Tudor’s firm supplying cooked turkey, ham and lamb to schools in September 2005 a number of pupils fell ill with symptoms of diahorrea. Environmental health officers were called in, an outbreak control team was set up and the poisoning was confirmed as E. coli 0157. The outbreak led to 157 cases of food poisoning being investigated - with 109 cases at 44 schools traced back to Tudor’s business, John Tudor and Son.

Mr Walters said that the plant had only one vacuum-packing machine, which was used for both raw and cooked meats. He said: “It was not uncommon for juices from raw meat to get into the vacpacker. There was blood on the trays, and workers were having to wipe it off while they were packing cooked meat. The health inspectors found fundamental failures in cleaning and there was general concern over hygiene. “There was evidence the vacpacker was covered in congealed debris and dirt. Tudor was fully aware of the dangers because he had taken his advanced food hygiene standards certificate in 2004, which was a matter of law.” A legally required log of the cleaning records for the machinery had not been completed daily or weekly.

Tudor pleaded guilty to charges under the General Food Regulations of selling “unsafe food” to six schools, including Deri Primary School in Bargoed, where Mason was a pupil. Other charges related to five other junior and primary schools. He also admitted failing to protect food against the risk of contamination at his factory.

Huw Davies, QC, defending, said: “Mr Tudor blames himself for poor Mason’s death - he is devastated.” The court was told that the once-thriving “family butchers”, in Bridgend, had now “collapsed in debt”. Tudor was also banned from working in the management of the food industry for the rest of his life.

Mason’s mother, Sharon Jones, 32, said after the hearing: “We were shocked and appalled by the state of William Tudor’s premises which came out in court.” A public inquiry is due to be held by expert Professor Hugh Pennington into the outbreak, which left some victims with long-term kidney problems.

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Saturday, September 08, 2007

Exposed: sex scandal Australian police kept quiet

Protecting a sexual predator is fine as long as he is a buddy

A SENIOR police officer was employed at the Goulburn Police Academy for three years after an internal inquiry found he had sexually harassed one student and threatened to fail another if she did not grant him sexual favours. Sergeant Laurence Godkin, whose identity has been revealed for the first time in a court judgment, was still at the academy in July last year when the Commissioner, Ken Moroney, assured the public that police involved in sexual misconduct had been transferred out of the school. In fact, Sergeant Godkin was removed only in August last year when the police hierarchy became nervous about adverse publicity if it was revealed he was still there.

The acting Assistant Commissioner, Tony McWhirter, said in an affidavit filed in court: "I was concerned that, if the media were able to identify any of the affected officers as still being attached to the academy, this would also add a new angle to the story which would be likely to add to the coverage of the issue, and keep the story running for a longer period." The affidavit also revealed police were anxious to get Sergeant Godkin out and keep his identity secret to prevent the scandal affecting recruitment. It said the NSW Government had just released a budget paper that included a commitment to increase police numbers.

But Mr McWhirter said, "I was concerned that continued media coverage would cause other potential recruits to decide not to join the NSW Police Force, or to defer joining. "I was particularly concerned that Mr Godkin was likely to be of interest to the media, given that he remained attached to the academy and also given that his conduct was one of the case studies included in the Ombudsman's report," he said in his affidavit.

In early August last year, the NSW Ombudsman presented a report to Parliament entitled Misconduct at the NSW Police Academy. While Sergeant Godkin was not named, his case was one of those cited as an example of "poor handling by police of a serious complaint". Sergeant Godkin, a former highway patrol officer, became an instructor at the academy in 2000. Three years later an internal police inquiry into allegations of sexual misconduct and inappropriate relationships with students by teachers at the academy resulted in adverse findings being made against him.

It was found that in 2001 he sexually harassed a student by inappropriately touching her and making suggestive comments and gestures towards her and, earlier that year, he had harassed a student by threatening to fail her if she did not grant him sexual favours. A separate inquiry by Superintendent Wayne Benson found that only the first complaint - the inappropriate touching - could be sustained and Sergeant Godkin was counselled.

Sergeant Godkin took action in the Industrial Court of NSW, seeking to be reinstated to the academy and to have the police declare that his transfer "was not in the interests of NSW Police". Justice Patricia Staunton dismissed the case, saying it was not within the court's jurisdiction.

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