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Welcome to archived Issue 6 of Justice Denied.
Directly from the desk of Clara A. Thomas Boggs. A Chat about Challenges, Needs, Darlie, Surprises, Reflections on Justice and the Death Penalty.
AARON GEORGE: Guilty of trying to save his
son's life. Aaron George's son suddenly, unexpectedly stopped breathing. The
young father desperately tried to revive his seven week-old baby. The DA successfully
prosecuted him for murder with misleading testimony and suppressed evidence. An appellate
court threw out the conviction, but the DA, in a repeat trial with an emotional jury,
successfully prosecuted him again. This disturbing case in Texas has many people shaking
their heads and wondering "why?" How was a well-intentioned father twice
convicted of murdering his baby when he didn't do it?
Discover how and why Darlie Lynn Routier was wrongly convicted and hear what Darlie has to tell you about it in this two-part article. Ms. Routier was called "ruthless," "cold-blooded," and "the next Susan Smith" in newspapers and magazines throughout the country. As a result, she no longer grants interviews ... until now. Our reporter spent the afternoon with her and walked away with some surprising insights. This interview, the first in almost 2 years, is a must-read for anyone searching for the real Darlie...the woman beneath the "hype."
Frank Milano -- Victim Of "Hit and Run" Justice Frank Milano may be "guilty" of infidelity and poor judgment, but did he rape or kidnap "Mrs. C."? Did Frank bump her with his car, kidnap and rape her, or did she pretend to be hurt, take money for sex and then set him up? The emergency physician found no treatable injuries on Mrs. C. No fractures. No lacerations. Milano got 84 years in prison, but says this rape never happened.
Why does Texas want to kill Hank Skinner? The facts alone exonerate Hank: tests on the murder weapons prove that Hank never handled them. The killer's fingerprints were found on a black plastic trash bag at the scene, containing one of the murder weapons. They were not Hank's fingerprints.
Isaac Marta's Father Speaks Out. A Father Speaks Out Against the Corrupt Prosecutor who traded his son's freedom for one more conviction. Not too many years ago, Americans could proudly say that our system of justice was the best in the world. Frank Marta says, "I thought Mexico had a corrupt system! After what has happened to me and my family, I believe we know which system is the more corrupt one."
A father's attempts to keep his children end in a wrongful conviction of child sex abuse. Jerome Bergeron was down on his luck, but didn't want his children to suffer. First, relatives took the children for a year, but after CPS stepped into the picture and ordered foster care, the courts terminated Jerome's parental rights. There had not been even a whisper of any sex abuse in the year relatives had the children, or when the foster family had them. When the foster family decided they wanted to adopt, Jerome began fighting to reclaim his children, then he and his wife were suddenly accused of the worst crime against his children. Did someone have an agenda?
Champion of the Innocent -- Christopher Brown. Mr. Brown tells the story of how and why he authored a book supporting Darlie Routier's claim of innocence. Christopher Wayne Brown publishes a local magazine in Dallas, Texas, called "Around Our Town." The magazine did a story on Death Row written by John McLemore (Brian Pardo's right-hand man) in the July 1998 issue. Chris Brown didn't really follow the Routier Case when it happened, but he saw the newscast of the "Silly String" at the grave site. He was riding around in his car a week or so later when he heard on the radio that Darlie Routier had been arrested for the murder of her two sons.
Prosecutorial Lawlessness is its Real Name In his famous essay, Politics and the English Language (1946), George Orwell noted that language is often used to mask the truth. The time has come to challenge the use of the phrase prosecutorial misconduct to conceal the truth about what prosecutors are doing. Enormous numbers of innocent people are not "slipping through the cracks" and being accidentally prosecuted, convicted and imprisoned. Their oppression is a predictable consequence of systematic lawlessness by state and federal prosecutors across America.
New Orleans DA takes issue with Justice Denied Magazine. Last month's Heroes at the Bar article, honoring Attorneys Michael Banks and Gordon Cooney Jr. for their work in John Thompson's case, received attention from the New Orleans District Attorney's office. They asked us to publish their Rebuttal to our story. That, in turn, prompted us to further comment. Here's a look at the prosecutor's side of it.
Media Tried, Justice Denied Behind the Truth & Lies of the Darlie Lynn Routier Murder Case. Reviewed by Justice Denied Writer Anne Good.
Edward Humes' Mean Justice caused a furor in Kern County, California, home of some recently overturned cases (Jeffrey Modahl, for one), and other cases in which people have claimed to be innocent. Reviewer Hans Sherrer says Humes is telling us we're all vulnerable to a wrongful conviction. Could that be?
A Chat about Challenges, Needs, Darlie, Surprises, Reflections on Justice and the Death Penalty
This has been an interesting month at Justice Denied, full of obstacles, challenges, delays, demands, and surprises. As I write, I'm not sure if we'll publish on time. We may be a day late.
As the crunch to finish our brochure loomed closer, the staff member handling it had a family emergency, so Anne Good took over and quickly taught herself to make a brochure and stepped into the gap so she might have them ready for the conference in Texas. We are sure to have a report from Anne in the next issue. One Edit Team member was in Europe for a few weeks, effectively cutting down on the talent available, and another is taking a month's sabbatical for other work. Tom Gregory, an email friend I'd never met, made the trek to our Oregon "homestead" to upgrade my computer to a Pentium and put in the latest, greatest modem. Alas, I've never had a smooth computer fix, and this was no exception, leaving me unable to work for four days. Still, all's well that ends well, and thanks to Tom's donation of hardware and time, JD has a Pentium and faster modem.
What's abundantly clear (as has been true for a long time now) is that we need more editors and people with other talents working with Justice Denied. The need is especially acute on my end. JD receives many inquiries and stories from inmates daily. They are not handled on time because there are so many. I've begun the earnest search for someone who might want to move to Oregon to help with all the work going undone. If you know of anyone who'd like to live and work for Justice Denied in the unusual setting of our 360-acres forest, please direct them to me. A small stipend, in addition to lodging and food, will be paid to someone who can write, deal with mail, and has computer skills.
You'll see that this month's issue is crowded with news and views about the Darlie Routier case. We want to assure you that we don't concentrate on any one case to the exclusion of others. It just so happens that right now, Darlie is news, so we're riding the crest of that news while it's hot. We are unique among those who write about people in prison because we tell the story from the prisoner's perspective. For sure, we include the prosecution's side of the case when we have it, but our mandate is to tell the story of the person who claims to be innocent. That, in turn, gives us an edge: prisoners who feel abused by the media finally call a halt to interviews, but will talk to our writers. Our agenda is not to sell more newspapers by playing fast and loosely with the truth. When we're wrong, it's because we've made an honest mistake, and not because we're capitalizing on the story of the day. In short, prisoners trust us over the mainstream media.
Unexpected people are finding their way to Justice Denied through the internet and other sources. We've known for a while that schools and government people are looking at Justice Denied. The schools' involvement in justice issues is most gratifying. Tomorrow's citizens are learning that all is not well with our justice system and that change is the only alternative if we are to pull our society out of the mess of our legal system created out of our past apathy. You have read here several times that times have changed, and that there is a true movement to alter the course of injustice and the inhumane practices of our judicial system. The death penalty is increasingly under fire for being the poorest answer to violence there can be. At Justice Denied, we oppose the death penalty collectively and individually. It is not only because innocent people have been and will be killed, but because killing to teach that killing is wrong is a philosophical contradiction that no amount of rationalizing will cure. As the Marquis de Lafayette said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me."
Lafayette's statement is similar to our stand on wrongful convictions: We will ask for reform of the legal system because it is fallible and its failures are destroying lives and weakening our entire society.
The other unexpected event this month was that the New Orleans District Attorney's office contacted us, asking that we publish their rebuttal to our article about John Thompson and the two lawyers who got his conviction reversed. Their rebuttal is in this issue. I answered that rebuttal because it raised more questions for me. Still, JD is glad for the dialogue. If any prosecutors want to write to us anonymously, we will respect their anonymity and publish what they would like the public to know. We firmly believe that dialogue can lead to beneficial changes -- whether it will or not is up to the prosecutors. The wrongs must be stopped. Surely many prosecutors know when someone might be innocent. I ask them, "What makes you move forward when someone claims he's innocent?" We need honest answers to our questions, and this is one reason we are willing to grant anonymity to any prosecutor willing to talk to us.
I must admit I'm skeptical about talking with prosecutors, largely because of direct experience with them. When I spoke to the prosecutor in the Roever case (profiled in a past issue), he was charming, and we found much in common, however, he fed me information that was slightly off -- just enough to keep me off-guard -- but was effective in silencing me until I had more information, which I later gathered. There must be honesty in a dialogue, otherwise there is no point in it. For honesty, there must be a human vulnerability and ability to acknowledge when one is wrong. I think this can happen, and lift my eyes to that goal, as all of us at JD strive for the goal of freeing the innocent.
Until next month,
I am Your Servant for Justice,
Clara Alicia Thomas Boggs
AARON GEORGE: Guilty of trying to save his son's life.
Aaron George came into this world with some difficult and special challenges. He was mentally retarded from birth, and was diagnosed with hyperactivity and learning disabilities by the time he was eight years old. Four years later, he was diagnosed with bipolar manic depressive disorder and a schizoaffective disorder (a combination of several mental disorders). This condition left him prone to panic and anxiety attacks. Dr. Gary Miller, former head of the Texas Department of Mental Health and Mental Retardation, treated Aaron with a combination of Clozaril and Zoloft with successful results. Aaron improved radically, much to the delight of his family and Dr. Miller. Due to the side effect of these medications, he sometimes appeared to have a flat and emotionless personality. According to Dr. Miller, Aaron George is incapable of murder, and states, "He's low key, gentle, quiet and painfully timid. I wasn't at the trial and I don't know what happened there. I don't understand why I wasn't asked to testify. I treated Aaron for many years and he was one of our greatest success stories." He regretfully adds, "Now, I don't know if he can be reclaimed or not."
After a difficult childhood which presented many obstacles, Aaron George began to flourish in his teens, with Dr. Milller's help. At the too-tender age of sixteen, he fell in love and married Jennifer, who was seventeen. They were young, but were able to maintain an independent life with no more than the usual problems in teenage marriages. One year later, Jennifer gave birth to a beautiful and healthy baby, Daniel Lee George. The couple was thrilled. As Daniel developed, it became obvious that he was a happy, well-adjusted, and well-cared for baby. Aaron, now highly functional with the successful medication program, worked part-time with his father while social security paid for his psychiatric treatment. Jennifer worked full time as a waitress. This situation worked very well for them, and Aaron was Daniel's primary caregiver. Despite their challenges, they were a happy, normal family.
When Daniel George was two years old, a baby brother, Alexander, arrived. Jennifer had a complicated pregnancy and delivery. After six hours of labor and fetal distress, the doctor used forceps, but had no success. Finally, a vacuum extractor procedure was used for a full twenty minutes. Alexander was brought into this world by a doctor who traumatized him with force and dangerous manipulation. He could not breathe and was blue from lack of oxygen. He showed no response to outside stimuli. Aaron's concern over the procedure was repeatedly ignored. The doctor disregarded the baby's fetal distress far too long. Alex was rushed to an incubator and his life was saved. Aaron frantically followed, fearing his new son was dead. A doctor later testified in Aaron's second trial that the vacuum suction was dangerous and the fetal distress was ignored far too long. Aaron and Jennifer could have filed a malpractice suit if they had chosen to sue.
Within days, it became apparent that something was very wrong with baby Alex. He slept around the clock, had to be awakened for feeding, and did not open his eyes. Even more alarming was the shape of his head. There was a large bulge on the top. The doctor said this would eventually go away but after several weeks, it remained the same. Eventually they discovered that Alex suffered brain and rib damage during the suction delivery. When Alexander had his first well-baby checkup, his weight was up and he appeared healthy.When the young parents expressed concern, the doctor said the baby would soon show signs of mobility.
At seven weeks old, while in Aaron's care, Alex suddenly stopped breathing. When Aaron went to check on him, he knew there was something seriously wrong. Panicked, he began CPR, although he was untrained to do it, responding as any parent would in a life-threatening situation. He blew in his face, tried pumping his chest and shook him in an effort to arouse the baby or produce some response. There was none. Aaron immediately called his mother who lived just a few blocks away.
Aaron's mother, Beverly George, arrived within minutes and called 911. An ambulance took Alex to the Tomball Hospital and he was quickly transferred by helicopter to UTMB Hospital in Galveston where he was pronounced brain dead. Alexander George, just seven weeks old, was allowed to die on August 18, 1992. An autopsy revealed that a brain aneurysm was the cause of death.The George family was devastated.
Detectives from the Montgomery County Sheriff's Office interviewed Aaron and his family at UTMB Hospital shortly after they arrived. Trembling, Aaron told them that when he discovered his baby had stopped breathing, he shook him, pumped his chest and attempted to blow down his throat before calling his mother, Beverly George. The detectives left and Aaron did not see them again for two days. Incredibly, the day before his son's funeral, Aaron was arrested for injury to a child. How many people, we wonder, would have known what to do in this kind of situation?
Aaron only did what he thought would save his son's life.
The state swiftly stepped in and removed two year-old Daniel from the home and placed him in foster care. An already grief-stricken Jennifer, now suffered another loss. Child Protective Services examined the toddler for signs of abuse. None were found. The agency only found a healthy, normal, and happy child, all symptoms of being cared for and loved. Fortunately, after a two-month battle with CPS, Aaron's parents, Beverly and Al George, received legal custody of Daniel.
The case against Aaron dragged on for almost four years. His attorney, Dexter Patterson, was in no hurry to go to trial and the Montgomery County District Attorney's Office repeatedly set it aside, citing more pressing issues. In early 1996, the charge of murder was added. With no motive, evidence or signs of abuse against his son, Aaron George was finally brought to trial.
The case was originally to be heard by Judge John Martin but with no explanation was reassigned to Judge Fred Edwards. Even Aaron's attorney, Mr. Patterson, had no idea why. Judge Edwards agreed with suppression motions made in earlier hearings in Judge Martin's chamber: No prior injury and no mental illness could be entered as evidence.
Judge Fred Edwards and assistant DA Mike McDuggle, allegedly agreed that, "Somebody had to pay for the baby's death." After admitting he shook the baby, Aaron was the logical choice. The George family has evidence that documents may have been falsified and altered. The assistant DA also fabricated stories, and introduced mental illness (directly violating the Judge's ruling) to make Aaron's family look like liars. He violently shook a doll to portray a false scenario for the jury. He used highly prejudicial and inflammatory photos of baby Alexander on the autopsy table. This bit of drama had no probative value and only served to play to the jurors' emotions. Knowing the information was false, the DA told the jury that Aaron inflicted the injuries on Alexander. Indirect testimony about the delivery was suppressed and the delivery room doctor could not be located to refute the state's theory. Evidence that Aaron's half-brother died of SIDS when the child was only forty days old, was also suppressed. Aaron was found guilty. On March 29, 1996, Aaron George was sentenced to 100 years in prison for the murder of his much loved son -- the son he was trying to save.
Mr. Dexter Patterson immediately filed a motion to appeal. There was substantial controversy surrounding the trial.
Prison life was particularly difficult for one as emotionally fragile as Aaron. He was badly abused, taken off his necessary medication, and raped and tortured. Advising doctors issued a four-page report stating Aaron would be a target for inmate beatings and rape if he were placed with the general prison population. The Inmate Classification Committee ignored the advice and Aaron was sent to the Connally Unit in Kennedy Texas. This unit was notorious for gang activity, violent offenders, and had no psychiatrist on staff. It wasn't long before Aaron was violently gang raped and forced to give away his food. When he told his mother of his unbearable circumstances, she immediately informed the prison administration. The result was that Aaron was labeled a snitch and had two threats made on his life. Warden Poplin confirmed the threats in a telephone conference with the George family. They were overwhelmed with fear and concern for their son's life.
In December of 1996, the family finally got help from their state senator, Drew Nixon, to get the medication Aaron had been denied. Unfortunately, due to poor training, the staff gave him a potentially lethal dose and Aaron was rushed to the hospital in an effort to save his life. After that near-fatal disaster, all medications ceased once again. With the continued abuse from the other inmates and being denied the prescription drugs he desperately needed, Aaron gradually lost all ability to cope. Tragically, he suffered irreversible mental and physical damage.
In November of 1997, a slow-moving State Court of Appeals reversed Aaron's conviction and remanded him for a new trial. He was released on bond. Unfortunately, his troubles were far from over. In many ways, they were just beginning.
The DA immediately filed a motion to retry Aaron. The trial was set for April 12, 1999. Fearing return to an abusive prison, Aaron attempted to take his own life just days before the trial was to begin. The DA tried to revoke Aaron's bond, citing Aaron was now a clear danger to himself and others as the reason. Judge Edwards said he would not revoke the bond. Mr. John Osborne, Aaron's new attorney, asked for a continuance of a couple of weeks, but Judge Edwards was only willing to grant a few days. Aaron survived the suicide attempt but begged everyone to leave him alone because he so desperately wanted to die. He remained in the hospital for two weeks. His attending psychiatrist, Dr.Tullidge, really wanted to help Aaron but felt that might not be possible due to the severe emotional damage suffered over the previous years.
The second trial began on May 10, 1999. It was more or less a replica of the first. The jury was chosen on day one and the trial began the following day. This time, however, there were seven more assistant district attorneys in the courtroom with Mike McDuggle. The George's limited funds was no match for their taxpayer-funded budget. The state called the same medical witnesses and specialists. Once again, there was no evidence that Aaron shook the baby with the intention of murder. Judge Edwards again denied mental illness as evidence, citing that in Texas, diminished capacity cannot be used to show lack of intent. John Osborne explained that he was not asking to introduce mental illness to show lack of intent but to explain "who" Aaron is and "why" he reacted as he did. Had the Judge allowed this request, the jury could have had all the facts and would "know" Aaron before deciding his guilt or innocence. Edwards still denied the request. The same shocking photos of Alex's autopsy were shown to the jury and the same doll was violently shaken. To no one's surprise, Aaron George was found guilty again.
John Osborne presented a solid case despite the many obstacles presented. Mr. Osborne has stated that in his twenty-three years of law practice, he has never seen such bias as is in Montgomery County.
After the trial, John Osborne spoke with the jury members. They told Mr. Osborne they wrestled with the words "knowing" and "intentional." While realizing Aaron didn't "intentionally" kill Alex, they also believed he "knew" the end result would most likely be death when he shook Alex. The wording was tricky. They also told Mr. Osborne they "didn't like Aaron George" because, intentional or not, he killed a little baby.
On the final day of trial, Friday, May 14, 1999, the judge sealed Aaron's fate with the sentence of 99 years on both counts. Rebekah (Aaron's sister), Jennifer (Aaron's wife) and Beverly, along with other family members, broke down crying. In a shocking move, the judge had them physically removed from the courtroom by the bailiff. Outside, the police told them the judge had given orders for the George family "to get out of town." They left immediately.
On May 17, 1999, the "formal" sentencing of Aaron Lee George took place. John Osborne advised Beverly and her family to stay away from the courtroom. Judge Edwards remained in his chambers until John Osborne was asked, through a bailiff, if Beverly George was present. John Osborne told the bailiff that she had not accompanied him on that day. The bailiff responded, "She sure made a fool out of herself." John looked at him questioningly, not sure what the bailiff was referring to. The bailiff continued, "All that emotion." John responded, "Oh, being emotional is considered foolish in Montgomery County?"
John Osborne asked Judge Edwards to order that Aaron George receive the medication he needed in an effort to uphold his civil rights. Edwards said he would not allow a motion on that, but would "suggest" that Aaron be given medication. It seemed that Judge Edwards was more motivated by a concern that Aaron was "possibly violent" without medication than by his belief in the US Constitution. Osborne also tried to file a motion to have Aaron put in protective custody because of the notoriety of the case and the previous threats made on his life while in prison. Judge Edwards denied the motion and openly accused Mr. Osborne of "allowing Mr. George to attempt suicide." After saying that, the Judge himself signed a most certain "death warrant" for Aaron Lee George.
A baby's life has ended. A young, loving father who tried to save his son in the very best way he knew how is incarcerated for life. The doctor whose trauma on a new-born might have been responsible for the baby's death faced no trial. Aaron's fate is uncertain while he is in a Texas prison system that offers no mercy or accommodation for the mentally ill. Today, Aaron still does not receive proper medication and the abuse from fellow inmates continues. We must now ask ourselves, Is this what is meant by "liberty and justice for all?"
In Search Of The Truth
The Story of Darlie Lynn Routier
by Anne Good
Part 1: INTRODUCTION
The Mystery Unravels
On June 6, 1996, in the quiet suburbs of North Dallas, little Damon, 5,and Devon, 6, lay sleeping on the floor in front of the television. Their mother, Darlie Routier, 26, slept on the couch. What happened next remains a mystery. Suffering from partial amnesia, Ms. Routier recalls being "awakened" by her son and "feeling groggy." She saw a man in a baseball cap standing near the couch. Both of her sons died that night of multiple and brutal stab wounds to the upper torso inflicted by a knife from the Routier kitchen, and a second knife which has never been found. Ms. Routier's throat was slashed to within 2 mm. of her carotid artery and she also suffered multiple injuries and stab wounds. Although Routier claims an intruder had attached them, within twenty minutes the Rowlett Police Department decided she was their suspect and her wounds were self-inflicted. Twelve days later, she was arrested. Seven months later, she was convicted and sentenced to die.
With no substantial evidence, no confession, no motive, and no eyewitness, her conviction is as much of a mystery as the actual events surrounding the murders. One explanation may lie in the tremendous impact of the"Silly String" tape. This fifteen-second tape, shot by a local news station, shows a smiling Darlie spraying the "silly string" on the boys' freshly dug graves just eight days after the murders. The jury viewed it nine times during deliberations. Rita Way, a juror and spokesperson for the jury, referring to the tape, said, "I don't think the defense proved that she was innocent and no mother that had their children murdered can act that way after eight days. I mean eight days! I just can't see it." What Ms. Ways and the other jurors did not see was the surveillance tape, made by the Rowlett Police Department on the same day, which clearly shows a solemn graveside service and a mother in pain. The irony is that a Judge ruled this tape could not be admitted into evidence as there was no warrant and the taping was illegal. Had the jury been allowed to see the entire graveside service, would they have reached a different conclusion? For many in Texas and throughout the country, this question demands an answer.
Another explanation may be connected to the media-created image of Darlie Routier. It primarily consisted of endless titillating chatter about her "freshly-dyed blonde hair," "breast implants," and "sex toys" found in her bedroom. Drug use and child abuse were also implied, although a blood test and hair analysis revealed Ms. Routier was not a user of illegal drugs and no evidence has ever been presented to substantiate any claims of child abuse. In tabloid fashion, they characterized her as "the mother from hell," and "the next Susan Smith," despite the fact that those who knew her well said just the opposite. Family and friends portrayed her as a loving mother and wife, a woman concerned with the well-being of others. The state opted to present the media-produced image of Darlie to the jury.
Serious Doubts
There is also serious doubt about the integrity of the investigation and trial of Ms. Routier. Claims of incompetence, bias, witness tampering, tainted evidence, prosecutorial misconduct, and perjury have gained a rapid momentum as many Texans begin to reexamine the case that has held their attention for three long years. Ms. Routier, now awaiting a lethal injection, continues steadfast in her claim of innocence. Newly discovered evidence and recently released crime scene photos seem to support her. At the time of trial, the defense was only allowed 400 of the 1000 photos taken. When viewed in context, the additional 600 photos reveal the full depth of police incompetence and a severely compromised crime scene. Evidence is moved, blood is trampled on, blankets are folded and unfolded (disturbing the blood-spatter pattern), key DNA evidence is placed in paper bags from a local grocery store, and several bloody boot prints not belonging to any police officer are clearly revealed as well as two bloody finger prints, one on the alleged point of exit by the intruder. The "new" photos also contradict and impeach key testimony given by various investigators on behalf of the state. Additionally, a neighbor has now come forward saying that on the night of the murders she saw two men near the Routier home. This supports testimony by Angela Rickles who came forward after Ms. Routier's arrest and told police that two men tried to break into her home on the night of the murders. L.D. Middleton also states that on March 22, 1996 an intruder slashed a few of his window screens before finding an unlocked window over the kitchen sink. The intruder rifled through the kitchen drawers and police told Mr.Middleton, "He was probably getting a large knife in case you woke up." The Middletons live five minutes from the Routier home. They now state, "Obviously, we didn't wake up or we would both be either dead or worse, one of us might be on Death Row."
Aside from new evidence, the old evidence remains problematic. The prosecution presented a time frame that is simply not feasible and the murders could not have occurred as they theorized. There is also the blood-stained sock found 75 yards from the Routier home. The sock contains both of the boys' blood and Darlie's DNA, most likely from saliva. How it got there is something the prosecution could not answer. They didn't need to answer. They had pure emotion on their side and a nation still feeling the sting of betrayal from Susan Smith, the South Carolina woman who claimed on national television that her two young boys were abducted by a black man. Ten days later, she confessed to killing them.
United By Truth
There is an old saying in the world of law, "If the facts don't fit, cite the law. If the law doesn't fit, cite the facts. If neither fits....pound your fist on the podium and play to the juror's emotions." Lead prosecutor Greg Davis chose the latter. The law didn't fit, the facts didn't fit -- but the "silly string" did. In a profession that dictates truth and justice above all else, Mr. Davis implemented what some observers have called, "a surprisingly gutless, win-at-any-cost style of prosecution." Even those who think Ms. Routier is guilty are beginning to ask for more from our system of justice than macho "fist pounding." Many want Darlie to go to the death chamber with evidence so solid, so damning, so iron-clad, that even her family can no longer maintain her innocence. Without that, the death penalty is in serious jeopardy. It is precisely cases like Ms. Routier's that give justice advocates a pole on which to fly their flag and weakens the popular belief in state-sanctioned executions. The very survival of this law hinges upon a societal belief that all avenues of truth are fully explored, that the prosecution has proven its case beyond a reasonable doubt, and the defendant was presumed innocent at the onset and for the duration of the trial. Ms. Routier's investigation and trial, although labeled by some, "an anomaly," contained not one of these basic elements. Death penalty proponents and opponents alike may be united, if only for a moment, by this seemingly flagrant disregard for our system of justice. In another ironic twist, Texans are beginning to see it is only in obtaining justice for Ms. Routier that this unjust law can remain intact.
The demand for a new trial for Darlie Routier seems to be gaining support from many Texans regardless of their point of view. If the prosecution's case is fair and solid, she will be found guilty again. If there is any validity to the claims of incompetence, prosecutorial misconduct, witness and jury tampering, and perjury, that too will be revealed and Ms. Routier will be exonerated.
The debate on the death penalty put aside, reasonable people can agree that a young woman who claims to be innocent should not be executed in "the name of justice" over nothing more than character assassination and a meaningless can of "silly string."
With the firm belief that Darlie Routier was in part, convicted by media-hype, it seemed critical in my search for the truth to meet her face-to-face. In May, 1999, I had the opportunity to do just that.. The following is a condensed account of our afternoon together.
Part 2: THE WOMAN BENEATH THE HYPE
{Note from the Editor: Sometimes a newspaper or magazine sends a reporter out on an assignment without anticipating that she will become involved to the point of becoming an advocate in a way even the reporter could not foresee. This happened to Anne Good. Anne's story is the result of the unexpected. Like Chris Brown, whose book is reviewed in this issue by Anne, she has been persuaded by both the facts and her meeting with Ms. Routier. As Justice Denied, the magazine, we take no collective stand about anyone's innocence or guilt because we see things differently. As individuals, we must be free to take a stand, and often become advocates. -- Clara A. Thomas Boggs}
In his opening statement, Prosecutor Greg Davis told the jury, the state of Texas and the country that "the real Darlie Routier is a self-centered woman, a materialistic woman and a woman cold enough to murder her own children." His case was built on the premise that Ms. Routier, angry over losing her money, her freedom, and her figure, brutally and savagely stabbed her two young sons to death while they slept, then staged a crime scene and blamed an intruder.
Today, three years later, just mention the name of Darlie Routier anywhere in the state of Texas and people feel compelled to speak out. Not from some platform of knowledge built on facts and evidence, but from some deep inner vision of the way they think the world should be, based on the most significant relationship in all our lives -- our mothers
-- and the media-produced image of Darlie is simply in direct conflict with our societal fantasies of "mom."
Vehement cries of "Fry the bitch," "Cold-blooded, child-killer," and "It's Susan Smith all over again" lie in direct contrast to cool, logical comments like "Maybe she is innocent" to a slightly louder "She was railroaded by the media and the courts."
-- It was with some slight trepidation that I agreed to meet Darlie Routier.
With blonde highlights in her long, dark hair, the only evidence of the life she once lived, Darlie Routier appears younger than her twenty-nine years. The make-up and gold jewelry, now long gone, have been replaced by an inner glow and a simple handmade beaded cross necklace. A white prison uniform is her only choice of clothing. In another setting she would be considered naturally attractive. Here on death row, she feels "older than I am."
With the brutal murder of her two boys, 7 year-old Devon and 5 year-old Damon, and Darlie herself savagely attacked, she has survived more than most people experience in a lifetime. Add the fact that she has now been tried, convicted and sentenced to die for a crime she says, "I did not commit," and it totals an experience that is unfathomable to most of us. All before her 27th birthday.
Still, Darlie managed a warm smile when we met and spoke with a candor and sincerity that only people who understand the temporal, fragile nature of life can seem to muster. I was instantly taken aback.
I began my journey to Dallas County with the simple belief that Darlie deserved a new trial. Her guilt or innocence was not an issue for me and I suspected she was indeed "self-centered." I doubted I would like her but liking someone is not a condition for promoting justice. I only intended to support the notion that a new trial was absolutely necessary and that Silly String and "hype" are not evidence. I was going to ask Darlie a few questions, take some notes, and get the heck out of downtown Dallas before rush hour traffic began and my waiting pitcher of Margaritas began to melt.
-- But something happened along the way.
Maybe it was the way Darlie held her head up high. Maybe it was when she asked all about my little boy. Maybe it was her courage when she candidly spoke about the night of June 6, 1996. Maybe it was the way she tugged on her cross necklace when she occasionally groped for the right word. Maybe it was the pain in her eyes when she spoke of her "babies," Devon and Damon, and the fire in her eyes when she vowed to continue her daily struggle for survival. Most likely it was all of these things, and more.
-- I saw her soul and it was kind and gentle and forgiving. I knew the media and the prosecutors had lied to me.
During our afternoon together I discovered that Darlie is not just a case for the courts to decide. She is a human being; part of the sum total that connects us all. Darlie is valiantly fighting to survive for all of us: her husband, Darin, her baby, Drake, her family, friends, supporters and detractors. She does not fear a lethal injection. Her faith tells her a better world is waiting for her -- a world where Damon and Devon now live. What Darlie says she fears most is that Drake, now age 3, may have to grow up with "the lies and contempt and without a Mother." She also fears letting down her steadfast supporters. She fears that the state will win with tainted evidence and the tabloid image the media helped create.
-- She is wise enough to know if that happens, we all lose.
Now, Darlie gets up each day and lives with the cloudy, surreal images from that long ago June night floating in and out of her consciousness like a Fellini film gone awry. As Darlie describes it, "I can never forget that night. My entire world collapsed. I relive it all the time. I remember telling Damon, 'Hold on, baby, hold on!' The last thing he said to me was 'OK, Mommy.'" Her eyes were distant and moist with tears. She was in a place we all fear entering and where we pray we never have to go. This writer's eyes were moist, too.
-- Her strength is inspiring.
Midway through our conversation Darlie paused, looked directly into my eyes and said, "Anne, do you know what it is like to beg people to believe you? To tell them over and over and over that I didn't kill my babies ... and they just don't get it? They want me to be guilty -- they want this wrapped up and forgotten about. I spent my first several months in here thinking 'Any minute now they will realize that they have made a mistake.' I thought that for a very long time. And what really scares me, and should scare all of us, is the police have never found the real killer. He is still out there and he could be living in Dallas or Detroit or anywhere. Our children are not safe. I worry about that.... I worry about that a lot."
"I love children. All the kids in our neighborhood liked to be at my house. Mine was the only house in the neighborhood that allowed all the kids to play inside. That was how I wanted it. I always knew what Devon and Damon were doing and what they were being exposed to."
"Now I try to help some of the young girls who come in here. I remember what it was like for me in the beginning and I hope they can learn from my experience. This can be a very rough place."
-- Even in her own battle for her life, she is concerned with the well-being of others.
That fateful June night is never very far from her thoughts and she returns to it frequently, unwillingly drawn into that bleak emotional abyss where she said good bye to her little boys forever, in this lifetime.
When Darlie Routier speaks, it is with the quiet wisdom of one who has been beaten down but refuses to give up. Frequently, she looks at her hands. Unconsciously, she holds onto her cross necklace as though the very act may give her the strength to make it through the next few sentences. I swear I could sometimes see the images she lives with daily.
Darlie has grown from a woman who "lived in her own world" into an advocate for justice. Often it is not her own appeal that is first and foremost on her mind, but rather it is the situation of any one of a number of young girls she is trying to help.
-- The "flashy Texas housewife" is really down to earth and introspective. Why didn't I know this before?
Darlie speaks about her friends on The Row. Karla Faye Tucker immediately becomes her focal point and mine. "She was magnetic. She influenced a lot of people, even the guards. She spoke about love and faith without sounding preachy, just genuine concern. Everyone who spent time with her knew she was special. I wish I could be more like the person she became." Her eyes begin to moisten as she recalls the life of the dear friend who died at the hands of the state. I can see she has suffered much loss and the pain it causes her is easily visible to anyone who is willing to look. My eyes are moist once again. She continues in a soft, gentle voice, steadied by her hand clasping her necklace, "See, most people don't know that about her and the other women on The Row. People on the outside don't know they are human beings....not some animals.They laugh, they cry, they have hopes and dreams, and they have people they love. There are many who will always see Karla as the 'cold-blooded pick ax murderer who deserved what she got.' It makes me sad because she was so much more and most people will never know about it. She lifted me through some very tough times." Her voice cracking slightly and her eyes staring intently at her hands, Darlie recalls the night her friend Karla was executed. "I sobbed and sobbed all night long. Karla really, really cared about people and I knew it wasn't right what they did to her." To some extent, Darlie still grieves the loss -- or perhaps loss and grieving have become an everyday aspect of her life. She has certainly experienced more than her fair share.
-- Lost children, lost family, lost freedom, lost friends ... and still she manages a warm smile. I, on the other hand, have been known to frown due to adverse weather conditions.
Inevitably, the subject of the death penalty comes up. I don't know if I mentioned it first or Darlie did. It had been hanging in the air since my arrival. Darlie shut her eyes for a moment. She was not proud of what she was about to say but, because it was the truth, she continued. "It's a weird thing. I mean here I am on Death Row and I used to really believe in capital punishment. And I was very outspoken about it. I have come to see how all life is valuable but when I think about the man who did this to my little boys -- sometimes I think a lethal injection would be too good for him. It's a constant struggle for me. I mean, here I am on Death Row and he is out there somewhere, free to do this to another family. Many people think like I used to -- if someone is tried and convicted, they must be guilty. I was shocked to initially find out I wasn't the only innocent person in here. By getting my story out I hope I can help people see that I am not the only one in this situation. There are many innocent people in prisons all over the country. A lot of them are there because they maintain their innocence. If I would have confessed to a crime I didn't commit, I may not be on death row today. But you know what? I would rather have the state murder me than to ever say "I killed my boys." I will never do that! I loved them with all my heart and I won't betray that love. I would never have hurt them. They were my life. I always believed the justice system worked. I was naive. I am not naive now." As almost an afterthought she added, "Why would I call 911 while my baby was still alive if I wanted him dead?"
On that note, I felt it was time to address "The Silly String Graveside Party," as it has come to be known. Like the rest of the country, I watched the news in 1996 uneasily as a smiling Darlie sprayed the boy's freshly dug graves with this party favor. With slight apprehension I said, "I suppose if you had it all to do over again you would pass on the Silly String." I expected a resounding, "Yes!" Instead, there was a long a pause. "Anne, I know that the video tape is the reason I was convicted. But I can honestly say I would do it the same way again. If someone wants to take fifteen seconds out of my life and distort it, there is nothing I can do about that. It was a gesture of love for my boys and it was a way to help ease the minds of their little friends who were in pain. I wanted them to see Devon and Damon as being happy in heaven. It doesn't make sense to kids if you tell them how great heaven is and then sob with grief. It barely makes sense to adults. This was a celebration of Devon's life -- not his death. It made sense at the time. I just wish the jury could have seen the rest of the tape. Then maybe they would have understood." The "rest of the tape" indeed captures a tearful, heartbroken mother lost in grief and confusion, unable to maintain her composure. She had a point.
Darlie is reluctant to think about being exonerated. She has had her "hopes dashed too many times." Throughout this adversity she has received many promises of help, promises made in haste and never kept. If she is ever released she promises, "I will never shut up about my ordeal and what I have experienced first hand in here. I will spend the rest of my life trying to help the other innocent people left inside." I suspect this promise has been well thought out. There is a resonating ring of sincerity about it.
-- What happened to the "self-absorbed, materialistic, cold-blooded housewife" the prosecution and media told me I would meet?
Darlie spends twenty-three hours each day, seven days a week, locked up in a 6 x 9 cell. Reading has become her main source of escape and she devotes endless hours to answering some of the 200 or so letters she receives each week. Surprisingly, she receives little hate mail. "Maybe there was more in the beginning but now most of the mail I get is supportive and encouraging. Just ordinary people from all over the world offering a kind word and their friendship. It means a lot to me. I try to answer every single one of them personally." She laughs out loud as she tells me about one of her favorite "hate" letters." This woman wrote to me and started the letter out by saying, 'Dear Darlie, I am a devout Christian and I think you are a murdering slut." I joined in the laughter. The moment is light and I catch a momentary glimpse of her finely tuned, keen sense of humor. "You have to have a sense of humor in this place or you will go crazy," she explains.
The other most important thing that keeps Darlie grounded is her faith in God. She states with quiet confidence, "I know there is some divine plan at work here. I just don't know what it is. Some days I ask God, 'Why did this have to happen to me and my boys?' Other days, I just accept it. It is God's love that has helped me survive the pain of losing my boys...and the night that everything changed. Someday I hope I will understand it all. Right now I just have to hold onto my faith. It isn't always easy." She tugs at her cross and sighs. I suspect it is the subtle sigh of resignation coming from a person who has not had many people believe her in the past three years. "I know everyone in prison says stuff like that, but in a lot of cases, it happens to be true."
-- She leaves me with no reason to doubt her.
By the time our visit was brought to an abrupt end by a prison guard clanging her keys, I suspected I would never be able to view my life in quite the same way. I sat there alone for a few minutes, trying to absorb some of what had just transpired. Tears ran down my cheek when I realized that while Darlie Routier was able to change my life profoundly, there was very little I could do to change hers.
-- Isn't it ironic? I visited Darlie Routier, convicted "cold-blooded killer," and I left having received more than I could ever give.
Three days later I was back in Michigan and immersed in my own family life. I was lying on the couch watching a movie while my husband slept downstairs at the other end of the house. My ten year-old son, Joey, came in dragging his sleeping bag behind him and placed it on the floor beside me. We turned on the Disney channel and snuggled together for a few moments when it struck me -- Darlie had a moment exactly like this just three years ago! Within hours it was shattered and her life would never be the same. It was just as she told me. It could have been me or you, but it was Darlie -- her happy, normal family torn apart at the seams in an instant.
-- I watched my son as he drifted off to sleep, happy and content. And I held him just a little bit tighter. I thought of Darlie with gratitude.
Lest any reader misinterpret my words, I do not feel sorry for Darlie Routier. I am sad that her beautiful boys are gone and I deplore the system that has made a victim into a criminal but the Darlie I met, the woman beneath the "hype," is confident with the truth, solid in her faith, and she courageously accepts her uncertain fate with love, forgiveness, and dignity. In spite of her frightening and grim circumstances, she seems to embody the very qualities that many in the free world still strive to attain.
I have reflected on my meeting with Darlie countless times in the past few weeks. It was not my intention to become involved in any way other than as a journalist who is committed to justice. Now that is impossible. I feel a kindred spirit with her and every single one of my instincts (and the evidence!) tells me that the night of June 6, 1996 and the aftermath, happened exactly the way she explained it.
Was she being straightforward and completely honest with me? I say "absolutely." You can decide for yourself.
Afterword: As my editor told you, I am now an advocate for Darlie's innocence. You may question my objectivity, however, I can say that I went into the interview with no firm position on her guilt or innocence. I followed my instincts. I reported on what I observed. I viewed hundreds of crime scene photos. I sat through one of her hearings. I spoke with the prosecutors. I even gave them a chance to offer their insights (The only statement they would make was said with annoyance and anger. "We feel good about what we are doing.") I spoke with Darin Routier, Darlie's mother, Darlie Kee, and various friends and supporters. I read numerous articles. I walked away from all of it knowing that Darlie Routier is innocent, victimized first by an intruder and a second time by our judicial system. I believe my position is more valid than that of the mainstream media, the prosecution team, and perhaps even the jury (who were not allowed to see all of the evidence). They never once sat down and listened to her. They never once viewed the newly released crime scene photos. They never once examined Darlie from a perspective of possible innocence. It appears they never once thought of anything but newspaper sales and winning. The media used sensationalism. The prosecution used character assassination and hyperbole. Would I be considered more objective if I used those too? I simply sat down with Darlie and talked with her for several hours. I listened carefully and wrote down exactly what I heard and experienced. I was only searching for the truth; I had no vested interests in the results.
Further information on this shocking, fascinating, and tragic case can be found at www.fordarlieroutier.org. Several books are available, including Christopher Wayne Brown's new book, Media Tried, Justice Denied. This book may be ordered through the web site
Frank Milano -- Victim Of "Hit and Run" Justice
By Dr. Glenn Larkin, Forensic Pathologist, and Mary Baldwin, RN.
Editor for Justice Denied: Joanne Walker
On May 22, 1996, Frank Milano was falsely convicted and sentenced to eighty-four years in prison for a rape that never happened.
The convoluted tale that became Frank Milano's fate began at approximately 10 p.m. one day in 1994 when he was driving through a shopping center parking lot in his hometown of Charlotte, North Carolina. Suddenly he heard a loud thump.
The State of North Carolina claims that the thump came from Frank's deliberate bashing of his intended victim with his 4 X 4 Montero so that later that evening he could "have his way with" the woman whose body he struck.
Tragically, it was Frank Milano who was the intended victim that fateful night.
Frank did not know that the "victim," Mrs. C., a woman with a considerable police record, had been lying in wait for an unsuspecting driver. When Frank Milano slowed down for a right turn near the curb where she stood, he became the target of her malicious plot. The woman threw herself at the fender of his car and Frank believed that he was to blame.
Frank Milano first encountered Mrs. C. sitting on the ground near the left-front fender of his car, screaming that he had hit her. Almost immediately, she began to curse and move about, apparently not seriously injured. Seeking to avoid reporting the "accident" because of increased insurance rates and yet nearly panicked with concern, Milano offered to take the woman to the nearest hospital. His first indication that something was amiss should have been the way her purse and other belongings were neatly arranged in a safe spot back from the site of the accident, but Frank, caught up in the anxiety that follows any motor vehicle accident, did not think to question it at the time.
Possibly intoxicated or drug-positive, or both, Mrs. C. tried to get Frank to deliver her to work instead of to the hospital -- maybe because she was afraid to have her blood tested. During that confusion, Frank took a wrong turn, and then Mrs. C. asked him to take her directly home. Desperate to reach a simple solution for an unfortunate situation, Milano naively aimed toward what he thought was a friendly rapport with this seemingly sympathetic woman and did not balk at her unusual manner. On the way to her home they passed a field and she asked Frank to stop so she could urinate.
Mrs. C. next asked Frank to steady her and to help pull down her pants. Also needing to urinate, he turned away from her to relieve himself. At that moment, she toppled over, and Frank instinctively turned to see what happened, inadvertently exposing himself to her in the semi-darkness. Seeing an advantage, she immediately mentioned that she had lost a day's wages, and asked if he would help her recover the lost money. Milano gave her the forty-seven dollars in his pocket, and then she surprised him. She grabbed him and began to perform oral sex on him. Milano, uncomfortable with the situation, stepped away, saying, "This is all wrong -- I am a married man, and this is not right." He helped Mrs. C. back into his car and drove the rest of the way to her home.
At Mrs. C.'s home, more anxious than ever to promote an amicable atmosphere, Milano accepted her offer of beer, and chatted informally with her for about an hour. Then, after Milano suggested she do something to treat her "accident" symptoms -- since she wouldn't go to the hospital -- Mrs. C.took a hot bath. Afterwards, they sat on her couch. Soon, Mrs. C.'s eighteen year-old daughter and live-in boyfriend arrived and everyone talked socially for about 45 minutes more. When Frank Milano finally left, he told Mrs.C. that he was willing to pay her medical bills, and they exchanged business cards.
During their conversation that evening, Mrs. C. had volunteered that her boyfriend, who later became her husband, was serving time in a federal penitentiary on drug charges, which she claimed were false. Frank, too, had once been entangled with false charges and unwisely divulged this to Mrs. C. Frank's folly came back to haunt him because after he sent her three hundred dollars and offered to pay all her related medical bills, Mrs. C. pressed him for more. She apparently felt that, between the "accident," his sense of guilt over the near-sex encounter in the field, and her knowledge of his unfortunate criminal record, she could succeed in extorting more cash from him. Frank drew the line at her greater demands, however, and refused to agree to her ploy.
Mrs. C. decided to activate "Plan B" and reported the incident to police -- a twist in the sequence of events that ultimately led to Frank's conviction on seven counts of sexually related crime and one count of kidnapping. However, even when Mrs. C. arrived at the emergency department of the Carolina Medical Center, twenty-two hours after she was supposedly sexually assaulted, she still did not report a "rape."
Mrs. C. claimed she had been hit by Milano's four-wheel-drive sport utility vehicle at 35 to 40 miles per hour, yet the emergency physician found no treatable injuries of any kind on her body. No fractures. No lacerations. Nothing but a "possible shiner," and that may have been little more than mascara, for there was no associated injury to the eye.
In contrast to the records of the attending physician at the hospital that night, subsequent reports prepared by Charlotte-Mecklenburg police detectives claim that there was a "cut" or "gash" on Mrs. C.'s head. Yet the doctor had explicitly stated that there was no such injury. In fact, the detectives could not even agree on which side of her face they had seen these marks.
At 11:00 p.m. on Monday, October 17, four days after the "crime," Frank Milano was arrested at his home. He voluntarily allowed the police to search his house and provided them with the clothing he had been wearing the previous Thursday. He took them to the parking lot where he had met Mrs. C. and showed them the impossibility of her account of the "hit and run." At police request, he submitted fluid and fiber samples at the local hospital. Then, Frank Milano spent more than three hours in the middle of the night being interrogated by Sergeant Detective Bill Tucker, of the Union County Sheriff's Office, and Detective Mike Eastley.
Milano, led to believe that a tape recording was being made of his comments, spoke freely about the incident. No such tape recorder was ever used. Instead, Sergeant Tucker was editing Milano's responses and entering them into his notes. Milano's admission, "I admit I am guilty -- guilty of adultery and infidelity, and nothing else." became abbreviated in Tucker's notes as, "I admit that I am guilty." Frank's ill-advised open style became his Judas; the police treated his candid references to guilt as confession to rape, and he was held without bail. In fact, at a preliminary hearing a few weeks later, Mrs. C. was heard to say, "I did it for money, and I earned it!" Unfortunately, the wheels of injustice were already in motion against Frank Milano, and her statement could not be confirmed by a transcript.
Frank's family made significant financial sacrifices to help him hire what they believed were quality lawyers. Money does not buy compassion or competence, however, and Frank soon discovered that his attorneys believed the police version of his "confession." Accordingly, they only did minimal investigation on Frank's behalf and did not interview any witnesses at all. The testimony of the emergency room doctor and the glaring deviations in the statements made by the police about Mrs. C.'s phantom injuries were all but ignored. When it came to light that Mrs. C. had had a second medical exam two weeks after the incident, Milano's attorneys failed to properly acquire the records and the reports were suppressed, even though they contained exculpatory information (e.g., Mrs. C. complained of pain in her left side, but the only evidence of abnormality on her x-rays was a slight swelling in her right knee -- a hurt she never complained she had).
Despite copious amounts of bogus evidence, Milano's attorneys consistently failed to rebut it and did not provide him with a worthy defense. They only objected four times during the entire trial. In fact, the usually loquacious Mrs. C. answered "I don't know," or "I don't remember," to over one hundred questions about the incident, yet her testimony was allowed to stand. Milano's defense attorneys should have used those inconsistencies to underscore the lack of credibility in Mrs. C.'s testimony. Instead, they missed one opportunity after another.
In the end, Frank Milano was sentenced to eighty-four years in prison, without possibility of parole, for a crime that never occurred.
Frank Milano may be "guilty" of infidelity and poor judgment, but he certainly did not rape or kidnap anyone on the night of October 13,1994, yet he remains in prison with the bulk of an eighty-four year sentence in front of him.
Why Does Texas Want to Kill Hank Skinner?
"Beyond reasonable doubt...". Those words presumably define the single most important tenet of justice in a civilized society, and that becomes absolutely paramount when the accused person's life is at stake. That tenet has been entirely overlooked in the case of Henry Watkins (Hank) Skinner, who is now on death row in Texas awaiting his date with the State's executioner, despite compelling evidence of innocence.
There is no valid evidence that Hank Skinner is responsible for the brutal murders of his live-in partner, Twila Busby, and her two grown sons on New Year's Eve, 1993.
The facts alone exonerated Hank: tests on the murder weapons proved that Hank never handled them. The killer's fingerprints were found on a black plastic trash bag at the scene, containing one of the murder weapons. They were not Hank's fingerprints.
The State's pathologist, Dr. Elizabeth Peacock, testified that the injuries inflicted on the victims required great manual strength and dexterity in both hands: a hand therapy specialist testified at trial that Hank has an old machine injury to his right hand that reduces the strength in Hank's right hand by half.
Perhaps most significantly, Hank Skinner was unconscious or, at very best, severely incapacitated at the precise time the murders were being committed.
Witness Howard Mitchell found Hank lying unconscious and unable to revive, on a couch in the home less than two hours before the murders were committed. Hank, who has a potentially fatal allergy to codeine, had accidentally ingested a dangerous cocktail of alcohol and codeine. Using the information provided by Mitchell's testimony and data from Hank's blood samples taken a few hours after the murders, toxicologist Dr. William Lowery was able to accurately deduce the level of alcohol and codeine in Hank's bloodstream at the time of the murders. Dr. Lowery testified that the levels he determined would have placed Hank in a stupor state [a medical term meaning the partial, or nearly complete unconsciousness, manifested by the subject's responding only to vigorous stimulation]. Lowery explained that Hank was unconscious at the time of the attacks -- or, at best, semi-conscious -- and incapable of balance. The doctor stated that pharmacologically and neurologically it was "Highly improbable" that Hank could have inflicted the constituent injuries of the three murders. They "…would have required considerable thought, considerable amount of energy and considerable co-ordination.... [The] individual in a stuporous state would be exerting primarily most of the energy trying to stand, or walk, much less trying to co-ordinate any instruments of -- giving a lethal blow with that instrument."
The clear implication of this testimony is that Hank - even if he were not out cold - could barely stand, let alone brutally attack and kill one woman and two men in rapid succession.
One witness who was never called to testify at trial was Mr. Ronnie Campbell. He gave a statement that proved there was another man in the house at the time of the murders. Ronnie was in the county jail at the time and had phoned to speak to Hank. Twila Busby's eldest son, Scooter, answered and Ronnie heard a man's voice in the background. It was not Hank's.
After having described hearing the voices of Twila and an unidentified man in the background, Ronnie stated that he did not hear Hank's voice in the background. When speaking to Scooter (who seemed frightened), Ronnie asked to speak to Twila but was told that she was speaking to "some guy." Ronnie claimed that he heard Ms. Busby "screaming hysterically in the background."
That Ronnie Campbell was a first-hand witness to the attacks on Twila Busby and her sons seems probable. His statement at the time of the murders matched known evidence in the case and contained information he could not have known unless he had made the call. Ronnie's jailer independently supported his testimony, and was willing to testify that Campbell had, indeed, reported the conversation to her shortly after it had taken place. The prison keeps a log of all phone calls and, Harold Comer, Hank's state appointed defense attorney, was supposed to subpoena the record for that night, but all he did was ask the sheriff to bring it with him when he came to testify. By that time, the log had mysteriously "disappeared." Neither Ronnie Campbell nor his jailer were ever called to testify at trial.
In fact, examination of the trial records, police reports and post-conviction affidavits highlights a catalogue of irregularity and malpractice perpetrated at all levels of the police and judicial systems. There are many examples, but the following give a flavor of the potential embarrassment of this case to the state.
From the beginning the investigation against Hank Skinner was biased towards "proving" his guilt. When Sheriff Randy Stubblefield arrived at the crime scene -- and before he had even seen any evidence -- he told officers he "had a feeling that Hank Skinner was involved" [quoted from an affidavit submitted by J. Wallace, Peace Officer]. Significantly, the investigation team declined to follow up witness statements indicating that Twila Busby's uncle (Robert Donnell) had been stalking her at a party shortly before she was murdered. Donnell had raped Twila in the past, and had a history of conviction for violent crimes.
The state print and blood experts actively refused to test any evidence which may have eliminated Hank from suspicion. Incredibly, the investigation team refused to test fingerprints and blood found on suspected murder weapons, and the state's print expert, Gary Unnasch, was instructed to collect only those handprints matching Hank's profile. Despite the fact that Twila Busby's body was found with her pants unzipped and her top raised above her stomach, rape-kit samples also remained untested.
The appointment of Harold Comer as Hank's state appointed attorney also raises questions. Comer -- who had engaged in fund-raising activity for Judge Kent Sims (who presided over Hank's trial) -- was given an unusually high state payment to represent Hank. Comer had ended his term as a state prosecutor amidst a well-documented scandal involving the alleged embezzlement of state funds. On February 25th, 1992, he was found guilty of depositing $10,000 of drug money seized by the State into his private bank account. He succeeded in escaping a felony charge through a plea-bargain which entailed his repaying the $10,000 before his case came to court. He was given a one-year probationary sentence and was fined $1,000. Since Comer was not prosecuted on a felony charge, he was not barred from practicing law, so he owed his livelihood to the clemency of the State.
Comer had a conflict of interest because he had previously prosecuted Hank in 1988. Hank pleaded guilty in that case, convinced that the Judge would not believe his version, because it was his word against two police officers. In fact, that was a case of self defense. Comer was allowed to bring up the prior convictions in the punishment phase of the trial.
Hank participated in a number of civil cases against Comer in the past. Hank had done this paralegal work on behalf of inmates and those in custody awaiting trial who had found themselves on the receiving end of Comer's irregular prosecution tactics.
In what is perhaps the most serious and prejudicial breech of conduct in the whole case, the police and District Attorney John Mann's investigation team threatened and cajoled the star prosecution witness, Andrea Reed. First they threatened to implicate her in the murders and later threatened her with loss of custody of her children if she did not testify the way they wanted. Hank Skinner had sought refuge in Ms. Reed's house after stumbling semi-conscious from the murder scene -- that much is true, but the statements Ms. Reed gave to the police were not good enough for the prosecution, so they coerced her to get a false testimony from her.
Andrea Reed falsely testified at trial, claiming that Hank entered her house without permission when she had actually invited him in. She falsely claimed that Hank threatened to kill her and that Hank was walking around her house without assistance. Andrea Reed has since recanted all her false trial testimony in a sworn affidavit, and also details the threats used to coerce her into lying in court. At trial, District Attorney John Mann used Andrea's coerced lies, fully knowing that her trial testimony dramatically differed from her statements to the police. Mann did not mention those discrepancies in court. In short, he knowingly allowed the jury to be misled by false and inconsistent testimony.
The investigation and prosecution of Hank Skinner is an embarrassment to the authorities and Texas is now pressing to execute him with all haste, having categorically denied him the right to state habeas proceedings.
The Texas Court of Criminal Appeals recently upheld Judge Kent Sims' 1998 decision to deny Hank the right to appeal his conviction via State Habeas Corpus. Kent Sims' successor, Judge Steve Emmert, promptly set a June 1, 1999 execution date as soon as he legally could. Judge Emmert and John Mann tried to establish a date weeks earlier than was legal, but this attempt was thwarted.
The "basis" for denying Hank's habeas appeal was a highly inaccurate allegation that Steven Losch, the defense lawyer, applied for a routine deadline extension (for filing the habeas corpus petition) later than the filing deadline -- just one day late. In reality, Mr. Losch diligently applied three days previously with the Court of Criminal Appeals (CCA), but they sat on the application until the date of expiry before "attempting" to inform him that the application should have been sent to the convicting court (Judge Sims), not the CCA. Despite these apparent efforts to compromise the habeas corpus application, he could still have applied for an extension with the convicting court before the deadline expired, but Judge Sims' fax machine was switched off. A coincidence?
As it was, Losch was forced to resubmit his application the following day, providing a weak but effective excuse for Judge Sims -- and later for the CCA -- to summarily dismiss the habeas corpus petition as untimely filed.
There were two CCA judges who dissented from the decision to deny Hank the right to appeal his conviction, believing rather that "...Because this Court [the CCA] took three days to inform counsel [Mr.Losch] the motion should not have been filed here, the motion to extend time was untimely filed. Consequently, for the application to be considered timely, applicant was required to establish "good cause" for the late filing. Applicant's attorney presented numerous valid reasons why the application was filed more than 180 days after appointment, but well within the accepted statutory time period... Judge M. Kent Sims, the trial and habeas judge in the instant case, found no good cause and recommended the application be dismissed as untimely filed. This finding is devoid of any rational or legal basis. Whilst case law is scarce with instances of what exactly constitutes "good cause," strict standards do not appear to be the rule....The dismissal of this writ means a compelling legal argument of conflict of interest will not be subjected to any judicial review....". [text in brackets denote editorial notation]
Clearly, the two dissenting judges believed Judge Sims' and the CCA's ruling to be entirely unjustifiable. An attempt to rush Hank Skinner to the execution chamber without recourse to appeal had been made and supported by key figures at all levels of the Texas judiciary, from District Attorney John Mann right through to the judges sitting at the Court of Criminal Appeals. It was a blatant abuse of human rights.
However, the Federal Courts acknowledged that Hank was not being granted due process. On March 2, 1999, Federal District Judge Mary Lou Robinson in Amarillo agreed to consider Hank's habeas corpus petition, stating "The Court is of the opinion that additional time is needed to consider Petitioner's allegations and the response there to filed by the Respondent. Accordingly the execution date of June 1, 1999 should be stayed."
The execution has been stayed, but that is simply the first small hurdle. The stay will be worth nothing if Hank is unable to collect the essential funds to engage and maintain the services of forensic experts and an investigative team competent in Federal Appeals.
If Hank Skinner cannot retain an effective defense team to prove his innocence, the life-saving chance now offered by the Federal Court will be thwarted. Texas has already made its position clear: the state authorities do not want to hear Hank's habeas appeal and intend to execute him at the earliest opportunity.
Don't let this happen. Funds are needed to save the life of this demonstrably innocent man. Please give generously. Any amount, no matter how small, will help avert a genuine miscarriage of justice.
Make checks payable to The Hank Skinner Defense Fund
Contact addresses for extensive proof of Hank's innocence:
USA
Reverend Albert & Mary Maggard, Directors
The Hank Skinner Defense Fund
PO Box 1451
PAMPA,TEXAS 79066-1451
USATel: (US) 806-665-8192
Fax: (US) 806-669-2375
e-mail: alandmary@netjava.com
Europe
Graeme Capes
Capital Defense Intitative
9 Rosemont Close
Letchworth, Herts SG6 4XR, England
Tel: (UK)1462-482578
e-mail: graeme@cdinet.demon.co.uk
web-site dedicated to the case of Hank Skinner -- http://www.cdinet.demon.co.uk
Not too many years ago, Americans could proudly say that our system of justice was the best in the world. Frank Marta says, "I thought Mexico had a corrupt system! After what has happened to me and my family, I believe we know which system is the more corrupt one."
A Father Speaks Out Against the Corrupt Prosecutor who traded his son's freedom for one more conviction.
By Frank Marta -- Father of the Innocent
Elm Springs, AR
Adam Blackford killed Alan Walker in the course of robbing him. Blackford admitted to many people that he alone killed Walker, but after making a deal with the prosecutor for a lighter sentence, Blackford implicated my innocent son. This is the story of how that happened.
In November 1996, the Fayetteville, Arkansas, PD arrested Adam Blackford and Isaac Marta. Before his arrest and bail hearing, the Fayetteville PD asked Isaac if he had ever met a man named Alan Walker. He affirmed that, and gave a statement to the police saying he had met Blackford outside a local bar. Isaac thought he was talking to a woman, but later events proved that Walker was a man impersonating a woman. Isaac asked the person he thought was a woman, "Where's the party?" The "woman" said, "At my place, and if you will follow me, I will take you there."
The statement Issac gave the police was that he and Blackford followed the "woman" as instructed. Entering the duplex, they found a white man and a "woman" already there. Walker invited Isaac to the bedroom, leaving Adam Blackford with the people already there. Walker told Isaac to get comfortable and went into the bathroom. When Walker emerged from the bathroom it was apparent he was not a woman. Surprised that he had been tricked, Isaac emphatically told Mr. Walker that he was not into that sort of activity.
Isaac left the bedroom. Finding Blackford still talking to the other "woman," he said, "We are leaving." They left the white man and woman in the apartment with Walker. As Blackford was driving them back home, Isaac told him what had happened. They went back to Isaac's home, where Blackford was temporarily staying. After going to bed at approximately 4 a.m., Isaac heard Adam Blackford leave in his truck a few minutes later. Isaac slept until about 11 a.m. and was awakened when his wife put his little girl in bed with him and said she was going to work.
In a few days, Isaac was arrested and taken to jail. Several weeks went by before a bond hearing was set. A Public Defender was assigned to defend him and the bond was set at a quarter of a million dollars. Hiring a private attorney was out of the question. A minimum fee any lawyer would consider was $25,000 up front. The only alternative was the Public Defender.
As Isaac's father, I hired a private investigator and asked him to gather information and to work with the Public Defender. During his investigation he talked with several inmates at the Washington County jail. Each inmate stated that Adam Blackford had admitted to him that Blackford alone went back o Walker's residence to rob him. Blackford killed Walker while committing the robbery. Blackford clearly admitted this while in jail and the inmates relayed it to my investigator. One inmate reportedly told Blackford that he should come forth and tell the truth, but said Blackford told him that coming forward with the truth would spoil his chances of getting off with a lighter sentence and refused to do it. My investigator gave this information to the Public Defender and also went to the prosecutor with it. The Deputy Prosecutor, Bruce Rhoades, had made a deal with Blackford that if he would testify against Isaac, Rhoades would ask the judge to reduce his sentence to 10 years in case he got convicted. Another bond hearing was held and nothing was ever done to lower the bond.
At trial, Adam Blackford was found guilty of reduced charges. At the request of Deputy Prosecutor Bruce Rhoades, Blackford was not formally sentenced until Isaac's trial. Blackford did not testify at his own trial, nor did he implicate Isaac. Walker's blood was found on one of Blackford's boots,and the evidence was clearly against him. The jury recommended 30 years in prison for Blackford. Blackford was sent back to a different jail block.There, he told other prisoners that he alone killed Walker and that Isaac had nothing to do with it. This information was also given to the responsible authorities, but none of this resulted in any bond hearing or bail reduction for Isaac.
After Blackford's trial, a prosecution witness was heard to say, "One Mexican down and one more to go!" More months went by and Blackford was formally sentenced because Bruce Rhoades had asked the judge to wait until after Adam Blackford testified against Isaac before sentencing. In other words, if Adam Blackford did not come through with his promise to testify against Isaac, the judge would throw the book at him. It did not matter to Rhoades that Blackford might lie or would lie to get his sentence reduced. It did not matter that Blackford had been found guilty of murdering a man by bludgeoning him to death. His word was to be taken against another man who had no evidence against him. Yet Rhoades was willing to sacrifice the life of an innocent man as long as he could get a conviction.
Isaac was kept in jail for nine months while the police desperately tried to find some evidence to tie him in as one of the killers. The Fayetteville P.D. searched my property and harassed my wife seven times. None of the well-publicized "evidence" they said they had was used at Isaac's trial. The prosecutor never produced one iota of evidence as proof that Isaac committed a crime.
We tried to tell a different public official -- the Washington County Sheriff -- about the statements Blackford had made. Blackford would be in the exercise yard and come up to Isaac's cell where there were small holes burned in the Plexiglas window strips. Blackford would start a conversation and Isaac would ask him to tell the truth and free him. Blackford would always say he had cut a deal with the prosecutor, Bruce Rhoades, and that he had to get his sentence reduced. Other inmates also heard Blackford saying that he knew Isaac did not do anything, but that he had to make his "deal." We asked the sheriff to allow one of his deputies to be present in Isaac's cell when these conversations took place. We also asked him to let someone be there with a tape recorder to settle the matter of Isaac's guilt or innocence, but our request was refused.
A few days before his trial, Isaac wrote to the public defender asking him to file a motion to the judge to obtain evidence about Blackford's admissions. The public defender waited until the trial had begun before producing the motion. The judge ridiculed the motion and denied it. It was too late to do anything about it then, anyway.
Does it matter to these people that a person under the American Constitution is presumed innocent until proven guilty? Is getting a conviction more important to all these officials than seeing an innocent person go free? Not in Washington County, Arkansas! The sheriff apparently did not want to ruffle the tail feathers of the prosecutor, Bruce Rhoades. Rhoades seemed more concerned about getting another conviction than in uncovering the truth. Does truth only pass his lips when it is more convenient for him? During the nine months before Isaac went to trial, Rhoades harassed my investigator and made two attempts to keep him from finding out the truth. Rhoades called him in and tried to intimidate him. My investigator asked Rhoades why he was attempting to question him, but Rhoades refused to answer him. I am told that it is against the law for a prosecutor to do that. My investigator finally had to get an attorney before Rhoades would stop harassing him.
The Fayetteville PD also harassed Isaac's friends and searched their property without warrants. Isaac's friends received threatening phone calls from unidentified persons. We notified the police of the calls but, strangely enough, no one was caught. Was the Fox in charge of the Hen House?
THE TRIAL
When the trial began, Isaac was in handcuffs and shackles. The public defender asked that these be removed during trial, but Judge Storey refused. The first thing the jury saw was a man being treated as if he had already been found guilty by making it appear that a criminal was on trial instead of a man presumed innocent under the law of this land. The prosecution pulled a fast one by having what looked like half of the crime scene, including bloody carpet, in front of the jury for more than 30 minutes.
The prosecution put on the State's expert witness on blood spatters.While Rhoades asked many questions, the expert explained how all the blood sprayed all around the room. The defense asked only one question: "Would the person who killed Mr. Walker have gotten blood on himself?" The answer was "Yes." He said it would have been a lot of blood.
During pretrial questioning, Isaac's wife was questioned so hard that she was crying and vomited. She told them she knew nothing, but they continued to question her even though she was obviously greatly distressed. They told her that Isaac had implicated her in the crime and that she had to say what they wanted her to say. She had been gone for several months, but when she returned, she testified falsely against her husband. She told my investigator that Isaac was in bed at 4 a.m. and that the next morning the back door was open and Adam Blackford was gone. The defense knew all this, but never had my investigator testify to it.
The first defense witness was the forensic blood science expert, but he was not called because he found no evidence to connect Isaac with the crime. The prosecution did not call him in Issac's trial, but did use him against Blackford. The next defense witness was the State's own fingerprint expert. He could not find Isaac's prints in any of the nearly 150 prints he examined. Two of the State's own experts testified that they could find no blood, hair or fingerprints belonging to Isaac at the crime scene and could find nothing at his residence to implicate him. This would seem to prove that Isaac had been telling the truth all along. After that, a parade of witnesses came along and testified that Blackford told them he was the only one who killed Walker and that he was alone when he did it.
Adam Blackford kept his bargain with Bruce Rhoades and lied, saying Isaac was with him when Walker was killed.
Isaac took the stand and told what he knew about that night and stated again and again that he was innocent. Bruce Rhoades' last diatribe was to accuse Isaac of murdering "the cross-dressing faggot!" Isaac's answer to that was that he had nothing to do with taking the life of Mr. Walker.
The jury left at 11 a.m. and deliberated straight though until 1:30p.m. The verdict was guilty.
In spite of the fact that the jury was instructed to not consider the testimony of another person accused of the same crime as the truth unless it was corroborated, the jury ignored the truth and the law and convicted an innocent man. Blackford's uncorroborated testimony was used to wrongly convict Isaac. Isaac was sentenced to life without parole.
My wife and I could not talk to the public because the judge placed a gag order on the trial participants. Judge Storey told the jury that he had heard all this evidence before and that they did the right thing. However, he had not heard the testimony of the other prisoners before.
We were called as witnesses, but did not get to testify. We had to sit outside on wooden benches during the trial. Prosecutor Rhoades called us as witnesses so he could keep us out of the courtroom while the trial was in progress.
Was the court also as biased against Hispanics as Prosecutor Rhoades seems to be? I look on this trial as an affront to me and my family and the American Justice System. Justice seems to be for some, but not others. Our sympathy goes out to the mother and father of the murdered man, Alan Walker.Yet, it seems that Prosecutor Rhoades even took advantage of other minorities by using the grief of Walker's mother so he could get a conviction against my innocent son.
My son lost his freedom forever for being guilty of nothing but being Hispanic. Now it is "two Mexicans down."
The real and only killer of Alan Walker got a 30-year sentence reduced to 15 years by Judge Storey as a reward for lying for Bruce Rhoades. It was an evil bargain. Alan Walker's blood was found on Blackford and Blackford's own admissions of killing Walker were repeated in court by witnesses. Not one tiny bit of evidence was found on or about my son that would connect him with that murder.
It is interesting that a jury would find a man guilty when there was no evidence to support the verdict except the word of a convicted killer. It is interesting that the prosecutor would even bring him to trial with such a lack of evidence.
I thought Mexico had a corrupt system! After what has happened to me and my family, I believe we know which system is the more corrupt one.
Contact Mr. Frank Marta at his business, the Elm Springs Cafe: (501)248-7292.
{Jeff Clark, an inmate at Louisiana's infamous Angola prison, where a life sentence is forever, contacted Justice Denied on behalf of Jerome Bergeron, arguing for his innocence. VOCAL (Victims of Child Abuse Laws) is also involved in this case. When I called to speak to the Bergeron family, I discovered they were in the midst of another life tragedy. Travis, the youngest son, had just been killed by a hit-and-run driver on June 28. The father, Arnold Bergeron, was in distress, so I talked with Carmon Verdin, the sister, who filled in some facts about her brother's case. We had to gather other facts for this story through VOCAL to complete it. Jerome's story is all the more compelling because it is written by one inmate (who does not proclaim he is innocent, by the way) for another. Child sex abuse cases are infamous for creating hysteria and shutting down the minds of jurors and average citizens. Let this case serve to teach us to keep our wits about us in any case involving children: it is too easy to convict someone innocent and destroy the lives of the very children we want to protect. This story, then, although told by Jeff Clark, has been supplemented with the information we found. --Clara A. T. Boggs}
SOUTHERN JUSTICE -- A CAJUN NIGHTMARE
by Jeffrey Clark
(Edited by a Justice Denied staff member)
TO WHOM IT MAY CONCERN:
On July 29, 1999, in a small Louisiana courthouse, one man will stand alone against the corruption in our judicial and law enforcement systems and not only prove his innocence, but also prove that police officials deliberately coerced his young children to make false claims of sexual abuse so his four children could be adopted by politically connected families.
At this hearing, law enforcement officials will present evidence and testimony about being forced to participate in the illegal procedures used against the children. For reasons to be revealed at the hearing, they want to have the truth made known.
As is true of many Cajun couples, Jerome and his wife, Angela, married young and lived deep in the Bayous of Louisiana. Soon they had four children, but they also began having marital problems. During this time, Jerome injured his back and was laid off work. With no income, they saw no alternative but to apply for Aid to Families and Dependent Children (AFDC), but AFDC checks also came with the feature of a social worker who visited frequently. Jerome's wife was not a housekeeper, and with so many children, plus looking for work to bring in money, the house was not well kept. Jerome did his best to help, but had to keep looking for work. The responsibilities for these two, barely in their twenties and limited in education and skills, were heavy.
The stage was set for disaster ... and injustice.
The social worker had some close friends who were childless and wanted to adopt some children, so she filed a neglect and dirty house report on the Bergerons, recommending that the children be removed and immediately placed with her friends who had become foster and potential adoptive parents. The Bergerons quickly found themselves in juvenile dependency court. The foster family (the social worker's friends) decided they wanted permanent custody of the Bergeron children. From there the case began to grow from a dirty house neglect case to sexual abuse.
Next on the social worker's agenda was to refer the children to a Child Protective Services (CPS) physician. For those who are unaware of how doctors can "substantiate" sex abuse when there is none, a word of education is in order. A doctor can find "genitals within normal limits," and then say this is "not inconsistent with sexual abuse." In other words, nothing rules out the possibility of sexual abuse, which is how many people wind up in prison. Expert witnesses can and do refute these kinds of "findings," but a poor person is not likely to have enough money to hire an expert witness. In this way the CPS doctor determined that the children had been repeatedly molested and raped by Jerome. VOCAL saw the medical reports, "the usual, genitals within normal limits, not inconsistent with sexual abuse" -- meaningless to diagnose any genuine case of sexual abuse, but a diagnosis that impresses juries and judges who know little or nothing about the appearance of children's genitals.
The doctor reported his "findings" to the police and Jerome was arrested, then tried and convicted. Unfortunately Jerome's wife sought the easy way out for herself and turned state's evidence against him in exchange for her plea bargain. That doctor, the very one who reported no findings of abuse as "not inconsistent with abuse," was also a friend of the adoptive parents. In any court that wanted to maintain even the illusion of fairness, this physician's findings would have been closely questioned because of his conflict of interest.
There are important inconsistencies and facts worth nothing in Jerome's case:
1. The children were only 1, 2, 4 and 5 years old at the time of the alleged offenses. How credible is it that these children would be repeatedly raped by 5 to 7 different adults, yet show no bodily injuries?
2. The State offered several plea bargains to Jerome before trial, including a deal to receive no more than 10-12 years. Jerome flatly refused any deals because he is, in fact, Innocent.
3. Two doctors actually examined the children and gave wholly different medical opinions, but the findings in both of the examinations were inconclusive.
4. The children were coerced and coached to testify that they were repeatedly raped by several adults within a short period of time, which the District Attorney used to generate massive pretrial publicity. However, at trial the defense was absolutely restricted from proving that the children's allegations were untrue. The State also suppressed the fact that it had court records and evidence that unquestionably proved that, (a) one of the adults was never in the State of Louisiana at the times of the alleged offenses, (b) the police knew the other adults never committed any offense against the children, which is why they were never even questioned and, (c) the police also knew that the last person alleged to have raped the children never even existed. All this information was effectively kept from the defense.
One of Jerome's children was easy prey. Tired of the poverty in her parent's home, she eagerly listened to the social worker who told her she could have a better life with new parents, but that she had to admit she had been molested. That child, by the way, has now recanted.
5. It's notable that police officials had to conduct a total of twenty-three separate interviews with the children to assure their testimony at trial. The children kept telling the police the truth -- that no sexual abuse occurred. Their truth fell on deaf ears, for these officials had their own agenda to "make" a case. In the end, they were worn down.
The children lived with the foster family for almost five months without any allegations or signs of previous sexual abuse. It was not until it looked as if Jerome was going to fight the termination of his parental rights and the adoption that the would-be adoptive family brought charges of sexual abuse against Jerome and his wife.
Jerome's cousin worked for the local law enforcement as a reserve officer and he had heard from one of his friends at the police department that there were tape recordings of the children from the investigation. That officer also told VOCAL that he had both seen and heard the tapes. Those tapes, crucial to the defense, mysteriously disappeared. The defense was told that the tapes did not exist, yet they existed at the time of trial.
Jerome also requested his trial transcript for his appeal. It never arrived until the time for filing was past. The Louisiana judicial system is determined to keep the imprisoned in prison, regardless of the truth.
While confined in the Lafourche Parish Prison, a few months after Jerome's arrest, he was attacked and severely beaten by many inmates who later said they were instructed to do it by the newly elected Sheriff, Jail Warden, and prison officers. Jerome was taken to the hospital for emergency medical treatment for facial bone fractures and injuries to his back. Internal Affairs conducted an investigation after the inmates admitted that officials had instructed them to severely beat Jerome. (Note: Jerome only recently learned that the inmates had acted on instructions from the Sheriff and prison officials to beat him, because he was immediately transferred after the incident, so he didn't know he had been set up. He previously believed the inmates had attacked him because of the charges and the massive publicity generated by the Sheriff.)
George Wimberly had interviewed Jerome on a legal visit in Angola for about five hours. A few months later, when he arrived to visit again, prison officers claimed they had no records of his application for visits in spite of the fact that Mr. Wimberly had already been approved. They refused him access. The Wimberlys later discovered that this was because Jerome had been beaten and prison officials didn't want anyone to see his condition.
George Wimberly believes that the "adoption" by relatives issue was raised after the kids were placed in the foster home. The family got in touch with some relatives who were willing to take the children, rather than leave them in the foster/adopt placement that was at the heart of the false allegations. "Reasonable efforts" to place the children with family were ignored.
The family members came forward, willing to adopt the children after George Wimberly got involved with the post-conviction appeal. He told the family that CPS was required to make "Reasonable Efforts" to place the children with relatives. No one from CPS ever provided reasonable efforts to place the children with relatives, nor did anyone tell the family that they had this right until Mr. Wimberly pointed it out.
Now eight years later, Jerome has learned that his two oldest children, a girl we'll call Betty, and a boy we'll call Curt, made statements to credible individuals that no sexual abuse ever occurred and that they were coerced to falsely testify at their father's trial by the investigating detectives at the Sheriff's Department and by an official with the Louisiana Department of Health and Human Resources.
For some time now, Jerome's oldest son, Curt, now 12 ½ years old, has been in a reform school after his adoptive parent beat him after he came forward to state that no sexual abuse ever occurred, and that the police forced them to make those claims. Unless "Betty" and "Curt" are protected by the government in the Witness Protection Program, they will be threatened, beaten, and coerced until once again they are forced to testify as directed by
their adoptive families and Sheriff Department officials. They should be protected from further psychological and physical abuse for their own sakes and welfare, and have no contact with anyone who may coerce them or otherwise try to compromise the truth of their testimony. The truth must be made known.
In 1996 and 1997, Mr. George Wimberly, Director of the National Association of State VOCAL Organizations, took an active interest in this case and tried to uncover evidence to prove Jerome's innocence. State public officials stonewalled Mr. Wimberly at every turn, as did the police, courts, and prison. Mr. Wimberly himself heard police officials say they did "tape record" the children's statements during their 23 interviews, and that if anyone heard what was on those tapes they would see that Jerome never should have been arrested. These officials also said they had police reports from those interviews proving that they violated federal laws during the interviews with the children.
If it isn't again continued, Jerome D. Bergeron is to have a hearing on July 29, 1999, in the 17th Judicial District Court, Parish of Lafourche, City of Thibodeaux, LA., under the docket number 246595, before The Hon. Jerome J Barbera, III.
Jeffrey Clark writes, "We hope this case will attract the attention of massive media coverage across the nation. Just as those prosecuting officials were put on trial in Chicago, Illinois, we look for similar truth-seeking actions to occur in this small Cajun courthouse.
"The destruction of an American family, false testimony coerced by police acting illegally, psychological abuse of the children, physical beatings on the father to force him to agree to illegal adoption of his children, and one man's eight-year struggle to prove his innocence and get justice, are only some of the issues involved in this case.
"Truth and justice need your help and presence at Jerome's hearing to ensure that this Cajun nightmare comes to an end. Jerome stands alone without an attorney to present his case. Please be present, provide assistance, or otherwise support Jerome's cause so that the truth will be revealed at this hearing.
"Thank you for your time, understanding, and any help you might provide to Jerome Bergeron. For more information please contact Jerome Bergeron's uncle, Mark, knows most about the case. Call him at (504) 532-3337. Jerome's, father, Arnold Bergeron is at (504) 853-1937. Jerome's, sister, Carmon Verdin, also knows about his case, but she just moved: call the father to reach her. You can also contact a helping friend, Debbie Colinsky, by e-mail: Dial4Deb@aol.com. You may also contact Jerome at prison, but that correspondence is not confidential due to prison censorship." (Address is below.)
Jerome has now been in prison for over 7 ½ years. He is now divorced from Angela, who is supposed to be out now, but still has not been released.
Angela, writing to Jerome over their years of imprisonment, told him that she was threatened with a life sentence if she didn't take the plea bargain. According to what her mother has told the Bergeron family, she now wants to help free Jerome.
Jerome also directs those who want to know more about his case to contact Mr.
George Wimberly:
Mr. George Wimberly
State VOCAL Organizations, Legislative and Special Services Office
11625 E. Old Spanish Trail
Tucson, AZ 85730
Phone (520) 722-1968
Contact Jerome Bergeron:
Jerome D Bergeron, D.O.C. #170254
Camp D
Louisiana State Prison
Angola, LA 70712
(Disclaimer: We had to piece this story together from various sources. Some statements turned out to be incorrect -- one was a rumor that the adoptive parents no longer wanted the children. As we can, we will update and correct Jerome's story. This is as far as we can take it for this issue.)
CHAMPION OF THE INNOCENT CHRIS BROWN
{Editor's note: The media encourages us to think we are given and know the facts of any given case when we don't. We are all guilty of judging others through our own bias, ignorance, or unwarranted pride in our own abilities. Here is a story which could only have been written by that rarest of breeds -- a person who knows how to say, "I was wrong." Chris Brown is a champion because of his humility and fairness in seeking the truth -- the only way truth can be discovered.}
In Christopher Brown's own words...
Many people ask me how I got involved in the matter of Darlie Routier. I normally tell them, "Lucky, I guess," and go on my way. Like many of you, I sat and watched the evening news as Darlie Routier sprayed "Silly String" on the grave of her two young boys just eight days after the stabbing attack on her children and her, so when they arrested her, I knew she was guilty! Hey! I saw her spray the "Silly String." She must be guilty. During that time I had a very busy schedule. Not a lot of time to dedicate to up-to-date news, just little bits here and there. I knew kids were murdered. I saw the tape. Then on the radio I heard she was arrested. Boom! It made perfect sense. The connection of the tape and the arrest closed the case for me. She was guilty. If Susan Smith could do it, so could anybody else. Especially in Texas, it was bound to happen. End of story.
Well, not quite. In September of 1996, I started a local magazine in north Dallas called "Around Our Town." The magazine articles focused on local issues that were mainly positive. Nothing really negative. There was enough negative stuff in the daily newspaper. So in January 1998, I hired my first employee, D'Lee Garza, as chief editor. By now, you may have already figured out that this isn't a very large publication. What does chief editor mean? Well, it meant she was in charge of the stories people faxed to us and she'd get to type them into the layout. However, she treated that role as if we were a national publication. For the July 1998 issue, D'Lee wanted to do a story on death row. Her brother, Brad Garza, is a parole officer in Waco, Texas. He works out at the gym with a man named John McLemore. John used to be an investigative TV reporter. He was the reporter who broke the Branch Davidians' story on the raid that killed four ATF officers. John helped save several lives in a crossfire between the ATF and the Davidians. John's heroic acts were soon punished with jealous reporters making accusations that led to the end of his television reporting career. Later, the accusations were proven false, yet news stations still banished him, no matter where he applied. John now works for Life Partners. It just so happens, he is the right-hand man to Brian Pardo, the millionaire who started looking into Darlie's case. Both Brian and John have uncovered several pieces of interesting facts about her case.
Well, Brad suggested D'Lee call John and ask if he would write a story about death row. She did, and he did. However, the story he submitted was about forty pages long. My magazine is only 32 pages total, and I have to place advertisements somewhere in the magazine. There were about ten pages on Darlie. Now remember, I saw the tape, just like most of you. Come on, I knew she was guilty and in no shape, form or fashion was I going to give that convicted child killer any ink or recognition. They don't convict those kind of people for nothing, you know. So we cut down the article -- a lot. The issue went out with just a small note stating that Brian Pardo's company, Life Partners, was also looking into the Darlie Routier case.
John invited D'Lee and me to go down to their office and look at some of the case. I really didn't want to go, and even passed it up. However, D'Lee continued to look into the case, even after the issue of the magazine was out. I wanted to put an end to it all and get back on track of our business, so I agreed to take a wasted trip down to Waco and blow holes into all their theories. About two days before the trip, at 11:00 o'clock at night, I got on the internet and pulled up everything on Darlie Lynn Routier. There were about 350 articles. I thought the best way to get familiar with the case was to find out what the "tiny detectives" thought. What this means is that reporters are tiny detectives focusing on just one aspect of the case,and they then write whole stories on just that one aspect. I got to hire numerous detectives without paying them a single dime. Although it might be a fast, easy and inexpensive way to find out a lot about a certain topic, you do have to read between the lines and not take everything as factual. One by one I read every article. By 8:00 a.m. I was convinced that Darlie Lynn Routier was innocent. That's right -- INNOCENT.
As I read the articles, I began taking notes. I made a "cast of characters" of all the people who were linked to the case. Every time a person's name came up, I wrote it down. I wrote down who they were, what they did, and if they were for the defense or for the prosecution. By the time I arrived in Waco, I wasn't going to blow holes in their theories, I was going to listen and try to get the information I was lacking.
One thing led to another and, before we knew it, there was enough information and new information to write a book. I sincerely believe God works in wonderful ways. Who would have thought I, the guy who wouldn't give two words in a magazine article, would write over 200,000 words in a book.
I guess this is my way of making up for the past -- judging a book before it is read. I hope I will never make the same mistake again. This is my promise to Darlie and others like her. I hope this book brings you a sense of understanding that some mothers accused of killing their children are innocent.
Reach Christopher Wayne Brown by email at advice@gte.net
Chris Brown's book about Darlie Routier is about 520 pages. For more information on Media Tried, Justice Denied: http://www.fordarlieroutier.org/ Or at: http://members.aol.com/bkytransl/darlie-support/darlie-en.htm
{No inference should be made about any political statement made by any guest writer about Justice Denied. The writer is solely responsible for the content and ideas of his or her writing. Our concern is to provide a platform for dialogue about the criminal justice system.}
Prosecutorial Lawlessness is its Real Name
By Hans Sherrer (Guest writer)
One common thread running through the true stories of personal tragedy published in Justice Denied is the central role played by what is referred to as "prosecutorial misconduct." The time has come to recognize that prosecutorial misconduct is a euphemism used to hide the truth of what is actually lawlessness by prosecutors.
People can act lawlessly by breaking the law, but they can also be lawless by acting in an "unbridled; unruly; unrestrained" manner. (The Random House Webster's Unabridged Dictionary, 1996). This definition aptly describes the behavior of state and federal prosecutors nationwide. Based on the known rate of false convictions in capital cases, the routine failure of prosecutors to exercise caution or sound judgment in performing their duties results in an estimated one and one third million innocent men and women in prison, on probation, or parole at any given time.
Lawless behavior by prosecutors takes many forms, and they all undermine the substance and appearance of justice. It is lawless to focus the prosecutorial process on the objective of gaining convictions to the point of failing to act with dignity, fairness, honesty and respect towards someone suspected or accused of a crime. This behavior is even more reprehensible because it is directed at impairing the rights of people whose liberty is at stake, and who are involved in one of the most traumatic experiences of their lives against an opponent with an overwhelming advantage in resources, experience, and manpower.
Some of the more well-known forms of lawlessness by prosecutors are:
oWithholding exculpatory evidence from a defendant during pretrial discovery.
oPiling on spurious charges to try to compel a defendant to plead guilty or to confuse a jury enough to convict the defendant on at least one of the charges. (The jury foreman in Randy Weaver's 1993 trial said he was charged "with everything but speeding.")
oSeeking excessive pretrial bail to prevent a defendant's release, adding to the appearance of guilt and increasing the pressure to plead guilty.
oFalsely charging family members, friends or business associates with crimes to pressure a defendant to plead guilty and betray confidences by becoming an informant for the government. (Ken Starr used this tactic to successfully compel Webster Hubbell to plead guilty in June of this year and become an informant.)
oWording or structuring (or both) an indictment in an inflammatory way to prejudice jurors, the news media, and the judge against a defendant.
oMisusing the Grand Jury indictment process to selectively prosecute someone to satisfy a political agenda, a bureaucratic goal, or out of personal vindictiveness. This practice is so common that it is a national joke that a prosecutor can get an indictment against a *ham sandwich.*
oFalsifying a search warrant affidavit to induce a judge to issue a fraudulent search warrant. (Books about the O. J. case revealed this was one of prosecutor Marcia Clark's specialties.)
oThreatening to seek judicial or professional sanctions against conscientious defense lawyers who vigorously defend their clients.
oMaking false, misleading, or disparaging statements in court against a defendant or his attorney, or both.
oPlanting stories, leaking information, or both, to the news media to influence public opinion and poison the minds of potential jurors against an accused or suspected person.
oUsing innuendo and supposition, instead of facts and evidence, to create the illusion that a defendant is guilty.
This is not harmless misconduct, but life-devastating lawlessness. These tactics are so prevalent that one Texas appellate judge estimated that at least 60 percent of all criminal cases presented for review involve claims of prosecutorial wrongdoing (Alschuler, 631). This misconduct is particularly reprehensible because it is directed at undermining the system's function of fairly determining if an accused person is innocent or guilty.
The pervasive lawlessness of prosecutors who will resort to any tactic in their desperation to win at all costs was documented in exposés and reports published recently by the Pittsburgh Post-Gazette, the Chicago Tribune, the Seattle Post-Intelligencer, Reason magazine, and Amnesty International.
As shocking as they are, these public exposés don't reveal anything the legal community and concerned lay people haven't known for decades. The problem has been described in several books, beginning with Yale law professor Edwin Borchard's 1932 book, Convicting the Innocent, and in many law review articles in the 67 years since Borchard's book was published.
An awareness of what prosecutors do to illegally win false convictions is only one side of the coin. The other side of it is what can be done to stop it, which is a two-pronged problem.
First, is to heighten society's level of consciousness about the human impact of the routine and improper things prosecutors do to win convictions. Two concurrent events contribute to this. One, the growing publicity given to the enormous number of false convictions resulting from the criminal justice system's 1000% growth over the past 25 years. Two, the national reporting of every sordid detail of special prosecutor Ken Starr's years-long criminal investigation of President Clinton, his wife Hillary, and his business and political associates.
Second, is to determine what can be done to stop the rapacious, unchecked actions of prosecutors. Law review articles dating back at least to the 1940s have explored different aspects of this persistent problem. They identify methods potentially useful to discipline wrongdoing by prosecutors:
oAppellate reversal of a conviction
oObjection by a defense lawyer and admonishment by a trial judge
oContempt of Court
oDiscipline by a state bar association
oCriminal prosecution
Unfortunately, these have all proved pathetically ineffective at controlling prosecutorial lawlessness.
The "harmless error" rule has been expanded by appellate courts to give prosecutors license to do almost anything they want to affect the outcome of a trial, in or out of a courtroom, without fear of their behavior causing a conviction to be reversed (Alschuler, 658-668).
A defense lawyer's objection to what a prosecutor says or does, or a trial judge's admonishment of a prosecutor means nothing (Alschuler, 648-656). It has as much impact on a prosecutor's behavior as telling children not to raid the cookie jar after they already did it.
Two studies by law professors revealed that over several decades, there was not a single known instance of a state or federal prosecutor being held in contempt of court or otherwise disciplined by court-ordered sanctions (Alschuler, 674). On the other hand, it is common for judges to find defense lawyers in contempt for doing things of far less severity than what prosecutors do with impunity.
Meaningful discipline of prosecutors for misconduct by a state bar association is about as rare as the appearance of Haley's Comet (Alschuler, 670-673). The bar association's toothless oversight is demonstrated in the notorious case of Miller v. Pate (386 U. S. 1 (1967)). The Illinois State Bar Association refused to recommend any disciplinary action against the prosecutor. In that case the Supreme Court reversed the murder-rape conviction of Lloyd Miller, whose innocence didn't prevent him from spending eleven years on death row. Among other lawless acts, the prosecutor in his case "deliberately misrepresented the truth" in court by claiming that a pair of under-shorts allegedly found a mile from the crime scene was smeared with Miller's blood, when he knew they were actually covered with red paint.
Although prosecutors routinely engage in many activities that violate criminal laws, they are protected from accountability by two almost impenetrable barriers: The Faustian code of silence that is a part of the old boys' network; and the ancient problem of "who polices the police"?
Since prosecutors are often involved in some form of wrongdoing, it means none can break the "code of silence" without potential danger to themselves. This was dramatically demonstrated in a recent Seattle, Washington case. After a five year ordeal that cost her $42,000 in legal fees, 74 year-old Laura Park settled her federal lawsuit for false arrest and violation of her constitutional rights in June this year for $230,000. Deputy King County DA Ivan Orton had wrongly criminalized a civil probate dispute between Ms. Park, a former Washington State Teacher of the Year, and an heir to her mother's estate. King County DA Norm Maleng refused to discipline Orton, even though he filed false felony theft charges against Ms. Park for a routine civil dispute that didn't even involve the attempted theft of any money.
The question of "who polices the police" was driven home when the DuPage Seven (4 sheriff's deputies and 3 former prosecutors) were recently acquitted in a Chicago suburb. A special prosecutor for Illinois filed charges against the Seven for conspiring to frame Rolando Cruz for a rape and murder he didn't commit. The seven were acquitted after a trial by a judge (they waived their right to a jury), even though a DuPage County deputy sheriff admitted he fabricated evidence to ensure Cruz's conviction, and said other deputy sheriffs and the prosecutors involved knew it. Cruz has a multi-million dollar civil suit pending to compensate him for spending 11 years on death row for a crime he didn't commit. None of the deputy sheriffs and prosecutors involved in his case will be held criminally accountable for their role in the three false prosecutions he endured before being exonerated.
All these facts paint an ugly picture of the prosecutorial lawlessness that infects all aspects of the criminal justice system. It also makes obvious the absence of any institutional remedy that can protect any of us from the depravations of prosecutors. As keepers of the keys to the doors of the criminal justice system, prosecutors have no interest in curbing lawless behavior that is directly responsible for demolishing the lives of unconscionable numbers of Americans.
There is hope. However, meaningful change can only stem from the proactive efforts of people outside the system At the height of the Soviet Union's power in the late 1970s, people throughout Eastern Europe were inspired to stand up as human beings for the first time in their lives by Václav Havel's essay, The Power of the Powerless. His message? That ultimately we each determine our fate by what we are willing to tolerate and bear witness to in silence. Faced by the concerted actions of people determined to call a spade a spade and live by their standards and values, unresponsive political leaders and out of sync government bureaucrats are helpless. Tearing down the Berlin Wall and the collapse of the Soviet Union are a testament to the accuracy of Havel's vision.
This thinking formed the basis for the guerrilla type action lawyer Michael Mello used to save an innocent man from being executed in Florida. He threw himself on the gears of the legal system by enlisting the editorial aid of the Miami Herald to galvanize public opinion against an unresponsive legal and political system that was intent on following bureaucratic procedures that would have resulted in the execution of a plainly innocent man.
By publicizing stories of injustice that would otherwise remain buried in the torn souls of their victims and in files entombed in the depths of courthouses around the country, Justice Denied is part of the expanding network of publications, groups and concerned people who realize that if positive, meaningful things are to be done, it is up to them.
At any time, any of us could be subject to the vagaries and whims of some prosecutor, so we all have a compelling reason to care about stopping the insanity of prosecuting and imprisoning innocent people, that not only depends on prosecutorial lawlessness, but is symbolized by it.
Sources:
"Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice," Edwin M. Borchard, Yale University Press New Haven, Connecticut, 1932.
"The Innocents," Hans Sherrer, Introduction reprinted in Justice Denied, February, 1999 (No. 1, Vol. 2) and March, 1999 (No. 1, Vol. 3). The introduction elaborates on the estimate, based on the known rate of false convictions in capital cases (where the highest standards of proof are maintained and every case is appealed), that over 1-1/3 million innocent people are among the over six million people under the control of the criminal justice system at any given time.
"Win At All Costs," Bill Moushey (staff writer), Pittsburgh Post-Gazette, Pittsburgh, PA, 10-part series published from Nov. 22 to Dec. 14, 1998.
"The Power To Harm," Andrew Schneider and Mike Barber, Seattle Post-Intelligencer reprint of coverage and commentary on the Wenatchee false prosecutions published from Feb. 23 - March 17, 1998.
"The Verdict Dishonor," Ken Armstrong and Maurice Possley (staff writers), Chicago Tribune, Chicago, IL, 5-part series published from January 10 to 14, 1999.
"Starr Teachers: Think independent counsels use dirty tricks? Check out the Justice Department's regular prosecutors," Harvey A. Silverglate and Andrew Good, Reason, May, 1999, Vol. 31, No. 1, pp. 26-33.
"Courtroom Misconduct by Prosecutors and Trial Judges," Albert W. Alschuler, 50 Texas Law Review, 629-735 (1972). A remarkable aspect of professor Alschuler's study is that the tenfold growth of the criminal justice system since 1972 provides more evidentiary support for his findings, and adds their relevance to today's national crisis of prosecutorial lawlessness.
"Rights For All: United States of America," Amnesty International, NY, October, 1998.
"The Power of the Powerless," Václav Havel, "Open Letters: Selected Writings 1965-1990," Václav Havel, Alfred A. Knopf, NY, 1991, pp. 125-214.
"Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment," Michael Mello, University of Wisconsin Press, Madison, Wisconsin, 1997, pp. 13-14.
"Woman gets record $230,000 from county for false arrest," Elaine Porterfied (staff writer), Seattle Post-Intelligencer, June 30, 1999, pp. A1, A6.
New Orleans DA takes issue with Justice Denied Magazine.
Last month's Heroes at the Bar article, honoring Attorneys Michael Banks and Gordon Cooney Jr. for their work in John Thompson's case, received attention from the New Orleans District Attorney's office. They asked us to publish their Rebuttal to our story. That, in turn, prompted us to further comment. Here's a look at the prosecutor's side of it.
REBUTTAL FROM THE NEW ORLEANS DISTRICT ATTORNEY'S OFFICE.
In the last issue of Justice Denied, we published an account of how Attorneys Michael Banks and Gordon Cooney Jr. won a reversal in the case of John Thompson's wrongful conviction for a murder he didn't commit. About a week after Issue 5 came out, the New Orleans DA's office contacted us, saying, in part, "We welcome criticism but hope that your publication is not one of so many whose main purpose is to incite the public and to carry out an editor's hidden agenda. We have prepared a rebuttal and if you wish to allow your audience to be informed of both sides of this case, we respectfully ask that you publish it."
I assured Joseph Parillo, the I.S. Director, that Justice Denied is committed to the whole truth, and that we'd publish their rebuttal. That rebuttal is copied below with no edits or changes. We do, however, reserve the right to comment on the rebuttal, and that writing follows, clearly separate from the "Rebuttal." We are republishing our Heroes at the Bar story from last month ("Banks and Cooney free John Thompson After 11 Years Behind Bars") so you may review the article to which the New Orleans District Attorney objects.
(Letter received from Val M. Solino Chief, Appeals Division, to Justice: Denied)
June 18, 1999
Clara A. Thomas Boggs Justice Denied http://www.justicedenied.org/banks&.htm
Re: Article concerning John Thompson and his pro bono counsel Michael Banks and Gordon Cooney
Dear Ms. Boggs:
The purpose of this letter is to set the facts straight in reference to the recent article you wrote concerning John Thompson. John Thompson is currently on Louisiana's Death Row after having been convicted of first degree murder in May of 1985. Prior to being convicted of murder Mr. Thompson was tried and convicted, in April 1985, for having committed an attempted armed robbery. Mr. Thompson was convicted of this robbery on the strength of three (3) eyewitnesses who positively identified him during trial as the person who attempted to rob them at gunpoint.
You correctly note in your article that Mr. Thompson was tried and convicted of the robbery prior to proceeding to trial on the murder charge. The tenor of your comments leaves the distinct impression that it is unethical and improper to proceed to trial on lesser charges prior to commencing trial on other more serious charges which may be pending. By so suggesting you are misleading your audience. It is entirely proper and legal in Louisiana, and probably in every other state, to take multiple charges to trial in whatever order a prosecutor so desires. In Mr. Thompson's case the order of trial was the subject of intense pre-trial litigation. After reviewing the arguments of both sides the trial court held that proceeding on the armed robbery first was proper. This point was also litigated throughout the state and federal appellate review of Mr. Thompson's homicide conviction. Every court that has reviewed this complaint has rejected it.
Your article also leaves the impression that New Orleans prosecutors failed to acknowledge the significance of the lab report clearing Thompson of the robbery charge even after it was recently discovered by a defense investigator. This is an incorrect statement. The existence of this report remained unknown to members of this office, other than the assistant who prosecuted this case fourteen years ago, until April 29, 1999 when Mr. Thompson's attorneys, Michael Banks and Gordon Cooney, disclosed its existence to First Assistant and Chief of Appeals. After this information was brought to the attention of the District Attorney, Harry Connick, Mr.Connick immediately proceeded to court on the morning of April 30, 1999 and personally moved the court to grant a joint motion to stay Mr. Thompson's pending execution.
After verifying the information provided by Mr. Thompson's attorneys this office, in consultation with Mr. Banks and Cooney, filed a motion with the trial court on May 20, 1999 to vacate Mr. Thompson's conviction as to the robbery charge. This motion is currently scheduled for a hearing at the end of June 1999. Despite the impression left by your article the fact is that the New Orleans District Attorney's office has accorded Mr. Thompson's case the highest priority. We have done everything reasonably possible to set the record straight as to the robbery conviction. Our efforts have even included a concerted effort to keep the press informed of all developments in this case. Mr. Connick has had extensive meetings and interviews with a reporter from our local newspaper, and has provided this reporter with information and documents to aid her understanding of this story.
The article also opens with the comment that John Thompson had nothing to do with the murder of Ray T. Liuzza, Jr.. Again, this is a misleading statement. Overwhelming evidence was presented against Mr. Thompson during the murder trial. A coperpetrator testified against him. Persons who overheard him admit to the crime testified against him. A young man to whom Mr. Thompson had given the murder weapon and property taken from Ray T. Liuzza, Jr., so that it could be sold to a "fence," also testified against Mr. Thompson. The murder weapon and some of the property was recovered from this "fence" and it was used as evidence during Thompson's trial.
Finally, you steal a comment from a local OP-Ed page commentator and blatantly assert that suppressing evidence in capital cases is routine in this office. This is an unfair, misleading, and absolutely incorrect statement. Since Harry Connick has been District Attorney of New Orleans thirty-seven (37) cases have resulted in the imposition of the death penalty. Of these thirty-seven cases only one has been reversed as a result of evidence being suppressed-- Curtis Kyles. The other case you refer to in your article, Shareef Cousin, was not reversed because of the suppression of evidence. It was reversed as a result of improper impeachment of a witness.
I hope that in the future you make an effort to verify the facts in your articles so that your audience can read an account of an issue that more closely tracks the real facts.
I am also forwarding to you two letters directed to the editor of the Times-Picayune concerning articles written by Times-Picayune columnist James Gill. I am forwarding these letters because it appears that Mr. Gill's articles are a significant source of your information.
Sincerely,
Val M. Solino Chief, Appeals Division
REPLY TO NEW ORLEANS DISTRICT ATTORNEY
First, thanks to Mr. Solino for writing in behalf of his office.
Mr. Solino is correct, under LA law there's nothing unlawful about having prosecuted Thompson for the robbery he did not commit before putting him on trial for the murder he did not commit. However, it was improper when you combine this with the fact that they knew they were prosecuting an innocent man. The blood evidence they unearthed shows one of the DA members knew of the exculpatory blood evidence and chose not to disclose it. Some were aware of it. How many others knew? There was an affidavit by one prosecutor about a Crime lab report sent to Bruce Whittaker, April 9, 1985, 2 days before the robbery. Mr. Whittaker was quoted in the papers as saying he believed he gave that lab report to DA Jim Williams. When lawyers Cooney and Banks spoke to Whittaker, Mike Riehlman, former DA, recalled a conversation with Mr. Deegan, and Mr. Williams (who tried the robbery case). Rielhman recalls that Deegan told him that Deegan intentionally failed to disclose exculpatory evidence in the Thompson case. At least one person knew. The question is, did anyone else know? A central question is, Who's minding the store at the DA's office when one or more prosecutors are hiding evidence?
Mr. Solino writes that we left the impression that New Orleans prosecutors did not acknowledge the significance of the lab report clearing Thompson of the robbery charge after it was discovered by a defense investigator. I wrote, "For the first time in his 25 years as DA, Harry Connick will join the defense in a request to stay an execution." (AND) " After the stay was granted, Connick launched a grand jury probe to determine the level of misconduct by prosecutors. Whether this grand jury investigation is a sincere attempt to hunt down unethical prosecutors or merely a stunt performed for the public, at least Connick has been forced to admit that justice has not been served." I cannot find a statement saying that "New Orleans prosecutors failed to acknowledge the significance of the lab report clearing Thompson of the robbery charge even after it was recently discovered by a defense investigator," or anything close to it. Our article acknowledged Mr. Connick's actions to join the defense to stop the execution.
I don't think we left any impression that Mr. Connick's office acted any way but properly after being faced with the facts in Thompson's case. We reported Mr. Connick's actions to rectify this case. There is no doubt that it is in the best interests of the New Orleans District Attorney's office to give Mr. Thompson's case highest priority, and applaud that. The DA's office took appropriate steps and did the right thing after knowing what happened. However, no evidence suggests that the present DA or chief of appeals or others in the office were not aware of the facts in this case. I also wonder why this is the first case worthy of a grand jury investigation. Surely other cases have raised questions, or no?
Mr. Solino speaks of "overwhelming evidence" against Thompson at trial.Whether or not that evidence was "overwhelming" will be decided by a jury. Still, how does the DA's office account for the fact that a lab test identified the attacker's blood as Type B, where as the victim and Thompson both have Type O? I also wonder about the murder weapon used as evidence against Thompson. Obviously, if we now know he didn't commit the murder, how was the gun used to show he did it when he didn't? By getting the invalid conviction, the armed robbery conviction chilled Mr. Thompson's ability to defend himself. At the penalty phase, prosecutors put a victim of the robbery on the stand, then argued that Thompson could only go to prison without the possibility of parole, so the only alternative was to make it a heavier penalty.
As for being charged with relying on columnist James Gill's opinions, one journalist's opinion is not enough to conclude that there might be a pattern of prosecuting cases to the point that the truth is often hidden. Evidence was hidden in the Thompson case and in the Curtis Kyles case, but these are only the cases that made it to the public. We also receive case accounts from others in Louisiana who claim to have been wrongly prosecuted by various prosecutor offices, as is true around the country.
We use many sources for our articles, as I would hope you would use many sources to verify whether or not someone is innocent or guilty. You may have noticed that other journalists wrote about this story. Unlike what we have seen come out of some prosecutors' offices, we do not marry our version of the facts. What many people would like to know is, if a person maintains he or she is innocent, WHY isn't the District Attorney's office first in line to investigate those claims of innocence? Thompson's pleas to hear his claim of innocence went unheeded for years. Do District Attorneys buy into the old saw of, "Everyone in prison claims to be innocent"? Surely prosecutors know better than anyone that most guilty people do confess at some point or are cornered so soundly by the facts that guilt or innocence is fully verifiable.
I believe Mr. Connick is striving to act with honor in Thompson's case, and fully appreciate it. However, it is very important that prosecutors be able to account for the actions of those in their offices. In the DA's rebuttal, there is no explanation for how one or more of Thompson's prosecutors acted independently of the DA's office and got away with it. One assistant DA said he knew of at least one DA who admitted to concealing it. If human nature holds true, it may follow that others may have known, but that's only speculation. After all, documents showed that prosecutors in the robbery and murder cases knew about the pants. How many prosecutors knew of the pants? Also, what happened to the chain of custody of evidence here that allowed prosecutors to check physical evidence out of a storage locker before the robbery trial, but never returned the bloody pants after the trial? Isn't the DA's office responsible to keep the chain of custody of evidence intact? There is no getting around the fact that a DA in the New Orleans office did withhold exculpatory evidence. There is also no escaping the fact that Thompson came very close to being killed for a crime he didn't do because some prosecutor was hiding the truth.
I imagine few people in a district attorney's office appreciate the terrible pain and loss of life inflicted by a wrongful conviction. Only those who have "been there" fully know the heartache, sorrow and sheer hopeless despair of living as an innocent person in prison. Not only does the innocent behind bars suffer, but so does the family -- deep pain and losses on all sides. If prosecutors understood the other side of a wrongful conviction, they might do the job it takes to competently investigate cases so these "mistakes"are some day eliminated. This is why Justice Denied exists -- to educate people about the horrendous problem of wrongful convictions. We especially want to help educate an entire new class of lawyers, judges and prosecutors to do the right thing no matter the cost to a career or other considerations. Lawyers, judges, and prosecutors are people and, people have hearts to be touched. Only when everyone understands that we all lose when no one listens to those who say they are innocent, will the situation change. Lives hang in the balance. There is no room for error, and when there is error, there must be better ways to correct it. As of now, it takes superhuman effort, excessive amounts of money, and the input of many people to free only one innocent. This is not justice. We want true justice.
At Justice Denied, we welcome dialogue with district attorneys from all over the country. That would be the healthiest thing to come along in decades. Americans have lost confidence in the justice system. If more District Attorneys were as sensitive to setting things right, as Mr. Connick seems to be doing, we may be on the way to changing the terrible problem of so many innocent people in prison.
Our thanks to Mr. Harry Connick, Mr. Val Solino, and Mr. Joseph Parillo, for their desire to set things right in Mr. Thompson's case, and for contacting Justice Denied.
At your service for Justice Denied,
Clara A. Thomas Boggs
Heroes at The Bar, Banks and Cooney, Work Pro Bono for 11 years...and it paid off. Banks and Cooney free John Thompson After 15 Years Behind Bars
by Clara A. Thomas Boggs
Fifteen years ago, two crimes occurred -- crimes having nothing to do with John Thompson. Fifteen years ago, Thompson was sentenced to death row for those crimes. He claimed innocence but no one listened.
Enter Michael Banks and Gordon Cooney, Jr. As partners of the Morgan, Lewis and Blockius Law firm, they were handling employment litigation and commercial litigation when they became involved in Thompson's case. On their first capital case they had a most formidable foe, New Orleans DA, Harry Connick, Sr.
DA Connick, the senior, is a far cry from his son, the romantic and sensitive crooner, Harry Connick, Jr. The Senior Connick has been known to play a little music himself at the good old boys clubs in the jazz capital of the world, but he is most known for being the leader of the most unscrupulous bunch of prosecutors around.
After 25 years as New Orleans DA, Harry Connick is being forced to admit that hiding evidence to put people on death row is improper behavior. Suppressing evidence to win capital cases has been almost routine in Connick's office.
For instance, the U.S. Supreme Court overturned the murder conviction that left Curtis Kyles on death row for 11 years, due to prosecutor misconduct. Connick kept after Kyles, giving up only when he failed after trying him for the fifth time. Kyles was released from death row February 16, 1998. Throwing out Shareef Cousin's murder conviction and death sentence last year, the state Supreme Court noted that Connick's prosecutors had concealed evidence that was "obviously exculpatory." Connick did not try Cousin again. The Kyles and Cousin cases are the most well known of Connick's misconduct, but many defense lawyers and judges say they fit a familiar pattern.
This "Trophy" adorns the desk of James Allen Williams -- John
Thompson's prosecutor. John Thompson, who was just released from the wrongful conviction
inflicted on him by Jim Williams, is the man in front. Please note: Four of the men
pictured on the "trophy" have been released from death
row. Only one remains.
Michael Banks and Gordon Cooney Jr. handled John Thompson's appeal on a pro bono basis since 1988 through the Loyola Capital Defense Fund, which coordinates defenses for indigent death row inmates. They worked on the case for 11 years, giving up many thousands of dollars worth of billable hours. Banks has no regrets, although he says Thompson's case was an emotional roller coaster for him and Gordon Cooney. He said it was a rewarding experience, but that it was hard to concentrate on work with the execution of a man he'd come to like looming over him.
Thompson's state and federal appeals were exhausted and he was scheduled to die May 20. Not a team to give up, Banks and Cooney hired a private detective to see if any new evidence could be uncovered. Time was running out for Thompson.
The investigator's discoveries stopped the train of death in its tracks and pointed the finger at prosecutor misconduct. The New Orleans prosecutors had withheld physical evidence that could have exonerated Thompson in the unrelated robbery conviction that played a major role when he was sentenced for murder. One robbery victim had struggled with the attacker and that blood went all over his pants and one of his shoes. A lab test identified the attacker's blood as Type B. The victim and Thompson both have Type O blood. Thompson's trial attorney did not know of this test. If he had been given the evidence the prosecutors had, Thompson would have beaten the armed robbery rap.
Thompson and his codefendant were arrested for the Dec. 8, 1984, shooting death of Ray Liuzza, a hotel executive. Following the arrest, three young people who'd been car-jacked and robbed just weeks after the murder, saw the media coverage and accused Thompson of that crime. He was charged with that robbery.
The murder arrest came first, but the wily New Orleans prosecutors found a way to delay the murder trial until the robbery trial was over so they could get a death penalty for Thompson at the sentencing phase of the murder trial. That manipulation was very effective. Since Thompson was convicted of the robbery and got a sentence of 49 years, there was no way he could testify in his own behalf during the guilt phase of the murder trial because they would bring up the robbery conviction if he did.
That cleared the way for the DA to present him as a violent felon who would be put away for 49 years in prison anyway. The jury bought it. The investigator the Morgan Lewis attorneys hired found a police report from the robbery incident revealing that a bloody pair of pants worn by one of the victims had blood from the killer on them. The blood did not match Thompson's type.
According to Banks, records showed that the prosecutors checked physical evidence out of a storage locker before the robbery trial, but never returned the bloody pants after the trial. Documents also showed that prosecutors in the robbery and murder cases knew about the pants.
Banks said he went to New Orleans three times in two weeks, and that when one of the prosecutors in the case was first asked about this information, he denied it. From there, they went to a former ADA who screened the robbery case because he said he wanted to talk so Banks flew down again. That ADA said he knew of at least one DA who admitted to concealing it.
For the first time in his 25 years as DA, Harry Connick will join the defense in a request to stay an execution. He almost cannot do otherwise, for the paper trail leading to the missing blood evidence may clear Thompson of the armed robbery. Asked to respond to the case, Connick said he thought complaints about earlier cases were "frivolous, almost absurd," whereas the Thompson case is "unsettling."
After the stay was granted, Connick launched a grand jury probe to determine the level of misconduct by prosecutors. Whether this grand jury investigation is a sincere attempt to hunt down unethical prosecutors or merely a stunt performed for the public, at least Connick has been forced to admit that justice has not been served.
Banks and Cooney are not waiting for the grand jury. They aim to get Thompson's robbery conviction reversed and a new murder trial for him. Thompson has refused all offers of a plea agreement and has consistently maintained his innocence. Louisiana is rife with corruption in almost every quarter of its legal system. Connick and other prosecutors are only beginning to be put on the defensive as more interest is centered on the wrongly convicted. How many more innocent people will be found behind bars in Louisiana?
by Anne Good, Justice Denied Writer
MEDIA TRIED, JUSTICE DENIED
Behind the Truth & Lies of the Darlie Lynn Routier Murder Case
by Christopher Wayne Brown
Christopher Wayne Brown's book, the third in this fascinating and tragic case, may well be the most definitive for those readers who truly want to understand not only the evidence, but the popular mind-set and media-created images that helped convict Ms. Routier, 29, of the brutal murder of her 5 year-old son, Damon, despite no eyewitnesses, no confession, no motive, a second missing murder weapon and a severely compromised crime scene. (With no second murder weapon found, Darlie Routier was never tried for the murder of her son Devon , 7.)
Using word-for-word newspaper accounts, Brown offers counter evidence and impeaches various sources in a witty, hard-hitting, and often sarcastic style. In one part of his book, he neatly sets up two chronological camps for the reader to inhabit. One, the "She's guilty camp," is printed in the standard black ink, while the other, "She didn't do it camp," is printed in red. This makes for an easy-to-understand account of this sensational case and clearly illustrates why the result is so disturbing long after its legal conclusion.
With 200 pages of photographs, some of which are quite graphic and difficult to look at, this is the first book which seriously examines the surprising foundational flaws in the investigation. With a wealth of new evidence, Mr. Brown, who spent months investigating and researching, proves that time and effort do pay off.
The most startling part of this book is the assortment of photographs depicting Darlie Routier's injuries. We can imagine that a person could injure herself to some degree, but it offends one's intelligence to consider that she could have injured herself badly enough to almost lose her life in what Prosecutor Greg Davis referred to as "an attempt to be free of her children."
The photographs are the most convincing part of this book. They are of a remarkably compromised crime scene in which the Rowlett Police Department makes the Keystone Cops look like pros. Twenty to thirty ill-trained officers trampled through the scene, while homicide detectives stood outside and peered through the front door. The State's expert testimony is thoroughly discredited in these detailed images. One expert testified that Ms.Routier became the target of the investigation because the freshly strewn mulch outside the point of entry window was not disturbed. Mr. Brown offers us photographs of this very window. Beneath the window lies cement, not mulch. The experts were obviously confused from the onset of this botched investigation, and seemed to remain confused as it went on. A few more disturbingly disputed facts revealed in this book are:
1.) Investigators said Ms. Routier could not have been stabbed on the couch as she told them because there was no blood on the couch. Photos show blood dripping down the side of the couch and her pillow soaked in blood.
2.) Investigators claimed the only bloody footprints belonged to Ms. Routier, yet clearly there are unidentified boot prints.
3.) A blonde hair, said to belong to Ms. Routier, was found at the point of entry window. It was later discovered that the hair belonged to a female police officer who was never at the scene of the crime.
This is just a small sample of the amazing journey you will experience as you accompany Mr. Brown in his search for the truth. If you only have time to skim the book, don't miss the "What If" chapter. Here, Brown takes you on a mind-boggling trip as he shows you exactly how the crimes would have been committed if Darlie, Darin, or several other people actually did the awful deed. The scenario he presents would have been enough to convince any juror of Darlie's innocence. Too bad Brown was not on the witness stand.
The discerning and literate reader may object to this book's many errors, but even here there is a dramatic story. Chris Brown realized he uncovered much new evidence by his investigation. He is now working closely with Darlie's attorney, Stephen Cooper, so that much of this evidence may be used in her new trial if Judge Francis grants it.
The Dallas newspapers were on Brown's trail and eager to get at his information before he could publish. Knowing they would try to discredit his work before he published and that this could harm Darlie, Brown decided to not run the risk of a leak by having his book edited or proofread. He hired a team of security guards to watch over the book while it was being printed -- a large cost he felt was necessary to protect the evidence he had found for Darlie.
Media Tried's realism and sincerity are obvious in every true-to-life page. Brown has captured the essence of how an injustice is built out of thin air to ruin people's lives. This book is a must-read for anyone who wants to understand justice Texas style and exactly why Darlie Routier did not receive a fair trial. Mr. Brown, who makes no attempt to hide his contempt for the Rowlett Police Department, our judicial system, and Darlie's Routier's conviction, made a believer out of me. The actual facts do indeed exonerate her.
More information about Chris Brown's book is available at: www.fordarlieroutier.org
Edward Humes' Mean Justice caused a furor in Kern County, California, home of some recently overturned cases (Jeffrey Modahl, for one), and other cases in which people have claimed to be innocent. Reviewer Hans Sherrer says Humes is telling us we're all vulnerable to a wrongful conviction. Could that be?
Hans Sherrer reviews the controversial Mean Justice.
Mean Justice: A Town's Terror, A Prosecutor's Power, A Betrayal of Innocence
by Edward Humes, Simon & Schuster, NY, 1999
A review by Hans Sherrer
Mean Justice is a modern American horror story. Relating a true-life tale that would make Stephen King green with envy, it cracks open the door normally hiding the dark secrets of the "justice" system to public scrutiny.
Mean Justice was written by 1996 Pulitzer Prize-winning investigative reporter Edward Humes. Humes exposes the cases of more than 100 innocent people who were prosecuted for major felonies in Kern County, California since 1982. Focusing on the conviction of successful Bakersfield businessman and one-time school teacher Patrick O'Dell Dunn for the 1992 murder of his wife, Alexandra, Humes also shows how many other wrongful prosecutions occurred.
Edward Humes first learned of Pat Dunn's case when Laura Lawhon, private investigator for Pat Dunn's lawyer, contacted him. She claimed Pat was innocent. After investigating Dunn's case, Humes came to the same conclusion. In Mean Justice, Humes systematically reveals that the prosecution and conviction of Pat Dunn was not based on evidence of his guilt, but on false characterization, innuendo and jury manipulation.
Kern County prosecutors contended that Dunn murdered his 56 year-old wife of 5 years to get the millions she inherited when her previous husband died. On July 1, 1992, Dunn called 911 to report that his wife didn't return from a late night walk with her dog. He said he'd gone to bed before she did, and although she typically walked her dog at 4 a.m., he had awakened before 4, and she was gone. Alexandra was found half buried in an odd sitting position in the desert outside of Bakersfield three weeks after disappearing -- stripped, stabbed and her body mutilated "by cutting tissue out of her rectum." (p. 103)
Pat Dunn's house was microscopically searched for 15 hours by a small army of police, and subjected to a stressful marathon interrogation focused on his recollection of events surrounding her disappearance. No incriminating evidence came from the search and, in spite of the best efforts of the police to waylay him, he "did not contradict himself in any meaningful way, nor did he utter any telling inconsistencies..." (pp. 105-106)
Although the police investigation produced no physical evidence linking Pat Dunn to his wife's death, he was indicted and tried for her murder. In the absence of evidence, the prosecution based its case and focused the jury's attention on Pat's report to police that his wife was missing 18 hours after not returning from her walk, and that he didn't sound frantic when he did call.
Edward Humes summed up investigator Lawhon's opinion of Pat Dunn's allegedly incriminating behavior by writing, "So what if he waited a while before calling the cops? Maybe he kept hoping against hope she would return to him. Maybe he wanted to spare her the embarrassment of telling all her friends she was losing it [her memory to Alzheimer's]. So what?" (p. 16) Pat Dunn's behavior could just as easily be said to "prove" he's not guilty of killing his wife. After all, if he killed his wife, it seems he would have tried to avoid suspicion by being melodramatic while reporting her missing immediately after she disappeared.
Responding to the prosecution's reliance on the phantom "evidence" of Pat Dunn's guilt and the trial judges' open bias in favor of the prosecution, Edward Humes writes:
"Yet, even with a hostile judge and adverse rulings, Laura [Lawhon] had given the defense attorney all the ammunition he should have needed to take apart the prosecutor's case and reveal it as a passel of unproved suspicions,outright lies and insinuations lacking evidence to back them up. ... Laura had fought such insinuations with hard evidence and testimony that, she felt certain, demonstrated her client's innocence. She had even marched into court with the brother of the state's star witness in tow, who explained how the key testimony in the prosecution's case had been concocted. What more could a jury ask for? The DA had been left reeling, Laura thought, and the defense lawyers, exhilarated." (pp. 15-16)
Considering that the prosecution's case against Pat Dunn primarily consisted of shaky suppositions that he might be guilty, it isn't surprising that his lawyer said before the trial: "My client is an innocent man. I know it. He is being framed for a murder he did not commit." (p. 14)
Without any evidence that he killed his wife in a gruesome and near-ritualistic way, the jury convicted Pat Dunn of her murder. He was sentenced to life in prison in 1993, where he remains while his appeal winds its way through the courts. After Pat Dunn was convicted, the burden of proof shifted to him, so unless an appellate court determines that the trial judge committed significant procedural errors, he has little chance of ever being free from prison unless an eyewitness comes forward, the real murderer confesses, or new physical evidence is discovered (which may be hidden from him by his prosecutors) to establish his innocence beyond a reasonable doubt.
Pat Dunn's conviction came as no surprise to Edward Humes because while investigating Dunn's case, he had the sort of consciousness-altering realization some people call an "Aha moment" -- the innocent Pat Dunn's prosecution and conviction wasn't an aberration. It was business as usual for Kern County DAs to prosecute an innocent person for a major crime. Humes also realized it was normal for Kern County jurors, indoctrinated with an inordinate fear of crime, to meekly go along with any assertions prosecutors made and to convict a defendant on weak or non-existent evidence. Humes' realizations became the basis for the important story told in Mean Justice about the prevalence of injustice in Kern County, California.
Edward Humes also found that the pattern of false prosecutions he detected dates back at least to Ed Jagels' election as Kern County prosecutor in 1982, and his promotion of a win-at- all-costs attitude among his deputies. The over one hundred innocent men and women listed in the appendix of Mean Justice are the legacy of prosecutor Jagels' regime. These people were variously accused of auto theft, murder, child molestation, drug offenses and grand theft. Of these, fifty six were convicted, but so far only nine convictions have been upheld on appeal for various procedural reasons. The Kern County false child molestation cases, some of which involved over a dozen innocent adults, are reminiscent of the Wenatchee, Washington "sex ring" case in which 43 innocent people were falsely accused from 1992 to 1995 of molesting 60 children.
Mean Justice, compelling and well written, has been favorably reviewed in major newspapers, including The LA Times, The New York Times, and The Seattle Times. It has generated enough positive publicity that John Somers, a Kern County deputy DA, circulated a response on the Internet to a couple of Edward Humes' conclusions. In all fairness, his main objections deserve to be considered.
One of Somers' complaints is that Pat Dunn's conviction was based on evidence the jury heard in court, so Edward Humes is being disrespectful of their decision by claiming that Dunn is innocent and a victim of a false conviction. However, Pat Dunn and his lawyers claim that during the discovery process before his trial, the prosecution withheld potentially exculpatory evidence from him.
Under the Brady rule (based on the 1963 U. S. Supreme Court case of Brady v. Maryland), the prosecution is required to disclose all evidence it has that might tend to exonerate a defendant. The Supreme Court established this legal requirement to help prevent false convictions and help ensure the right of an accused person, presumed innocent, to a fair trial. The Brady rule's inherent weakness and inability to prevent widespread injustices is evident in Mean Justice: if a defendant doesn't know what information the prosecution possesses, he can't ask the trial judge to order its disclosure. Pat Dunn contends that prosecutors hid information that discredited key prosecution witnesses, and withheld other crucial information that would have undermined the state's case. (p. 453) This means Dunn's jury was misled and didn't base its decision on the truth, but on evidence selected by the prosecution to ensure his conviction.
It's disturbing, but Humes' revelation that the prosecution withheld potentially exonerating evidence from Pat Dunn, contributing to a miscarriage of justice, is not an isolated incident. The Chicago Tribune, for example, published a 5-part series in January 1999, documenting that violations of pre-trial disclosure of evidence to defendants is epidemic among state and federal prosecutors nationwide. Specific reasons that prosecutors withhold information in individual cases vary, but they fall into two main categories: they know it may tend to show a defendant isn't guilty, or they know it may conclusively prove he is innocent. Whatever the reasons, withholding potentially vindicating evidence from an accused man or woman amounts to a gross and routine obstruction of justice by prosecutors.
Prosecutor Somers' complaint also overlooks the prosecution's reliance on the bait and switch tactic to convict Pat Dunn. It's a tactic prosecutors use to trick jurors by deflecting their attention from the lack of substantial facts supporting their case, substituting facts that have little or nothing to do with a person's possible guilt. In Pat Dunn's case, the prosecutor switched a lack of facts to the bait of the time he called police about his wife's disappearance and his demeanor to imply "proof" of his guilt.
More importantly, Mr. Somers' protests about Mean Justice ignore its revelation that the tactics used against Dunn are the norm in Kern County. This means that Mean Justice serves as a dire warning to us all. Why?
Protections against being falsely targeted for a prosecution are so weak and ineffectual that we are all vulnerable to finding ourselves in Pat Dunn's shoes, particularly considering that the tactics used in Kern County are used by prosecutors nationwide.
Mean Justice is an important book by a nationally recognized investigative reporter. Its wide distribution and favorable reviews enables many Americans to become aware for the first time that innocence is no bar to being criminally prosecuted and convicted. Mean Justice accomplishes this by presenting a strong and convincing case that there is a lack of meaningful evidence linking Pat Dunn to his wife's murder. If Edward Humes is correct, then Dunn is a member of the least envied club in America: the multitude of people victimized by the meanest of all injustices -- being wrongfully convicted and imprisoned.
© Justice Denied
