Welcome to archived Volume 1 Issue 9

Contents:

 
Directly from the desk of Clara A. Thomas Boggs. JD REPORT: Progress on Hard Copy, Grant, and All Fronts

Can Six Years Change The Truth?
"I contended then, and still do now, that Barney Franklin set me up, and that his family testified to protect him." --Curtis Green

Bittersweet Free At Last. LeFave is Free, with Conditions: Cheryl Amirault LeFave, convicted of sexually abusing children in the Fells Acres case in Massachusetts is free, but she has had to agree not to speak in front of TV cameras nor pursue further litigation of her case. Just what is it that DA Martha Coakley doesn't want the public to know about this case? Cheryl LeFave may be ordered to be silent, but Justice: Denied and others will speak out.

Sister Tonja's fight to free her brother, Nolan, spans over a decade of hard work to overcome the system's roadblocks. The victims said the suspect had brown or dark eyes, a 2 to 3-day-old beard stubble, chipped front teeth and smoked two cigarettes. Nolan Klein's beard was a full 2 to 3 inches at the time of the crime, nothing was wrong with his teeth and he has bright blue eyes.

The Coercion of Harold Hall
An 18-year old was subjected to hours of harassment, until he confessed -- but his confession did not match the crime!

Free, But Shackled by the Past: Wilbert Thomas
Wilbert Thomas is free because he served his wrongful sentence. DNA tests proved him innocent of the rape of a woman who could not even identify him. Fred Zain, of the state's crime lab, accused of falsifying evidence in many trials, testified that a spot on the victim's nightgown matched Thomas' body serums. The State of West Virginia shamelessly refuses to concede Mr. Thomas' innocence in spite of what science has proved. As with Cheryl LeFave, reported elsewhere in this issue, Mr. Thomas embarks on a bittersweet freedom.

Prosecutors are Masters at the Art of Framing People
The police usually take the heat when it is discovered or suspected that someone has been framed. However, no one can be framed without the assisstance of prosecutors willing to bend or ignore the legal rules and constitutional safeguards that are all that stand between any of us and being wrongly accused, convicted, and imprisoned.

Prosecute the Prosecutors Who Wrongly Convicted Says Pauley "I propose a new law of the land: For each and every wrongful conviction overturned, an automatic jury must convene. The prosecutor will then be placed on trial for his or her actions, as he wrongfully did to his earlier innocent prey . . . A day for a day, a year for a year, a life for a life."

When Criminals Get Out on "Technicalities" OUR Freedoms Are ProtectedMany people begrudge the "technicalities" that allow people to walk away from a conviction. To resent these  is to not appreciate their protective value for us. If you were accused of a crime you didn't commit, you would be thankful for these hard-won rights. If you were guilty, the technicalities would defend you against excesses by the system.

The Learning Channel: Television At Its Worst
The Learning Channel stands exposed as a ratings chaser willing to compromise journalistic standards. Anne Good, this month's Guest Editor and Justice Denied writer, takes on the task of rebuking this respected network, and may open your eyes to what it's doing.

Updates Please read the Mumia Abu Jamal and Paul William Scott Updates in this Issue of Justice Denied.

OUTRAGEOUS! A Sleeping Defense? We're initiating a new section in Justice: Denied, and invite everyone to send in his or her entry for this category. Please write "Outrageous!" in your subject line if sending by email. A short description in the same subject line would also be helpful. We trust that examples of outrageous decisions, behavior, and other stories about the system abound. We'll publish them all.

Letters To The Editor Letters to the Editor Read William Kreuter's thoughts about Issue 8. Also, read Mr. Kreuter's rebuttal to last month's letter to the editor written by Mumia detractor Neil Abrahams.

JD REPORT: Progress on Hard Copy, Grant, and All Fronts

It's a good thing we decided to become a bimonthly for a while because we've used every spare moment to make good progress.

OUR GRANT IS IN THE WORKS

We owe much of our present good news to new JD Team member Sheila Eaken, a dynamo who has even shown talent at writing (see "Technicalities" in this issue). Sheila approached us to offer help getting a grant, saying she needed the experience. Given the go-ahead, she ran with the task and submitted our first grant proposal to the G. J. Aigner Foundation, asking for enough money to print a large run of JD Magazine, and we solicited letters of endorsement from those who have expressed appreciation for our mission. Thanks to these people is listed below. Others who could not respond in time plan to help with our next round of endorsement letters. If you want to help with this specific task, please send an email to Sheila at SheilaCE@aol.com.

Our aim in printing so many magazines is to do a mailing to law schools, lawyers, paralegals, prisons, libraries, some large businesses and others in an effort to solicit subscriptions and greater participation from people who can help to free the innocent. The person who took our proposal to her board members tells us she believes the funds will be granted to us. Meanwhile, Sheila is mining other sources. If you want to suggest categories or individuals who should receive the complimentary copies we will be mailing out, please contact Sheila at SheilaCE@aol.com. We are very optimistic about this project.

WE'LL BE SOLICITING ADVERTISING FOR THE BIG RUN.

We will be reaching approximately 12,000 schools (law and other), lawyers, libraries, prisons, private individuals and business of many different kinds. We will be offering advertising that will go across the nation. Admittedly, this is a modest number of issues compared to large magazines, but your advertising dollar will be stretched because JD Magazine receives many readings from many people after the first reader finishes with it. Please consult our advertising page for fees. We will give discounts to non-profit groups, to those who advertise for longer periods, and to those who have been "JD Friends."

OUR NEED FOR TALENT AND SKILLS GOES ON... AND ON!

As we've said before, our growth is outstripping our workers' time and ability to handle it all. This is the most difficult period, the "hump" we must overcome until we're well known and people are begging to get in! I believe that will happen. Those of you who have followed JD's progress since we first published and told you of our aims and how we proposed to get there may justifiably share in the satisfaction we now feel at having accomplished much of what we set out to do.

We still need people with English skills to help us with the great number of stories that keep pouring in. Right now, the mail coming to us in Oregon is backed up for about four months. It's a regrettable situation and one we can reverse when we have more volunteers. Please feel free to let your friends know of our needs. The right people would love to join us, but the challenge is to get us together.

THE NEED FOR DONATIONS ALSO CONTINUES

There are only a few people who have donated hard cash to our endeavor, and we will forever be indebted to them. Jim, you know you are one of the principal believers in us. A special, private thanks to you. The few others who've helped want to remain anonymous, and since they're mentioned elsewhere in this issue, I won't even use first names.

Please remember that your donation is tax deductible. Our Federal tax-exempt status is in the works, and when we have it, your donation is retroactive to May 4 of this year.

You might want to consider donations other than money. We still need an extra computer with plenty of hard drive space and good word processing programs. A fax machine and copier with that would be a bonus. Other welcome donations are always talent. As we grow, we will need "outposts" in many parts of the country to help distribute JD and spread the word that there is help and hope for the wronged.

ATTORNEYS ARE COMING!

We've begun hearing from more attorneys offering help. This is SO welcome!  The plan is to put together little strongholds of attorneys around the country who can litigate these cases of wrongful convictions and win retrials or freedom through DNA testing, uncovering of new evidence, and other avenues available.

HERE WE GO . . . INTO THE FUTURE!

The future of Justice: Denied is looking great. We've gotten this far with hard work and a fabulous team that believes in its work. Please take a moment to look at the page listing the JD Team members. Each person on the team contributes because of love for this work, and because of a faith that we are making a difference. Get to know this very special team. Justice: Denied would not exist if it were not for them.

Reflections . . .

If you've read my "Personal" editorial this month, you know that I have reasons to celebrate, for my daughter may be able to come home soon. This month and last have been full of reasons to have hope in my personal future and in the future of JD Magazine. It's a time for celebration, but at the same time, it is a time to reflect on those who have no reason to celebrate . . . yet. I have often ended an editorial by inviting our readers to join in the challenge and opportunity of a lifetime -- that of being instrumental in bringing justice to those who have been denied of their precious freedom. Join us in some capacity. You are needed.

Clara Alicia Thomas Boggs
And the JD Staff

A TRIBUTE TO THOSE WHO WROTE LETTERS OF ENDORSEMENT:

Thanks to all the following people for outstanding letters telling the G. J. Aigner Foundation that it is important to widely publish Justice Denied:

Howard L. Dahlka, Executive Director/CFO, The Touch Factor Foundation,Texas
Darlie Kee Mother of Darlie Lynn Routier
Fred Markham, Office Manager, Prison Legal News, Washington
Joanne W. Walker, Writer, former JD Team Member, South Carolina
Robert A. Pauley, Author, "A Circle of Blood--the Story of Paul William Scott" Florida
Mark Pendergrast, Author, Victims Of Memory, Vermont
Ray Thomas writer, publisher "Child Protector Watch" National column and online newsletter
Sallie J. Torres, Private Investigator (Probes International, Oregon)
David S. Nichols, Psychologist, Oregon
William F. McIver II, PhD, Psychologist, Ohio
Professor Richard A. Leo (False Confessions)
William Kreuter, Amnesty International Death Penalty Abolition
Coordinator for Washington State
Richard F. Cornell, Criminal Defense Attorney, Nevada
John McLemore, Writer, Investigator, Texas
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Can Six Years Change the Truth?

Edited by Kira Caywood

"I contended then, and still do now, that Barney Franklin set me up, and that his family testified to protect him." --Curtis Green

Introduction: Six years after Karen Kulick's murder, a prime suspect altered his version of events and fingered Curtis Green, resulting in a trial that sent Curtis to death row. Curtis' sentence was later reduced to 27 years, based on evidence that he was not mentally capable of premeditation.

Curtis' case could benefit from legal counsel and advice, DNA testing and other efforts. He has many questions regarding his options and avenues of recourse in proving his innocence. If you can help, please contact Justice Denied, or write to Curtis at the address provided at the end of this article.

Curtis Green tells his story here in his own words

My name is Curtis Green, and I am writing this narrative with assistance. My story starts on the night of May 22, 1988 in Bartow, Florida. Around 3:30 a.m., a motorist came across the body of Karen Kulick, wearing only shoes, lying in the middle of a main highway. She had been brutally stabbed and strangled. The autopsy showed that she died from strangulation and had apparently struggled with her assailant. There were several suspects, all of whom had alibis. Barney Franklin and I were among these.

Earlier that day, Karen called Barney and asked for a ride. Barney told me and his son-in-law, Clyde Price, to go pick her up. When we arrived at her house, her father pointed a gun out of the window and ordered us to leave the property. We left. Later, Barney picked Karen up by himself. I told the investigator that I had not seen Karen since we attempted to give her a ride.

Barney Franklin told the deputy sheriff that he and I were together earlier that night. Eventually, his story would change and grow to feature many accusations against me.

The investigating deputy ran out of substantial leads in 1990 or 1991.

Moving on to 1994, Barney Franklin was in prison for sexual battery, having accumulated four or five prior felony convictions. Early in the year, the investigating deputy approached him in prison. Barney agreed to testify for the State. Soon after, Barney Franklin and I were arrested as codefendants and charged with first-degree murder. Even though he had agreed to help the State, Barney's first-degree murder charge remained in effect.

At the trial in the beginning of 1995, Barney admitted that he had been drinking vodka with Karen, who was one of his old drinking buddies, from 6:00 p.m. to 11:00 p.m. the night of the murder. Then, Barney drove her into town, and left her at the bail bondsman's place, a married man with whom Karen was apparently having an affair. After causing a disturbance in his store, she was arrested. An officer who released Karen from the jail at around 1:00 a.m. said he followed her for several blocks and saw no one pick her up.

Six years after the murder, Barney suddenly claimed that after his son-in-law and I returned from trying to pick up Karen at her house and her father had threatened us, I said, "I am going to kill her before the night is out." He testified that he and I were drinking together at 1:00 a.m. that night, and that I was still in a rage. Then, he claimed that the day after the murder I said, "You won't see that bitch coming down through there." He also said I told him a couple of weeks later, "I took care of business and am getting out of Dodge while the getting is good." This supposed information was produced six years after the crime was committed. Why not sooner? He said he had known me for years, and he understood that what he said in court could not be used against him. Why would he wait to reveal the so-called truth?

Barney's wife, Shirley, testified that I was very angry before the murder and that she heard me say, "I'll get even with the bitch." Another witness, Shirley Franklin's sister, said she heard me yell, "I'll kill the bitch." What a coincidence! Three prosecution witnesses are from the same family, and one happens to be the codefendant! However, son-in-law Clyde Price testified that I was calm after trying to pick Karen up at her father's house earlier that evening, and that he heard no threats.

When pressured, Shirley admitted on the stand that Barney and I were not drinking at the trailer, and that when she told her husband about the murder he did not seem surprised. She also said she remembered seeing scratches on her husband's back the next day.

The only other witness was a jailhouse informant who told a story that supposedly told him. His testimony was full of holes, but was accepted anyway.

In accordance with the prosecutor's theory of the case, the State said that Barney "may also bear culpability in this homicide." During Barney's testimony and in the closing argument, the jury was fully informed that he was also charged with the first-degree murder of Karen, and had participated in her death. The State also told the jury that Barney was a "liar, had perjured himself before and has now."

The State took DNA samples from me and found no matches at the scene of the crime nor on Karen's body. Nothing! No DNA match. No scientific evidence. No weapon. No witnesses. Nothing to connect me to the crime except for Barney -- who chose to "come clean" after six years and say that I did it -- and the testimonies of his wife and sister-in-law. Autopsy evidence showed that Karen had put up a struggle. There were no scratches on me.

Barney's wife said she saw scratches on his back. Why wasn't Barney's DNA taken? Why just mine? Isn't this DNA thing a defense? When the trial was over, I got the death penalty and he got five years as an accessory. The five years run concurrent to his charge now. In reality, he got away with murder!

The Supreme Court of Florida handles the appeals for those on death row. There were 18 mitigating factors offered by my counsel at the trial. Two statutory mitigators, also put before the trial judge, were taken into consideration. First, it was said the crime was committed while I was under the influence of extreme mental or emotional disturbance. Second, it was asserted that my capacity to appreciate the criminality of my conduct or to conform my conduct to the requirements of law was substantially impaired.

There was significant mental health evidence presented to the jury, including expert testimony about my IQ. I tested in the lower fifth percentile on one IQ test and scored at 73 on another.

The Supreme Court found that "this case supports the reasonable hypothesis that Karen's murder was committed without any premeditation or design. There was little, if any, evidence that Green committed the homicide according to a preconceived plan. Finally, although not controlling, it is undisputed that Green's intelligence is exceedingly low." Then, the Court stated that the case does support "unlawful killing" and proceeded to reverse and remand to re-sentence, with instructions to enter a judgment for second-degree murder.

Shouldn't this have been reversed and remanded for a new trial? The Supreme Court said I wasn't capable of this crime. Barney's involvement was not even addressed.

I was re-sentenced to 27 years. As I mentioned before, Barney, who has a list of "felony priors," got five years concurrent to the time he is now doing. How can this be? I contended then, and still do now, that Barney Franklin set me up, and that his family testified to protect him.

I want to discuss the part my attorney played in this. Getting me off death row was indeed an accomplishment. However, his self-congratulation exceeded appropriateness in a letter to me, in which he wrote, "This decision is considered a great victory for me in the legal community and you would do well to remember that." He continued, "You have no appeal from this decision. However, certiorari to the United States Supreme Court is possible ... In my opinion, your chances of a success of a certiorari are zero and, in any event, a new lawyer would have to be appointed for that purpose."

Isn't a lawyer supposed to do whatever it takes to get the best results for his client? Is this the best I can expect -- no appeal?

I realize that my attorney got me off death row -- however, he also allowed me to be put on death row. Can his actions be considered ineffective counsel? If so, could my conviction be reversed and remanded for a new trial?

While I was incarcerated and awaiting trial, I notified my counsel that I had a witness who would testify that I could not have been at the scene of the crime. She and her family would swear that I could not have made it from their house, where I was working on their car, to the murder site, at the time the murder occurred. She even sent a letter to the court. Of course, the court is not my counsel, so they just entered it into my file. My court-appointed counsel chose not to use the witness. He repeatedly refused to use her even though she was on my witness list. Isn't there such a thing as an "alibi defense"? Shouldn't she have been deposed, at least? I had other character witnesses he also chose not to use.

What is my recourse here? I have difficulty locating and understanding information in the prison law library, and sifting through the abundance of free advice given out by inmates.

If I can't appeal to the Supreme Court, then I'm stuck with 27 years for a crime I never committed -- as I have maintained from the start. Finally -- did Barney Franklin get away with murder?

Sincerely,

Curtis Green # 885390
Charlotte Correctional Institution
Inmate Mailbox 460331
23 Oil Well Rd
Punta Gorda, FL 33955
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A Bittersweet Free At Last:

LeFave is Free, with Conditions

by Christopher M. Newton, Justice Denied Staff Writer

On October 21 Cheryl Amirault LeFave left Middlesex Superior Court a free woman. Outside, she stood before the reporters and TV cameras and could not say a word.

LeFave was to return to prison to finish serving an 8- to 20-year sentence for three counts of rape of a child and four counts of indecent assault and battery. LeFave's lawyers, James Sultan, Charles Rankin, and Charles Ogletree, filed a motion to revise and revoke LeFave's sentence to time served. Assistant DA Lynn Rooney agreed not to contest the motion if LeFave agreed to several conditions.

LeFave is to be placed on supervised probation for ten years. She is not to have any contact with the victims or their families, nor is she to have any unsupervised contact with children under 16 years of age. Prosecutors also stipulated that LeFave is not to hold any employment putting her in contact with children, nor can she profit from accounts of her case.

LeFave's lawyers agreed to the conditions and Middlesex Superior Court Judge Paul Chernoff reduced the sentence to time served, effectively setting Cheryl Amirault LeFave free.

At the press conference outside of court, LeFave's lawyers revealed that Middlesex District Attorney Martha Coakley had added two more conditions: 1) LeFave cannot pursue further legal action in her case; and 2) she cannot discuss the case on camera.

Obeying the order, Cheryl Amirault LeFave remained silent at this press conference.

"We are extremely pleased Cheryl will not have to return to prison, not today, not ever," said Sultan, "She will now have the opportunity to go on with her life without the sword of Damocles hanging over her head."

LeFave, who has maintained her innocence, will have to go on with her life without ever clearing her name. Martha Coakley has insured that LeFave's conviction will stand. Cheryl can no longer fight the conviction but she is not prohibited from proclaiming her innocence or from speaking to newspaper reporters. "I never committed the crime," Cheryl said in an interview, "I will continue to be the person I am, an innocent person."

LeFave also acknowledged that, in accepting her guilt in the eyes of the law, she had lost a battle. "I can't be a martyr," she said, "I have to learn to give up what I believe in and what's right for me for the sake of not returning to prison."

Coakley's refusal to let LeFave speak before TV cameras reveals what the Fells Acres case has been about since its beginnings: the media and public opinion.

Throughout the eighties a ritual child abuse hysteria swept the United States. The McMartin Preschool case in California, the Little Rascals case in North Carolina, and over a dozen other day care cases made headlines in newspapers across the country. In 1984, Gerald Amirault, who worked at the Fells Acres Day School in Malden, Massachusetts, with his mother Violet and his sister Cheryl, was accused of molesting one of the children in his care.

Parents were immediately swept up in a panic driven by police, social workers and prosecutors, and fueled by coercive investigative techniques and the media's sensationalistic coverage of this and other cases. Parents with children attending Fells Acres were encouraged by police to question their children about supposed sexual abuse. Social workers began interviewing the children in ways that treated denials as incorrect answers and rewarded accusations. After months of badgering, nearly forty 2 to 4 year-olds accused Gerald, Cheryl, and Violet of many strange and fantastical variations of sexual assault.

One child claimed to have been tied naked to a tree in front of the school and forced to watch Cheryl mutilate a squirrel. A young girl alleged that she was anally raped with a knife (on inspection, no physical harm had been done). Children spoke of abuse by a "bad clown" in a "secret room" or a "magic room." There are reports of abuse at the hands of R2D2-like robots, elephants, lobsters, and even the prosecutors themselves.

During the trials, jurors were asked to "believe the children," even though no teacher or teacher's aide at the Fells Acres Day School testified to noticing any signs of abuse. Prosecutors downplayed the coercive methods of investigators and reporters ignored the more fantastic accusations they produced. Lastly, the Amiraults' constitutional right to confront their accusers was denied in order to safeguard the children from their "tormenters." In short, the media-generated panic surrounding the case led the public to convict the Amiraults long before they ever got to court. Due process, and factual evidence were ignored in what can only be described as a witch trial.

Prosecutors in the case were well aware that a great portion of the community wanted heads to roll and they were determined to drop the blade. They seized the case as an opportunity to advance their careers by appearing tough on crime and compassionate and caring when it comes to the plight of children. Original prosecutor Scott Harshbarger has since become Massachusetts Attorney General and narrowly lost a bid for Governor. Another past prosecutor, Larry Hardoon, has built a reputation as a specialist in child molestation cases as a result of his participation in the Fells Acres case. It is ironic that Cheryl LeFave is barred from profiting from her case when so many others have gained by it.

Media exposure is a two-edged sword, however. While original coverage of the case served to demonize the Amiraults, subsequent exposure has led to criticism of the prosecution and of the Massachusetts Supreme Judicial Court (SJC). Dorothy Rabinowitz of the Wall Street Journal wrote a series of articles exposing the coercive interviewing methods used and the fantastic accusations they produced. The public soon became aware of scientific evidence demonstrating the suggestibility of children through Rabinowitz and also through a book, "Satan's Silence," by Michael Snedecker and Debbie Nathan on the ritual child abuse phenomenon.

Gerald Amirault was convicted in 1986. Cheryl and Violet Amirault were convicted in 1987. After serving eight years of their 8- to 20-year sentences their convictions were overturned by Judge Robert A. Barton, setting Violet and Cheryl free. The SJC overturned this ruling in 1997, the same year Violet Amirault passed away. In 1998 Judge Isaac Borenstein ordered a retrial stating, "This court is left with the abiding conviction that justice was not done." The SJC overturned that ruling this August, stubbornly refusing to honor the scientific evidence that would destroy the prosecution's case. Instead, the SJC put the interests of judicial "finality" over those of justice and determined that Cheryl Amirault LeFave was to return to prison after four years of freedom.

A reversal of LeFave's conviction would not only mean vindication for her, but it would cause great damage to the reputations of the prosecutors who have built their careers putting her in prison. The SJC's willingness to bypass justice to protect their prosecutorial brethren seemed odious not only to Amirault supporters but, increasingly, to the media. It was a surprise, though, when Massachusetts Lawyers Weekly, a highly respected publication in law circles, openly criticized the SJC for the first time in the magazine's 27-year history.

The MLW praised the actions of Judges Barton and Borenstein as "courageous examples of judicial independence," and took the SJC to task for elevating the interests of "finality" over the possibility that a serious injustice had taken place.

"Yes, confrontation rights were violated. Yes, investigation tactics were unduly suggestive. Yes, trial counsel may have made serious errors. But, according to prosecutors, the jurors believed the children and that's all that matters." The editorial continues: "Such defiance should perhaps be expected of public officials who need to be protective of their own reputations. But it is surprising to witness this quality emanating from the SJC . . ."

The MLW finishes by calling on Governor A. Paul Celluci to issue LeFave a pardon.

With the negative pressure mounting, DA Martha Coakley seems to have found a solution to please all parties. LeFave and her lawyers have finally regained Cheryl's most precious possession: her freedom. Coakley herself is served because she appears both though on crime and merciful; Cheryl LeFave must serve a lengthy probation, her conviction still stands, and yet she goes free. Finally, all those who stood to lose stature if LeFave's conviction were overturned -- Harshbarger, Muldoon, the SJC and Coakley herself -- are able to maintain their reputations. They need not fear the gentle face of Cheryl Amirault LeFave appearing on televisions across the nation loudly denouncing her tormentors and fiercely proclaiming her innocence.

We here at Justice: Denied are delighted that Cheryl is a free woman at last, but we must denounce the entire Fells Acres case for the absurd farce that it is. The public has a right to know what Martha Coakley does not want it to know. The Amiraults were convicted without any evidence supporting their guilt. How can this happen in what we like to call a free country? It is a prosecutor's job to prosecute, not persecute, to uphold the law by pursuing justice, not career advancement. When prosecutors prize victory over justice and judges protect their reputations instead of protecting the innocent, the American judicial system becomes a circus, and the most important tenet of American Justice, that one is innocent until proven guilty, is reduced to so many empty words.

Gerald Amirault has remained in prison since 1986. Cheryl will now be concentrating on the effort to free him, even though, as a convicted felon, she cannot visit him in prison.

You may write to Gerald at the following address:

Gerry Amirault W42806
Bay State Correctional Center
PO Box 73
Norfolk MA 02056
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(Editor's Note: I first learned of Tonja Brown when I read a news article about her petition to recall some Supreme Court justices in Nevada. I was excited to learn of someone else bucking the system in behalf of an innocent family member. After meeting, Tonja joined me in a picket against the District Attorney's office, along with other supporters not afraid to speak out. Mutual support of each other's battle resulted in a friendship. Tonja was instrumental in getting my daughter's juror, George Kamp, to publicly object to the wrong done to her. It is an honor to give something back to Tonja, if only to let the world know of her single-handed fight to prove her brother's innocence. Tonja Brown is a champion in every sense of the word. She is that rare breed of person who will not give up. --Clara A. Thomas Boggs)

Sister Tonja Brown's fight to free her brother, Nolan, spans over a decade of hard work to overcome the system's roadblocks.

MY BROTHER IS INNOCENT, AND I CAN PROVE IT

On May 9th 1988, there was an armed robbery and rape at the Sparks, NV Payless Shoe Store. About 2 weeks after the crime occurred, my brother, Nolan Klein, walked past the shoe store. Bridgette Sloane, one of the employees, saw Nolan walk by and commented to a customer, "He looks like the guy who robbed us and raped Theresa Rodela." The customer immediately called the Police. Nolan was picked up for questioning and held for several hours. The police never gave the Miranda warning to Nolan, but he was told he could not leave until he gave the police his fingerprints, pictures for a photo line (showing Nolan with a full beard), and taped his voice to compare it to the suspect's who had called 911. (Later, at trial, the detective forgot to bring the tape of Nolan's voice, so the Jury only heard the suspect's tape).

Nolan was arrested on September 15, 1988. We first met Nolan's Public Defender, Shelly O'Neill, during the October preliminary hearing. At that hearing, the victims testified that the suspect had brown or dark eyes, had a 2 to 3-day-old beard growth (stubble), and chipped front teeth and that the suspect smoked two cigarettes. Nolan told Shelly that he had heard of DNA testing and he wanted her to get it done so he could clear himself. O'Neill told Nolan that she was going to let the District Attorney do it. Shelly O'Neill was told that Nolan had a real beard of approximately 2 to 3 inches at the time of the crime and was given a list of several people who could verify the length of his beard. She could see that Nolan had nothing wrong with his teeth and has bright blue eyes.

In December of 1988, the DA used a warrant to seize Nolan's DNA -- consisting of his blood, saliva, pubic hairs and hair combings.

Nolan's trial began on January 23 1989. It was during the trial that I saw that the DA never tested or compared the DNA from Nolan and the suspect. On January 27, 1989, Nolan was found Guilty.

A Proof of Nolan Klein's Innocence:

At the time of the crime, John Darnell (J.D.), a long-time friend of our family, Bill Richards and Nolan decided to get together at Jack's Bar to make bets on whether or not the 200-year-old prediction by Nostradamus, the prophet, was going to come true. The prediction was that on May 10th, 1988, California would suffer a great earthquake and California was going to drop into the ocean. Nolan and the rest of the patrons, including the bartender, Barbara Hillman, were placing bets to see who was going to have beachfront property. This is why everybody remembered why Nolan was there. If it had been any other night they wouldn't have remembered, but this was an event. Was it going to come true or not?

I knew Nolan was innocent, so I decided to conduct my own investigation after the trial. I went to the Washoe County Courthouse, and obtained photocopies of the transcripts and took photographs of the evidence. During my investigation I discovered that the police believed that whoever committed the crime for which Nolan was convicted had also committed a crime on April 21, 1988. The description matched right down to the chipped front teeth, and Nolan's Attorney, Shelly, never bothered to check out any facts that could have proved Nolan to be innocent of the rape.

There is nothing anybody can do for now to help Nolan. We can only wait. I found this out in January 1990, when I contacted Anne Langer, one of Nolan's jurors. She was an attorney at the time of Nolan's trial, but a few months later she went to work for the Carson City District Attorney. When I contacted her, I asked if she knew that Nolan had a beard at the time of the crime. Anne said, NO, she didn't know he had one, only that by the time he was arrested, he could have grown one. Anne went into the details about why they convicted Nolan.

Anne Langer said there were two primary reasons they found Nolan guilty. One was that they felt one of our defense witnesses, Bill Richards, made an honest mistake as to the time Nolan left the bar in Carson City. During his testimony, Bill had talked about the sun going down, and he remembered that Pinkie (Nolan's Mother) and J.D. had left the bar to go to dinner.

Anne Langer and the rest of the jury felt that Nolan must have left the bar at 8:30 p.m., which would have given Nolan enough time to drive to Sparks, NV instead of at 10:00 p.m. as Bill Richards had testified. However, the jurors never heard bartender Barbara Hillman's testimony read back as they requested because Judge McGee wouldn't allow it. He said it would take too long to have Bill and Barbara's two testimonies transcribed, so the Judge told them to pick one testimony. Bill Richards' was picked. Barbara's testimony was that Nolan was there from when her shift began at 6:00 p.m., and that Nolan was still at Jack's bar until around 10:30 p.m.

Anne said the other reason they found Nolan guilty was because of testimony saying that when Nolan put the girls in the bathroom and came back a few minutes later to take Theresa out of the bathroom, they spent some time together in the back storeroom, letting Theresa get a good look at Nolan before he raped her. However, if you read Theresa's testimony, she said that Nolan came back several minutes later, and Nolan had taken her to the back storeroom. She said it was dark, that the lights were off and she couldn't see anything, but she could tell that the store lights were still on by the light coming in under the closed door. What it comes down to is that Anne Langer and the rest of the jury misunderstood what they thought they heard. Theresa could not have seen Nolan or anybody else since the lights were off and it was totally dark in the storeroom.

After my conversation with Anne, she said she would be willing to help, but would first have to ask her boss, District Attorney Noel Waters. A few days later I called back and a secretary told me that she had to leave it alone because there wasn't anything she could do. That was in January 1990.

Although the Governor's office is looking into what happened to the filters, I also plan to see if the Washoe County Grand Jury will investigate the disappearance of the DNA evidence. After all, we do know that the cigarette butts never left the courthouse. They went to the Court -- to Judge McGee and to the DA's office.

Nolan filed a post-conviction relief petition in 1990, alleging over 30 grounds for ineffective assistance of counsel, prosecutorial misconduct, judicial error and jury misconduct. Nolan also alleged that there was another suspect. Nolan was given a court-appointed attorney for these hearings -- Joe Plater.

At the June 1991, hearing we found out that the police had a prime suspect named Ricky Lee Zarsky. However, when the police went to his home and to his place of employment, he had disappeared, never to be seen again. Judge Charles McGee dismissed this 1991 hearing. McGee based his decision on Public Defender Shelly O'Neill's testimony that she had done her job and investigated Zarsky. The Nevada Supreme Court dismissed Nolan's appeal. We had to go on to federal Court. In December 1994, the Federal Court voluntarily dismissed the appeal without prejudice and sent it back to District court. The appeal went back to Judge Mcgee, showing 23 grounds that he didn't address from the June 1991 post-conviction hearing. In August 1995, Judge Mcgee again dismissed the appeal based on "all the evidence that clears Mr. Klein of the crime should have been raised at the 1991, post-conviction hearing." I knew that's how it had been. How else did we know about the prime suspect Ricky Lee Zarsky and the eyewitness who wrote down the license plate number of the car and all the other evidence that cleared him? It came from this hearing. I was so angry that I asked to view the evidence again. It was here that I discovered that someone had opened up Nolan's DNA kit that had been sealed with red evidence tape and that someone had removed the filters from the cigarette butts and left two small pieces behind.

On April 7th 1998, we had a hearing. I testified that according to the chain of custody records, the cigarette butts never left the courthouse, however, they did go to Judge McGee's court and to the District Attorney's office. The only thing that was never established was what year the filters were taken off the cigarette butts and which DA had been responsible for their chain of custody. Judge Mills Lane was the DA during and after the trial. However, during the post-conviction proceedings, Dorothy Nash-Holmes was the DA, and her friends were Shelly O'Neill and Dick Gammick. Dick Gammick has gone public to discredit me in the eyes of the public by saying that there was nothing wrong with the evidence and for me to leave it alone. Judge McGee dismissed our petition for a reversal based on the DNA again, stating that we couldn't prove that the DNA existed on the filters. Nolan filed a motion for reconsideration at the same time that we filed a motion to have Joe Plater withdrawn as counsel. Nolan was able to prove, with the State's own witnesses and testimony, that the DNA could be found, but that they weren't tested. The motion also covered the fact that Nolan's Public Defender, Shelly O'Neill, committed perjury at the 1991 post-conviction hearing.

In August 1998, Judge McGee dismissed our petition again, stating, "Now Mr. Klein is alleging that Mr. Plater is ineffective for not spending time with him prior to the hearing and not presenting evidence at the hearing. Judge McGee decided this even though District Attorney Gary Hatlestead did not file an opposition, in effect conceding to everything Nolan claimed was true. Gary Hatlestead couldn't argue the motion for reconsideration because it was the DA office's own evidence. Mr. Plater withdrew as counsel, and then on July 13, 1998 went to work for the Assistant District Attorney, Gary Hatlestead, weeks before Judge Mcgee made his decision.

Eleven years later, Nolan's appeal sits at the Nevada Supreme Court unopposed, waiting for a decision. Now, our new Governor, Kenny Guinn, is looking into the disappearance of the cigarette butts, since the Reno Police Department, The Washoe County District Attorney, Dick Gammick, and our Attorney General, Frankie Sue Del Papa refuse to investigate this matter. Dorothy Nash-Holmes works for the Attorney General. Yes, the same office that refused to investigate. We expect this appeal to be dismissed, as were the others. However, we do expect the Federal Courts do the right thing and reverse his conviction.

Right now Nolan is doing well, except for one problem. He was an eyewitness to a shooting at the Nevada State Prison. A prison guard shot an employee from the Department of Motor Vehicles and now some of the guards have started retaliating against Nolan. They have destroyed his personal property and are getting ready to throw him into the hole. The Inspector General's office is conducting an investigation, but when members of the I.G. office are friends with some of the guards, a person's chances aren't that good. Nolan really fears being shot now, but he still is going to testify against the guard. Now he's angry.

Write to Nolan at:

Nolan Klein # 28074
P.O. Box 607
Carson City, NV 89702

Contact Nolan's Sister: Tonja Brown, Email address, Masrod40@aol.com
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The Coercion of Harold Hall

Case account by Harold Hall

Edited by Kira Caywood

INTRODUCTION

In 1985, Harold Coleman Hall, an 18-year-old African American man, was arrested on a robbery charge. While in Los Angeles County Jail awaiting trial, a series of police maneuvers, including jailhouse informants and a coerced confession, ended with Harold being charged with a double murder/rape.

Lacking material evidence, witnesses and motive to tie Hall to the case, the police relied on tried and true methods of obtaining "justice." Harold was subjected to countless hours of interrogation, during which he was denied food, sleep, and the use of a restroom. Most importantly, his request for an attorney was denied. They said they had proof of his guilt, including fingerprints, witnesses and informants. After many torturous hours of this harassment, Harold broke. They fed him a story; he repeated it back to them. He reasoned that his innocence would speak for itself, once the facts were known.

Five years later, Harold was tried and convicted of the charges and given life in prison without the possibility of parole. The young man that arrived in LA County jail in 1985 with the equivalent of an 8th grade education is today writing his own legal papers. He has fought his battle with a will to win that has drawn lawyers, investigators, journalists and community people to his corner. He is currently in Corcoran Prison, continuing to work on appeals.

In Harold's narrative here, the witnesses' names have been changed.

My name is Harold Hall. I am a thirty-two year old African American and I have been unjustly incarcerated for over 14 years for a crime I did not commit. The following is a description of the facts leading to my false conviction and persistent fight for justice.

THE CRIME

On June 26, 1985, Nola Duncan was at home with her mother when her brother David Rainey came to visit. Nola and David went to a store to get cigarettes for Nola. Later, Nola telephoned her mother and told her they were having car trouble and were at a phone booth at a repair garage.

Sharon, who lived across the street from the repair garage, was outside with her friend, Estelle, when they noticed Nola and David in David's sports car talking with three men in a large beige car. The men pushed David's car into the garage's parking lot. Sharon asked one of the men for a cigarette, and he walked across the street to give her one. Later, Sharon picked Theadry Powell out of a photo line-up as the man who gave her the cigarette. She also said that I was not one of the three men in the beige car.

Nola called her mother a second time, saying the car was fixed and they would be home soon. Two or more patrol officers stopped to talk with Nola and David about their car problems. Then, Nola left in the beige car with the three men, while David stayed in his car. Sharon went into her house. Thirty minutes later, she came back outside and noticed that David was still sitting in his sports car in the parking lot.

In the early morning hours, two passing patrol officers noticed David's car. They found David dead in the driver's seat, with a knife wound to the left side of his neck.

The next morning, Nola's nude body was found lying on a piece of plastic sheeting in a dirt alley. No blood was found in the alley. The patrol officers who were talking with Nola and David could identify the three men seen with her before her death.

Sean and his mother Betty lived nearby, and their backyard bordered the alley where Nola's body was found. Sean, whose bedroom was in the back of the house, was awakened by a noise in the alley on the night of the murders. Sean got up, opened his curtains and saw a large, beige car with the engine running and the headlights on, with four or five people inside, in the alley directly in front of his bedroom window. Sean lay back down and then heard a female voice say, "No, no, don't do it!" Betty heard the same thing. When Sean investigated the noise the next morning, he discovered Nola's body in the alley. Both Sean and Betty testified for the defense.

Ronald Johnston, Nola's ex-husband, learned of her death the same morning. He started asking around, and happened to run into Evan Henderson. Evan accompanied Ronald to a house where he claimed to have seen Nola the previous night. Evan stated that Nola was killed because she traded bad water, or PCP, for crack cocaine to Theadry Powell. When Theadry discovered that the PCP was bad, he sent three men to kill Nola and David, Evan claimed. Ronald  repeated this information to the police, but Evan refused to be interviewed.

Police interviewed Theadry Powell, who fingered Lonnie Wardlow for Nola's murder. In July 1985, police interviewed Lonnie, and he denied any involvement in the murder. Police gave him a lie detector test, which he failed. Lonnie claimed that Theadry Powell was responsible for Nola's death. He was released and never charged.

THE FRAME-UP

In August 1985, while I was already incarcerated on a robbery charge, several jailhouse informants told detectives that I had confessed to killing Nola and her brother David.

On September 5, 1985, after interviewing the informants, detectives questioned me about Nola's murder. I explained to them that I had not been involved and that I had learned of the murder from neighbors. Then they claimed I gave them an unsigned statement stating I was in a beauty salon with a guy named Jimmy King, who was bragging about killing Nola because she smoked up his dope. Jimmy King was in prison at the time of these murders. The police did not know this, but I did. It should be noted also that the detectives did not read me my Miranda Rights during this session.

On September 6, police received a call from jailhouse informant Cornelius Lee, who said that I confessed to him that Jimmy King and I killed Nola and David in the beauty shop.

On September 9, detectives came to question me again. They asked me to identify some photos of people, and had me draw a map of the alley where my neighbors told me the body was found. I placed the body on the south side of the alley; in fact, the body was found on the north side of the alley. I printed my name on the map and the photos I identified. Later, detectives claimed I confessed to them my involvement in Nola's murder during this session. Again, they failed to read me my Miranda Rights.

On September 11, police returned to question me about the murders.Again, I denied any involvement. Four detectives continued to question me relentlessly for many hours. I was denied food, use of the rest room, and an attorney. I was only 18 years old, exhausted and mentally drained. Finally, I gave up and told them what they wanted to hear. Although I did admit to the crimes, my story did not corroborate any fingerprints, footprints, witnesses, semen, or blood found at the crime scene. It should have been evident to the detectives that I was confessing to a crime I did not commit. The detectives also told me to say that two other men had been involved in the crime along with me. Although I agreed to this, and named the men, neither of those men was arrested. One was questioned, but released.

On September 23, informant Cornelius Lee told police that I confessed again, this time saying my friend Darren and I killed Nola in Darren's garage.

Police searched the garage and found no evidence that the murders were committed there.

On September 30, Cornelius Lee gave detectives two handwritten notes, claiming he wrote me questions concerning the murders, and that I wrote him incriminating answers back.

In 1990, I went to trial for the murders of Nola Duncan and David Rainey. The only evidence presented against me was a coerced confession, which was not corroborated by any physical evidence, and the two notes from Cornelius Lee. I was found guilty and sentenced to life in prison without the possibility of parole.

CONCLUSION

In 1994, the appeals court reversed and dismissed the murder of David Rainey because of insufficient evidence, but upheld the murder/rape of Nola Duncan. That same year, informant Cornelius Lee recanted and told my appellate attorney and investigator how he fabricated the notes between us. Cornelius explained that he erased his original questions and replaced them with questions that made my answers appear to incriminate me in the murders.

With this information, I filed a Habeas Corpus. After Cornelius gave his testimony and both the DA and defense experts testified that the notes used at trial had been partially erased and rewritten, the judge granted me a new trial.

The DA appealed and, on July 23, 1996, the appeals court reversed the judge's decision to grant me a new trial. On February 27, 1997, the court re-sentenced me to life in prison without the possibility of parole, plus one year.

Although it would conclusively prove that I was not involved in the rape, the court refuses to conduct DNA testing on blood, semen and hair found at Nola's crime scene.

After my conviction, it was discovered that the detectives gave perjured and false testimony. They testified that I was a witness when they questioned me; however, Internal Affairs and police reports proved that detectives believed I was a suspect at that time. Detectives violated my Miranda rights, but testified that they didn't. Also, Detectives Arneson and Crocker claim I voluntarily confessed to them privately. However, a fourth detective and his partner, who were present, corroborate my version that the confession was coerced. In addition, a Los Angeles Times reporter, along with an Internal Affairs investigation, revealed that Detective Arneson has a history of coercing false confessions from defendants, and has a record of giving perjured and false testimony in other murder cases. One of those cases was recently dismissed.

There are several lawyers, private investigators and community people who have freely donated their time and energy to support my efforts. Without them, I know I would not have made it this far. I only hope and pray that I will soon be able to personally thank them from outside these jail walls, which have kept my body, but not my spirit, captive for the past 14 years.
[top]

As told to Justice Denied by Matthew Lamberti

After 12 ½ years of wrongful imprisonment, Wilbert Thomas has been freed. In a communication from the law firm of Hogan & Hartson in Washington, DC, Justice Denied was given the good news that the State of West Virginia recently released Mr. Thomas, even though he had been told he would not be discharged until late 2007. Unfortunately, although Mr. Thomas' attorneys convinced the State to release Mr. Thomas this year, the State has still refused to concede that Mr. Thomas is innocent or admit that he was convicted in violation of his constitutional rights. The State's position ignores DNA evidence demonstrating that Mr. Thomas could not have committed the crime for which he was convicted and contradicts findings by a federal magistrate judge that Mr. Thomas conviction violated the U.S. Constitution in three independent ways.

Mr. Thomas' case has been covered extensively in West Virginia and has been written about in Chicago, as well as in Washington, DC newspapers. Some recent articles about Mr. Thomas' tortuous trip through the West Virginia legal system can be found at:

http://www.legaltimes.com/cgi-shl/shownews.pl?id=1928
http://wvgazette.com/news/Other+News/1999101523/
http://sundaygazettemail.com/display_story.php3?sid=1999100922&
format=prn

http://wvgazette.com/news/Other+News/1999100754/

Hogan & Hartson has contacted Justice Denied to ask for help in finding programs that might help Wilbert Thomas come to terms with his wrongful imprisonment and in dealing with his newfound freedom. If you know of any programs in or around the Chicago area for people in his situation, we urge you to contact Mr. Jonathan Abram at Hogan & Hartson by phone, mail, or email. He may be reached as follows:

Jonathan L. Abram
Hogan & Hartson
555 13th Street, N.W.
Washington, DC 20004
(202) 637-5600
Email: jlabram@hhlaw.com
Counsel to Mr. Thomas

At Justice Denied, we are increasingly aware of the problems faced by newly freed people after long bouts of wrongful imprisonment. Eventually, we hope to have resources for these people with special needs. For now, with the help of our readers, we will be glad to begin compiling lists of places that help the newly freed.
[top]

Prosecutors Are Master Framers

By Hans Sherrer

Watching movies and television shows for decades has conditioned us to have the Pavlovian response of thinking that police are the culprits when people are framed.

So it was that instead of presenting us with a new idea, the internationally televised O. J. Simpson trial was a real-life affirmation that police plant evidence, falsify reports and commit perjury in court. The opinion of many people that in O. J.'s case the police worked hard to frame a guilty man doesn't change what they did. It just emphasizes that fame and wealth doesn't protect someone from being vulnerable to such tactics.

However, as reprehensible as the unethical behavior by police can be, focusing on it tends to deflect attention from the bigger picture of how people are successfully framed. Police misbehavior alone is not enough to convict a person. This is because police investigations are typically conducted under the watchful eye of a prosecuting attorney, and even when they aren't, a prosecutor must give his stamp of approval to a case before criminal charges can be pursued against someone.

This means that no police wrongdoing can ever see the light of a
courtroom without the complicity of a willing prosecutor. To one
degree or another, all frame-ups of people are orchestrated by
prosecutors acting behind the scenes. This is as true of the high
percentage of plea bargains compelled by the threat of a false conviction, as it is by the actual presentation of phony evidence, deceptive arguments, and perjured testimony during a trial.

One of the most effective ways prosecutors contribute to framing people is by manipulating their access to evidence in the government's possession that may tend to cast doubt on their guilt. This is known as discovery evidence, and as a guard against false convictions the U. S. Supreme Court recognized a defendant's right to this information in Brady v. Maryland (1963).

The investigative resources of the government exceed those available to any private person. This includes the world's richest man, Bill Gates. Therefore, if there is physical or testimonial evidence that someone isn't guilty, it is often in the possession of the prosecution, yet revealing exculpatory evidence to a defendant can undermine the government's case. This situation creates an irresistable temptation for prosecutors across America to thumb their noses at the Supreme Court and at the rights of all Americans by hiding the existence of evidence that may interfere with convicting an accused person. Ironically, this means that innocent people are rarely helped by the pre-trial discovery process because it is in the personal and professional interest of prosecutors to conceal potentially exonerating information from them.

There are numerous cases of wrongful conviction known to have been orchestrated by the concealment of evidence by prosecutors. These cases span the length and breadth of the country and include state and federal courts.

A representative example is Ellen Reasonover's case,  reported
in the September 1999, issue of Justice Denied. A federal judge in Missouri ordered Ms. Reasonover released in August of this year after she had spent 16 years in prison for a murder she didn't commit. She was framed by prosecutors who concealed the existence of two exonerating audio tapes and who bought the perjured testimony of two "jailhouse" witnesses for the state.

Irrespective of the possible merits of the government's case, the
government creates the appearance that it knows a defendant is falsely accused when it conceals evidence. An example of this is the recent revelations that for six years the U. S. Department of Justice concealed testimony and physical evidence related to the siege and destruction of the Branch Davidians' compound in Waco, Texas in 1993. [1] The Branch Davidian survivors convicted of criminal charges were partly framed by this concealed evidence, and some of the jurors misled by federal prosecutors into convicting them are now advocating their release from prison.

In addition to withholding evidence, some of the popular techniques prosecutors use to frame defendants are:

• They permit, encourage, compel, or purchase perjurious testimony in Court by prosecution witnesses. In Ellen Reasonover's case, for example, the prosecution paid cash for the testimony of one witness and rewarded another witness by dropping felony charges against her.

• They permit or encourage the introduction of tainted or phony
evidence in Court. This can be done by introducing tests conducted on contaminated physical evidence, introducing fake evidence, or introducing planted objects as authentic.

• They overcharge or pile on charges to compel an innocent person to plead guilty to avoid a devastatingly long or harsh sentence if they go to trial and lose. The effectiveness of this tactic is indicated by a study published in the Harvard Law Review that concluded that over one-third of everyone who pleads guilty in a federal court would have been acquitted after a trial. [2] This finding is confirmed by the known cases of innocent people who pleaded guilty to murder to avoid a possible false conviction and death sentence. [3]

• They make unsupported, disparaging and inflammatory remarks about a defendant and the motives of the defense lawyer so that jurors will have an emotional, rather than rational response, and want to convict a defendant the prosecution hasn't proved to be guilty beyond a reasonable doubt.

It is abhorrent to the very concept of justice, but it is becoming
increasingly common knowledge that state and federal prosecutors are participating in framing defendants with monotonous regularity.
This isn't surprising considering that prosecutors are given a green light to do so by a lack of negative consequences when their wrongdoing is uncovered.

Although prosecutorial tactics are regularly recognized by courts as
deplorable, it doesn't stop defendants from being framed by
prosecutors. This is due in large part to the narrow interpretation by courts of what is known as the "harmless error" rule. If a prosecutorial tactic isn't considered sufficient in and of itself to have altered the outcome of a trial, it is dismissed by courts as a "harmless error." Therefore, prosecutors know that as long as they use tactics to frame a defendant that aren't excessively obvious or prejudicial of their rights, these won't be deemed a sufficient reason to reverse a conviction or even prompt a judicial reprimand.

A dramatic example of this was the recent denial of Terry Nichols'
motion for a new trial. He sought a new trial on the grounds that the government deliberately concealed the existence of 43,000 documents he had the right to review prior to his 1997 trial in Denver, Colorado, for his alleged role in the Oklahoma City bombing. [4] The prosecution was given a helping hand by the illegal concealment of these tens of thousands of documents and the FBI admitted hiding them from Nichols. However, U. S. District judge Richard Matsch ruled that their concealment wasn't enough of an error to have deprived Terry Nichols of a fair trial, so it was ruled a "harmless error." [5]

Since prosecutors suffer no personal or professional penalty for
participating in framing people, there is no downside for them. The U.S. Supreme Court, for example, granted prosecutors absolute immunity from civil liability when exercising their prosecutorial
functions in Imbler v. Pachtman (424 U. S. 409, 1976). Likewise, they face no criminal responsibility for their actions because history has shown that with very rare exceptions, prosecutors don't prosecute fellow prosecutors. This means a prosecutor can withhold evidence tending to show that someone accused of murder is innocent, and if it is brought to light after the person is convicted, sentenced and executed, that the information was withheld, the prosecutor doesn't have to worry about being criminally charged. Prosecutors are even protected from prosecution when they leak secret grand jury testimony to the news media. [6]

One small ray of light in this otherwise bleak scenario is the Citizen's Protection Act of 1998 (28 USC 530B) which went into effect in April of this year. Although severely watered down from the version first introduced for consideration by Congress, it makes federal attorneys subject to the state bar ethics rules and disciplinary proceedings that apply to all other lawyers in the state where they are located. However, since bar associations are loathe to discipline private attorneys who lack the political pull of a U. S. Attorney,  the protection provided Americans by the Citizen's Protection Act is more symbolic than real.

Prosecutors are well aware of their privileged position and they are
opposed to being constrained from exercising their power in any way. The Justice Department, for example, vigorously lobbied against the minimal restraints imposed on its behavior by the Citizen's Protection Act. A congressional aide explained this by remarking that U. S. Attorneys "get hysterical about being subjected to external ethical standards. They don't want to have to live by rules." [7]

When he was the Attorney General of the U. S., Robert Jackson
recognized the power he and his colleagues possessed when he noted in a speech, "The prosecutor has more control over life, liberty, and reputation than any other person in America." [8] Considering what is known about human nature and the way absolute power tends to corrupt people, it isn't surprising that working in an environment of non-accountability brings out the worst behavior imaginable in prosecutors. Framing people is one way prosecutors express the corrupting influence of power.

The illicit behavior of prosecutors is compounded by the powerful
incentives they have to engage in wrongdoing. One of these is that the performance rating of a prosecutor can be based on his or her conviction rate in the same way a batting average is used to judge a baseball player. Their ability to obtain a high conviction rate is often used as a promotional tool for gaining a political or judicial office or appointment. Janet Reno parlayed a tough reputation as Miami's state attorney into her appointment as U. S. Attorney General.

As contrary as it is to the American notion of justice, prosecutors
have nearly free reign to manipulate the judicial process for their own benefit. The tactics they use to get convictions have caused various commentators to call them our modern version of medieval torturers and lawless gunmen. [9] With this freedom to be unaccountable, it is no wonder that prosecutors can accumulate the experience necessary to acquire the dubious honor of being recognized as master framers.

The End

[1] See e.g., FBI's 'Waco boys' had role at Ruby Ridge: Same
discredited officials ran both cases," Thomas Shapley, Seattle Post-Intelligencer, September 19, 1999, p. G2; and "Storm Clouds Gather Above Waco, Texas,"   Thomas Shapley, Seattle Post-Intelligencer, August 29, 1999, p. E2.[back to story]

[2] "A Statistical Analysis of Guilty Plea Practices in the Federal
Courts," Michael O. Finkelstein, Harvard Law Review, Volume 89, Number 2, pp. 293-315 (December 1975).[back to story]

[3] See e.g., "In Spite of Innocence: Erroneous Convictions in
Capital Cases," Michael L Radelet, Hugo Adam Bedau, and Constance E. Putnam, Northeastern University Press, Boston, 1996, Inventory of Cases at pp. 282-356.[back to story]

[4] "Nichols: FBI withheld key data," Howard Pankratz (staff writer), Denver Post, July 8, 1999.[back to story]

[5] "Terry Nichols denied new trial," Mike McPhee (staff writer),
Denver Post, September 14, 1999. In October of 1999, the U. S. Supreme Court let Terry Nichols' conviction stand by refusing to review his appeal (see:http://news.findlaw.com/News/s/19991012/courtnichols.html).
[back to story]

[6] "Court Order to Prosecute Starr Overturned," Pete Yost (AP),
Seattle Post-Intelligencer, September 14, 1999, p. A4. [back to story]

[7] Quoted in "Games Prosecutors Play," Wendy Kaminer, The
American Prospect, Sept./Oct. 1999, Number 46, p. 26.[back to story]

[8] "The Federal Prosecutor," Robert H. Jackson, Journal of Criminal Law and Criminology, Vol. XXXI, 1940-1941, p. 3, text of speech given April 1, 1940, in Washington D. C.. [back to story]

[9] For a comparison of prosecutors to highwaymen who get what they want by holding people at gunpoint, see "Criminal Justice and the Negotiated Plea," Kenneth Kipnis, 86 Ethics 93 (1976). For a comparison of prosecutors to medieval torturers, see: "Torture and Plea Bargaining," John H. Langbein, The Public Interest, Number 58, Winter 1980, pp. 43-61. [back to story]

Sources:

"Prosecutorial Misconduct," Bennett l. Gershman, Clark, Boardman, Callaghan, a division of Thomson Legal Publishing, Inc., Sept., 1997, 12th release, esp. chapter 13: "Sanctions for Misconduct," pp. 13-1 to 13-29.

"Prosecutorial Misconduct: The Limitations Upon the Prosecutor's Role As An Advocate," John H. King, Jr., Suffolk University Law Review, Vol. XIV, No. 4, Summer, 1980, pp. 1095-1135.

"Forensic Misconduct by Federal Prosecutors --  and How It Grew," Singer, 20 Alabama Law Review 227 (1968).

"Good Samaritan Freed 16 Years After One Juror Saved Her From A Death   Sentence," Hans Sherrer, Justice Denied, September, 1999, Vol. 1, No.8.
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Prosecute the Prosecutors Who Wrongly Convicted Says Pauley

From a St. Petersburg Times (September 6, 1999) editorial by Robert Pauley:

(Lightly edited for Justice Denied)

Wrongful Convictions: A National Outrage -- With One Possible Solution:

Prosecuting the Prosecutors That Put Them There

Have we reached the end of sanity?

In Florida prosecutors are blocking DNA testing for convicts who claim innocence. They cite a procedural rule that gives the defense two years to submit a motion to reopen a case on the basis of new evidence. Incredibly, they contend that even if a DNA test proves a person is innocent, it's too late to overturn the conviction.

This callous attitude demonstrates how innocent people are convicted in the first place: Winning is more important to the prosecutor than truth or justice. Prosecutors contend the two-year limit provides a sense of finality to the process, allowing crime victims peace of mind. What about the peace of mind of those innocently incarcerated?

The State has a compelling interest not only to punish the guilty, but also to operate guilt-free and error-free to protect the innocent. The time has come to demand an end to this epidemic injustice.

And here's how. First, understand the enormity of the problem:

Dateline: NY (From an AP story) -- From attorney Barry Scheck's The Innocence Project, a 60 year-old man who spent 17 years in prison for rape became a free man Wednesday (September 1, 1999). DNA evidence testing showed that he was not guilty of this crime. He is the 62nd such inmate in the United States to be exonerated by DNA testing by Scheck's group.

Dateline: Chicago (From an AP story) -- Northwestern University has documented 82 wrongfully convicted death row inmates since 1976. They were found to be not guilty of the crimes for which they had been convicted and have been since released. Florida leads the nation in these wrongful death row convictions with 20.

Dateline: Austin (From a NY Times story) -- An innocent man, David Wayne Spence, is executed by the state of Texas on April 3, 1997. Said Robert Snelson, one of the inmates who testified in that trial: "We all fabricated our accounts of Spence confessing in order to try to get a break from the state on our cases."

According to Governor George W. Bush, in a letter to writer Bob Pauley: "When I was sworn in as the Governor of Texas, I took an oath of office to uphold the laws of our state, including the death penalty."

At least 25 innocents have been executed in the U.S. this century. "Kill 'em all, let God sort it out!" seems to be the arrogant response of the establishment to the growing number of wrongful convictions.

This random wholesale incarceration of the innocent is primarily a problem with prosecutors, caused by politics, permitted by an uncompassionate system of justice. As death row inmate Paul William Scott recently observed, "They fear rejection by the voters if they cannot boast: "I prosecuted 99 cases and lost only one. I sent 13 to death row. I'm a winner!" Rock stars have their hit records, prosecutors have their prosecutions -- it's a numbers game."

It is a numbers game that is very, very wrong. The following is my solution to this national outrage.

I propose a new law of the land: For each and every wrongful conviction overturned, an automatic jury must convene. The prosecutor will then be placed on trial for his or her actions, as he wrongfully did to his earlier innocent prey. If it is determined that he acted in haste or in arrogance to satisfy his constituents, or his ego, then he shall suffer the same fate his wrongfully convicted faced: A day for a day, a year for a year, a life for a life.

We urgently need this law passed. Now that we are aware of this national outrage, we need to make wrongful convictions our highest moral and ethical priority until justice is fairly served for one and all. I urge you, concerned citizens, to contact your legislators and let them know it is time to end this insanity.

Contact Robert Pauley at: BPauley@compuserve.com
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When Criminals Get Out on "Technicalities" OUR Freedoms Are Protected

By Sheila Eaken

Many people begrudge the "technicalities" that allow people to walk away from a conviction. To resent these  is to not appreciate their protective value for us. If you were accused of a crime you didn't commit, you would be thankful for these hard-won rights. If you were guilty, the technicalities would defend you against excesses by the system.

We all remember studying government in elementary school, the Declaration of Independence, The Constitution, the Bill of Rights, all things that we viewed as useless elements of our education but we memorized anyway. We may even recall the nausea we felt on our way to take those pop-quizzes and tests of our ability to retain information, our endless boredom at having to sit in our chairs and listen to those lectures for what seemed an eternity, our memorizing of the Star Spangled Banner and its group recital in Roseanne Barr form.

As adolescents we were exposed to the legislative system. We learned how a bill was passed, about our civil rights, and about our governmental system with all its checks and balances. This may or may not have interested us, even with the knowledge that we were the only country and culture that observed these as natural and human rights. We began to notice the wrongs and inequalities in other societies and viewed the United States of America as being superior in every respect. Slavery and oppression had been abolished, women were considered equals, and no one could discriminate against minorities and women. All citizens were created equal -- and equal in every manner: it was the LAW. We were the only nation that spent millions to rehabilitate our criminals, asking nothing in return other than that they become law-abiding citizens. Sure we had homeless and unemployed, but it was because they chose that life. Our nation was perfect in every way, and anyone who thought differently must have been intellectually challenged.

As we eased into adulthood we began forming our own opinions, embarking on our journey of disillusionment with our political and legal processes, beginning to see its imperfections and disadvantages. We may have even begun to realize that our Justice System represented anything but truths, rather that it represented the LAW, a system of chaotic order with multifaceted rules. Lawyers and judges alike played chess with people's lives, always operating within the arm of, and in the name of, the LAW. What did Roe v. Wade have to do with the future of our nation, and how could a single pregnant woman possibly affect its outcome? Didn't we have other things to worry about, like the Vietnam War and its aftereffects?

Today we pick up our newspapers and skim article after article where criminal  cases are either thrown out or appealed on the grounds that evidence should have been suppressed, or that someone's constitutional rights were violated in some form or fashion. We feel disgust and little faith in a system that allows rapists and murderers to remain free when their confessions are voided for lack of Miranda warnings read, lack of a search warrant before searching a dwelling, never mind the fact that the murder weapon and possibly a  few decaying bodies were present. Do we really care if Timothy McVeigh received a fair trial or that his right to an impartial jury was violated, when we know that even a jury of 12 death row convicts would have still found him guilty? Do we care if he was not given an opportunity to face all his accusers? Wasn't the Death Penalty reinstated for people just like him?

We question our legal system's endless red tape and loopholes that allow the guilty to go free, and we give little thought to how this current system evolved. Few of us know the history behind each "constitutional right" we enjoy beyond what we learned in our early years of school. Beyond being able to recall names and dates, we often lacked the concept that every Supreme Court case held some underlying meaning with a significant message providing a new foundation for our current system.

We have Miranda Rights because of the 1966 Miranda v. Arizona decision in which the Supreme Court overturned the conviction of a confessed kidnapper and rapist because he could not have been able to relinquish his rights and give his confession without first knowing what rights he had. This case established the rule that people taken into custody by law-enforcement officials must be instructed of their rights, and that if they waive these rights, anything they say may and will be used in a court of law.

Our right to not have illegally obtained evidence used against us to prove guilt resulted from Mapp v. Ohio, 1961. In this case police had received a tip that a wanted bomb suspect was present in the dwelling, in addition to gambling materials. Three officers demanded entrance to search the home, but Miss Mapp refused to let them in without a warrant, and she called her attorney. Having no search warrant, the officers crashed through the door and arrested Ms. Mapp for her objections, interference and resisting the "official rescue of the 'warrant'" which was actually nothing more than a piece of paper. She was prevented from contacting her attorney, then officers searched her entire dwelling, personal papers, and photo albums. Officers found some pictures and books unrelated to the tip (described as "obscene" by the 1960s standard) and she was then convicted of possessing them. Our Fourth Amendment to the Constitution protects us from illegal searches and prevents the use of this evidence in federal trials. It was not until the Mapp decision that it was applied in the individual states, calling it "exclusionary rule."

The cases go on and on, each with its individual circumstances. In some we can empathize with the wrongs, for some people were admittedly guilty. In some cases, the Supreme Court did not dispute their innocence. What is more important is to understand that these cases reflected the times, and to note the general attitude then by reading between the lines. We had become a society in which our police thought it was acceptable to detain people without evidence and, at a minimum, coax confessions out of those they thought were guilty, not inform people of their rights, and search their dwellings, fully knowing it was in violation of people's rights. Possibly hundreds, if not thousands, had been exposed to these intrusions and disregard for their Constitutional Rights before one reached the Supreme Court, and then before any one case was able to change history. Without these secondary processes, without our "red tape," without these restrictions on our courts and police, and our "exclusionary rules," we risk being a nation governed by our law to a greater extent than most can even imagine.

Our Nation has declared a war on drugs and crime alike. Last year's statistics for New York City reflect that prosecutors dismissed 18,000 cases of 345,000. This doesn't include the number of people questioned, detained, released for lack of evidence, nor does it even pretend to touch on the number of people innocent of any wrongdoing or harassed. New York's policing practices aren't significantly different from the rest of the nation and we can only hypothesize about the national percentage. We have been bombarded with news of many accusations of police brutality and misconduct, accusations of planting evidence, accidental shootings during drug busts at wrong addresses, accidental deaths of innocents caught in crossfire, and misidentifications. We have become so conditioned to these wrongs that we rarely finish skimming the articles. This is a reflection of our times, a reflection of our desire to decrease the crime rate at any cost, a reflection of our government's disregard for our spoken and unspoken rights, and a reflection that these actions have become commonplace. This reflects our acceptance, for that is how our silence is interpreted.

These "technicalities," interpretations, and additions to our Constitutional Rights were born out of circumstances in which honest, law-abiding citizens were thrown aside, if not raped, by the same system that was sworn to uphold and protect their very existence. These technicalities are what make us a free nation, what gives us the right to walk our streets without fear of our government, without fear of detainment and searches that are commonplace in a communist society.

Our Judicial System is not perfect. It has always allowed some guilty to go unscathed, and it has always allowed innocents to be convicted, sentenced, and even executed for crimes they did not commit. We cannot change the law overnight. It is in a constant state of evolution, as is our society. To expect law enforcement officials, the district courts and district judges to operate within the guidelines of the law, hand-in-hand within its delicate process, observing and protecting the rights of the suspected guilty and innocent alike, is not an illusory hope.

The individual process is slow, lifetimes for many. Without question, our forefathers and too many citizens have suffered and died for our rights. If we compromise our stand, even a little, we risk populating our prisons with countless innocents, we risk taking innocent lives in the name of the masses, and we risk losing faith in any part of our judicial system. We risk oppression by our own government. We risk all Constitutional Rights and all the freedoms they encompass.
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Guest Editorial

We invite submission of writings about the justice system in relation to the wrongly convicted. Although a writer appears here by invitation, his or her views on any matter do not necessarily reflect the opinion of the editor or staff of Justice Denied in any particular matter outside of the injustice of convicting innocent people.

The Staff of Justice: Denied

The Learning Channel: Television At Its Worst

An editorial by Anne Good

Last month The Learning Channel (TLC) aired a 30-minute episode of The Medical Detectives, a show that examines famous cases as they relate to the world of forensic science. The particular episode that interested me explored the case of Darlie Routier, the 29 year-old mother and housewife who is on Death Row in Texas for the 1996 murder of her two young sons. Ms. Routier steadfastly proclaims her innocence, and new evidence, as well as the old evidence, clearly supports this claim. I was eager to see how forensics could help explain some of the lingering questions lead prosecutor Greg Davis never quite answered. I spent the duration of the show shocked and dismayed, wishing I had a "bad call" brick to throw at
the television.

Any network that calls itself "The Learning Channel" is making a bold statement. It is telling viewers right up front that "learning" is its mission. With not too much subtlety, TLC is positioning itself among viewers as the alternative to Public Television. I believed that until I saw The Medical Detectives. After 30 minutes all I learned was that I can no longer rely on any information gleaned from TLC. It is tabloid television at its worst because the premise of this cable network is false and misleading. The very nature of "learning" implies knowledge acquired by systematic study in any field of scholarly application. Forensics should easily fall into this category. In this case, it did not. With half-truths and outright lies, The Medical Detectives has pioneered new ground in the promotion of tabloid television under the disingenuous guise of learning. As a young woman fights for her life, this is journalism at its most reckless and irresponsible.

I watched in amazement as this show systematically painted a portrait that ultimately did not even slightly resemble the truth of a case I have come to know very well. Step by step, they engaged in exaggeration and falsification.With each frame they took the viewer on a distorted journey. Sometimes it was through hyperbole and at other times it was through outright misrepresentation of the truth. Some people would call this "plain old lying." Here are just a few examples of how this was accomplished.

TLC Myth:

Darlie and Darin Routier were in dire financial straits with a $5,000 vacation loan being turned down by the bank days before the murder. They were also two months behind in their mortgage payment.

Fact:

Darlie and Darin were doing just fine financially. Their bills were up to date and they had $6,000 in their checking account. The vacation loan was turned down by mutual agreement between Darin and the loan officer. The loan was for Darlie's sister to purchase a new vehicle and Darin was not willing to put up any collateral for a loan with whichhe was not entirely comfortable. The murders happened on June 6. The mortgage was paid through May. June's payment would not be considered late until mid-month.

TLC Myth:

Darlie needed the $10,000 in insurance money she would collect from the boys' deaths.

Fact:

Darlie spent $13,000 on the funeral. Need I say more? The math is fairly simple here. One fact they forgot to mention is that Darin Routier had an $800,000 insurance policy. If you needed insurance money, who would you kill? It makes no sense to offer insurance money as a motive.

TLC Myth:

The intruder stabbed the children and then attacked Darlie.

Fact:

Darlie was unclear as to the order of the attacks. From the very beginning she had little recollection of the events as they occurred on the night her boys were brutally murdered and she herself was attacked and left for dead.

TLC Myth:

Darlie's blood was underneath the vacuum cleaner, therefore it was knocked over after Darlie walked through the kitchen. Darlie's blood was also on the handle of the vacuum cleaner. This was used to suggest that Darlie staged the crime scene after she inflicted the wounds on herself.

Fact:

Crime scene photos show the vacuum cleaner was moved many times by paramedics and police officers. It is no surprise that it eventually rested on top of some blood since there was blood everywhere, except where the vacuum cleaner was originally positioned. Additionally, several witnesses saw Darlie using the vacuum cleaner as a cane to steady herself, as she grew weaker from the trauma and her serious injuries.

TLC Myth:

Barry Dickey, a forensic audio expert, says the 911 tape clearly reveals Darlie is moving from room to room quickly. This suggests that Darlie was cleaning up and staging the scene as she spoke to the 911 operator.

Fact:

Darlie was moving from room to room in a panic and in an attempt to get wet towels to put on the boys' backs. She was also concerned that the intruder might still be nearby and was experiencing hyper-vigilance.

TLC Myth:

No blood was found on the sofa where Darlie says she was attacked.

Fact:

Crime scene photos clearly show blood dripping down the side of the sofa and a bloody outline of the pillow Darlie had beneath her head. Most of the bleeding would occur once Darlie stood up. In an interesting side note,the DA's office released the couch back to the family and it was cleaned up and sold at a garage sale to raise money for Darlie's defense. No other key evidence has been released.

TLC Myth:

Darlie stabbed herself in front of the sink.

Fact:

Darlie was in front of the sink getting towels for the boys. It makes perfect sense that her blood would be found there.

TLC Myth:

Darlie said she "ran" after the intruder. The blood drops found were circular, indicating that she actually walked.

Fact:

Ran or walked? What difference does this make? In one part of her statement she says she "followed" the intruder. In another part, she says she "ran." Anyone who has experienced severe trauma knows that linear thinking is seriously disrupted. Time takes on abnormal properties, slowing down and speeding up at random. Darlie's ability to remember if she ran or walked has to do with linear thinking, which is compromised when trauma is present, so her statements cannot fairly be used as the literal truth

TLC Myth:

The show claims that the most damaging piece of evidence came from Charles Linch. According to Mr. Linch, the fiberglass rods found on the bread knife were similar to those in the window screen thus, this knife from inside the home was used to cut the screen.

Fact:

The rods were only "similar" in their make-up. Mr. Linch clearly states that the knife "may have" been used to cut the screen. An important fact that was omitted is that the rods also matched the bristles in the brushes used by the Rowlett Police Department to dust for fingerprints. If this is the most damaging piece of evidence against her, it is time to let Darlie Routier go home to her husband and son.

A Few Omitted Facts:

1) There are two bloody fingerprints found at the crime scene that do not match Darin or Darlie. They also do not belong to any police officer or paramedic. Whose are they?

2) The black car stalking the Routier home was never investigated. Why not?

3) Damon and Darlie were attacked with the same knife. Devon was attacked with a second murder weapon that has never been found. How could Darlie have removed it from the house with the time frame clearly established? The prosecution could not answer this question, so they did not charge her with Devon's murder. This is an excellent example of Greg Davis' style -- if the evidence does not fit his theory . . . get rid of it.

These are just a few of the omissions, misrepresentations and lies used by this show to demonstrate guilt in a case about which they clearly know little. Although it did nothing to change my belief in Ms. Routier's innocence, it did serve to help me understand how this case was successfully prosecuted. Through the omission of certain facts and the subtle distortion of other facts, lead prosecutor Greg Davis was able to paint a scenario he could sell to an uninformed jury. His frequent appearance on this episode of The Medical Detectives did not go unnoticed by those seeking the truth. With his approach, Mr. Davis has made it clear he is no longer interested in true justice as his job demands. He is interested in upholding this conviction no matter what lingering questions remain and no matter what new evidence comes before him. If the evidence does not fit his theory, he simply disregards it or loses it. The bloody sock is a good example of disregarding fact. The 600 missing crime scene photos, many showing the full extent and seriousness of Darlie's injuries, is an example of how evidence has disappeared and reappeared in this case. He is also interested in staying in the limelight. Greg Davis' concluding statement that "Darlie Routier RICHLY deserves to be executed for this crime" shows this lead prosecutor for what he is -- a mean-spirited, headline-grabbing, out-of-control prosecutor who relishes the thought of lethal injection. Reportedly, he kept a photo of Devon and Damon Routier with a hypodermic needle attached to it in his office. His obvious thirst for the death penalty has left him unable to maintain a clear perspective and to function properly in his role as a prosecutor and a representative of the people.

The Learning Channel-- reporters' obvious thirst for sensationalism above truth has left them unable to function in the capacity of journalists. The Medical Detectives should be shown in college journalism classes all over the country. It is an excellent example of reckless behavior and an obvious disregard for the truth in favor of ratings. It gives credence to all the negative feelings developing toward the media since the death of Princess Diana.

Still, future journalists can learn something from The Learning Channel and The Medical Detectives -- they can learn what not to do.

I encourage every one of you to write to The Learning Channel to demand higher standards. A good place to begin would be to request another episode of The Medical Detectives that challenges the prosecution's forensic experts and presents the flip side of the coin -- evidence that exonerates Darlie. Of course, if they did that, the show would have to be expanded to 60 minutes. There is just too much exculpatory evidence to explain in 30 minutes.
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Paul William Scott An Update From Death Row, Florida

Mumia Abu Jamal

Editor's Note: Paul W. Scott was profiled in Issue 3 of Justice Denied. Those days were bleak for Paul, and he was closer than ever to execution. Since then, some good things have happened. As author Bob Pauley says, "Thanks to the advent of DNA, investigative TV programs and the Internet, the days of politically motivated win-at-any-cost prosecutors may be numbered, in the case of Paul Scott and far, far beyond." We, at Justice Denied, also believe this.

Paul William Scott: An Update From Death Row, Florida

by Robert Pauley

This is an exceptional year for Paul William Scott, thanks to the
unwavering support of so many good and talented people worldwide. In Paul's world of concrete and steel some positive things are actually taking place. Well into his third decade there, Paul can tell you it is unusual for anything favorable to happen on Florida's death row, ever. Sister Helen Prejean (author of Dead Man Walking) joins thousands of others in declaring his innocence. We thank God for each and every one of them.

Legal representation is undergoing positive changes as well: we hope to report progress about this very soon. The book, A Circle of Blood: The Story of Paul William Scott (350 pages, by Bob Pauley), has reached the Florida governor's office and hundreds of other strategic locations. Also, our special song A Prisoner's Lament, which tells the Paul Scott story, is being reviewed in Nashville, Tennessee for possible interntional release, thanks to the valiant and very special Shirley Dicks.

Sissel Egeland oversees Paul's Website:
www.angelfire.com/ok/sotodeoro/paulscott.html and Internet address:
paulwilliamscott-innocent@egroups.com from her home in Stavanger, Norway. She tirelessly and fearlessly provides this growing global group pertinent death row related information, sometimes making death row news (and history) herself in the process with her many contacts, computer skills and dogged determination. You may contact Sissel at: denmark@online.no.

The St. Nicholas Catholic Church has established The Paul William Scott Legal Trust Fund, which accepts, manages and dispenses monetary contributions for this worthy cause:

The PWS Trust Fund
St. Nicholas Catholic Church
1152 Oak Road
Walnutport, Pennslyvania 18088
Internet: rmspeicher@enter.net.

Father Edward McElduff and his incredibly supportive parish have been instrumental in bringing about some high-level meetings between Florida Governor Jeb Bush and Dioceses of the Catholic Church (They are not at liberty to share the details of these important encounters just yet, we'll keep you posted).

An August 21, 1999, page one news story in The Palm Beach Post, biased beyond belief, may have inadvertently helped our cause. They have their heads buried deep into the sand with the Palm Beach County prosecutor of Paul Scott's case, refusing to acknowledge that the prosecutor's "star" witness has totally recanted and every juror of the original trial (except for one) has signed sworn statements proclaiming Paul's innocence. Thanks to the advent of DNA, investigative TV programs and the Internet, the days of politically motivated win-at-any-cost prosecutors may be numbered, in the case of Paul Scott and far, far beyond.

That news article was so outrageously flawed we expect to open
additional media doors with it. Our primary goal right now is to reach as many of the media as possible with the fantastic story of Paul William Scott, an innocent man awaiting his electrocution. Interested laymen and professionals please do not take the progress of our quest as a sign you are not needed -- you are! Join this positive group with provable evidence of innocence.

You may contact Paul at: paul.scott@rl.telia.no

Or write to:

Mr. Paul W. Scott
Union Correctional Institution
P.O. Box 221 (P3111S A-1)
Raiford, FL 32083.

Together, with the grace of God, we will prevail.

Bob Pauley
924 Lytle Street
West Palm Beach, Florida 33405, USA
Bpauley@compuserve.com
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Mumia Abu-Jamal Update

by William Kreuter, Contributor

On October 4, the US Supreme Court, as expected, refused without comment to hear Mumia Abu-Jamal's appeal of the Pennsylvania Supreme Court's refusal to grant him a new trial. The Pennsylvania court had upheld the proceedings which started in 1995 before the original trial judge, Albert Sabo, and which independent observers regard as a mockery of justice. The October 4 action enabled Pennsylvania Governor Ridge, who has long called for more executions and particularly for Abu-Jamal's execution, to issue a death warrant for Mumia's execution on December 2.

On October 15, Abu-Jamal's attorneys filed an appeal for habeas corpus review in federal district court. In response, U.S. District Judge William Yohn on October 26 issued a stay of execution which most likely will last for at least two years as the habeas action goes through federal appeals.
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A Sleeping Defense?

By Kira Caywood, Justice Denied Staff Writer

Calvin Jerold Burdine, 46, who spent the last 15 years on Texas' death row, was granted a retrial. U.S. District judge David Hittner threw out Burdine's conviction and death sentence for the 1983 murder of Burdine's roommate, W.T. Wise. During Burdine's original trial, his attorney, Joe Cannon, was seen by both jurors and court staff to be dozing off frequently. Cannon denied sleeping, claiming he had closed his eyes to concentrate on a pending cross-examination.

On appeal, the state court eliminated the conviction and death sentence, finding that Burdine's constitutional right to representation had been violated. Later, this decision was overturned by the Texas Court of Criminal Appeals, which held that, in Texas, unlike other U.S. jurisdictions, an unconscious defense attorney does not qualify as "ineffective assistance of legal counsel" unless the sleeping occurred during a "substantial portion of the trial."

Calvin Burdine is not the first Texan prisoner facing a capital murder charge to be represented by an attorney who slept during the trial. George McFarland, sentenced to death in 1992, was defended by a lawyer who confessed to sleeping. Carl Johnson, who was executed in Texas on September 19, 1995, also accused Joe Cannon of falling asleep during his trial.

The Texas standard for lawyers -- that they need not be awake for important parts of a trial -- may help explain why Texas executes so many people.

"Asleep at the switch" takes on a whole new meaning.
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Letters to the Editor:

Neil Abrahams' Letter to the Editor

Mr. William Kreuter Responds to Neil Abrahams' Letter to the Editor

This Month's Letter to the Editor

Editor, Justice: Denied

Dear Clara:

I'm delighted with the several articles in J:D No. 8 which are related to child-abuse witch hunts. The Supreme Judicial Court of Massachusetts and others who are still prolonging the hysteria justify false imprisonment in the cause of "finality." We have the likes of Larry Hardoon proclaiming that society should agree to "unfair situations," I assume like the Amiraults' (though I doubt his statement was intended to be an admission of railroading them).

The similarity of this thinking to similar statements about the death penalty is striking (and in Harshbarger's case ironic, given his principled opposition to executions). In the face of mounting evidence that many people have been sentenced to death even though innocent, quite a few citizens have started to reevaluate their support for capital punishment -- though not the diehards for whom "finality" and its cousin, the pseudo-scientific psychobabble of "closure," override any sense of morality. Likewise, while much of the country has started to see through witchhunters' self-serving, anti-rational proclamations like "children don't lie," diehards who still hadn't gotten the news by 1994 could perpetrate the Wenatchee farce.

Finality! Why even bother having a trial, then? Why not lynch law?

Scott Harshbarger, Larry Hardoon, and all the politicos building their careers on capital punishment or child abuse witch hunts -- Janet Reno, for one, has built hers on both -- will never have to worry about being railroaded themselves. Too bad for those who aren't as well connected.

I don't think that Scott Harshbarger or the Supreme Judicial Court should be described as having made mistakes. A mistake is something that one does inadvertently. Harshbarger, Hardoon and their "good old boy" cabal didn't make a mistake. The Supreme Judicial Court didn't make a mistake. I think that they all knew full well that they were imprisoning the Amiraults on a lie, and they know right now that they've sent Cheryl Amirault back to jail because of a lie. Deliberate railroading is not a mistake.

William Kreuter
Justice: Denied contributor

(Editor's note: This letter was submitted when, as we reported in Issue 8, it appeared that Cheryl Amirault LeFave would return to jail on September 15. Since Mr. Kreuter wrote, we have all learned that Cheryl LeFave will go free after all, even though it's at the considerable cost of forfeiting her right to pursue her claims of innocence. We at Justice: Denied know, perhaps more than the average citizen might, how desperately difficult it is to wrest full justice from our system. Cheryl was faced with possibly never being able to get a retrial, and even if she did, she faced the same closed doors. Realistically, they would never give her a chance. Cheryl joins others, like Bill and Kathy Swan, who are innocent but may never have the chance to prove it. Other innocent people, indeed, have gone to their graves without the satisfaction of proving their innocence. Cheryl, thank God, is alive, and however hard it may be, she can work at rebuilding what is left of her life and work toward helping her brother, Gerald Amirault.)

Neil Abrahams Writes to Justice Denied about Mumia Abu-Jamal

In our last issue (August, No. 8), we published some letters from Mr. Neil Abrahams, and the response of Editor Clara Thomas Boggs. Mr. William Kreuter has responded more fully to Mr. Abrahams.

Kreuter's response appears after the following edited version of Abrahams' e-mail to Boggs.

August 28, 1999

Dear Ms. Boggs,

Although I've been at the library I haven't read the Vanity Fair article, which proves to me that I really didn't care that much about defending Bloch's claim in your magazine, but I do now. I firmly believe he is telling the truth; you might call me naive, but I believe that listening to someone speak for a few minutes and thinking about peoples' possible motivations sometimes provides enough info to make a call on who is telling the truth. What I can say now is that a lot of people have invested much time and emotionally energy in nurturing the belief that Mumia has been wrongly imprisoned; they will not be convinced otherwise. I was and remain open to doubt, although Mumia's case never seemed strong to me. I can understand all of Bloch's actions, including his letter to Mumia wishing him well on retrial and saying that justice sometimes prevails. You can believe someone is guilty of an act and still think that it is just for them to be found not guilty--it's happened many times back East, in fact, and is called jury nullification. Obviously Mumia's words are consistent with guilt; does anyone actually think he'd admit the truth of Bloch's assertion, assuming that it is  true. But more important, if my understanding is correct, is that Mumia has never said he didn't shoot the officer. If that's true, it's difficult to comprehend how any adult to conclude anything other than that Mumia is guilty.

Lastly, and I thank you for reading this far, I wanted to comment about the tone of Mumia's press conference. He engaged in some very unsavory character assasination when he suggested that Bloch was seeking publicity or favors from the D.A. (what might they be?) since he was obviously a failure in life as he had been ONLY a substitute teacher and had been one for many years. If Mumia is telling the truth, why would he stoop to such a cheap (and untrue)  shot?

Neil Abrahams

P.S. I'm very skeptical when people claim victimhood based on their race. Because I did not learn things I should of as a boy my life has been much less satisfying and productive than it could have been. I put much effort into trying to be a good teacher while retaining my dignity, and have not fared well using that strategy. I've seen and experienced too much to believe that being African-American, Hispanic, or a woman in any way makes a person a victim. I don't beleive that people working in criminal justice are rascists; our laws and present-day realities apparently do lead to results which certainly are unfair. But it's the laws and social realities that need changing, not the people working in law enforcement. I am all for affirmative action and a fairer society, but aa should be based on quantifiable disadvantage, not on whether a person lacks a Y chromosome or has more melanin in his or her skin.

August 31, 1999

Dear Mrs. Thomas Boggs,

I read the Vanity Fair article today. It provides much of the history of the case and what's been happening regarding Mr. Jamal's supporters. There were mistakes made, as there invariably are in any life and death situation. The police could have done a residue test on Mr. Jamal when they arrested him, though it was also reasonable not to do one given that he had just been struggling with a police officer. The judge was considered to have pro-police and pro-d.a leanings. It could not positively be concluded that the gun on Mr. Jamal's side was the one which shot the bullets which blew the holes in the back and the face of Officer Staughton, though the bullets that did so were consistent with the characteristics of ones shot from that gun.

These facts must be weighed against the evidence that Mr. Jamal did murder Officer Staughton. There was eyewitness testimony from four people at the scene who, although three did not see Mr. Jamal when the shots were fired, put him in the immediate vicinity of the by then dead officer, in a position that looked like he had done the shooting. There's the fact that Mr. Jamal has never offered an explanation of what happened that night. There's the fact that his brother, who was at the scene, said "I ain't done nothing" when questioned and has never said that Mr. Jamal is innocent. There's the fact that Mr. Jamal was shot by Officer Staughton, who was neither a rogue cop, rascist, or informer for the FBI, as some of Mr. Jamal's supporters are now claiming. There's also testimony by two people in the emergency room that Mr. Jamal admitted to have done the shooting and said he hoped the officer would die.

A myth has developed that Mr. Jamal was a crack reporter exposing brutality in the Philadelphia Police Department and was set up by the police. Several people who worked with Mr. Jamal in the WHYY news bureau were interviewed. They stated that at one time he was a promising reporter (with his melodius voice and clear intellect being great assets) but his work became erratic and he stopped showing up for work almost entirely towards the end of his employment with WHYY. He was asked to resign after he disappeared without explanation with a station vehicle for three days. One manager admits that Mr. Jamal was very good at manipulating people; he believes he was one of those so manipulated.

Concerning the validity of Mr. Bloch's claim: as I've written in my previous letter, it is not inconsistent, in the mind of someone who deeply believes that society is unjust, to hope that a person whom he believes did kill someone would eventually be found not guilty and released. Certainly someone opposed to the death penalty might feel that way where the choice is between release after fifteen or so years on death row and an imminent execution. Mr. Bloch had, in fact, assumed, after reading about the trial, that Mr. Jamal was guilty. Certainly, as a member of the Pennsylvania Prison Society, he  believed in mercy, not at all necessarily that all, or even most, prisoners were innocent. So, again, I beleive his accounts of what took place in that prison cell.

There are many people, particularly mentally troubled people, who have been wrongly killed by the state or are awaiting execution. Mr. Jamal is clearly not mentally ill, he and his lawyers have been unable, despite years of intense effort, to come up with any exonerating evidence and have done nothing other than try to cast doubt on the motivations of the police, Officer Staughton, and now Mr. Bloch. Their theories are reminiscent of those of Mr. Simpson's defense team.

Sincerely, Neil Abrahams

William Kreuter responds:

I agree completely with Clara Thomas Boggs' reply in our last issue to Neil Abrahams' letters.  First of all, as Clara noted, the slain policeman's name was Daniel Faulkner. There is no Staughton associated with the case to my knowledge. To Clara's rebuttal of the claims that Mumia confessed in the hospital, I'll add that police and medical reports from the scene stated that Mumia said nothing and was nearly unconscious, and those testifying otherwise first made such statements at least several weeks after that night.

Mr. Abrahams writes that Mumia's words and his failure to deny shooting Faulkner are consistent with guilt. Mumia hasn't admitted the shooting, either, but I think this is all irrelevant. Notwithstanding the phony  "confessions" publicized over the years by those who have always hated Mumia and wished him dead, Mumia has maintained silence since his trial concerning the events of the fatal night. Abrahams must be unfamiliar both with the constitutional right not to self-incriminate and with legal procedure if he sees this as evidence of guilt. Abu-Jamal did, by the way, deny the shooting during the trial itself.

Abrahams offers the selected snippets of evidence from the 1982 trial which are typically cited by Mumia's antagonists. What one doesn't hear is that the statements of key witnesses changed, in some cases completely, between their earliest interviews and their trial testimony. We don't hear about the discrediting of these witnesses, and the new witnesses favorable to Mumia, in the evidentiary hearings since 1995. We don't hear about the witness coercion and fabrication of evidence, conveniently unavailable witnesses, or about the trial judge who openly sided with the prosecution.

I sometimes dislike the tone and, on occasion, the substance of statements by some of Mumia's supporters. As I suggested in my article in Issue 7, I think that some of them have used the case to advance a political agenda and have ended up hindering justice for Mumia. One of Mumia's supporters made what I regard as ugly and arguably racist remarks about Philip Bloch, but I don't think the facts of the case are altered by the amiability of Mumia's supporters.

Abrahams claims Mumia said that Bloch could have received favors from the DA,  which Abrahams finds to be further evidence of Mumia's guilt. Actually, Mumia's written and broadcast responses to Bloch, including the tape played at Mumia's attorneys' August 3 press conference, say nothing whatsoever about favors from the DA. That actually sounds more like recent evidence that a prostitute and a cab driver were not harassed by police in exchange for testifying against Mumia in 1982, allegations which have nothing to do with Bloch or reactions to him. Mumia did conjecture that Bloch was seeking publicity, and I agree that Bloch could conceivably have been motivated by publicity. While Mumia did mention Bloch's being a substitute teacher, he did not call Bloch a "failure in life," nor did other participants in the August 3 press conference. (To listen to the press conference, go to http://www.webactive.com/pacifica/demnow.html and look for August 3 in the archive.) If any of Mumia's supporters said that (and I have no record of it), I again don't think that Mumia's guilt is demonstrated by his supporters' hyperbole.

As for Mumia's work history at WHYY, I've heard it characterized differently than Abrahams relates. One can read and hear Mumia's more recent work, and in my opinion it's high quality. In any case, here too, whether or not Mumia was or is a good reporter doesn't seem to me to have much bearing on how the evidence of the fatal night should be judged.

Abrahams writes, "I'm very skeptical when people claim victimhood based on their race." I think this completely misstates the racially prejudiced nature of the trial and its aftermath. It's a statistical fact, not a claim of victimhood -- I don't know what "victimhood" means, but Mumia hasn't claimed it -- that blacks are disproportionately sentenced to death in Philadelphia. It's most likely true that the 1982 prosecution and judge excluded jurors on the basis of race. It's definitely a fact that the Philadelphia DA's office had a video to train new prosecutors in how to exclude racial minorities from juries. Even the US Supreme Court has acknowledged that race of the victim and of the defendant is a major factor in determining whether a death sentence is issued.

I believe that the motivations of the police are very much the issue. I think that demonstrating evidence of their agenda, as well as bringing up such obvious flaws in Bloch's reliability as his dismissal from the Prison Society, his letter to Mumia or his signing the newspaper ad, help strengthen the case for the worthlessness of Mumia's trial and/or Bloch's story.

Abrahams is just wrong to say that Mumia's defense has not come up with any exonerating evidence. Perhaps that's what the Vanity Fair author wants the public to believe. The author, Buzz Bissinger, is a publicist and right-hand man for Mumia's prosecutor and present Philadelphia mayor Ed Rendell. Rendell, who may run for US Senate, advocates and has everything to gain from Mumia's death. Bissinger did not ask Mumia for his side of the Bloch story, and he didn't contact the Prison Society before publication. Vanity Fair ignored Mumia's attorney's warning of Bissinger's bias. Bissinger's article criticizes Mumia's supporters for ignoring the trial record -- but the article, which misstates even the judge's name, is full of its own mischaracterizations of the legal proceedings. By comparison, Stuart Taylor's article in American Lawyer four years ago was based on a detailed scrutiny of the record, and the conservative Taylor concluded that the 1982 and 1995 proceedings were travesties and the alleged 1981 confession a police fabrication.

I suggest that interested readers look for themselves at a bit of what the defense has found. http://mojo.calyx.net/~refuse/mumia and http://www.mumia.org are examples of the several web sites where one can find Mumia's supporters' point of view. I particularly direct readers to http://mojo.calyx.net/~refuse/mumia/071399vfreply.html for a detailed refutation of Bissinger's article, and to http://mojo.calyx.net/~refuse/mumia/061898kgotv.html for a refutation of one of several television programs which repeated the claims of the Justice4DanielFaulkner web site. A good summary of the exonerating evidence missed by Abrahams is at
http://mojo.calyx.net/~refuse/mumia/091297weinglass.html.

Finally, Abrahams is among the long line of Mumia's detractors who haven't explained how even the state's own evidence justifies a verdict of aggravated murder or a sentence of death. The evidence, even as the state presented it, only pointed to a heat-of-the-moment killing during a brawl. The death sentence was obtained by the state's offering as evidence Mumia's having once quoted Chairman Mao. Does Abrahams believe in elevating a brawl into capital murder just because of the defendant's abstract political opinions? While Abrahams doesn't say if either in general or in this case he supports the death penalty, I observe that everyone, including himself, is at pretty serious risk when government functionaries get the right to kill us because of our politics.

William Kreuter is Washington State Death Penalty Abolition Coordinator for Amnesty International, and he serves on the steering committee of the Washington Coalition to Abolish the Death Penalty. He wrote the article about Mumia Abu-Jamal which appeared in Issue 7 of Justice: Denied

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