Thursday, March 31, 2011

Australian man loses $45m damages claim for wrongful conviction on a technicality

A $45 million claim for damages by an Australian pilot who was wrongfully convicted of child sex tourism and jailed for almost three years has been dismissed by a court.

Queensland Supreme Court Justice Stanley Jones today ordered north Queensland pilot Fred Martens' damages claim against the federal government be struck out after ruling it had been filed under the wrong legislation.

Justice Jones ruled the claim for $45 million should have been filed under Queensland legislation rather than federal law and the document had "shown little regard" for the rules governing legal procedures.

The claim, he said, should have been filed under Queensland's Personal Injury Proceedings Act and, because Mr Martens' legal team had not followed the procedures required by that legislation, it must be dismissed.

He also ordered Mr Martens to pay the legal costs of the government in relation to the claim.

Mr Martens' barrister Michael Sumner-Potts said the legal team was considering whether to appeal the decision or file a claim under the state legislation.

Mr Martens spent almost 1000 days in a north Queensland jail after being convicted of having sex with a 14-year-old girl in Papua New Guinea.

However, the conviction was overturned after his family was able to obtain official documentation which proved he was not in the same town as the girl at the time of the alleged offence.

In overturning the conviction Queensland Court of Appeal justice Richard Chesterman was scathing at Australian Federal Police officers' handling of the case.

In his statement of claim, Mr Martens says the action taken against him by the AFP resulted in the collapse of several business ventures in Papua New Guinea.

He also claimed the decision to freeze his assets ahead of his 2006 trial prevented him from seeking life-saving treatment for his baby daughter Stephanie who died of malaria in Port Moresby.

Original report here

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Wednesday, March 30, 2011

Still hope for justice in the case of British newspaper seller attacked and killed by cop?

G20 inquest told police officers could still be charged over Ian Tomlinson death

Prosecutors may review the decision not to charge police officers over the death of Ian Tomlinson at the G20 protests, an inquest heard today. Jurors were urged to ignore previous investigations by the Crown Prosecution Service and Independent Police Complaints Commission as the inquiry into the newspaper seller's collapse in April 2009 got under way.

Judge Peter Thornton QC, sitting as assistant deputy coroner at the central London hearing, said the cause of his death was "likely to be a controversial area".

Dr Freddy Patel's initial verdict that Mr Tomlinson died of natural causes was contradicted by a second and third pathologist, the inquest heard.

In his opening comments, Mr Thornton told the inquest: "There is likely to be controversy too about the finding of Dr Patel in the first post-mortem of the presence of fluid in the abdomen and to what extent it contained blood.

Relatives of the 47-year-old looked on as dramatic video of him being confronted by police was shown to the jury. Footage showed Mr Tomlinson being hit with a baton and pushed to the ground by an officer. He then sits up to gesture to police.

He died after staggering about 100 yards and falling to the ground in Cornhill, near St Michael's Alley. Footage showed him being attended to by officers near a Starbucks cafe. The footage became global news after it challenged the original official version of events.

Pc Simon Harwood, a member of the Met's territorial support group, originally escaped prosecution but faces being sacked under misconduct proceedings.

The jury, sitting at the International Dispute Resolution Centre in Fleet Street, London, was told the inquest will examine the actions of police, the pathologist and independent investigators in the aftermath of Mr Tomlinson's death.

Original report here

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Tuesday, March 29, 2011

Australia: District Court overturns child sex charges

A MAN had his convictions on child sex charges overturned on appeal today after it was found there were major problems with the alleged victims testimony at trial.

It is rare for a Court of Appeal to enter verdicts of acquittal in cases where the credibility of the complainant is the issue and the matters are usually sent back to trial.

In a District Court trial in Brisbane last year, the man was found guilty of five counts including maintaining a sexual relationship with a child under 12 years, indecent dealing with a child, and attempting to procure a child to commit an indecent act. He was acquitted on a sixth count.

The offences were alleged to have been committed between June 1996 and January 2001 when the man had an off and on relationship with the girl's mother. The girl was aged between eight and 10 years for most of the alleged offences and 12 and 13 for the final alleged offence.

She alleged the man would come into her room, touch her and perform oral sex. The court heard the girl did not make a complaint until she told her mother about nine years later when they were living in Tasmania.

The man, who can't be named for legal reasons, appealed on the grounds the convictions were unreasonable because the girl's testimony was inconsistent and lacked credibility. In an unanimous judgment the Court of Appeal upheld the appeal, set aside the verdicts and entered judgments of acquittal.

Justice Richard Chesterman noted the girl did not complain about the man's alleged conduct until nine years after it commenced and she had been reluctant to complain until pushed by her mother. He said one aspect of her testimony was shown to be wrong, and in two cases she had changed it to improve the prosecution case.

Justice Chesterman said a Court of Appeal should not lightly set aside a jury's verdict. However, he said there was an obligation on the Court to make its own independent assessment of evidence which cast doubt on the credibility of the complainant.

Original report here

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Monday, March 28, 2011

The prosecutor who wrongly put a paraplegic in prison wants to be a judge

When the SWAT team came for Richard Paey in 1997, officers battered down the front door of the Florida home he shared with his wife and their two children. Paey is a paraplegic who uses a wheelchair after a car accident and a botched back surgery. He also suffers from multiple sclerosis. Paey was accused of distributing the medication he used to treat his chronic pain, even though there was no evidence he had sold or given away a single pill. Thanks to Florida’s draconian drug laws, he was eventually convicted and sentenced to 25 years in prison.

Paey’s prosecution was an outrage, and it generated significant media attention. In 2007, after Paey had served nearly four years of his sentence, Florida Gov. Charlie Crist gave him a full pardon. Yet Scott Andringa, who prosecuted the case as an assistant state attorney in New Port Richey, has never expressed a hint of remorse. In fact, Andringa, now a defense attorney in private practice, brags about his efforts to imprison Paey on his professional website, noting that he “was the prosecutor assigned to a controversial drug trafficking case that was later profiled on 60 Minutes, Nightline, and in the New York Times.”

And now Andringa wants to be a judge. In December he announced his candidacy in Pinellas County’s 2012 elections. The position currently is held by Andringa’s father, who is retiring. As of this writing, no one has filed to oppose him.

At the time of his arrest, Paey was undergoing high-dose opioid therapy, a relatively new form of treatment for chronic pain that titrates doses upward as a patient develops tolerance. The tolerance eventually plateaus, but at that point the patient is taking large doses of narcotics every day, enough to kill someone who has not built up the same tolerance. Paey was initially under the care of a New Jersey physician, but he found it difficult to find treatment when his family moved to Florida, a state overcome by anti-opioid hysteria. Depending on whom you believe, either Paey’s New Jersey doctor illegally sent him several prescriptions to continue his treatment or Paey forged those prescriptions. In any case, a local pharmacist, alarmed at the volume of medication Paey was taking, tipped off the Pasco County Sheriff’s Office.

Although Andringa has conceded he had no evidence Paey was selling or giving away medication, Florida law allowed him to charge Paey with distribution because of the alleged forgeries and the volume of medication he possessed.

But simply because the law allows a charge does not mean it is merited or in the interest of justice. And here’s where Andringa’s discretion comes into question. Over the years, Andringa has said he is “proud” of putting Richard Paey in prison, that he has “no personal or professional” regret about the case, and that he’s certain his office “did the right thing.”

Paey’s time in prison was rough. He spent more than 30 days in solitary confinement—retaliation, he believes, for telling his story to New York Times columnist John Tierney. When I interviewed him in 2007, he described systematic sleep deprivation, psychological abuse, and jail cells with little air circulation where the heat index could top 100 degrees.

Andringa did not have to file distribution charges, and he could have asked the judge to waive the mandatory minimum 25-year sentence in Paey’s case. He didn’t. He would later tell Tampa’s Weekly Planet, “As a [prosecutor], you normally charge the highest crime that you can prove.” That’s one way of approaching the job. Another would be to charge someone with a crime only when doing so serves justice. (Andringa did not respond to my request for comment.)

The injustice of treating Paey as a drug trafficker is clear from the enormous disparity between the sentence he received and the punishment he would have gotten under a plea deal Andringa offered him. Paey would have received only probation and counseling if he admitted he was a drug addict and pleaded guilty to attempted drug distribution. Paey refused. He wasn’t a dealer and, more important to him, he wasn’t an addict. He was a patient. He was no more addicted to pain medication than a diabetic is to insulin. The pills merely helped him live a more normal life.

Andringa still could have gone to trial only on the attempted distribution charge, or he could have prosecuted Paey for forgery. He could have chosen not to prosecute Paey at all. Instead, he threw the book at Paey—punishment for his obstinacy. Andringa told the Weekly Planet, “I understand someone wanting to have their day in court. But they have to accept that with that there’s a risk, and in the case of Richard Paey it was a 25-year mandatory minimum, which he knowingly and willingly accepted.”

The state tried Paey three times before it got a conviction, and then only after the jury foreman told fellow jurors that the sentence would be no worse than probation. Andringa used some form of the phrase drug addict eight times in his closing argument. He charged Paey as a trafficker but was clearly trying him for being an addict. Even assuming the facts most unfavorable to Paey, he was neither. At worst, he was guilty of forging prescriptions, not to get high but to get the medical treatment he needed.

That he required such treatment is not in dispute. While in prison, he received morphine via a subdermal pump. “It became a comedy of bureaucracies,” Paey told me. “One agency prosecutes me for taking too much medication. And that was their explanation—that my dose was too high for one person to be taking, therefore I must be selling it.…Then I get to prison, and the doctors examine my records and my medical history, and they decide that as doctors, they have to give me this medication…in higher doses than what I’d been getting before.”

Andringa recently started a blog to coincide with his campaign for judge. In a post titled “Thoughts About ‘The System,’ ” he chastises those who say the criminal justice system is flawed. Andringa explains that “The System” is run by “a group of people who are as capable, or fallible, as any other group of people one might find.” He adds, “When mistakes are made, time is wasted, scarce resources are squandered and the primary and axiomatic mission of the criminal justice system; to see that justice is done, is thwarted…I believe the appropriate question is not whether ‘The System’ is flawed, but whether one or more of the people involved has failed; as we all will from time to time.”

It’s an eloquent (if peculiarly punctuated) passage, but it isn’t accurate. A system that identifies, compensates for, and attempts to correct mistakes would be what Andringa describes: a good system complicated by human failing. A system that rewards human failing is broken.

Scott Andringa’s defense of “The System” is actually a strong argument for keeping Scott Andringa far away from a judge’s gavel. Andringa not only squandered scarce resources in his prosecution of Paey; he ignored his responsibility “to see that justice is done.” He continues to fail by refusing to acknowledge that the case was a travesty of justice. If he is rewarded with a promotion to judge, a position where he’ll be charged with ensuring that others accused of crimes are treated fairly, then “The System” will have failed.

Original report here

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Sunday, March 27, 2011

NC: CMPD Internal Affairs investigating alleged beating

The Charlotte Mecklenburg Police Department says it is investigation allegations concerning police misconduct, after a suspect and officer exchanged gunfire over the weekend. Both men were wounded.

Several neighbors in the Camp Greene neighborhood of west Charlotte say they witnessed police officers beating the suspect after he was arrested and in handcuffs on the ground.

"I seen them hitting him, hitting him, hitting him," said Wade Miller who lives a few feet from where the incident occurred on Garibaldi Avenue.

Malcolm Springs was arrested Saturday night and transported to the hospital. Police say earlier that night, Springs was involved in an armed robbery and shooting at a nearby gas station on West Trade Street.

Police say they tracked his car to the Camp Greene neighborhood where Springs jumped and ran. They chased him to Garibaldi Avenue where police say Springs fired his gun at an officer and the officer fired back.

Miller says CMPD Internal Affairs was interviewing witnesses in the neighborhood Monday concerning the beating allegations.

Springs' mother, Debra Walls, says she just wants to make sure justice is served. "If he's responsible for any of these things, he's gonna go through the system, and he's gonna have to be held accountable for that," said Walls.

She said if police crossed the line, they need to be held accountable too. "They took it too far. he was detained. He was detained," she said.

Neighbors on Garibaldi Avenue say they want answers, too. Miller said he understand the adrenaline and emotion officers may have been feeling that night, knowing one of their own had been shot -- but he questions what happened after the arrest. "I didn't see the man move or nothing," he said.

CMPD released this statement Tuesday: An Internal Affairs investigation began immediately after the shooting involving Officer Harrison and the arrest of Mr. Springs. This is standard procedure for any case in which an officer fires his service weapon or when an officer uses force to make an arrest. In an effort to preserve the trust and confidence of the community, the CMPD investigates all accusations of officer misconduct. This investigation will be no different than any other internal affairs investigation.

Original report here

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Saturday, March 26, 2011

Must not criticize red light cameras

One man’s battle with corrupt city officials in Scottsdale, Ariz., who, he says, are controlled by executives at one of the nation’s largest red-light camera companies, is highlighted in a new video.

On Tuesday, Neville Cramer, a veteran of almost 30 years in local and federal law enforcement, told an Arizona television talk show host about how he was charged and convicted of a serious crime despite being able to produce evidence proving he was innocent of the charge against him.

Cramer’s story casts a pall on a slew of misleading television spots that, along with a saturation campaign of radio advertisements, are promoting photo-enforcement systems as a means of increasing safety at intersections in Missouri.

According to one report, the ads are being run by the National Coalition for Safer Roads which is, according to the NCSR website, “supported by American Traffic Solutions.”

Locally, Matt Hay doesn’t buy into the ATS message and is actively campaigning against it in Missouri. Success for his effort is defined on his group’s Wrong On Red Facebook Page as being realized only when the Missouri General Assembly passes legislation that results in a “complete prohibition on all photo-enforcement systems installed or operated by any political subdivision on ANY roadway within the Great State of Missouri.”

Original report here

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Friday, March 25, 2011

MI: Patrol car video prompts prosecutors to review shooting involving Pittsfield Township police officer

Another trigger-happy dickless Tracy. Females are too nervous to be safe with a gun in a police environment

Washtenaw County prosecutors said Monday they're reviewing their decision to clear a Pittsfield Township police officer of criminal wrongdoing in the January shooting of an unarmed man. The review comes after prosecutors received a video of the shooting township police said was not previously available because of technical problems.

That video, obtained by under the Freedom of Information Act, shows Officer Tracy Yurkunas shooting domestic violence suspect Devin Reddick once in the abdomen about 5 p.m. Jan. 15 in a parking lot at the Rosewood Village condominium complex off Primrose Lane.

Yurkunas shot Reddick shortly after he got out of a car and turned to face her, the video shows. Immediately after the shot was fired, a male officer yelled, "Put your hands up." Yurkunas told another officer at the scene Reddick had been reaching for something.

Reddick was treated at an area hospital after the shooting and later charged with domestic violence.

Washtenaw County Chief Deputy Assistant Prosecutor Steve Hiller told on Monday that he has watched the video, and prosecutors will re-examine their decision based on the video and other materials they expect to receive from Michigan State Police, who handled the investigation into the shooting. He declined to be more specific about what other evidence may be turned over.

The video was shot from a patrol car that was stopped behind Yurkunas' patrol car. Hiller said he didn't learn the video existed until Pittsfield Township police chief Matt Harshberger told him about it March 10. Hiller said he received a copy the next day.

Prosecutors had already ruled in February that Yurkunas acted in self-defense, and reported those findings on March 2, which is the same day filed a public information request. “We are certainly going to re-examine the original decision,” Hiller said.

State police Sgt. Dale Smith, who investigated the case, said Monday that he was aware of the video, but hadn't been told that prosecutors were taking another look at the case. He said he doesn't expect the video to change anything. "As far as we're concerned, the investigation is done," he said. "We turned it over and our findings have not changed."

An internal investigation is on hold pending the latest review by prosecutors, Harshberger said. Yurkunas has been back at work since late February on desk duty after being placed on paid administrative leave, which is routine in such an incident, Harshberger said.

Harshberger said Pittsfield Township police were unaware the video was available until March 10, after an official at L-3 Communications was able to retrieve it. The recording system had previously shown an error message to police. “It’s new technology for us,” Harshberger said. “So we’re still working out the kinks.”

The shooting

The shooting occurred after Reddick parked and got out of the driver's side door of a car, records show. Police say they were conducting a traffic stop, and the video shows Yurkunas' car lights were flashing. In his arraignment, Reddick disputed that he was being pulled over.

The video shows Yurkunas get out of her patrol car and draw her gun as she stands behind the driver's side door of her car.
On the video, Reddick gets out of his car, faces her, and is then shot and falls in the snow. Immediately after Yurkunas shoots Reddick, a male police officer can be heard yelling, "Put your hands up."

According to a report by officer Shawn Willmuth, Yurkunas said at the scene the man was reaching for something. Police said in a news release after the shooting that the suspect "made what the officer perceived to be a life-threatening action." Willmuth also wrote in his report that he found Reddick was holding a cell phone after the shooting. He said a pat-down search determined Reddick did not have a weapon.

Willmuth stated in his report officer Dennis Marra said Reddick had been combative during an arrest attempt in 2010 and that information was relayed to Yurkunas during the pursuit.

A domestic assault

Officers were looking for Reddick after a woman he knows called 911 at 3:57 p.m., reporting Reddick had assaulted her at an Arbor Circle East apartment. She said Reddick left in her car and might have headed to his brother's home in Pittsfield Township, 911 recordings show. She said she didn't think he had any weapons, but his brother had a registered gun. She added she didn't think his brother would let him have the gun.

According to reports, the woman was assaulted after Reddick asked her to pay a bill, but she declined. He broke her computer, police reports say, grabbed her by the neck and pushed her to the ground. He kicked and punched her, leaving her with bruises to her face, her arm and her shoulder, police reports say. She also complained of pain in her abdomen, but did not require medical attention.

Reddick, 30, of Pittsfield Township, was charged three days later with domestic violence, operating with a suspended license and refusing to be fingerprinted, all of which are misdemeanors. He was not charged with resisting and obstructing police.

Washtenaw County Assistant Public Defender Ronald Brown, who is representing Reddick, could not be reached for comment Monday. Neither Reddick nor the woman who said she was assaulted could be reached for comment.

Reddick was treated at an area hospital after the shooting and later taken to the Washtenaw County Jail, where he had an outburst at his arraignment. He was held without bond, but later released on a $1,000 bond after the arraignment was completed on another day.

Original report here

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Thursday, March 24, 2011

British Man jailed for murdering his pregnant wife accuses government of covering up prosecutors' 'dishonesty'

A convicted murderer accused Justice Secretary Kenneth Clarke of trying to cover up the 'dishonesty' of police and prosecutors that he claimed led to his conviction. Eddie Gilfoyle, 49, who has protested his innocence since being arrested for the murder of his pregnant wife in 1992, was released from prison in December after 18 years behind bars.

But the terms of his parole included the condition that he did not make any contact with the media, even indirectly. That was later dropped after Lord Hunt of Wirral, his former MP, challenged the 'gagging order' with the Ministry of Justice and Parole Board chairman Sir David Latham.

Gilfoyle addressed the media for the first time today at a press conference organised by Lord Hunt, a former Conservative minister, in Parliament.

'I didn't kill my wife and I didn't kill my baby,' he said. 'When I was released from prison in December, I was told in no uncertain terms that neither myself, my sister, my legal team or anybody associated with me could talk to the media. 'If I had have, I was straight back to prison. Kenneth Clarke, the justice minister, authorised it. The reason he authorised it is because he didn't want me coming out and telling the truth.'

Gilfoyle lodged a request for an appeal against his conviction with the Criminal Cases Review Commission last August, but said today he still had not been assigned a case officer.

He accuses Merseyside Police, who investigated the death by hanging of his wife Paula in 1992, of destroying the scene and seeking to cover up their mistakes by 'framing' him.

'Having taken 18 years of my life, I am not prepared to wait five years, I'm not prepared to wait two years, until they get their act together and sort out this case,' he said. 'I'm going to be in your faces, kicking at your door to sort out the dishonesty in this case and give me my life back.'

He called for a meeting with Mr Clarke to ask him 'what he's prepared to do'. 'He's responsible for the gagging order. I need answers and I think it's only right I should be given those answers,' he said. 'I might be out of prison but I'm always going to be a prisoner while this is over my head.'

His solicitor, Matt Foot, said there had been no forensic evidence for murder. 'The reason for that is that it was a suicide,' he said. 'What the prosecution did was distort the evidence to give the appearance that there was forensic evidence in this case.'

Mr Foot claimed there were two 'fallacies' in the murder case - that Mrs Gilfoyle would not have been able to keep her balance as she walked up the ladder to where she was hanged, and that she would not have been able to get the rope over the beam. 'These were complete and utter myths that were created by the prosecution and went into the trial,' he said.

It was an 'extraordinary coincidence' that today's press conference came as the Law Commission had recommended changing the rules on expert evidence in jury trials. 'What they are saying is that there shouldn't be unjustifiable assumptions going into trials from experts,' Mr Foot said. 'And that's exactly what happened in this case, and if the new rules that are being suggested were in force in 1992 this case would never have gone to trial.'

Lord Hunt, who first took up Gilfoyle's case as MP for Wirral West in the 1990s, said: 'At last the truth is coming to the surface.' The peer said the Parole Board had informed him in January it had taken further legal advice on the restriction on Gilfoyle's communications with the media. 'I am still inquiring as to why it was ever imposed in the first place,' he added.

A spokesman for the Ministry of Justice said: 'This is not true - the Secretary of State cannot authorise licence conditions in respect of life sentence prisoners. 'It is for the independent Parole Board to agree any licence conditions of lifers released from prison and for the courts to decide if an individual is guilty of a crime.

A Merseyside Police spokesperson said: 'It would be inappropriate to comment on this case which is currently under review by the Criminal Cases Review Commission.'

Original report here

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Wednesday, March 23, 2011

TX: Court boosts compensation for wrongly convicted man

Technicality rejected

The Texas Supreme Court ruled today that the state owed a wrongly convicted man an extra $66,000 in compensation for his imprisonment on top of $1.527 million already paid.

Billy James Smith spent more than 19 years in prison after being wrongly convicted of sexually assaulting a woman in his apartment complex at knifepoint. His case was based wholly on witness identification. DNA testing led to his release in 2006.

In 2009, the Texas Legislature passed the Tim Cole Act, named after a Fort Worth man who was convicted of rape and died in prison before DNA evidence cleared him. The bill increased the lump sum compensation for a wrongly imprisoned person to $80,000 per year in prison, up from $50,000.

When Smith applied for compensation under the act, the State Comptroller decided he was not eligible for compensation for the first ten months of his wrongful imprisonment because that time was due to violation of his parole from an earlier car theft and armed robbery. Last year, Smith's lawyer appealed to the Texas Supreme Court, arguing that Smith deserved to be compensated for those ten months because the parole violation stemmed from the wrongful conviction.

The Justices appeared to see some merit in both sides of the argument. "Neither the Comptroller's nor Smith's reading of the statute is unreasonable or implausible," Justice David Medina wrote for the court

The Court ultimately ruled against the Comptroller's interpretation of the law. A key issue was the famed Tulia drug busts that led to the state throwing out convictions on several people. In those cases, the state ultimately compensated people whose probation had been revoked due to the bad convictions.

The Comptroller's office argued that Smith's parole issue is not the same as probation but the Justices disagreed. "...It seems unlikely that the Legislature intended to compensate wrongfully-imprisoned probationers, and not parolees, given the similarity in their circumstances," Medina wrote.

Since his release, Smith has been an advocate for reforming the state's justice system to avoid further wrongful convictions. "No amount of money can give me back what I lost. That is something I'll never get back -- something has been taken from my insides," Smith told the Star-Telegram in 2007. "There is nothing I can do to them that can give me back the freedom I lost."

After being exonerated, Smith filed a lawsuit alleging that a Dallas County prosecutor and the Dallas Police Department violated his civil rights when he was wrongfully convicted. He was one of several exonerees who dropped a lawsuit related to his wrongful conviction in 2009 in expectation that the Legislature would pass a bill to increase their compensation.

Smith has already received $1.527 million in compensation for his wrongful conviction, according to court documents. With the state now owing him approximately $66,000 more, his total compensation will be $1.593 million.

Original report here

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Tuesday, March 22, 2011

CO: Loveland police settle suit with gun-carrying man

You've got to sue the SoBs

A 2008 incident in which police disarmed a man walking in a Loveland park, resulting in a civil rights lawsuit against the city, has been settled for $15,000.

Bill Miller sued in 2010 after police responded in 2008 to a report of a man at South Shore Scenic Park carrying an openly displayed handgun around his waistband. According to a news release, officers made consensual contact with Miller to determine if he had any intention of harming himself or someone else with the weapon.

Citing the safety of the citizens in the park, Miller and police, the release said officers disarmed Miller and unloaded his pistol and returned the gun and ammunition to him after determining he was not a danger.

According to police, the city's motivation for settling "for a nominal amount" is to avoid the cost of ongoing litigation.

Police Chief Luke Hecker said he supports the actions of the involved officers and believes they acted exactly as they should have. "I think they acted professionally and responsibly to see if he was suicidal or homicidal," looking after the safety of Miller, others in the park and the police. "The officers did what reasonable people would expect them to do."

Miller's attorney, Nelson Boyle, maintains his client simply was enjoying the sunset in the park and none of his actions suggested criminal activity. "Without a reasonable suspicion of criminal activity that the officer could articulate when he acted, the police officer could not legally stop and search Mr. Miller or seize Mr. Miller's property," Boyle said in a news release. "The stop was not lawful."

"Mr. Miller was not breaking any laws. He didn't even appear to be breaking any laws." Boyle said. "Bill Miller was simply eating an apple and promoting both his homemade holster business and public awareness of the constitutional right to openly carry a gun."

The settlement stipulates that officers will receive training on the Second and Fourth amendments of the U.S. Constitution, addressing the right to bear arms and search and seizure.

"Recognizing that ongoing, verifiable training is always desirable in law enforcement, and that such training is normally provided to Loveland police officers as part of their general continuing education, the police chief and the department readily agreed to the stipulation," the police news release said.

"Some people may be uncomfortable having Bill Miller carry a gun on his hip in public places, but our federal and state constitutions guarantee Mr. Miller's right to carry that gun and to show and tell people about their right to bear arms," Boyle said. "This settlement, obtaining proper police training related to the right to keep and bear arms is a victory for Mr. Miller. It's a shame that it took a lawsuit to get there."

Original report here

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Monday, March 21, 2011

Getting forensics right

The forensics system is finally getting some national attention, but reformers aren't addressing the real problem

After countless scandals in recent years, the problems with America's forensics system are finally getting some national attention. In December, Sen. Patrick Leahy (D-Vt.) introduced a bill to reform the country's crime labs. In January, ProPublica and Frontline teamed up for a year-long investigation into the ways criminal autopsies are conducted across the country. In North Carolina, the state legislature is considering reforms to that state's crime lab, which was rocked by a damning 2010 investigation commissioned by the state attorney general and a follow-up report by the Raleigh News and Observer that uncovered widespread corruption, hiding of exculpatory findings, and a pro-prosecution bias among crime lab workers. All of this comes on the heels of a congressionally commissioned 2009 report from the National Academy of Sciences that found expert witnesses in many areas of forensics routinely give testimony that is not backed by good science.

So the good news is that we are starting to see some skepticism, even some outrage, about the way forensic science is used in criminal cases. The bad news is that the solutions politicians and policy makers are proposing, while better than nothing, do not really address the primary problem. That problem is perverse incentives.

To be sure, there are other problems with the forensics system. For starters, many forensic disciplines, such as hair and carpet-fiber analysis, blood spatter analysis, and especially bite mark analysis, have not been subject to rigorous scientific testing. Even fingerprint analysis is not the sure thing it was once thought to be. Many of these fields were either invented by law enforcement agencies or honed and refined by them. The fields have not been subjected to peer review, and the methods by which, for example, a carpet-fiber or ballistics analyst produces a "match" are not blind. On the contrary, the analyst often knows the details of the crime and which sample implicates the suspect. When done this way, these analyses are not science, but they are often presented in court as if they were.

Some of the policies now under consideration at the state and federal levels could help with these problems. Leahy's bill would require any crime lab that receives federal funding to be accredited and to make sure all of its analysts are certified. (It isn't clear who would do the accrediting and certifying.) The bill would also provide funding for scientific research into the various forensic fields to establish best practices and standards and to ascertain the scientific validity and accuracy of those fields. The North Carolina legislature is considering a bill that would create an advisory panel to oversee the state crime lab. The bill also would make it a felony for a crime lab worker to willfully withhold exculpatory information. The fact that such misconduct is not already considered a crime speaks volumes.

These laws would help ensure that only forensics backed by science gets into the courtroom, and they would at least cut down on blatant corruption in crime labs. But the main problem driving nearly all the recent forensics scandals is a built-in bias in favor of winning convictions. In too many jurisdictions, medical examiners report to the attorney general or to the state official who oversees law enforcement. In states like Mississippi, where for most of the last 25 years prosecutors contracted criminal autopsies out to private doctors, the incentive for medical examiners was to produce results beneficial to the prosecutor's case. If they brought back results the prosecutor did not like, they risked losing future referrals. As I've reported during the last several years, that system produced the travesty of justice that was Steven Hayne, a physician who testified in thousands of cases despite serious questions about his qualifications, credibility, and practices. But if it hadn't been Hayne, it would have been someone else.

Although states where medical examiners work directly for the state are better, incentive problems still exist. There is always pressure, blatant or implied, to deliver results the state needs to win a prosecution. That does not mean all or most or even a significant percentage of medical examiners are corrupt. But having a medical examiner and his staff ultimately report to the head of a law enforcement agency introduces subtle pressures that can influence even the most conscientious doctors.

The pressures can be even greater for serologists, ballistics experts, fingerprint analysts, and other nonmedical forensic experts, many of whom are actually sworn law enforcement officers. In a 2008 paper (PDF) published by the Reason Foundation (which publishes Reason magazine and, Roger Koppl, director of the Institute for Forensic Science Administration at Farleigh Dickinson University, explains the myriad ways in which unintentional bias can creep into an analyst's work.

In an article that appeared in the January 2002 California Law Review, for example, a research team led by Seton Hall law professor Michael Risinger identified five stages of scientific analysis that can be corrupted by unintentional bias. They include how the analyst observes the initial data, how he records the data, how he makes calculations, and how he remembers and reinterprets his notes when preparing for trial. Koppl also cites a 2006 British study by researchers at the University of Southampton who found that the error rate of fingerprint analysts doubled when they were told the details of the case they were analyzing.

Establishing blue ribbon commissions, best standards and practices, and various oversight boards won't do much to combat cognitive bias. It is not even clear these steps will prevent outright corruption. In Mississippi, professional groups such as the National Association of Medical Examiners (NAME) received numerous complaints about Steven Hayne, going back at least to the early 1990s. They did not act until 2009, despite the fact that Hayne routinely, flagrantly, and admittedly violated NAME's guidelines. The North Carolina crime lab was accredited by the the American Society of Crime Laboratory Directors' Laboratory Accreditation Board, which failed to notice a litany of repeated violations.

The best way to begin mending the problems with the forensics system is to fix the incentives, aligning them so analysts are rewarded only for sound, scientifically supported work and punished for allowing their work to be influenced by bias, intentional or not. Koppl makes several specific recommendations in his paper for the Reason Foundation, which he and I summarized in a 2008 Slate article. The most important changes are taking state crime labs and medical examiner officers out from under the control of state law enforcement agencies and introducing a system of "rivalrous redundancy" for forensic analysis. To its credit, the Mississippi legislature is considering a bill that would have the state medical examiner report to an independent board of supervisors. Unfortunately, while the North Carolina bill changes the name of the state crime lab, it still puts the lab under the control of the State Bureau of Investigation, a police agency.

Rivalrous redundancy is in some ways a more drastic reform, but it also makes a lot of sense. The idea is to send every three, four, or five pieces of testable evidence in criminal cases to a private lab in addition to the state lab. With medical examiners, every three or four autopsies would be reviewed by a private forensic pathologist. This system would also create more work for certified forensic pathologists; part of the current problem is that there are not many independent forensic pathologists because most forensic autopsies are done by government officials, which keeps salaries low and available positions spare.

Under a system of rivalrous redundancy, state workers would not know which of their tests were being reviewed by analysts in private practice. Koppl suggests creating an independent evidence-handling office to coordinate the redundancy tests. Ideally, the tests would be rotated among several private labs. This system would eliminate the perverse incentives that plague state forensics labs. A private lab's incentive would be to discover mistakes made by the state lab. Uncovering those mistakes would enhance the private lab's reputation and prestige. State lab workers could concern themselves only with sound analysis. The incentive to please police or prosecutors would be overwhelmed by the knowledge that an independent lab would be reviewing their work. Their main incentive would be to avoid embarrassing mistakes.

All of this would of course cost money, making the idea a tougher sell in the current fiscal environment than it was when Koppl first suggested it several years ago. But as Koppl points out in his paper, wrongful convictions are also enormously expensive. Taxpayers foot the bill for the initial erroneous investigation, trial, and conviction, the cost of defending that conviction on appeal and in post-conviction proceedings (in most cases, they also foot the bill for the wrongly convicted person's defense), the cost of compensating the wrongly convicted defendant, and then the cost of a second investigation and, if the real culprit is caught, a second trial and round of appeals. Koppel estimates that the cost of just a couple of wrongful convictions would more than pay for the implementation of his proposals.

But the cost of getting the incentives right really should not be an issue. The government's primary responsibility is to protect our rights and safety. Police, prosecutors, courts, and jails are all legitimate functions stemming from that responsibility. But so is ensuring that the people the government puts in prison are actually guilty of the crimes for which they are being punished.

Original report here

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Sunday, March 20, 2011

MD: Jury awards $11.5M to family of man killed by Prince George's police officer

A Prince George's County jury has awarded $11.5 million in damages to the widow and son of a man fatally shot by a county police officer in 2008.

The month-long civil trial came to a close Wednesday, with the jury ruling that off-duty police officer Steven Jackson acted with malice, not in self-defense, when he shot and killed Manuel de Jesus Espina inside a Langley Park apartment complex where Espina lived and Jackson was working as a part-time security guard.

On Aug. 16, 2008, Jackson, 27, a seven-year veteran on the police department, had observed Espina, 43, drinking in public before he followed him into the apartment complex and shot him once after the two got into a physical struggle, attorneys said.

The jury decided that Jackson did not act in self-defense; that he assaulted, battered and caused the wrongful death of Espina; and that he violated the constitutional rights of Espina's son, who was arrested after the shooting and charged with assault against a police officer, said one of the Espina family's attorneys, Steven Vinick. Those charges were dropped in October 2008.

The jury awarded only compensatory damages, not punitive damages, to Espina's widow, Estelan Concepcion Espina-Jacome, and son, Manuel de Jesus Espina-Jacome, who now live in Silver Spring.

Jackson remains on administrative duty with the county police department, confirmed acting Prince George's County Police Chief Mark A. Magaw, who declined to comment about the case because investigation is ongoing. The county police department has turned over its internal investigation of the case to the county state's attorney, which is now working with federal prosecutors to determine if any criminal charges will be filed against Jackson, officials said.

Attorney Daniel Karp, who is representing Jackson and the county, said he plans to appeal the jury's decision because evidence that Circuit Court Judge Albert W. Northrop allowed in the trial was prejudicial in Espina's favor, he said.

Testimony about Espina's immigration status and that he had a knife in his pocket during the struggle was not allowed in court while Northrop allowed information about a prior use of force allegation filed against Jackson, Karp said. Vinick declined to comment about the immigration status of Espina, a native of Guatemala, at the time of his death.

"The combination of those two things prevented the jury from having an actual assessment of why Mr. Espina would do as he did and resist arrest by police," Karp said.

Karp said Jackson shot Espina once because he felt his gun was going to be taken from him during the confrontation.

On the afternoon Espina died, he was hanging out with several friends and having a beer on the stoop of an apartment, said one of the Espina family's attorneys, Timothy Maloney, during trial. Jackson went to confront the men about drinking openly in public and chased Espina inside, beating Espina with his baton and spraying him with mace, Maloney said. Espina sustained more than 14 injuries from being hit before he was shot, said Maloney, adding that no witnesses saw Espina fight back against Jackson.

"The jury's award recognizes the outrageous police misconduct in this case and its impact upon the Espina family," Maloney said in a statement. "The facts in this case should shock the conscience of the county and raise the question of who is policing the police."

A second county officer, Eric Freeman, who was also named in the lawsuit was dismissed as a plaintiff in the case before the verdict was read, Vinick said. It was alleged that Freeman had falsely arrested and maliciously prosecuted Espina's son to bolster Jackson's version of events leading up to the shooting, according to the lawsuit.

Vinick said it was determined that Freeman had not been responsible for any wrongdoing. County police were not able to determine by The Gazette's deadline whether Freeman was also placed on administrative duty.

Original report here

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Saturday, March 19, 2011

State of the police state: Dallas

Libertarians keenly aware of the burgeoning police state are likely aware of websites like Cop Block, Cop Fails, Filming Cops, War on Cameras, Botched Military Police Raids, Photography is not a Crime, and Injustice Everywhere, among many others, which attempt to track the nationwide violence committed by police against citizens.

A Dallas cop made his debut on Cop Block earlier this month for his crimes of kicking, pepper spraying, and using a flashlight to club an already subdued and handcuffed suspect.

The suspect was guilty of the terrifying rules-breaking act of driving with a suspended license. No mention has been made as to whether he committed any actual crime of coercion, intimidation or fraud against anyone.

But the issue here isn’t about whether the suspect was right or wrong, guilty or innocent, compliant or combative.

The issue is about out-of-control, unprofessional bullies hiding behind badges to commit their violence like Catholic priests hiding behind their collars to molest young boys.

According to Fox 4 News, veteran officer Ricky Upshaw witnessed the abuse and immediately reported it. Quaitemes Williams, the offending officer, was fired and then arrested on charges of official oppression.

Once upon a time we may have had friendly, helpful neighborhood cops like Sheriff Andy of Mayberry or Bert in Bedford Falls.

Once upon a time people may have been able to claim that our law officers were brave and honorable people facing the possibility of death every day to keep us save and a cop like Officer Williams was just one bad apple in a barrel full of great public protectors.

Or maybe those days were just fantasies. Ask peaceful civil rights marchers or passive anti Vietnam War protesters or nonviolent gay rights demonstrators if they were clubbed and beaten by one bad apple.

As more clueless politicians create ever more laws designed to micromanage our lives and more police academies pass unqualified bottom of the barrel thugs through the system to enforce those laws things will continue to get worse.

Anyone invoking the One Bad Apple cliché in defense of today’s bullies in blue needs to wake up and smell the tear gas.

Original report here

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Friday, March 18, 2011

Julian Heicklen: sometimes you just can’t get arrested

Julian Heicklen, veteran libertarian rights activist, went to Orlando FL with good intentions; he wanted to get arrested for distributing jury rights pamphlets outside the Orange County Courthouse in defiance of Chief Judge Belvin Perry's orderagainst distributing jury rights pamphlets outside the Orange County Courthouse.

As explained in an earlier Libertarian News Examiner article, the judge considers providing literature such as Fully Informed Jury Association (FIJA) information to anyone who might conceivably become a juror to be an act of jury tampering.

"The issue is a First Amendment issue," Heicklen told an Orlando Sentinel reporter. "It has nothing to do with jury nullification. The immediate issue to be resolved is: Do I have the right to stand out there and pass out any literature?" He then added, "I mean if he ordered me not to hand out lollipops, I'd be there."

But instead of being surrounded by cops he was surrounded by media reporters. As has happened in the past, authorities become reluctant to enforce an unpopular law against a 79-year-old man while reporters, cameras and witnesses are present. A sampling of commentary from the freedomsphere:

"Looks like nobody wants to enforce the unlawful 'order' in Orlando."

"Julian is badass - an individual who stands for what he believes in."

"Julian is a superhero."

"God Bless Julien Heiklen!"

"Julian did not get arrested and will probably return to the courthouse Monday morning to break the order again."

Heicklen may have summed up his pamphleting efforts earlier in the day. "When you want to get arrested it's not so easy."

Original report here

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Thursday, March 17, 2011

16-year-old with his hands in his pockets was smashed through shop window by British police officer

This is the shocking moment a police officer was caught on camera pushing a 16-year-old teenager through a window. Walking with his hands in pockets and away from officers the youngster can be seen being violently grabbed before being thrust into a shop front just off camera.

As the camera operator struggles to record the incident officers seem to turn round in surprise at the ferocity of force used before rushing to the scene.

The damning footage has led to Metropolitan Police officer Marcus Ballard being found guilty of common assault at City of Westminster Magistrates' Court today. The court heard how Ballard was found to have pushed Onyeka Obi through the window during a controversial stop and search on a south London street last year.

PC Ballard approached Obi on Bromley High Street on February 27 2010 after his group became involved in an argument with a bus driver

Ballard, 29, was on duty with the Territorial Support Group (TSG) when he arrived to assist officers from Bromley. The TSG officers were informed by their colleagues that their help was not required but were asked to remain in the area.

Shortly after, two young women approached the vehicle carrying the TSG and spoke to an officer. The women expressed concern about two young men walking behind them, Obi and one of his friends. This prompted PC Ballard and a colleague to exit the carrier to stop and search them.

CCTV gathered by the CPS and Independent Police Complaints Commission (IPCC) showed Obi with his hands in his pockets and not acting in a threatening manner as Ballard approached him. Ballard then grabbed the 16-year-old by his arm to turn him around, before forcibly pushing him backwards towards a shop window.

The CCTV showed the victim's head moving in a 'whiplash' fashion with the force of the push and a witness described him being lifted off his feet and forced backwards towards the shop window. Fortunately Obi did not sustain serious injury.

The judge at City of Westminster Magistrates' Court commented that she preferred the evidence of Mr Obi and concluded there was no reason for Ballard to have grabbed him and propelled him backwards.

On a separate count of common assault, the officer was found not guilty of using excessive force when he initially grabbed Onyeka's arm. Ballard is due to be sentenced on Friday.

IPCC Commissioner Mike Franklin, said: 'As a police officer PC Ballard is entitled to use force where necessary to defend himself and members of the public. 'However, the CCTV and witness evidence clearly shows he had no need to be aggressive - the teenager posed no threat to him or others. 'Despite the teenager having his hands in his pockets PC Ballard forcibly grabbed and then pushed him towards a shop window.

'The officer has made the already difficult task of gaining public confidence in stop and search that much more difficult. 'I would like to highlight the work done by our investigators with the victim and other young witnesses.

'It is not easy to gain the trust of young people, who often feel they do not have a voice, especially when it comes to challenging those who are in authority. I wish to thank these young people for their courage in giving evidence. 'I hope this case gives young people the confidence to engage with the complaints system and police forces so their experiences can help improve how sensitive procedures like stop and search are performed.'

Original report here

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Wednesday, March 16, 2011

A disturbing video about Australian police

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Tuesday, March 15, 2011

Australia: Coverup cops walk free

Queensland's police complaints whitewash tribunal of the Joh era was notorious and was finally closed down by the Fitzgerald enquiry -- but the cops have found a way to re-create it

THE failure of police to conduct a proper investigation into the 2004 death of Palm Islander Mulrunji Doomadgee at the hand of a veteran policeman will not lead to disciplinary charges, with Queensland's anti-corruption watchdog powerless to take court action against any of the officers involved.

Crime and Misconduct commissioner Martin Moynihan QC will today announce he is unable to challenge a decision by the Queensland Police Service to reject the watchdog's recommendation for disciplinary action against six officers involved in the now discredited investigations.

The decision of police Deputy Commissioner Kathy Rynders to reject the CMC's recommendations and instead find that the officers face only "managerial guidance" is understood to have created a legal loophole that prevents a court appeal. The CMC can seek to overturn the decision only if it is in the formal police disciplinary process.

Civil liberties lawyers last night called for an independent review of the police disciplinary process in Queensland. "The police complaints system has broken down," Australian Council of Civil Liberties president Terry O'Gorman said. "The need is exemplified by the fact that it has taken six years and still it is unresolved as to whether the circumstances of Mr Doomadgee's death was properly investigated."

Mr Moynihan last year warned charges would be filed directly in Queensland's Civil and Administrative Tribunal against the six officers if he was unsatisfied with the response of Police Commissioner Bob Atkinson to a CMC report into the watchhouse death. The damning report echoed the findings of Deputy State Coroner Christine Clements in slamming the initial investigation as lacking "transparency, objectivity and independence".

The CMC said Mr Atkinson needed to take responsibility for a "corrosive culture" that led to the "seriously flawed" Doomadgee investigation, and several other high-profile misconduct cases.

It recommended four officers -- who led the investigation -- face disciplinary action for alleged misconduct, with the two senior officers -- handpicked by Mr Atkinson to review the initial investigation -- also face disciplinary action.

After a series of court challenges about the report, Ms Rynders reported to the CMC in January rejecting the disciplinary recommendations and finding that the officers should only receive "managerial guidance". That decision cannot be challenged.

Doomadgee's violent death, within an hour of being arrested for public nuisance by Palm Island police boss Senior Sergeant Chris Hurley, sparked riots during which the police station servicing the Aboriginal community off Townsville was burnt down. Sergeant Hurley was acquitted in 2007 of Doomadgee's manslaughter.

Original report here. (Via Queensland Police)

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Monday, March 14, 2011

In California, the wrongly convicted are rarely compensated

How much is a day of your life worth? Fifty dollars? A hundred dollars? A thousand? How much is your liberty worth, your freedom to work, travel, and spend time with loved ones?

In California, the state's victim compensation board is authorized to award up to one hundred dollars a day for every day that an innocent person spends behind bars after a wrongful conviction. But according to a recent report by Marie C. Baca of California Watch, only a few of California's wrongfully convicted are ever compensated by the state.

Since 2000, 132 former inmates have filed claims for compensation after new evidence overturned their convictions. Only eleven have received compensation. Of the remaining 121 claims, 56 were rejected without a hearing and 44 were denied compensation after receiving a hearing. Seven other claims were withdrawn, and fourteen are awaiting a hearing.

According to Jeff Chinn, assistant director of the California Innocence Project, a non-profit legal clinic in San Diego, which handles claims for the wrongfully accused: "The whole process is a mess. Our clients are asked to prove things far beyond what is reasonable." He also says that the board's standards are so subjective and inconsistently applied that "basically no one knows what it takes to be successful."

Take the case of Jeffrey Rodriguez. A young man in his mid-twenties, Rodriguez was standing in line at the Department of Motor Vehicles when the victim of an auto parts store robbery the previous day identified him as the perpetrator. He spent over five years behind bars before he was released in 2007 after a Santa Clara County Superior court judge ruled Rodriguez factually innocent and expunged his conviction and arrest.

In 2009, when Rodriguez applied for compensation from the state, his claim was denied by a three-person panel, at least in part simply because the robbery victim still believed that Rodriguez was the perpetrator. This, despite the victim's changing description of the robber, who was first described as clean-shaven with a hooded sweatshirt, then described as not clean-shaving and wearing a leather jacket.

Despite a judge's official declaration of factual innocence, Rodriguez didn't meet the first of three criteria the state requires for compensation- that the claimant actually did not commit the crime in question. The other two are that the claimant did not contribute to their own arrest by professing guilt for the crime, and that they experienced financial damages as a result of their incarceration. Innocence Project supporters argue that the third criteria is nearly always the case, as a majority of the wrongfully convicted cannot find jobs after spending years behind bars.

Overall, the criteria make sense. Obviously, claimants should actually be innocent in order to receive compensation from the state, and if they were actually responsible for their own incarceration by making an uncoerced confession of guilt, it hardly seems fair to make taxpayers responsible for compensating them. But the third criterion implies that the only damage a person can suffer is financial damage, an implication that contradicts countless other statutes and principles in U.S. and California law, both criminal and civil.

In the case of Rodriguez, Californians need to assess whether or not the state compensation board's standards might not be too strict or subjective. In the justice system, policies should be consistent, reasonable, and fair.

Original report here

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Sunday, March 13, 2011

A wrongful conviction of a whistleblower in Australia

The Australian Federal police withheld exculpatory evidence after their laziness was exposed to the media

WHISTLEBLOWER Allan Kessing may have been wrongly convicted after critical information was withheld from his defence lawyers and never presented to the jury.

After reviewing the information that was withheld from Mr Kessing's legal team, criminologist Paul Wilson said the former Customs officer's criminal conviction "would clearly fall into the category of a wrongful conviction".

Mr Kessing was convicted in 2007 of breaching section 70 of the Commonwealth Crimes Act by leaking to The Australian long-ignored reports revealing criminality and flaws in security at Sydney Airport.

Professor Wilson said the information that was withheld during the trial meant the conviction "appears to be based on flawed and inaccurate circumstantial evidence and, at that stage, an ignorance of the Customs investigations" into the leak.

Professor Wilson is chair of criminology at Bond University and co-convenor of the nation's first university course on miscarriages of justice. He was speaking after examining a letter about the leak that was sent from Customs to the Australian Federal Police on June 1, 2005, the day after details of the Customs reports appeared in this newspaper.

That letter, which carries a "received" stamp, was addressed to federal agent Fiona Drennan of the AFP's transnational crime co-ordination centre. It has been supplied to Mr Kessing by a person he describes as "a wellwisher".

Barrister Peter Lowe, who represented Mr Kessing during his trial, said the information in the letter could have been used to support Mr Kessing's argument that somebody else leaked the reports to The Australian.

The letter was written by Geoff Lanham, who managed the Customs internal affairs unit, and outlines his unit's investigation of the leak. He told the AFP that Customs believed "at least two" Customs officers with knowledge of the reports had unlawfully provided information to this newspaper.

The letter outlines dates and circumstances in which reporters from The Australian and another organisation, who both had knowledge of the leaked reports, stated they had more than one source inside Customs.

Mr Lowe said the letter should have been made available during Mr Kessing's trial. Had he known of its contents, he would have run Mr Kessing's defence very differently. "I would have gone in hard on the potential for a second source, that is, a source other than Allan, and that one or more people who gave evidence -- and didn't disclose it -- may have been lying," Mr Lowe said. He said the fact that Customs believed there was a second source had never been revealed.

There is no suggestion that Mr Lanham, who is no longer employed by Customs, or agent Drennan were responsible for preventing the information in the letter being conveyed to Mr Kessing's lawyers.

Professor Wilson said Mr Kessing's consistent argument that he was not responsible for the leak to The Australian "gains enormous credence as revealed by the contents of this letter".

This is the second time information that was withheld from the jury has come to light about the Kessing case.

In September 2009, Mr Kessing revealed one of the factors behind his decision not to give evidence during the trial. While continuing to deny he leaked the reports to The Australian, he said he had secretly provided access to one of the reports to solicitor Nathan Cureton, a staff member who had been employed in the Sydney office of Labor frontbencher Anthony Albanese, who is now Infrastructure Minister. Mr Kessing had hoped in vain that Mr Albanese would use parliamentary privilege to expose security flaws at Sydney Airport.

The meeting with Mr Cureton took place in April 2005, about two months before details of the reports were published in The Australian. Mr Kessing did not take the stand at his 2007 trial over the leak to The Australian in order to ensure his leak to Mr Albanese's office remained secret. Despite his public disclosure in 2009 of the leak to Mr Albanese's staffer, Mr Kessing has never been questioned about the incident by the AFP.

Details of the leak to Mr Albanese's office and the belief by Customs that there were two sources for The Australian's report was not available to the NSW Court of Criminal Appeal in December 2008, when it rejected Mr Kessing's appeal.

Judge Virginia Bell, now of the High Court, ruled that, while part of the trial judge's instructions to the jury had been wrong, this error was not enough to undermine the "powerful circumstantial case" against Mr Kessing.

Professor Wilson said the inaction by federal authorities over the leak to Mr Albanese's staffer "raises the question as to why not?" "Is there a concern that any prosecution would inevitably involve a minister in the Gillard government?" he said.

The Lanham letter reveals Customs tried to piece together background information about the leak to The Australian with assistance from the agency's corporate communications staff.

The letter shows corporate communications officer Simon Latimer provided the internal affairs unit with details of remarks made by reporter Martin Chulov on Sydney radio station 2GB on May 31, 2005, the day his article was published in The Australian. Mr Latimer reported to internal affairs that Chulov had said "information was coming to him from two Customs sources".

The Lanham letter contains details of talks between Norm Lipson, a contract journalist for Women's Day, and corporate communications officer Zoe Ayliffe. Lipson contacted her on May 16, 2005, saying he was writing on airport security and had information "from a couple of sources" inside Customs. He had asked questions about drug courier Schapelle Corby and if two reports had warned about corrupt baggage handlers, the letter says.

Mr Lanham told the AFP he believed Lipson did not have copies of the reports. But he believed Lipson had been unlawfully supplied with information about the reports by "an unknown Customs officer". The letter does not reconcile this reference to a single Customs officer with Lipson's statement he had "a couple of sources".

Mr Lanham wrote he believed Chulov and his co-author Jonathan Porter had obtained information from "at least two Customs officers", one of whom was said to have given Chulov a document. The letter has emerged as the federal government faces pressure from independents Andrew Wilkie and Nick Xenophon.

Mr Wilkie raised the question of a pardon with Julia Gillard during a 45-minute meeting on February 8, almost 18 months after Senator Xenophon began a series of letters to Home Affairs Minister Brendan O'Connor seeking a pardon for Mr Kessing.

Asked about the outcome of the talks, the Prime Minister's spokeswoman said: "The minister for home affairs is the minister responsible for the consideration of pardons."

Senator Xenophon's first letter to Mr O'Connor seeking a pardon for Mr Kessing is dated October 1, 2009. It said Mr Kessing was unable to pay for a High Court challenge and unable to endure the strain of more legal action. Senator Xenophon said he was "disgusted" the letter to the AFP had been withheld from Mr Kessing's legal team.

Professor Wilson said it was clear that Mr Kessing had leaked the report "but not to The Oz". "Even assuming that he did leak to The Oz, as well as Albanese, Kessing in my view is a hero -- his motives were entirely in the public interest, may well have led to changes in airport security that saved lives and exposed a potential criminal culture among some segments of personnel working at airports.

"His financial devastation for acting in the public interest and his present legal position is an appalling indictment on a government that says it respects human rights and justice," Professor Wilson said.

Original report here. (Via Australian police news)

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Saturday, March 12, 2011

Police aggression during Australian floods

Reminiscent of the Danziger bridge incident in New Orleans after hurricane Katrina

Ask Atum Weber what happened to his face and he replies, "I was mugged by the Queensland Police". Mr Weber, 40, a resident of Bardon, and another friend, Scott Cooper, 38, a Sunshine Coast father of three, said they were surprised by a group of police officers while taking a late-night stroll through the flood affected area of Rosalie in the early hours of Thursday 13 January.

Mr Weber claimed police choked him to the point of unconsciousness, punched him in the kidneys repeatedly and slammed his face into the concrete footpath more than seven times during a half hour ordeal before being taken to the Brisbane City Watchhouse and being charged with 'resisting arrest' and 'assaulting a police officer'.

Mr Cooper said he was punched in the face by a senior officer after calling out for assistance. He was later charged with two counts of 'obstructing police'.

The two men and another female friend had driven to the area to check out the floodwaters after an evening spent socialising with friends. They had decided like hundreds of other 'rubberneckers' to take a look at the large pool of floodwater which inundated Nash St, the main shopping strip in the inner-western suburb of Rosalie. "We, weren't drunk, we were sober, calm – just having a good time," Mr Weber said.

"We looked at the water and talked to the cop (stationed near the flood water). It was all good, no problem, so we thought let's go home now. As I was walking along the footpath I came to a treed area (at the corner of Nash and Beck Streets) and then out of the shadows, because it was all dark, somebody grabs me," he said.

Mr Weber said he wasn't aware that the figures were police until after they had begun the alleged attack. "I was just freaked out. People were grabbing me and I say 'Can you remove your hands from me, you are assaulting me', and they go 'This isn't assault mate.' By this time I saw they were police, but I didn't really believe they were doing this without introducing themselves or without questioning us or anything else," he said.

“I moved towards a tree or a post or something, and I grabbed it because I didn't want to be hurt, so we could negotiate. I'm going 'What's going on? What do you want?'

"They kept saying 'Shut up' and 'Stop resisting'. Then this male officer pulls my hair back from behind, a big guy, and puts this forearm choke-hold straight across (points to throat) and I could tell right away he had effectively applied a choke, because it cut off blood supply to my brain, I could feel it right away, and within a few short seconds I lost consciousness."

Mr Cooper also said he didn't know who the figures shining torches who emerged from the shadow of the trees were. "There were torches and there were people and I couldn't honestly say whether they said police or not but the next thing I know they had Atum on the ground and were beating him," Mr Cooper said.

Mr Weber described coming to face first on the concrete with his hands cuffed behind his back with several officers pinning him down, with one punching him repeatedly in the kidneys.

He said he tried instinctively to stand up, which caused the officers to bend his wrists back and pull his arms upwards, causing him "extreme pain", before grabbing by the hair and pummelling his face into the ground.

"Somebody pulled my head back, while they had their knee on my back, then smashed my head into the concrete, pulling it back and smashing it repeatedly. There was also a continued rain of blows to my kidneys," he said.

Mr Weber said he had his head smashed into the ground between seven and ten times in two lots of blows by a female officer, once after trying to get up and the other when he failed to supply his name. "When she asked my name and I said 'Please, just remove the pain and I'll be able to tell you my name, I'll tell you anything you want' she goes 'Your wasting my time, tell me your fucking name!' and then she started smashing my head into the pavement some more," he said.

Mr Weber said he was kept on the ground for around 15 to 20 minutes before eventually being thrown roughly into a paddy wagon along with Mr Cooper.

Mr Weber said he plead constantly during his ordeal with the officers to stop hurting him, even asking his friend Mr Cooper, who had by this time been detained with his hands cuffed, for help. "I was sitting on the ground with my hands cuffed behind my back while Atum's being assaulted. I counted at least nine police in the group," Mr Cooper said.

"He's saying 'Scott, they're hurting me.' I told him 'I can't help you Atum, they've got me in cuffs...' I wanted to do something so I started yelling out 'Help, help, we're being assaulted!' "They told me to shut up or I'd wake the neighbours. I said 'Yeah exactly...' and yelled twice as loud 'Help, help, we're being assaulted by the Queensland Police!'"

Mr Cooper said that after yelling this that a senior officer leant down and punched him "right in the face."

Both the men said they were astonished by how agressive and "amped up" the police were, with Mr Weber speculating the alleged beatings may have been some sort of "vengeance deal" for him asking an officer they encountered earlier to show his ID.

Mr Weber said they first encountered a police officer as they turned the corner of the sidestreet they had parked on and heading towards the flooded area. "When we had gotten out of the car and turned the corner there was a man shining his torch, it turns out he was a police officer but we couldn't see anything because it was completely dark," Mr Weber said.

"I think my friend (Mr Cooper) said, 'Can you show me your ID?' It might be an unusual thing to say to the police, but that's what he said. Then the guy showed him his ID and walked off."

"Someone was shining a torch into our eyes and as far as I remember he said 'Police'. It was very dark as the streetlights were out so I asked him to show me some ID. He flashed his torch at his ID on his belt, then there was a strange pause and he walked off," Mr Cooper said. "Later on after I'd been punched one (police officer) came up shining his torch in my face and said 'Remember me dickhead?' "Then he shone his torch on his face and said something like 'I'm the officer you saw before. Not so smart now are you?'"

Queensland Police released a statement on Tuesday saying that the trio were "behaving aggressively" towards the "lone police officer". "Additional police attended and consequently two men were arrested for obstructing police. Whilst one of the men was handcuffed he assaulted a female police officer," the statement said. [Very likely!]

Mr Cooper posted a note on Facebook last Thursday detailing the allegations of abuse. He said since then a lot of people have raised the possibility that the police mistook them for looters, one he denies. "At no stage did anyone mention anything about looting. We were carrying no bags, we didn't have torches and the police found nothing illegal on us," he said.

The pair will face court in February.

Original report here. (Via Australian police news)

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Friday, March 11, 2011

British police officers keep their jobs despite refusing to respond to emergency call as woman was knifed to death

They were too busy house-hunting

PC Frater

A woman was stabbed to death in front of her teenage son as two police officers in the same village ignored calls to attend the incident. Louise Webster was knifed three times by long-term partner Martin Ashby, 46. A jury was played a harrowing 999 call made by Aaron Williams, 18, as his mother lay dying.

But although GPS signals placed PC Ron Frater and a second, less experienced officer, in Roade, the pair refused to attend. They said they were part of an anti-prostitution operation in Northampton, seven miles away, and their inspector would not wish them to divert from their task.

The officers said they had followed a suspicious car from the town centre to Roade, but had been unable to write down its registration number.

An investigation discovered that the pair failed to record anything in their notebooks about the anti-prostitution exercise or any other police incident in the six hours they had been on duty.

And PC Frater admitted travelling to Roade the previous night to look for houses for sale when he should have been working in Northampton.

A source with knowledge of the case told the Daily Mail that it is believed PC Frater decided to return to the village to continue house-hunting when the 999 call came in. His colleague is thought to have agreed to accompany him.

They have been handed final written warnings for ‘gross misconduct’. The scandal emerged in a report into the case published yesterday by the Independent Police Complaints Authority, which branded the officers’ conduct ‘deeply disturbing’.

Ashby was jailed for life on Friday and ordered to serve a minimum of 15 years. During the 999 call, Ashby could be heard saying Miss Webster, 40, ‘deserved it’, as her son begged him to put down the knife.

But when the two officers refused to attend, paramedics were left waiting outside the house for their own safety – as Ashby wandered in the street – for five minutes until the next closest officer arrived.

The IPCC investigation also established that the officers ‘were not prohibited by the inspector from responding to emergency calls’, something which ‘they would have been aware of’. No evidence could be found to prove or disprove the claim that they had followed a suspicious car to Roade.

Medical experts said Miss Webster, a mother of three, suffered such grave injuries that she would have died even if PC Frater and his colleague had attended. But they would have been able to detain Ashby and assisted her son, who ‘remained in potential jeopardy’, the IPCC said.

IPCC Commissioner Amerdeep Somal said: ‘The police work to protect the public and preserve life. I find it deeply disturbing that these two officers, who were in the immediate vicinity, chose to ignore these basic but fundamental principles.’

Northamptonshire Police Deputy Chief Constable Suzette Davenport said: ‘We fully accept the findings of the IPCC and the recommendations that were made.’ She apologised for the ‘distress’ caused to Miss Webster’s family.

Original report here

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Thursday, March 10, 2011

Ex-prosecutor may face disbarment

Regulators asked the District of Columbia's highest court Tuesday to strip a former federal prosecutor of his law license for his "illegal and unethical" conduct during a series of high-profile murder cases in the mid-1990s.

If the D.C. Court of Appeals decides to disbar former assistant U.S. attorney G. Paul Howes, it will be the first time in at least a decade that judges anywhere in the USA have disbarred a federal prosecutor for ethics violations in a criminal case. Disbarment is the most serious punishment that state officials in charge of policing legal ethics can impose on a lawyer.

A USA TODAY investigation last year documented 201 cases since 1997 in which courts found that federal prosecutors had violated laws or ethics rules. Although the abuses represent a small fraction of the tens of thousands of cases filed in federal court every year, each was so serious that judges overturned convictions or rebuked prosecutors for misconduct.

Even so, USA TODAY found, the prosecutors faced little risk of being punished: Only six federal prosecutors faced any type of discipline from the state offices that oversee legal ethics, and none was disbarred.

Tuesday's hearing came 15 years after Howes was first accused of misusing thousands of dollars of witness vouchers in high-profile homicide cases here. The vouchers are supposed to be used to reimburse witnesses for costs associated with testifying in court, but Howes authorized payments to relatives and girlfriends of informants, an internal Justice Department investigation found.

The informants helped him in an investigation of a gang implicated in a series of murders in a neighborhood 3 miles from the White House. As a consequence, the Justice Department agreed to significantly reduce prison sentences for seven convicted murderers.

Elizabeth Herman, the district's deputy bar counsel, urged judges Tuesday to deal sternly with conduct that did "tremendous harm to the criminal justice system." She said that if prosecutors here are disregarding their ethical duties, disbarring Howes "would be an important message to send to that office."

Howes' lawyer, Paul Knight, said Tuesday that what Howes did was not improper. "This is the way the United States attorney's office puts together cases. ... It's a common practice. Homicides are solved all the time that way," he said. He said Howes was a "public servant who worked night and day for the District of Columbia."

The Justice Department's internal investigation concluded in 1998 that Howes committed misconduct. Bar investigators did not become aware of the issue until 2002. Pace University law professor Bennett Gershman said the delays in hearing the Howes case show that "bar discipline is not very effective" for deterring prosecutorial misconduct. He said it might not be fair to disbar Howes so long after the alleged misconduct took place.

The Justice Department declined to comment. The court is likely to reach a decision this year.

Original report here

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