Monday, February 28, 2011

With a man's life at stake, DNA test is appropriate

The following editorial was published on February 28, 2011 by the Cleveland Plain Dealer.

By The Plain Dealer Editorial Board

Why would Portage County Prosecutor Victor Vigluicci fight a motion for the DNA testing of a cigarette butt that could help exonerate a man on death row?

Vigluicci says the Ohio Innocence Project motion is a waste of time because an appellate court and the state Supreme Court already denied prior motions from convicted murderer Tyrone Noling.
But the prior motions didn't address the need to DNA test the cigarette butt -- which blood tests after the crime determined had not been smoked by Noling or his co-defendent.

The question now is, who was the smoker?

Attention to that detail seems fully merited in this long-running case, in which the courts repeatedly have declined to consider new evidence that might exonerate Noling in the killing of an elderly Portage County couple.

Noling is no angel. He's a robber with a rap sheet. But the chief witnesses against him have recanted, and another man has stepped forward to claim that his late foster brother admitted to the crime. That kind of uncertainty requires Ohio to slow down and make sure of its case.

Carrie Wood, an attorney with the Innocence Project, argues that the new motion is driven by new evidence that raises doubt about Noling's guilt in the 1990 murders of Bearnhardt and Cora Hartig.

Wood wants to test the cigarette for DNA to see whether it matches that of convicted murderer Daniel Wilson, whose DNA is stored in a criminal database. Wilson was executed in 2009 for burning a woman alive.

Police initially considered Wilson a suspect in the Hartigs' deaths.

Noling has maintained his innocence for more than two decades. Any evidence that casts doubt on his guilt must be considered. Justice demands it.

Tuesday, February 22, 2011

Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams

by James Scanlan, Esq.

In United States v. Dean (which is discussed or alluded to in my Truth in Justice editorials of June 26 , July 11, August 17, September 4, September 26, and October 3, 2010, and February 6 and February 19, 2011, concerning Robert E. O’Neill and Bruce C. Swartz), at a hearing on February 14, 1994, Judge Thomas F. Hogan of the District Court for the District of Columbia repeatedly noted his concerns about the “cumulative effect” of identified prosecutorial abuses, observing (at 29) that it was “almost impossible to quantify the[ir] total impact” on the defendant’s ability to defend herself. Typically, when one party has created a situation where it is impossible to sort things out (in this instance, the prosecution), a court is expected to rule against that party, which for a time it appeared Hogan was going to do. Nevertheless, with little more than a page of explanation (at 30-31), Hogan refused to grant a new trial.

Requesting reconsideration, the defendant sought a piece of discovery that she maintained would show that a key government witness committed perjury concerning a matter given provocative attention in closing argument. But at a hearing on February 22, 1994, Hogan denied discovery even though he apparently believed that the defendant had told the truth. Observing (at 21) that the matter “could be argued either way . . . but it doesn’t mean of necessity that the government is putting on information they knew was false,” Hogan refused to allow the discrete inquiry that could reveal whether the government in fact deliberately used false testimony.

Part of the reason for both rulings may have involved deference to, and disinclination to embarrass, Independent Counsel Arlin M. Adams, a highly regarded former federal judge, who had served with distinction on the U.S. Court of Appeals for the Third Circuit from 1969 until 1987 and had been several times a serious Supreme Court candidate. In May 1995, three judges comprising the D.C. Circuit’s Special Division overseeing independent counsels showed like deference to Judge Adams, notwithstanding Judge Hogan’s having excoriated the prosecutors in what Robert E. O’Neill would describe as Adams’ “showcase trial.” By letter of May 17, 1995, in conveying its “unmeasured appreciation for a job well done,” the Special Division added: “No one has better carried out the role of independent counsel than you.”

Nearing 90, Adams is presently one of the most revered former jurists in the country. A current or former trustee of a number of prominent institutions, he has also served as Chancellor of the Philadelphia Bar Association, Chair of the Supreme Court Judicial Fellows Commission, and President of the American Judicature Society and the American Philosophical Society. In 2001 Adams was honored by the creation of the Arlin M. Adams Center for Law and Society at Susquehanna University. In 2005 the Annenberg Foundation established the Arlin M. Adams Professorship in Constitutional Law at the University of Pennsylvania Law School, and in 2007, the Earle Mack College of Law of Drexel University created an Arlin M. Adams Professorship of Legal Writing, naming Judge Adams an honorary member of its inaugural class. In announcing the Penn Law professorship, Dean Michael A. Fitts observed: “Arlin Adams' unquestionable integrity and prudent leadership exemplify the highest ideals of the legal profession.”

But a profile on Arlin M. Adams that is akin to the profiles I maintain on Bruce C. Swartz and Robert E. O’Neill shows that Adams was himself much involved in the abuses perpetrated by Swartz and O’Neill in prosecuting the Dean case. And inasmuch as Adams was in charge, he is more responsible than either Swartz or O’Neill, whether or not his stature played a substantial role in causing the abuses to go unaddressed.

Adams has an additional matter to answer for. Many of the abuses in the case – including the remarkable matter highlighted in most of the referenced Truth in Justice editorials, especially those of September 4, 2010 (“Doubtful Progress on Professional Responsibility at DOJ”) and February 6, 2011 (“Bruce Swartz ­– Our Man Abroad”), and that is the subject of Sections B.1 and B.1a of my Prosecutorial Misconduct page (PMP), Section B of the Robert E. O’Neill profile, and Sections A and E and Addendums 3, 4, and 7 of the Bruce C. Swartz profile – involved claims that Deborah Gore Dean had caused HUD to take certain actions to benefit former Attorney General John N. Mitchell. Mitchell, who had died in November 1988, about six months before the HUD scandal broke, had been regarded as a stepfather by Dean. See Section C, D, and E.1 of the O’Neill profile and Sections B, D, E of the Swartz Profile regarding varied matters concerning Mitchell and Addendum 2 to the Swartz profile regarding the less than candid responses to an appellate judge’s inquiries about how Mitchell’s notoriety may have affected the case. See also Section B.3 of PMP, which shows not only that Dean was innocent of the allegations involving Mitchell, but with regard to the one project on which the court of appeals somehow found sufficient evidence to sustain a conviction, Independent Counsel attorneys (a) knew with virtually certainty that Dean was innocent of the charge before they brought it, (b) deliberately forwent the obvious inquiries that would establish beyond any doubt that Dean was innocent, and (c) then used false evidence to prove the claim.

Adams had a significant prior history with Mitchell. Shortly after he was appointed Independent Counsel in 1990, Adams told USA Today that he might have been appointed to the Supreme Court (in 1971) if had not offended then Attorney General Mitchell by a decision concerning anti-war activist Daniel Berrigan. Adams was not exaggerating. According to Bob Woodward and Scott Armstrong’s 1979 book, The Brethren (at 400), Richard Nixon had promised Adams a Supreme Court appointment, but Mitchell vetoed it. According to James Rosen’s 2008 book on Mitchell, The Strong Man (at 484), Adams also clashed with Mitchell at the 1968 Republican convention, which “earned him a tongue-lashing from Mitchell that he never forgot.”

Given that Dean had been a central figure in matters Adams was to investigate, and that Dean’s connection to Mitchell was often mentioned in the press (sometimes with suggestions that she took actions to benefit Mitchell), a responsible (or prudent) lawyer in Adams’ position would have declined the appointment solely to avoid any appearance of impropriety. The failure to do so may yet haunt him or his memory.

When it became known in June 1992 that Adams was bringing an indictment alleging a conspiracy involving Dean and Mitchell, Dean, citing the USA Today article, requested that Adams recuse himself. By letter of June 23, 1992 to Dean’s counsel, Adams denied ever having any animosity toward Mitchell, and stated that “[t]o the extent that the ongoing investigation involves . . . John Mitchell, it does so solely because Ms. Dean chose to involve John Mitchell in the conduct of her official duties at HUD.” Adams added: “In addition, of course, it the grand jury, not this Office, that determines whether or not Ms. Dean will be indicted on particular charges; and it is the petit jury, not this Office, the will ultimately decide whether or not Ms. Dean is guilty of those charges.”

Assuming Adams truly believed he bore no animosity toward Mitchell, one would still expect Adams to recognize the need to avoid any appearance that personal bias will influence a criminal proceeding, as he should have done two years earlier. And anyone familiar with the workings of a federal grand jury would regard as utterly fatuous the statement that the grand jury rather than the prosecutor decides what indictments to bring.

Nevertheless, Adams’ point about the grand jury does highlight an additional aspect of the matter. As of the time of the issuance of the Superseding Indictment on July 7, 1992, the process of deceiving the defense, the jury, and the courts was only beginning. But Adams’s attorneys had already been deceiving the grand jury. That is, presumably the grand jury was not told that numerous statements or inferences in the Superseding Indictment were false. It can be taken for granted, for example, that the grand jury was not told that the conspiratorial reference in the indictment to “the contact at HUD” with regard to a project called Park Towers (part of the Mitchell count) was not a reference to Dean or that eight other key inferences underlying the Park Towers charge were known or believed to be false. See Section C of the O’Neill profile. It can also be taken for granted that the grand jury was not informed that telephone message slips found in Mitchell’s files indicated that Mitchell had secured funding for a project called Arama through Dean’s predecessor. Certainly the grand jury was not informed that, as a result of the message slips and other evidence, Independent Counsel attorneys were virtually certain that Dean was innocent of the Arama charge, but that those attorneys nevertheless believed they could secure a conviction by leading the petit jury to believe various things the attorneys knew or believed to be false. And I doubt that the grand jury was told that Government Exhibit 25 was a fabrication. See Sections B.3 and B.9a of PMP and Section D of the O’Neill profile.

In the event my interpretation the conduct of Adams’ prosecutors in the Dean case becomes widely known, varied institutions may find the Adams name a sort of ironical albatross. This would seem especially so for the Arlin M. Adams Center for Law and Society. The Center is obviously a well-meaning institution and among its admirable missions is the promotion of a criminal justice system that would preclude the type of conduct perpetrated by Adams and his subordinates in United States v. Dean or severely punish it when it occurs. Its first full time director, the recently-deceased Allan D. Sobel, would write on such on such things as prosecutorial misconduct. One item was styled “Prosecutors Rarely Penalized for Misdeeds.” True enough.

Sunday, February 20, 2011

Florida won’t pay for injustice

The following opinion by Fred Grimm was published by the Miami Herald on February 19, 2011.

All this talk about compensation for wrongful convictions. Not in Florida. Not for the likes of Anthony Caravella.

Why, it’s Caravella who owes Florida — $71.93 a day. Comes to $682,615.70 for the 26 years Anthony mooched room and board off the Florida penal system, taking up valuable prison space for a crime someone committed.

The lousy freeloader. He’s damn lucky the Florida Legislature doesn’t send him a bill.

Compensation? This is a Legislature bent on cutting public school and state university budgets, pension costs, healthcare for the poor and disabled, nursing-home services for the elderly. Some pathetic case from Miramar, IQ of 67, busted at 15 and imprisoned for the next 26 years for a crime he didn’t commit, released March 25 without job skills? Get real.

Let’s examine the only facts that matter: Anthony Caravella hasn’t established a political action committee, hired a lobbyist or ponied up crucial campaign contributions. He belongs to a politically impotent constituency: Floridians whose lives were ruined by shoddy police investigations, negligent prosecutors, oblivious judges. A bunch of convenient stooges for a justice system in need of quick and easy convictions. In 1983, Caravella, young and slow minded, was easily bullied into confessing to a rape and murder that, 26 years later, DNA testing proved he didn’t commit.

Florida did pass a Victims of Wrongful Incarceration Compensation Act three years ago, after an embarrassing slew of convictions were reversed, most after DNA testing. The law authorized paying innocents $50,000 for every year spent behind bars. It was an “illusory impact,” said Seth Miller, director of the Florida Innocence Project. Miller said the law included a “clean hands” provision that disqualifies a wrongfully convicted prisoner with a prior felony conviction.

“Clean hands” proved to be brilliant money saver for Florida (the only state with such a proviso). Cops don’t find their patsies on the membership rolls of the chamber of commerce. Miramar police knew Caravella from a string of juvenile offenses – the same crimes that now preclude him from compensation.

None of the dozen convicted men cleared by DNA testing in Florida have received compensation. A Sun Sentinel reporter found several afflicted with poverty, living off food stamps. Caravella had spent time in a homeless shelter. Only one, James Bain, who did 35 years of hard time, qualifies under “clean hands” and will likely get his money.

After all, William Dillon, who did 27 years on a trumped up murder conviction, had been busted in 1979 for possession of a single Quaalude. Of course, he’s out of the money.

In a Kafka-like twist, Orlando Boquete, who did 13 years for a murder and robbery he didn’t commit, doesn’t qualify because he managed to escape prison while serving his wrongful sentence.
Luis Diaz, the so-called Bird Road Rapist of Miami-Dade County who, as it turned out, wasn’t, did 25 years. Sorry, Luis. No money.

The list goes on; ruined lives for whom wrongful incarceration compensation remains an illusionary concept. Sorry guys but fairness . . . that’s a budget buster.

Saturday, February 19, 2011

U.S. Attorney Robert E. O’Neill and 18 U.S.C. § 1001

By James Scanlan, Esq.

In Truth in Justice editorials of June 26 , July 11, August 17, September 4, September 26, and October 3, 2010, and February 6, 2011, I discussed that Robert E. O’Neill (subject of this profile on was nominated and confirmed for the position of U.S. Attorney for the Middle District of Florida notwithstanding that he made a false statement on the U.S. Attorney application he submitted to the Florida Federal Judicial Nominating Commission in June 2009. In the application, in an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in United States v. Dean, O’Neill stated that the investigation was initiated by the convicted defendant. In fact, the investigation was initiated by Bar Counsel itself after reading a Court of Appeals opinion “deplor[ing]” certain conduct of O’Neill and his colleagues.

In discussing this matter, I have at times mentioned the possibility or likelihood that O’Neil violated 18 U.S.C. § 1001 by making the same statement to representatives of a federal executive or legislative body during the vetting or confirmation process. But I also raised the possibility that the statement on the Nominating Commission application itself violated that statute. In that regard, the August 17 item (“Additional Problems with Middle District of Florida U.S. Attorney Nomination”) discussed a suit brought against O’Neill and others by a former Assistant U.S. Attorney named Jeffrey Del Fuoco, who alleged, inter alia, that O’Neill defamed him by statements in the Nominating Commission application. I noted that in seeking to dismiss the case, Department of Justice attorneys representing O’Neill and Attorney General Eric H. Holder, Jr. had taken the position that the O’Neill’s statements in the application enjoyed an absolute privilege as to defamation issues because the Nominating Commission is a “quasi-legislative body established by members of the U.S. Senate.” I noted that the characterization would provide another argument as to why O’Neill’s false statement in the Nominating Commission application itself violated 18 U.S.C. § 1001.

In an Order of February 11, 2011, Judge James D. Whittemore of the U.S. District Court for the Middle District of Florida dismissed the Del Fuoco suit, holding, inter alia, that O’Neill’s statement on the Nominating Commission application were not defamatory and in any case were protected opinion under Florida law. While not resolving what privileges may exist for statements made on a Nominating Commission application, Whittemore discussed (at 6-9) the way that the status of the Nominating Commission bore on such issue. I have not so far found anything in the discussion that is particularly helpful as to the implications of the status of the Nominating Commission regarding the 18 U.S.C. § 1001 issue, save that Judge Whittemore seems to view the Nominating Commission the same way the Department of Justice does. But in the course of discussing policy reasons favoring a privilege rule that would promote candid responses in applications submitted to the Nominating Commission, Judge Whittemore observed (at 8): “Foremost among these policy reasons is that the President of the United States and members of the United States Senate will rely on the information disclosed by the applicant.”

In the event that Judge Whittemore is correct that the application is forwarded to the President and members of the Senate (or any federal entity), and O’Neill was aware of such fact, those are reasons that the false statement on the application would seem to violate 18 U.S.C. § 1001. But O’Neill is the principal federal law enforcement officer in the Middle District of Florida. So that office is unlikely to take an interest in the matter. As I have noted in a few of the earlier items, by letter dated August 13, 2010, Jay Macklin, General Counsel for the Executive Office for United States Attorneys, advised that the Department of Justice would not investigate any of the issues I had raised with the Department concerning O’Neill’s suitability for the U.S. Attorney position or his then current position of Chief of the Criminal Division in the Middle District of Florida, including the false statement on the Nominating Commission application, because it was Office of Professional Responsibility policy “to refrain from investigating issues or allegations that were addressed, or that could have been addressed, in the course of litigation.” Quite obviously that does not apply to the false statement on the Nominating Commission application. But the Department seems committed to a course of ignoring this particular probable or certain violation of 18 U.S.C. § 1001 by a person seeking a high law enforcement position.

Presumably, however, in the Middle District of Florida federal prosecutors will continue to enforce 18 U.S.C. § 1001 against persons who are not the U. S. Attorney. And, unless he recuses himself, O’Neill will have a key role in establishing office policy on such issues as whether a false statement on an application to the Florida Federal Judicial Nominating Commission violates 18 U.S.C. § 1001, standards for determining whether a false statement is material, and generally the vigor with which 18 U.S.C. § 1001 should be enforced.

In the September 26, 2010 item (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”), I discussed reasons why O’Neill would find it wise to avoid forums where he might be asked whether he lied on his U.S. Attorney application. The same holds for forums where he might be asked about any aspect of 18 U.S.C. § 1001.

In the August 17, 2010 item I also discussed the fact that the Del Fuoco complaint alleged that O’Neill had committed perjury in a 2005 deposition by denying that he had made certain putatively threatening statements in the workplace and identified particular individuals who were said to have heard O’Neill make these statements in the workplace. I noted that I had been led to understand that there was some concern within the Middle District U.S. Attorney’s office that the head of the office might soon be a person whom at least several people in the office know to have committed perjury and that, if Del Fuoco’s case went forward, some of those people might be deposed on the matter. Judge Whittemore’s ruling would seem to eliminate the latter concern though it would have no bearing on the former.

Wednesday, February 16, 2011

Graves injustice

The following editorial was published by the Houston Chronicle on February 15, 2011.

Exonerated death row inmate deserves state compensation for imprisonment

It might not be as unjust as spending 18 years in a state prison for a wrongful conviction. But in denying former death row inmate Anthony Graves state compensation for his ordeal, Texas Comptroller Susan Combs and her staff have trumped grievous judicial error with injustice by technicality.

Because a trial judge neglected to use the words "actual innocence" in an order releasing Graves and dismissing capital murder convictions against him for the killings of six people, the comptroller's staff rejected his application for a $1.4 million state-mandated wrongful imprisonment payment under the Tim Cole Act.

Graves was incriminated by false testimony of one of the participants in the 1992 robbery-murders and prosecutorial misconduct documented by former Houston Assistant District Attorney Kelly Siegler. She served as a special prosecutor reviewing the case after a federal appeals court voided Graves' conviction in 2006 and ordered a new trial. At Siegler's recommendation, the charges were dropped and Graves freed.

Siegler, known as a hard-line law-and- order prosecutor during her Houston career, has no doubt that Graves is innocent and deserves the state payment.

"I'm willing to testify to the fact that we believe he is innocent," she told the Chronicle. "I've signed an affidavit. I'm not sure what we are supposed to do to make it happen."

The latest complication occurred when the judge overseeing a new trial, Reva Towslee-Corbett, signed an order last year dismissing charges against Graves but failed to use the words "actual innocence." The law only allows 15 days to amend such an order. As Towslee-Corbett did not, and no longer has jurisdiction over the matter, Graves' attorney Nicole Casarez filed a compensation request with the comptroller, hoping that declarations of Graves' innocence from Siegler and Burleson-Washington County District Attorney Bill Parham would suffice.

That hope was dashed last week when the comptroller's office e-mailed a letter to Casarez stating that the judge's order was insufficient to qualify for compensation.

Graves, who has shown amazing forbearance and understanding through his long ordeal, reacted in similar fashion. "Nothing has ever been easy for me on this road to justice," he said. "I haven't given up on it, and I hope justice will prevail and I'll be compensated." Attorney Casarez indicated a civil suit to claim the state payment is an option.

It's obvious to us that under the spirit of the state legislation passed in 2009, Graves deserves compensation. No one disputes the fact that the man is actually innocent. And the $1.4 million payment that he's due according to the state's formula hardly makes up for the loss of freedom for most of his adult life. The state has paid more than $30 million to 67 wrongfully imprisoned Texans. Graves should be the 68th.

Comptroller Combs has appeared before the Chronicle editorial board in the past and earned our endorsement for office. We believe she is a fair-minded and diligent public official who should not be a party to this obvious injustice by technicality. We urge her to review the exceptional circumstances of the Graves case and do the right thing. No one can return his lost years, but the state of Texas can pay him the money.

We owe it to him.

Tuesday, February 15, 2011

Lenore Skenazy: When we always assume the worst

The following opinion by Lenore Skenazy was published by the San Gabriel Valley (CA) Tribune on February 14, 2011.

SHAKEN baby syndrome.

It's a horrible term most of us are familiar with, even though it only came to public consciousness maybe 20 years ago. And now, as it turns out, many people may be in prison because we got it wrong.

A recent New York Times Magazine story by Emily Bazelon, "Shaken-Baby Syndrome Faces New Questions in Court," is a shocking look at how our desire to save the children - and be ever on the alert for child killers - may have led us astray.

The main thesis is that the symptoms that indicate a baby has been severely shaken don't always show up immediately after the shaking. We used to think they did. So some caregivers who went to prison because they were the most recent people seen with the babies were perhaps wrongly convicted. The babies could have been hurt hours or perhaps even days earlier - by other people - and just happened to succumb while in their care.

It's even possible that in some cases the "shaken babies" weren't shaken at all but suffered a stroke or manifested the "shaken" symptoms after a concussion that may or may not have been inflicted deliberately. In other words: We don't know enough about this syndrome to be certain about whom to sentence.

Yet off to prison the caregivers went, for two reasons. First, of course, we THOUGHT we had the scenario right. Arrest the caregiver at the scene of the crime.

But the other reason is our absolute willingness to engage in "worst first" thinking.

That's my term for our current tendency to jump to the very worst possible conclusion first, no matter how unlikely it might be. In the case of shaken baby syndrome, many of the caregivers were considered kindly, patient women. They had spotless records. They never had been seen hurting any kids before.

But because we have been conditioned to believe that perverts, predators and baby killers are always hiding among us (like Salem's witches), it was easy for us to ignore all the positive evidence about these women and instantly embrace the idea that they were monsters.

This is the same mentality that led a nation to believe the worst of three generations of caregivers at the McMartin preschool in the 1980s. That was when a series of children testified, after lots of "repressed memories" were dredged up by a zealous social worker, that the McMartin family members working at the school not only molested them but also dragged them into secret tunnels, flushed them down toilets, lopped off the ears of bunnies and sacrificed a giraffe - wild stuff.

"Worst first" thinking meant that rather than assume "these kids have let their imaginations run wild," the public thought, "Just goes to show you that our kids are always in danger! Those MONSTERS." And off to prison those caregivers went, too.

We seem to lose our critical faculties when we contemplate children in danger, not only because our love overwhelms reason but also because we have been told over and over again that it is SMART to be SUSPICIOUS. Why does that old man want to give cornet lessons? Why does that executive want to be a Boy Scout leader?

This explains why so many schools now require background checks for volunteers. (Why do they REALLY want to help out?) It explains why many Sunday schools require two teachers in a classroom.

This eagerness to think the worst of anyone having anything to do with our kids is making us paranoid. Far from making the world safer, it also seems to be putting some innocent people in prison. It's time to take a deep breath and think the worst ... later. A lot later. Only after facts and reason have weighed in first.

Lenore Skenazy is the author of "Free-Range Kids: How to Raise Safe, Self-Reliant Children (Without Going Nuts with Worry)" and "Who's the Blonde That Married What's-His-Name? The Ultimate Tip-of-the-Tongue Test of Everything You Know You Know -- But Can't Remember Right Now." She is a columnist with Creators Syndicate.

Sunday, February 13, 2011

Justice has not been served in the case of a 27-year prisoner

The following editorial was published by the Washington Post on February 12, 2011.

THOMAS HAYNESWORTH has spent the past 27 years behind bars for crimes he probably did not commit.

Mr. Haynesworth was 18 years old and had a clean record when he was charged in Richmond in 1984 with raping or assaulting four women. He pleaded not guilty to all charges but was convicted in three of the four cases and sentenced to some 70 years in prison.

Mr. Haynesworth was offered a glimmer of hope in 2005 when then-Gov. Mark R. Warner (D) ordered a review of thousands of criminal cases after the exoneration of five wrongly convicted men. DNA evidence proved that Mr. Haynesworth was innocent of two rapes - one for which he was convicted and the other where the jury acquitted him based on other evidence. The DNA conclusively pointed the finger at another Virginia man, a serial rapist who came to be known as "the Black Ninja" and who is serving multiple life sentences for other crimes.

Mr. Haynesworth, now 45, and his lawyers from the Mid-Atlantic Innocence Project have petitioned a Virginia appeals court to throw out the two remaining convictions. They have garnered support from some extraordinary sources, including Virginia Attorney General Ken Cuccinelli II, Henrico County prosecutor Wade Kizer and Richmond prosecutor Michael Herring. "New evidence calls into question those convictions. I support his petition," Mr. Cuccinelli said in a statement. Mr. Herring told The Post's Maria Glod that "this is a sad case of the wrong guy locked up."

No DNA evidence was salvaged from these remaining cases, but the attacks closely resemble those committed by the Black Ninja - a black man who attacked white women between the ages of 15 and 30. Inconsistencies in the victims' description of the attacker - a relatively commonplace occurrence with victims and alleged perpetrators of different races - point to Mr. Haynesworth's innocence. One victim - a 5-foot-8½-inch woman - said that the attacker was taller than she was; Mr. Haynesworth, at 5 feet 6½ inches, did not fit the bill. Mr. Haynesworth also passed two polygraph tests.

The Virginia Court of Appeals has Mr. Haynesworth's fate in its hands and should act expeditiously. Mr. Haynesworth's lawyers have held off on filing a pardon petition with Gov. Robert F. McDonnell (R) to allow the court system to work; governors rarely act before the courts have had their final say, and in Virginia any pardon petition must first be vetted by the state Parole Board, which further delays a final disposition. But Mr. Haynesworth's lawyers should turn to the board and the governor's office if the appeals court does not act within a few months.

Mr. Warner deserves credit for insisting on the review that allowed for the discoveries in Mr. Haynesworth's case. Mr. Cuccinelli, Mr. Kiser and Mr. Herring are to be commended for demonstrating that prosecutors and lawyers for the state serve as honorably when they prevent an innocent man from unjust incarceration as they do when they ensure that the guilty do not go unpunished. Still, Mr. Haynesworth can never get his years back, and as long as he remains in prison, justice is disserved.

Friday, February 11, 2011

Grant overdue audit of Wisconsin Office of Lawyer Regulation

The following is a Wisconsin State Journal editorial published on Thursday, February 10, 2011

Wisconsin's wimpy and secretive Office of Lawyer Regulation definitely needs a state audit.

The Joint Legislative Audit Committee should quickly approve Sen. Mary Lazich's request for a "comprehensive, independent review" that she correctly called "long overdue."

The OLR showed how badly it is failing to do its job last year with its mishandling of the Ken Kratz case. The OLR is supposed to hold lawyers accountable for wrongdoing. Yet it lamely ruled that Kratz's obnoxious and unethical behavior involving a domestic abuse victim didn't constitute misconduct.

Kratz, while serving as the Calumet County district attorney, tried to spark an affair with the traumatized woman while simultaneously prosecuting her ex-boyfriend. Kratz sent some 30 text messages such as: "Are you the kind of girl that likes secret contact with an older married elected DA... the riskier the better?"

The woman complained to police that she felt pressured to have a relationship with Kratz or he would drop charges against her boyfriend. And what would have happened if the woman had agreed to a relationship with Kratz? Would he have gone overboard in prosecuting her ex-boyfriend to try to impress her?

Not until then-Gov. Jim Doyle moved to force Kratz from office did Kratz resign.

The OLR's shortcomings go way beyond one embarrassing case. Lazich cited recent articles in the Milwaukee Journal Sentinel raising "serious concerns about the timeliness, quality and effectiveness of the work of this office." The newspaper found at least 135 lawyers continuing to practice in Wisconsin after breaking the law.

"The system is run by lawyers and is for lawyers," said Michael Frisch, an expert on lawyer discipline at Georgetown University.

State Journal reporting has raised similar concerns about the OLR in recent years.

The state Supreme Court should tighten its rules on lawyers and require transparency at the OLR.

At the same time, the Joint Legislative Audit Committee should approve Lazich's wise call for an audit.

The public deserves a broad and independent assessment.

Sunday, February 06, 2011

Bruce Swartz ­– Our Man Abroad

by James Scanlan, Esq.

Since at least 2001 Bruce C. Swartz has been the Deputy Assistant Attorney General in the Department of Justice’s Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. At least in this era, this is certainly one of the most important career positions in the Department and it is likely more important than many presidentially-appointed positions. A Google search for “bruce swartz deputy 2011” will give one a hint, though surely only a hint, of the scope of Swartz’s current involvement in crucial international issues, as will a like search with the word “wikileaks” added.

Among my Truth in Justice editorials regarding the nomination of Robert E. O’Neill for United States Attorney for the Middle District of Florida (June 26 , July 11, August 17, September 4, September 26, and October 3, 2010) the September 4 item (“Doubtful Progress on Professional Responsibility at DOJ”) gave special attention to Swartz, who, as Deputy Independent Counsel, supervised O’Neill’s prosecution of United States v. Dean and then responded to allegations of pervasive prosecutorial misconduct. The item discussed that during the trial Swartz and O’Neill pressured a government agent into giving misleading testimony in order to enable O’Neill to provocatively assert that the defendant had lied about a conversation with the agent, even though Swartz and O’Neill knew that the defendant’s testimony was true. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. The item also discussed Swartz’s efforts to deceive the court in covering up these actions when the matter was raised in a post-trial motion. As part of an aggressive strategy in that regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation.

The agent was Supervisory Special Agent Alvin R. Cain, Jr., and actions of Swartz, O’Neill, and their colleagues regarding Agent Cain are discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page (PMP), Sections A and E and Addendums 3 and 4 of the Bruce C. Swartz profile, and Section B of the Robert E. O’Neill profile. Readers of those materials will conclude that, assuming my interpretation is essentially correct, Swartz’s actions certainly were heinous and probably were criminal as well. And I doubt that many will question my interpretation, which, it warrants note, was originally suggested to me by Associate Deputy Attorney General David Margolis – albeit, incongruously, as a reason for believing that the conduct of Swartz and O’Neill was not as egregious as I maintained. See Sections B.1 and B.8 of PMP and Section B.1 of my May 25, 1995 letter to Margolis.

The September 4 item also suggested that Swartz’s actions in generally defending against allegations of prosecutorial abuse could serve as a case study of impermissible evasions and deceptions that prosecutors employ to hide their misconduct. In Addendum 2 to a September 26 item (“The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience”), I then noted that Addendum 7 had been added to the Swartz profile to further develop that point and suggest measures to ensure that prosecutors respond truthfully to misconduct allegations.

The September 4 item also discussed the Department of Justice’s recent refusal to consider whether Swartz’s actions concerning Agent Cain’s testimony and other aspects of the Dean prosecution called into question Swartz’s fitness to serve in his current position. The Department based its refusal on the grounds that it was Office of Professional Responsibility policy not to investigate matters that were or could have been addressed in litigation. It seems a fair assumption that the Department has failed even to ask Cain (or Swartz or O’Neill) whether the allegations concerning Cain’s testimony are true.

Nevertheless, the Department of Justice, by putting Swartz forward to represent it in dealing with foreign nations, has impliedly assured those nations that it has no basis to question Swartz’s integrity. Such, at any rate, is what representatives of those nations have every reason to expect.

What then are representatives of those nations to think when they inquire into the background of the person with whom they are dealing on highly sensitive issues by a simple Internet search for, say, “bruce c. swartz” or “bruce swartz department of justice,” and they are taken immediately to one of the Truth in Justice editorials or one of the pages I maintain on Swartz’s conduct (as recently happened to representatives of Hungary and the European Union and as from time to time happens to representatives of varied foreign governments)? One thing that they might reasonably think is that they ought not to regard Swartz as a trustworthy person in their dealings with him. A more important thing that they might reasonably think is that they cannot trust the Department of Justice that has impliedly assured them that Swartz is a person of integrity. That failure of trust goes not merely to the Department’s word, but to the Department’s judgment, given that both the allegations against Swartz and the Department’s dubious justification for refusing to examine them are so readily available on the Internet.

This point holds even as to the Department’s implied assurances. But the matter will rise to another level if a foreign government confronts the Department with some perceived basis for distrusting Swartz and the Department is placed in the position of deciding whether it can affirmatively, and truthfully, vouch for Swartz’s integrity. That, I think, is something that it would be impossible for the Department to do without thoroughly investigating Swartz’s conduct in the Dean case, including what actions he may have taken to cover up that conduct in a District of Columbia Office of Bar Counsel investigation (which investigation is the same one that Robert E. O’Neill lied about in his United States Attorney application). See Section B.11a of PMP and Addendum 7 to the Swartz profile.

The Department of Justice’s approach to the allegations against Swartz, as with the refusal to allow Robert E. O’Neill’s false statement on his application or varied other indications of dishonesty to stand as an obstacle to his appointment, is presumably founded on the belief that too few people will ever know about the matter to cause the Department serious embarrassment. The belief was likely sounder prior to the advent of the Internet, but the belief still may be correct. Yet, even if the Department never experiences significant embarrassment from its failure to ensure the integrity of its officials, that will leave open the question of the extent to which perceptions arising from the Department’s failure compromise the interests of the United States or diminish the regard in which the nation’s officials and institutions are held by foreign governments.

My October 3 editorial, which addressed whether citizens of the United States can rely on assurances of the Department of Justice (or the Senate Judiciary Committee) as to the integrity of public officials given what we know about the confirmation of Robert E. O’Neill, was titled “Whom Can We Trust?” This item could have been titled “Whom Can They Trust?”

Justice must be served to keep Nancy Smith and Joseph Allen free

The following editorial was published by the Lisbon, Ohio Morning Journal on February 6, 2011.

Efforts are under way on several levels to keep Nancy Smith and Joseph Allen from being sent back to prison. Those efforts need to continue until both get their lives back.

On Monday, defense attorney Jack Bradley and Lorain County Common Pleas Judge James Burge intend to file motions asking the Ohio Supreme Court to reconsider its ruling that overturned Burge’s acquittals of Smith and Allen.

In 1994, the two were found guilty of taking several young children who rode Smith’s Head Start bus to Allen’s Lorain home and sexually abusing them and received long sentences.

After a minor error in a sentencing entry sent the pair to Burge’s courtroom in 2009, rather than correct the error, Burge acquitted them, stating he believed they were innocent. Last month, the Ohio Supreme Court ruled Burge lacked jurisdiction to do so and ordered the judge to restore their original prison sentences.

Bradley said since the Ohio Supreme Court recently issued an opinion on another case, State v. Ross, in which it determined it was unconstitutional to overturn an acquittal, he feels the high court has an obligation to clarify why it is overturning Burge’s acquittal of Smith and Allen.

The Ohio Innocence Project, part of the Innocence Network, is also continuing to lend support. The Ohio group sent a 2007 letter to the Ohio Parole Board stating there was an overwhelmingly amount of evidence indicating both were innocent.

The letter cited affidavits from school aides who rode with Smith on the week of the alleged crimes saying no inappropriate conduct occurred. The letter also said the children were “subject to questionable and coercive investigative tactics” that hindered Smith’s ability to “have an adequate defense and a fair trial.”

Smith and Allen were unjustly prosecuted, wrongly convicted and forced to serve 15 years in prison for crimes they didn’t commit. Now, unless the Ohio Supreme Court reverse its own ruling, it appears it will be the first high court in American history to send two people who have been found innocent back to prison.

Supporters of Smith and Allen are ready to take their plight to the U.S. Supreme Court.

Whatever it takes, justice will be done only when Nancy Smith and Joseph Allen are cleared and allowed to remain free.