Tuesday, December 27, 2011

Let Anderson's record be heard by a court

The following editorial by the Editorial Board was published in the December 26, 2011 edition of The Statesman (Austin, TX):

Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.

Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.

With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.

Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.

The family of Debra Masters Baker is also calling for a court of inquiry. Baker was beaten to death in her bed in Travis County in 1988, two years after Christine Morton was killed in a similar way.

Morton was released from prison after DNA tests on a bandana found near the Morton home ruled him out as his wife's killer.

Authorities have since charged Mark Norwood with Christine Morton's death, and they suspect Norwood in Baker's murder. DNA evidence connects him to both crimes, police say.

Morton's lawyers, led by Barry Scheck of the Innocence Project in New York, say Anderson did not give Morton's trial lawyers key pieces of evidence that could have prevented his conviction. In addition, they say Anderson committed contempt of court by failing to give trial Judge William Lott all the reports and notes collected by the case's lead investigator, Sgt. Don Wood of the Williamson County Sheriff's Department.

Eleven days after Christine Morton's murder, her mother, Rita Kirkpatrick, talked with Wood on the phone about a chat she had had with Morton's 3-year-old son. According to the police transcript of the call, Kirkpatrick said the boy told her a "monster" had beaten his mother and that his father was not home when it happened.

Excerpts of this interview were found this summer in Anderson's trial file. Morton's lawyers say Anderson never told Morton's trial lawyers about Kirkpatrick's call.

Also unknown to Morton's trial lawyers: reports that a check made out to Christine Morton had been cashed more than a week after her murder; a report that Morton's credit card might have been used in San Antonio two days after her death; and a police report prompted by a Morton neighbor who saw the unidentified driver of a green van walk on several occasions in the wooded area behind the Morton house.

Anderson says he gave Morton's trial lawyers all the information they needed. He says he wasn't legally required to give defense lawyers a copy of the phone transcript because it was not admissible evidence.

Last month, Anderson apologized for "the system's failure" in wrongly convicting Morton. As we said in response to Anderson's apology, wrongful convictions don't exist because of failures of the system. They exist because the investigators, prosecutors and judges who run the system fail. They make honest mistakes, are unaware of contradictory evidence, or, in their zeal for convictions, either blind themselves to alternative possibilities or rationalize misconduct to fit the "truth" as they see it.

By asking the system to assign blame for Michael Morton's wrongful conviction, his lawyers are breaking new ground. Never before has the prosecutor in a wrongful conviction case been subjected to such an inquiry. But it's ground that needs to be broken. Prosecutors whose deliberate actions steal decades from someone's life should be punished.

Perhaps Anderson concealed evidence. Perhaps he did what was required of him to do. Perhaps there was nothing at the time (remember, DNA testing was in its infancy in 1987) that would have kept Morton from being sent to prison.

We need to know, and Anderson's system needs its credibility restored. Judge Harle should convene a court of inquiry, and the sooner the better.

Wednesday, December 14, 2011

Reasonable doubt exists in Holly Staker slaying

The following editorial was published by the Chicago Tribune on December 14, 2011.

Juan Rivera has spent nearly two decades in prison for the 1992 sexual assault and stabbing murder of 11-year-old Holly Staker in Waukegan. He has been convicted three times by jury, largely because he confessed to the crime.

But three judges on the Illinois Appellate Court reached a stunning decision last week: No "rational trier of fact" could have concluded beyond a reasonable doubt that Rivera is guilty. The court reversed Rivera's conviction.

Lake County State's Attorney Michael Waller now must decide whether to drop the case, ask the appellate court to reconsider, or appeal its decision to the Illinois Supreme Court. A Supreme Court appeal would require the approval of Attorney General Lisa Madigan.

Three jury trials and three convictions can't be discarded lightly. The appellate court, though, was unanimous and emphatic. It said DNA evidence in the case "does not completely exonerate" Rivera, but it "significantly impeaches" the prosecutors' case.

•No DNA evidence tied Rivera to the crime. The evidence showed that semen in Holly Staker's body wasn't from Rivera.

•No physical evidence tied Rivera to the crime. Fingerprints at the scene weren't his. Blood found at the scene wasn't his.

•At the time of the crime, Rivera was on electronic monitoring for a parole violation in another crime. The monitoring device did not indicate that Rivera left his home on the night of the crime. (Though as we wrote at the time, Lake County's electronic monitoring program was notoriously unreliable.)

The appellate court scolded Lake County prosecutors for offering a "highly improbable" explanation of the crime, which distorted "to an absurd degree" the testimony from witnesses.

Then there is Rivera's confession. People ask: If he was innocent, why did he confess?

We've seen many troubling cases where people confess to crimes they didn't commit, oftentimes when they are coerced.

The Tribune reported last year that researchers believe false confessions lead to about 25 percent of wrongful convictions. "Some people confess from fatigue, stress, and being worn down through relentless questioning and sleep deprivation; some people confess out of fear; some people confess with the expectation of future exoneration; some people confess due to coercive or suggestive methods of interrogations," the appellate court wrote.

In this case, the court found, veteran officers used leading questions and likely fed details about the crime to Rivera. The court said detectives psychologically manipulated Rivera, who has an IQ of 79 and reads at a third-grade level. Rivera was banging his head against a wall and pulling his hair out at one point during a police interrogation. He signed confession statements after a long interrogation over several days.

The DNA evidence proves that someone else sexually assaulted Holly Staker. The prosecution's theory about her murder doesn't hold up.

Reviewing courts do not blithely overturn the decisions of juries. These appellate judges have done a careful and thorough analysis and reached an unambiguous decision.

State's Attorney Waller should accept that decision and move to free Rivera. He should not appeal. If he pursues that course, he should move to let Rivera be freed while an appeal is considered. It seems extremely unlikely that Waller will prevail in the Supreme Court.

Lake County does have a case to pursue. Someone did grievous harm to an 11-year-old girl. Someone who has not been identified.

Wednesday, December 07, 2011

Righting a wrongful conviction in Virginia

The following editorial was published by the Washington Post on December 5, 2011.

FOUR YEARS AGO, 15-year-old Edgar Coker Jr. pleaded guilty to a crime he did not commit after his lawyer warned that he could be prosecuted as an adult and subjected to a lengthy prison term if he fought the charges.

Two months later, after Edgar had been sent to a juvenile facility, the 14-year-old girl who accused him of raping her recanted and said she made up the story after her mother walked in on the young couple. The girl’s mother has acknowledged the lie and is now advocating on his behalf.

But as The Post’s Chris L. Jenkins reported, this horrible episode continues to haunt Edgar Coker and has forced him to live with the vilification that comes with being falsely branded a rapist.

Rectifying this injustice should be swift and unconditional, but Virginia’s laws make that virtually impossible. Mr. Coker’s name still appears on the state’s sex-offender registry. Because of that, he was arrested for attending a high school function, and he and his family have been subjected to threats from neighbors who learned of his presence on the list. Prosecutors say they can do nothing to help the young man, who spent 17 months locked up, because they lost jurisdiction once he was released from state custody. Mr. Coker’s new lawyers hope that Virginia’s Supreme Court will give them a chance to challenge the conviction in a trial court, but it is a long shot. His only plausible argument at this stage involves a claim of ineffective assistance of counsel — an argument that Virginia courts are often reluctant to embrace.

A state law allows convicts to go back into court to make a claim of “actual innocence,” but this second chance is not available in the vast majority of instances to those who pleaded guilty. It is not clear because of wording issues whether those adjudicated as juveniles may avail themselves of this law.

Mr. Coker’s case is scheduled to be heard by the state’s high court in January. His lawyers should seek a full pardon from Gov. Robert F. McDonnell (R), although executive clemency is typically not considered until all court action has been exhausted. The best chance for speedy redress may lie with Virginia’s General Assembly, which reconvenes next month for its annual legislative session. Del. Gregory D. Habeeb, a Roanoke-area Republican, plans to introduce legislation to allow juveniles — even those who entered guilty pleas — to make a claim of actual innocence.

“This is not a partisan issue. This is not a race issue. This is a justice issue,” he says. This change would not guarantee a clean record, but it would rightly give those caught in a paralyzing legal vise a chance to clear their names.

Friday, December 02, 2011

Courtrooms Shackle the Presumption of Innocence

The following opinion by John Christopher Fine was published by The Epoch Times on December 1, 2011.

I have vivid memories driving through Georgia with my parents en route to Florida. We would see men chained together working on the road. They were prisoners shackled in road gangs overseen by pot-bellied guards with shotguns. The practice was uncivilized yet not far in our recent history.

Today, our courts are adopting practices never before allowed, and defendants are being deprived of their dignity and their chance at a fair trial.

There has always been the “Perp Walk.” The parade of a handcuffed defendant by police or federal agents on public streets in order for the press to get pictures. The “perp” or perpetrator is jostled between police detectives or officers and led somewhere for booking. The police enjoy the limelight. Their pictures are televised and in newspapers, great scrapbook mementos. The defendant is shamed, scorned, and punished before even being adjudicated guilty.

When I served in the District Attorney’s office in New York County the diligence used to protect the innocent was as fervent as pursuing the people’s advocacy to insure the culpable received justice.

A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.

A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.

What happened outside his courtroom the judge could not ordain but this was a judge that had the dignity, decency, and demeanor to recognize that there are limits to the way defendants can be treated in a court of law.

Would that that judge presided over the many cases that have been brought into court today.

A physician arrested for white-collar crimes was arraigned. He was shown on television between two brutish officers, stripped of his clothing, in prison garb and shackled with a chain around his waist, hands manacled to it.

The physician was small in stature,stature; he had surrendered to police to answer the charges against him. He appeared before the arraignment judge already convicted despite the fact that our system of justice proclaims him innocent until proven guilty.

There was a controversy about cameras in courtrooms. Most judges disdained them. Defense lawyers in criminal proceedings were against them, prosecutors were apparently neutral for a time. The press urged and even sued for the ability to film and photograph in courtrooms. In the abuses perpetrated in most recent times, cameras in courtrooms have proved to be a mistake.

As society hardens it is becoming more difficult to retain the independence of our judicial system. Many judges are caught up in a tide that seems to be sweeping over America. Police agencies have been given more weapons than they need and more power than they should have. That was inevitable after the terrorist attacks of Sept. 11, 2001.

Draconian measures cannot be rolled back once imposed. That has been the fate of many democratic societies, long ago perished.

Our basic premise from the founding of America is that a person in a criminal proceeding is innocent until proven guilty. Police can arrest upon suspicion but a Grand Jury composed of ordinary citizens must hear evidence sufficient to bind a defendant over for trial.

Even before a Grand Jury convenes to hear felony charges a defendant is entitled to be promptly brought before a judge. The judge must be an impartial arbiter standing between the police and prosecutor and the accused. There should be a sorting out at this stage, not the inevitable routine of degrading the defendant and rubber stamping papers with the innocent at law being then returned to jail cells until bail is determined.

Bail today is being used as punishment. The federal system of justice is often at fault in requiring high bail. Most often it is a grand-stand play between federal prosecutors and the court. There is the news conference where officials from federal agencies, ambitious prosecutors, and agency heads display the products of their investigation. Many of these public officials get their start in politics this way. How else do they receive media exposure?

The next step is a degrading process where the innocent is paraded before cameras shackled, stripped of personal clothing and looking, for all to see, ashamed. Can such a person receive a fair trial thereafter? Certainly not in a free society. That person is already branded a criminal and condemned.

am no bleeding heart liberal. I do not assume arbitrarily that defendants are framed and all will be found not guilty. They are innocent until proven guilty and must be accorded the dignity and respect required by our Constitution.

Degrading techniques used in our courtrooms veiled as security measures are being used as a means of condemning the innocent before trial. Where is the U.S. Supreme Court when we need it?

John Christopher Fine served as Senior Asst DA in New York County, Director of the Organized Crime Task Force and Special Counsel to a U.S. Senate investigating committee.