Columbus police should open records in closed cases, lawyer tells Ohio Supreme Court

The following news report by Randy Ludlow was published by The Columbus Dispatch on April 20, 2016.

The refusal of Columbus police to release records underlying closed criminal cases could keep the innocent in prison and the true killers walking the streets, the Ohio Supreme Court was told Wednesday.

Past court decisions on which Columbus police rely to deny records should be overturned because a 2010 change in criminal discovery rules gave defendants expanded access to records held by police and prosecutors, Columbus lawyer Fred Gittes argued.

Gittes represents Donald Caster, an Innocence Project lawyer who claims that police violated public-records laws by refusing to release records in the case of Adam Saleh, who was convicted of the 2005 murder of Julie Popovich, 20, of Reynoldsburg.

Columbus police refused to release the case file, arguing that court decisions forbid the release of records as long as defendants have potential appeals, which generally can be filed anytime. Defendants also must use discovery rules, rather than records laws, to obtain records in their cases.

The Innocence Project, private investigators, journalists and others have an interest in obtaining criminal case files, with their work sometimes freeing the wrongly convicted or identifying true perpetrators, Gittes said.

“If you are in jail, you cannot get records unless you are freed … or dead,” Gittes said. “Until 2010, Columbus gave full public-records disclosure; suddenly a steel door came down … and now we can’t get any information out of Columbus.”

The justices, as part of their program to take oral-argument hearings on cases on the road, heard the police-files arguments before students in the gymnasium of Meigs High School near Pomeroy on the Ohio River.

Paula Lloyd, a lawyer representing the city of Columbus and Police Chief Kim Jacobs, faced repeated questioning by the justices in arguing that the city believes criminal case records cannot be released so long as defendants can appeal their convictions, even decades later.

Except for saying that police records could perhaps be made public once an inmate is released from prison, she endured justices’ questions on when in the judicial process records should be released.

“Your argument seems ridiculous,” Justice Paul E. Pfeifer told Lloyd.

Gittes stressed that exemptions to the public-records act, such as those protecting confidential informants, still could be used to withhold sensitive information, but that Columbus police are issuing blanket denials for case files. The Dispatch also has been denied police records in murder cases.

The Innocence Project does not represent Saleh, who is 28 and serving 38 years in prison, but it wants to review his police case file to assess his claim that he was wrongly convicted on the basis of false testimony by jailhouse informants that he had indicated he killed Popovich.

Wrongful conviction highlights the need for reform

The following editorial was published by the Richmond (VA) Times-Dispatch on April 11, 2016.

Keith Allen Harward walked out of prison a free man last Friday — 33 years after being convicted of a crime he didn’t commit.

Many people deserve credit for helping him — from the justices of Virginia’s Supreme Court, who acted swiftly on his writ of innocence, to his lawyers with the Innocence Project, who filed it. But we were struck that Harward singled out a reporter: The Times-Dispatch’s Frank Green, whose stories Harward credited with adding urgency to the actions of state officials.

Green is an award-winning newspaper veteran — honored again recently as Outstanding Journalist of 2015 by the Virginia Press Association — and a practitioner of old-school journalism, the kind that wears out a lot of shoe leather chasing down leads and checking facts. He does the sort of hard work that drive-by talking heads, news “aggregators” and most bloggers rely on — sometimes without even crediting the source. He gets results.

But while it’s gratifying to see Harward walk free, that should not be the end of the story.

First, he deserves compensation. No amount of money can make up for the decades the commonwealth took from him, and all the things that might have been: a family, a career, a home to grow old in, the million little pleasures that daily life affords — none of which he got to experience. Money is a poor substitute, but the state owes him at least that much. It’s also apparent from some of Harward’s comments Friday that the injustice of his imprisonment was compounded by some dark experiences behind bars: “There are some evil, sadistic people back there,” he said standing outside the Nottoway prison he had just left. “And there’s some bad inmates, too. Think about what I just said.”

Second, there should be some accountability. Although the doctrine of sovereign immunity generally shields government employees from civil liability, exceptions can apply in cases of gross negligence. We can’t say whether the missteps and, in Harward’s telling, willful disregard for the truth that led to his imprisonment legally qualify. But to the extent those responsible for his conviction can be held to account, they should be.
Third, Harward’s case should shock the commonwealth into adopting systemic reforms. Among them: a serious reconsideration of the value of bite-mark analysis, which played a key role in his conviction and which might be not much better than astrology in terms of scientific rigor.

The state also should require more thorough prosecutorial discovery — the process in which the state allows defense attorneys to see the evidence against their clients. The Supreme Court’s ruling in Brady v. Maryland requires prosecutors to disclose all exculpatory evidence. But Virginia allows commonwealth’s attorneys to choose what qualifies as exculpatory. That’s an inherent conflict of interests that begs for redress.

And the state should ask Harward for details about the “evil, sadistic people” he spoke of. Individuals like that should not have the kind of power prison guards wield.

No matter how many reforms are adopted, of course, the judicial system never will achieve perfection. No system that involves flawed human beings can. But that sobering reality should not provide an excuse for less than total effort in the pursuit of perfection. What happened to Harward — and others before him, such as Earl Washington and Thomas Haynesworth — is simply heinous. Virginia should not compound those crimes with indifference about whether similar ones might happen in the future.

Emails to Sheriff in Avery and Dassey Cases are Harshly Critical

Sheila Berry, President
Truth in Justice

Before the internet, I believed that if people just knew the truth about controversial issues, they would demand that the right and moral thing be done.  Comments sections in online newspapers, blogs and discussion boards demonstrated just the opposite.  The postings by the public when the Avery and Dassey murder case occurred reflected the lowest urges of human beings. Long before the trials began, a return to the death penalty (abolished in Wisconsin in 1853), with retroactive application to Steven Avery and Brendan Dassey, was demanded, and bills were introduced in the state legislature.  (These lost steam when it was determined it could not be applied retroactively.)  Average citizens believed whatever the Manitowoc Sheriff, special prosecutor Ken Kratz and investigators from the Wisconsin Department of Justice and Calumet County told them.  They were heroes.

Ten years later, Making A Murderer turned the tables.  This wasn't a quick reiteration of the prosecution's claims, 53 minutes air time on a commercial network.  Over the course of 10 one-hour segments, Moira Demos and Laura Ricciardi peeled back the layers of corruption and lies and showed us who the real criminals were.  The public reaction was swift and, to me, surprising.  Here are 20 representatives emails received by the Manitowoc Sheriff's Office in the two months following debut of the series.  These were obtained by USA Today through and Open Records request.

1. "Saw your show on Netflix! Manitowoc County is now officially on the map for having the most corrupt (law enforcement officers) in the nation, congrats. I used to think of cranes when I heard the name Manitowoc, not anymore."

2. "I had recently fell into a large sum of money and was thinking of moving to your county, but after what I saw concerning your department’s cover-up and framing Steven Avery and his nephew, I was seriously taken aback. There is NO WAY I will move there, your state prosecutor is a snake, your judges are corrupt and the ease in which you framed those two innocent men, well your cover-up has just reaffirmed my mistrust in the judicial system and police. Nice job!"

3. "I know you keep defending your crime mob department saying that people don’t know all the facts and by discrediting the documentary, but whether he is guilty or not, how in the hell do you and your mobsters sleep at night? … Your office might be the most corrupt organization in North America now that El Chapo has been captured. You and your department are the very reason that great officers and departments throughout our country are losing respect and trust from the American people."

4. "May God forgive the morally corrupt officers who participated in this case. Whether Steven Avery or Brendan Dassey are innocent or guilty they sure got railroaded by the indecent actions of your department. I truly wonder about the way justice is meted out in Wisconsin and Manitowoc County in particular."

5. "As the father of a Down syndrome age 16 daughter, I know how easy it is to manipulate a mentally challenged person by promising what they want at a precise moment. Regardless of guilt or innocence, what your office did to manipulate that young man’s testimony in the Avery case was repulsive and I would suspect unconstitutional. That will be determined in federal court, I hope … Hopefully you run a more honest and transparent ship than did the prior sheriff."

6. "Your entire sheriff dept are the ones who should be tossed in jail … It makes me ashamed to be from Wisconsin and you can bet I won’t be in a hurry to ever drive past your cesspool of evil. Ever … God will deal with everyone who had a hand in this mess, you can be sure of that. Just because the Pope said God welcomes sinners doesn’t mean the door is open for Manitowoc County … I am a Christian woman and am having a very hard time with what I have seen. No, I don’t think God will help any of you, as you know the truth and have done nothing."

7. "Tell me please, what has Steve Avery done to this community that he deserved to be set up for a murder? All evidence points towards the incompetence of your department … I hope and pray your department and local police and that judge are found out, and YOU rot in jail. You are unbelievable. What did that man ever do to you people? Why him? Why?"

8. "I am certain I did not see everything that happened in that trial. But I am equally as certain that what I did see, and hear, was more than enough to not only show a preponderance of reasonable doubt, but to convince me that Manitowoc County ... is replete with corruption. To be sure, I am not saying Mr. Avery was innocent, but, there was clear and convincing evidence, to me, of a massive amount of reasonable doubt which means he is innocent in this country. You all may have won a trial ... against one uneducated man, but you all have lost so much more. Everything your pathetic county stands for is forever tarnished with the mockery of justice that was promulgated in that courtroom."

9. "I just wanted to reach out with disgust at how your department handled the Steven Avery case. The facts are obvious that your department had something to do with this and a cover-up looks to be very clear. Your department has lost all credibility and right now is in the media because of your inability to prove justice … One day it will come out that James Lenk and Andrew Colborn planted evidence in this case that lead (sic) to Steven’s arrest. What will your department come out and say then? You better hope you have a good PR team handy."

10. "Shocked seeing the Netflix series 'Making a Murderer.' I simply cannot comprehend how our (civilized) world can so easily step over the aspect of reasonable doubt. It is sad to see for the world that the state of Wisconsin still lives in isolation and narrow-minded thinking."

11. "I am sure that after you are all exposed, you will not feel any regret for putting an innocent man in prison for the majority of his life; I am sure the only regret you will feel is that of being caught. But I hope that one day you will perhaps feel the embarrassment and shame that your families will feel and then maybe you will begin to understand that what you do has an (effect) on others."

12. "We just finished learning about the Teresa Halbach murder case. I’m not sure I can look my kids in the eye and believe my own words anymore. Maybe the nightly news has been right all along: we live in a corrupt and violent world where not even small-town justice is free from corruption and agendas … The city of Manitowoc and the state of Wisconsin should be ashamed of who was/is representing them and who was/is supposedly protecting its citizens. I can, however, now look my children in the eyes and say, 'at least we don’t live in Wisconsin.'"

13. "The actions towards the Avery family by the Manitowac (sic) Sheriff’s Department are among the most deplorable examples I have seen of pure evilness in human society … I hope you are aware that a growing portion of this country, if not this planet, is under the opinion that your department is corrupt and a great shame to the American people, our government and our Constitution."

14. "I would be embarrassed to hold my head up high knowing that your department has sentenced an innocent man twice to jail and also a special boy who hasn’t even enjoyed life yet. I hope that detective Lenk and Goulburn (sic) rot in hell as it is almost certain that they are behind this corruption and lies … I hope use (sic) all can’t sleep at night and justice comes your way. What a joke of a department."

15. "I would be fearful to ever take my family on a trip and stop in your county to even get fuel. I’d run the grave risk of being arrested for arson and armed robbery before my tank was filled with gasoline. According to social media, people all across America feel the same way. How sad for your county’s image. I truly feel sorry for the residents of your county who will be judged according to the actions of a few."

16. "The documentary exposes the level of corruption in your department. Nothing you say will convince vast majority of your citizens that you are good guys. The facts and evidence tell a different story. Steven Avery and Brendan Dassey are innocent. Your department is corrupt and all of you should be prosecuted to the highest extend (sic) of law."

17. "You should be ashamed of yourself and the crooked department you run. The injustice that Steven Avery experienced during the murder trial of Teresa Halbach is INSANE! Your department is a JOKE. Your entire county is FILLED with white trash idiots and you have the audacity to bully and pick on him all this after falsely imprisoning him for 18 of his prime years of his life. God Bless his mother and father who have had to live through this … I would NEVER EVER visit your town in fear that if I were to run a stop sign, you would have me arrested on a murder charge. Shame on you."

18. "I would never travel to your town as it is apparent there is a lot of corruption in the sheriff’s office, the disgraceful prosecutor, and even the judges, including the appellate courts … It is truly unbelievable that your community could make such a travesty of the judicial system. Not surprising that Mr. Kratz resigned as a result of disgraceful behavior. Please know that your judicial system looks like you all are unethical, immoral and corrupt. And the sad thing is … there is a murderer out there who has gotten away with it! Unbelievable! Does Wisconsin know what JUSTICE is?"

19. "Remind me not to move to your county! You guys will convict anyone for anything without evidence. I find it amazing that anyone involved from your county involved in the Steven Avery case can sleep at night. One of the biggest liars even got promoted to (lieutenant)? Truly shameful."

20. "Never have I heard of such corruption at the hands of law enforcement as in the case of Steven Avery. People like you are a plague on our country. Those responsible for this miscarriage of justice – the countless employees of Manitowoc who acted illegally, who lied, and who turned a blind eye to the unethical actions of their peers all deserve to burn in hell. You are responsible for the distrust and hatred for law enforcement that is ever-prevalent in our society – and these sentiments are DESERVED.