Tuesday, March 25, 2008

Guest Shot: The story of Barry Beach’s innocence

This op-ed article originally was published in the Helena, MT Independence Record on March 23, 2008.

The story of Barry Beach’s innocence
By DANIEL J. GENGLER - Your Turn - 03/23/08

I am fortunate to live in a nation that aspires to the rule of law and justice for all.

And we are fortunate that the system works as well as it does. It’s not perfect but 99 percent of the time the system works reasonably well. The story of Barry Beach’s innocence is about the other 1 percent of the time.

I first found about this case in 2006 when a good friend asked me to take a look at a set of files. He told me it was about an innocent Montana man in prison. Because I respect this friend, I agreed to read them, though I was skeptical. As I promised, I read the files, but I was looking for the flaws in the case for Beach’s innocence. Somewhere near the end of reading these files, I reached a turning point. To the extent that what I was reading was authoritatively verified, I saw good reason to question the validity of this man’s conviction. But my skepticism was still not completely satisfied. I still wanted to know what the other side had to say. What was I not being told?

So I attended the hearings before the Board of Pardons and Parole this past summer and read the state’s documents to get the rest of the story. But after reading several voluminous documents and sitting through three grueling days of testimony, I heard nothing from the state that made any sense which undermined the case for Barry Beach’s innocence. I almost wished I hadn’t taken the time and effort to expose myself to the truth because, at that point, I could no longer take refuge in a lack of awareness. Like the Samaritan man on the road who happens upon a stranger in need of help, I saw such a stranger in need. And though it would be far more convenient to walk on by assuring myself that the matter was not my concern, my faith compels me to stop and help.

I am not alone. Montanans for Justice is a group of Montanans from throughout the state who are concerned about this travesty in our justice system. We are deeply disturbed by the fact that we have an innocent man in prison serving an extremely harsh sentence of 100 years without parole for a crime he did not commit. We are current and former elected officials, professionals, businessmen and women — folks from all walks of life who, through various circumstances, have come to know about this case. After thorough and careful review, all of us have come to firmly believe Barry Beach is not guilty of this murder, leading to the inescapable conclusion that those responsible for the murder of Kim Nees have not been held accountable. Not only has Barry Beach been denied justice for his wrongful conviction, the Nees family and the community of Poplar have been denied the true justice they deserve. Barry Beach is being represented legally by Centurion Ministries, an organization based in Princeton, N.J., dedicated to freeing the wrongly convicted. Centurion Ministries spent seven years and very substantial resources investigating this case before ever agreeing to represent Mr. Beach. Montanans For Justice is a grassroots effort composed of Montanans. We have no stake in this matter other than a desire for the truth to prevail.

Barry Beach’s wrongful conviction is really only symptomatic of a much larger issue at hand. As one writer wrote on the www.MontanansForJustice.com blog: “I was born in 1979, and I’ve heard all the rumors on the rez because I was born and raised on Fort Peck. I’ve heard all my relatives talk about it, my great-grandmother told me Kim Nees’ spirit still walks because she went too young. My relatives all lived on the hill and my mother was sitting outside that night, she heard alot of them partying down there, which makes me question Barry’s confession in which he said he was alone with Kim down there, and if so, then how come my mother heard more than a couple people down there? Also, I’ve heard all the rumors about Sissy and Maude, but I don’t think justice will come too soon for Barry because people on the rez are too scared to come forward. Look at the Follete murders, or Lawrence Crowe, and Richard Red Dog, I could go on, but of course, the right people are never convicted. I pray that they will be caught though, Poplar is a scary place to live for our children nowadays. How do you raise children in a town where murderers reside?”

How do you raise children in a place where there is little faith in law enforcement and our criminal justice system? Exonerating Barry Beach would be a shining beacon of hope in a community desperate for faith in the rule of law and justice.

There are, quite understandably, powerful forces that would prefer to quietly sweep this whole affair under the rug. But what’s politically convenient is not necessarily what’s right. The system works reasonably well 99 percent of the time. The system works even better when it faces up to the mistakes made the other 1 percent of the time and makes it right.

Daniel J. Gengler lives in Helena, Montana.

Thursday, March 20, 2008

Guest Shot: Wrongfully convicted dealt another blow

The following editorial was published on March 18, 2008 in the Miami Herald.

Wrongfully convicted dealt another blow

No big-time lobbyist to fix their legislation. That was their second big mistake.

The first, of course, was embarrassing the state by getting themselves convicted for someone else's crime. That's no way to make friends in Tallahassee.

The wrongfully convicted just don't know how to work the Legislature. It's as obvious as those nasty little amendments that have been inserted into a misnomer of a bill called ``Victims of Wrongful Incarceration Compensation Act.''

The legislation supposedly would award this hapless bunch $50,000 for every year spent behind bars for crimes they didn't commit. House Bill 1025 also tosses in compensation for counseling, housing, health insurance and college tuition.

That 50 grand a year, if it was real, would add up to a decent sum for the nine guys who accumulated $7,650,000 worth of hard time in Florida prisons before they were cleared by DNA tests.

It's almost as if Florida wants to do right by all those ruined lives. The legislation would finally standardize an infamously arbitrary compensation system that requires the wrongfully convicted to come begging, year after year, until some sympathetic legislators take an interest. (Freddy Lee Pitts and Wilbert Lee were pardoned in 1975 after their shoddy 1963 murder conviction was unraveled by legendary Miami Herald reporter Gene Miller. Another 23 years passed before the Legislature was shamed into voting them $500,000 each for their lost years.)

But the intent of this session's amendment-riddled legislation has evolved into a kind of punishment for these impostor convicts for taking up the precious prison cells. Under the bill wending through the Legislature (key hearings are scheduled Tuesday in both the House and Senate), none of the nine men cleared by DNA testing in Florida would actually qualify for state compensation.

Larry Bostic, wrongly convicted of a Fort Lauderdale rape, did 19 years. Orlando Boquete, convicted of a rape and robbery in the Florida Keys, served 13. Alan Crotzer spent 24 years in prison for a rape and robbery he didn't commit. Cody Davis did six months before the crime lab in Palm Beach County checked the DNA on an armed robber's ski mask. Wilton Dedge did 22 years for a Brevard County rape conviction. Luis Diaz, the so-called Bird Road Rapist of Miami-Dade County who, as it turned out, wasn't, served 25 years. Chad Heins did a 13-year stretch for rape and murder. Frank Lee Smith died after 14 years on Death Row. Both Smith and another Fort Lauderdale man, Jerry Frank Townsend, who spent 22 years in prison, had been convicted of murders actually committed by serial killer Eddie Lee Mosley.

Of the nine, only Wilton Dedge has been able to wrangle compensation out of the state Legislature ($2 million in 2005). The rest, under HB 1025 (the Senate is expected to adopt similar language) would be out of the money.

A so-called ''clean hands'' amendment disqualifies any wrongfully convicted chump with a prior, unrelated felony conviction. Of course, when cops go looking for a quickie arrest, they aren't picking their patsies from the Rotary Club.

That nifty amendment's a big money saver. A legislative report on the fiscal impact of the bill calculates, with ''very few people eligible,'' the cost would be essentially zilch.

At least the legislation doesn't charge the wrongfully convicted room and board for all those years they mooched off the state penal system.

Not yet, anyway.

Sunday, March 09, 2008

Guest Shot: The Larger Tragedy in an Unjust Accusation

by Ronald H. Uscinski, M.D.

This was originally published in the op-ed section of the Washington Post on March 9, 2008

In the 18th century, Sir William Blackstone articulated what is known today as the Blackstone ratio: "It is better that 10 guilty persons escape than that one innocent suffer." This phrase expresses a cornerstone of both English common law and American jurisprudence, the principle of "innocent until proven guilty."

But this principle sadly seems to have been unheeded or even deliberately overturned in matters of suspected child abuse. The D.C. code itself reads: "Where the petition alleges a child is a neglected child by reason of abuse, evidence of illness or injury to a child who was in the custody of his or her parent, guardian, or custodian for which the parent, guardian or custodian can give no satisfactory explanation shall be sufficient to justify an inference of neglect." So the stage is set.

I am the neurosurgeon who testified in defense of Greg and Julianna Caplan, whose 8-month-old twin girls were removed from their home by the D.C. government in a case recounted by Metro columnist Marc Fisher ["A Case of a Family Services Job Well Done, or Overdone?" Feb. 24]. The issue of retinal hemorrhages as a marker of so-called shaken-baby syndrome will not be settled on the editorial page of any newspaper; suffice it to say that the validity of such a marker has always been under serious question, as is the hypothesis (yes, it is still a hypothesis) that children must have been shaken manually to suffer such injuries. I believe that a true understanding based on objective science, and not subjective conjecture, will eventually prevail.

But the erosion of a fundamental tenet of our judicial system is another matter altogether, and it has gone unchecked and even accelerated over more than three decades, to the extent that such travesties as befell the Caplans now happen all over our country, and even beyond. Child protection agencies in virtually every state in the union have powers similar to those wielded in this case by the District, and they have used these powers in a similar fashion.

What the Caplans have endured and still continue to struggle with is not limited by race, ethnicity or income level. No one is safe once suspicion is aroused within an entity that has too much authority and too little comprehension. I speak from first-hand experience, having testified in many such cases over the past decade as a subject-matter expert for the defense. (I have yet to be contacted by any prosecuting attorney to review such matters.)

This is not to say that child abuse does not exist. I have witnessed such cases, and have been deeply and painfully moved by the plight of innocents who have been injured or even killed. This is certainly not acceptable. And yet I am no less moved by the plight of the wrongfully accused (and even convicted), their families and their loved ones. This is particularly so when such accusations are based on impure science, a flawed legal foundation, and completely inadequate or inappropriate public policy.

This is the United States, a republic founded on legal, moral and ethical principles that have served us well. It is not wise to become complacent, or to be forgetful or ignorant of such principles. The words "chaos," perhaps even "tyranny," come to mind.

-- Ronald H. Uscinski
Great Falls, Virginia

The writer is on the faculties of Georgetown University Hospital and George Washington University Medical Center and is an adjunct fellow at the Potomac Institute for Policy Studies in Virginia.

Saturday, March 01, 2008


When we opined about events in Buffalo, NY on November 17, 2008 (Refusing to Admit Error - http://truthinjusticefiles.blogspot.com/2007/11/refusing-to-admit-error.html), Lynn DeJac's conviction for murdering her 13-year-old daughter, Crystallynn, had just been vacated, and DA Frank Clark was preparing to re-try her. Lynn's conviction was reversed when the DNA of her former boyfriend, Dennis Donohue, was found in Crystallynn's bed and in her vagina. Donohue was finally being investigated for two other strangulation murders, one of which occurred AFTER Crystallyn's death, which bore striking similarities to Crystallynn's murder. Lynn had said from the moment she discovered her daughter's body that Donohue killed the child, a claim that the judge who sentenced her called "a red herring."

DA Clark remained adamant, however, that Lynn murdered her daughter, and vowed to retry her. When police detectives Dennis Delano, Mary Gugliuzza and Charles Aronica said Lynn had neither the time nor the strength to subdue and kill her daughter, Clark went ballistic. "It’s absolutely inappropriate for them to express an opinion on the question of guilt or innocence, when a matter is still under litigation," he said.

Still, what had to be worrying Clark and everyone else who participated in Lynn's frame-up back in 1993, was the fact that they gave Dennis Donohue a free murder, and kept him on the streets to kill again. That's because the prosecutor gave him COMPLETE IMMUNITY against prosecution for Crystallynn's murder in exchange for testifying against Lynn. Just that is outrageous beyond words, but this gets even worse.

Even though a different prosecutor made the immunity deal, Clark knew he had been painted into a corner. The last thing he or any of the authorities involved in the case needed was a thorough airing at Lynn's retrial of all the prosecution's dirty dealing and lies that put her into prison in the first place. Enter the celebrity forensic pathologist, Dr. Michael Baden who, conveniently, is chief forensic pathologist for the State of New York. That means Buffalo and Erie County didn't have to pay him $250,000, the fee he got to testify at Phil Spector's trial that Lara Clarkson committed suicide. Dr. Baden came through for Erie County the way he came through for Spector. He declared that Crystallynn died of an accidental overdose of cocaine, and that the head injury she suffered probably occurred when she was totally messed up from cocaine and fell. No murder. No retrial. No embarassing questions. Back to business as usual. There was even a bonus for the state with this resolution -- the "fault" for Lynn's conviction was laid at the feet of her defense lawyer, Andrew LoTiempo, for not retaining a forensic pathologist to contest cause of death.

These authorities weren't too worried about Lynn's objections to this 180 degree flip. She should just be grateful to be out of prison. Besides, she had been so smeared in the public mind over the past 13 years that she had no credibility left. What they didn't bank on was Det. Dennis Delano refusing to play the game. He released, among other things, the crime scene video, so the public got to see what Crystallynn's bedroom actually looked like. The video is posted at http://www.wgrz.com/sports/sports_article.aspx?storyid=55697&provider=gnews Det. Delano went to Washington, DC at his own expense to consult with experts regarding how Crystallynn died.

Now THIS was a REAL problem. Dennis Delano was a veteran police detective with a perfect record. He was CREDIBLE. So the police came down on him like a ton of bricks. They suspended him without pay, took his badge and certainly are going to go after his retirement, alleging that the crime scene video he released was from an open investigation, so such release was a violation of department policy. Open investigation? Don't they read their own press releases? They've done everything they can to slam the door shut to any investigation of Crystallynn's death, claiming it was an accident. Do they really think the public is stupid enough to buy into this? They've announced that Det. Delano's fellow officers do not support him. We know how this works. The brass tells every cop, every employee of the police department, that any and all contacts with the suspended officer must be reported. Anyone who reports a contact -- ran into him in the grocery store and mumbled "hello" in passing, for example -- gets a complete debriefing. There is no question one's job and pension are on the line, so no cop will lend any public or private support to Det. Delano.

The crimes here are ongoing. The police commissioner, the police chief and the district attorney -- plus a lot of others who facilitate them -- are engaged in a conspiracy to obstruct justice. Not only should they lose their jobs, they should be prosecuted. They are criminals.