Thursday, December 31, 2009

$1.2m for man wrongly convicted of murder

New York authorities will pay $1.25m to a man who spent 14 years behind bars before being cleared in the notorious murder of a bouncer at the city's former Palladium nightclub.

A Manhattan federal judge signed off on the deal with David Lemus yesterday, after he filed a $50m suit against police and prosecutors who locked him up for the 1990 shooting.

Lemus, 40, and another man, Olmedo Hidalgo, were found guilty in 1992, but their convictions were overturned in 2005 after evidence surfaced tying two other men to the killing of Marcus Peterson outside the New York hot spot.

All charges were dropped against Hidalgo, who was deported to the Dominican Republic. Lemus, who now lives in Florida, was acquitted after a 2007 retrial.

"No amount of money can fairly compensate Mr Lemus for spending his youth being shuffled from prison to prison," said his lawyer, Steven Schiesel.

Original report here

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Wednesday, December 30, 2009

Cut the Power of America's Family Courts

Do you think judges should have the power to decide what religion your children must belong to and which churches they may be prohibited from attending? We have long suspected that family courts are the most dictatorial and biased of all U.S. courts, routinely depriving divorced fathers of due process rights and authority over their own children, but this December a Chicago judge went beyond the pale.

Cook County Circuit Judge Edward Jordan issued a restraining order to prohibit Joseph Reyes from taking his 3-year-old daughter to any non-Jewish religious activities because the ex-wife argued that would contribute to "the emotional detriment of the child." Mrs. Rebecca Reyes wants to raise her daughter in the Jewish religion, and the judge sided with the mother.

As Joseph Reyes' divorce attorney, Joel Brodsky, said when he saw the judge's restraining order: "I almost fell off my chair. I thought maybe we were in Afghanistan and this was the Taliban." The lawyer is appealing.

Doesn't the First Amendment extend to fathers? Apparently not, if they are divorced. This case sounds extreme, but it is a good illustration of how family courts, the lowest in the judicial hierarchy, have become the most dictatorial of all courts because of the tremendous number of families and amounts of private money they control and the lack of accountability for their decisions.

In another divorce case this year, a family court in New Hampshire (where the state motto is "Live Free or Die") ordered 10-year-old Amanda Kurowski to quit being homeschooled by her mother and instead to attend fifth grade in the local public school. Judge Lucinda V. Sadler approved the court-appointed expert's view that Amanda "appeared to reflect her mother's rigidity on questions of faith" and that Amanda "would be best served by exposure to multiple points of view."

Where did family court judges get the power to decide what church and what school the children of divorced parents must attend? Family court judges have amassed this extraordinary power by co-opting and changing the definition of a time-honored concept: "the best interest of the child."

This rule originally came from English common law as compiled by William Blackstone in 1765, and meant that parents are presumed to act in their own children's best interest. For centuries, English and American courts honored parents' rights by recognizing the legal presumption that the best interest of a child is whatever a fit parent says it is, and should not be second-guessed by a judge.

When states revised their family-law statutes in the 1970s, the "best interest of the child" became disconnected from parents' decisions, and family courts assumed the discretion to decide the best interest of children of divorced and unmarried parents.

The notion that persons other than parents should decide what is in a child's best interest is illustrated by the slogan "It takes a village to raise a child." Those who use that slogan understand "village" to mean government courts, government schools or government social workers.

The trouble with the best-interest rule is that it is totally subjective -- it's a matter of individual opinion. Parents make hundreds of different decisions, and should have the right to make their decisions even if they contravene the self-appointed experts.

Whether the decision is big (such as where to go to church or school) or small (such as playing baseball or soccer), there is no objective way to say which is "best."

Since judges are supposed to base their decisions on evidence presented in open court, and there is no objective basis for deciding thousands of questions involved in raising a child, judges call on the testimony of expert witnesses. A big industry has grown up of psychologists, psychiatrists, social workers, custody evaluators, and counselors who are eager to collect fees for giving their opinions.

Having opinions produced by persons with academic degrees is a way to make subjective and arbitrary judgments appear objective. With the volume of cases coming through family courts, judges can evade responsibility for controversial decisions by rubber-stamping opinions of these court-appointed experts.

Scientific American Mind published a scholarly paper in October 2005 by three noted psychologists who explained that the practice of allowing courts to be de facto decision makers "is legally, morally and scientifically wrong. ... Parents should determine their children's lives after separation, just as when they are married. ... Parents, not judges or mental health professionals, are the best experts on their own children."

It's time to call a halt to the practice of letting family court judges make decisions that are rightfully the prerogative of parents.

Original report here. (Via POLITICAL CORRECTNESS WATCH)

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Tuesday, December 29, 2009

New Book Exposes "Painful Errors in the American Judicial System"

New Jersey's Daily Record headlined "DNA Tests Clear Man in Parsippany Rape Case." Two days later local and national news outlets including AOL and Fox news ran the story, "Man Who Spent 28 Years in Prison Cleared by DNA Testing." This comes on the heels of the Dallas, Texas man who was freed after serving 27 years in prison for wrongful conviction of committing aggravated rape.

Mid-Atlantic Innocence Project reports that in the United States, since 1989 "there have been tens of thousands of cases where prime suspects were arrested or indicted - until DNA testing (prior to trial) proved that they were wrongly accused."

The Innocence Project notes general causes for wrongful convictions to be: suspect misidentification by eyewitnesses, not-validated or improper forensic science findings, false confessions, misconduct by government officials, poor representation by the accused person's attorney or/and testimony from informants, including people government officials give lighter sentences to in exchange for fingering another person.

Research News, Exonerate, Mid-Atlantic Innocence Project and the national Innocence Project are a few of the organizations that are working to examine the functioning of the justice system as well as present facts and data to American citizens and persons who are wrongfully convicted and their family members. Spiral ( is a book that deals with the impact of wrongful conviction from inception to conclusion.

Spiral's author, Denise Turney, is an African American woman who grew up in urban neighborhoods throughout the United States. About Spiral she states, "Understanding the dynamics behind a wrongful conviction is crucial to understanding why this painful judicial event continues to happen. Spiral examines the life of a man, Richard, who is convicted of a murder starting from the man's childhood. Richard's fictional account extends from the 1940s into the 1980s. Wrongfully convicted persons have gained inspiration and empowerment through reading this detailed fictional account of a wrongful conviction that forever changed a small Tennessee town."

"Numbers show that, for the most part, the American judicial system does work. However, gaps in the system need to be addressed and rectified. Prison and assumed guilt," Turney continues, "Particularly when both are accompanied by attack and blame from hundreds, thousands or even millions of onlookers, changes a person forever. People tend to convict an accuser even before a trial is held. There is a wealth of confidence placed in the judicial system and this after years of revealed cases where an informant, judge, attorney, police officer or other government official or allowed bias or self-interest to sway a case."

"Increased focus on wrongful convictions by the public can push government agencies to examine current legal and judicial processes, identify gaps and take necessary to bridge those gaps. This, in turn, can yield cost savings and most importantly, it can save individuals and families tremendous psychological, physically, financial and social hardships and pain," Turney concludes.

Original report here

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Monday, December 28, 2009

Innocents in prison

THREE DAYS after Donald E. Gates was released from prison after serving 28 years for a murder he didn't commit, federal prosecutors acknowledged that they received, but failed to act on, information discrediting testimony key to his conviction. In the same week, a Florida man imprisoned for 35 years for kidnapping and rape was freed after DNA tests proved his innocence. As appalling as the two cases are, what's even scarier is the thought that imperfections in the criminal justice system will go uncorrected and more people could be wrongly jailed.

The wrongful conviction of Mr. Gates in the 1981 rape and murder of a D.C. woman and that of James Bain in the 1974 assault of a 9-year-old boy could serve as primers for what's wrong with the system. In Mr. Bain's case, it was reliance on identification from an unreliable eyewitness: a traumatized 9-year-old. Witness misidentification is the single greatest cause of wrongful convictions, contributing to more than 75 percent of convictions overturned through DNA testing nationwide, the Innocence Project reported.

The second biggest cause is faulty forensics, and that played a starring role in Mr. Gates's conviction. A FBI special agent testified that two pubic hairs found on the victim's body were microscopically identical to those of Mr. Gates. Even if, as later examination showed, the agent hadn't basically been making up his findings, the science behind the technology is suspect. Indeed, a report this year from the National Research Council found such serious deficiencies in the nation's forensic science system that it called for major reforms and new research.

It's also clear from Mr. Gates's case that improvements are needed in how the government discloses information. Even after a 1997 inspector general's report questioned the credibility of FBI agent Michael P. Malone, prosecutors were still, as late as this year, touting his findings. Only after the D.C. public defender's office did its own digging were the problems with Mr. Malone's performance, and the government's failure to disclose them, brought to light.

In a letter to the court admitting that they had received information almost six years ago that called Mr. Gates's conviction into doubt, prosecutors at the U.S. Attorney's Office said that they have referred the matter to the Justice Department's Office of Professional Responsibility. They also should follow the lead of states such as North Carolina in establishing innocence commissions that bring together judges, police, prosecutors, defense attorneys and victim's advocates in an attempt to identify the practices that lead to wrongful convictions and to recommend reforms.

Original report here

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Sunday, December 27, 2009

No justice in Wisconsin

Guilty without trial

The state Claims Board has rejected a request for compensation from a man who said he was wrongfully convicted of sexual assault along with two other men in 2000.

Jarrett Adams spent seven years in prison until a federal appeals court overturned his conviction and ordered a new trial in Jefferson County. The 7th Circuit Court of Appeals ruled that Adams' attorney had been ineffective because he failed to introduce a defense witness who testified at the trial of one of his co-defendants that the alleged victim was seen chatting amiably with the three suspects after the alleged attack occurred. That case resulted in a hung jury.

Jefferson County District Attorney David Wambach declined to prosecute Adams a second time for the assault, which allegedly occurred in 1998 at UW-Whitewater.

Wambach urged the board to reject the request, arguing that the reversal of Adams' conviction doesn't mean he's innocent. In its summary, the claims board said Wambach, who is now an assistant attorney general, didn't pursue a retrial "in deference to the wishes of the victim, who did not want to relive the trauma of the sexual assault."

The board concluded in its decision, released Dec. 17, that "the evidence is not clear and convincing that the claimant was innocent of the crime for which he suffered imprisonment."

Adams, of South Holland, Ill., had been seeking the maximum $25,000 reimbursement for wrongful conviction plus $56,111 in attorneys fees.

Keith Findley of the Wisconsin Innocence Project, which represented Adams in his successful appeal, reacted strongly to the decision.

"This is a very unfortunate turn of events and highlights that Wisconsin's system for compensating the wrongly convicted is woefully inadequate," Findley said. "It was bad enough that the state wrongly convicted Jarrett, deprived him of years of freedom for a crime that important new evidence says he did not commit, but now it adds insult to injury by completely turning its back on him when he seeks assistance to get back on his feet and tries to reclaim some of what the state took from him."

Original report here

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Saturday, December 26, 2009

Bruce Lisker files suit alleging that LAPD detectives framed him

Lisker served 26 years in prison in the death of his mother. His conviction was overturned in August. The suit contends his civil rights were violated by investigators in the case

A man wrongfully convicted of killing his mother and freed after serving 26 years in prison filed a lawsuit Tuesday accusing Los Angeles police detectives of framing him.

Bruce Lisker, 44, contends his civil rights were violated by the city of Los Angeles, the Los Angeles Police Department and the former detectives who investigated his mother's March 10, 1983, slaying, according to the suit filed in U.S. District Court. "It wasn't an innocent mistake, and those responsible should be held accountable," said attorney William Genego, who represents Lisker. "He lost the heart of his life from ages 17 to 44. It's hard to comprehend the loss of that much time."

Lisker's 1985 murder conviction was overturned in August after a federal judge ruled that he had been prosecuted with "false evidence" and that his original defense attorney did not adequately represent him.

The judge's findings mirrored those of a 2005 Los Angeles Times investigation that raised questions about key elements of the prosecution's case against Lisker and exposed the LAPD's murder investigation as sloppy and incomplete.

At the time, detectives were immediately suspicious of Lisker, a frizzy-haired 17-year-old who had a history of drug abuse and fighting with his 66-year-old mother, Dorka. Lisker's relationship with his parents had deteriorated to the point that they paid for him to live in a studio apartment near their home in Sherman Oaks. On the day of the killing, Lisker told police he had come to the family home to work on his car. When his mother didn't answer the front door, he said he went around to the backyard and looked through the living room window and patio sliding glass door. He said he thought he saw his mother lying in the foyer and broke into the house through the kitchen window to come to her aid and call paramedics.

The detectives didn't believe Lisker and placed him under arrest that day.

His lawsuit focused largely on the work of the lead detective in the case, Andrew Monsue. He could not be reached for comment to respond to Lisker's charges. In a 2005 interview with The Times, Monsue denied any misconduct in the case and said he believed Lisker was guilty of the murder.

A spokesman for the L.A. city attorney's office, which generally defends LAPD officers in civil litigation, said it could not comment because officials had not read the lawsuit.

The 28-page complaint accuses Monsue of fabricating evidence and giving false testimony. For example, the detective testified that bloody shoe prints at the crime scene matched Lisker's shoes. In fact, forensic experts have since determined the prints were made by a shoe other than Lisker's.

Monsue also testified that Dorka Lisker's slaying occurred on "a very bright sunny day" and that, because of reflection from the sun, Lisker would not have been able to see his mother through the living room window, as he stated. Evidence has since "overwhelmingly showed" that the morning was cloudy and overcast and that Lisker would have been able to see his mother, the lawsuit contends.

Moreover, Monsue ignored evidence pertaining to another suspect in the case, the lawsuit alleges. The suspect, Mike Ryan, was a friend of Lisker's with a juvenile criminal record for theft, trespassing and assault with a deadly weapon. Ryan admitted approaching Dorka Lisker seeking work the day before the slaying, gave police a false alibi, and spontaneously said that he had been in a knife fight on the same day Dorka Lisker was attacked with a knife. Despite these and other potentially incriminating facts, Monsue chose not to pursue Ryan as a suspect, writing in a report that Ryan had been "convincingly cleared," the suit alleges.

Monsue continued to falsely implicate Lisker even after his conviction, the lawsuit contends. Monsue wrote a letter to the parole board 13 years after Lisker's conviction in which he claimed that the case had only grown stronger with time. In the letter, Monsue wrote that police had suspected Lisker killed his mother while trying to steal money from her purse but were never able to prove it. In the intervening years, he wrote, the new owners of the home had found $150 in the attic above Lisker's old bedroom. The man who owned the home at the time in question has since told Lisker's private investigator that neither he nor his wife, who has since died, found any money or told Monsue they did. Monsue's letter, the lawsuit alleges, "was a complete fabrication."

Genego said he and Lisker's other attorneys reached out to City Atty. Carmen Trutanich before filing the suit to see if a settlement could be reached without litigation. He said their requests to meet with the city attorney went unanswered. "It seems the city is more interested in fighting this than doing the right thing," Genego said.

Original report here

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Friday, December 25, 2009

Australia: He served 15 years in jail, now he's granted a retrial

A Queensland man who spent 15 years in jail for murdering a 12-year-old schoolgirl in 1991 has had his conviction quashed on his third attempt at appeal. The Queensland Court of Appeal this afternoon ruled to allow Graham Stuart Stafford's third appeal against his conviction of murder in 1992 of Leanne Holland's murder in September 1991. His conviction has been overturned and a retrial has been ordered.

Leanne Holland's severely battered body was found in bushland off Redbank Plains Road, near her family's Goodna home, south-west of Brisbane, three days after she went missing. Stafford, then 28 years old and the boyfriend of Leanne's older sister Melissa, was found guilty on circumstantial evidence including traces of hair, blood and a maggot found in the boot of his car.

The English-born sheet metal worker, backed by supporters including criminologist Paul Wilson, has continued his long-running campaign to clear his name since he was released from jail on parole in 2006. Stafford and his supporters dispute the evidence used to convict him and claim he was the victim of a miscarriage of justice.

He last year sent a request for a pardon to Queensland's then attorney-general Kerry Shine, who subsequently referred the material to the Court of Appeal. "The new evidence that has come to hand relates to questions, for example, of where the murder took place and, indeed, when it took place," Mr Shine said at the time.

The Queensland Court of Appeal previously rejected Stafford's application to appeal his conviction in August 1992, and dismissed an application for a pardon based on fresh evidence in September 1997.

Original report here

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Thursday, December 24, 2009

Jilted lover who stabbed ex-girlfriend to death was released by British judge despite vowing to kill her

A violent ex-bouncer accused of imprisoning his former partner and threatening to kill her was freed by a judge, only to ambush her as she left work and stab her to death. Alan Entwistle, who had assault convictions dating back to the 1970s, had been locked up after warning mother-of-two Claire Atkinson he would stab her if she didn’t take him back. But days later his lawyer appeared before Judge Stuart Baker who agreed to grant the 52-year-old bail - against the wishes of police and prosecutors.

Entwistle - who had warned his ex-lover ‘If I can’t have you, no one will’ - was merely instructed not to contact Miss Atkinson and to stay away from her home town. However the following month he stalked the 31-year-old as she walked home from work then pounced on her, stabbing her 13 times then dragging her into the passenger seat of his car. He drove around with her body alongside him before crashing into another car, when rescuers made the horrific discovery.

Yesterday, as Entwistle began a life sentence after admitting her murder, renewed questions were being asked about the readiness of the courts to free violent offenders. Entwistle, described as a possessive bully, first attacked Miss Atkinson last January, pushing her face down on a mattress at their home in Fleetwood, Lancashire.

She was reluctant to testify against him, but then in March he threatened her and refused to let her out of the car for three hours. Producing a large knife, he told her ‘that’s what you are going to get’. The following day she moved his belongings out, at which he told her ‘You only have a week, you ******* slag, you have had it’, Preston Crown Court heard. On March 7 he was charged with false imprisonment and remanded in custody. But five days later at a bail application before Judge Baker, he was freed.

Suspicions quickly grew Entwistle was stalking her – he gatecrashed a family christening and told a friend he knew she had spent the night with her. On April 17 he was seen driving near the supermarket where she worked. He killed her later that day.

Judge Anthony Russell QC jailed him for life and ordered he serve a minimum of 21 and a half years. As he was taken down, Entwistle, of Fleetwood, said ‘I’m sorry’ to her sobbing family.

Police are said to be privately furious at the decision to bail him after the earlier attack. Miss Atkinson’s father Grenville, 55, said: ‘Claire’s death has been a horrendous shock for all the family, we are devastated. Over the last few days we seem to have found some inner strength which we like to think is coming from Claire.’

Patsy McKie, of law and order campaigners Mothers Against Violence, said the courts needed to be tougher on violent offenders.

Original report here

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Wednesday, December 23, 2009

Australia: DNA to be retested in convicted killer's case

It's just amazing how often "lost" evidence can suddenly be found

A MAN jailed for murder nearly 20 years ago has been thrown a legal lifeline, with DNA evidence to be retested for the first time in Queensland legal history. Brisbane's Wolston Correctional Centre inmate Shane Davis has vehemently proclaimed his innocence since his conviction for the murder of South African tourist Michelle Cohn on the Gold Coast in 1990.

Attorney-General Cameron Dick last night revealed "DNA material" used to prosecute Davis would be retested at Queensland Health Forensic and Scientific Services in Brisbane. The move comes as part of a broader policy review due early next year on how to guide decision-making on similar cases in future. "DNA testing techniques have progressed significantly since the time of Mr Davis's trial," Mr Dick told The Courier-Mail. "By testing this material, we will have access to results that may help in shedding new light on whether Mr Davis's conviction was correct or not. "I am happy to support any measures that uphold the integrity of our legal system and ensure that the interests of justice continue to be maintained."

His decision comes after a long-running review of the case by The Innocence Project, a pro bono group of law students and defence lawyers at Griffith University who examine cases involving possible doubt. Dean of Law at QUT and former federal attorney-general Professor Michael Lavarch said the decision would not affect most cases. "One suspects that it's a relatively small number of cases but if there's one innocent person sitting in a jail somewhere it's one too many," he said.

The top prosecutor involved in the Davis case, former director of public prosecutions Royce Miller, QC, told The Courier-Mail in August that the Government should review the Davis case. "Everybody makes mistakes in life," Mr Miller said. "But never fail to acknowledge the mistake if you've made it. "So long as now I've done something to remedy the wrong I wouldn't feel any qualms about what happened 18 years ago."

The DNA evidence used in the Davis case was thought destroyed until former attorney-general Kerry Shine officially recognised its existence on the day Mr Dick replaced him as attorney-general. "We don't know whether Davis is innocent or not," said lawyer Chris Nyst, who is part of The Innocence Project. "He says he is. What we do know is that we now have the technology to ascertain that. It should happen and we want it to happen quickly."

There have been several high-profile cases in other Australian states in recent months, and DNA testing has been used to free convicted people in the US. As of July 23, 240 people convicted of serious crimes in the US have been exonerated this way; they served a total of 3000 years.

Original report here

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Tuesday, December 22, 2009

Black cop stood down for pulling gun at snowball fight

Apparently he felt "disrespected"

A POLICE officer accused of pulling a gun during a mass snowball fight on the streets of Washington DC has been removed from normal duty pending an investigation.

Footage from several video cameras at the scene of the weekend snowball fight in downtown Washington appear to show the police officer pulling a gun from his holster and brandishing it in the air. After denying a weapon was involved in the incident, Washington police later issued a statement saying that images and statements did appear to support claims the police officer drew a gun after he and his car were hit by snowballs.

The mass snowball fight involving groups of mainly young men in their twenties was allegedly organised by Twitter messages received around the city. Dozens converged on the corner of 14th and U Street in Washington to join in the snowball fight as a relief after being snowbound by the record snowfall that had shut down most of the city, including the Metro rail system and Ronald Reagan Airport.

After the unnamed police officer is seen pulling the gun, one of the videos carries commentary from a young man who says: “Do not shoot anyone over snowballs, please. I'm telling you, that is not a fun plan.” The crowd starts chanting, “Don't bring a gun to a snowball fight.”

Another police officer at the scene appears to challenge one of the snowball fighters, saying “throw another snowball”. One man tells a police officer they do not feel safe. The officer replies: “You go back to your snowball fight, all right?”

The Washington Post quoted DC Assistant chief Pete Newsham saying that a police officer would not be justified in drawing his pistol if an investigation found that he did so after being pelted with snowballs. “We have to see what the entire circumstance was, but just a snowball fight, not in my mind,” he said. “That doesn't seem a situation where we would pull out a service weapon.”

Original report here

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Monday, December 21, 2009

Manitoba confronts fourth possible wrongful conviction

A Manitoba judge has given an eight-year-old girl her grandfather back and at the same time, he has put the province's beleaguered justice system under further scrutiny. An emotional Frank Ostrowski walked out of the downtown Winnipeg Law Courts Friday afternoon, tasting freedom for the first time in 23 years and vowing never to return to prison. Queen's Bench Justice Colleen Suche agreed to release Ostrowski, 60, on bail while the federal government studies whether he's been a victim of a wrongful murder conviction.

"I've wished every single Christmas for my dad," Ostrowski's daughter, Amber, said outside court as she held him closely. She was even more excited for her daughter, who she phoned at school minutes after learning the bail verdict. "I told her I have a very big Christmas present for her. She said 'Grandpa?' I told her that yes, Grandpa was coming home," she said. The reunited family planned to spend Friday afternoon hanging holiday decorations before heading out for a buffet dinner.

Overshadowed by the Ostrowski's joy was the fact serious questions are being raised about yet another Manitoba murder conviction. Kyle Unger, James Driskell and Thomas Sophonow have already had their names cleared after serving lengthy stints behind bars. Ostrowski's prosecution was handled by now-retired Crown attorney George Dangerfield, a man whose professional record includes at least three murder cases ending in claims of wrongful prosecution. Kyle Unger, James Driskell and Thomas Sophonow were all convicted of murder under Dangerfield's watch. Unger walked away a free man in October after spending 14 years in prison for the June 1990 slaying of Brigitte Grenier, 16.

Driskell was convicted of the 1990 slaying of Perry Harder. In 2003, he was released from prison on bail after new evidence came forward showing he did not receive a fair trial. He was awarded $4 million for spending 13 years behind bars.

Convicted of the 1981 murder of waitress Barbara Stoppel, Sophonow was exonerated in 2000 and compensated following a judicial inquiry into his case in 2001. Evidence at the inquiry showed Dangerfield and other Crown attorneys failed to disclose evidence that would have attacked the credibility of Crown witnesses. Sophonow was awarded $2.6 million in compensation for being wrongfully convicted.

"The justice system worked today," James Lockyer of the Association in Defence of the Wrongly Convicted said outside court Friday. "Slowly but surely, we're setting right our old wrongs. Manitobans should take faith for that." Lockyer believes the federal review of Ostrowski's case could take up to two years. In the meantime, he has a list of other Manitoba murder convictions he plans to sit down to review with provincial justice officials in the near future, believing the book has not yet been closed on wrongful convictions. Lockyer wouldn't say how many cases are under suspicion, but that the most recent is from 13 years ago.

Ostrowski, a former hair stylist turned drug dealer, has maintained his innocence since the day he was arrested in the 1986 killing of Robert Neiman over a drug debt. He was convicted in 1987 of first-degree murder and sentenced to life behind bars with no chance for parole for 25 years. The Crown argued at trial Ostrowski feared Nieman was "ratting" on him to police. Two other men were found guilty of Nieman's killing. Robert Dunkley was convicted of pulling the trigger and continues to serve a life sentence. Jose Luis Correia was granted "faint hope" release last year and later deported to his native Portugal.

Ostrowski vowed Friday never to return to prison. "The evidence is too powerful. My lawyer has proven the justice system failed me," he said.

Lockyer has argued there is considerable evidence Ostrowski got a raw deal at his trial in that important information was not disclosed by the Crown and police. The main issue is a secret deal key witness Matthew Lovelace made with federal authorities to testify against Ostrowski in order to get a cocaine trafficking charge against him withdrawn so he wouldn't go to jail. Lockyer said the offer should have been disclosed to the jury so they had a full picture of Lovelace's credibility.

Suche said Friday there is no evidence Lovelace was aware of any deal in exchange for his testimony — but that doesn't change the fact it shouldn't have been kept secret. "Lovelace presented himself as an individual who simply told what he knew, had nothing to gain by testifying as far as he was aware, and was motivated only by an interest in seeing justice done," she said. Suche said concerns raised in Ostrowski's case are not "nearly so compelling" as those in the Driskell or Unger cases. "It might be fair to say that thus far, the information has raised as many questions as it has answered," said Suche. "However, the questions raised are very serious and go to the heart of the Crown's case, being that they relate in a fundamental way to the credibility of a crucial witness and to trial fairness."

The judge said Ostrowski had earned the right to a release. "He is 60 years of age and in declining health. If he is innocent, the years taken from him can never be restored," said Suche. "If the minister denies his application for review, he will return to prison to serve the balance of his sentence. In all of the circumstances, I conclude that it is not in the public interest that Mr. Ostrowski remain in custody."

Don Slough, Manitoba's assistant deputy attorney general, said his department was "satisfied" with Suche's decision to release Ostrowski, despite the fact the Crown was opposed to bail. "There has been a public airing of the facts and it's brought a lot of clarity," he said. Slough said it's too early to declare Ostrowski a victim of wrongful conviction. He said further scrutiny of cases from Lockyer is also welcomed. "There may be more and we'll deal with them on a case-by-case basis," said Slough. "It speaks more to an era that's long past. Many things have changed — disclosure issues, the way we approach cases. There have been many, many changes since then."

Ostrowski will live with his daughter and granddaughter under strict conditions while his legal status is in limbo, including a $50,000 surety and a nightly curfew of 10 p.m.

Original report here

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Sunday, December 20, 2009

Not given a chance to live

We talk to kids today about "safe sex" a lot. They are warned about unsafe sex frequently. But one of the biggest dangers to sex is overzealous, pious politicians—screwing hookers on their off time while cheating on their wives and preaching "family values." I have hit this theme repeatedly: these politicians have turned normal adolescent sexuality into a criminal offense and they have the audacity to pretend they are doing it "for the children."

Consider the case of a young man, Matthew Freeman, 23. Five years ago, when 17, Matthew was dating a girl from school who was 15. The two had sex. The result is that Matthew is now a "registered sex offender," which sends shivers down the spine of the uninformed who assume that means he is a rapist or attacks small children. Freeman is none of those things. He was a normal teenager who dated a girl slightly younger than himself. Had she been a few months older the whole thing would have been outside the control of the State. But in this case she was just under 16 and he was just over 17 by only 12 days. That meant he was charged with "fourth-degree criminal sexual conduct involving force or coercion."

The girl's mother said she didn't want them dating and turned in Freeman merely to stop the dating because she couldn't figure out how else to prevent it. She is one stupid woman who is now trying to stop the injustice she started.

You may remember that I have previously warned that sex offenses involving force don't mean that force is involved. That is how politicians twist the laws so people think things happened that didn't happen. A sexual offense may be entirely free of force yet still be defined as violent by the government sex police. It is automatically assumed to be violent if the "victim" (read willing partner) is under the age set by politicians. Even the girl's mother admits: "My daughter was a willing participant." The mother has now written a letter on behalf of Freeman asking the state to remove him from the sex offender registry. She says: "He's not given a chance to live and become an upstanding citizen."

Freeman admitted he had sex with his girl friend and that meant he became a registered sex offender. He pleaded guilty on the advice of a public defender. After his conviction he was ordered by the State to stay away from his girlfriend. It wasn't her order but the government's, they said she was a victime. He tried to see her and was considered in violation of parole. Remember the State lies by calling the girl a "victim" even if she was a willing participant in a relationship she wanted. This is how they feed the hysteria. They talk about "victims" when no victim actually exists and pretend there is violence when no violence or force was used. They pretend adolescent are children when they clearly are not children. Our sex offender laws are built on deceiving the public about who is actually being arrested and for what. They intentionally create false impressions to feed the fear that keeps the sex police bureaucracy going.

Freeman then did something really stupid. He shoplifted some computer game. That was a second violation of parole. He was now on the edge and trying to be very careful. His mother moved the family to a new house. Like hundreds of thousands of innocent families they are restricted as to where they are allowed to live under the sexual apartheid of the sex offender registries. They are zoned out of entire sections of town because Matthew is now an evil "sex offender" because of his teenage romance.

Freeman's mother, Yolanda, went to the police before moving to her new home. She was told by the police that the home in question was approved for her evil son. That said "it shouldn't be a problem" to live there. So Freeman registered with the police for the vile sex offender registry giving the address that the police had approved.

That put Freeman's name and address on the registry and some frustrated housewife, with nothing better to do than feed her own paranoia, was browsing the registry. She found Freeman. She saw that he lived 400 yards from the school that his young sister attends. And she read the registry precisely the way the politicians designed it to be read: wrongly. The hysterical woman called police in a panic to tell them that a violent, child rapist, lived "directly" across from the school. Again note that there was no child—merely a girl friend barely more than a year younger than Freeman himself. There was no rape, just consenting sex between two adolescents. And there was no violence, the state just calls it violent to scare the bejeesus out of gullible members of the public. Even the original police report clearly states that the girl was "not forced to commit any act" nor "did she ask him not to commit any act." No force of any kind, yet the politicians define this as violence. (Note that when they threaten you with violence, if you don't pay taxes, they define that as "voluntary compliance.")

Matthew was playing basketball in front of his house when the police showed up to arrest him. The Freeman family protested that the police themselves had approved the house. No matter say the authorities. If the police screw up they aren't responsible—Freeman is. So now he faces a year in jail for living precisely where the police had told him it was fine to live.

Of course the local prosecutor, a bureaucrat named Steve Hiller, gives the usual lying response when questioned by the press about the case. This political low-life says that arresting Freeman was a matter of "public safety" which is of "paramount concern" to anyone seeking higher office. He piously claims "This particular law is in place to protect children, so that's obviously a very serious matter." What an asswipe! The law doesn't protect children. There is not scintilla of evidence that offender zoning laws protect anyone. All they do is harass people. There not a shred of evidence that Freeman poses a threat to children. He was never sexually interested in children. He was a teenage boy who had sex with his teenage girlfriend, who was barely a year younger than himself. Hiller is lying through his eye-teeth.

But these sex offender laws are precisely that: lies built on a foundation of falsehood, perpetuated by myths and politically-induced hysteria, promoted by low-life politicians like Hiller. Even the girl's mother, who started the problem by calling the police, says what is being done to Freeman is wrong and she wants the State to bud out.

Case after case, of teens being arrested for normal teenage sexual behavior, are arising due to the laws that were passed in response to the hysteria of the 1990s about purely imaginary Satanic child sexual abuse. Since then those ill-conceived laws have expanded. These laws are not protecting the kids! They are victimizing the kids!

Anyone who thinks these laws are protecting teens from sexual abuse are either uninformed, brainless, or lying. The politicians know what these laws are doing. The police know what these laws are doing. And they are hiding the truth from the public. If the parents of America understood what these sex Nazis are doing to America's young, these worthless bureaucrats would be strung up from the nearest lamp post Mussolini-style — and rightfully so. Now you know why I want to punch the lights out of anyone who publicly uses the "it's for the kids" excuse for their political agenda—it's the kids they hurt.

Original report here

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Saturday, December 19, 2009

Utah Supreme Court ruling overturns murder conviction

Sounds like a retrial is needed here but the ruling on eyewitness ID is long overdue

People don't always see what they think they saw, yet Utah trial judges routinely have banned experts from telling juries about the problems with eyewitness identification. On Friday, the state's Supreme Court changed all that by saying experts in the science of eyewitness identification routinely should be allowed at trial.

Attorney Michael Zimmerman, who won the appeal, called it "a very significant decision . . . a sea change for how eyewitness cases will be dealt with in Utah going forward." Laura Dupaix, chief of the Utah Attorney General's criminal appeal division, agreed expert testimony can be important in eyewitness cases, but said the decision to include such experts should be left to the trial judge.

Friday's ruling overturned the murder conviction of Deon Lomax Clopten for the Dec. 1, 2002, fatal shooting of 27-year-old Tony Fuailemaa outside a Club X-Scape in Salt Lake City. Clopten maintained a man named Freddie White was responsible for the shooting and hired an expert to testify about the potential problems with eyewitness identification, according to Friday's opinion. But a judge refused to allow the expert, David Dodd, to testify and instead warned jurors about the dangers of eyewitness testimony with a jury instruction, which had been the common practice of courts for two decades, the opinion said.

Clopten appealed, and the Utah Court of Appeals affirmed his conviction. But the justices on Friday said the circumstances of Clopten's case -- mainly prosecutors' heavy reliance on eyewitness testimony -- are "exactly those under which the testimony of an eyewitness expert is most helpful to a jury."

Noted Zimmerman: "Eyewitness testimony is believable because eyewitnesses believe what they are saying. Most of us believe what we see. But science says we don't remember without bias and don't remember a lot of what we see."

According to Friday's ruling, "Dodd could have testified about research into how eyewitness identification of a stranger is affected by stress, disguises, darkness and length of exposure. He could have quantified the impact of factors such as weapon focus and cross-racial identification. "Dr. Dodd could also have testified as to the impact that comments made by police officers may have on an eyewitness making an identification. Additionally, he could have discussed a common phenomenon in which witnesses fill gaps in their memory with information obtained later and thus, over time, become more and more certain of identifications that may be inaccurate."

Chief Justice Christine Durham wrote for the court: "We are not mandating the admission of eyewitness expert testimony in every case. We expect, however, that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony." Associate Chief Justice Matthew Durrant and Michael Wilkins dissented in part, saying the high court should not remove the discretion of trial judges and create a presumption in favor of eyewitness expert testimony.

The high court grappled with the eyewitness expert problem in 1986, when they issued a ruling requiring a jury instruction warning of the weaknesses of eyewitness identification. Coincidentally, Zimmerman was a member of the Utah Supreme Court at that time. He said Friday that he and the other justices believed the jury instruction would fix the problem. But scientific studies, mostly done after 1986, show that reading an instruction to jurors is unlikely to get their attention. Having an expert take the stand and testify, however, "makes it more a focal point of the trial," Zimmerman said.

At Clopten's trial, witnesses testified the murder was the result of a dispute between Clopten and Fuailemaa that began in the Utah State Prison in 1997. Clopten was beating two other inmates when Fuailemaa -- serving time for robbery convictions -- stepped in and knocked Clopten to the floor. Both men were paroled in 2002, but did not run into each other until they happened to attend a concert at Club X-Scape the night of Dec. 1, 2002. After an initial confrontation inside the club, Clopten and three other men left. Outside, Clopten asked his friend, Freddie White, for a gun, declaring he was going to kill Fuailemaa.

Meanwhile, Fuailemaa also left the club with his fiancee, Shannon Pantoja, who testified at trial that she saw Clopten step from the shadows and shoot Fuailemaa in the back of the head. Two other eyewitnesses also said Clopten was the shooter.

Defense attorney Stephen McCaughey countered by calling two of Clopten's sisters and a friend, who testified White had told them he was the killer.

Following the shooting, Clopten, White and two other men fled in a vehicle that was stopped by police after a pursuit that reached speeds of 120 mph. A bicyclist later spotted two handguns in the gutter along the chase route and called police. Experts determined one of the pistols, a 9mm semiautomatic, was the murder weapon.

Asking for the maximum sentence for Clopten, prosecutor William Kendall said, "He executed Tony . . . and bragged about it afterwards, saying he had 'domed' him." The victim's family called Fuailemaa "a gentle giant who was friends with everyone," and who was planning to marry Pantoja the week he was killed. Family members publicly thanked witnesses for their willingness to testify against Clopten, who is allegedly a leader of a Salt Lake City area gang.

Dupaix, of the attorney general's office, said Friday the eyewitness identification of Clopten was reliable enough that, combined with other evidence in the case, the jury would have convicted even if Dodd had been allowed to testify.

Original report here

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Friday, December 18, 2009

Exonerated by DNA after 35 years in jail

Mistaken eyewitness evidence yet again

James Bain used a mobile phone for the first time on Thursday, calling his elderly mother to tell her he had been freed after 35 years behind bars for a crime he did not commit. Mobile devices didn't exist in 1974, the year he was sentenced to life in prison for kidnapping a nine-year-old boy and raping him in a nearby field. Neither did the sophisticated DNA testing that officials more recently used to determine he could not have been the rapist.

"Nothing can replace the years Jamie has lost," said Seth Miller, a lawyer for the Florida Innocence Project, which helped Bain win freedom. "Today is a day of renewal."

Bain spent more time in prison than any of the 246 inmates previously exonerated by DNA evidence nationwide, according to the project. The longest-serving before him was James Lee Woodard of Dallas, who was released last year after spending more than 27 years in prison for a murder he did not commit.

As Bain walked out of the Polk County courthouse on Thursday, wearing a black T-shirt that said "not guilty". he spoke of his deep faith and said he does not harbour any anger. "No, I'm not angry," he said. "Because I've got God." The 54-year-old said he looks forward to eating fried turkey and drinking Dr Pepper. He said he also hopes to go back to school.

Friends and family surrounded him as he left the courthouse after Judge James Yancey ordered him freed. His 77-year-old mother, who is in poor health, preferred to wait for him at home. With a broad smile, he said he looks forward to spending time with her and the rest of his family. "That's the most important thing in my life right now, besides God," he said.

Earlier, the courtroom erupted in applause after Yancey ruled. "Mr. Bain, I'm now signing the order," Yancey said. "You're a free man. Congratulations."

Thursday's hearing was delayed by 40 minutes because prosecutors were on the phone with the Florida Department of Law Enforcement. DNA tests were expedited at the department's lab and ultimately proved Bain innocent. Prosecutors filed a motion to vacate the conviction and the sentence. "He's just not connected to this particular incident," State Attorney Jerry Hill told the judge.

Attorneys from the Innocence Project of Florida got involved in Bain's case earlier this year after he had filed several previous petitions asking for DNA testing, all of which were thrown out. A judge finally ordered the tests and the results from a respected private lab in Cincinnati came in last week, setting the wheels in motion for Thursday's hearing. The Innocence Project had called for Bain's release by Christmas.

He was convicted largely on the strength of the victim's eyewitness identification, though testing available at the time did not definitively link him to the crime. The boy said his attacker had bushy sideburns and a moustache. The boy's uncle, a former assistant principal at a high school, said it sounded like Bain, a former student. The boy picked Bain out of a photo line-up, although there are lingering questions about whether detectives steered him.

The jury rejected Bain's story that he was home watching TV with his twin sister when the crime was committed, an alibi she repeated at a news conference last week. He was 19 when he was sentenced.

Ed Threadgill, who prosecuted the case originally, said he didn't recall all the specifics, but the conviction seemed right at the time. "I wish we had had that evidence back when we were prosecuting cases. I'm ecstatic the man has been released," said Threadgill, now a 77-year-old retired appeals court judge. "The whole system is set up to keep that from happening. It failed."

Eric Ferrero, spokesman for the Innocence Project, said a DNA profile can be extracted from decades-old evidence if it has been preserved properly. That means sealed in a bag and stored in a climate-controlled place, which is how most evidence is handled as a matter of routine. The Project has a bigger problem with lost or destroyed evidence than getting usable DNA profiles from existing evidence, he said.

Florida last year passed a law that automatically grants former inmates found innocent $US50,000 ($56,400) for each year they spent in prison. No legislative approval is needed. That means Bain is entitled to $US1.75 million.

Original report here

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Thursday, December 17, 2009

Corrupt British cop arranged for disabled neighbour to be pulled over and arrested after parking dispute

And he has suffered no penalty for it other than a talking-to

A senior police officer who fell out with his one armed neighbour in a dispute over parking arranged for him to be pulled over and arrested - so he would lose his driving licence, it emerged today.

Sergeant Ray Jones, 45, became locked in a bitter feud with disabled father-of-two Simon Folkes, 53, over parking access outside their homes. Sgt Jones, of Devon and Cornwall police, had previously allowed next door neighbour Simon to leave his car on his driveway. But when the officer told him he was no longer allowed to park there they began a three-year feud with a series of arguments about access.

Jones then tried to ensure his neighbour would be left without a car by instructing officers to pull him over and quiz him about his licence and insurance. He informed his colleagues where and when Simon would likely be driving and told police to flag him down, a report found. The officers accused him of not being properly insured and Simon was even ordered to take an assessment to prove his driving ability - which he passed.

But a month later officers then arrived at Simon's home to arrest him for allegedly vandalising Sgt Jones' front gate - but the charges were dropped.

Simon knew the details could only have come from his neighbour and he made an official compliant to the police body the Professional Standards Department (PSD). They found Sgt Jones had 'meddled in the private lives of his neighbours' and 'brought Devon and Cornwall Constabulary into disrepute'. He has now been disciplined by the force and builder Simon, who lost his arm in a motorcycle accident in 1974, says he 'abused his power'.

Simon said: 'Ray owns the driveway but we had a gentleman's agreement that I could park there on one side. 'Then one day he came home and just went mad. He stood nose to nose with me and was just screaming at me - really nasty stuff. 'It has been a nightmare ever since. He is like any other nuisance neighbour just with the added problem that he is a police sergeant. 'I was pulled over completely unnecessarily and I have even been arrested for something that had nothing to do with me. 'I just wanted to be left in peace. My car was my freedom and he tried to take it away from me. 'He didn't want me to park outside his house so tried to get my licence taken away to solve that problem for him.'

The pair fell out over the driveway in 2006 and Simon, of St Austell, Cornwall, was pulled over in May 2007 as he made his way to a Smart car convention. Officers asked him if he had the correct licence and insurance for his disability and then informed the DVLA that they suspected he was driving illegally.

Simon said: 'I just noticed the police car parked up and as I passed it started following me and pulled me over. 'I was very suspicious because they seemed to have a lot of information about me and my disability.' Simon then passed a DVLA course and was then arrested for allegedly damaging Sgt Jones' gate but the charges were dropped.

The report by the Professional Standards Department found Jones had 'inappropriately interfered' in his pursuit of his neighbour. The document, signed by Det Insp Selley, said: 'The officer has meddled in the private lives of his neighbours. 'I am satisfied he has inappropriately interfered in the lives of his neighbours.'

A police spokesman said: 'The seriousness of Mr Folkes' allegations, and the need to avoid any repetition of the same, has been fully impressed upon Sgt Jones. 'All the matters reported to the police have been investigated fully and an appropriate conclusion to the matters has been achieved. 'We are trying to work with both parties to achieve a long-term solution to what is a complicated situation and to comment further would not further any potential for both parties to live happily as neighbours.'

Simon and wife Carole have two sons, Jeremy, 23, and Jason, 20.

The Professional Standards Department is responsible for the investigation of all public complaints made about police officers, police staff or special constables.

Original report here

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Wednesday, December 16, 2009

Chicago’s thick blue wall

The Windy City's notoriously aggressive police department fights for less accountability

Christopher Drew had every intention of getting arrested. The 59-year-old artist and executive director of the Uptown Multi-Cultural Art Center in Chicago set about his city earlier this month in a red poncho and a sign that read "Art for Sale: $1." It was a protest against Chicago’s law on unlicensed peddling, which Drew believes puts up unconstitutional barriers preventing artists from selling their work.

The artist was confronted by Chicago police and arrested on December 3. Because he recorded the entire incident, on the understandable assumption that the reasons the officers gave for arresting him may prove useful to his follow-up lawsuit, Drew was also charged with "felony eavesdropping."

Generally speaking, it's not a crime to record an on-duty police officer in a public space. In fact, with just a few exceptions (mostly limited to military installations and nuclear energy facilities), you can photograph and/or record anything and anyone in a public space. But there are still too many stories of people being arrested, intimidated, or detained for turning their lenses on cops. (See Carlos Miller's excellent blog Photography Is Not a Crime for a litany of examples.) It happened last week in West Virginia, where award-winning photojournalist Scott Rensenberger was arrested after attempting to photograph a police officer in a Charleston mall.

You can certainly understand why someone would want to get a planned interaction with Chicago police on tape. In the last few years, the department has been hit with scandals of egregious police misconduct that, had they not been captured on tape, likely would either never have been investigated, or the investigation wouldn't have been based on what actually happened.

The most famous incident was footage of an off-duty cop viciously beating a female bartender who refused to continue serving him in 2007. He wasn't even charged until three months later, after the surveillance video surfaced on the Internet, generating worldwide outrage. There are other examples: six cops beating two men in a bar brawl; a video of a fatal police shooting in a subway station where officer accounts of the incident don't match the video footage. The department also recently disciplined two officers after a video showed up on the Internet showing a Chicago PD unit posing for a trophy photo with a protester they had apprehended earlier this year at the G20 summit in Pittsburgh.

This is a police department still under federal investigation for an officer-run torture ring in the 1980s and, more recently, for a major scandal in which officers in the department's Special Operations Unit—alleged to be made up of the city's most elite and trusted cops—have been convicted of a variety of crimes, including home robberies, theft, physical abuse and intimidation, and even planning a murder. The "best of the best" unit was disbanded last year.

A 2008 study by University of Chicago law professor Craig B. Futterman found 10,000 complaints filed against Chicago police officers between 2002 and 2004. That's more than any city in the country, and proportionally it's 40 percent above the national average. Of those 10,000 complaints, just 19 resulted in significant disciplinary action. In 85 percent of the cases, the complaint was dismissed without even interviewing the accused officer. The study also found that about 5 percent of the department's 13,500 officers accounted for more than half the complaints.

Yet the Chicago PD recently went to federal court—and won—to prevent the release of the names of 662 officers who had more than 10 citizen complaints filed against them between 2001 and 2006. Even members of the city's Board of Aldermen aren't allowed to see the officers' names.

Now, the police department is working to become even less accountable. Last October, a study from the Chicago Justice Project found that on those rare occasions when Chicago police brass want to fire an officer, the Chicago Police Board—the agency that oversees the department—nearly always overrules them. On the very same day that study was released, the department announced a new policy whereby it would reserve the option to file criminal charges against citizens who file police misconduct reports deemed to be without merit. I'm sure false misconduct reports are common, and likely a bureaucratic hassle. But you can't start charging citizens who claim to have been mistreated by police with crimes because a department that has shown it isn't capable of investigating and policing itself has decided, unsurprisingly, that once again its officers did nothing wrong. The policy will likely deter false complaints; but it will also deter legitimate ones.

I'm sure the bulk of the officers in the Chicago Police Department are professional, courteous public servants. But that doesn't let the department or the city off in its failure to discipline those who aren't. At the very least, those officials should pass a clear and unambiguous policy codifying the right of citizens like Christopher Drew to take and preserve an audio or video recording of their interactions with city police, and instructing cops that they can’t interfere with that right. Chicago's political officials have shown themselves incapable of protecting the city's residents from the bad actors in its police department. The least they can do is ensure that the city's residents have the legal right to protect themselves.

Original report here

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Tuesday, December 15, 2009

Australia: Jailed rapist gets erection problem help

Words fail me!

TAXPAYERS are paying to fix the penile erection problems of a jailed rapist who once ran with Ivan Milat's gang. The decision by the New South Wales State Government's Justice Health Department has sparked outrage among victims.

John Powch, 62, is known by Corrective Services officers as a "serious sex offender", a man behind bars for three counts of sexual assault for which he was jailed in 2004 for nine years, four months. Sources said he has never admitted his crimes, believed to be against one woman, and has steadfastly refused to do any of the sex offenders courses in Long Bay jail where he is being held.

However, on November 23, prison guards escorted him to the Prince of Wales Hospital's urology theatre for an "on table erection test".

Justice Health, which caters to prisoners' medical needs and is controlled by NSW Health, refused to comment on Powch's case. However, a spokesman said the department "does not take offending history into consideration when providing health services".

A Sydney urologist, who asked not to be named, said "an on table erection test is usually done for investigations of penile curvature or other disorders related to penile erectile dysfunctions, which, in itself, is not a life-threatening condition".

Howard Brown, from the Victims of Crime Assistance League, said the treatment was "incredible". "I don't object to us paying for life-threatening surgery if required but I'll be stuffed if we should be paying because his waterworks are having problems; particularly when you take into consideration the crime for which he is inside. "This is not life-threatening. This bloke should have been a candidate for chemical castration while he was in (theatre)."

Powch, a hardened criminal who has been behind bars most of his adult life, is in jail until October 19, 2013. He was named one of NSW's 10 most wanted criminals after escaping from Cessnock jail in 1980, during which time he robbed banks. In the 1970s, Powch was involved in armed hold-ups with Ivan Milat, who was cleared of the charges but went on to become a serial killer. By the mid-1980s, Powch was the right-hand man for major drug importer David Kelleher and jailed in 1985 for 18 years for conspiring to import heroin.

Original report here. (Via Australian Politics)

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Monday, December 14, 2009

Negligent use of DNA in Australia

A young Victorian man is free tonight after serving 16 months for a crime he always maintained he did not commit. He was released after severe doubts were cast about the reliability of the DNA evidence that convicted him. The man may now seek compensation for his prison ordeal, but the case also raises much wider questions about the handling of DNA evidence in Victoria.

In July last year, 22-year-old Farah Jama was sentenced to six years in jail for the rape of a 48-year-old woman in a Melbourne nightclub. No-one, including the complainant, witnessed the rape and the conviction relied solely on DNA evidence. Today the court of appeal overturned the conviction.

Mr Jama says it was a long 16 months and he got through it by keeping to himself. "I feel really angry and depressed," he said. "Just not to tell what they accused me for, that's the way I survived there."

Mr Jama's DNA was on police record because a sample was taken for an unrelated investigation where no charges were ever laid. It has now emerged the same forensic officer who took the sample from Mr Jama took one from the alleged rape victim within 24 hours. The Victorian Institute of Forensic Medicine told the court the swab may have been contaminated during the examination of the alleged rape victim.

The court of appeal also heard there is now doubt over whether the woman in the case was actually raped.

Chief Justice Marilyn Warren ordered a verdict of acquittal be entered.

Mr Jama has always maintained he was innocent. His lawyer Kimani Boden says there were other factors which should have raised doubts. "Mr Farah was 19 at the time of the incident. The nightclub was a nightclub which only admitted people above the age of 28," he said. "Farah Jama had just finished year 12 when he was arrested for the rape and he is now thinking about compensation."

Mr Jama was also represented at his appeal by lawyer Hina Pasha. Ms Pasha says the case should be a lesson to prosecutors. "Now obviously it's in the Crown's favour for future cases to be able to rely on that sort of evidence, and perhaps sometimes that sort of evidence alone," she said. "But I think that this is a clear case of you can't, and if there's a potential for human error then that should be taken into account by the courts and by the prosecution."

DNA cases reviewed

The mix-up which led to Mr Jama being jailed is just the latest bungle involving DNA evidence in Victoria. Only last month the case against an armed robbery suspect was suspended because of fresh doubts over DNA evidence. And last year Victoria Police dropped double murder charges after admitting the DNA evidence they had used was contaminated.

Ms Pasha says it is time to consider greater legal protection. "We are seeing a problem in Victoria definitely but I think in terms of DNA testing worldwide, I think this is a warning sign," she said. "And in terms of how it reaches into the legal system, I think that there should be some sort of boundaries."

Victoria's director of Public Prosecutions recently announced a review of all cases in the past five years, to ensure the DNA evidence was still considered reliable.

The president of Liberty Victoria, Michael Pearce SC, says today's development is further evidence of an over-reliance on methods which were once believed infallible. "I think there is a strong case building for some kind of a warning to juries about not placing too much reliance on DNA evidence," he said. "So you've got, I guess, two sets of implications. One is for what's happened in the past and whether people who shouldn't have been convicted have been convicted. "Then we need to get things right in the future and we need to guard against these sorts of errors being made in the future by overreliance on DNA evidence."

Mr Jama says he is still hoping to go to university and he never lost faith in the legal system that sent him to jail for nearly a year and a half. "I know that the truth always will come out one day and everybody will see that I'm innocent," he said.

The Victorian Institute of Forensic Medicine, which provides testing for Victoria Police, says it acknowledges the wrongful conviction and it has launched an inquiry into the case.

Original report here

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Sunday, December 13, 2009

More illegal harassment of gun owners

Last week, a Pennsylvania judge decided to actually follow the law and find David Ross not guilty for the alleged crime of possessing a weapon on airport property.

You see, Pennsylvania state law protects the right to open carry outside the secured areas at the airport. So Mr. Ross was acting well within the law when he removed his handgun from his luggage and began to holster it as he walked out of the airport.

But an officer of the Allegheny County Police Department took issue with a civilian attempting to keep and bear arms. The officer had such a problem with it that he illegally arrested David Ross for violating a local county ordinance which the Pennsylvania Supreme Court had invalidated a decade ago. State law trumps local county ordinances and since Pennsylvania protects open carry, Allegheny County cannot violate that right.

Since the Pennsylvania Supreme Court had ruled on this issue a decade ago, you'd think the judge would correct the error of the arresting officer and apologize for the mistake, right? Wrong. David Ross was convicted, even though he clearly explained the situation to the judge, and was forced to hire an attorney to appeal the case.

Well, Mr. Ross's appeal was heard last Friday, November 9th, and this time he got a judge who actually understood the law. In a victory for the Second amendment, David Ross was acquitted of all charges and hopefully the arresting officer learned a lesson. [Faint hope. I hope Mr Ross got a substantial award of costs]

The above is a press release from The National Association for Gun Rights. Other details here.

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Saturday, December 12, 2009

Pervasive legal plunder

We’re quickly approaching the season of giving, as it is often put, so it’s well worth considering the uncomfortable truth that, for some people, it’s always the season of taking. And I don’t mean “accepting gifts.” There will always be people in need, and such folk will always have to take more than they give, if only for a time. I don’t really have any complaints about this. It’s just life. It’s the way of the world. Everybody needs help sometimes.

But by takers I mean folks who take without asking, who take without ever being offered anything. These people are dangerous. And they appear to be growing in numbers. They are in Wayne County, Michigan, anyway.

And they aren’t the criminals. They are the police. According to a report in The Detroit News, Wayne County’s “Sheriff’s Office, which helps run the prosecutor’s forfeiture unit, took in $8.69 million from civil seizures in 2007, more than four times the amount collected in 2001. The Wayne County Prosecutor’s Office gets up to 27 percent of that money.”

We read — and watched news reports — about these “civil forfeiture” infamies decades ago. You may have thought such obvious abuses had been corrected. They haven’t been. Though the practice waxes and wanes from one jurisdiction to another, and regarding one set of crimes to another, the truth of the matter is that police departments around the country regularly steal from the citizenry.

How is it done? Say you help out a neighbor, taking her to the bank. A police officer spies your neighbor making eye contact with a passing motorist. From this the officer surmises that your neighbor was soliciting sexual favors for money. Prostitution. The harlot! Lock ’er up! Throw ’er in jail!

That’s bad enough. Talk about flimsy evidence -- eye contact, indeed. But the police don’t stop there. They seize your car, since it was engaged in a suspect activity.

This is the case of Krista Vaughn, car owner, and Amanda Odom, a woman eventually excused from the idiotic charge of prostitution. Their story is well told in the Detroit paper, and, sadly, is not atypical of many police forces these days — who have forgotten whom it is and what it is they are supposed to serve.

But the kicker is that Ms. Vaughn’s car was not given back to her. She had to pay the impound fee and towing fee. Further, in seizing her car and towing it away, the thieves broke her oil pan. So she had to pay $1800 just to get whole again. And she did pay, because hiring a lawyer to sue the police would have cost her even more, she said.

Interestingly, Wayne County, in charging her over a grand to get her own car back, was not merely passing on towing service and impound charges. The contracted towing company charges regular folks a fraction of that cost.

Something frightening is happening here: The Wayne County Sheriff’s Department, along with its august Prosecutor’s Office, is abusing citizens for profit.

Big racketeering and extortion cases like this tend to fall to the FBI. But the extent to which this immoral practice qualifies as abuse of civil forfeiture laws depends on how those laws are written, state by state. Thankfully, in Minnesota, the FBI has taken an investigative interest in the state’s Metro Gang Strike Force, which lurched out of control regarding civil forfeiture. (Thanks to a reader of Common Sense for pointing this story out in the comments section of a recent webisode of my daily Common Sense squibs.)

The article in The Detroit News will be an eye-opener to some. To the rest of us, it’s just another sad, sad reminder that power corrupts. It doesn’t just corrupt in Moscow and Paris and Washington, D.C. It also corrupts in Wayne County . . . and your county, most likely.

And remember, it’s all done for an allegedly good cause: Fighting crime. The police and lawyers confiscating property think of themselves (apparently) as do-gooders, not evil-doers.

Trouble is, the crimes that civil forfeiture laws pertain to are chiefly vice crimes, not crimes with obvious victims. We have forfeiture laws largely because of the War on Drugs, and our various wars on prostitution and gambling and so forth. For years, opponents of such legal wars — me included — have argued that the enforcement of such prohibitions corrupt police departments. And judges. And prosecutors.

Most people don’t give such problems a second thought. But innocent Americans do get their property stolen, and then have to pay to get it back. Maybe the rest of us ought to reconsider vice crusades, on the one hand, and civil forfeiture laws, on the other.

Civil forfeiture is a recent revival of an old, corrupt practice, an ancient method of extracting wealth. And because it isn’t a tax that covers everybody, many simply let the injustice of it slide, figuring that they won’t get caught in the corrupt net.

More people, however, simply know nothing about it. They have not heard of Alvarez v. Smith, for instance, and do not bother themselves with such issues. And that, friends, is how injustice triumphs . . . Through varying degrees of indifference, inattention, and complicit acceptance. The world needs good men and women to do something.

Original report here

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Friday, December 11, 2009

Why hide clear evidence of this guy's mentality?

A MAN accused of breaking into his neighbour's house and stabbing two people - killing one of them - is having neo-Nazi tattoos on his face covered up for his murder trial.

A make-up artist is being paid up to $US150 ($165) a day to cover the tattoos on John Allen Ditullio's face and neck after a judge ruled they should be hidden from a jury, the Associated Press has reported.

Ditullio faces trial on charges of murder and attempted murder over a 2006 stabbing attack in a town north of Tampa, Florida. His lawyer argued the tattoos - which Ditullio had done after his arrest - would scare or prejudice the jury against him.

The judge agreed, ordering a 15cm swastika on Ditullio's neck and barbed wire tattoo across his right eye be painted over. Any tattoos he had before his arrest will not be covered.

Ditullio is accused of putting on a gas mask, then breaking into a neighbour's house and stabbing one person to death and badly injuring another. He faces the death penalty if convicted.

"Whenever someone is facing the death penalty, they should get a fair trial," his lawyer, public defender Bjorn Brunvand said. "The jury can judge this case on the facts and the law and not base their decision on being offended." Ditullio was also shaven and generally tidied up for his court appearances so far, as is normally the case for defendants at trial.

Tattoos have also been covered for the trial in Texas of an assassin for a Mexican drug cartel.

Original report here

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Thursday, December 10, 2009

Thug Canadian cops get off Scot-free

CANADIAN police acted lawfully but fell short of professional expectations in confronting a Polish traveller who died at the airport here after he was stunned with Taser guns, a commission found. Robert Dziekanski, 40, died in late 2007 minutes after four policemen stunned him five times with a Taser and then physically restrained him.

The case caused international shock waves after an amateur video of the violent arrest, after which he fell silent and died, was distributed by news agencies and over the Internet.

The report by the Commission for Public Complaints Against the Royal Canadian Mounted Police said the four officers who confronted Dziekanski "failed to adopt a measured, coordinated and appropriate response," while the senior officer "failed to take charge." "No meaningful attempt was made to de-escalate the situation," said the commission, while "no warning - visual or otherwise - was given to Mr. Dziekanski" before he was hit five times with a stun gun.

Dziekanski was a nervous first-time flyer on his way from Poland to live in Canada with his mother. He spoke only Polish and was reportedly lost for some 10 hours in the secure baggage area of Vancouver's airport. He became distraught when he emerged to find that his mother, who had been waiting outside the secure zone, had left after being told that he was not there.

The use of the Taser was "premature and inappropriate," and after Dziekanski collapsed, police officers at the scene "should have more actively provided first aid and monitored Mr. Dziekanski's condition," the report said.

The commission also found the police investigation of its members was "unbiased (but), it could have been done better," and the report cited concerns over what police told the public about the case.

In a press release, it said it received "more than 100 complaints" on the case from Canadians. The commission presented its 23 findings and 16 recommendations to the police force in October, including the installation of video cameras in body armour worn by officers.

Original report here

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Wednesday, December 09, 2009

British businessman sentenced to jail for tax fraud despite judge's doubts

A judge has sentenced a businessman at the centre of a fraud case to 3½ years in jail despite admitting the existence of fresh evidence that casts doubt on the safety of his conviction. Lawyers for Philip Bowles, who claim his ability to defend himself was impaired after his assets were frozen by the courts, were seeking his release on bail yesterday, pending an urgent appeal against his conviction for cheating Revenue & Customs.

Bowles, 60, was imprisoned amid extraordinary scenes at Oxford Crown Court on Monday evening, as Judge Anthony King publicly wavered over jailing him. Defence lawyers had asked the judge to avoid a “grave injustice” by taking the unprecedented step of sending the case to the Court of Appeal before passing sentence. That request was rejected. An appeal would centre on a forensic accountancy report, which claims that far from owing taxes, Bowles’s companies were due a refund.

The defence said the report, which was not seen by the jury that convicted Bowles, should trigger a retrial. The judge admitted that he was concerned about putting a man “in a place where he should not be if he is not guilty”. He added: “I am loath to let this matter drag on but equally I am loath to put a man in prison if he shouldn’t be there. That is the dilemma.”

Bowles was convicted by a jury in June of cheating the Revenue of £1.2 million in VAT but sentencing had been adjourned on three previous occasions. He had been found guilty of failing to pay VAT on a BIG land sale and diverting money due to the taxman to prop up Airfreight Express, his ailing air-freight company.

It was not suggested that Bowles, who has no criminal record, had used the money to fund a luxury lifestyle. Nevertheless, when the Revenue began a criminal investigation into his affairs in 2006 all his assets were frozen under the powers of the Proceeds of Crime Act. Bowles was required to live on an allowance and rely on legal aid for his defence rather than pay out of his own resources. Defence lawyers claimed that preparation of Bowles’s defence case was hampered further because his companies’ financial records were in the hands of administrators.

The accounts were not disclosed until a court hearing in February this year, at which point Bowles sought permission to have a forensic accountant examine them to determine the VAT position. He was refused a relaxation of the restraint order to pay for a forensic accountants’ report. The Legal Services Commission also declined to fund such a report from legal aid.

After the court was told that the records “could be considered by counsel with a calculator” the trial went ahead. Bowles was cleared of two charges but found guilty of a third. A financial report has since been prepared, free of charge, by a firm of chartered accountants. A draft copy was presented to the judge two months ago and a full version handed to him this week. Its analysis concludes that rather than owing tax, Bowles’s companies had actually overpaid their taxes. The report stated: “In our opinion, none of the evidence points to Philip Bowles fraudulently evading or concealing VAT due to HMRC ... It would have been reasonable to conclude that no fraud has taken place.”

Lawyers for Bowles claimed in court that matters were compounded by a failure to explain VAT law properly. They alleged the jury were wrongly informed that companies in the same group could not asssign tax liabilities and credits between each other.

William Clegg, QC, for the defence, told the sentencing hearing that the accountant’s report was “credible and admissible” and should be considered by a jury. Mr Clegg acknowledged that his request to send the case to the Appeal Court before sentencing was unprecedented. He said, however, that it would be “a real injustice” to imprison someone in the knowledge that “there was fresh evidence yet to be considered which could potentially give rise to the overturning of the conviction and a new trial”.

Mark Bryant-Heron, for the prosecution, told the judge that new material could be considered only by the Court of Appeal and he had to proceed to sentence according to established legal procedure.

Despite conceding the potential impact of the new evidence, the judge jailed Bowles and ordered him to pay £130,000 in prosecution costs. A confiscation hearing will follow next year. The judge told Bowles he had deliberately evaded paying tax that he knew was due and was guilty of “a very serious cheat”.

Peter Avery, assistant director of HMRC Criminal Investigations, welcomed the sentence, saying: “This sentence will serve as a deterrent to anyone who thinks that tax fraud is a risk worth taking.”

Original report here

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