At Least Investigate Other Suspect In Lapointe Case

The following editorial was published by the Hartford (Connecticut) Courant on April 19, 2011.

Lapointe Case With DNA findings, state should revisit an earlier suspect

If the term "reasonable doubt" means anything, Richard Lapointe should get a new trial. The meek, uncoordinated, mentally handicapped Manchester man was convicted of a violent crime he may not even have been able to commit, based on confessions of highly dubious merit.

But his efforts to have his case retried suffered another setback Friday when Superior Court Judge John J. Nazzaro rejected arguments that prosecutors had withheld important evidence, that Lapointe's trial and appellate lawyers were incompetent and that new evidence proved Mr. Lapointe was innocent.

It can't end here. The Lapointe case has seriously shaken confidence in the state's criminal justice system. Officials should take a step to restore that trust, and that is to run tests on the other major suspect in the case.

Coerced Confession?

Mr. Lapointe was convicted in 1992 of the brutal rape and murder of his wife's grandmother, 88-year-old Bernice Martin, in 1987. He wasn't arrested until 1989; police were first interested in another suspect, a grisly career criminal named Frederick Rodney Merrill. But Merrill was eventually dropped as a suspect, at least in part because his blood type didn't match a blood and a semen stain at the scene.

Mr. Lapointe, a dishwasher with no history of violent behavior, had been asking Manchester police officers about the case, and eventually drew their suspicion. On the Fourth of July in 1989, the police asked Mr. Lapointe to come down to headquarters and kept him there for more than nine hours. He didn't have a lawyer and the session was not electronically recorded. Over the course of the evening Mr. Lapointe gave three confessions that were either nonsensical or didn't jibe in major detail — how Mrs. Martin was dressed, how she was sexually assaulted, how she was strangled — with how experts later said the crime was actually committed.

Yet jury members said after the 1992 trial that it was the confessions that convinced them of Mr. Lapointe's guilt. Since 1992, much has been learned about false or induced confessions; they happen with alarming frequency. Mr. Lapointe, alone and tired, said he told police what they wanted to hear so he could go to the bathroom and go home.

Tantalizing Evidence

Whoever killed Mrs. Martin was physically strong. He violently assaulted, tied up, raped and stabbed a woman who was short and weighed at least 160 pounds. Mr. Lapointe can barely tie his shoes, and has trouble lifting heavy objects. He has to keep checking and adjusting a shunt tube that extends from his skull through his neck and into his stomach that drains fluid from his cranial cavity, a result of his mental condition, called Dandy-Walker syndrome. But if he didn't commit the crime, who did?

There is tantalizing evidence that Manchester police had the right man the first time.

A Manchester woman testified she saw a man much taller than Mr. Lapointe — about Mr. Merrill's size and build — running madly from the housing complex where Mr. Martin lived at about the time of the crime. Mr. Merrill was seen in the neighborhood that weekend, and three days later committed an eerily similar crime, a violent sexual assault on a woman in her home in South Windsor, just a few miles away.

In the most recent appeal, lawyers for Mr. Lapointe presented DNA evidence that a pubic hair found in Mrs. Martin's bedroom belonged neither to Mrs. Martin nor Mr. Lapointe, and that a pair of gloves found at the scene could not be tied by DNA to Mr. Lapointe. Although Judge Nazzaro didn't find this evidence strong enough to grant Mr. Lapointe a new trial, for a number of reasons, he did allow that the pubic hair "may have come from the perpetrator."

Well, let's at least find out if the hair and other items found in the apartment are a DNA match with Mr. Merrill. Such action would not be unprecedented. In recent years state's attorneys have voluntarily reanalyzed evidence in at least three cases in which convictions were reversed. The questions surrounding Mr. Lapointe's case argue for a similar review.

Jeff Gerritt: Prosecutors must fess up

The following opinion by Jeff Gerritt was published by the Detroit Free Press on April 28, 2011.

The fate of Karl Vinson, wrongfully convicted of rape in 1986, now rests with the Michigan Court of Appeals, which needs to grant him a new trial. But it’s troubling that Vinson had to go there to get justice. Scientific evidence shows Vinson, 56, a former Detroiter who has spent 25 years in prison, is almost certainly innocent of the 1986 rape of which he was convicted. At least there's enough evidence to warrant a new trial. But Wayne County Circuit Judge Vera Massey Jones failed to grant him one last month and the prosecutor’s office also opposed it.

Vinson’s case shows the sometimes unreasoning resistance of law enforcement, and even judges, to acknowledge mistakes and right wrongs. When they don’t, an enormous injustice weighs on the wrongfully convicted. And something else happens, too: the person who did the crime remains free. "The reaction by authorities is to preserve a conviction at all costs,’’ David Moran, co-director of the Innocence Clinic at the University of Michigan, told me. “Besides the injustice to Vinson, there’s a rapist who might still be out there and no one seems to give a damn.”

Vinson was convicted of raping a 9-year-old Detroit girl, due largely to a blown forensic test; recent tests all but exonerate him. Still, in court documents opposing a new trial, an assistant Wayne County prosecutor said science does not trump the testimony of individuals. It’s a dangerously wack idea. If it were taken literally, none of the nearly 270 innocent people freed by DNA evidence would have been exonerated. Mistaken eyewitness testimony accounts for nearly 80% of those wrongful convictions. Witnesses make honest mistakes -- and occasionally lie.

In Vinson’s case, an intruder crawled though a bedroom window and raped the girl in her bed. Bed sheet tests then revealed semen and Type O blood antigens, but Vinson has AB blood. Because tests mistakenly indicated Vinson is a nonsecretor — one of a small group of people whose blood antigens don’t show up in saliva, semen and other bodily fluids — police said they couldn’t rule Vinson out as a suspect.

In 2009, Vinson got new tests showing he is a secretor: If he were guilty, his AB blood antigens would have showed up in the semen stain. Still, Jones refused last month to grant a new trial, proposing the ridiculous idea that the fresh semen stain on the girl’s sheets — probably only a few hours old — might have come from sex involving the girl’s parents, even though the prosecutor said at trial that it had come from the rapist. Does anyone believe that the mother called the police and then had sex on the same bed her daughter had just been raped on?

The Wayne County prosecutor’s office appears to almost reflexively oppose requests for new trials, even when scientific evidence shows it’s warranted. It's not tough on crime to keep innocent people locked up and enable the guilty to remain free. It just undermines the integrity of an already shaky justice system.

Editorial: House turned a blind eye with innocence commission vote

The following editorial was published by the Dallas Morning News on April 26, 2011.

Texas House members took a bold stand last week with preliminary passage of a bill to dissect and improve the justice system.
Then they changed their minds.

The end result was rejection of a new Timothy Cole Innocence Commission to analyze wrongful convictions and identify ways that Texas could avoid repeating shameful outcomes in the court system.
With more than 40 DNA-proven exonerations of convicted men — more than any other state — Texas should be looking for ways to guard against more hideous miscarriages of justice. Defeat of HB 115 sends the offensive message that the status quo is somehow good enough. Well, it isn’t.

The bill called for a nine-person commission that would review every case of a convicted person who was exonerated in the courts. The panel would pinpoint the causes of wrongful conviction, then “consider and develop solutions and methods” to reduce the chance for error through new laws, procedures, programs and training.

On the initial vote Thursday, the House gave the bill decisive preliminary passage, 82-54. But legislative whiplash came the next day, and the bill went down just as decisively on the final vote, 51-91.

Rep. Tryon Lewis, R-Odessa, made a final plea to keep review of criminal cases “within the judiciary.” Outside review, he warned, would invite “all of these politics” that have swirled around the Texas Forensic Science Commission’s examination of the Cameron Todd Willingham arson-murder case.

We can’t imagine a more distorted and myopic view. If it hadn’t been for the forensics panel, it might not be clear to the justice community that arson investigators had a crude understanding of fire science when Willingham was convicted in 1992.

Has the forensic panel’s work been without controversy? No. Has it been free of politics? No, not since the governor’s meddling in the process. But the most important question: Has the forensic inquiry been valuable? Without question. The panel recently issued 17 recommendations for how arson professionals and the courts can be more alert to the standards in that discipline.

Don’t expect the courts to get into that territory. They have not and will not do thoughtful post-mortems in any number of wrongful convictions, including the notorious case of Anthony Graves, who was railroaded and sent to death row. Texas courts utterly failed to read the warning signs of a prosecution that would be laughable if it weren’t so corrupt and cruel.

Outside watchdogs are exactly what Texas courts need.

Ask the family of Timothy Cole, whose name would have been on the new commission. He was wrongly convicted of rape in 1985 and then exonerated by DNA testing in 2008, nine years after he died in prison.

We hope lawmakers have a chance to get this right if proponents of the Cole legislation manage to graft it onto another bill as an amendment. Texas lawmakers must take off the blinders.

Celebrating the life of Marie Deans

The following commentary by Todd C. Peppers was published in the Richmond Times-Dispatch on April 24, 2011.

On Friday, April 15, one of the nation's leading advocates for the abolition of the death penalty passed away quietly in a Charlottesville hospice. Her name was Marie McFadden Deans, and for decades she fought to bring fairness, justice and decency to what Supreme Court Justice Harry Blackmun once decried as "the machinery of death," namely, our country's bewildering and stubborn commitment to the barbaric practice of killing its citizens to show that killing is wrong. Marie was a tireless worker who never sought the limelight, but in her death we should pause and consider her contributions to fight against the death penalty regime.

Marie's devotion to abolishing the death penalty was sparked by the brutal murder of her beloved mother-in-law by an escaped convict. In the face of such a horrific loss, Marie responded by founding Murder Victims' Families for Reconciliation, an organization that sought to give a voice to families who believed that the death penalty was not the answer to the terrible loss of their loved ones. At the same time, Marie threw herself into work with Amnesty International and toured prisons across the country — documenting abuses and providing needed data to litigate the cruel and unusual conditions imposed on the forgotten inhabitants of death row.

In 1983, Marie founded the Virginia Coalition on Jails and Prisons — an organization dedicated to fighting for basic legal rights for the men on death row. At the time of its founding, Virginia's death row was — in Marie's words — a "horrific" place filled with drugs, sexual and physical violence, and despair. Marie became an advocate and friend to the men on the row, always motivated by the belief that there was a spark of the divine in even the most hardened inmate. Marie also became a thorn in the side of the Virginia Department of Corrections, which remained unyielding to the basic reforms that Marie demanded until she successfully obtained the legal backing from then-federal district court Judge Robert R. Merhige Jr.

The friendship and support that Marie unselfishly extended to the men extended to the death house, and Marie was present at the execution of 34 men in Virginia and South Carolina — an experience that left her emotionally scarred for the rest of her life. The death row inmates themselves were very protective of their champion, and tried, in their limited circumstances, to express their gratitude to the woman who fought to save them. They painted pictures for Marie (until the Department of Corrections took away their painting supplies), carved statues out of soap, and fashioned jewelry boxes out of match sticks. And when death row inmate Willie Leroy Jones sat down to his final meal, he demanded that Marie, exhausted and surviving on a diet of caffeine and cigarettes, eat part of his potato so that she would keep up her strength. Marie later described the sharing of the food as "taking communion" in the death house.

Marie's efforts not only focused on the men already on death row, but those men on trial for capital murder. Marie was incensed by a legal system which shackled indigent defendants with poorly trained defense attorneys and inadequate resources to hire expert witnesses. Marie became a mitigation expert, collecting relevant information on the backgrounds of capital defendants and weaving that information into a compelling narrative that would be presented to a jury weighing whether to sentence the defendants to life or death. Marie quickly established herself as a leading mitigation expert, and, largely due to her efforts, only two of the 200 men that Marie helped defend were ultimately sentenced to death.

Marie also became involved in the appellate process, as she spent countless hours finding inmates attorneys, filing mitigation evidence in support of habeas petitions, and petitioning governors for clemency for her clients. Marie's greatest triumph was the exoneration of Earl Washington Jr., a mentally retarded man whose false confession was the product of police coercion and manipulation and who came within days of being executed before a fellow death-row inmate, Joe Giarratano, brought Washington's story to her attention. Ironically, it would be the same Joe Giarratano that Marie would spend the rest of her life unsuccessfully fighting to free. Convinced of his factual innocence, Marie's campaign for clemency convinced one Virginia governor —L. Douglas Wilder — to grant Giarratano a conditional pardon and a new trial — a trial that the Virginia attorney general's office refused to hold. As her health steadily declined Marie continued to fight for Giarratano's release, and she was bitterly disappointed when outgoing Virginia Gov. Tim Kaine declined to consider Giarratano's clemency appeal.

Marie resisted efforts by others to publicly celebrate her work, and she despised the label that some bestowed upon her as "the angel of death row." When asked how she wanted to be remembered, Marie settled upon "a courageous fool" — a woman who overcame her anxiety and fears to walk daily amongst the damned and fought battles that many deemed unwinnable. Her courage, her convictions, and her voice will be desperately missed as our society continues to reconsider its embrace of state-sanctioned death.

Todd C. Peppers is the Henry H. and Trudye H. Fowler Professor of Public Affairs at Roanoke College and a lecturer at Washington and Lee University School of Law. He is the co-author of "Anatomy of an Execution: The Life and Death of Douglas Christopher Thomas" (Northeastern University Press, 2009). Contact him at peppers@roanoke.edu.

A System for Courts to Redress Wrongs

The following letters to the editor were published on April 23, 2011 by the New York Times. They are in response to a proposal by Joseph L. Hoffmann and Nancy J. King to limit state prisoners' access to habeas corpus relief to death penalty cases or those in which a prisoner can prove innocence.

To the Editor:

Eliminating habeas corpus for most state prisoners, as Joseph L. Hoffmann and Nancy J. King urge in “Justice, Too Much and Too Expensive”, will destroy thousands of lives. Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.

Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it.

RONALD L. KUBY
New York, April 17, 2011

The writer is a criminal defense lawyer.

To the Editor:

Joseph L. Hoffmann and Nancy J. King want to reform habeas corpus, and they do well explaining how that writ has been abused. But they propose allowing habeas corpus only for capital cases and when a prisoner can produce persuasive new evidence of innocence, an idea antithetical to our system of criminal jurisprudence.

To get habeas relief, it should be sufficient to show a denial of constitutional rights (like the right to competent counsel), or that the government abused the right to a fair trial (such as by withholding evidence).

The state systems of appeal are riddled with inconsistencies and injustice. Habeas corpus is often the only way to secure a remedy. Otherwise, constitutionally abused and innocent people languish in prisons for decades. Reform of habeas may be needed, but that reform should be more judicious than the professors suggest.

LAMAR W. HANKINS
San Marcos, Tex., April 17, 2011

The writer is a lawyer.

To the Editor:

Profs. Joseph L. Hoffmann and Nancy J. King may be premature in their call for a formal limitation on the scope of federal habeas corpus review of state convictions. My recent experience in North Carolina suggests that what appears on paper to have been an extensive review by state judges may not always withstand closer scrutiny.

In a noncapital case in which we believe the defendant is innocent, a state judge held a four-day evidentiary hearing, heard the brief oral argument of the parties and immediately ruled that the defendant had failed to prevail on any issue. He did not explain in any way why he reached that conclusion.

Instead, he asked the state to draft a “proposed” opinion, which he then issued nearly verbatim, including typos. There was no right to review of his decision, so the defendant filed a nearly 100-page petition for review, with more than 400 pages of exhibits. The state filed an opposition that was more than 100 pages.

The court of appeal denied the petition after five business days. Most lawyers would find that incredible. How likely is it that judges actually read the parties’ briefs and the underlying exhibits?

I doubt that most people would think the product of such a process should be insulated from federal habeas review.

JAMES E. COLEMAN Jr.
Durham, N.C., April 17, 2011

The writer is a professor of law at Duke University School of Law and co-director of the Duke Wrongful Convictions Clinic.

To the Editor:

The supposition of Profs. Joseph L. Hoffmann and Nancy J. King is that the criminal justice system is generally efficient and fair. My 13 years as a trial judge convince me it is neither.

Your newspaper has repeatedly reported the release of an innocent person from prison after serving years, often on death row, because of a wrongful conviction. These cases almost always involve capital crimes because the intrepid and overburdened lawyers working on these appeals concentrate their resources on behalf of those most imperiled.

This does not mean, however, that convictions for lesser offenses are free from error. And it is not just the actually innocent who need review of their convictions.

Slovenly and unconstitutional practices can convict the “right” person, but this should give no comfort to the rest of us. A system of unfair trials and scant review will necessarily assure that more of the guilty are convicted, but at the same time more of the actually innocent will be joining them behind bars.

STEPHEN J. FORTUNATO Jr.
Warren, R.I., April 18, 2011

The writer is a retired associate justice of the Rhode Island Superior Court.

To the Editor:

Profs. Joseph L. Hoffmann and Nancy J. King have more faith in state court judges than I have, especially in states in which judges are elected.

As Justice Sandra Day O’Connor said in her concurring opinion in Republican Party of Minnesota v. White (2002): “But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.”

Further limiting the possibility of meaningful habeas review in federal court will only worsen the effect of judicial elections, because judges often feel they must appear to be tough on crime to be re-elected.

BOB DAVIDOW
Ann Arbor, Mich., April 17, 2011

The writer is a retired professor of law at George Mason University.

The Arts Factory presents… "The Row" By Clifford Holt

Please Note: The playwright was a former death row inmate whose case was overturned and he wrote it while in prison. It is an outstanding script.

"Let's get this straight, you're not dying...you are being killed."

Dates: May 14th (7:30), 15th (4:00), 20th (7:30) and 21st (7:30); 2011.
Price: $12.00 (Reservation Only)
Post show Panel Discussion on Sunday May 15th.
Location: Shaffer United Methodist Church-12002 Miles Avenue, Cleveland, Ohio
(216) 641-7629 *Please leave message regarding any questions and reservations*
MATURE AUDIENCES ONLY

Brief Synopsis
This stage production "The Row" written by playwright Clifford Holt opens up the closed world of women on death row. This production deals with the reality of women's rights and religious understanding. The play looks at how the eight women relate to their circumstances and each other. Red is scheduled to be put to death in 24 hours. The women spend their last time with her discussing everything from men, to religion, as well as entertaining each other with stories and jokes.

The Prosecution Rests, but I Can’t

The following opinion by John Thompson was published by the New York Times on April 10, 2011.

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

Because of that, prosecutors are free to do the same thing to someone else today.

I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.

They took me to the homicide division, and played a cassette tape on which a man I knew named Kevin Freeman accused me of shooting a man. He had also been arrested as a suspect in the murder. A few weeks earlier he had sold me a ring and a gun; it turned out that the ring belonged to the victim and the gun was the murder weapon.

My picture was on the news, and a man called in to report that I looked like someone who had recently tried to rob his children. Suddenly I was accused of that crime, too. I was tried for the robbery first. My lawyers never knew there was blood evidence at the scene, and I was convicted based on the victims’ identification.

After that, my lawyers thought it was best if I didn’t testify at the murder trial. So I never defended myself, or got to explain that I got the ring and the gun from Kevin Freeman. And now that I officially had a history of violent crime because of the robbery conviction, the prosecutors used it to get the death penalty.

I remember the judge telling the courtroom the number of volts of electricity they would put into my body. If the first attempt didn’t kill me, he said, they’d put more volts in.

On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary — the infamous Angola prison. I was put in a dead man’s cell. His things were still there; he had been executed only a few days before. That past summer they had executed eight men at Angola. I received my first execution date right before I arrived. I would end up knowing 12 men who were executed there.

Over the years, I was given six execution dates, but all of them were delayed until finally my appeals were exhausted. The seventh — and last — date was set for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in from Philadelphia to give me the news. They didn’t want me to hear it from the prison officials. They said it would take a miracle to avoid this execution. I told them it was fine — I was innocent, but it was time to give up.

But then I remembered something about May 20. I had just finished reading a letter from my younger son about how he wanted to go on his senior class trip. I’d been thinking about how I could find a way to pay for it by selling my typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr. is graduating from high school.” I begged them to get it delayed; I knew it would hurt him.

To make things worse, the next day, when John Jr. was at school, his teacher read the whole class an article from the newspaper about my execution. She didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson about making bad choices. So he learned that his father was going to be killed from his teacher, reading the newspaper aloud. I panicked. I needed to talk to him, reassure him.

Amazingly, I got a miracle. The same day that my lawyers visited, an investigator they had hired to look through the evidence one last time found, on some forgotten microfiche, a report sent to the prosecutors on the blood type of the perpetrator of the armed robbery. It didn’t match mine; the report, hidden for 15 years, had never been turned over to my lawyers. The investigator later found the names of witnesses and police reports from the murder case that hadn’t been turned over either.

As a result, the armed robbery conviction was thrown out in 1999, and I was taken off death row. Then, in 2002, my murder conviction was thrown out. At a retrial the following year, the jury took only 35 minutes to acquit me.

The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.

Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

A crime was definitely committed in this case, but not by me.

John Thompson is the director of Resurrection After Exoneration, a support group for exonerated inmates.

Prosecutors belong on side of justice

The following opinion by Tom Lyons was published in the Sarasota (Florida) Herald-Tribune on April 4, 2011.

Prosecutors can be way too much like other trial lawyers in one way that they are not supposed to be.

It's one thing for defense lawyers to argue adamantly that a client is innocent, despite much evidence of guilt. That's their job.

But prosecutors? They are supposed to be on the side of justice. To insist that a defendant is guilty even after new and strong evidence suggests otherwise, is flat out wrong.

Their job, in such an instance, is to drop the charges. Or, if things are past that point, to help reverse a wrongful conviction. It is absolutely not our State Attorney's job to try to keep an apparently innocent person locked up just because that person had once appeared to be guilty.

But prosecutors can become way too focused on winning, it seems.

Defense attorney Derek Byrd called me last week to express outrage about a decision by State Attorney Earl Moreland's office to appeal a judge's ruling that overturned the rape conviction of Derrick Williams based on new DNA evidence.

"I've never been as disappointed" in the State Attorney's Office, said Byrd, a respected defense attorney known for a good working relationship with that office. "There's no basis for an appeal."

He's right. It was not an iffy ruling based on a debatable technicality. Strong evidence, revealed through efforts of lawyers with Florida's Innocence Project, proved that DNA on a shirt worn by the man who raped a Palmetto woman absolutely did not come from Williams, who has spent 18 years in prison on that charge.

A DNA expert testified just days ago that it was highly unlikely that Williams could have worn that shirt and not left his DNA on it. The rapist, it now seems, probably was another black man who looked enough like Williams that the white victim picked Williams' photo out of a book and said she thought he was the man. Even though Williams lacked the scar she said she saw on the rapist's belly, she stood by her identification and a jury convicted Williams.

Research shows that inter-racial misidentification by victims or witnesses is amazingly frequent, even more so than when both are the same race, which is also common. And there was never much else to go on in this case.

Last week a judge overturned Williams' conviction after ruling the DNA evidence would likely have made for a different verdict had the jury had it. And rightly so, given that the DNA facts make his guilt seem not just doubtful, but quite unlikely.

But Moreland and his team failed to admit that. Instead, they prepared to compound what looks like an 18-year injustice with an appeal that, no matter how baseless, would likely have kept the man in prison for months longer.

Moreland, according to Innocence Project director Seth Miller, was set to become the first prosecutor to appeal such a clear-cut, DNA based ruling.

Byrd, who had donated his time to help the Innocence Project present the DNA evidence, and dozens of other defense lawyers who were not involved in the case at all, planned to show up in court today to protest that appeal. But I'm happy to report it was not necessary because whatever made prosecutors lose their good sense — and all sense of fairness — the embarrassing publicity seems to have led them to rethink it.

On Friday afternoon, Moreland returned my call and told me the appeal decision had been too hastily made.

"We were premature," he admitted, and he added that he was reconsidering because he could see no basis for filing it.

Sanity prevailed Monday when Moreland announced that not only would no appeal be filed, but that he also would drop all charges.

The decision shouldn't have been so hard.

Tom Lyons can be contacted at tom.lyons@heraldtribune.com or (941) 361-49

A Victim of Injustice: The Story of Leslie Vass and His Wrongful Conviction

The UDC-David A. Clarke School of Law, Innocence Project Student Association (IPSA) Hosts a Reception to Honor a Maryland Exoneree, Leslie Vass

When: Monday, April 18, 2011
Where: UDC-David A. Clarke, School of Law, Windows Lounge, Bldg 38, 2nd Floor
4200 Connecticut Ave., N.W., Washington, DC 20008
Time: 6PM - 9PM
Cost: Free Admission, Donations Appreciated
Wine & Hors d’oeuvres will be served

A Compelling story of how eyewitness misidentification led to Leslie Vass’ Wrongful Conviction

Keynote Speaker, Leslie Vass, Maryland Exoneree
Special Guests: D.C. Councilmember At-Large, Phil Mendelson, Judiciary Committee Chairman Dean Shelley Broderick, UDC-DCSL, Professor Andrew Ferguson, UDC-DCSL, IPSA Faculty Advisor

Please rsvp by Thursday, April 14, 2011, at: preventing.injustice@gmail.com

Limited Seating!!

Georgia and the U.S. Supreme Court: Tinkering With the Machinery of Death

The following opinion was distributed by King Features.

Mar 29, 2011

By Amy Goodman

On March 28, the Supreme Court refused to hear the death penalty case of Troy Anthony Davis. It was his last appeal. Davis has been on Georgia’s death row for close to 20 years after being convicted of shooting to death off-duty police officer Mark MacPhail in Savannah. Since his conviction, seven of the nine non-police witnesses have recanted their testimony, alleging police coercion and intimidation in obtaining the testimony. Despite the doubt surrounding his case, Troy Anthony Davis could be put to death within weeks.

Davis is now at the mercy of the Georgia State Board of Pardons and Parole, which could commute his sentence to life without parole. It will be a tough fight, despite widespread national and international support for clemency from figures such as Pope Benedict XVI, Archbishop Desmond Tutu and former President Jimmy Carter.

Davis’ sister, Martina Correia, has tirelessly campaigned for justice for her brother. In response to the Supreme Court decision, she told me: “We were really shocked and appalled yesterday when we received the news ... no one wants to look at the actual innocence, and no one wants to look at the witness recantation as a real strong and viable part of this case, even though new witnesses have come forward. There needs to be a global mobilization about Troy’s case, and the fact that in the United States it’s not unconstitutional to execute an innocent person needs to be addressed once and for all by the U.S. Supreme Court.”

Correia brings up a significant but little-known fact about death penalty law in the U.S., namely, that current court precedent allows the execution of innocent people. Remarkably, the Supreme Court, in a 1993 opinion, suggested that “actual innocence” is not a sufficient cause to be let free. The court only cares if the legal rules are followed, while acknowledging that innocent people could still be convicted and put to death. In such cases, a prisoner could appeal for executive clemency. It seems the court has not yet learned what many states have, that the death penalty system is broken beyond repair.

Illinois recently became the 16th state in the U.S. to outlaw the death penalty. Gov. Pat Quinn, after signing the bill into law, said, “I have concluded that our system of imposing the death penalty is inherently flawed ... it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.” He follows an earlier Illinois governor, Republican George Ryan, who commuted the death sentences of 120 death row prisoners in that state.

Both Illinois governors bring to mind former Supreme Court Justice Harry A. Blackmun, who wrote, in a dissenting opinion in 1994 after the court denied yet another death row inmate’s last appeal, “From this day forward, I no longer shall tinker with the machinery of death.”

Tinkering with the machinery of death is just what some states seem to be doing. Thiopental is one of the three drugs used in the lethal “cocktail” administered in most executions in this country. Hospira, the last U.S.-based company to make sodium thiopental, quit making the controlled drug, creating a national shortage. States began scrambling to keep their death chambers well-stocked. When California borrowed a similar drug from Arizona, California Undersecretary of Corrections and Rehabilitation Scott Kernan wrote in an email, “You guys in AZ are life savers ...”

Georgia, it turns out, seems to have illegally imported its supply from a dubious, London-based company called Dream Pharma Ltd., run by a husband and wife out of a rented space in the back of a driving school. Georgia is not currently licensed by the Drug Enforcement Administration to import controlled substances, so the DEA recently confiscated the state’s thiopental supply. Pending an investigation, Georgia will not have this key ingredient and will not be able to execute Davis or any other death row inmate.

On the same day that the Supreme Court denied Davis’ appeal, Amnesty International issued its annual report on the death penalty. The United States remains among the world’s leading executioners, along with China, Iran, Saudi Arabia, Yemen and North Korea.

In addition to leading the fight for her brother, Martina Correia has been fighting for her own life. The day of the court decision was the 10th anniversary of her ongoing battle against breast cancer. Her face adorns the mobile mammography van that helps save the lives of poor women in Savannah. The National Breast Cancer Coalition named her and former House Speaker Nancy Pelosi “Women Who Get It Right.” Correia, with customary humility, feels she won’t have earned the title until her brother’s life is saved as well.

Denis Moynihan contributed research to this column.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 900 stations in North America. She is the author of “Breaking the Sound Barrier,” recently released in paperback and now a New York Times best-seller.

Prosecutors Get a Mulligan, Wrongfully Convicted Man Gets Squat

The following opinion was published in The Atlantic on March 30, 2011.

By Andrew Cohen

United States Supreme Court Justice Clarence Thomas wrote his first majority opinion of the Term Tuesday and, naturally enough, it was a 5-4 decision against the interests of a criminal defendant whose constitutional rights had been dramatically violated by prosecutors. To mark the occasion, Justice Ruth Bader Ginsburg read her dissent aloud in court (also a first for the Term) and Justice Antonin Scalia, Justice Ginsburg's well-chronicled BFF, took a few shots at her in an otherwise needless concurrence joined by Justice Samuel Alito.

All of this, mind you, occurred before the justices heard oral argument in Walmart v. Dukes, the massive class-action case which garnered sweeping attention at the courthouse Tuesday morning. No wonder the justices seemed so grumpy when the plaintiffs' lawyers started making their discrimination case (or maybe it was just the traffic ticket Justice Scalia's got coming in for work Tuesday morning). And no wonder the Court's striking ruling in Connick v. Thompson was left largely underreported.

Still, it's not every day that the Court so brazenly overrules a jury verdict in the name of protecting state prosecutors (and the political entities which employ them) from the consequences of sustained official misconduct. And it's been quite some time since the Court's conservative majority reached out in such a fashion to snatch form from the jaws of substance. In these circumstances, it's no surprise that Justice Ginsburg blew her stack or that Justices Thomas, Scalia and Alito reacted so defensively to her objections.

Here's the story. Convicted of murder, and on Louisiana's death row for 14 years, John Thompson was just one month away from being executed when defense investigators discovered exculpatory evidence that prosecutors had failed to share with Thompson's lawyers in the two cases (one for armed robbery, one for murder) which led him to death row. The evidence hidden by the state were blood samples -- not from Thompson's blood -- found at the scene of the robbery.

Confronted with the new evidence, an appeals court quickly reversed both of Thompson's convictions. Undaunted, prosecutors tried Thompson again for murder. This time, Thompson was acquitted. He then sued the district attorneys. Thompson alleged that prosecutors had intentionally caused him to be wrongfully imprisoned for a total of 18 years. He argued that the DA's office unconstitutionally handled exculpatory evidence -- or at least that lead prosecutors inadequately trained their office staff to handle such evidence.

Prosecutors conceded before Thompson's civil trial that they had violated the Brady rule, the constitutional standard designed to ensure that government officials don't hide exculpatory evidence in criminal cases. But they argued that it was an isolated incident and thus could not generate a viable damage award. The jury disagreed. It awarded Thompson $14 million -- one million for each year the man had wrongly spent on death row, you could say. The district attorney, Harry F. Connick (yes, the famous singer's father) appealed.

Justice Thomas and the Court's four other conservative justices bent over backward Tuesday to help him out. They overturned the jury's verdict, and the trial judge's ruling, and declared that one Brady violation alone was not enough proof to establish a viable claim against the government. It wasn't the District Attorney's fault for failing to teach prosecutors about the contours of the Brady rule, Justice Thomas justified, because individual attorneys have their own ethical obligations and should have known better themselves. He wrote:

The District Court should have granted Connick judgment as a matter of law on the failure-to-train claim because Thompson did not prove a pattern of similar violations that would "establish that the 'policy of inaction' [was] the functional equivalent of a decision by the city itself to violate the Constitution." (citations omitted)

You got that? Thompson failed because he did not sufficiently show that his prosecutors had similarly ruined the lives of other criminal defendants. And just because prosecutors admitted that they had "violated the Constitution" under Brady didn't mean they had "violated the Constitution" for purposes of a civil lawsuit. Under this warped rationale, the law's obligations to Thompson essentially ended when the appeals courts reversed his convictions. The 18 years of wrongful imprisonment? Not our problem, Justice Thomas wrote:

The role of a prosecutor is to see that justice is done. "It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." By their own admission, the prosecutors who tried Thompson's armed robbery case failed to carry out that responsibility. But the only issue before us is whether Connick, as the policymaker for the district attorney's office, was deliberately indifferent to the need to train the attorneys under his authority.

In dissent, Justice Ginsburg tore into this reasoning. She wrote:

The Court holds that the Orleans Parish District Attorney's Office... cannot be held liable... for the grave injustice Thompson suffered. That is so, the Court tells us, because Thompson has shown only an aberrant Brady violation, not a routine practice of giving short shrift to Brady's requirements. The evidence presented to the jury that awarded compensation to Thompson, however, points distinctly away from the Court's assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.

From the top down, the evidence showed, members of the District Attorney's Office, including the District Attorney himself, misperceived Brady's compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors' conduct relating to Thompson's trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney's Office.

What happened here, the Court's opinion obscures, was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility under §1983." (citations omitted)

Prosecutors clearly cheated, Justice Ginsburg reasoned, and Thompson paid a terrible price for such cheating. As the jury had duly concluded, Louisiana should have been required to compensate him for his trouble. The Court's three other liberal members -- Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan agreed. But Justice Scalia was unwilling to let his pal Ginsburg's dissent go unanswered (beyond that which Justice Thomas had already answered it, in depth, in footnote 5 of the majority opinion). Justice Scalia wrote:

The dissent's lengthy excavation of the trial record is a puzzling exertion. The question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors, even though no pattern or practice of prior violations put the municipality on notice of a need for specific training that would have prevented it. The dissent defers consideration of this question until page 23 of its opinion.

It first devotes considerable space to allegations that Connick's prosecutors misunderstood Brady when asked about it at trial, and to supposed gaps in the Brady guidance provided by Connick's office to prosecutors, including deficiencies (unrelated to the specific Brady violation at issue in this case) in a policy manual published by Connick's office three years after Thompson's trial. None of that is relevant. Thompson's failure-to-train theory at trial was not based on a pervasive culture of indifference to Brady, but rather on the inevitability of mistakes over enough iterations of criminal trials. (citations omitted)

This, indeed, was a bitterly-fought case. And it's ultimately a decision from the Court's majority that reveals outright hostility to the rights of the wrongfully convicted to adequately redress their conceded grievances. You would think such redress would be the least the law could do for men like Thompson.

Courts should consider DNA evidence whenever it is available

The following opinion by Spero Lappas was published by the Harrisburg, PA Patriot News on March 16, 2011.

On Oct. 19, 1991, police officers discovered the body of an elderly Philadelphia woman named Louise Talley. She had been brutally beaten, raped and stabbed to death in her own home. It was a terrible crime and the police immediately mounted a massive investigation that included the collection of physical and forensic evidence and the interviews of dozens of witnesses.

Quickly, their attention focused on 20-year-old Anthony Wright. He was reported to have been spending time at a nearby crack house, other residents placed him at the scene of Mrs. Talley’s murder, and there was physical evidence that connected him to the crime. The next day, detectives took Wright to the police station where, they later testified, he gave them a long and detailed written confession in which he told them how he killed Mrs. Talley and why.

Wright’s statement was nine pages long, typewritten and signed. When he came to trial, he tried to convince a judge that his confession should not be used against him. He lost. He testified that the police had forced him to confess, but no one believed him. He swore that he was innocent of the murder, but he was convicted anyway. The appeals courts upheld his conviction and when he later claimed that he deserved a new trial because his lawyers had been ineffective the judges disagreed. In 1993, he was sentenced to life. Case closed.

But in 2005, Wright filed a request under the state’s new Post Conviction DNA Testing Act. This law gives convicts the right to ask that crime scene evidence be tested for DNA if they can persuade a judge that a favorable test result will prove them innocent. There was crime scene DNA at Talley’s house and Wright’s new lawyers said it would free him from a wrongful conviction.
How can that be, asked the courts. He admitted he did it, he voluntarily confessed, what more do we need to know? Wright would not get the DNA test he asked for. The murder of Louise Talley shines a light on one of the most difficult questions in criminal law: How should we reconcile the traditional tools of the courtroom — eyewitnesses, confessions and the like — with the power of new technologies that promise to tell the truth with absolute certainty?

For centuries, criminals have been sent to prison and to their deaths based upon the words they speak. It has been conventional wisdom that confessions are trustworthy and conclusive proof of guilt: Who would confess to murder if he didn’t really do it?

Lately, however, psychological scientists have proved that false confessions account for about 25 percent of wrongful convictions. Saul Kassin, the eminent researcher at the John Jay School of Criminal Justice, has written that suspects often falsely confess to end stressful interrogations, to protect the actual perpetrator or out of a pathological need for notoriety. No matter what the cause, it is now undisputed that sometimes when a suspect says “I did it,” we shouldn’t believe him.

On Feb. 19, the Pennsylvania Supreme Court accepted this scientific truth and sent Anthony Wright’s case back to court. We need not be reminded, the justices ruled, of the countless situations where persons confess to crimes of which they are innocent, out of desire to cover up for the guilty person or because of a psychological urge.

The Innocence Project reports that at least 10 Pennsylvanians have been freed from prison after DNA testing proved their innocence. Some of them such as Wright had confessed. There are simple and available tools that can minimize the risk of a false confession leading to a false conviction. Police interrogations can be recorded or videotaped, and jurors and judges can be better educated on the research. The Supreme Court has taken a key step toward assuring that the search for the truth will trump legal technicalities that can sometimes get in its way.
Maybe Anthony Wright killed Louise Talley, and maybe he didn’t. Maybe DNA will free him, and maybe it will confirm his guilt. Either way, it’s a good idea to find out.

Spero Lappas practices criminal defense and constitutional law in Dauphin County, PA.

Is convicted murderer innocent?

by Mike Nichols

The following opinion was originally published by the Wausau Daily Herald on March 4, 2011.


If Terry Vollbrecht really did murder Angela Hackl in the woods just outside Sauk City almost 24 years ago -- something prosecutors wrongly opposing a new trial continue to insist he did -- it's surely one of the most incredible coincidences in the history of Wisconsin crime annals.

Hackl was only 18 when she was killed. Last seen leaving Hondo's Bar with Vollbrecht early on the morning of June 12, 1987, her body, partly naked and shot in the back, was later found hanging at the base of a tree with a chain looped around the neck and brush piled all around.

"If you put a match to that," a prosecutor at Vollbrecht's trial said, "you would have a human sacrifice."

It was a uniquely grotesque killing in an area that can go years without a single homicide -- but not the last of its kind. Just six weeks later, Linda Nachreiner was killed in another rural, wooded spot about 30 miles away. The woman in her late 20s had been shot from behind and, although her body was found on the ground, her killer later said that he had chained her to a tree by her neck.

That killer, by the way, was not Terry Vollbrecht.

It was Kim Brown -- a deeply disturbed Oxford resident who liked to read pornographic books with titles like "History of Torture"and "Chained & Raped Wife." He also, according to two men who served time with him, said he talked about chaining women up and lighting them on fire. Two others who knew him in prison allege he also admitted killing Hackl, and one of those has said Brown intended to set her on fire but didn't because his lighter wouldn't work.

Steven Bauer, a former prosecutor who is now a judge, spent a year pondering things after the Hackl case was investigated by the Wisconsin Innocence Project. Because many of the details were not known when Vollbrecht was first tried, Bauer ordered a new trial recently.

Vollbrecht, as a result, was released from his cell the other day on a $425,000 bond put up by a sympathetic Prairie du Sac businessman, Curt Mueller. Prosecutors from the Wisconsin Attorney General's office, who want to lock him back up without further ado, are appealing Bauer's ruling and arguing that another trial is not necessary.

It is.

Vollbrecht is not a clearly innocent man. He has admitted having sex with Hackl that June night out by the Wisconsin River far from where her body was eventually found, and says it was consensual. His story is that after that she dropped him off back near his own car in Sauk City around 3:30 a.m., he tried to walk home because he'd lost his car keys. He was seen in the general vicinity of where Hackl's body was found -- although there is no evidence putting either him or Brown at the murder scene. If Brown did do it, moreover, he would have to have somehow come upon her and killed her without being seen in a pretty narrow window of time. Brown, who is incarcerated at Redgranite Correctional Institution and eligible for parole in 2031, denies having anything to do with it.

Still, the man's proclivities -- and the similarities between two murders just six weeks apart -- should nag at any conscience.

Bauer thinks a new trial would be a toss-up, but also points out that newly discovered evidence about Brown undermines confidence in the original verdict.

In the end, only a fresh set of jurors can determine what to believe in -- an awful and incredible coincidence or a guy who has already served over 20 years of a life sentence. Vollbrecht, who will turn 50 this summer, deserves another chance to argue that he shouldn't be sent back for twenty or thirty or forty more.

Mike Nichols is a syndicated columnist, author and senior fellow at the Wisconsin Policy Research Institute. Views expressed in this column are his own. E-mail Nichols at MRNichols@wi.rr.com.

The Arlin M. Adams Interview

By James Scanlan, Esq.

My Truth in Justice editorials of February 22, 2011 (“Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams”) and March 10, 2010 (“Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material”) present an unflattering picture of Judge Arlin M. Adams as Independent Counsel investigating abuses of HUD housing programs. Such picture shows Adams fabricating charges against Deborah Gore Dean at least partly to get even with the late former Attorney General John N. Mitchell (a person Dean regarded as a stepfather) because in 1971 Mitchell caused President Richard M. Nixon to break a promise to appoint Adams to the Supreme Court. In doing so, Adams also fabricated (posthumous) charges against Mitchell. In refusing to recuse himself from matters involving Mitchell, Adams stated in a June 23, 1992 letter to Dean’s counsel: “To the extent that the ongoing investigation involves Ms. Dean’s family and John Mitchell, it does so solely because Ms. Dean chose to involve John Mitchell in the conduct of her official duties at HUD.” Assuming the validity of my interpretation of the conduct of Adams and his subordinates in the prosecution of U.S. v. Dean, the statement reflects a hypocrisy of epic dimension.

In the February 22 item, I observed that Adams is one of the most revered former jurists in the country. One may get some understanding of why that is so by reading a July 1, 1999 interview of Adams conducted by Sarah Barringer Gordon, a former law clerk to Adams who is today the Arlin M. Adams Professor of Constitutional Law at the University of Pennsylvania Law School. The just over 9300-word interview, part of a Penn Law oral history project, traces Adams life from his growing up in the depression, through his naval service in World War II and his time at Penn Law School before and after the war, followed by a career in Pennsylvania government, national politics, and the law, including distinguished service on the U.S. Court of Appeals for the Third Circuit from 1969 to 1987. It is an interesting historical document and worth reading for reasons unrelated to my criticisms of Adams.

But a few of Adams’ observations in the interview warrant discussion for their bearing on my interpretation of his character and conduct.

A. Paragraphs 58, 60, 74, 82 – the Promise of the Supreme Court Appointment

In paragraphs 58 and 60 (as numbered in this version of the interview) Adams discusses his becoming associated with Richard Nixon and the events leading to Adams’ appointment to the Third Circuit. The discussion is interesting solely from an historical perspective. But it also suggests the circumstances that might have led to Nixon’s promising Adams an appointment to the Supreme Court, probably in conjunction with the offering of Adams a position on the Third Circuit. In paragraph 74 Adams then discusses his initial hiring of law clerks after the 1969 appointment to the Third Circuit, noting that he was able get good candidates because even then “there was some feeling … that I was going to be on the short list for the Supreme Court.”

Adams mentions Attorney General John N. Mitchell only briefly (in paragraph 60), and not by name. In the course of describing a visit by Mitchell to press Adams to decide about the Third Circuit appointment, Adams quotes Mitchell as stating that “[the President] has something in mind for you.” The reference suggests that it may have been Mitchell who communicated Nixon’s promise to appoint Adams to the Supreme Court after a brief tenure on the Third Circuit. Whether or not that was the case, however, the discussion in the three referenced paragraphs provides ample reason why Adams might resent that Mitchell caused Nixon to fail to follow through with the high court appointment.

In paragraph 82, Adams notes that “[t]here had been two or three times when I had been seriously considered for the Supreme Court.” In what seems to be an explanation that he retired from the Third Circuit because he realized he was not going to be on the Supreme Court, Adams makes no mention of Mitchell’s role in causing him not be appointed to the Court in 1971 (as Adams had done in 1990 USA Today article upon his appointment as Independent Counsel). In context, there is no particular reason for him to address the matter. But the discussion adds to the impression that the Third Circuit had been viewed by Adams as but a temporary assignment on the road to the Supreme Court.

B. Paragraph 96 – Independent Counsels and Fiscal Abuses

In paragraphs 94 and 96 Adams discusses his own tenure as Independent Counsel and the independent counsel law generally. In the latter paragraph, Adams observes that an independent counsel’s tenure should be limited to perhaps a year, unless the independent counsel secures an extension from the court. Adams mentions nothing about the possibility for abuse of the exceptional powers granted an independent counsel, or the tendency for independent counsels in fact to abuse those powers such as Judge Thomas F. Hogan noted in a February 14, 1994 hearing (at 27) in finding that in U.S. v. Dean Adams’ attorneys had shown “at least a zealousness that is not worthy of prosecutors in the federal government or Justice Department standards ….” But in observing that the process was too “open-ended,” Adams adds: “The expenditures of money was too open-ended. There were no restraints built into the system.”

In making this observation, Adams may have been thinking of the investigation by Independent Counsel David M. Barrett that started out as a simple inquiry into whether Henry Cisneros lied about payments to his mistress during a background check for an appointment as Secretary of HUD, but that, at the time of the Adams interview, was beginning its fifth year. While Adams could not then have foreseen that Barrett’s investigation would eventually run over ten years and spend close to $23 million, there was reason for Adams to be acutely aware of the Barrett investigation. See my March 8, 2011 Truth in Justice editorial styled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett” (especially its Addendum 1) regarding reasons why, whatever caused Adams to fail to include Barrett in the case Adams brought against Thomas T. Demery, Adams should have informed the appointing panel of Barrett’s unsuitability to serve as an independent counsel.

But Adams may also have had in mind some fiscal issues in his own investigation, which cost $27.6 million, the second highest independent counsel expenditure at the time of the interview. Considering the matter in 1999, Adams would probably have deemed it unnecessary that his office devoted investigative resources to identifying persons Deborah Gore Dean was believed to have slept with in order to display the results of such investigation for the amusement of the office. See Section B.9 of the Prosecutorial Misconduct page (PMP) and the Paula A. Sweeney profile. Adams may also have been thinking of the fiscal abuses brought to his attention by the document manager discussed in Section B.9 in a meeting on November 8, 1993. As discussed in the document manager’s November 17, 1993 complaint to the Office of Special Counsel, these included, inter alia: (a) that Jo Ann Harris (the subject of the March 3, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris”) steered a lucrative handwriting analysis contract in the Dean case to a friend rather than employ the FBI at no cost to the office; (b) that Bruce C. Swartz unnecessarily retained his former law firm as an outside consultant; and (c) that FBI agents and members of the Independent Counsel staff used government-leased vehicles for personal reasons including commuting to work. See also the document manager’s FBI letter, which discusses the leasing of cars from a private company at higher expense than from the General Services Administration precisely to facilitate personal use of the vehicles, as well as the falsifying of a document regarding an accident while a vehicle was so used.

As discussed in the November 17, 1993 complaint, on November 16, 1993, Adams advised the document manager that Adams was satisfied that the matters could be explained away. But Adams also advised the document manager that, supposedly due to the need to make staffing cuts, he was terminating the document manager. Notwithstanding the manner in which Adams dealt with the matter in November 1993, the evident fiscal abuses brought to his attention by the document manager or that otherwise came to his attention may still have been on Adams’ mind. With respect to other fiscal abuses, see the document manager materials suggested as further readings below.

C. Paragraph 94 – the Appointment of Adams’ Successor and the Resolution of U.S. v. Dean

More pertinent to issues addressed in the February 22, 2011 Truth in Justice item is paragraph 94, where Adams discusses his selection of Larry D. Thompson, who had been working with Adams since 1990, to take over as Independent Counsel in 1995. When one has engaged in conduct in a still pending case that includes the covering up of something that many would regard as the suborning of perjury (as discussed in Section B.1 of PMP and below) and has otherwise allowed his subordinates to repeatedly deceive the courts in responding to allegations of misconduct (as discussed in the Bruce C. Swartz profile and several Truth in Justice items), it is important to be succeeded by a hand-picked person, and ideally one who has already been involved in actions undertaken by the office. The last thing one wants in the circumstances is to turn the office over to some person not previously privy to questionable or unconscionable conduct within the office, who, for all one knows, may turn out to be a person of principle.

In a December 1996, Dean moved to overturn the one remaining part of the John Mitchell count – that involving the Arama project, which, as discussed in the March 10, 2011 item, is the matter where Adams’ attorneys most obviously fabricated a charge involving Mitchell. The evidence available to Independent Counsel attorneys before the charge was brought made it clear enough that the funding occurred as a result of Mitchell’s interaction with Lance H. Wilson, Dean’s predecessor as Executive Assistant to the Secretary of HUD. And, in support of her motion, Dean submitted an affidavit from Wilson confirming such fact. Inasmuch as Dean’s innocence of the charge was known to Adams’ attorneys before it was brought, there is little reason to think that Adams would regard the matter differently as a result of the Wilson affidavit. In any case, whether Thompson consulted with Adams or not, Thompson opposed the motion, and did so successfully on the grounds that Wilson’s testimony was not newly-discovered evidence.

Further, In February 1997 Dean moved to dismiss the entire indictment or a new trial on grounds that (a) additional evidence of misconduct had been discovered since the court ruled on her 1993 misconduct motion (including some matters addressed in the March 10, 2011 Truth in Justice item just mentioned); (b) Independent Counsel attorneys had deceived the courts in responding to her 1993 misconduct motion; and (c) there was diminished evidence of guilt because the court of appeals had overturned the verdicts on all or parts of a number of substantive counts. Given that trial Judge Thomas F. Hogan had seemed very close to overturning the verdict based solely on prosecutorial abuses identified in 1993, the motion was by no means frivolous. Thompson opposed this motion too. And, in seeking to strike it rather than respond to it, Thompson represented to the court that there had been no Independent Counsel efforts to deceive the court in responding to the 1993 motion. For reasons reflected in the Bruce C. Swartz profile and throughout Section B of PMP, the representation was patently false. But, from Adams’ perspective, Larry D. Thompson proved to be an excellent choice.

In paragraph 94 Adams also states, apparently in reference to the way that it took longer than expected for Thompson to wrap up the investigation: “Unfortunately it took a long time, and one of the reasons is that there were a few other cases that were on appeal and the Appellate Court was taking a great deal of time with them.” The statement suggests that the investigation was over at the time of Adams July 1999 interview. This was true in the sense that the Adams/Thompson final report had been issued and the office was closed or closing. But the matter was by no means over as to Adams’ most important case. Still pending in the district court were Dean’s February 1997 motion to overturn the entire verdict and a request to reconsider the denial of her motion to overturn the conviction as to the remainder of the John Mitchell count. Further, as a result of the court of appeals ruling, unless Dean could overturn the entire verdict, she still had to be resentenced.

Adams had taken a particular interest in Dean’s sentence. Section B.1 of PMP and several Truth in Justice items discuss that Bruce C. Swartz and Robert E. O'Neill attorneys pressured Supervisory Special Agent Alvin R. Cain, Jr. into giving misleading testimony that would appear to categorically contradict Dean’s testimony about calling Cain in April 1989 when a HUD IG report was issued showing that John Mitchell had earned a HUD consultant fee. The idea was that, even though Dean had called Cain just as she said, Cain’s seeming denial of any recollection of the call would be literally true because it technically applied to the date the report was issued internally at HUD rather than the day it was released to the public. O’Neill then placed great weight on Cain’s testimony in provocatively attacking Dean’s credibility in closing argument. In post-trial proceedings, as part of an aggressive strategy to cover up Independent Counsel actions regarding Cain, Adams himself requested the probation office to recommend that the court increase Dean’s sentence by six months for lying about the call to Cain. In doing so, by letter of January 18, 1994, notwithstanding that the rationale that had underlain Cain’s testimony was that Dean merely had not called Cain on or about the date the report was published internally at HUD, Adams specifically represented to the probation officer (at 8) that “Agent Cain testified on rebuttal that to his recollection this conversation never occurred.” Whether or not I am correct that Adams’ effort to deceive the probation officer was part of a conspiracy to obstruct justice (undertaken with Independent Counsel attorneys Bruce. C. Swartz, Robert J. Meyer, and Claudia J. Flynn), it was a heinous act.

Adams succeeded in persuading the probation officer to recommend an increase in Dean’s sentencing level for lying about the call. But Judge Thomas F. Hogan evidently believed Dean had testified truthfully. So he declined to follow the probation officer’s recommendation.

(As discussed in the February 22, 2011 Truth in Justice item, however, Hogan refused to order the discovery that was likely to reveal the truth about the Cain testimony, and such refusal may have involved Hogan’s deference to a person of Judge Adams’ stature. An irony of such deference is that the more egregious the conduct, the less an inclined a deferential court will be to bring it to light.)

But Adams remained interested enough in the sentencing to argue the matter himself at the sentencing hearing of February 25, 1994 (at 11-12). As part of an argument that Dean should be sentenced at the higher end of the Sentencing Guidelines range, Adams stressed that the criminal justice system should not be perceived as favoring affluent defendants who could hire good lawyers, contrasting Dean with “a young minority representative who goes into a liquor store and steals a couple of bottles of liquor.” Given that Independent Counsel attorneys had employed so many tactics to overwhelm Dean’s single attorney and to take advantage of the racial and background differences between the jury and the defendant (as best summarized in Part V of the DC Bar Counsel materials) – leave aside that Adams’ attorneys would never have taken the chance of using Agent Cain in the manner they did but for the belief that an apparently categorical contradiction of the defendant by a black agent would have great impact on an all black jury – Adams’ making of this argument suggests a smallness of character of striking contrast to the impression created by the July 1999 interview.

In any event, observing that race had nothing to do with the matter, Judge Hogan instead chose the low end of the range, imposing a 21-month prison sentence, and allowing bond pending appeal. Then, on the basis of a ruling on a sentencing guidelines issue and the fact that it had overturned the verdict on all or part of a number of the counts on which Dean was convicted, the court of appeals had ordered that Dean be resentenced.

While Dean’s 1997 motions were still pending, in approximately July 1999, the case was transferred to the Department of Justice. It also refused to respond to Dean’s pending motions. Justice still had not done so in November 2001, when it reached an agreement whereby Dean agreed to withdraw all pending motions and make no further direct or collateral attacks on her conviction. In return, Justice recommended that Dean be sentenced to a term of probation that included six months of home detention, agreeing also to take no position as to the terms of the home detention. Dean was then sentenced to three years of probation including six months of home detention under terms that allowed her to go to work during the period of home detention.
Only then had what Robert E. O’Neill would describe as Independent Counsel Arlin M. Adams’ “showcase trial” come to a close.

Further Reading

For further reading, I recommend the document manager’s November 17, 1993 complaint to the Office of Special Counsel and FBI letter already mentioned, as well as his November 15, 1996 letter to the Office of Professional Responsibility, his May 15, 1997 Clarification to the Merit Systems Protection Board, and his Miscellany document. The document manager, incidentally, is the person who in a December 1997 telephone call told me that all he knew about Agent Cain’s role in the Dean case is that Cain was someone who thought of himself as highly principled; that he had to be taken into a room by Robert E. O’Neill and Bruce C. Swartz on some number of occasions to be persuaded to provide testimony that he was very reluctant to give; and that there was considerable celebration in the offices of the Independent Counsel when the manner in which Cain had been coached was not revealed on the witness stand. That was the missing piece of the puzzle I had been trying to solve since December 1994, when Associate Deputy Attorney General David Margolis first suggested to me that, even though Dean had testified truthfully about her conversation with Cain, Cain’s testimony that seemed to contradict Dean might have been elicited on the basis that it was also literally true. See the concluding paragraphs of Addendum 3 to the Swartz profile regarding the feigned indignation of Independent Counsel attorneys at accusations against “a career government employee.”

The document manager’s accounts provide an interesting piece of history and not only as the tragic story of what can befall a straightforward person, who is proud to be part of the government and just wants to do a good job, when he happens into the wrong environment. Particularly if read in conjunction with the materials on my Prosecutorial Misconduct and Misconduct Profiles pages, those accounts also illustrate, not how extraordinary power can sometimes be exercised corruptly, but how it can sometimes run amok. All under the guidance of an eminent jurist whom his brethren would assure: “No one has better carried out the role of independent counsel than you.”

Criminal Division Deputy Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material

by James Scanlan, Esq.

“I must say that, everything in the record belies any suggestion that the government had an interest in hiding information here. The government exceeded, in almost every area, its statutory obligation in terms of turning over materials.”

These words were spoken on November 15, 1994, by then Deputy Independent Counsel Bruce C. Swartz in defending prosecutor conduct in U.S. v. Dean before the United States Court of Appeals for the District of Columbia Circuit. Swartz currently is the Deputy Assistant Attorney General who deals with representatives of foreign nations on international criminal justice and counter-terrorism issues. He is discussed in my February 6, 2011 Truth in Justice editorial styled “Bruce Swartz – Our Man Abroad” with respect to the fact that, by putting Swartz forward to represent the Department of Justice before foreign nations, the Department has impliedly assured those nations that Swartz is a person of integrity.

Swartz’s interaction with foreign nations presumably includes dealing with extradition issues and, when necessary, assuring those nations that an extradited person will receive a fair trial in the United States. Swartz was in fact visibly involved with the United States’ decision to extradite Roman Polanski from Switzerland. The Los Angeles Times reported that Swartz held a meeting with Polanski’s attorneys where they presented arguments that because of prosecutorial and judicial misconduct in the Polanski prosecution, the United States should not seek Polanski’s extradition. The United States nevertheless went forward to request that Switzerland extradite Polanski. Switzerland, however, refused. According to the New York Times, the refusal in part rested on the United States' failure “to provide the records of a January [2010] hearing in Los Angeles County Superior Court that would have shown the judge in charge of the Polanski case in 1977 agreed that ‘the 42 days of detention spent by Roman Polanski in the psychiatric unit of a Californian prison represented the whole term of imprisonment he was condemned to.’”

Swartz is also the subject of the Bruce C. Swartz profile on jpscanlan.com. That item discusses the various ways Swartz endeavored to deceive the courts in covering up his own conduct and the conduct of those under his supervision in the Dean case. It also discusses my efforts to cause Swartz to be removed from his position in the Department of Justice because his conduct in the Dean case indicates he is unfit to represent the United States. And it discusses the Department’s refusal to examine such conduct, not on the basis that my allegations lack merit, but on the basis that, in its view, the matters in the Dean case suggesting or establishing that Swartz is untrustworthy were or could have been addressed in litigation.

In his statement in the court of appeals quoted above, Swartz was using the word “hiding” in a loose sense. There was no allegation that Independent Counsel attorneys actually hid anything. The allegation was rather that, notwithstanding an explicit instruction from the district court, Independent Counsel attorneys failed to segregate exculpatory material, instead leaving such material to be discovered or not discovered among hundreds of thousands of pages of discovery. The documents in question were two January 1984 telephone messages slips found in 1990 or 1991 in the files of former Attorney General John N. Mitchell, who had died in 1988. The message slips obviously pertained to Mitchell’s effort, commencing in January 1984, to secure HUD funding for a Dade County project called Arama. The Independent Counsel alleged that the defendant Deborah Gore Dean caused HUD to fund this project in order to benefit Mitchell, someone Dean regarded as a stepfather. But the message slips strongly suggested that the funding occurred because Mitchell contacted a person named Lance H. Wilson. Wilson, who was Dean’s predecessor as Executive Assistant to HUD Secretary Samuel R. Pierce, Jr., was a friend of Mitchell and was known to have helped Mitchell on other matters. And Wilson had evidently told Mitchell that he (Wilson) was talking to Assistant Secretary for Housing Maurice Barksdale about the matter and would keep Mitchell advised. The funding, which HUD records show to have been in the pipeline for several months, was authorized by Barksdale In July 1984, shortly after Wilson left HUD and was replaced as Executive Assistant by Dean.

After several times cryptically suggesting reasons why Independent Counsel attorneys did not regard the message slips as exculpatory and in fact regarded them as incriminating, in oral argument in the court of appeals, Swartz stated: “The government’s position is, far from being exculpatory, these notes showed that Barksdale was being contacted by the executive assistant.” Since the executive assistant was one other than the defendant, the point seemed lost on the court of appeals. In any case, that the court of appeals went on to “deplore” the failure to segregate the message slips as exculpatory material indicates that it did not believe Swartz’s representation. See Addendum 7 to the Swartz profile.

That statement by the court of appeals is one of the things that led the Office of Bar Counsel for the District of Columbia Bar to investigate Swartz, trial counsel Robert E. O’Neill, and other Independent Counsel attorneys for their conduct in the Dean case. This is the investigation that O’Neill, now U.S. Attorney for the Middle District of Florida, lied about on his application for that position, as discussed, for example, in my September 26, 2010 Truth in Justice editorial styled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience.” In that proceeding, as discussed in Addendum 7 to the Swartz profile, Swartz and O’Neill allowed an attorney to make the following representation on their behalf:

“[Respondents] wish to advise Bar Counsel that if they had noticed truly exculpatory documents within the production made in discovery, they would have specifically called the attention of defense counsel to those documents, rather than leaving the defense to discover then on its own.”

If not already evident, the falseness of that representation, even solely as to the message slips, is made clear beyond any doubt in Sections B.3 and B.3a of the Prosecutorial Misconduct page (PMP) on jpscanlan.com. Those sections also make clear that, whatever may be said about any other matter in U.S. v. Dean, Independent Counsel attorneys – including Jo Ann Harris who would soon be the Assistant Attorney General for the Criminal Division, as discussed in the March 3, 2011 Truth in Justice item styled “The Curtailed Tenure of Criminal Division Assistant Attorney General Jo Ann Harris” – calculatedly undertook to frame the defendant as to the Arama funding (posthumously framing former Attorney General John Mitchell in the process). Possibly this was done at least partly because John Mitchell caused Richard Nixon to break his promise to appoint Arlin M. Adams to the Supreme Court. See the February 22, 2011 Truth in Justice item styled “Unquestionable Integrity versus Unexamined Integrity: The Case of Judge Arlin M. Adams.” Possibly it was done because this and other meritless charges involving Mitchell were deemed important to establishing other charges that Independent Counsel attorneys may or may not have believed in. See Addendum 2 to the Swartz profile regarding Swartz’s false representation to the court of appeals as to whether the prosecution made a point of the fact that Mitchell was a former Attorney General. But, whatever may have been the reason, few rational people would say it was not done.

The principal point of this item, however, involves the actual hiding of exculpatory material, which, as noted, was not an issue when Swartz used the word “hiding” in the court of appeals. It is probably too late to determine whether the Mitchell message slips were in some manner hidden when Independent Counsel attorneys provided discovery to the defense. Section B.3a of PMP discusses that Independent Counsel attorneys, not yet aware whether the items were found by the defendant, took some pains to obscure that the two items were missing from the materials from Mitchell’s files produced in a vastly overinclusive preliminary exhibit production. But, in any event, these items were discovered by the defense in time to use them in the trial and in post-trial motions. Other exculpatory documents now known to exist were not discovered even in time for the post-trial motions and one of them was obviously hidden.

Two documents concerned a project called Park Towers, a matter also involving John Mitchell, but one as to which, notwithstanding a substantial volume of false evidence, the court of appeals would find insufficient evidence to sustain a conviction. Section B of the Swartz profile discusses Swartz’s post-trial effort to excuse the Independent Counsel’s attempt to lead the jury to believe that a conspiratorial reference to “the contact at HUD” in a Park Towers document was a reference to Dean even though immunized witness Richard Shelby had told Independent Counsel attorneys that the reference was to a Deputy Assistant Secretary named Silvio DeBartolomeis. At a February 14, 1994 hearing (at 9-10), Swartz defended that conduct on the basis that other evidence – in particular, the supposed facts (a) that there were no documents reflecting Shelby’s contacts with DeBartolomeis and (b) that Dean was responsible for a post-allocation waiver on the project – provided the Independent Counsel a basis to believe, and hence to lead the jury to believe, that the reference to “the contact at HUD” was in fact a reference to Dean. But there existed at least two documents that both reflected Shelby’s contacts with DeBartolomeis and showed that it was DeBartolomeis who was responsible for the post-allocation waiver.

While these documents contradicted a number of things Independent Counsel attorneys intended to prove at trial, they were not made part of a Brady disclosure. I do not know whether they were in some manner hidden or not. But I do know that they were not found by the defense in time to use them at trial or in post-trial proceedings. Thus, Swartz was able, with impunity, to lead the court falsely to believe that supposed facts (a) and (b) above were the actual reasons Independent Counsel attorneys believed it permissible to lead the jury to believe that Dean was “the contact at HUD.”

There can be no doubt, however, that Independent Counsel attorneys attempted to hide at least one important exculpatory document, The document pertained to an individual named Andrew Sankin, for whose benefit Count Two of Dean’s indictment alleged that Dean cause HUD to take a number of inappropriate actions. District Court Judge Thomas F. Hogan’s most severe criticism of trial counsel Robert E. O’Neill concerned Sankin. Hogan excoriated O’Neill for failing to alert the court and the defense of Sankin’s off-the stand statement that some receipts O’Neill introduced into evidence as if they reflected meals or gifts Sankin bought for Dean in fact did not apply to her. As explained in Section A of the O’Neill profile, O’Neill saw no reason to bring the remark to the attention of the court or defense because O’Neill knew from the outset that certain of the receipts did not apply to Dean. Swartz’s efforts to deceive the court in defense of O’Neill’s actions are described in Section C of the Swartz profile.

Sankin was a childhood friend of Silvio DeBartolomeis, already mentioned, who was a Deputy Assistant Secretary or acting Assistant Secretary during the period when Dean was alleged to have caused HUD to take actions to benefit Sankin. Issues existed as to whether Dean or DeBartolomeis was responsible for certain of these actions.

One document that Sankin produced relating to these issues was a 1988 Harvard Business School application in which he responded to a question concerning the manner in which he dealt with an ethical dilemma. Noting that a childhood friend (DeBartolomeis) was a HUD official who had authority over an allocation Sankin was seeking, Sankin stated that, because of the relationship, it was “a fait accompli that my client’s request would be approved.” Sankin then noted that there could be an appearance of impropriety if his friend signed the documents authorizing the allocation and described an effort to secure Dean's support in order to avoid that appearance.

One might debate the implications of the discussion of the effort to secure Dean’s support. But the document was clearly enough Brady material both as to the particular allocation and as to all other matters where there existed an issue of whether Dean or DeBartolomeis was responsible for HUD actions benefitting Sankin. The document obviously had received specific attention from Independent Counsel attorneys, for transmission markings on it showed that it was faxed to the Independent Counsel on May 29, 1992, five days before Sankin testified before the grand jury. While presumably such faxing occurred as a result of discussion of Sankin with Independent Counsel attorneys shortly before the document was faxed, no record of any discussion with Sankin was provided for the period between May 14 and June 6, 1992, and no materials that were produced on Sankin mentioned the application. If there did exist a report of an in-person or telephonic interview in which the item was discussed, as there should have been, it was never provided to the defense. It is known that at least one interview containing exculpatory information was never produced, that one involving Maurice Barksdale, who is mentioned above. See Section B.3b of PMP. As reflected in that section, rare are the opportunities for a defendant to learn that exculpatory material was never produced at all. Of course, rare, too, are the opportunities to learn that a document was hidden.

In any case, Sankin’s Harvard Business School application was sufficiently troubling to Independent Counsel attorneys that, leave aside that they failed to make a Brady disclosure, they did not include it at all among the materials on Sankin initially provided the defense. Then, in December 1992, the Independent Counsel turned over approximately 3700 unindexed pages of material identified as the Independent Counsel’s preliminary exhibit production. Included in these materials was a 562-page group of documents related to administration of the Stanley Arms, an apartment building Sankin managed for Dean’s family. It was a group of documents to which no one had reason to give other than cursory attention. Inserted thusly within that group of documents as the 510th and 511th pages was Sankin’s Harvard Business School application.

This item was not discovered in time to use in the trial or in post trial proceedings in 1993 and 1994. Dean did raise the matter in a 1997 renewed motion to overturn the verdict (Sec. IV.C.2) following exhaustion of the appeals process. The government never responded to this motion. As discussed in the introduction to PMP, in 2001, when the case was being handled by the Department of Justice, an agreement was reached whereby, in exchange for Dean’s withdrawing pending motions, the government would seek no confinement. But had the Independent Counsel or Department of Justice been forced to respond on the matter, it would have had to explain both why the application was not provided as Brady material and why it was hidden. A tall order.

I know nothing about the Polanski case save what I read in the referenced Times article. But I assume that whether or not the United States was able to persuade the Swiss government that no ill motive underlay the failure to produce the hearing transcript, Swartz was able to so persuade his superiors at the Department of Justice, perhaps on the basis that he would never intentionally hide relevant information. But there is also the possibility that, as with regard to varied actions of Swartz in U.S. v. Dean, his superiors have never required an explanation.

Illinois Repeals Death Penalty

*Breaking News*

Here is a message we are happy to share from Murder Victims Families for Reconciliation.

Reconciliation means accepting that you cannot undo the murder but you can decide how you want to live afterwards.
March 9, 2011

Dear Friends,

Illinois Governor Pat Quinn *just* signed the bill to repeal the death penalty and reallocate funds from its Capital Litigation Trust Fund to provide law enforcement training and services to families of homicide victims. This makes Illinois the 4th state in the country to repeal the death penalty since 2005, following New York, New Jersey, and New Mexico.

“Illinois joins a growing list states and other Americans who recognize that the death penalty simply does not work,” said Beth Wood, Executive Director of MVFR. “Illinois has been under a moratorium for ten years, has had two study commissions, and passed dozens of reforms to try and make the death penalty work. But the system continued to make mistakes while costing millions of dollars and dragging victims’ families through an endless ordeal.”

ACT NOW!

Take a moment to thank the Governor.

Please call Governor Quinn and thank him for his thoughtful attention and courageous decision in favor of repeal! He made history in Illinois today, and we need to let him know we're proud!

Springfield Office: 217-782-0244

Chicago Office: 312-814-2121

Scour your newspapers, blogs, and other websites for any mention of the Illinois repeal over the next few days. When you see some, send a letter to the editor or comment on the blog or web post in support of the repeal. Post the stories to Facebook or Twitter with a big hooray. Make sure to identify yourself as a member or supporter of MVFR in any comments, so that your legislators start to get the hint – you want repeal too [If you're in Illinois -- be sure to thank your legislators for this common sense move to improve the system]!

For every state that repeals the death penalty, we get one step closer here too. Momentum is contagious. This is a moment of celebration for us all!

Warmly,

Beth Wood, Executive Director