Wisconsin AG should let light shine on his Kratz actions

Editorial originally published by the (Madison, WI) Capital Times on September 29, 2010.

We did not fully recognize what a serious mess Attorney General J.B. Van Hollen had created for himself until after our call last week for an independent investigation of Van Hollen’s handling of the Ken Kratz affair. Our editorial questioned why the state’s top law enforcement officer sat for almost a year on information that suggested the Calumet County district attorney, who has announced that he will resign soon, had abused his position by sending sexually aggressive text messages to a domestic violence victim.

Van Hollen’s office was made aware of the concerns regarding Kratz in the fall of 2009, yet the attorney general did not tell the governor, who has the authority to remove “for cause” officials who have engaged in misconduct. Van Hollen’s office also kept the public in the dark about the Kratz matter, despite the fact that the DA’s abusive behavior was of a nature that might reasonably have been expected to be repeated.

Those expectations were confirmed after the veil of official secrecy was finally removed. Other women did indeed come forward with details of similar incidents involving Kratz.

So why did Van Hollen, who before the scandal broke highlighted the support of fellow Republican prosecutor Kratz in his campaigns against Democratic foes, preside over an investigation that was opened and closed within days and that did not even question Kratz? And why did the attorney general then fail to take the necessary steps to ensure that the DA would not harass other women?

We began asking these questions in an editorial last week, which suggested that the attorney general should, for the sake of his own reputation and that of his office, invite an independent investigation of his handling of the Kratz scandal.

We, of course, pointed out that Van Hollen enjoyed the presumption of innocence. But we argued that, as the state’s chief law enforcement officer, the attorney general has a higher responsibility to ensure that questions about his conduct -- especially when it involves issues as important as the protection of domestic abuse victims -- are resolved.

Van Hollen’s response was to try to claim he had done everything by the book.

Even though his spokesman had just hours earlier suggested that Van Hollen was not personally involved, the attorney general went on television to do an interview in which he suggested that he had led a full-court press on the case that involved “dozens” of his staffers. At the same time, he tried to blame other agencies for failing to act.

In fact, Van Hollen seemed to be pointing the finger at everyone but himself. He even engaged in the classic politician’s move of claiming that he had kept the Kratz information secret in order to avoid jeopardizing the legal proceedings related to the domestic violence case in question. The only problem is that the case was resolved in April -- meaning that Van Hollen sat on the information for five months after his excuse for keeping it secret had disappeared.

Bizarrely, Van Hollen claimed credit for arranging for Kratz to quietly report his conduct to the Office of Lawyer Regulation, which is supposed to investigate and discipline attorneys. The office just as quietly found no grounds for acting against Kratz.

Van Hollen is now criticizing the Office of Lawyer Regulation for laxness, but that accusation applies to the attorney general himself as well as the OLR. Van Hollen’s excuses are as unsatisfying as they are self-serving.

That is why we called for an independent investigation.

And, of course, that is also why Van Hollen is now attacking us. His claim is that our call for an independent inquiry is nothing more than an embrace of partisan criticism.

Politicians of both parties, when they get in trouble, have attacked The Capital Times since the paper was founded as an independent progressive voice in 1917. That’s because politicians don’t like to be held to account. Democratic Attorney General Bronson La Follette didn’t like it when we led the chorus that questioned his management of the Department of Justice. Democratic Attorney General Jim Doyle didn’t like it when we went after him for what looked to us like inappropriate fundraising. Now Republican Van Hollen doesn’t like it when we say that an independent inquiry is needed to resolve questions about his handling of the Kratz case.

Over the years we have complimented and criticized Van Hollen. In 2006, he met with our editorial board and sought our endorsement, and we wrote well of him. We have praised him since his election, and we will do so again whenever his actions merit plaudits.

But it has long been the position of this newspaper that the office of state attorney general must always be recognized as independent and credible. Van Hollen’s handling of the Kratz case has raised questions not merely about him, but about the independence and credibility of the Department of Justice.

Van Hollen cannot talk his way out of trouble. He needs to accept that an independent inquiry is called for, and the sooner he accepts that, the better -- for Van Hollen and for the Department of Justice.

The Honorable Robert E. O’Neill Regrets That He is Unable to Answer Questions from the Audience

by James Scanlan, Esq.

In Truth in Justice editorials of June 23, July 11, August 17, and September 4, 2010, I have discussed Robert E. O’Neill, nominee for US Attorney for the Middle District of Florida. O’Neill is the prosecutor who lied on the US Attorney application he submitted to the Florida Federal Judicial Nominating Commission. In an apparent effort to minimize a District of Columbia Office of Bar Counsel investigation of his conduct in US v. Dean, O’Neill attributed the initiation of the investigation to a complaint filed by the defendant. In fact, the investigation was self-initiated by Bar Counsel after reading a court of appeals opinion “deplor[ing]” O’Neill’s conduct. Very likely, by making that false attribution before the Nominating Commission or at some other point in the vetting process O’Neill violated 18 U.S.C. § 1001. On September 23, 2010, despite having been repeatedly made aware of this and other matters calling O’Neill’s integrity into question, the Senate Judiciary Committee unanimously, and without discussion, favorably reported O’Neill’s nomination to the Senate floor. Typically this would mean that O’Neill shortly will be confirmed by the entire Senate – perhaps again unanimously.

This will by no means be a good thing for the country or the Middle District of Florida, and some fine and principled people in the US Attorney’s office are greatly distressed at the prospect of serving under a US Attorney of such doubtful character. But it is an ill wind that blows no one any good. Since 2008, I have devoted considerable effort to publicizing what I maintain is unconscionable conduct of O’Neill and other prosecutors in the Dean case (including Bruce C. Swartz, a principal subject of the September 4 editorial) and the Department of Justice’s manner of addressing (or involvement with) that conduct. Though I wrote letters to the Nominating Commission opposing O’Neill’s candidacy, as regards my efforts to secure widespread attention to O’Neill’s conduct, the President did me a great service by nominating O’Neill. O’Neill himself, by lying on his application, did me a similar service. Prior to the nomination, a Google search for “’Robert E. O’Neill’” did not yield the on-line profile I maintain on him until after the 40th result. For some time now, however, it has been the first result and hence, along with my editorials here and Paul Mirengoff’s on powerlineblog.com, is among the public’s readiest sources of information on O’Neill’s character and background.

My editorials and the materials discussed in Addendum 7 to the O’Neill profile hardly reflect a half-hearted effort to prevent O’Neill’s confirmation. But I have to recognize that O’Neill’s prominence as US Attorney for the next two or six years will substantially increase my ability to publicize in various mediums my vision of O’Neill’s character and conduct. And, of course, if this appointment should prove to be a stepping-stone to higher position such as US Senator or Florida Governor – both real possibilities – prospects for securing attention to that vision will be further enhanced.

Moreover, while O’Neill’s appointment will be saddening enough to people who like to believe in the processes of government, aspects of those processes have made O’Neill’s story more interesting and their exposure will serve the public interest. Section B.8 of the main Prosecutorial Misconduct page of jpscanlan.com presents an unflattering picture of the Department of Justice, whose handling of allegations against O’Neill when first brought to its attention in December 1994 may well have been influenced by the fact that O’Neill was in large part carrying out a scheme of deceit initially undertaken by the person who in December 1994 was Assistant Attorney General for the Criminal Division.

As discussed in the September 4 editorial, the Department’s recent actions regarding O’Neill – including the refusal by Jay Macklin, General Counsel for the Executive Office for United States Attorneys, to consider the allegation that O’Neill lied on his Nominating Commission application and during the vetting process because of the transparently inapplicable policy of not investigating matters that could have been raised in litigation – further illustrate the lengths to which the Department will go to avoid addressing disagreeable ethical issues concerning its high officials. One wonders whether Macklin, who will supervise O’Neill as US Attorney, will similarly disregard the evidence of O’Neill’s untrustworthiness when judging O’Neill’s candor in their official interactions.

In the Senate Judiciary Committee, while there was no specific discussion of allegations against O’Neill, in evident allusion thereto both Chairman Patrick J. Leahy and ranking Republican Jeff Sessions briefly mentioned that allegations against a US Attorney or Marshal nominee are carefully considered. In doing so, Leahy cited as an example an allegation that a nominee was involved in a bank robbery. Thus, rather in the manner in which O’Neill minimized the DC Bar Counsel investigation by falsely attributing it to a complaint filed by a convicted defendant, Leahy presumably chose that unlikely example because he believed it would raise fewer concerns than mention of allegations that the nominee – to take as examples just two matters that are in no way open to question – lied on his application or had been the subject of severe criticism by two courts. For his part, Sessions explained that the Committee made sure that “no serious meritorious complaints had been made.” It is hard to know whether Sessions meant that allegations to which he alluded were not meritorious or not serious. But neither meaning could withstand the light of day with regard either to the matters just mentioned or the more serious matters described in my letter to the Committee of June 16, 2010. At any rate, it is fitting enough that in approving the nomination for US Attorney of an individual known to have lied on his application, so eminent a body as the Senate Judiciary Committee would itself act disingenuously and do so in an uncommon exhibition of bipartisanship.

Assuming he is confirmed, O’Neill’s tenure ought to be an interesting one. For even had O’Neill never otherwise done anything unethical, the incongruity of there being a high law enforcement official who is known to have lied on his application is manifest. The July 11 editorial treats the false statement in the context of O’Neill’s tactic of calling defendants and witnesses liars and his even causing a government agent to give misleading testimony in order that O’Neill could lead a jury falsely to believe that a defendant lied about an interaction with the agent (see Addendum 1 below). The July 11 item highlights O’Neill’s “a liar is a liar” remark in US v. Spellissy, by which he meant that someone who lies about one thing cannot be trusted as to anything else. The quoted phrase implicates an additional irony. For those five words have been previously used in an observation by Tennessee Williams, to wit: “The only thing worse than a liar is a liar that’s also a hypocrite.”

There are enough people in the Middle District of Florida who do not like O’Neill for good or bad reasons that one day that editorial may be distributed at the venue of an O’Neill speech. Or at least someone in the audience is going to ask: “Is it true that you lied on your US Attorney application?” O’Neill may find it sensible to avoid such circumstances.

Addendum 1: I have lately given great attention to the false statement on O’Neill’s application because of the simplicity of the matter and because it cannot be disputed. But I do not want readers to lose sight of larger issues, such as O’Neill’s conduct regarding Supervisory Special Agent Alvin R. Cain, Jr., alluded to above and addressed in the September 4 editorial and varied other places. For there is conduct like lying on an application that ought to disqualify an individual from a high law enforcement position and there is conduct that takes one's breath away. Put another way, there are hypocrites and there are monsters.

Addendum 2: In the September 4 editorial, I suggested that the actions of Bruce C. Swartz (currently Deputy Assistant Attorney General in the Criminal Division in charge of international issues) in responding to allegations of prosecutorial abuse in the Dean case could serve as a case study of impermissible evasions and deceptions by prosecutors accused of misconduct. In Addendum 7 to the Bruce C. Swartz profile I have elaborated further on that proposition while suggesting ways to ensure that responses to misconduct allegations are truthful. In doing so, I point out an instance of a representation made on behalf of Swartz and O’Neill in defending themselves in the DC Bar Counsel investigation. Suffice it that it is a representation that no rational person would believe. Perhaps it will eventually be possible to present the full scope of the efforts to deceive Bar Counsel in the investigation that O’Neill falsely attributed to a complaint filed by the defendant.

Anatomy of a Misdiagnosis

The following op-ed was published in the Los Angeles Times on September 20, 2010.

Anatomy of a Misdiagnosis
By DEBORAH TUERKHEIMER

A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night. Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death.

More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.”

Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent.

For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.

But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.

What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver.

Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury.

The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.

Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.

Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point to studies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad.

What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.

In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States.

For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken.

Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan.

Doubtful Progress on Professional Responsibility at DOJ

by James Scanlan, J.D.

When the Department of Justice had to have the conviction of the late Senator Ted Stevens overturned, Attorney General Eric H. Holder, Jr. spoke as if he intended to make prosecutorial integrity a Department priority and immediately appointed new heads of the Office of Professional Responsibility (OPR) and the Public Integrity Section of the Criminal Division. But there yet is little evidence that the Department actually understands the basic obligations of a prosecutorial authority and some evidence that it does not.

My July 11, 2010 editorial here regarding US Attorney nominee Robert E. O’Neill touched upon a particularly egregious prosecutorial abuse in United States v. Dean. The matter is discussed in Sections B.1 and B.1a of my Prosecutorial Misconduct page and Section B of the Robert E. O’Neill profile and Sections A and E and Addendums 3 and 4 of a similar profile on Bruce C. Swartz . O’Neill and Swartz pressured a government agent into giving misleading testimony in order that O’Neill could lead the jury falsely to believe that the defendant lied about a conversation with the agent. The idea was that the agent’s testimony that seemed to directly contradict the defendant would be literally true because it technically applied to a different date from that given by the defendant. O’Neill’s repeated emphasis of the agent’s testimony in provocatively asserting that the defendant lied on the stand may have had a substantial impact on the outcome of the trial.

In a post-trial motion alleging pervasive prosecutorial abuse, the defendant maintained that the agent committed perjury and that prosecutors knew or should have known that he did. Swartz, who defended against the allegation, did not have the temerity to advance the literal truth rationale to the court, which almost overturned the verdict because of other identified prosecutor misconduct. Instead, Swartz sought to cover up his own and O’Neill’s actions by leading the court to believe that the testimonies were irreconcilable and that the agent told the truth while the defendant lied. As part of an aggressive strategy in this regard, Swartz even tried to have the defendant’s sentence increased by six months for lying about the conversation. In seeking to prevent discovery into the matter, Swartz and those aiding him may have engaged in a conspiracy to obstruct of justice. In any case, several aspects of prosecutor conduct in the matter must be considered heinous.

Since at least 2001 Swartz has been a Deputy Assistant Attorney General in the Criminal Division in charge of international issues, with duties that include interacting with foreign governments on counterterrorism and criminal justice issues. But when last year I brought to the Department’s attention that Swartz’s actions in the Dean case indicated that he was unfit to represent the United States, the Department refused even to consider whether my allegations were true, stating that is was OPR policy not to investigate matters that were or could have been raised in litigation.

More recently, Jay Macklin, General Counsel of the Executive Office for United States Attorneys, even relied on this policy as a basis for refusing to consider whether O’Neill’s June 2009 false statement on his US Attorney application (a subject of editorials here dated June 23, 2010, July 11, 2010, and August 17, 2010) should cause O’Neill to be removed from his current position as Chief of the Criminal Division of the US Attorney’s Office in the Middle District of Florida. Quite obviously, O’Neill’s false statement on his application is not a matter that was or could have been raised in litigation (save in a prosecution of O’Neill), as discussed in my August 18, 2010 letter to Macklin and Holder. So blatant a reliance on an inapplicable policy to ignore a false statement by a high-level prosecutor and US Attorney nominee may reveal much about the Department’s willingness to address disagreeable integrity issues arising within its ranks, as will a failure of the Department to advise the President to withdraw the O’Neill nomination.

My January 15, 2010 letter to OPR Deputy Counsel Judith B. Wish addresses reasons that the stated OPR policy is misguided even as to matters that in fact were or could have been raised in litigation. The policy treats prosecutorial abuses as matters solely to be revealed by defense counsel and courts and ignores the Department’s own obligation to advise courts of prosecutorial abuses regardless of whether a defendant was able to effectively expose them. And, as illustrated with regard to Swartz and O’Neill, it ignores Department obligations to ensure the trustworthiness of persons who represent it internationally or domestically. In any event, continuation of the policy is inconsistent with a commitment to ensuring the integrity of federal prosecutions or the essential honesty of Department attorneys.

But there is another, somewhat ironical, indication of the Department’s failure to grasp certain fundamentals. In October 2009, Holder announced the creation of professional responsibility award, which will first be presented in October 2010. According special recognition to government attorneys for demonstrating professional responsibility – as if there existed levels at which government attorneys fulfill their ethical obligations – hardly suggests a refined understanding of the standards of conduct citizens have a right to expect from all government attorneys. Yet presumably some number of high-level Department officials agreed that the award would at least enhance the Department’s image if not actually improve ethical standards. Given that countless Department attorneys will appreciate the incongruity of what in effect is an award for being honest, there is some prospect that even within the Department the award will eventually be a subject of derision.

In any case, more useful than a dubious decoration for professional responsibility would be firm requirements as to the manner in which prosecutors respond to allegations of misconduct, including that they must provide the unalloyed truth about what they did and why they did it, and that they must do so in affidavits. For purposes of illustrating the impermissible deceptions or evasions in prosecutor responses to misconduct allegations, the Department will find a useful case study in the actions of Bruce C. Swartz detailed in his profile page and the materials it references. The Department should also abrogate the OPR policy that causes conduct of O’Neill and Swartz in the Dean case still to go unexamined and otherwise make clear, not only that surviving court scrutiny of allegations of abuse will not end a matter, but that deceiving a court in responding to such allegations is itself a serious abuse if not also a crime.

See also discussion of Attorney General Janet Reno’s 1994 ethics initiative in Section B.8 of my Prosecutorial Misconduct page and the profile page on Jo Ann Harris, the person who first hired Bruce C. Swartz into the Criminal Division.

The low cost of injustice

The following opinion was originally published by NewsBuzz, by Milwaukee Magazine, on September 3, 2010.

By Matt Hrodey

The wrongful imprisonment of Green Bay’s Cody Vandenberg for 15 years on a recently overturned conviction of robbery and attempted homicide was one of the worst such cases in state history. Even if prosecutors decide against retrying or appealing the case, however, Vandenberg is unlikely to collect much in reparations, because Wisconsin’s compensation program for exonerated convicts is badly underfunded.

A shrinking minority of states, 23, offers no compensation program at all for people wrongfully imprisoned. In Wisconsin, after proving their innocence before the Wisconsin Claims Board, a panel of state officials representing the Governor, state Legislature, Department of Administration and Department of Justice, exonerated convicts can receive up to $5,000 a year. Total compensation is capped at $25,000.

“It’s miserable. It’s the lowest compensation amount of any state in the nation and the second-lowest cap in the country,” says Keith Findley, a UW-Madison law professor and co-founder of the Wisconsin Innocence Project, a program at the university providing legal aid to people who may have been wrongfully convicted.

Findley is part of Vandenberg’s defense team. Facing a total of 80 years in prison, the now 45-year-old man was released on Tuesday after a court of appeals decision reversed his conviction in Brown County Circuit Court and concluded “he is entitled to a new trial in the interest of justice.” Vandenberg had been convicted of the 1996 robbery and stabbing of a Bellevue man. But Vandenberg’s alleged getaway driver, Larry Pearson, has since confessed to the crime – most recently under oath in Brown County Circuit Court in a hearing for post-conviction relief requested by the defense.

Pearson and Vandenberg were coworkers at a local repair shop. During Vandenberg’s trial in 1996, Pearson testified as part of his own plea deal but didn’t implicate Vandenberg. Pearson instead claimed the stabbing wounds were inflicted by a third man, a stranger he had met at a bar.

At the trial, the prosecution argued Pearson was trying to cover for his friend Vandenberg by making up the story about “the stranger” and called to the stand a man who had spent time in jail with Pearson. The fellow inmate said Pearson told varying accounts of what happened on the night in question, including one version where Vandenberg was the stabber. But the key piece of evidence, according to the appeals court, was the stabbing victim’s identification of Vandenberg. He and Vandenberg looked similar – but Vandenberg had a beard at the time.

To the jury, it sounded like convincing evidence. But a series of wrongful convictions have led judges across the country to treat identifications of defendants with skepticism. “Eyewitness misidentification is now the single greatest source of wrongful convictions in the United States, and is responsible for more wrongful convictions than all other causes combined,” the Wisconsin Supreme Court noted in 2005.

The appeals court wrote that the victim’s identification of Vandenberg was the key to the prosecution’s case, a key that looked a little rusty in light of new evidence provided by the defense that the victim was intoxicated during the attack with a blood alcohol content of .22. Prosecutors lacked “any physical evidence tying Vandenberg to the scene,” the opinion says. Yet Pearson’s bloody shoe-print was found inside the trailer.

Pearson, it turns out, actually confessed to his defense attorney at the time he was guilty of the stabbing – but the lawyer, because of attorney-client privilege, was unable to reveal the confession.

Vandenberg’s first appeal failed. Filed after his trial, it was based not on Pearson’s confession, unknown to him at the time, but on his contention that his defense attorney didn’t present evidence establishing an alibi for him.

Released from custody on Tuesday, Vandenberg will remain under house arrest until he returns to court on Sept. 28 to learn if prosecutors will retry his case in light of Pearson’s confession or challenge the appeals court decision before the Supreme Court.

Making a claim of innocence

If they decide to do neither, Vandenberg can petition the Claims Board for compensation, but in doing so he faces a months-long process whereby he must prove his innocence with “clear and convincing” evidence. “For many truly innocent people, that’s a burden that’s difficult to meet. How do you prove a negative?” says Findley.

Wisconsin law also requires exonerated convicts to prove they didn’t contribute to their conviction in some way through a false confession or some other means. This violates the national Innocence Project’s guidelines for state compensation programs. “This denies justice to those who were coerced, explicitly or implicitly, into confessing or pleading guilty to crimes it was proven they did not commit,” the guidelines say.

Some states provide immediate assistance to exonerated prisoners for housing, psychological counseling, medical aid, job training or other needs, none of which are provided by Wisconsin. “They have nothing as they walk out of prison,” says Mary Delaney, a Madison attorney and member of the Wisconsin Exoneree Network.

Wrongful imprisonment, she says, “is extraordinarily traumatic. A lot of people become agoraphobic and don’t feel like they can rejoin the community.” Long gaps in their employment history are difficult to explain to prospective employers – who may have also seen the charges filed against them on the Wisconsin Circuit Court Access website.

Delaney says quite a few people are denied compensation because they can’t prove their innocence to the Claims Board. Findley says most of the Wisconsin Innocence Project’s clients have not received compensation, either because they were denied or never pursued benefits. The group has lobbied the state Legislature to expand the benefits and make them easier to obtain.

Still, some people wrongly incarcerated in Wisconsin prisons have received the full compensation allowed. One Oak Creek man, Chaunte Ott, released in 2009 after 12 years in prison when DNA evidence cleared him of a rape and murder conviction, received the full $25,000 in an April Claims Board meeting.

Robert Lee Stinson of Milwaukee, also released last year after DNA evidence cleared him of murder charges, spent 23 years in prison. He’s still in the process of seeking compensation.

Texas offers some of the most generous benefits, up to $80,000 a year for life, even though the state is known for its tough criminal justice system and use of the death penalty. People wrongfully imprisoned in the federal system can receive up to $50,000 a year for each year of incarceration or up to $100,000 a year if they spent time on death row.

States have created compensation programs because lawsuits against states for wrongful imprisonment are notoriously difficult. Federal civil rights lawsuits require the former convict to prove the state intentionally incarcerated him or her without due cause.

West Memphis 3 Rally - August 28, 2010

Close Enough Isn't Good Enough

The following opinion was published by the Huffington Post on August 27, 2010.

Close Enough Isn't Good Enough
by Andrea Lyon
Author, Attorney, Professor of Law: DePaul University

August 27, 2010

Yesterday Judge William T. Moore Jr. of the Federal District Court in Georgia denied Troy Davis relief from his death sentence. This is the case that gained international as well as national attention, as the execution of a man who may very well be innocent loomed. In fact, the United States Supreme Court gave him a rare chance to clear his name when a year ago, the Supreme Court directly granted Mr. Davis a federal hearing to put his claim to the test -- a chance afforded no other American in at least 50 years. Mr. Davis had tried for many years just to get a hearing to present new evidence would that he said would clear his name in the 1989 killing of Mark MacPhail, an off-duty Savannah police officer. The Judge concluded after a lengthy 112 page opinion that "Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors."

What is interesting about the opinion is that the judge assumes that it would be unconstitutional to execute someone who is innocent, although the United States Supreme Court has not ever quite said so. There is then a long involved and technical discussion of which of three standards should apply in making such a determination, lengthy recitations of various witness's statements, recantations, and his conclusion that Mr. Davis has not met the standard to show his innocence. True, there are recantations from most of the witnesses against him, but the law "disfavors" consideration of recantations, he opines, and besides the pressures put on these witnesses either from internal bias or pressure from the police, don't matter. What is missing from the opinion is a discussion of the fact that nearly everyone recanted, that there is no physical evidence linking Mr. Davis to the crime, or any real consideration as to whether Mr. Davis, Mr. MacPhail's family or the jury were deprived of something important -- a fair trial where all the facts were before them, rather than hidden. In other words, the cumulative effects of all of this error are brushed aside, and the technical rules triumph.

The case against Mr. Davis rested on the testimony most likely to result in a wrongful conviction -- that of eyewitnesses. In fact eyewitness misidentification accounts for 75 percent of wrongful convictions in over 200 DNA exonerations.

I have written before about the triumph of technicalities which may very well imprison, or even execute the innocent or someone whose mail got lost. ("Justice Trapped in a Technical Web", and "A Technical Death"). I recognize that I was not in the courtroom and did not hear the testimony presented to the judge -- but others were, and their impressions are very different. Here is what we should all be worried about -- sure, there is a place for finality in our system. A convicted person should not get to go back to court an infinite number of times. But if technical rules prevent him from presenting relevant, reliable evidence when he discovers it -- for example if a witness gets an attack of conscience about a lie (in this case a deadly lie) as did Kevin McQueen, one of the seven witnesses who recanted his testimony, testifying that he implicated Mr., Davis originally at his trial because he was mad at him, shouldn't there be a way to present that and have it fairly considered in the context of the totality of the evidence before we execute a man? McQueen testified that his earlier testimony that Mr. Davis said he shot someone was a lie. "The man did not tell me he shot anyone. Period." When asked what he hoped to gain by his testimony, he said, "peace of mind."

None of us should feel that same peace of mind about an execution under these circumstances, whatever our feelings might be about the death penalty. An execution is irrevocable, and close enough isn't good enough.

Additional Problems with Middle District of Florida U.S. Attorney Nomination

Additional Problems with Middle District of Florida U.S. Attorney Nomination

by James Scanlan

In Truth in Justice editorials of June 23, 2010, and July 11, 2010, I discussed the pending nomination of Robert E. O’Neill for U.S. Attorney for the Middle District of Florida. O’Neill is the prosecutor with the penchant for calling people liars who himself made a false statement in an application for the U.S. Attorney position submitted to the Florida Federal Judicial Nominating Commission. O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean had been initiated by a complaint filed by the defendant when in fact Bar Counsel itself initiated the investigation after reading a court of appeals opinion “deplor[ing]” the conduct of lead counsel O’Neill and his colleagues. I pointed out that if O’Neill made the same misrepresentation before a federal entity, he likely violated 18 U.S.C. § 1001. Irrespective of any violation of law, however, one would expect that making a false statement on an application for a high law enforcement position would disqualify a person from further consideration for the position. But, though for more than a month the Department of Justice and White House have been in possession of a document conclusively establishing that O’Neill’s statement was false, the nomination remains pending.

In the latter part of the July 11, 2010 editorial I discussed remarks O’Neill made in the Nominating Commission application criticizing a former subordinate. The subject of the remarks is former Assistant United States Attorney (AUSA) Jeffrey J. Del Fuoco, who has sued O’Neill on a number of matters, including defamation for statements O’Neill made about Del Fuoco in the Nominating Commission application. Del Fuoco has joined Attorney General Eric H. Holder, Jr. as a defendant as to certain issues. The suit is still in court, though a motion to dismiss is pending. I am not in a position to comment on the likely merits of any of the claims raised by Del Fuoco. But the complaint raises an additional issue concerning O’Neill’s credibility, and the government’s response to it raises an additional consideration regarding the likelihood that O’Neill violated 18 U.S.C. § 1001.

O’Neill’s Alleged Perjury in an Earlier Case. In addition to a claim regarding statements on the Nominating Commission application, Del Fuoco alleges that O’Neill defamed him in a 2005 deposition in an earlier case. In connection with that claim, at pages 6-9 of the complaint (¶¶ 20-22), Del Fuoco alleges that in the federal workplace O’Neill threatened bodily injury to Del Fuoco by means of statements made in the U.S. Attorney’s office to three AUSA’s (each of whom Del Fuoco identifies by name). The complaint also sets out deposition testimony from the earlier case where, while acknowledging that he may have made statements along the lines of those described by Del Fuoco, O’Neill denied that he made such statements in the workplace. Del Fuoco maintains that such denial constituted perjury by O’Neill.

I have no direct knowledge of the underlying facts. But Del Fuoco’s identifying of the three AUSAs would seem to suggest that O’Neill in fact made the statements in the workplace. And I am led to understand that, if asked, the AUSAs would so state. Department of Justice officials must know of the allegations since Department attorneys are representing O’Neill in the case. But neither in the vetting process for the U.S. Attorney nomination nor at any other time has a Department representative asked the AUSAs whether Del Fuoco’s allegations concerning O’Neill’s perjury in the earlier case are true. I am further led to understand that there is some concern within the Middle District U.S. Attorney’s office that the head of the office may soon be a person whom at least several people in the office know to have committed perjury and that, if Del Fuoco’s case goes forward, some of those people may be deposed on the matter. Having AUSAs in a position where their testimony could show the U.S. Attorney to have committed perjury will not be a comfortable situation for the AUSAs or the office, or, one would think, for the Department of Justice. As with varied matters I have raised with the Department about O’Neill’s conduct in the Dean case, if the Department had been willing to pose a few simple questions, it would not now be confronted with a problematic nomination or the prospect of a problematic tenure.

The Department of Justice’s Claims Regarding the Status of the Florida Federal Judicial Nominating Commission. In discussing the possibility that O’Neill violated 18 U.S.C. § 1001 by falsely stating that the defendant initiated the District of Columbia Bar Counsel investigation, I have mainly addressed the likelihood that O’Neill also made to a federal entity the statement that he made on the Florida Federal Judicial Nominating Commission application. But in some places I have suggested that O’Neill may have violated the statute even by making the false statement to the Nominating Commission because the statement could be regarded as involving a matter within the jurisdiction of the Department of Justice or the Office of Independent Counsel. When making such point regarding the statement to the Nominating Commission – which I have variously described as an “unofficial body,” “an arm of the Florida Bar,” or “a body created by Florida Senators” – I was uncertain as to the precise status of the body or the implications of that status, save that I did not regard the Nominating Commission to be federal entity.

I also did not know that in an April 26, 2010 Motion to Dismiss the Del Fuoco complaint (at 6), Department of Justice attorneys representing both O’Neill and the Department, in seeking to claim absolute privilege for O’Neill’s statements about Del Fuoco in the Nominating Commission application, have stated that the Nominating Commission is “a quasi-legislative body, established by members of the U.S. Senate.” Though the motion does not make the point because it is not germane to the argument, it is clear enough that the motion means “a quasi-federal legislative body.” Thus, there may exist another argument as why O’Neill violated 18 U.S.C. § 1001 by falsely describing the origin of the Bar Counsel investigation in his Nominating Commission application.

Additional developments regarding the O’Neill nomination/confirmation are addressed in Addendum 7 to a Robert E. O’ Neill profile on jpscanlan.com

Bringing Down a Giant

The following opinion, by Father Raymond J. deSouza, was published in The National Post (Canada) on August 12, 2010.

The worst moment of the late Ted Stevens' long political career was the most important.

Senator Stevens died in a plane crash on Monday, having spent forty years in the United States Senate. He devoted himself to bringing home the bacon to Alaska, and by all accounts his pork-barrelling was prodigiously successful. Americans regarded the geriatric senator -- decades in office, gaming the system for ever more extravagant dollops of federal largesse, then proudly cutting the ribbons on projects named in his honour -- as something of a noble figure. They resolutely re-elect such men for tenures that make most crowned heads seem transient.

So entrenched was Stevens that when he was defeated in the 2008 election it was regarded as a career prematurely cut short. Those who marinated in the Senate even longer than he did -- Ted Kennedy and Robert Byrd -- were at least allowed the monarch's privilege of dying in office. But Stevens was defeated by the slimmest of margins in 2008, having been convicted in a criminal trial just days before the election.

Stevens was convicted of something relatively minor but still criminal: making false statements on his Senate financial disclosure forms in relation to renovations on his Alaska home. The federal prosecutors -- from the justice department's public integrity section--claimed that Stevens knowingly underpaid for the renovations, rendering them an illegal gift or perhaps a bribe. Stevens was convicted on all counts and lost the 2008 election a week later by a margin of less than 1.5%. A forty year career apparently had ended in disgrace.

Then in February 2009 an FBI whistle-blower revealed that prosecutors had conspired to withhold exculpatory evidence from the defence and had falsified records. In particular, the prosecutors withheld testimony that the cost of the renovations was actually less than Stevens had paid. They also knew that the star witness was likely lying at trial when he said that a friend of Stevens had told him to ignore the senator's request for an invoice.

It was a monstrous miscarriage of justice. Prosecutors at the highest levels of the justice department had deliberately conspired to convict a man who should never have been charged. It was a wrongful conviction, done with malice aforethought. Absent the whistle-blower, the prosecutors would have gotten away with it. Once it was revealed, the attorney general, Eric Holder, withdrew the charges, vacating the conviction. The presiding judge, Emmett Sullivan, called it the worst case of prosecutorial misconduct he had seen in 25 years on the bench and initiated a criminal contempt investigation of the responsible prosecutors.

Ted Stevens was one of most influential senators in Washington. He could not have been prosecuted without the approval of the most senior and experienced lawyers in the justice department. If America's prosecutorial state could grind him up, then no one before American courts is safe from wrongful and malicious prosecution. Throwing innocent people in jail is not an anomaly in the American criminal justice system, but routine practice. Thanks to the whistle-blower we know what was done to Stevens. Imagine what is done daily to the human debris swept off America's streets.

Prosecutors were no doubt eager to take down the giant of Alaska politics. Such a grand prize required more than the usual abuse of state power by the prosecutors, and Ted Stevens would have died this week a convicted felon, absent one FBI agent who was sufficiently disgusted to blow the whistle on his law enforcement colleagues. Stevens' greatest legacy ought not be his artful manipulation of the appropriations system, but rather how his case exposed the top-to-bottom corruption of American criminal justice -- a scandal that ought to shake the rotten system to its foundations.

When Stevens was convicted in 2008, both presidential candidates called for him to resign, as did many of his longtime Senate colleagues. To their shame, they believed the American criminal justice system to be credible. If it wasn't evident before, the Stevens case has made clear that no one should ever be considered guilty solely because of a verdict in an American court. The abuse of prosecutorial and police power is so rampant that a guilty verdict means nothing in itself. No doubt guilty people are indeed convicted, but a person should not be considered guilty solely by reason of his conviction.

In Canada, we should not be smug. We have our own parade of wrongful convictions. Just this week the Ontario government announced niggardly compensation for parents who were wrongfully convicted of molesting and killing their own children. Here the overzealous prosecutors employed the false testimony of an incompetent pathologist. America's shameful justice system should be a warning to us--it can happen here too.

They didn't do the crime, but they did the time. How to better prevent wrongful convictions

The following op-ed article by Keith Findley was published in the Milwaukee Journal-Sentinel on August 7, 2010.


Robert Lee Stinson spent more than half his life in prison for another man's crime.

He was a young man, barely 20, in 1985 when he was sent to prison for life for a Milwaukee rape and murder. Twenty-three years later, when he was in mid-life at 44, he was exonerated and freed. New scientific evidence, including DNA, excluded him and identified another man as the perpetrator.

Stinson's wrongful conviction is not unique. Nationwide, at least 255 people have been exonerated by DNA in the past two decades, including at least a half-dozen in Wisconsin. In Milwaukee alone, three men have been exonerated by DNA in murder cases in the past 18 months, including Chaunte Ott and William Avery, as well as Stinson. In Ott's and Avery's cases, DNA testing not only established their innocence but also matched Milwaukee's infamous alleged serial killer, Walter Ellis.

Commendably, Milwaukee County District Attorney John Chisholm has responded by initiating a project to review all Milwaukee homicides since 1992 and obtain testing in those cases in which the DNA can demonstrate innocence or confirm guilt.

The DNA exonerations not only have corrected injustices on a scale previously unimagined, they also have provided an unprecedented opportunity to learn about the causes of and remedies for error in criminal cases. These cases reveal not isolated mistakes, but systemic flaws. They reveal that wrongful convictions have identifiable causes, causes that can be addressed. Because so much is at stake, they must be addressed.

The cases teach that the leading causes of wrongful convictions include eyewitness identification error, police interrogation tactics that produce false confessions, flawed forensic science evidence, false jailhouse snitch testimony, prosecutorial misconduct and inadequate defense counsel.

In response, Wisconsin has adopted significant reforms to minimize eyewitness error (by reforming the methods used by police to obtain identifications) and false confessions (by requiring electronic recording of custodial interrogations). Much more can still be done in these areas. At the same time, Wisconsin also must address other causes of wrongful convictions.

Stinson's case, for example, highlights one of the most significant of these causes: flawed forensic science. Stinson was put away based almost entirely on expert testimony purporting to match bite marks on the victim's body to Stinson's teeth. Subsequent scientific analysis proved that conclusion flat wrong. In fact, Stinson could not have been the source of the bite marks. DNA from saliva on the victim's shirt matched another man, who confessed when confronted with the evidence.

More fundamentally, Stinson's case illustrates an alarming point the DNA exonerations now have confirmed: Most of the forensic sciences we routinely rely on lack solid scientific foundations.

In 2009, the National Academy of Sciences - the nation's pre-eminent scientific authority - issued a congressionally mandated report. It concluded that, with the exception of DNA, no forensic science - including everything from bite marks to ballistics and even fingerprints - has a solid scientific foundation.

Moreover, with the exception of DNA analysis, no forensic method has been rigorously shown to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. These disciplines still have important roles to play, but all need substantial research to validate basic premises and techniques, assess limitations and discern the sources and magnitude of error.

The cornerstone of the NAS' recommendations call for Congress to create a national oversight body charged with improving and regulating forensic sciences. Congress should act promptly to enact that legislation.

Meanwhile, there is much that also can and should be done at the state level. A comprehensive program is needed to increase the incentives for research and training in forensic sciences; establish uniform protocols and standards for analyzing and reporting on scientific evidence; and make crime laboratory work more objective, transparent and accessible to both sides in criminal cases.

Reform is also needed to address other recurrent causes of wrongful convictions. Attention must be paid, for example, to the misuse of jailhouse informants - inmates or co-defendants who snitch on each other, often untruthfully, in hopes of obtaining leniency in their own cases.

Exoneree Chaunte Ott, for example, was convicted of murder based primarily on the testimony of two co-defendants, who received deals for their testimony (testimony they later recanted when DNA cleared Ott).

Serious attention also must be paid to inadequate funding for prosecutors and defense attorneys. Despite the established risks caused by stretching prosecutors and defense attorneys too thinly, the state repeatedly has failed to increase funding. The hourly rate for appointed defense attorneys is lower today than it was more than 30 years ago. Wisconsin's system is so severely under-resourced that it is close to a crisis point.

We must not squander the opportunity for learning and reform provided by the DNA exonerations. DNA evidence does not alone solve all problems, because DNA is available in only a small percentage of cases.

Wisconsin must urgently renew its commitment to best practices in the criminal justice system to ensure both that the innocent are protected and that the guilty are not left free to threaten public safety.

Keith Findley is a clinical professor at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project and president of the Innocence Network.

Questions of innocence

The following editorial was published in the Houston Chronicle on July 27, 2010.

Positive developments in two cases here equal a good week for Texas justice.

In two very different venues in Houston last week, progress was made in addressing an endemic stain on Texas justice: the wrongful conviction of innocent people.

In an emotional courtroom scene, a teary-eyed state District Judge Joan Campbell announced she would recommend the release of 39-year-old Allen Wayne Porter, who has served 19 years of a life sentence in state prison for participation in a 1990 robbery-rape in southwest Houston.

After years of pleading innocence and seeing his efforts at exoneration rebuffed, Porter wrote a detailed letter to Harris County District Attorney Pat Lykos. She forwarded it to attorneys in her office's post-conviction review section, who compiled testimony that convinced Judge Campbell that Porter had been wrongfully identified by a victim and did not participate in the crime. District Attorney Lykos deserves credit for giving Porter's case the thorough scrutiny that would likely not have occurred under her predecessor, Chuck Rosenthal.

"The integrity of the criminal justice system means everything," said Lykos. "Wrongful convictions are a triple tragedy — for the accused, the victim and society. The true criminal is free to continue to commit offenses."

Judge Campbell ordered Porter released on bond pending action by the Texas Court of Criminal Appeals on her recommendation.

Ironically, a day later another district attorney was in Houston leading an effort to undercut the Texas Forensic Science Commission's ability to determine the validity of arson evidence that led to the execution of a Corsicana man, Cameron Todd Willingham. A national arson expert who consulted with the commission, Craig Beyler, concluded that the evidence was flawed and investigators should have known that.

The Innocence Project estimates that more than 600 inmates in Texas prisons were convicted using the same kind of questionable evidence.

Williamson County District Attorney John Bradley was appointed chairman of the commission by Gov. Rick Perry, who had refused a last-minute stay of execution request by Willingham. Bradley was part of a shake-up of the commission membership by the governor shortly before a scheduled presentation by Beyler to the group. Bradley canceled the meeting. Critics charged that Perry used Bradley to ice the probe and prevent political embarrassment to the governor before the November election.

Before last week's meeting, Bradley had issued a memo that if adopted would have restricted the commission's jurisdiction to evidence processed in state-accredited crime labs. That would have effectively taken the Willingham matter out of consideration.

On Friday, the commission committee looking into the Willingham case issued tentative findings that the arson evidence was "flawed science," but that arson investigators did not commit misconduct or negligence.

The commission pledged to examine arson investigation techniques in Texas and indicated it will take up the Willingham case at a meeting later in the summer.

Most significantly, the commission voted 8-0 to reject Bradley's memo. Chronicle columnist Rick Casey called the vote a defining moment for the commission in asserting its independence and authority.

It was a good week in Houston for Texas justice. One DA did her job and helped free an innocent man, while another was prevented from sabotaging the commission created by the state Legislature to improve Lone Star forensic science.

Texas haunted by innocent man's execution and cover-up

The following opinion by Michael Stone was published in the Portland Progressive Examiner on July 23, 2010.

While Texas Governor Rick Perry continues to deny the fact that Texas executed an innocent man, Texas Forensic Science Commission Chairman John Bradley is trying to end an investigation into the testimony of arson investigators that helped lead to Cameron Todd Willingham's execution.

The capital punishment evidence used against Willingham was proven to be "junk science," yet Perry ignored the truth and permitted the execution of an innocent man. Willingham, wrongly convicted of arson, was put to death in 2004 for killing his three children.

After the conviction, but before the execution, new and compelling forensic evidence had been made available to Perry that proved the fire was not arson. Perry ignored that evidence, and then went on to try to cover-up and bury evidence proving an innocent man was to be executed.

Indeed, in the past five years, at least six arson experts have examined evidence in the Willingham case and found that there were no credible indications that the fire was intentionally set. The Texas Forensic Science Commission was about to report those facts before Perry replaced numerous commission members, and squashing any possibility of a public accounting before an upcoming election.

Last fall Perry abruptly replaced Samuel Bassett, the head of the Texas Forensic Science Commission and the commission's founding chairman, with political ally and capital punishment proponent John Bradley. Perry made the move in order to avoid public testimony by science experts prepared to demonstrate at once both Willingham's innocence and Perry's callous and willful disregard of an innocent man's life. It was a blatant attempt at cover-up.

Perry's mistake in allowing the execution of an innocent man is only compounded by his attempt at cover-up. Perry's strategy of cover-up rests on a conspiracy theory claim that the preponderance of the evidence showing Perry knowingly allowed the execution of an innocent man is nothing but the fabrication of forces opposed to capital punishment.

Governor Perry knew there was no arson, yet allowed Willingham to be executed. Perry's behavior in the matter is despicable. He brings shame to the state of Texas, and himself. He should be held accountable. The cover-up must not be allowed to stand. Cameron Todd Willingham deserves justice.

Forensic panel must resist chair's efforts at sabotage

The following opinion by Barry Scheck and Patricia Willingham Cox was published in the Houston Chronicle on July 20, 2010.

This Friday, the Texas Forensic Science Commission (TFSC) is meeting in Houston to discuss, among other things, the status of its inquiry into whether arson investigations across the state have been based for many years on outdated and discredited scientific analysis and that the Texas criminal justice system has failed to recognize this fact. The inquiry arose from two cases — those of Cameron Todd Willingham and Ernest Willis — in which arson had been found and both men were sentenced to death.

In Willis’ case, the system identified its error when Ori White, the prosecutor responsible for retrial after appeal, relying on the expertise of Dr. Gerald Hurst, realized how wrong the original arson analysis was. He promptly moved to dismiss the case, and Willis was ultimately pardoned on the grounds of actual innocence.

Cameron Todd Willingham was not so lucky. Despite asserting his innocence, he was executed in 2004 based on the same arson evidence that prosecutor White — and the arson community nationwide — had realized was scientifically baseless. Before Willingham was executed, Gov. Rick Perry ignored a plea from Hurst, the expert Ori White relied upon, that arson analysis in Willingham’s case was plainly unreliable.

Our interest in these issues is not abstract. One of us, Patricia Cox, is a cousin of Cameron Todd Willingham. The other, Barry Scheck, is co-founder of the Innocence Project, which exonerates the wrongfully convicted through DNA evidence.

In May 2006, we asked the TFSC to undertake this inquiry about arson evidence. We submitted a 48-page report from an independent panel of the nation’s leading arson investigators, which concluded that the scientific analysis used to convict Willingham was not valid. The commissioners then engaged their own national expert to review the matter, who agreed that the forensic analysis used to convict Willingham was wrong — and further, that experts who testified at Willingham’s trial should have known it was wrong at the time. Days before that expert was to present his findings, Perry removed three commissioners, including the chair, Sam Bassett, and appointed Williamson County District Attorney John Bradley as the new chair. Bradley immediately shut down the Willingham hearing.

In an op-ed on these pages last November, Bradley denied charges that his actions were politically motivated and decried those “[who] have made exaggerated claims and drawn premature conclusions about the case.” He then assured Texans that the commission’s investigation “will be completed” using a “disciplined, scientific approach.” Instead, what we have seen so far is not a review of scientific issues but a bureaucratic effort to undermine, if not end, the Willingham inquiry by rewriting the commission’s rules and its jurisdiction.

Last week, after closed meetings that may violate the Texas Open Meetings Act, Bradley sent out an unsigned legal memo instructing commissioners that they have a “relatively narrow investigative jurisdiction.”

Employing “Catch-22” logic, he claimed that commissioners lack the “discretion or power” to investigate evidence that was not from a laboratory accredited by the Department of Public Safety (DPS) — which, as it happens, did not accredit labs before 2003, years after the Willingham fire. By this reasoning, the TFSC cannot review any pre-2003 matter, such as the Houston Police Department crime lab evidence, the scandal that gave rise to its formation.

In 2008, the TFSC carefully considered the jurisdiction question, and, with assent from the Attorney General’s office, determined that the Willingham and other old cases like it are well within its authority.

And rightly so: The Willingham inquiry into the use of unreliable arson analysis is an urgent matter for more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. If its investigation is derailed, the commissioners would be turning their backs on these potentially innocent Texans.

Rather than becoming mired in bureaucratic shell games, the commissioners should take their cue from the FBI, which, after learning that a scientific test it used for three decades to do composite bullet lead analysis was unreliable, not only stopped using this flawed science but systematically reviewed its old cases and notified prosecutors across the country when it could no longer stand behind the testimony of its own agent examiners. The same should be done in this instance.

The people of Texas deserve a justice system they can believe in. But if commissioners keep allowing Bradley to rewrite the rules and sabotage the commission’s mission, their ability to redress the forensic problems that have plagued the criminal justice system in Texas will never materialize.


Scheck is co-founder of the Innocence Project; Cox is a cousin of Cameron Todd Willingham.

U.S. Justice Targeting Conrad Black

The following op-ed by Peter Worthington was published in the Toronto Sun on July 19, 2010.

That the U.S. Internal Revenue Service would bring suit against Conrad Black, claiming $71 million in unpaid taxes, reeks of malice more than justice.

It’s hard to escape the conclusion the tax charges emanate from the U.S. Supreme Court’s ruling on Black’s behalf, and sending back to the appeal court his conviction on three relatively minor fraud charges and obstruction.

The clear message is he was found guilty on “honest services” charges that don’t exist in his case.

The Supreme Court ruled “honest services” apply only to bribery and kickbacks, neither of which applies to Black.

Instead of rolling with the counter punch and admitting error, the U.S. justice system dredged up the tax issue, which Black’s lawyers say shouldn’t apply because he paid Canadian taxes between 1998 and 2003.

The charges seem designed to cost Black money he probably doesn’t have for lawyers’ fees — more Department of Justice vindictiveness.

One need look no further than Patrick Fitzgerald, U.S. Attorney for the district of Northern Illinois, to see the bitterness and lust for revenge against Black.

Prosecutors were embarrassed when the original trial found Black not guilty of nine of the most serious fraud charges, and they were mortified and embarrassed again when the Supreme Court lambasted them.

The moral of the IRS tax charges is don’t mess with American Justice, which has a record and reputation of malevolence and meanness, regardless of errors the system makes.

Take John Demjanjuk, an aging Ukrainian auto worker whom the Justice Department decided was Ivan the Terrible, a sadistic Nazi prison guard at Treblinka and extradited him to Israel where he was initially sentenced to death.

To its eternal credit, the Israeli Supreme Court ruled Demjanjuk was not Ivan the Terrible and his conviction was a grotesque error of mistaken identity, and freed him. Rather than acknowledge error, the U.S. Justice Department kept after Demjanjuk, dug up other charges from another Nazi camp, revoked his citizenship and deported him to stand trial in Germany.

No one was ever punished or called to account for falsely branding Demjanjuk as a war criminal. During the war, he was a Ukrainian conscripted into SS auxiliaries.

The U.S. justice system is equally vindictive towards Leonard Peltier, convicted of murder in the death of two FBI agents killed in a range war at the Lakota Sioux reserve at Pine Ridge in 1975. The trial was admittedly fraudulent, but the justice system refused to consider releasing Peltier 35 years after the incident.

Even the appeal judge in his case urged the president to show clemency. But the system is unmoving, refusing to admit error or forgiveness. Lost in the case is the fact an Indian youth was shot and killed when the agents were, but no investigation was ever carried out.

Some double-standard.

Laurie Bembenek was falsely convicted in 1981 of murdering her husband’s ex-wife in Milwaukee. She escaped 10 years later to Canada, where Toronto Lawyer, and now Superior Court Justice, Frank Marrocco took her case pro bono and got her freed.

The Wisconsin justice system never forgave her, and though she paid for various DNA tests that proved her innocence, the system remains adamant and won’t apologize.

So it’s no surprise the system is taking another run at Conrad Black, with arguably the most vindictive prosecutor in the U.S. determined to get him.

Nor is it surprising the U.S. has the world’s highest documented incarceration rate — a prison population of some 2.5 million.

Jersey Democrat, Justice Integrity Project on Kagan Nomination

Jersey Democrat, Justice Integrity Project
Urge ‘No’ On Kagan, Citing Rights Concerns

Washington, DC (July 19, 2010) – The Senate should reject Democrat Elena Kagan’s Supreme Court nomination based on her shabby civil rights record that’s apparent from her Department of Justice work, according to a Democratic former New Jersey legislator and Jersey City mayoral candidate.

Louis M. Manzo, drawing on his experience fighting one of the nation’s most explosive political prosecutions, said the Senate should reject Kagan because of “her indefensible support of restrictions on constitutional freedoms and her failures to defend due process.”

The bipartisan Justice Integrity Project (JIP) today released Manzo’s statement by video to illustrate the project’s objections to Kagan on similar executive power grounds. The civil rights project announced its objections on June 28, just before the Supreme Court thwarted Kagan’s effort to block a hearing for former Alabama Gov. Don Siegelman. Manzo’s statement and similar constitutional criticisms of Kagan are available before Senate voting at JIP’s unique website, which includes substantive criticism of her.

“While serving as Solicitor General arguing against certiorari in Siegelman v. United States, Kagan ignored constitutional protections provided by due process,” Manzo said. “Also troubling is the manner by which Kagan feigned ignorance to what is frightfully apparent in Siegelman’s case – prosecutorial misconduct. Instead of questioning the bizarre prosecution tactics employed against Siegelman, Kagan blindly supported positions taken by prosecutors with obvious personal and political agendas.”

“What all cases involving wrongful prosecutions share in common,” said Manzo, a target in the Bid Rig III case in New Jersey that helped propel Republican U.S. Attorney Chris Christie to New Jersey’s governorship last fall, “is the necessity of a fair judicial system.” In Bid Rig III, DOJ gave a felon large sums to donate to New Jersey campaigns such as Manzo’s, with Democrats overwhelmingly indicted. Manzo won a major victory this spring when his trial judge dismissed the most serious charges.

Expanding on Manzo’s themes, JIP Executive Director Andrew Kreig cited compelling evidence that Siegelman, 64, was framed by DOJ, which seeks to imprison him for 20 more years.

“The gist,” said Kreig, “is that Kagan acted selfishly to advance her technocrat career, combining bad legal judgment with a monstrous cover-up. This opens a window to her other failings, which don’t receive the attention they deserve. Senate confirmation these days is largely kabuki-style theater for the public, fostered by a bipartisan, back-scratching elite. Here, a president’s loyalists seek to install one of their cronies over timid, partisan objections about a few special-interest topics. But we are skipping big issues about due process and our other basic liberties, which would inflame the public if ever fully aired.”

About the Justice Integrity Project

The Justice Integrity Project examines potentially abusive prosecutorial and judicial decisions. Its research so far includes prosecutions against Democrats Siegelman and Manzo, Republicans Bernard Kerik and Ted Stevens, and targets in military and other national security work.

Louis M. Manzo Statement*

Opposing Confirmation of Elena Kagan to the U.S. Supreme Court

(Click for video)

As a case study of the Justice Integrity Project, I am speaking today to urge defeat of Elena Kagan’s nomination to the Supreme Court.

What all cases involving wrongful prosecutions share in common is the necessity of a fair judicial system where redress can be attained in the courts of our land.

While serving as Solicitor General, arguing against certiorari in Siegelman v. United States, Kagan ignored Constitutional protections provided by due process. She argued a position that supported the “standard-less sweep [of the law], which allows policemen, prosecutors and juries to pursue their personal predilections” – something previous courts had guarded against.

Her position was an assault on due process.

Despite concerns raised in the opposing argument – the danger posed by vague interpretations of criminal statutes, which infringe on the protections of free speech as provided by the First Amendment – Kagan ignored the sound opinion of the unprecedented position taken by 42 former United States State Attorneys General** and a United States Attorney General who filed an amicus brief in support of Siegelman’s argument.

***
Kagan defended a position that would restrict Constitutional freedoms.

Also troubling is the manner by which Kagan feigned ignorance to what is frightfully apparent in Siegelman’s case – prosecutorial misconduct. Instead of questioning the bizarre prosecution tactics employed against Siegelman, Kagan blindly supported positions taken by prosecutors with obvious personal and political agendas.

These are attributes which are ill-suited for members of the highest Court in our land. Due process is the examination of the means used to justify the end. Her nomination would pose a grave threat to victims of due process violations, whose only redress is the courts.

For her indefensible support of restrictions on Constitutional freedoms and her failures to defend due process, Elena Kagan should be denied confirmation as a Supreme Court nominee.

###

The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

The Reason for the Bar Counsel Investigation of FL U.S. Attorney Nominee Robert O'Neill

by James Scanlan

In a June 23, 2010 editorial here on the nomination of Robert E. O’Neill for the position of US Attorney for the Middle District of Florida, among other things suggesting O’Neill’s unsuitability for the position, I pointed out that O’Neill made a false statement in an application for the position that he submitted to the Florida Federal Judicial Nominating Commission. In the application, O’Neill attributed the initiation of a District of Columbia Bar Counsel investigation of his conduct in United States v. Deborah Gore Dean to a complaint filed by the defendant. In fact, the investigation was not initiated by Dean or anyone associated with her. I also explained that if O’Neill made the same misrepresentation to a federal entity he likely violated 18 U.S.C. § 1001.

Concern about DC Bar confidentiality rules caused me not to reveal the initiator of the investigation in the earlier editorial. But those rules could not be intended to keep the public from knowing that a nominee for one of the most important law enforcement positions in the country made a false statement in the course of seeking the position, particularly when the nominee may have violated federal law. As reflected in a July 9 letter to Attorney General Eric Holder, the investigation was initiated by the Office of Bar Counsel itself as a result of reading a court of appeals opinion criticizing the conduct of O’Neill and his colleagues in the prosecution of the Dean case. The inference is inescapable that O’Neill misrepresented the origin of the investigation because he believed an investigation initiated by a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission or other readers of his application than an investigation initiated by Bar Counsel itself, especially one prompted by a court’s criticism of O’Neill’s conduct. One would think that such a misrepresentation would disqualify the maker from further consideration for any law enforcement position.

The July 9 letter encourages the Attorney General to advise the President to withdraw the O’Neill nomination. If that does not happen, and if the Judiciary Committee should confirm O’Neill, his tenure will be remarkable for nothing if not irony. For O’Neill has achieved some of his notable successes by provocatively asserting that other people lied. Materials on the Dean case made available under the ’Must’ Reading (and Viewing)” portion of this site give great attention to O’Neill’s 50 or so provocative assertions that Dean lied on the stand, often if not invariably in circumstances where he believed or knew for a fact that Dean had not lied. Section B.1 of the Prosecutorial Misconduct page of jpscanlan.com and Section B of the Robert E. O’ Neill Profile address the way O’Neill and a colleague apparently pressured a government agent into providing testimony that would seem to categorically contradict Dean’s testimony about an interaction with the agent in order that O’Neill could stridently assert that the agent’s testimony showed that Dean lied about the interaction (when O’Neill knew with absolute certainty that Dean had not lied about the interaction). See Section E.2 of the O’Neill profile for other examples of O’Neill’s tactics to facilitate his asserting the Dean lied.

In United States v. Spellissy – a case, like Dean, that O’Neill cites in his application as one of his most important – much of the government’s proof rested on O’Neill’s impeachment of his own witness in these provocative terms:

A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you can not trust that person. And for [the witness] to have said what he said in this courtroom, he must have lied repeatedly before the other judge. Or as I said before, he told lies here and told the truth before others.

Only O’Neill knows how often this tactic played a important role in cases that never attracted attention. But regardless of O’Neill’s own practice of calling people liars, in light of the false statement in his US Attorney application, an O’Neill confirmation will diminish the faith of the public in prosecutors generally and the faith of prosecutors in each other. But maybe that would be a good thing. As one observer recently noted:

There is a bond among prosecutors, as there is in most organizations. If a prosecutor makes a statement, there is a consensus among other prosecutors that the statement is correct. For many years, I shared that perspective. I no longer do. Now, I am more apt to question my colleagues when they embark on dubious courses of action. I do not take what a colleague says at face value simply because he or she is a federal prosecutor.

These seemingly philosophical remarks may be found at page 39 of O’Neill’s Florida Nominating Commission application, where he disparages allegations against him by a former subordinate four pages before falsely attributing the DC Bar Counsel investigation of his conduct in the Dean case to a complaint filed by the defendant.

Order in the court - Florida Innocence Commission awaits signature

The following editorial was published by the Tallahassee Democrat on June 29, 2010.

Incoming Senate President Mike Haridopolos, R-Melbourne, found the money in a lean appropriation year to fund an "innocence commission" that would without doubt save the state millions of dollars from incarcerating the wrong person in Florida prisons. In 2008, lawmakers passed a law automatically granting wrongfully imprisoned persons $50,000 for each year they were incarcerated.

Nationwide, 245 post-conviction exonerations have been based on DNA evidence since 1989 and Florida has contributed to almost 80 percent of those cases — clearing 12 Florida Death Row inmates since 2000.

Mr. Haridopolos' support of the $200,000 makes a large investment in public safety, too. When the wrong person is imprisoned for a crime, the actual perpetrator remains at large. Law-and-order standards, he has pointed out, include expectations of having a system that doesn't make such mistakes.

Creating the Florida Actual Innocence Commission is now in the hands of the Florida Supreme Court, specifically incoming Chief Justice Charles T. Canady. It will be up to him to ensure that the commission, which is just now getting organized, will begin the serious work of examining cases where the system has broken down, or has the potential to, such as handling of eye-witness testimony, improper use of evidence, false confessions, crime-fighting tunnel vision and inadequate defense.

The commission won't look for inmates who might be innocent and it's not intended to assign blame or point fingers. Rather it will look after the fact of DNA exoneration at errors of such a magnitude that they undermine our state's reputation for justice and identify broken parts of the criminal justice system. And, obviously, grave errors of justice cause the innocent person to suffer loss of income and reputation and punish their children and families with untold stresses.

Outgoing Chief Justice Peggy Quince is considering an administrative order launching the commission, which has been championed by former American Bar Association president and Florida State University president emeritus Sandy D'Alemberte.

Mr. D'Alemberte's petition called for a permanent, court-ordered panel of legal experts, police and victim advocates that would continue this deliberative work — a pattern recommended by an American Bar Association's assessment team and used in other states.

But the real legacy could well belong to Mr. Canady if he takes the next step in assigning permanence to this body through a court order so it can do more than issue a report and depart. He has the opportunity to make certain that the Florida Actual Innocence Commission helps put Florida in the forefront of actual justice for all.

Curious United States Attorney nomination for one of nation’s busiest districts

by James Scanlan

On June 9, 2010, the President nominated Robert E. O’Neill for the position of United States Attorney for the Middle District of Florida, one of the nation’s busiest districts. O’Neill, currently chief of the Criminal Division in the office, is already discussed in materials made available through the “’Must’ Reading (and Viewing)” portion of this site. Those materials pertain to his conduct as the lead counsel in United States v. Deborah Gore Dean, an Independent Counsel case tried in 1993.

In that case, after the defendant alleged pervasive prosecutorial misconduct, the trial court specifically agreed with much of what the defendant asserted, including that prosecutors failed to disclose exculpatory material while representing that no such material existed, put on witnesses without attempting to determine whether their testimony was true, and had reason to know that the testimony of at least two government witnesses was false. More generally, the court found that prosecutors had acted in a manner reflecting “at least a zealousness that is not worthy of prosecutors in the federal government …” Reflecting the scope of the abuses it identified, the court repeatedly noted its concerns about their “cumulative effect,” observing that it was “almost impossible to quantify the total impact” of the abuses on the defendant’s ability to defend herself. While all criticisms broadly pertained to lead counsel O’Neill, the court also specifically noted that O’Neill had acted in a manner that the court would not have expected from any Assistant United States Attorney who had ever appeared before it. In an appellate decision, in “deplor[ing]” certain prosecutor actions, the Court of Appeals for the DC Circuit not only recognized that the underlying misconduct was severe, but impliedly found that representations prosecutors made in defense of their actions were false.

But the referenced “’must’ reading” materials (which are maintained on my website, jpscanlan.com) reveal that the trial and appellate courts had very limited understandings of the scope of prosecutorial abuses perpetrated by O’Neill and his colleagues, in many instances because prosecutors deceived the courts in responding to the defendant’s allegations. Read especially Section B.1 of the materials, which explains how O’Neill and a colleague pressured a government witness into providing testimony that would be interpreted as categorically contradicting the defendant in order that O’Neill could repeatedly and provocatively state that the defendant had lied on the stand. It also explains how prosecutors deceived the court in order to cover up O’Neill’s conduct. And read the separate profile on O’Neill, which should leave most observers wondering how O’Neill could ever have been nominated, much less confirmed. Of course, the latter remains to be seen.

An issue worth following involves the fact that in an application for the US Attorney position submitted to the Florida Federal Judicial Nominating Commission, O’Neill mentioned the Dean case in several places, including in a response to a question concerning discipline matters. Styling a matter “Deborah Gore Dean, Office of Bar Counsel, The Board on Professional Responsibility, District of Columbia Court of Appeals (1995),” O’Neill stated (at 43): “After her conviction on all counts, Ms. Dean filed a bar complaint alleging a number of instances of prosecutorial misconduct during the trial.”

Nowhere in the application will one get an inkling of the courts’ criticisms of O’Neill’s conduct in the case. The important point, however, is that Dean did not file a Bar Counsel complaint. And while I both filed a formal complaint and submitted various materials to Bar Counsel following Bar Counsel’s request for Dean’s counsel to comment on a response in an ongoing investigation, the Bar Counsel investigation was already in progress when Dean’s counsel and I learned of it. DC Bar confidentiality rules may preclude me from disclosing what person or entity initiated the investigation. So I have encouraged Bar Counsel to advise the Senate Judiciary Committee of what person or entity initiated the proceeding and why the person or entity did so, and in a June 16, 2010 letter, I encouraged the Committee to secure the Bar Counsel record. Once it has information as to the initiation of the Bar Counsel investigation, the Committee can determine whether O’Neill deliberately misstated the origin of the investigation because he believed that a complaint filed by a convicted defendant would raise fewer concerns with the Florida Nominating Commission than an investigation initiated by the person or entity that actually initiated it. Further, it is hard to believe that the vetting process leading to O’Neill’s nomination did not involve inquires about disciplinary matters similar to those found in the Nominating Commission application. And assuming that in such process O’Neill provided the same response regarding the DC Bar Counsel investigation that he provided in the Nominating Commission application, there is a strong chance that he violated 18 U.S.C. § 1001. For that and other reasons, I suggest that those who follow this nomination process may see an interesting story unfold. The story may well be even more interesting if O’Neill is confirmed – though, to be sure, a rather sadder one. Developments during the course of the nomination process will be addressed in addendums to the O’Neill profile.

Will County apology too little too late

by Eric Zorn

This opinion was originally published in the Chicago Tribune on May 28, 2010.

[Will County}Sheriff Paul Kaupas, whose department brought the original case against Kevin Fox, recently underwent a medical procedure and was unavailable for comment Thursday. Kaupas' spokesman, Pat Barry, issued an apology on the sheriff's behalf. "He is issuing his apology to Kevin Fox and the Fox family," Barry said. "He is grateful that the person who did this has been brought in. Justice is going to be served." ...

This passage jumped out at me considering the time line: Charges dropped based on DNA evidence nearly five years ago. Federal jury award to Melissa and Kevin Fox nearly two and a half years ago. A vile miscarriage of justice inflicted on an innocent man whose daughter had been murdered and only now comes an apology?

The 7th Circuit Court of Appeals chastised the investigators on the case, implying that their decision to quickly rule out the girl's death as the work of a sexual predator was "absurd." The court also found that detectives lacked probable cause to arrest Fox, given the "exceedingly weak evidence" they had assembled.

Fox gave police a videotaped confession at the end of a 14-hour overnight interrogation. He later said the confession was coerced.

Y'think? Barry said today he was unaware if any member of the investigatory team had been disciplined or even reprimanded for their conduct in the Fox case.

Wisconsin: the best justice money can buy

In 2007, the Wisconsin State Supreme Court disciplined Dane County (Madison) Assistant District Attorney Paul Humphrey for twice misleading the judge and withholding evidence from a defendant during a vehicular-homicide case against Adam Raisback that ended in acquittal. A list of cases in which Humphrey's conduct crossed the line into unethical can be found at http://truthinjustice.org/humphrey-cases.htm

Joseph Sommers, Raisback's defense attorney, filed the ethics complaint against Humphrey that led to the prosecutor's discipline. Unfortunately, the Wisconsin State Supreme Court's idea of fairness is to level equally serious charges against any attorney who complains about a fellow lawyer's conduct. As a result, Sommers was brought up on serious charges of unethical conduct as well. Sommers pushed back, which really riled the state's high court, and almost certainly led to Sommers' current predicament. We'll let Joe Sommers tell you what has happened in his own words. Keep in mind,Wisconsin has the best supreme court money can buy. The justices can't help what they do, since they do not understand what ethics are in the first place.

For those who have not heard, things have gotten significantly worse. First, last Friday the Wisconsin Supreme Court issued an order that surpasses everything previously in my matter. The bottom line is, the record will be sanitized, and all transcripts from evidentiary hearings and depositions will be excluded from the record, but for the two days of evidentiary hearings which I did not attend. (The reason why I did not attend those two days was that the Supreme Court's appointed presiding official declared that the evidence from six prior days of evidentiary hearings would not count, and under the Supreme Court Rules, I would be responsible for the costs x 3 for the hearings themselves).

Basically, I proved everything I set out to prove, i.e. that the Supreme Court's in-house law firm orchestrated a cover-up of the Dane County District Attorney's Office orchestrating a criminal conspiracy to railroad innocent people. But even in my most cynical moments I never thought that transcripts from sworn testimony would be so easily and completely removed from the record. This is unprecedented, from my experience. It is critical to realize that the Supreme Court's actions go hand-in-hand with the Wisconsin State Journal's coverage. The paper ignored the testimony, and the Supreme Court now, for all practical purposes, covers up for that by removing the transcripts from the record.

For those who could not make the evidentiary hearings in the past, don't worry. You did not miss anything because those hearings, according to the Supreme Court, did not take place. And for those who did attend, what you thought you heard and saw was nothing more than an episode from the Twilight Zone.

Second, the way things are headed, there is more than a distinct possibility that I will be facing trumped up criminal charges in the near future. For those who say, 'they can't possibly do this. How could they ever get away with it,' I just refer you to the above.

The bottom line is, I just took on evils that were too big and too powerful, to which wipeout is the price. I suppose I was recklessly irresponsible (as I have been told) to think that one should try to do something about criminal prosecutions manufactured against innocent people for the sake of insiders making a buck. If only I would have directed my energies toward meaningful things such as my children's sporting events, etc., rather than thinking in terms of active discipleship and citizenship. How crazy can a guy get?

If I sound embittered, I am. I do appreciate those who did what they could. Unfortunately, when it came to those who could make a difference, they never could work up the courage, imagination or inclination to do anything. If there is one response to this email I request I do not receive it is people telling me how I am in their prayers, etc. While I am not against prayers on my behalf, It is amazing to me how those who harp the most about prayer are so often incapable of lifting a finger beyond that. If only the Good Samaritan would have realized that he merely needed to say a prayer and move on.

About three weeks ago, in a fit of anger, someone tied up in my matter told me that I was a "goner" and that I was "quicksand" for anyone standing nearby. It is often said that truer things are said in jest, and this is likewise true about things said in anger. And the evidence overwhelmingly suggests I am a "goner" and that things are only going to get far worse. And hopefully I will finally internalize that I am "quicksand," and therefore will realize that very few wish to hear from me anymore.