Guest Shot: Exoneration shows system's flaws, strengths

The following opinion was published in the Daily Camera on January 26, 2008.

Exoneration shows system's flaws, strengths

By H. Patrick Furman
Saturday, January 26, 2008

Blind Lady Justice can smile a little bit today. Twenty years after the murder of Peggy Hettrick and nearly nine years after the conviction of Timothy Masters for that conviction, the innocence of Mr. Masters was established through the use of cutting-edge DNA technology. The case provides us with a number of other very important lessons.

The case reminds us that lawyers who defend people charged with crimes -- criminal defense lawyers -- are critical to ensuring that justice is done. Mr. Masters' original attorneys were not given access to the information that the law and the Constitution required they be given. Handicapped, they were not able to provide Mr. Masters with a proper defense. Mr. Masters' current attorneys were eventually given this additional evidence and were able to use it to exonerate Mr. Masters.

The case reminds us that prosecutors and police have an extraordinary amount of power, and that they must be watched carefully to ensure that this power is not abused. The overwhelming majority of prosecutors and police act honorably and fairly, but these police and prosecutors -- with the notable exception of at least one Fort Collins officer who worked long and hard to exonerate Mr. Masters -- did not.

They withheld evidence from the defense and they destroyed other evidence, and they perverted justice. Lawsuits against the responsible parties may not succeed due to the rules relating to immunity for government employees, but any prosecutor who knowingly withheld exculpatory evidence should lose his or her license to practice law, and any cop who did so ought to be fired.

The case reminds us that "the system" does not always work. Apologists for the system will argue that Mr. Masters' exoneration is proof that the system works. A system that keeps an innocent man in prison for nine years because of cheating and lying police and prosecutors cannot, under any stretch of the imagination, be said to be working right. Hundreds of thousands of tax dollars were spent prosecuting, defending and ultimately exonerating Mr. Masters, and much of this money was wasted by prosecutors and police who were, at best misguided, and, at worst, dishonest.

The appeal system did not "work," either. When the Colorado Supreme Court allowed the prosecutors to use hundreds of pages of Mr. Masters' admittedly unusual, but irrelevant, notes and drawings, and then to use a self-serving, celebrity psychiatrist to interpret these notes and drawings as proof of Mr. Masters' guilt, it was wrong. The three justices who dissented characterized the decision as "a great injustice" to the rules of evidence, and pointed out, with great prescience, that "there exists a substantial risk that [Mr. Masters] was convicted not for what he did, but for who he is." The court should re-visit this opinion and acknowledge its error, and no trial court or prosecutor should ever use this decision as a basis for introducing evidence in a court of law.

And the system did not "work" in a more basic, yet often overlooked way: The misdeeds of the police and prosecution have allowed the murderer of Peggy Hettrick to remain at large. No one yet knows whether the DNA samples that exonerated Mr. Masters will lead to the murderer. Police and prosecutors are now interested in a former boyfriend as a possible suspect. Whether or not he is responsible for the murder remains to be seen, but someone is responsible, and the misdeeds of the police and prosecution have helped that murderer escape justice for two decades. We can only hope that the murder committed no other offenses while at large.

The case reminds us that the system sometimes does work. Mr. Masters' post-conviction team, led by Maria Liu and David Wymore, were appointed and paid (at about one-fifth of what they would normally charge) by a state agency with our tax dollars. Money well spent. The post-conviction prosecutors did their jobs and, when their own analysis confirmed what the defense attorneys had been saying all along, they acted quickly to free Mr. Masters.

In the end, of course, the case is about humans. Peggy Hettrick's family must again search for answer, and their grievous wounds have been re-opened. Timothy Masters will likely go free on Tuesday, but he has lost a decade of his life and the problems he will have re-integrating into society will be difficult and pervasive. We need to help all the victims of this terrible miscarriage of justice.

Finally, the case serves as a powerful reminder that we need to make sure that we carefully watch those with power and protect those without. it.

H. Patrick Furman is a clinical professor of law at the University of Colorado.

Truth in Justice Files Editor's Note: District Attorney Larry Abrahamson dismissed the charges against Tim Masters, but he specifically cautioned that Masters has NOT been exonerated by the DNA test results, and that this dismissal did not rule out re-charging Masters. He told the press, "Contrary to news reports, the DNA testing results only suggest that there may be others, along with Timothy Masters, who should be investigated. These test results do not provide us with enough information to completely exonerate anyone." This is a typical response by a prosecutor who refuses to accept responsibility for criminally abusing the power of his office.

Guest Shot: Clear the Norfolk Four

This editorial was originally published in the Washington Post on January 13, 2008

Clear the Norfolk 4
Gov. Kaine should intervene on behalf of the sailors falsely implicated in a rape and murder.
Sunday, January 13, 2008

RARE IS the case that unites prosecutors and defense lawyers, Republicans and Democrats. Rarer still is a case that finds such diverse parties calling for the pardon of multiple defendants convicted of rape and murder.

That's what has happened in the case of the so-called Norfolk 4. On Friday, Richard Cullen, a Republican, and Anthony F. Troy, a Democrat, stood before microphones in Richmond to plead for the pardon of four sailors who were convicted in connection with the 1997 rape and murder of Michelle Moore-Bosko in Norfolk. Mr. Cullen and Mr. Troy are former Virginia attorneys general; Mr. Cullen served as U.S. attorney for the Eastern District of Virginia during the first Bush administration. They were joined by E. Tazewell Ellett, a Republican past president of the Virginia Bar Association and now a partner at the Hogan & Hartson law firm. Several other well-respected lawyers and former judges also have rallied to the side of the Norfolk 4.

Why would celebrated members of the legal establishment risk their reputations for four sailors who are neither friends nor family? Because of overwhelming evidence that Derek E. Tice, Joseph Dick Jr., Danial J. Williams and Eric C. Wilson are innocent.

The four sailors found themselves behind bars after initially admitting to the crime, in large part because of coerced confessions and after being threatened with the death penalty if they did not cooperate. From the start, serious inconsistencies suggested the confessions were not legitimate. Their accounts did not mesh with the evidence. Their stories contradicted each other. Above all, police found no physical evidence tying the four defendants to the murder scene. Three of them -- Mr. Tice, Mr. Dick and Mr. Williams -- face the prospect of life imprisonment. Only Mr. Wilson, who was convicted only of rape, is free.

The evidence shows that Ms. Moore-Bosko was raped and killed by a single assailant, Omar Ballard. Mr. Ballard wrote to a friend about the crime and boasted, "Guess who did that. Me. HA HA." When approached after police learned of the letter, Mr. Ballard claimed sole responsibility for the crime and said that "them four people who opened their mouths is stupid." Mr. Ballard is the only suspect whose DNA was found at the crime scene. He is serving a life sentence.

The four sailors filed clemency petitions more than two years ago. Gov. Timothy M. Kaine (D) said he would not rule on them until all legal avenues had been exhausted. That time has come. On Friday, the Virginia Supreme Court reversed a lower-court ruling and reinstated Mr. Tice's conviction. The court essentially rejected Mr. Tice's contention that he'd received ineffective assistance of counsel during his earlier proceedings. The court ruled on an important but narrow question of law; it did not rule on Mr. Tice's guilt or innocence or that of the others. Mr. Kaine should, and he should do it soon.