Wrongly Convicted in the News
U.S. Prison Population
A Wife Dead, a Cop-Husband Charged
DNA tests may prove yet another quarter century
injustice in Illinois
Changing times: Some legal professionals
question the reliability of fingerprints
U.S. Prison Population Up Again
By Andrew Petonak, JD Staff
Activists working to help innocent
prisoners gain freedom may interpret a recent report from the Justice
Department as a call to work overtime.
The Bureau of Justice Statistics (BJS)
announced last week that the U.S. correctional population had reached a
record 6.59 million adults at the end of 2001. In all areas -- jail,
prison, parole, and probation -- numbers were up from the previous
year, representing an increase of over 147,000 men and women.
The figures indicate a 2.8 percent
growth for last year, making the nation's corrections population
greater than the individual populations of 37 states.
Overall, the corrections population
has grown by 2.2 million people in little over a decade, according to
Although last year's 1.1 percent
increase in the number of people in prison was the smallest in nearly
30 years, the slowdown comes after a decade of rising incarceration
rates. The U.S. prison population surpassed 1.3 million at the end of
2001, approaching a doubling of the 1990 mark of 743,382.
Texas led the nation in numbers, with
755,100 people under supervision. California had 704,900. Texas had the
highest probation numbers with 443,684.
Of course, the numbers are far from
being a realistic "justice statistic." Anyone who has dared to muddle
through law enforcement and corrections bureaucracies knows that the
numbers pumped out by many reports tend to offer more data than
insight, and the latest report is a solid example.
The bureau's announcement (dutifully
relayed by the nation's media) made no reference to the fairness of the
trials and sentences for the cited populations, or the competence of
the police, prosecution, and defense employed to ensure just processes.
Instead, the report is a quantitative head count that makes no
distinctions regarding guilt or innocence.
For more information, see the BSJ Web
site at www.ojp.usdoj.gov/bjs/
Sources: Bureau of Justice Statistics,
U.S. Census Bureau, Associated Press
Some legal professionals question the reliability of fingerprints
Once known as infallible evidence,
the new fingerprint debate centers around the "absoluteness of
Edited by Barbara Jean McAtlin, J:D
Fingerprints have been used as solid
forensic evidence to identify criminal defendants for nearly 100 years
now. However, in San Francisco last spring, Superior Court Judge Lenard
Louie held a six-month hearing into the validity of fingerprint
identification. After the hearing, Judge Louie walked away with a new
opinion regarding fingerprint identification. He isn't the only one.
More and more judges and legal scholars are questioning the reliability
and methodology of fingerprint science, and calling for more scientific
validation that fingerprints are good forensic evidence.
"I now realize that the subjective
analysis of the examiner plays a major part in the identification of
fingerprints," Louie said in an interview. "I still believe that
fingerprints are accurate, except that I have some questions about the
absoluteness of the accuracy."
Questions regarding the validity of
fingerprint Identification began in Philadelphia in 1998. Assistant
Federal Defender Robert Epstein studied two latent fingerprints
investigators said had came from the getaway car in a robbery for which
Epstein's client, Byron Mitchell, had been arrested.
"I just started asking questions that
people haven't been asking," Epstein said. "There hasn't been a study
to assess the reliability of fingerprint analysis... What is the
minimum standard that examiners should use?"
Epstein concluded there was no science
to back up the philosophy that latent (or "fragment") print
identification met the evidence standards set by the U.S. Supreme Court
in Daubert v. Merrell Dow Pharmaceuticals (1993).
The Daubert case directs federal
judges to act as "gatekeepers" and determine for themselves whether a
particular scientific technique has produced reliable evidence.
The trial judge in the Mitchell case
ruled against Epstein's client. Epstein has appealed the conviction to
the 3rd U.S. Circuit Court of Appeals.
In January, Senior U.S. District Judge
Louis Pollak (Philadelphia) ruled that fingerprint expert testimony did
not meet the federal standards for admissibility. He also questioned
the underlying science involved in fingerprint technology.
David Faigman, a professor at Hastings
College of the Law, said Pollak reversed himself two months later,
after the FBI and other law enforcement agencies argued that they could
lose a valuable investigative tool.
Faigman, who teaches constitutional
law, science and the law, and scientific method for lawyers, said,
"[Pollak] said at the end that there was too much pressure brought to
bear on him... Even federal judges, who have lifetime tenure, feel the
San Francisco Assistant District
Attorney Elliot Beckelman, who prosecuted a murder case involving
fingerprint evidence before Judge Louie, refutes the notion that Judge
Pollak was pressured to reverse himself.
Beckelman says that by questioning the
accuracy of fingerprint science, defense attorneys are trying to raise
doubts about the prosecution's evidence, and, "This fits into the
defense concept of conspiracy... The defense would like to say it's
really just subjective, that it's just voodoo."
Despite an increasing number of
questions about the validity of fingerprints, no court has yet barred
them as evidence. Last year a judge said those who challenge
fingerprinting are the ones practicing "junk science."
Adding to the debate over
fingerprinting is Simon Cole, whose book, "Suspect Identities: A
History of Fingerprinting and Criminal Identification," argues that,
among fingerprint examiners, there is no accepted standardizations with
which to determine with scientific certainty how they make a match.
Cole, an assistant professor of
criminology, law and society at UC-Irvine, said that it will take a
bold judge to throw out fingerprint testimony, and that he was "very
pessimistic" that would happen anytime soon. He also explains that law
enforcement agencies are reluctant to sponsor any research into the
reliability of fingerprint identification because it already accepts
"People have just taken it for gospel
or the truth for so many years," Cole said. "Fingerprint experts are
just expressing an opinion -- like a psychologist who says someone is
Other critics of current fingerprint
evidence, such as Hastings' Faigman, do not think it should be excluded
from courtrooms, but it should be scientifically refined.
"My main complaint is that we don't
have people who have good scientific training doing any kind of
evaluation of this technology," he said. "The problem I have is that
you don't know how good it is, because it's not subjected to scientific
method [so] it's not as good as it could be."
Faigman also said that the U.S.
Justice Department's research arm should produce studies to "come up
with base-rate information to know what the frequency is in finding
certain whorls or ridges in the population at large."
He said that such authentication could
put the science of fingerprinting on a similar level to DNA, which uses
statistical analysis to identify a suspect based on the probability
that no one else in, for example, 160 million people could have the
identical markers or characteristics.
"I think the reason the FBI is
fighting validation of fingerprints is not because they think
fingerprints will fail validation, but that they don't want to set a
precedent," Faigman said. "They don't want to set a precedent that bite
marks, ballistics, tool marks and handwriting will have to pass
empirical validation, too."
Source: The Recorder
A Wife Dead, a
The following snapshot is compiled
from stories written by John Curran, Andrew Jacobs, and Marc Santora.
Edited by Alana Merritt Mahaffey, JD
No one questioned the assistant
medical examiner's report. The examiner, Dr. Elliot Gross, formerly
employed by Atlantic County, New Jersey, reported that the cause of
death for a young wife found dead in her home had been "asphyxiation."
The dead wife with two children was 31-year-old Ellen Andros, whose
husband, James, was a respected police officer and son of a police
With no signs of forced entry into the
home, investigators worked from the assumption that James Andros, who
had come home late from a night of drinking, was the prime suspect and
had perhaps killed his wife in a drunken conflict. Little support came
from Ellen's family, who have maintained since the beginning their
belief that James Andros has violent tendencies and killed their
daughter. Little support came from mourners at the funeral, some of
whom whispered "murderer," referring to James.
But after spending time in custody,
posting thousands of dollars in bail, and having his children removed
from his custody and placed in the custody of the in-laws who still
believe he is guilty, James Andros has found that "freedom" isn't a
return to normalcy. His daughters, ages 5 and 7, ask pointed questions
to their father asking how their mother died and why people think he
did it. He is currently embroiled in a custody battle with his in-laws
over the two girls.
But the daughters' questions are
valid. How did their mother die and did their father
asphyxiate her? According to Mr. Andros, the story is straightforward
and simple. After drinks he returned home around 4:20 in the morning,
March 31, 2001. Inside he found his wife in the dark and spoke to her
but received no response. On closer inspection he found that his wife
was cold and that her face was purple. "I've never seen anyone look
like that," he recalls. "I knew something was very wrong."
His next steps were to perform CPR and
to call 911. Andros could not revive his dead wife and paramedics did
not attempt any resuscitation but pronounced the young woman dead at
the scene. The examiner, Dr. Gross, determined at the scene that Mrs.
Andros died of asphyxiation, which set the ball rolling that eventually
led to murder charges against Mr. Andros.
The prosecution began to paint the
portrait of a young couple with a stormy relationship. He was a heavy
drinker, they argued. And she was woman in perfect health. Meanwhile,
defense attorneys for Mr. Andros, John Bjorklund and Matthew Portella,
looked into Mrs. Andros' medical records, asked for an examination of
tissue samples which revealed that the woman passed from natural
causes--a rare disease known as Spontaneous Coronary Artery Dissection.
The disease had caused bleeding in a coronary artery that caused her
heart to stop.
Dr. Gross, who has a rocky history
that includes dismissal as assistant medical examiner of Atlantic
County and dismissal in 1987 from his New York City position as medical
examiner following allegations that his forensic reports contained
inaccuracies, did not argue with the defense when presented with
evidence of the coronary disease findings. In fact, Dr. Gross amended
the death certificate and charges against Mr. Andros were soon dropped.
While much of the blame has fallen to
Dr. Gross's oversight, Andros points out that prosecutors would not
entertain the possibility of his innocence. "Gross was incompetent,"
Andros asserts, "but the prosecutor's office was criminal" in their
haphazard investigation into the death of his wife. Asked how it feels
to be cleared of the murder charges, Andros' answer is simple. "I don't
feel cleared. I was never guilty."
DNA tests may prove yet
another quarter century injustice in Illinois
DNA tests may help clear the way
out of prison for pair convicted of the 1976 rape and murder of young
Edited by Barbara Jean McAtlin, J:D
Michael Evans and Paul Terry of
Chicago were both 17 years old when the body of 9-year-old rape and
murder victim Lisa Cabassa was found in a South Side alley in the early
morning hours of January 15, 1976. Now, more than 25 years after Evans
and Terry were convicted of Lisa's abduction, rape, and murder, DNA
tests have implied that they may have been wrongfully convicted.
Further genetic tests are in process
as lawyers seek to free the men who were convicted in a case that had
topped news media headlines. The case has been brought back to life
quietly after doubts were raised by a very unlikely source -- one of
the prosecutors who put Evans and Terry behind prison bars.
An investigation by the Chicago
Tribune found that key testimony in the trial of Evans and Terry
had been altered. The murdered girl's parents both said, in separate
interviews, that the girl's mother had changed her testimony to make it
agree with an account given by the state's star witness.
No physical evidence linked Evans and
Terry to Lisa's murder, and only one witness linked them to the crime,
but only to the abduction. During the trial, the witness was forced to
admit she had repeatedly lied to investigators.
Nevertheless, the two teenagers were
convicted in 1977 and sentenced to 200 to 400 years in prison.
What makes this case remarkable is how
it was given new life.
Thomas Breen, currently one of
Chicago's top defense lawyers, was the lead prosecutor in the Cabassa
case when he was a young assistant state's attorney in Cook County,
Illinois. In 1994, Breen confided in a friend, Lawrence Marshall of the
Center on Wrongful Convictions at Northwestern University, that he had
misgivings about the convictions in the Cabassa case.
In late 2001, Karen Daniel, an
attorney with the Center, and Jeffrey Urdangen, a defense lawyer,
petitioned for DNA tests. The tests discovered that semen that had been
found on Lisa's clothing did not come from Evans or Terry.
In the months since the DNA findings,
Cook County prosecutors have begun to reinvestigate the Cabassa case by
interviewing witnesses and comparing the DNA of three other men
investigators had linked to young Lisa's murder. None of the three men
produced a DNA match.
Additionally, DNA tests are now being
conducted on hair that was found on Lisa's clothing. Prosecutors are
leaving open the possibility of more tests on other evidence.
"We are running down every direction
that the evidence is leading us and re-examining everything as if it is
a fresh case," said spokesman for the Cook County state's attorney's
office, John Gorman.
Terry and Evans have both struggled
during their 25 years in prison, but the years have been most unkind to
Terry. While Evans says a renewed faith in God has helped him fend off
much of his bitterness, Terry has deteriorated from a vibrant teenager
to a man so crippled by mental illness that he is almost completely
In a recent interview with the Chicago
Tribune, Terry barely managed one-word answers to the interviewer's
Attorney Jeffrey Urdangen said of
Terry, "He was a very well-rounded and well-adjusted young man when he
was arrested, but now he's clearly a very, very diminished man. He's
withdrawn and confused and not really able to carry on a conversation."
The saga of Evans and Terry began on
January 14, 1976, when Lisa Cabassa left her home on South Saginaw
Avenue with her 11-year-old brother and a friend. The three children
were walking east on 86th Street when Lisa turned back toward home,
telling the two boys she had a headache.
She never made it home.
After a search of the neighborhood,
Lisa's family called police. A youth officer filed a report that said
that Lisa's mother, Carmen Cabassa, said the girl had left home with
her brother and his friend about 6:30 p.m.
The search for Lisa ended on January
15 just before 3 a.m., when her body was found in an alley about two
miles from her home. She had been sexually assaulted and strangled.
After the discovery of Lisa's body,
law enforcement launched a massive search for her killer. Joseph
DiLeonardi, who was the commander of all of Chicago's homicide units,
personally took charge of the investigation and canceled all time off
for detectives. A local organization offered a $5,000 reward for
information that could be used to help find the person who had murdered
For four days, the Chicago police had
no solid leads.
Then, Judith Januszewski called the
organization that was offering the reward and said she had information.
Januszewski, a 32-year-old mother of two, worked at an office on 87th
Street near Saginaw Avenue.
Januszewski told detectives she had
been walking on Saginaw "at approximately 6:37 p.m." when she heard
voices. According to police reports, Januszewski said she turned and
saw two youths struggling with a young girl.
"I saw each of them had her under the
arms and were trying to force her to do something she didn't want to
do, because she was trying to fight them and I heard her say
distinctly, `No.' I didn't hear any other words from anyone. Then I ran
home," her statement said.
During the interview, Detective
William Mosher asked Januszewski if she could identify the men if she
saw them again. Januszewski told him she didn't want to answer that
question. When Mosher asked her if she was afraid, Januszewski told him
More than a month after the interview
with Mosher, Januszewski began calling police to say she was being
harassed. She told them a man had delivered a bag containing two
bullets to her front door with a note that said: "Next time you talk to
police you get the real thing." She reported two more harassment
incidents, including one where police recovered an empty wine bottle
with a bullet taped to it. It was at this point that, according to the
police reports, Januszewski "said she wished to clear the air."
Forty-one days after Lisa's body had
been found, Januszewski told investigators that she had known all along
that Evans, whom she knew from the neighborhood, was one of the men she
had seen struggling with the girl.
She told police that Evans had come to
her office to ask her why she was talking to police. According to
police reports, she also said she received threatening phone calls and
she recognized the voice as Evans'.
The next day, Evans was arrested as he
walked to a neighborhood grocery store.
Months later, police picked up Evans'
friend, Keith Jones, who was then just 16. Seven hours later, Jones
gave a statement that implicated Evans and a man named James Davis, in
the Cabassa murder. (Previously, Januszewski had identified Keith Davis
as the man who had delivered the bullets.)
In his statement, Jones said he and
two friends were smoking marijuana at a friend's house when Evans and
Davis came in. He claimed Evans led them all to his garage and then
brought Lisa's body out to the alley. Jones also said Evans asked one
of the men, "Do you want a turn?"
Police showed Jones composite drawings
that had been based on a description given by Januszewski. He said one
of the drawings resembled his next-door neighbor, Paul Terry.
Within hours, police arrested Terry
who had been ironing his jeans in preparation for a job interview the
After his arrest, Terry was put in a
lineup. At that time, Januszewski identified him as the man who, along
with Evans, had been holding onto Lisa Cabassa. She said Davis had been
standing nearby as young Lisa was dragged away.
On Nov. 19, 1976, Terry and Davis were
charged with murder, and Jones' two friends were charged with
concealing Lisa's homicide.
A month later, Jones recanted, and
said investigators had coerced him. In a recent interview, Jones said
that he lied to the police.
"I was 16. I was scared," he said.
"They threw the pictures of that dead girl down on the table and told
me that I would be charged with the murder...They came up with a story,
and I signed it."
Although Chicago police denied
coercion, prosecutors dropped the charges against Davis and Jones'
friends. Jones was never charged.
By the time of Evans' and Terry's
April 1977 trial, accounts of what happened had changed.
Januszewski had originally told
investigators she had seen Lisa's abduction at 6:37 p.m. After checking
her timecard at work, she changed that to 8 p.m.
The day Lisa disappeared, her mother,
Carmen Cabassa, told police Lisa had left home at 6:30 p.m. However, on
the witness stand at the trial, she said Lisa had left home at about 8
p.m. This agrees with Januszewski's account.
In separate telephone interviews,
Lisa's parents each acknowledged that the time was changed.
"The time was made later because
that's what the eyewitness said," said Ricardo Cabassa, Lisa's father.
"When she said it was later, then it was later...But it really was
about 7 o'clock, maybe a little earlier."
"The timing was changed," said Carmen
Cabassa. "The time was wrong. That's all I will say."
The jury convicted Terry and Evans
seven days after their trial began.
"If Lisa Cabassa had been murdered
just a year later, after the reinstatement of the Illinois death
penalty in 1977, these two men probably would be dead today," said
Daniel, the Northwestern attorney.
Interviews by the Chicago Tribune
have raised even more questions about Januszewski's account.
Rich Dabney, a broker in the realty
office where Januszewski worked, said that Evans had come into the
office, but to meet with him. He mentored the youth.
"He was probably one of the meekest
kids in the neighborhood. Low-key," said Dabney. "Probably one of the
nicest kids in the neighborhood."
Januszewski told interviewers that she
did not point Evans out to the detectives, but she relented when they
kept pressing her to identify him. "They kept saying, `We know you know
it was Michael Evans,'" said Januszewski. "I finally said, 'Okay.'"
Nevertheless, Januszewski stands by
her account, saying she vividly remembers what she saw on that night.
"I saw what I saw and I will never
forget it until the day I die," she said. "I will never waver from it."
Philip Centracchio, the youth officer
who took the first report from Carmen Cabassa (the one in which she
said Lisa left home around 6:30 p.m.) insists the report is accurate.
"In my experience as a youth officer,
a mother knows the time she last sees her child," Centracchio, who is
now retired, said. "If my report says 6:30, that's what she told me."
Breen said he is now convinced that
the convictions he obtained along with two other prosecutors can no
longer be defended.
One of those prosecutors, Greg Ginex,
now an associate judge in Cook County Circuit Court, said: "If
something comes up and the DNA shows these guys didn't do it, then it's
a whole new ballgame."
"I'm accepting complete responsibility
for this case," Breen said recently. "I am not going to pass the buck
on this case."
Source: The Chicago Tribune
© Justice Denied
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