Nifong disbarred!

From the Associated Press:

A disciplinary committee said Saturday disgraced prosecutor Mike Nifong will be disbarred for his disastrous prosecution of three Duke University lacrosse players falsely acussed of rape — a punishment the veteran prosecutor admitted was appropriate. "This matter has been a fiasco. There's no doubt about it," said committee chairman F. Lane Williamson.

Williamson gave Nifong a scathing rebuke for his conduct. Apparently, he and the other members of the committee did not believe Nifong when he said his wrongdoings were not intentional.

Nifong will not appeal. This isn't the end of Nifong's time in the dock, however, as attorneys for the wronged players "have pledged to seek criminal contempt charges next week in Durham from a judge who has already taken care to remind Nifong he has the authority to impose punishment."

What punishment should Nifong receive? He should receive the same prison sentence the Duke players would have received if they had been convicted.

Nifong found guilty

From the New York Times:

A disciplinary hearing panel found Michael B. Nifong, the Durham County district attorney, guilty today of ethical violations arising from his pretrial statements and handling of DNA evidence while pressing a false accusation of sexual assault against three former Duke University lacrosse players.

The three-member panel now enters a penalty phase in the five-day ethics trial, which could result in Mr. Nifong’s suspension or disbarment later today.

Read the Article . . .

Ogle v. Johnson, ineffective appellate counsel

Johnny Ray Ogle filed a pro se federal habeas appeal on grounds that his appellate counsel failed to raise 8 meritorious issues in his State direct appeals. The District Court for the Southern District of Georgia denied Ogle's petition for the writ of habeas corpus on grounds that Ogle had not exhausted his State remedies.

The habeas statute requires applicants to exhaust all available state law remedies before filing a federal habeas petition. 28 U.S.C. #2254(b)(1)(A). "[T]he federal clam must be fairly presented to the state courts" so that "the state courts have had the first opportunity to hear the claim sought to be vindicated in the federal habeas proceeding." Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512 (1971).

The 11th Circuit Court of Appeals reversed the decision on the grounds that Ogle had exhausted his State remedies, and remanded the case back to the District Court for a decision on the merits of Ogle's appeal. Read more...

Criminal Justice changes recommended by the Illinois Commission

Illinois Governor George Ryan's decision to commute the death sentences of all Illinois death row inmates in January 2003 is well known to most Americans. What is not as well known, however, is the list of recommended changes submitted to Governor Ryan by the Commission he established to thoroughly examine the way the Illinois criminal justice system handles capital cases.

The Illinois Commission looked at all stages of the criminal justice system -- investigation, pre-trial matters, trials, and sentencing -- and provided Governor Ryan with a list of 82 specific recommendations.

As stated by Robert M. Sanger: "The recommendations, for the most part, neither hamper the conviction of the truly guilty nor place an undue burden on law enforcement, the courts, or the defense function. Some are simple, common sense measures. Others ultimately save resources by giving a greater assurance that things will be done right the first time." (Sanger Report)

Not surprisingly, the very first recommendation by the Commission deals with police tunnel vision: "After the suspect has been identified, the police should continue to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect."

Of particular interest to the Scott Peterson case, Recommendation #2 requires the police to make a list of all evidence, including potentially exonerating evidence, and to provide that list in discovery. That would have been of tremendous help to the Peterson Defense team, who were forced to literally comb through 43,000 pages of discovery to find the exculpatory evidence, only to miss the most important piece of all, the 2-line Aponte tip.

Recommendation #16 requires continued training for all police officers working on homicides, including some areas of interest in the Peterson case: the dangers of tunnel vision or confirmatory bias, the risks of wrongful convictions in homicide cases, and police investigating and reporting of exculpatory evidence.

Recommendation #35 calls for Judges to be trained in these same areas, and Recommendation #45 calls for Defense Counsel and Prosecutors to be likewise trained.

The Commission made 7 recommendations on DNA and forensic testing, including Recommendation #20, which calls for the establishment of an independent crime lab operated by civilians, separate from any police agency or supervision. This is the only way to ensure that "results have been fairly and completely analyzed and honestly reported." The Commission stated that "Crime labs should function as an independent third force in the criminal justice system."

Recommendation #21 calls for sufficient funding for training of forensic scientists to support expansion of DNA testing and evaluation, and Recommendation #22 calls for standards for DNA testing.

Recommendations #23 and 24 call for establishing a federal DNA database, and allows for a Defendant to apply to the court for an order to obtain a search of the DNA database to identify others who may be guilty of the crime.

Recommendation #26 significantly levels the playing field for the defendant by requiring state funding for forensic testing on behalf of the defendant. This would have been especially helpful for Ronnie Kimble, to enable his Defense to challenge the State's arson experts that the fire could have burned in excess of 4 hours.

A couple of recommendations deal with training for judges, particularly in capital cases, but the most significant is Recommendation #34, which calls for Judges to be trained in managing the discovery process. Recommendation #47 calls for a Case Management conference to ensure judicial management of the discovery process.

A Horrible Price to Pay for Someone Else's Mistake

Who suffers when an innocent person is convicted? Of course, we focus on the individual and his or her family. In this article I want to focus on other people who suffer -- other victims. The information is borrowed from The Innocence Project.

In November 1985, Northern New Jersey witnessed the horrific rape and murder of two children. These details are graphic, but necessary to demonstrate the monstrosity of the crimes. "The [7-year old] girl had been brutally raped, beaten and strangled to death. The [8-year old] boy was sexually assaulted, and a piece of cloth had been hammered into his head with large nails while his face had been slashed with scissors (it was later determined that he died as a result of the nails being hammered into his brain)." Byron Halsey, the man convicted of the crimes, was living with the children's mother. He has recently been fully exonerated through DNA testing.

The man now identified as the rapist/murderer is Cliff Hall. What was Hall doing while Halsey sat in prison? Why, committing more rapes, of course.

"In June 1991, [Hall] grabbed an 18-year-old woman from behind on a street and, holding a knife to her throat, orally, vaginally and anally raped her for up to three hours. Three months later, he abducted a 19-year-old woman and took her to a building where he repeatedly and violently raped her vaginally and anally for two hours. Several months after that, he punched and attempted to rape a 26-year-old woman as she walked toward a train station in Plainfield."

These 3 women paid a horrible price for New Jersey's mistake.

Laci Peterson's life insurance may be put on hold

From the Fresno Bee:

A three-judge panel of the 5th District Court of Appeal in Fresno made no decision but seemed to agree with arguments that Laci Peterson's mother, Sharon Rocha, should not receive the insurance proceeds while the case is on appeal.
<<<<
Rocha declined to comment, but she and longtime companion Ron Grantski were clearly unhappy with the tone of the hearing. Afterward, Grantski yelled at Scott Peterson's attorney that Peterson is "not getting out," a reference to the possibility that if Peterson won the appeal on the verdict, the conviction could be overturned and he could then seek to collect on the insurance settlement.

A Juror admits wanting more from the Defense; a State's witness admits being confused

The U.S. 8th Circuit Court of Appeals has denied a petition for habeas relief in the case of Pederson v. Fabian, No. 06-2582. Two important issues are raised in the petition, issues that PWC believes are more commonplace than most people want to admit. For background, Stephen Dean was also present at the burglary which resulted in murder. Pederson said Dean did it, Dean said Pederson did it. Tony Moses was friend to both Pederson and Dean, and testified against Pederson in favor of Dean. Dean pleaded guilty to burglary in the first degree and aiding and abetting intentional 2nd degree murder, and agreed to testify against Pederson. Pederson was convicted of aiding and abetting first degree murder in the course of a burglary, and second degree murder. Pederson received a life sentence.


The Juror's admission


After Pederson's conviction, the Prosecutor sent the jurors a questionnaire "to learn their impressions of the trial." One of the jurors sent this typed response to the Defense Counsel:


I wanted more from him presenting a defense. I know a person is supposed to be innocent until proven guilty, but in reality it didn't work that way. The prosecutor presented overwhelming evidence that someone died. The defense needed to present more evidence that it wasn't [Pederson] that caused the death. [Pederson] obviously was not prepped. He was not led through his testimony like Stephen Dean and Tony Moses were. That worked toward credibility for [Pederson] but against him because [Pederson] wasn't very articulate. [Defense counsel] was the only one who could help [Pederson] be more articulate. I wanted [defense counsel] to ask his witness why they didn't say anything or speak to anyone right after the murder. [Defense counsel] went on the premise it should be obvious what the truth is. Unfortunately after the prosecution has offered so much in the way of presentation, it wasn't obvious.


"The purported juror response further stated that the juror disbelieved the testimony from Moses and Dean and believed Pederson's testimony." (page 6 of the opinion)


This is very disturbing, that the juror believed Pederson over Dean and Moses, but still convicted him of 2nd degree murder. What evidence could the Defense have presented?


Tony Moses' admission


After the trial, Moses sent the Defense Counsel a "seven-page summary of his own police statement and grand jury testimony that had been prepared by the prosecutors but not disclosed to Pederson" and a "letter that stated Moses was unable to sleep at night because he could not get the case out of his head."


They interviewed me so much and through the whole thing what came out of whose mouth wasn't clear to me to this day. I'm not saying I was lying, but through all of what came out of whose mouth I had to try to remember got twisted I think from my statement. I had to stick to certain things and remember it so I thought it was the truth. . . . Things would go on paper and I was asked to remember key things[.] It really was just too much it really confu[sed] me.


"The summary . . . provided to Moses set forth dialogue in the form of a script. . . . A sticky note was attached to the summary that stated. "Tony, read this and be VERY familiar with the info. Read it several times. Thank you!" (page 8 of the opinion)


Quoting from a previous appeal, the Court notes that the summary "transformed conversations related by a key state witness before the grand jury into a scripted version of those conversations, much like a playwright." (page 9 of the opinion)


We should not that Moses was guilty of assisting Dean and Pederson in the burglary of the victim's home after the initial robbery/murder, and was given immunity from prosecution for his testimony against Pederson. He waived the immunity, on request from the prosecution, in order to increase his credibility, but he was not prosecuted. He sent the summary and letter to the Defense Counsel when the statute of limitations for his prosecution was about to expire.


The physical evidence at the scene did not point to Pederson any more than to Dean, Moses was working from a prosecution-produced scripted version of his statements, Pederson was more believable than Dean and Moses, and yet Pederson serves a life sentence.

Nifong in the Dock

Nifong's ethics hearing in front of the North Carolina State Bar began today. Each side gave opening arguments, and a police investigator testified against Nifong.

"We didn't have any DNA. We didn't have him at the party," Himan said of lacrosse player Reade Seligmann. "It was a big concern to me to go for an indictment when we did not even know where he was _ if he was even there."

Read the article in the Winston-Salem Journal . . .

Do you think the N.C. State Bar should impose any sanctions on Nifong? If so, what should they be? I personally believe he should be disbarred, not only for the damage he did to the Lacrosse players and their families, but also for the damage he did to the integrity of the Criminal Justice System. And I think every other conviction he secured should be examined to see if he plaid the same dirty tricks to get them.

Bentley v. State of Delaware, No. 387, 2006

This is an interesting decision yesterday by the Delaware Supreme Court, which reversed and remanded for a new trial a conviction for 1st degree murder and weapons-related offenses.


Appellant Jordan Bentley and Buddy Pyle both admitted being at the scene of the murder, but each said the other fired the shots that killed Lucky Cox. No physical evidence at the scene determined which one fired the shots. The State tried only Bentley and contended that Bentley acted without any co-conspirator or accomplice. Tina Creed, a pivotal witness for the State, changed her story -- she first said Pyle fired the shots, then she said Bentley fired the shots. In her testimony, Creed answered the Prosecution's questions, but on cross examination pled the 5th on some issues.


The sustaining of Creed's Fifth Amendment privilege is not at issue in this appeal. What is at issue is the alleged denial of Bentley's Sixth Amendment right to confront a witness who testified against him. The record shows that Creed's bias and motive for changing her testimony ultimately determine which of her versions of the shooting the jury would believe. > > >


A Witness' invocation of the Fifth Amendment does not automatically entitle a defendant to a new trial. . . . Instead, the defendant must at least show a substantial danger of prejudice flowing from the absence of such testimony. If the invocation of the privilege merely precludes inquiry into collateral matters, there is no substantial danger of prejudice to the defendant. . . . however, if the invocation of the privilege "precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that witness's testimony should be stricken in whole or in part." If there is a substantial danger of prejudice, the witnesses' direct testimony must be stricken from the record.

The Court decided that Bentley did demonstrate a substantial danger of prejudice and reversed and remanded for a new trial.

Bentley v. State of Delaware, No. 387, 2006

FRY v. PLILER -- Should Fry be given another trial?

The unanimous decision of the Supreme Court, as noted in the previous article, dealt with a limited question: Did the Ninth Circuit correctly apply the Brecht standard rather than the Chapman standard?


However, Justice Stevens wrote a part concurring, part dissenting opinion in which he argued that the Court should have also determined whether the error was indeed harmless by the Brecht standard. In other words, did the Ninth Circuit come to the correct decision when it applied Brecht? In Stevens' opinion, it did not.


Background:


Fry's first and second trials ended in deadlocked juries. In the third trial, after 11 days of deliberation, the jurors were "hopelessly deadlocked." The Judge instructed the jury to continue, and the jury foreman asked for a definition of "reasonable doubt." The jury required another 23 days of deliberation before bringing in their guilty verdict.


Justice Stevens wasn't surprised that the jury had such a hard time convicting. The only eye witness described the killer as a male, 5'7-5'8, 140 lbs., with a full head of hair. Fry is 6'2, 300 lbs., and bald.


The Defense called 7 different witnesses that linked the killings to a man named Anthony Hurtz. The State impeached the witnesses for bias, either against Hurtz or for Fry.


The witness that was not admitted by the trial court judge also implicated Hurtz. She did not testify at the first 2 trials. She informed the Judge, out of the hearing of the Jury, that she overheard Hurtz say that he had committed a double murder strikingly similar to the one witnessed by the truck driver.


Justice Stevens concludes:


Here, the jury was deprived of significant evidence of third-party guilt, and still we measure the length of deliberations by weeks, not hours. In light of the jurors’ evident uncertainty, the prospect of rebutting the near-conclusive presumption that the Chambers error did substantial harm vanishes completely.


Justice Stevens does indeed produce sound reasoning. As he noted, the trial court's exclusion of this witness for "lack of foundation was clear constitutional error." The fact that the jury was deadlocked 11 days into deliberations, and had to deliberate an additonal 23 days to come to a guilty verdict is pretty solid evidence that, had the excluded witness been allowed to testify, either the jury would have remained deadlocked, resulting in a 3rd mistrial, or they would have acquitted.


Read Stevens' Opinion

FRY v. PLILER -- The different standards for harmless error

Today the Supreme Court handed down its decision in Fry v. Pliler, which dealt with the standards that are used by the state and federal appellate courts to determine if a trial court error was harmless. The error is harmless if, in the appellate court's opinion, it did not prevent a different trial outcome.


Two standards apply. The Chapman standard is used in State courts for direct reviews. The Brecht standard is used in federal courts for collateral reviews. Chapman and Brecht are both U. S. Supreme Court decisions.

Why did the Supreme Court setup a dual standard for determining whether a trial court error was harmless? The answer is in the Fry opinion -- it did so in order to give preference to the State Courts' decisions:

Application of Chapman [in federal court reviews] would undermin[e] the States’ interest in finality; would infring[e] upon [the States’] sovereignty over criminal matters; would undercut the historic limitation of habeas relief to those grievously wronged; and would impos[e] significant societal costs.

How do the Chapman and Brecht standards differ? We take our definitions direct from the Fry opinion.

In Chapman, supra, a case that reached this Court on direct review of a state-court criminal judgment, we held that a federal constitutional error can be considered harmless only if a court is “able to declare a belief that it was harmless beyond a reasonable doubt.

In Brecht . . . an error is harmless unless it "had substantial and injurious effect or influence in determining the jury’s verdict."

Isn't this just mumbo jumbo? Is there really any difference between the two standards? If the error was not harmless beyond a reasonable doubt, didn't it have substantial and injurious effect if it contributed to the conviction of an innocent person?

The Supreme Court further muddied the waters in its decision in O'Neal v. McAninch (1995):

Held: When a federal habeas court finds a constitutional trial error and is in grave doubt about whether the error had a "substantial and injurious effect or influence in determining the jury's verdict," the error is not harmless, and the petitioner must win.

Read the Fry opinion, and share your Comments with us.

Prosecutorial Misconduct in North Carolina

On Sunday, November 2, 2003, The News & Observer (Raleigh, Durham, Cary, Chapel Hill) began a series of in-depth articles on prosecutorial misconduct in North Carolina entitled "Justice Withheld." You can view the articles in the original series, as well as its continuing coverage of prosecutorial misconduct by clicking here.

In this issue of our Blog, we will highlight a single case which devastated a young man's life, "A rape case totters; a Marine's life falls apart" in the "Justice Withheld" series.

12 year-old Lesly Jean immigrated with his family from Haiti to New York. At 19 he joined the Marines, and was serving at Camp Lejeune when his nightmare began.

On a Monday night in July 1982, Jean was at a Dunkin Donuts store when an officer stopped him because he resembled a composite drawing provided by the victim of a rape five days earlier. Merely 3 months later, Jean was convicted of rape and sentenced to two consecutive life terms. Jean was 22 years old.

Jean had four other marines testify that he was in his barracks the night of the rape. So what convinced the jury that he was guilty? The testimony of two eye witnesses: the victim and a police officer who briefly stopped the rapist before he fled.

The prosecutorial misconduct in this case resulted from an improper hypnosis of the two witnesses for the State. The hypnosis was conducted by the Jacksonville chief of detectives, who had no training in psychiatry or psychology, used leading questions and focused on Jean's photograph, and did not make a record of their pre-hypnosis memory. Furthermore, the State did not provide the Defense with audiotapes or other records of the hypnosis sessions, even though the Defense specifically asked for them twice.

Paul Green, an attorney working with the N.C. Prisoner Legal Services, obtained the audiotapes and other records through a court order. The 4th U.S. Circuit Court of Appeals freed Jean in 1991, saying that "had prosecutors handed over the recordings and records of the hypnosis, Jean probably would not have been convicted.

At least one person feels remorse for his involvement in this wrongful conviction. Walter Vatcher, the assistant prosecutor who tried the case, says the police never gave him the materials, either. However, as prosecutor he knew about the hypnosis, and it was his responsiblity to be sure that it was conducted properly. That he failed to do.

As if that wasn't enough, Vatcher admits another act of prosecutorial misconduct -- intentionally prejudicing the jury. He "regrets his cross-examination of Jean, when he skewered Jean for watching a pornographic movie with a girlfriend."

"That was very prejudicial," Vatcher admits. "I think about it at night; I was responsible for this guy serving nine years."

Once released, Jean asked Governor Jim Martin for a pardon, but was denied. His disonhorable discharge from the Marines was upgraded to an honorable discharge. But it wasn't until 2001, when a DNA test fully exonerated him, that Governor Mike Easley granted his pardon. He was awarded $90,000 because North Carolina gives wrongfully convicted individuals $10,000 per year that they serve in prison.

How many other rapes did that rapist commit because the wrong person was charged, arrested, tried and convicted through prosecutorial misconduct?

What effect did it have on those two witnesses, the victim and the cop, to know that they were used to sentence an innocent man to two consecutive life terms?

Tell us what you think. Should prosecutorial misconduct go unpunished? Are these honest mistakes, or are they the product of arrogance and utter disregard for the truth -- the win at all cost mentality?