Here's how justice system let innocent woman sit in jail for 3 months

The following commentary by Mike Thomas was published in the Orlando Sentinel on October 10, 2010.

Dr. David Mackey, the former chief of staff at Winter Park Hospital, hired a hit man to kill a business partner who cheated him. It was captured on videotape. Yet Mackey never saw the inside of a jail cell for that crime.

Malenne Joseph, a poor and deeply religious immigrant from Haiti, was arrested for vandalizing a home. She did not do it. Yet she sat in a jail cell for three months, praying to be returned to her young children, as the State Attorney's Office sat on information that proved her innocence.

Welcome to law and order in the Ninth Judicial Circuit.

Dr. Mackey was arrested in 2003 after the hit man he hired turned out to be an undercover cop.

"If I could kill this guy and get away with it, I would," Mackey told him.

Possible penalties ranged up to life in prison.

But Mackey hardly needed defense counsel, as prosecutors and the judge rushed to his defense.

Assistant State Attorney Bill Vose said that "sending a person of Dr. Mackey's stature for this offense away to prison would certainly not be justice.''

Judge Bob Wattles seemed to agree.

"I don't believe this is the end of you practicing medicine,'' he told Mackey. "You're a tremendous asset. I'm not going to waste that."

Mackey got probation.

"All I can say,'' said Bill Vose, "is there is not two systems of justice in the cases I prosecute, and I manage all the prosecutors in the office, and we do our best to make sure that doesn't happen.''

Malenne certainly lacked Dr. Mackey's stature.

She was 29, poor and worked menial jobs. And it was her misfortune to be black and speak with an accent — because that vague description also fit a woman hired by a contractor in 2007 to paint the inside of a house.

The contractor did not pay her. Angry, the woman splashed paint over the interior of the house.

Malenne Joseph was not a painter. She never set foot in the house. She never met any of these people.

But that didn't matter once Orlando police Detective Jose Varela was on the case.

The contractor gave Varela the painter's cell-phone number. He dialed it and got a woman named "Marlene'' who confessed to the crime but would not come down to the police station.

Varela never traced the cell-phone number to see whom it was registered to.

Varela had another clue.

He told prosecutors that the owner of the house gave him the tag number of a vehicle that she saw the painter driving. And Varela said he traced that tag to Malenne or a relative.

In fact, the owner of the house had said she saw a black man driving a truck slowly in her neighborhood and got suspicious — so she gave the tag number to Varela.

The truck belonged to a black man with the last name of Joseph. Apparently, Varela then went fishing through motor-vehicle records until he came up with a black woman with the last name of Joseph — Malenne Joseph.

Varela got a photocopy of her drivers-license picture and showed it to the owner of the house and her sister. A more conscientious detective would have put that picture in with other pictures to see whether the women could pick out Malenne.

He did not. And, not surprisingly, the two women identified Malenne as the painter.

This happens so often there are studies about it. Witness identifications are the most unreliable evidence, especially when white victims are identifying black suspects. Cops know what they are doing. Why else would a cop be showing me this picture if she didn't do it?

The phone number wasn't linked to Malenne. The truck wasn't linked to Malenne. She wasn't picked out of a photo lineup.

None of that bothered the State Attorney's Office, which took the case to trial in June.

It also didn't seem to bother Judge Walter Komanski, who allowed — over defense objections — Varela to testify about "Marlene's" phone confession.

The jury heard eyewitness identification and a confession. Guilty.

A pre-sentence investigation would take two months. Komanski could have released Malenne, given her lack of a record and the fact this was a nonviolent crime.

Instead, he sent her to jail.

When new lawyers took over her case from the Public Defender's Office and asked for a retrial, that cost Malenne another month in jail, almost as if she were being punished for insisting on her innocence.

She continued to sit there after her lawyers filed evidence that proved her innocence — evidence that included phone records linking the number Varela dialed to a woman named Merline, and work records that showed Malenne was working at a nursing home on two of the days she supposedly was painting.

She continued sitting after Sentinel reporter Anthony Colarossi reported that evidence on the front page.

"The State will NOT reconsider it's [sic] position on the defendant being released…'' prosecutor Mexcye Roberts wrote defense attorneys on Sept. 10.

The State Attorney's Office, so anxious to keep an obviously guilty Dr. Mackey out of jail, was set on keeping an obviously innocent Malenne Joseph in jail. But faced with the overwhelming evidence, it finally relented and set her free Sept. 15.

Mike Thomas can be reached at 407-420-5525 or mthomas@orlandosentinel.com.