Table of Contents:
From the Editor Big Change for a Transition Period
Sam Reese Sheppard Walks for Justice On September 17th, Sam Reese Sheppard will hold a press conference before embarking on a month long walk from the U.S. Supreme Court in Washington, DC to Cleveland, Ohio. One theme of his walk is wrongful convictions.
POLYGRAPHS -- Danger to Innocent People? Lying and
can be surprising allies. Do you trust a polygraph to measure your ability to tell the truth? Blind trust in your own judgments or the magic of polygraphs may not be warranted.
Bernard Baran: The First Day Care Conviction 1984 was a pivotal year for day care molestation hysteria. Is it a coincidence that Baran was falsely accused the same week that Gerald Amirault was arrested?
The Witch Hunt State Claims Another Victim: Bruce Clairmont Bruce Clairmont was a good father, but did his estranged wife complicate (to put it lightly) their divorce by urging their children to accuse him of sexual abuse? Is this tragic case yet another example of righteous zeal getting out of hand?
Child Abuse Witch Hunts VOCAL/NASVO's Mrs. Lesley Wimberly speaks about Child Abuse and wrongful convictions.
Massachusetts Witch Trial: Cheryl Amirault LeFave to Return to Jail The nation is watching the Amirault-LeFave case again. In spite of strong evidence of innocence, Massachusetts, home of the Salem Witch Hunts, rejected Cheryl LeFave's latest bid for freedom. The courts voted for "finality" in this case where the defendant needs to prove her innocence. How would you vote? For "finality" or Justice?
The Undisputed Champion of Capital Punishment Texas leads the country in killing people. Some may be innocent -- among them, Hank Skinner and Darlie Routier. The journalist who was on the scene during the Branch Davidian massacre writes about Texas' fascination with killing people.
Jimmy Dennis: Wrongly Convicted, but Now a Medical Neglect Victim too Jimmy Dennis, once a promising young Rhythm and Blues singer, is currently on death row battling severe pain and medical neglect. (His story originally ran in Volume 1, Issue 5 of Justice Denied.)
Good Samaritan Freed 16 Years After One Juror Saved Her From A Death Sentence Ellen Reasonover called the police on January 3, 1983 to report information she thought might help catch the murderers of a gas station attendant. She soon found herself charged with the man's murder and she was tried and convicted. A lone juror refused to vote for her execution so she was sentenced to 50 years in prison without the possibility of parole. After being imprisoned for 16 years, a federal judge threw out her conviction on August 3rd as being "fundamentally unfair" and ordered her released.
15 year-old Efren went to prison for a murder he most likely didn't commit. Efren Paredes was home with his parents when his boss was murdered. Eric Mui said he killed and robbed this man along with three accomplices, but they may soon be free while Paredes continues to serve time for a murder he didn't commit.
David Han wouldn't win the "Husband of The Year" award, but his lawyer argues that he is not guilty of raping his wife. If you believe Claire, she's been molested and raped many times, the last by her husband. The jury didn't get to see the evidence that she lied about it all -- the doctor saw NO trauma, and the photos revealed none. Does David Han's lawyer persuade you that he punched Claire, but didn't rape her?
Darlie Routier's two strongest supporters want to prove her innocence. So what's the problem? Darlie Routier, death row inmate, has two champions. Both believe she is innocent and both seek exoneration for her. One is her husband, Darin Routier; the other is millionaire philanthropist, Brian Pardo. This article explores the allegations and facts that have left these two men, both with the same goal, on a collision course -- headed straight for each other.
Justice Judge Arnold said, "I felt dirty. It was a betrayal of the judicial
ethos. It makes me feel terrible."
With this issue of Justice Denied comes the announcement that we will be publishing once every two months instead of monthly.
As we've remarked before, the irony is that our very success is
temporarily holding us back. The reason is simple: more prisoners are hearing about us and asking us for help at getting out their stories. At the same time, our staff has not grown enough to keep pace with both the snail mail and emails coming in.
During this interim, we will still look for more staff so we may resume monthly publishing. The hunt for an assistant to live in Oregon to help me has gone slowly. In another irony, working at getting out JD every month leaves little time to deal with interviewing potential assistants, and I must often put their mail on hold as the JD Team and I push toward the finish line.
At the same time that my responsibilities have grown with JD, I've had to take on more responsibilities at our land, and the push to get parole letters for my daughter this month has taken a tremendous toll on my time as well.
Although I still don't have the helper needed, Jason Seaman, the man I talked about in the last issue, will be helping me for another month, and I'm grateful for that. The backlog of snail mail has been attacked -- a big relief and lifter of guilt.
However, the primary problem is in dealing with so many aspects of Justice Denied each month. Because The Justice Institute board of directors rightly felt that all checks for subscriptions should be made out to Justice Denied instead of to an individual, I'm now having to deal with taking in checks and sending money and names to Stormy every month. During this transition we will extend all paid subscriptions, and revert to the monthly schedule as soon as we can.
There are solutions to our time squeezes and staff shortages: they cost money. As of now, we only have a couple of monthly supporters. We need far more if we're to do this with supporters alone. That's not the way we think it will go. We think we will be able to attract grant money. Again, this falls into our usual Catch-22 -- we need time to pursue the money we need. We come back to the fact that the only solution for now is to free some of our time so that the staff and I can find what we need to function at full tilt.
This would be an ideal time for anyone to step forward and offer to help JD in any way.
Since life is full of ups and downs, anything could change at any time. Some amazing people could suddenly come to JD and quickly enable us to keep publishing monthly. We can't count on the unknown, however, so for now look for us in two months and bear with us as we resolve the problems of uneven growth.
Looking forward to great solutions,
Clara Alicia Thomas Boggs
PS: To anyone who hasn't heard from me lately: now you know why.
Sam Reese Sheppard Walks for Justice
On September 17th, Sam Reese Sheppard will hold a press conference before embarking on a month long walk from the U.S. Supreme Court in Washington, DC to Cleveland, Ohio. One theme of his walk is wrongful convictions.
For those who don't know Sam Sheppard's story, here is an abbreviated version:
Sam Reese Sheppard was seven years old when his mother was killed and his father, Dr. Sam H. Sheppard, was condemned to death in Ohio for the murder of his pregnant mother. After Sam Reese was old enough to understand what happened, he began the journey of many years to establish his father's innocence.
The Sheppard murder case, now more than 45 years old and never
officially closed or even properly investigated, is one of the most well known criminal cases of this century. It was the basis for a landmark U.S. Supreme Court decision (Maxwell v. Sheppard) which still stands today, as well as numerous film and television programs, including "The Fugitive." Another chapter is about to unfold.
When Dr. Sheppard's body was exhumed in 1997 to harvest tissue samples for DNA testing, the story was front page news across the globe. Citizens United for Alternatives to the Death Penalty (CUADP) coordinated logistics and provided support for Sam in the days leading up to the exhumation and in the weeks that followed. Dr. Sheppard was cremated and re-interred with Sam's mother in Cleveland. Sam then walked from Cleveland to Cincinnati as a memorial to his parents. Taking advantage of the ever-present media, he used this opportunity to call attention to the need for alternatives to the death penalty. The walk was a success, garnering front page newspaper and top story television coverage across the state, and drawing new people into the efforts of Ohioans to stop Executions.
This fall, after years of legal wrangling, Sam Reese Sheppard's lawsuit seeking a declaration of innocence from the State of Ohio for the wrongful conviction of his father will be heard in Cleveland. CUADP will again work with Sam to use media attention to raise awareness about alternatives to the death penalty, with a special focus on the wrongfully convicted. Starting at the U.S. Supreme Court on September 18th, Sam will walk from Washington, DC to Cleveland, Ohio. CUADP will launch education and organizing projects in the communities Sam walks through and coordinate media and logistics.
The goal is to see that these efforts benefit our movement as a whole as well as abolitionist groups in the District of Columbia, Maryland, Pennsylvania and Ohio.
People Magazine and other media are already very interested in the story, so please watch for it. Your support is needed to make the most of this historic opportunity. To help, or to join us for any part of this historic event, please contact CUADP.
In a Related Effort...
Citizens United for Alternatives to the Death Penalty is Seeking Innocence Cases.
Since one of the themes of Sam's walk is wrongful convictions, Sam Reese Sheppard and CUADP is looking for the names of individuals who have STRONG cases of actual innocence. This is not limited to death penalty cases, although that is a large part of the focus.
Sam Reese Sheppard and CUADP cannot join, adopt, raise money for, or otherwise advocate on behalf of any particular case.
Purpose of Collecting Cases of Wrongful Convictions:
CUADP wants to be able to hand these cases to the media and put on their web page a list of names of cases with very concise descriptions -- enough to pique the interest of investigative reporters. CUADP's challenge will be, "You people in the media have a responsibility to the public to expose wrongful convictions. Here's a list of potential cases that we think merit your attention. Contact the people listed -- maybe this is your Pulitzer prize."
PLEASE DO NOT send tons of information to CUADP. If something is too long to read in a minute, CUADP will not be able to look at it, and neither will the media -- and that's the point.
If you have a case you think CUADP should list,please Use The Following Format to email your information as follows to:
firstname.lastname@example.org. Be Sure to send a text file in the body of an email -- no attachments, please!
Name of Prisoner: Address to contact prisoner: State of incarceration:
What happened? (in 100 words or less)
Example: Anthony Apanovitch was convicted in Cleveland, Ohio for the murder of Mary Ann Flynn on X date, 198X. It took seven years to force the Cleveland police to hand over evidence which they had concealed. This evidence raises serious doubt that Apanovitch committed this murder, yet the courts have refused to schedule a hearing to examine this new evidence. It's been 14 years. Apanovitch remains on death row in Mansfield, Ohio.
Name of Attorney: Contact information:
Name of group working on case, if any: Contact information:
Is there a website about this case?:
Abraham J. Bonowitz Director
You may forward this information to other people.
Citizens United for Alternatives to the Death Penalty (CUADP) works to end the death penalty in the United States through aggressive campaigns of public education and the promotion of tactical grassroots activism.
Visit www.cuadp.org or call 800-973-6548
These event listings were taken from several sources and compiled by Justice Denied
SAM REESE SHEPPARD'S INNOCENCE WALK -- EVENTS
A Kickoff Rally and March Launching
SAM REESE SHEPPARD'S INNOCENCE WALK
Saturday, September 18, 1999
Sam is walking to raise awareness about alternatives to the death
penalty, with a special focus on the wrongfully convicted. Starting at the U.S. Supreme Court, which freed his father, Sam will walk from Washington, D.C., to Cleveland, Ohio.
10 a.m. -- Rally at the US Supreme Court
11 a.m. -- March to the Whitehouse
12 p.m. -- Sam continues toward Cleveland
SPEAKERS, MUSIC, JUSTICE.
Featuring the Bruderhof Children's Crusade 2000 Choir, Death Row
Survivors and Other Leading Abolitionists
Wear walking shoes and bring t-shirts, signs, banners.
For further details or to get involved, please call 800-973-6548 or
TO RECEIVE A FLIER-BY-FAX YOU CAN POST, CALL 800-973-6548
Sam Reese Sheppard's Innocence Walk
September 17: National Press Club, Washington, D.C.
September 18: Rally at U.S. Supreme Court / Lafayette Park Sam Begins Walk to Cleveland
October 5 or 6: Exhumation of Marilyn Reese Sheppard: Cleveland
October 17: March into Cleveland / Rally at Courthouse
October 18: 45th Anniversary of First Trial of Dr. Sam H. Sheppard
January 31, 2000: Sheppard Wrongful Imprisonment Trial is Currently
Scheduled to Begin, FINALLY!
Beginning January 31, 2000, after years of legal wrangling, Sam Reese
Sheppard's lawsuit seeking a declaration of innocence from the State of Ohio for the wrongful conviction of his father will be heard in Cleveland. Citizens United for Alternatives to the Death Penalty (CUADP) will work with Sam to raise awareness about alternatives to the death penalty, with a special focus on the wrongfully convicted. Starting at the U.S. Supreme Court on September 18th, Sam will walk from Washington, DC to Cleveland, Ohio. To lend your support, please contact CUADP.
For further information on this case, Sam's walk, and related matters,
please visit http://www.cuadp.org or call 800-973-6548.
POLYGRAPHS -- Danger to Innocent People?
By Clara Alicia Thomas Boggs
In January of 1998, the head of the Justice Committee in San Diego asked us to take advantage of a polygraph offered free by a prosecutor who offered to go public and help those who passed it get publicity to help their cases. I put the matter to Robert Rosenthal, an attorney for my daughter. He said "No Way" should we consider this for your daughter, saying that the possibility for false positives is there especially if a test is highly sensitive. He told us that even a breeze coming into the room could trigger something in a person who has spent so much time in prison and who relives the past on a constant basis. He said his experience is that a person who's been in prison as long as my daughter has can take on guilt that doesn't belong to them. Robert also said that the whole point ofmy daughter's mental makeup is that Strawser manipulated her because she is emotionally vulnerable to manipulation. He said that an accused person goes on being accused in prison and it makes their minds vulnerable.
Robert said he took a polygraph test years ago, and the machine showed he lied when he told the absolute truth. He doesn't trust the polygraph in any way, believing it sets people up, for there is an infinite variety of responses people may have which may be interpreted as guilt but are not guilty. That a person is innocent doesn't mean he or she is emotionally stable enough for a polygraph. Rosenthal said he doesn't want any of his other clients to take such a test.
Interestingly, it was shortly after the time of the Justice Committee's offer that I learned of Brian Pardo's involvement with Darlie Routier's case and of the conclusions he'd drawn from Darin's failure with the polygraph test, and I asked if anyone knew how to get in touch with him so I could send him Rosenthal's information and an editorial in the Miami Herald. No one knew, but as fate would have it, Mr. Pardo has indirectly turned up in my life through the articles Justice Denied has done about Routier.
The offer of a polygraph for my daughter aroused my interest in these tests and I began to collect information since then. I have excerpted bits and pieces for you about polygraphs here, all with proper attribution when available.
Reading a book review of May God Have Mercy: A True Story of Crime And Punishment about an innocent man who was executed, this line caught my attention (my emphasis):
"Despite a phone call from Mother Teresa, Wilder uses the fact that Coleman fails the lie detector test (a result that surprises no one who knows anything about the polygraph) to deny all appeals for mercy, much less clemency, thereby (at least symbolically) pulling the switch himself."
According to several witnesses of the Darin Routier test, the examiner acted as an accuser, hardly the best environment to test someone who's already in stress. Guilt is a feeling that casts a spell over many people's lives whether it's justified or not. One has only to think about a battered child who believes he is guilty for the abuse he receives to understand this. If the administrator of a test has an agenda, it cannot help but surface and color the interaction between him and the person tested. In the case of Darin Routier, the June 6, 1998 Dallas Morning News reported that Mr. McLemore, Pardo's assistant, said, "The polygraph examiner and Darin were in each other's face. It was a very heated situation."
A "heated situation" is hardly the ideal environment for a test that imposes its own stresses. The burden should be on the tester to be noncommittal and not invested in the outcome.
In November 1997, a Miami Herald Editorial, "Of lies and justice -- Polygraph Tests," said that a lie detector is only as good as its operator and that some liars can fool machines and operators. It follows that this machine can misinterpret the immense range of human emotion.
"Lie detector" is the common name we use for the polygraph, revealing our naiveté more than any truth about it. The polygraph is not infallible, much less an unerring truth machine.
DNA tests are admissible in courts because they are infallible.
Polygraph tests have not achieved this success because they are usually unreliable, and are banned as evidence in courts.
The Miami Herald article writer spoke about a former airman who was court-martialed for using drugs, passing bad checks, and going AWOL. He passed a polygraph test in which he denied using illegal drugs and his urine tests were positive for drug use.
Polygraph tests have their uses, but cannot be considered as a way to determine someone's guilt or innocence. If, however, someone claiming innocence passes this test, it warrants looking further into the case for the same reason that we should attend to any claim of innocence. Freddie Pitts and Wilbert Lee used polygraph results to begin a journey that eventually spared their lives and freed them from Florida's Death Row.
Those who distrust polygraph tests have famous company. Sam Reese Sheppard, whose father's murder case inspired the movie The Fugitive, said his father did not take the test because he thought the people conducting the test would be prejudiced against him. The media at the time, however, crucified Dr. Sam for not taking the test. He was eventually vindicated. Dr. Sam Sheppard, now deceased, convicted more than 40 years ago and sentenced to life in prison for the murder of his wife, won a new trial and was acquitted after 12 years of legal battles. His son, Mr. Sheppard, said that after authorities had everyone around his father take a lie-detector test, they said, in effect, "Aha, he did not take a lie detector test, he must be guilty."
Mr. William G. Hagerbaumer, a man who has made it his avocation to study the reasons people are wrongly convicted in child sex abuse cases, wrote, "The basic problem with the idea of using the polygraph to detect deception, is that it does not detect deception. It detects emotional responses in the person to whom the polygraph is attached. People may respond emotionally whether or not they are being deceptive. People may fail to respond emotionally whether or not they are being deceptive.
"The studies assume that a polygraph detects deception and then they attempt to measure successful detection of deception, successful detection of non deception, false positives, and false negatives. As there is no direct correlation between emotions generated and deception, there is a wide variation in test results. . . ."
"It is likely that many people will have an emotional response when they attempt to deceive. It is important to realize that there are many other factors that lead to emotional responses. It is also important to realize that not everyone has an emotional response when attempting to deceive."
"Nothing definitive can be said about the results of a polygraph examination. They are used, however, to intimidate people into being more truthful, and can also be used to intimidate people into making false confessions."
Another thing to consider is that a sociopath may not believe he did anything wrong and will register as telling the truth when he is lying. Most lawyers can tell us about a client or two who can deceive the machine.
Ian Begg, now a Professor Emeritus at McMaster University in Ontario, Canada, where he was part of the psychology department, wrote to the Witch Hunt Forum:
"Polygraphs are recordings of changes in skin conductance/resistance when certain questions are asked, compared to a baseline when other questions are asked. If the change is big enough, the polygrapher might signal the response "deceptive." The basic theory underlying the use of polygraphs is that whenever a person lies, there are physiological changes in the body.Even if the theory is right, in which case the machine could detect intentional lies, honestly mistaken answers are not lies. Even at its best, the machine cannot detect departures from external truths; we need a time machine for that. . . ."
"Polygraphs are not lie detectors, and amytal is not truth serum. These are catchy names, but they imply more than the techniques can deliver. The main use of polygraphs is to bully ignorant people into making confessions. Asking "are you willing to take a lie detector test on your answers" can cause some people to disclose more information, or change their answers. . . ."
"In short, polygraphs are just "witness demeanor" dressed up in a white coat. Neither has sufficient demonstrated discriminative validity to detect even intentional lies. And to repeat, no procedure based on present behaviors can determine historical truth. The concern of the current list is most often not with the sincerity of the complainant, but with the reliability of the "memories" as indicants of external reality. Psychologists and polygraphers cannot provide that information. And courts can't either, unless they have corroboration of the factual allegations."
(Since Professor Begg retired in 1998, he has been completing the licensure (articles and bar admissions) for criminal law, working in the real world defending real people charged with crimes.)
Most people don't understand that a polygraph is only a machine that reads physiological responses, such as heart rate, body sweat, and is not a device that miraculously "knows" when someone lies. Poor responses can occur for many reasons. Some people can trick the machine, polygraph results are subject to operator error, and people respond to stress in many different ways. Law officers have been known to trick suspects by using a mimeograph machine that ejects a paper with the report that the suspect is lying. Usually the accused is asked to come down to the local police department and submit to polygraph. The person who is ignorant about polygraphs will often eagerly go to the station and let himself be hooked up to the machine believing he'll pass. Not likely. Police will also often conduct an intimidating interrogation while a polygraph test is in progress, and suspects have reported that officers standing by would pressure them the whole time. Then when the suspect fails the test, the police have their "probable cause."
The number of people who report telling the truth on polygraph tests only to find themselves called liars, plus those who freely admit to having lied and gotten away with it, is troubling, especially since so many people seem to be impressed when told that someone passed or didn't pass the test.
There's also the wrinkle that a person will respond truthfully when he or she believes something untrue. If I believe something, it is true for me. So it seems to be with most people. The truth is not established, but my belief is recorded as an honest answer. There is also the fact that people may respond with anger, sorrow and agitation when the subject of the test has to do with a crime. Add to that each person's trigger words, like mother, God, sex, and any number of things, and the unreliability of these tests rises.
People sometimes have emotional responses when they deliberately lie and sometimes do not emotionally respond to telling the truth. A polygraph machine is simply not a lie detector. It will register false positives and false negatives and will vary from one test to the next.
To use polygraphs as lie detectors is to indulge inpseudo science. There is no way to tell if someone is lying or telling the truth if we can't match it against hard evidence and in that case the test is useless because you have the evidence.
The problem with the polygraph's electro-dermal response (EDR) is that there is extreme variance from one person to another on whether or not, and to what extent, mental issues manifest in a body response. We all know people who react in extreme ways to both positive and negative stimulation, while others seemingly have no physical response to the most extreme situations. Highly self-critical people are a case in point. They would tend to have extreme EDR reactions to everything.
Unfortunately, the fact is that we are all impacted when an accusation is made and tend to believe, rather than disbelieve it. We will only make progress when we can assume the stance of a wise parent and work at discovering the truth.
At the June 1999 American Psychological Society annual conference in Denver, Colorado, several studies presented should make us rethink the way we view lying, and our ability to judge it.
According to the studies, one in 10 people who lie are convinced they're telling the truth, raising fears that some people are immune to lie detector tests and do not show the tell-tale signs of a liar.
Dr Danielle Polage from the University of Washington did two studies of 140 people, showing that people with a good imagination can convince themselves, after being told to lie, as part of a control group, that they are telling the truth.
The findings of the study show that a majority of people will not be affected by lying about an event, only strengthening their memory of the truth, but a full 10 per cent came to believe that the lied-about event was true and later denied that they'd lied.
The issue of people who make false confessions can be especially pitiful. They may lie when their defenses are worn down or they think they may get less prison time. The irony is that after they live with their lie, they come to believe it.
The congenital liar lays another pitfall for us. Who has not been deceived by a clever liar? They look us in the eye with candor, earnestly, and we believe.
People are generally convinced that they can tell when someone's lying. The facts refute their naive belief in their own abilities. Many studies have been done about our infinite ability to be deceived. There is no substitute for investigation and sober thought. Our emotions will mislead us too often to count on them.
There is no magic truth serum. There is no magic machine that can infallibly separate lies and truth. Let us be humble in the face of our own certainty.
Clara A. T. Boggs
Bertrand Russell: "The trouble with the world is that the stupid are cocksure and the intelligent are full of doubts."
"The great masses of the people will more easily fall victims to a big lie than to a small one." --Adolf Hitler "Mein Kampf"
Bernard Baran: The First Day Care Conviction
THE BERNARD BARAN STORY:
I have spent 15 years of my life locked away for something I never did and after a while you start to lose all hope. Bernard F. Baran, Jr.
Written by Bob Chatelle
Edited by Stormy Thoming-Gale
Being a gay teenager -- anytime, anywhere -- has never been easy. However, few have had to pay so terrible a price as has Bernard Baran of Pittsfield, Massachusetts.
Pittsfield is a town of about 50,000 in western Massachusetts. Baran was born there on May 26, 1965, the youngest of three children. His father left when Bernie was three, but Baran's mother, Bertha, held the family together. Bernie was her baby, and she kept him out of school an extra year.
When very young, Bernie realized he was gay. This was hard for Bertha to understand at first, but she accepted it because she loved her son. School was not easy for Bernie. Although he is not effeminate, his gentleness advertises vulnerability. In 1981, after completing 9th grade and having just turned 16, he quit.
Baran enrolled in the Comprehensive Employment and Training Act (CETA), and early in 1983 he was assigned to a Pittsfield daycare, the Early Childhood Development Center (ECDC). Bernie liked kids and he'd had a lot of experience babysitting. The following August, ECDC directly hired him as a Teacher's Aide. His performance was generally excellent, although he went through a period of tardiness in early 1984. He was good with the kids and before the trouble started on October 4, 1984, no parent had ever complained.
Baran was also happy in his personal life. He had come to love another young man named Ricky, a few years his senior. Ricky, a musician, taught Bernie how to do sound. Although Bernie lived at home with his mother, he often spent nights at Ricky's.
Destruction entered Baran's life through the very troubled three-year-old Peter Hanes, whose home life was deeply troubled. (All children's names have been changed.) Peter's father, James, left his wife, Julie, when Peter was two or three weeks old and James' cousin, David, soon moved in. Julie and David had serious drug problems. Julie often showed up at emergency rooms suffering from overdoses. She mainlined cocaine, but also used opiates and barbiturates. David once stole the paregoric (a camphorated tincture of opium used to treat diarrhea) Julie's doctor prescribed for Peter's baby brother. Peter sometimes came to daycare with bruises. David once held Julie from a second-story window by her ankle. In March 1983, David allegedly stabbed himself in the heart, and required open-heart surgery. Julie's next live-in boyfriend also allegedly stabbed himself in the chest.
Not surprisingly, Peter was a big problem at ECDC. He swore, had mood swings, physically abused other children and teachers, threw things, and defecated in the play patch. He wet himself almost every naptime. Julie was asked to send in extra clothes with him everyday, but she seldom did.
Most 80's daycare cases began when a parent from a highly dysfunctional home accused a male daycare worker of sexually abusing a little boy. The most famous such case was McMartin, which began in August 1983 when an alcoholic paranoid schizophrenic woman accused twenty-five-year-old Ray Buckey of sodomizing her two-year-old son. McMartin spawned hundreds of copycat cases. In Malden, Massachusetts, on September 5, 1984, police arrested Gerald Amirault, a worker at the family-owned Fells Acres Day School. Gerald's sister, Cheryl, and his mother, Violet, were later arrested as well.
Around the time Gerald Amirault's arrest made the news, David Hanes called ECDC to complain that Bernard Baran was a homosexual and shouldn't be allowed to work there. A few weeks later, on Monday, October 1, 1984 Peter Hanes was removed from ECDC. On Friday, October 5, David Hanes called the Pittsfield Police and said that his son "had come home from school yesterday with or after examination had blood on or coming out of the end of his penis."
This was allegedly discovered while Peter was being bathed the previous evening. Julie Hanes later admitted she actually "didn't see any blood because he was in the water, but he said it hurt." Peter was asked if anyone had touched him there, and Peter supposedly said, "Bernie."
After receiving Hanes' call, the police went to ECDC and talked with the staff. The police were told that it was ECDC policy to never leave any adult alone with children. In each room, there was a Head Teacher, an Assistant Teacher, and a Teacher's Aide. In addition to the paid staff, there were CETA workers, and volunteers. Bathrooms adjoined classrooms and bathroom doors were kept open in case toddlers needed assistance. There were virtually no opportunities for a child molester.
Baran didn't know that he was under investigation, but word spread among ECDC staff. That evening, ECDC Coordinator Carol Bixby called her friend, Judith Smith, an ECDC board member. The Smiths had a three-year-old daughter named Gina who'd been an ECDC student. She'd been in Baran's room from April until she left the school in the middle of July. Because of their schedules, Gina and Baran were in the same room only about five hours a week during the busiest part of the day.
After Bixby's phone call, Judith began interrogating Gina. Mrs. Smith specifically asked about Bernie and whether Bernie ever "touched her in a funny way." Gina said she and Bernie played the "Bird's Nest Game." Smith asked if Bernie ever touched her fanny, and Gina said that Bernie touched her "privies" sometimes.
Smith called Janie Trumpy, who told her that Smith should call the police because Gina wouldn't make up something like that. Later research by Ceci, Bruck, and others* shows that young children often produce such "accusations" when subjected to suggestive questioning.
Late that night, two detectives and a social worker went to the Smith home. Gina was not talkative but after being prodded again said that Bernie touched her privies. Gina also said that one day Baran found a bird's nest with a dead baby bird still partly in its shell. Baran allegedly said that if the "make believe" or"pretend" police found out, they would come and take the bird away, and that would upset the bird's mother. Baran never found such a nest. With much help from the "investigating" adults, Gina went on to create the most bizarre of the abuse tales.
Baran was arrested, and the news hit the papers. Peter Hanes and Gina Smith were interrogated, first by police, then by Jane Satullo of the Rape Crisis Center, who did videotaped interviews using anatomically correct dolls.
Anatomically correct dolls were commonly used at the time. Responsible therapists and investigators no longer use them because research has since shown that they produce mainly false accusations.
Gina Smith and Peter Hanes shared the same pediatrician, Dr. Jean Sheeley, who at the time was relatively inexperienced. Gina's last complete checkup was in July, right after leaving ECDC, and no problems had been found. This time Sheeley closely examined Gina's rectum and vagina, and found a 1-2 millimeter (about 1/20 inch) tear in her hymen. Sheeley believed that tear consistent with penetration by an adult penis or several adult fingers. Her evaluation was in accordance with medical knowledge then current, because no one had yet studied the vaginas or rectums of non-abused children. Later studies by Dr. John McCann and others have revealed that such hymeneal flaws are common.
During the examination, Gina also said she'd had blood on her privies, but that Baran cleaned it up and that Eileen, the Assistant Teacher, had witnessed this. In her police statement, Mrs. Smith admitted that she had suggested Eileen's name, and that by doing so she was "putting a name in her head." From the beginning, Mrs. Smith had also put Baran's name into Gina's head. Later, Gina would say that Stephanie, the Head Teacher, had been the witness.
A meeting was held for the panicked parents, and police and social workers provided a symptom list for sexual abuse -- bedwetting, nightmares, fear of the dark, eating problems, genital curiosity, etc. Any child could have some of these symptoms. The children were also treated to "good touch/bad touch" puppet shows (another highly suggestive technique) performed by Jane Satullo and others. Four more accusers were produced.
One was Virginia Stone, who had never been in Baran's room, but whose mother was a good friend of Julie Hanes. Virginia at first denied abuse, but later "disclosed." According to the insurance company report, Stone later told a therapist that nothing had really happened but that her mother told her to say that it had so they could get a lot of toys and money. Baran had also allegedly jointly abused two little boys in a shed at school and in the woods during the winter while on a field trip. The shed was kept locked and Baran had no key. There was no such field trip while the two boys were in Baran's room, which was during the summer anyway. The final accuser was barely three. At some point she told a Department of Social Services inquisitor, "Bernie touched my tuku." The children were tested for gonorrhea.
Peter Hanes' throat culture was positive. At the time, the test used was considered reliable. Yet in 1988, a federal Center for Disease Control study showed that in instances where children tested positive, in over a third of the cases the actual organism turned out to be something else. Given his chaotic home, Hanes might well have had gonorrhea. Also, subsequent to Baran's conviction, according to the insurance report, Peter made a spontaneous, detailed, and credible disclosure of abuse by someone other than Baran -- the friend of David and Julie's who became Julie's live-in boyfriend after Julie threw David out, a week or so after Baran's arrest.
Baran's gonorrhea test was negative. Nevertheless, at trial, prosecutor Daniel Ford had a doctor testify that gonorrhea was most common among prostitutes and male homosexuals, reinforcing the belief that gay men always carry disease.
The children were rehearsed by their parents, the police, and social workers. The Smiths also hired a child psychiatrist, Suzanne King, who saw their daughter once a week. Gina's story became more bizarre. When Gina had originally said that her vagina had bled, she said that Bernie had cleaned her up with toilet paper. Now Gina claimed that Baran had scraped the blood from her vagina with scissors. Baran then supposedly stabbed Gina in the foot with the scissors, making her foot bleed as well. DA Ford claimed that Baran stabbed Gina's foot to cover up Gina's vaginal bleeding. This all allegedly happened in a bathroom with an open door adjoining a classroom filled with children and other teachers.
None of the children was competent to testify.
Additionally, the children were seated so they didn't have to see Baran. Not only was Baran thus denied his confrontation rights, he couldn't even follow what was going on. In spite of all the rehearsal, the children were poor witnesses. When they bothered to respond, they shook or nodded their heads, said uh-huh oruh-uh, gave monosyllabic or one word answers. Ford was allowed to ask extremely leading questions. Whenever a child gave the "wrong" answer, Ford just repeated the question until the "right" answer was produced. If a child persisted in not cooperating, Ford would ask if the child were scared, implying that the child must be afraid of the monster, Baran, whom they couldn't even see. Most of the kids were cooperative with the dolls, however, eagerly poking the inviting orifices.
When Peter Hanes was brought into the courtroom, he broke away and ran over to where Baran was sitting. "Hi Bornie [sic]!" said Peter to his alleged tormentor. When they dragged Peter away, he said, "I don't like these people." Peter responded to Ford's questions with silence or obscenities until he had to be removed.
Ford's other "star" witness, Gina Smith, wasn't much better. When asked if she bled, Gina responded "I forget it," perhaps meaning she forgot the right answer. Ford followed up with, "What did Bernie do when the blood came out?" and she gave the right answer -- "He scooped it out with scissors." But then she gave the wrong answer and said it happened it the classroom. Ford helpfully reminded her that it happened in the bathroom. Ford prodded her about the Bird's Nest Game, but Gina only would say, "the baby bird got killed." Ford suggested that Gina was too scared to talk. Other children sometimes consistently gave wrong answers even when Ford repeatedly questioned them. Under cross-examination, one boy said he had been telling "fake stories." The youngest victim said she liked Bernie and that Bernie was a good boy.
The parents were compelling witnesses, since most of them sincerely believed that Baran had done unspeakable things to their babies. The teachers supported Baran, pointed out that they had never witnessed suspicious behavior, and pointed out the complete lack of opportunity at ECDC. Satullo and King testified that children were not suggestible and just dismissed everything that was inconsistent or incredible in the stories. Satullo flatly stated, "There haven't been any cases of children falsely accusing somebody."
King said that a parent's anxiety was not transferable to a child. Satullo and King's beliefs were standard at the time. Research by Ceci, Bruck, and others has since shown that children are highly susceptible to suggestion.
Baran did well. He answered all questions truthfully and thoughtfully and denied ever doing anything improper with any child. Under cross-examination, Ford prodded Baran about his relationship with his boyfriend, repeatedly asked Baran if he liked children, and if he enjoyed working with them. When Baran said he'd started coming in early because he didn't want to be fired, Ford immediately shot back, "Because you liked working there at that day care center with those little children." Ford never established a motive on Baran's part. Baran is not a pedophile, but all Ford needed to do was demonstrate that Baran was a gay man who liked children.
In his closing statement, Ford said that nothing he "could say could possibly be as persuasive or as convincing as the testimony of those little children who testified before you over the course of this trial. I dare say that the great Clarence Darrow himself would pale in comparison to them." Ford stated that Baran had plenty of opportunities at ECDC, and said "he could have raped and sodomized and abused those children whenever he felt the primitive urge to satisfy his sexual appetite." Ford compared Baran to "a chocoholic in a candy store."
Ford explained to the jury why Gina Smith -- who allegedly had been brutally penetrated, causing her vagina to bleed, and then stabbed in the foot -- hadn't screamed out at the time or ever disclosed to any adult what had happened to her. It was because of the Bird's Nest Game. Ford said, "If she told anybody about what Bernie did to her the baby bird's mother would be taken away by the pretend police and the baby bird would be hurt. That one frightened Gina so much she couldn't even tell us about it here in court. She could talk about being raped, she could talk about being sodomized but she wouldn't repeat the bird's nest story. That's how much that one scared her."
The jury spent 3 1/2 hours to find Baran guilty on all counts. It was the nation's first daycare case conviction.
One of the trial's most dramatic moments occurred when an ECDC mother, Mrs. Melinda Ward, pleaded for Baran before sentencing. She called Baran "a miracle worker" who "started my son on the path of a normal childhood." (Baran reports that Mrs. Ward recently died.)
Baran was sentenced to two concurrent life sentences, which he continues to serve. His direct appeal was denied. Parole is not a possibility, because people who insist that they are innocent are not eligible for parole. Through the years, Baran has steadfastly proclaimed his innocence.
Bernard Baran is a small person, Weighing less than 100 pounds at the time of his conviction. In prison, he has suffered physical, emotional, and sexual abuse -- abuse that he finds almost impossible to talk about today. He has been shuffled around the Massachusetts prison system. Today he resides at the Bridgewater Treatment Center, where he has been committed, for his own safety, as a sexually dangerous person.
Bernard Baran is a forgotten man. No journalist has ever investigated his case. When I visited Baran for the first time, I asked him about visiting rules. "I don't really know much about them," he said. "No one ever comes to see me except my mother."
On March 3, 1999, in a letter, Baran said:
"At times, Bob, I feel so all alone. I also do believe people have tried to help me but life moves so fast out there that I seem always to get lost in the process. I'm not saying that you would do this to me. It's just how it has gone so far. So I fear the hope that others bring into my life because I'm always left alone in the pain."
For 15 long and lonely years, Bernard Baran has been lost in the process. Recently, Boston attorney and public defender John Swomley became interested in Baran's plight. Another public defender has agreed to screen Baran's case, and we hope that she or someone else will write a new trial motion. The process will move slowly, and we need help.
Finally, I can only agree with the late Melinda Ward, who told the Court, "I just can't believe that Bernie isn't entitled to a little compassion and fairness and dignity."
Sources for this article include Baran's trial transcript, the transcript of the 1995 civil suit, police reports and parents' statements, interviews with Bernard Baran, and articles in the Berkshire Eagle.
Two books that provided essential information are:
Satan's Silence, by Debbie Nathan and Mike Snedeker (New York: BasicBooks, 1995)
*Jeopardy in the Courtroom, by S.J. Ceci and M. Bruck (Washington: American Psychological Association, 1995).
Donations and inquiries can be sent to:
The Bernard Baran Justice Committee c/o Swomley & Wood 83 Atlantic Ave. Boston MA 02110
You may write Bernie directly at:
30 Administration Road
Bridgewater MA 02324
Bob Chatelle may be reached by email at email@example.com.
A web site is in process at: www.ultranet.com/~kyp/baran.html.
The Witch Hunt State Claims Another Victim: Clairmont
By Carol Clairmont Weissbrod
Edited by Michael Carter, Justice Denied Staff
Background Information About False Accusations of Child Sexual Abuse
In the past few years, the media have given much attention to false allegations of child sexual abuse. Most of the focus of this attention has been on daycare cases. However, since the early 1980s, there has been an epidemic of false allegations against parents. These allegations are mostly against fathers involved in custody or visitation disputes in divorces. My brother, Bruce Clairmont of Pittsfield, MA, is one of these falsely accused fathers. He is serving a twelve year prison sentence for molesting two of his five children -- a crime he did not commit.
Since the late 1970's, there has been a change in the way child custody is decided in divorces. As more fathers seek custody of their children, there has been a proportional rise in false allegations of child sexual abuse against fathers. This has led to what Dr. Richard Gardner has termed the "Parental Alienation Syndrome," and to the "Sexual Allegations in Divorce Syndrome" as described by Dr. Gordon Blush and Karol Ross.
The Parental Alienation and the SAID Syndromes begin with the pre-divorce custodial parent (usually the mother) deliberately denigrating the non-custodial parent. The mother imparts her negative beliefs about the father to the child or children. Many people assume that our memories work like video cameras, accurately recording events as they occur. However, research has shown this assumption to be false. Memories are subject to errors and to change over time.
The memories of children have been found particularly susceptible to change by suggestion. Thus, the child's past positive experiences with the father can be forgotten and replaced with lies and misrepresentations.
As the custody battle ensues, some parents try to present the other parent in an uncomplimentary light to make that parent seem unfit in the eyes of the courts. The mother, as the custodial parent, is in a unique position to enlist the help of the children. Having already alienated the children from their father, the mother may be able to convince the children that he has hurt them in some way. In his book, Ashes to Ashes...Families to Dust, Dean Tong writes that children can be taught to say things which may or may not be true through reinforcement such as verbal responses and encouragement. He points out that children can be easily coached and manipulated when they are dependent on an accusing parent for their needs. Dr. Stephen Ceci of Cornell University and Dr. Maggie Bruck of McGill University discuss the suggestibility of children in their book, Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony. Their studies have shown that children can be led to make false or inaccurate statements about very personally experienced events.
Mothers who falsely accuse their husbands of child abuse share some disturbing characteristics. Psychologist LawrenceSpiegel, in his book, A Question of Innocence, finds that the actions of some accusers stem from severe psychological problems. In the Family Law Commentator, Matthew Miller points out that accusers often become obsessed with punishing the husband and lose sight of the harm being done to the children. Psychologist Deirdre Conway Rand writes in The American Journal of Forensic Psychology that Parental Alienation Syndrome (PAS) can be indicative of severe emotional disturbance in the accusing parent.
The accusations of these mothers are often taken at face value by therapists, attorneys, the police, Child Protective Services workers, and the courts. "Individuals with either PAS or a related malicious syndrome will and do lie! They are convincing witnesses, and their manipulative skills may influence others to follow suit,"state M.R. Walsh and J.M. Bone in an article in The Florida Bar Journal.
Child Protective Services completes the process. The mother reports her suspicions to CPS, who look into the charges. CPS workers are trained to validate, not to investigate, abuse. In his book, False Allegations of Child Abuse: Attorney and Client Desk Reference, Edward Nichols, M.S.W, a former CPS worker, finds that CPS workers are an "army of partially-educated 'protective caseworkers' whose sincere ignorance is only superseded by their missionary zeal to rid humanity of the pedophile who, accordingly, is to be found under every rock." The workers assume that the father has abused the children and seek to prove their assumptions. They do not consider the possibility that the child may have been abused by someone other than the father, or that the child has not been abused at all. The children often initially deny that there was any abuse. But after a period of repeated, suggestive questioning the children come to believe that their father has molested them. The true memories are lost and replaced by the "memories" that have been suggested to the children and reinforced by the mother and others.
Bruce Clairmont -- A Victim of Parental Alienation Syndrome, and more
Bruce Clairmont's story begins in June, 1991, when he and his wife of 18 years, Deborah, separated. At that time, two of the children stated their preference to live with their father. From the onset, Deborah dictated that Bruce have visits with the children only on Sundays between noon and 5:00 PM. Trying to be as amicable as possible, Bruce didn't contest this at first, but it soon became apparent that this arrangement wasn't working.
Because of a fourteen-year age difference between the oldest and youngest child, it was difficult to plan activities that would interest all five children.
When Bruce broached the possibility of taking the children in smaller groups at different times, Deborah refused to consider the idea. That September, she filed for divorce.
On his twelfth birthday in July, 1992, Neal,* the middle child, and his eight-year-old sister, Renee,* were caught in a neighbor's garage, engaging in what could be considered age-appropriate sexual experimentation. (* The children's names have been changed.) That September, Deborah and the children began to see a therapist, Amy Moran. Moran was an unlicensed social worker, right out of school, young and inexperienced. Over the next few years, Moran saw the family two or three times a week.
During this therapy, the incident between Neal and Renee was construed as molestation, and Moran and Deborah made the presumption that "something had happened" between Neal and Bruce.
That December, Renee and Neal alleged that when they were younger and their father was still living with the family, Bruce had touched their genitals while bathing them. Deborah usually bathed the younger children, but Bruce bathed them one night a week when she went out. Bruce freely admitted to having washed their genitals with a washcloth just as their mother and older sister did. Suddenly, Bruce's usual bathing practice was being questioned as inappropriate behavior. I believe that the reporting of the bathing was Deborah's initial attempt to hurt him by showing a normal behavior in a bad light, fabricating a wrong to show that Bruce had molested Neal and Renee.
The Massachusetts Department of Social Services (DSS) began an investigation in January 1993. According to their notes, Neal reported that Deborah called Bruce mean and violent in the children's presence. The children were interviewed and denied that their father had done anything other than bathe them. Later that month, after repeated questioning by Deborah, Moran, and DSS workers Marcia Hickson and Roanne Vecchia, Neal and Renee began to change their stories. Various allegations of sexual abuse were made. Over the next seven months, the stories continued to grow.
In February, DSS advised Deborah to get a restraining order to keep Bruce away from the children. It was only after Bruce was served the restraining order that he learned of the involvement of Moran and DSS in his family's lives.
A Guardian ad Litem was appointed by the court in April. Dr. William Hydon, a licensed clinical psychologist was to interview all family members and others involved to determine what visitation, if any, was advisable.
In late April, several months after receiving the initial reports of abuse from DSS, Pittsfield Police Detective Joseph Collias conducted the first of many interviews with Neal and Renee. The delay was the result of a phone call from Deborah's divorce attorney (a former prosecutor of sex offenders in the DA's office) and from Moran, who said the children needed more time to prepare their statements. Immediately following Detective Collias' first interview of Neal, Collias told Neal he was "holding back." Collias wanted Neal to come back and tell more. Therapist Moran told the children that when they'd "gotten it all out," they could have a celebration.
Although both Collias and Vecchia claimed to be aware of the high probability of false allegations during divorces, they disregarded this in their investigations. Vecchia later admitted that she did not consider suggestibility to be a crucial consideration in abuse cases. In articles published in The Boston Globe and The Berkshire Eagle in October, 1996, Detective Collias disclosed that in 1988, he had recovered "memories" of his own childhood abuse. Since that time, he had become a self-proclaimed "believer of children who come forward to disclose abuse."
"Rarely," he said, "do children concoct stories of abuse." Vecchia's and Collias' statements are disturbing in light of the studies that have found children to be highly suggestible. In addition, many psychologists and psychiatrists have pointed to the strong potential for false allegations in divorcing families, especially when there are custody or visitation issues. In Massachusetts, seventy-three percent of child abuse reports filed in 1991 were unfounded. According to statistics compiled by the National Center for Child Abuse and Neglect and the National Committee for the Prevention of Child Abuse, seventy-nine percent of child sexual abuse reports filed in 1994 were unsubstantiated.
That May, Bruce was summoned to detective Collias' office. Bruce's understanding at that time was that he was being questioned aboutbathing his children, so he waived his right to have his attorney present. It was then that he learned of the new allegations. He emphatically denied ever having abused his children and offered to take a polygraph test, but none was ever given.
Dr. Hydon's report was released in August and was highly favorable to Bruce. Hydon's opinion was that the abuse was extremely unlikely to have occurred, and he recommended that visitation resume. In that report, and during his testimony at the divorce hearing in August, 1996, Hydon noted many things that led him to conclude that the allegations were false. Among them were:
1. Bruce was very much unlike a typical pedophile.
2. There were glaring inconsistencies in the children's stories.
3. The children's stories changed significantly over time. Both children's stories contained identical adult language (like searching the "shelves of my mind"). It appeared that they had been coached.Hydon pointed out that the first reports of a child have been found to be most accurate, and these kids had been subjected to dozens of interviews.
4. The actions that Neal described would be painful, not pleasurable, to an adult male.
5. Neal had a strong incentive to lie to shift the focus from himself to his father. Deborah, Moran, and DSS had together created a climate that would strongly motivate Neal to fabricate.
6. Deborah seemed highly motivated to prevent visitation between Bruce and the children. She was more concerned with Neal telling the story "correctly" than in discovering the truth.
7. Deborah was uninterested in and unconcerned about the
inconsistencies in the children's stories. She seemed more interested in having the allegations validated.
8. Mothers of truly abused children are ashamed to discuss the abuse, and feel guilty about their own failure to protect their children. Deborah talked freely and unashamedly about the "abuse."
9. Deborah had no appreciation of the trauma to which she was exposing the children by allowing repeated questioning by so many individuals. Her motive was to prevent visitation at any cost.
10. Failure to inform the father of the investigations is usually an indication that the allegations are false, and that the mother's motive is to limit visitation.
For reasons not fully understood by us and by Dr. Hydon, he was not called upon to testify at the criminal trial.
Immediately following the release of Dr. Hydon's report, Deborah took Neal and Renee toa pediatrician, Dr. Matthew Sadof, for an examination. It had now been about eight months since Bruce had seen his children, and nearly a year since the last alleged molestation. Sadof found nothing remarkable in either child. A skin tag was reported to be near Neal's anus, not an abnormal finding. In Renee, there was "rimming dilation" of the hymen.
This finding may or may or not be consistent with sexual abuse. Sadof said it could possibly be caused by insertion of something narrow into her vagina, but that it may also appear in non-abused girls. When asked by Sadof, Renee denied having been digitally penetrated by her father. Yet, a short time earlier, she had reported such an incident to Detective Collias.
I see the pediatrician visit as a final attempt by Deborah to "prove" that the children had been molested. Having failed to convince Dr. Hydon, Deborah tried another approach. If she truly believed that Bruce had molested the children, why hadn't she had them examined sooner?
Surely, the incident between Neal and Renee was a likely cause of any genital changes in Renee. One could never know if the changes could have occurred during the eight months since Bruce had seen Renee. In my opinion, these two things alone provided plenty of doubt.
On September 22, 1993, Collias testified to a Grand Jury that Neal had an anal tear upon examination by his pediatrician. At the criminal trial fourteen months later, Collias again testified to the anal tear. On cross-examination, his error was pointed out, but the damage had already been done. Both juries had heard about the nonexistent tear.
The trial began on Tuesday, December 6th, 1994, in Berkshire Superior Court. Our family had studied the information about false allegations that was available at the time, and we shared this with attorney Leonard Cohen. He claimed to be knowledgeable about the studies. We also expressed the need for an expert witness to explain the suggestibility issue to the jury. At first we believed that such an expert would be retained, but later Cohen informed us that he didn't need an expert witness. We were concerned about not having a witness to dispute what the Commonwealth's "expert" would most likely testify.
Our family also disagreed strongly with Cohen's approach to jury selection. Cohen wanted a "blue-collar" (his words) jury because he felt that blue collar people would identify with Bruce and with our family. (Bruce was a project manager with a civil engineering firm, not a blue-collar job.)
During his examination of Bruce, Cohen had Bruce tell about his college education and that of his four siblings. Had Cohen forgotten his strategy of hoping the jurors would identify with us? How would members of that blue-collar jury have identified with people who had college educations?
Our post-conviction lawyer agreed with us that Cohen should have included some college people on the jury. We felt that it would take a certain level of education to see how ludicrous the allegations were.
Some of the jurors frankly looked like destitute people who took jury duty for the free lunch and shelter from the December cold. Some jurors were observed dozing during testimony.
After the guilty verdicts were read, it was obvious to us that these people had absolutely NO understanding of the concept of reasonable doubt. There was enough reasonable doubt to acquit Bruce five times over, yet he was convicted.
Unfortunately, once you've been accused of a sex offense, you are guilty until proven innocent. Jurors and judges alike would rather incarcerate a hundred innocent men than let one possible "rapist" loose on the streets.
Cohen expected the trial to last four days. On the fourth day, the prosecution still had several more witnesses. The prosecution essentially consisted of "piling on" the same disclosures by Deborah, Moran, Vecchia, Collias, and the children themselves. Renee testified that her dad had molested her "just like in the garage." The garage is where Neal "molested" her. Was she confused about who, where, and when?
The prosecution's "expert" witness, Dr. Jeffrey Fishman, gave testimony to explain why the children had staggered their disclosures. However, the jury had no expert to explain why the kids would repeatedly change their stories and ultimately say they'd been molested when in fact they hadn't. At his web site, http://www.accused.com, attorney Patrick Clancy argues that expert testimony about Parental Alienation Syndrome iscrucial to explain why the child would fabricate and that PAS is not something that would be apparent to jurors. According to Edward Nichols, "The side with the best expert testimony will prevail, regardless of the truth or the evidence that supports it."
Attorney Charles Jamieson, writing in Tong's book, concurs that without an expert witness, the falsely accused stands a good chance of being convicted.
Bruce's trial extended into the next week. The prosecution rested midday on Tuesday, December, 13th. At some point during the trial, we learned that Attorney Cohen was going on vacation on Thursday, December 15th. Cohen decided that the trial had gone on long enough and that the jurors were getting restless. He fit his defense, if it could be called that, into the time available.
Many defense witnesses were sequestered during the trial. One, Father James Joyce, Bruce's parish priest, was prepared to testify regarding Bruce's reputation for truthfulness. The judge disallowed Joyce's testimony because Bruce's character had not been attacked at that point. Then later, Assistant DA Ann Kendall cross examined Bruce and challenged the veracity of his testimony. Here was Cohen's opportunity to get Father Joyce's testimony admitted! Cohen failed to take advantage of this opportunity.
The only defense witnesses who testified were Bruce and one of his roommates, our brother Brian. Brian, a divorced father of two girls, was in the house during the times when Bruce's children visited. His daughters visited at the same time. There was a third roommate who was often at home during the Sunday visits. The house is fairly small and there is only one bathroom. Bruce's bedroom door was adjacent to the bathroom door and across from the kitchen. Although Neal and Renee testified that Bruce had molested them in his bedroom, not one of the other five children or two adults present ever saw anything unusual. How could Bruce have molested two children repeatedly with so many people in the house and without causing suspicion? The defense rested at 3:20 PM Tuesday afternoon.
Following closing arguments Wednesday morning, the jury deliberated for about eight hours. The guilty verdicts were returned Thursday morning. Bruce was sentenced to state prison on December 21st, 1994. Bruce's case was unsuccessfully appealed, and he is currently incarcerated. He was approached recently by the classification board at his prison, and was advised he is eligible for parole in early 2000. But, to obtain parole in Massachusetts, a convicted sex offender must admit his guilt and complete a sex offender program. The classification board told Bruce that it was time for him to face reality and get on with his life. He replied that they need to face the realization that not all convicted people are guilty. He plans to serve the remainder of his sentence rather than admit to a crime he didn't commit.
Under a recently passed law in Massachusetts, a sex offender now faces the possibility of lifetime parole upon his release, or worse yet, lifetime civil commitment.
Contact Bruce Clairmont (There is no prisoner number at this facility):
P.O. Box 7000
Northampton, MA 01061
Contact Carol Clairmont Weissbrod by email at CarolW13@aol.com
CHILD ABUSE WITCH HUNTS
Guest writer Lesley Wimberly writes about the topic that most puts Americans on edge -- child abuse. Any normal person is outraged over the abuse of a child. That very outrage, however, can blind the critical faculties of most people, leaving them incapable of rational thought when faced with a person accused of abuse. Ironically, it is when our emotions are most invested in an issue that we should be most careful with the facts. For many years now, facts have taken a back seat, and hysteria has ruled. The toll on American families because of hysteria over facts is immense. Mrs. Wimberly makes the case for sanity and reason in this most important arena where false accusations and wrongful convictions have resulted in needless tragedy for many families. First . . .
An Introduction to VOCAL, NASVO, and Mrs. Lesley Wimberly
In 1973, the Child Abuse Protection and Treatment Act (CAPTA), known also as the Mondale Act was signed into law. This Act set funds aside to states that enacted laws that mandated reporting of suspected child abuse, meted out heavy penalties for those convicted of child abuse, and gave matching funds to agencies that provided intervention, foster placement, and counseling to children labeled as abused or neglected.
By 1979, the federal government had also placed funding caps on all other public social services, except for child protection. This caused a radical shift in social service agencies and personnel, as transfers and hiring to child protection agencies substantially increased. There was no additional funding for specialized training or certification for those who entered the field of child protection. One outcome of this is that due to the unlimited funding for intervention and the complete lack of personal accountability, widespread incidents of false-positive cases began to appear. In reaction to these cases, agrassroots movement began in the form of citizen's groups and VOCAL was one of the first.
VOCAL stands for Victims of Child Abuse Laws -- today an international nonprofit organization dedicated to families, individuals, and children who are victimized by the misuse of child abuse law and policy. VOCAL chapters provide referrals to qualified professionals involved in child abuse and neglect issues, and counsels families and individuals who find themselves impacted by inappropriate and unnecessary government intervention due to false accusations. VOCAL also seeks reform in foster care, as dependent children are the latest and most vulnerable victims of child abuse law and policy, suffering foster care drift and institutional abuse and neglect.
Due to rapid growth, VOCAL chapters throughout the United States individually incorporated within their own state boundaries. NASVO, or the National Association of State VOCAL Organizations, was founded in 1987 to provide a uniform foundation of support, general information, and policy to member chapters.
Lesley Wimberly, one of the original founders of California VOCAL and NASVO, presently serves as NASVO's vice president. As a paralegal and legal consultant, she also serves as the director of NASVO/VOCAL's Special Services Office. The Special Services Office provides direct analysis, paralegal assistance, and referrals to individuals seeking hands-on professional assistance in their cases. She also works with attorneys in client intake, case assessment, legal research and writing, and trial preparation.
Mrs. Wimberly has also served on various advisory boards, such as the California Child Welfare Training Advisory Board, the Child Welfare Strategic Planning Commission, and as an advisor to the Foster Care Committee of the California Little Hoover Commission. She has been an advocate and spokesperson for children and families in child protection cases since 1980 and has provided testimony to numerous state legislatures and in Congress.
Mrs. Wimberly also co-produced and was featured in the VOCAL information video,"Corrupted Innocence: The Making of False Allegations" (1991). She has written numerous articles, and was published in The Backlash: Child Protection Under Fire (Meyers, 1994. Sage Publishing.) Here, she provides her analysis as to why she views today's child abuse hysteria as the "twentieth century witch hunt."
CHILD ABUSE WITCH HUNTS
By Mrs. Lesley Wimberly
Editor, Frank McEvoy
(Note: The witch hunts didn't begin in Salem, but in its suburb, Salem Village. The Essex County Mental Hospital later stood on that site. Marion Starky, in I Devil in Massachusetts, draws the distinction. Evidently, Salem Village was a contentious, gossipy place a lot of people didn't like. Of course, the witch hunts involved more than just Salem Village. Giles Corey was swept up in Andover (he died being pressed to death, so his children would get his property) and Rebecca Nurse in Danvers (who was in her 80s and deaf). She supposedly said, once she figured out what the hysterical girls were saying, "I wonder what sin I am unrepentant of that God has laid me low before mine enemies." -- Frank McEvoy)
To begin to understand why the term "witch hunt" is often used in connection with false accusations of child abuse, I suggest that you read The Crucible, Arthur Miller's play about the Salem Witch-hunts in the late 1600s. It details more than just the hysteria that was born from girls' theatrics (either emotionally or deliberately contrived) that they were possessed and bewitched by those who were unpopular in Salem Village, but points to the political arena of the time. It also demonstrates how law cannot only be bent in the political winds of the time, but also due to the motivation of human greed and ambition.
The threads that weave the fabric of a witch hunt are timeless. They have appeared and continue to appear throughout history and in the affairs of society to this day. The most extreme was the hysteria and witch hunt against Jews in Nazi Germany, spawned not only by politics, economic crisis, and hatred, but used by Hitler to achieve power. The nation's people turned a blind eye and a deaf ear to the cries of the innocent, to achieve their popular and the then politically correct perspective of a "healthier" nation and their hunger to remove from society those who threaten it.
In Nazi Germany, if one stood up for a Jew, or was a friend of a Jew, one was guilty. In Bakersfield, CA, in 1984, a man reported some teenagers running around late at night in an apartment building. After the kids were taken into custody, they accused the man of molesting them, and he was immediately arrested. Several of the man's neighbors were outraged, for they knew him and the kids and knew they had lied to escape punishment for violating curfew. They went down to the police station and made supporting statements for the man. They were arrested for being part of a "sex ring." Similar sex ring cases have emerged throughout the country under the same circumstances, most recently in Wenatchee, WA.
In this "witch hunt," we do not ship the accused off to concentration camps, murder them, or aim at one particular race or ethnic group (although minorities are disproportionately high compared to the general population). What began as a noble movement to bring forth the desperate need of those who have no voice or vote has become vulgarized by political winds, the lack of accountability, the personal ambition and greed inherent in human nature, and the never-ending hunger of bureaucracy for incessant growth. Once our Government allocated funding that virtually had no cap and allowed for unlimited growth in the child protection industry without any accountability, the result was duplicative (and often useless) services, unsubstantiated and irresponsible detection, forced and often unnecessary intervention, and the ever-growing, never-ending warehousing of children. While foster homes have decreased in numbers, the population of foster children has exploded, with little hope of any permanency in their lives. The more recent ASFA (the Adoption and Safe Family Act, once entitled the Safe Adoptions and Family Environment Act, or SAFE) has doomed the foster child population to a doubling in numbers and has moved this part of the system toward inevitable collapse due to its burgeoning numbers alone.
Politicians are certain of election if they make their political stand on saving children, so year after year, they make impassioned speeches and pen irresponsible bills to ensure their careers and their reputations as they wrap themselves in the cloak of child saving. Their careers are nipped in the bud, however, if they attempt to bring about a more balanced system or even whisper about false accusations. The same went for the politicians of Salem Village -- at least until the governor's wife was accused.
Anonymous reporting, much like that in Salem Village (to report suspected witches), in Germany (to report suspected Jews and their supporters), in the former USSR (to report suspected Government dissidents and their supporters), has resulted in an explosion of erroneous and false reports intermixed in the batch with true cases.
False science has abounded to support the suspicion of abuse, rather than science supported by research. Roland Summit's Child Sexual Abuse Accommodation Syndrome (CSAAS) became the bible for detection, intervention, and investigation. Summit never conducted any clinical or scientific research, but only reviewed case files of adult survivors of abuse. In his "syndrome" (really a theory), simply put, if children denied being abuse, they were "in denial" and therefore required "supportive interrogation" until they would disclose abuse. Once an allegation was made, it was to besupported by the interrogator, for to do otherwise would endanger the child further. After all, said Summit, "Children never lie." While such a technique may indeed be successful on a child who was truly in denial out of fear, it is deadly when a child who has not been abused is coerced and forced into complying with their interrogators. Yet, TO THIS DAY, the CSAAS is being used in this country, in spite of Summit'slater statement that his "syndrome" was NOT to be used in investigations. Similar "supportive interrogation" techniques were also used in Salem Village, in Nazi Germany, and in the USSR. Again, once the inquisitors had coerced the desired accusations, the result was considered the "truth," and the entire system of justice that followed that result supported it.
Medical science did not do much better. A group of child advocates sat down at a table in Palm Springs, CA, in the late 1970s and collectively threw out what they believed to be medical evidence of sexual abuse. Out of this meeting, the first Atlas of Child Sexual Abuse was created, published, and used by medical teams, law enforcement, child protection agencies, and prosecutors throughout the world. This was science by consensus -- not by clinical research -- but was used religiously, and the "evidence" held within its pages was used to send hundreds to prison.
Later, Dr. John McCann decided to research more than 300 children who were determined to be a non-abused population and found, much to the chagrin of child advocates and prosecutors everywhere, that 30-80 percent of the medical evidence that had been used for nearly a decade to convict hundreds of alleged child molesters showed up in non-abused children. Many of those convicted under this false evidence still remain behind prison walls to this day. But do we as a society care? No. To care about those convicted -- wrongly convicted -- is discouraged as being sympathetic to the witch of our time, the child abuser. Such "science" and reaction to truth also prevailed in Salem Village, where physicians and ministers based the hysterics of preteen and teenaged girls on the presence of the devil. Witches were to blame, and children never lie. Anyone who stood up in support was immediately labeled as a witch or the devil's minion as well, so the truth was silenced in Salem Village as effectively as it is today.
The witches of Salem were inevitably those in society who were not liked or had land that was coveted by a neighbor. In today's witch-hunt, the poor, single mothers, minorities, and divorced dads top the list for those accused. Ex-spouses can achieve instant sole custody if an allegation of abuse is raised. In today's witch hunt, if one wants to inflict misery or revenge on another, one only needs to report them anonymously.
In today's witch hunt, children are now aware that they need only report their parents, teachers, or foster parents for abuse if they resent discipline or encounter a refusal to allow them to do as they please. Unfortunately, without guidance and structure, our children can never learn self-discipline. Small wonder we have the problems we do as in Columbine High School and elsewhere in our public schools. I might also add, that since Sweden laid down strict laws regarding child abuse and against parental discipline, their juvenile crime has also skyrocketed. It is becoming well known, and sadly too late, that the state makes a lousy parent.
All this is unfortunate indeed, because there exists the sad reality that some children ARE abused, neglected, and desperately need intervention and protection. While they often languish with no hope, we squander billions of dollars earmarked for the truly abused chasing the witches of our own errant, self-aggrandizing, and misguided beliefs.
A good beginning would be to first admit and accept that false accusations do occur. The line between the child savers and the critics must be withdrawn. We must WORK together to establish accountability, professionalism (training and certification), scientifically sound investigation and detection practices, and laws outlawing deliberate and malicious false accusations (enforced).
To hastily enact law and policy based on emotionally based reaction is to court disaster -- on either side of this issue. We need to also embrace the adage, "first, do no harm," and WORK at creating a better system for children and families, rather than following our nasty habit of band-aid, quick-fix legislation that creates destruction and suffering for so many and politicizes what should be based on fact and truth.
Massachusetts Witch Trial: Cheryl Amirault LeFave to Return to Jail
By Christopher M. Newton
"I'm still trying to process the injustice. I can't" -- Cheryl Amirault LeFave
On September 15th Cheryl Amirault LeFave will return to jail for a crime she did not commit. On the 18th of August the Massachusetts Supreme Judicial Court (SJC) overthrew Superior Court Judge Isaac Borenstein's 1998 ruling which ordered a new trial for LeFave.
In 1984 Gerald Amirault, Cheryl's brother, changed the diapers of a four-year-old student at the Fells Acres Day School in Middlesex, Massachusetts, where he, Cheryl, and their mother, Violet, worked. The child was sent home with new clothes and a bag containing the soiled garments. Five months later the child's mother accused Gerald of sexually molesting her child.
This initial accusation led to a wave of hysteria. Parents, social workers, police, and psychiatrists repeatedly interrogated the Fells Acres students in a state of panic. Suggestive interviewing tactics led to more, increasingly fantastic, accusations. On January 23, 1985, Gerald,Cheryl and Violet were indicted by the Grand Jury on 18 counts of abusing 8 (later 10) children. Gerald Amirault was found guilty in 1986. Cheryl and Violet were found guilty in a separate trial in 1987. Cheryl has served over 8 years of an 8 to 20 year sentence. She would be eligible for parole if she admitted guilt, but she maintains her innocence.
In 1995 Massachusetts Superior Court Judge Robert A. Barton overthrew Cheryl and Violet's convictions on the grounds that the Amiraults had been denied their Sixth Amendment right to confront their accusers. In the 1987 trial, the children who testified were seated so they faced away from the accused. The SJC overturned Barton's decision in 1997. Judge Barton publicly recused himself from the case after the SJC's ruling, stating that the Amiraults "did not receive a fair trial and justice was not done."
In 1998 Judge Borenstein ordered a retrial on the basis of new scientific evidence that shows that suggestive interviewing techniques can and will corrupt the testimony of children.
"In today's decision this Court does not suggest that the serious errors committed in the investigation of this defendant were intentionally done in bad faith. Rather, overzealous and inadequately trained investigators, perhaps unaware of the great dangers of using improper interviewing and investigating techniques, questioned these children in a climate of panic if not hysteria, creating a highly prejudicial and irreparable set of mistakes.
"These grave errors led to the testimony of the children being forever tainted. The only allegations made by child witnesses occurred after they were subjected to the admittedly suggestive interviews and investigative techniques as well as inappropriate, even if understandable, influence by their families. Moreover, neither behavioral symptoms or physical evidence which may be consistent with child sexual abuse were revealed until after the children and their families were subjected to these improper interviewing and investigative techniques.
"These alleged symptoms were only discussed after the families were overwhelmed by the panic, hysteria and media attention that snowballed this case into national headlines and widespread concern about ritualistic sexual abuse of children."
Judge Borenstein concluded: "This Court is left with an abiding conviction that justice was not done."
Although Borenstein did not accuse investigators of bad faith we may come to another conclusion if we examine the evidence. Susan Kelley, a pediatric nurse, questioned children with a carrot and stick method. She used Bert and Ernie dolls to cajole the children into making accusations and anatomically correct dolls to demonstrate the difference between a "good touch" and a "bad touch." Her behavior rewarded accusations and discouraged denials. If the child denied any abuse she proceeded as if he or she had given an incorrect answer and then re-asked the question until he or she got the "right" answer.
Children alleged that they had been abused by a "bad clown" in a "secret room" or a "magic room." There is talk of abuse at the hands of robots, elephants, and lobsters. One child claims to have been molested in a hot air balloon. Another reports that he was tied naked to a tree in front of the school while Cheryl mutilated a squirrel. Although no teacher or teacher's aide at the Fells Acres Day School testified to noticing any signs of abuse, the children's outlandish testimony landed Gerald, Violet and Cheryl Amirault in jail.
Dr. Maggie Bruck, and her colleague, Stephen J. Ceci, published Suggestibility of the Child Witness: A Historical Review and Synthesis, in 1993 and Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony in 1995. In 1998,Bruck, an experimental psychologist, testified that the interviewing methods used by Susan Kelley and others were highly suggestive and that the children's testimony was "unreliable" and "highly, highly suspect." Judge Borenstein ordered a new trial for the Amiraults based on the research of Bruck and her colleagues. Borenstein ruled that the childrenwould not be allowed to testify at the new trial because "they have been subjected to very serious and repeated impermissible interviewing and investigative techniques and no independent evidence exists to support their claims. Thus their testimony has been forever rendered unreliable."
On August 18th the SJC, in a unanimous ruling, overturned Judge Borenstein's decision. The Court ruled:
"Undoubtedly recent research has broadened the scientific community's understanding of the effects of suggestive questioning. We are faced, however, with the conflict between the constantly evolving nature of science and the doctrine of finality . . . to hold otherwise would provide convicted defendants with a new trial whenever they could find a credible expert with new research results supporting claims that the defendant made or could have made at trial."
In the face of overwhelming evidence that the Amiraults were convicted on the basis of false testimony the SJC chose to stand by its past decisions rather than admit it may have made a mistake. The implications are mind-boggling. Newly discovered evidence is irrelevant no matter how irrefutably it proves a convict's innocence. Apparently the interests of judicial "finality" override the rights of the innocent and an entire nation's right to know the complete truth of a case.
We are faced with the conclusion that the SJC and the prosecutors involved in this case are trying to save face. Many prosecutors have used the Amirault case as an opportunity to advance their careers. Scott Harshbarger, the original prosecutor, has gone on to become the Massachusetts Attorney General. He narrowly lost a bid for Governor in 1998. Rather than admit he may have railroaded the Amiraults he absolves himself of guilt by putting the responsibility on the jury. Harshbarger maintains that the Amiraults were convicted by "two juries of responsible Massachusetts citizens."
Larry Hardoon, a former prosecutor in the Amirault case, has gone on to specialize in child molestation cases. Hardoon has said to the Boston Globe that society should be "willing to trade off a couple of situations that are really unfair, in exchange for being sure that hundreds of children are protected." Harshbarger makes a similar argument: To support the Amiraults is to "absolutely negate that child abuse occurs." This "save the children" stance is driven solely by politics. It is intended to make Harshbarger and his cohorts look like defenders of the good when in reality they are continuing to press the hysteria button to hide their mistakes. The fact remains -- they have put innocent people in prison to further their careers.
After the SJC's ruling, Judge Borenstein ordered both the defense and the prosecution to appear in his court on August 30th. It was thought that Borenstein intended to publicly recuse himself from the case in the same way Judge Barton did. Rather than face further embarrassment, the SJC blocked this order.
It was revealed on Wednesday, September 1st, that Judge Borenstein had actually intended to persuade current Middlesex District Attorney, Martha Coakley, to reduce LeFave's sentence to time served. As it stands Cheryl Amirault LeFave can either apply for clemency from Massachusetts Governor Paul Cellucci, or seek parole, which she has been repeatedly denied, no doubt because she refuses to admit guilt for what she did not do.
On September 1st also, LeFave's lawyers, filed a motion for reconsideration by the SJC, acknowledging that it's a "longshot." Of the request for a commutation of sentence or pardon, Governor Cellucci not only said he would consider that request, but give it "careful consideration." Although James Sultan, LeFave's attorney, has not yet decided if an application for commutation or pardon would be submitted, he was glad to hear of the governor's willingness to consider it.
The new motion may delay LeFave's fate, although as of now Cheryl Amirault LeFave will return to MCI Framingham on September 15. Gerald Amirault has remained in prison since his conviction in 1986. Violet Amirault passed away in 1997.
The Undisputed Champion of Capital Punishment
By John McLemore
Edited by Anne Good, Justice Denied Staff
Texas is closing out the century with a flourish of state-sanctioned executions. With twenty-two already posted by the beginning of September, the Lone Star State is just slightly behind its record-breaking pace set in 1997. By this time in 1997, twenty-four inmates had been put to death. By the years' end, thirty-seven death row inmates were strapped to a gurney and executed by lethal injection. The Texas killing machine was thrust into high gear and the state began executing death row inmates at an unheard-of pace. Since the execution of Richard Brimage Jr. on February 4, 1997, the injection machine has been running at full throttle, carrying out seventy-eight state-sanctioned executions, by far the most in US history.
The thirty-seven Texas executions in 1997 accounted for exactly one-half of the seventy-four executions nationwide. These chilling numbers prompted the US Supreme Court to keep an eye on the state's use of the death penalty. In October of 1997, four of the nine Supreme Court justices issued a warning: they would be carefully monitoring how the state lets juries chose between life and death sentences.
The reason for the increase in Texas executions is easily explained. All were put on hold in 1995, when death row inmate James Davis challenged a new Texas law intended to speed up the appeals process for condemned killers. "Once his appeal was shot down, it was like a logjam being broken in the 5th Circuit Court of Appeals," said Dr. James Marquart of Sam Houston State University in a 1997 interview.
Marquart, a Criminal Justice professor and nationally respected authority on capital punishment, predicted the pace would slow as soon as the backlog of appeals clears up. "The fascination with all of these executions is that they are such a rare event. Back in the 1920s, this would not have drawn near the attention it is today," said Dr. Marquart. Marquart's prediction was correct. The following year Texas executed only 20 inmates, a 46% reduction from the previous year. This number was still good enough to take first place nationwide and with the high profile execution of Karla Faye Tucker, Texas stayed in the world spotlight and hung on to its title of the free world's leading executioner.
So far, in 1999 the Texas killing machine has rebounded: Texas has already surpassed 1998's total with more than twenty executions. With several more scheduled for 1999, The Lone Star State will no doubt head into the new millennium as the undisputed champion of state-sanctioned executions.
Over the years there have been some pretty good challenges, but the Texas machine has withstood almost all comers. The Board of Pardons and Paroles has never granted a reprieve. The Governor has, but only once, to serial killer Henry Lee Lucas. Lucas, a one-eyed drifter who admitted to killing his own mother, had been sentenced to die for the highly publicized "orange socks murder" in Williamson County more than a decade ago. There was, in the Governor's mind, a reasonable doubt as to whether Lucas actually committed the murder. Even though Lucas' death sentence was overturned, his conviction was not. He remains in prison for life.
Most are not as fortunate as Lucas (if you consider spending the rest of your life in prison fortunate). Numerous death row inmates have had cases with more reasonable doubt than Lucas' case, yet they were still executed. One such unfortunate inmate was David Wayne Spence, a high school dropout from Waco, Texas.
Spence was executed April 4, 1997, after being convicted twice of brutally killing three teenagers at a popular lakeside park in Waco. Many, including the Waco Police Department's lead investigator on the case, believe Spence was not the killer and was unfairly convicted. "The evidence just wasn't there," says former Waco Police Detective Ramon Salinas. "I still don't think the real killer or killers were caught."
In July of 1982, three teenagers, Kenneth Franks, JillMontgomery and Raylene Rice, were brutally stabbed to death. Prosecutors successfully argued that Spence was hired by Muneer Deeb, a Jordanian convenience store owner, to kill one of his employees. The theory was that Spence mistook Jill Montgomery for the employee. Deeb was also convicted of the murders and spent eight years on death row before his case was overturned on appeal. He was acquitted in a retrial.
Spence was not so fortunate. He died with a significant number of unanswered questions and new evidence surfacing almost daily that indicated he may not have been the killer.
Among the unanswered questions: what about the human hairs found on the victims at the crime scene and sent to an FBI lab for analysis? The results indicated that the hairs did not match any of the victims, nor did they match Spence or his two alleged accomplices.
The most recent evidence to surface pointing to Spence's innocence is a blood-spatter analysis, which shoots crater-sized holes in the prosecution's theory regarding where and how the murders took place. The prosecution argued that two Hispanic males, brothers Gilbert and Tony Melendez, assisted Spence in the murders. The Melendez's were easily persuaded to testify against Spence in exchange for two life sentences (one count of capital murder still hangs over their heads in the event that they consider recanting their stories).
Risking the possibility of being tried for the murder and receiving the death penalty, both Gilbert and Tony now claim they lied about their involvement. "We were told we didn't stand a chance. We were told we would get the death penalty. We were also told we would make parole in eight to ten years," claims Gilbert, now in his thirteenth year behind bars.
At Spence's second trial, the Melendez brothers testified that the teenagers were killed at Koehne Park and then transported in a pickup truck around Lake Waco and dumped in a remote area of Speegleville Park. The new blood-spatter evidence, which was a relatively unheard-of science at the time of the murders, indicated that the teenagers were killed where they were found, contradicting the testimony of the brothers.
Retired Oklahoma City Police Captain Tom Bevil did the analysis. Bevil, considered one of the foremost US authorities in blood-spatter analysis, studied the science at London's Scotland Yard. After closely reviewing crime scene and autopsy photos, as well as the autopsies themselves, Bevil concluded that the three teens were killed precisely where they were found. This makes perfect sense to Detective Salinas. "No blood was ever found at Koehne Park. In a crime where the victims have been stabbed up to 21 times each, you would expect to find at least a drop of blood somewhere in the area," Salinas says.
Bevil based his findings on several details: "There were no changes of blood flow patterns visible in any of the photographs. Had the bodies been thrown into the back of a pickup, driven around the lake, pulled out and then dumped, you would expect to see some changes in the direction the blood traveled on the bodies."
Bevil also noted that no intermingling of blood was reported in the autopsies. Had the bodies been piled on top of each other in the back of a truck, as alleged, Bevil believes it highly probable that at least one of the victims would have bled on one of the others.
Bevil's most substantial piece of evidence, however, came in the form of what he calls a "blood froth cap." A blood froth cap, according to Bevil, is a white foamy secretion that is emitted through the mouth when the lung has been punctured. It is emitted at or very near the time of death. "A blood froth cap can be seen in one of the crime scene photos laying next to the head of Raylene Rice," Bevil says. "They are very fragile, so it is highly unlikely that it would be present if she were killed somewhere else."
Further clouding the issue of Spence's guilt is the Laurel and Hardy-like testimony of his two alleged accomplices. Gilbert Melendez gave no fewer than five statements to police before testifying at Spence's trial, with each statement differing dramatically from the previous. "I had no idea what I was talking about," Gilbert recalls. "I would give a statement, the cops would say it couldn't have happened that way, so I would change it." The most obvious example of Gilbert's fabrications are his recollections as to what vehicle was used to transport the lifeless bodies. In his initial statement, Gilbert claims they used Spence's gold Chevy Malibu to carry the bodies. After it was learned that Spence had sold the Malibu three weeks before the murders, Gilbert amended his story to say they used Spence's white station wagon. After a complete examination of the station wagon failed to turn up any trace evidence of the crimes, Gilbert changed his story again, this time claiming his own 1963 blue pickup truck was used. It has since been learned that the pickup was in the shop the night of the murders with three flat tires and a broken ignition.
The Melendez brothers only testified at Spence's second trial. A conviction was secured in the first trial without eyewitnesses. Instead, the State relied heavily on six inmates who testified they heard Spence make incriminating statements about the Lake Waco Murders while in jail.
Since the trial, several of these witnesses recanted their stories, claiming they gained information about the crimes through authorities. In exchange for their testimony, all claim they were given special privileges while incarcerated in the McLennan County Jail. While entirely possible, it would seem highly unlikely that these inmates would be lying now, especially since they are admitting to perjury.
The State's most critical evidence against Spence came in the form of expert forensic dental testimony. Dr. Homer Campbell testified that a dental mold of Spence's teeth matched what he identified as "bite marks" on the body of Jill Montgomery. This was the only piece of physical evidence ever presented against Spence.
In 1992, an adjunct law professor at the University of Texas commissioned a dental study of his own. Raoul Schonemann, who took up Spence's appeals, found it odd that the autopsy report did not indicate any bite marks being present.
Schonemann sent the exact evidence used by Dr. Campbell to five leading dental experts, with credentials ranging from FBI Academy instructor to State Police Dental Expert to head of dentistry at a major university. All the experts participated in the study without knowing any of the circumstances surrounding the Spence case. All five experts concluded that there were no bite marks evident on the bodies of the victims. Worse, if there were bite marks, there would be "no way with any degree of scientific certainty" that a match could be made. Yet, several of the jurors cited the bite marks as the single most convincing piece of evidence against Spence.
In an ironic twist, Spence's mother, Juanita White, was murdered in 1986. What makes her death so suspicious is when it occurred. White received a letter in February of 1986, written by one of the inmates who testified against her son. In the letter, inmate Robert Snelson claims he lied at Spence's trial. Ms. White turned the letter over to Spence's attorney, Russ Hunt, who in turn notified the Waco Police Department. On February 28, 1986, an inter-office memo was released throughout the police department detailing the letter. Juanita White was brutally murdered in her home the following day.
The night after her murder, White's house was broken into a second time. Official police reports indicate that "nothing of value was stolen from the house," but that several boxes of Ms. White's personal papers had been dumped on her bed and "gone through as if someone had been searching for something in particular."
With no eyewitnesses and no physical evidence tying them to the crime scene, two black males were quickly convicted of Juanita White's murder. In an eerie replay of Spence's first trial, the State used inmate testimony and the same forensic dental expert to secure the convictions against these two unfortunate men.
In an interview shortly before his death, Spence said, "It's not about justice anymore, it's about politics. They just want to kill me and close the book on this case." The book is closed for Spence but there are others like him on death row right now awaiting their final chapter.
Hank Skinner, Death Row Inmate #999143
Thirty-fiveyear old Hank Skinner also sits on death row in Texas for a crime he claims he did not commit. Like Spence and Kelly, there is strong evidencebacking up his claims.
On New Year's Eve, 1993, Skinner allegedly murdered his girlfriend and her two sons. Clinical reports indicate Skinner was nearly comatose at the time of the murders from a near-lethal mixture of Codeine and Vodka. Other physical evidence also casts doubt on Skinner's guilt. The medical examiner found that his girlfriend, forty-year-old Twila Busby, had been strangled prior to her death with hands strong enough to leave permanent indentations in her flesh and to inflict bone fracture. Therefore Twila's killer would need to be a person of immense manual strength. At 5'9" tall and weighing 140 pounds, Hank Skinner is somewhat diminutive in stature. Even more telling, Skinner is severely handicapped. An accident caused severe nerve damage and a 50% tissue loss in his right hand. Twila's oldest son, twenty-two year old Scooter, was also killed that night. Scooter stood 6'6" and weighed 265 pounds. It is unlikely that Skinner could have overpowered the massive young man.
Add to the equation that Skinner had a blood alcohol level of .2 -- more than twice the legal limit -- and a .44 grams Codeine per 100 ml. blood level, and it becomes far fetched to picture Skinner overpowering Scooter in that condition -- or even Twila for that matter.
At his trial, it was never brought out that the two alleged murder weapons could not be traced to Skinner. A blood-covered pick ax handle and a blood-covered knife were found at the crime scene and taken into evidence. Bloody fingerprints on the knife did not belong to Skinner.
Blood and skin were found under the fingernails of Busby indicating she may have scratched her attacker while attempting to fight him off. Tests were never run on the samples and therefore never compared to Skinner's blood type.
Skinner's claim of innocence has attracted interest from a local church in Pampa, Texas, a small town located 52 miles east of Amarillo. The Reverend Albert Maggard believes Skinner was an easy patsy for the Pampa Police Department and The Gray County Sheriff's Department. "Skinner turned up on the doorstep of a neighbor's house a short time after the murders. We believe that he was helped out of the house by Scooter, who was found dead on the porch of another neighbor's house," says Rev. Maggard.
Andrea Joyce Reed, owner of the house where Skinner was found, later became one of the state's key witnesses. In a recently signed affidavit, Reed states that her testimony was false. "On the night of the crime, Mr. Skinner was unable to stand and I had to practically carry him wherever he went in the house," Reed says.
As to why she lied, Reed claims, "After Mr. Skinner was arrested and I was taken to the police station...it became apparent to me that the officers thought I had some involvement in the crime itself. Several comments were made to me that I could be arrested and charged with being an accessory to capital murder after the fact, and for harboring a fugitive. Officers were constantly questioning me as I was giving my statement, which resulted in ameliorations of the facts of what actually occurred that night. Things were suggested to me and I complied, out of fear of arrest and the police taking my children away, which was mentioned several times." Reed went on to say, "At trial I stated that, in my opinion, he was capable of committing the crime with which he was charged. The truth is that, in my opinion, and as a matter of fact, he was incapable of committing any physical act against any person. He could not even use the bathroom facilities on his own. I had to hold him up and help him."
Darlie Routier, Death Row Inmate #98096871
Perhaps Texas' most famous death row resident is Darlie Routier, a suburban housewife convicted of brutally stabbing her two young sons to death. Ms. Routier was convicted without an eyewitness, a confession or any physical evidence linking her to the crime. She herself was stabbed and her throat was cut. After a lengthy surgery, Routier remained in ICU for 24 hours. After reading the trial transcript this author came to the conclusion that she was not only innocent but that she had been convicted solely by character assassination. The jury was swayed emotionally by a very slick prosecutor.
It was alleged that Routier killed her two sons because the family was suffering financially. It was shown in court that the family would collect from two life insurance policies taken out on the boys. What apparently was overlooked was the fact that the life insurance policies were simple burial riders that did not even cover the cost of the funerals. Also overlooked was the fact that Routier's husband, Darin, was insured for close to $800,000. Had money been the true motive for Darlie Routier to kill, it seems far more likely that she would have killed her husband for $800,000 instead of her two sons for a collective $10,000.
Bloody fingerprints were found at the house that did not match Routier or any member of her family. The importance of this seems to have escaped the jury. What did not escape the jury was a video tape of Routier spraying silly string at the grave of her son Devon, who would have turned 7 just days after his murder. The jury asked to view the tape several times during deliberations. How a person grieves should not be taken into consideration as to their guilt or innocence.
The chilling 911 tape of Routier's call for help was altered by the prosecution. Her statements were professionally taken out of context and played separately for the jurors. A crude edit has been discovered on a copy of the 911 tape provided to the defense. The actual call reveals a frantic and hysterical Darlie Routier making a passionate plea for help.
Perhaps the biggest piece of evidence pointing to Darlie's innocence is the simple timeline that can be constructed around the events prior to and just after the murders. The timeline hinges on the life expectancy of Damon, Routier's youngest son, who was still alive when paramedics arrived. The State's medical expert testified that with the wounds he suffered, Damon could have lived no longer than nine minutes. The State's blood expert testified that Darlie was cut before the two boys.
The 911 call itself was 5 minutes and 44 seconds (5:44) from the time the operator answered to the time the call ended. The call was terminated when the first police officer arrived at the scene and secured the area before allowing paramedics to enter the house. The paramedics testified that they waited no more than two minutes before entering. They treated Damon for approximately one minute before he died in their arms.
If the 911 call lasted 5:44 and it was another 2:00 before the paramedics entered the house, that puts Damon's life expectancy at 7 minutes 44 seconds, provided he was stabbed within one second of the call being placed (5:44 + 2:00 = 7:44). If he lived one minute during treatment, Damon's life expectancy is at 8:44. The medical examiner testified that he could have lived as long as 9 minutes. That leaves 16 seconds for the stabbing before the 911 call was placed. That seems unlikely but it is possible. What makes it impossible is a piece of evidence found by police in the alley behind the Routier house. A sock with the blood of both boys was found about 75
yards down the alley. How did it get there? Darlie only had 16 seconds to commit the murder before making the 911 call if Damon lived a full 9 minutes. There is no way she could have stabbed both boys, cut her own throat, hopped a six foot fence, run 75 yards down the alley, dropped the bloody sock, run back to the house and called for help in 16 seconds or less! It just could not have happened that way.
Although Darlie continues to stand by her husband, many suspect he may have played a role in the killings. Millionaire philanthropist, Brian Pardo is bankrolling Darlie's appeal. Pardo believes Darlie was the intended victim and Darin was involved. There is evidence supporting Pardo's theory. Darin was in debt. He was behind on his mortgage, credit cards were over the limit, he owed the IRS several thousand dollars, and a local bank turned him down for a loan just days before the murders. Sources close to the family indicated that Darlie and Darin were having marital problems. Further suspicion is cast when reviewing Darin and Darlie's sworn police statements. Darin claimed he ran downstairs with his pants on and his glasses off. Darlie stated Darin had his glasses on but was in his underwear.
The final piece of evidence for Pardo is a failed polygraph test. After backing out of several scheduled tests, Darin finally took one on May 22, 1998. According to the examiner, he failed four critical questions three separate times. To the question, "Did you, yourself stab Darlie on June 6, 1996?", Darin's answer of "no" was deceptive. To the question, "Can you name the person that stabbed your sons?" Darin's answer of "no" was also found to be deceptive.
"I believe Darin was involved," says Pardo. "There is certainly more evidence pointing to Darin as the most likely suspect than there is pointing at Darlie. There is no evidence, in my mind, pointing to Darlie."
"I did not kill my babies. This has been the biggest nightmare," says Darlie Routier. "Not only are two of my sons taken from me but I can't even hold my only living child. They have taken everything away from me and now they want my life."
The Catholic Bishops of Texas called for a public outcry in opposition to the death penalty. "We implore all citizens to call on our elected officials to reject the violence of the death penalty and to replace it with non-lethal means of punishment." The Bishops said in October 1997, "As religious leaders, we are deeply concerned that the state of Texas is usurping the sovereign dominion of God over human life by employing capital punishment for heinous crimes." The Bishops' statement and outcry has done little if anything to slow the Texas killing machine. It remains the undisputed heavyweight champion of capital punishment.
About the Author
John McLemore is a former investigative news reporter. He has received numerous awards including a Dallas Press Club Katie Award and several Associated Press Awards for investigative journalism. He has been nominated for an Emmy Award for his role in covering the Branch Davidian Shoot out at Mt. Carmel. Caught in the crossfire between ATF agents and Branch Davidians for over two hours, McLemore and his photographerwere able to do several live reports and capture on tape the graphic video seen by millions. McLemore's work has been mentioned on Dateline NBC, Hardcopy, The New
York Times and several other publications.
The article below is based on information we had before we were updated. We now understand that the Jeff Dicks Medical Coalition responded to Jimmy Dennis' need, putting pressure on the administration to treat him. As far as we know this call to action solved the problem.
Prison medical neglect is reaching epidemic proportions. As we advocate for those who seek to prove their innocence, we run squarely into the problems all prisoners have. Among the worst is Medical neglect, a form of passive cruelty. Ironically, prisons don't seem to understand that letting AIDS, tuberculosis, hepatitis, and other infectious diseases run rampant behind prison walls will take a toll on the larger society coming in contact with those inmates. If we care about ourselves, we must make sure that all prisoners receive good medical care. At Southern Nevada Women's Correctional Facility, one dentist comes for only 5 hours a week to deal with the dental problems of 540 women. Some prisons don't even get that much. This
severe problem deserves your attention. If you want to make a
difference, we can put you in touch with groups that are trying to bring reform to this critical area. People have died, and die daily because of the neglect inflicted as one more cruelty against prisoners. Help ... for your sake, and for the sake of this country's health.
Jimmy Dennis: Wrongly Convicted, but Now a Medical Neglect Victim too
Jimmy Dennis, once a promising young Rhythm and Blues
singer, is currently on death row battling severe pain and medical neglect. (His story originally ran in Volume 1, Issue 5 of Justice Denied.)
In 1991, James A. Dennis was charged with the high-profile shooting of 17 year-old Chedell Williams outside of Philadelphia's Fern Rock Subway Station. Two unknown assailants (the state maintains Jimmy was one of them) attacked Chedell Williams and her friend, Zahra Howard, as they were buying transit fares at Fern Rock Station. Chedell was shot and her earrings stolen in broad daylight in mid-afternoon.
Due to racial tension and the shocking nature of the crime, the Philadelphia police department was determined to arrest someone.
There was no forensic evidence linking Jimmy to the crime. In fact, at trial the prosecutor showed a button that was ripped off Chedell William's clothes during the struggle with the shooter. Jimmy turned to his attorney, Mr. Mandell, and asked whose fingerprints were on the button and asked if it had been tested. Mr. Mandell said they knew the prints weren't Jimmy's, so who cares? Jimmy said he cared, because the prints would be the killer's. Mandell didn't say anything in court and also didn't ask for a test. It is procedure to automatically conduct such tests and examinations where evidence exists in a case of this nature. The tests obviously did not support the conclusions the police and the district attorney wanted the jury to draw. If the tests didn't support the prosecution, then they must have supported the defense, but Jimmy will never know because of Mr. Mandell's lack of proper representation.
All eyewitness accounts said the shooter was a big guy between 5'10"and 6' tall, and was a very dark-skinned black male, weighing approximately 200 pounds. In contrast, Jimmy has a much lighter complexion than all witnesses described, weighed only 125 pounds, and he stands only 5'4" tall. (His friends were known to call him "Shorty.")
At the time of the murder, Jimmy was in a completely different area of Philadelphia -- on a bus across town. His father saw him get on the bus. That bus runs nowhere near the scene of the crime. Many witnesses were not called and many avenues were not pursued, so the police could do what they wanted to make reality fit their version of the facts.
Telephone records that were not investigated would have proved Jimmy was elsewhere when the murder happened. The records would have shown that at the time of the crime Jimmy was on the phone with his wife. There are many important witnesses, and police never interviewed those who could corroborate and support Jimmy's innocence.
In his closing argument the prosecutor stated: "Mr. Mandell said there is no motive, why does there have to be a motive?" In this way, the prosecutor simply bypassed the fact that Jimmy had no motive, no weapon, no linking evidence whatsoever.
The recent July 1998 Pennsylvania Supreme Court decision in which the majority denied Jimmy a new trial was the closest one in years, 4-3. Three Supreme Court judges thought Jimmy should get a new trial due to prosecutorial misconduct. Although that decision did not win a new trial for Jimmy, it does give him a cause for hope. Perhaps the next time it will be a majority decision and he will get the new trial he deserves.
While this is good news for Jimmy's case, he is now facing a situation that plagues hundreds of thousands of prisoners across America -- Medical Neglect.
Jeff Dicks, whom we profiled in the first Issue of Justice Denied, died in May due to medical neglect. James Anderson, a man we hope to profile in a future issue, has been slowly going blind in his one remaining eye due to a typographical error in his chart that the prison officials refuse to correct.
Our tax dollars fund housing and care for inmates. That money is supposed to provide timely medical treatment for those in need. Apparently our money is being spent elsewhere. Prisoners are dying of disease and disorders within the system. For example, cancer is progressing to advanced, often fatal, stages due to lack of treatment. There is no consistency to giving mentally ill and other patients medications to control violent outbreaks. Hepatitis, Tuberculosis and other diseases run out of control due to unsanitary conditions and lack of proper cleaning supplies in the kitchens. Inmates with AIDS are improperly cared for and allowed to suffer terribly. All so that the state can save a buck by not providing proper medical care.
In current physical and psychological conditions, any sentence to prison is a death sentence. Most prisons have an eight-week waiting list to even see the dentist. Some prisoners have scurvy from the lack of citrus in their diet because someone is afraid they will make wine. This lack of medical care is a form of torture, not only to the inmates but also to the millions of citizens connected to the inmates through family ties.
Jimmy Dennis' medical condition -- mentioned in the original story we published -- has worsened. After months of pressure, he was taken to an outside hospital where he received an ultrasound. He has gallstones in his gallbladder. This would not have been life threatening if his condition had been treated years ago when he first asked for medical attention. The lack of treatment has worsened his condition to the point that it looks as if he may have developed an infection which is now quickly spreading to the rest of his body. Jimmy's symptoms -- great pain, no bowel movements for over 3 days after having constant diarrhea and vomiting before then, a stabbing pain and a sharp burning sensation, etc. -- indicate complications like biliary colic and Cholecystitis.
Jimmy is concerned for his health, and literally feels he will die in one to two weeks if no one attends to his problem. Jimmy asks that all his friends and supporters call the prison as soon as possible to speak to the following people:
Charles Rossi (medical). Dr Falor. Superintendent Blaine. All may be reached at SCI Greene by telephone: (724) 852 2902.
Please make these officials aware of your concern and demand that Jimmy immediately receive proper care, not in 3 or 4 weeks. Please let them know that if Jimmy dies or his condition worsens while under their care, his supporters will pursue legal action against them.
Editor's Note: This is yet another case in which a real murderer went free while an innocent person served time in prison.
Ellen Reasonover called the police on January 3, 1983 to report information she thought might help catch the murderers of a gas station attendant. She soon found herself charged with the man's murder and she was tried and convicted. A lone juror refused to vote for her execution so she was sentenced to 50 years in prison without the possibility of parole. After being imprisoned for 16 years, a federal judge threw out her conviction on August 3rd as being "fundamentally unfair" and ordered her released.
Good Samaritan Freed 16 Years After One Juror Saved Her From A Death Sentence
By Hans Sherrer
Ellen Reasonover has proclaimed her innocence from the time she was arrested for the brutal January 2, 1983 murder of James Buckley. He was shot seven times while working as a gas station attendant in Dellwood, Missouri. In December 1983 Ms. Reasonover was tried and convicted of his murder.
During the penalty phase of her trial a lone juror refused to vote for Ellen's execution and thus prevented the unanimous vote necessary for the judge to sentence her to death. Instead, the trial judge imposed a sentence on Ms. Reasonover of 50 years imprisonment without the possibility of parole.
That juror's courage to stand alone provided Ellen Reasonover with the 16 years that were necessary to uncover the truth of her case and present it to a federal appeals court. Missouri's Chief U. S. District Judge, Jean C.
Hamilton, held an evidentiary hearing in June of this year related to Ms. Reasonover's writ of Habeas Corpus. The judge reviewed the basis of Ellen's claim that she was the innocent victim of a terrible injustice. On August 3rd, Judge Hamilton issued her ruling. She threw out Reasonover's conviction and ordered her released from prison.
In her 75-page opinion, Judge Hamilton wrote: "The prosecution's failure to turn over evidence favorable to the defense rendered trial fundamentally unfair and deprived of her rights under the due process clause."
What was fundamentally unfair about Ellen Reasonover's prosecution?
No witness placed her at the scene of the murder.
There was no physical evidence found at the gas station linking her to James Buckley's murder.
She was not found with, or linked to the murder weapon.
The prosecution said her motive to murder Mr. Buckley was to rob the gas station. Yet no money was taken from the cash register and nearly $3,000 was found in the gas station's unlocked safe.
The only evidence presented at trial against Ellen Reasonover was the testimony of two women with long criminal histories. The two women, Rose Joliff and Mary Ellen Lyner, had been in a cell with Reasonover after her arrest. They both testified they heard her admit she had murdered James Buckley. However, five other women jailed with Reasonover, including three in the jail cell with her at the same time as Joliff and Lyner, testified they didn't hear Reasonover say anything incriminating.
At Ms. Reasonover's trial, the prosecution denied that it had agreed to exchange anything of value with Joliff and Lyner for their testimony. Years after Reasonover's conviction, however, it was uncovered that the prosecution paid Joliff in cash for her testimony, and Lyner was rewarded by having charges of participating in a major credit card scam dropped.
The prosecution withheld two exculpatory audio tapes from the defense in violation of pre-trial discovery requirements. These tapes were secretly recorded by police before her trial. Ellen's unwavering statements of innocence on the tapes corroborated her later testimony in court and undermined the testimony of the prosecution's two "star" witnesses. One tape was of a conversation between Ms. Reasonover and Joliff four days after the prosecution alleged that she confessed to Joliff. Ms. Reasonover repeatedly expressed her innocence on the tape and Joliff didn't challenge her by making any mention of a previous confession. The other tape was secretly made in jail when Reasonover and her boyfriend, Stanley White, were placed in cells next to each other after they were initially arrested for questioning about the murder. In that conversation, which they did not know was being taped, they repeatedly expressed bewilderment at their arrest and stated more than twenty times that they were innocent of having anything to do with anyone's murder. Mr. White was questioned but not charged. The existence of the first tape was discovered in 1996, and the existence of the second was uncovered in June of 1999 when it was found in a box marked "prosecutor's files."
How then, in spite of her innocence, did Ellen Reasonover come within a single vote of being sentenced to death and perhaps being executed?
It was the result of pure happenstance, and any one of us could find ourselves in a similar situation. Early on the morning of January 2, 1983 Ellen ran out of change while at a laundromat. She went to a nearby gas station to get some change and it happened to be the one where James Buckley worked and it was on the morning he was murdered. Ms. Reasonover couldn't find an attendant to help her, so she went to a convenience store to get the change she needed. When she learned the next day there had been a murder at the gas station, she called the police to describe two men she had seen there and the vehicle they were driving.
Ellen Reasonover was rewarded for her desire to be a good Samaritan by becoming the chief suspect in James Buckley's murder. As a poor black woman, she was helpless against the prosecutorial onslaught unleashed against her once she was charged with murdering him.
After she was convicted and imprisoned, Ellen wrote letters to everyone she thought might be able to help her, including the Pope and presidents Reagan, Bush, and Clinton. None of her letters produced any reason for hope until she contacted Centurion Ministries six years ago. Jim McCloskey and Paul Henderson reviewed her case, and they became convinced of her innocence. They took up her cause and enlisted the aid of a team of dedicated pro bono lawyers.
Jim McCloskey described Reasonover's case as "insane," and the years of effort by many people to have her freed for a murder she didn't commit was rewarded when she walked out of Missouri's Chillicothe Correctional Center on August 3rd.
Steven Goldman is the now former prosecutor who orchestrated Ellen Reasonover's conviction. He has expressed disappointment with Judge Hamilton's ruling. Goldman contends that Ms. Reasonover was accorded a "fair trial" and she should still be in prison.
It is understandable that after being falsely imprisoned and kept from raising her daughter from the time she was two years old, that Ellen Reasonover describes Goldman as "an evil man with no conscience and no heart." She is also justified in wondering, "I'm the victim here. Who's going to prosecute him?" Unfortunately for her, the answer is no one.
Ms. Reasonover will have to be satisfied with beginning her life anew as a 42 year-old woman and mother who was robbed of nearly 17 years by Steven Goldman's prosecution of her based on lies and the withholding of evidence. Mr. Goldman is safely protected from prosecution for his central role in the miscarriage of justice suffered by Ellen Reasonover. He is now known as Judge Steven Goldman of the St. Louis County Court.
Sources: "1983 Murder Conviction Overturned Missouri Woman Freed as Judge Rules Prosecution Was 'Fundamentally Unfair'," Athelia Knight (staff writer), Washington Post, August 4, 1999, p. A2.
"Woman convicted of '83 killing may go free," William C. Lhotka & Tim Bryant (staff writers), St. Louis Post-Dispatch, July 3, 1999.
"Reasonover returns to tearful reunion," William C. Lhotka (staff writer), St. Louis Post-Dispatch, August 5, 1999.
"Near-Death Experience," Bob Herbert (op-ed writer), New York Times, August 22, 1999, Op-Ed page.
15 year-old Efren went to prison for a murder he most likely didn't commit.
By Kira Caywood
THE CASE OF EFREN PAREDES, JR.
Efren Paredes, Jr., now 26 years old, has been incarcerated in Michigan's adult prisons since age 15 for a murder and armed robbery he did not commit, although others have pleaded guilty to the crime. At the time of his arrest, in March of 1989, Efren, a high school honor student with no prior criminal record, worked as a grocerybagger at Roger's Vineland Foods in St. Joseph, Michigan.
On Wednesday, March 8th, store manager Rick Tetzlaff called Efren to see if he could work that day, his day off, because the employee scheduled to work had hurt himself the evening before. Efren's mother, Mrs. Koppenhoefer, gave him permission to work that evening and drove him there. Efren punched in to work at about 5:00 p.m.
Later, around 8:45 p.m. that evening, Mr. Tetzlaff asked Efren to stay longer than usual because Wednesdays were "double coupon" days, and employees had not completed all they needed to do to leave by the normal 9:00 p.m. closing time. Efren called his mother, a former employee of Vineland Foods who knew Mr. Tetzlaff, to ask permission to stay longer than expected. Efren's mother agreed to let him stay a bit longer to help Mr. Tetzlaff, but insisted that Efren come home no later than 9:30, because he had school the next day. While talking to Efren on the phone, Mrs. Koppenhoefer heard Mr. Tetzlaff say he would bring Efren home "as soon as we're done." The Koppenhoefer home is approximately one mile from the store.
These conversations were corroborated at trial by the testimony of a prosecution witness. Pam Koebel, an employee of Vineland Foods, said that she heard, Mr. Tetzlaff talking to Efren about staying late to sort bottles around closing time, because Mr. Tetzlaff was concerned about having the bottle carts emptied out for the next day. She also testified to seeing Efren use the phone around that time.
Efren punched out of work at 9:22, and Mr. Tetzlaff drove him home. Efren's mother saw Mr. Tetzlaff's station wagon in their driveway when he brought Efren home that evening. This was the last time Efren saw Mr. Tetzlaff alive. When Efren exited the car and walked into the house, he was not carrying anything. After arriving home, Efren ate some pizza, talked with his parents for a while, and then went to sleep in his basement bedroom.
After dropping Efren off, Mr. Tetzlaff returned to Vineland Foods to finish some of his office work. According to a prosecution witness, on Wednesdays, double coupon days, the manager could be expected to stay until about 10:00 p.m.
Probably sometime between 9:30 and 10:00 p.m., one or more people killed Mr. Tetzlaff inside Vineland Foods and robbed the store of approximately $11,000 in cash and checks. This time range is indicated by the testimony of witnesses called by the prosecution as to when they saw a car belonging to Eric Mui in the parking lot of Vineland Foods driving up and down the street where the store was located. The witnesses were on the porch of a house directly across the street from Vineland Foods when they observed the events to which they testified at trial. During the time the witnesses observed the car, Efren was already home with his family.
At about 5:30 or 6:00 the next morning, Officer Padgett went to the Koppenhoefer home and asked Efren some questions for about 15 minutes, in the presence of his mother and stepfather. The officer said he was questioning Efren because he was a store employee and was the last person to punch out from work the previous evening.
During the interview, Efren's mother said that Mr. Tetzlaff had dropped Efren off from work the previous evening. Officer Padgett returned to the Koppenhoefer home around 3:00 p.m. that same day to question Efren again, and Efren repeated what he'd told Officer Padgett earlier that morning about the same events. The statements Efren made to Officer Padgett were all consistent with the testimony Efren and his family gave at trial.
A WEEK LATER
On March 15, 1989, at approximately 3:00 p.m., Alex Mui, Eric Mui, and Jason Williamson were arrested for Rick Tetzlaff's murder and for the robbery of Vineland Foods. Steve Miller, an admitted participant in the planning of the murder and robbery, was never charged with any crime, nor did he spend a day in jail.
Later that afternoon, Efren was arrested on the same charges as the others based on statements Alex Mui, Eric Mui, Jason Williamson and Steve Miller made to police. The four alleged that Efren masterminded the planning of the crime with them on Monday, March 6, 1989. However, Efren was at a Junior Achievement meeting that evening. That same night, Efren had also spent time with a coworker from Vineland Foods.
Witnesses substantiated these facts at trial.
Alex Mui alleged Efren told him he murdered Rick Tetzlaff, and that Alex -- not Rick Tetzlaff -- drove Efren home from work the evening of the murder. Not one single person was called -- or could be called -- to testify at trial by the prosecutor to substantiate Mui's claim.
When Efren was arrested, the police searched his parents' home, using a warrant based on an affidavit by Steve Miller -- an admitted participant in the crime. Several police officers thoroughly searched the home, and took many photographs of the house's interior and exterior. They found nothing to implicate Efren in the murder of Mr. Tetzlaff.
That same afternoon, during a search of the Mui home, police found the car used in the commission of the crime, belonging to Eric Mui, money linked to the crime, and newspaper clippings about the murder and robbery. After going to the home of Andy Dura, a friend of Eric and Alex Mui, police located the gun used to murder Mr. Tetzlaff, bullets to the gun, and more money from the robbery. Dura told police Alex Mui gave him all the items in a gym bag the night of the murder to hold for him, and threatened to "take him out" if he ever told anyone about the gun and other evidence directly linking Mui to the murder. Dura testified to this in trial.
After the initial search of Efren's home was over at about 10:00 p.m., the Koppenhoefers went to see Efren at the county jail, taking attorney Tat Parish to meet him. Their other two children were visiting their grandparents, so no family member was in or near their home. Arriving home that evening, the Koppenhoefers noticed that a door to their home was unlocked, yet it appeared that nothing had been taken.
On March 16th or 17th, Steve Miller, who lives very close to the Koppenhoefers, provided information for a second affidavit. Two days after the initial search of Efren's home, a second search warrant was signed based on this second affidavit. As affiant for this second warrant, Miller stated, "I forgot to tell you that when Efren was planning all this stuff he also told me where he put the money." However, before the second warrant was executed, Efren's stepfather, Mr. Koppenhoefer, found a small case containing money in their basement. He turned the case and money over to the police before he knew anything about Miller's statement or the second warrant.
During the first search, Efren's home had been thoroughly examined by police officers, and numerous photographs were taken of its interior and exterior. The area where Mr. Koppenhoefer found the case of money had specifically been photographed and searched before the first search was done. There were cobwebs in this area which, according to the officer who searched this part of the home, indicated no one had placed anything in the area "for quite some time."
If one discounts the effects of extensive adverse pretrial publicity, Efren was convicted primarily on the basis of the false and conflicting testimony of Steve Miller and Alex Mui. He was also convicted in part because of prosecutorial misconduct by Michael Sepic, Berrien County Assistant Prosecutor. Mr. Sepic allowed the jury foreman to sit on the jury after Rick Tetzlaff's widow specifically told him on two occasions (once during jury selection and once after the trial began) that a potential juror, Brian Marsh, worked with her aunt. When this information was presented during a post-conviction hearing, Judge Zoe Burkholz -- Efren's trial judge -- refused to grant him a new trial, in essence sanctioning the misconduct.
Steve Miller testified against Efren,after working out an agreement with the prosecutor's office that he would not be charged with any offense arising from the crime. Alex Mui was required to plead guilty to armed robbery and testify against Efren in exchange for the prosecutor's office not pursuing murder and conspiracy charges against him. It appears Mui even created a fair portion of his testimony after being given this deal by the prosecutor. Ironically, in Mui's testimony at trial, he began remembering more details about the crime. Because of several conflicting statements they gave prior to and during trial, Eric Mui and Jason Williamson were never called to testify.
In the end, Alex Mui, Eric Mui, and Jason Williamson pleaded guilty to various crimes related to the death of Rick Tetzlaff and the robbery of Vineland Foods. They all claimed they were pleading guilty to something they didn't do, yet they entered guilty pleas to the armed robbery charges. Eric Mui even pleaded guilty to the murder of Rick Tetzlaff, as well as to helping plan the crime. He received two consecutive sentences of 18-45 years, and Alex Mui received 18-45 years. After admitting involvement in planning the murder and pleading guilty to armed robbery charges, Jason Williamson received a sentence of six months in a juvenile center. These individuals, as well as Steve Miller, were all older than Efren. (For the record, Eric and Alex Mui are Asian, and Jason Williamson and Steve Miller are white.)
A jury comprised of 11 white jurors and one black juror convicted Efren, a Hispanic. The two alternate jurors released from the jury were white, as were all prosecutor witnesses and police officers involved in the murder and armed robbery investigation. The community in which this took place is white middle class suburbia with a record of treating different races unfairly and inappropriately in regard to justice and legal rights.
Since there were no eyewitnesses to the actual crime, and the only people providing testimony about the crime were found to be in possession of overwhelming evidence directly linking them to the crimes, the prosecutor's office wanted to close the case as soon as possible. Their haste also was based on community reaction and media influence. Of all the individuals charged with crimes linked toMr. Tetzlaff's murder, Efren was the only person who went to trial to prove his innocence. Unfortunately, the system failed him, and he remains incarcerated for a crime he did not commit. As a result, the real murderers and those actually involved may already be free in society, or soon will be.
Efren appealed his conviction to the Michigan Court of Appeals, Michigan Supreme Court, and the U.S. District Court in the Western District of Michigan (Southern Division). All three courts affirmed his conviction despite the overwhelming evidence that proves his innocence, and the guilt of others who pleaded guilty to the crimes of which he was convicted.
Efren's case is now before the U.S. Sixth Circuit Court of Appeals. On April 14, 1999, Chief Justice Martin ordered that Efren's application for certificate of probable cause be granted. Efren awaits a decision from the court.
Note: In 1997, while Efren awaited a decision from the federal district court, Congress passed the "Anti-Terrorism and Effective Death Penalty Act of 1996." Now all appeals to the federal court, including Efren's, are governed by this Act. The way the language reads in this Act, a person has only one opportunity to appeal his/her case in the federal court. Therefore, Efren's limited chances of ever getting the justice he so rightly deserves are quickly being exhausted.
HOW YOU CAN HELP
You are highly encouraged to circulate this information and share it with others. If you have any suggestions about anyone who may be able to help Efren's cause, we ask that you send us their names and e-mail addresses or postal addresses. This might include attorneys, civil rights organizations, advocates of juvenile justice reform, government officials, law schools, law professors, law students, experts on issues regarding juvenile waivers from juvenile to adult court, think tanks, organizations that assist innocent people in prison prove their innocence, church leaders, businesses, or anyone else you feel could be of assistance to Efren. We are very interested in information and suggestions regarding appellate strategies in the state and federal courts, and information regarding juvenile waivers from juvenile to adult court. Any newspaper or magazine articles, law reviews, appellate brief excerpts, court decisions, etc., regarding these issues could be extremely helpful. No information or suggestions are trivial when it comes to finding ways of freeing an innocent person from prison and preventing them from spending the rest of their lives incarcerated for a crime of which they are innocent.
To read a more detailed account of Efren's case, a brief biographical account of what he has accomplished during his past ten years in prison, letters in support of Efren, and other information, please visit his web site at:
Contact Efren by mail at:
Efren Paredes, Jr. #203116
3510 N. Elm Road
Jackson, MI 49201-7549
Contact Efren's family at:
T.I.M.E. (This Injustice Must End)
P.O. Box 858
Battle Creek, MI 49016
DAVID HAN -- WIFE RAPIST OR VICTIM?
By Richard (Rick) Cornell, Attorney at Law
David Han wouldn't win the "Husband of The Year" award, but his lawyer argues that he is not guilty of raping his wife.
My client, David Han, married Claire in the late '80's or early '90's. They had two children, separated, and then reconciled in 1994. In August of 1996, they were living in a downtown Reno motel and their marriage was disintegrating. On August 17, 1996, they had an argument on what was to be the last day of their married lives together.
There is no question that during this argument David punched his wife in the jaw. What happened after that depends on whom you believe. If you believe Claire, she was struggling with David before he punched her. The punch made her quit struggling, and he had forced sex with her -- both intercourse and cunnilingus. If you believe David, after the punch, which was the first time he ever hit any woman in his life, he apologized profusely, she forgave him and they made love as they usually did. They agree on what happened next: she tried to call 911, but David pulled the cord out of the phone jack, and told Claire to get out. Claire left, then David left town, and was arrested for sexual assault when he returned.
What you just read is essentially what the jury heard. The jury found David guilty. The judge imposed the minimum sentence he could impose by law -- 10-25 years. David must serve 10 years in prison before he is first eligible for parole and, under Nevada's version of "Megan's law," he will be on lifetime supervision once his sentence is completed.
I received the post-conviction application for habeas corpus and litigated it over a two-day period. I proved to the presiding judge what the jury didn't hear:
1) The emergency room exam of Claire, done 6 hours after the alleged assault, revealed absolutely no trauma whatsoever to her vaginal or breast area;
2) The police neglected to take Claire's panties into evidence, the ones she claimed David struggled with for 3 minutes to remove. Claire's pants, bra and shirt, however, had absolutely no rips, tears, stretches, blood, or other indicators of trauma;
3) Claire made inconsistent statements to the police about how long the struggle lasted before the punch, as well as exactly when David apologized. Most significantly, at the preliminary hearing, Claire described the bruise David caused to her upper left arm as the size of fingerprints, but at trial it grew to the size of a palm print. The bruise, if there was one, was so tiny that it is not visible in the crime scene photos, nor did the emergency room doctor see it in his examination;
4) If asked, Claire would have claimed under oath that she was molested as a child, gang-raped as a teenager, date-raped as a young adult, molested on three different jobs by three different supervisors, and raped twice a week for a year by David. This, however, is the first time any of her assailants had been prosecuted. Claire is 28 years old.
5) Claire claimed that David's punch was so hard that it broke her tooth. The x-rays and the emergency room exam came back negative for fractures of any kind.
6) The jury was never instructed as to the lesser offense of battery (which David freely admits) and never instructed that an honest, reasonable, mistaken belief on his part of her consent was a defense to sexual assault.
7) Claire did not bite, kick, scratch, or defend herself, no weapon was used, no verbal threats of death were uttered, and no restraints (such as handcuffs or rope) were used. In spite of all this, the jury believed Claire's claim that her husband forced her to engage in cunnilingus against her will.
The judge assigned to this case was elected to the bench by "the law and order" crowd. He decided that the trial lawyer was deficient in multiple respects, but that a reasonable jury nevertheless would not have found David guilty only of domestic battery. He denied David's writ. We will appeal.
Since he's been in prison, David has become a minister through a correspondence course.
As we left the courthouse, David's father, a police officer who retired because of glaucoma, and is now blind, said to me, "Mr. Cornell, how do you stand doing what you do for a living?" I responded, "Mr. Han, some days are harder than others." This was one of the hard ones. I'd really like to think, as cynical as I can get, that the Nevada Supreme Court would reverse this nonsense and grant David the new trial he so richly deserves.But he will spend about two more years in prison, waiting to see if he'll get it.
Darlie Routier's two strongest supporters want to prove her innocence. So what's the problem?
Two Men on a Mission: Routier/Pardo
TWO MEN ON A MISSION
By Anne Good
Amid the rumors, allegations, and whispers that surround all sensational murder cases, Darin Routier is attempting to go on with his life. Routier, husband of Darlie Routier, the twenty-nine year old housewife on Death Row in Texas for the 1996 stabbing of her two young children, is steadfast in his love and support for his wife. He is also a central figure in a new theory designed to promote Darlie's innocence. A small faction of the "Free Darlie" camp has broken away from the sole concept that she is innocent and has moved into the realm of actually solving the case, complete with a new suspect.
That suspect is Darin Routier, the man who has spent the last three years fighting for his wife's freedom.
The leader of the renegade movement is none other than Brian Pardo, the millionaire philanthropist who became involved in Darlie's case last year after an ill-fated attempt to assist David Wayne Spence in his quest for exoneration. Spence was executed despite Pardo's help and money. Mr. Pardo then turned his attention to Darlie Routier at her family's request. He has publicly stated he is convinced Darlie is innocent and has graciously opened his checkbook in an effort to convince others. He has also promised to pay for a high-profile attorney, if a new trial is granted. The man who must have appeared to be a knight in shining armor to Darlie and her supporters is now viewed by many as a knight whose only purpose is to divide and conquer. He has divided the camp with his belief that Darin Routier was involved in the murder that left two of his children dead and his wife with multiple stab wounds. His goal is to conquer the odds stacked against him by an out-of-control judicial system and free Darlie Routier.
Mr. Pardo is a man on a mission.
Pardo's theory appears to have some substance at first glance. While claims that Darin Routier was severely in debt, behind on his mortgage, and trapped in a rocky marriage does cast a shadow of suspicion, it is Routier's failed polygraph that gives Pardo's theory weight and media attention. Mr. Pardo also uses differing sworn statements given to the police by Darlie and Darin to bolster his perspective. Darlie said that Darin came down the stairs wearing underwear and no glasses. Darin stated that he was wearing his glasses and jeans. With the understanding that erroneous convictions and accusations are usually fraught with superficial facts that fall apart under the scrutiny of context and depth, I decided to explore this theory beyond the first layer.
With squeals of laughter in the background, Darin Routier attempts to devote his full attention to our telephone conversation. It is a daunting task with three-year-old Drake vacillating between wanting his father's full attention and playfully running about the house with boundless energy. Still, Darin manages to thoughtfully address each question with candor and respect for the interview process, a quality he shares with his wife. Point by point, we explored Pardo's theory. Point by point, he provided clarity and context.
"You know, Anne, people are going to say whatever they want to say. I can't fight that. I don't even want to try. In this case, the best way to fight is not to fight," explains Darin. "They can claim that Darlie and I were in debt but there are just no facts to support that because it isn't true. Yeah, we were stretched a little, but it wasn't out of control. Every business owner knows that some weeks are leaner than others. At the time of the murders business was actually picking up. The claim that we were behind in our mortgage is an out and out lie. June is the only month that was not paid and that is because my children were murdered and my wife almost murdered just days before the house payment was due. How many people would be thinking about their mortgage at a time like that?
"The so-called vacation loan was turned down because I did not want to put up any collateral. Dana, Darlie's sister, wanted to buy a new truck and she was only sixteen years old. I was not going to put up any of my assets in this situation. And it was the loan officer who told me to apply for the money as an unsecured vacation loan. She knew all about the truck and that was her advice. When I found out it had to be secured, I just wasn't willing to do it. Believe me, if I wanted a loan, I could have gotten one.
"Look, our financial records were enormous. The prosecution went over every detail with a fine-toothed comb. There was a solid record of financial consistency with our business. Even Greg Davis (the lead prosecutor in the Darlie Routier trial) saw that. I don't know why others keep bringing this up as though it were fact. It makes no sense to me.
"As for the claim Darlie and I were having marital problems that is just pure bull. Why would both of us deny that if it was true? What could we possibly be protecting? Do you really think she would deny it? She is sitting on death row DEATH ROW! Does anyone really think she is willing to be there for me? Come on! That is just crazy. Imagine where she is at and what she is going through. No one would do that to protect the person that just murdered his or her children. Think about it. Sure, we had arguments just like every other married couple. But, unlike a lot of married couples, we always made up."
When the subject of the failed polygraph arises, Darin firmly states, "That test, that was a joke. I was interrogated for over 90 minutes before taking the test and the examiner made his position quite clear. I mean this guy actually said things to me like, 'Why didn't you just divorce her instead of trying to kill her?' And once he started the test, his attitude didn't change any. It was a grueling experience. I did it to help Darlie, even though I was advised not to. I didn't have anything to hide so I didn't see any harm in taking it. Now I sure do."
"As for Pardo's so-called 'scientific evidence' -- that is all rubbish. Do you know what this consists of? It is a handwriting analysis, a voice analysis and a polygraph test! Is that scientific evidence? Hell, it's not even recognized by the courts and we all know they are very liberal in this case as to what is deemed evidence. If people want to call that evidence, again, there is nothing I can do to stop them. Just keep this in mind when you hear there is actual 'evidence' to connect me to this crime. Next, people will be claiming information from the Psychic Hotline is 'scientific evidence.'
"The bottom line is: the reason I have not been indicted is there is no evidence. Greg Davis has had all this information for over a year. I haven't heard a word from him. Everybody knows that if there were any way to indict me, it would be before a Grand Jury right now. I guess Dionne Warwick isn't available as a witness."
"We don't have to solve this crime for Darlie to come home. While we want closure on the deaths of our boys, we realize that statistically it is not likely. Too much time has passed and too much energy was wasted focusing on Darlie while the real murderer walked away from it. It's hard. I can honestly tell you, after you lose a child a part of you dies. Things don't matter to me the way they did before this happened. The only thing that matters is getting Darlie home with Drake and me. I will never stop fighting until that happens. You can count on that. The prosecution thinks I will just go away after a while but that will never happen. I made a lifelong commitment to Darlie and I intend to keep it."
"Darlie is my partner, my best friend and my soul-mate. I am a part of her and she is a part of me. Being on death row does not change that. In some odd way, it has made our love even stronger and more pure. Everytime someone says something negative about Darlie, I feel like they are saying something negative about me."
These are powerful and convincing words spoken by a man whose sincerity is palpable. I was struck by the ease with which he spoke. A very unassuming man, Darin seems to have much in common with his wife. The gray area, where Darlie ends and Darin begins, is surprisingly apparent. This young couple seems to possess the strength of character and dignity that surfaces only when extreme adversity is combined with the truth. They appear to have lost everything but, as Darin quietly states, "We have all the wonderful memories of our family and that is what keeps us going. In spite of what anyone says, Darlie and I have the things that will last for eternity." Our phone call concluded when Drake could no longer be ignored.
As a devoted husband and father, Darin Routier is definitely a man on a mission.
Everybody is a Suspect
With Pardo's theory attracting some media attention, I was interested in what Darlie's attorney, Stephen Cooper, thought. Cooper, a court appointed appellate attorney who has become one of Darlie's greatest champions, knows more about this case than anyone, including Brian Pardo. By all accounts, he lives and breathes this case and his insights are profoundly significant. With access to all the evidence and Darlie Routier as his client, he has no motive to protect Darin or minimize the facts. Ultimately, it is the truth, and only the truth that will set his client free.
Cooper explains, "Anne, in my mind EVERBODY is a suspect except Darlie. But unlike others, I am constrained by the facts and the facts simply do not support Darin Routier's involvement in this crime. As far as I can tell, there is no basis for believing any of the theories concerning Darin's involvement. They certainly were not in financial trouble. We have done a thorough review of all the financial statements. I have no reason to believe the marriage was failing and as for the polygraph, frankly, I don't know that Darin really failed it. Numerous requests made by the media for independent review of the test data have been ignored. The refusal to produce the data is troublesome. Why not let the actual test be examined by independent polygraph experts? To publicly reveal the results and refuse to reveal the data is...well it is just not evidence of any kind in any courtroom in this country."
Indeed, a refusal to reveal the test data in conjunction with a rush to reveal the negative result to the media makes Pardo's motivation open to criticism and highly questionable to many of Darlie's supporters. Even the media have questioned the Pardo investigation. One source, who asks to remain anonymous, says, "Things in this investigation just don't add up. My instincts tell me it is not what it appears to be."
What does Darlie have to say? In a recent phone conversation she called the theory "ridiculous." She went on to explain, "I have known this man since we were teenagers. I know everything about him and he could not have had anything more to do with the murder of Devon and Damon than I did. He just doesn't have it in him. And I was there. He loved our boys with all his heart. I can assure you, I would not be sitting in here defending him if I thought for a second he had anything to do with this." With an ironic twist, she adds, "Anne, I don't have that in me."
If the Glove Doesn't fit
A common sense approach dictates that if there were ANY reason to connect Darin Routier to this heinous crime, lead prosecutor Greg Davis would have a had a Grand Jury convened last year when the evidence was first presented to him. Mr. Davis has already established his thirst for Routier blood. Mr. Pardo's theory should easily hold up under this DA's minimal standard of scrutiny. However, it seems to produce more questions than it answers. For example:
1. Why does the clothing Darin was wearing or not wearing when he ran down the stairs matter? When someone's child has just been savagely murdered it seems reasonable that those present would have slightly differing accounts. Perhaps Darin simply assumed he was wearing his jeans and his glasses. The relevance or importance of this slight discrepancy remains a mystery.
2. Who are the sources "close to the Routiers" who say Darlie and Darin were having marital difficulties? Everyone I have talked with says just the opposite.
3. Why "spin" the family finances? Darlie took care of all the money.
4. The Routiers were always a little behind with the IRS. This is not uncommon with privately held companies. Why is this an issue? Moreover, why is this "evidence?"
5. The Routier's were not behind in their mortgage. June was the only month not paid. Again, this seems reasonable considering the children were murdered shortly before the payment was due. Why the spin?
6. Why not reveal the polygraph test data? Why the 90-minute interrogation before the test? Experts tell me this is highly unusual. If the goal is to help Darlie, why were the results revealed when polygraph tests are unreliable? The media frenzy did nothing to assist Darlie. It only made them both appear guilty in true tabloid fashion.
7. Where is the evidence that would cause Mr. Pardo to make the statement, "I believe Darin was involved"? That is a bold statement to make with nothing to back it up but conjecture, theory, and unreliable testing procedures. If there is actual evidence, why isn't the DA's office convening a Grand Jury? To name a suspect without hard evidence is strangely similar to the arrest and conviction of Darlie based on pure character assassination and hyperbole.
Most people cannot afford to write the check for Darlie's appeal, however, they can support her by refusing to buy into a theory that contains not a single piece of hard evidence or convincing circumstantial evidence. While Brian Pardo's money, along with the controversy surrounding his occupation (he buys insurance policies from the terminally ill at a reduced rate), assures him the media coverage to express his theory; all the money in the world will not make it true.
With tens of thousands of dollars already spent, Mr. Pardo's results are a disappointment. His approach is astonishingly similar to the tactics employed by the state to indict and convict Ms. Routier. Most Darlie supporters would accept any suspect that was the result of a thorough parallel investigation. Even the Boulder Police, with its incredibly botched Ramsey investigation, explored suspect possibilities outside of John and Patsy. Parallel investigations are now standard procedure when a child is murdered. Oddly enough, it has never taken place in the Routier case. No one outside the immediate family has ever been investigated. Surely a crime of this magnitude, with a young woman's life hanging in the balance, deserves "standard procedure," at the very least.
Darin Routier's actions reflect a man with a strong sense of loyalty, commitment, and love for his wife and his children. Darlie was convicted with a can of "silly string." Can we accept a similar theory based on whether or not Darin was wearing underwear or jeans? Can we accept the so-called results of a highly questionable testing procedure without any support data?
Underwear and silly string! We must all decide if a person's life or reputation should hinge on either of these things. As Dante said, "The hottest place in hell is reserved for those who, when faced with a moral dilemma, choose to remain neutral." There is no sitting on the fence here, folks!
Darin Routier and Brian Pardo are two men on a mission, each traveling a similar but distinctly different path. Both seek freedom for Darlie Routier. One seeks justice based on the truth. The other seeks exoneration for Darlie, no matter what the cost. You decide who is who -- unless, of course, you enjoy the heat.
Common knowledge: Our courts avoid the truth to affirm convictions.
By Robert S, Ortloff, Prisoner of the Drug War
Originally appeared in the The Razor Wire, Jul/Aug 1999 issue, Volume 3: No. 4. www.november.org
In a speech before the Drake University Law School, Judge Richard Arnold of the United States Court of Appeals for the Eighth Circuit spoke about an untenable practice of federal courts, that is, perfunctory opinions which are contrary to the American ideal of justice.
Quoted in The Des Moines Register on March 26, 1999, Judge Arnold called this federal practice an "abomination" and described how he recently participated in a court session where over 50 cases were decided in a mere two hours; The appellate panel heard many, many cases with no opinions or unpublished opinions. Judge Arnold said, "I felt dirty. It was a betrayal of the judicial ethos. It makes me feel terrible."
These perfunctory, and in many cases, one line rulings are terrible. They certainly violate the due process of law and create a bulwark against an individual's post-conviction appeal effort by denying a thoughtful, on point, written basis for how the court reached itsjudgment to affirm the conviction or deny the relief requested.
The truth is that most federal appeals are now rubberstamped. Indeed, much of the judiciary neither has the time or inclination to even read the records before making these ugly and tragic decisions.This dishonorable reality is a systemic phenomenon and has significant implications for the production of unlawful and false convictions, it's time that the American public realize that it could be them next.
The federal system, starting with the targeting of an individual or the investigation of an alleged crime, and culminating in the appellate courts, tends to ratify errors and wrongdoing at lower levels in the process. Simply stated, the further a case progresses, the less chance there is that an error or misconduct will be discovered and then actually corrected.
That is the federal government's trump card: once convicted, the typical defendant is financially wiped-out, burdened with either court-appointed counsel or no counsel at all, and he or she now simply faces an insurmountable array of procedural and technical hurdles just to get a federal court to review the issues on their merits. On the rare occasion that a court will address an issue on the merits or will accept jurisdiction of a habeas petition, a successful 2255 or Rule 60(b) motion, the individual, whether illegally convicted or actually innocent, still is faced with the greatest hurdle of all -- an apathetic judiciary which bends and twists the issues, contorting the facts and legal precedent so that the truth can be avoided and the conviction affirmed.
Justice isn't the goal. The truth doesn't matter. Controlling case law doesn't matter, especially when most criminal and habeas opinions are never published for public scrutiny. In a corporate society like ours, it's the bottom line; the numbers. And it's a war, and in war, innocents are destroyed, rights are taken, and the truth dies.
There is now within our judiciary a desperate need to maintain an illusion in a system run amuck, and naturally, it is the people who suffer most. The folly of the war on drugs has caused immense damage to the rights of those caught up in the venal battles of that war, and collaterally, to every American prosecuted for any alleged crime by the self-venerated system we ironically call Justice. I understand this truth all too well for I see the destruction within opinions in case after case. I see it in my friends lives and the lives of their families, and I have experienced it first hand, being a victim of rubberstamp jurisprudence as practiced in the Fifth Circuit, as that court works to limit the fallout from the forensic scandal at the FBI Crime Laboratory. In case after case, these egregious rulings purposefully limit, if not foreclose the ability to continue appealing those issues and the underlying facts which the judiciary seem too eager to ignore.
This entire situation goes to the very core of our system. It matters not what the political animals in Congress and the self-righteous U.S. Attorneys say or do if our Third Branch of government had the character and the integrity to use its plenary power and protect the rights of the people. But that check-and-balance our founding fathers gave so much hope to is a myth. Today in 1999 America the federal judiciary has turned their black-robed backs on the rights of the people in the interest of the societal need of an all-powerful state, and this truth bodes ill for our collective future as a free people.
We must keep in mind that we are battling a triad of bad law,governmental misconduct and overreaching, and an indifferent federal judiciary. Until we take that triad head-on, any gains we make in one area will be purposefully negated by one of the others. In any effort to bring an end to the war on drugs, we must ensure that our fight is brought to our judiciary as well. They must be reminded that their oath of office is to protect the Constitution and thus the rights of the individual citizen. That is what this country was founded on; that is what the judiciary has forgotten.
To contact the November Coalition:
Tom Murlowski Associate Director
795 South Cedar
Colville, WA 99114
Web: http://www.november.org or http://www.november.org/Suzan/