Sunday, May 30, 2010

Will County apology too little too late

by Eric Zorn

This opinion was originally published in the Chicago Tribune on May 28, 2010.

[Will County}Sheriff Paul Kaupas, whose department brought the original case against Kevin Fox, recently underwent a medical procedure and was unavailable for comment Thursday. Kaupas' spokesman, Pat Barry, issued an apology on the sheriff's behalf. "He is issuing his apology to Kevin Fox and the Fox family," Barry said. "He is grateful that the person who did this has been brought in. Justice is going to be served." ...

This passage jumped out at me considering the time line: Charges dropped based on DNA evidence nearly five years ago. Federal jury award to Melissa and Kevin Fox nearly two and a half years ago. A vile miscarriage of justice inflicted on an innocent man whose daughter had been murdered and only now comes an apology?

The 7th Circuit Court of Appeals chastised the investigators on the case, implying that their decision to quickly rule out the girl's death as the work of a sexual predator was "absurd." The court also found that detectives lacked probable cause to arrest Fox, given the "exceedingly weak evidence" they had assembled.

Fox gave police a videotaped confession at the end of a 14-hour overnight interrogation. He later said the confession was coerced.

Y'think? Barry said today he was unaware if any member of the investigatory team had been disciplined or even reprimanded for their conduct in the Fox case.

Monday, May 17, 2010

Wisconsin: the best justice money can buy

In 2007, the Wisconsin State Supreme Court disciplined Dane County (Madison) Assistant District Attorney Paul Humphrey for twice misleading the judge and withholding evidence from a defendant during a vehicular-homicide case against Adam Raisback that ended in acquittal. A list of cases in which Humphrey's conduct crossed the line into unethical can be found at

Joseph Sommers, Raisback's defense attorney, filed the ethics complaint against Humphrey that led to the prosecutor's discipline. Unfortunately, the Wisconsin State Supreme Court's idea of fairness is to level equally serious charges against any attorney who complains about a fellow lawyer's conduct. As a result, Sommers was brought up on serious charges of unethical conduct as well. Sommers pushed back, which really riled the state's high court, and almost certainly led to Sommers' current predicament. We'll let Joe Sommers tell you what has happened in his own words. Keep in mind,Wisconsin has the best supreme court money can buy. The justices can't help what they do, since they do not understand what ethics are in the first place.

For those who have not heard, things have gotten significantly worse. First, last Friday the Wisconsin Supreme Court issued an order that surpasses everything previously in my matter. The bottom line is, the record will be sanitized, and all transcripts from evidentiary hearings and depositions will be excluded from the record, but for the two days of evidentiary hearings which I did not attend. (The reason why I did not attend those two days was that the Supreme Court's appointed presiding official declared that the evidence from six prior days of evidentiary hearings would not count, and under the Supreme Court Rules, I would be responsible for the costs x 3 for the hearings themselves).

Basically, I proved everything I set out to prove, i.e. that the Supreme Court's in-house law firm orchestrated a cover-up of the Dane County District Attorney's Office orchestrating a criminal conspiracy to railroad innocent people. But even in my most cynical moments I never thought that transcripts from sworn testimony would be so easily and completely removed from the record. This is unprecedented, from my experience. It is critical to realize that the Supreme Court's actions go hand-in-hand with the Wisconsin State Journal's coverage. The paper ignored the testimony, and the Supreme Court now, for all practical purposes, covers up for that by removing the transcripts from the record.

For those who could not make the evidentiary hearings in the past, don't worry. You did not miss anything because those hearings, according to the Supreme Court, did not take place. And for those who did attend, what you thought you heard and saw was nothing more than an episode from the Twilight Zone.

Second, the way things are headed, there is more than a distinct possibility that I will be facing trumped up criminal charges in the near future. For those who say, 'they can't possibly do this. How could they ever get away with it,' I just refer you to the above.

The bottom line is, I just took on evils that were too big and too powerful, to which wipeout is the price. I suppose I was recklessly irresponsible (as I have been told) to think that one should try to do something about criminal prosecutions manufactured against innocent people for the sake of insiders making a buck. If only I would have directed my energies toward meaningful things such as my children's sporting events, etc., rather than thinking in terms of active discipleship and citizenship. How crazy can a guy get?

If I sound embittered, I am. I do appreciate those who did what they could. Unfortunately, when it came to those who could make a difference, they never could work up the courage, imagination or inclination to do anything. If there is one response to this email I request I do not receive it is people telling me how I am in their prayers, etc. While I am not against prayers on my behalf, It is amazing to me how those who harp the most about prayer are so often incapable of lifting a finger beyond that. If only the Good Samaritan would have realized that he merely needed to say a prayer and move on.

About three weeks ago, in a fit of anger, someone tied up in my matter told me that I was a "goner" and that I was "quicksand" for anyone standing nearby. It is often said that truer things are said in jest, and this is likewise true about things said in anger. And the evidence overwhelmingly suggests I am a "goner" and that things are only going to get far worse. And hopefully I will finally internalize that I am "quicksand," and therefore will realize that very few wish to hear from me anymore.

Tuesday, May 11, 2010

Justice on Hold

The following editorial was published by the Columbus Dispatch on May 10, 2010.

Governor, attorney general should push for testing of DNA for five inmates

The state of Ohio can do only so much to make up for the wrong done to Ray Towler, imprisoned for nearly 29 years for a crime he didn't commit.

But Ohio officials could try to spare others a similar fate.

Other inmates in Ohio prisons deserve DNA testing of evidence that could prove their innocence, as it did for Towler, who was falsely accused of raping a 12-year-old girl and attacking a 13-year-old boy in 1981. In five such cases, courts have rejected requests for retesting of DNA, even though testing could resolve unanswered questions and a Cincinnati DNA lab has offered to work for free.

When The Dispatch published "Test of Convictions," a series of stories in January 2008 highlighting flaws in the state's use of DNA evidence and focusing on 30 cases in which further testing is warranted, Gov. Ted Strickland supported the idea.

"It's not going to cost the county," Strickland told The Dispatch. "I don't know what the justification for trying to block that kind of testing would be."

But he's done little so far to make it happen.

The Ohio Innocence Project, which worked with The Dispatch to identify the cases most worthy of retesting, wrote Strickland a memorandum in February 2009, asking him to intervene in seven cases in which judges had denied testing requests. In two of those cases, appeals courts since have granted inmates the right to a test.

Why Strickland hasn't responded to the request is a mystery. He had it right back in 2008; there is no justification for denying testing in these cases. Attorney General Richard Cordray, who also received the memo, also hasn't spoken up.

If Strickland and Cordray are staying away from the issue because they're loath to alienate law-enforcement groups, that's unfortunate.

Ethical prosecutors and police should welcome the truth that post-conviction DNA testing offers, yet some fight it at every turn. In Towler's case, no one objected to his original request for testing in 2004, but the test didn't happen until 2008, because some of the evidence had been lost.

When results in November 2008 revealed evidence of DNA on the victim's underwear from two men, neither of which could be Towler, he expected to be freed. But Cuyahoga County officials wanted a follow-up test to sort out the issue of the two men. What followed was 18 months of waiting, with multiple issues raised by the county prosecutor's office and no good explanation for why it took so long.

Cuyahoga County Common Pleas Judge Eileen A. Gallagher finally had enough in March and set a short deadline for resolution. Towler was freed on Wednesday.

The 18 months Towler had to spend in limbo compounds the injustice already done to him. Even though a recently passed state law gives Ohio one of the nation's best systems for using DNA evidence to revisit questionable convictions, the law still needs refinements to end delays.

More immediately, the five inmates who have been denied testing deserve to have the truth uncovered. Strickland and Cordray should use their influence to make it happen.