Editorial published by the Toledo Blade on February 14, 2016.
Ohio state prisons probably hold hundreds of innocent people. Most of them will never get justice.
Nothing so violates the sanctity of the law as condemning the innocent. In the few cases where such travesties are exposed, the state should acknowledge and learn from its errors, and act quickly to redress them.
That’s not how it goes in Ohio, which has erected onerous legal hurdles to compensating the wrongfully convicted. State lawmakers should remove these excessive and oppressive barriers to justice and allow the wrongfully convicted to take their cases directly to Ohio’s Court of Claims.
To its credit, Ohio is one of 30 states that compensate wrongfully convicted prisoners, who can claim damages of roughly $50,000 for each year in prison. (Texas pays $80,000 a year.) The Court of Claims calculates the amount of judgments, based on time served, lost wages, and legal fees.
Convictions and exonerations
But before those with wrongful convictions may file with the Court of Claims, they must file suit in local courts to affirm that they were wrongfully imprisoned. If prosecutors object, getting such an order is difficult, if not impossible.
In some cases, people with rightful claims might never file with a local court. In others, procedure eclipses justice. The National Registry of Exonerations, run by the University of Michigan Law School, lists 63 wrongful convictions in Ohio since 1989. During that period, the Ohio Court of Claims awarded only 40 judgments, ranging from $11,069 to $2.5 million.
The state has, in effect, legitimized the noxious notion that people who have been wrongly declared guilty, and suffered the consequences, must also prove their innocence to get redress.
Case of Danny Brown
Toledo’s Danny Brown, now 60, is a case in point. His wrongful conviction and nearly 20 years in prison should entitle him to more than $1 million from Ohio’s Court of Claims. But nearly 15 years after his release, he still has not received compensation or a local court order affirming his wrongful imprisonment.
In 1982, a Lucas County jury convicted Mr. Brown, who was represented by a court-appointed attorney, of the brutal murder of Bobbie Russell. In December, 1981, she was hit in the head, raped, and fatally strangled with an extension cord in her east-side Toledo home. Ms. Russell’s son, Jeffrey, then 6, the sole eyewitness, identified Mr. Brown as the man who entered his mother’s home the night she was raped and murdered.
In 2001, prosecutors dismissed the charges against Mr. Brown, after a DNA test identified semen from the crime scene as Sherman Preston’s. Preston, now 64 and serving a life sentence at Marion Correctional Institution, has been in prison since March, 2000, for another, strikingly similar 1983 murder. He declined to talk to The Blade’s editorial page last week.
Mr. Brown also took a lie detector test and passed. In 2002, he filed suit in Lucas County Common Pleas Court, asking the court to affirm that he had been wrongfully imprisoned. He lost his suit, after the Lucas County Prosecutor’s Office maintained, based largely on Jeffrey Russell’s unchanging testimony, that Mr. Brown remained a suspect. In 2006, Ohio’s 6th District Court of Appeals upheld the suit’s dismissal in a 2-1 ruling.
Lucas County Prosecutor Julia Bates, who took office in 1996, told The Blade’s editorial page that she has no immediate plans to retry Mr. Brown. She now has a reasonable doubt about his guilt. But she also believes that Preston and Mr. Brown could have both participated in Ms. Russell's murder. Mr. Brown said he doesn't know Preston.
“There are a lot of unanswered questions,” Ms. Bates said this month. “If he didn’t do it, I’m sorry.”
That’s little consolation to Mr. Brown, who is sick, broke, and living in a Toledo homeless shelter, as the column on the next page by The Blade’s deputy editorial page editor, Jeff Gerritt, shows. Mr. Brown can’t prove he didn’t kill Ms. Russell, but neither could anyone who doesn’t have an airtight alibi for the night of Dec. 5, 1981.
Mr. Brown’s attorney, Patrick Quinn of Columbus, has filed another suit on Mr. Brown’s behalf in Lucas County Common Pleas Court. Justice now rests with Judge Gene Zmuda, who has yet to rule on the latest suit.
“I just want my name cleared,” Mr. Brown told The Blade’s editorial page last week.
Learning from mistakes
Wrongful convictions violate the most sacred tenets of the U.S. criminal-justice and legal system, including the presumption of innocence and a standard of guilt beyond a reasonable doubt. Those protections against tyranny underscore that punishing the innocent is more egregious than not punishing the guilty.
Since 1989, DNA technology has exonerated at least 337 people in this country. But DNA evidence — blood, semen, saliva — is available in only a scintilla of criminal cases.
Not all wrongful convictions are clear-cut DNA cases. Dedicated advocacy groups such as the Ohio Innocence Project at the University of Cincinnati have reversed convictions by discovering other compelling new evidence of perjury, false accusations, police misconduct, faulty eyewitness identification, unreliable informants, or a woefully inadequate defense.
The National Registry of Exonerations lists 1,738 wrongful convictions since 1989. Sadly, many innocent men and women will never make that list. Extrapolating from error rates in DNA cases, researchers estimate that between 1 and 5 percent of all U.S prisoners are innocent of the crime they were convicted of.
An error rate of 1 or 2 percent makes an excellent score on a high school history exam — but it’s horrifying for a criminal justice system that sends people to prison and even to their death. A 2 percent error rate would mean nearly 50,000 U.S. prisoners, including 1,000 in Ohio, are innocent.
The office of Ohio’s attorney general, or an independent commission of the General Assembly, should examine and dissect every wrongful conviction in the state and determine what went wrong. The registry should also prescribe changes to prevent similar mistakes, such as requiring police to videotape all interrogations and improving the state’s public defense system.
Reducing wrongful convictions would have economic benefits as well as costs: Incarcerating an innocent person costs states between $25,000 and $40,000 a year.
But wrongful convictions are far more than economic liabilities or collateral damage in the war on crime. Raising the profile of wrongful convictions, learning from their mistakes, and compensating their victims in an expeditious manner are moral imperatives to redress the state’s greatest injustice.
Monday, February 15, 2016
Sunday, February 14, 2016
Prisoners Exonerated, Prosecutors Exposed
February 12, 2016, by the Editorial Board of the New York Times
In 2015, 149 people convicted of crimes large and small — from capital murder to burglary — were exonerated. It is the highest yearly total since this grim form of record-keeping began, in 1989.
In that time, there have been at least 1,733 exonerations across the country, and the pace keeps picking up. On average, about three convicted people are now exonerated of their crimes every week, according to the annual report of the National Registry of Exonerations. The registry defines an exoneration as a case in which someone convicted of a crime is cleared of all charges based on new evidence of innocence.
The individual cost to those wrongly convicted is steep: Last year’s group spent an average of more than 14 years behind bars. Five had been sentenced to death. Amazingly, half of the exonerations involved cases in which no crime occurred at all — for example, a conviction of murder by arson that later turned out to be based on faulty fire science.
Equally eye-opening is the list of reasons behind these miscarriages of justice. For instance, 27 of last year’s exonerations were for convictions based on a false confession. This happened most often in homicide cases in which the defendant was a juvenile, intellectually disabled, mentally ill or some combination of the three. In nearly half of all 2015 exonerations, the defendant pleaded guilty before trial.
These numbers are a bracing reminder that admissions of guilt are unreliable far more often than is generally believed. Some defendants, especially the young or mentally impaired, can be pushed to admit guilt when they are innocent. Some with prior criminal records may not be able to afford bail but don’t want to spend months in pretrial detention or risk a much longer sentence if they choose to go to trial.
Official misconduct — including perjury, withholding of exculpatory evidence and coercive interrogation practices — occurred in three of every four exonerations involving homicide, and it was an important factor in many other cases as well.
As high as these exoneration numbers are, they still understate the scope of the problem, since not all cases involving misconduct come to light.
The good news is that Americans are starting to grasp the depth of the problem. The Innocence Project, now more than 20 years old, has shown again and again how many ways a conviction can be obtained wrongfully. And in-depth investigations of questionable murder convictions by popular shows like “Serial” and “Making a Murderer” have led to calls for greater prosecutorial accountability.
As technologies like DNA testing have become more widely used, some prosecutors’ offices have begun to take responsibility for correcting their own errors. In the last seven years, almost two dozen offices in 11 states and the District of Columbia have opened conviction-integrity units to re-examine old cases. But the units vary widely in effectiveness. Half have never exonerated anyone, while two, in Brooklyn and in Harris County, Tex., were responsible for one-third of last year’s exonerations.
It is good to see any degree of self-reflection and accountability from prosecutors, who wield enormous and often unreviewed power in the criminal justice system. It would be even better for them to put in place safeguards that would prevent wrongful convictions in the first place.
In 2015, 149 people convicted of crimes large and small — from capital murder to burglary — were exonerated. It is the highest yearly total since this grim form of record-keeping began, in 1989.
In that time, there have been at least 1,733 exonerations across the country, and the pace keeps picking up. On average, about three convicted people are now exonerated of their crimes every week, according to the annual report of the National Registry of Exonerations. The registry defines an exoneration as a case in which someone convicted of a crime is cleared of all charges based on new evidence of innocence.
The individual cost to those wrongly convicted is steep: Last year’s group spent an average of more than 14 years behind bars. Five had been sentenced to death. Amazingly, half of the exonerations involved cases in which no crime occurred at all — for example, a conviction of murder by arson that later turned out to be based on faulty fire science.
Equally eye-opening is the list of reasons behind these miscarriages of justice. For instance, 27 of last year’s exonerations were for convictions based on a false confession. This happened most often in homicide cases in which the defendant was a juvenile, intellectually disabled, mentally ill or some combination of the three. In nearly half of all 2015 exonerations, the defendant pleaded guilty before trial.
These numbers are a bracing reminder that admissions of guilt are unreliable far more often than is generally believed. Some defendants, especially the young or mentally impaired, can be pushed to admit guilt when they are innocent. Some with prior criminal records may not be able to afford bail but don’t want to spend months in pretrial detention or risk a much longer sentence if they choose to go to trial.
Official misconduct — including perjury, withholding of exculpatory evidence and coercive interrogation practices — occurred in three of every four exonerations involving homicide, and it was an important factor in many other cases as well.
As high as these exoneration numbers are, they still understate the scope of the problem, since not all cases involving misconduct come to light.
The good news is that Americans are starting to grasp the depth of the problem. The Innocence Project, now more than 20 years old, has shown again and again how many ways a conviction can be obtained wrongfully. And in-depth investigations of questionable murder convictions by popular shows like “Serial” and “Making a Murderer” have led to calls for greater prosecutorial accountability.
As technologies like DNA testing have become more widely used, some prosecutors’ offices have begun to take responsibility for correcting their own errors. In the last seven years, almost two dozen offices in 11 states and the District of Columbia have opened conviction-integrity units to re-examine old cases. But the units vary widely in effectiveness. Half have never exonerated anyone, while two, in Brooklyn and in Harris County, Tex., were responsible for one-third of last year’s exonerations.
It is good to see any degree of self-reflection and accountability from prosecutors, who wield enormous and often unreviewed power in the criminal justice system. It would be even better for them to put in place safeguards that would prevent wrongful convictions in the first place.
Friday, February 05, 2016
Court Martial vs. Jury Trial – What's the Difference, and Does it Matter?
by Dennis Chapman, Attorney at Law
February 3, 2016
February 3, 2016
Superficially, the Courts Martial that try Service men and
women accused of crimes look a lot like the trials where civilian defendants
get their day in court. But while outwardly similar, Courts Martial differ from
civilian trials in substantial and important ways. These differences are often
to the disadvantage of the Soldier, Sailor, Airman or Marine accused of a
crime. Because of this, it is all the more importantthat a Service Member
accused of a crime mount an aggressive and effective defense from the outset of
the investigation.
Probably the most important difference between a Court
Martial and a civilian Court is the finder of fact. In civilian trials, guilt
or innocence is determined by a jury – an impartial group of men and women,
unconnected with the prosecution, the defense, or the court itself, chosen from
among the community at large. In most States a jury consists of 12 jurors and
must reach a unanimous decision as to whether the accused is guilty or
innocent. In a Court Martial, the finder of fact is a Panel of Service Members
of equal or greater rank than the accused. Federal Courts have held that a
Court Martial Panel is not a jury, and for good reason. Unlike most civilian
juries, General Court Martial Panels can be as small as five members. More
significantly, unlike most juries, these Panels are not required to reach
unanimous verdicts, but decide on a two-thirds majority vote (except for
capital cases). These differences may have extremely important practical
effects. Research has shown that smaller juries are more likely than larger
ones to produce an erroneous verdict. Likewise, the same research has shown
that juries allowed to reach verdicts by majority vote are also more prone to
reaching erroneous verdicts, because a majority faction can, in effect, lock
out the minority and reach a verdict without deliberating, or at least without
deliberating adequately. These problems mean that an innocent defendant in a
Court Martial may face a greater danger of being wrongly convicted than a defendant
in a civilian court.
Another difference between Jury trials and trials by a
military court is the composition of the panel. Juries are composed of private
citizens called from the community at large, who may be expected to come from a
wide variety of backgrounds. By contrast, a Court Martial Panel is drawn from a
much more homogenous population – personnel of the same Armed Service as, and
of equal or greater rank than, the defendant. Unlike a jury, where the members
have no connection with the judiciary or the prosecution, the members of a
Court Martial Panel are all military professionals likely to strongly identify
with their Service and command – in other words, with the very authority that
is prosecuting the defendant. This sense of identification may consciously or
unconsciously prejudice them against the accused.
While a vigorous and active defense is vital for anyone
accused of a crime, the peculiarities of Courts Martial make an effective
defense all the more important for Service Members so accused.
Effective February 16th, 2016, I will be joining SRIS Law
Group in an Of Counsel capacity. The attorneys at SRIS Law Group care deeply
about the men and women who have sworn to uphold our Constitution and defend
our Republic. If you are a Service Member facing Court Martial, let us defend
you.
If you need help with an issue related to the UCMJ, do not
hesitate to contact us. We understand that in a lot of instances, the UCMJ can
have a significant impact on your life and how your career is a vital part of
your life. Take any alleged violation of the UCMJ seriously and contact us for
help. We have the support and help you need.
We have client meeting locations in Virginia & Maryland.
If you need a military attorney in Virginia or Maryland, do not hesitate to
contact us. Our firm will defend you not only in Virginia and Maryland, but
throughout the US and the world if necessary.
Sunday, January 24, 2016
5 Ways to Assess Whether a Criminal Defense Attorney is Any Good
The following article by Stephen A. Cooper was published on January 22, 2016 by Huffington Post, HuffPost Crime.
No one wants to be charged with a crime. But, if you are, or, if one of your friends or loved ones is, here are five things to consider when deciding whether you've got a good defense attorney or not.
1. Irrespective of payment or a client's guilt or innocence, from the start, a good criminal defense attorney cares and takes steps to ensure the client's constitutional rights are protected, and vindicated, and that the client is treated fairly and humanely by the criminal justice system. This doesn't mean everything is going to go smoothly, or, that every decision from the first court appearance is going to go in the client's favor. Usually, and particularly with serious charges, it doesn't. But, a good defense attorney, whether representing an accused serial killer or shoplifter, is going to fight tooth and nail for their client -- and it should be obvious they are -- even if decisions by prosecutors, probation officials, and judges don't immediately reflect their efforts.
2. Criminal defense attorneys, like judges, prosecutors, probation officers, and cops, are "repeat players" in the criminal justice system. Not always, but often, before a criminal case begins, the defense attorney has an established working relationship with the prosecutor and a passing familiarity, or better, with other repeat players in the case. This can be good, because if the attorney has a good reputation (for being competent, passionate, and ethical, for example), they will be in a better position to negotiate and advocate for the client as the case winds through the system. This relationship between repeat players is important to be aware of because some defendants (or their family members) might see the defense lawyer share a smile or laugh with a prosecutor or probation officer and start immediately thinking -- jeez, is this person on my side? But, the reality is, that smile or laugh may be part of a strategy the attorney is using to secure an advantage -- be it information that might help defend the case, the dismissal or reduction of charges, a good plea deal, a favorable bond determination -- or a million other decisions and calculations affecting a criminal prosecution. Remember the familiar adage: "You can catch more bees with honey?" It applies.
Now, don't get me wrong, if a criminal defense attorney is constantly cozying up to the prosecutor and other repeat players such that it seems like he or she might actually care for them more than the client -- that's a problem -- a big problem. But, then, likely, the lawyer in question is not zealously defending the client -- see number 1 above -- and the client should already be trying to get a new lawyer.
3. A good defense attorney doesn't care if their client "did it." Overwhelmingly, criminal defendants want their defense lawyers, just like they want everyone else, to believe they're innocent. But, a good defense attorney doesn't care whether their client is innocent or guilty because it's of no moment as it concerns their constitutional obligation to try and beat the case, or, failing that, to secure the best, least penal outcome. Good defense attorneys aren't focused on whether their clients are innocent or guilty. Instead, they protect and fight for defendants of both stripes using all available energy and resources.
4. A good defense attorney doesn't accept what is in police and prosecution reports. Once assigned a case, he or she, in conjunction with a trained criminal investigator, will immediately begin investigating the allegations by: demanding that the prosecutor turn over information (called "discovery") about the case, collecting records, going to the scene of the alleged crime, talking to witnesses, hiring experts, taking statements, securing relevant video footage and pictures, serving subpoenas, etcetera.
5. A good defense attorney will regularly remind and urge their client to exercise their Fifth Amendment right to remain silent, insisting they not talk to anyone, except the defense lawyer and investigator, about the allegations. At the same time, a good defense attorney will regularly meet and talk with their client about their case whether the client is locked up or not. Defense attorneys are uniformly busy people, but, if they're any good, they will make time to talk to their clients. Not only do they have an ethical obligation to do so, they know and appreciate that the best part of being a criminal defense attorney is the relationships formed with clients.
So, what do you do if you or someone you love doesn't have a good defense attorney?
Well, if it's a private attorney being hired, research should be done to find an attorney who has a good reputation for criteria 1-5 above. If it's a court-appointed attorney or public defender not doing their job, it will be more difficult, but generally not impossible, to secure a substitute. What the client has to do -- not a family member, unless the client is a juvenile -- is speak up! Without saying anything about the charges, they must write to the judge or tell the judge at their next court hearing that they want, in private, without the prosecutor present, to talk to the judge about how their attorney is failing them -- using concrete examples of how (see criteria 1-5 above as a guide). There is a chance the judge will decide the client is right, or, that there has been a "complete breakdown" in the attorney-client relationship such that the appointment of a new defense attorney is required no matter what.
About the Author: Stephen Cooper is a former federal and D.C. public defender. He writes full-time and lives in Woodland Hills, California.
No one wants to be charged with a crime. But, if you are, or, if one of your friends or loved ones is, here are five things to consider when deciding whether you've got a good defense attorney or not.
1. Irrespective of payment or a client's guilt or innocence, from the start, a good criminal defense attorney cares and takes steps to ensure the client's constitutional rights are protected, and vindicated, and that the client is treated fairly and humanely by the criminal justice system. This doesn't mean everything is going to go smoothly, or, that every decision from the first court appearance is going to go in the client's favor. Usually, and particularly with serious charges, it doesn't. But, a good defense attorney, whether representing an accused serial killer or shoplifter, is going to fight tooth and nail for their client -- and it should be obvious they are -- even if decisions by prosecutors, probation officials, and judges don't immediately reflect their efforts.
2. Criminal defense attorneys, like judges, prosecutors, probation officers, and cops, are "repeat players" in the criminal justice system. Not always, but often, before a criminal case begins, the defense attorney has an established working relationship with the prosecutor and a passing familiarity, or better, with other repeat players in the case. This can be good, because if the attorney has a good reputation (for being competent, passionate, and ethical, for example), they will be in a better position to negotiate and advocate for the client as the case winds through the system. This relationship between repeat players is important to be aware of because some defendants (or their family members) might see the defense lawyer share a smile or laugh with a prosecutor or probation officer and start immediately thinking -- jeez, is this person on my side? But, the reality is, that smile or laugh may be part of a strategy the attorney is using to secure an advantage -- be it information that might help defend the case, the dismissal or reduction of charges, a good plea deal, a favorable bond determination -- or a million other decisions and calculations affecting a criminal prosecution. Remember the familiar adage: "You can catch more bees with honey?" It applies.
Now, don't get me wrong, if a criminal defense attorney is constantly cozying up to the prosecutor and other repeat players such that it seems like he or she might actually care for them more than the client -- that's a problem -- a big problem. But, then, likely, the lawyer in question is not zealously defending the client -- see number 1 above -- and the client should already be trying to get a new lawyer.
3. A good defense attorney doesn't care if their client "did it." Overwhelmingly, criminal defendants want their defense lawyers, just like they want everyone else, to believe they're innocent. But, a good defense attorney doesn't care whether their client is innocent or guilty because it's of no moment as it concerns their constitutional obligation to try and beat the case, or, failing that, to secure the best, least penal outcome. Good defense attorneys aren't focused on whether their clients are innocent or guilty. Instead, they protect and fight for defendants of both stripes using all available energy and resources.
4. A good defense attorney doesn't accept what is in police and prosecution reports. Once assigned a case, he or she, in conjunction with a trained criminal investigator, will immediately begin investigating the allegations by: demanding that the prosecutor turn over information (called "discovery") about the case, collecting records, going to the scene of the alleged crime, talking to witnesses, hiring experts, taking statements, securing relevant video footage and pictures, serving subpoenas, etcetera.
5. A good defense attorney will regularly remind and urge their client to exercise their Fifth Amendment right to remain silent, insisting they not talk to anyone, except the defense lawyer and investigator, about the allegations. At the same time, a good defense attorney will regularly meet and talk with their client about their case whether the client is locked up or not. Defense attorneys are uniformly busy people, but, if they're any good, they will make time to talk to their clients. Not only do they have an ethical obligation to do so, they know and appreciate that the best part of being a criminal defense attorney is the relationships formed with clients.
So, what do you do if you or someone you love doesn't have a good defense attorney?
Well, if it's a private attorney being hired, research should be done to find an attorney who has a good reputation for criteria 1-5 above. If it's a court-appointed attorney or public defender not doing their job, it will be more difficult, but generally not impossible, to secure a substitute. What the client has to do -- not a family member, unless the client is a juvenile -- is speak up! Without saying anything about the charges, they must write to the judge or tell the judge at their next court hearing that they want, in private, without the prosecutor present, to talk to the judge about how their attorney is failing them -- using concrete examples of how (see criteria 1-5 above as a guide). There is a chance the judge will decide the client is right, or, that there has been a "complete breakdown" in the attorney-client relationship such that the appointment of a new defense attorney is required no matter what.
About the Author: Stephen Cooper is a former federal and D.C. public defender. He writes full-time and lives in Woodland Hills, California.
Saturday, January 23, 2016
The Lynching of a Madison Lesbian: Wisconsin’s Wrongful Conviction of Penny Brummer
The following article by Michael Leon was published by CounterPunch on January 20, 2016,
Madison, Wisconsin.
By now, many readers have seen or heard of Making a Murderer, the tale of vengeful law enforcement hicks from Manitowoc County Wisconsin preying on an intellectually challenged juvenile and framing a man suing Manitowoc County for $36 million in a civil lawsuit for a wrongful conviction.
While shocking to some, the capacity and inclination of law enforcement to harass, arrest, prosecute and convict is axiomatic to most criminal defense attorneys, intellectually honest scholars and certainly those citizens on the receiving end of the blunt instrument known as law enforcement by the “Sovereign,” the “state in all its power and glory,” as described to me by federal appellate attorney, Sidney Powell, a former Asst. U.S. Attorney.
The victims of Manitowoc County, (a region in east-central Wisconsin from which I hail), are a disgrace. But the progressive fountain of Dane County Wisconsin (Madison) is arguably worse than Manty County in the criminal justice realm. Folks, we live in a police-prosecutor-prison state, (and its existence a compelling argument for a coalition of the American libertarian right and left)
I present to you one Penny Brummer, an out lesbian who joined the military right of River Valley High School in Springgreen, Wisconsin and served honorably in the Air Force for five years before returning home and then moving to Madison in the early 1990s.
In her mid-20s, Penny fell in and out of love, drank beer and bar-hopped, rode motorcycles, living her life in a similar fashion to most young 20-somethings in Madison, Wisconsin.
In the early to late 1990s, Madison was not a welcoming place for the LGBTQ community by Madison law enforcement, whatever you may have heard about Madison being an progressive oasis with an enlightened police force.
Police harassment and hostility was tolerated by progressives and to this day, for example, the former Club 3054 on East Washington Street, the main drag, is recalled for targeting by the cops by former patrons.
So it was one March 15, 1994, after Penny broke up with her girlfriend, and looking for company called friends and co-workers to “go out” on a Monday night. Sarah Gonstead said, yes, and Ms. Gonstead and Penny happily bar-hopped before Penny dropped Gonstead off at a frequented short-cut to her ex’s place, where Penny saw Gonstead strike up a conversation with some guys next to a line of motorcycles, one of the men with long hair and slight build.
No one saw Sarah Gonstead alive again. Gonstead’s body was found on April 9 outside of Madison.
Madison police and the Dane County Sheriff’s detectives decided Penny, 24-years-old, was the perpetrator. No physical evidence, no weapon, no motive, no determined crime scene, just a theory—what is known as police “tunnel vision,” disregarding all exculpatory facts and evidence that would not support or disconfirm the theory.
For example, and I offer just one point, as recounted by author and attorney Sheila Berry in her book, Who Killed Sarah: “David Zoromski, who reported seeing a suspicious man standing by the open passenger door of a parked pickup truck exactly where Sarah’s body was later found, was told by a Dane County Sheriff’s Deputy, ‘What you saw is all very interesting, but we have a suspect and it doesn’t fit.’ The man seen by Mr. Zoromski matched the description of the person Penny said she saw Sarah talking to near the Taco Bell at East Washington Avenue and North Oak Street in Madison, [by the short-cut], after she dropped her off that night. Police identified him and knew he was a convicted felon with a long history of violence toward women — but they never followed up on this lead.”
Author Berry was asked by her daughter to do something after reading a piece by Ingrid Ricks about the case in The Advocate in 1995, so she penned a book.
So Penny Brummer sits in prison in Taycheedah Correctional Institution in east-central Wisconsin, prosecuted by the district attorney’s office of Brian Blanchard (2001-2010), and trial presided over by former Judge Patrick Fiedler, former Gov. Tommy Thompson’s close political ally and comrade in the lock-em-up-and-make-their-lives-a-living-hell politics that won Thompson multiple elections with Scott Walker while he was serving in the State Assembly Committee on Corrections and the Courts.
A new trial for Penny Brummer is demanded by advocates who began a petition this week. They also offer a $10,000 reward for information leading to the arrest and conviction of the person(s) responsible for the death of Sarah Gonstead, and an 800 number for tips at 800 407-1178.
Brummer today sits in prison serving her life sentence. Former DA Blanchard is a state appellate judge running unopposed this year, and serves as Vice-Chair of the Wisconsin Judicial Council, revamped and politicized by Wisconsin Republicans and Scott Walker.
Do Penny Brummer and Wisconsin a favor and sign and circulate the petition for a new trial. We need a win and so does Penny. Penny Brummer could not be convicted today, explaining perhaps why the current DA refuses to revisit the case.
As Prof. Keith Findley of the Wisconsin Innocence Project concludes last weekend in a column in the Washington Post: “We must make the system more responsive to post-conviction claims of injustice and less bound by blind obedience to finality.”
Related website: WhoKilledSarah.com
Madison, Wisconsin.
By now, many readers have seen or heard of Making a Murderer, the tale of vengeful law enforcement hicks from Manitowoc County Wisconsin preying on an intellectually challenged juvenile and framing a man suing Manitowoc County for $36 million in a civil lawsuit for a wrongful conviction.
While shocking to some, the capacity and inclination of law enforcement to harass, arrest, prosecute and convict is axiomatic to most criminal defense attorneys, intellectually honest scholars and certainly those citizens on the receiving end of the blunt instrument known as law enforcement by the “Sovereign,” the “state in all its power and glory,” as described to me by federal appellate attorney, Sidney Powell, a former Asst. U.S. Attorney.
The victims of Manitowoc County, (a region in east-central Wisconsin from which I hail), are a disgrace. But the progressive fountain of Dane County Wisconsin (Madison) is arguably worse than Manty County in the criminal justice realm. Folks, we live in a police-prosecutor-prison state, (and its existence a compelling argument for a coalition of the American libertarian right and left)
I present to you one Penny Brummer, an out lesbian who joined the military right of River Valley High School in Springgreen, Wisconsin and served honorably in the Air Force for five years before returning home and then moving to Madison in the early 1990s.
In her mid-20s, Penny fell in and out of love, drank beer and bar-hopped, rode motorcycles, living her life in a similar fashion to most young 20-somethings in Madison, Wisconsin.
In the early to late 1990s, Madison was not a welcoming place for the LGBTQ community by Madison law enforcement, whatever you may have heard about Madison being an progressive oasis with an enlightened police force.
Police harassment and hostility was tolerated by progressives and to this day, for example, the former Club 3054 on East Washington Street, the main drag, is recalled for targeting by the cops by former patrons.
So it was one March 15, 1994, after Penny broke up with her girlfriend, and looking for company called friends and co-workers to “go out” on a Monday night. Sarah Gonstead said, yes, and Ms. Gonstead and Penny happily bar-hopped before Penny dropped Gonstead off at a frequented short-cut to her ex’s place, where Penny saw Gonstead strike up a conversation with some guys next to a line of motorcycles, one of the men with long hair and slight build.
No one saw Sarah Gonstead alive again. Gonstead’s body was found on April 9 outside of Madison.
Madison police and the Dane County Sheriff’s detectives decided Penny, 24-years-old, was the perpetrator. No physical evidence, no weapon, no motive, no determined crime scene, just a theory—what is known as police “tunnel vision,” disregarding all exculpatory facts and evidence that would not support or disconfirm the theory.
For example, and I offer just one point, as recounted by author and attorney Sheila Berry in her book, Who Killed Sarah: “David Zoromski, who reported seeing a suspicious man standing by the open passenger door of a parked pickup truck exactly where Sarah’s body was later found, was told by a Dane County Sheriff’s Deputy, ‘What you saw is all very interesting, but we have a suspect and it doesn’t fit.’ The man seen by Mr. Zoromski matched the description of the person Penny said she saw Sarah talking to near the Taco Bell at East Washington Avenue and North Oak Street in Madison, [by the short-cut], after she dropped her off that night. Police identified him and knew he was a convicted felon with a long history of violence toward women — but they never followed up on this lead.”
Author Berry was asked by her daughter to do something after reading a piece by Ingrid Ricks about the case in The Advocate in 1995, so she penned a book.
So Penny Brummer sits in prison in Taycheedah Correctional Institution in east-central Wisconsin, prosecuted by the district attorney’s office of Brian Blanchard (2001-2010), and trial presided over by former Judge Patrick Fiedler, former Gov. Tommy Thompson’s close political ally and comrade in the lock-em-up-and-make-their-lives-a-living-hell politics that won Thompson multiple elections with Scott Walker while he was serving in the State Assembly Committee on Corrections and the Courts.
A new trial for Penny Brummer is demanded by advocates who began a petition this week. They also offer a $10,000 reward for information leading to the arrest and conviction of the person(s) responsible for the death of Sarah Gonstead, and an 800 number for tips at 800 407-1178.
Brummer today sits in prison serving her life sentence. Former DA Blanchard is a state appellate judge running unopposed this year, and serves as Vice-Chair of the Wisconsin Judicial Council, revamped and politicized by Wisconsin Republicans and Scott Walker.
Do Penny Brummer and Wisconsin a favor and sign and circulate the petition for a new trial. We need a win and so does Penny. Penny Brummer could not be convicted today, explaining perhaps why the current DA refuses to revisit the case.
As Prof. Keith Findley of the Wisconsin Innocence Project concludes last weekend in a column in the Washington Post: “We must make the system more responsive to post-conviction claims of injustice and less bound by blind obedience to finality.”
Related website: WhoKilledSarah.com
Injustice Anywhere Endorses The Brendan Dassey Case
by Bruce Fischer, January 21, 2016
Injustice Anywhere, an all-volunteer organization working to bring more attention to wrongful convictions, has added the Brendan Dassey case to their list of Endorsed Cases. Brendan Dassey was convicted in Wisconsin on March 17, 2007, of first-degree intentional homicide, mutilation of a corpse, and first-degree sexual assault. Dassey was sentenced to life in prison, with a chance for early release in 2048. The victim was 25-year-old Teresa Halbach. Dassey’s uncle, Steven Avery, was also convicted of murdering Halbach, but the two were tried separately. Avery, who was already proven to have been wrongfully convicted in a prior case in the same county after serving 18 years as an innocent man, has denied any involvement in the Halbach murder. Avery’s supporters argue that the same police force who wronged him the first time, set out to frame him once again in an attempt to avoid paying out millions of dollars to settle a civil suit resulting from his wrongful conviction.
During their murder investigation, police questioned Dassey, then a 16-year-old high school student, looking to find information on Avery, the lead suspect in their case. Interrogation recordings show that Dassey was coerced into making false statements which were then used against him to secure his conviction. The recent debut of the Netflix documentary Making A Murderer, which details the murder of Teresa Halbach and the controversy surrounding her death, has brought renewed attention to the decade-old case. The series has left many wondering if Steven Avery and Brendan Dassey had anything at all to do with the crimes they are charged with.
Injustice Anywhere, a group which I help operate, has reviewed the Brendan Dassey case and has determined it to be a clear cut case of wrongful conviction. Dassey’s interrogation recordings provide a casebook example of a coerced confession. Sadly, Dassey was horribly mistreated by his public defender as well. Dassey did not receive a proper defense, instead he was coached by his attorney to say he was guilty. The attorney even had his own investigator instruct Dassey on how to draw images of the crime scene which would support the prosecution’s arguments. Dassey is seen acting clearly confused during the recorded session, which irritates the investigator, prompting him to give orders to Dassey telling him exactly what he needs to draw, providing all of the necessary details along the way.
There is no evidence against Dassey, beyond his statements to police. He was interrogated at 16-years-old without an attorney present, and he had ineffective counsel, making it it impossible for him to receive a fair trial. At the very least, Dassey deserves a new trial. Injustice Anywhere has provided a case summary on our website clarifying our position on the case.
Injustice Anywhere, an all-volunteer organization working to bring more attention to wrongful convictions, has added the Brendan Dassey case to their list of Endorsed Cases. Brendan Dassey was convicted in Wisconsin on March 17, 2007, of first-degree intentional homicide, mutilation of a corpse, and first-degree sexual assault. Dassey was sentenced to life in prison, with a chance for early release in 2048. The victim was 25-year-old Teresa Halbach. Dassey’s uncle, Steven Avery, was also convicted of murdering Halbach, but the two were tried separately. Avery, who was already proven to have been wrongfully convicted in a prior case in the same county after serving 18 years as an innocent man, has denied any involvement in the Halbach murder. Avery’s supporters argue that the same police force who wronged him the first time, set out to frame him once again in an attempt to avoid paying out millions of dollars to settle a civil suit resulting from his wrongful conviction.
During their murder investigation, police questioned Dassey, then a 16-year-old high school student, looking to find information on Avery, the lead suspect in their case. Interrogation recordings show that Dassey was coerced into making false statements which were then used against him to secure his conviction. The recent debut of the Netflix documentary Making A Murderer, which details the murder of Teresa Halbach and the controversy surrounding her death, has brought renewed attention to the decade-old case. The series has left many wondering if Steven Avery and Brendan Dassey had anything at all to do with the crimes they are charged with.
Injustice Anywhere, a group which I help operate, has reviewed the Brendan Dassey case and has determined it to be a clear cut case of wrongful conviction. Dassey’s interrogation recordings provide a casebook example of a coerced confession. Sadly, Dassey was horribly mistreated by his public defender as well. Dassey did not receive a proper defense, instead he was coached by his attorney to say he was guilty. The attorney even had his own investigator instruct Dassey on how to draw images of the crime scene which would support the prosecution’s arguments. Dassey is seen acting clearly confused during the recorded session, which irritates the investigator, prompting him to give orders to Dassey telling him exactly what he needs to draw, providing all of the necessary details along the way.
There is no evidence against Dassey, beyond his statements to police. He was interrogated at 16-years-old without an attorney present, and he had ineffective counsel, making it it impossible for him to receive a fair trial. At the very least, Dassey deserves a new trial. Injustice Anywhere has provided a case summary on our website clarifying our position on the case.
Wednesday, January 20, 2016
Wrongful Convictions Like That of Steven Avery in Making a Murderer Are More Common Than You Think, Expert Says
The following article by Jessie Gabel Cino was distributed by the Newsroom of Georgia State University on January 19, 2016
Newswise — The Netflix documentary Making a Murderer and the
NPR podcast Serial have generated public outrage over wrongful convictions in
the criminal justice system, but situations like this are more common than the
public might think, a Georgia State University legal expert said.
Jessie Gabel Cino, an associate professor of law, has worked
on criminal cases similar to that of Steven Avery, the subject of Making a
Murderer.
Cino is the co-founder of the Wrongful Convictions Project,
which assisted defendants with claims of actual innocence. The project, which
she helped to start while in law school at the University of Miami, continues
today as the Innocence Clinic.
She consults in criminal and bankruptcy matters, and has
represented clients in criminal cases pro bono. Cino successfully appealed the
wrongful conviction and death sentence of Cory Maye in Mississippi.
Avery was convicted of rape in 1985 but was exonerated by
DNA evidence, and convicted of murder in 2005. The documentary Making a
Murderer questions the murder conviction and whether Avery was framed by police
and prosecutors.
"For a mainstream audience, the concept of an innocent
person being caught up in the legal system is something that is almost
impossible to relate to," Cino said. "Having worked on these cases
since I started law school, I struggle to tell a client who is sitting in
prison on the other side of a glass barrier to be 'patient' with the legal
process.
"I can’t pretend to 'understand' his anger,
frustration, or hopelessness," she continued. "I can’t imagine what
it’s like in prison when you’re supposed to be there -- let alone when you’re
not."
While news reports on television may highlight stories of
people who falsely confessed, were misidentified, or who were victims of
prosecutorial misconduct, those short segments don't come close to showing how
false convictions ruin lives of those who were convicted, their families -- and
the victims, too, whose wounds are reopened, she said.
Cino said Making a Murderer's depth is unique in showing
such stories about wrongful convictions, and its popularity speaks to how the
subject has captured public interest -- though there are hundreds, or maybe
thousands, of cases that the public may never hear about.
"That is about as in-depth as you can get," she
said, and the depth is something that audiences apparently crave."
She teaches teaches courses on forensic evidence, forensic
medicine, bankruptcy and contracts. She has written on a wide-range of topics,
including the validity of forensic evidence genetic testing, forensic DNA identification,
trial and jury tactics, bankruptcy fraud, lender liability, legal ethics and
bioethics.
Cino also consults on various criminal and bankruptcy
matters and has engaged in numerous pro bono criminal defense representations.
You can read some of her work at http://works.bepress.com/jessica_gabel/. For
Cino's biography, visit http://law.gsu.edu/profile/jessica-gabel-cino/.
Saturday, January 02, 2016
Making A Murderer -- State of Wisconsin v. Steven Avery
The following opinion by Casey Hoff, Esq. was published by Wisconsin Gannett Media on December 28, 2015.
It is difficult not to rush to judgment when reading about a person charged with a crime or seeing his unflattering mug shot on the local news. But when people rush to judgment, it can lead to a horrific miscarriage of justice.
The Netflix series "Making a Murderer" is terrifying on a whole host of levels, not the least of which is because it tells the story of Steven Avery’s 1985 wrongful conviction for sexual assault, which was based in part on eyewitness misidentification. Avery spent 18 years in prison for a crime he did not commit. The Wisconsin Innocence Project ultimately obtained a court order for DNA testing of hairs recovered from the victim. The DNA test linked Gregory Allen, a man who was already serving a prison term for a different sexual assault in Green Bay, to the crime for which Avery was convicted in 1985.
In other words, the real perpetrator was found, and Avery was exonerated and released in 2003.
Misconduct was alleged in the rape case, including against then-Sheriff Tom Kocourek and then-Manitowoc County District Attorney Denis Vogel. The suit claimed Vogel knew about Gregory Allen, as criminal complaints surrounding Allen were found inside Vogel’s case file. A member of the sheriff’s department may have become aware of information following Avery’s rape conviction that suggested Avery did not commit the crime. The state Department of Justice conducted an investigation into the 1985 wrongful conviction and found “no basis to bring criminal charges or assert ethics violations against anyone involved in the investigation and prosecution of this case.”
After Avery was exonerated by DNA evidence in 2003, Wisconsin legislators responded by passing a bill with reforms designed to prevent wrongful convictions. The bill introduced by then-Rep. Mark Gundrum included requirements and updates for written police policies on eyewitness identification procedures, the recording of police interrogations and longer retention of DNA evidence.
The Netflix documentary has generated massive interest and significant controversy, because, according to a press release about the series, it “examines allegations of police and prosecutorial misconduct, evidence tampering and witness coercion.” The documentary includes a significant amount of footage from depositions in a $36 million, nearly unprecedented lawsuit filed by Avery against Manitowoc County.
In 2005, just two years after Avery’s exoneration and release from prison, Avery was charged with the murder of 25-year-old photographer Teresa Halbach, whose remains were found in a burn barrel on the Avery property, along with her vehicle. Avery’s murder trial became one of the most notorious in Wisconsin history. The defense argued that Avery was framed by law enforcement. Did the fact that an innocent man spent 18 years in prison for a crime he did not commit “make" a murderer, as the documentary title implies?
A jury ultimately convicted Avery of the murder, but that has not ended the controversy. Much of the public seems to have been unaware of many details of the case. Although the prosecution argued that Halbach was murdered in Avery’s trailer in a bedroom, why was no blood found in the trailer? Why was the key to Halbach’s vehicle not found during the first searches of Avery’s trailer, but only later during a subsequent search by a Manitowoc County Sheriff’s Deputy suspected of becoming aware of exculpatory evidence relating to Avery’s 1985 false rape conviction? Was Avery’s blood found in Halbach’s vehicle planted, as the seal to Avery’s blood evidence kit was broken?
The documentary will likely further inflame passions on both sides. Former Calumet County District Attorney Ken Kratz, according to a recent article in Post-Crescent Media, called the series a “defense advocacy piece.” Current Manitowoc County Sheriff Hermann, while admitting he has not seen the series, says that the backlash has been “frustrating” and asks people to keep an “open mind.” One of Avery’s defense attorney’s, Jerome Buting, says that people who watch the documentary will come away with reasonable doubt about the conviction, if not become convinced that Avery was innocent.
I would encourage you to watch this fascinating series. Keep in mind, however, regardless of the passionate feelings and controversy generated about Avery’s second case, it is indisputable that Avery spent 18 years in prison for a crime he did not commit and that many rushed to judgment in Avery’s sexual assault case.
The Innocence Project, based on the few studies on the issue, estimates that anywhere between 2.3 percent and 5 percent of all prisoners in the United States are innocent. In other words, up to 120,000 people are estimated to be sitting behind bars right now for crimes that they did not commit.
Certainly it is critical that our system works to minimize the number of wrongful convictions. When we get it wrong, the consequences are not only horrific for the accused and his or her family, but the real perpetrator is free to victimize more people.
Casey Hoff is a criminal defense attorney based in Sheboygan.
It is difficult not to rush to judgment when reading about a person charged with a crime or seeing his unflattering mug shot on the local news. But when people rush to judgment, it can lead to a horrific miscarriage of justice.
The Netflix series "Making a Murderer" is terrifying on a whole host of levels, not the least of which is because it tells the story of Steven Avery’s 1985 wrongful conviction for sexual assault, which was based in part on eyewitness misidentification. Avery spent 18 years in prison for a crime he did not commit. The Wisconsin Innocence Project ultimately obtained a court order for DNA testing of hairs recovered from the victim. The DNA test linked Gregory Allen, a man who was already serving a prison term for a different sexual assault in Green Bay, to the crime for which Avery was convicted in 1985.
In other words, the real perpetrator was found, and Avery was exonerated and released in 2003.
Misconduct was alleged in the rape case, including against then-Sheriff Tom Kocourek and then-Manitowoc County District Attorney Denis Vogel. The suit claimed Vogel knew about Gregory Allen, as criminal complaints surrounding Allen were found inside Vogel’s case file. A member of the sheriff’s department may have become aware of information following Avery’s rape conviction that suggested Avery did not commit the crime. The state Department of Justice conducted an investigation into the 1985 wrongful conviction and found “no basis to bring criminal charges or assert ethics violations against anyone involved in the investigation and prosecution of this case.”
After Avery was exonerated by DNA evidence in 2003, Wisconsin legislators responded by passing a bill with reforms designed to prevent wrongful convictions. The bill introduced by then-Rep. Mark Gundrum included requirements and updates for written police policies on eyewitness identification procedures, the recording of police interrogations and longer retention of DNA evidence.
The Netflix documentary has generated massive interest and significant controversy, because, according to a press release about the series, it “examines allegations of police and prosecutorial misconduct, evidence tampering and witness coercion.” The documentary includes a significant amount of footage from depositions in a $36 million, nearly unprecedented lawsuit filed by Avery against Manitowoc County.
In 2005, just two years after Avery’s exoneration and release from prison, Avery was charged with the murder of 25-year-old photographer Teresa Halbach, whose remains were found in a burn barrel on the Avery property, along with her vehicle. Avery’s murder trial became one of the most notorious in Wisconsin history. The defense argued that Avery was framed by law enforcement. Did the fact that an innocent man spent 18 years in prison for a crime he did not commit “make" a murderer, as the documentary title implies?
A jury ultimately convicted Avery of the murder, but that has not ended the controversy. Much of the public seems to have been unaware of many details of the case. Although the prosecution argued that Halbach was murdered in Avery’s trailer in a bedroom, why was no blood found in the trailer? Why was the key to Halbach’s vehicle not found during the first searches of Avery’s trailer, but only later during a subsequent search by a Manitowoc County Sheriff’s Deputy suspected of becoming aware of exculpatory evidence relating to Avery’s 1985 false rape conviction? Was Avery’s blood found in Halbach’s vehicle planted, as the seal to Avery’s blood evidence kit was broken?
The documentary will likely further inflame passions on both sides. Former Calumet County District Attorney Ken Kratz, according to a recent article in Post-Crescent Media, called the series a “defense advocacy piece.” Current Manitowoc County Sheriff Hermann, while admitting he has not seen the series, says that the backlash has been “frustrating” and asks people to keep an “open mind.” One of Avery’s defense attorney’s, Jerome Buting, says that people who watch the documentary will come away with reasonable doubt about the conviction, if not become convinced that Avery was innocent.
I would encourage you to watch this fascinating series. Keep in mind, however, regardless of the passionate feelings and controversy generated about Avery’s second case, it is indisputable that Avery spent 18 years in prison for a crime he did not commit and that many rushed to judgment in Avery’s sexual assault case.
The Innocence Project, based on the few studies on the issue, estimates that anywhere between 2.3 percent and 5 percent of all prisoners in the United States are innocent. In other words, up to 120,000 people are estimated to be sitting behind bars right now for crimes that they did not commit.
Certainly it is critical that our system works to minimize the number of wrongful convictions. When we get it wrong, the consequences are not only horrific for the accused and his or her family, but the real perpetrator is free to victimize more people.
Casey Hoff is a criminal defense attorney based in Sheboygan.
Saturday, November 28, 2015
Daily Herald calls on Alvarez to explain delay in Laquan case
The following editorial was published by the Chicago Daily Herald on November 28, 2015.
Let us put this succinctly: Overnight -- or more pointedly, over the course of 13 months -- Cook County State's Attorney Anita Alvarez has lost virtually all credibility, and the onus is on her not only to restore it but to explain why she should not be expected to resign.
Her resignation is what the National Bar Association called for on Wednesday after the city of Chicago finally released the now-infamous video showing a white police officer, identified by authorities as Jason Van Dyke, gunning down black teenager Laquan McDonald in October 2014.
Alvarez's office filed murder charges against Van Dyke on Tuesday, and a few hours later the city released the video it had sought to suppress.
"It's unacceptable that it took over a year to file these charges against officer Van Dyke," said Benjamin Crump, president of the bar association of predominantly African-American lawyers, judges and educators. "Not only did it take a year to file these charges, but Van Dyke was able to continue in the capacity of a police officer during this delayed investigation."
We concur with Crump's observations, as they were reported by Mashable. The long delay in prosecuting this case is one of the more inexplicable aspects of a tragic police shooting that in itself defies explanation.
The reality is, every aspect of this case is troubling. Earlier this year, the city -- with the blessings of Mayor Rahm Emanuel and the city council -- reached a $5 million settlement with Laquan's family.
That settlement came without a lawsuit, despite the fact that Laquan was a ward of the state, and with an agreement to seal the dash-cam videos from public release.
But the most stunning aspect of that settlement is this: Even while the city was paying out $5 million, no one was filing charges against the officer who was identified as pulling the trigger without any apparent cause or justification.
Nothing adds up in this bizarre, cynical and unconscionable collaboration of injustice.
Emanuel and Police Superintendent Garry McCarthy also share culpability here, to be sure, but Alvarez is the chief criminal justice authority in the county, and we have expected so much better from her. We were the first major newspaper to endorse her when she ran for state's attorney for the first time in 2008. We enthusiastically endorsed her for re-election again in 2012.
But in this case, she disappoints. She disappoints not just us, but the public she has vowed to serve. Her explanation for the delay in prosecution has so far been circumspect. She has attributed it to collaborations with federal authorities.
"While I understand there may be questions or frustrations about the length of time of the investigation," Alvarez said in a prepared statement on Wednesday, "I want to assure citizens that my office took the necessary time that was required to conduct a thorough and comprehensive investigation and to gather all possible evidence in order to ensure that we have built the strongest case possible so that justice can be served for Laquan and his family."
We, the citizens, are not assured. Her words so far ring hollow.
Should she choose to remain on the ballot, Alvarez will be up for election again next year. One of her challengers, former prosecutor Kim Foxx, put it this way in an interview with Slate:
"This was what we would consider to be a slam dunk. It's not a matter of whodunit. You know who did it. You had a videotape and a vantage point that clearly shows where Laquan was in relation to the officer. You had eyewitnesses, both civilian and police. You had the autopsy report, which was available within days. So this wasn't difficult."
We, the citizens, say this: What Foxx says makes much more sense than what Alvarez has so far said.
Alvarez owes all of us a detailed explanation for the 13 months it took to bring charges. If not, she owes us her departure.
Let us put this succinctly: Overnight -- or more pointedly, over the course of 13 months -- Cook County State's Attorney Anita Alvarez has lost virtually all credibility, and the onus is on her not only to restore it but to explain why she should not be expected to resign.
Her resignation is what the National Bar Association called for on Wednesday after the city of Chicago finally released the now-infamous video showing a white police officer, identified by authorities as Jason Van Dyke, gunning down black teenager Laquan McDonald in October 2014.
Alvarez's office filed murder charges against Van Dyke on Tuesday, and a few hours later the city released the video it had sought to suppress.
"It's unacceptable that it took over a year to file these charges against officer Van Dyke," said Benjamin Crump, president of the bar association of predominantly African-American lawyers, judges and educators. "Not only did it take a year to file these charges, but Van Dyke was able to continue in the capacity of a police officer during this delayed investigation."
We concur with Crump's observations, as they were reported by Mashable. The long delay in prosecuting this case is one of the more inexplicable aspects of a tragic police shooting that in itself defies explanation.
The reality is, every aspect of this case is troubling. Earlier this year, the city -- with the blessings of Mayor Rahm Emanuel and the city council -- reached a $5 million settlement with Laquan's family.
That settlement came without a lawsuit, despite the fact that Laquan was a ward of the state, and with an agreement to seal the dash-cam videos from public release.
But the most stunning aspect of that settlement is this: Even while the city was paying out $5 million, no one was filing charges against the officer who was identified as pulling the trigger without any apparent cause or justification.
Nothing adds up in this bizarre, cynical and unconscionable collaboration of injustice.
Emanuel and Police Superintendent Garry McCarthy also share culpability here, to be sure, but Alvarez is the chief criminal justice authority in the county, and we have expected so much better from her. We were the first major newspaper to endorse her when she ran for state's attorney for the first time in 2008. We enthusiastically endorsed her for re-election again in 2012.
But in this case, she disappoints. She disappoints not just us, but the public she has vowed to serve. Her explanation for the delay in prosecution has so far been circumspect. She has attributed it to collaborations with federal authorities.
"While I understand there may be questions or frustrations about the length of time of the investigation," Alvarez said in a prepared statement on Wednesday, "I want to assure citizens that my office took the necessary time that was required to conduct a thorough and comprehensive investigation and to gather all possible evidence in order to ensure that we have built the strongest case possible so that justice can be served for Laquan and his family."
We, the citizens, are not assured. Her words so far ring hollow.
Should she choose to remain on the ballot, Alvarez will be up for election again next year. One of her challengers, former prosecutor Kim Foxx, put it this way in an interview with Slate:
"This was what we would consider to be a slam dunk. It's not a matter of whodunit. You know who did it. You had a videotape and a vantage point that clearly shows where Laquan was in relation to the officer. You had eyewitnesses, both civilian and police. You had the autopsy report, which was available within days. So this wasn't difficult."
We, the citizens, say this: What Foxx says makes much more sense than what Alvarez has so far said.
Alvarez owes all of us a detailed explanation for the 13 months it took to bring charges. If not, she owes us her departure.
Monday, November 23, 2015
Does innocence matter?
The following commentary by Joel Freedman was published by
the Canandaigua, NY Daily Messenger on November 14, 2015.
Brentnol Britton
wrote to me while serving a nine-year sentence on allegations he hurled a pot
of boiling water at his former girlfriend, striking her in her face. In all
likelihood, Britton was wrongly convicted. After he arrived in prison in 2004,
the alleged victim’s own family revealed she told them she scalded herself on
her own arm and hand and injured her own lip with a metal spoon to frame
Britton and try to get possession of their home.
The woman
reportedly told others she suspected Britton was unfaithful to her. Britton,
after passing a privately administered polygraph examination, passed another
polygraph test arranged by the Queens County District Attorney’s Office. The
District Attorney’s Office offered to help Britton get out of prison, but only
if he would plead guilty in exchange for a time-already-served prison sentence.
A Nov. 23, 2005, New York Post story about this case was captioned “In hot
water — scald ‘fake’ jailed beau.” After Britton refused this “deal,” the DA’s
Office fought successfully to keep Britton in prison.
While DNA testing
can uncover stone-cold proof of innocence — since 1989 there have been several
hundred post-conviction DNA exonerations in the U.S. — most wrongful
convictions aren’t DNA cases. And when there is biological evidence available
for DNA testing, prosecutors often fight hard to conceal or prevent disclosure
of potentially exculpatory evidence.
U.S. Sen. Ted
Cruz, R- Texas, a presidential aspirant, believes in the death penalty while
also believing that “critical to supporting the death penalty is ensuring that
we vigorously protect the innocent.” But actual innocence doesn’t matter to
some prosecutors.
Case in point, the
following exchange occurred when a Missouri death row inmate attempted to
present newly discovered exculpatory evidence: “Are you suggesting even if we
find Mr. Amrineis actually innocent, he should be executed?” said the Missouri
Supreme Court judge. “That’s correct, your honor,” said the assistant state
attorney general.
I have
corresponded with Fred Weichel for 33 years. In 1981, Weichel was sentenced to
life imprisonment without possibility of parole after being wrongly convicted
of a murder in Braintree, Massachusetts. Space won’t allow me to discuss
Weichel’s case in detail, so please read my article, “Fred Weichel asks:
whatever happened to truth and justice?” Justicia, July-August 2006, accessible
online. In recent years, the Braintree police chief wrote to the Norfolk county
district attorney saying that, after reviewing Weichel’s case, he believes the
eyewitness identification of Weichel was unreliable and that he has serious
doubts that Weichel is guilty. Michael Ricciuti and other attorneys with the
Boston law firm K & L Gates, assisted by the New England Innocence
Project, are fighting to get Weichel his long-overdue freedom.
It is also true
that some probably guilty defendants are acquitted or succeed in having their
indictments dismissed. I believe Monroe County Judge James Piampiano erred when
he made a decision that prevents any further homicide-related charges from
being brought against Charlie Tan in connection with the shooting of his
father, Liang Tan. Piampiano should have allowed another trial for Tan because
there really is sufficient evidence to allow a new jury to try to reach a
unanimous verdict.
While the problem
of wrongful convictions is certainly not the only problem in our criminal
justice system, let’s always keep in mind what Justice Learned Hand wrote 100
years ago: “Our procedure has always been haunted by the ghost of the innocent
man convicted. It is an unreal dream.”
For the wrongly
convicted, it is a continuing nightmare.
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