How lucky can you get? Man exonerated because the real villain confessed

Not quite as lucky as Barry Mannix, though

The Ontario government is negotiating a wrongful conviction settlement with a man sent to prison for a rape that was perpetrated by notorious sex killer Paul Bernardo. The apparent wrongful conviction came to the government's attention after Bernardo, serving a life sentence for the slayings of two Ontario schoolgirls, told government lawyers and police almost two years ago about several sexual assaults he had not been charged with.

Bernardo provided investigators with enough specific details about some attacks for police to identify the victims. When they tracked one rape in Toronto -- expecting to find an unsolved case -- they instead learned that another man had already been arrested, charged and convicted for it after pleading guilty in court, according to several sources familiar with the case. He was released from prison after serving his sentence.

The account of the rape provided by Bernardo, which occurred in the late 1980s and was prosecuted soon after, was believable because of his intimate knowledge of the attack. The government is now seeking to rectify the situation. "The matter is under review," said Howard Leibovich, a senior Crown prosecutor familiar with the case.

Robert Nuttall, the Crown attorney in Scarborough who prosecuted the case, said members of the Toronto Police Service's Sexual Assault Squad recently interviewed him about the matter but he has little memory of the original case. "I gave them the best and most accurate recollection I could." "There was a case to be prosecuted, I prosecuted it and if the fellow decided to plead guilty, really, that's coming from him. What his motivation was, God only knows," said Mr. Nuttall, who is now a Toronto defence lawyer. "Nobody likes to see an innocent man convicted."

Tony Bryant, Bernardo's lawyer, confirmed his client worked with police on the case. "He was able to describe the event. He was able to give specifics and they were able to track it down. The Crown has identified the person and were taking some steps to fix it as best they can," Mr. Bryant said. "He was found guilty and sentenced for a crime that he did not commit," he said.

It is a mystery why the man, who has not been identified, pleaded guilty to the crime if he was innocent. The plea came in the midst of his trial on the advice of his lawyer after hearing some of the evidence against him, sources said. It is not known what evidence led to his arrest.

In October, 2005, Bernardo confessed to several attacks he said he had committed two decades earlier. Toronto police assigned detectives in its Sexual Assault Squad to work with officers from the original "Scarborough Rapist" file in the 1980s to investigate Bernardo's claims. Four months later, Toronto police said no new charges would be laid against Bernardo. At the time, Deputy Chief Tony Warr said the cases included a number of assaults the force was aware of, but for which the victims did not wish to proceed with an investigation. In others, not enough information was provided by Bernardo to launch an investigation; still others may have gone unreported to police, he said at the time.

What was not addressed was the possibility of someone else having been convicted for any of the assaults that Bernardo claimed to have committed. Deputy Chief Warr could not be reached yesterday.

Accepting Bernardo's information comes with some baggage. Bernardo was interviewed just last month by police and Crown attorneys working on the appeal of Robert Baltovich, 41, who was convicted in 1992 of murdering his girlfriend, Elizabeth Bain. Baltovich spent eight years in prison before he was released on bail and granted a new trial. Baltovich's lawyers have long pointed to Bernardo as the likely killer of the 22-year-old Toronto woman. Bernardo, however, adamantly denied killing Ms. Bain, who disappeared in 1990 from her Scarborough neighbourhood. Bernardo said he did not know her and had never met her.

That might put both champions of the wrongfully accused and Crown prosecutors in an awkward position: believing Bernardo in one instance but dismissing him in the next. James Lockyer, Baltovich's lawyer, declined to comment on the matter as his client's case is still before the courts. A source familiar with the case believes that the freedom enjoyed by Bernardo's former wife, Karla Homolka, who was released from prison in 2005, has rekindled a belief that he, too, will one day get out of prison. To that end he is working to show his remorse and rehabilitation. Mr. Bryant, however, said his client simply "did what he thought was the right thing."

He said the government has acted quickly in seeking to remedy the situation. Sources say government officials are working on a settlement with the man despite no civil suit being launched. Such settlement could include a court application to have the conviction vacated. There might also be a financial component. "They haven't exactly sat back on the case. You can't fault them on that side," Mr. Bryant said. He has had no involvement in the case beyond helping to arrange Bernardo's jailhouse confessions.

Bernardo is serving a life sentence for the rape and murder of Kristen French, 15, and Leslie Mahaffy, 14, and has been declared a dangerous offender after a string of sexual assaults he committed during the late 1980s.

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Mullins-Johnson case grinds on

Toronto man imprisoned for niece's murder gets Appeal Court review; Federal justice minister says 'miscarriage of justice likely'. He said the same thing in late April. Why the delay?

Canada's justice minister has referred the case of a Toronto man, who served 12 years in prison after being convicted of killing his four-year-old niece, to the Ontario Court of Appeal. Rob Nicholson's decision announced Tuesday follows the revelation that the pathologist whose testimony led to William Mullins-Johnson's conviction may have been faulty.

Mullins-Johnson, 37, was convicted of first-degree murder in the June 1993 death of young Valin Johnson. However, there was no forensic evidence linking him to the crime. An independent panel reviewing 45 child autopsies performed by former chief pathologist Dr. Charles Smith found that he made mistakes in 20 of the investigations, and Mullins-Johnson's case was among those flagged as resulting in criminal convictions. The panel's findings were made public this April. Ontario then ordered a public inquiry into Smith's practices.

A Department of Justice media release issued Tuesday said Nicholson was satisfied "there is a reasonable basis to conclude that a miscarriage of justice likely occurred" in Mullins-Johnson's conviction in 1994.

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Canada: Police protect police and justice be damned

Honest cop (Joe Slemko) hindered from testifying against another cop

An internationally recognized police blood-spatter expert said his own force, the Edmonton Police Service, supplied the RCMP with information to attack his credibility at a hearing into the shooting death of a B.C. man by a Mountie.

The Edmonton police force has confirmed Edmonton Police Service Const. Joe Slemko is now the subject of an internal investigation for testifying, without Chief Mike Boyd's permission, at the public inquiry into the death of 22-year-old Ian Bush inside the RCMP detachment at Houston, B.C. "This is an example of the Edmonton Police Service acting to protect another police officer, no matter what the evidence," said Howard Rubin, the Bush family's lawyer. "This is exactly the sort of behaviour that undermines the justice system and causes it to grind to a halt."

Slemko, a 20-year veteran, had sought permission to testify at the coroner's inquest from Edmonton Police Chief Mike Boyd. In a June 19, 2007, memo, Slemko told Boyd he had been asked by the lawyer for the Bush family to review the RCMP investigation "in hopes of providing an explanation and some closure to the family that a proper and complete investigation was conducted and was consistent with [RCMP Const. Paul Koester's] version." Slemko also provided Boyd with his detailed findings because he was required by the city force to seek permission to testify as a private blood-spatter expert. Slemko already knew his request likely would not be granted. The police service had decided he could testify for the prosecution in criminal cases, but not the defence.

Senior management of the Edmonton Police Service, including Boyd, believed the police and the prosecution were "indivisible" and Slemko would be in a conflict if he testified for the defence. Boyd never responded to Slemko's request.

Instead, Slemko has confirmed, when a lawyer representing the RCMP called the Edmonton Police Service seeking information about Slemko that could be used to discredit him at the public inquiry, the city police provided that information.

According to evidence heard during the inquest, Bush was arrested outside a hockey game after he gave Koester a false name when stopped for having an open bottle of beer. In the detachment interview room where he was taken to be booked, a fight erupted and Bush ended up shot in the back of the head. Koester said Bush sucker-punched him, got the better of him and was at his back throttling him when the officer managed to free his gun and fire. But Slemko testified the physical forensic evidence did not support Koester's account.

During the July inquest, RCMP lawyer David Butcher vigorously attacked Slemko credentials, pointing out he was not a member of the Edmonton police forensic identification unit and was still a general duty constable after 20 years. At the height of the attack, Slemko, his bottom lip quivering, told Butcher: "If you want to challenge me, challenge me in court. Not through the back door."

Slemko told Butcher and the inquiry that he had twice been found guilty of insubordination for defying orders not to testify for the defence. "I told them that because I wanted to show that I felt so strongly about my principles that I was willing to suffer the consequences," Slemko said in a recent interview. As a private consultant, Slemko is paid for his testimony, but does not solicit or accept fees in cases involving what he believes is a wrongful conviction or a miscarriage of justice. "Joe considered the testimony in this case to be his public duty, in the same category as testifying for someone wrongfully convicted," Rubin said. "He specifically made it clear from the outset that he was not asking for any fee and I only paid his travel expenses."

In fact, in his memo to Boyd, Slemko said, "It is my strong belief and conviction that my personal duties and responsibilities are prioritized in the following order: for the public interest, my personal integrity, ethical values and conscience; the reputation and credibility of the profession of policing and, lastly, the interests' of the Edmonton Police Service."

After the Edmonton Journal publicized the police service's treatment of Slemko earlier this week, the Edmonton Police Commission asked Boyd to explain its policy at a commission meeting Wednesday night. Boyd has declined comment until after he appears before the commission.

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Man Suing For Wrongful Conviction In 1997 Attack

Police coercion again. Victim Recanted Her Identification Of Robert Wilson As The Man Who Slashed Her Throat

CHICAGO: A man who spent nine years in prison for attacking a woman and was later exonerated is now suing the Chicago Police Department and others. CBS 2's Kristyn Hartman reports that the federal lawsuit says Robert Wilson spent nine years in prison for a crime he didnt commit. He was exonerated last year when the victim recanted her identification of Wilson as her attacker. But Wilson had already lost almost a decade of his life behind bars, missing out on things like raising his kids and pursuing a career. "Going through the system was very stressful and very degrading ... You know, it's hard to sit in the penitentiary for something you didn't do," Wilson said.

Wilson's ordeal began in March of 1997. Police arrested him at the same bus stop where a woman was attacked the day before, her throat slashed. His suit says Chicago police officers forced a confession out of him after threatening him, intimidating him, denying him medication and promising him leniency if he did confess.

The complaint also says a series of similar attacks followed Wilson's arrest. Another man was charged in those cases, but Wilson's attorney was barred from presenting that as evidence during his trial.

For all those reasons and others, WIlson and the man representing him from the MacArthur Justice Center hope to send a message. "The message that this lawsuit has to send is that it's time for the police to get control of their operation. I mean, you know, we see this over again and again; police systematically engaging in abuse of people that they are interrogating; manipulating eyewitnesses; producing erroneous convictions," said attorney Locke Bowman.

They're suing for unspecified damages. The suit also names as defendants an assistant Cook County state's attorney, the City of Chicago and Cook County. CBS 2 has not been able to get comment from any of those agencies, but at least one said that they plan to have some sort of statement later in the day.

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Great! One crooked lawyer in the dock in Australia

Far too rare

A 34-year-old Perth lawyer has been charged with attempting to pervert the course of justice by trying to stop a witness testifying at a trial. The woman, from east suburban Shenton Park, was the instructing solicitor for a defendant in a trial which started in August 2006, police say.

"When a potential witness came forward during the time of the trial, he was then allegedly contacted by the woman and advised not to give evidence," police said in a statement. The witness subsequently told prosecutors he no longer wanted to testify.

The woman is due to appear in the Perth Magistrates Court on Friday, charged with attempting to pervert the course of justice.

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Withheld evidence again

Colorado in the dock:

Timothy Masters' current bid for a new trial hinges on the belief that not only could someone else have committed the murder, but that the jury would have agreed if only they'd been given information by the prosecution about other people who defense lawyers believe should have been considered as suspects in Hettrick's death. One of them was a confessed murderer who killed two women the same year Hettrick was murdered by stabbing them in the back; another confessed specifically to killing Hettrick.

While either of these individuals may have cast doubt on Masters' guilt in the eyes of the jury, none offered as compelling -- or complicated -- a case as that of Dr. Richard Hammond, a prominent Fort Collins eye surgeon who was arrested in 1995 for surreptitiously videotaping girls and women in his guest bathroom. Hammond had set up his video equipment to film extreme close-ups of his victims' genitals, and when police searched his house, they found hundreds of videotapes labeled with victims' names.

Some of the victims were family members of those in the District Attorney's office, creating a conflict of interest that required the office to disqualify itself from prosecuting the crime. However, the Hammond case never got to the prosecution stage. After his arrest, Hammond was placed on a 72-hour mental health hold, but shortly after he was released from protective custody, he checked into a Denver hotel and committed suicide.

According to court documents, several police detectives believe Hammond should have been thoroughly investigated for Hettrick's murder. Not only did he have an obvious morbid fascination with female genitalia, he also had the medical skill and biological knowledge to perform the precise and delicate excisions that were performed on Hettrick's body. Finally, Hammond's home, like Masters', overlooked the field where Hettrick's body was discovered.

But rather than expand their investigation of Hammond, police instead closed the case after his suicide -- in fact, investigators didn't even look at all the videotapes to see if Hettrick appeared on one. Instead, they burned the evidence to spare Hammond's victims, including family members of those in the DA's office, further embarrassment and humiliation.

The defense knew nothing of this investigation, or that some members of the police department thought Hammond should have been investigated as a suspect in Hettrick's murder. "The evidence appears extremely strong and incontrovertible that we weren't given the information we needed," said Erik Fischer, who along with Nathan Chambers (who also served on Oklahoma City bomber Tim McVeigh's defense team) represented Masters during his trial and appeals. Fischer adds that he believes Gilmore "perjured himself" during Masters' trial when he told the jury that law enforcement had cleared all other suspects in Hettrick's murder. "I believe ... we should have gotten Hammond as an alternate suspect," he said. "I think Tim would have walked in 10 minutes."

Through a message left by a court assistant, Gilmore declined to comment for this article, citing the ongoing litigation in the Masters case. Blair is out of town and was unavailable to respond to a request for comment. The lead detective in the Masters case, Jim Broderick, also declined to comment in light of the possibility of a new trial.

But Stuart Van Meveren, the district attorney at the time of Masters' trial, said it was up to the judgment of investigators and prosecutors to decide what information to turn over to the defense. "Those decisions were left to the investigating agency," he said, "and if they knew about (the cases), they obviously thought they weren't significant." He said he doesn't believe Gilmore or Blair did anything wrong. "They're both outstanding prosecutors and very ethical individuals," he said, "and that's evident in that they both were appointed to the bench."

Other observers aren't as certain. Daniel Coyne, an associate professor of clinical law at the Chicago-Kent College of Law, said that it's not up to the prosecution to decide what is relevant for the defense. "The case law is really clear that that's not the prosecutor's right to make that determination," he said. "If it's useful to the defendant, then a prudent prosecutor will turn over (the evidence) or make it available for inspection. "If there was a decision to withhold information," Coyne continues, "and the response as to why the information was withheld was that, 'we didn't determine it to be important,' that may call into question the competency of the people who made that decision."

It could also call into question their motives, said Richard Moran, a professor of sociology and criminology at Mount Holyoke College in Massachusetts. Moran recently completed a study of wrongful convictions in death penalty cases. He found that since the death penalty was reinstituted in the late 1970s, 81 of 123 exonerations were the result of what he calls "illegal prosecutions." "When there is a wrongful conviction, if that's what the court ends up deciding, they're not usually the result of good faith efforts," he said, "but the result of a criminal or malicious act committed by one of the members of the court, either the police, the prosecutors or sometimes the judges. "You put a guy in jail for life because you're convinced that he did it. You don't want to share evidence that he might not have done it with the defense because you think he's going to walk, so you misbehave so that he gets convicted."

Gavaldon, the Fort Collins attorney, said it's up to the courts to decide whether information in the Masters case was improperly withheld. But he agrees with Moran. "The criminal justice system is not an arena for hide and seek," Gavaldon said. "What ensures that justice is served is that there is full disclosure on both sides, of all the evidence, so that those issues are decided by a jury on something as serious as a life sentence."

It remains to be seen if Masters will get a new trial, but defense attorneys Maria Liu and David Wymore are gaining momentum in that direction since beginning in 2003 a so-called 35 (c) proceeding, which seeks a post-conviction review of the trial. This is different than the appeals in which matters of evidentiary rules and the introduction of character evidence were reviewed and found to be sound; the hearings now being prepared for will determine if Masters deserves a new trial based on the allegations of prosecutorial misconduct and defense inadequacy.

Since 2003, his attorneys have succeeded in having the entire Eighth Judicial District removed from the case. Likewise, the Larimer County District Attorney's Office has turned the case over to special prosecutors from Adams County after the defense filed a motion in January alleging a conflict of interest. Although a hearing on whether or not to grant a new trial will be held in Fort Collins, the case is now in the hands of the special prosecutors and a retired judge under special contract to hear motions in the case.

Recent allegations point to why the defense doesn't want the locals involved in the case any further. In court documents filed in January, Masters' lawyers claim that evidence from the victim was illegally sent by the District Attorney's office to the CBI lab in Denver, where it was subjected to destructive DNA testing. Masters had been granted a motion allowing his own DNA testing to look for evidence that someone else killed Hettrick, but before the evidence was turned over, the DA's office sent the material to the lab for its own testing. This, Masters' lawyers argue, amounts to theft and destruction of evidence.

The DNA evidence is crucial to the defense's contention that Masters deserves a new trial. In an affidavit filed with the court, forensic investigator Barie Goetz -- who worked for the CBI from 1981 to 2004 and is now employed by Masters' defense team -- outlined an entirely new scenario explaining Hettrick's death that he believes can be proven by DNA. He believes the evidence will show that Hettrick was not murdered or mutilated where her body was found, but stabbed in the back while seated in a car. He said the evidence will also show that her mutilations were surgical in nature and occurred at "a suitably equipped location other than the scene at Landings" and that two people carried her body into the field and left in a vehicle.

If any of this turns out to be true, or even possible in the minds of jurors, it could lead to Masters' acquittal. And an overturned murder conviction could wreak havoc in the Eighth Judicial District and those who tried the case the first time. "If in fact he is innocent or he did not get a fair trial, that obviously reflects badly on the justice system," said Pat Furman, who was a defense attorney for 20 years before his current position as professor of clinical law at the University of Colorado-Boulder. "If there was prosecutorial misconduct, it might rise to the level of something that the (state) Supreme Court looks at in terms of unethical behavior."

Furman said sanctions could involve disbarment, which, in the case of Gilmore and Blair, would mean they could no longer serve as judges since district judges are required to be lawyers. There could also be criminal penalties, he said. Repercussions could also be felt more widely, since an overturned verdict could lead to other appeals on the same grounds in different cases.

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NJ: Another DNA exoneration

Innocent man jailed as a result of predatory police interrogation -- while the real offender went on offending

Byron Halsey, who narrowly escaped the death penalty when he was convicted in 1988 of the brutal sexual assault and murders of two young children in New Jersey, was fully exonerated earlier this week based on DNA evidence that proves his innocence. Halsey’s conviction was vacated on May 15, and at a hearing Monday the Union County District Attorney’s Office dismissed pending indictments against Halsey because he is innocent. Halsey is the 205th person nationwide – and the fifth in New Jersey – exonerated based on DNA evidence, according to the Innocence Project, which represents Halsey.

“Byron Halsey has waited 22 years for this day. For 22 years, he has waited to walk into court and have prosecutors and the judge acknowledge what he always knew but what nobody would believe – that he is innocent,” said Vanessa Potkin, staff attorney at the Innocence Project, which is affiliated with Cardozo School of Law at Yeshiva University. “Byron can now begin the long, slow, difficult process of rebuilding his life. We hope the community will continue to embrace and support him, and we hope the state compensates him promptly and appropriately for the unimaginable ordeal he has endured.”

Halsey’s conviction was overturned in May after DNA testing on several key pieces of evidence used to convict Halsey actually indicated the guilt of another man, Cliff Hall, who is already in prison for several other sex crimes in New Jersey and who testified against Halsey during his trial. In March 1988, Halsey was convicted of several charges stemming from the November 1985 murders of a seven-year-old girl and an eight-year-old boy he was raising with his girlfriend; Hall, who lived next door to the family, had dropped Halsey off across town and then returned home on the night the children were brutally killed.

DNA testing over the last 16 months links every critical piece of physical evidence from the crime to Cliff Hall, not Byron Halsey, the Innocence Project said. The District Attorney’s office consented to the DNA testing, which was conducted in state labs and at Orchid Cellmark, one of the nation’s leading private labs, which provided some of the testing pro bono. The physical evidence that was subjected to DNA testing includes semen on the seven-year-old girl’s underwear, semen elsewhere at the crime scene and a cigarette butt at the crime scene. The cigarette butt was central in the initial police investigation of the crimes, and the semen was linked to Halsey (through blood typing, since DNA testing was not available) and used to convict him. DNA testing on both semen samples and the cigarette butt matches Cliff Hall, according to papers filed jointly by the Innocence Project and the Union County District Attorney’s Office. Hall has now been charged with the crimes for which Halsey was wrongfully convicted.

The brutal rapes and murders of the two children were among the most horrific crimes in memory in Northern New Jersey, and the prosecution sought the death penalty for Halsey. The girl had been brutally raped, beaten and strangled to death. The boy was sexually assaulted, and a piece of cloth had been hammered into his head with large nails while his face had been slashed with scissors (it was later determined that he died as a result of the nails being hammered into his brain). In public statements in 1987 leading up to the trial, one of the public defenders who represented Halsey accused the prosecution of “encouraging a lynch mob kind of feeling.” When the jury returned a verdict convicting Halsey on multiple charges, but not on charges that would have led to a death sentence, spectators in the courtroom jeered loudly.

“By the grace of God, Byron Halsey is alive today to clear his name. He came within a hair’s breadth of being sentenced to die and ultimately being executed for a crime that DNA now proves he didn’t commit,” said Barry Scheck, Co-Director of the Innocence Project. Earlier this year, a New Jersey Senate committee approved legislation that would abolish the death penalty in the state. “It is impossible to think about the risks and costs of the death penalty in New Jersey without thinking of Byron Halsey – and realizing just how close the state came to sentencing an innocent man to die,” Scheck said.

Since the May 15 ruling that vacated his conviction, Halsey has been out of prison on bond, living under state supervision (on electronic monitoring) while the District Attorney decided whether to dismiss the indictment against him. He has been living in an apartment in the Newark area and recently started a job making signs and banners at a local company, Potkin said.

New Jersey is one of 22 states nationwide with a law compensating people who were wrongfully convicted. New Jersey’s law does not provide any services (job training, health insurance, college tuition, etc.). It provides $20,000 for each year of wrongful incarceration or twice the amount of the individual’s annual income at the time he was wrongfully convicted (which, as in Halsey’s case, is often at or below the poverty level). The federal government (for federal cases) and an increasing number of states provide $50,000 for each year of wrongful incarceration; Texas legislators just passed a law doubling compensation for exonerated people, from $25,000 per year to $50,000 per year.

“From implementing eyewitness identification procedures that improve accuracy to preventing false confessions by requiring that interrogations be recorded, New Jersey has been a leader in reforming the criminal justice system to address wrongful convictions. But the state does not adequately compensate people who were wrongfully convicted, which has devastating consequences. It’s impossible to undo such a grave injustice, but when the state robs an innocent person of decades of freedom it has an obligation to provide services and adequate financial compensation,” Potkin said. Larry Peterson, an Innocence Project client who was exonerated a year ago after more than 16 years of wrongful incarceration, has still not been compensated – and struggles to make ends meet, which includes caring for his family. The state fought his claim for compensation under the New Jersey law, and he has since filed a civil lawsuit (represented by private attorneys).

The events leading up to Halsey’s wrongful conviction began on Nov. 14, 1985. Halsey was living with Margaret Urquhart and her two young children in a rooming house in Plainfield; Halsey helped support the family and raised the children as his own. Halsey worked days at PMS Consolidated, and Urquhart worked nights as a health aide. On the night of Nov. 14, Urquhart was at work and Cliff Hall (who lived in the same building) took Halsey across town while the children were home alone. After dropping Halsey off with friends, Hall went home. Cliff Hall’s whereabouts are unaccounted for the following two hours. Halsey, meanwhile, walked home a couple of hours after Hall dropped him off (which several witnesses corroborate) and discovered that the children were missing. Throughout the night, he repeatedly called Urquhart at work and checked with several friends and relatives to see if they had the children. The next morning, the children were found in the basement of the rooming house.

From his behavior and other evidence, police suspected Cliff Hall from the beginning. But as the lengthy interrogation of Halsey progressed, leading to a supposed confession, police stopped investigating Hall. The supposed confession was the result of 30 hours of interrogation over a 40-hour period of time during which Halsey (who has a sixth-grade education and severe learning disabilities) had little sleep. Even the detective handling the interrogation characterized Halsey’s statements as “gibberish.” On every key fact of the crimes, Halsey gave incorrect answers during the interrogation and had to guess several times before giving police accurate answers (on everything from the location of the bodies to how they were killed). Halsey “confessed” to things that DNA now proves did not happen.

By the time Halsey’s trial began, nearly three years later, Hall was called as a witness for the prosecution. Even though his testimony was contradicted by other witnesses, it was damaging to Halsey’s case. Halsey’s attorneys, both public defenders, presented evidence of Halsey’s alibi and argued strongly that his supposed confession was not valid. Regardless, the jury convicted him. Halsey – who had actually been born in prison in New Jersey to a mother who was convicted of fornication and essentially put in prison for being pregnant – was sentenced to two consecutive life terms, plus 20 years, in prison.

Cliff Hall committed three separate sex crimes in Plainfield during an 11-month period in 1991-1992. In June 1991, he grabbed an 18-year-old woman from behind on a street and, holding a knife to her throat, orally, vaginally and anally raped her for up to three hours. Three months later, he abducted a 19-year-old woman and took her to a building where he repeatedly and violently raped her vaginally and anally for two hours. Several months after that, he punched and attempted to rape a 26-year-old woman as she walked toward a train station in Plainfield. Hall pled guilty to all three of these crimes (all off which were committed while Halsey was in prison for the murders that DNA now indicates Hall committed).

As in Halsey’s case, DNA in more than 37% of exoneration cases nationwide also helped identify the true perpetrator of the crimes. Raymond M. Brown of Greenbaum, Rowe, Smith & Davis in Woodbridge is co-counsel with the Innocence Project on Halsey’s case.The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent further injustice. 7-11-07

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Doing time for no crime: A young man freed after being wrongly imprisoned argues for three remedies

By Arthur Carmona

ONE WEEK after my 16th birthday, I was arrested and charged with crimes I did not commit. I remained behind bars in a life unsuitable for any innocent person. After I served nearly three years of a 17-year sentence, the real facts of my case began to emerge and a judge let me go free. My life, however, will never be the same, and I am determined to change the laws that make it so easy for innocent people to be convicted.

On Feb. 12, 1998, I decided to visit a friend. While I was walking down a residential street, a Costa Mesa police officer stopped me at gunpoint. I was handcuffed and surrounded by other police officers with guns drawn. One officer forced a baseball cap onto my head and made me stand on the curb. I did not know it at the time, but witnesses from a robbery had been brought to identify me in what is known as an "in-field show-up," a procedure that is highly likely to produce mistaken identifications. I was arrested in connection with 13 strong-arm robberies.

My mother was able to gather evidence proving that her 15-year-old son was in school during 11 of the robberies. But we had no evidence to prove that, at 2 a.m. on a school night, I was home asleep while someone robbed a Denny's restaurant, and we had no proof that I was home baby-sitting my 11-year-old sister during the time a juice bar in another city was being robbed.

The getaway driver, a parolee with a long criminal record, admitted being involved in the robberies. He first told police he did not know me and that I was not involved. Then the Orange County district attorney offered him a sentence of two years if he would say I was. He took the plea bargain and his story changed; he was freed from prison before I was.

The court found me guilty of two strong-arm robberies, and I was facing 35 years for crimes I took no part in. The judge sentenced me to 12 years in state prison. I was 16, with no criminal record. I would have been eligible for parole in nine years, with two strikes to my name, one strike away from a life term.

Two and a half years later, just before my hearing on getting a new trial based on a writ of habeas corpus, the Orange County district attorney offered me a deal, and after three years of suffering beatings, threats and degradation in a series of juvenile and state prisons, I accepted it. I signed a "stipulation" — a piece of paper stating that I would not sue any city, county or state prosecutors. Orange County Superior Court Judge Everett Dickey ordered me released and my felonies vacated.

Although I could finally go home, I could not go back to my old life. While I was behind bars, my high school class graduated without me. I was no longer the fun-loving teenager I once was. The criminal justice system took my innocence from me. I have not received any compensation, or even an apology. And the two felonies remain on my record, despite the judge's order and the intervention last year of then-Atty. Gen. Bill Lockyer.

Now, I am fighting to prevent wrongful convictions and to help innocent people still in prison. I am also supporting a series of state bills that would make it harder for what happened to me to happen to other people. I have traveled to Sacramento in the last two years to urge the Legislature to pass legislation that would help prevent wrongful convictions. Two of these bills passed last year, only to be vetoed by the governor. This year, three bills are being considered.

Senate Bill 756, sponsored by Mark Ridley-Thomas (D-Los Angeles), would require the state Department of Justice to develop new guidelines for eyewitness identification procedures. For example, guidelines in other states limit the use of in-field show-ups like the one that led to my wrongful conviction.

Senate Bill 511, sponsored by Elaine Alquist (D-Santa Clara), would require recording of the entire interrogation, including the Miranda warning, in cases of violent felonies. Electronic recording of interrogations would not only help end false confessions but also discourage police detectives from lying during interrogations — as they did in my case by claiming to have videotaped evidence of me.

Senate Bill 609, sponsored by Majority Leader Gloria Romero (D-Los Angeles), would prevent convictions based on uncorroborated testimony by jailhouse snitches.

The Legislature should pass all three bills, and the governor should sign them. These reforms are urgently needed to prevent wrongful and unjust incarcerations.

Prison is no place for an innocent man, let alone an innocent kid.

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Australia: Police sued over murder charge

About time police got sued for arresting people on suspicion only!

POLICE had no evidence against a man they arrested for a 2001 murder and had merely been trying to satisfy a theory they'd concocted, a court has been told. The case – which looms as a test of the standard of evidence required by police to arrest and detain suspects – stems from the arrest of Toowoomba university student Neil Ferguson in 2001 after police alleged he had killed and dismembered a local drug user, Nicholas Moore.

Police made the grisly discovery of the headless, limbless torso at Helidon on May 5, 2001. Ten days later, police arrested Mark Ferguson. Believing the crime must have involved two people, police also arrested Mark's brother Neil Ferguson. Mark Ferguson's first trial ended in a hung jury and he died of an overdose before a second trial could begin. The case against Neil Ferguson was thrown out nine months after he was charged, when a Toowoomba magistrate found there was no evidence against him.

Neil Ferguson, 24, is suing the State Government and police officer Detective Senior-Sergeant Marc Hogan over his arrest, arguing that police made a quantum leap from believing he was at the crime scene about the time of the murder to believing him to be a murderer. He is claiming general damages of $250,000 and a further $200,000 in economic loss.

Senior police officers have admitted in evidence at a civil trial in Toowoomba Supreme Court this week that they had only circumstantial evidence against Neil Ferguson. Barrister Peter Nolan, for Neil Ferguson, said police had nothing more than a theory, and set about arresting two people who fitted their scenario. "That mindset makes the arrest of my client unlawful," he said. Justice Ann Lyons reserved her decision to a date to be fixed.

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Australia: Crooked cop behind wrongful conviction

Previous mention of the Stafford case on June 3rd

ONE of the state's most notorious killers will launch a fresh bid to clear his name within weeks as a cloud hangs over the detective who produced one of the key pieces of evidence to convict him. Graham Stafford remains adamant that he did not kill 12-year-old Ipswich schoolgirl Leanne Holland in 1991 and his family are planning an appeal to overturn the conviction, despite his release on parole earlier this year.

It comes as the Crime and Misconduct Commission continues to probe Detective Senior-Sergeant Graham Richards, the officer who arrested and charged Stafford for the brutal slaying. Sgt Richards was last month identified as one of four officers at the centre of an investigation by the CMC over alleged improper relationships between prisoners and police. Sgt Richards, the officer in charge of Rockhampton CIB, has been stood down pending the outcome of that investigation.

He was disciplined for a separate matter when the CMC found that he failed to comply with police guidelines and the Police, Powers and Responsibilities Act 2000; unlawfully detained a woman and lied to CMC investigators during a disciplinary interview.

Sgt Richards was serving as a senior-constable when assigned to investigate Holland's murder. His evidence at Stafford's trial was crucial in securing a murder conviction.The Courier-Mail, which broke the news of the CMC investigation, can reveal that Sgt Richards was responsible for identifying a maggot – used as a crucial piece of evidence – found in the boot of his car as being of similar size to one found on Holland's decomposing body.

Stafford's mother Jean told The Courier-Mail yesterday she "couldn't help but notice" the link and hoped it would boost her son's push to have his name cleared. But, she said she did not want to comment further so as not to interfere with an appeal against her son's conviction expected to be lodged within the next few weeks. "I have to be careful what I say (at the moment)," she said.

Sgt Richards and his partner, Detective Senior-Constable Allan Fynes-Clinton, were also responsible for interrogating Stafford and subsequently charging him with her rape and murder. Shortly after the murder, Constable Fynes-Clinton told Stafford's committal hearing that Sgt Richards had been the officer who reported finding a maggot.

Stafford, 44, continues to deny any involvement in slaying Holland with a hammer. Holland disappeared from the Goodna home she shared with Stafford and her sister, his girlfriend, on September 23, 1991. Her body was found in bushland at Redbank Plains three days later. Stafford was convicted of her murder on March 25, 1992. Stafford launched two unsuccessful appeals against his conviction. In rejecting his second appeal in 1998, Justice Michael McHugh made special reference to evidence against Stafford, including the maggot reported by Sgt Richards. "You have blood and maggots linked to the girl in the car boot, a missing mallet, his car tyre marks at the scene, an injury to his arm he could not explain, the fact he put out the garbage when it was not his job, the fact he was alone with the girl – these are just a few," Justice McHugh said.

A police spokeswoman yesterday said Commissioner Bob Atkinson would not comment due to the ongoing CMC investigation. A spokesman for Attorney-General Kerry Shine said the department had yet to receive any petition for Stafford to be granted a pardon.

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California panel to probe wrongful convictions and withheld evidence

For 20 years, Mark Sodersten insisted he was innocent of the brutal murder of a Visalia woman that sent him to prison for life. Year after year, Sodersten lost one court ruling after another. Finally, in January, an appellate court ruled that he "most certainly did not receive a fair trial" in Tulare County because the prosecution team improperly withheld evidence that could have cast doubt on two key witnesses. But the ruling was too late for Sodersten. He had died in prison months earlier.

The case of Mark Sodersten - which the court said "calls to account the American system of justice" - is one more striking example of the damage that can be done when errors infect trials, an issue documented throughout last year by the Mercury News series "Tainted Trials, Stolen Justice." The series established that questionable conduct by prosecutors, defense lawyers and trial judges often infects Santa Clara County criminal trials and that such conduct increases the small but significant chance of wrongful convictions.

A state commission Wednesday will examine the impact prosecutorial misconduct and ineffective defense have on wrongful convictions. Wrongful convictions involve two common errors: either prosecutors have withheld evidence or defense attorneys have failed to devote adequate time and money to their cases. For Sodersten, the issue was tape-recorded statements from the victim's 3-year-old daughter and a witness whose fingerprints were found at the crime scene - statements the defense contended were never turned over.

Sodersten was prosecuted, initially by Ronn Couillard and at trial by Phillip Cline. By the time his conviction was overturned, Couillard had become a Superior Court judge in Tulare County and Cline the county's elected district attorney. Both men gave sworn declarations to support the state's contention that no evidence was withheld; their practice, they said, is to turn over such statements. Nevertheless, a three-judge panel of the 5th District Court of Appeals concluded that the tapes were wrongly withheld and found that failure "carried with it grave risk of convicting an innocent man."

The integrity of the system was compromised "by the conduct of the very people who are sworn to uphold the system, and who are charged with seeing that justice is done," wrote presiding Justice James A. Ardaiz.

In any trial, the prosecutors' duty seems clear enough: They are required to turn over all material evidence that might help the defense, whether it is in their files or in the files of police, prosecution experts or other members of the prosecution team. But that duty is not as simple as it seems. Disputes over withheld evidence have repeatedly marred Santa Clara County cases and are frequently contentious, with both sides arguing about the value of the information.

Sometimes, the argument hinges on who is a member of the prosecution team. That is the case with Agustin Uribe, convicted last year on charges that he had sexually assaulted a child. Uribe insisted he was innocent and the girl's version of what happened was not consistent. That gave special importance to the findings of a physical examination of the girl conducted by Mary Ritter, a physician's assistant at Santa Clara Valley Medical Center. Ritter concluded that the exam supported the allegation of sexual assault.

But experts disagreed about whether photographs taken during the exam supported Ritter's conclusion. The defense expert, Dr. Theodore Hariton, concluded that Ritter was misreading the images and focused on one key photograph to support his view. Ritter's boss testified that the defense expert was relying too heavily on a "bad photograph" with a shadow. Only after Uribe's conviction did the defense learn a videotape of the exam existed, which provided additional evidence. Hariton contended that the videotape reinforced his conclusion that no sex occurred.

When Uribe sought a new trial based on the withheld evidence, the district attorney's office argued that the videotape was conducted for training purposes only. As a result, they said, the prosecutor had no duty to provide it to the defense. Trial Judge Paul Bernal agreed. Uribe has appealed to the 6th District Court of Appeals.

Minutes after Dennis Sierra killed his grandfather, police made a tape recording of his statements that was not turned over to the defense until after Sierra's conviction for first degree murder in 2005 by a Santa Clara County jury. The issue on appeal is whether that tape provides important evidence of Sierra's mental state. No one disputed that Sierra suffered from significant mental illness. The jury heard testimony that at the time of his arrest, Sierra was walking the streets, naked, with his eyes closed, saying he was a government agent named James Dean. But deputy district attorney Richard Titus, who has since retired, contended that Sierra was exaggerating his symptoms to avoid punishment.

It is not clear why the tape was not turned over. Court records show that before trial, Deputy Public Defender J.J. Kapp repeatedly asked Titus for the tape without success. After he finally got it, Kapp contended the conviction should be overturned based on the withheld evidence. A Superior Court judge rejected that motion, agreeing with the prosecution that jurors heard sufficient testimony from police about Sierra's statements that night.

When the case was argued last month before the 6th District Court of Appeals, Sierra's appellate lawyer, George L. Schraer, said the tape provides a far more powerful picture of Sierra's mental state. The court has not yet ruled. But Presiding Justice Conrad L. Rushing telegraphed his sense of the evidence: "The tape is devastating," Rushing said in court. "It's very helpful to the defense" and demonstrated that Sierra had "very serious problems." ....

Inadequate defenders

One critical way defense attorneys can save time and money is if defendants agree to plead guilty ahead of time, forgoing the expense and time of a trial. Last month, a federal district court overturned the conviction of Milan Pakes after finding that Pakes' San Jose attorney, Miguel Chacon, wrongly advised his client to enter a guilty plea that clearly was not in his interest.

Pakes was arrested after he hit the rear of an off-duty police officer's vehicle and sped away. There was a 12-year-old girl in Pakes' car, and he was charged with evading arrest and endangering a child. Santa Clara County prosecutors dropped the evading arrest charge in return for a guilty plea to endangerment. Pakes - who was a "three strikes, you're out" defendant - received a sentence of 26 years to life.

But the federal court concluded that Chacon never advised Pakes of a key legal issue: It was unlikely he could be convicted of both charges, meaning there was no benefit to Pakes in pleading guilty to the "third strike" crime. Chacon testified that he did tell Pakes of the legal issue, but last month, U.S. District Judge Vaughn R. Walker accepted a magistrate's finding that Chacon's testimony "lacks credibility." That conclusion was based on several factors. There was nothing in Chacon's file suggesting he had researched the issue. And because Pakes gained nothing from the plea bargain, the court ruled, that suggested he thought he faced a longer sentence if he went to trial.

The determination that Chacon was not believable marked the second time in a year that a federal judge has found Santa Clara County defense attorneys not credible when they have been called to explain their performance. Last year, U.S. District Judge Jeffrey S. White overturned the robbery conviction of Michael Hutchinson, finding that Hutchinson's attorney, Dennis Kazubowski, failed to properly investigate the case and that the attorney's post-trial explanations were not credible.

Chacon's representation of Carlos Toscano, convicted of raping a child, is also at issue in an upcoming Santa Clara Superior Court hearing. The appellate court ordered that hearing into evidence the jury never heard: Toscano had undergone a series of reconstructive bone surgeries and was wearing metal frames and a cast at the time of the crime, and medical evidence raised doubts about whether the girl had been raped. Chacon could not be reached for comment. He failed to respond to a letter and phone calls from appellate attorney Philip Brooks about the matter, court records show.

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Appeals Court Rejects Compensation for SF man who was declared innocent

Amazing: No "innocent until proved guilty" in the People's Republic of California, it seems

A California appeals court has rejected a claim for $445,000 in state compensation by a San Francisco man whose murder conviction was overturned after he spent nearly 14 years in prison. The Court of Appeal said on Thursday that John Tennison, 35, hadn't met the "heavy burden of proof" needed to prove he was innocent of a 1989 murder, even though a Superior Court judge granted Tennison a finding of factual innocence.

The court said the standard for proving innocence to gain compensation from a state board was different from the standard used when Tennison won the finding of factual innocence in 2003. The court upheld decisions by the California Victim Compensation and Government Claims Board and a Superior Court judge denying Tennison compensation.

A state law allows people who can prove they were innocent of a crime for which they were imprisoned to claim compensation of $100 for each day wrongly spent in prison. The board found in 2004 that evidence in the case was inconsistent and Tennison hadn't proved he was innocent.

Tennison was originally convicted of murdering Roderick Shannon, 18, in a gang-related killing in the Vistacion Valley section of San Francisco on Aug. 19, 1989. Tennison was 17 at the time of the slaying and was tried as an adult in San Francisco Superior Court. Tennison appealed in the federal court system after losing state court appeals. In 2003, U.S. District Judge Claudia Wilken of Oakland overturned the conviction on the ground that prosecutors had suppressed five key pieces of evidence that favored his claim of innocence. Tennison was released from prison and later in 2003 obtained a Superior Court declaration of factual innocence.

Daniel Purcell, an attorney for Tennison, said he is considering an appeal to the state Supreme Court. Purcell said, "We're disappointed. We think this process was set up to deny John relief."

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N. Ireland: McMenamin case should never have gone to trial, judges admit

A confession coerced by police again

Derryman Charlie McMenamin against whom trumped up charges were quashed on appeal last month, has said the lengthy legal battle to clear his name has been worth it - if it means others are spared the abuses he suffered. McMenamin was speaking after three Appeal Court judges presented their final submissions to the High Court in Belfast in which they ruled the case against him should never have gone to trial. They upheld all of the concerns raised by the Criminal Cases Review body.

The way is now clear the way for McMenamin to pursue aggravated damages but he insists compensation should be automatically awarded in cases where a clear miscarriage of justice has been exposed. McMenamin says he will now have to “jump through hoops” to win his entitlement.

Charlie McMenamin, who was 16 at the time of his interrogation, signed false confessions written by his RUC interrogators, following almost three days of physical and mental torture. Despite being a juvenile, he was refused a legal representative or an independent adult.

The latest development is also likely to encourage others who while underage were denied access to a solicitor, to seek to have their convictions overturned.
McMenamin’s solicitor has said the case for aggravated damages was strengthened by the Appeal Court’s final conclusions. “The judges concluded that this man could not have been guilty of the charges brought against him. And we will be pursuing the Secretary of State for compensation”, he said. “The DPP’s direction that some of the charges should have been dropped, didn’t happen and that enhances the claim for compensation for the three years Mr McMenamin spent in custody.”
Paddy McDermott, added the successful outcome of the McMenamin challenge, may encourage other victims to seek redress. “Anybody who made statements under 18-years-of-age without access to either a solicitor or another adult certainly have grounds for seeking to have their convictions quashed - even if they pleaded guilty. “This decision confirms the Mulholland ruling that the conviction of anyone underage is unsafe”, he said.

But Charlie McMenamin pointed out: “I never expected an apology from the state - after all this was a system that allowed those things to happen. What’s important for me isn’t the compensation - it’s the scrutiny that ensures that what happened to me cannot happen to anyone else. “My legal representative will seek compensation - that’s the next step. But the long-drawn out nature of these processes leaves a lot to be desired. “When convictions are quashed on appeal - compensation should be automatic. Yet despite what I went through, I’ll now have to jump through hoops to even pursue that - and that’s unfair.”

He continued: “I was never ashamed of being in prison, after all I was imprisoned because of the political climate at the time and was therefore a political prisoner. I certainly wasn’t ashamed of the people I knew in prison, we were all political prisoners - many of them are still amongst my closest friends. “I wasn’t that political when I went in - but by the time I came out I was seething with hatred for the system. “What I went through changed me and because of the way I was treated, it also had a profound effect on many of my friends. “After the Guildford Four, the Birmingham Six, the Maguires - the British establishment knew it had to change the system. “This has been a tough process but the circumstances never existed before to challenge the British judicial system with any real confidence. “And I’m glad that I’ve seen it through to conclusion.”

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More background:

During the McMenamin appeal hearing the court heard vital evidence that was not put before the court during the original trial 27 years ago. The evidence revealed that on the day the schoolboy was alleged to have been involved in a gun attack, McMenamin was in a juvenile training centre after running away from home.

Prior to the 1980 trial, on the basis of this evidence an official for the Director of Public Prosecutions decided that all charges against McMenamin should be dropped. The RUC in Belfast and Coleraine were informed of the DPP’s decision by letter but the directive was not communicated to the Crown prosecutor and the trial went ahead.

Speaking at the Appeal, barrister Eilish McDermott told the court that rules had been broken when the teenager was interrogated alone over a three-day period. McMenamin was a juvenile and the law required a parent or solicitor to be present. McDermott told the court that at the time the teenager had told a doctor that the RUC had kicked him and he had only signed a confession to avoid further mistreatment. Appeal Judge Campbell said it was appropriate to announce immediately that the convictions should be quashed.

Commenting Sinn Fein MLA Raymond McCartney, himself a victim of a miscarriage of justice, said the case highlighted the injustices of the Diplock system. “Apart from the jail sentence Charlie also accrued a record which has hindered him in finding meaningful employment as well as other impediments. The Appeal Court decision is a vindication of Charlie’s campaign to have the conviction quashed,” said the Derry MLA.

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Japanese coverup

A 40-year-old Toyama Prefecture man who spent 25 months in prison after being wrongfully convicted of rape and attempted rape said before his retrial that he wants more than a simple acquittal. "Just being declared innocent is meaningless," the man said. "I want the retrial to reveal the whole truth."

His false conviction came out when another man confessed to the two crimes. The innocent man has every right to know why he became a victim of such a flagrant judicial error. But disclosing how he was falsely charged and convicted goes far beyond his personal vindication. This is a superb opportunity to shed new light on the structural flaws in Japan's justice system, on how investigations and trials are conducted. Why was this man arrested and then indicted? Early on, he admitted to the charges, but later retracted that admission. Was it impossible to uncover the truth in the trial? The retrial must answer these questions.

However, the Takaoka branch of the Toyama District Court, which originally heard the case, dismissed as "unnecessary" his defense lawyers' demand that a police officer who handled the case be summoned as a witness in the retrial and examined under oath. After the hearing, the prosecutors who had argued that testimony from the police officer was unnecessary, said a trial is a system for determining whether the suspect is guilty or not guilty. "Since both the defense lawyers and prosecutors claim the person is not guilty, examining the police officers as witnesses is pointless," one prosecutor said.

The court and prosecutors seem to think that, as nobody is disputing this man's innocence, all that is needed now is to declare him innocent as soon as possible. That is unacceptable. If the police officer is summoned as a witness, a few inconvenient facts could come to light, fingering the prosecutors and the court for their involvement in this false conviction. Their attitudes inevitably raise suspicion that they are trying to close the case quickly to avoid such revelations.

After the court hearing, the man, whose life was wrecked by that wrongful conviction, issued a statement saying he had lost all faith in the nation's justice system. How do the people working for the justice system view that comment? If the retrial fails to show the reasons behind this false conviction, institutions such as the Supreme Court, the Supreme Public Prosecutors Office and the National Police Agency should open their own investigations and make the results public. Otherwise, police investigations and trials will remain tainted by this miscarriage of justice.

Unsolved mysteries remain in the crimes, which took place in 2002. A composite sketch of the suspect led police to the wrongly convicted man. When the rape victim saw him, she reportedly said he bore a strikingly resemblance to the rapist. Did not police lead the victim into saying that?

The man initially denied the charges, but on the third day of his interrogation, he confessed and was arrested. After that, no serious investigation was done into whether the evidence supported the charges. In fact, the man had an alibi: his phone records showed he was talking on the telephone from his home at the time of one of the crimes. His home was more than a 30-minute drive from the crime scene. But police ignored this important evidence.

The man then retracted his confession, and told prosecutors, the judge who questioned him before deciding on his detention, and his lawyer that he was innocent. Later, he again admitted to the charges because, he says, police had forced him to sign a written pledge not to reverse his statements. Police deny the existence of that written pledge.

We need to know the truth. Shouldn't have the fact that the man switched his story back and forth made both prosecutors and lawyers question the story? The citizen judge system will be introduced in 2009. Under this system, juries consisting of trained judges and citizens chosen at random will jointly decide criminal cases. Many citizens want to know why false charges and convictions occur and how to prevent such travesties of justice.

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Virginia governor double-pardons guiltless death-row man

Gov. Timothy M. Kaine has issued an "absolute pardon" to a man who spent nearly a decade on death row and came within nine days of being executed for a murder he did not commit. The pardon proclaims Earl Washington Jr.'s innocence in the June 1982 rape and murder of Rebecca Lynn Williams, a 19-year-old mother of three. The mildly disabled Mr. Washington falsely confessed and subsequently recanted, but was sentenced to death and came within days of execution in 1985.

In 2000, DNA testing implicated a convicted rapist, Kenneth Maurice Tinsley, who pleaded guilty in April to Mrs. Williams' slaying in Culpeper. Mr. Washington was pardoned by Gov. James S. Gilmore III in 2002, but that pardon did not mean he was innocent, only that a jury would not have convicted him in light of the DNA evidence. "It is now evident that Mr. Washington was and is innocent of the crimes against Mrs. Williams," Mr. Kaine wrote in the pardon, issued Tuesday. "I have decided it is just and appropriate to grant this revised absolute pardon that reflects Mr. Washington's innocence."

Mr. Kaine is the fourth Virginia governor to have undertaken an extensive review of Mr. Washington's case, his spokesman Kevin Hall said yesterday. "It's frightening to realize that the commonwealth came dangerously close to putting a man to death for a crime we now know he did not commit," Mr. Hall said.

Last year, a federal jury in Charlottesville awarded Mr. Washington $2.25 million in damages, ruling that a now-deceased state police investigator violated Mr. Washington's civil rights by feeding him details of the crime that led to a confession.

Mr. Washington, 47, who has married since his release and is a maintenance worker in Virginia Beach, reached a $1.9 million settlement with the state while the award was being contested.

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Prosecutorial misconduct in New York again

But nobody is to blame, of course

An independent review of the criminal case mounted against Jeffrey Deskovic, who spent half his life in prison for a rape and murder he did not commit, found that a series of investigative and prosecutorial missteps led to his wrongful conviction, including a deliberate attempt to play down the DNA evidence that led to his exoneration in September.

The review, commissioned by the Westchester County district attorney and released on Monday, did not assign blame individually to any of the police officers, prosecutors or defense lawyers who worked on the case, but it offered pointed criticism of their conduct in and out of court. It described the defense as “unfocused,” characterized the prosecution’s behavior as “distorted” and accused the police of exploiting the inexperience of Mr. Deskovic, who was a teenager, to obtain a confession, which turned out to be false.

Law enforcement officials broke no laws and acted without malice, according to the panel of experts that conducted the review, but their mistakes led to an “unjust outcome.” “What happened to Mr. Deskovic was an absolute tragedy and a miscarriage of justice,” said the district attorney, Janet DiFiore. “The entire system failed.”

In an interview, Mr. Deskovic, who was 16 at the time of his arrest in 1989, said the review gave him “some sense of vindication” but did not bring back the years he considers stolen from him.

The full 35-page report is available online at westchesterda.net. Among its recommendations are several measures to prevent wrongful convictions, like videotaping police interrogations and giving defendants the right, before and after trial, to have DNA evidence run through databanks to try to confirm the identity of actual perpetrators. The Legislature has considered similar measures but adjourned late last month without passing any of them.

“This report makes clear that the system has not been fixed to prevent other people from enduring the tragic injustice Jeffrey Deskovic suffered,” said Barry C. Scheck, co-director of the Innocence Project, which secured Mr. Deskovic’s exoneration.

The police homed in on Mr. Deskovic within days of finding the body of his high-school classmate Angela Correa, 15, at a park in Peekskill, about 36 miles north of here. Their focus came in large part because Mr. Deskovic seemed unusually distraught after Ms. Correa’s death and had an intimate knowledge of the case, which he was determined to help solve.

Suspicions were amplified by Mr. Deskovic’s fitting a profile of the killer that was prepared by the New York Police Department: He was a white man about 5 feet 10 inches tall and under 19 years of age. Ms. Correa’s real killer, Steven Cunningham, who pleaded guilty in March after DNA recovered from the crime scene was linked to him, is African-American, is more than 6 feet tall, and was 29 at the time of the murder.

The police did not pursue other leads, concentrating instead on building a case against Mr. Deskovic. They met with him many times, even after his mother told them she did not want her son speaking to the police, the review says, and they selectively taped their talks, collecting snippets of conversation that sounded incriminating but that offered jurors no context when presented in court. In one instance, investigators recorded 30 minutes of a four-hour encounter with Mr. Deskovic. And on the day he confessed, after several hours of persistent interrogation, they did not turn on the tape recorder at all.

“The police tactics in dealing with Deskovic did not take adequate account of his youth, naivete, inexperience with the justice system and psychological vulnerabilities,” says the review. It was prepared at no cost by two retired judges, Leslie Crocker Snyder and Peter J. McQuillan; a former Staten Island district attorney, William L. Murphy; and Richard Joselson, supervising attorney of the criminal appeals bureau of the Legal Aid Society in New York City.

The panel also highlighted prosecutors’ concerted effort to discredit the value of the DNA profile retrieved from semen and hairs found at the crime scene, which did not match Mr. Deskovic’s. Prosecutors argued that the hairs could have belonged to workers from the medical examiner’s office, and the semen to another man with whom the victim had sex. In any event, prosecutors under Carl A. Vergari, the county’s district attorney at the time, presented the case to a grand jury before DNA test results were released, ensuring they would not be a factor at least in the indictment phase.

The police and prosecutors suffered from “tunnel vision” at the time, the panel said, so in their eyes, Mr. Deskovic was already guilty and it was all just a matter of selecting the evidence that would help them prove it in court.

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DISTURBING TREATMENT OF AN INNOCENT MAN BY AUSTRALIAN POLICE

Cleared doctor's reputation 'destroyed'. Why was his identity released to the media on mere suspicion?

INDIAN doctor Mohammed Asif Ali is "mentally disturbed" after the intense federal police and media interest in his ultimately non-sinister links to last week's British terror plots, according to a colleague. Despite international attention on his plight, federal police have gagged the softly spoken accident and emergency doctor from talking to even his closest friends about the ordeal.

Dr Ali's first opportunity to vent his anger came shortly after 8pm on Wednesday when he sat down to dinner with a small group of Indian doctors from Gold Coast Hospital. Police took him to the restaurant after spiriting him away from his Southport unit in an unmarked car.

At dinner, Dr Ali told his friends he was "mentally disturbed" and did not know if he would be able to work again in Australia. He thought his reputation had been permanently destroyed here and in India. The other doctors urged him to remain at Gold Coast Hospital, where he has the support of about 15 Indian and other Muslim doctors. Gold Coast Health Services public affairs spokeswoman Zuleika Henderson said while Dr Ali was welcome to continue working at the hospital, his future was undecided.

A colleague said Dr Ali only spoke generally of the horror of his past few days, telling them federal police had warned him it he would be breaking the law if he told anyone what the police did or asked. Speaking outside Dr Ali's now vacant unit, former landlord Deborah Simpson said police said they would take him "somewhere safe, away from the media".

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The "provocation" defense in Australia

At the very least, some evidence of the provocation should be required -- instead of just taking the perp's word for it

QUEENSLAND's murder defence of provocation – which sparked heated debate this week following the acquittal of Damian Karl Sebo – was recently abolished in two other states. Victoria abolished provocation in November 2005 as part of a package of changes to homicide defences, following on from Tasmania in 2003.

Queensland Attorney-General Kerry Shine is under mounting pressure to review the defence, following a Supreme Court jury's acquittal at the weekend of Sebo for the murder of 16-year-old Gold Coast schoolgirl Taryn Hunt, in 2005. Sebo pleaded guilty to manslaughter at the start of his six-day trial but argued he was not guilty of murder because he was provoked by his lover's taunts about her unfaithfulness during an argument.

Hunt died in Gold Coast Hospital from severe head injuries two days after being bashed by Sebo in what was described as a split-second, uncharacteristic display of violence. Sebo was jailed for 10 years for manslaughter when the jury returned a not guilty verdict.

Hunt's mother Jennifer Tierney has joined with the Queensland Homicide Victims' Support Group to launch a letter-writing campaign to force the State Government to review and abolish, or at least amend, the legislation. Mr Shine has so far resisted calls to audit cases involving the defence but has asked the Director of Public Prosecutions for a report on the manslaughter conviction, the sentence and the prospect of success on appeal.

Queensland is one of five states and territories to include the partial defence of provocation in its criminal code. Provocation allows that when one person kills another under circumstances which would constitute murder, and does so in the heat of passion caused by sudden provocation and before there is time for his passion to cool, he is guilty of manslaughter only.

The Victorian Government abolished provocation and clarified self-defence to allow a wider use by battered women after James Ramage was acquitted of the 2003 murder of his wife Julie, claiming she teased him about a new lover and taunted him so that he "lost it". He punched, strangled and buried her in a remote location before confessing to police. More than 3000 letters were sent to the Victorian Government after a Supreme Court jury found Ramage had been provoked. He was sentenced to 11 years' jail for manslaughter.

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Australia: A "forgotten" rape of a child

Sexual abuse charges are expected to be laid and reforms introduced in Queensland's Child Safety Department over the mishandling of rape allegations involving a 12-year-old indigenous girl. Queensland Child Safety Minister Desley Boyle this month ordered an internal review after The Australian revealed that the rape allegations, made last August, had not been investigated by police and that the girl had not received abuse counselling. It has since emerged that the girl has been put on antidepressants after several suicide attempts.

The Beattie Government is refusing to release a report from the internal review into the failure of Queensland police and child safety officers to investigate the alleged rape. A spokesman for Ms Doyle said the report could not be made public because of "privacy provisions" under the Child Protection Act. Sources said the report confirmed that no investigation had been launched into the rape allegations and that police and department caseworkers were blaming each other for the inaction.

The report says a departmental caseworker had telephoned police with the abuse allegation in August, when the child was removed from her community and put into protective custody. But the department-appointed case-workers, who act as the girl's legal guardians, failed to follow up the complaint to police until this month, when The Australian began investigating, and despite repeated complaints by her day-to-day carers.

Police last night issued a statement saying the department did not notify them of any allegation. Police launched an investigation into the alleged rape after the case was made public. It has since been finalised and it is understood charges will be laid. "Given the sexual nature of the alleged offences and the fact a child is at the centre of this matter, it would be inappropriate to comment further," the statement said.

The department report dismissed claims by the girl, and contained in complaints to the department by her carers, that her general therapist was related to one of the alleged rapists. It is believed Ms Boyle is now proposing reforms over the handling of sexual abuse complaints made by children. Included in the proposals, yet to receive the backing of Police Minister Judy Spence, are that all child safety complaints to police will have to be in writing and logged. The girl has alleged she was raped by several men during "chroming" (chemical sniffing) sessions.

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Texas prosecutor refuses to prosecute pedophiles (protecting an affluent community)

On the claimed grounds that some of the witnesses were "amateurs". Aren't MOST witnesses amateurs?

A sting in which police teamed up with "Dateline NBC" to catch online pedophiles was supposed to send a flinty-eyed, Texas-style warning about this Dallas suburb: Don't mess with Murphy. Instead, it has turned into a fiasco. One of the 25 men caught in the sting — a prosecutor from a neighboring county — committed suicide when police came to arrest him. The Murphy city manager who approved the operation lost his job in the ensuing furor.

And the district attorney is refusing to prosecute any of the men, saying many of the cases were tainted by the involvement of amateurs. "Certainly these people should be prosecuted to the full extent of the law, but the fact that this was all done for television cameras raises some questions," said Mayor Bret Baldwin.

It is the first time in nine "Dateline NBC: To Catch a Predator" stings across the country in the past year and a half that prosecutors did not pursue charges. "Dateline" has made prime-time entertainment out of contacting would-be child molesters over the Internet, luring them to a meeting place, and videotaping their humiliating confrontations with reporter Chris Hansen. "Dateline" works with an activist group called Perverted Justice, which supplies adults who troll Internet chat rooms, posing as underage boys and girls, and try to collect incriminating sex talk.

City manager Craig Sherwood approved such an operation in this well-to-do community of 11,000 after being approached by "Dateline" and Perverted Justice, but he never informed the mayor or the City Council. He said secrecy was necessary for the sting to be effective. Over four days in November, 24 men were arrested at a two-story home in one of Murphy's newer neighborhoods after allegedly arranging to meet boys or girls there.

Some other suspects contacted Perverted Justice decoys online but never showed up at the house. Among them was Louis Conradt Jr., an assistant prosecutor from neighboring Kaufman County, who allegedly engaged in a sexually explicit online chat with an adult posing as a 13-year-old boy. As police knocked at his door and a "Dateline" camera crew waited in the street, Conradt shot himself. His sister, Patricia Conradt, told the City Council that police acted as "a judge, jury and executioner that was encouraged by an out-of-control reality show."

Then, last month, Collin County District Attorney John Roach dropped all charges. He said that in 16 of the cases, he had no jurisdiction, since neither the suspects nor the decoys were in the county during the online chats. As for the rest of the cases, he said neither police nor NBC could guarantee the chat logs were authentic and complete. [Shouldn't a jury evaluate the evidence concerned?] "The fact that somebody besides police officers were involved is what makes this case bad," said Roach, who was informed of the sting in advance but did not participate. "If professionals had been running the show, they would have done a much better job rather than being at the beck and call of outsiders." ....

NBC's Hansen said Murphy is the only place the show has encountered such resistance. "I don't want to get involved in the DA's business or the police business," he said. "I can tell you in the other locations, these issues did not come up." Eric Nichols, a Texas deputy attorney general, said that when law enforcement authorities pull an Internet sex sting, officers posing as decoys follow strict rules. Detailed chat logs are kept to ensure that "sex talk" is initiated by the potential predator. That way, a defendant cannot claim entrapment.

Eric Chase, a defense attorney specializing in sex crimes, said stings are the job of police, not TV crews. "Police should not be abdicating a very important function to either private organizations or entertainment organizations," he said.

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Appalling judges

A $54m lawsuit over a pair of pinstriped trousers that went missing from a Washington, DC, cleaners was thrown out by a judge this week. It had attracted worldwide ridicule. The fact that the case was brought, not by a random loony, but by a former judge has added to the sense that something is wrong not just with America's litigation laws, but with the kind of men and women Americans choose to sit in judgment over them.

A whole series of judicial misdemeanours, ranging from the titillating to the outrageous, has emerged over the past year. Take the Florida state judge, John Sloop, who was ousted after complaints about his “rude and abusive” behaviour. This included an order to strip-search and jail 11 defendants for arriving late in traffic court after being misdirected. Or the Californian judge, José Velasquez, sacked in April for a plethora of misconduct, including extending the sentences of defendants who dared question his rulings.

Then there was the Albany city judge, William Carter, in New York, censored for his “utterly inexcusable” conduct after jumping down from the bench during a trial, shedding his robes and apparently challenging a defendant to a fist-fight. Another time, he suggested that the police “thump the shit out” of an allegedly disrespectful defendant. Mr Carter wasn't carrying a gun; many judges now do. In Florida, Charles Greene, chief criminal judge in Broward County, had to step down after describing a trial for attempted murder involving minority defendants and witnesses as “NHI” (No Humans Involved). Then there are the sexual peccadilloes. In Colorado, a (male) judge resigned after admitting having sex with a (female) prosecutor in his chambers. In California, a former judge was jailed for 27 months for downloading child pornography. And in Oklahoma Donald Thompson, a judge for more than 20 years, was jailed for four years for indecent exposure and using a “penis pump” to masturbate during trials.

More serious are the cases of corruption. On June 5th Gerald Garson, a former judge in Brooklyn, New York, was jailed for taking bribes to rig divorce cases. Another judge was convicted of accepting money to refer clients to a particular lawyer. Rumours of buying and selling of judgeships in the district abound. At one time, one in ten Brooklyn judges were said to be under investigation for sleaze.

“To distrust the judiciary,” said Honoré de Balzac, “marks the beginning of the end of society.” In Britain, judges are one of the most respected groups. But in America they tend to be held in low esteem, particularly at state level. For this many people blame low pay and the fact that judges are elected. In 39 states, some or all judges are elected for fixed terms. Federal judges, usually held in much higher esteem, are appointed on merit for life—as in Britain.

Most states allow judicial candidates to raise campaign funds. Huge sums are often involved, leading to inevitable suspicions that, once on the bench, judges will pass judgments that favour their benefactors. In 2004 the two candidates in one Illinois district (with a population of just 1.3m) raised a staggering $9.4m between them. Some of the states with the highest levels of campaign spending—Texas, Louisiana and Alabama—are also those whose judges are most criticised.

In the past, judicial candidates were banned from discussing controversial legal or political issues on the campaign trail. But in 2002 the Supreme Court ruled such bans to be unconstitutional, leading candidates to advertise freely their views on abortion and suchlike. Personal attacks have also become more common. Indeed, Sandra Day O'Connor, a former Supreme Court justice, fears that judicial elections have turned into “political prize-fights, where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution.”

The meagre salaries of judges, whether at state or federal level, do not help raise standards either. Federal judges have not had a real pay rise for 17 years; a district court judge earns $165,000 a year, about the same as a first-year associate in a top law firm. John Roberts, chief justice of the Supreme Court, earns just $212,000—half the salary of England's top judge and one-fifth of the average income of a partner in the majority of America's 100 top-grossing law firms. Around 40 judges have left the federal bench over the past five years.

In his annual report to Congress in January, Mr Roberts said that the issue of judges' pay had reached “the level of a constitutional crisis”. It was threatening the judiciary's strength and independence. In February, Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, promised legislation to fix it within the current session. The judges are still waiting. Meanwhile, state judges in New York are preparing to sue the state for their first pay rise since 1999. The battle is joined.

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Greek justice -- trying to catch up with Mexico?

Greek police are battling accusations of brutality after their own films taken on mobile phones became public. Public outrage has even prompted the leader of the opposition party PASOK, former foreign minister George Papandreou, to call them "videos of shame" that have created "a legacy of ... Greek Guantanamo camps."

The controversy was sparked on June 16 when a video of two immigrant youths in police custody, beaten and forced to slap each other in punishment after an alleged bag-snatching, was posted on the Internet by a blogger. Five days later, footage showing an Asian migrant allegedly beaten by police was aired by the private TV channel Alpha, while the To Vima daily published details of another video which it said showed two prostitutes forced to strip to escape arrest. Two of the videos were apparently shot at a central Athens police station specialising in narcotics and prostitution cases, and all were reportedly shot and shared by police themselves.

"Nobody has the right to abuse the law," railed Prime Minister Costas Karamanlis. "We will not permit our country's culture and image to be sullied by anybody." Summoned by opposition MPs, Public Order Minister Vyron Polydoras vowed that "the officers responsible will be punished in an exemplary manner." But he also insisted the footage presents an unfair picture of Greek police. "Our police are among the best in the world," he told MPs. "It is a force of 55,000 people. Which force of this size does not include delinquents?"

After the beating of the two youths last year, five officers including the station chief were suspended and seven officers were charged.

Greece's police have spent years trying to shake off a reputation for abuse gained during the 1967-74 military dictatorship -- when the junta suspended many civil liberties and arrested and tortured political opponents, notably communists. This new, unwelcome attention comes a few months after police officers in the northern city of Salonika were caught on news footage beating a Cypriot university student they mistook for an anarchist agitator.

And last week the European Court of Human Rights condemned Greece for poorly investigating the case of a young Roma man crippled in 1998 when an officer shot him point-blank in the head after he refused to help with a drug bust.

"Laws exist but are not enforced," says Anna Botsoglou, spokeswoman for Amnesty International's Greek branch. "This impunity creates a certain mentality...whereby (officers) not only feel it is OK to beat, but to even film the beating, and they don't feel under any threat," she told AFP. In a 2005 report, Amnesty said Greece was guilty of a "consistent pattern" of rights violations against would-be migrants, asylum seekers and Roma. The report recorded violations arising from the conditions under which migrants are detained and drew attention to alleged ill-treatment by police officers.

Already in 2004, the Greek ombudsman's office issued a report on 176 cases involving complaints which police investigated internally. Not only were cases of confirmed guilt "negligible" but the sanctions themselves were "disproportionately light," the ombudsman said. A police source, who asked not be named, said the department was updating its disciplinary code in line with requests from the ombudsman but "as the procedure is in process, no information on the changes can be given."

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BRITISH LAW BLAMES THE VICTIM

A shopkeeper has been fined 250 pounds and given a criminal record because he fought back when he was attacked by shoplifters. Jacob Smyth chased three youths out of his hardware shop in Penzance, Cornwall, when he was set upon. When he was kicked in the groin by one of the hooded youths who had stolen cans of spray paint Mr Smyth hit back.

Police issued fixed penalty tickets to the shoplifters but charged Mr Smyth and a colleague with assault. Yesterday he pleaded guilty to assault at Truro Magistrates’ Court. He claimed after the hearing that he had been advised to plead guilty because otherwise he could have faced a six month prison sentence.

The court was told that Mr Smyth, a father of three, caught the youths stealing the spray cans in October last year. Two of them turned on him and he was kicked in his groin just weeks after a vasectomy operation. He retaliated and punched 18-year-old Craig Spiller to the ground.

Paul Gallagher, defending, said: “The court can only imagine what they intended to do with that spray paint. He could see the cans poking out of their pockets. He leant forward to get them and at that stage he was set upon. “He did punch one of them to get him off. In the heat of the moment he kicked him once or twice. Initially he was acting in self defence. Frustration at the situation took over. The lads were interviewed and given fixed penalty notices by police but unfortunately for Mr Smyth ended up in court today. “He was the one who was trying to do the right thing and get his stolen property back.”

Julian Herbert, prosecuting, said the “aggravating factor” of the case was shop staff “taking the law into their own hands”. Fining Mr Smyth 250 pounds and ordering him to pay 43 pounds costs, Angy Haslam, chairman of the magistrates, said: “The act was aggravated by the fact you kicked the victim on the ground. We feel it has been mitigated because you acted in self defence.”

Speaking outside court, Mr Smyth said: “I did nothing wrong. I was getting a good beating from this lad. I had no choice but to defend myself. “We get shoplifters all the time -- one after the other. We call the police but nothing is ever done. We called them on this occasion and ran after the lads to try and get my property back but then they turned on us. “Am I not allowed to protect my stock and premises from thieves?” Mr Smyth’s colleague Jason Pascoe, 34, has also been charged with two counts of common assault and will appear in court at a later date.

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