This op-ed article originally was published in the Helena, MT Independence Record on March 23, 2008.
The story of Barry Beach’s innocence
By DANIEL J. GENGLER - Your Turn - 03/23/08
I am fortunate to live in a nation that aspires to the rule of law and justice for all.
And we are fortunate that the system works as well as it does. It’s not perfect but 99 percent of the time the system works reasonably well. The story of Barry Beach’s innocence is about the other 1 percent of the time.
I first found about this case in 2006 when a good friend asked me to take a look at a set of files. He told me it was about an innocent Montana man in prison. Because I respect this friend, I agreed to read them, though I was skeptical. As I promised, I read the files, but I was looking for the flaws in the case for Beach’s innocence. Somewhere near the end of reading these files, I reached a turning point. To the extent that what I was reading was authoritatively verified, I saw good reason to question the validity of this man’s conviction. But my skepticism was still not completely satisfied. I still wanted to know what the other side had to say. What was I not being told?
So I attended the hearings before the Board of Pardons and Parole this past summer and read the state’s documents to get the rest of the story. But after reading several voluminous documents and sitting through three grueling days of testimony, I heard nothing from the state that made any sense which undermined the case for Barry Beach’s innocence. I almost wished I hadn’t taken the time and effort to expose myself to the truth because, at that point, I could no longer take refuge in a lack of awareness. Like the Samaritan man on the road who happens upon a stranger in need of help, I saw such a stranger in need. And though it would be far more convenient to walk on by assuring myself that the matter was not my concern, my faith compels me to stop and help.
I am not alone. Montanans for Justice is a group of Montanans from throughout the state who are concerned about this travesty in our justice system. We are deeply disturbed by the fact that we have an innocent man in prison serving an extremely harsh sentence of 100 years without parole for a crime he did not commit. We are current and former elected officials, professionals, businessmen and women — folks from all walks of life who, through various circumstances, have come to know about this case. After thorough and careful review, all of us have come to firmly believe Barry Beach is not guilty of this murder, leading to the inescapable conclusion that those responsible for the murder of Kim Nees have not been held accountable. Not only has Barry Beach been denied justice for his wrongful conviction, the Nees family and the community of Poplar have been denied the true justice they deserve. Barry Beach is being represented legally by Centurion Ministries, an organization based in Princeton, N.J., dedicated to freeing the wrongly convicted. Centurion Ministries spent seven years and very substantial resources investigating this case before ever agreeing to represent Mr. Beach. Montanans For Justice is a grassroots effort composed of Montanans. We have no stake in this matter other than a desire for the truth to prevail.
Barry Beach’s wrongful conviction is really only symptomatic of a much larger issue at hand. As one writer wrote on the www.MontanansForJustice.com blog: “I was born in 1979, and I’ve heard all the rumors on the rez because I was born and raised on Fort Peck. I’ve heard all my relatives talk about it, my great-grandmother told me Kim Nees’ spirit still walks because she went too young. My relatives all lived on the hill and my mother was sitting outside that night, she heard alot of them partying down there, which makes me question Barry’s confession in which he said he was alone with Kim down there, and if so, then how come my mother heard more than a couple people down there? Also, I’ve heard all the rumors about Sissy and Maude, but I don’t think justice will come too soon for Barry because people on the rez are too scared to come forward. Look at the Follete murders, or Lawrence Crowe, and Richard Red Dog, I could go on, but of course, the right people are never convicted. I pray that they will be caught though, Poplar is a scary place to live for our children nowadays. How do you raise children in a town where murderers reside?”
How do you raise children in a place where there is little faith in law enforcement and our criminal justice system? Exonerating Barry Beach would be a shining beacon of hope in a community desperate for faith in the rule of law and justice.
There are, quite understandably, powerful forces that would prefer to quietly sweep this whole affair under the rug. But what’s politically convenient is not necessarily what’s right. The system works reasonably well 99 percent of the time. The system works even better when it faces up to the mistakes made the other 1 percent of the time and makes it right.
Daniel J. Gengler lives in Helena, Montana.
Tuesday, March 25, 2008
Thursday, March 20, 2008
Guest Shot: Wrongfully convicted dealt another blow
The following editorial was published on March 18, 2008 in the Miami Herald.
Wrongfully convicted dealt another blow
BY FRED GRIMM
No big-time lobbyist to fix their legislation. That was their second big mistake.
The first, of course, was embarrassing the state by getting themselves convicted for someone else's crime. That's no way to make friends in Tallahassee.
The wrongfully convicted just don't know how to work the Legislature. It's as obvious as those nasty little amendments that have been inserted into a misnomer of a bill called ``Victims of Wrongful Incarceration Compensation Act.''
The legislation supposedly would award this hapless bunch $50,000 for every year spent behind bars for crimes they didn't commit. House Bill 1025 also tosses in compensation for counseling, housing, health insurance and college tuition.
That 50 grand a year, if it was real, would add up to a decent sum for the nine guys who accumulated $7,650,000 worth of hard time in Florida prisons before they were cleared by DNA tests.
AN ARBITRARY SYSTEM
It's almost as if Florida wants to do right by all those ruined lives. The legislation would finally standardize an infamously arbitrary compensation system that requires the wrongfully convicted to come begging, year after year, until some sympathetic legislators take an interest. (Freddy Lee Pitts and Wilbert Lee were pardoned in 1975 after their shoddy 1963 murder conviction was unraveled by legendary Miami Herald reporter Gene Miller. Another 23 years passed before the Legislature was shamed into voting them $500,000 each for their lost years.)
But the intent of this session's amendment-riddled legislation has evolved into a kind of punishment for these impostor convicts for taking up the precious prison cells. Under the bill wending through the Legislature (key hearings are scheduled Tuesday in both the House and Senate), none of the nine men cleared by DNA testing in Florida would actually qualify for state compensation.
Larry Bostic, wrongly convicted of a Fort Lauderdale rape, did 19 years. Orlando Boquete, convicted of a rape and robbery in the Florida Keys, served 13. Alan Crotzer spent 24 years in prison for a rape and robbery he didn't commit. Cody Davis did six months before the crime lab in Palm Beach County checked the DNA on an armed robber's ski mask. Wilton Dedge did 22 years for a Brevard County rape conviction. Luis Diaz, the so-called Bird Road Rapist of Miami-Dade County who, as it turned out, wasn't, served 25 years. Chad Heins did a 13-year stretch for rape and murder. Frank Lee Smith died after 14 years on Death Row. Both Smith and another Fort Lauderdale man, Jerry Frank Townsend, who spent 22 years in prison, had been convicted of murders actually committed by serial killer Eddie Lee Mosley.
OUT OF THE MONEY
Of the nine, only Wilton Dedge has been able to wrangle compensation out of the state Legislature ($2 million in 2005). The rest, under HB 1025 (the Senate is expected to adopt similar language) would be out of the money.
A so-called ''clean hands'' amendment disqualifies any wrongfully convicted chump with a prior, unrelated felony conviction. Of course, when cops go looking for a quickie arrest, they aren't picking their patsies from the Rotary Club.
That nifty amendment's a big money saver. A legislative report on the fiscal impact of the bill calculates, with ''very few people eligible,'' the cost would be essentially zilch.
At least the legislation doesn't charge the wrongfully convicted room and board for all those years they mooched off the state penal system.
Not yet, anyway.
Wrongfully convicted dealt another blow
BY FRED GRIMM
No big-time lobbyist to fix their legislation. That was their second big mistake.
The first, of course, was embarrassing the state by getting themselves convicted for someone else's crime. That's no way to make friends in Tallahassee.
The wrongfully convicted just don't know how to work the Legislature. It's as obvious as those nasty little amendments that have been inserted into a misnomer of a bill called ``Victims of Wrongful Incarceration Compensation Act.''
The legislation supposedly would award this hapless bunch $50,000 for every year spent behind bars for crimes they didn't commit. House Bill 1025 also tosses in compensation for counseling, housing, health insurance and college tuition.
That 50 grand a year, if it was real, would add up to a decent sum for the nine guys who accumulated $7,650,000 worth of hard time in Florida prisons before they were cleared by DNA tests.
AN ARBITRARY SYSTEM
It's almost as if Florida wants to do right by all those ruined lives. The legislation would finally standardize an infamously arbitrary compensation system that requires the wrongfully convicted to come begging, year after year, until some sympathetic legislators take an interest. (Freddy Lee Pitts and Wilbert Lee were pardoned in 1975 after their shoddy 1963 murder conviction was unraveled by legendary Miami Herald reporter Gene Miller. Another 23 years passed before the Legislature was shamed into voting them $500,000 each for their lost years.)
But the intent of this session's amendment-riddled legislation has evolved into a kind of punishment for these impostor convicts for taking up the precious prison cells. Under the bill wending through the Legislature (key hearings are scheduled Tuesday in both the House and Senate), none of the nine men cleared by DNA testing in Florida would actually qualify for state compensation.
Larry Bostic, wrongly convicted of a Fort Lauderdale rape, did 19 years. Orlando Boquete, convicted of a rape and robbery in the Florida Keys, served 13. Alan Crotzer spent 24 years in prison for a rape and robbery he didn't commit. Cody Davis did six months before the crime lab in Palm Beach County checked the DNA on an armed robber's ski mask. Wilton Dedge did 22 years for a Brevard County rape conviction. Luis Diaz, the so-called Bird Road Rapist of Miami-Dade County who, as it turned out, wasn't, served 25 years. Chad Heins did a 13-year stretch for rape and murder. Frank Lee Smith died after 14 years on Death Row. Both Smith and another Fort Lauderdale man, Jerry Frank Townsend, who spent 22 years in prison, had been convicted of murders actually committed by serial killer Eddie Lee Mosley.
OUT OF THE MONEY
Of the nine, only Wilton Dedge has been able to wrangle compensation out of the state Legislature ($2 million in 2005). The rest, under HB 1025 (the Senate is expected to adopt similar language) would be out of the money.
A so-called ''clean hands'' amendment disqualifies any wrongfully convicted chump with a prior, unrelated felony conviction. Of course, when cops go looking for a quickie arrest, they aren't picking their patsies from the Rotary Club.
That nifty amendment's a big money saver. A legislative report on the fiscal impact of the bill calculates, with ''very few people eligible,'' the cost would be essentially zilch.
At least the legislation doesn't charge the wrongfully convicted room and board for all those years they mooched off the state penal system.
Not yet, anyway.
Sunday, March 09, 2008
Guest Shot: The Larger Tragedy in an Unjust Accusation
by Ronald H. Uscinski, M.D.
This was originally published in the op-ed section of the Washington Post on March 9, 2008
In the 18th century, Sir William Blackstone articulated what is known today as the Blackstone ratio: "It is better that 10 guilty persons escape than that one innocent suffer." This phrase expresses a cornerstone of both English common law and American jurisprudence, the principle of "innocent until proven guilty."
But this principle sadly seems to have been unheeded or even deliberately overturned in matters of suspected child abuse. The D.C. code itself reads: "Where the petition alleges a child is a neglected child by reason of abuse, evidence of illness or injury to a child who was in the custody of his or her parent, guardian, or custodian for which the parent, guardian or custodian can give no satisfactory explanation shall be sufficient to justify an inference of neglect." So the stage is set.
I am the neurosurgeon who testified in defense of Greg and Julianna Caplan, whose 8-month-old twin girls were removed from their home by the D.C. government in a case recounted by Metro columnist Marc Fisher ["A Case of a Family Services Job Well Done, or Overdone?" Feb. 24]. The issue of retinal hemorrhages as a marker of so-called shaken-baby syndrome will not be settled on the editorial page of any newspaper; suffice it to say that the validity of such a marker has always been under serious question, as is the hypothesis (yes, it is still a hypothesis) that children must have been shaken manually to suffer such injuries. I believe that a true understanding based on objective science, and not subjective conjecture, will eventually prevail.
But the erosion of a fundamental tenet of our judicial system is another matter altogether, and it has gone unchecked and even accelerated over more than three decades, to the extent that such travesties as befell the Caplans now happen all over our country, and even beyond. Child protection agencies in virtually every state in the union have powers similar to those wielded in this case by the District, and they have used these powers in a similar fashion.
What the Caplans have endured and still continue to struggle with is not limited by race, ethnicity or income level. No one is safe once suspicion is aroused within an entity that has too much authority and too little comprehension. I speak from first-hand experience, having testified in many such cases over the past decade as a subject-matter expert for the defense. (I have yet to be contacted by any prosecuting attorney to review such matters.)
This is not to say that child abuse does not exist. I have witnessed such cases, and have been deeply and painfully moved by the plight of innocents who have been injured or even killed. This is certainly not acceptable. And yet I am no less moved by the plight of the wrongfully accused (and even convicted), their families and their loved ones. This is particularly so when such accusations are based on impure science, a flawed legal foundation, and completely inadequate or inappropriate public policy.
This is the United States, a republic founded on legal, moral and ethical principles that have served us well. It is not wise to become complacent, or to be forgetful or ignorant of such principles. The words "chaos," perhaps even "tyranny," come to mind.
-- Ronald H. Uscinski
Great Falls, Virginia
The writer is on the faculties of Georgetown University Hospital and George Washington University Medical Center and is an adjunct fellow at the Potomac Institute for Policy Studies in Virginia.
This was originally published in the op-ed section of the Washington Post on March 9, 2008
In the 18th century, Sir William Blackstone articulated what is known today as the Blackstone ratio: "It is better that 10 guilty persons escape than that one innocent suffer." This phrase expresses a cornerstone of both English common law and American jurisprudence, the principle of "innocent until proven guilty."
But this principle sadly seems to have been unheeded or even deliberately overturned in matters of suspected child abuse. The D.C. code itself reads: "Where the petition alleges a child is a neglected child by reason of abuse, evidence of illness or injury to a child who was in the custody of his or her parent, guardian, or custodian for which the parent, guardian or custodian can give no satisfactory explanation shall be sufficient to justify an inference of neglect." So the stage is set.
I am the neurosurgeon who testified in defense of Greg and Julianna Caplan, whose 8-month-old twin girls were removed from their home by the D.C. government in a case recounted by Metro columnist Marc Fisher ["A Case of a Family Services Job Well Done, or Overdone?" Feb. 24]. The issue of retinal hemorrhages as a marker of so-called shaken-baby syndrome will not be settled on the editorial page of any newspaper; suffice it to say that the validity of such a marker has always been under serious question, as is the hypothesis (yes, it is still a hypothesis) that children must have been shaken manually to suffer such injuries. I believe that a true understanding based on objective science, and not subjective conjecture, will eventually prevail.
But the erosion of a fundamental tenet of our judicial system is another matter altogether, and it has gone unchecked and even accelerated over more than three decades, to the extent that such travesties as befell the Caplans now happen all over our country, and even beyond. Child protection agencies in virtually every state in the union have powers similar to those wielded in this case by the District, and they have used these powers in a similar fashion.
What the Caplans have endured and still continue to struggle with is not limited by race, ethnicity or income level. No one is safe once suspicion is aroused within an entity that has too much authority and too little comprehension. I speak from first-hand experience, having testified in many such cases over the past decade as a subject-matter expert for the defense. (I have yet to be contacted by any prosecuting attorney to review such matters.)
This is not to say that child abuse does not exist. I have witnessed such cases, and have been deeply and painfully moved by the plight of innocents who have been injured or even killed. This is certainly not acceptable. And yet I am no less moved by the plight of the wrongfully accused (and even convicted), their families and their loved ones. This is particularly so when such accusations are based on impure science, a flawed legal foundation, and completely inadequate or inappropriate public policy.
This is the United States, a republic founded on legal, moral and ethical principles that have served us well. It is not wise to become complacent, or to be forgetful or ignorant of such principles. The words "chaos," perhaps even "tyranny," come to mind.
-- Ronald H. Uscinski
Great Falls, Virginia
The writer is on the faculties of Georgetown University Hospital and George Washington University Medical Center and is an adjunct fellow at the Potomac Institute for Policy Studies in Virginia.
Saturday, March 01, 2008
Outrageous
When we opined about events in Buffalo, NY on November 17, 2008 (Refusing to Admit Error - http://truthinjusticefiles.blogspot.com/2007/11/refusing-to-admit-error.html), Lynn DeJac's conviction for murdering her 13-year-old daughter, Crystallynn, had just been vacated, and DA Frank Clark was preparing to re-try her. Lynn's conviction was reversed when the DNA of her former boyfriend, Dennis Donohue, was found in Crystallynn's bed and in her vagina. Donohue was finally being investigated for two other strangulation murders, one of which occurred AFTER Crystallyn's death, which bore striking similarities to Crystallynn's murder. Lynn had said from the moment she discovered her daughter's body that Donohue killed the child, a claim that the judge who sentenced her called "a red herring."
DA Clark remained adamant, however, that Lynn murdered her daughter, and vowed to retry her. When police detectives Dennis Delano, Mary Gugliuzza and Charles Aronica said Lynn had neither the time nor the strength to subdue and kill her daughter, Clark went ballistic. "It’s absolutely inappropriate for them to express an opinion on the question of guilt or innocence, when a matter is still under litigation," he said.
Still, what had to be worrying Clark and everyone else who participated in Lynn's frame-up back in 1993, was the fact that they gave Dennis Donohue a free murder, and kept him on the streets to kill again. That's because the prosecutor gave him COMPLETE IMMUNITY against prosecution for Crystallynn's murder in exchange for testifying against Lynn. Just that is outrageous beyond words, but this gets even worse.
Even though a different prosecutor made the immunity deal, Clark knew he had been painted into a corner. The last thing he or any of the authorities involved in the case needed was a thorough airing at Lynn's retrial of all the prosecution's dirty dealing and lies that put her into prison in the first place. Enter the celebrity forensic pathologist, Dr. Michael Baden who, conveniently, is chief forensic pathologist for the State of New York. That means Buffalo and Erie County didn't have to pay him $250,000, the fee he got to testify at Phil Spector's trial that Lara Clarkson committed suicide. Dr. Baden came through for Erie County the way he came through for Spector. He declared that Crystallynn died of an accidental overdose of cocaine, and that the head injury she suffered probably occurred when she was totally messed up from cocaine and fell. No murder. No retrial. No embarassing questions. Back to business as usual. There was even a bonus for the state with this resolution -- the "fault" for Lynn's conviction was laid at the feet of her defense lawyer, Andrew LoTiempo, for not retaining a forensic pathologist to contest cause of death.
These authorities weren't too worried about Lynn's objections to this 180 degree flip. She should just be grateful to be out of prison. Besides, she had been so smeared in the public mind over the past 13 years that she had no credibility left. What they didn't bank on was Det. Dennis Delano refusing to play the game. He released, among other things, the crime scene video, so the public got to see what Crystallynn's bedroom actually looked like. The video is posted at http://www.wgrz.com/sports/sports_article.aspx?storyid=55697&provider=gnews Det. Delano went to Washington, DC at his own expense to consult with experts regarding how Crystallynn died.
Now THIS was a REAL problem. Dennis Delano was a veteran police detective with a perfect record. He was CREDIBLE. So the police came down on him like a ton of bricks. They suspended him without pay, took his badge and certainly are going to go after his retirement, alleging that the crime scene video he released was from an open investigation, so such release was a violation of department policy. Open investigation? Don't they read their own press releases? They've done everything they can to slam the door shut to any investigation of Crystallynn's death, claiming it was an accident. Do they really think the public is stupid enough to buy into this? They've announced that Det. Delano's fellow officers do not support him. We know how this works. The brass tells every cop, every employee of the police department, that any and all contacts with the suspended officer must be reported. Anyone who reports a contact -- ran into him in the grocery store and mumbled "hello" in passing, for example -- gets a complete debriefing. There is no question one's job and pension are on the line, so no cop will lend any public or private support to Det. Delano.
The crimes here are ongoing. The police commissioner, the police chief and the district attorney -- plus a lot of others who facilitate them -- are engaged in a conspiracy to obstruct justice. Not only should they lose their jobs, they should be prosecuted. They are criminals.
DA Clark remained adamant, however, that Lynn murdered her daughter, and vowed to retry her. When police detectives Dennis Delano, Mary Gugliuzza and Charles Aronica said Lynn had neither the time nor the strength to subdue and kill her daughter, Clark went ballistic. "It’s absolutely inappropriate for them to express an opinion on the question of guilt or innocence, when a matter is still under litigation," he said.
Still, what had to be worrying Clark and everyone else who participated in Lynn's frame-up back in 1993, was the fact that they gave Dennis Donohue a free murder, and kept him on the streets to kill again. That's because the prosecutor gave him COMPLETE IMMUNITY against prosecution for Crystallynn's murder in exchange for testifying against Lynn. Just that is outrageous beyond words, but this gets even worse.
Even though a different prosecutor made the immunity deal, Clark knew he had been painted into a corner. The last thing he or any of the authorities involved in the case needed was a thorough airing at Lynn's retrial of all the prosecution's dirty dealing and lies that put her into prison in the first place. Enter the celebrity forensic pathologist, Dr. Michael Baden who, conveniently, is chief forensic pathologist for the State of New York. That means Buffalo and Erie County didn't have to pay him $250,000, the fee he got to testify at Phil Spector's trial that Lara Clarkson committed suicide. Dr. Baden came through for Erie County the way he came through for Spector. He declared that Crystallynn died of an accidental overdose of cocaine, and that the head injury she suffered probably occurred when she was totally messed up from cocaine and fell. No murder. No retrial. No embarassing questions. Back to business as usual. There was even a bonus for the state with this resolution -- the "fault" for Lynn's conviction was laid at the feet of her defense lawyer, Andrew LoTiempo, for not retaining a forensic pathologist to contest cause of death.
These authorities weren't too worried about Lynn's objections to this 180 degree flip. She should just be grateful to be out of prison. Besides, she had been so smeared in the public mind over the past 13 years that she had no credibility left. What they didn't bank on was Det. Dennis Delano refusing to play the game. He released, among other things, the crime scene video, so the public got to see what Crystallynn's bedroom actually looked like. The video is posted at http://www.wgrz.com/sports/sports_article.aspx?storyid=55697&provider=gnews Det. Delano went to Washington, DC at his own expense to consult with experts regarding how Crystallynn died.
Now THIS was a REAL problem. Dennis Delano was a veteran police detective with a perfect record. He was CREDIBLE. So the police came down on him like a ton of bricks. They suspended him without pay, took his badge and certainly are going to go after his retirement, alleging that the crime scene video he released was from an open investigation, so such release was a violation of department policy. Open investigation? Don't they read their own press releases? They've done everything they can to slam the door shut to any investigation of Crystallynn's death, claiming it was an accident. Do they really think the public is stupid enough to buy into this? They've announced that Det. Delano's fellow officers do not support him. We know how this works. The brass tells every cop, every employee of the police department, that any and all contacts with the suspended officer must be reported. Anyone who reports a contact -- ran into him in the grocery store and mumbled "hello" in passing, for example -- gets a complete debriefing. There is no question one's job and pension are on the line, so no cop will lend any public or private support to Det. Delano.
The crimes here are ongoing. The police commissioner, the police chief and the district attorney -- plus a lot of others who facilitate them -- are engaged in a conspiracy to obstruct justice. Not only should they lose their jobs, they should be prosecuted. They are criminals.
Friday, February 01, 2008
Guest Shot: Pathologists as cops in lab coats
The following originally appeared in the Toronto (Ontario, Canada) Sun at http://torontosun.com/News/TorontoAndGTA/2008/02/01/4805456-sun.html While it addresses the criminal legal system in Canada, the problems discussed are the same in the US.
If forensic pathologists become 'cops in lab coats' they may not be serving justice -- just the prosecution
By MARK BONOKOSKI
"An expert is someone who knows more and more about less and less, until eventually he knows everything about nothing." -- Nicholas Murray Butler, President, Columbia University, 1902-1945
Dr. Charles Smith is one of those Butler-defined experts, all right -- an expert witness (supposedly) in forensic pathology who lied, invented, forgot, pretended, withheld, dismissed, neglected, guessed -- and, as a result, sent many people to jail for crimes that never happened.
Not to jail for murders they did not do, or for manslaughter cases in which they had no hand, but for murders and manslaughters that never occurred.
"Dr. Smith. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?"
Uh, maybe.
Don't know. Can't say. Perhaps.
EXPERT WITNESS
Dr. Charles Smith, now described rightfully as "disgraced pathologist Dr. Charles Smith," was so expert at being an expert that he routinely forgot he had no authoritative expertise, and so he gave lectures to colleagues on how to be an expert witness.
And he did this for years and years and years, with his true abilities falling tragically and intellectually short of his pay grade.
Toronto lawyer Daniel Brodsky, one of the founders of the Association in Defence of the Wrongfully Convicted, opined in one newspaper that police should consider laying perjury charges against Smith, all as the public inquiry into his shenanigans prepares to wrap up its proceedings today before the Goudge commission.
Then, when all is said and done, Mr. Justice Stephen Goudge will sit down and write his report on how Dr. Charles Smith was able to keep himself at the top rung of Ontario's forensic pathology ladder for approximately two decades, when his litany of autopsy misfindings and courtroom hyperbole were regularly getting innocent people charged with the murder of babies, particularly for shaken baby syndrome.
About which Dr. Smith once had this to say in a published article: "Defence counsel love to make mincemeat of witnesses, and some experts become paid mouths, so the challenge is to prove there is such a thing as shaken baby syndrome."
The "challenge" for Dr. Smith, however, at least in some of his cases, was to "prove" shaken baby syndrome even when it didn't exist.
The British call this "noble cause corruption."
And he was obviously successful in his embrace of the "noble cause" -- so much so that it caused the catalogued and court-documented ruination of more than just a few innocent lives.
Expert testimony, even when the expert is truly an expert, is often a mug's game. In a slide presentation on wrongful convictions delivered to the International Centre for Criminal Law Reform and Criminal Justice Policy Convention in Toronto in July of 2006, Daniel Brodsky noted that the adversary court system is "probably the best tool we have in Canada for detecting over-confidence, self-deception and dishonesty.
"Ironically, though," said Brodsky, "(the adversary system) itself is responsible for one common defect -- namely the expert's temptation to overly identify with the cause of his 'side.'"
'JUNK SCIENCE'
According to Brodsky, this is exacerbated by the fact that science is becoming more complex; witnesses remain forever fallible; the run-of-the-mill lawyer, while seemingly affordable to his client, lacks the tools to evaluate and challenge; opinion may have a weight and authority that is undeserved (ie: Dr. Smith); the language of medicine and law are seldom the same; and, courts/juries often lack the skills to render a proper decision in complicated trials.
None of this is new, of course, but it is rarely debated outside the closed confines of the legal and academic community.
Then there is the phenomenon of what has been called "junk pathology" and/or "junk science" -- something that legal scholars claim is becoming a "scourge" of courtrooms.
Think, for example, of social-science scenarios that, prior to 1980, had never been heard of in the court system, and their impact on both criminal and civil litigation -- battered woman syndrome, shaken baby syndrome (see Dr. Charles Smith), post traumatic stress disorder, child sexual abuse accommodation (CSAA), post-partum psychosis, repressed memory syndrome, and hypnotically refreshed testimony, just to name a few of the headliners.
All are relatively new. But is their credence tried and true and immune to manipulation? The answer, of course, is hardly.
According to Brodsky, "junk pathology" and "junk science" have played a role in many wrongful convictions, and not just in the cases in which Dr. Smith was the lead pathologist.
"When junk pathology is introduced to a jury by a so-called expert, the jurors immediately have blinders put on," he said. "And once those blinders have them looking at junk pathology as fact, then the game is over for the defence.
"Using Dr. Smith's blinders, jurors were able to see homicide where no homicide existed. And how dangerous is that?"
From Brodsky's perspective, and from the perspective of the Association in Defence of the Wrongfully Convicted, if Mr. Justice Goudge's eventual report focuses solely on Dr. Smith, then it will be a huge opportunity lost in critiquing the system.
PROSECUTION TEAM
And it will be lost, too, if the Ontario College of Physicians and Surgeons fails to take reasonable steps to ensure that other forensic scientists do not see themselves purely as an integral part of the prosecution's collective team.
"In fact, if those issues are not dealt with, the inquiry will have been a total waste of time," said Brodsky. "Today Dr. Smith; tomorrow who? Dr. Jones?
"We must ask ourselves, are forensic pathologists the equipment of the prosecution, or of justice?
"Certainly, forensic pathologists are thought to be impartial, and therefore making use of scientific means of finding the truth. But the reality is that they work in a prosecutorial milieu.
"Closely tying the forensic scientist to the prosecutorial apparatus may increase the likelihood of junk or scandalous science," he said.
"Pathologists may feel that in order to get promoted they need to provide the evidence that makes a conviction," said Brodsky.
"And that, in the end, tends to morph them into what has been termed 'cops in lab coats.'"
If forensic pathologists become 'cops in lab coats' they may not be serving justice -- just the prosecution
By MARK BONOKOSKI
"An expert is someone who knows more and more about less and less, until eventually he knows everything about nothing." -- Nicholas Murray Butler, President, Columbia University, 1902-1945
Dr. Charles Smith is one of those Butler-defined experts, all right -- an expert witness (supposedly) in forensic pathology who lied, invented, forgot, pretended, withheld, dismissed, neglected, guessed -- and, as a result, sent many people to jail for crimes that never happened.
Not to jail for murders they did not do, or for manslaughter cases in which they had no hand, but for murders and manslaughters that never occurred.
"Dr. Smith. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?"
Uh, maybe.
Don't know. Can't say. Perhaps.
EXPERT WITNESS
Dr. Charles Smith, now described rightfully as "disgraced pathologist Dr. Charles Smith," was so expert at being an expert that he routinely forgot he had no authoritative expertise, and so he gave lectures to colleagues on how to be an expert witness.
And he did this for years and years and years, with his true abilities falling tragically and intellectually short of his pay grade.
Toronto lawyer Daniel Brodsky, one of the founders of the Association in Defence of the Wrongfully Convicted, opined in one newspaper that police should consider laying perjury charges against Smith, all as the public inquiry into his shenanigans prepares to wrap up its proceedings today before the Goudge commission.
Then, when all is said and done, Mr. Justice Stephen Goudge will sit down and write his report on how Dr. Charles Smith was able to keep himself at the top rung of Ontario's forensic pathology ladder for approximately two decades, when his litany of autopsy misfindings and courtroom hyperbole were regularly getting innocent people charged with the murder of babies, particularly for shaken baby syndrome.
About which Dr. Smith once had this to say in a published article: "Defence counsel love to make mincemeat of witnesses, and some experts become paid mouths, so the challenge is to prove there is such a thing as shaken baby syndrome."
The "challenge" for Dr. Smith, however, at least in some of his cases, was to "prove" shaken baby syndrome even when it didn't exist.
The British call this "noble cause corruption."
And he was obviously successful in his embrace of the "noble cause" -- so much so that it caused the catalogued and court-documented ruination of more than just a few innocent lives.
Expert testimony, even when the expert is truly an expert, is often a mug's game. In a slide presentation on wrongful convictions delivered to the International Centre for Criminal Law Reform and Criminal Justice Policy Convention in Toronto in July of 2006, Daniel Brodsky noted that the adversary court system is "probably the best tool we have in Canada for detecting over-confidence, self-deception and dishonesty.
"Ironically, though," said Brodsky, "(the adversary system) itself is responsible for one common defect -- namely the expert's temptation to overly identify with the cause of his 'side.'"
'JUNK SCIENCE'
According to Brodsky, this is exacerbated by the fact that science is becoming more complex; witnesses remain forever fallible; the run-of-the-mill lawyer, while seemingly affordable to his client, lacks the tools to evaluate and challenge; opinion may have a weight and authority that is undeserved (ie: Dr. Smith); the language of medicine and law are seldom the same; and, courts/juries often lack the skills to render a proper decision in complicated trials.
None of this is new, of course, but it is rarely debated outside the closed confines of the legal and academic community.
Then there is the phenomenon of what has been called "junk pathology" and/or "junk science" -- something that legal scholars claim is becoming a "scourge" of courtrooms.
Think, for example, of social-science scenarios that, prior to 1980, had never been heard of in the court system, and their impact on both criminal and civil litigation -- battered woman syndrome, shaken baby syndrome (see Dr. Charles Smith), post traumatic stress disorder, child sexual abuse accommodation (CSAA), post-partum psychosis, repressed memory syndrome, and hypnotically refreshed testimony, just to name a few of the headliners.
All are relatively new. But is their credence tried and true and immune to manipulation? The answer, of course, is hardly.
According to Brodsky, "junk pathology" and "junk science" have played a role in many wrongful convictions, and not just in the cases in which Dr. Smith was the lead pathologist.
"When junk pathology is introduced to a jury by a so-called expert, the jurors immediately have blinders put on," he said. "And once those blinders have them looking at junk pathology as fact, then the game is over for the defence.
"Using Dr. Smith's blinders, jurors were able to see homicide where no homicide existed. And how dangerous is that?"
From Brodsky's perspective, and from the perspective of the Association in Defence of the Wrongfully Convicted, if Mr. Justice Goudge's eventual report focuses solely on Dr. Smith, then it will be a huge opportunity lost in critiquing the system.
PROSECUTION TEAM
And it will be lost, too, if the Ontario College of Physicians and Surgeons fails to take reasonable steps to ensure that other forensic scientists do not see themselves purely as an integral part of the prosecution's collective team.
"In fact, if those issues are not dealt with, the inquiry will have been a total waste of time," said Brodsky. "Today Dr. Smith; tomorrow who? Dr. Jones?
"We must ask ourselves, are forensic pathologists the equipment of the prosecution, or of justice?
"Certainly, forensic pathologists are thought to be impartial, and therefore making use of scientific means of finding the truth. But the reality is that they work in a prosecutorial milieu.
"Closely tying the forensic scientist to the prosecutorial apparatus may increase the likelihood of junk or scandalous science," he said.
"Pathologists may feel that in order to get promoted they need to provide the evidence that makes a conviction," said Brodsky.
"And that, in the end, tends to morph them into what has been termed 'cops in lab coats.'"
Sunday, January 27, 2008
Guest Shot: Exoneration shows system's flaws, strengths
The following opinion was published in the Daily Camera on January 26, 2008.
Exoneration shows system's flaws, strengths
By H. Patrick Furman
Saturday, January 26, 2008
Blind Lady Justice can smile a little bit today. Twenty years after the murder of Peggy Hettrick and nearly nine years after the conviction of Timothy Masters for that conviction, the innocence of Mr. Masters was established through the use of cutting-edge DNA technology. The case provides us with a number of other very important lessons.
The case reminds us that lawyers who defend people charged with crimes -- criminal defense lawyers -- are critical to ensuring that justice is done. Mr. Masters' original attorneys were not given access to the information that the law and the Constitution required they be given. Handicapped, they were not able to provide Mr. Masters with a proper defense. Mr. Masters' current attorneys were eventually given this additional evidence and were able to use it to exonerate Mr. Masters.
The case reminds us that prosecutors and police have an extraordinary amount of power, and that they must be watched carefully to ensure that this power is not abused. The overwhelming majority of prosecutors and police act honorably and fairly, but these police and prosecutors -- with the notable exception of at least one Fort Collins officer who worked long and hard to exonerate Mr. Masters -- did not.
They withheld evidence from the defense and they destroyed other evidence, and they perverted justice. Lawsuits against the responsible parties may not succeed due to the rules relating to immunity for government employees, but any prosecutor who knowingly withheld exculpatory evidence should lose his or her license to practice law, and any cop who did so ought to be fired.
The case reminds us that "the system" does not always work. Apologists for the system will argue that Mr. Masters' exoneration is proof that the system works. A system that keeps an innocent man in prison for nine years because of cheating and lying police and prosecutors cannot, under any stretch of the imagination, be said to be working right. Hundreds of thousands of tax dollars were spent prosecuting, defending and ultimately exonerating Mr. Masters, and much of this money was wasted by prosecutors and police who were, at best misguided, and, at worst, dishonest.
The appeal system did not "work," either. When the Colorado Supreme Court allowed the prosecutors to use hundreds of pages of Mr. Masters' admittedly unusual, but irrelevant, notes and drawings, and then to use a self-serving, celebrity psychiatrist to interpret these notes and drawings as proof of Mr. Masters' guilt, it was wrong. The three justices who dissented characterized the decision as "a great injustice" to the rules of evidence, and pointed out, with great prescience, that "there exists a substantial risk that [Mr. Masters] was convicted not for what he did, but for who he is." The court should re-visit this opinion and acknowledge its error, and no trial court or prosecutor should ever use this decision as a basis for introducing evidence in a court of law.
And the system did not "work" in a more basic, yet often overlooked way: The misdeeds of the police and prosecution have allowed the murderer of Peggy Hettrick to remain at large. No one yet knows whether the DNA samples that exonerated Mr. Masters will lead to the murderer. Police and prosecutors are now interested in a former boyfriend as a possible suspect. Whether or not he is responsible for the murder remains to be seen, but someone is responsible, and the misdeeds of the police and prosecution have helped that murderer escape justice for two decades. We can only hope that the murder committed no other offenses while at large.
The case reminds us that the system sometimes does work. Mr. Masters' post-conviction team, led by Maria Liu and David Wymore, were appointed and paid (at about one-fifth of what they would normally charge) by a state agency with our tax dollars. Money well spent. The post-conviction prosecutors did their jobs and, when their own analysis confirmed what the defense attorneys had been saying all along, they acted quickly to free Mr. Masters.
In the end, of course, the case is about humans. Peggy Hettrick's family must again search for answer, and their grievous wounds have been re-opened. Timothy Masters will likely go free on Tuesday, but he has lost a decade of his life and the problems he will have re-integrating into society will be difficult and pervasive. We need to help all the victims of this terrible miscarriage of justice.
Finally, the case serves as a powerful reminder that we need to make sure that we carefully watch those with power and protect those without. it.
H. Patrick Furman is a clinical professor of law at the University of Colorado.
Truth in Justice Files Editor's Note: District Attorney Larry Abrahamson dismissed the charges against Tim Masters, but he specifically cautioned that Masters has NOT been exonerated by the DNA test results, and that this dismissal did not rule out re-charging Masters. He told the press, "Contrary to news reports, the DNA testing results only suggest that there may be others, along with Timothy Masters, who should be investigated. These test results do not provide us with enough information to completely exonerate anyone." This is a typical response by a prosecutor who refuses to accept responsibility for criminally abusing the power of his office.
Exoneration shows system's flaws, strengths
By H. Patrick Furman
Saturday, January 26, 2008
Blind Lady Justice can smile a little bit today. Twenty years after the murder of Peggy Hettrick and nearly nine years after the conviction of Timothy Masters for that conviction, the innocence of Mr. Masters was established through the use of cutting-edge DNA technology. The case provides us with a number of other very important lessons.
The case reminds us that lawyers who defend people charged with crimes -- criminal defense lawyers -- are critical to ensuring that justice is done. Mr. Masters' original attorneys were not given access to the information that the law and the Constitution required they be given. Handicapped, they were not able to provide Mr. Masters with a proper defense. Mr. Masters' current attorneys were eventually given this additional evidence and were able to use it to exonerate Mr. Masters.
The case reminds us that prosecutors and police have an extraordinary amount of power, and that they must be watched carefully to ensure that this power is not abused. The overwhelming majority of prosecutors and police act honorably and fairly, but these police and prosecutors -- with the notable exception of at least one Fort Collins officer who worked long and hard to exonerate Mr. Masters -- did not.
They withheld evidence from the defense and they destroyed other evidence, and they perverted justice. Lawsuits against the responsible parties may not succeed due to the rules relating to immunity for government employees, but any prosecutor who knowingly withheld exculpatory evidence should lose his or her license to practice law, and any cop who did so ought to be fired.
The case reminds us that "the system" does not always work. Apologists for the system will argue that Mr. Masters' exoneration is proof that the system works. A system that keeps an innocent man in prison for nine years because of cheating and lying police and prosecutors cannot, under any stretch of the imagination, be said to be working right. Hundreds of thousands of tax dollars were spent prosecuting, defending and ultimately exonerating Mr. Masters, and much of this money was wasted by prosecutors and police who were, at best misguided, and, at worst, dishonest.
The appeal system did not "work," either. When the Colorado Supreme Court allowed the prosecutors to use hundreds of pages of Mr. Masters' admittedly unusual, but irrelevant, notes and drawings, and then to use a self-serving, celebrity psychiatrist to interpret these notes and drawings as proof of Mr. Masters' guilt, it was wrong. The three justices who dissented characterized the decision as "a great injustice" to the rules of evidence, and pointed out, with great prescience, that "there exists a substantial risk that [Mr. Masters] was convicted not for what he did, but for who he is." The court should re-visit this opinion and acknowledge its error, and no trial court or prosecutor should ever use this decision as a basis for introducing evidence in a court of law.
And the system did not "work" in a more basic, yet often overlooked way: The misdeeds of the police and prosecution have allowed the murderer of Peggy Hettrick to remain at large. No one yet knows whether the DNA samples that exonerated Mr. Masters will lead to the murderer. Police and prosecutors are now interested in a former boyfriend as a possible suspect. Whether or not he is responsible for the murder remains to be seen, but someone is responsible, and the misdeeds of the police and prosecution have helped that murderer escape justice for two decades. We can only hope that the murder committed no other offenses while at large.
The case reminds us that the system sometimes does work. Mr. Masters' post-conviction team, led by Maria Liu and David Wymore, were appointed and paid (at about one-fifth of what they would normally charge) by a state agency with our tax dollars. Money well spent. The post-conviction prosecutors did their jobs and, when their own analysis confirmed what the defense attorneys had been saying all along, they acted quickly to free Mr. Masters.
In the end, of course, the case is about humans. Peggy Hettrick's family must again search for answer, and their grievous wounds have been re-opened. Timothy Masters will likely go free on Tuesday, but he has lost a decade of his life and the problems he will have re-integrating into society will be difficult and pervasive. We need to help all the victims of this terrible miscarriage of justice.
Finally, the case serves as a powerful reminder that we need to make sure that we carefully watch those with power and protect those without. it.
H. Patrick Furman is a clinical professor of law at the University of Colorado.
Truth in Justice Files Editor's Note: District Attorney Larry Abrahamson dismissed the charges against Tim Masters, but he specifically cautioned that Masters has NOT been exonerated by the DNA test results, and that this dismissal did not rule out re-charging Masters. He told the press, "Contrary to news reports, the DNA testing results only suggest that there may be others, along with Timothy Masters, who should be investigated. These test results do not provide us with enough information to completely exonerate anyone." This is a typical response by a prosecutor who refuses to accept responsibility for criminally abusing the power of his office.
Sunday, January 13, 2008
Guest Shot: Clear the Norfolk Four
This editorial was originally published in the Washington Post on January 13, 2008
Clear the Norfolk 4
Gov. Kaine should intervene on behalf of the sailors falsely implicated in a rape and murder.
Sunday, January 13, 2008
RARE IS the case that unites prosecutors and defense lawyers, Republicans and Democrats. Rarer still is a case that finds such diverse parties calling for the pardon of multiple defendants convicted of rape and murder.
That's what has happened in the case of the so-called Norfolk 4. On Friday, Richard Cullen, a Republican, and Anthony F. Troy, a Democrat, stood before microphones in Richmond to plead for the pardon of four sailors who were convicted in connection with the 1997 rape and murder of Michelle Moore-Bosko in Norfolk. Mr. Cullen and Mr. Troy are former Virginia attorneys general; Mr. Cullen served as U.S. attorney for the Eastern District of Virginia during the first Bush administration. They were joined by E. Tazewell Ellett, a Republican past president of the Virginia Bar Association and now a partner at the Hogan & Hartson law firm. Several other well-respected lawyers and former judges also have rallied to the side of the Norfolk 4.
Why would celebrated members of the legal establishment risk their reputations for four sailors who are neither friends nor family? Because of overwhelming evidence that Derek E. Tice, Joseph Dick Jr., Danial J. Williams and Eric C. Wilson are innocent.
The four sailors found themselves behind bars after initially admitting to the crime, in large part because of coerced confessions and after being threatened with the death penalty if they did not cooperate. From the start, serious inconsistencies suggested the confessions were not legitimate. Their accounts did not mesh with the evidence. Their stories contradicted each other. Above all, police found no physical evidence tying the four defendants to the murder scene. Three of them -- Mr. Tice, Mr. Dick and Mr. Williams -- face the prospect of life imprisonment. Only Mr. Wilson, who was convicted only of rape, is free.
The evidence shows that Ms. Moore-Bosko was raped and killed by a single assailant, Omar Ballard. Mr. Ballard wrote to a friend about the crime and boasted, "Guess who did that. Me. HA HA." When approached after police learned of the letter, Mr. Ballard claimed sole responsibility for the crime and said that "them four people who opened their mouths is stupid." Mr. Ballard is the only suspect whose DNA was found at the crime scene. He is serving a life sentence.
The four sailors filed clemency petitions more than two years ago. Gov. Timothy M. Kaine (D) said he would not rule on them until all legal avenues had been exhausted. That time has come. On Friday, the Virginia Supreme Court reversed a lower-court ruling and reinstated Mr. Tice's conviction. The court essentially rejected Mr. Tice's contention that he'd received ineffective assistance of counsel during his earlier proceedings. The court ruled on an important but narrow question of law; it did not rule on Mr. Tice's guilt or innocence or that of the others. Mr. Kaine should, and he should do it soon.
Clear the Norfolk 4
Gov. Kaine should intervene on behalf of the sailors falsely implicated in a rape and murder.
Sunday, January 13, 2008
RARE IS the case that unites prosecutors and defense lawyers, Republicans and Democrats. Rarer still is a case that finds such diverse parties calling for the pardon of multiple defendants convicted of rape and murder.
That's what has happened in the case of the so-called Norfolk 4. On Friday, Richard Cullen, a Republican, and Anthony F. Troy, a Democrat, stood before microphones in Richmond to plead for the pardon of four sailors who were convicted in connection with the 1997 rape and murder of Michelle Moore-Bosko in Norfolk. Mr. Cullen and Mr. Troy are former Virginia attorneys general; Mr. Cullen served as U.S. attorney for the Eastern District of Virginia during the first Bush administration. They were joined by E. Tazewell Ellett, a Republican past president of the Virginia Bar Association and now a partner at the Hogan & Hartson law firm. Several other well-respected lawyers and former judges also have rallied to the side of the Norfolk 4.
Why would celebrated members of the legal establishment risk their reputations for four sailors who are neither friends nor family? Because of overwhelming evidence that Derek E. Tice, Joseph Dick Jr., Danial J. Williams and Eric C. Wilson are innocent.
The four sailors found themselves behind bars after initially admitting to the crime, in large part because of coerced confessions and after being threatened with the death penalty if they did not cooperate. From the start, serious inconsistencies suggested the confessions were not legitimate. Their accounts did not mesh with the evidence. Their stories contradicted each other. Above all, police found no physical evidence tying the four defendants to the murder scene. Three of them -- Mr. Tice, Mr. Dick and Mr. Williams -- face the prospect of life imprisonment. Only Mr. Wilson, who was convicted only of rape, is free.
The evidence shows that Ms. Moore-Bosko was raped and killed by a single assailant, Omar Ballard. Mr. Ballard wrote to a friend about the crime and boasted, "Guess who did that. Me. HA HA." When approached after police learned of the letter, Mr. Ballard claimed sole responsibility for the crime and said that "them four people who opened their mouths is stupid." Mr. Ballard is the only suspect whose DNA was found at the crime scene. He is serving a life sentence.
The four sailors filed clemency petitions more than two years ago. Gov. Timothy M. Kaine (D) said he would not rule on them until all legal avenues had been exhausted. That time has come. On Friday, the Virginia Supreme Court reversed a lower-court ruling and reinstated Mr. Tice's conviction. The court essentially rejected Mr. Tice's contention that he'd received ineffective assistance of counsel during his earlier proceedings. The court ruled on an important but narrow question of law; it did not rule on Mr. Tice's guilt or innocence or that of the others. Mr. Kaine should, and he should do it soon.
Sunday, December 16, 2007
Guest Shot: That West Memphis Case -- Again
The following Op-Ed column was published in the Bentonville, Arkansas Morning News on December 15, 2007.
Truth in Justice notes that its directors believe Damien Echols, Jesse Misskelley and Jason Baldwin are innocent of the crimes for which they were convicted. If you want to understand why we have reached that conclusion, see http://www.wm3.org/. We present the following opinion to demonstrate that even those who attempt to cloak themselves in "objectivity" have reached the same conclusion.
That West Memphis Case -- Again
By John BrummettTHE MORNING NEWS
Look for a flurry of activity in the next few days from people supporting Damien Echols and those two other men from West Memphis who got sent to prison 14 years ago in part for being very weird, very eerie teenagers.
Most likely, though, this will remain for now a criminal justice matter insulated from any exercise of media and politics. There probably will be a costly and time-consuming legal process before Echols and the others might get freed.
But I predict their release, maybe full exoneration, even if not for years.
It is always possible, I guess, that Echols, Jason Baldwin and Jesse Misskelley, clad in black and talking about witchcraft as they wandered around as misfit 18-year-olds, did in fact torture and kill those three little boys in West Memphis in 1993.
It's too uncertain, though.
The prosecution had no physical evidence and relied solely on sometimes imaginative circumstantial evidence. It extracted easy guilty verdicts from juries predisposed by fear and rage.
Now there are new DNA findings, produced by a sophisticated defense team funded by celebrities like Johnny Depp, who have rallied to Echols' cause. This evidence links none of the three men to the slain boys or the crime scene.
Maybe Echols, Baldwin and Misskelley did all that alleged sodomizing, ritualizing and blood-drinking without leaving a shred of physical evidence. The little boys' bodies were found in water; perhaps the DNA was washed away. Logically, though, I must side with the growing chorus deeming this to have been, at the least, an unsupported judgment driven by emotion stirred by the horror of the crime and the outcast oddness of Echols and the two others.
The police described this as the work of a satanic cult. But outcast kids -- adults, too -- can fancy themselves as witches without being Satanists.
Misskelley, with a low IQ, gave the police a confession laced with contradictions and errors.
He recanted hours later. But the police and prosecutors were on their way. Juries convicted all three, sentencing two to life in prison and giving Echols, the scariest-looking and scariest-acting, the death penalty.
These new findings by Echols' defense team make a case that those supposed ritualistic mutilations were actually the postmortem work of animals.
People will tell you that this was an uncommonly vexing case. Every new bit of police information would neither prove nor disprove the guilt of the three.
But convictions are supposed to rise beyond a reasonable doubt.
Anyway, things are starting to percolate anew.
From Death Row, Echols was to give a telephone interview Friday to Larry King. It was to be taped for airing Wednesday night on CNN.
That day, supporters who advocate exoneration and release for Echols and the others will rally at the state Capitol. They intend to make a presentation to Gov. Mike Beebe, or at least someone with his office. It will be of a massive banner made up of supportive postcards from around the world, stretching a city block. Natalie Maines, the Dixie Chick who is no stranger to controversy, is to be on hand.
The matter has been sent back to Crittenden County Circuit Court on pleadings either for vacated verdicts or new trials.
But the state law on new post-conviction DNA evidence allows vacated verdicts only if that evidence provides prima facie proof of innocence. In this case, what we've seen so far only makes it seems even more unlikely -- or at least unproved -- that the imprisoned men did these crimes. It doesn't prove conclusively or absolutely that they couldn't have.
Beebe is too much the cautious man to free these three until and unless the argument becomes even more compelling. But Beebe also is the kind of man who would do the right thing eventually. I cannot imagine that he would let Echols get put to death. Commuting the death sentence would seem to be the least, the very least, the state ought to do. Then we could argue about whether he and the others ought to be in jail at all.
About this columnist
John Brummett has been writing about Arkansas and national politics for three decades and as a regular columnist since 1986. Last year he won first place in commentary writing from the national Association of Capitol Reporters and Editors. This year he took second place in humorous commentary in an 11-state Southern competition sponsored by the Society of Professional Journalists. Email Brummett at jbrummett@arkansasnews.com. Check out Brummett's blog for the latest in Arkansas political news.
Truth in Justice notes that its directors believe Damien Echols, Jesse Misskelley and Jason Baldwin are innocent of the crimes for which they were convicted. If you want to understand why we have reached that conclusion, see http://www.wm3.org/. We present the following opinion to demonstrate that even those who attempt to cloak themselves in "objectivity" have reached the same conclusion.
That West Memphis Case -- Again
By John BrummettTHE MORNING NEWS
Look for a flurry of activity in the next few days from people supporting Damien Echols and those two other men from West Memphis who got sent to prison 14 years ago in part for being very weird, very eerie teenagers.
Most likely, though, this will remain for now a criminal justice matter insulated from any exercise of media and politics. There probably will be a costly and time-consuming legal process before Echols and the others might get freed.
But I predict their release, maybe full exoneration, even if not for years.
It is always possible, I guess, that Echols, Jason Baldwin and Jesse Misskelley, clad in black and talking about witchcraft as they wandered around as misfit 18-year-olds, did in fact torture and kill those three little boys in West Memphis in 1993.
It's too uncertain, though.
The prosecution had no physical evidence and relied solely on sometimes imaginative circumstantial evidence. It extracted easy guilty verdicts from juries predisposed by fear and rage.
Now there are new DNA findings, produced by a sophisticated defense team funded by celebrities like Johnny Depp, who have rallied to Echols' cause. This evidence links none of the three men to the slain boys or the crime scene.
Maybe Echols, Baldwin and Misskelley did all that alleged sodomizing, ritualizing and blood-drinking without leaving a shred of physical evidence. The little boys' bodies were found in water; perhaps the DNA was washed away. Logically, though, I must side with the growing chorus deeming this to have been, at the least, an unsupported judgment driven by emotion stirred by the horror of the crime and the outcast oddness of Echols and the two others.
The police described this as the work of a satanic cult. But outcast kids -- adults, too -- can fancy themselves as witches without being Satanists.
Misskelley, with a low IQ, gave the police a confession laced with contradictions and errors.
He recanted hours later. But the police and prosecutors were on their way. Juries convicted all three, sentencing two to life in prison and giving Echols, the scariest-looking and scariest-acting, the death penalty.
These new findings by Echols' defense team make a case that those supposed ritualistic mutilations were actually the postmortem work of animals.
People will tell you that this was an uncommonly vexing case. Every new bit of police information would neither prove nor disprove the guilt of the three.
But convictions are supposed to rise beyond a reasonable doubt.
Anyway, things are starting to percolate anew.
From Death Row, Echols was to give a telephone interview Friday to Larry King. It was to be taped for airing Wednesday night on CNN.
That day, supporters who advocate exoneration and release for Echols and the others will rally at the state Capitol. They intend to make a presentation to Gov. Mike Beebe, or at least someone with his office. It will be of a massive banner made up of supportive postcards from around the world, stretching a city block. Natalie Maines, the Dixie Chick who is no stranger to controversy, is to be on hand.
The matter has been sent back to Crittenden County Circuit Court on pleadings either for vacated verdicts or new trials.
But the state law on new post-conviction DNA evidence allows vacated verdicts only if that evidence provides prima facie proof of innocence. In this case, what we've seen so far only makes it seems even more unlikely -- or at least unproved -- that the imprisoned men did these crimes. It doesn't prove conclusively or absolutely that they couldn't have.
Beebe is too much the cautious man to free these three until and unless the argument becomes even more compelling. But Beebe also is the kind of man who would do the right thing eventually. I cannot imagine that he would let Echols get put to death. Commuting the death sentence would seem to be the least, the very least, the state ought to do. Then we could argue about whether he and the others ought to be in jail at all.
About this columnist
John Brummett has been writing about Arkansas and national politics for three decades and as a regular columnist since 1986. Last year he won first place in commentary writing from the national Association of Capitol Reporters and Editors. This year he took second place in humorous commentary in an 11-state Southern competition sponsored by the Society of Professional Journalists. Email Brummett at jbrummett@arkansasnews.com. Check out Brummett's blog for the latest in Arkansas political news.
Sunday, December 09, 2007
Acceptable Error Rates
On December 7, 2007, the Associated Press reported that Harris County, Texas is getting help in reviewing cases with questionable blood analysis work done by the Houston Police Department crime lab. The Innocence Project of Texas will assist in the review of 180 cases identified as having "major problems" related to shoddy serology work by the crime lab.
Three inmates have been released because of sloppy work and, potentially, forensic fraud by the Houston Police Department crime lab. The DNA section of the crime lab was so rife with problems that it was shut down in 2002 (although it has since been re-opened). Inaccuracies were also found in lab divisions that test firearms, body fluids and controlled substances. These issues are not included in the current review, which is limited to problems with blood analysis.
The AP report goes on to say that some of the 180 cases being reviewed go back to the 1980's and include death row prisoners. In October of 2007, Bob Wicoff, one of the defense attorneys leading the review, held video conferences with 160 of the inmates who are still in prison.
And then came the most chilling sentence: "Of the remaining 20 cases, half are inmates who have been executed and half have been freed from prison."
Let me translate the pertinent part into plain English: Ten of the inmates whose cases have "major problems" with the serology work that convicted them have been executed.
They are dead, killed by the State of Texas, the most efficient death machine in the nation. No apology can bring them back. But, then, we doubt any apology will be needed, because no matter what evidence of innocence is produced post-mortem, the Texas authorities will deny that it proves anything. Intractable denial is essential to the continued operation of the death machine. As long as the public wants blood – or, more appropriately these days, lethal injection – politicians, prosecutors and police will make sure they get it. Little has changed since Aztecs offered human sacrifice on the steps of the Great Pyramid of Tenochtitlan "so that others may live."
Keep in mind that the ten executed inmates whose convictions were obtained by bogus blood work do not represent a statewide figure. This is just Harris County. There is another batch under review in Dallas. And neither of these groups include Gary Gilmore, Cameron Todd Willingham or Rubin Cantu. And, of course, similar cases in other states are not represented here, either.
Which brings us to the questions each person must answer for himself or herself: What is an acceptable error rate in death penalty cases? How many innocent people are you willing to execute in order to get the guilty ones? One per hundred? Two? Three? Ten? Do you really believe science makes the process error-free? Are you willing to be put to death yourself, or hand over your innocent spouse or parent or child in order to feed the death machine?
When you answer these questions, act accordingly.
Three inmates have been released because of sloppy work and, potentially, forensic fraud by the Houston Police Department crime lab. The DNA section of the crime lab was so rife with problems that it was shut down in 2002 (although it has since been re-opened). Inaccuracies were also found in lab divisions that test firearms, body fluids and controlled substances. These issues are not included in the current review, which is limited to problems with blood analysis.
The AP report goes on to say that some of the 180 cases being reviewed go back to the 1980's and include death row prisoners. In October of 2007, Bob Wicoff, one of the defense attorneys leading the review, held video conferences with 160 of the inmates who are still in prison.
And then came the most chilling sentence: "Of the remaining 20 cases, half are inmates who have been executed and half have been freed from prison."
Let me translate the pertinent part into plain English: Ten of the inmates whose cases have "major problems" with the serology work that convicted them have been executed.
They are dead, killed by the State of Texas, the most efficient death machine in the nation. No apology can bring them back. But, then, we doubt any apology will be needed, because no matter what evidence of innocence is produced post-mortem, the Texas authorities will deny that it proves anything. Intractable denial is essential to the continued operation of the death machine. As long as the public wants blood – or, more appropriately these days, lethal injection – politicians, prosecutors and police will make sure they get it. Little has changed since Aztecs offered human sacrifice on the steps of the Great Pyramid of Tenochtitlan "so that others may live."
Keep in mind that the ten executed inmates whose convictions were obtained by bogus blood work do not represent a statewide figure. This is just Harris County. There is another batch under review in Dallas. And neither of these groups include Gary Gilmore, Cameron Todd Willingham or Rubin Cantu. And, of course, similar cases in other states are not represented here, either.
Which brings us to the questions each person must answer for himself or herself: What is an acceptable error rate in death penalty cases? How many innocent people are you willing to execute in order to get the guilty ones? One per hundred? Two? Three? Ten? Do you really believe science makes the process error-free? Are you willing to be put to death yourself, or hand over your innocent spouse or parent or child in order to feed the death machine?
When you answer these questions, act accordingly.
Monday, December 03, 2007
Guest Shot: Innocent Inmates – Legislation would benefit wrongly convicted
This editorial was published by the Salt Lake City (Utah) Tribune on December 3, 2007.
"Innocence is the weakest defense. Innocence has a single voice that can only say over and over again, 'I didn't do it.' Guilt has a thousand voices, all of them lies." - LEONARD F. PELTIER, Prison Writings
The Greek philosopher Diogenes spent his days walking the streets of Athens with a lighted lantern, looking for an honest man. As the story goes, he never found one.
The lawyers at the Rocky Mountain Innocence Center are hoping they have better luck as they look for innocent men and women among prison inmates in three states. They won the release in 2004 of a man who had spent 19 years in prison for a Salt Lake City murder, but whose conviction was put in doubt by DNA testing. Three other cases are being reviewed. Nationwide, 208 inmates have been exonerated by DNA testing, and in 77 of those cases, the real perpetrator was found.
Along with its commendable work in exonerating innocent prisoners, the Rocky Mountain center is promoting legislation in Utah that would make restitution to innocent people who have had their lives derailed by wrongful convictions. It also would outline a way that inmates can be found innocent based on evidence other than DNA.
The legislation would provide an exonerated person $40,000 for each year spent in prison, and an additional $30,000 a year for death-row inmates, if they agreed this would be the "exclusive remedy." That means they would give up their right to sue the state for damages. Other compensation would be allowed in "exceptional circumstances"; for example, if an inmate were injured while in prison.
The Legislature should consider this proposal, which is supported by the Utah Attorney General's Office.
First, of course, is the moral imperative: In cases of wrongful conviction, the state may have taken years of a person's life, ruined a reputation and inflicted pain and suffering on friends and family members, all because of a miscarriage of justice. The state should do what it can to make it right.
In addition, the state would be wise to offer immediate cash compensation to avoid the possibility of having to pay a huge award if an exonerated person sued for damages. Nationwide, such awards have ranged from $300,000 to more than $10 million.
If convicted criminals owe a debt to society, does society owe a debt to the wrongly convicted?
We believe it does, and this legislation may be the answer.
"Innocence is the weakest defense. Innocence has a single voice that can only say over and over again, 'I didn't do it.' Guilt has a thousand voices, all of them lies." - LEONARD F. PELTIER, Prison Writings
The Greek philosopher Diogenes spent his days walking the streets of Athens with a lighted lantern, looking for an honest man. As the story goes, he never found one.
The lawyers at the Rocky Mountain Innocence Center are hoping they have better luck as they look for innocent men and women among prison inmates in three states. They won the release in 2004 of a man who had spent 19 years in prison for a Salt Lake City murder, but whose conviction was put in doubt by DNA testing. Three other cases are being reviewed. Nationwide, 208 inmates have been exonerated by DNA testing, and in 77 of those cases, the real perpetrator was found.
Along with its commendable work in exonerating innocent prisoners, the Rocky Mountain center is promoting legislation in Utah that would make restitution to innocent people who have had their lives derailed by wrongful convictions. It also would outline a way that inmates can be found innocent based on evidence other than DNA.
The legislation would provide an exonerated person $40,000 for each year spent in prison, and an additional $30,000 a year for death-row inmates, if they agreed this would be the "exclusive remedy." That means they would give up their right to sue the state for damages. Other compensation would be allowed in "exceptional circumstances"; for example, if an inmate were injured while in prison.
The Legislature should consider this proposal, which is supported by the Utah Attorney General's Office.
First, of course, is the moral imperative: In cases of wrongful conviction, the state may have taken years of a person's life, ruined a reputation and inflicted pain and suffering on friends and family members, all because of a miscarriage of justice. The state should do what it can to make it right.
In addition, the state would be wise to offer immediate cash compensation to avoid the possibility of having to pay a huge award if an exonerated person sued for damages. Nationwide, such awards have ranged from $300,000 to more than $10 million.
If convicted criminals owe a debt to society, does society owe a debt to the wrongly convicted?
We believe it does, and this legislation may be the answer.
Wednesday, November 28, 2007
Guest Shot: With Execution, Let's Make Certain
Editorial originally published November 28, 2007 in the Tuscaloosa (AL) Times at http://www.tuscaloosanews.com/article/20071128/NEWS/711280302/1027/EDITORIAL
You would like to think that our government would take every step possible in advance of a legal execution to ensure that it was not taking the life of a person innocent of the crime.
Unfortunately, the U.S. Supreme Court didn't see it that way. Instead, it refused Monday to reconsider DNA testing for Tommy Douglas Arthur, schedule to die Dec. 6 for a 1982 murder in Muscle Shoals.
Arthur's daughter said the court relied on a technicality in Alabama law that requires post-conviction challenges to be filed within a certain period of time. However, she points to the fact that Alabama does not provide attorneys for post-conviction appeals, leading Arthur to miss the window of opportunity to file a challenge based on lack of DNA testing.
Ah, the old Catch-22 of the death penalty in Alabama.
The state, needless to say, doesn't require DNA testing in murder cases.
Arthur may be guilty as charged, but his case poses enough questions to warrant a DNA test. Testimony of an eyewitness placed him 75 miles away from the murder. The victim's wife, who said she was raped, testified at first that Arthur was not the murderer. Later, she changed her story, claiming that Arthur killed her husband to let her collect on a $90,000 life policy.There was no physical evidence at his trial linking him directly to the crime.
With Arthur's execution pending, all of this is disturbing. Gov. Bob Riley, obviously bothered by the case, has asked a national organization, The Innocence Project, for information about DNA tests. The group is dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.
Riley has the power to delay Arthur's execution while conclusive DNA tests are done. He should do so.
We hope the governor ultimately advocates for mandatory DNA tests in Alabama murder cases. The absence of such a requirement is one of many unconscionable loopholes in the state's capital code.
You would like to think that our government would take every step possible in advance of a legal execution to ensure that it was not taking the life of a person innocent of the crime.
Unfortunately, the U.S. Supreme Court didn't see it that way. Instead, it refused Monday to reconsider DNA testing for Tommy Douglas Arthur, schedule to die Dec. 6 for a 1982 murder in Muscle Shoals.
Arthur's daughter said the court relied on a technicality in Alabama law that requires post-conviction challenges to be filed within a certain period of time. However, she points to the fact that Alabama does not provide attorneys for post-conviction appeals, leading Arthur to miss the window of opportunity to file a challenge based on lack of DNA testing.
Ah, the old Catch-22 of the death penalty in Alabama.
The state, needless to say, doesn't require DNA testing in murder cases.
Arthur may be guilty as charged, but his case poses enough questions to warrant a DNA test. Testimony of an eyewitness placed him 75 miles away from the murder. The victim's wife, who said she was raped, testified at first that Arthur was not the murderer. Later, she changed her story, claiming that Arthur killed her husband to let her collect on a $90,000 life policy.There was no physical evidence at his trial linking him directly to the crime.
With Arthur's execution pending, all of this is disturbing. Gov. Bob Riley, obviously bothered by the case, has asked a national organization, The Innocence Project, for information about DNA tests. The group is dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.
Riley has the power to delay Arthur's execution while conclusive DNA tests are done. He should do so.
We hope the governor ultimately advocates for mandatory DNA tests in Alabama murder cases. The absence of such a requirement is one of many unconscionable loopholes in the state's capital code.
Monday, November 26, 2007
Updated Message from Sherrie Stone, Daughter of Thomas Arthur
My father Thomas Arthur, Alabama death row inmate is scheduled for execution December 06, 2007. In spite of the United States Supreme Court ruling on lethal injection and it's constitutionality next year. In spite of most states delaying executions until the United States Supreme Court rules. With all this going on, the state of Alabama has scheduled Thomas Arthur's execution for next week 12-06-2007.
The real issue in his case is the fact that crime scene evidence was collected and still exists that the State of Alabama refuses to DNA test. Evidence that includes hair, semen, blood, shell casings and many other items. DNA testing of these items can prove that Thomas Arthur is innocent and was never at the crime scene. He has sat on death row for over 20 years for a crime he is innocent of.
In November of 2007, this month, Alabama Governor Bob Riley requested post-conviction DNA testing guide lines from the Innocence Project based in New York, run by Barry Scheck & Peter Neufeld. The Innocence Project sent the requested information and highly recommended that the Governor allow DNA testing in this case. However, the Governor has taken no further steps since receiving the information.
I have a web site dedicated to my father that has a copy of the letter the Innocence Project sent to Governor Riley. The web sit also has in depth case information and links to all the legal documents. Amnesty International has intervened, the Innocence Project has intervened and thousands of others all over the world. All parties have been denied a meeting with the Governor, including myself and my fathers attorneys. Matter of fact, I recently received a letter from the Governor that he had no intentions of staying the execution. A copy of that letter is on the web site.
My father currently has two motions in the United States Supreme Court, one on the DNA testing, and another on the lethal injection constitutionality. His attorneys are filing stays today in the United States Supreme Court. The Alabama Supreme Court has denied all current motions. Links to all motions filed are found on the media page of the web site. If you truly care about justice, you can find all the information at http://www.thomasarthurfightforlife.com/
Click HERE for the letter the Innocence Project sent to Governor Riley on November 05, 2007.
The real issue in his case is the fact that crime scene evidence was collected and still exists that the State of Alabama refuses to DNA test. Evidence that includes hair, semen, blood, shell casings and many other items. DNA testing of these items can prove that Thomas Arthur is innocent and was never at the crime scene. He has sat on death row for over 20 years for a crime he is innocent of.
In November of 2007, this month, Alabama Governor Bob Riley requested post-conviction DNA testing guide lines from the Innocence Project based in New York, run by Barry Scheck & Peter Neufeld. The Innocence Project sent the requested information and highly recommended that the Governor allow DNA testing in this case. However, the Governor has taken no further steps since receiving the information.
I have a web site dedicated to my father that has a copy of the letter the Innocence Project sent to Governor Riley. The web sit also has in depth case information and links to all the legal documents. Amnesty International has intervened, the Innocence Project has intervened and thousands of others all over the world. All parties have been denied a meeting with the Governor, including myself and my fathers attorneys. Matter of fact, I recently received a letter from the Governor that he had no intentions of staying the execution. A copy of that letter is on the web site.
My father currently has two motions in the United States Supreme Court, one on the DNA testing, and another on the lethal injection constitutionality. His attorneys are filing stays today in the United States Supreme Court. The Alabama Supreme Court has denied all current motions. Links to all motions filed are found on the media page of the web site. If you truly care about justice, you can find all the information at http://www.thomasarthurfightforlife.com/
Click HERE for the letter the Innocence Project sent to Governor Riley on November 05, 2007.
Saturday, November 17, 2007
Refusing to Admit Error
Psychologists tell us that cognitive dissonance occurs when we have two ideas that are irreconcilably opposed – ideas such as "the defendant is guilty" and "DNA shows the defendant is innocent." We want to believe we are honorable, competent people. Cognitive dissonance causes mental anguish because it suggests we are neither honorable nor competent. This, say the experts, is the most powerful cause of denial and self-justification, which prompt us to dig in our heels and justify our original position in the face of strong, even crushing evidence that we are wrong.
Nowhere is denial and justification seen as often as in the criminal justice system which, in turn, is the single greatest barrier to reforming the criminal justice system. When Roy Criner was excluded by DNA three times, Texas Court of Criminal Appeals Presiding Judge Sharon Keller claimed Criner must have used a condom, and said that the young girl who was raped and killed was promiscuous, in direct contradiction of all evidence in the case. Earl Washington was similarly excluded three times by DNA in a rape and murder in Virginia, yet a series of Virginia Attorneys General continued to claim he was "not innocent." This disingenuous ploy leads to only one conclusion: Earl Washington must have raped the victim with another man’s sperm.
We have recently been treated–for lack of a better term–to denial and self-justification by prosecutors in three wrongful conviction cases in widely separated parts of the country.
In Buffalo, NY, Erie County DA Frank J. Clark is opposing a new trial for Lynn DeJac, who was convicted of strangling her 13-year-old daughter Crystallynn fourteen years ago. Clark maintains that DeJac is guilty, despite the fact that Dennis Donohue–the man DeJac has said all along killed her child–has been arrested for two similar stranglings, and his DNA was found in blood spots on the bed and wall in the child’s bedroom and in vaginal swabs taken from her body. When three Buffalo detectives publicly stated they believe DeJac is innocent, Clark was incensed. "It’s absolutely inappropriate for them to express an opinion on the issue of guilt or innocence," Clark fumed. Clark says there is no way to know when Donohue’s semen got inside Crystallynn. He implies that there was a consensual sexual relationship between Donohue and Crystallynn, and that there’s nothing unusual or wrong about that.
Half a continent away, in Lansing, MI, Ingham County prosecutor Stuart Dunnings, III joined Claude McCollum’s defense attorney, Hugh Clarke, Jr., in asking that McCollum’s rape and murder conviction be set aside when a serial killer, Matthew Macon, confessed to the crime McCollum was convicted of committing. So far, so good. But this prompted a closer look at the prosecution of McCollum: his "confession" was not a confession, he was excluded by DNA but tried anyway, and the prosecution withheld evidence that proved McCollum was in another location when the crime occurred. Dunning deflected questions about his ethics and an investigation by the Michigan Attorney General by pointing his finger in every direction but his own. McCollum’s defense attorney should have been able to figure out that the video showing McCollum was in a different building on the campus of Lansing Community College when Prof. Kronenberg was killed in her classroom was recorded at the same time the murder occurred. The presiding judge could have dismissed the charge instead of sending it to the jury. Dunning even wrote an op-ed piece published in the Lansing State Journal on October 27, 2007 blaming everyone but himself, and ignoring the fact that Dunning pursued McCollum’s prosecution even though he knew all of the facts concealed from defense counsel and the judge.
In Big Sky Country, Montana Attorney General Mike McGrath and Yellowstone County officials have borrowed a page from Virginia’s playbook. In 2002, when Jimmy Bromgard was cleared by DNA of the rape of an 8-year-old girl in her Billings, MT home, McGrath admitted the state had imprisoned an innocent man. In 2005, Bromgard filed a lawsuit against Montana, Yellowstone County and others, alleging his civil rights had been violated. Pivoting 180 degrees on a dime, McGrath now propounds scenarios to explain who might have left the semen (including the child’s father) while keeping Bromgard in the loop as "not innocent." Yellowstone County has yet another theory to keep Bromgard in the "not innocent" category. Acknowledging that Bromgard is innocent of raping the child, the County now suggests he burglarized the girl’s home the night of the assault.
So are these folks all suffering from cognitive dissonance? Are they honorable, competent men struggling to make sense of the terrible mistakes they made, trying to do the right thing long after they did the wrong thing?
No. Not one of them. Their motives are crass and self-serving. Their actions are despicable, and fit the definition of obstruction of justice: interference, through words or actions, with the proper operations of a court or officers of the court. Let’s take a closer look at each of these nay-sayers to see what motivates them.
In Buffalo, NY, David Clark insists that, even with the new DNA evidence and the similarities between the murder of Lynn DeJac’s daughter and two other women killed by Dennis Donohue, there is not enough evidence to get Donohue indicted. The truth is, Donohue can’t be prosecuted for Crystallynn’s murder because Clark gave him complete immunity in exchange for his testimony against DeJac at her trial. When it sinks in with the voters of Erie County, NY that the DA made sure there can never be justice for a child who was brutally raped and killed in her own bed, one would hope that Clark will be turned out of office.
So far, Ingham County, MI residents have only demanded to know why Stuart Dunnings, III took the prosecution of Claude McCollum forward knowing–as he demonstrably did–that McCollum was excluded by DNA and that he was nowhere near the crime scene when it happened. Remember, it was the confession of Matthew Macon to the murder of Prof. Kronenberg that led, rapidly, to the disintegration of the case against McCollum. Macon is a serial killer. During the time McCollum was being prosecuted and then began serving a life sentence for someone else’s crime, Macon killed five more people. Dunnings is in denial because sooner or later, the people of Ingham County will start asking how many of those five people would not have been murdered if Dunnings had not fostered a false sense of security by prosecuting McCollum.
The impetus for Montana Attorney General Mike McGrath’s about-face is money. It’s one thing to acknowledge the obvious, that an innocent man spent 15 years in prison for a crime he did not commit, but it’s quite another to compensate him. Bromgard went to prison when he was 18 years old. For nearly half his life, he was a target for other inmates who wanted to beat up a child molester. Bromgard had a terrible, terrible time. While other young men his age went to college, got married and had careers, Bromgard was cutting license plates. No amount of money can repay him for the years stolen by his wrongful conviction. But McGrath–on behalf of the State of Montana–doesn’t want to give Bromgard any money. So he grasps at irrational straws to keep Jimmy Bromgard in the "not innocent" loop. And he tries to do it on the hush-hush. After the Chicago Tribune published McGrath’s "not innocent" theories given at deposition, lawyers for the state asked the court to seal all case documents and issue a gag order to squelch the bad publicity. The court refused those requests and the case remains open to the public. That means the people of Montana can see what their AG is up to, and they can act accordingly.
Clark, Dunnings and McGrath are not honorable men struggling to come to grips with the terrible consequences of a legal system that can and does crush the innocent. They have betrayed the trust placed in them, and they should be held accountable by the people they are supposed to be serving.
Nowhere is denial and justification seen as often as in the criminal justice system which, in turn, is the single greatest barrier to reforming the criminal justice system. When Roy Criner was excluded by DNA three times, Texas Court of Criminal Appeals Presiding Judge Sharon Keller claimed Criner must have used a condom, and said that the young girl who was raped and killed was promiscuous, in direct contradiction of all evidence in the case. Earl Washington was similarly excluded three times by DNA in a rape and murder in Virginia, yet a series of Virginia Attorneys General continued to claim he was "not innocent." This disingenuous ploy leads to only one conclusion: Earl Washington must have raped the victim with another man’s sperm.
We have recently been treated–for lack of a better term–to denial and self-justification by prosecutors in three wrongful conviction cases in widely separated parts of the country.
In Buffalo, NY, Erie County DA Frank J. Clark is opposing a new trial for Lynn DeJac, who was convicted of strangling her 13-year-old daughter Crystallynn fourteen years ago. Clark maintains that DeJac is guilty, despite the fact that Dennis Donohue–the man DeJac has said all along killed her child–has been arrested for two similar stranglings, and his DNA was found in blood spots on the bed and wall in the child’s bedroom and in vaginal swabs taken from her body. When three Buffalo detectives publicly stated they believe DeJac is innocent, Clark was incensed. "It’s absolutely inappropriate for them to express an opinion on the issue of guilt or innocence," Clark fumed. Clark says there is no way to know when Donohue’s semen got inside Crystallynn. He implies that there was a consensual sexual relationship between Donohue and Crystallynn, and that there’s nothing unusual or wrong about that.
Half a continent away, in Lansing, MI, Ingham County prosecutor Stuart Dunnings, III joined Claude McCollum’s defense attorney, Hugh Clarke, Jr., in asking that McCollum’s rape and murder conviction be set aside when a serial killer, Matthew Macon, confessed to the crime McCollum was convicted of committing. So far, so good. But this prompted a closer look at the prosecution of McCollum: his "confession" was not a confession, he was excluded by DNA but tried anyway, and the prosecution withheld evidence that proved McCollum was in another location when the crime occurred. Dunning deflected questions about his ethics and an investigation by the Michigan Attorney General by pointing his finger in every direction but his own. McCollum’s defense attorney should have been able to figure out that the video showing McCollum was in a different building on the campus of Lansing Community College when Prof. Kronenberg was killed in her classroom was recorded at the same time the murder occurred. The presiding judge could have dismissed the charge instead of sending it to the jury. Dunning even wrote an op-ed piece published in the Lansing State Journal on October 27, 2007 blaming everyone but himself, and ignoring the fact that Dunning pursued McCollum’s prosecution even though he knew all of the facts concealed from defense counsel and the judge.
In Big Sky Country, Montana Attorney General Mike McGrath and Yellowstone County officials have borrowed a page from Virginia’s playbook. In 2002, when Jimmy Bromgard was cleared by DNA of the rape of an 8-year-old girl in her Billings, MT home, McGrath admitted the state had imprisoned an innocent man. In 2005, Bromgard filed a lawsuit against Montana, Yellowstone County and others, alleging his civil rights had been violated. Pivoting 180 degrees on a dime, McGrath now propounds scenarios to explain who might have left the semen (including the child’s father) while keeping Bromgard in the loop as "not innocent." Yellowstone County has yet another theory to keep Bromgard in the "not innocent" category. Acknowledging that Bromgard is innocent of raping the child, the County now suggests he burglarized the girl’s home the night of the assault.
So are these folks all suffering from cognitive dissonance? Are they honorable, competent men struggling to make sense of the terrible mistakes they made, trying to do the right thing long after they did the wrong thing?
No. Not one of them. Their motives are crass and self-serving. Their actions are despicable, and fit the definition of obstruction of justice: interference, through words or actions, with the proper operations of a court or officers of the court. Let’s take a closer look at each of these nay-sayers to see what motivates them.
In Buffalo, NY, David Clark insists that, even with the new DNA evidence and the similarities between the murder of Lynn DeJac’s daughter and two other women killed by Dennis Donohue, there is not enough evidence to get Donohue indicted. The truth is, Donohue can’t be prosecuted for Crystallynn’s murder because Clark gave him complete immunity in exchange for his testimony against DeJac at her trial. When it sinks in with the voters of Erie County, NY that the DA made sure there can never be justice for a child who was brutally raped and killed in her own bed, one would hope that Clark will be turned out of office.
So far, Ingham County, MI residents have only demanded to know why Stuart Dunnings, III took the prosecution of Claude McCollum forward knowing–as he demonstrably did–that McCollum was excluded by DNA and that he was nowhere near the crime scene when it happened. Remember, it was the confession of Matthew Macon to the murder of Prof. Kronenberg that led, rapidly, to the disintegration of the case against McCollum. Macon is a serial killer. During the time McCollum was being prosecuted and then began serving a life sentence for someone else’s crime, Macon killed five more people. Dunnings is in denial because sooner or later, the people of Ingham County will start asking how many of those five people would not have been murdered if Dunnings had not fostered a false sense of security by prosecuting McCollum.
The impetus for Montana Attorney General Mike McGrath’s about-face is money. It’s one thing to acknowledge the obvious, that an innocent man spent 15 years in prison for a crime he did not commit, but it’s quite another to compensate him. Bromgard went to prison when he was 18 years old. For nearly half his life, he was a target for other inmates who wanted to beat up a child molester. Bromgard had a terrible, terrible time. While other young men his age went to college, got married and had careers, Bromgard was cutting license plates. No amount of money can repay him for the years stolen by his wrongful conviction. But McGrath–on behalf of the State of Montana–doesn’t want to give Bromgard any money. So he grasps at irrational straws to keep Jimmy Bromgard in the "not innocent" loop. And he tries to do it on the hush-hush. After the Chicago Tribune published McGrath’s "not innocent" theories given at deposition, lawyers for the state asked the court to seal all case documents and issue a gag order to squelch the bad publicity. The court refused those requests and the case remains open to the public. That means the people of Montana can see what their AG is up to, and they can act accordingly.
Clark, Dunnings and McGrath are not honorable men struggling to come to grips with the terrible consequences of a legal system that can and does crush the innocent. They have betrayed the trust placed in them, and they should be held accountable by the people they are supposed to be serving.
Monday, November 05, 2007
Guest Shot: New policies are needed to halt unjust convictions
by Katherine Ramsland
This opinion originally appeared in the Philadelphia Inquirer on Nov. 4, 2007.
Katherine Ramsland teaches forensic psychology at DeSales University
When the U.S. Supreme Court mandated the Miranda warning in 1966, it did so to protect the public against coerced self-incrimination. But some law-enforcement agencies resisted. They said that articulating those rights hampered their ability to get confessions and released more criminals on technicalities. In other words, if an arresting officer forgot the warning or failed to notice that the subject was not competent enough to waive protected rights, the case could be tossed.
Now we are seeing a host of new policy changes on the horizon. These changes will help minimize false convictions. And again, we see resistance from the very people who should care most about justice for all. It is almost as if the law-enforcement establishment believes it is more important to convict and then let the system sort it out. But those who believe this have not fully grasped the harm some current procedures have perpetrated on the innocent. Law enforcement should welcome - not reject - changes designed to protect.
The main problem is that many innocent people have been convicted. The number we know of is very large, and - given the problems discovered with formerly accepted legal procedures and certain types of evidence - it stands to reason that many more innocents are serving time or possibly have been executed.
Proposed changes in courts around the country directly address this issue. They include: improved procedures for the identification of suspects, including expanded use of DNA technologies; improved efforts to corroborate information given by informants or "snitches"; and higher standards for crime labs. Some long-enshrined procedures are now being reviewed with a newly critical eye. For example, research in psychology for more than a century has proven repeatedly that eyewitness testimony (a leading factor in false convictions) is fallible. Finally, officials are listening.
And yet there is still resistance in many law-enforcement circles.
Here are some sobering statistics from the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University. Since 1989, this group has freed 208 men via postconviction DNA analysis on biological samples from their supposed crimes. Fifteen were on death row, facing execution for something they did not do. The average length of time served was 12 years, with many in prison for more than two decades. The total number of known years served by the innocent is a staggering 2,563. And these are just the statistics for the small percentage of cases in which biological evidence was involved (and testable), and for which the overburdened personnel at the Innocence Project had time. They currently have tens of thousands of letters in their files from inmates begging for help.
Here's just one example of how the system broke down. In Texas, Roy Criner received a prison term in 1990 of 99 years for the rape and killing of a teenage girl. Later, he submitted to DNA testing, and the results excluded him as the rapist. The Texas Court of Appeals, however, ruled this evidence would have made no difference to the conviction, so he remained in prison.
Then a local reporter found more evidence of Criner's innocence. A cigarette butt, previously discounted, was tested for DNA. The test result proved that the person who had smoked it had been the rapist-murderer - and that this person was not Criner. After serving 10 years for a crime he did not commit, he finally was set free.
"It breaks you down." Those are the words of one exonerated convict in the documentary movie After Innocence. It features cases such as that of Nick Yarris, who spent 22 years on Pennsylvania's death row for murder. Even after he was freed, he could not persuade the prosecutor to send the DNA profile that had exonerated him to a national database to assist in identifying the real killer.
It is almost as if law enforcement does not want to identify and exonerate the innocent. Eight states do not yet mandate giving inmates postconviction access to DNA analysis. Five states defeated bills intended to change policies on eyewitness identification. The California State Sheriff's Association opposes bills that require officials to record interrogations and corroborate informant information; the purported fear is that such procedures would create loopholes for defense attorneys to exploit. This organization also opposes new procedures for suspect lineups. Research has revealed that witnesses, when asked to pick from lineups, make comparisons among those lined up, which can alter their memory. Or they may simply choose the one who "looks" criminal. (The recent study by the Chicago police department that "proved" that current methods worked just fine was significantly flawed.)
Even if the system releases the innocent, it sometimes seems to wish to punish them somehow anyway. The conviction records of many exonerated individuals are not expunged, making it difficult for them to find employment and even a place to live. Their most productive work years are lost, and they can expect little or no assistance with integration back into the community. A few have received payouts from successful lawsuits, but most have nothing. Some say it was easier for them in prison.
It seems that some of our sworn protectors would rather protect themselves. Why else would they resist policy changes arising from verified harm? These system failures ought to disappoint law-enforcement personnel, as they did Gov. George Ryan in Illinois. Upon learning that 13 men on Illinois' death row had been exonerated, Ryan commuted the sentences of all death-row inmates because he recognized that changes were needed.
The English jurist William Blackstone famously said: "Better that 10 guilty persons escape than that one innocent suffer." Apparently that's literary fluff to some people. They should talk to exonerated convicts. Of course, we should expect collateral damage within any human institution, but if we have identified ways to reduce it, we should utilize them. It is shocking that officials entrusted with public safety would worry more about technical slip-ups that might free a guilty person than about errors that repeatedly have victimized the innocent.
This opinion originally appeared in the Philadelphia Inquirer on Nov. 4, 2007.
Katherine Ramsland teaches forensic psychology at DeSales University
When the U.S. Supreme Court mandated the Miranda warning in 1966, it did so to protect the public against coerced self-incrimination. But some law-enforcement agencies resisted. They said that articulating those rights hampered their ability to get confessions and released more criminals on technicalities. In other words, if an arresting officer forgot the warning or failed to notice that the subject was not competent enough to waive protected rights, the case could be tossed.
Now we are seeing a host of new policy changes on the horizon. These changes will help minimize false convictions. And again, we see resistance from the very people who should care most about justice for all. It is almost as if the law-enforcement establishment believes it is more important to convict and then let the system sort it out. But those who believe this have not fully grasped the harm some current procedures have perpetrated on the innocent. Law enforcement should welcome - not reject - changes designed to protect.
The main problem is that many innocent people have been convicted. The number we know of is very large, and - given the problems discovered with formerly accepted legal procedures and certain types of evidence - it stands to reason that many more innocents are serving time or possibly have been executed.
Proposed changes in courts around the country directly address this issue. They include: improved procedures for the identification of suspects, including expanded use of DNA technologies; improved efforts to corroborate information given by informants or "snitches"; and higher standards for crime labs. Some long-enshrined procedures are now being reviewed with a newly critical eye. For example, research in psychology for more than a century has proven repeatedly that eyewitness testimony (a leading factor in false convictions) is fallible. Finally, officials are listening.
And yet there is still resistance in many law-enforcement circles.
Here are some sobering statistics from the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University. Since 1989, this group has freed 208 men via postconviction DNA analysis on biological samples from their supposed crimes. Fifteen were on death row, facing execution for something they did not do. The average length of time served was 12 years, with many in prison for more than two decades. The total number of known years served by the innocent is a staggering 2,563. And these are just the statistics for the small percentage of cases in which biological evidence was involved (and testable), and for which the overburdened personnel at the Innocence Project had time. They currently have tens of thousands of letters in their files from inmates begging for help.
Here's just one example of how the system broke down. In Texas, Roy Criner received a prison term in 1990 of 99 years for the rape and killing of a teenage girl. Later, he submitted to DNA testing, and the results excluded him as the rapist. The Texas Court of Appeals, however, ruled this evidence would have made no difference to the conviction, so he remained in prison.
Then a local reporter found more evidence of Criner's innocence. A cigarette butt, previously discounted, was tested for DNA. The test result proved that the person who had smoked it had been the rapist-murderer - and that this person was not Criner. After serving 10 years for a crime he did not commit, he finally was set free.
"It breaks you down." Those are the words of one exonerated convict in the documentary movie After Innocence. It features cases such as that of Nick Yarris, who spent 22 years on Pennsylvania's death row for murder. Even after he was freed, he could not persuade the prosecutor to send the DNA profile that had exonerated him to a national database to assist in identifying the real killer.
It is almost as if law enforcement does not want to identify and exonerate the innocent. Eight states do not yet mandate giving inmates postconviction access to DNA analysis. Five states defeated bills intended to change policies on eyewitness identification. The California State Sheriff's Association opposes bills that require officials to record interrogations and corroborate informant information; the purported fear is that such procedures would create loopholes for defense attorneys to exploit. This organization also opposes new procedures for suspect lineups. Research has revealed that witnesses, when asked to pick from lineups, make comparisons among those lined up, which can alter their memory. Or they may simply choose the one who "looks" criminal. (The recent study by the Chicago police department that "proved" that current methods worked just fine was significantly flawed.)
Even if the system releases the innocent, it sometimes seems to wish to punish them somehow anyway. The conviction records of many exonerated individuals are not expunged, making it difficult for them to find employment and even a place to live. Their most productive work years are lost, and they can expect little or no assistance with integration back into the community. A few have received payouts from successful lawsuits, but most have nothing. Some say it was easier for them in prison.
It seems that some of our sworn protectors would rather protect themselves. Why else would they resist policy changes arising from verified harm? These system failures ought to disappoint law-enforcement personnel, as they did Gov. George Ryan in Illinois. Upon learning that 13 men on Illinois' death row had been exonerated, Ryan commuted the sentences of all death-row inmates because he recognized that changes were needed.
The English jurist William Blackstone famously said: "Better that 10 guilty persons escape than that one innocent suffer." Apparently that's literary fluff to some people. They should talk to exonerated convicts. Of course, we should expect collateral damage within any human institution, but if we have identified ways to reduce it, we should utilize them. It is shocking that officials entrusted with public safety would worry more about technical slip-ups that might free a guilty person than about errors that repeatedly have victimized the innocent.
Sunday, October 21, 2007
Guest Shot: America’s Police Brutality Pandemic
by Paul Craig Roberts
This opinion was originally published on September 26, 2007 at http://www.lewrockwell.com/roberts/roberts224.html
Bush’s "war on terror" quickly became Bush’s war on Iraqi civilians. So far over one million Iraqi civilians have lost their lives because of Bush’s invasion, and four million have been displaced. Iraq’s infrastructure is in ruins. Disease is rampart. Normal life has disappeared.
Self-righteous Americans justify these monstrous crimes as necessary to ensure their own safety from terrorist attack. Yet, Americans are in far greater danger from their own police forces than they are from foreign terrorists. Ironically, Bush’s "war on terror" has made Americans less safe at home by diminishing US civil liberty and turning an epidemic of US police brutality into a pandemic.
The only terrorist most Americans will ever encounter is a policeman with a badge, nightstick, mace and Taser. A Google search for "police brutality videos" turns up 2,210,000 entries. Some entries are foreign and some are probably duplications, but the number is so large that a person could do nothing but watch police brutality videos for the rest of his life. A search on "You Tube" alone turned up 2,280 police brutality videos. PrisonPlanet has a selection of the most outrageous recent cases.
Police brutality has crossed the line from using excessive force against a resisting Rodney King to unprovoked gratuitous violence against persons offering no resistance, such as the elderly, women, students, and elected officials. Americans are not safe anywhere from police. Police attack Americans in university libraries, in public meetings, and in their own homes.
Last week we had the case of the University of Florida student who was repeatedly Tasered without cause for asking Senator Kerry some good questions in the question and answer period following Kerry’s speech. Two days after the Florida student was gratuitously brutalized, Senate Republicans defeated Vermont Democrat Patrick Leahy’s bill to restore habeas corpus protection.
A UCLA student was Tasered by police without cause for studying in the university library without having his student ID on his person. Following police orders to leave, the student was walking toward the door when police grabbed him and repeatedly Tasered him.
On September 19, 2007 a young woman was repeatedly Tasered without cause by a large brutal cop in a parking lot outside a night club in Warren Ohio.
On September 14, 2007, Roseland, Indiana, city council member David Snyder was ejected from a council meeting by dictatorial council chairman Charlie Shields. Snyder had protested being limited to one minute to speak. Police goon Jack Tiller escorted Snyder out, and as Snyder exited the building, Tiller, following behind, pushed Snyder to the ground and without cause began beating Snyder in the head with a nightstick. Snyder was hospitalized.
Local TV news stations throughout the US offer an endless stream of police brutality videos, which are then posted on the stations’ web sites, often with an opportunity for citizens to express their opinion of the incidents.
There are many disturbing aspects to police brutality cases.
One disturbing aspect is that the police always arrest the people that they have gratuitously brutalized. There was no justification whatsoever to arrest councilman Snyder, or the UCLA student, or the University of Florida student. The cops committed assault against innocent citizens. The cops should have been arrested for their criminal acts. Instead, the cops cover up their own crimes by arresting their victims on false charges that are invented to justify the unprovoked police violence against citizens.
Another disturbing aspect is that no one tells the police to stop the brutality. "Free" Americans are so intimidated by police that on February 19 of this year male customers in a Chicago bar stood aside while a drunk cop weighing 251 pounds beat a 115 pound barmaid, knocking her to the floor with his fists and repeatedly kicking her, for obeying the bar rules and not serving him more drinks.
Yet another disturbing aspect is that a minority of citizens will justify each act of police brutality no matter how brutal and how unprovoked. For example, WNDU.com’s poll of its viewers found that 64.2% agreed that Snyder was a victim of police brutality, but 27.8% thought that Snyder got what was coming to him. "Law and order conservatives" and other authoritarian personalities invariably defend acts of police brutality. Perhaps the police brutality pandemic will bring the day when we will be able to say that a civil libertarian is a law and order conservative who has been brutalized by police.
The most disturbing aspect is that the police usually get away with it.
I remember decades ago when civil libertarians in New York City tried to stop police brutality by establishing civilian review boards to introduce some accountability into the police’s interaction with civilians. Law and order conservatives at William F. Buckley’s National Review went berserk. Accountability was "second-guessing" the police. The result would be a crime wave. And so on.
Police forces have always attracted bullies with authoritative personalities who desire to beat senseless anyone who does not quake in their presence. In the past police could get away with brutalizing blacks but not whites. Today white citizens are as likely as racial minorities to be victims of police brutality.
The police are supreme. The militarization of the police, armed now with military weapons and trained to view the general public as the enemy, against whom "pain compliance" must be used, has placed every American at risk of personal injury and false arrest from our "public protectors."
In "free and democratic America," citizens are in such great danger from police that there are websites devoted to police brutality with online forms to report the brutality.
Nine years ago Human Rights Watch published a report entitled, "Shielded from Justice: Police Brutality and Accountability in the United States." The report stated:
"Police abuse remains one of the most serious and divisive human rights violations in the United States. The excessive use of force by police officers, including unjustified shootings, severe beatings, fatal chokings, and rough treatment, persists because overwhelming barriers to accountability make it possible for officers who commit human rights violations to escape due punishment and often to repeat their offenses. Police or public officials greet each new report of brutality with denials or explain that the act was an aberration, while the administrative and criminal systems that should deter these abuses by holding officers accountable instead virtually guarantee them impunity.
"This report examines common obstacles to accountability for police abuse in fourteen large cities representing most regions of the nation. The cities examined are: Atlanta, Boston, Chicago, Detroit, Indianapolis, Los Angeles, Minneapolis, New Orleans, New York, Philadelphia, Portland, Providence, San Francisco, and Washington, D.C. Research for this report was conducted over two and a half years, from late 1995 through early 1998."
The brutality cases examined, which are set out in detail in chapters on each city, are similar to cases that continue to emerge in headlines and in survivors' complaints. It is important to note, however, that because it is difficult to obtain case information except where there is public scandal and/or prosecution, this report relies heavily on cases that have reached public attention; disciplinary action and criminal prosecution are even less common than the cases set out below would suggest.
There is no way to hold police accountable when the president and vice president of the United States, the attorney general, and the Republican Party maintain that the civil liberties and the separation of powers mandated by the US Constitution must be abandoned in order that the executive branch can keep Americans safe from terrorists.
Even before the "war on terror," federal police murdered 100 people in the Branch Davidian compound at Waco, and no one was held accountable.
Who is a terrorist? If the police and the US government have the mentality of airport security, they cannot tell a terrorist from an 86-year old Marine general on his way to give a speech at West Point. Retired Marine Corps General Joseph J. Foss was delayed and nearly had his Medal of Honor confiscated. Airport security regarded the pin on the metal as a weapon that the 86-year old Marine general and former governor of South Dakota could use to hijack an airliner and commit a terrorist deed.
In America today, every citizen is a potential terrorist in the eyes of the authorities. Airport security makes this clear every minute of every day, as do the FBI and NSA with warrantless spying on our emails, postal mail, telephone calls, and every possible invasion of our privacy. We are all recipients of abuse of our constitutional rights whether or not we suffer beatings, Taserings, and false arrests.
The law makes it impossible for Americans to defend themselves from police brutality. Law and order conservatives have made it a felony with a long prison sentence to "assault a police officer." Assaulting a police officer means that if a police thug intends to beat your brains out with his nightstick and you disarm your assailant, you have "assaulted a police officer." If you are not shot on the spot by his backup, you will be convicted by a "law and order" jury and sent to prison.
No matter how gratuitous and violent the police brutality, a "free" American citizen can defend himself only at the expense, if not of his life, of a long stay in prison. Osama bin Laden must wish that he had such power over Americans.
Paul Craig Roberts [send him mail] wrote the Kemp-Roth bill and was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is author or coauthor of eight books, including The Supply-Side Revolution (Harvard University Press). He has held numerous academic appointments, including the William E. Simon Chair in Political Economy, Center for Strategic and International Studies, Georgetown University and Senior Research Fellow, Hoover Institution, Stanford University. He has contributed to numerous scholarly journals and testified before Congress on 30 occasions. He has been awarded the U.S. Treasury's Meritorious Service Award and the French Legion of Honor. He was a reviewer for the Journal of Political Economy under editor Robert Mundell. He is the co-author of The Tyranny of Good Intentions. He is also coauthor with Karen Araujo of Chile: Dos Visiones – La Era Allende-Pinochet (Santiago: Universidad Andres Bello, 2000).
This opinion was originally published on September 26, 2007 at http://www.lewrockwell.com/roberts/roberts224.html
Bush’s "war on terror" quickly became Bush’s war on Iraqi civilians. So far over one million Iraqi civilians have lost their lives because of Bush’s invasion, and four million have been displaced. Iraq’s infrastructure is in ruins. Disease is rampart. Normal life has disappeared.
Self-righteous Americans justify these monstrous crimes as necessary to ensure their own safety from terrorist attack. Yet, Americans are in far greater danger from their own police forces than they are from foreign terrorists. Ironically, Bush’s "war on terror" has made Americans less safe at home by diminishing US civil liberty and turning an epidemic of US police brutality into a pandemic.
The only terrorist most Americans will ever encounter is a policeman with a badge, nightstick, mace and Taser. A Google search for "police brutality videos" turns up 2,210,000 entries. Some entries are foreign and some are probably duplications, but the number is so large that a person could do nothing but watch police brutality videos for the rest of his life. A search on "You Tube" alone turned up 2,280 police brutality videos. PrisonPlanet has a selection of the most outrageous recent cases.
Police brutality has crossed the line from using excessive force against a resisting Rodney King to unprovoked gratuitous violence against persons offering no resistance, such as the elderly, women, students, and elected officials. Americans are not safe anywhere from police. Police attack Americans in university libraries, in public meetings, and in their own homes.
Last week we had the case of the University of Florida student who was repeatedly Tasered without cause for asking Senator Kerry some good questions in the question and answer period following Kerry’s speech. Two days after the Florida student was gratuitously brutalized, Senate Republicans defeated Vermont Democrat Patrick Leahy’s bill to restore habeas corpus protection.
A UCLA student was Tasered by police without cause for studying in the university library without having his student ID on his person. Following police orders to leave, the student was walking toward the door when police grabbed him and repeatedly Tasered him.
On September 19, 2007 a young woman was repeatedly Tasered without cause by a large brutal cop in a parking lot outside a night club in Warren Ohio.
On September 14, 2007, Roseland, Indiana, city council member David Snyder was ejected from a council meeting by dictatorial council chairman Charlie Shields. Snyder had protested being limited to one minute to speak. Police goon Jack Tiller escorted Snyder out, and as Snyder exited the building, Tiller, following behind, pushed Snyder to the ground and without cause began beating Snyder in the head with a nightstick. Snyder was hospitalized.
Local TV news stations throughout the US offer an endless stream of police brutality videos, which are then posted on the stations’ web sites, often with an opportunity for citizens to express their opinion of the incidents.
There are many disturbing aspects to police brutality cases.
One disturbing aspect is that the police always arrest the people that they have gratuitously brutalized. There was no justification whatsoever to arrest councilman Snyder, or the UCLA student, or the University of Florida student. The cops committed assault against innocent citizens. The cops should have been arrested for their criminal acts. Instead, the cops cover up their own crimes by arresting their victims on false charges that are invented to justify the unprovoked police violence against citizens.
Another disturbing aspect is that no one tells the police to stop the brutality. "Free" Americans are so intimidated by police that on February 19 of this year male customers in a Chicago bar stood aside while a drunk cop weighing 251 pounds beat a 115 pound barmaid, knocking her to the floor with his fists and repeatedly kicking her, for obeying the bar rules and not serving him more drinks.
Yet another disturbing aspect is that a minority of citizens will justify each act of police brutality no matter how brutal and how unprovoked. For example, WNDU.com’s poll of its viewers found that 64.2% agreed that Snyder was a victim of police brutality, but 27.8% thought that Snyder got what was coming to him. "Law and order conservatives" and other authoritarian personalities invariably defend acts of police brutality. Perhaps the police brutality pandemic will bring the day when we will be able to say that a civil libertarian is a law and order conservative who has been brutalized by police.
The most disturbing aspect is that the police usually get away with it.
I remember decades ago when civil libertarians in New York City tried to stop police brutality by establishing civilian review boards to introduce some accountability into the police’s interaction with civilians. Law and order conservatives at William F. Buckley’s National Review went berserk. Accountability was "second-guessing" the police. The result would be a crime wave. And so on.
Police forces have always attracted bullies with authoritative personalities who desire to beat senseless anyone who does not quake in their presence. In the past police could get away with brutalizing blacks but not whites. Today white citizens are as likely as racial minorities to be victims of police brutality.
The police are supreme. The militarization of the police, armed now with military weapons and trained to view the general public as the enemy, against whom "pain compliance" must be used, has placed every American at risk of personal injury and false arrest from our "public protectors."
In "free and democratic America," citizens are in such great danger from police that there are websites devoted to police brutality with online forms to report the brutality.
Nine years ago Human Rights Watch published a report entitled, "Shielded from Justice: Police Brutality and Accountability in the United States." The report stated:
"Police abuse remains one of the most serious and divisive human rights violations in the United States. The excessive use of force by police officers, including unjustified shootings, severe beatings, fatal chokings, and rough treatment, persists because overwhelming barriers to accountability make it possible for officers who commit human rights violations to escape due punishment and often to repeat their offenses. Police or public officials greet each new report of brutality with denials or explain that the act was an aberration, while the administrative and criminal systems that should deter these abuses by holding officers accountable instead virtually guarantee them impunity.
"This report examines common obstacles to accountability for police abuse in fourteen large cities representing most regions of the nation. The cities examined are: Atlanta, Boston, Chicago, Detroit, Indianapolis, Los Angeles, Minneapolis, New Orleans, New York, Philadelphia, Portland, Providence, San Francisco, and Washington, D.C. Research for this report was conducted over two and a half years, from late 1995 through early 1998."
The brutality cases examined, which are set out in detail in chapters on each city, are similar to cases that continue to emerge in headlines and in survivors' complaints. It is important to note, however, that because it is difficult to obtain case information except where there is public scandal and/or prosecution, this report relies heavily on cases that have reached public attention; disciplinary action and criminal prosecution are even less common than the cases set out below would suggest.
There is no way to hold police accountable when the president and vice president of the United States, the attorney general, and the Republican Party maintain that the civil liberties and the separation of powers mandated by the US Constitution must be abandoned in order that the executive branch can keep Americans safe from terrorists.
Even before the "war on terror," federal police murdered 100 people in the Branch Davidian compound at Waco, and no one was held accountable.
Who is a terrorist? If the police and the US government have the mentality of airport security, they cannot tell a terrorist from an 86-year old Marine general on his way to give a speech at West Point. Retired Marine Corps General Joseph J. Foss was delayed and nearly had his Medal of Honor confiscated. Airport security regarded the pin on the metal as a weapon that the 86-year old Marine general and former governor of South Dakota could use to hijack an airliner and commit a terrorist deed.
In America today, every citizen is a potential terrorist in the eyes of the authorities. Airport security makes this clear every minute of every day, as do the FBI and NSA with warrantless spying on our emails, postal mail, telephone calls, and every possible invasion of our privacy. We are all recipients of abuse of our constitutional rights whether or not we suffer beatings, Taserings, and false arrests.
The law makes it impossible for Americans to defend themselves from police brutality. Law and order conservatives have made it a felony with a long prison sentence to "assault a police officer." Assaulting a police officer means that if a police thug intends to beat your brains out with his nightstick and you disarm your assailant, you have "assaulted a police officer." If you are not shot on the spot by his backup, you will be convicted by a "law and order" jury and sent to prison.
No matter how gratuitous and violent the police brutality, a "free" American citizen can defend himself only at the expense, if not of his life, of a long stay in prison. Osama bin Laden must wish that he had such power over Americans.
Paul Craig Roberts [send him mail] wrote the Kemp-Roth bill and was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is author or coauthor of eight books, including The Supply-Side Revolution (Harvard University Press). He has held numerous academic appointments, including the William E. Simon Chair in Political Economy, Center for Strategic and International Studies, Georgetown University and Senior Research Fellow, Hoover Institution, Stanford University. He has contributed to numerous scholarly journals and testified before Congress on 30 occasions. He has been awarded the U.S. Treasury's Meritorious Service Award and the French Legion of Honor. He was a reviewer for the Journal of Political Economy under editor Robert Mundell. He is the co-author of The Tyranny of Good Intentions. He is also coauthor with Karen Araujo of Chile: Dos Visiones – La Era Allende-Pinochet (Santiago: Universidad Andres Bello, 2000).
Friday, October 19, 2007
The presumption of innocence / Do keep it in mind
Editorial reposted from the Press of Atlantic City (NJ)on Octobery 18, 2007
http://www.pressofatlanticcity.com/opinion/editorials/story/7510151p-7408348c.html
THE PRESUMPTION OF INNOCENCE
Do keep it in mind
Innocent until proven guilty.
It's an important concept. America's system of justice hinges on it. And it doesn't just protect creeps. It protects you, too. It hasn't done much for Terry Oleson, though.
Oleson lived at the Golden Key Motel in West Atlantic City, doing odd jobs for rent, when the bodies of four prostitutes were found in the marshes near the motel in November.
Officials with the Atlantic County Prosecutor's Office never named Oleson a suspect in the murders. But he was questioned in connection with the murders. And Atlantic County investigators searched his Alloway Township home. He also submitted DNA samples to investigators. There's nothing wrong with any of that - it's how investigations work.
But it was enough to put Oleson at the center of a media firestorm that made him guilty in the eyes of many. And it helped keep him in the Salem County jail for more than six months.
It didn't help that Oleson is not likely to ever be named the Chamber of Commerce's man of the year. He was arrested in April by Salem County officials and charged with videotaping an underage girl naked without her knowledge. But he was jailed on $100,000 full cash bail - which is higher than usual for that charge.
Again, Oleson's no angel. But those six months in the Salem County jail had something to do with the West Atlantic City murders, even if no one wants to acknowledge that inconvenient fact. Finally, last week, Oleson pleaded guilty to the videotaping charge; a judge lowered his bail to $25,000; his family posted a 10-percent bond, and Oleson was released pending a Nov. 27 sentencing.
On Friday, he plans to hold a press conference at his lawyer's office. One person who plans to attend is an Atlantic City prostitute who was sure that Oleson was a customer named "Eldridge," who told her he had hurt some women. The prostitute was certain about that - until she saw Eldridge again in Atlantic City, while Oleson was still in jail. Now she wants to apologize.
We can't quite bring ourselves to say that the Atlantic County Prosecutor's Office or the news media owe Oleson an apology. The prosecutor and the media were just doing their jobs.
But it is a good time to note that truth is difficult, that things are not always what they seem. And that's why people are tried in the courts, not the "court" of public opinion, which is really no court at all.
And to those who will say that we are naive, that we do not know what authorities know about Oleson, that this editorial will come back to haunt us: Fine. Just prove it. Until then, Terry Oleson is, regarding the West Atlantic City murders, an innocent man.
http://www.pressofatlanticcity.com/opinion/editorials/story/7510151p-7408348c.html
THE PRESUMPTION OF INNOCENCE
Do keep it in mind
Innocent until proven guilty.
It's an important concept. America's system of justice hinges on it. And it doesn't just protect creeps. It protects you, too. It hasn't done much for Terry Oleson, though.
Oleson lived at the Golden Key Motel in West Atlantic City, doing odd jobs for rent, when the bodies of four prostitutes were found in the marshes near the motel in November.
Officials with the Atlantic County Prosecutor's Office never named Oleson a suspect in the murders. But he was questioned in connection with the murders. And Atlantic County investigators searched his Alloway Township home. He also submitted DNA samples to investigators. There's nothing wrong with any of that - it's how investigations work.
But it was enough to put Oleson at the center of a media firestorm that made him guilty in the eyes of many. And it helped keep him in the Salem County jail for more than six months.
It didn't help that Oleson is not likely to ever be named the Chamber of Commerce's man of the year. He was arrested in April by Salem County officials and charged with videotaping an underage girl naked without her knowledge. But he was jailed on $100,000 full cash bail - which is higher than usual for that charge.
Again, Oleson's no angel. But those six months in the Salem County jail had something to do with the West Atlantic City murders, even if no one wants to acknowledge that inconvenient fact. Finally, last week, Oleson pleaded guilty to the videotaping charge; a judge lowered his bail to $25,000; his family posted a 10-percent bond, and Oleson was released pending a Nov. 27 sentencing.
On Friday, he plans to hold a press conference at his lawyer's office. One person who plans to attend is an Atlantic City prostitute who was sure that Oleson was a customer named "Eldridge," who told her he had hurt some women. The prostitute was certain about that - until she saw Eldridge again in Atlantic City, while Oleson was still in jail. Now she wants to apologize.
We can't quite bring ourselves to say that the Atlantic County Prosecutor's Office or the news media owe Oleson an apology. The prosecutor and the media were just doing their jobs.
But it is a good time to note that truth is difficult, that things are not always what they seem. And that's why people are tried in the courts, not the "court" of public opinion, which is really no court at all.
And to those who will say that we are naive, that we do not know what authorities know about Oleson, that this editorial will come back to haunt us: Fine. Just prove it. Until then, Terry Oleson is, regarding the West Atlantic City murders, an innocent man.
Thursday, September 27, 2007
Arthur Thomas Updates
We have two updates regarding the execution of Arthur Thomas. The first is a press release from Alabama Governor Bob Riley.
OFFICE OF GOVERNOR BOB RILEY
FOR IMMEDIATE RELEASE: SEPTEMBER 27, 2007
Governor Riley Issues 45-Day Stay of Execution
MONTGOMERY – Governor Bob Riley granted a brief stay of execution to Thomas Arthur, a death row inmate who was scheduled to die by lethal injection at 6 p.m. Thursday.
The Governor made the decision to grant a stay of 45 days and met with Commissioner Richard Allen of the Alabama Department of Corrections on Thursday morning.
“The evidence is overwhelming that Thomas Arthur is guilty and he will be executed for his crime. The decision to grant a brief stay is being made only because the state is changing its lethal injection protocol, and this will allow sufficient time for the Department of Corrections to make that change,” Governor Riley said. “It
is my desire that, as soon as the stay has expired, justice will be administered to Thomas Arthur. I have encouraged the Attorney General to make a motion with the Alabama Supreme Court for a new date of execution as soon as possible.”
###
Second is an editorial published on September 25, 2007 by The Birmingham News.
Riley fails test, again
THE ISSUE: Once again, Gov. Bob Riley has refused to order DNA testing that could shed light on a death-penalty case. This is a pattern that needs to be broken.
Unless courts step in or something else intervenes, the state of Alabama will execute Thomas Arthur. This much we know: That something else won't be Gov. Bob Riley.
For the second time in as many months, Riley has refused to delay an inmate's execution to allow for DNA testing that might shine light on the crime.
Riley's refusal is beyond disappointing, and it's beyond logic. The testing could have been ordered two weeks ago without even requiring a delay of the execution, according to the Innocence Project.
While there is some evidence implicating Arthur of involvement in the 1982 murder of Troy Wicker, there are certainly reasons to wonder if the crime went down as prosecutors claim. Even Wicker's family wonders what really happened and has expressed support for DNA testing that could shed some light on Wicker's death.
"I would like to see this evidence subjected to DNA testing," Peggy Wicker Jones said in an Aug. 21 statement. "I would like to have as much information as possible about what happened on the day my brother Troy was murdered."
The Innocence Project, the famed New York organization whose DNA work has cleared more than 200 inmates across the country, doesn't take the position Arthur is innocent. But it does argue the evidence in Arthur's case should be subjected to the best scientific testing available.
DNA testing, which had not been developed when Arthur was tried, might merely confirm his guilt. But it might also implicate someone else, someone who has so far not been held accountable for the slaying. Either way, it's a win.
Governors in other states have ordered DNA testing in similar death penalty cases. Among them was a former Texas governor named George W. Bush, as well as his brother, former Florida Gov. Jeb Bush.
But not Riley.
In a statement criticizing Alabama's governor, the Innocence Project pointed out that 15 of those cleared nationwide by DNA testing were on Death Row and that some of them were days away from execution when they were exonerated.
"If any of those 15 people had been in Alabama, they would be dead today," Innocence Project co-director Peter Neufeld said last Wednesday.
Neufeld called it "unconscionable" that Riley won't insist on using the best science to determine the truth before putting inmates to death. Neufeld is right.
Before inflicting a punishment that can't be undone, the state of Alabama should be eager to order DNA testing in cases where any biological evidence is available. Indeed, such testing in old cases should be available by law, as it is already in 42 states.
Unfortunately, in Alabama, the test rests in the hands of the governor. Once again, Riley has failed that test.
OFFICE OF GOVERNOR BOB RILEY
FOR IMMEDIATE RELEASE: SEPTEMBER 27, 2007
Governor Riley Issues 45-Day Stay of Execution
MONTGOMERY – Governor Bob Riley granted a brief stay of execution to Thomas Arthur, a death row inmate who was scheduled to die by lethal injection at 6 p.m. Thursday.
The Governor made the decision to grant a stay of 45 days and met with Commissioner Richard Allen of the Alabama Department of Corrections on Thursday morning.
“The evidence is overwhelming that Thomas Arthur is guilty and he will be executed for his crime. The decision to grant a brief stay is being made only because the state is changing its lethal injection protocol, and this will allow sufficient time for the Department of Corrections to make that change,” Governor Riley said. “It
is my desire that, as soon as the stay has expired, justice will be administered to Thomas Arthur. I have encouraged the Attorney General to make a motion with the Alabama Supreme Court for a new date of execution as soon as possible.”
###
Second is an editorial published on September 25, 2007 by The Birmingham News.
Riley fails test, again
THE ISSUE: Once again, Gov. Bob Riley has refused to order DNA testing that could shed light on a death-penalty case. This is a pattern that needs to be broken.
Unless courts step in or something else intervenes, the state of Alabama will execute Thomas Arthur. This much we know: That something else won't be Gov. Bob Riley.
For the second time in as many months, Riley has refused to delay an inmate's execution to allow for DNA testing that might shine light on the crime.
Riley's refusal is beyond disappointing, and it's beyond logic. The testing could have been ordered two weeks ago without even requiring a delay of the execution, according to the Innocence Project.
While there is some evidence implicating Arthur of involvement in the 1982 murder of Troy Wicker, there are certainly reasons to wonder if the crime went down as prosecutors claim. Even Wicker's family wonders what really happened and has expressed support for DNA testing that could shed some light on Wicker's death.
"I would like to see this evidence subjected to DNA testing," Peggy Wicker Jones said in an Aug. 21 statement. "I would like to have as much information as possible about what happened on the day my brother Troy was murdered."
The Innocence Project, the famed New York organization whose DNA work has cleared more than 200 inmates across the country, doesn't take the position Arthur is innocent. But it does argue the evidence in Arthur's case should be subjected to the best scientific testing available.
DNA testing, which had not been developed when Arthur was tried, might merely confirm his guilt. But it might also implicate someone else, someone who has so far not been held accountable for the slaying. Either way, it's a win.
Governors in other states have ordered DNA testing in similar death penalty cases. Among them was a former Texas governor named George W. Bush, as well as his brother, former Florida Gov. Jeb Bush.
But not Riley.
In a statement criticizing Alabama's governor, the Innocence Project pointed out that 15 of those cleared nationwide by DNA testing were on Death Row and that some of them were days away from execution when they were exonerated.
"If any of those 15 people had been in Alabama, they would be dead today," Innocence Project co-director Peter Neufeld said last Wednesday.
Neufeld called it "unconscionable" that Riley won't insist on using the best science to determine the truth before putting inmates to death. Neufeld is right.
Before inflicting a punishment that can't be undone, the state of Alabama should be eager to order DNA testing in cases where any biological evidence is available. Indeed, such testing in old cases should be available by law, as it is already in 42 states.
Unfortunately, in Alabama, the test rests in the hands of the governor. Once again, Riley has failed that test.
Friday, September 21, 2007
UPDATE: Arthur maintains innocence, challenges lethal injection as execution date nears
Originally published by the Tuscaloosa News
Sep 19, 2007
By Dana Beyerle Montgomery Bureau
MONTGOMERY The daughter of condemned inmate Tommy Douglas Arthur pleaded Wednesday for a stay of her father’s scheduled Sept. 27 execution until a federal court can rule on a request to test DNA from the 1982 murder he was convicted of.
Sherrie Arthur Stone said DNA testing of evidence could exonerate her father, who in a recent telephone interview with the TimesDaily of Florence said he is innocent in the shooting death of Colbert County businessman Troy Wicker.
"All we’re asking, and ever have, is to test the DNA evidence that was found but never tested," Stone said. "Whether you believe in the death penalty or not, you should test the DNA evidence."
Arthur, 65, lost one federal appeal and is quickly running out of options as his scheduled date with the lethal injection chamber at Holman Prison nears.
Arthur was convicted three times and sentenced to die for Wicker’s death. Wicker’s widow originally said a black male broke into their home, raped and beat her, and when she came to her husband was dead.
She later testified that she hired Arthur to kill her husband. Arthur was convicted based on her testimony and on circumstantial evidence that was gathered before DNA testing was available.
Arthur lost one of his latest appeals when a panel of federal judges said Arthur waited to long to challenge the constitutionality of Alabama’s use of lethal injection.
In a 2-1 opinion and without addressing the merits of his appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a U.S. District Court ruling. The unpublished opinion was released Monday.
"There is no justification for Arthur’s failure to bring this lethal injection challenge earlier to allow sufficient time for full adjudication on the merits of this claim," the unsigned opinion said.
U.S. Circuit Judge Rosemary Barkett dissented, saying the lower court made a mistake refusing to hear Arthur’s "challenge to Alabama’s lethal injection protocol" simply because he failed to file a claim as soon as the Alabama Legislature changed the method of execution to lethal injection.
Arthur can still go to the U.S. Supreme Court, which his attorney said he’ll do, and he still has an appeal in the 11th U.S. Circuit to test the crime scene DNA.
"We respectfully disagree and strongly believe that before Mr. Arthur is executed by lethal injection, the constitutionality of the method should be addressed," said attorney Suhana Han.
She said Alabama has hired an expert to review the drugs used in lethal injection and there is the pending federal trial in Montgomery over the legality of lethal injection.
Han asked what the harm was in waiting for the outcome of the trial and the testimony of Dr. Mark Dershwitz?
"How can the state of Alabama execute Mr. Arthur before a federal court rules?" Han asked. "Again, the point is we are trying to address the merits of a very important question, whether the state is planning to execute Arthur by an unconstitutional method."
Dr. Dershwitz’s contract to be an expert witness about Alabama’s method of execution was renewed by the legislative contract review committee earlier this month for the Attorney General’s Office earlier. He’s scheduled to be an expert witness in an upcoming trial over lethal injection in Montgomery federal court.
Arthur still has an appeal seeking DNA testing that wasn’t available when he was first tried. The 11th U.S. Circuit Court has not ruled on the DNA request.
The anti-death penalty group, Amnesty International, has taken up Arthur’s case, saying since he’s potentially innocent he should get a hearing on evidence that could raise doubts about his guilt.
Tom Smith of the TimesDaily in Florence contributed to this story.
Sep 19, 2007
By Dana Beyerle Montgomery Bureau
MONTGOMERY The daughter of condemned inmate Tommy Douglas Arthur pleaded Wednesday for a stay of her father’s scheduled Sept. 27 execution until a federal court can rule on a request to test DNA from the 1982 murder he was convicted of.
Sherrie Arthur Stone said DNA testing of evidence could exonerate her father, who in a recent telephone interview with the TimesDaily of Florence said he is innocent in the shooting death of Colbert County businessman Troy Wicker.
"All we’re asking, and ever have, is to test the DNA evidence that was found but never tested," Stone said. "Whether you believe in the death penalty or not, you should test the DNA evidence."
Arthur, 65, lost one federal appeal and is quickly running out of options as his scheduled date with the lethal injection chamber at Holman Prison nears.
Arthur was convicted three times and sentenced to die for Wicker’s death. Wicker’s widow originally said a black male broke into their home, raped and beat her, and when she came to her husband was dead.
She later testified that she hired Arthur to kill her husband. Arthur was convicted based on her testimony and on circumstantial evidence that was gathered before DNA testing was available.
Arthur lost one of his latest appeals when a panel of federal judges said Arthur waited to long to challenge the constitutionality of Alabama’s use of lethal injection.
In a 2-1 opinion and without addressing the merits of his appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a U.S. District Court ruling. The unpublished opinion was released Monday.
"There is no justification for Arthur’s failure to bring this lethal injection challenge earlier to allow sufficient time for full adjudication on the merits of this claim," the unsigned opinion said.
U.S. Circuit Judge Rosemary Barkett dissented, saying the lower court made a mistake refusing to hear Arthur’s "challenge to Alabama’s lethal injection protocol" simply because he failed to file a claim as soon as the Alabama Legislature changed the method of execution to lethal injection.
Arthur can still go to the U.S. Supreme Court, which his attorney said he’ll do, and he still has an appeal in the 11th U.S. Circuit to test the crime scene DNA.
"We respectfully disagree and strongly believe that before Mr. Arthur is executed by lethal injection, the constitutionality of the method should be addressed," said attorney Suhana Han.
She said Alabama has hired an expert to review the drugs used in lethal injection and there is the pending federal trial in Montgomery over the legality of lethal injection.
Han asked what the harm was in waiting for the outcome of the trial and the testimony of Dr. Mark Dershwitz?
"How can the state of Alabama execute Mr. Arthur before a federal court rules?" Han asked. "Again, the point is we are trying to address the merits of a very important question, whether the state is planning to execute Arthur by an unconstitutional method."
Dr. Dershwitz’s contract to be an expert witness about Alabama’s method of execution was renewed by the legislative contract review committee earlier this month for the Attorney General’s Office earlier. He’s scheduled to be an expert witness in an upcoming trial over lethal injection in Montgomery federal court.
Arthur still has an appeal seeking DNA testing that wasn’t available when he was first tried. The 11th U.S. Circuit Court has not ruled on the DNA request.
The anti-death penalty group, Amnesty International, has taken up Arthur’s case, saying since he’s potentially innocent he should get a hearing on evidence that could raise doubts about his guilt.
Tom Smith of the TimesDaily in Florence contributed to this story.
Saturday, September 15, 2007
Guest Shot: How Justice Gets Done in Spite of the Justice System
Commentary by PETE SHELLEM /
Of The (Harrisburg, PA) Patriot-News
09/14/07
Sometimes justice happens in spite of the justice system.
Sometimes it only happens when the people in the justice system get their noses rubbed in their messes.
On Tuesday, Lancaster County District Attorney Donald R. Totaro did the right thing by freeing Charles T. "Ted" Dubbs from a 12- to 40-year prison term in two sexual attacks he probably did not commit. Dubbs was sentenced in May 2002.
Wilbur Cyrus Brown, a serial rapist who confessed to 13 other rapes, including one on the same jogging trail where Dubbs supposedly committed his crimes, confessed to those attacks in November.
But Totaro had to spin things to portray his office as a well-oiled machine that immediately turned to fix an honest error when it came to their attention.
That’s not what happened.
The case first came to my attention when Brown pleaded guilty last November and was sentenced in Dauphin County Court. It came out at that hearing that Brown had confessed to crimes for which Dubbs was wasting away in prison still proclaiming his innocence.
When I asked about it afterward - assuming they were going to free an innocent man - I got the exchanged glances, awkward smiles and the "no comments."
It was after that I got the proverbial bug in the ear. The cops figured it was a no-brainer, but Totaro’s office didn’t want to hear it. Maybe it had something to do with the election year.
True, Totaro’s first assistant at the time, Heidi Eakin, pointed out the similarities between the cases. But when members of the task force investigating the serial rapes presented her with Brown's 60-page confession, she got her back up.
When I interviewed her in May, she was adamant that Dubbs was guilty and called his alibi defense "a joke." She speculated Brown was a copycat who committed 13 subsequent rapes after reading about Dubbs’s arrest and conviction.
Eakin said she specifically told the police not to reinterview the victims. When asked what she was doing to investigate the confession she told me "that’s not my job."
As an officer of the court, she was obligated to give the confession to the county public defender’s office. From there, it was forwarded to Dubbs.
Dubbs was on his own. Fortunately, he had the wherewithal to file a post conviction appeal on his own.
If you read the documents filed by Totaro’s office, they go to great pains to explain why Dubbs had to sit in prison for almost a year after his office had compelling evidence Dubbs was innocent. It also appears to be a response to an article published in The Patriot-News in May, an article Totaro called a "hatchet job."
Although he claims his office was investigating the case all along, his petition to release Dubbs says someone was assigned to look into it sometime after March. It was about that time I began asking questions about the case. The Lancaster investigators didn’t interview the detectives who took the confession from Brown until June and they were still under subpoena for a hearing that was supposed to take place Thursday.
Totaro’s filing also says Brown’s initial confession "was originally considered by those in law enforcement who were familiar with the case with a substantial amount of skepticism," because of inconsistencies with the crimes.
In fact, the lead investigators of the task force were the ones that took the confession. Even if some details were wrong, it wasn’t inconceivable that a man who they knew through DNA testing committed an assault on a woman in the same location a year later while Dubbs was in prison and then a dozen more might have committed these "signature crimes."
After duplicating much of the probe that was done at the time of Brown’s confession, Totaro’s investigators interviewed Brown last week and determined he was likely telling the truth. Not only that, he told them that he had written a letter at the time of his arrest admitting those crimes. It was addressed to state police Cpl. George Cronin and sent to his mother with instructions that it only be opened if he died.
To their credit, they located that letter, which seemed to be the clincher in the decision to drop the case against Dubbs.
Dubbs’ conviction was an honest mistake. Although the identification process was flawed, the victims were adamant he was their attacker and only expressed doubts after seeing the video of Brown’s detailed confession.
It’s fortunate it ended the way it did. In many of the wrongful convictions that have been exposed in recent years, dishonest cops were to blame.
If it weren’t for a few conscientious law enforcement officers, Dubbs might have rotted in prison for another decade.
PETE SHELLEM: 717-255-8156 or pshellem@patriot-news.com
Of The (Harrisburg, PA) Patriot-News
09/14/07
Sometimes justice happens in spite of the justice system.
Sometimes it only happens when the people in the justice system get their noses rubbed in their messes.
On Tuesday, Lancaster County District Attorney Donald R. Totaro did the right thing by freeing Charles T. "Ted" Dubbs from a 12- to 40-year prison term in two sexual attacks he probably did not commit. Dubbs was sentenced in May 2002.
Wilbur Cyrus Brown, a serial rapist who confessed to 13 other rapes, including one on the same jogging trail where Dubbs supposedly committed his crimes, confessed to those attacks in November.
But Totaro had to spin things to portray his office as a well-oiled machine that immediately turned to fix an honest error when it came to their attention.
That’s not what happened.
The case first came to my attention when Brown pleaded guilty last November and was sentenced in Dauphin County Court. It came out at that hearing that Brown had confessed to crimes for which Dubbs was wasting away in prison still proclaiming his innocence.
When I asked about it afterward - assuming they were going to free an innocent man - I got the exchanged glances, awkward smiles and the "no comments."
It was after that I got the proverbial bug in the ear. The cops figured it was a no-brainer, but Totaro’s office didn’t want to hear it. Maybe it had something to do with the election year.
True, Totaro’s first assistant at the time, Heidi Eakin, pointed out the similarities between the cases. But when members of the task force investigating the serial rapes presented her with Brown's 60-page confession, she got her back up.
When I interviewed her in May, she was adamant that Dubbs was guilty and called his alibi defense "a joke." She speculated Brown was a copycat who committed 13 subsequent rapes after reading about Dubbs’s arrest and conviction.
Eakin said she specifically told the police not to reinterview the victims. When asked what she was doing to investigate the confession she told me "that’s not my job."
As an officer of the court, she was obligated to give the confession to the county public defender’s office. From there, it was forwarded to Dubbs.
Dubbs was on his own. Fortunately, he had the wherewithal to file a post conviction appeal on his own.
If you read the documents filed by Totaro’s office, they go to great pains to explain why Dubbs had to sit in prison for almost a year after his office had compelling evidence Dubbs was innocent. It also appears to be a response to an article published in The Patriot-News in May, an article Totaro called a "hatchet job."
Although he claims his office was investigating the case all along, his petition to release Dubbs says someone was assigned to look into it sometime after March. It was about that time I began asking questions about the case. The Lancaster investigators didn’t interview the detectives who took the confession from Brown until June and they were still under subpoena for a hearing that was supposed to take place Thursday.
Totaro’s filing also says Brown’s initial confession "was originally considered by those in law enforcement who were familiar with the case with a substantial amount of skepticism," because of inconsistencies with the crimes.
In fact, the lead investigators of the task force were the ones that took the confession. Even if some details were wrong, it wasn’t inconceivable that a man who they knew through DNA testing committed an assault on a woman in the same location a year later while Dubbs was in prison and then a dozen more might have committed these "signature crimes."
After duplicating much of the probe that was done at the time of Brown’s confession, Totaro’s investigators interviewed Brown last week and determined he was likely telling the truth. Not only that, he told them that he had written a letter at the time of his arrest admitting those crimes. It was addressed to state police Cpl. George Cronin and sent to his mother with instructions that it only be opened if he died.
To their credit, they located that letter, which seemed to be the clincher in the decision to drop the case against Dubbs.
Dubbs’ conviction was an honest mistake. Although the identification process was flawed, the victims were adamant he was their attacker and only expressed doubts after seeing the video of Brown’s detailed confession.
It’s fortunate it ended the way it did. In many of the wrongful convictions that have been exposed in recent years, dishonest cops were to blame.
If it weren’t for a few conscientious law enforcement officers, Dubbs might have rotted in prison for another decade.
PETE SHELLEM: 717-255-8156 or pshellem@patriot-news.com
Friday, September 14, 2007
Troy Davis Video Project
October 9th is Troy Anthony Davis’ birthday and in celebration of this occasion we’re asking all of his supporters worldwide to send him a video birthday message and to post that message on YouTube.
The Troy video project is simple. Using a webcam, camera phone, camcorder or any other recording device, simply record a positive video of 60-seconds or less whishing Troy a ‘Happy Birthday’ while reaffirming to the state of Georgia that the global support network behind Troy believes innocence matters
As you know, serious doubts of Troy ’s guilt have been raised in recent months, and we want to take this occasion to let the world know that innocence indeed does matter!
With so many Troy supporters around the world, we want these messages to be lively and creative. Feel free to sing it, rap it, play it, draw it, dance it, paint it, shout it from the roof-tops. What you say or how you say it isn’t important. What’s important is that you just say it!
Please keep these messages positive and refrain from bad language and controversial statements that could be viewed as inflammatory. We don’t want to upset people - we just want to show the world that Troy has global support in his fight for justice.
After you’ve recorded this message – please post it on YouTube using this link: http://www.youtube.com/group/NCADP and email the video to: troyvideo@gmail.com
Let’s not only give Troy a "Happy Birthday," let us also speak loud and clear in one voice that Innocence Matters!
Gregory A. Joseph
National Coalition to Abolish the Death Penalty
www.ncadp.org
gjoseph@ncadp.org
The Troy video project is simple. Using a webcam, camera phone, camcorder or any other recording device, simply record a positive video of 60-seconds or less whishing Troy a ‘Happy Birthday’ while reaffirming to the state of Georgia that the global support network behind Troy believes innocence matters
As you know, serious doubts of Troy ’s guilt have been raised in recent months, and we want to take this occasion to let the world know that innocence indeed does matter!
With so many Troy supporters around the world, we want these messages to be lively and creative. Feel free to sing it, rap it, play it, draw it, dance it, paint it, shout it from the roof-tops. What you say or how you say it isn’t important. What’s important is that you just say it!
Please keep these messages positive and refrain from bad language and controversial statements that could be viewed as inflammatory. We don’t want to upset people - we just want to show the world that Troy has global support in his fight for justice.
After you’ve recorded this message – please post it on YouTube using this link: http://www.youtube.com/group/NCADP and email the video to: troyvideo@gmail.com
Let’s not only give Troy a "Happy Birthday," let us also speak loud and clear in one voice that Innocence Matters!
Gregory A. Joseph
National Coalition to Abolish the Death Penalty
www.ncadp.org
gjoseph@ncadp.org
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