Friday, December 7, 2007

Judge orders release of Holloway suspect

Borrowed from USA Today

A judge in Aruba ordered the release Friday of the last of three suspects re-arrested last month in the disappearance of American teenager Natalee Holloway, ruling the evidence was not strong enough to continue holding him. The judge ordered Joran van der Sloot, 20, to be freed from jail Friday, according to John Pauly, a communications consultant for Aruba's prosecutors' office.

Van der Sloot was arrested Nov. 21 along with two other suspects, Surinamese brothers Deepak and Satish Kalpoe, who were released from jail last Saturday following a similar ruling.

A statement from prosecutors said the judge found the investigation "has not resulted in more direct evidence than before that Natalee Holloway has died as a result of a violent crime against her or that the suspect has been involved in such a crime."


Prosecutors said they will decide whether to file charges in the case by the end of the month.


Prosecutors say they have evidence that Holloway, who was 18 when she disappeared, is dead.

Sunday, December 2, 2007

Cynthia Sommer, convicted of poisoning Marine husband, to get new trial

The appeal included juror misconduct, but the Judge only commented on the ineffective assistance of counsel, citing these reasons why her attorney's efforts did not meet the legal standard required by the Constitution:

"He missed many areas that would have been fruitful for his defense," Deddeh said. "And in missing those areas, I believe he was ineffective."

Those areas included failing to object to controversial evidence about the arsenic test results; failing to call witnesses to debate questionable testimony from state investigators about the ease with which one may obtain arsenic; and failing to counter or investigate testimony that the Marine base where Todd Sommer worked was free of arsenic.

The judge also found that Udell made the crucial mistake of posing questions to witnesses about Sommer's behavior after Todd's death.

Udell testified Friday, before the court's ruling, that he was "scared to death" of the potential consequences his errors might have on his 30-year practice.

He told the judge that his belief in Sommer's innocence had blinded him at trial. "It was a dead-bang winner as far as I was concerned," Udell said, adding that he had not slept since the verdict. "I was stunned. I'm a broken man."

Bloom called Udell a passionate attorney who suffered from "legal glaucoma."


Saturday, November 24, 2007

The "new developments" in the Hollaway case are very disturbing

Yesterday we reprinted an article that reported: new evidence comes from recently monitored telephone calls between the three suspects.

Another article from paints a different picture (underlining added for emphasis).

The investigators used advanced techniques to re-examine existing information, including cell phone records and text messages exchanged the night Holloway disappeared. They found some discrepancies, Mos said.

As part of their work, investigators returned to the homes of the suspects to try to re-create transmissions.

The team also discovered that some existing evidence was improperly analyzed, he added.

This sounds like a chapter from Making Evidence fit the Suspect 101. I sincerely hope that these investigators aren't so desperate to bring closure to this case that they are manipulating evidence to make it produce the results they want -- that is a definite breeding ground for a wrongful conviction.

Friday, November 23, 2007

New Developments in the Natalee Holloway case


Latest News Hilversum, Friday 23 November 2007 18:43 UTC

Holloway suspect flown to Aruba

The Hague - Joran van der Sloot, the main suspect in the case of missing American student Natalee Holloway,will fly to the Caribbean island of Aruba on Friday - the scene of Ms Holloway's disappearance. Mr Van der Sloot was detained at his home in the Netherlands on Wednesday because of new evidence in the case. Two Surinamese brothers who were friends of Mr Van der Sloot have also been arrested on Aruba, which has an autonomous status within the Kingdom of the Netherlands.

Dutch newspaper De Telegraaf reports that the new evidence comes from recently monitored telephone calls between the three suspects, the last people known to have seen Natalee Holloway before she went missing two-and-a-half years ago. Her disappearance has received major media coverage in the United States, amid angry accusations that the Aruban authorities have not been doing enough to solve the case.

Monday, November 19, 2007

FBI Laboratory to Increase Outreach in Bullet Lead Cases

Press Release: November 17, 2007
Washington D.C.
FBI National Press Office

Expanding on a series of efforts that were first initiated in 2002, the FBI Laboratory announced today that it has undertaken an additional round of outreach, analysis, and review efforts concerning a discontinued forensic test known as Bullet Lead Analysis, or BLA. Previously, in September 2005, the FBI Laboratory announced that, after extensive study and consideration, it would permanently discontinue the examination of bullet lead.

“Recently, joint reporting by The Washington Post and CBS News brought to our attention concerns that our messages on the discontinuation of bullet lead analysis were not clear enough and getting to the right people,” said John Miller, FBI Assistant Director for Public Affairs.

“In addition, working with the Innocence Project, the reporters brought to our attention some cases that may require closer examination of the scientific findings and testimony by FBI experts, and we are committed to go forward with that,” Miller said.

Those additional steps being taken by the FBI and the Department of Justice include the following:

The FBI has offered to work jointly with the Innocence Project, which has done legal research to identify criminal cases where bullet lead analysis has been introduced at trial.

An additional round of letters is being transmitted to the original recipients of the FBI notices in 2005, updating those state and local crime laboratories and other agencies on the additional developments noted above and requesting that they again notify state and local prosecutors that may have introduced bullet lead analysis during trial.

In particular, in BLA cases in which an examiner testified and which resulted in a conviction state, local, and other prosecutors are being asked to obtain and provide transcripts to the FBI and the DOJ of BLA testimony by FBI Laboratory examiners.

These transcripts will undergo a multi-step review conducted by scientific and legal experts at the FBI and DOJ to determine whether the testimony was consistent with the findings of the FBI Laboratory in 2005, particularly concerning the inability of scientists and manufacturers to definitively evaluate the significance of an association between bullets made in the course of a bullet lead examination.

If the reviews identify questions about the testimony, the prosecuting offices responsible for any such cases will be specifically and individually notified.

An enhanced system for monitoring testimony to ensure it comports with the findings contained in lab reports is being implemented by the FBI Laboratory.

Bullet lead examinations have historically been performed when a firearm has not been recovered or when a fired bullet is too mutilated for comparison of physical markings. BLA uses analytical chemistry to determine the amounts of trace elements (such as copper, arsenic, antimony, tin, etc.) found within bullets. As a result of that analysis, crime-scene bullets were compared to bullets associated with a suspect. From the early 1980s through 2004, the FBI Laboratory conducted bullet lead examinations in approximately 2,500 cases submitted by federal, state, local, and foreign law enforcement agencies. The results were introduced into evidence at trial in less than 20 percent of those cases.

In 2002, the FBI asked the National Research Council (NRC) of the National Academy of Science to have an independent committee of experts evaluate the scientific basis of comparative BLA. Specifically, the FBI divided the bullet lead examination into three parts – the scientific method, the data analysis, and the interpretation of the results – and asked the NRC for an impartial review of each area. The technology reviewed by the NRC had been used by the FBI Laboratory since 1996. Following the study, the NRC’s recommendations were set forth in a 2004 report entitled “Forensic Analysis: Weighing Bullet Lead Evidence.”

The NRC found that the FBI Laboratory’s analytical instrumentation was appropriate and the best available technology with respect to precision and accuracy for the elements analyzed. It also found that the elements selected by the FBI for this analysis are appropriate. The NRC expressed concerns, however, on the interpretation of the results of bullet lead examinations.
Following the issuance of the report, the FBI Laboratory voluntarily discontinued bullet lead analysis while it embarked on an exhaustive 14-month review to study the recommendations offered by the NRC, including an evaluation of numerous statistical methodologies. That review resulted in the FBI announcement in 2005 that the temporary discontinuation of BLA would be made permanent. Several factors played a role in the decision, but it was primarily based on the inability of scientists and manufacturers to definitively evaluate the significance of an association between bullets made in the course of a bullet lead examination. The announcement received prominent media attention at the time.

At the time, Congress was briefed and letters outlining the FBI Laboratory’s decision to discontinue BLA were sent to approximately 300 state and local crime laboratories and other agencies that received laboratory reports indicating positive results, as well as the National District Attorney’s Association, the National Association of Criminal Defense Lawyers, and the Innocence Project, a litigation and public policy organization. Recipients were provided with a link to the NRC report and asked to provide a copy of the letter to all prosecutors working on any case to which the BLA may relate. The FBI offered to assist recipients, including assistance with regard to any discovery obligations, and provided name and contact information for experts at the Department of Justice and the FBI Laboratory. State prosecutors were asked to consult with discovery experts or appellate specialists within their office of the State Attorney General’s Office to determine the effect of the announcement on their prosecutions. In addition, for all federal cases, the FBI notified its field offices and the Executive Office for United States Attorneys advised those U.S. Attorneys offices where cases had been brought utilizing BLA testimony.

Recently, in response to the 2005 notification, two news organizations working with the Innocence Project initiated an effort to obtain selected trial transcripts from state and local court cases and to undertake additional assessment. The Innocence Project analysis of some of the transcripts that were identified raised a question concerning the BLA testimony of FBI examiners, particularly concerning the inability of scientists and manufacturers to definitively evaluate the significance of an association between bullets made in the course of a bullet lead examination.

Assistant Director Miller acknowledged the efforts of both the legal organization and the news media.

“The digging into individual cases done by the Innocence Project, The Washington Post, and CBS News brought some serious concerns to our attention. The FBI is committed to addressing those concerns. It’s the right thing to do,” Miller said.

“These additional and ongoing efforts further demonstrate the commitment of the FBI to advancing the cause of forensic science and to the utilization of the highest scientific and evidentiary standards – and to protect innocent Americans from erroneous accusations,” Miller said.


Sunday, November 18, 2007

A New Book on Scott Peterson -- comments from our readers

We have received several comments on our October 17 article about the new book on Scott Peterson due to come out in December, called "The End to the Laci Peterson Mystery: Scott Peterson Finally Confesses."

One comment just received posed these questions: "Marlene, why would you promote this book? Are you tied to it?"

No, I don't have any ties to this book, and I am not promoting it. I simply reported it as news.

My guess is that this book is not going to change any one's mind about Scott Peterson's guilt or innocence and certainly won't end the mystery to Laci Peterson's death. Unless she reveals how and when and why Scott Peterson moved Conner's and Laci's bodies to places that ensured he would be convicted. Because one thing I am sure of is that Conner did not wash ashore. And if he didn't, then neither did Laci. She may have been dropped into the Hoffman channel, and thus "technically" washed ashore, but she wasn't put in the Bay on December 24 -- by Scott Peterson or anyone else.

Monday, November 12, 2007

The Law of Parties -- Is it a Just Law?

Texas has a law called, The Law of Parties. Other states have similar laws called, Felony Murder. In essence, these laws hold all parties engaged in a criminal activity responsible for the death of any one that occurs during that activity. The person does not have to be the trigger, and the murder doesn't have to be part of the initial plan. If a murder occurs, everyone involved is considered equally responsible.

That law in Texas has recently raised serious discussion, and Governor Perry has recently commuted the execution of Kenneth Foster to life imprisonment. Foster was a participant in a string of burglaries, and he claims that burglary was all that was intended and that he had no involvement or control over the murder committed by another participant. Previously, the Texas Board of Paroles and Pardons voted 6-1 to recommended the commute to Gov. Perry.

I am very mixed in my feelings about these kinds of laws. When a person engages in a criminal activity which involves guns, he or she should anticipate that something might go wrong and a murder occur. That criminals don't think of such serious things is no excuse.

What really disturbs me is the disparity in the sentencing for the group. The trigger man was convicted and executed, but the other participants, no more innocent or guilty than Foster, were given life sentences. We have seen other cases when the trigger man actually received a lesser sentence than the participants. How can the participants be more responsible than the trigger man? I think Appellate courts should have the authority and the wisdom to equalize sentences in these cases.

Saturday, November 10, 2007

Drew Peterson and the good ole boys club

Sgt. Drew Peterson is presumed innocent until proven guilty in the recent disappearance of his wife, Stacy. But no one can doubt that something fishy was going on with the Coroner's Jury that determined that his previous wife, Kathleen Savio, died from accidental drowning.

The only police officer called to testify never was at the death scene, and didn't attend the autopsy, where eight separate injuries were noted on Savio's body.

The coroner asked him if there was "any signs of a struggle noted at the scene?"
The officer answered: "no there was not."
"Any signs of a struggle or defense wounds?" the coroner asked.
"No, there was not," the officer answered.
"And there was a little bit of blood in the tub?" the coroner asked.
The officer said, "That's right."

I sincerely hope that this officer is prosecuted to the maximum for lying under oath and impeding a criminal investigation. We do not need good ole boys covering for each other.

Friday, November 9, 2007

The Key Witness

The November 2007 Reader's Digest has a story about the intimidation of a key witness in the Duke Lacrosse Players fiasco.

Cabdriver Moezeldin Elmostafa, an immigrant from Sudan, Africa, in the process of getting citizenship, provided a crucial alibi for Reade Seligman. "Elmostafa swore out an affidavit and even produced a cell phone bill that listed a call from Reade Seligman's phone at 12:14 a.m. on the day of the alleged assault. The cabbie repeated his story to the detectives."

"Two weeks later, the same detectives showed up at the taxi office with a warrant for his arrest." He was charged on a misdemeanor larceny charge because he provided taxi service for a woman who pled guilty to shoplifting $250 worth of handbags. He did not know she had shoplifted. He had to post $750 bail, and spent a total of 5 hours in jail.

Elmostafa soon realized that the police were trying to scare him. But he would not be intimidated. He hired an attorney and faced the charges in August 2006, and was acquitted.

"Police claimed his arrest was not unusual, saying they routinely investigate witnesses who may be called to trial."

Police investigation and intimidation of witnesses certainly happened in the Kimble case. A key alibi witness for Ronnie Kimble gradually gave way to intimidation over time. Initially James Ogburn confirmed Ronnie's presence at Lyles Building Materials at 4:30 p.m. on the day of Patricia Kimble's murder. Over time, however, Ogburn changed his story, and eventually refused to testify for the defense. Ogburn had his own criminal past to be concerned with, as new charges hung over his head like a two-ton steel ball, ready to drop at the word of the Assistant DA Richard Panosh. Ogburn was never charged with those crimes. And Ronnie Kimble paid the price. Left without an alibi, he was convicted of a murder and arson he did not commit. He now serves a life sentence without possibility of parole.

Sunday, November 4, 2007

Wrongful death suit in Peterson case delayed again

According to the Modesto Bee, the $25 million wrongful death suit brought by Dennis and Sharon Rocha against Scott Peterson is delayed again, with the trial date now set for July 8, 2008.

Friday, November 2, 2007

Insurance funds go to Laci Peterson estate

The Fresno Bee
11/01/07 00:00:00

The 5th District Court of Appeal in Fresno on Wednesday affirmed a decision by the Stanislaus County Superior Court that awarded proceeds from a life insurance policy on Laci Peterson to her estate. . . .

In late 2005, Laci Peterson's estate was awarded the proceeds of a $250,000 life insurance policy by Stanislaus County Superior Court Judge Roger Beauchesne.

Under state probate law, Scott Peterson could not inherit his slain wife's estate if he was responsible for her killing. Attorneys for Peterson appealed the Stanislaus County court award, saying his guilty verdict on the murder is not final because appeals are pending.

Wednesday's decision comes more than four months after a three-judge panel heard arguments from Pat Harris, an attorney for Peterson, and Adam Stewart, who represented Sharon Rocha, Laci Peterson's mother and the estate's administrator.

It is unclear whether Scott Peterson will appeal the decision.

Messages left for Harris and Stewart were not immediately returned.

Thursday, October 25, 2007

On the Record with Greta Van Susteren -- Update about Scott Peterson's Appeal, Conclusion

Last night, Megan, Greta's fill-in, said some Scott supporters would be on tonight, and implied that we would be surprised at their identity.

The only guest she had on tonight was John Guinasso, one of the Jurors. Of course, he is committed to Scott's conviction. So what happened to the other guests? Megan did not mention that those interviews would be aired at a later date.

Megan asked Guinasso if he thought Scott got a fair trial. Duh! What did she think he was going to say.

Guinasso defended the actions of fellow-juror Beratlis, who is the juror who got into the boat and rocked it. He said the original 12 jurors were the only ones who had seen the boat, and so the viewing of the boat was for the benefit of the alternate, because the Judge instructed them to start deliberations over again.

Guinasso is wrong. Let's refresh his memory with this timeline:

Jun 23 - Justin Falconer is removed from the Jury, and replaced by Gregory Jackson
Jul 27 - The Jurors view the boat
Nov 5 - The Jurors requested to see the boat
Nov 8 - The Jurors viewed the boat, at which time Beratlis rocked it
Nov 9 - Fran Gorman was removed from the Jury
Nov 10 - Gregory Jackson was removed from the Jury

Guinasso also said that Gregory Jackson wanted to be dismissed as early as 2 days into the deliberations. I suppose it took Guinasso longer than he expected to push Jackson out. Remember, Guinasso has publicly taken credit for helping to remove all 3 jurors -- Falconer, Gorman, and Jackson.

Guinasso is confident that if Scott's conviction is overturned that it will be because of something that happened in chambers, not because of juror misconduct. I agree that there are probably plenty of things that went on in chambers that are appellate issues, but the Peterson jurors will not be spared being told that their misconduct contributed to having Scott's verdict overturned.

Wednesday, October 24, 2007

11 Reasons why Scott should get a new trial

I was disappointed that Greta only covered 3 reasons why Scott should get a new trial. PWC Consulting some time ago identified 10 reasons, which included 2 of Greta's. Adding the third one of Greta's to the list brings the total to 11.

1. The State of California failed to prove that Conner's and Laci's bodies washed ashore from where Scott went fishing, and thus failed to connect Scott Peterson to the deaths.

Proving Laci and Conner washed ashore from where Scott went fishing was, in Rick Distaso's words, "the most important fact" presented at the trial. Dr. Ralph Cheng was tasked with proving this fact. However, Cheng's methods amount to no more than junk science. His methodology is unproven and has never undergone peer review, he has no expertise in the movement of bodies in water, and his Progressive Vector Diagram is based on incorrect data. Moreover, the verified water level data and wind speed data prove Conner could not have washed ashore on April 13, 2003. The Richmond Jetty and Point Isabel each have easy access by car and foot, and that access is 24 hours a day, seven days a week.

2. The State of California failed to prove the time of death occurred on or before December 24, 2002.

All of the descriptions of Conner when he was found were of a full-term newborn. All measurements of Conner indicate December 29 as the earliest day Conner died. With all of the State's own experts concluding that Conner lived beyond December 24, 2002, thus excluding Scott, Dr. Greggory Devore was tasked with proving that Conner did in fact die on December 23rd or 24th. Like Cheng, Devore used junk science to deliver what the Prosecution team demanded. His method for determining Conner's gestational age is unproven and has never undergone peer review, he used different equipment and different reference standards than those used by the Laci's physicians, he measured only one of the four of the long bones recommended by his reference standard (Jeanty), and he failed to apply the standard deviation Jeanty requires.

3. The State of California relied on an unreliable witness to exclude other possible explanations for Laci's disappearance.

The State of California presented a timeline from 10:08 - 10:18 a.m. as the only time that an abduction could have occurred to account for Laci's disappearance. 10:08 was the time Scott checked voice mail on his cell phone. 10:18 was the time Karen Servas allegedly found McKenzie in the street and put him into the backyard. Karen Servas is an unreliable witness who changed her timeline and the details several times. In consequence of the weight the Trial Court placed on her testimony, important and valid alternative explanations for Laci's demise were excluded as a Defense.

4. The Trial Court refused to sequester the Jury for the guilt phase.

Even though the trial had to be moved because of negative media exposure, with obvious evidence that the negative media exposure was increasing, not decreasing, with the onset of the trial, the Trial Court refused to grant the Defense motion to sequester the Jury. This negative media saturation could not have been avoided by the Jurors, no matter how well-intentioned they were.

5. The Jury conducted its own demonstration during deliberations.

The Jury asked to see the boat during deliberations, which request was granted. Two of the jurors requested permission to get into the boat, which request was granted. The two jurors then proceeded to rock the boat and otherwise test it for stability. At least one Juror admitted a negative interpretation of Scott's reaction. A Jury is not allowed to consider anything that is not presented during the course of the trial as evidence.

6. The Jury did not begin their deliberations after two jurors were dismissed and alternates took their place.

Juror Richelle Nice admitted that the Jury did not start all over again with its deliberations when she took her place among them. She was the last of the two alternates to do so. She said it was only necessary for her and the other alternate to be brought up to speed, not for the others to begin again. The Jury was specifically instructed after each juror dismissal that they had to start all over again, as though their previous deliberations had never occurred.

7. The unprecedented dismissal of two Jurors after deliberations began.

This is an area of debate, whether the dismissal of a juror after deliberations began requires the dismissal of the entire jury and a new trial. Normally, alternates are selected in case a juror has to be dismissed during the trial. In this case, two jurors were dismissed after deliberations began.

8. The Trial Court erred in allowing the dog-trailing evidence.

The Trial Court conducted 402 evidentiary hearings in February and March of 2004. Two dog handlers testified at those hearings about the results of their trailing and cadaver dogs. The trailing dogs failed to follow Laci's scent from the house (523 Covena) to the truck to the Warehouse on Emerald Street, even though the State's theory was that Scott carried Laci's dead body from the house and loaded her into the truck and then drove to the warehouse. That is exonerating evidence. The cadaver dogs failed to alert to in the house, anywhere on the property, in the truck and in the boat. That is exonerating evidence.

The only portion of the dog evidence allowed in was the alert at the Berkeley Marina, under the claim that the bodies being found where they were was corroborating evidence. Yet no evidence was even produced at the pre-trial hearings to establish that the bodies washed ashore from where Scott was fishing. The Trial Court just assumed they had.

To allow only the incriminating dog evidence while excluding the exonerating evidence was unduly prejudicial against Scott.

9. The Amber tapes were prejudicial, not probative

The jury was subjected to hours and hours of taped recorded conversations between Amber Frey and Scott Peterson. These tapes had no evidentiary value. Their sole purpose was to inflame the Jury against Scott. The Trial Court allowed them under the pretext that they showed his state of mind after Laci disappeared. However, an analysis of the phone calls, and the calling pattern, demonstrates that each day Amber was the first to call, and often a couple of times, and Scott's calls to her were late in the evening when nothing further could be done to look for Laci. Indeed, the analysis suggests that Amber is the one engineering the continued phone relationship, not Scott. Since she was working for the police as their agent, this may well constitute entrapment.

10. The Trial Court erred by not allowing the Defense to present its boat demo.

The Defense prepared a demonstration with someone in a boat similar to Scott's and in the same area of the Bay attempting to put an object the size and weight of Laci overboard and into the Bay. The Trial Court refused to allow this demonstration on the basis that it could not precisely duplicate the conditions that Scott faced on December 24, 2002. Yet the Trial Court allowed the Prosecution to present a demonstration of a woman the size of Laci and pregnant getting into the boat and curling up to fit in between the seats. This demonstration did not duplicate the conditions Scott would have faced. Laci was dead, not alive. Laci had to be put into the boat, she couldn't climb into it herself. Laci had to be forced between the seats, she couldn't twist and turn until she fit. Most importantly, Laci most likely was at maximum rigor mortis.

The Trial Court also allowed the testimony of David Weber, VP Engineering, Lowe Boats, regarding the boat's stability when those stability tests are undergone under remarkably different conditions than Scott would have faced.

11. The concrete weights, alleged to have been used to weigh Laci down, were never found in spite of extensive searches after Laci and Conner were found.

On the Record with Greta Van Susteren -- Update about Scott Peterson's Appeal

For those of you that missed it, on Tuesday nite, Greta's coverage consisted only of a recap of Laci's disappearance and the investigation, trial and conviction of Scott.

Tonite, Greta covered 3 points that Scott's supporters claim warrant a new trial.
  • The jurors got into the boat and conducted their own test during deliberations
  • The concrete weights, alleged to have been used to weigh Laci down, were never found in spite of extensive searches after Laci and Conner were found
  • The Jury changed three times, twice after deliberations began

What was not included, because of the extensive southern California fire coverage, were interviews with some people close to Scott and his appeal. The teaser is that we will be surprised by their identities and what they have to say.

These interviews will be shown tomorrow night.

Tuesday, October 23, 2007

On the Record with Greta Van Susteren -- Update about Scott Peterson's Appeal

From Greta's website:

Tuesday, October 23:

He murdered his wife and unborn baby. Now, three years later, Greta examines Scott Peterson's appeal.

The 2-part series starts tonight 'On the Record'

Monday, October 22, 2007

US v. Jones, No. 06-15203 -- Jury coerced by the Judge to reach a verdict

Our Constitution provides certain rights to Defendants, a major one being trial by jury. Each of the 12 jurors is under sacred obligation to vote his conscience when deciding guilt and innocence, and if he has reasonable doubt, he has a moral and legal obligation to acquit. Jurors are not to abandon "honestly held beliefs" about the guilt or innocence of the defendant in order to reach a verdict.

In the above cited case, after 2 hours of deliberation, the Jury sent its second note to the Judge that it was deadlocked. The Judge did not accept the Jury's deadlock and ordered them to appear the next day to continue deliberating, and added, "we will do this until you reach a verdict."

The next day, one of the jurors called in sick, and an alternate took her place. The new Jury was told to begin deliberations again, but that "there was no need of sending the court any notes that the jury can't agree, because you are going to stay here a long time." After an hour of deliberation, the Jury convicted the defendant.

In 1965, the U.S. Supreme Court, in Jenkins, ruled that "An instruction which appears to give a jury no choice but to return a verdict is impermissibly coercive." Furthermore, the instruction is "plain error," meaning that objection by Defense Counsel is not necessary in order to preserve the error on appeal.

"Such an error seriously affects the fairness, integrity, and public reputation of judicial hearings."

Based on this plain error, the 11th Circuit Court of Appeals reversed and remanded for a new trial.

Read the full opinion . . .

Friday, October 19, 2007

UPDATE: Dallas judge approves vacating Clay Chabot’s sentence, sets bail hearing for Oct. 26

Borrowed from the Innocence Project website:

(DALLAS, TX; October 19, 2007) – At a hearing this morning in Dallas, Judge Lana Myers set another hearing for next Friday (October 26) to determine bail for Clay Chabot. The Innocence Project, which represents Chabot, and the Dallas County District Attorney’s office agree that Chabot’s 1986 murder conviction should be vacated because of DNA test results pointing to the actual perpetrator. At today’s hearing, Judge Myers approved vacating Chabot’s conviction (which now goes to the Court of Criminal Appeals, which is the entity with the authority to vacate convictions in Texas). Details of the case are available here, in a press release on the case issued yesterday. At this morning’s hearing, the Dallas County District Attorney’s office indicated that it may attempt to retry Chabot for the crime, despite the clear DNA evidence.

Following is a statement from Innocence Project Staff Attorney Vanessa Potkin, who argued on behalf of Chabot this morning and will appear in court at next Friday’s hearing:

“If the District Attorney’s office intends to retry Clay Chabot, it’s going to be an extremely short trial because there is not one shred of evidence connecting him to this crime. Clay Chabot was convicted based on Jerry Pabst’s testimony, and the DNA results don’t just prove that Pabst lied to hide his own guilt – the DNA also shows that Chabot did not commit this crime.”

Some DAs just don't know when to give up.

Thursday, October 18, 2007

Clay Chabot’s 1986 Dallas Murder Conviction Is Expected to Be Vacated at Hearing Friday Morning Based on DNA Results

We'll post the results of the hearing, but for now, this is the part of the awful scenario that I want to call your attention to -- in my opinion, these dirty deals are a major contributing factor in wrongful convictions. When will prosecutors wise up and stop giving get-out-of-jail-free cards to murderers?

Chabot was a friend of the victim’s husband, and Pabst was Chabot’s brother-in-law. Chabot, a Navy veteran with no criminal record, always maintained that he was asleep with his wife and infant son at the time of the crime. Pabst was arrested three days after the murder. His car matched a description of an unfamiliar car seen in the victim’s driveway on the morning of the crime, and he had pawn tickets for the victim’s stolen radio and her husband’s stolen pocketknife in is possession. Despite the evidence against Pabst, prosecutors tried Chabot for the crime – and presented Pabst as the centerpiece of the case against him. Pabst claimed that, under duress, he went to the victim’s home with Chabot to collect on a bad drug bet. Prosecutors alleged that Chabot was angry about the poor quality of $450 drugs he had bought from the victim’s husband. At the trial, the victim’s husband said that, in fact, he had offered to buy the drugs back from Chabot, but Chabot declined. But Pabst’s testimony at the trial convinced the jury of Chabot’s guilt, and he was convicted and sentenced to life in prison.

Within days, Pabst was free. Prosecutors dismissed the pending murder indictment against him and allowed him to plead to theft of the victim’s radio, with a sentence of 30 days in jail, time served. This victim’s family was not told that charges against Pabst were dropped. Janice Warder, who prosecuted Chabot, later said in federal testimony that she had told Pabst and his attorney, “You testify, and I’ll do the fair and just thing,” which Chabot’s attorneys argued reflected an agreement to dismiss the murder charge. Warder told the judge and jury that Pabst did not receive a deal in exchange for testifying. Recently, she was quoted in news accounts saying she had been “duped” by Pabst and said, “Looking back, I certainly wish we had the benefit of what we have now.”

The 78-page motion filed for tomorrow’s hearing reflects the recent agreement between the office of D.A. Craig Watkins and Chabot’s attorneys that, at the very least, the new DNA evidence shows that Pabst lied on the stand and that Chabot was denied a fair trial as a result. The motion also says that documents disclosed by the state years after trial show that prosecutors violated the law by making an explicit deal with Pabst in exchange for his testimony – now proven false – against Chabot. The motion also details the lack of any other credible evidence linking Chabot to the crime, and says that no jury would convict him today.

The evidence is plain that Jerry Pabst, not Clay Chabot, committed this crime. There is no basis for retrying Clay for this crime, since there is no credible reason to believe that he had anything to do with it. We hope the nightmare he and his family have endured for 21 years will come to an end soon,” said Bruce Anton of Sorrels, Udashen & Anton in Dallas, which is co-counsel with the Innocence Project.

Michigan man freed amid doubts about his guilt

Borrowed from the Innocence Project website:

Posted: October 17, 2007 12:23 pm

Claude McCollum, who had been incarcerated since 2005 for a murder he says he didn’t commit, walked out of a Lansing, Michigan, jail yesterday after prosecutors asked a judge to throw out the conviction due to new evidence in the case. McCollum was arrested in 2005 and convicted in 2006 for allegedly killing a professor on the campus of Lansing Community College. The judge decided this week McCollum could wear an electronic monitoring device instead of being held on bond. State Police officials told reporters yesterday that the new evidence is a confession from another man, who is also facing charges in at least five other murders.

McCollum, 30, was convicted based partially on statements he allegedly made to police about how he could have committed the crime while sleepwalking. DNA evidence from the crime scene was shown at trial to exclude McCollum and come from an unknown male. Officials have not disclosed whether this biological evidence has been compared to the profile of the new suspect.

After his release Tuesday, McCollum, 30, told reporters: "It was one of the greatest feelings in the world. There was a time when I had doubts, but something told me things were going to work out, and that I'll finally see this day."

Wednesday, October 17, 2007

California Governor vetoes judicial reforms

California governor vetoes justice reforms Posted: October 16, 2007 3:15 pm For the second year in a row, California Gov. Arnold Schwarzenegger yesterday vetoed three bills passed by the state legislature to reduce the number of wrongful convictions in the state. The bills would have required law enforcement agencies to record interrogations in certain crimes, required jailhouse informant testimony to be corroborated and created a task force to develop guidelines on increasing the accuracy of eyewitness identifications.

The chairman of the California Commission on the Fair Administration of Justice said in a statement yesterday that “Schwarzenegger has taken California out of the front lines of criminal justice reform.”

The vacuum of leadership in the Governor’s mansion will not make the causes of wrongful convictions disappear. We cannot insert our heads in the sand as the parade of innocents who have been wrongfully convicted continues to grow.

Read the full statement here. (PDF)

Schwarzenegger, in his veto messages, said new state policies would “would place unnecessary restrictions on police.”

Read the governor’s veto statements here.

Source: Innocence Project blog

A new book on Scott Peterson

A new book will soon be out in which the author claims to have a confession from Scott Peterson. This is last night's media announcement:

SOURCE: Digi-Tall Media Oct 16, 2007 19:32 ET

The End to the Laci Peterson Mystery
Scott Peterson Finally Confesses

The End to the Laci Peterson Mystery DALLAS, TX and DENVER, CO--(Marketwire - October 16, 2007) - Unique, inspiring, and dramatic, "'I'm Sorry I Lied to You,' the Confession of Scott Peterson," by Donna Thomas, is a literary sojourn into the dark and disturbing world of Scott Peterson's life on California's Death Row. Based on the infamous brutal murder of Laci Peterson and her unborn son, Conner, "'I'm Sorry I Lied to You,' the Confession of Scott Peterson," reexamines the evidence, the speculation, and the major players of one of America's most heinous murders. Publication date is set for December 15, 2007; wherein, Thomas, a well-known anti-death penalty advocate, details her personal visits to Scott Peterson on San Quentin's death row and describes that fateful day when Scott confessed to her.

Although many books have been written about the Peterson case, this author's work is unique in that it examines the detailed workings of the mind of Scott Peterson firsthand. Vilified by the press, the family of the victim, and various other literary entrepreneurs, Scott Peterson is seen by Thomas as an individual who although convicted of the capital offense of murder is still a human being.

Donna Thomas exposes certain aspects of the events, characters, and circumstances that were not highly published during the investigation, arrest, and trial. She also questions the motivation and competence of some of the participants. These ideas alone are a source of necessary checks and balances in an already overtaxed criminal justice system. Also, questions are raised in this true crime literary piece as to whether Scott Peterson did or did not receive a fair trial.

One question that Donna Thomas does not raise is the matter of Scott Peterson's innocence. Although in the beginning she believed Peterson was innocent, it is the brutal and graphic confession while visiting Scott in San Quentin that changed the course of her investigation, Donna's relationship with Peterson, and altered her emotional and spiritual essence forever. The passages detailing this aspect are brutally shocking and without remorse.

"'I'm Sorry I Lied to You,' the Confession of Scott Peterson" will take you to a literary dimension seldom experienced within the realm of modern reading. Donna Thomas' legal expertise and humanistic endeavors create an atmosphere of suspense unequaled in any previous writing on the subject. Her visits to San Quentin are accentuated with sights and sounds of a world seldom seen and contain some well-known death row inmates of equal or greater infamy. Inside this secret insight into the mind of a man still being talked about today, you will also find photographs never before published.

Ms. Thomas continues to work on cases of people wrongly accused all over the country, she maintains residences in several cities.

"'I'm Sorry I Lied to You,' the Confession of Scott Peterson": Author: Donna Thomas ISBN: 0-9785728-8-2 -- $27.00 Digi-Tall Media; P.O. Box 868024; Plano, TX 75086-8024 - Fax: 866-223-7289
EDITORS: For review copies or interview requests, contact: Digi-Tall Media Fax: 866-223-7289
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Monday, September 24, 2007

Today, the FBI releases it’s crime statistics for 2006.

Violent crime continues to rise, up nearly 2% from 2005 and approaching the high of 2002. Big city homicides rose by 1.8% (as they did nationwide), but the number of rapes dropped.

Aggravated assault accounted for the majority of violent crimes, 60.7 percent. Robbery for 31.6 percent and forcible rape 6.5 percent. Murder, the least committed violent offense, made up 1.2 percent of violent crimes in 2006.

Firearms, continue to be the favourite weapon of choice and were used in 67.9 percent of the nations murders, 42.2 percent of robbery offenses, and in 21.9 percent of the aggravated assaults. Knives were a distant second.

Even a simple browse through the data is a necessity. It details crime figures by geographic region, State, and even by University and College. There are further listings by age, gender, sex, race etc. of those arrested.

To see the full 2006 FBI Uniform Crime Report
click here.

Wednesday, September 19, 2007

Justice Delayed

In the United Kingdom, in 1981, Ray Gilbert was jailed for the murder of a Liverpool bookmaker. Ever since, he has maintained his innocence. Sentenced to a minimum of 15 years, he has now served more than 25 because he refuses to admit to, and take responsibility for, the killing. Prisoner H10111, as he is known, currently resides in Kingston prison, Portsmouth, and is believed to be Britain's longest-serving prisoner claiming a wrongful conviction at the moment.

His supposed accomplice has been cleared by the court of appeal - and even the victim's father has grave doubts about the conviction. Isn't it time to reopen this case, asks Eamonn O'Neill… Read the article...

Tuesday, September 18, 2007

The Sufficiency of the Evidence -- What standard is used?

Those of you who followed the Scott Peterson trial know that Judge Deluchi made the statement that the conviction would withstand a direct appeal because the evidence was sufficient for a conviction.

Just what is the standard used?

In determining the sufficiency of the evidence, we determine whether, considering all the evidence in the light most favorable to the guilty verdict, a rational trier of fact could have found that the evidence established the elements of the offense beyond a reasonable doubt. All reasonable inferences and credibility determinations should also be made in the light most favorable to the verdict. Source

Friday, September 14, 2007

Horses used in Search and Rescue

Here is a very interesting article on horses being used for search and rescue. It describes a demonstration using two horses. The demo proved that "a wide variety of horses can be trained for cadaver area/air scent locating" and also that horses can distinguish human cadaver scent from the scent of other dead animals.

The advantage of horses over dogs is that the horses can cover a much larger area in a much shorter time. Also, they seem to need less training.

Read the article . . .

Wednesday, September 12, 2007

Reporter Richard Cole suffered heart attack in May

We have just come across an article about Richard Cole's heart attack on May 14, 2007. He was at work at the SF Daily's newsroom when he began experiencing chest pains. A co-worker drove him to a hospital, where he was given a blood thinner and then an angioplasty. The article said Cole hoped to return to work in a few weeks. We wish him well.

Those of you who followed the Scott Peterson trial know that Richard Cole provided some excellent reporting that called attention to weaknesses in the State's case. This lengthy article by Cole demonstrates his extensive and detailed analysis of the evidence presented at Scott's trial.

By Richard Cole
Daily News Staff Writer

After more than four months and 174 witnesses, prosecutors in Scott Peterson’s double-murder trial have rested, and the defense will begin its case next week. Using lead prosecutor Rick Distaso’s four-hour opening statement as a guide, the Daily News has graded whether the government proved its case against the Modesto fertilizer salesman beyond a reasonable doubt.

1. Blinds down: Distaso said in his opening it was unusual for the blinds to be down in the Peterson home, as they were the morning of Dec. 24, 2002, when Laci was reported missing. No witnesses testified to that, however, and the Peterson’s housekeeper said the blinds were always down when she arrived to clean the house. Grade F.

2. Golfing vs. fishing: The first neighbor Scott talked to when he went looking for Laci testified Scott told her he golfed that day. But she also said Scott was distraught and that she was firing questions at him. Laci cousin Harvey Kemple also claimed Scott said he went golfing, but Scott had already told police he was fishing before he talked to Kemple. And hours before he talked to the neighbor, police or Kemple, Scott left a message for Laci on their answering machine that he was returning from Berkeley – not the Modesto country club the couple had just joined at a cost of $25,000. Grade F.

3. No dog walking: Her doctor and numerous of Laci’s relatives and friends testified Laci was tired as her pregnancy progressed, and had suffered dizzy spells while walking. But none could say for certain she wasn’t walking the dog. A neighbor who appeared neutral in the case said Laci told her in mid-December she had started walking McKenzie because she was worried about her weight. Grade F.

4. Fishy story: In his opening statement, Distaso said emphatically, “That kind of sets the scene for the entire case, this story about fishing.” The first thing that made police suspicious about Scott’s fishing trip was that he didn’t answer directly when asked what he was fishing for the night Laci disappeared. They also thought it strange that he went fishing the day before Christmas. But Scott said in his police interview that he mainly wanted to get his new boat in the water. And Laci’s stepfather Ron Grantski, who became one of Scott’s chief accusers, also went fishing that same day. Grade F.

5. Bucket and mop: A bucket and mop were found outside the door of the Peterson’s house, with prosecutors’ suggesting Scott may have tried to clean up the crime scene. But no evidence of a crime scene was found inside the home and none of the floors were wet. A state criminalist examined the mop and bucket and found no evidence of blood or tissue. Grade F.

6. The bodies and Brooks Island: The most powerful prosecution evidence is that the bodies washed up almost four months after Laci disappeared near the spot where Scott went fishing in San Francisco Bay. But experts told police the anchors Scott allegedly used to sink the body weren’t heavy enough to do the job. And the coroner indicated there was evidence Laci’s body was exposed to sunlight. A tidal expert trace the path of Conner’s body to where Scott said he was fishing – but said the location of Laci’s body didn’t fit his calculations. Grade C.

7. Dog and leash: Prosecutors suggest that leaving McKenzie outside with his leash on was a setup by Scott to blame Laci’s disappearance on a stranger. But Scott took the leash off the dog before calling family, neighbors and police. Grade D.

8. No rain: Scott said he washed his clothes after fishing because it rained at the Berkeley Marina on Dec. 24, 2002. Prosecutors said both during the opening statements and in affidavits that the claim was untrue. But a marina maintenance man called by prosecutors said last week it had indeed drizzled during the day. Grade F.

9. Tiny time gap. Prosecutors used cellular tower records to show Scott made a cell phone call at or close to his home at 10:08 a.m. Neighbor Karen Servas said she found McKenzie at 10:18 a.m. That leaves only ten minutes for Laci to walk the dog and get kidnapped. But a cellular company executive called by the prosecution testified that the 10:08 a.m. call could not be used to fix Scott’s location. And Servas initially said she found the dog at 10:30 a.m. Grade D.

10. Freshwater fishing pole. Distaso said during his opening statement that Scott was carrying a freshwater fishing pole instead of a saltwater rod and reel at the Berkeley Marina. But police and a sports store manager later said the pole was indeed a saltwater pole, and detectives conceded that on the witness stand. Grade F.

11. Problems in the marriage: The first detective who interviewed Scott asked if there were any problems in his marriage. A state Department of Justice official later asked if there were “third parties.” Scott denied it both times, indicating he was lying about Amber Frey. He was later recorded apologizing to detectives for lying to them about Frey. Other witnesses have testified Scott had at least two previous affairs, and Laci had clearly forgiven him. But Scott continued to call Amber, even minutes before a candlelight vigil for Laci. Grade B.

12. The black pants: Scott told police he had left Laci wearing a white shirt and black pants, but she was found in beige pants. Prosecutors have never explained why Scott would lie about the color of the clothes. Even Frey’s pro-prosecution attorney Gloria Allred conceded Scott just may have been mistaken. Prosecutors tried to show that when Laci died, she was wearing the same clothes she had on the previous evening. But her sister Amy Rocha found the blouse Laci was wearing during a search of the Peterson’s home. And she said the pants she had seen on Laci were not those found on her body. Grade F.

13. The baby’s age: Distaso said a bone-growth expert would show Conner died Dec. 23 or 24. But the expert initially told police Dec. 25, which would have cleared Scott. And all but one of his estimates had Conner dying too early. Grade D.

14. “I lost my wife.” Amber Frey and her friend Shawn Sibley testified Scott told them he cried and said he had “lost” his wife weeks before Laci disappeared. Sibley also indicated she was unsure if Scott meant his wife had died or divorced him. And Scott had told at least one previous lover he was divorced. Grade B.

15. Scott’s mystery boat: “Not a soul knew he had bought a boat,” Distaso claimed in his opening statement. But police have conceded that witnesses place Laci at the warehouse where the boat was kept a few days before she disappeared. And Scott had put his correct name and address on the pink slip, which the boat’s previous owner sent in to the Department of Motor Vehicles. Grade F.

16. Not my photo: Scott looked at a faxed copy of a photo showing him and Amber together and falsely claimed to police it was a composite. The defense raised questions about the quality of the fax. Grade B.

17. Gasoline and fertilizer: Police found Scott’s boat cover with gasoline dripping on it in one shed, and found fertilizer spilled on his tarpaulin in another shed. Both materials could destroy forensic evidence, although prosecutors have not explained why he would not simply have thrown them away. Grade D.

18. Hair in the boat: A hair that may have been Laci’s was found in Scott’s boat in his warehouse. But witnesses have her visiting the warehouse days before. And the detective who spotted the hair had just searched Laci’s car before arriving at the warehouse and examining the boat. Tracking dogs had also been put in the boat before the hair was found. And the pliers the hair was found entwined in had not been used for some time, a state lab expert said. Grade F.

19. Meringue boomerang: The prosecution’s worst moment. Distaso said in his opening statement that, contrary to what Scott claimed, meringue was never mentioned in the Dec. 24, 2002 Martha Stewart Living television show he and Laci supposedly watched. But the defense then played a clip from that show, and meringue was indeed mentioned. Later Detective Al Brocchini, who had reviewed the tape, admitted on the witness stand that he didn’t know meringue was mentioned until the defense played the clip during its opening statement. Grade F-.

20. Scott’s pilgrimages to the marina: Scott visited the Berkeley Marina several times after Laci disappeared, and prosecutor suggest he may have been remorseful or fearful the bodies would surface. But each of those visits apparently coincided with either calls from police or newspaper stories about police searches of the San Francisco Bay waters. The defense also showed Scott visited other sites that were searched by police, were identified in telephone tips, or were mentioned as possible search sites in the newspaper. Grade D.

21. Heading for the border: Scott was arrested in the San Diego area with his brother’s identification, $15,000 cash and a car full of camping equipment, suggesting he was about to flee. His brown hair was blond and he was wearing a goatee. Prior to his arrest he had led police undercover cars on a four-hour roundabout journey, seeking to evade them several times. But the arrest took place at a golf course where Scott was scheduled to meet his family. And Scott had bought most of the camping equipment months earlier. And Scott had started growing the goatee when he was still in Modesto, where it is visible in television video. Grade C.

Tuesday, September 11, 2007

Texas Judge Blocks State from Destroying Evidence that May Show Whether Man Was Wrongfully Executed

Excerpts from The Innocence Project:

The Texas Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed motions in state court in San Jacinto County, Texas, seeking DNA testing on the only piece of physical evidence in the case – a hair from the crime scene – that could determine whether the hair matches Claude Jones, who was convicted of murder in 1990 and executed on December 7, 2000.

The hair, which was found on the counter in a liquor store where a man was shot and killed, was central in Jones’ trial and post-conviction appeals. An expert for the state testified at the trial that the hair was consistent with Jones’. The Texas Court of Criminal Appeals, the state’s highest criminal court, narrowly upheld Jones’ conviction, in a 3-2 ruling where the majority specifically cited the hair evidence as the necessary “corroboration” to uphold the conviction.

"The judge today recognized that this case raises very serious issues about the integrity of the criminal justice system. We’re grateful that the state will not be able to destroy this evidence before DNA testing can be conducted,” said Nina Morrison, Staff Attorney at the Innocence Project. “We are hopeful that the judge will also see that it’s in everyone’s interests to conduct DNA testing that could resolve serious, lingering questions about this case. DNA testing could show that Claude Jones was guilty, or it could show that the state had no basis for executing him. The public has a right to know whether Claude Jones committed the crime for which he was executed, and today’s ruling moves us one important step closer to learning the truth.”

Why did a Judge have to make this ruling?

The San Jacinto District Attorney, who was one of the prosecutors during Claude Jones’ trial, told us this week that he will not agree to DNA testing without a court order. We are asking for an emergency order from the court that will mandate testing and prevent officials from destroying this evidence in the meantime,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The public has a right to know whether Claude Jones actually committed the crime for which he was executed, and whether a serious breakdown in the state’s legal and political process led to a wrongful execution. Public confidence in the criminal justice system is at stake.” [underlining added]

From the same article, we learn that when Claude Jones applied for a stay of execution to then Governor George Bush, Bush's staff did not present him with information on the availability of DNA testing on the hair. That information would have stayed the execution because Bush supports the testing of DNA in order to ensure that a conviction is correct. A few months earlier, Bush stayed an execution so DNA testing could be done. “Any time DNA can be used in its context and can be relevant as to the guilt or innocence of a person on death row, we need to use it.” Several weeks later, DNA results showed that the man, Ricky McGinn, was guilty and he was executed.

I personally hope that Claude Jones is proven guilty by the new DNA testing, because I don't think our Criminal Justice system can withstand too much more erosion of public confidence.

Plea Bargains -- The 8th Circuit Court says the Government must keep them

In a recent case, US v. Yah, No. 063736, the Eighth Circuit Court affirmed the conviction but remanded the case for re-sentencing.

Yah had entered into a plea agreement with the government. In exchange for other charges being dropped and a recommendation for the lightest sentence under the guidelines, Yah would plead guilty, thus avoiding the cost of a trial.

Yah did plead guilty, but the government didn't recommend the lightest sentence because between the signing of the plea agreement and the sentencing hearing, Yah engaged in more criminal behavior and was charged with several State criminal offenses. The government argued to the sentencing Judge that this was a breach of the "acceptance of responsibility" clause in the plea agreement.

The appellate courts apply "general contract principles in interpreting plea agreements," and the Eighth Circuit Court interpreted Yah's agreement in Yah's favor. It said the "acceptance of responsibility" clause did not apply to the promise of a recommendation for a lighter sentence.

The case was remanded to a different judge for re-sentencing. The government is obligated to recommend the lighter sentence, but the new Judge is not required to accept the recommendation.

Read the decision . . .

[Reminder, to read decisions from Find Law, you have to register. This is a free registration, with no gimmicks attached.]

I am very much opposed to plea agreements. They are useful in only a very few instances. They pose two opposing dangers:

1) They are used by prosecutors to convince innocent people to admit to something they didn't do, to avoid going to prison for a very long time.

2) They are used by savvy criminals as get-out-of-jail free cards, or to greatly minimize the penalties for their crimes.

Jim Brazelton dies in Modesto, age 66

Extract from The Mercury News:

Jim Brazelton, former district attorney of Stanislaus County who led the prosecution team against convicted double-murderer Scott Peterson, has died. He was 66.

Brazelton died Monday afternoon at Memorial Medical Center, where he was hospitalized for the past few days, said Assistant District Attorney Carol Shipley, who did not know the cause of his death.

The ModBee also has an extensive article on his accomplishments and comments from friends.

Monday, September 10, 2007

Changes in our service by FeedBlitz

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We hope that you will continue with us . . .

Friday, September 7, 2007

And Justice for Some -- Wendy Murphy blasts defense attorneys

In her new book, And Justice for Some, Wendy Murphy lays a lot of blame for the problems in our legal system on the shoulders of defense attorneys. She says:

Too many people in this country think the criminal law is designed only to protect and enforce the rights of the bad guys. This is simply not true. The Constitution expressly mandates an ordered liberty—not some sort of criminal chaos. Our founding fathers clearly intended that while we enjoyed our hard-won freedoms, we would also exercise our constitutional duty to be civilized to one another.Unfortunately, our criminal justice system sends exactly the opposite message.

All too often, it gives criminals a pass on the responsibilities part—a get-out-of-jail-free card, if you will—while overemphasizing the rights part of the citizenship bargain.I first got exposed to this corrupt reality as a young prosecutor. I came to my job as an idealist, but that didn’t last long. In case after case, the message that I saw conveyed to the criminal was: Now that you’ve been caught, the system will kiss your butt. True, you may go to prison if you’re convicted, which, by the way, is not very likely in the majority of criminal prosecutions. But even if you’re among the unlucky few who do wind up in jail, you will almost never get the time you deserve, and you may well get out ahead of schedule.

Murphy is absolutely right -- too many criminals, like Cruz (see previous article), are given a get-out-of-jail-free card, but it's the prosecutors handing them out, not defense attorneys.

Excerpt from Murphy's book . . .

Plea Bargains -- A License to commit crime

The more I learn about our Justice System, the more opposed I become to the plea bargain tool that Prosecutor's use to get testimony from accomplices. The case of Julio Cruz makes my point. [information taken from the Eighth Circuit Court of Appeals decision in U.S. v. Santisteban]

Cruz, a cocaine dealer, was given an early prison release because he "cooperated" with the authorities in another case. What did Cruz do with his restored liberty?

With the assistance of two men he had met in prison, [Cruz] began smuggling prescription drugs into the United States from Central and South America. The conspiracy also involved the theft and unauthorized manufacture of prescription drugs.

When the scheme was detected, and the men put on trial, Cruz again received a plea deal from the feds. Under cross examination by the attorney of one of the other men charged in the scheme,

Cruz admitted to being a convicted felon and former cocaine dealer. He also stated that while conducting his affairs, it was common for him to lie under oath. Cruz further admitted that he had entered into prior cooperation agreements, which enabled him to leave prison early and mastermind this conspiracy. Cruz conceded that he had received a "pretty good deal" by pleading guilty and agreeing to testify n this case, that his sentence could be reduced as a result of his testimony for the prosecution and that he hoped the government might even release him on bond. Cruz admitted that he often "used people" when doing so would benefit him."

So, this is the kind of person that the government makes deals with in order to secure convictions of lesser criminals. I say lesser criminals because the trial which Cruz was testifying at wasn't for one of the two ring-leaders, who did the stealing, illegal manufacture, and smuggling. It was for the man at the bottom of the totem pole who printed the labels for the drugs. A man who would never have gotten into this scheme if he hadn't been approached by Cruz.

This doesn't excuse the printer, but it does highlight the government's illogical use of plea deals. Cruz will not see much prison time, if any, for this scheme, because of his plea deals. How long will it be before some government agency is again arresting him for criminal behavior?

How many get out of jail free cards is the government going to give to a man who obviously has taken up crime as a way of life.

Criminal Justice Reform -- Civil Suit in the Duke case

Information leaked to the media indicates the 3 Duke players have proposed a settlement with the city of Durham that includes a payment of about $10 million to each of the three players over 5 years AND reforms in the legal process.

The attorneys are seeking the creation of ombudsman positions to review complaints of misconduct about North Carolina district attorneys, and they want Durham city officials to lead the lobbying for any legal changes that would require action by the state's General Assembly, the person said.

Incorrect eyewitness identification was a major factor in the Duke case. The Innocence Project has identified the problems with eyewitness identification and the reforms needed:

The most common element in all wrongful convictions later overturned by DNA evidence has been eyewitness misidentification. Misleading lineup methods have been used for decades without serious scrutiny. Now is the time for change.

Despite solid proof of the inaccuracy of traditional methods – and the availability of simple measures to reform them – eyewitness IDs remain among the most common and compelling evidence brought against criminal defendants.

Misidentifications don’t only threaten the innocent, they also derail investigations. While police focus on finding evidence against an innocent person, the perpetrator can get away.

Read about the recommended reforms, and which jurisdictions have already made reforms . . .

Wednesday, September 5, 2007

Howard Stern's statement, through his attorney, Lin Wood

Mr. Stern and I are in the process of reviewing and evaluating Ms. Cosby's book. If the statements about Mr. Stern cited in recent media and Internet reports are in fact contained in her book, Mr. Stern will file and aggressively pursue a libel case against Ms. Cosby and her publishers, Hachette Book Group USA and Grand Central Publishing. All of the accusations in the published reports are false and defamatory. On Friday of last week, I reminded Ms. Cosby and her publisher of the obvious fact that Jackie Hatten is not a credible or reliable source for any accusation against Mr. Stern. Copies of that correspondence are attached hereto. Any publication or republication of false accusations based on Hatten as a source will be published with a reckless disregard for truth or falsity.

The more information I have received over the last several days about Ms. Cosby's book, the more convinced I am that she has, as a practical matter, authored a work of pure fiction. It appears that Ms. Cosby has joined the ranks of sleazy tabloid journalists who are willing to publish the print equivalent of sewerage to engage in character assassination for profit.

Ms. Cosby obviously conducted no investigation into the accusations she makes against Mr. Stern. Ms. Cosby obviously has no credible or reliable sources for the accusations she makes against Mr. Stern. With minimal investigative effort, Ms. Cosby would have known that the accusations were false and factually unsupportable. Ms. Cosby apparently admits that her information is in many instances based on second and third hand hearsay, rumor or gossip. She also apparently admits that she did not even meet or interview the sources for her most scurrilous false accusations against my client.

In the proper forum, at the proper time, Mr. Stern is prepared to submit overwhelming factual evidence clearly refuting these false accusations. The coverage of the tragic and untimely deaths of Anna Nicole Smith and her son, Daniel, has too often been focused on false, sensationalized and scandalous accusations. Again, if Ms. Cosby's book contains the statements being reported in the media and on the Internet, she has taken the coverage to a disgusting new low for which she will be held legally accountable.

It appears that Ms. Cosby made a decision out of personal greed to publish false rumors with a reckless disregard for truth or falsity. In my opinion, Ms. Cosby's involvement in writing and publishing this trashy book for personal profit should be a professional embarrassment to her former employers, MSNBC and Fox News. It will certainly be a matter for litigation against her and her publishers.

The public record establishes that the reported accusations by Ms. Cosby are false and factually unsupportable. Republication of Ms. Cosby's accusations by members of the media who knowingly give them additional print or broadcast coverage may also be actionable. I would urge responsible and principled members of the media to refrain from republishing these false and defamatory accusations against Mr. Stern.

Even so, Rita Cosby made the media rounds last night, appearing on Bill O'Reilly's show, "Extra," "Inside Edition," and "Access Hollywood," and others, but her appearance on today's NBC's "Today" show was cancelled.

Rita Cosby -- Has she stepped over the line?

On Larry King last night:

Larry Birkhead and Howard K. Stern have threatened to sue former MSNBC anchor Rita Cosby over allegations in her new book "Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death".

The most explosive of the allegations -- that Birkhead and Stern had an affair, were caught in a compromising position, and that it's all on video.

Regarding the alleged video, Cosby said:

RITA COSBY: I have not seen the videotape. But I will say that we have enough corroborating people who say that they have. We know people who clearly have been told there is a videotape that exists and have talked to people who have seen the videotape.

And if you pair that up, also, with suddenly these guys being best of friends; suddenly, also, Larry Birkhead telling Virgie Arthur, Anna Nicole Smith's mother, that they're going to come out with something -- she's asked, "Was there a tape?" and he wouldn't say.

And now suddenly this guy, who Larry Birkhead said was capable of a lot of things -- accusing him of money-laundering, accusing him of doing other things maybe connected to Daniel's death, maybe Anna Nicole Smith's death, and now they're friends.

I mean just look at the series of events and it begs the question why?

And I think the American public should be very concerned about the state this little girl is in. Here's this little beautiful little Dannielynn. And if you read my book and if you look at what these people are saying on record, they feel both of these guys are in cahoots, that they're into it for fame, for money and murder don't have this little girl's interests at heart.

I think America should be very concerned about journalists who will print such defamatory remarks without even bothering to verify that the alleged video actually exists and actually shows what is claimed.

Cosby should be ashamed of herself for including this information in her book without having seen the video herself. People do lie, people do exaggerate, people do misinterpret. For Cosby to make such a defamatory statement based on hearsay evidence is not acceptable, and she should be sued, as well as her publisher.

Read the transcript . . .

Innocence Project Summer/Fall 2007 Newsletter

Click here to read this very informative newsletter. As expected, the newsletter highlights exonerations since its last newsletter. Of particular interest is the article "Science on the Stand," which describes the ways in which faulty or fraudulent science (often referred to as "junk science") leads to wrongful convictions.

The good news from this article is that the commission established by the National Academy of Sciences will complete its investigations this fall and will make its recommendations for making forensic disciplines more scientifically sound. Some of the "sciences" that they are investigating are bite mark analysis and hair and fiber analysis.

Tuesday, September 4, 2007

Del Toro v. Quarterman -- The need for Defense Expert Witnesses

I concur with the Fifth Circuit Court of Appeals rejection of del Toro's habeas corpus petition alleging ineffective assistance of counsel, but the case does point to a serious problem in the judicial system -- the need for the Defense to hire expert witnesses to counter the evidence produced by the State's expert witnesses.

Del Toro was convicted in Texas state court, by guilty plea, of injury to a child and was sentenced to seventeen years' imprisonment. Del Toro gave two statements to police acknowledging that he held a blanket over her face for one to two minutes to stop her crying. When he removed the blanket he noticed that she was having trouble breathing, so he took her to the hospital.

He gave a different story to the hospital personnel, not mentioning the blanket.

Alexyah was found to have severe neurologic, cardiac and respiratory dysfunction with an unexplained cause. As a result of the respiratory failure, her brain was severely damaged from lack of oxygen.

Del Toro had another infant child who died under similar circumstances. When the DA offered the plea deal to del Toro, he made it clear that if he refused to accept it, the other infant would be exhumed for investigative purposes. The plea deal would reduce his sentence from 99 years to 21 years. A second defense attorney negotiated the plea down to 17 years.

The first attorney did not hire an expert witness to examine the medical records, which might have challenged the State's conclusions, because the family could not afford to pay for one. The second attorney said he would hire an expert, but again, the family would have had to pay for it.

In his appeal efforts, an expert was consulted - Dr. Lloyd White. White provided the following medical opinion, as quoted in the Fifth Circuit Court's opinion:

He concludes that Alexyah's medical records indicate that she had previous health problems that could result in the symptoms she suffered when del Toro took her to the hospital, and that her family history, including the death of her brother, who had demonstrated similar symptoms, and the infant deaths of three cousins, indicated a possible genetic disposition to natural cardio-respiratory arrest. White concluded that "there is a reasonable medical probability that the injuries suffered by [Alexyah] were not caused by an action by [del Toro] or any other person."

The Fifth Circuit Court rightly ruled that failure to consult a medical expert did not constitute ineffective assistance of counsel because both attorneys suggested it.

What the Court does not, and cannot, address is the inability of most defendant's, or their families, to consult experts. Experts come with hefty price tags, and in addition to legal fees, can be well beyond the financial means of most.

Some states provide funds for Defense expert witnesses, but if that was available to del Toro, no one told him so.

The odds are already in favor of the State, with its investigative and prosecutorial resources. The State has many experts to use, to present its interpretation of the evidence. Attorneys do not have the necessary training to properly interpret this scientific evidence -- no matter how good their cross examining skills, they need another expert opinion to effectively counter the State's experts.

Dwayne Dail is free after DNA test shows he spent 18 years in jail for a rape he didn't commit

On Monday, August 27, 2007, Dwayne Dail spent his last night in prison. He was released from custody on August 28, 2007, after a state court judge agreed to vacate his conviction and dismiss all charges against him. He was 39 when released and had served 18 years in prison.

Excerpts from the Innocence Project

On September 4, 1987, a man crawled through the window of a Goldsboro, North Carolina, apartment and raped a 12-year-old girl living there. The girl identified Dwayne Allen Dail as her attacker and he was charged with burglary, rape and other related charged. Hairs collected from the crime scene were submitted for forensic testing and an expert found that Dail’s hairs were microscopically consistent with the evidence from the crime.

Dail reportedly turned down an offer to plead guilty in exchange for three years of probation, and he went to trial in 1989. . . . He was sentenced to two terms of life in prison plus 15 years.

In 2001, the Innocence Project became involved, but was initially told that all evidence had been destroyed. A second request yielded the young girl's nightgown.

Officials at the Wayne County District Attorney’s Office agreed to send the evidence for DNA testing, and semen was discovered on the victim’s nightgown. The DNA profile from the semen did not match Dail, proving he was not the man who attacked the victim in 1987.

The News & Observer has a very good, thorough article on Dail, including a few videos. Here are just a few excerpts:

"I was an innocent kid and got snatched out of my life and thrown into another with dangerous people," Dail said, whispering over the table at a pizza parlor an hour after being released. "I was scared. I was accused of doing something so far out of character, something so disgusting."

He headed off to prison a slight young man whose girlfriend was expecting their first son. On Tuesday, he hugged his boy, Chris Michaels, for the first time outside a prison.

"He's missed my whole life," Michaels said. "I'm almost 18 now. I'm grown. I missed him all the time growing up. He's here now, and that's all that matters."

And what effect has the exoneration had on the victim and the people who got him convicted?

"If it's not him, well, I guess I've been living like I'm safe because the DNA says it's not him," she said. She came to court to watch a judge exonerate Dail but left without entering the courthouse after seeing a cluster of TV cameras outside. The News & Observer does not typically identify people who say they have been sexually abused.

It must be so very hard for victims to realize, after so many years, that the person they identified was not the person who committed the terrible crime against them. I can't even imagine how that must feel. This, I believe, is one of the horrors of wrongful convictions that the general public doesn't see -- the impact on the victim when the convicted person is exonerated.

Dail's freedom has cast a dark shadow over Goldsboro police and the Wayne County District Attorney's Office. The new DNA evidence forced them to realize a child rapist could be on the loose. They have reopened the case.

Friday, August 31, 2007

U.S. v. Dorsey -- Vindictive Sentencing

The Eleventh Circuit Court of Appeals handed down an interesting opinion -- interesting because it brings up a question of ethics regarding plea bargains and sentencing.

James Dorsey was convicted of drug conspiracy and drug distribution. After his arrest, Dorsey cooperated with the police. He called his distributor and gave them the name of an undercover cop. The distributor called the cop to make the sell. When the distributor arrived to deliver the drugs, he was arrested.

Dorsey said that he was promised that he would receive a § 5K1.1 sentence departure for his cooperation if he pled guilty. The sentence departure, however, requires the government to file a motion -- the Judge cannot give it without the motion.

The government has a "power, not a duty, to file a motion when a defendant has substantially assisted." Therefore, a district court cannot grant a downward departure for substantial assistance absent a motion by the government.

The problem came when Dorsey decided to have a jury trial and not plead guilty. The government did not file the motion. Dorsey appealed on the grounds that the government was punishing him for exercising his Constitutional right to a trial by jury.

The Supreme Court, in Wade, 504 U.S., held that federal district courts have the authority to examine a prosecutor's refusal to file the motion and grant a remedy if it finds that the refusal was based on an unconstitutional motive.

The Eleventh Circuit had not previously determined that not filing the motion because the defendant wanted a jury trial was an unconstitutional motive, but the Third and Ninth Circuit Courts had held that it was.

While the government may refuse to file a § 5K1.1 for many reasons, and it is within the government's discretion to do so, 'to punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.'

The Eleventh Circuit agreed and remanded the case back to the District Court and the burden is on Dorsey to establish a "substantial showing" that the government refused to file the motion as punishment for his decision to go to trial.

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Thursday, August 30, 2007

California's rules on entrapment

Like Mississippi, California comes down hard on entrapment. These excerpts are borrowed from the online article "Entrapment," which was originally prepared by the Alameda County District Attorneys Office.

Entrapment is a complete defense to a crime. This means a defendant is entitled to an acquittal if he committed the crime under circumstances constituting police entrapment. It does not matter that the evidence against the defendant was overwhelming, or that his guilt was undisputed. If he was entrapped, he goes free.

Although the penalty is severe, the courts believe it is justified by the need to discourage officers from engaging in overzealous tactics. In the words of Justice Frankfurter, “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.”

In addition, entrapment is viewed as “a type of lawless law enforcement,” “a substitute for skillful and scientific investigation,” and a tactic which is sometimes rationalized under the theory that “the end, when dealing with known criminals or the criminal classes, justifies the employment of illegal means.”

The article goes on to define what is and what is not entrapment. The overriding principle used to determine entrapment is:

Entrapment occurs if the conduct of the investigating officers or their agents in dealing with the defendant would “likely” have induced a “normally law-abiding person” to commit the crime with which the defendant was charged.

A "normally law-abiding person" is not characterized as someone who would never commit any crime under any circumstance -- but someone who, "although he is normally law-abiding" would "commit a crime -- even a felony -- if sufficiently motivated."

Accordingly, the main issue in entrapment cases is whether officers provided such motivation. As the California Supreme Court explained, “What we do care about [in determining whether entrapment occurred] is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes.”

What is not permissible:

1. Putting pressure on the target
2. Creating an unusual motive
3. Making the crime unusually attractive

What is permissible:

1. Creating an opportunity to commit a crime

This is because it is presumed that a normally law-abiding person would resist the temptation to commit a crime if officers did nothing more than give him an opportunity to do so.

2. Criminal plan originated by officers

I can't see any justification for this at all, and the article does not give any examples.

3. Gaining defendant's confidence

If the government is going to that much trouble to get someone to commit a crime, that, to me, in entrapment. The example given didn't really prove that the agent was attempting to gain the defendant's confidence, and the explanation given doesn't sit well with me.

The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called ‘victimless’ crimes, it would tend to limit convictions to only the most gullible offenders.”

I think there are enough "victim" crimes for the police to solve, that they shouldn't be spending their time trying to gain the confidence of victimless criminals.