Justice: Denied -- The Magazine for the Wrongly Convicted




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Snapshots -- The Wrongly Convicted in the News

The Wrongly Convicted in the News


U.S. Prison Population Up Again
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 the BJS.

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

Changing times: Some legal professionals question the reliability of fingerprints

Once known as infallible evidence, the new fingerprint debate centers around the "absoluteness of accuracy."

Edited by Barbara Jean McAtlin, J:D Staff

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 pressure."

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 the technique.

"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 mentally ill."

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 Cop-Husband Charged

The following snapshot is compiled from stories written by John Curran, Andrew Jacobs, and Marc Santora.

Edited by Alana Merritt Mahaffey, JD Editor

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 captain.

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 girl

Edited by Barbara Jean McAtlin, J:D Staff

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 mute.

In a recent interview with the Chicago Tribune, Terry barely managed one-word answers to the interviewer's questions.

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 Lisa.

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 "yes."

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 next day.

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

Previous Snapshots have been archived by issue when possible. The rest are here: Previous SnapShots.

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