Sunday, February 28, 2010

Sloppy prosecution in Texas leads to death penalty

Suborned witnesses, a "don't care" defence lawyer etc.

Friends must sometimes agree to disagree. Britain forbids capital punishment; the United States supports it. But above all, good friends must honour their word. An Anglo-American agreement requires Britain to notify the US if it takes legal action against an American citizen, and for the US to do the same if a Briton is to stand trial in America.

So the case of Linda Carty — who was born in St Kitts, which qualifies her as a British citizen — is especially galling. Carty now waits on death row in Texas. In a last attempt to avoid her becoming the first black British woman to be executed in more than a century, the British Government has now presented an amicus brief to the US Supreme Court urging it to reconsider the case.

Carty’s story raises disturbing questions on several levels. First, the case represents a gross abuse of British trust. The British Government — quite rightly — seeks to defend any Briton who stands accused of a capital crime abroad. Other countries may kill their own citizens if they must; where possible we try to prevent them from killing ours. But the Texan authorities made no attempt to discover Carty’s nationality when they arrested her, and the same lack of curiosity and responsibility afflicted the lawyer they appointed to represent her. Hence Britain was effectively precluded from involvement in the case until the death penalty had already been issued.

It is impossible to be certain of Carty’s innocence. But the original trial was clearly a farce. Carty faced the death penalty because her three co-defendents testified against her to avoid execution themselves. Meanwhile, Carty’s lawyer conducted a woefully inadequate defence. He talked to his client for just 15 minutes, blaming her for refusing to talk to him until he “bribed her with a bar of chocolate” — an extrememely unlikely version of events given that Carty is allergic to chocolate. It is also alleged that the lawyer neglected to visit St Kitts even though he had been granted funds by the court to do so. Had he bothered, he would have discovered that the island’s prime minister was willing to testify on Carty’s behalf.

Outrage at the nature of the legal defence provided for Carty extends far beyond critics of the death penalty. Baker Botts, a law firm that has often represented the Bush family, has taken up the case pro bono. Michael Goldberg, the defence attorney now representing Carty, is a supporter of the death penalty. He was simply appalled by the abuse of justice.

Original report here

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Saturday, February 27, 2010

Not guilty, now what?


On the second day of his trial for attempted rape 20 years ago, Anthony Hanemaayer changed his plea to guilty. He was acting on the advice of his lawyer, after the victim's mother identified him as the man she saw in her daughter's bedroom. He would spend almost two years in prison.

It later emerged that the witness was wrong. Mr. Hanemaayer was innocent. He was finally cleared two years ago, but last month the Ontario Attorney-General ruled that he would not receive compensation for his wrongful conviction -- because he had pleaded guilty.

The decision was another example, critics say, of a mind-set in which governments will do anything to avoid admitting mistakes. They say it shows a need for an overhaul of how possible wrongful convictions are reviewed and whether the same government involved in a miscarriage of justice should decide compensation.

Four different judges presiding over inquiries in the past two decades have all called for an independent agency, similar to one in place in the United Kingdom. The federal Justice Department first examined that possibility in a working paper issued in 1992. Since then, the agency that handles claims of wrongful convictions has been given increased independence, yet it is still a branch of the federal government. After a number of years of negotiations, a federal-provincial committee is expected to provide new compensation guidelines this fall, which will update existing rules in place since 1988.

Even with new guidelines, they are unlikely to be binding on any province and rarely is there any public discussion these days about creating an independent agency. "The question is political will," observed Bruce MacFarlane, a former Deputy Attorney-General in Manitoba and senior federal Justice Department official, who now teaches law, including a course on wrongful convictions. "Getting it on the legislative agenda is tough," he observed. While he agreed there is merit to the idea of an independent agency, "the reality is that the Justice Department is doing a very good job," said Mr. MacFarlane.

The Criminal Conviction Review Group, a branch of the Justice Department, investigates claims of wrongful conviction and then advises the Justice Minister, who can refer a case back to a court in the province where the case was originally prosecuted. "I work within this model," said Kerry Scullion, director of the review group. The possibility of an independent agency "is up to the politicians, not me," Mr. Scullion said, who stressed that his group has been able to carry out its duties without any political interference.

As well, while he praised groups like the Association in Defence of the Wrongly Convicted (AIDWYC), he said a claim will be considered just as seriously even without their involvement. "Every application we receive is reviewed top to bottom and gets the same treatment." Mr. Scullion pointed to data that shows about 14% of applications received in the past seven years by his group have been referred to the courts for a new look. In contrast, about four per cent of cases are sent back to the courts by the independent agency in Britain.

Those who have acted for the wrongly convicted, such as Hersh Wolch, have praise for Mr. Scullion and his colleagues. "The people right now in Ottawa who look into these cases are very good. They are very fair. But I worry what happens when they retire," said Mr. Wolch. The respected lawyer, also known for his representation of David Milgaard, suggested an independent agency for wrongful conviction claims and one to determine compensation.

Mr. Wolch represents Kyle Unger, who spent 14 years in prison for murder before his release on bail. The Manitoba government supported a federal review after new DNA tests ordered by Mr. MacFarlane, determined in 2004 that hair found at the crime scene was not from Mr. Unger. The Crown called no evidence at his re-trial and Mr. Unger was acquitted last fall.

Manitoba is refusing compensation as a result of a "confession" that Mr. Unger gave to undercover officers who posed as a crime group in a "Mr. Big" sting operation. The judge who granted Mr. Unger bail noted that key details he provided about the crime in the confession were shown to be inaccurate.

The province is misreading public sentiment, Mr. Wolch said. "I don't think the government recognizes the decency of the average citizen," he suggested, and stressed that compensation is not simply about money, but to help remove the public stigma for someone wrongfully convicted of murder.

Anyone claiming a wrongful conviction also has to fight "Crown culture" in Canada, which can be a formidable obstacle, suggested Vancouver lawyer Cameron Ward, who frequently represents people alleging wrongdoing by the state. "The general attitude of the Crown and police is that they do not make mistakes. And anyone who is critical, does not understand what their jobs entail," said Mr. Ward.

Facing this obstacle is Robert Sanderson, presently serving a life sentence imposed in 1997 after he was convicted in a triple murder in Winnipeg, purportedly a result of a biker turf war.

The same review of hair evidence that helped clear Mr. Unger also revealed that a hair found at the scene of the triple murder was not that of Mr. Sanderson -- contrary to what the jury heard at his trial. There are other parallels to the case of Mr. Unger, including the use of unsavoury witnesses and the involvement of controversial prosecutor George Dangerfield. In an ironic twist, the Crown pointed to the then recent conviction of Williams Mullins-Johnson in Ontario (later revealed to be a wrongful conviction) as a legal authority for the guilty finding of Sanderson at his appeal hearing.

The Manitoba government maintains the conviction is sound, after it conducted an internal review in 2005, the details of which it won't make public. "There continues to be a strong case implicating Robert Sanderson in the murders, even with new information related to hair evidence," said Assistant-Deputy Attorney-General Don Slough. He indicated though, that he could not comment on the "specifics" when asked what remaining evidence makes it a "strong case" against Sanderson.

Sanderson, 39, believes his criminal past and former involvement in a native biker gang, is why what he says is another wrongful conviction, is easier to ignore. "The standards are different for me. They can say it is just a common crook, so who cares," observed Sanderson in a telephone interview from prison. "But I would not be convicted if I went on trial today. That is their real concern," he said.

AIDWYC is investigating the Sanderson case, yet despite its sterling reputation it is still a small organization with only enough resources to focus on a limited number of cases at any one time.

As he develops a career as a native artist in prison, Sanderson said he has a patience that was not present when he was someone with a bad reputation on the streets of Winnipeg. "I have a long criminal past. But I am in jail for something I did not do," he said, firmly.

Original report here

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Friday, February 26, 2010

The truth finally hurts rape false accuser

Amazing that uncorroborated testimony was accepted in the first place

A young mother who falsely cried rape, sending an innocent man to prison for nearly four years, will experience firsthand what he suffered -- she'll spend one to three years behind bars for perjury. "I wish her the best of luck," said William McCaffrey last night of Biurny Peguero Gonzalez. "Jail isn't easy."

McCaffrey, 33, of The Bronx, was locked up after Gonzalez accused him of raping her at knifepoint on a Bronx street back in 2005. It was a lie she repeated to doctors, cops, prosecutors, a grand jury and the jury that convicted McCaffrey.

"What happened in this case is one of the worst things that can possibly happen in our criminal-justice system," Manhattan Supreme Court Justice Charles Solomon said as he pronounced sentence.

McCaffrey said he has some sympathy for Gonzalez and hopes she "doesn't go through what I went though. "I was an accused rapist in prison," he said, adding that in prison, "rape is the worst crime possible."

All is clearly not forgiven. A person who would "lie and paint somebody as a rapist is worse than a real rapist or a real murderer," McCaffrey said. He also blamed "the arresting officers, the prosecution." Everyone, he said, "wanted to believe the lie, the ADA [assistant district attorney] first and foremost."

Judge Solomon said, "It's hard to imagine why anyone could have done this." It turned out Gonzalez robbed McCaffrey of four years of his life for the most trivial of reasons. She'd been hanging out with a group of girlfriends when she accepted an invitation to get into his car. After she returned, her pals were furious that she'd ditched them -- so she made up the rape story to gain their sympathy.

She will be eligible for parole in a year -- after serving a one-quarter of the time her victim was imprisoned. Gonzalez was taken away after making a tearful apology to McCaffrey, who was not in court. She also begged for mercy on behalf of her two sons, ages 3 months and 7 years. "To Mr. McCaffrey, I am aware that nothing I do or say to him can bring back the years he spent in jail," she said. "I want him to know I will carry this guilt for the rest of my life."

Gonzalez, 27, had recanted her story last year after new DNA evidence proved she'd been lying and a priest to whom she'd confessed urged her to come clean.

Gonzalez had repeatedly insisted she was "110 percent" sure McCaffrey had raped her after they met in Inwood, in upper Manhattan, and she drunkenly accepted a ride.

"It was a complete and utter lie," Assistant DA Evan Krutoy told Judge Solomon. The outraged prosecutor asked that she be sentenced to two to six years "so that there's a chance that she will serve what he served." Krutoy conceded that Gonzalez -- with a previously clean record -- looked like a good candidate for probation. But ultimately, she needed to serve time, Krutoy said, "because of the extent of harm that she caused . . . She came into court and she lied."

Her lie -- blurted out as her girlfriends were slapping her around -- took on a life of its own, fueled in part by McCaffrey's long rap sheet of violent arrests. Gonzalez could have pulled the plug on the prosecution at any time, but instead she watched McCaffrey get sent up the river for a rape he never committed.

Her lawyer, Paul Callan, conceded of the perjury, "It is not defensible." He insisted that Gonzalez suffered horrible abandonment and sexual abuse as a young teen, and has now had "a spiritual awakening." "She is not the same person as the one who committed this crime at age 22," Callan said. The lawyer said that at their first meeting, she'd told him, "I don't care what happens to me. You have to get Mr. McCaffrey out of jail."

Original report here

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Thursday, February 25, 2010

Is Texas about to execute another innocent man?

State officials would rather kill a prisoner than give him a DNA test

Henry Watkins “Hank” Skinner was supposed to be executed tomorrow, but last Tuesday a Gray County, Texas, District Court judge pushed the date back one month, to March 24. Skinner has been on Death Row in Texas since 1993, awaiting execution for the murder of his girlfriend and her two sons. He has maintained his innocence since his arrest, and investigators from the Northwestern University Journalism School’s Medill Innocence Project have shot numerous holes in the prosecution’s case. But Texas officials refuse to conduct a simple DNA test that could point to the condemned man’s innocence or cement his guilt.

Skinner's scheduled lethal injection comes shortly after Texas Gov. Rick Perry has removed sympathetic panelists from the state forensic committee's investigation into the case of Cameron Todd Willingham and replaced them with panelists critics say are stymieing the investigation. Willingham was executed in 2003 for murdering his three daughters by setting fire to his house. Nine arson experts and an investigation published in the New Yorker last year have since made a strong case that Willingham was innocent of the crime.

At the same time, Texas, a notoriously enthusiastic enforcer of the death penalty, continues to lead the nation in DNA exonerations (one county in Texas has produced more genetic exonerations than all but three states). Which makes it all the more disturbing that biological evidence from Skinner’s crime scene remains untested, at the behest of prosecutors and backed up by the courts. You’d think given recent headlines that Texas might be a bit more reluctant to execute a possibly innocent man.

Skinner doesn't dispute that he was in the house at the time his girlfriend was bludgeoned to death and her sons were stabbed to death. But he says he was unconscious at the time, knocked out by a near-lethal mix of alcohol and codeine. He was convicted because of his presence at the crime scene, because he had small spots of blood from two of the three victims on his shirt, and because of the testimony of a neighbor, Andrea Reed, who happens to be an ex-girlfriend of Skinner’s. Reed says Skinner came to her shortly after the crime and implicated himself to her. According to court records, Skinner then told Reed a number of other implausible stories about who committed the murders.

Skinner's case has been championed by the Medill Innocence Project, the team of professors and students that exposed deep flaws in the Illinois death penalty system (ultimately leading to a moratorium on executions in the state), and has freed 11 people from prison, including five who had been condemned to death. After years of investigation, the project has revealed a number of shortcomings in the state's case against skinner. Among them:

· Andrea Reed has since recanted her testimony. She now says she was pressured by police and prosecutors to falsely incriminate Skinner. In an interview with Medill students, she added that, “I did not then and do not now feel like he was physically capable of hurting anybody.”

· The untested DNA included blood taken from the murder weapons, skin taken from under the fingernails of Skinner's girlfriend, a rape test taken from her that included semen, and other blood and hair found at the scene. Skinner asked his attorney to request the evidence be tested in a letter written in 1994. The attorney never made the request, stating later that he feared doing so would implicate his client.

· Skinner's girlfriend had been stalked by an allegedly lecherous uncle, Robert Donnell. Witnesses say Donnell had approached her at a party she attended the night of her death. She left frightened, and he appeared to have followed her. A friend says the uncle had raped her in the past. Days after the murders, a neighbor reportedly saw the uncle thoroughly cleaning and repainting his truck.

· Skinner's court-appointed attorney was a former prosecutor who had actually prosecuted Skinner on a minor assault and car theft charge years earlier. Skinner's two prior crimes—which his own attorney had prosecuted—were used as aggravating factors in the death penalty portion of his trial.

· According to a new report (PDF) by toxicology specialist Harold Kalant, a moderate drinker with the levels of codeine and alcohol Skinner had in his blood would have been comatose or dead. A heavy drinker may have been rousable, but would have been "stuporous," unlikely to have the coordination necessary to carry out three murders involving multiple stabbings and bludgeonings.

It isn't difficult to see why prosecutors don't want the DNA tested. They have an unsympathetic suspect that they can place at the scene of the crime. If DNA suggests someone else bled or fought in the house that night, it doesn't conclusively prove Skinner is innocent, but it does (or at least ought to) raise enough reasonable doubt to prevent his execution. In 2000 DNA tests were conducted on blood taken from a roll of gauze and a cassette tape found in the house; that blood didn't match Skinner, his girlfriend, or her sons.

The first possible outcome of testing the remaining evidence is that the DNA will match Donnell, the allegedly lecherous, threatening uncle. Donnell has since died. If tests show Donnell's flesh under the victim's fingernails, or his blood or semen at the scene, the state is left with the strong possibility that they let a murderer go free, brought an innocent man within a week of execution, and no longer have a live body they can try, convict, and execute.

The second possibility—that the untested evidence came from other, unknown parties—wouldn't necessarily prove Skinner's innocence, but it would certainly complicate the state's case against him. But that's still no reason to refuse the tests. If we're going to execute people for particularly heinous crimes, we have a moral obligation to ensure that every reasonable possibility of the suspect's innocence has been explored and exhausted. Ignoring evidence that complicates things falls well short of that obligation.

The third possible outcome from testing the remaining biological evidence is that DNA will come back a match only to Skinner or the victims. That would go a long way toward affirming Skinner's guilt. All the more reason for conducting them.

After a conviction, the criminal justice system tends put a premium on finality, setting a high bar for reopening or retrying old cases. Given the Willingham case and the spate of exonerations across Texas, perhaps it's time the state put less emphasis on finality, and more on certainty. DNA testing in Skinner's case may not bring us closer to closing those 1993 murders, but it will bring us closer to discovering the truth about them. In a capital case especially, that alone should be reason enough to to go through with the tests.

Original report here

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Tuesday, February 23, 2010

Britain: Fresh doubt cast over conviction of multiple murderer Jeremy Bamber thanks to 'compelling' new evidence

After almost a quarter of a century in jail, Jeremy Bamber could be freed thanks to 'compelling' evidence casting doubt on his conviction for five murders. Bamber, 49, was given life after his adoptive parents, their daughter and her six-year-old twins were gunned down at their farmhouse. He has always protested his innocence and made two unsuccessful appeals, with a judge telling him in 2008 that he would spend the rest of his life behind bars.

But new evidence has been lodged with the Criminal Cases Review Commission, which investigates miscarriages of justice. It includes fresh analysis of police photographs of the scene which, Bamber's supporters believe, fatally undermines the prosecution's case against him.

It was in the early hours of August 7, 1985, that Neville and June Bamber, their daughter Sheila Caffell and her six-year-old sons Daniel and Nicholas were shot dead in the kitchen of White House Farm in Tolleshunt D'Arcy, Essex. The murder weapon, a .22 Anschutz semi-automatic rifle, was found in Sheila's hands.

Jeremy Bamber, who lived nearby, claimed his father had phoned him saying: 'Sheila's got the gun, she's gone crazy.' Sheila, a model who had a history of mental illness, had referred to her twins as the 'Devil's children'. Detectives initially assumed she had shot her parents and two children before turning the gun on herself.

But suspicion fell on Bamber, who stood to inherit £500,000 on his adoptive parents' death, after scratch marks were found on a shelf above the Aga, allegedly caused by a silencer fitted to the murder weapon. The silencer was found in a gun cupboard, and police deduced it would have been impossible for Sheila to return it there after shooting herself. The conclusion was that Bamber carried out the murders after a violent struggle in the kitchen with his 61-year-old adoptive father during which the shelf was scratched.

At the trial, jurors were shown closeup pictures of the scratch marks. The judge instructed them that the evidence of the silencer 'could, on its own, lead them to believe that Bamber was guilty'. But photographs taken immediately after the murders showed no trace of the marks, according to Peter Sutherst, an expert with 50 years' experience who provides technical advice to police scene-of-crime officers.

Asked by Bamber's legal team to examine the evidence, Mr Sutherst discovered the scratch-mark photos were actually taken 34 days after the murders. He concluded that the marks simply did not exist at the time of the killings. Secondly, he looked for chipped paint, which he would expect to find on the carpet below the shelf if it had been scratched. But he found none in the crime scene photos.

He said: 'The prosecution case regarding the scratch marks was crucial to the conviction of Jeremy Bamber. Here was evidence that he in all probability had not done the deed.' Bamber's solicitor Barry Woods said: 'Now it appears the scratches were not, in fact, made on the night of the murders. The significance of this development cannot be underestimated.'

Bamber himself, who is in Full Sutton Prison, near York, told the Observer: 'This is what I have been waiting 25 years for. It's 100 per cent solid proof. They cannot look at this new evidence and say it doesn't cast doubt on my conviction.'

Original report here

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Monday, February 22, 2010

Wrongfully Convicted Florida Man To Accept Compensation offer

Mistaken eyewitness identification yet again plus a bungled defense. He spent nearly four years behind bars for the armed robbery of a gas station committed by someone else while he was at work. Problem was, the gas station attendant mistakenly identified Mr. McGee as the holdup man. His attorney brought the wrong timecard to court, failing to prove that Mr. McGee was working during the robbery. The defense lawyer should serve some time behind bars too.

Leroy McGee, a 42-year-old man who was wrongfully accused of committing a robbery, will begin to collect $179 thousand from the state of Florida. McGee had initially turned down the money because he had said it was not enough to pay his legal bills he incurred to fight for the compensation. But reports say McGee has now agreed to sign the compensation papers Tuesday. He became eligible to receive the money last year, but he had initially declined it after the state refused to pay his attorneys' costs.

He was convicted in 1991 of a robbery he was not involved in and served three years and seven months in prison. He even had evidence that showed he could not have committed the crime. "I have proof that I was at work," explained McGee. " It's a time card. It shows where I punched in at 2:36 and I punched out at 11:00. So I was at work during that time."

McGee is one of the first people to be compensated under the new Victims of Wrongful Incarceration Compensation Act, which allows people wrongfully convicted of a crime to get up to $50 thousand for every year spent in prison without seeking approval from the Legislature. Before the program was signed into law, victims of wrongful conviction had to file a claims bill with the legislature, a process that could result in lengthy delays and political haggling over payment.

Even with the new law, the process to get compensated is complicated, and McGee is the first person to reach the point where the state is ready to cut a check. Getting to that point took costly legal help, and McGee believes the state should help pay that cost. Part of the process includes doing to court to prove your innocence. "You have to go into court," explained his attorney David Comras. "You actually have to prove innocence, you have to prove actual innocence. "

A state-paid annuity provides repayment over time, meaning people compensated under the law might not have the funds to fully pay the attorneys who helped them get the payment. McGee's attorney is entitled to 25 percent of any payment McGee gets from the state, but his attorneys say they will not force him to pay them out of his own pocket if the state refuses to cover attorneys costs.

McGee and Comras are pushing for the state legislature to take a second look at the Wrongful Incarceration Compensation Act. McGee fought his conviction after he was released from prison and was able to get it reversed with the help of the judge who presided over his case.

Original report here

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Sunday, February 21, 2010

My Email to a North Carolina Prosecutor -- in the matter of Gregory Taylor

William L. Anderson comments on a completely corrupt justice system

After reading about the exoneration of Gregory Taylor in North Carolina — wrongfully convicted of murder in 1993 — I wrote this email to the prosecutor that convicted him, Colon Willoughby, Jr., of Wake County. After a North Carolina panel on innocence recommended Taylor be freed, Willoughby declared: “I told him I’m very sorry he was convicted,” Mr. Willoughby told The Associated Press. “I wish we had had all of this evidence in 1991.”

As you can tell, such statements make me sick. Willoughby had the same information available in 1991 that he has now. He wanted a conviction, and he got it. Will he face any punishment or sanctions? Right. It is quite clear that prosecutors misrepresented the evidence that they had, so Willoughby’s “apology” truly is a joke. Anyway, here is the email I sent to him (I won’t hold my breath for a reply):
Mr. Willoughby,

I see that you have attributed the wrongful conviction of Gregory Taylor to not having the correct evidence. Please. The evidence that exonerated him existed in 1991, and had you and your fellow prosecutors been interested in finding the truth, you could have done so.

I began following the exploits of North Carolina prosecutors when the Little Rascals case exploded, and I watched as your profession railroaded innocent people into prison on the most outrageous and unbelievable charges. (I am supposed to believe that an adult can put a sword up the rectum of a child and leave no marks. Amazing. Don’t try this at home.)

What I have found is that prosecutors in North Carolina go by the ethic of conviction first, explanation later. Where were you when Mike Nifong was running amok in neighboring Durham, fabricating “evidence,” lying to judges and to everyone else, and breaking every ethics rule that supposedly govern your profession? I never remember hearing any concerns from you, and I followed this case very closely and wrote more than 60 articles about it.

Are you going to try to reform your grand jury system so at least we have transcripts of grand jury proceedings in North Carolina, or will the grand jury continue to be your plaything, the prosecutors’ toy in which you can indict a “ham sandwich” if you so choose? When Mark Gottlieb and Ben Himan lied to grand juries in Durham regarding the Duke Lacrosse Case, they could do so without any fear at all of being indicted for perjury.

So, unless prosecutors in North Carolina get serious about actually trying to find the truth and do justice instead of just getting convictions at all costs, I am not going to take any of your apologies seriously. You took 7,000 days of a man’s life, and you will not be inconvenienced a whit. Your session at the Presbyterian church where you serve as an elder will not ask you anything about your integrity or whether or not you have the basic decency even to serve in that capacity. You might remember that the Apostle Paul laid down very, very strict rules about the conduct of an elder, and if in your line of work, you are not willing to go by those directives, then maybe you should resign from your position or at least from your session.

Your half-hearted “Gee, I did not have the information” apology means nothing, absolutely nothing. You will show up at your office and proceed to try to throw other people — maybe some innocent people — into prison as though the Taylor case never happened. It was not that the information necessary had not fallen into your lap; it is that you were not interested in finding whether or not Taylor was guilty or innocent, which the ethical rules governing prosecutors say you must do. No, you wanted your conviction, and you got it, and Taylor was deprived basically of his life.

In a very real sense, you took a man’s life, but you will not be punished for it. So, please do not say justice has been done. Indeed, it will not be done until you have to spend 7,000 days in prison yourself. Obviously, that never will happen, as prosecutors are part of a protected class of people who never have to pay for wrongdoing.

You say that Nifong lost his license and his job? Wow! He knowingly tried to railroad three innocent people into prison, forced families to spend millions of dollars to defend their children against obviously-false charges, and destroyed the reputations of a number of people, all to win an election. And all he lost was his job? That is not justice; that is a slap on the wrist.

So, if the maximum penalty for a prosecutor in North Carolina who has done wrong is a slap on the wrist, how can anyone say the system is just? It is not, and the Taylor case once again shows us that North Carolina prosecutors really are a law unto themselves.

Original report here

Another comment on the Taylor case

Freed from prison after serving 17 years for a crime he didn’t commit, Gregory Taylor joins a handful of men who belatedly received elusive justice from a system that can and does make mistakes.

When the unique, three-judge state Innocence Commission announced its decision on Wednesday, Darryl Hunt, Joseph Abbitt and Dwayne Dial were there. All had languished for years in prison until being freed following lengthy court appeals. Taylor, however, was the first to be exonerated by the new state panel, which offers a slim ray of hope to the wrongly convicted.

For these men, there’s little solace in the platitude that the justice system usually works. Years away from families and shattered lives can never be replaced or fully mended.

When the system does fail, those responsible must be held accountable and steps taken to prevent repeats. And Taylor, 47, is proof that sloppy police work, incompetent legal counsel and prosecutors bent on clearing cases rather than seeking justice can take a fearsome toll.

A Wake County jury convicted Taylor in the 1993 murder of a prostitute whose battered body was found in southeast Raleigh. He was linked to the crime after police found his abandoned truck near the crime scene. Taylor admitted being in the area with another man while buying and using crack cocaine but steadfastly denied involvement in the murder.

Time has shown that what may have seemed then like an open-and-shut case against him was fraught with contradictions and outright deception. At the Innocence Commission hearing, an SBI technician admitted he withheld key evidence that would have helped Taylor’s cause immeasurably. Deals were struck with prosecution witnesses for shorter prison sentences in their own cases. A jailhouse snitch offered implausible, self-serving testimony against Taylor.

Even as appeal after appeal failed, Taylor persevered. He finally asked the nonprofit N.C. Center on Actual Innocence, which works on behalf of prisoners claiming wrongful conviction, for help, which led to the Innocence Commission hearing and exoneration.

In this case, tainted evidence clearly was manipulated to convict an innocent man. When that happens, the public’s confidence in the criminal justice system is severely tested. Was this the exception, or the norm?

Original report here

(And don't forget your ration of Wicked Thoughts for today. Now hosted on Wordpress. If you cannot access it, go to the MIRROR SITE, where posts appear as well as on the primary site. I have reposted the archives (past posts) for Wicked Thoughts HERE or HERE

Saturday, February 20, 2010

Wrongful convictions in Australia to be more energetically challenged

There is no doubt that Carter was a thoroughly bad character from an early age but there was malpractice in trying him. Witnesses on both sides were apparently suborned. He was never really exonerated. Prosecutors just gave up on trying to fix earlier errors

Rubin "Hurricane" Carter doubts there will ever be a time when innocent people are not sent to jail. In Perth to launch a new justice group, America's most famous victim of injustice -- he spent 20 years in jail for three 1966 murders he did not commit -- said the justice system was not about truth. It preferred success. "A police officer is promoted if he's successful in a case; a prosecuting attorney becomes a judge . . . and no one wants to admit their decisions were wrong. That's why it is so hard to change a wrongful conviction."

But the former boxer, immortalised in the song Hurricane by Bob Dylan in 1975, admits he has been shocked by some of failures of Australia's justice system. "You've got wrongful convictions in this country, and it's dead wrong," he said. "You can't ask for anything worse than sending an innocent person to prison."

Tomorrow he will launch JusticeWA, an incorporated public benevolent institution that will raise funds to provide legal and forensic expertise to people fighting wrongful conviction. Its high-profile patrons include Melbourne barrister Robert Richter QC, former state attorney-general Peter Foss QC, and wrongly jailed Perth man John Button, who spent five years in jail after being wrongly convicted of murdering his girlfriend.

"I had all of the high-profile help that you could possibly get. I had Muhammad Ali, I had Bob Dylan . . . and yet I just narrowly escaped through the eye of the needle," Mr Carter said. "I realise how difficult it is for people to bring their case to the public."

Mr Richter said there had been terrible failures of justice in Australia. "You only need to look at people like Lindy Chamberlain, like (Andrew) Mallard in Western Australia (who wrongly served 12 years for murder) and others, to realise that the harm inflicted by a wrongful conviction is almost worse than the original crime," he said.

"There is a populist voice that really cries out for making convictions easier to obtain, and that somehow measures the efficacy of the justice system by the number of convictions obtained. "My view is that, where serious crime is concerned, convictions ought to be difficult to obtain."

And he warned of changes fuelling trouble ahead. "The area with which I'm most concerned is the way the justice system operates in certain spheres, by reversing burdens of proof and presuming certain things to exist unless they are otherwise disproved. That is very, very dangerous."

Mr Button said the aim of JusticeWA was to speed up the release of the innocent. "It takes so long," he said. "We will pay lawyers to work full-time on their cases. We plan to fundraise and get sponsors."

Mr Carter said he had long ago let go of the anger that had consumed him over the racism and lies that led to his conviction. He said his first 10 years in jail were choked by that anger. "Then one day I happened to pass a mirror that was hanging on the wall and the image I saw stopped me dead. I saw a monster . . . I saw the face of hatred . . . and I said, `Oh my God, that can't be me'."

He said he had "cried like a baby" when he was released and had vowed to make his life better. Today, he is strong and hopeful, exuding charm as he confides that Dylan was almost right when he sang that the young boxer "could have been the champion of the world". "I am the champion of the world. I dared to dream that I would be free . . . and now I work to accomplish that dream for others."

Original report here

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Friday, February 19, 2010

Tagged and tracked by your own cell phone

Last Friday, federal attorneys told the U.S. Third Circuit Court of Appeals that government officials should be able to track the location of Americans by following their cell phone transmissions -- without having to get a warrant. While the FBI and state and local officials have already obtained logs from mobile phone companies that reveal the locations of customers' telephones, the practice has never formally been endorsed by the courts. The latest federal arguments -- and rebuttals by civil liberties organizations -- give the courts the opportunity to either support or repudiate federal claims that Americans have no "reasonable expectation of privacy" so long as they carry cell phones.

In a lower-court decision (PDF) regarding an ongoing drug investigation, now being appealed by the federal government, Magistrate Judge Lisa Pupo Lenihan warned: "[T]he location information so broadly sought is extraordinarily personal and potentially sensitive; and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse."

Lenihan determined that the information sought by the Justice Department should be available only if the government could meet the usual probable cause standards necessary for a warrant -- a standard the Justice Department claims to find too burdensome.

Responding to the federal government's position that signing a cell phone contract implicitly gives the state the right to know your whereabouts, the American Civil Liberties Union says the government "should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool."

In a friend-of-the-court brief (PDF), the ACLU, along with the Electronic Frontier Foundation and the Center for Democracy and Technology, support Lenihan's refusal to allow federal access to what Justice Department attorney Mark Eckenwiler calls "routine business records held by a communications service provider." Since those records reveal people's locations, the civil liberties groups argue that they were properly withheld, and that their disclosure raises serious Fourth Amendment concerns. Specifically, they agree that revealing such information should require a warrant.

Lenihan's opinion was signed by four of her colleagues in a show of solidarity that seems, from records of the proceedings, to impress the appeals court judges. The civil liberties implications of the Justice Department move also seem to impress the judges; at one point, Eckenwiler was asked from the bench: "There are governments in the world that would like to know where some of their people are, or have been. For example, have been at what may be happening today in Iran, have been at a protest, or at a meeting, or at a political meeting. Now, can the government assure us that -- one, it will never try to find out that information, and two, whether that information would not be covered ...?"

It's unclear, however, whether that's an omen of the final result. The full oral arguments are available online in audio format at the court Web site (see files beginning with 08-4227)

Original report here

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Thursday, February 18, 2010

How many more are innocent?

America's 250th DNA exoneration raises questions about how often we send the wrong person to prison

Freddie Peacock of Rochester, New York, was convicted of rape in 1976. Last week he became the 250th person to be exonerated by DNA testing since 1989. According to a new report by the Innocence Project, those 250 prisoners served 3,160 years between them; 17 spent time on death row. Remarkably, 67 percent of them were convicted after 2000—a decade after the onset of modern DNA testing. The glaring question here is, How many more are there?

Calculating the percentage of innocents now in prison is a tricky and controversial process. The numerator itself is difficult enough to figure out. The certainty of DNA testing means we can be positive the 250 cases listed in the Innocence Project report didn't commit the crimes for which they were convicted, and that number also continues to rise. But there are hundreds of other cases in which convictions have been overturned due to a lack of evidence, recantation of eyewitness testimony, or police or prosecutorial misconduct, but for which there was no DNA evidence to establish definitive guilt or innocence. Those were wrongful convictions in that there wasn't sufficient evidence to establish reasonable doubt, but we can't be sure all the accused were factually innocent.

Most prosecutors fight requests for post-conviction DNA testing. That means the discovery of wrongful convictions is limited by the time and resources available to the Innocence Project and similar legal aid organizations to fight for a test in court. It's notable that in one of the few jurisdictions where the district attorney is actively seeking out wrongful convictions—Dallas County, Texas—the county by itself has seen more exonerations than all but a handful of individual states. If prosecutors in other jurisdictions were to follow Dallas D.A. Craig Watkins' lead, that 250 figure would be significantly higher.

If the numerator is tough to figure, the denominator is even more controversial. One of the more farcical attempts at writing off the growing number of DNA exonerations came in a concurring opinion that Supreme Court Justice Antonin Scalia wrote in the 2005 case Kansas v. Marsh. Scalia began by dismissing the idea that an innocent person may have been executed in America, explaining that if such a tragedy had occurred, "we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby."

Scalia has probably since become acquainted with the name Cameron Todd Willingham, the Texas man executed in 2004 who was likely innocent. But the justice's pique also betrays an unfamiliarity with how death penalty opposition organizations work. While Scalia is right that proof of an executed innocent would be good rhetorical fodder for death penalty abolitionists, legal aid groups aren't about to waste their limited resources hunting down mistaken executions when there are living, breathing innocents still to be discovered. Moreover, in many jurisdictions, prosecutors destroy the case files after an execution, making any post-execution investigation rather difficult. That we don't know for certain about more executed innocents doesn't mean they haven't happened.

Scalia then cited some absurd math from Josh Marquis, an Oregon prosecutor who has held various executive positions for the National District Attorneys Association. According to the Marquis formula Scalia endorsed, at the time there had been about 200 DNA exonerations. For posterity, Marquis then arbitrarily multiplied that number by 10, to come up with 2,000 wrongful convictions. Marquis then took every single felony conviction over the previous 15 years as his denominator, to come up with a meager .027 wrongful conviction rate. Move along, America. Nothing to see here. Your criminal justice system's performing just fine.

The figure is absurd. First, the subset of cases for which DNA testing can prove guilt is exceedingly small. It's generally limited to most rape and some murder cases. You can throw out the entire body of drug charges and nearly all burglary, robbery, assault, and other classes of felonies. As University of Michigan Law Professor Samuel L. Gross wrote of Marquis in a 2008 article (PDF) in the Annual Review of Law and Science, "By this logic, we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League—and maybe throwing in football and basketball players as well."

If the aim is to calculate the percentage of people who claim they're innocent and who actually are, you might throw out all cases decided by a guilty plea, too. But this can also get tricky. According to the Innocence Project, more than a quarter of DNA exonerations included a false confession or guilty plea. The plea bargaining process can also induce innocent people to plead guilty to lesser crimes to avoid charges with more serious prison time, particularly in drug cases.

The Innocence Project cites a study by Seton Hall's D. Michael Risinger that puts the percentage of innocents in prison at 3 to 5 percent. But that study looked only at capital crimes, and there's yet more debate over whether data gleaned from those accused of crimes that are eligible for the death penalty would translate into higher or lower wrongful conviction rates for those accused of lesser crimes. (Those who argue that it would be higher note that there's more pressure on prosecutors and jurors to hold someone accountable in murder cases. On the other hand, defendants tend to have better representation in capital cases.) But even dropping below the study's floor, using the 2008 prison population, a 2 percent wrongful conviction rate would mean about 46,000 people incarcerated for crimes they didn't commit.

Whatever the percentage, DNA testing has exposed some gaping flaws in the system, calling into question traditional assumptions on the value of eyewitness testimony, forensic evidence, confessions, and the appeals process. (In several cases in which a defendant was later exonerated by DNA testing, appeals courts not only upheld convictions, but noted the "overwhelming evidence" of the defendants' guilt.) Scalia stated in Marsh that an exoneration "demonstrates not the failure of the system but its success," but it would be naive to believe the same systemic flaws exposed by these exonerations in the small subset of cases for which DNA testing is available don't also exist in the much larger pool of non-DNA cases. Put another way, if we now know because of DNA testing that misconduct by police and prosecutors produced a wrongful conviction in a high-profile murder case, it's probably safe to assume that the same problems led to the wrongful conviction of a number of routine drug suspects over the years, too. The difference is that there's no test to clear those people's names.

So these 250 DNA exonerations aren't proof that the system is working. They're a wake-up call that it isn't. Instead of falling back on groups like the Innocence Project to serve as unofficial checks against wrongful convictions, lawmakers, judges, and law enforcement officials should be looking at why there's so much work for these organizations in the first place.

Original report here

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Wednesday, February 17, 2010

Not robbed until proven guilty

Good that this has finally reached the Supreme Court

You are "innocent until proven guilty" in America, with one big exception: Under civil forfeiture laws, police don't have to prove that a crime has actually been committed in order to seize your property. And once your boat or car is stolen by your government, the burden falls to you to prove your stuff is innocent.

Police departments are getting rich from the loot they seize from folks never convicted of a crime. As the Institute for Justice argues, civil forfeiture laws provide an ugly incentive for police "to enforce the laws in ways designed to maximize forfeiture income rather than to minimize crime."

Now a challenge has reached the U.S. Supreme Court. Alvarez v. Smith concerns six people whose property was seized by Chicago police, though three of them were never charged with a crime.

The Institute for Justice, the Cato Institute, the ACLU and the Reason Foundation have filed amicus briefs arguing that due process was denied.

In favor of more free-wheeling civil forfeiture are a number of state governments, the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors and other groups representing government entities that spend the proceeds from the seized loot.

During oral arguments, Judge Sonia Sotomayor asked the pertinent question, "You take the car and then you investigate?" Backwards justice is no justice at all.

Original report here

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Tuesday, February 16, 2010

Deputies Tasered Son to Death, Parents Say

Sheriff's deputies beat and Tasered to death a U.S. military veteran in a jail cell after arresting him on a bogus charge of "trespassing," his family says in Baltimore Federal Court. They say two other men died in the custody of the Hartford County, Md., Sheriff's Department, showing "a consistent pattern and practice of condoning its officers' pervasive misconduct and abuse of authority."

Dwight Jerome Madison's family seeks $195 million in compensatory and punitive damages.

Dwight Madison, an honorably discharged U.S. Navy veteran, was looking for of a friend when he was stopped and questioned by Hartford County Sheriff's deputies, his survivors say. They say Madison answered the deputies' questions truthfully and was not in possession of any drugs, weapons or other dangerous or illegal materials at the time of the encounter. After the two deputies let him go, they set in motion a criminal conspiracy that led to Madison's death, according to the complaint.

About two hours after their initial contact, the deputies saw Madison again, and arrested him for trespassing. The next morning he was repeatedly assaulted by deputies with Tasers inside the Hartford County Detention Center, the family says. They say the deputies' beating gave him serious head injuries, and they finished off the defenseless man with 5,000 volts of electricity.

He was taken to a hospital and then to the University of Maryland Shock Trauma Center, where he died of his injuries the next day.

The family seeks punitive damages for wrongful death, brutality, excessive force, assault and battery, deprivation of civil rights, negligent training and supervision, and negligent and intentional infliction of emotional distress.

Named as defendants are the State of Maryland, Hartford County, Sheriff Jesse Bane, two unidentified deputies and four unidentified employees of the detention center.

Original report here. Court case in 15 page Adobe PDF here

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Monday, February 15, 2010

Man charged in twin's death settles with Ohio city

A man cleared of killing his identical twin brother after police admitted they made a mistake analyzing a bloody palm print reached a tentative $950,000 settlement with the city Wednesday over the error that led to his arrest and trial. Police, who have yet to arrest anyone else in the 2008 slaying, also told Derris Lewis they were sorry for what happened. "I want to apologize to Mr. Lewis and his family," City Safety Service Director Mitch Brown said Wednesday. "Today's settlement is a clear acknowledgment that a mistake was made."

City Council must still approve the settlement in a vote not expected for several weeks. Attorneys for Lewis say the money will be invested to allow him to earn $1.2 million over several years. Lewis, 20, is now an Ohio State University student and has opted to start receiving payments after he graduates. "There's definitely a void because my brother's not here with me," Lewis said at a news conference. "He's here with me in his spirit," he said. "I will still carry on, that's what we promised each other, to succeed and help our mother, so that's what I'm going to continue to do in honor of him."

Lewis' twin brother, Dennis, was killed during a January 2008 robbery at their mother's home. Prosecutors dropped an aggravated murder charge against Derris Lewis last year after a test failed to find his blood on a palm print that had been a main piece of evidence at his mistrial. Prosecutors proposed testing the palm print for blood after police crime scene investigators gave conflicting evidence at Lewis' trial over the location of the print and whether it was near a smear of blood.

The case ended in a mistrial after a juror said she couldn't continue because of an illness in her family. No alternates were available because the judge had dismissed them.

The defense identified potential suspects during Derris Lewis' trial this year. Police have investigated other suspects but say they don't have enough evidence to charge anyone.

The twins' mother told police several masked men entered her house, put a gun to her head, demanded money and asked her who else was in the house. Prosecutors had alleged that Dennis Lewis died in a fight with his brother, possibly over money Dennis was saving for a car. Police said they believed Derris acted alone but didn't say why they believe he killed his brother. The defense says Derris Lewis was sleeping in his apartment miles from the slaying.

Both brothers, high school seniors at the time, were active in sports, band and theater. Friends, family and teachers described them as best friends, like peas in a pod. Derris gave interviews shortly after his brother's death saying he forgave Dennis' killer.

Original report here

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Sunday, February 14, 2010

Mexican justice

I doubt that anyone is much surprised

The harrowing account of a French woman who has been jailed for life in Mexico despite vigorously protesting her innocence has filled her countrymen with indignation, souring relations between the two countries.

Florence Cassez, who has been in prison since 2005 on seemingly baseless kidnapping charges, writes in a book of her despair at the thought of spending the rest of her life behind bars. Even President Nicolas Sarkozy, who believes she has committed no crime, seems powerless over Mexican authorities and is quoted as saying: “They’re making fun of us.”

Increasingly depressed, Cassez, 34, lives for the calls she is allowed to make from a public telephone on the wall of the fly-infested prison. She has often had the French president on the phone.

“I wonder if the people at the other end understand the gap between us, them in their armchairs, me leaning against the wall, or kneeling on the ground while men stop and stare at me in the corridor, poking each other in the ribs, laughing,” writes Cassez in her memoir, In the Shadow of My Life, which appeared in Paris bookshops last week. “I am so tired of it all,” she says. “The cries of the prisoners all day long, it makes me shiver when I hear them coming from the dreaded hole,” referring to an isolation wing in the basement. “It will mark me for life.”

Cassez believes she may have put her life in danger for criticising Genaro Garcia Luna, the Mexican secretary of public safety and former head of a special police unit that arrested her and Israel Cisneros, her boyfriend, in 2005. “I expect the worst from him,” she said in an interview for French radio last week. “Every time I have tried to defend myself there has been some reaction. When I spoke to the Mexican press they moved me for a time to a much more uncomfortable prison. But now I have nothing to lose.”

Her book maintains that Sarkozy wants to take her case to the International Court of Justice. He is apparently eager to take action against Garcia Luna, who is accused by Cassez of lying in court.

She may have good reason to be afraid of him and his henchmen. “We know what he did to the taxi driver,” was one of Sarkozy’s comments about Garcia Luna’s right-hand man, who is reported to have shot dead a driver in an argument about the fare.

As a policeman, Garcia Luna was tarnished by accusations that he turned a blind eye to extra-judicial killings and was apparently eager to redeem himself with spectacular arrests of kidnappers who, along with drug traffickers, are considered one of Mexico’s greatest scourges.

Cassez was accused of belonging to a kidnap gang called the Zodiacs and supposedly led by the courteous but somewhat possessive Cisneros, with whom she had begun a relationship after arriving from France in 2003. The romance fizzled out after a while but the two remained friends.

She is not certain, but hopes that Cisneros is as innocent as she is: “Otherwise I’d spend my whole life wondering why I never saw anything. I don’t want to be the idiot who didn’t realise her boyfriend was a kidnapper of children.”

After being seized by police, the two were taken to Cisneros’s ranch, where Cassez had often stayed. According to Cassez, they were told to get into a bed and were then subjected to a mock arrest for the benefit of television cameras. Kidnapped victims who had been rescued from a different location — and who at first said they did not recognise Cassez — were “freed” for the cameras.

A bewildered Cassez found herself sliding into a Kafkaesque world in which she became known to Mexicans, after a relentless media campaign against her, as “Florence the monster”. She was thrown into a prison with rapists and murderers.

She describes the trial as a farce in which the judges seemed not to care that witnesses against her kept changing their stories. Witnesses in Mexican court cases are often told what to say by police. Judges come under similar pressures.

The victims had described being held in a house that bore little resemblance to the Cisneros ranch. “It’s a complete scandal,” says Franck Berton, her lawyer. “How could they have put this woman in prison for 60 years? Florence Cassez is innocent. Mexico has no more respect for the law than a totalitarian African state.”

France’s activism and the intervention of Sarkozy, who has written letters to President Felipe Calderon, seem only to have hardened Mexico against her. There has been indignant comment in the Mexican press about the “arrogant” French. Calderon went back on an offer to let Cassez serve the rest of her sentence in France, apparently fearing that “Sarko” would pardon her as soon as she got home. “Things are not going as we had thought,” the French president told her on the telephone. He tried to reassure her: “I tell you, Florence — I, Nicolas Sarkozy, will never abandon you.”

Original report here

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Saturday, February 13, 2010

U of L student dragged through legal system for crime she didn't commit

And the arrogant cop responsible? No action. At least so far

Tiffany Washington had just finished classes at University of Louisville in late April 2008 when she returned to her townhouse apartment near campus to find an urgent message from her father telling her to call him.

When she did, Michael Washington quickly came to the point: “Tiffany, have you done something in Louisville?” he asked. “If you have done anything, you need to tell me, now.” Local police had just left the Washington family home in Henderson County, searching for evidence of a robbery committed four months earlier on West Hill Street in Old Louisville. The victim had been struck in the face with a gun before her jewelry and other items were taken.

And Tiffany Washington, a student in good standing who worked at the U of L library to help defray her college expenses and whose most serious lawlessness had been two speeding tickets, had been picked out from a photo lineup as a suspect.

Except Tiffany Washington was nowhere near Old Louisville on Dec. 22, 2007, when the robbery occurred. She was on Christmas break in Henderson, 130 miles away, and she had evidence to prove it. She had receipts from bank transactions and a shopping trip to Eastland Mall, across the Ohio River in Evansville, Ind. She had cell phone records showing calls she had made from Henderson that night. And there were photographs of her attending a party at a Henderson bowling alley where the entertainer Midget Mac appeared.

But except for a small circle of family and friends, no one believed Washington — especially Louisville Metro Police Detective Crystal Marlowe, the investigating officer on the Old Louisville robbery who requested the March 28 warrant for her arrest. In that warrant, Marlowe, who is now under investigation by the police department for her questionable handling of court cases, said the robbery victim “was able to positively ID” Washington after viewing photographs.

After questioning Washington April 17, Marlowe arrested her for robbery, beginning Washington's two-month nightmarish journey through the legal system that only ended after a Jefferson County grand jury declined to indict her in May 2008.

Washington's family had to hire a lawyer. She lost nearly a semester's worth of credits because she was too distraught to take final exams. And she experienced a mixture of bewilderment, humiliation, resentment and anger from which she said she has yet to fully recover.

The court record of Washington's case is sparse, but no one interviewed about the case, including representatives of the prosecutors' offices and the university, as well as Washington's attorneys at the time, said they now have any reason to doubt her innocence. In fact, questions of whether Washington was innocent surfaced several times in court.

During one brief court proceeding on April 22, 2008, defense attorney Howard Lerner outlined the evidence showing Washington was nowhere near Louisville during the robbery and told Jefferson District Judge Sean Delahanty: “Your honor, we have an unusual situation here. I think we've got the wrong person.”

Delahanty himself had questions, asking at least twice how Washington's photo could have ended up in the package of pictures Detective Marlowe said she had shown the victim. Because Washington had no prior criminal record, the judge pointed out, she apparently had never been photographed by the legal system, which is the most common source for police photo lineups. The question went unanswered, according to an audio recording of the hearing.

The court record identifies the robbery victim as Abbey Schmitt, whom Washington said she did not know and had never seen before the April 22 court hearing in her case.

During the hearing, Washington said, Marlowe asked Schmitt to identify the person who robbed her. Washington said Schmitt pointed to her cousin, Christie Garvin, who in the courtroom and who is lighter-skinned, 11 years older than Washington and had a much larger build and hair of a different color and length. Garvin, who lives in Fort Worth, Texas, and works for a drug-store chain, confirmed the account.

Schmitt could not be reached for comment despite repeated attempts. Marlowe declined in a brief telephone interview Friday night to talk about Washington's case. “I am not interested in speaking with you,” she said. “As you very well know, what we say and what you print are two completely separate things. I'm sure after you speak with Ms. Washington you will be fully aware of the circumstances of the case.” The detective added: “I can assure you, I handled the case in the utmost amount of professionalism.”

Tiffany Washington and her parents disagree. When Marlowe interviewed her, Tiffany Washington recalled in the interview, “she basically said, ‘This is what happened and this is what you did, and this is what you're gonna get for doing it.' And as much as I sat there and said, ‘It wasn't me, it wasn't me,' she did not believe me at all.”

Michael Washington, a disabled former maintenance manager, and his wife Sandra, a sales associate at an Evansville furniture store, both sat in on their daughter's questioning by Marlowe. Marlowe “already had her mind made up that it was Tiffany who done it,” Michael Washington said in a telephone interview last week from his home in Henderson “We were lying, and Tiffany was lying too. We were covering up for her because we were her parents.

Now in her last semester at U of L, Tiffany Washington has sought to rebuild her life. In addition to taking four classes this semester, she works part time in the university's intramural office and logs another 15 to 20 hours per week as a hostess at a downtown sports bar and restaurant. But she said she still is haunted by memories of her arrest and time in jail.

“To take somebody and put them in a jail cell for a crime that they didn't commit, I mean, it was hard,” she said. “Not a day goes by that I don't think about it or stress about it. It's like, every question I had about it is going unanswered. I don't how I was picked out. I don't know anything. I always wonder why.”

Original report here

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Friday, February 12, 2010

Seattle "security" guards obey official instructions and do nothing as girl is bashed

What the f*** are they good for?

SECURITY guards are under fire after they stood back and watched as a teenage girl was brutally bashed - with the entire incident caught on film. Even as the 15-year-old victim lay motionless on the floor after the savage assault, they did not check if she was okay.

The shocking footage has sparked outrage in America after the guards' bosses defended their inaction — saying they are trained to "observe and report", The Sun reports.

In the 1min 35sec video, which has been viewed by thousands on YouTube, the victim is repeatedly punched and kicked in the face. The attacker continued to pummel her victim's head with a flurry of powerful blows even after she loses consciousness at the bus station in Seattle. And just when the assault seems to be over, the vicious girl attacker runs back to rain down more kicks and punches, watched by the guards.

Another member of the gang can be seen running off with the victim's bag, containing a mobile phone and iPod.

Amazingly, the victim did not need hospital treatment.

A woman who witnessed the assault from a bus said: "You've got three male security guards and there's a young girl getting kicked in the head, lying on the ground, motionless? And they couldn't do anything? Doesn't seem like security."

The victim later told cops said she had sought out the guards for protection after an earlier altercation inside a department store with a gang of youths.

Sheriff's office spokesman Sgt John Urquhart said: "Transit tunnel security officers were on the platform and witnessed the assault. However they did not intercede as they are unarmed, civilian employees." He added the guards are trained not to get involved in violent confrontations or fights, but are instead told to call 911. And the guards' employer, Olympic Security, said its staff are under strict instructions not to get involved.

A spokesman for Metro Transit, the owner of the bus station, said the firm is reviewing its contract with Olympic in light of the footage. Seattle city officials have demanded an inquiry.

Police have used Facebook and MySpace to track down the gang, and arrested four of those involved, including the alleged attacker.

Original report here

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Thursday, February 11, 2010

TX: Nurse to stand trial for reporting doctor

It occurred to Anne Mitchell as she was writing the letter that she might lose her job, which is why she chose not to sign it. But it was beyond her conception that she would be indicted and threatened with 10 years in prison for doing what she knew a nurse must: inform state regulators that a doctor at her rural hospital was practicing bad medicine. Sheriff Robert L. Roberts Jr., who investigated the case against the nurses, voiced confidence in it.

When she was fingerprinted and photographed at the jail here last June, it felt as if she had entered a parallel universe, albeit one situated in this barren scrap of West Texas oil patch. “It was surreal,” said Mrs. Mitchell, 52, the wife of an oil field mechanic and mother of a teenage son. “I said how can this be? You can’t go to prison for doing the right thing.”

But in what may be an unprecedented prosecution, Mrs. Mitchell is scheduled to stand trial in state court on Monday for “misuse of official information,” a third-degree felony in Texas. The prosecutor said he would show that Mrs. Mitchell had a history of making “inflammatory” statements about Dr. Rolando G. Arafiles Jr. and intended to damage his reputation when she reported him last April to the Texas Medical Board, which licenses and disciplines doctors.

Mrs. Mitchell counters that as an administrative nurse, she had a professional obligation to protect patients from what she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.

Charges against a second nurse, Vickilyn Galle, who helped Mrs. Mitchell write the letter, were dismissed at the prosecutor’s discretion last week.

The case has been infused with the small-town politics of this wind-whipped city of 5,200 in the heart of the Permian Basin, 10 miles from the New Mexico border. The seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite.

When the medical board notified Dr. Arafiles of the anonymous complaint, he protested to his friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter.

Both sides acknowledge that the case has polarized the community, and the judge has moved the trial to a neighboring county. The state and national nurses associations have called the prosecution an outrage and raised $40,000 for the defense. Legal experts argue that in a civil context, Mrs. Mitchell would seem to be protected by Texas whistle-blower laws. “To me, this is completely over the top,” said Louis A. Clark, president of the Government Accountability Project, a group that promotes the defense of whistle-blowers. “It seems really, really unique.”

Until they were fired without explanation on June 1, Mrs. Mitchell and Mrs. Galle had worked a combined 47 years at Winkler County Memorial Hospital here, most recently as its compliance and quality improvement officers. The nurses, who are highly regarded even by the administrator who dismissed them, said the case had stained their reputations and drained their savings. With felony charges pending, neither has been able to find work. They said they could feel heads turn when they walked into local lunch spots like El Joey’s Mexican restaurant. “It has derailed our careers, and we’re probably not going to be able to get them back on track again,” said Mrs. Galle, 54, a grandmother who is depicted around town as the soft-spoken Thelma to Mrs. Mitchell’s straight-shooting Louise. “We’re just in disbelief that you could be arrested for doing something you had been told your whole career was an obligation.”

It was not long after the public hospital hired Dr. Arafiles in 2008 that the nurses said they began to worry. They sounded internal alarms but felt they were not being heeded by administrators. Frustrated and fearing for patients, they directed the medical board to six cases “of concern” that were identified by file numbers but not by patient names. The letter also mentioned that Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side.

Mrs. Mitchell typed the letter and mailed it with a separate complaint signed by a third nurse, who wrote that she had resigned because of similar concerns about Dr. Arafiles. That nurse was not charged.

To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles.

Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have “a significant chilling effect” on the reporting of malpractice. The nurses’ lawyers, John H. Cook IV and Brian Carney, have filed a civil lawsuit in federal court charging the county, hospital, sheriff, doctor and prosecutor with vindictive prosecution and denial of the nurses’ First Amendment rights.

Nonetheless, the sheriff, Robert L. Roberts Jr., and the prosecutor, Scott M. Tidwell, express confidence in their case.

More here

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Wednesday, February 10, 2010

DNA backlog allows criminals to roam free

In a reasonable world there would be a 24 hour turnaround on this. The report below is from Australia but there are similar problems in some U.S. jurisdictions. See here

Criminals are being left to roam the streets because of a backlog in DNA evidence waiting to be analysed, the NSW Auditor-General says. The demand for DNA analysis has increased by almost 40 per cent in the past five years, with little in the way of funding increases, a report by the Audit Office says. There is a backlog of 6400 cases waiting for the analysis of DNA evidence gathered - a backlog that would take a year to clear with current resources.

The Auditor-General, Peter Achterstraat, recommended that police should prioritise DNA samples to have the best evidence analysed first. He also suggested prioritising break-in and other property crimes and moving the most recent cases to the front of the queue to get criminals off the streets. Other states had overcome their DNA backlog with greater resources, he said.

"The safety of the people of NSW is of paramount importance. "Crimes need to be solved as quickly as possible and delays need to be eliminated. "The efficient use of forensic analysis is critical in the prevention of further crime and needs to be addressed immediately for the benefit of the public."

AAP reports: To reduce the backlog, Mr Achterstraat recommended a user-pays system for DNA analysis, and for police to better manage demand. "Firstly, we need a user-pays agreement for all DNA analysis," he said. "Secondly, police must manage demand by determining the best evidence in a case and analysing that first. "Thirdly, the great impact on reducing property crimes will be analysing DNA evidence for the most recent cases first by moving them to the front of the queue. This will give police a better chance of catching criminals and preventing further crimes."

Mr Achterstraat also recommended a review of the cost effectiveness of outsourced DNA analysis. While NSW Health's Division of Analytical Laboratories conducts the bulk of DNA testing, about 5500 cases a year have been outsourced to the private sector. Outsourced analysis costs $412 per item, almost twice as much as tests done by NSW Health, the report says.

Original report here. (Via Australian Politics)

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Tuesday, February 09, 2010

A bully and a liar: British Muslim police chief thought he was above the law

For once, Middle-Eastern morality did not go down well in Britain

A Scotland Yard commander who was jailed yesterday for four years has become the most senior policeman to be convicted of corruption offences in more than 30 years. Commander Ali Dizaei, a former president of the National Black Police Association (NBPA), abused his position to arrest and falsify a case against a web designer with whom he had a personal dispute. A jury took just over two hours to find him guilty of misconduct in a public office and perverting the course of justice at the end of a four-week trial at Southwark Crown Court.

Mr Justice Simon told Dizaei, 47, who was acquitted of corruption charges in 2003, that he was guilty of “a grave abuse of public trust”. The judge said that he had to pass a deterrent sentence “to send a clear message that police officers of whatever rank are not above the law”.

Shy Dizaei, the officer’s third wife, sat behind the dock shaking her head as her husband was led away by a security guard to be taken to Wandsworth jail, southwest London.

Nick Hardwick, head of the Independent Police Complaints Commission (IPCC), which investigated the case, said that Dizaei was “a criminal in uniform” and “a bully”.

But the NBPA, for which Dizaei was a vocal spokesman, expressed surprise at his conviction. Charles Crichlow, the president, said that it was “clearly an extremely difficult and traumatic period for Dr Dizaei and his family”.

The officer was investigated after an incident in July 2008 when he arrested Waad al-Baghdadi, 23, who had built the website to showcase Dizaei’s career and activism. Mr al-Baghdadi believed that he was to receive £600 for his work but Dizaei repeatedly refused to pay him, and the two men confronted each other outside Yas, a Persian restaurant in Kensington, West London. The designer said that Dizaei challenged him to a fight, then followed him into the restaurant and ordered him to leave. When he did so, Dizaei arrested and handcuffed him.

Much of the incident was recorded on CCTV and in a 999 call that Mr al-Baghdadi made to police. Dizaei also called 999 asking for “urgent assistance” and nine officers went to the scene. Witnesses were told by Dizaei to “back off”. At Hammersmith police station, where Mr al-Baghdadi was detained overnight, Dizaei claimed that his wife had been threatened and he had been stabbed with a shisha pipe mouthpiece. However, a doctor concluded that his injuries were self-inflicted and the CCTV and 999 recordings supported Mr al-Baghdadi’s version of events.

Opening the case, Peter Wright, QC, for the prosecution, said that it involved “the wholesale abuse of power by a senior police officer for entirely personal and oblique motives”.

Dizaei became the most senior officer to be convicted since two Met commanders were jailed for corruption in 1977 because of their links with the Soho vice industry.

The IPCC will prepare a report for the Metropolitan Police Authority, which will then move to dismiss Dizaei for gross misconduct. He could also lose his pension. Dizaei has been suspended on full pay of £90,000 a year since September 2008.

Mr Hardwick said that the inquiry had uncovered a chain of events that could have led a corrupt policeman to send an innocent man to jail. “Dizaei behaved like a bully. Mr al-Baghdadi has shown tremendous strength of character throughout the case,” he added. “The greatest threat to the reputation of the police service is criminals in uniform like Dizaei.”

Sir Paul Stephenson, the Met Commissioner, said it was “extremely disappointing and concerning that this very senior officer has been found guilty of abusing his position and power”. He added: “He has damaged not only his own reputation but that of the entire police service. Bearing in mind his rank, he should not be surprised at the severity of his sentence.”

Mr al-Baghdadi said: “I would like to thank all those who listened to me after I made my complaint, in particular the jury who have delivered justice and found Ali Dizaei guilty.”

Alfred John, of the MBPA, and a friend of Dizaei, said he was “very, very surprised” at the verdict. “When you look at how much was spent on this case and how much gets spent on the average murder case, you have to ask what was happening here.”

Members of the MPA can vote to order Dizaei to forfeit his pension. But first the Home Secretary must agree his crimes were “gravely injurious to the interests of the State” or liable to lead to loss of confidence in police. With another six years’ service, Dizaei could have expected a pension of about £60,000 a year plus a six-figure lump-sum payout.

Original report here

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Monday, February 08, 2010

Dubious DNA technique arrives in Australia

The doubts about it could well make it useless in getting convictions -- but it might help exonerate the innocent

The State Government has announced an $8 million upgrade to Brisbane's Forensic and Scientific Services Centre (formerly the John Tonge Centre) to enable it to conduct sophisticated testing known as low-level DNA sampling. But experts, including former John Tonge Centre chief forensic scientist Professor Leo Freney, fear unreliable low-level DNA analysis could result in innocent people being jailed. The low-level sampling technique enables scientists to extract DNA information from tiny samples of evidence, such as minuscule blood stains.

However, the technique has proven problematic. Last December the Victorian police commissioner was forced to ban forensic officers from presenting low-level DNA evidence in courts after poor sampling practices resulted in a man being wrongly convicted for rape. The Victorian Government is now conducting a five-year review of cases involving DNA evidence gleaned using the technique.

In the UK in 2007, low-level DNA testing was halted and cases reviewed after Omagh bombing suspect Sean Hoey was cleared of the crime when the reliability of low-level DNA analysis was questioned during his trial.

Senior Director of Queensland Health Forensic and Scientific Services Greg Shaw said the Government was aware of the controversy in Victoria, but Queensland used a different model to interpret DNA tests. "The courts and the public can be confident in the efficacy and accuracy of forensic DNA analysis conducted by Queensland Health Forensic and Scientific Services," Mr Shaw said.

But Prof Freney yesterday urged the Government to proceed with caution. He said low-level DNA analysis involved getting a weak sample and amplifying it more times than the usual 22 cycles. "A feature of low-level DNA is that you can also amplify up contaminants and that might give a false result," he said. "If this stain is going to convict someone and put them in jail for life, my God they've got to be very careful."

Queensland Council for Civil Liberties vice-president Terry O'Gorman said he did not believe the Forensic and Scientific Services Centre could be trusted with such a controversial technique. "Over the years it has been subject to a number of reviews and has been found significantly wanting," Mr O'Gorman said.

The Government admitted Queensland's forensic services had endured problems with delays and procedures. "It is fair to say that the laboratory was not operating to its best capacity, but it will now," a government spokesman said. [!!!!]

Original report here

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Sunday, February 07, 2010

Trigger happy cop

It's not even safe to put your hands up???

The Colorado Springs police officer who fired a shot at a suspected burglar who turned out to be a handyman could be innocent of criminal wrongdoing and still lose his job. The laws governing the use of deadly force, either in self-defense or in arresting someone, usually are less stringent than police departments’ policies on the use of a weapon, generally known as shoot/don’t-shoot.

The shooting Wednesday afternoon at a home in the 3300 block of Beechwood Court in north Colorado Springs is being investigated by the Police Department assisted by the 4th Judicial District Attorney’s Office, which will review the findings. That’s standard when an officer fires a weapon, but no one is injured or killed, said district Attorney Dan May. If someone were killed or wounded by an officer, then the DA’s office would conduct an independent investigation. The first step in any investigation, May said, is to collect physical evidence and interview the officer involved and any eyewitnesses to determine the facts.

In Wednesday’s shooting, police have not released any information since issuing a news release shortly after the shooting saying officers responded to a reported burglary in progress, confronted a suspect in the garage, where an officer fired a shot that missed the suspect. Since then, there have been no arrests.

According to the homeowner, Pam Riggen, Kevin Rogers and the homeowner’s boyfriend were working on the house and mistaken for burglars by a neighbor who called police. When officers arrived, they confronted Rogers in the garage. As he raised his hands, Rogers said, one officer fired a shot that missed him by a foot and lodged in a wall. The officer, whose name has not been released and is on leave while the shooting is investigated, was distraught afterward and apologized to him, Rogers said.

Beyond the facts, an investigation into any shooting involving an officer determines if the law justifies the use of deadly force, either in self-defense or to arrest someone who has committed a felony using a weapon and could endanger the officer or others, even if they aren’t pointing a gun at them.

Reasonable belief is a key element in determining that, May said, just as it is under the Make My Day law that allows residents to use deadly force against an intruder. “Perception is a big part of it,” May said. “If you have a reasonable belief that you are in danger of great bodily harm or death you can use deadly force and you can turn out to be wrong.”

Wednesday’s shooting may be an example of that, although May and police officials would not comment on it while the investigation is pending. The officer may have mistaken pliers he was holding for a gun, Rogers said.

While that would protect the officer from being brought up on charges, it might not save his job. An officer who violates department policy on the use of a firearm, even accidentally, can be disciplined or dismissed, May said.

Original report here

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