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.