Wednesday, July 11, 2007

Ineffective Assistance of Trial Counsel -- which appellate court should hear these claims?

In US v. Milam, No. 06-4076, the Eighth Circuit Court upheld Milam's conviction for aiding and abetting the possession with intent to distribute of methamphetamine. Milam appealed the conviction, claiming insufficient evidence.

For evidence, the government relied on the person who allegedly purchased the drugs from Milam for his own use and also for re-distribution, supported by postal mailings, voice messages, and phone records with numerous calls exchanged with Milam. The evidence was sufficient, on its face, for the appellate judges to uphold the conviction. Indeed, it is compelling evidence.

Milam also claimed ineffective assistance of counsel because of failure to call a key participant as witness on her behalf.

She contends that because so much of the government's case rested on the testimony of Joe Deno, the failure to call Lang to refute that testimony deprived her of a fair trial. We agree with the government that this ineffective assistance of counsel claim must be raised in a collateral proceeding under 28 U.S.C. 2255, "where a better factual record can be developed." . . . Because the district court did not have a chance to develop a record on the ineffectiveness issue, it would be premature to address the claim on this direct appeal.

This demonstrates the inability of the trial record to fully disclose whether trial counsel has been effective in protecting the defendant's Constitutional right to an aggressive defense.

Tuesday, July 10, 2007

Karen Servas: Serious Credibility problems

Anyone familiar with the Scott Peterson trial knows the importance Karen Servas played in defining a narrow window of time for any abduction to occur. 10:08 was the beginning of the window, as defined by the time that Scott checked his voice mail as he was leaving the house to go to the warehouse. 10:18, of course, is the closing of the window, as that is the time Servas said she found McKenzie.

We've already noted that accounts from other witnesses disputes the 10:18 time. But why should these other witnesses be preferred over Servas? Simple. Servas isn't credible.

This is just one example of how her story changed from telling to telling.

December 25, in her statement to Detective Jon Buehler, as reported in his testimony, the front gate was locked:

Servas told me she was the next door neighbor to Scott and Laci, and she had lived next door do them for a period of time. . . . She took the leash or the leashed dog back over to the Peterson house, tried to get it in the front courtyard area which has got a gate, on the east side of the property, found that to be locked.

In her testimony at the Preliminary hearing, she didn't even try to open the front gate:

Q. Which gate was locked? If you could just put an "L" for "locked" on there.
A. Now, whether or not it was locked, I don't know.
Q. But you tried it and --
A. But --
Q. -- you couldn't get in?
A. No. As I walked and got in front of this gate, I heard something in the backyard, so I did not actually go like this and try to open the gate. I figured to go in, to try the side. I normally would go in the side anyway. But it would have been this gate.

In her testimony at Trial, the gate was locked:

DISTASO: Okay. So you walk across your lawn here (pointing) and you tried the front gate, is that right?
SERVAS: Yes, I did.
DISTASO: And what happened?
SERVAS: Well, I felt a little panic because the gate was locked, but then I heard some raking in the backyard and so I figured I'd go try and see if the side gate was unlocked or open.

Monday, July 9, 2007

Byron Halsey Is Fully Exonerated in New Jersey after DNA Proves His Innocence in 1985 Child Rapes and Murders

Excerpts from the Innocence Project

Byron Halsey, who narrowly escaped the death penalty when he was convicted in 1988 of the brutal sexual assault and murders of two young children in New Jersey, was fully exonerated today [July 9, 2007] based on DNA evidence that proves his innocence. Halsey’s conviction was vacated on May 15, and at a hearing today the Union County District Attorney’s Office dismissed pending indictments against Halsey because he is innocent.

Halsey is the 205th person nationwide – and the fifth in New Jersey – exonerated based on DNA evidence, according to the Innocence Project, which represents Halsey.

"Byron Halsey has waited 22 years for this day. For 22 years, he has waited to walk into court and have prosecutors and the judge acknowledge what he always knew but what nobody would believe – that he is innocent," said Vanessa Potkin, Staff Attorney at the Innocence Project, which is affiliated with Cardozo School of Law at Yeshiva University. "Byron can now begin the long, slow, difficult process of rebuilding his life. We hope the community will continue to embrace and support him, and we hope the state compensates him promptly and appropriately for the unimaginable ordeal he has endured."

Halsey's conviction was overturned in May of this year and he was released from prison. However, he still had to wear an electronic monitoring bracelet, pending the State's decision whether to retry him. Today, the bracelet came off, and Halsey is finally a free man.

The Appellate Process -- It's all about Timing

For those of you who believe many cases are overturned during the appellate process, I invite you to subscribe to Find Law's Daily Opinion Summaries. I receive up to several notifications a day, and rarely does anyone include a reversal. Reversals simply are the exception, not the rule.

Often, appeals are denied because they are "untimely." The appellate process has various deadlines involved, and missing one of those deadlines can be fatal to that person's appellate process. The only remedy is to file a claim of ineffective assistance of appellate counsel, but many are excluded from this because they have filed their appeals pro se.

I received a summary just today regarding a Stay of execution that was awarded by the United States District Court for the Eastern District of Arkansas. Don William Davis was scheduled to be executed on July 5, 2006, by lethal injection. The stay was requested on the grounds the appellant needed time to litigate the constitutionality of Arkansas' lethal injection. The District Court granted the stay so the matter could be resolved.

The U.S. Eight Circuit Court of Appeals reversed the District Court's order on the grounds that the motion for the Stay was not timely filed. The Circuit Court found that the appellant had several years in which he knew that his execution was imminent and during which he could have filed his claim that the execution mode was unconstitutional without the need for staying a scheduled execution.


The Laci Peterson Case: Showcase for the Smug and Arrogant

Those who followed the Laci Peterson disappearance, and then Scott's arrest and trial, know very well how much Mark Geragos was ridiculed by his suggestion that a satanic cult was involved, with expert after expert saying such things do not exist. These are just a few excerpts from an article in which the author fires back with his own experience investigating satanic cult murders and other criminal activities. No, he's not a Scott-supporter looking for a way to pin this on someone else. In fact, he says that "his gut" tells him Scott is guilty. He just wants to set the record straight on the existence of occult activities. Read the article.

I want to begin by making two things clear: One, I do not necessarily believe Scott Peterson, alleged murderer of his wife Laci and son Connor, is innocent. But I stand with the law: He is innocent until proven guilty. Two, I do not like lawyers. I do not like defense lawyers. I do not like about 99.9% of all the lawyers I have ever come in contact with. I know two lawyers, (one is my own), who are good, decent people. But all in all, I have come to see the justice system - even if it is the best in the world - as a broken system tangled up with so many loopholes and ridiculous rules, motions and delays that finding the truth in a court of law today is almost an accident if it happens.
The last straw for me was hearing someone on the Larry King Show say, "There has never been one documented case of satanic murder in the history of the United States." For days I found myself saying out loud (and to any poor soul that was in hearing range) "IT'S A LIE! A COMPLETE LIE!" For you see, as an occult crime consultant and trainer, I have seen more "documented cases" than most people have in an entire career in law enforcement. And I am angry and shocked that this man, and many more like him getting their 15 minutes of fame out of this tragedy, are getting away with what they are saying and NO ONE has been called on to present any facts!
When Laci Peterson and her unborn child disappeared Christmas eve from Modesto, California, my heart sank. In my work, there are certain criteria we use to determine if a case warrants further scrutiny to ascertain if there could be an occult connection:

- The Date
- Profile of the victim (certain dates call for specific types of victims)
- Location (Is it a previously tracked hot-spot?)
- Immediate family profile
- Other players
- Crime Scene
- Other similar crimes in area or on that date
Criminal Satanic groups do everything in mockery and reversal of Christianity, as was the custom since the first Gnostic "black masses" in the 16th century. The sacrifice of a pregnant woman would be a mockery of "Mary and baby Jesus" at Christmastime.

This author doesn't note it, but we do -- the striking coincidence of baby Conner being found on Palm Sunday, which is the traditional celebration of Christ's triumphant entry into Jerusalem and the beginning of the Holy Week, which culminates in his atoning death and resurrection. If Laci's disappearance and murder were part of a Satanic ritual, what better way to mock the Christian belief in the Atonement and Resurrection of Jesus Christ than to produce the dead infant on Palm Sunday?

The article includes much information, and is well worth the read.

Read the article.

Sunday, July 8, 2007

Exonerations in the United States, 1989 Through 2003: Why are murder conviction exonerations so disproportionate?

Statistics provided by this study regarding non-DNA murder exonerations, and what that tells us about our Criminal Justice System.

In 2001, murder convictions accounted for about 13% of the prison population, but 85% of exonerations (166/196).

In 2001, death row accounted for about 1/4 of 1% of the prison population, but 22% of exonerations (74/196).

What accounts for this abnormally high % of exonerations from these two groups? Only two possible explanations exist:

1. Wrongful convictions are not more likely to occur for murder convictions, especially death-row cases, but are more likely to be discovered because of the higher attention paid to these cases in post-conviction review. If that is true, if we paid the same attention to other convictions, we could expect that "there would have been over 29,000 non-death row exonerations in the past fifteen years rather than the 265 that have in fact occurred."

2. Wrongful convictions are more likely to occur for murder convictions, especially death-row cases. This may result from several causes:
  • the extraordinary pressure to secure convictions for heinous crimes
  • the difficulty of investigating homicides because, obviously, the victim cannot provide information
  • extreme incentives for the real killers to finger or frame an innocent person

The study concludes that it is likely a combination of both that accounts for an abnormally high percentage of exonerations coming from murder convictions, and especially death-row cases.