Killer driver freed in Australia despite long record

Theresa Johnson dreads July 12. That is the day her son's hit-and-run killer, a proven menace on Queensland's roads, is due to walk free after serving only six months in jail. When Joseph William Sole, 21, illegally climbed behind the wheel of a white Mitsubishi Triton on December 30, 2004, he wasn't deterred by the risk of getting caught. In 12 months, he had racked up 12 driving offences, including speeding, unlicensed driving and driving an unregistered vehicle and received a range of fines and was banned from the road.

But he treated such punishments with disdain until he ploughed into Shaine Johnson, 21, on a Gold Coast road. His car struck Shaine as he was crossing the road, catapulting him about 15m into a parked car and killing him instantly. Her son's death was the beginning of Theresa Johnson's torment.

Shaine's is one of the worst of several cases identified by a special investigation by The Courier-Mail into how repeat dangerous drivers flout the law. It has revealed millions in fines, including some on dangerous drivers, have remained unpaid for years. Months after striking Shaine, Sole crashed the vehicle he was driving and was charged with yet another batch of offences. But the system again benefited the perpetrator, not the victim.

Sole's lawyers had the second set of charges – from March last year – heard before he faced court over Shaine's death. This meant the magistrate could not take the killing into account when dealing with those charges. He received $1000 in fines and was banned from driving for 30 months. But when he faced court in January this year over the fatality, the second set of charges could not be considered because the offences happened after Shaine's death. If the two matters were heard together Sole could have faced a tougher sentence.

Mrs Johnson said that when she identified Shaine at the morgue "there was nothing left of my son". "He took my son's life. He should have got at least 10 years (jail). I will never forgive him," she said. "I hope for the rest of his life, on Thursday night at 10 o'clock he (Sole) remembers what he's done."

Sole, facing court over Shaine's death, pleaded guilty to failing to stop and remain at an accident, driving without due care and attention, and disqualified driving. A Coolangatta magistrate handed down the maximum sentence applicable: two years' jail, suspended after six months.

Despite 329 people dying on Queensland roads last year – the worst toll in seven years – The Courier Mail found numerous examples where dangerous drivers continue to receive light penalties. Colin Bell, 21, of Wondai near Kingaroy, was charged with five charges of driving while disqualified in the three months from March, but his punishment was only community service, fines and an extended period of disqualification. However, Bell claims he is now a changed man because a magistrate last week threatened to send him to jail if he reoffended.

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LOOPHOLE FOR CROOKS CLOSED AT LONG LAST

Hiding evidence is ALWAYS a disgraceful procedure

A divided Supreme Court ruled Thursday that police armed with a search warrant may rush into a house without giving a required warning to the occupants and may use the evidence they find there. In a 5-4 decision, the court said it would be rash to bar evidence in a criminal trial simply because police did not wait long enough before entering, a technical violation of the "knock and announce" rule. Criminals should not be handed a "get out of jail free card" in cases where the police have a valid search warrant, said Justice Antonin Scalia, who wrote the opinion for the majority. The dissenters said the court's ruling all but repealed a decision that had protected the privacy and dignity of homeowners.

New Justice Samuel A. Alito Jr. cast the decisive vote. Justice Sandra Day O'Connor heard the case when it was argued in January but retired in February before the case was decided. At that point, the court was evenly split. The case was reargued when Alito replaced her, and he became the tie-breaker. Until Thursday, the court had usually insisted that evidence be thrown out in cases where the police violate the Constitution's ban on "unreasonable searches and seizures." This so-called exclusionary rule was among the most controversial legal developments of the 1960s, and many law-and-order conservatives continue to chafe at it. Scalia is among them. Suppressing evidence should be "our last resort, not our first impulse," he said, and his opinion was joined in full by Chief Justice John G. Roberts Jr., Clarence Thomas and Alito.

Justice Anthony M. Kennedy voted with the majority but wrote separately to emphasize that the exclusionary rule is "settled" and "not in doubt." The issue in this case, Kennedy wrote, was whether the police's failure to give a proper warning even when they had a valid warrant to enter a home, merited an extension of the exclusionary rule.

In 1995, the justices agreed unanimously that the 4th Amendment usually requires officers to knock on the door and call out "Police!" before they burst into a home. This rule helps ensure the safety of the police and the privacy of the residents, the court said then. Officers have been advised in other cases that they should usually wait about 20 seconds after knocking and announcing their presence before trying to enter a house, but the court has said in past rulings that officers may move faster if they suspect residents are going to flush drugs down a toilet.

In the current case, Detroit police admitted they did not wait long before entering the home of Booker T. Hudson Jr. They had obtained a search warrant to look for drugs and guns at his residence. On a summer afternoon in 1998, seven officers approached Hudson's house and saw nothing unusual. Several called out "Police! Search warrant!" but less than five seconds later, the lead officer turned the doorknob and walked into the living room. There sat Hudson with 23 bags that contained crack cocaine. Under the cushion of his chair, they also found a loaded revolver and five rocks of cocaine. Elsewhere in the house, police found more bags of drugs. Hudson was charged with drug and gun crimes, but his lawyers urged the judge to suppress the evidence because police had violated the "knock and announce" rule.

A prosecutor agreed the police had violated the rule, and a trial judge suppressed the evidence. But the Michigan Supreme Court disagreed and said disallowing the evidence was "not an appropriate remedy" for such a violation. Hudson appealed to the U.S. Supreme Court, which agreed last year to hear his case.

Scalia said this was not an instance where police obtained evidence by breaking the law. They had a valid warrant to search for and seize the drugs. Since the homeowner's privacy rights were not violated, "the exclusionary rule is inapplicable," he said in Hudson vs. Michigan.

The four dissenters said the requirement to "knock and announce" will be meaningless if it can be ignored and the evidence used in court. Thursday's decision "represents a significant departure from the court's precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection," wrote Justice Stephen G. Breyer.

Scalia responded that people like Hudson still have recourse against the city and the police by suing them for violating their constitutional rights. He also pointed to the "increasing professionalism of police forces, including a new emphasis on internal police discipline." These checks, he suggested, will deter the police from being overly aggressive and reckless.....

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"BRITISH JUSTICE" SUMMARIZED

By Theodore Dalrymple, a former prison doctor

A remand prisoner who was a patient of mine returned to prison one day from court after his trial. He was in a state bordering on fury. “What’s the matter?” I asked him. “They gave me three months,” he said. “Three months is no use to me. I was hoping for at least 12.” This story illustrates a little-known fact about prisoners — or British prisoners at least. About a third of them (I don’t have precise figures) prefer life inside to life outside.

The reasons for this are several. The most important is that prison provides them with boundaries to their own behaviour that they are incapable of providing for themselves. They therefore feel safer in prison than at large; they do less damage there to themselves and, more importantly, to others.

Criminals, unlike the current British criminal justice system and criminologists, know the value of punishment. Both inside prison and out, they impose their discipline by means of the threat of punishment on their colleagues, friends, family and the rest of society. It is this threat, for example, that prevents a prisoner who has been brutally attacked in jail and injured badly from revealing the identity of his attackers. If he does so, he will be considered a “grass”, a crime that carries with it a life sentence, in as much as he will be under threat of further attack by other prisoners for the rest of his career inside. Indeed, the threat can be extended to his area of residence on his release from prison.

In other words, prisoners have no doubts about the deterrent effect of condign punishment. Similarly, they have little doubt about the effects of leniency. Certain phrases have burnt themselves into my mind, so often did I hear them in the mouths of victims of a crime who failed to complain to the police about it. The perpetrator would say to them, even as he assaulted or stole from them: “Remember, I’ll be walking the same streets as you in six weeks.”

In other words, the perpetrator expected a lenient sentence that itself would be automatically halved. A sentence of six months means three; one of three months means six weeks. Early-release schemes have meant that sentences are shorter than they appear when first given: the desire to keep prison numbers under control is far more important in the mind of the Government and its bureaucracy than is protection of the public from criminals (it helps that the main victims of crime come from the poor, ignorant and unprotesting classes).

It is worth remembering, too, that short sentences and early release are not the only, or even the most important, manifestation of the leniency of the British criminal justice system. Because of the corrupting influence of performance indicators, which have rotted all branches of the British public service, it can be difficult to persuade the police even to record a crime, let alone do anything about it.

But if the police do take notice, and actually catch the perpetrator, they often deal with him administratively, by issuing a caution, rather than by charging him. This is because the work involved in charging someone is so time-consuming for the police and likely to prove ultimately unproductive: the Crown Prosecution Service will refuse to prosecute (I have known it drop charges against people who have quite clearly intended to kill, claiming that to prosecute them would be against the public interest), or if it prosecutes, the sentence at the end of the process will be so slight as to be risible, productive merely of a smirk on the face of the person thus sentenced.

Moreover, the convicted person may ask many other offences to be taken into consideration, without receiving an iota of extra punishment for having committed them, however numerous, and thereby gaining an assurance that he can never again be charged with them (the police benefit from this egregious, indeed iniquitous, system because it increases their notional clear-up rate).

It is hardly surprising, then, that the British criminal justice system is an object of contempt for criminals who are only too aware of the value of deterrence. Neither the police nor the courts are feared, except by those who are in any case law-abiding.

A few days ago, I witnessed a perfect illustration of the ineffectiveness of the criminal justice system, which is inflated and swollen in size, but very weak. Like all British public institutions, it retains its form, but not its content. I went to court to give evidence in a case. I was horrified to discover that the courts were patrolled by semi-militarised policemen with guns in their holsters and also bearing automatic weapons which they looked ready to use at the slightest provocation. It was a show of force that might lead the naive to suppose that the British State was become extremely severe in its suppression of wrongdoing.

Inside the court, however, I witnessed something that demonstrated how enfeebled the whole system has become. The accused (who was guilty) was brought into the dock. A man in the seat beside me, himself clearly a member of the criminal classes, began quite audibly to threaten him, saying that he would “get him” when he came out of prison. He glared at him in a menacing way, and repeated his threats several times. The accused was so frightened that he looked away.

Everyone in the court was aware of what the man beside me was doing, and yet nothing was done either to stop him, let alone punish him for behaving in this way. Could anyone blame him if he concluded from the fact that he had got away with a crime even in the very heart of the criminal justice system, with armed policemen patrolling outside, that he had nothing to fear from that system? What sensible person would feel other than contempt for an institution that was unable to defend people from intimidation even within its hallowed portals?

In the circumstances, I was not surprised when I asked a prisoner who came into my prison consulting room what he was in for. His upper lip curled a bit and he blew out his cheeks with contempt. “Just a poxy little murder charge,” he said

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LAZY ALABAMA BUREAUCRATS NOT INTERESTED IN IDENTIFYING A KILLER

What if the guilty party is still out there and ready to strike again?

Tracy Thomas doesn't sleep well at night. Since the murder of her sister, Cynthia Thomas in 2005, she has struggled with the healing process. Now the man suspected of killing Cynthia Thomas is dead and old wounds are splitting wide open. Lamar "Johnny" Benton was found dead in his Russell County Jail cell early Monday morning. Death came for the 18-year-old Seale, Ala., man when he fabricated a rope using a torn bed sheet and hanged himself in his solitary cell, Sheriff Tommy Boswell said. Thomas' sisters and mother said they gain little satisfaction from knowing Benton is gone, however. They fear, among other things, they'll never know whether this teenager is really the one who did it.

Upon hearing of Benton's death, Russell County Chief Deputy District Attorney Buster Landreau said he contacted the Alabama Department of Forensic Sciences in Montgomery and asked them to cease forensic testing in this case. "We asked them to stop as of the moment and let us see what has been completed," Landreau said. He said it was doubtful the district attorney's office will request the forensics lab to continue with the analysis, but that depends upon how far along they are. Asked if any of the testing has been completed, Landreau said he believed the forensic biology portion may be finished, but he's not sure what else has been done. "The state lab is months and months behind," Landreau said. "Do we want them to consume resources and time doing work on a case where the defendant is deceased or do we want them to focus on cases that will go to trial?"

Benton's attorney, Jeremy Armstrong, said the correct answer would be to continue. It is the district attorney's responsibility to seek the truth and seek justice, Armstrong said. By not fulfilling that responsibility in this case they are convicting Benton without him ever going to trial, he said. In a letter sent Tuesday to the Russell County District Attorney's Office, Armstrong wrote: "I respectfully request that DNA testing and fingerprint analysis proceed and that we be provided with all reports regarding the conclusions of these tests." "I don't think we should convict Mr. Benton just because he's dead," Armstrong said.

Landreau doesn't see eye-to-eye with the defense attorney, however, pointing out that Benton reportedly confessed to the murder. [There have been umpteen false confessions] "I don't view it that there's any miscarriage of justice," Landreau said.

It was a flat tire that ultimately led to Cynthia Thomas' death the morning of Feb. 17, 2005. The 39-year-old mother of three was traveling on Alabama 169 around 8 a.m. when a tire on her white Nissan Maxima went flat near Luton Lane. Soon, help arrived in the form of an off-duty sheriff's deputy and his wife. The couple offered Thomas the use of their cell phone, a commodity she was without at the time. Thomas called her family, at which point the officer and his wife drove away.

Two more people allegedly stopped that morning, but Thomas refused assistance, saying help was on the way. She was waiting alone for a family member to arrive when Benton stopped, authorities said. Thomas was found lying in the Pleasant Hill Baptist Church cemetery on Sandfort Road in Seale, Ala., around 3 p.m. A visitor to the cemetery discovered the body. She had been raped and stabbed. Benton was arrested Saturday, Feb. 26, 2005. Russell County Jail records listed his charge as murder with a knife.

As it stands, the district attorney's office will wait for the lab to send the results they do have and then make a decision where to go from there. Asked how long it will take to receive the results, Landreau said he didn't know.

Cynthia Thomas' sisters, Sheila Lane and Tracy Thomas, and her mother, who asked not to be identified by name, said they support Armstrong's request. "I prefer for them to continue on for some closure," Lane said. "Right now, only she has the answers and she's not here. Only they know what happened that day." Both families are entitled to have closure to this case, Armstrong said. By asking to allow forensic testing to continue, Armstrong contends his client will be absolved of wrongdoing, an assertion he defends based on conversations he had with his client, as well as his own investigation into the murder, he said. "At the very least, he was not the only one there that day," Armstrong said. "I'm asking the district attorney's office to allow these tests to continue. If they don't match my client, we have a killer still on the loose."

For Tracy Thomas, the news of Benton's death was hard to swallow. "This family was not prepared for anything like this," she said in a phone interview. Cynthia Thomas' mother said Benton's death is tragic. "My daughter's gone and she's never coming back," she said. "Now, another life has been taken. I really wanted to look him in his eyes and tell him I forgive him." Closure would be a sweet thing for the Thomas family to have, although all three women said they have been forever changed by Cynthia's death. "I will never be the same," Cynthia's mother said. "Now, all I want is for people to let her rest in peace."

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U.K.: Release of 53 "lifers" under fire

A total of 53 people sentenced to life since 2000 in England and Wales have already been released on licence, ministers have disclosed. The release of the lifers, including rapists and murderers, was "absolutely disgraceful" Tory MP David Davies said.

The news comes amid a row over sentencing after paedophile Craig Sweeney was given a life sentence which could see him serve just five years. Home Secretary John Reid described that sentence as "unduly lenient". On the release of lifers, Mr Davies, MP for Monmouth, said: "Life should mean life in prison. These criminals should not be released before they have served their sentence that they were given in a court of law. "Members of the public are being led to believe that once caught and found guilty, these criminals are being sent to prison to serve out the whole of their sentence. They are being misled."

But a Home Office spokesman said: "Tariffs are set by judges and release is by order of the parole board. "The most common offence represented among the 53 is grievous bodily harm." The spokesman added that 500 people a year had received life sentences since 2000. Mr Reid's intervention in the Sweeney case caused controversy, with Attorney General Lord Goldsmith said to be unhappy about it. A spokesman insisted Lord Goldsmith would not bow to political pressure when deciding whether to appeal the sentence. Tony Blair's spokesman said it was right for the home secretary "to articulate the concern the public has".

The spokesman rejected suggestions that Mr Reid may have jeopardised any appeal to increase Sweeney's sentence through his intervention. He said Mr Blair would not comment on any individual case but would often express his determination to re-balance the judicial system in favour of victims of crime. The Sentencing Guidelines Council is already carrying out a review of the amount of "discount" sex offenders should receive on their sentences for pleading guilty. The attorney general's spokesman said: "The attorney has called for the file in Craig Sweeney's case in order to consider whether to refer the sentence to the Court of Appeal as unduly lenient."

A Home Office spokesman had earlier said Mr Reid "is concerned that the tariff Craig Sweeney has been given does not reflect the seriousness of this crime and is writing to the attorney general to ask him to consider referring the sentence to the Court of Appeal as unduly lenient".

Commenting on the release of lifers, Lib Dem Nick Clegg said it was "vital" that the decisions of parole boards held public confidence. He added: "Public confidence is vital to the operation of the criminal justice system, and releasing inappropriate prisoners could be another blow to an already beleaguered system." However, Judge John Griffith Williams QC was acting in accordance with guidelines in sentencing Sweeney, 24, at Cardiff Crown Court.

Sweeney - who was known to the family - had snatched the girl from her home after she had returned home from a shopping trip and while her mother made a telephone call. He drove her to his Newport flat where he was living after being released early from a three-year sentence for indecently assaulting a girl aged six. There she was sexually assaulted. Earlier this month, five judges at the Court of Appeal increased the minimum jail sentence on Alan Webster, convicted of raping a 12-week-old baby, after the case was referred to them by the attorney general.

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THE BRITISH LOVE OF CRIMINALS AGAIN

A five-year minimum sentence for a convicted paedophile who seized and subjected a three-year old girl to a terrifying ordeal is to be reviewed by the Attorney-General. Lord Goldsmith, QC, said he had requested the file in the case of Craig Sweeney and would consider a challenge to the jail term. The Home Secretary and the Crown Prosecution Service both called for a review of the sentence, described by the little girl's relatives as "an insult".

John Reid, the Home Secretary, also called it "unduly lenient" and said he would write to the Attorney-General asking him to refer the case to the Court of Appeal. But Lord Goldsmith's office emphasised that he would make his decision "purely on the merits of the case and not in response to political or public pressure". It did not "imply any criticism of the sentencing judge".

Sweeney, 24, was jailed for life at Cardiff Crown Court yesterday by Judge John Griffith Williams, who told him that early release was "unlikely". But the judge cut his jail term by one third to 12 years in recognition of his guilty plea. Because prisoners are eligible for parole after half their sentence, and taking into account time spent on remand, Sweeney could in principle be released in five years, 108 days.

Sweeney was living in a halfway house for freed offenders when he took the girl from her front room while her mother was on the telephone. He subjected the girl to a terrifying ordeal which ended only when he crashed his car after a police chase.
Yesterday there was concern in legal circles about political pressure over sentences, fuelled by a campaign in The Sun criticising "soft" judges. The office of the Lord Chief Justice declined to comment last night but several judges have expressed concern about the singling out of individuals and calls for them to be sacked. The Lord Chancellor defended judges' sentences, which were not "by and large" unduly lenient, but said the newspaper was "free to attack the judiciary as offensively as it likes, short of defamation".

After yesterday's sentence on Sweeney, Anne Tyson, the solicitor for the girl's family, said: "The family believes today's sentence is an insult to their three-year-old daughter and that there are grave failings in the criminal justice system that need to be urgently addressed. "The victim's family is now calling for the Government . . . to significantly increase the prison sentences given to paedophiles."

The court heard that Sweeney took the girl after knocking on her mother's door. The family had last seen him nine years before. Sweeney had been released on licence just two days earlier after serving 18 months of a three-year sentence for sexually assaulting a six-year-old girl. Susan Ferrier, prosecuting, said: "The family returned home from a shopping trip and saw a young man on the front doorstep of the house . . . the mother recognised him as a babysitter from nine years ago. "He was invited in and sat with the family in the kitchen. They were already concerned about comments he was making. He said he had just been released from prison and he said he had spent time with paedophiles and rapists. "The mother went to make a telephone call and heard her 10-year-old son yelling: `He's got her'. He could clearly see that Sweeney was leaving with the little girl. It was too late, he was already gone."

Sweeney drove from her home in Cardiff to the halfway house in Newport where he was living where he subjected the girl to a violent sexual assault. Sweeney, who had been drinking, then showed off the child to other residents, including other convicted sex offenders at the address. One of his friends told him that police were looking for him. Sweeney set off along the M4 into England where he carried out another sexual assault in a lay-by in Swindon. But a police patrol car noticed him drive through a red light with no lights and began a pursuit. They followed for 13 miles as he drove at speeds of up to 100mph on the wrong side of the road.

Miss Ferrier said: "He was swerving violently towards police trying to block his exit. At one point he sped straight at an articulated lorry before swerving away at the last minute. Police positioned a helicopter above Sweeney, at which point he swerved violently down a bank." Sweeney was arrested near Marlborough, Wiltshire, and the officers who until then had been unaware of the kidnapping, found the girl lying at the side of the road where she had been thrown from the car. When the girl was rescued by police, she asked doctors: "Is the nasty man gone?" Sweeney, of Newport, Gwent, admitted kidnap, three charges of sexual assault and dangerous driving.

Judge John Griffith Williams QC told Sweeney that he was a "thoroughly devious man. You kidnapped this little girl for your own sexual gratification. You subjected her to an extremely painful ordeal that beggars belief." He added: "You and the family must understand that early release is unlikely. You will be not released while there is the slightest risk of you reoffending. "You are an exceptionally high risk to young girls."

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Australian State government convinced a condemned man is innocent

Most governments fight tooth and nail to uphold the wrongful convictions of their courts. Nice to see one that is actually more responsible than its courts. Previous post on the case here on 4th



Convicted killer Graham Stafford could receive a multimillion-dollar compensation payoutfrom the State Government if he is pardoned for the 1991 murder of schoolgirl Leanne Holland. Attorney-General and Minister for Justice Linda Lavarch confirmed this week the Government could make an ex-gratia payment to Stafford, 42, if he is cleared after 15 years in jail. She cited legal precedent with the Kelvin Condren case, when the Goss Government paid out $400,000 in 1995 after he was freed after serving seven years for murder. Former chief magistrate Di Fingleton received $475,000 compensation last year for her wrongful imprisonment.

Stafford, who was convicted in 1992 for the brutal sex slaying of his then-fiancee's 12-year-old sister, was paroled last week, four months before his minimum release date, prompting speculation authorities had accepted an innocent man might have been jailed. Stafford's legal team is preparing a petition to the Queensland Governor seeking a pardon.

Ms Lavarch said the Governor was likely to refer the matter back to her and she would then seek advice about sending the case back to the Court of Appeal. The Court of Appeal could uphold the conviction - as it did in 1997 - or it could quash the conviction and set him free or order a retrial. Ms Lavarch said the Director of Public Prosecutions could then offer no evidence at a retrial and Stafford would be discharged. Ms Lavarch said it was too early to estimate a monetary payout but legal sources said it could be upwards of $2 million. "There is precedent of an ex-gratia payment being made," she said.

The Attorney-General strongly denied that the prospect of a big payout would influence a decision on Stafford. "Absolutely not ... one of the most fundamental rules of law is that no innocent person should go to jail, no innocent person should be convicted," she said. "Rule 101 in jurisprudence is that you would much rather see 10 guilty people go free than one innocent person imprisoned. "This is about the principles of justice. It would never be reduced to dollars."

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CROOKED POLICE WORK IN SCOTLAND

They were so keen to convict Nat Fraser -- who may well have been guilty -- that they fabricated evidence and colluded with prosecutors to cover up the fabrication. Excerpt below:

Fraser was convicted in 2003 of the murder of his estranged wife, Arlene. Central to the case against him was the alleged disappearance and reappearance of Mrs Fraser's wedding, engagement and eternity rings from her home around the time she went missing. The prosecution succeeded in arguing that Fraser had returned the rings, and so must have had access to his wife's body. But it has emerged that the jury in Fraser's trial was never told of claims made by a former Grampian Police officer that the rings had been removed and later returned by a member of the force's investigation team.

Professor Christopher Gane, a vice-principal of Aberdeen University and one of Scotland's leading legal experts, said yesterday: "Clearly this is very important evidence, given the nature of the Crown's case. The Crown may well have some difficulty convincing the appeal court that there has not been a miscarriage of justice." The allegations surrounding police involvement in returning the rings will form the focus of separate legal and police investigations.

The three rings mysteriously appeared in the bathroom of Mrs Fraser's home in Smith Street, New Elgin, more than a week after she vanished on 28 April, 1998. There was no sign of the rings when officers from Grampian Police took a detailed film of the interior of Mrs Fraser's home shortly after her disappearance. The trial was told that police and Mrs Fraser's relatives had been over the house with a fine-tooth comb and that the rings had not been in the house.

But they were later discovered in full view in the bathroom, hanging on a peg under a soap dish. The discovery was made on 7 May, nine days after Mrs Fraser disappeared, by Catherine McInnes, of Bonnyrigg, Midlothian, who is married to Mrs Fraser's father, Hector. Mrs McInnes told the court that the rings had "definitely" not been there when she and other members of the family had earlier searched the house for any clues, such as a note or missing clothing, to explain what had happened. And the trial was told that Fraser had been seen "lurking" outside the bathroom on the day the rings were found.

The tale of the rings formed a critical part of the Crown's case. The jury was told by the advocate depute, Alan Turnbull, QC, that it was Nat Fraser's tokens of love which had "ensnared" him on the charge of arranging his estranged wife's murder. Mr Turnbull argued that the appearance of Mrs Fraser's rings after she had gone missing was a most compelling and eloquent piece of evidence against Fraser. He claimed that the jury could convict Fraser on the circumstantial evidence alone, without the damning testimony of Hector Dick, Fraser's former co- accused, who turned Queen's evidence during the trial and claimed that Fraser had hired a hitman to kill Mrs Fraser before disposing of her body.

Mr Turnbull argued that Fraser had returned the rings, and it showed that he had access to the body. He told the jury: "He has been caught by that mistake. These are the rings he gave to his wife and the mother of his children. "How ironic these tokens of love, permanence and fidelity should end up being his undoing ... the undoing of a husband who became consumed by jealousy and greed. These rings tell us as eloquently and powerfully as any witness that Nat Fraser killed Arlene."

But the jury, it has been revealed, was never told of the claims that it was police investigators who were responsible for returning the rings. Two investigations - one by Catherine Dyer, a Glasgow procurator-fiscal, and the other by Richard Gray, the deputy chief constable of Strathclyde Police - have begun, to establish why the crucial evidence was not made available at the 2003 trial at the High Court in Edinburgh.

Yesterday, Fraser's lawyer, John McAulay, called for the dual investigation into the conviction to be extended to the critical evidence given at the trial by members of the family of his client's estranged wife. Mr McAulay said yesterday: "I hope Mr Gray's investigation will extend to some of the highest ranks of Grampian CID and to some of those members of Mrs Fraser's family who gave evidence at the trial. I am alluding to the ones who gave evidence in relation to the rings." Mr McAulay added that no date had yet been set for Fraser's appeal hearing and that he was still considering whether to apply for his client to be released on bail, pending his appeal. He declined to comment on Fraser's reaction to his possible release from a 25-year prison sentence.

Fraser is now out on bail and any attempt at finding him guilty in a retrial would run up against great skepticism about any evidence presented. So it may well be another example of the old, old story: Corrupt police work ends up letting the guilty go free. The latest report (excerpt) on Fraser below:

Fraser was convicted of killing his estranged wife in 2003 and given a life sentence. The trial was told that Fraser removed rings from Arlene and taken them back to the family home. But fresh evidence is believed to show that the rings were removed by detectives and returned to the house at a later date. Fraser was freed pending an appeal last month and returned to Elgin, Moray, almost immediately.

But he faced a serious blow when his former best man and business associate gave an interview to the Sunday Mail about how Fraser organised the murder of his wife. Ian "Pedro" Taylor claimed Fraser persuaded an associate to use chloroform to kill Arlene before the pair of them disposed of her body in a dump. Detectives from Strathclyde Serious Crime Squad have the tapes as part of their investigation into Grampian Police's original murder probe. Yesterday, they said they had not spoken to Taylor but are still planning to interview him.

Meanwhile taxpayers face funding a new life for Fraser in another town. Not only could he end up with a 1 million pound payout for wrongful conviction, he could argue his life is intolerable in Elgin and he needs to move. Lawyer Cameron Fyfe said: "If Fraser can prove the Lord Advocate or the police were malicious in their handling of his case, he could win a whole new life for himself, including the cost of a move from Elgin."



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Tulsa to Settle Wrongful Conviction Suit

Okla. man who spent 14 years in prison for rape before DNA evidence cleared him to get $12.25M

A man who spent 14 years in prison for a rape conviction before DNA evidence exonerated him will receive $12.25 million under a settlement of his lawsuit against the city. City officials had asked a federal judge to dismiss a $14.5 million verdict a jury awarded to Arvin McGee Jr. in March, but they decided Friday to pay the lesser amount.

McGee, 44, was freed in 2002 after his conviction in the 1987 rape and kidnapping was overturned. He sued the city of Tulsa the following year, claiming his constitutional rights had been violated. "Like I told everybody from the get-go, this has never been about money," McGee said after the settlement was announced. "I'm glad we could get it hashed out. I hope the jury doesn't take it as a blow that we took less than what the verdict was." Under the settlement, McGee will receive $6.125 million within 60 days and another $6.125 million by June 1, 2007. It still must be approved by a judge.

Deputy Mayor Tom Baker said the agreement shows the city's "concern for Mr. McGee and what he's been through."

His lawsuit claimed a Tulsa police officer acted with "deliberate indifference" toward McGee's constitutional rights when using a five-man photo lineup from which the victim identified McGee as her attacker. DNA testing later linked another man to the crime, but by that time, the seven-year statute of limitations that existed at the time of the crime had expired.

And so the REAL guilty party escaped justice

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Background

In 1987, a twenty-year-old woman was attacked in the Tulsa, Oklahoma, laundry where she worked. The victim was tied up and locked in the restroom. The attacker returned, carried her over his shoulders to a car, drove to a secluded area, and raped her. In 1989, after three trials, Arvin Carsell McGee was convicted of this brutal crime and sentenced to 365 years in prison.

McGee's conviction rested largely on the victim's identification. McGee was identified from a photographic array four months after the crime occurred. She had initially picked out another man in another photographic lineup. Prosecutors also relied on serological testing of semen collected from the victim, which could not exclude McGee as a possible contributor.

McGee continued to maintain his innocence. At the time of the crime, he was suffering from an injury requiring surgery, rendering him physically unable to carry out the crime. His defense attorneys also pointed out the inconsistencies in the victim's description of her attacker, which changed several times. McGee's first trial was a mistrial, the second ended in a hung jury. After the third trial, he was convicted of rape, kidnaping, forcible sodomy, and robbery. His sentence was later reduced to 298 years.

More than thirteen years later, his case was taken on by the Oklahoma Indigent Defense System. They arranged for DNA testing of the semen evidence. The results revealed that McGee was excluded as a contributor of the spermatozoa and, therefore, could not have been the perpetrator. A second round of testing ordered by Tulsa County prosecutors yielded the same results. Arvin McGee was exonerated and freed from prison in February 2002. He had spent 14 years in prison for a crime he did not commit.

In September 2002, Oklahoma authorities revealed that the DNA profile from the spermatozoa evidence matched the profile of Edward Alberty, a prisoner in Oklahoma. Alberty has since been charged with first degree rape and forcible sodomy.

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Papers sought in Ga. child killings

Lawyers for convicted killer Wayne Williams, blamed for the murder of two dozen boys and young men in the late 1970s and early ‘80s, are seeking police documents about a child molester who lived in the area. The court papers made public Friday don‘t name the man, but they say he is a convicted multiple child molester currently serving time in a Georgia prison. They also allege that investigators knew the man was a viable suspect in the child murders but never told defense attorneys.

"A profound miscarriage of justice has occurred in this matter, which not only has kept (Williams) behind bars for a majority of his adult life, but also which kept a blind eye to bringing the real killers of these many victims to justice," the lawyers wrote in the motion.

Between 1979 and 1981, 29 black boys and young men were killed in the Atlanta area, sparking fear throughout the region. Williams, who is black, has contended that he was framed. He has maintained that Atlanta officials covered up evidence of Ku Klux Klan involvement in the killings to avoid a race war in the city, a claim investigators have denied. "I‘ll say this 100 times. It should be obvious right now of my innocence," he said.

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Background (*Excerpt)

Several bodies had, by now, been pulled from local rivers, and police were staking out the waterways by night. In the predawn hours of May 22, a rookie officer stationed under a bridge on the Chattahoochee River reported hearing "a splash" in the water nearby. Above him, a car rumbled past, and officers manning the bridge were alerted. Police and FBI agents halted a vehicle driven by Wayne Bertam Williams, a black man, and spent two hours grilling him and searching his car, before they let him go. On May 24, the corpse of Nathaniel Cater, a 27-year-old convicted felon, was fished out of the river downstream. Authorities put two and two together and focused their probe on Wayne Williams.

From the start, he made a most unlikely suspect. The only child of two Atlanta schoolteachers, Williams still lived with his parents at age 23. A college dropout, he cherished ambitions of earning fame and fortune as a music promoter. In younger days, he had constructed a working radio station in the basement of the family home.

On June 21, Williams was arrested and charged with the murder of Nathaniel Cater, despite testimony from four witnesses who reported seeing Cater alive on May 22 and 23, after the infamous "splash." On July 17, Williams was indicted for killing two adults - Cater and Payne - while newspapers trumpeted the capture of Atlanta's "child killer."

At his trial, beginning in December 1981, the prosecution painted Williams as a violent homosexual and bigot, so disgusted with his own race that he hoped to wipe out future generations by killing black children before they could breed. One witness testified that he saw Williams holding hands with Nathaniel Cater on May 21, a few hours before "the splash." Another, 15 years old, told the courts that Williams had paid him two dollars for the privilege of fondling his genitals. Along the way, authorities announced the addition of a final victim, 28-year-old John Porter, to the list of victims.

Defense attorney tried to balance the scales with testimony from a woman who admitted having "normal sex" with Williams, but the prosecution won a crucial point when the presiding judge admitted testimony on 10 other deaths from the "child murders" list, designed to prove a pattern in the slayings. One of those admitted was the case of Terry Pue, but neither side had anything to say about the fingerprints allegedly recovered from his corpse in January 1981.

The most impressive evidence of guilt was offered by a team of scientific experts, dealing with assorted hairs and fibers found on certain victims. Testimony indicated that some fibers from a brand of carpet found inside the Williams home (and many other homes, as well) had been identified on several bodies. Further, victims Middlebrooks, Wyche, Cater, Terrell, Jones, and Stephens all supposedly bore fibers from the trunk liner of 1979 Ford automobile owned by the Williams family. The clothes of victim Stephens also allegedly yielded fibers from a second car - a 1970 Chevrolet - owned by Wayne's parents. Curiously, jurors were not informed of multiple eyewitness testimony naming a different suspect in the Jones case, nor were they advised of a critical gap in the prosecution's fiber evidence.

Specifically, Wayne Williams had no access to the vehicles in question at the times when three of the six "fiber" victims were killed. Wayne's father took the Ford in for repairs at 9:00A.M. on July 30, 1980, nearly five hours before Earl Terrell vanished that afternoon. Terrell was long dead before Williams got the car back on August 7, and it was retuned to the shop the next morning (August 8), still refusing to start. A new estimate on repair costs was so expensive that Wayne's father refused to pay, and the family never again had access to the car. Meanwhile, Clifford Jones was kidnapped on August 20 and Charles Stephens on October 9, 1980. He defendant's family did not purchase the 1970 Chevrolet in question until October 21, 12 days after Stephen's death.

On February 27, 1982, Wayne Williams was convicted on two counts of murder and sentenced to a double term of life imprisonment. Two days later, the Atlanta "child murders" task force officially disbanded, announcing that 23 of 30 "list" cases were considered solved with his conviction, even though no charges had been filed. The other seven cases, still open, reverted to the normal homicide detail and remain unsolved to this day.

In November 1985, a new team of lawyers uncovered once-classified documents from an investigation of the Ku Klux Klan, conducted during 1980 and 1981 by the Georgia Bureau of Investigation. A spy inside the Klan told GBI agents that Klansmen were "killing the children" in Atlanta, hoping to provoke a race war. One Klansman in particular, Charles Sanders, allegedly boasted of murdering "List" victim Lubie Geter, following a personal altercation. Geter reportedly struck Sanders's car with a go-cart, prompting the Klansman to tell his friend, "I'm gonna kill him. I'm gonna choke the black bastard to death." (Geter was, in fact, strangled, some three months after the incident in question.) In early 1981, the same informant told GBI agents that "after twenty black-child killings, they, the Klan, were going to start killing black women." Perhaps coincidentally, police records note the unsolved murders of numerous black women in Atlanta in 1980-82, with most of the victims strangled. On July 10, 1998, Butts County Superior Court Judge Hal Craig rejected the latest appeal for a new trial in Williams's case, based on suppression of critical evidence 15 years earlier.

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Bain given first fair hearing in decade, says Karam

New Zealander has to go to London to get a fair trial

The Privy Council has given David Bain his first fair hearing in 10 years, campaigner Joe Karam said from London yesterday. Talking hours after the court delivered its decision to allow a full appeal of Bain's convictions for murder, Mr Karam said the Law Lords had focused on the facts. "Today seemed simply a matter of what is right and what is not right," he said. The atmosphere in the court was noticeably free of the undercurrents associated with the case in New Zealand, where it had been caught up in a contest between the police and Joe Karam, he said. "There is a lot of work, but I think we can look forward with confidence to a fair hearing, I think for the first time in 10 years," he said. "Effectively, it is the closest thing to another trial."

Bain has served 12 years of a life sentence, with a minimum 16-year non-parole period, for shooting dead his mother, father, two sisters and brother at their Dunedin home in 1994. His defence maintains it was the father, Robin Bain, who committed the murders before turning the gun on himself. "David is still in prison, which is the worst thing of all. Even though we have had this success, it is only one step on the road to what we are really hoping to achieve because there has been a terrible miscarriage of justice," Mr Karam said.

The three Privy Council judges who heard the application for leave to appeal were clearly disturbed by the matters Bain's counsel, Michael Reed, QC, raised, he said. Mr Reed, of Auckland, raised 47 matters from the Court of Appeal's 2003 judgment - which rejected a retrial - to which the Crown counsel produced no answers, he said. "I think more than anything, that has been the disturbing thing."

On some matters, Deputy Solicitor-General John Pike had conceded mistakes were made. One example was the Crown's contention that there had been an exit wound on the body of father Robin Bain. "But there was no exit wound, just for example, so their grasp of fact was sadly lacking, which disturbed the Privy Council profoundly." That issue was connected to whether or not Robin Bain had committed suicide. "Of course it was suicide, and if it was suicide then David Bain is off the hook completely," Mr Karam said. "The Crown today, in front of the Privy Council ... conceded that these mistakes were made," he said.

Of particular significance, the Crown had conceded ground on two of three points central to the 2003 Court of Appeal decision. "The Court of Appeal, in their decision in 2003, had three things they said would lead incontrovertibly to a verdict of guilty. On two of those things the Crown, represented by the Deputy Solicitor-General, conceded the Court of Appeal probably overstepped the mark." Those two issues were whether Robin Bain knew where the key to the trigger lock of the gun used in the murders was kept, and the fact a rifle magazine was found balanced on its edge at the scene.

Neither of those points had featured prominently in the original Crown case but the Court of Appeal had found them incontrovertible, and said they outweighed the problem of the jury having been misled in other areas. The third point involves bloody fingerprints on the rifle, which is also disputed.

Mr Karam said much of the credit for the result had to go to the lawyer who did much of the earlier work for Bain. "The work that Colin Withnall, QC, from Dunedin has done on this over the previous eight or nine years was hugely helpful. "Largely, we just re-presented what Mr Withnall presented to the Court of Appeal in Wellington. What this Privy Council decision says is that the Court of Appeal in Wellington didn't properly adjudicate on what Mr Withnall presented to them," he said.

An "absolutely thrilled" Mr Withnall was last night relieved the "springboard" he developed over seven often frustrating years had secured a hearing that "David so much deserves". The hearing yesterday, on the petition submitted by Mr Reed, went for four to five hours. The next step, a full appeal in front of the Privy Council in London, would be based on the paper records of evidence and was expected to take place over five days in February or March next year. New Zealand's Supreme Court replaced the Privy Council in 2004 but the Bain application began before the ties to London were cut.


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Defense Slams 'Manufactured' Testimony in Trial of Alleged Aryan Brotherhood Leaders

Evidence from a jailhouse snitch is so likely to be tainted that it should never be led in court but getting convictions at all costs often seems to be the only aim of a prosecution. Establishing the truth seems not to matter

A parade of former prison gang members who testified in the government's showcase trial against the Aryan Brotherhood were paid by the prosecutors, were promised sentence reductions and in some cases were released, a federal agent testified Tuesday as the defense opened its case.

Michael Halualani, the case agent from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, said one inmate received $150,000 when he was released and placed into a witness-protection program, and others who were being held at the high-security Supermax prison in Florence, Colorado, were given amounts ranging from $50 to a few hundred dollars at a time, and in some cases he paid for eyeglasses or shoes upon request. The agent was subpoenaed by the defense as a hostile witness after the government presented weeks of testimony in one of the largest capital murder cases in U.S. history.

Outside court, Dean Steward, attorney for defendant Barry "The Baron" Mills, who is alleged to be the ringleader, said the focus of the defense case is to prove that "the testimony was manufactured, bought and paid for." The trial of Mills, 57, and co-defendants' T.D. "The Hulk" Bingham, Edgar "The Snail" Hevle and Christopher Overton Gibson stemmed from a six-year investigation that culminated with arrests of 40 alleged Aryan Brotherhood members in 2002. Nineteen struck plea bargains and one died. Other trials are pending. The government alleges the defendants currently on trial ordered or committed many of the 32 murders and attempted murders contained in the indictment. Mills is serving two life terms for the 1979 killing of a fellow inmate. In the current trial, he faces a possible death sentence for allegedly orchestrating the 1997 killings of two black inmates in Pennsylvania.

On the witness stand, Halualani was asked why he paid money to men such as Clifford Smith, who helped form the Aryan Brotherhood. "I provided funds to Mr. Smith. I paid for time and information, not for convictions," Halualani said. Answering questions from attorney Mark Fleming, the agent said the payments were similar to "the way you charge for billable hours. Although they are in prison, it's their time."

Fleming pointed out that Smith was already serving a term of 65 years to life. "And you wanted to compensate him for the time he spent with you?" asked Fleming. "Yes," said the agent, who acknowledged paying Smith $1,400 over the period he worked with him. Halualani said that when inmates agreed to turn informant, they usually submitted a list of demands starting with requests for money and for the filing of a motion that would seek a reduction in their prison sentences. "Number two was, where are you going to house us so we don't get killed," the agent said. "And third was, are you going to prosecute us?" He said all wanted immunity from prosecution, but he did not say how many were granted that as an incentive to testify. Many were placed in protective custody and some who were released went into the witness-protection program under new identities.

Fleming elicited the agent's acknowledgment that before informants testified, both at the trial and grand jury, they were given copies of documents to review. In one case, he said, an informant was presented with what is known as "a party list." "It was my understanding that was a list of individuals to be murdered," he said. "And is it possible you showed him the party list before he entered the grand jury room?" asked Fleming. "Yes," said the agent. "We showed it to him to find out what he thought it was." The attorney then asked, "Do you have any concern that his testimony might be influenced by the fact that you showed him that party list?" "No, not at all," said the witness.

Halualani acknowledged there is a danger that informants can provide false information to get a paycheck. "There's always a danger," he said. "But the testimony is corroborated. We do pay for time and we do pay for information but we also do some work." During a break in the proceedings, U.S. District Judge David O. Carter told attorneys that the case was moving more rapidly than expected and would probably go to the jury in July or August.

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CHILD ABUSER GETS A SLAP ON THE WRIST

The horrifying case of a five-year-old boy viciously beaten by his father has touched the hearts of Victorians. Herald Sun readers moved by yesterday's story of Brandon's physical and emotional abuse have offered to send clothes, toys and money to show him that people care. Two mothers of boys the same age were so concerned they offered to adopt Brandon. A factory worker said he wanted to give $50 a week to help give Brandon a better life.

But the treatment of the boy, and of the man responsible, moved many others to anger. The Herald Sun revealed yesterday that Brandon's father, Damien Paul Ripper, was sentenced to only 18 months' jail for recklessly causing serious injury to his son. Ripper, 30, has 349 convictions, including many for crimes of violence.

Residents in Morwell, where the abuse occurred, are planning a petition to demand an appeal be lodged and a heavier sentence imposed. And a nurse who treated Brandon after he was rescued by police said she was disgusted by the light sentence. She was "sick and tired of seeing these people get away with what they do to defenceless children". She said on 3AW: "When is the court system going to listen to public outrage and consensus on these issues?"

Ripper's sister branded her brother a liar for blaming a difficult childhood and a beating from his stepfather for turning him to violence. Lisa said Damien was "once again using his lies to get away with hurting this little boy". "I want it known clear as a bell . . . Dad never ever laid a finger on any of us. Never," Lisa said. "What Damien did is the lowest of lowest form. For the courts to say he took (Brandon) in and they should credit him for that is a crock. Damien only took him in to get extra benefits so he could get more drugs. "Please don't let him get away with blaming everyone else for his choices. Isn't it about time someone got what they deserved?"

The Director of Public Prosecutions is believed to be considering an appeal but would not comment yesterday. A Department of Human Services spokesman said yesterday the boy was now in good care. He is believed to be with responsible relatives in a safe home. The County Court has expedited publication of Judge Fred Davey's sentencing remarks.

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Another comment:

Where is the justice when a helpless little boy is battered but his savage attacker is let off with a mere slap on the wrist? Violent offender Damien Paul Ripper broke his son's jaw and pounded other parts of his body in one of the worst child abuse cases police have seen. The five-year-old was bashed for being too slow to eat his breakfast and locked in a Morwell home unit after the belting.

Ripper's criminal record stretches to a staggering 349 prior convictions for offences including vicious assaults and threats to kill. Yet he was sentenced to an 18-month minimum -- just one-tenth of the maximum jail term of 15 years allowed by law for recklessly causing serious injury.

Welfare groups have branded the penalty a disgrace and want an appeal. As child protection campaigner Hetty Johnson asks: "What's the use of having maximum sentences if they never impose them?" The sentencing judge noted the offender's difficult childhood and told Ripper, 30, his sentence would have been longer if he had not pleaded guilty. But surely the judiciary must reflect community views and impose tough punishments to help protect society's most vulnerable members from our worst criminals.


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SLOPPY FORENSIC SCIENCE IN AUSTRALIA

On TV’s CSI forensic science is the fast-track to justice, but the reality for police forces around Australia is lengthy delays that are making the wheels of justice turn ever more slowly. The delays highlight the fact that police force are being denied the maximum benefit from rapid advances in forensic science, including the latest DNA technologies, because of a reluctance of state governments to spend the necessary money.

WA is the latest jurisdiction to reveal it’s struggling to cope, with a new Auditor General’s report finding that delays in obtaining forensic evidence were “ adversely affecting the justice system”. “One of the most significant issues being a large backlog in DNA analyses, resulting indelayed prosecutions and court adjournments,” the report says. It also found that a lack of “integrated decision-making” to allocate resources has resulted in bottlenecks and under-utilisation of forensic what resources are available. There had also been little assessment of whether the state’s forensic science facilities would be able to meet future demand. Forensic exhibits were not being centrally registered and tracked through the justice system and there were also problems with security.

The audit office recommended that WA police and the state’s forensic service PathWest “reduce the backlog in DNA analyses, including identifying the analyses that are no longer required, and agreeing priorities for requests for analysis”. The audit followed an admission by West Australian Police Commissioner Karl O’Callaghan that there was a backlog of 33,000 samples waiting for forensic testing and in some instances cases had been dealt with by the courts while DNA samples involved were still waiting to be tested.

Last month NSW Police announced they would send DNA collected from crime scenes to a private laboratory for analysis to help clear a large backlog of 9000 cases. Demand for DNA analysis in NSW jumped from 16,500 samples in 2001 to more than 29,700 this year.

In April the Queensland Health Service said its troubled forensic service was taking six months to provide analysis of samples taken from clandestine drug laboratories to use in court cases. That might sound bad, but the delay had fallen to six months from a high of 2 1/2 years in 2005. There was also a mounting backlog of DNA testing for criminal cases, which prompted the Queensland Government to announce it was putting an extra $6 million to improve the system.

In Victoria a magistrate late last year criticised delays of up to two years in court cases because police were having to wait 12 months for drug test results. Two weeks ago the first stage of a $6.44 million upgrade of the Victoria Police forensic laboratory was opened in an attempt to deal with backlogs.

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AUSTRALIA: GOOD POLICING PENALIZED

A triple murderer was driving through Paddington at 3am in December 1998 with three mates and a car full of semi-automatic weapons. A police patrol car from Rose Bay drove slowly by. The men panicked, turned into a side street, then another, and wound up in a dead end. Knowing his patch well, one of the officers in the patrol car was suspicious when the Toyota Camry didn't continue on the back route to Kings Cross. He did what all good police officers do - or used to do. He and his partner followed the Camry. When the men ran, they chased them through the White City tennis complex. The triple murderer fired at them with his CZ 9mm self-loading pistol, hitting the junior officer three times. The senior officer shot back at the muzzle fire he could see in the dark.

After 25 shots were exchanged, one of Sydney's most vicious killers, Michael Kanaan, then 23, lay bleeding on the ground from seven bullet wounds that would put him in a wheelchair for three years. Constable Chris Patrech had injuries to his wrist and ankle, which still plague him as a sergeant in Manly. And what of the hero of the night, Senior Constable John Fotopoulos, whose smart police work had finally stopped Kanaan's rampage, and who had probably saved the life of his colleague?

Well, Fotopoulos became a pariah, left the police service and lived as a virtual recluse in a caravan on the South Coast, unmarried, in fragile mental health, trusting no one, reportedly living on workers' compensation of less than $300 a week. He was frightened for his family when he realised he'd grown up near Kanaan's Belfield home. It was only Crown Prosecutor Margaret Cunneen who managed to coax him out to give evidence at last month's trial. At first he wouldn't even shake her hand, because he felt so let down by the legal system.

That fateful morning in 1998, Fotopoulos had his hand shaken by then police commissioner Peter Ryan, who took time out from turning the police force into a farce to turn up at dawn at White City. Fotopoulos was traumatised by the gunfight but for a little while he was the golden boy. Then came the results of his urine test, with a trace of marijuana he admitted smoking at a party three months earlier, so tiny a trace that a police pharmacologist testified it could even have been from environmental exposure and could not have impaired his faculties. At 28, his career was over, even if he didn't yet know it.

So was Kanaan's. Just 10 days before Fotopoulos stopped him, he had murdered his boss, Kings Cross drug dealer Danny Karam. A month earlier, on November 1, Lakemba police station was sprayed with bullets from a semi-automatic weapon. Kanaan and two other men were later acquitted of the attack. Four months earlier, on July 17, Kanaan shot dead two strangers, Adam Wright, 23, and Michael Hurle, 25, outside a Five Dock hotel. He is now serving three consecutive life sentences.

And last week, Supreme Court Justice Megan Latham gave him another 12 years for maliciously shooting at Patrech and Fotopoulos, after a jury had acquitted him of the more serious charges of attempted murder. But when the case first went to magistrate Pat O'Shane in 1999, she poured scorn on the officers and let Kanaan go free. Fotopoulos and Patrech had been "stupid, reckless and foolhardy", she said. Fotopoulos had "no cause" to chase Kanaan. "This case is an object lesson," Latham said, with unintended irony. ". . . We need to protect good officers, and encourage them in their necessary duty."

Indeed. What happened to good officer Fotopoulos was that the police service hired barrister Stuart Littlemore to monster him in court to avoid paying a personal injury claim he filed in 2001 and dropped in 2005, having lost heart. The police service's costs, reportedly of $250,000, were awarded against him. Will Commissioner Ken Moroney send debt collectors to hound him in his caravan?

It took seven years for the officers to achieve some sort of justice from the courts, but Fotopoulos seemed happy after the verdict last week and hugged Cunneen before going to ground again. Contacted in Europe yesterday, Patrech said it felt good to be "acknowledged, as John and I did the right thing . . . I am, however, once again disappointed with the sentence as I believe that any person who attempts to shoot or shoots a police officer should receive the maximum penalty to set an example".

Fotopoulos and Patrech deserve a huge vote of thanks from all of us. But what are the lessons young police can draw from their experience? Do not approach anyone who looks like a crook. Stick to harassing law-abiding citizens. If you suspect a crime might be occurring, turn a blind eye. Oh, and if you have ever smoked a joint at a party, make sure you never, ever use your police issue weapon.

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WRONGFULLY CONVICTED AUSTRALIAN RELEASED AT LAST



The parents of convicted killer Graham Stafford have told of their joy at his release from prison and say he is more determined than ever to clear his name. The 42-year-old, sentenced to life in 1992 for the brutal sex slaying of schoolgirl Leanne Holland, 12, was given full parole this week – four months earlier than authorities had indicated. Family and friends who have led the campaign to have his conviction overturned believe his release is a clear indication the State Government has accepted that an innocent man might have been jailed. Stafford is now living with his parents Jean and Eric on the Sunshine Coast.

"Obviously we are very pleased, very happy, very relieved," Mrs Stafford said yesterday. "I think we are all a little bit stunned . . . as if we cannot believe it has happened." Stafford's early release came after Police Minister Judy Spence told The Sunday Mail in April that he would not be eligible for parole until serving a minimum 15 years in jail, which would have been late September.

Stafford's family says the next step is to seek a pardon. "It does not stop here . . . Graham did not kill Leanne Holland. The next step is trying to get a pardon, which will not be easy," Mrs Stafford said. "He is happy to be out. Now he just wants to try and get on with his life, make some sense of the rest of his life."

Stafford spent the first days of freedom with his parents and sister Stacey at their Mooloolaba home. He had been on work release in Brisbane this year, residing at a Corrective Services halfway house. Mrs Stafford said he would continue to work at a glass-making company on Brisbane's northside, commuting each day from the Sunshine Coast. "It will take him some time to adjust. He seems OK, thankfully he has a lot of support," she said.

Corrective Services have placed some restrictions on Stafford, including that he has no contact with the media, and does not profit from or promote the book Who Killed Leanne? Mrs Stafford said her son wanted to go to the beach again, as well as the movies. "He will look forward to that," she said.

Stafford was convicted for the 1991 killing of his fiancee's sister at their Goodna home, west of Brisbane. He strenuously denied any involvement. Police claimed he bashed the schoolgirl over the head with a hammer at least 12 times, stabbed and raped her, hid her mutilated body in his car boot for two days, then dumped it in bushland. But new evidence has cast doubt on the conviction. Experts disputed the time of death and lack of blood connecting Stafford to the case.

Attorney-General Linda Lavarch handed Stafford a lifeline in February, inviting him to apply to the Queensland Governor for a pardon. A legal team is now preparing a petition to support the application. Ms Lavarch described as "compelling" information in a book, Who Killed Leanne? by former policeman Graeme Crowley and criminologist Paul Wilson, which disputed much of the police evidence from the original trial. Mr Crowley, a former police detective and private investigator who had investigated the Holland murder since 1992, repeated calls for the Government to reopen the case. "The early release of Graham Stafford is tacit acknowledgement by government that there were serious flaws with the initial investigation," Mr Crowley said. "It is now up to government to go the extra yards and reopen the investigation to identify those who are responsible."

The Holland family had declined all previous Sunday Mail requests for comment. Mrs Stafford said her son had not talked much about life behind bars. "It is something he would probably like to forget."

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"Sunday Mail" editorial comment:

Graham Stafford is a free man but his joy must be tempered by the fact he remains a convicted murderer. He served almost 15 years in prison for the brutal 1992 sex slaying of schoolgirl Leanne Holland and has been released on full parole about three months earlier than might have been expected. Observers believe those three short months of leniency are a strong indication the State Government has accepted he is an innocent man. If so, a terrible injustice has been done, and we face the prospect that a savage killer is at large in our community. The accumulation of doubt that led to a vigorous and compelling campaign to free Stafford is sufficient to warrant an inquiry into the conduct of the police investigation and the presentation of evidence for our courts. Justice – and faith in our justice system – demands the conviction be reviewed.



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Faulty rap sheet haunts accused

PERSISTENT ERROR -- DESPITE ATTEMPTS AT CORRECTION -- HELPED LEAD TO ROBBERY CHARGE

San Jose police used good detective work in trying to identify the ringleader of the four intruders who had burst into a San Jose home in early 2005. By monitoring phone calls and visitors to jail, police connected Larry Adams to a suspect already in custody. At 6-feet-2 and 235 pounds, Adams, 39, met the general description of the ringleader: a large black man, 35 to 40 years old. And when detectives discovered that Adams' rap sheet included a home invasion robbery, they showed his photograph to two victims, who picked Adams' picture from the lineup. Adams was arrested and charged with the robbery.

Case closed? Not exactly. It turns out Adams, a widower who lives with his two children in Salinas, was the victim of a bizarre clerical mistake. Despite what his rap sheet showed, Adams had never before been charged with, much less convicted of, anything resembling robbery. Somehow, a 1990 home invasion committed in Contra Costa County by a man named James Adams mysteriously got listed on Larry Adams' record. It is a mistake that had gone uncorrected for years.

But that uncorrected error was critical to the police theory that Adams was the likely ringleader in the San Jose robbery. Compounding the problem, Adams' photographic identification failed to conform to the county's acclaimed procedures to protect against mistaken witness identifications. Instead, it suffered from several factors that experts say invite errors. "This has been like a nightmare,'' said Adams, who spent more than three weeks in custody last month before officials discovered the rap sheet mistake and lowered his bail. Adams works as a department supervisor at a Mervyn's. "I keep telling people that I never committed a robbery. But it keeps coming up.''

Assistant District Attorney David Tomkins said that the case against Adams was built on more than just the mistaken rap sheet and that, to his knowledge, the prosecution is going forward. The case is unfolding amid increased attention to the potential for wrongful convictions. A Mercury News series in January reported that questionable conduct repeatedly mars Santa Clara County jury trials and that such conduct increases the small but significant potential for wrongful conviction. That potential is especially significant in cases based on eyewitness identification, an area that a California commission last month warned is fraught with danger. Also last month, the newspaper reported that a clerical error in another case had caused a man to wrongfully be identified as a child molester.

According to police reports, four intruders burst into a house not far from Monterey Road and Capitol Expressway shortly after midnight on Jan. 23, 2005. A group of about nine teenagers were together. At least some had been drinking, and one had a bag of marijuana. The robbers told several of the teenagers to lie on the floor. The two brothers who lived in the house were separated and asked where the valuables were hidden. Witnesses said the intruder who appeared oldest carried a handgun, which he used to repeatedly strike one of the brothers in the face.

It did not take long before police arrested Steven Wilson, 29, who was identified after police found court papers left behind in the home with his name on them. Last June, a second suspect, Raymond Goins, was arrested after he was identified following a chance encounter with one of the victims at a McDonald's. But month after month went by and detectives Ronnie Lopez and Ramon Avalos were no closer to determining the identity of the pistol-bearing leader. They studied whom Goins called and who visited him in jail. In January, they discovered that Goins' mother had listed on jail records a telephone number that turned out to be an old number of Adams. The woman was an ex-girlfriend of Adams, but it is not clear why she listed his number on jail forms. When they checked, detectives discovered that Adams was a large black man with a robbery on his rap sheet. They pulled his mug shot and prepared a series of photographs to show the brothers.

Because identifications are subject to the frailties of human memory, Santa Clara County police agencies have enacted safeguards to reduce the chance of wrongful identifications -- safeguards that have been identified as a model for police statewide. Those protocols include showing photographs to victims sequentially, rather than in a group; and having the lineup administered by an officer who does not know the identity of the suspect -- a ``double blind'' safeguard.

In their reports, detectives Lopez and Avalos noted that they followed county protocols in administering the test. However, they described administering the lineups themselves, rather than using another officer who did not know which photograph showed their suspect. They could not be reached for comment. That failure ``increases the possibility of a wrongful identification'' because police who know the identity can influence, unintentionally or overtly, a witness to pick the person they suspect, said Elizabeth Loftus, a psychology professor at the University of California-Irvine, an expert in eyewitness identification. Loftus noted other troubling factors in Adams' case: The identifications occurred more than a year after the crime; the witnesses were a different race than the suspect; and their description lacked detail of his specific features.

Adams said in a telephone interview last week that he was on a lunch break when police surrounded his car March 27 and arrested him. He was charged under the state's "three strikes, you're out'' law, which meant he faced 25 years to life in prison if convicted. His prior strikes were based on the 1990 Contra Costa robbery, which involved several victims. But Adams insisted he had no prior robbery. Two weeks after he was charged, Santa Clara County prosecutors confirmed by checking fingerprints that Adams was not one of the defendants convicted in Contra Costa, despite what the rap sheet showed. Last month, officials dropped the three strikes charge against Adams, and his bail was lowered to $75,000 based on a motion by his lawyer, Allen Schwartz. Adams got out of jail but is awaiting trial in the San Jose robbery.

Exactly how the robbery conviction of James Adams ended up on the rap sheet of Larry Adams remains a mystery. Neither state nor county officials could explain the error. Court records showed Larry Adams has been convicted of driving under the influence of alcohol. He has also been convicted of domestic violence, stemming from a 1991 incident in which Adams became abusive after a girlfriend withheld his car keys to prevent him from driving while drunk. And he once was charged with disorderly conduct after playing his car radio too loudly in a parking lot.

Adams said the rap sheet mistake had caused him problems before. He said after he was arrested on domestic violence charges, police raised the Contra Costa robbery. It came up more recently, he said, during a custody dispute with his wife, who has since died. Adams' aunt, Brenda Wilson, works in the Santa Clara County public defender office, and in 2005 wrote to Contra Costa officials about the recurring problem. Wilson asked Contra Costa officials for copies of key documents from the 1990 robbery to show that Larry Adams ``never had a robbery conviction in your county.'' Adams said the incident has been only the latest difficulty for his children in the past year. ``First their grandmother died, then their mother died, and then their father was wrongly charged with robbery and sent to jail. This has been a very hard time for them.''

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CROOKED BRITISH LAWYERS REINED IN AT LAST

Being made to cough up their ill-gotten gains

Solicitors who misled thousands of sick miners into paying millions of pounds to Arthur Scargill’s union have been ordered to hand back the money. The ruling came after lawyers from the Yorkshire-based Raleys appeared before the Solicitors’ Disciplinary Tribunal to challenge a Law Society decision that the firm had provided an inadequate service to its clients. Raleys, which represents the National Union of Mineworkers in Yorkshire, Lancashire and South Derbyshire, has earned more than 50 million pounds in legal fees by handling claims under a 7.5 billion pound government compensation scheme.

The firm advised miners to sign an agreement letting the NUM “fund” their legal claims — for chronic chest diseases and a crippling hand condition caused by their work underground — in return for paying part of their eventual compensation to the union. The miners were not told that, in reality, the Government, not the NUM, was paying Raleys’ legal costs for successful claims. If the claim failed, the union paid nothing to the solicitors. The union has been paid an estimated 10 million pounds courtesy of the deductions made by Raleys from its clients’ awards.

Complaints made to the Law Society by two former miners brought a ruling by the society’s adjudication panel that Raleys should pay each man 300 pounds compensation because it had failed fully to explain how their claims were to be funded. The solicitors had refused to accept the decision.

One of the miners, Gale Roberts, from Worksop, Nottinghamshire, told the tribunal that when he first contacted Raleys he was told that he could proceed only if he signed a document agreeing to pay NUM contributions out of his compensation. “I was under the impression that the NUM was paying for the claim to go through and that they were supporting me,” he said. Geoffrey Williams, QC, for the Law Society, said that the solicitors should have advised the miners that the NUM was not paying any money to Raleys in support of their claims. “There was complete failure to explain to these men at the outset why the arrangement with the union was either necessary, which it was not, or for their benefit. We say what Raleys did was to take it upon themselves to decide what was or was not in the best interests of their client.”

Raleys argued that the miners were fully aware of the deductions and had signed a contractual agreement for a fixed percentage of their award to be given to the NUM. The tribunal’s decision to issue an enforcement order upholding the Law Society’s earlier ruling carries implications for thousands of miners yet to be paid back money deducted by Raleys.

Mr Williams said that the solicitors had already been found to have provided inadequate professional services in 11 similar cases, while “many others” were awaiting adjudication. In total more than 55,000 claims have been registered by Raleys. A Law Society spokesman last night described the disciplinary tribunal’s ruling as “significant and welcome”. The Times understands that a separate and more serious Law Society investigation is being conducted into Raleys’ conduct. The nature of the allegations has not been revealed.

Nine other firms of solicitors face charges of professional misconduct in connection with the miners’ compensation scheme which, after revelations in The Times last year, is also the subject of a criminal inquiry by the Serious Fraud Office.

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Supreme Court Rules against Government Whistleblowers

Garcetti v. Ceballos Ruling Undermines Public Employees' First Amendment Rights. Press release from the Government Accountability Project, dated May 30, 2006:

Today, the Supreme Court severely limited the rights of government employee whistleblowers to protect the public interest. Through its ruling in Garcetti v. Ceballos, the Court holds that government employees' job-related speech is not protected by the first amendment, a significant departure from prior law.

"The Supreme Court's ruling strikes a shameful blow against free speech rights and a vigorous democracy - public employees' ability to serve as guardians of good government are severely restricted by this opinion," stated Joanne Royce, GAP General Counsel. "A deeply divided, but majority court, today upheld the values of "employer control" over the traditional American values of freedom and protection of public discourse and professional dissent. This ruling will have a serious chilling effect on the willingness of public employees to risk their livelihood to expose government fraud and waste. Our democratic traditions and the American taxpayer are sacrificed to the alter of "employer control."

GAP's amicus curie brief to the Court regarding the case, written by Royce and GAP Legal Director Tom Devine, can be found at: http://www.whistleblower.org/doc/Ceballos%20amicus%20GAP%20NELA%20ATLA.pdf)

The case before the court was that of Richard Ceballos, a deputy district attorney in Los Angeles County, California who learned that a deputy sheriff lied to obtain a search warrant, Ceballos advised his superiors of the wrongdoing, and recommended that the county drop its case. His recommendation was ignored, and his superiors demanded that he continue with the prosecution. Ceballos then informed the defense of his findings, as required by law. Despite the fact that he had acted in a lawful fashion, Ceballos was removed from the case, demoted, and transferred to a different office. Ceballos' ordeal is a shining example of how ethical government workers are supposed to act - he exposed misconduct that was in gross violation of the underpinnings of the American justice system. It is a tragedy that the Supreme Court allowed the government to penalize such principled behavior.

The ramifications of the Supreme Court's decision are devastating to public employees who choose to speak out in the interest of the American people. By restricting the speech of whistleblowers, the Supreme Court has made government more susceptible to fraud and corruption. Public employee truth-tellers are essential to the safety and welfare of our country - they expose corruption, fraud, and national security shortcomings. The muzzling of such vital contributors to the nation's well-being will certainly have grave consequences. Without whistleblowers, government will no longer be compelled to act in an accountable and ethical fashion.

Tom Devine, GAP Legal Director, commented "This decision is outrageous. Canceling the doctrine of "duty speech" means that government employees only have an on-the-job right to be "yes people," parroting false information and enabling illegality. The Court alludes to the Whistleblower Protection Act, but it has been weakened by a series of limiting court decisions. House and Senate Leaders must schedule a vote on legislation to strengthen the Whistleblower Protection Act, so that government employees are not punished for speaking in the public interest. This bill has been unanimously approved by Congressional committees for the last two Congresses, but the leadership has refused to schedule an up-or-down vote. It is time for Congress to act."

GAP has been an outspoken advocate of Ceballos' cause, because we see it as a vital stop-gap in the protection of employees who speak out, to protect the public interest, about wrong-doing. In this case, Ceballos' speech protects the integrity of the criminal investigation process, and that is vital. (See our October 2005 New York Times Op-Ed by GAP Communications Director Dylan Blaylock and FBI whistleblower Coleen Rowley, available at http://whistleblower.org/content/press_detail.cfm?press_id=322).

Another comment on the case:

The Supreme Court scaled back protections for government workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote. In a victory for the Bush administration, justices said the 20-million public employees do not have free-speech protections for what they say as part of their jobs. The ruling affects only constitutional free-speech claims related to work, the court said, not the rights of public employees off the job. Nor does it affect state and federal labor laws or whistleblower protection statutes, the court said.

Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security. Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.

For the roughly 500,000 state and local public employees in Florida, the impact will likely be muted because state law includes strong free-speech protections. But any federal employee in the state - be it an FBI agent, a Veteran's Administration nurse or a soldier - will be affected by Tuesday's ruling, said Tampa lawyer John Lauro, a former federal prosecutor who specializes in whistleblower cases. Also possibly affected are any state or local public employees whose salary derives from federal pass-through funds, such as a university researcher receiving a federal grant. "This is disastrous for exposing federal wrongdoing,'' Lauro said. "This says those people should be discouraged from voicing concerns. It effectively puts a muzzle on them.''

Gene Schaerr, a lawyer for the International Municipal Lawyers Association, an organization of local government attorneys that supported the L.A. County District Attorney's Office, said the ruling "allows local and state governments the appropriate degree of oversight of their employees, without really impinging upon their First Amendment right to speak out as private citizens."

The ruling was perhaps the clearest sign yet of the Supreme Court's shift with the departure of Justice Sandra Day O'Connor and the arrival of Alito. A year ago, O'Connor wrote a 5-4 decision that encouraged whistleblowers to report sex discrimination in schools. The current case was argued in October but not resolved before her retirement in late January. A new argument session was held in March with Alito on the bench. He joined the court's other conservatives in Tuesday's decision, which split along traditional conservative-liberal lines.

Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for the majority. Kennedy wrote that many "powerful" rules still "provide checks" on supervisors. "We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties," Kennedy wrote.

The ruling overturned an appeals court decision that said Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff's deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him. "Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission," Kennedy wrote.

In his dissent, Justice David Souter wrote: "Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy." Souter was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer also supported Ceballos, but on different grounds.

The ruling upheld the position of the Bush administration, which had joined the district attorney's office in opposing absolute free-speech rights for whistleblowers. President Bush's two nominees, Alito and Chief Justice John Roberts, signed onto Kennedy's opinion but did not write separately.

Employment attorney Dan Westman said the ruling frees government managers to make necessary personnel actions, like negative performance reviews or demotions, without fear of frivolous lawsuits. "I don't think he's unleashed a wave of terminations," Westman said. Schaerr, a former government attorney, said the ruling keeps courts from meddling in the business of local governments. "It's not the role of the First Amendment to be an all-purpose whistleblower law," he said.

The court's decision immediately prompted calls for Congress to strengthen protections for workers. Kennedy said government workers "retain the prospect of constitutional protection for their contributions to the civic discourse." They do not, Kennedy said, have "a right to perform their jobs however they see fit."

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