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Tax dollars are being spent to build prisons instead of schools, that alone is absurd.  Tax dollars, 19 Billion of them, will be spent on a "drug war", that only keeps out 2% of the drugs trafficked into the USA.

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December 2007


Release sickest prison inmates

IN OUR OPINION Detroit Free Press

12-24-07 -- Attorney General Mike Cox won his office in part by promising to be tough on lawbreakers. . . . But in objecting to the release of some dying and severely sick prison inmates, Cox is acting more like a bully. . . . Gov. Jennifer Granholm's administration plans to review, for possible release next year, the cases of 500 sick, dying and elderly inmates, partly to ease Michigan's budget crisis. Last year alone, the sickest 300 prisoners cost the state $30 million. This year, Granholm has approved nine medical commutations -- as many as she had in the previous four years. . . . Different standards . . . It's clear, however, that Granholm and Cox are not on the same page. Since late July, Cox's office, after rarely objecting to these releases, has opposed half of the commutations proposed by the administration. Cox spokesman Rusty Hills said the Attorney General's Office is applying consistent criteria, taking into account the nature of the crime, the degree of the inmate's physical and mental impairment, the wishes of the crime victims, and the amount of prison time served.


Two more freed in Genarlow Wilson case
By Chandler Brown, The Atlanta Journal-Constitution

12-22-07 -- The state Board of Pardons and Paroles on Friday granted parole to two young men in the Genarlow Wilson case, ending prison sentences for all but one of the "Douglasville Six" in a case that drew national attention and led to a change in sex offense laws in Georgia. . . . Ryan D. Barnwell and Cortez Robinson, both 22, were released from prison Friday morning after 3 1/2 years behind bars. . . . "It's a great day. The family is ecstatic," said Barnwell's cousin, Norman Broadnax. "It's a great Christmas present having him home." . . . Wilson was freed from prison Oct. 26 after the Georgia Supreme Court ruled that his 10-year sentence for having consensual oral sex with a 15-year-old girl was "cruel and unusual punishment."


High court gives judge 30 days to act

By Heather Ratcliffe, St. Louis Post-Dispatch

12-22-07 -- The Missouri Supreme Court ordered a St. Louis judge on Friday to either dismiss charges against a man accused of tampering with a motor vehicle or give him a trial in the next 30 days. . . . Tracy McKee, 42, has been asking for a speedy trial since September 2006, about a month after he was arraigned in St. Louis Circuit Court. Since then, five trial dates were scheduled and then postponed. Court records do not explain the delays, according to the Supreme Court. . . . In total, McKee filed five motions without his lawyer, seeking a speedy trial or that the charges be dismissed. He has been in jail since his arrest June 4, 2006. . . . "Since each continued trial date prompted Mr. McKee to file another motion for speedy trial, it seems evidence that none of these continuances were entered at his request," Chief Justice Laura Denvir-Stith wrote in the opinion.

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U.S. appellate court overturns state murder conviction

Bob Egelko, Chronicle Staff Writer

12-21-07 -- A federal appeals court overturned a Santa Rosa woman's murder conviction Wednesday for killing a man during an attempted carjacking in 1996, saying she had been forced to go to trial with a lawyer she wanted to replace. . . . Nicole Bradley was 18 when she and two juveniles were arrested for the fatal shooting of James Strickler Jr., 19, of Santa Rosa. The court said Bradley had shot Strickler unintentionally, but she was convicted of first-degree murder and sentenced to 35 years to life in prison for a homicide committed in the course of another felony. . . . Bradley's lawyer quit before the trial, and a Sonoma County judge appointed a replacement in a hearing from which Bradley and her chosen lawyer were excluded. When Bradley sought to dismiss the new lawyer because of conflicts, Superior Court Judge Knoel Owen refused, saying the trial had already been delayed by almost two years and it wasn't clear Bradley could pay for her own lawyer.

Totalitarianism In America

By Stephen Baskerville, Ph.D,

12-19-07 -- Mass incarcerations without trial or charge; forced confessions; children forcibly separated from their parents with no reasons given; doctored hearing transcripts and falsified court records; evidence fabricated against the innocent; government agents entering the homes, examining private papers and personal effects, and seizing the property of citizens who are under no suspicion of legal wrongdoing; special courts created specifically to convict people who cannot be convicted in ordinary courts; children instructed to hate their parents by state functionaries: Is all this the Soviet Union in the 1930s or Communist China in the 1960s? Is this some novelist’s prognosticated dystopia? No, all this and more is routine in the United States today. . . . Among the most disturbing tales to come out of totalitarianism were the revelations of how both Nazi and Communist governments intruded into family life. The practice of governments dictating to parents what they could tell their children or using children as informers against their parents strikes us as chilling and unnatural. Yet similar practices are occurring in America today on a much more massive scale. . . . What we are talking about here is family law, a secretive political underworld of which few are aware until it strikes them. Parents summoned to family court discover that their children can be taken away, they can be forced to turn over all their property without explanation to government officials and their private clients, their future earnings can be confiscated to the point where they are unable to house or feed themselves, and they can be incarcerated without trial – all without any evidence or even charge that they have committed any actionable offense.

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Judge: Treating the Mentally ill Is Better than Jailing Them

By Bill Kaczor, The Associated Press

12-12-07 -- A groundbreaking proposal designed to keep mentally ill people from winding up in jails and prisons will not result in dangerous patients being put back on the streets, a judge assured lawmakers Tuesday. . . . A subcommittee created by the Florida Supreme Court, but also including legislative and executive branch members, has proposed using Medicaid dollars and shifting money spent on treating mentally incompetent people after they are arrested to ramping up care outside the criminal justice system. . . . Such civil treatment would be expected to prevent mentally ill people from getting arrested in the first place, but Sen. Evelyn Lynn, R-Ormond Beach, was worried about the potential consequences of placing more patients in community-based facilities. . . . "Sometimes there's a slip up and they wander," Lynn said. "Sometimes there's a slip up, they don't take their meds. You end up with them hurting themselves, seriously hurting others." . . . Miami-Dade County Judge Steven Leifman, who heads the Supreme Court's mental health subcommittee, said patients who do have such problems then would be hospitalized until they are able to return to community care.

Inmate told judge he'd kill him, his family

By Austin L. Miller, Star-Banner

12-12-07 -- Without blinking his eyes, 27-year-old Tyrone LaMont Summers vowed to carry out his threat of killing Circuit Judge Brian Lambert if he's ever released. . . . "Once I get out, I'm going to go look for him. He should be worried," Summers said. . . . Already in the Marion County Jail since Aug. 22 on a charge of capital sexual battery where he has no bond, Summers was charged Tuesday with threatening a public servant. . . . Summers reportedly sent a threatening letter to the judge from the jail. The judge opened and read the letter on Dec. 10. It was signed by Summers. . . . Detective Donald Buie of the Sheriff's Office interviewed Summers who admitted to writing the letter "because he was pissed off at Judge Lambert," his report noted. . . . In a Star-Banner interview, Summers said he wants to harm the judge because he believes he has mishandled his sex case. . . . "I didn't do it. It's a bunch of lies and he knows it and he doesn't want to do anything about it," Summers said.


New law to set Hawaii killer's prison term

By Jim Dooley, Advertiser Staff Writer

12-12-07 -- Convicted murderer John K. Lorenzo Jr. will be the central figure in two test cases of a new state law that allows longer prison sentences for certain convicted felons. . . . This morning, the jury that convicted Lorenzo last month of murdering off-duty state Deputy Sheriff Daniel Browne-Sanchez will re-convene to decide whether Lorenzo should receive an "extended sentence" of life without the possibility of parole. . . . The normal sentence for a conviction of second-degree murder is life with the possibility of parole. . . . It's the first time a Hawai'i jury rather than a judge will decide whether an "extended sentence" is warranted by the circumstances of the case or the felon's previous record.


Linking cause to effect, 41 years on

The prosecution's burden: The police officer was shot in 1966. A coroner ruled the death in August homicide.

By Natalie Pompilio, For The Inquirer

12-10-07 -- More than 40 years have passed since William Barnes shot rookie Police Officer William Barclay. It was an act that dramatically altered both of their lives - sentencing one to a life of partial paralysis and the other to 20 years in prison - and the effects of those bullets are still being felt. . . . Barclay died in a Middletown hospital in August at age 67, and the Bucks County coroner ruled his death a homicide from that long-ago shooting. Barnes, 71, then living in a halfway house, was charged with murder. A preliminary hearing to determine whether the case should go to trial is scheduled for tomorrow at the Criminal Justice Center. . . . The case has drawn national attention: The Washington Post and Toledo Blade weighed in with editorials advocating Barnes' release. Lancaster's Intelligencer Journal asked readers for their opinions during its weekly phone poll: 80 percent of respondents said Barnes should not be tried for murder.


Barrington man goes to prison for failing to make court-ordered payments to Warwick assault victim

By Edward Fitzpatrick, Journal Staff Writer

12-7-07 -- With the click of handcuffs, a Barrington man was taken from the courtroom and sent to state prison yesterday because he failed to make court-ordered payments to a Warwick man whose skull he cracked in a 1988 brawl. . . . Paul D. Grieder, 42, who lives with his parents on Linden Road, must serve 30 days at the Adult Correctional Institutions for willful contempt of court because he did not make payments to Michael P. Trainor during a portion of 2002. . . . Superior Court Judge Daniel A. Procaccini told Grieder that people “who are far more disadvantaged than you” come to the courthouse every day to pay fines and other court-ordered payments. . . . “You simply refuse to do so,” Procaccini said. “You work. You are able bodied. The key to your jail cell is in your pocket. Apparently, it is going to remain in your pocket for the next 30 days.” . . . Since a 1992 civil judgment, Grieder has paid about $21,000 toward the $1.5 million he owes Trainor for the assault, which occurred outside a Providence nightclub and left Trainor with a loss of hearing. With interest, the debt now totals nearly $5 million. . . . Procaccini told Grieder, “You have had ample opportunity to comply with various orders of this court.” . . . He noted that in 2002, now-retired Judge Stephen J. Fortunato Jr. ordered Grieder to pay Trainor $400 per month, but he said Grieder did not comply and was found in contempt of court. . . . In 2004, Procaccini tried to double Grieder’s obligation to $800 per month, saying Grieder is “able bodied, educated and highly employable, far more than he is presently employed.” Lawyers have said Grieder paid Trainor a lump sum of $5,800 in 2004 and made monthly payments for a time before payments became sporadic and then stopped.


Poor medical care at Nevada prison cited

Inmates at the Ely facility have been denied help for heart problems, diabetes and other serious medical conditions, records show.

By Ashley Powers and Henry Weinstein, Los Angeles Times Staff Writers

12-6-07 -- When Nevada death row inmate Charles Randolph asked for a specific medicine to address his heart condition earlier this year, Max Carter, the prison's physician assistant, sent a curt reply: The medication was the wrong kind and potentially lethal, but he would be happy to prescribe it "so that your chances of expiring sooner are increased." . . . When another prisoner, John O. Snow, asked for pills in July to ease the pain from his deteriorating joints, Carter's denial came with another stinging missive, stating that he was "gonna let you suffer." . . . To many prison observers, Carter's responses exemplify the callous indifference custody officials at the maximum-security Ely State Prison have for sick prisoners. There has been no staff doctor to handle the medical needs of any the 1,000 inmates here for more than 18 months. Carter is the highest-ranking medical worker at the men's prison; the last staff doctor was a gynecologist. . . . According to interviews and records obtained by The Times, prisoners at Ely have been denied care for heart problems, diabetes and other serious medical conditions. Earlier this year, a nurse was fired after complaining about substandard care at the facility, which she said led to one inmate needlessly dying of gangrene.


Both sides cheer court's prison program ruling

by Tom Strode

12-5-07 -- (BP)--Both sides of a church-state legal battle found something to celebrate in a federal appeals court's opinion on a Christian ministry in an Iowa prison. . . . The Eighth Circuit Court of Appeals, based in St. Louis, ruled Dec. 3 that a federal judge was correct in deciding the state's support of the InnerChange Freedom Initiative operated by Prison Fellowship violated the bans on government establishment of religion in both the U.S. and Iowa constitutions. The court, however, reversed the part of Judge Robert Pratt's 2006 decision that ordered Prison Fellowship to shut down the program and return to the state $1.5 million it received to help run it. . . . Both sides indicated they do not expect to appeal the ruling to the U.S. Supreme Court, The Washington Post reported.



Our justice system is badly flawed, Mistrett says

By Dan Herbeck News Staff Reporter

12-03-07 -- Attorney Joseph B. Mistrett said he has enjoyed being part of the federal court system for the past 23 years because he likes and respects the people he has worked with. . . . But Mistrett, who retired Friday from his job as the region’s chief federal public defender, feels the nation’s justice system is badly flawed. . . . He said he leaves with a sense of frustration over a system that imprisons people in record numbers but, in his view, fails to address the sociological problems that cause crime. . . . “We’ve put two million people into prisons throughout this country, but is it doing any good?” Mistrett asked in a recent interview. “Does anyone really think that we have less drug trafficking than we did before this drug war started 30 or 40 years ago?” . . . Mistrett blames the failings of the system on misplaced government priorities.

Let's Put the "Justice" Back in Our Juvenile Justice System

Marian Wright Edelman

12-3-07 -- Although she had no prior criminal record, 14-year-old Shaquanda Cotton was sentenced in 2006 to up to seven years in correctional detention for shoving a teacher's aide in the small town of Paris in East Texas. Another 14-year-old girl was sentenced by the same judge to probation after she was convicted of the serious crime of arson. Shaquanda is Black and the other girl is White. Shaquanda was imprisoned at the Ron Jackson State Juvenile Correctional Complex in Brownwood, Texas, under an indeterminate sentence that could have lasted until her 21st birthday. Fortunately she was released in March 2007, having spent a year behind bars, after a wave of protests from civil rights groups prompted officials to intervene. Shaquanda's case is just one of many reflecting the racial inequity in America's juvenile justice system, which funnels low-income children of color into the Cradle to Prison Pipeline and unnecessary detention. . . . The Pipeline, which sucks many young people into adult criminal justice systems, runs through economically depressed neighborhoods, failing schools, across vacant lots where playgrounds and health facilities should be, and in and out of broken, understaffed child welfare agencies. By the time many children get arrested and are brought before a juvenile court, they have been provided far too little loving and thoughtful adult support only to face purported child serving systems that treat them unjustly.


Serving Life for Providing Car to Killers

American Exception

By Adam Liptak, NY Times

American Exception

Murder, Once Removed

This is the second in an occasional series of articles that will examine commonplace aspects of the American justice system that are actually unique in the world.

Previous Articles in This Series »

12-3-07 -- Early in the morning of March 10, 2003, after a raucous party that lasted into the small hours, a groggy and hungover 20-year-old named Ryan Holle lent his Chevrolet Metro to a friend. That decision, prosecutors later said, was tantamount to murder. . . The friend used the car to drive three men to the Pensacola home of a marijuana dealer, aiming to steal a safe. The burglary turned violent, and one of the men killed the dealer’s 18-year-old daughter by beating her head in with a shotgun he found in the home. . . . Mr. Holle was a mile and a half away, but that did not matter. . . .. He was convicted of murder under a distinctively American legal doctrine that makes accomplices as liable as the actual killer for murders committed during felonies like burglaries, rapes and robberies.


Prison inmate lawsuits abound

S.C. Department of Corrections has been sued 734 times since 2003

By Adam Beam

12-3-07 -- It is his seventh year of a life sentence for armed robbery, and already Eric Samuel has lost his underwear. . . . The 38-year-old Charleston man switched prisons in July 2006. His underwear, cooler, coffee pot, fan and typewriter were lost in the move. . . . To Samuel, it was a clear violation of his “fifth amendment constitutional rights.” . . . So he took his sick call notes, flipped them over on the blank side and wrote out a lawsuit in all capital letters with black ink. . . . He is asking for $279.74 to cover the cost of his belongings and an additional $5,500 for his trouble. . . . The case was one of seven lawsuits Samuel filed in 2006 against the S.C. Department of Corrections, and one of 11 he has filed since his prison sentence began in 2000. Three of his cases are pending. . . . Each year, inmates file hundreds of lawsuits against the Department of Corrections, department spokesman Josh Gelinas said. Most are carefully handwritten on sheets of notebook paper, or whatever loose leaves the inmates have to spare.

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Georgia court overturns ban on sex offenders living near areas where children congregate

The Associated Press

11-26-07 --Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate. . . . "It is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected," read the unanimous opinion, written by presiding Justice Carol Hunstein. . . . The law had been targeted by civil rights groups who argued it would render vast residential areas off-limits to Georgia's roughly 11,000 registered sex offenders and could backfire by encouraging offenders to stop reporting their whereabouts to authorities.


Judge skips guidelines, releases man in crack case

Long prison sentence hurts blacks, she says

By Jonathan Saltzman

11-20-07 -- A federal judge has freed a Boston man who pleaded guilty to selling small amounts of crack cocaine, saying that he dealt the drugs out of desperation and that long prison sentences for such crimes often do more harm to black communities than good. . . . US District Judge Nancy Gertner sentenced Myles Haynes to the 13 months he has served in jail since his arrest. She said that he appeared to be an honest man whose two admitted drug sales were isolated and that lengthy federal prison terms for such crimes are depleting cities of a generation of young black men. . . . "Isn't it time for us to say that there is on the one hand the impact of the drug trafficking and on the other hand the impact of mass incarceration of African-Americans from crack cocaine?" Gertner said from the bench Monday. "To suggest that the public safety requires the further incarceration of Mr. Haynes makes no sense." . . . Gertner then set aside sentencing guidelines that could have kept Haynes behind bars an extra 20 to 28 months. While federal judges sometimes depart from guidelines, it is rare for them to air such outspoken views from the bench.


Courtroom Cell Phone Camera Ruled Witness Intimidation Tool

Sheri Qualters, The National Law Journal 

11-18-07 --The Massachusetts Appeals Court upheld a lower court's witness intimidation jury verdict by ruling that pointing a cellular telephone camera at a witness in a criminal case is witness intimidation. . . . "It is irrelevant whether any photographs were taken, as the police officer was made to believe that the defendant was taking pictures of him and could disseminate his likeness, an act intended to intimidate," wrote Associate Justice R. Marc Kantrowitz. . . . The defendant was found guilty of intimidating a witness last year in a case that arose from a 2004 trial for drug-related offenses. While in a courthouse during his 2004 drug trial, the defendant acted as if he were taking cell phone photos of an undercover police officer who was scheduled to testify against him.


Justice and the 102-year sentence

Dothan Eagle

11-16-07 -- Johnny Ray Lewis may have fared better in the courtroom this week if he had been tried for murder, assault or some other violent crime. Instead, the Cottonwood man convicted on 17 felony counts related to dog fighting was sentenced to 102 years in the state penitentiary. . . . That’s the sort of comparison that shows how out-of-whack our justice system has become. However, it suggests unreasonable behavior on the part of the judge in the Lewis case, and that representation is simply unfair. . . . Houston County Circuit Judge Ed Jackson was well within the state’s sentencing guidelines determining Lewis’ fate. The range of punishment for each charge is one to 10 years; Jackson set punishment at six years for each charge, making the sentence 102 years. . . . Is the sentence unreasonable? . . . If one could expect inmates to serve even a third of their sentences, perhaps. . . . But in Alabama, that’s often not the case. . . . To the immense frustration of prosecutors and judges, many convicted felons are released after serving a fraction of the term handed down by the court, and a large percentage of those inmates soon find themselves back in court on new charges.


Judge says 500 remain in prison despite being paroled

Geoff Dornan, Appeal Capitol Bureau,

11-16-07 -- Supreme Court Justice Jim Hardesty told the Board of Prison Commissioners on Thursday that more than 500 inmates still are in prison despite the fact they have been granted parole. . . . He said the problem with many is there isn't space for them in programs which have been mandated as part of their parole conditions. . . . "There is a lack of facilities or treatment capability to meet the conditions that were imposed," he said. . . . Hardesty, who is chairing a study commission reviewing the prison overcrowding and, among other things, sentencing laws, said not all those conditions are necessary in some cases. . . . "A number of inmates have had conditions imposed on them - for example, in-patient treatment - who may not need in-patient treatment," he said.

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Unequal Justice Murderers on Probation

Even with strong self-defense claims, DAs may pressure defendants to take probation

Prosecuting Weak Cases "I wanted to ask the judge: 'What would you do in that situation? Would you sit there and let it happen, or would you defend yourself?' "--– Jacqueline Fox

11-14-07 -- The 17-year-old is trying to escape her ex-boyfriend, a career criminal twice her age. He hits her and tries to throw her over the second-floor railing. . . . She breaks free and takes refuge in a relative's apartment. But later, when she tries to leave, he is waiting with a handgun. . . . "Bitch, I told you, every time I see you I'm gonna kick your ass," a witness recalls him saying. He hands the gun to a buddy, hits her again and grabs a 2-by-4 from a truck bed. . . . What would you do? She runs. He chases her down and hits her with the board. . . . What would you do? She stumbles toward her mother's door and screams for help. He pounds her so hard that the board breaks. . . . What would you do? She stabs him twice with a kitchen knife, as her mother tries to intervene. . . . What prosecutors did was persuade a grand jury to indict Jacqueline Fox and her mom on murder charges. They told the teen she could avoid the risks of trial if she agreed to a 30-year prison sentence. . . . Ms. Fox refused. Too poor to afford bail, she spent 4 ½ months in a Dallas County jail awaiting trial. . . . As jury selection was about to start in early 2001, she got a surprise offer: Plead guilty, get probation. . . . She was mad. But given how much muscle the state had already shown, she was also afraid. . . . She took the deal. . . . Then the prosecutor dropped the charge against her mom.


Panel may cut thousands of prison terms

The early release of 19,500 inmates could result as officials try to address perceived unfairness in sentencing under federal cocaine laws.

By Richard B. Schmitt, Los Angeles Times Staff Writer
11-12-07 -- Under pressure from federal judges, inmate advocacy groups and civil rights organizations, federal authorities are considering a sweeping cut in prison sentences that could bring early release for thousands of federal inmates. . . . The proposal being weighed by the U.S. Sentencing Commission would shave an average of at least two years off the sentences of 19,500 federal prisoners, about 1 in 10 in the 200,000-inmate system. More than 2,500 of them, mainly those who have already served lengthy sentences, would be eligible for release within a year if the rule is adopted. . . . Such a mass commutation would be unprecedented: No other single rule in the two-decade history of the Sentencing Commission has affected nearly as many inmates. And no single law or act of presidential clemency, such as grants of amnesty to draft resisters and conscientious objectors after World War II and the Vietnam War, has affected so many people at one time.


Supreme Court: Mannequin sex doesn't equal indecent exposure

By Terry Woster

11-12-07 -- A Sioux Falls man caught in the Washington Pavilion having simulated sex with a mannequin didn't commit a crime of indecent exposure, the state Supreme Court says. . . . In a decision released Thursday, the court reversed the conviction of Michael James Plenty Horse, who was found in the late afternoon of Nov. 14, 2005, lying on top of a mannequin in the Alumni Room of the Pavilion. . . . A security guard surprised Plenty Horse, the record says. He lay with his pants partially down on a mannequin which had its band uniform partially removed. He was 19 at the time. . . . The Supreme Court unanimously reversed a misdemeanor conviction, saying the state's indecent exposure statute "criminalizes sexual gratification by displaying or showing one's genitals in public." . . . The evidence failed to show that Plenty Horse was trying to display himself in public. It was almost closing at the Pavilion, and no other patrons were around when the guard found the man. . . . The court said Plenty Horse's action, "lewd though it may be, does not fall within the purview of the indecent exposure statute."

Lillian Vernon Online


Justice done ... barely

Rome News-Tribune

11-7-07 -- THE GENARLOW Wilson decision by the Georgia Supreme Court must be viewed as a disappointment. No, not because Wilson, sentenced to a mandatory 10 years in prison for, at age 17, having consensual oral sex with a young lady two years his junior, was instantly set free and his sex-offender registry status erased. Rather, it is terribly disappointing because the vote by the justices was 4 to 3. . . . How can three justices with straight faces argue that what the others — and most of the public — consider to be “cruel and unusual punishment” is acceptable because the legislature, in writing the law, was willing to allow it? How can critics of the majority opinion — which deserved to be unanimous — condemn it as “judicial activism” because the judges were “legislating from the bench”? Has understanding of the role of the judiciary, particularly as regards fundamental principles, really plunged to such depths?


Nebraska Supreme Court: Inmates deserve DNA tests

By Clarence Mabin / Lincoln Journal Star

11-7-07 -- Two Nebraskans imprisoned for a 1985 murder can seek DNA testing that could undermine testimony prosecutors used to get their convictions, the state Supreme Court said Friday. . . . Thomas Winslow, 41, and Joseph Edgar White, 44, were sentenced to 50 years and life in prison, respectively, for the murder of Helen Wilson, who was severely beaten and sexually assaulted inside her Beatrice apartment during a robbery. A brother-in-law found her body the next morning. Among other injuries, Wilson, 68, had fractures to her ribs and sternum and numerous bruises and scratches. . . . Prosecutors charged White with first-degree murder and at his trial, others who participated in the robbery implicated him and Winslow in the sexual assault. . . . Winslow, in a plea deal, pleaded no contest to aiding and abetting second-degree murder. . . . In 2006, both men filed motions for DNA testing under the 2000 DNA Testing Act, arguing the results could prove exculpatory, that is, they could clear a convicted defendant of the crime.


Most inmates want Houston crime lab cases reopened

By Juan A. Lozano  / Associated Press

11-5-07 -- All but four of 160 inmates who were questioned over the last two weeks have agreed to have their cases reopened because of shoddy blood analysis work by the Houston Police Department crime lab, attorneys said Thursday. . . . Since Oct. 22, the inmates have been gathered each day at prisons around the state so a Houston courts panel could tell them via videoconference that their convictions could have been influenced by the flawed lab work. They were told that if they wanted their cases reviewed, a lawyer would be appointed for them. . . . While some of the inmates simply said "yes" before shuffling back to their cells, for others it was more emotional. . . . "Some of them wanted to start talking about their case right away," said Bob Wicoff, a Houston defense lawyer assigned to lead the review. "One of them told me, 'I've been waiting for this day. I love you.' And you know what, he may be guilty, but if he was innocent, that may be the way you'd expect somebody to react. We shall see." . . . Last month, Harris County judges announced plans to review 180 cases identified as having "major issues" in body-fluid analysis in a final report this year from a special investigator hired by the city of Houston to investigate the lab.

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October 2007


Lawyer Says He Provided Ineffective Assistance to His Client on Purpose

New York Lawyer, By Mary Alice Robbins, Texas Lawyer

10-31-07 -- Knowing that he could face disciplinary action, criminal-defense attorney Christopher Hoover says he did not participate in his client's 2004 trial for misdemeanor driving while intoxicated in the hope that an appellate court would rule the client received ineffective assistance of counsel and order a new trial. And the strategy worked. . . . In a 5-4 decision on Oct. 17, the Texas Court of Criminal Appeals held in Cannon v. State that Hoover's failure to participate in the trial denied Darrell Cannon's constitutional right to effective assistance of counsel. . . . "Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution's case to meaningful adversarial testing," CCA Judge Charles Holcomb wrote for the majority. . . . Hoover, principal in Plano's Christopher N. Hoover P.C., contends that Collin County Court-at-Law No. 3 Judge John O. Barry forced him to go to trial when he was not prepared to render effective counsel. . . . "The judge handcuffed me, and I really had no other choice," Hoover says of his decision not to participate in Cannon's trial. . . . Cannon knew Hoover intended not to take an active part in the trial proceedings. "I told Mr. Cannon that it was in his best interests not to participate in the trial, because we couldn't present a defense," Hoover says. "Mr. Cannon told me to do what I felt was in his best interests."

Why Does the U.S. Sentence Adolescents To Life Without Parole?
By Sherry F. Colb

10-29-07 -- Last year the United Nations voted on a resolution to abolish life imprisonment without the possibility of parole for children and young adolescent offenders. The vote was 185 to 1 in favor of abolition, and the United States was the lone dissenter. Until 2005, moreover, when the Supreme Court outlawed the juvenile death penalty under the Eighth Amendment in the case of Roper v. Simmons, twenty states had allowed the execution of murderers who committed their crimes before the age of 18. . . . In this column, I will explore ways of thinking about crime in the U.S. that might help explain this punitive approach to juvenile offenders. / The Law Treats Juveniles as Presumptively Impaired . . . Many critics of the juvenile death penalty, prior to Roper v. Simmons, argued that such harsh penalties for juvenile offenders are radically at odds with the way the law ordinarily treats adolescents. With a drinking age of 21 and a voting age of 18, our law otherwise appears to embody the view that minors are not capable of making choices and governing their actions in the way that adults are. In addition, most states have "parental involvement" statutes that require a minor who wishes to obtain an abortion to notify, or obtain consent from, at least one of her parents first (with exceptions for various circumstances). If we believe that adolescents are impaired enough to justify an across-the-board ban on drinking and voting and a requirement for consultation with parents before an abortion, then why would we choose to visit draconian penalties upon them when they violate the criminal law against homicide?


Ga. Justices' Ruling in Teen Sex Case Confounds Some Predictions

Justice Thompson provided swing vote in releasing Genarlow Wilson, though he dissented in a similar case

Jonathan Ringel, Fulton County Daily Report

10-29-07 -- Friday's ruling by the Supreme Court of Georgia that Genarlow Wilson's 10-year sentence for aggravated child molestation was unconstitutionally cruel and unusual offered a sense of deja vu to those who followed the 2004 case of Marcus D. Dixon. . . . Each case concerned a young man serving a 10-year prison term for aggravated child molestation for what each said was consensual sexual contact that occurred when he and the alleged victim were teenagers. . . . Each case grew out of rape charges. Both were acquitted but convicted of lesser crimes. . . . Each case drew national media attention, with prosecutors denying they were racist for pursuing charges against black defendants.


Supreme Court frees Genarlow Wilson
By Scott Thurston, The Atlanta Journal-Constitution

10-26-07 -- The Georgia Supreme Court on Friday ordered the release of Genarlow Wilson, the Douglas County teenager who has been serving a controversial 10-year sentence for consensual oral sex. . . . The court's 4-3 decision upholds a Monroe County judge's ruling that the sentence constituted cruel and unusual punishment under both the Georgia and U.S. constitutions. . . . disproportionate" to the teenager's crime and noted that it was out of step with current law. . . . Wilson was convicted in April 2005 of aggravated child molestation for having oral sex with a 15-year-old girl at a 2003 New Year's Eve party in a hotel room. He was 17 at the time. . . . At the time the law the crime carried a mandatory 10-year sentence with no parole. However, the law was changed in 2006 to make Wilson's crime a misdemeanor with a maximum 1-year sentence. . . . "Although society has a significant interest in protecting children from premature sexual activity, we must acknowledge that Wilson's crime does not rise to the level of culpability of adults who prey on children ..." wrote Supreme Court Justice Leah Ward Sears in the majority opinion. . . . She said that "for the law to punish Wilson as it would an adult, with the extraordinarily harsh punishment of 10 years in prison without the possibility of probation or parole, appears to be grossly disporportionate to his crime."

You can access this ruling at this link.
The court issued
this news release summarizing the decision.


Prisoner Fights for Religious Expression

By Eric Tucker, Associated Press Writer

10-24-07 -- (AP) -- Wesley Spratt's house of worship is a cramped, windowless chapel at a maximum-security prison. A cross adorns a cinderblock wall and eight wooden benches seat the inmate congregation. . . . Spratt, a convicted killer with a life sentence and a professed calling from God, prays inside this sanctuary every Friday evening. He preaches here, too, lecturing on sin and salvation and reciting favorite Bible passages. . . . When a warden made him stop, Spratt sued. This summer he won his case and the right to resume spreading the Gospel, which he does. He preaches to anyone and everyone willing to listen. . . . "I've prayed with everybody," Spratt, imprisoned for the 1995 murder of a parking lot attendant, said in a prison interview. "I don't care who you are - child molester, bank robber, stick-up kid." . . . The legal challenge, ultimately decided by a federal appeals court, pitted Spratt against the state in a fight over religious expression.


OUR PUBLIC LIFE: It's Time for Restorative Justice

By Craig Hammond

10-22-07 -- There's a growing social movement that -- if fully implemented -- will dramatically change the way we deal with crime in this country. It's called "Restorative Justice." The present system of punitive justice has resulted in higher rates of recidivism and more prisons. It's clearly not working. . . . Restorative justice requires an offender to compensate victims, express remorse, perform community service specific to the crime, and take steps toward self-education that can reduce recidivism. . . .  In some places community restorative boards (made up of trained citizens) are established to hold face-to-face meetings with an offender required to attend by a judge's order. At these meetings the board and offender agree on a specific course of action to make reparations for the crime committed. After an agreed upon time period is completed, the board then sends a report to the court on the offender's compliance with the process. . . .  In a world of "Restorative Jusice," focus is on the victim -- not the state. Presently, an offender pays the state in the form of fines or prison time. The victim and the community get little or nothing.

For more on Restorative Justice visit and


University Rightfully Denies Forum To Publicly Name Alleged Rapists

by Glenn Sacks,

10-22-07 --The University of Maryland is under fire for denying activists from the Clothesline Project, a campus rape-awareness event, permission to publicly name alleged rapists. The university cites the danger of lawsuits from those named, and that's certainly a reasonable fear. Yet the university should also oppose naming alleged rapists because it could defame and harm innocent men. . . . A significant percentage of allegations of sexual assault are false. According to a study conducted by former Purdue sociologist Eugene J. Kanin and published in Archives of Sexual Behavior, in more than 40 percent of the cases reviewed, the complainants eventually admitted that no rape had occurred. Mr. Kanin also studied rape allegations in two large Midwestern universities and found that 50 percent of the allegations were recanted by the accuser. . . . In 1985, the Air Force conducted a study of 556 rape accusations. More than one-quarter of the accusers admitted, either just before they took a lie detector test or after they had failed it, that no rape occurred. A further investigation by independent reviewers found that 60 percent of the original rape allegations were false.


Outagamie County judge is issuing unusual sentences
Associated Press

10-22-07 -- (AP) - Outagamie County Circuit Judge Mark McGinnis is sentencing people convicted of nonviolent crimes to an unusual punishment -- tearing down houses for salvage. . . . Circuit Judge Mark McGinnis directs about a dozen people each month to knock down walls with a nonprofit called Habitat ReStore as part of a community service requirement. . . . The recycled items are then sold at the ReStore in Appleton, with the profits turned over to Habitat for Humanity. . . . A typical offender is assigned to 15 hours of service, enough for a 2-day stint.


Man Sentenced 8 Years Late for DUI Because of Lost Paperwork

New York Lawyer

10-12-07 -- (AP) -- A man was sentenced to house arrest for drunken driving and drug charges eight years after his paperwork somehow got lost in a bureaucratic shuffle, authorities said. . . . Douglas Gast, 33, was belatedly sentenced Tuesday to 30 days of house arrest for DUI, possessing marijuana and possessing drug paraphernalia in what Cumberland County President Judge Edgar B. Bayley called "the lost case." . . . Gast was upset when he received a notice in July that prosecutors wanted to send him to jail, said defense attorney Gregory Abeln. . . . "He thought this was over with," Abeln said. "Then out of the blue he gets a letter telling him to come to court." . . . Gast had originally faced up to 23 months in county prison after he was convicted in 1998. The state Superior Court denied his appeal the following year.


Perspectives on Jena
By Star Parker

10-8-07 -- At this point, there seems little doubt about the ugliness that has simmered, and then boiled, in a little town in Louisiana called Jena. . . . There is a lot that has already been said, and done, about the latent racism in the town that led to the display of nooses on a tree. Racism that led, in reaction, to six black youths brutally beating a young white man, and then the subsequent disproportionate sentencing, in which those black youths could have served prison time for trumped-up murder charges. . . .Action has been taken, and will be taken, so that those charges, and the penalties paid, get into line. . . . But I want to address another aspect of this sad incident, and that is the message that is being sent to black youth across this country. From what I see and read, it is the wrong message. . ..  This is the message engendered by the observation of the Rev. Jesse Jackson that the "Jena 6" affair is a "defining moment, just like Selma was a defining moment." And the further calling out by Jackson of Sen. Barack Obama, D-Ill., for not, in his opinion, focusing adequately on this incident. . . . The point is that Jena is not a defining moment like Selma, and Obama, and his current campaign for the presidency, is a major point of proof. . . . Both Jackson and the Rev. Al Sharpton made their own runs for the presidency. Jackson gained traction among black voters. Sharpton could not even do that.


Judge orders release of Floyd Brown

Murder charges are dismissed; had been held 14 years

Emily S. Achenbaum

10-8-07 -- Durham County Superior Court Judge Orlando Hudson dismissed murder charges today against Floyd Brown and ordered his release from Dorthea Dix State Mental Hospital in Raleigh. . . . The judge made no comment after his pronouncement. But during today’s hearing he repeatedly said about the case: “I don’t like it.” . . . When the judge delivered his decision, the courtroom erupted in stunned gasps and. Brown’s two attorney’s hugged their client.


SJC mulls remedy for a sentence not served

By John R. Ellement, Globe Staff

10-5-07 -- Middlesex prosecutors came under fire yesterday from the state's top jurists, who demanded to know why a Lowell man has remained free for the past 16 years when he should have spent at least two years behind bars for a 1990 rape conviction. . . . Vith Ly was convicted of raping a co-worker in 1989 and sentenced to 20 years in prison, but was freed on bail while his conviction was appealed. . . . Ly lost the appeal in 1991, but was never sent to state prison. . . . Yesterday, several Supreme Judicial Court justices questioned whether justice would now be served if Ly is returned to "the clink," as Justice Roderick Ireland referred to it. . . . The justices said they have to consider the fact that Ly has led a largely crime-free life since then, although he had two arrests for domestic violence in the early 1990s, and has raised a family and maintained steady employment. . . . "Someone dropped the ball in the DA's office," said Justice John M. Greaney.


State prisons face crowding problems with mentally ill inmates

10-1-07 -- (AP) _ A legislative report shows more than 20 percent of Connecticut's approximately 19,000 prison inmates have moderate to severe mental illness. . . . That fact is prompting some state lawmakers to point out an apparent shortage of trained psychiatric nurses and a need for more training for correction officers. Also, there's talk of creating a separate facility for inmates with mental illness to ease the space crunch. . . . "Because there seems to be no other options, they end up being dumped in jail," Rep. Michael Lawlor, D-East Haven, co-chairman of the legislature's Judiciary Committee told the New Haven Register. . . . "If you want to free up prison beds (to keep violent offenders behind bars longer), then get these mentally ill people out of there," Lawlor said.

  Discover Open Road

September 2007

Prisons to Restore Purged Religious Books

By Neela Banerjee, New York Times

9-26-07 -- Facing pressure from religious groups, civil libertarians and members of Congress, the federal Bureau of Prisons has decided to return religious materials that had been purged from prison chapel libraries because they were not on the bureau’s lists of approved resources. . . . The bureau had said it was prompted to remove the materials after a 2004 Department of Justice report mentioned that religious books that incite violence could infiltrate chapel libraries. . . . After the details of the removal became widely known this month, Republican lawmakers, liberal Christians and evangelical talk shows all criticized the government for creating a list of acceptable religious books. . . . The bureau has not abandoned the idea of creating such lists, Judi Simon Garrett, a spokeswoman, said in an e-mail message. But rather than packing away everything while those lists were compiled, the religious materials will remain on the shelves, Ms. Garrett explained. . . . In an e-mail message Wednesday, the bureau said: “In response to concerns expressed by members of several religious communities, the Bureau of Prisons has decided to alter its planned course of action with respect to the Chapel Library Project.

Prison libraries

Washington Times Editorial

9-24-07 -- The Bureau of Prisons is indefensibly coy about its recent dismantling of prison libraries, where venerable religious materials have been tossed from shelves in an extreme reaction to a government report intended to keep violent Islamic reading materials and recordings away from prisoners. . . . Thankfully, conservatives on Capitol Hill are now demanding answers from prison administrators, who are throwing the baby out with the bathwater in their attempt to prevent the cancer of Islamic fanaticism from spreading among the nation's 1.5 million prison inmates. By removing religious materials from all denominations that don't appear on an agency-created list of approved materials, prison officials are approaching a slippery slope. . . . Earlier this summer the Bureau of Prisons, an agency under the Justice Department, launched the Standardized Chapel Library Project, essentially a purging of prison book shelves as a way of satisfying recommendations from Justice's Inspector General. The 2004 report pointed out flaws in the bureau's system for screening books in prison libraries, a system which needed tightening in light of the terrorist attacks of September 11. It suggested that the bureau screen existing libraries and remove offending literature, keeping most other books intact though under a carefully catalogued system.

'Justice for all,' right? Restore habeas corpus

Grassley should join push for change.

DesMoinesRegister Editorial

9-24-07 -- A majority of the U.S. Senate voted to restore a fundamental constitutional right last week. Unfortunately, because of an arcane Senate rule that requires a super majority on most every key vote, a minority made up almost exclusively of Republicans blocked the legislation. Sadly, Iowa's storied maverick, Charles Grassley, was among them. . . . If Iowa's senator can stand up to the White House on health care for children, as he commendably has done, he can stand up for fundamental constitutional rights of people who may be wrongly imprisoned by the government.


Judge Denies Request to Free Jena Teen

9-24-07 -- (AP) — A judge on Friday denied a request to release a teenager whose arrest in the beating of a white classmate sparked this week's civil rights protest in Louisiana. Mychal Bell's request to be freed while an appeal is being reviewed was rejected at a juvenile court hearing, effectively denying him any chance at immediate bail, a person familiar with the case told The Associated Press. The person spoke on condition of anonymity because juvenile court proceedings are closed. . . . Earlier, Bell's mother emerged from the hearing in tears, refusing to comment. . . . Bell, 17, was convicted of aggravated second-degree battery, which could have led to 15 years in prison. But his conviction was thrown out by a state appeals court that said he could not be tried on the charge as an adult because he was 16 at the time of the beating. . . . "This is why we did not cancel the march," said the Rev. Al Sharpton, an organizer of Thursday's rally along with the Rev. Jesse Jackson and the NAACP. "When they overturned Mychal's conviction, everyone said we won."


Murder by Cajun seasoning?

That's what Texas jury found in mother's life sentence
© 2007

9-24-07 -- A mother of five is serving a life sentence in the death of a 4-year-old child she and her husband were adopting because a Texas jury believed she forced him to drink Zatarain's Cajun Seasoning and delayed getting the boy emergency medical attention. . . . Hannah Overton was convicted this month in Corpus Christi. Jury selection in the trial of her husband, Larry, is set to begin Oct. 1. . . . But those who know the Overtons best aren't buying the prosecution's story and, in fact, believe evidence was distorted and doctored by district attorney's office, police department, child protective services and the news media to railroad the homeschooling, Christian couple. . . . "For all the Christians out there, understand this, Hannah's simple faith was used against her as the prosecution incessantly sought to make her out to be a religious sociopath," charges the couple's Calvary Chapel pastor, Rod Carver. . . . Larry Overton is standing by his wife, too, and contributing to a website designed to support her appeal. So is her congregation and, according to Carver, other churches as well. . . . They say prosecutors ignored any other possibilities in the death of Andrew Burd, 4, than negligent homicide by the foster parents. . . . For instance, the prosecutors used videotape images of Andrew asleep in his bed, taken from a camera placed in the room, the parents say, for the safety of their children. The recordings show Andrew sleeping on a bed stripped of a mattress. The video was shown in the courtroom by the prosecution in an effort to establish a pattern of abuse by the parents. . . . But, as Carver explains, the Overtons' story about the events leading up to Andrew's death has been consistent and unwavering from the beginning.


For a change, Georgia needs to choose justice

By E. Wycliff Orr

"Where's the justice?"

Such a simple question. And so unobjectionable on its face. After all, who can argue with justice as an aspiration, a goal in any legal case? . . . argument of the Genarlow Wilson case, and similar pleas in the Troy Davis case now before that court, may not only free those defendants, but our state's judiciary as well. For if the ethereal concept of "justice" does indeed become a rationale for the court's decision of whether a 10-year sentence for Wilson, a teen convicted of a consensual sexual act with a younger teen, will stand, and for whether Davis' conviction and death sentence for murder based on since-recanted testimony will be overturned, then a sea change in Georgia law may be unloosed. . . . Taken with pleas of the press and public for "justice," subliminal issues have become an inseparable part of these cases. What constraints should limit the power of courts in deciding cases? How much latitude do they have to "do justice"? Upon what sources of right and wrong may courts rely? What should be the role of the public and the press in affecting the outcome of court cases? And what are "justice" and "law" anyway?

Prisons Purging Books on Faith From Libraries

By Laurie Goodstein

9-10-07 -- Behind the walls of federal prisons nationwide, chaplains have been quietly carrying out a systematic purge of religious books and materials that were once available to prisoners in chapel libraries. . . . The chaplains were directed by the Bureau of Prisons to clear the shelves of any books, tapes, CDs and videos that are not on a list of approved resources. In some prisons, the chaplains have recently dismantled libraries that had thousands of texts collected over decades, bought by the prisons, or donated by churches and religious groups. . . . Some inmates are outraged. Two of them, a Christian and an Orthodox Jew, in a federal prison camp in upstate New York, filed a class-action lawsuit last month claiming the bureau’s actions violate their rights to the free exercise of religion as guaranteed by the First Amendment and the Religious Freedom Restoration Act.


Public defenders inept
State pay too low for good court-appointed attorneys

By Christopher Hill

9-10-07 -- Whenever athletes are looking to renegotiate their contracts and say, "it's not about the money," it's usually about the money. When Chris Adams resigned as director of the Georgia Capital Defender's Office 11 days ago, it was also about the money. . . . The Georgia Public Defender Standards Council, which funds Adams' office, was created four years ago to ensure indigent defendants receive zealous and qualified representation. But in his resignation letter, Adams said his office could not provide the representation its clients deserved with only a $4.3 million budget — less than half of what was requested from the Defender Council. . . . constitutionally entitled to, and are in desperate need of, qualified counsel. Virtually all cannot afford to hire attorneys and must turn to public defenders or court-appointed attorneys, both of whom are funded by the state. Public defenders are almost always overworked and underfunded. Court-appointed attorneys are almost always grossly underpaid and often unqualified to take on capital cases.


Program for ex-convicts makes strides in county

Repeat offenses drop, but finding jobs is a struggle

By Art Aisner, News Staff Reporter

9-8-07 -- Despite a slow start, a fledgling program to help felons succeed in the community after their release from prison appears to be making strides in Washtenaw County, preliminary figures show. . . . But state budget woes and proposals to shrink the prison population are raising concerns about funding for the Michigan Prisoner Re-entry Initiative (MPRI) and about the increasing number of ex-cons returning to local communities. . . . The initiative aims to give every parolee the tools needed - like housing and employment - to succeed after prison by providing a plan and services through state and local agencies.


3rd Circuit: Sentencing Guidelines May Not Be Ignored

Shannon P. Duffy, The Legal Intelligencer

9-5-07 -- Finding that a sentence of four months in prison was too lenient for a man who confessed to possessing child pornography, the 3rd U.S. Circuit Court of Appeals has ruled that a New Jersey federal judge improperly ignored the federal sentencing guidelines that called for a prison term in the range of 37 to 46 months. . . . Although the guidelines are now merely advisory, U.S. Circuit Judge Kent A. Jordan said the 3rd Circuit has already held that judges must continue to calculate the guidelines range and must consider all of the sentencing factors mandated by Congress before imposing sentence. . . . "Because the guidelines reflect the collected wisdom of various institutions, they deserve careful consideration in each case. Because they have been produced at Congress's direction, they cannot be ignored," Jordan wrote in United States v. Goff. . . . In Stefan Goff's case, Jordan said, the four-month sentence was imposed by U.S. District Judge Anne E. Thompson with "barely a mention" of the guidelines, which "suggests they were ignored."


11th Circuit Considers What to Do When
Defendant Wants to Fire Public Defender

In rare en banc review, court will re-examine what constitutes waiver of right to counsel

Alyson M. Palmer, Fulton County Daily Report 

9-3-07 -- Sometimes a criminal defendant wants to fire his court-appointed lawyer, even a lawyer that everyone else in the courtroom thinks is a good one. . . . "Some people just are irrational about their case, and they make bad decisions," said DeKalb County, Ga., public defender Lawrence L. Schneider. "They carry their bad decisions all the way into the penitentiary." . . . But in two recent cases, the 11th U.S. Circuit Court of Appeals has reversed convictions of defendants who could not afford their own lawyer but fired the one provided by the state -- meaning they represented themselves at trial despite their indications they didn't want to do so. . . . In one of those cases, about a man accused of making a series of bomb threats in Macon, Ga., the full court of 12 active members is scheduled to re-hear the matter on a date yet to be announced. Such en banc hearings are rare and suggest that the court members may be wrestling with the issue.


Maryland's system of 'justice'

Washington Times Editorial

9-3-07 -- When it comes to virtually everything related to criminal justice, Maryland is gaining a national reputation for all the wrong reasons: as a place where judges, politicians and corrections officials go to absurd lengths to give violent criminals the benefit of the doubt at the expense of public safety. Here are a few of the beneficiaries of this generosity who have been in the news in recent weeks: . . . In 2004, Mahamu Kanneh was indicted on charges of raping and molesting a 7-year-old girl who was a relative. According to charging documents, he also fondled an 18-month-old girl. For close to three years, Mr. Kanneh remained free on $10,000 bond while his attorneys insisted that he be provided with a translator of an obscure African language — even though Mr. Kanneh graduated from Montgomery County Public Schools and appeared to be fluent in English. After a lengthy search, one was found last month. But by then it was too late for an impatient Montgomery County Circuit Court Judge Katherine Savage, who dismissed the charges against Mr. Kanneh on July 17. The state appealed, and Mr. Kanneh skipped an Aug. 3 court hearing, moved to Philadelphia and attempted to escape when police and federal marshals came to arrest him there.

August 2007


Following High Court Cue, 2nd Circuit Cancels Habeas Grant

Mark Hamblett, New York Law Journal

8-31-07 -- A U.S. Supreme Court decision narrowing habeas review of state court procedures may force a convicted cocaine dealer back to prison. . . . Jose Rodriguez thought he was in the clear in 2006 after the 2nd U.S. Circuit Court of Appeals ordered that his petition for habeas corpus be granted because the trial judge had restricted his family's access to his trial. . . . But the government went to the nation's highest court, which vacated the 2nd Circuit's ruling and instructed it to reconsider in light of its decision in Carey v. Musladin, 127 S. Ct. 649 (2006). . . . Wednesday, after applying Musladin to the facts of Rodriguez' case, the circuit said it could no longer rely on dicta in U.S. Supreme Court decisions in reviewing a habeas case -- and it had no choice but to deny the petition in Rodriguez v. Miller, 04-6665-pr. . . . "In the past we and other courts occasionally have relied on our own precedents to interpret and flesh out Supreme Court decisions to decide variegated petitions as they come before us," Judge Joseph McLaughlin wrote for the court. "It would appear that we can no longer do this."


Will NJ Justices Give Miranda A New Reading?

By Dana E. Sullivan

8-31-07 --The viability of Miranda warnings to protect defendants' rights may be facing perhaps its biggest test in New Jersey. . . . An upcoming case before the New Jersey Supreme Court could drastically affect the timing of Miranda warnings, either by tightening the rules police must follow or by giving them plenty of slack in dealing with suspects who volunteer incriminating information before they're read their rights. . . . Public defenders say the stakes are enormous. . . . If a suspect is read his right to counsel and his right against self-incrimination only after he's already made damning statements, "then of what use are these rights?" asks Assistant Deputy Public Defender Stephen W. Kirsch. . . . Nonsense, says Deputy Attorney General Deborah Cronin Bartolomey, contending as long as no trickery is involved, police can - and should be able to - question someone they thought was a witness to a crime and who talked on his own.


Overeager to Suppress?

By Mark Thompson
8-31-07 --Judges in New York City rarely get reversed for going overboard in suppressing evidence in criminal cases. From the start of 2006 through this August, only nine judges citywide were called onto the carpet in published opinions for excluding evidence that, according to appellate panels, should have been let in. During that time period, two trial judges in the five boroughs were reversed more than once for granting suppression motions. Leading the way with three such reversals is Bronx County Supreme Court Justice Richard Lee Price. He was recently joined in the ranks of serial suppressers by New York County Justice James A. Yates. . . . The latest reversal for Yates, a finalist for last summer’s open seat on the state Court of Appeals, turned on his interpretation of the provision in the Vehicle and Traffic Law that covers “turning movements.” The statute states that turn signals “shall be used to indicate an intention to . . . change lanes.” . . . As Yates saw it, that does not mean drivers absolutely must use their turn signal each and every time they move from one lane to another. The Appellate Division concluded, to the contrary, that the law means drivers must do exactly that, whether there are other cars in the vicinity or not.


N.Y. Persistent Felon Law Held Invalid by Federal Court

Mark Hamblett, New York Law Journal

8-29-07 -- A second federal judge has found New York state's persistent felony offender statute unconstitutional because it allows judges to find facts that can lead to a sentence beyond the statutory maximum. . . . Southern District of New York Judge John Koeltl found that N.Y. Penal Law §70.10 violated the Sixth Amendment right to a jury trial because, under the rapidly evolving case law of the U.S. Supreme Court, a jury has to find the facts that the state law leaves to the judge. . . . Judge Koeltl granted a petition for a writ of habeas corpus to inmate William Washington in Washington v. Poole, 06 Civ. 2415. The decision comes five months after Eastern District of New York Judge John Gleeson made a similar ruling in a habeas case and just one month after Southern District of New York Judge Robert Sweet went the other way and upheld the law. . . . These three decisions will now join a fourth that is pending in the 2nd U.S. Circuit Court of Appeals, Phillips v. Artuz (WL 1867386). . . . "The constitutionality of these statutes is obviously still in play," said Jonathan Kirshbaum of The Center for Appellate Litigation, who represented Washington.


N.C. reviewing 14-year detention, no trial

Floyd Brown Of Anson County -- Officials not saying if confession an issue

Emily S. Achenbaum

8-29-07 -- The N.C. Department of Justice is examining the case against Floyd Brown, an Anson County man who has been held on murder charges since 1993 without a trial, the department said Monday. . . . Brown, who has an I.Q. of 50, is not competent to stand trial and has spent 14 years in a state mental hospital, despite never being convicted. The case against Brown hangs on one piece of evidence: A confession that doctors and former teachers say Brown never could have given. . . . Brown's case was the subject of an Observer investigation earlier this year. . . . When asked specifically about allegations that the confession, taken by SBI agent Mark Isley in 1993, was fabricated and whether Attorney General Roy Cooper's office was investigating those claims, spokeswoman Noelle Talley said the office was "examining the issues in this case." Talley declined to elaborate. . . . The Observer investigation found more than a dozen instances in the typed confession that contain language Brown does not know, starting with the first sentence: "On Friday, July 9th of 1993, my mama woke me up at 6 a.m. in the morning." Brown does not know dates, cannot tell time, and does not speak in complete or grammatical sentences. Once authorities had the confession, they charged Brown with the murder of 80-year-old Katherine Lynch, beaten to death in her Wadesboro home.


Prison investigation shifts gears

Auditors, state police will take over; public unlikely to learn details

By Clif LeBlanc

8-29-07 -- Trained auditors and state police will investigate complaints against the state prison system after a legislative committee on Monday took itself out of an increasingly harsh dispute with the governor’s team. . . . Critics of the committee’s work said the decision removes politics from what Corrections Department leaders and the governor’s office have called a “witch hunt” intended to embarrass the executive branch. . . . The move also means the public is unlikely to hear open testimony about allegations the agency is run in an unsafe manner, that inmates are abused and that employees work in a hostile environment. . . . Committee chairman Sen. Mike Fair, R-Greenville, said he hopes to have a Legislative Audit Council report early next year when the Legislature reconvenes. The council is the investigative arm of the General Assembly. . . . The eight senators on the rare, investigative panel had intended all along to forward their findings to auditors and the State Law Enforcement Division, Fair said.


State suspends prisons' special meals for Jews, Muslims

By Matt Sedensky | Associated Press

8-23-07 -- Jewish inmates who follow strict religious diets at state prisons are no longer provided meals in line with their beliefs. Muslims must now eat vegan food to satisfy their religious requirements. . . . The Corrections Department has ended the Jewish Dietary Accommodation Program, which provided kosher meals to not only Jews, but to Muslims as well, because the state prison system does not offer halal food. Cost -- and fairness -- were cited as factors. . . . ``We have 100 faiths represented by DOC inmates, so it would be impossible to satisfy everyone's preferences and unfair to do it for one group and not another,'' agency spokeswoman Gretl Plessinger said. ``We just have to look at what our mission is and what's best for our overall department and the overall population of inmates in our system instead of a smaller group.''


Suit over Fulton strip searches can go forward
Seven former jail detainees may sue; court requires reasonable cause for such searches
By Bill Rankin, The Atlanta Journal-Constitution
8-23-07 -- The federal appeals court in Atlanta on Thursday kept alive a lawsuit alleging civil rights violations over strip searches at the Fulton County jail. . . . The 11th U.S. Circuit Court of Appeals said that unless there is "reasonable suspicion," such as whether a detainee was arrested for a crime involving violence or drugs, blanket strip searches are unconstitutional. . . . The ruling allows claims by seven former detainees at the jail to go to trial and seek damages against former Fulton Sheriff Jacqueline Barrett, who oversaw the jail at the time of the alleged civil rights violations. The court noted that one detainee was strip searched even though he had been arrested on a warrant for an unpaid $27 traffic ticket, another for driving under the influence and another for failing to pay child support. . . . The court dismissed claims by other inmates, noting they had been arrested for crimes that gave deputies reasonable suspicion to search them. The ruling also dismissed claims seeking damages from Fulton County, the city of Atlanta and Sheriff Myron Freeman.


California Needs Interrogation Reform to Prevent False Confessions

John Terzano Opinion

8-22-07 -- David Allen Jones spent 12 agonizing years in a California prison for a crime he did not commit. Then DNA exonerated him. . . . Mr. Jones was convicted of three murders he falsely confessed to after being interrogated by a team of detectives and taken to each of the crime scenes. During the intense interrogation, Jones was prodded by detectives and corrected when he gave statements that contradicted the evidence. . . . Jones was a mentally retarded, part-time janitor with an IQ in the low 60's. There was no physical evidence or witnesses linking Jones to any of the killings and he was convicted almost entirely as a result of his false confession. . . . Unfortunately, Mr. Jones story is not unique. False confessions have played a role in wrongful convictions in California, and in approximately 20% of wrongful convictions nationwide. (Please visit The Justice Project's website for information on reforms that will help prevent false confessions).

The Justice Project is a nonpartisan organization dedicated to fighting injustice and to creating a more humane and just world. Our current programs are the Campaign for Criminal Justice Reform and Veterans for America. Read more about us.


Pahokee suspect gets out despite 41st arrest

By Rochelle E.B. Gilken, Palm Beach Post Staff Writer

8-22-07 -- Alvin Lamont Walker's rap sheet includes arrests for three homicides, a rape, batteries, burglaries and assaults. . . . And yet, after his 41st arrest, Sunday, the longtime Pahokee criminal was released immediately on his own recognizance, without having to post bail. . . . Walker, 57, who goes by the nickname "Cooter Pop," was charged with simple battery, for allegedly punching a fellow customer during an argument at a Pahokee liquor store. Judge Nelson Bailey allowed Walker to be released, according to the state attorney's office. . . . Bailey could not be reached for comment Monday. . . . Walker's criminal record reads like a broken record of dropped, dismissed or reduced charges. The whole community knows and fears him, said former Pahokee Police Chief Rafael Duran, now a corporal at the sheriff's office. . . . "He's basically a career criminal and has gotten away with a lot of things because people are afraid to talk," Duran said. "It's fear. It's absolute fear."


Court rules: Illegal aliens not really 'illegal'

While unsanctioned crossing forbidden, being in U.S. without authorization isn't

By Bob Unruh, © 2007

8-22-07 -- An appeals court has concluded that just being an illegal alien in the United States doesn't necessarily violate the law, so a judge cannot deny probation and require a jail sentence for a convicted drug dealer who is an illegal alien. . . . The opinion from the Kansas Court of Appeals came in the Barton County case involving convicted drug dealer Nicholas L. Martinez. . . . The ruling found that while the laws of the United States make it illegal to enter the United States without authorization, being in the United States after entering illegally is "not necessarily a crime." . . . The trial court judge had ordered Martinez to jail on the grounds he is an illegal alien, the report said. . . . But the appeals court overturned that decision. . . . "[Federal law] declares an alien's unsanctioned entry into the United States to be a crime. While Congress has criminalized illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported and has again entered this country illegally," the court opinion said. "[Federal law] makes it a felony for an alien who has been deported to thereafter reenter the United States or at anytime thereafter be found in the United States." . . . The court ruling explained that those entering the United States illegally are subject to deportation, which can be based on "any number of factors."


Prison censors withhold publications

Titan Barksdale, Staff Writer

8-22-07 -- Life in prison means giving up basic freedoms -- to come and go as you please, to visit with anyone you want whenever you want, to set your own schedule. What upsets Joseph Urbaniak, an inmate at a state prison in Harnett County, is that he no longer has the freedom to read what he wants. . . . Prison officials have blocked Urbaniak's access to magazines and newspapers about gay life. They say the content of publications such as The Advocate magazine and the weekly New York Blade is unacceptable. . . . So Urbaniak, who is serving up to 50 years for taking indecent liberties with a child, has filed a lawsuit against state Department of Correction officials, arguing that they are denying him his rights by blocking his access to certain reading material. . . . Lawyers with N.C. Prisoner Legal Services, a statewide nonprofit group that supports prisoner rights, say they frequently receive complaints from prisoners about censorship. One prisoner complained that he was denied access to Oprah Winfrey's magazine, O, lawyers said.


Man on trial again over 1971 crime he already served time for

Demian Bulwa, Chronicle Staff Writer

8-20-07 - Thirty-five years ago, a San Francisco school bus driver was convicted of shooting a uniformed officer with a pistol, seriously wounding him. . . . Much has changed since then for Richard O'Neal, now 58. After serving four years in prison, he became a popular city maintenance man. His wife was slain. He became a single father, then a grandfather. He built a steady life. . . . Now O'Neal is back behind bars, though he never committed another crime. . . . State prosecutors say O'Neal should be punished further in connection with the attack in February 1971. The principle of double jeopardy protects him from being tried again for assault - the crime that sent him to prison in 1972. But prosecutors say they can now prove the shooting was an "overt act" in a broader conspiracy to kill officers. . . . The arrest of O'Neal, one of nine alleged ex-members of the Black Liberation Army charged in January with conspiracy, has outraged relatives and friends.


Man jailed for pain pills given morphine by state

Accident victim, MS sufferer serving 25 years for self-medicating injuries hopes for clemency

© 2007

8-20-07 - Florida Gov. Charlie Crist announced yesterday he will hear a clemency request from a 48-year-old father of three serving a 25-year-mandatory sentence for illegally acquiring pain pills to easy his chronic pain from an auto accident, failed surgeries and multiple sclerosis. . . . In one of the ironies of the war on drugs, Richard Paey of Pasco County is allowed to continue self-medicating his pain in prison, thanks to a morphine pump provided by the state. . . . Paey was arrested in 1997 after he bought 1,200 painkillers with fake prescriptions provided by a New Jersey doctor. According to his wife, Linda Paey, most Florida doctors were unwilling to take her husband as a patient when they learned how extensive his injuries were from a 1985 accident that damaged his spine. . . . Prosecutors argued that obtaining so many pills with forged prescriptions meant he had to be selling them. . . . Paey was offered a plea deal and lighter sentence before his trial but turned it down based on principal, insisting he had never sold pills nor done anything wrong.


Bergen Jail first to provide online legal aid in cells

By Jason Tsai, Staff Writer

8-21-07 - Bergen County Jail inmates who want to brush up on their legal defense can do so now from their cells, a move that officials say is a first nationwide. . . . Jail officials have begun rolling out the first batch of 80 laptops – each about the size and heft of a large hardcover novel – to some of the 1,000 inmates who occupy the near-capacity lockup. . . . About $100,000 has been spent so far from an account funded by profits from items purchased from inmates, such as toothpaste and candy bars, to buy the $1,200 notebooks and install the necessary wireless connections. . . . The primary reason, says the man who runs the jail, is safety. . . . "There's a risk each time you open a cell door," said Bergen Sheriff Leo P. McGuire, "and our library was getting too busy." . . . Before, inmates who wanted to use the Westlaw research service had to file into the jail's law library, where 12 computers are crammed into the same space as guards and stacks of legal texts. . . . Now, they can request a laptop delivery to their cells, meal-style. They can then access Westlaw via an internal system. . . . "There's virtually nothing else installed on these laptops," said Lenny Hennig, the jail's network administrator. . . . Some question the move on other grounds, however. . . . "As a victim, I don't feel that inmates should have any access to laptops," said Patricia Rybka, whose husband, Joseph, was killed 28 years ago by a prisoner he was guarding at what was then Bergen Pines County Hospital. "I have the utmost respect for [McGuire], but I can't agree with this."


Freedom, the hard way, for `Granny'

She lived to 86 behind bars after conviction in drug-dealing conspiracy

Mandy Locke, (Raleigh) News & Observer

8-20-07 - Thirteen years after Alva Mae "Granny" Groves was locked up for conspiring to trade crack cocaine for food stamps, she's finally home. . . . It took death to free her. Federal prosecutors wanted the ailing great-grandmother behind bars for at least another decade as punishment for her role in the family scheme. . . . Groves will be buried today in Johnston County. She died at a federal prison hospital in Texas last week at age 86. . . . "It's a relief she's dead but it's a hurt. A real hurt we weren't with her," said her daughter Everline Johnson of Red Springs. "What could she have hurt?" . . . In a brief letter mailed to Groves on her deathbed, prison officials said her crime was too grave to allow her to be turned loose. . . . Groves tended her garden the day investigators stormed her double-wide and hauled her to jail. Within a year, Groves, 74 at the time, was sentenced to federal prison for 24 years after pleading guilty to conspiracy to possess with intent to sell and distribute cocaine and aiding and abetting the trading of crack cocaine for food stamps.

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Justice in Indian country

A U.S. attorney replies to a Times Op-Ed article on jurisdiction on Indian land.

Opinion by Gretchen C.F. Shappert

8-17-07 -- It is always disappointing when a distinguished academic with outstanding credentials attempts to buttress his argument for changes in the law by using an example of supposed injustice, when the actual facts of the case reveal a far different circumstance. . . . In his August 3 Op-Ed article "Reservations beyond the law," professor Gavin Clarkson, himself a member of the Choctaw Nation of Oklahoma, characterized America's Indian reservations as lawless havens for non-Indian criminals. He blamed this alleged state of affairs on the U.S. Supreme Court's 1978 decision in Oliphant vs. Suqamish Indian Tribe, which held that Indian tribal courts do not have jurisdiction over crimes committed in Indian country by non-Indians. He also asserted that U.S. attorneys' offices often decline to prosecute non-Indian crimes against Indians. In an attempt to support this assertion, he referred to the federal prosecution of Lonnie Mack Oglesbee, a non-Indian who terrorized his Indian wife and children for years with physical and sexual abuse. As the U.S. attorney for the western district of North Carolina, the district that has federal jurisdiction over the Eastern Band of Cherokee Indian reservation, and which prosecuted the case of United States vs. Oglesbee, I felt compelled to complete the record concerning this case and our office's dedication to the prosecution of violent crimes in Indian country.

Lawyers get tips from 'First 48'

A&E reality show a revelation for local attorneys

By Sharon Coolidge

8-13-07 -- "The following program shows real-life individuals facing criminal charges. They are presumed innocent until proven guilty. Viewer discretion is advised." . . . That disclaimer appears before episodes of A&E's reality series "The First 48," a show in which camera crews follow big-city homicide investigators for the first two days of their cases. . . . Camera crews spent six months last year with the Cincinnati Police Department. They watched as detectives Matthew Thompson, Jennifer Luke, Doug Lindle and others examined crime scenes, interviewed witnesses and, in some cases, elicited confessions from suspects. . . . The episodes are airing now - just as most of the defendants are due for trial in Hamilton County Common Pleas Court. The show is the highest-rated nonfiction justice series on cable television and is watched by 2 million people every week. . . . The newest viewers are Hamilton County defense attorneys, who say the show is now part of their cases.


Woman Who Sued Judge Over 12-Step Program
Won't Have To Attend Meetings

Associated Press

8-1-07 -- A woman who sued a judge after he sentenced her to attend Narcotics Anonymous meetings has reached a settlement and won't be required to attend the 12-step program that she claimed amounted to forcing religion on her, her lawyer says. . . . U.S. District Judge Jimm Hendren on Monday dismissed the federal lawsuit brought by Mindy Gayle Offutt, who was convicted of a misdemeanor drug charge last year and given a 30-day suspended jail sentence, contingent upon her attending 12 NA meetings. . . . Doug Norwood, Offutt's attorney, said the parties reached an agreement that calls for Judge Doug Schrantz to issue an amended judgment saying Offutt doesn't have to attend the 12-step program. . . . After attending on NA meeting, Offutt filed the suit against Schrantz and Rogers District Court, arguing that the sentence illegally forced her to practice a religion. She claimed the programs have a religious undertone and required everyone to pray at the end of each meeting. . . . Attorneys for Schrantz had asked the federal court previously to grant Schrantz immunity and to rule in his favor.

Night at the Museum


Governor to appeal order that created prison judicial panel

Don Thompson, Associated Press Writer

8-1-07 -- (AP) - Gov. Arnold Schwarzenegger on Friday signaled his intention to appeal a federal court decision that orders a special judicial panel to examine severe overcrowding in California's prison system. . . . The governor's action comes a day after the chief judge of the U.S. Ninth Circuit Court of Appeals created the three-judge panel, following the recommendation of two federal judges. . . . The panel will be charged with examining how overcrowding is affecting inmate health care, mental health, services for the disabled and other prison operations. Among the possible remedies are a cap of California's inmate population and early release of some prisoners. . . . The three-judge panel could start meeting before the governor's appeal is being considered. . . . If it does, "We will show the panel the aggressive efforts being made by the administration to address prison overcrowding, explaining why a prison release order is not necessary," said Schwarzenegger spokesman Bill Maile. "We will continue to do all we can to ensure public safety."


Transgender inmate wins hormone therapy

By Rebecca Boone, Associated Press Writer

8-1-07 -- An inmate who castrated herself with a disposable razor blade after prison officials refused to treat her for gender identity disorder should have female hormone therapy paid for by the state, a federal judge said. . . . Jenniffer Spencer, who was born biologically male, sued the Idaho Department of Correction and its physicians, claiming that her constitutional rights were violated and that she was subjected to cruel and unusual punishment when the doctors failed to diagnose gender identity disorder and treat her with female hormones. Instead, the department and its doctors repeatedly offered Spencer the male hormone testosterone. . . . A trial over the lawsuit has not been scheduled, but U.S. District Judge Mikel Williams ruled Friday that the state must provide Spencer with psychotherapy and estrogen pending trial. Williams also noted that Spencer is scheduled for release in two years, and that getting the lawsuit to trial could take that long or longer. . . . The state's attorneys contend that prison doctors did not find conclusive evidence that Spencer, 27, has gender identity disorder. It would be unethical for the doctors to prescribe a drug that wasn't needed and that could do harm, attorney John Burke said. . . . The judge disagreed.

Judge's decision 'normalizes' transgenderism
Family values group criticizes ruling taxpayers must fund treatment
© 2007

8-1-07 -- A family values organization is criticizing a judge's ruling that taxpayers must pay for a sex-change treatment for a state prison inmate. . . . According to Associated Press reports, the inmate, Randall Gammett, demanded a name change to Jenniffer Spencer while in prison, as well as various treatments. . . . The inmate, in jail for possession of a stolen car and escape, believes "she is a woman trapped in a man's body," according to the report, and "castrated herself using a disposable razor blade" in a prison cell when state prison physicians declined to prescribe estrogen. . . . The inmate then filed a lawsuit against the Idaho Department of Correction, alleging a violation of constitutional rights for that refusal. . . . Now Judge Mikel Williams, of U.S. District Court, ordered the state to provide the inmate with psychotherapy and estrogen pending a trial. . . . Bryan Fischer, the executive director of the Idaho Values Alliance called it judicial activism "at its worst." . . . "Judge Williams has taken it upon himself to normalize transgenderism, and is forcing Idaho's taxpayers to subsidize a twisted approach to resolving gender identity disorders," Fischer said.


Inmate Wins Prison Preaching Fight

By Eric Tucker, Associated Press Writer

8-1-07 -- (AP) - A convicted killer who had been barred from preaching in prison will be allowed to resume the practice under an agreement announced Monday that ends a three-year legal battle. . . . Wesley Spratt, an ordained minister in the Universal Life Church, preached for about seven years in prison after undergoing a religious awakening and receiving what he said was a calling from God. . . . He began preaching to fellow inmates, under the supervision of a clergyman, during weekly services in prison, according to court papers. Officials banned him from preaching in 2003, saying it posed a security risk to give inmates positions of leadership or authority. . . . Spratt sued the state Department of Corrections in 2004 for the right to resume preaching. The 1st U.S. Circuit Court of Appeals in Boston sided with Spratt this year, saying his participation in the religious services was ``unblemished by any hint of unsavory activity.''

July 2007


Reproaching the bench

To some who passed through Judge Jim Doyle's drug court, he was a savior. But to others, he was just on a power trip.

By John Keilman | Keilman is a Tribune staff reporter

7-30-07 -- Jim Doyle wore the robe for 17 years, rendering judgment on thousands who came through his Kane County courtroom. On a rainy night in April, it was his turn to be judged. . . . Sixty people filled a VFW Hall in Batavia to hear Sen. Chris Lauzen (R-Aurora) "correct the record" on his friend Doyle's turbulent leadership of the county's drug court. The judge had founded it in 2000 to offer petty criminals help for their addictions instead of prison time, and it swiftly became a personal crusade. He worked from dawn until deep in the night to nudge defendants toward sobriety, and he was rewarded with spirit-lifting transformations: crack-scarred mothers reuniting with their children, teenage junkies graduating from high school, thieves and prostitutes gaining respectable jobs. . . . But some say the judge's ambition became its own intoxicant. In 2005, state investigators accused him of forcing people into the supposedly voluntary program, jailing them improperly and bullying defense lawyers, probation officers and others who didn't seem to share his passion. . . . After a bitter struggle, Doyle retired last year rather than face a disciplinary hearing that could have forced him from the bench. It was an anti-climax that ended his legal trouble but left his legacy undefined.


Local judge plays chicken with defendants when it comes to sentencing

Dave Summers  

7-28-07 -- Judge Michael Cicconetti sentenced three men convicted of soliciting prostitutes to one hour in a chicken suit not far from where they were arrested. . . . Perry resident, 40 year old Daniel Chapdelaine, Ashtabula resident Martin Soto, and Painesville resident Fabian Ramirez, were caught in an undercover police sting Friday the 13th. . . . Double bad luck for Chapdelaine who was celebrating his 40 birthday that very same day. . . . Judge Cicconetti is well known for his alternative punishments for misdomeanor crimes. . . . He says he got the idea from the movie, "The Best Little Whorehouse in Texas". The story line centers around a brothel called the "Chicken Ranch".


Pa. inmate sues county prison, saying she was forced to have baby alone in her cell

By Mallory Simon, Court TV

7-28-07 -- Pennsylvania inmate Shakira Staten says she was left alone screaming in her cell for four hours while she went into labor and gave birth to her daughter. . . . Despite her constant pleas, Staten said it wasn't until she gave birth, the baby fell on the cell floor and she held her child up to the cell bars that she finally got the attention of a guard, who cut the umbilical cord with her fingernails. . . . Staten, 22, filed a civil rights lawsuit Monday claiming she and her newborn baby were subjected to cruel and unusual punishment when the staff at the Lackawanna County Prison left her alone in her cell without providing medical care or transporting her to a hospital. The suit names Lackawanna County, Lackawanna County Prison, Warden Janine Donate, three unnamed guards, and an unnamed nurse. Dr. Edward Zaloga and Correction Care Inc., which provide the medical care at the jail, were also named. . . . Late on July 9, Staten began to feel pain and told correctional officers she thought she was going into labor, according to the suit. She was taken to the medical ward of the prison, where she was examined for an hour by nurses who said her contractions weren't "consistent enough." . . . Staten was then placed in a cell with a camera early July 10 so guards could monitor her. That's when Staten said the pain became excruciating.


Simpson verdict haunts American justice

Commentary By Earl Ofari Hutchinson

The moment the mostly black jury acquitted O.J. Simpson in 1995, a leading Simpson trial commentator pithily quipped that blacks would catch heck for that verdict. . . . He didn't spell out exactly how they would pay, but the point was that Simpson's acquittal in the murder of his ex-wife and her friend so enraged police, prosecutors, judges and many whites that they would throw the book at any black who wound up in a future court. . . . The quip seemed like hyperbole at the time. But a decade later, attorneys for Allen Snyder, an African American convicted of murder in Louisiana, say it's no exaggeration. They want the U.S. Supreme Court to toss Snyder's conviction and death sentence because, they say, prosecutors played "the Simpson card" when they compared Snyder's case to that of a defendant in a famed murder case who got away with murder. . . . Though prosecutors did not name Simpson, they mentioned the Ford Bronco, the slow chase and the historic notoriety of the case. It didn't take much for the all-white jury to connect the dots. The Supreme Court will review the case this fall. . . . Whether the court buys Snyder's claim that he was a victim of Simpsonitis - and that's a tough one to prove based solely on a prosecutor's off-the-cuff crack to a jury - there's no doubt that Simpson's acquittal sent a jolt through the criminal-justice system.


Prosecutor Attacks Innocent Grieving Mother

by Ed Snook & Kelly Stone,  © 2007

There is nothing more vile than the end of an innocent life, and at the age of two, Kelsey Smith-Briggs died far short of realizing her purpose. But, rest assured, her purpose would never have been to see her mother go to jail for crimes she did not commit. . . . The US~Observer along with reporters from the US~Observer Oklahoma have been investigating the Kelsey Smith-Briggs case and our findings have been published shedding new insight into a case that was otherwise already "in the bag" for a team of prosecutors who are illegitimately pursuing Kelsey's Mother. Flying in the face of the mainstream media, the US~Observer has found and printed the truth of the matter and it is showing in the current trial of Raye Dawn Smith where just recently the District Attorney of the case offered the mother a substantial plea bargain. . . . As the first full week of witnesses, exhibits and testimony drew to a close DA Richard Smothermon and private practice lawyer (hired prosecutor) Patricia High have continued to see their false prosecution case against the mother of Kelsey Smith-Briggs, Raye Dawn Smith, crumble around them. With reportedly less than a full day of testimony still left before the prosecution rests, DA Smothermon attempted to pull one out of the hat by offering a slap on the wrist plea agreement at the close of testimony on Friday. In the offer suggested by Smothermon, Raye Dawn would plea to one count of swatting Kelsey with a hairbrush through her diaper. When told of the offer in the halls of the court house Raye Dawn didn't hesitate in her reply, "I didn't do it; I won't take it." In exchange for her plea Smothermon stated he would drop all charges in this case.


Panel told trial errors are pervasive

Withheld Evidence, Poor Funding, Scant Discipline Cited

By Fredric N. Tulsky, Mercury News

7-13-07 -- At a daylong hearing probing the roles that prosecutorial and defense misconduct play in wrongful convictions, a parade of attorneys and legal experts told a statewide commission that both problems are pervasive and that more must be done to address them. . . . For prosecutors, the commission heard Wednesday, the misconduct often involves withholding evidence from defendants or giving improper closing arguments to juries. For defense attorneys, the failures often involve poorly investigated cases - a problem tied to inadequate spending. . . . And neither are likely to face any public repercussions when they do commit such errors. . . . "What gets squashed is the truth," said Professor Laurence Benner of the California Western School of Law, who called the combination of withheld evidence and poorly funded defense attorneys the "vice of our criminal justice system." . . . But some district attorneys attending the hearing of the California Commission for the Fair Administration of Justice were concerned that the panel would craft misguided new rules to try to address misconduct.


Was this justice real?

By Kevin Vaughan, Rocky Mountain News

7-13-07 -- Lawyers for Timothy Lee Masters, convicted of the 1987 stabbing death of Peggy Lee Hettrick, continue to press for a new trial, claiming alleged gross irregularities by prosecutors. . . . A fight to win a new trial for a man convicted in one of the city's most notorious killings has spawned allegations that evidence was lost and destroyed and assertions that police officers and prosecutors colluded to hide information from defense attorneys. . . . The controversy revolves around the 1999 conviction of Timothy Lee Masters in the murder of Peggy Lee Hettrick, who was stabbed to death in 1987 as she walked home on a moonlit night in south Fort Collins. Masters was 15 at the time, and though he was a prime focus of the investigation from its first hours, it took detectives more than a decade to assemble a circumstantial case against him and file charges. . . . And when they took the case to a jury, they did not have a single piece of physical evidence tying him to the killing - no murder weapon, no blood, no hair, no fingerprints, no DNA. What they had was circumstantial evidence - he owned knives like the one that killed her, he talked about the difficulty of stabbing someone and he produced hundreds of pages of writings, drawings and doodles, many of them containing disturbing images.


District Attorney in Ga. Teen Sex Case Under Fire

Video used against Genarlow Wilson is now subject of accusations against local prosecutor

Andy Peters, Fulton County Daily Report 

7-13-07 -- A group of lawmakers and community activists wants Douglas County, Ga., District Attorney J. David McDade punished for distributing to state legislators a videotape showing sex acts in his efforts to block legislation that could have set free Genarlow Wilson. . . . The group is using as ammunition a statement made late Wednesday by U.S. Attorney David E. Nahmias that distribution of the videotape, used as evidence in Wilson's child molestation trial, violated federal law. On Thursday, Nahmias elaborated, naming McDade and saying he violated federal child pornography statutes. Nahmias declined to comment on whether he'd prosecute McDade or others who accepted the tape. . . . McDade did not respond to two requests for comment.

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Woman refuses to obey judge who banned her from saying "rape" in trial

Story by ABC News

7-11-07 -- In a case that's getting national attention, the Nebraska Supreme Court may have to decide if a woman can use the word "rape" in her alleged attacker's trial. . . . A Lancaster County district court judge told her she can't use it. . . . "I refuse to call it sex, or any other word that I'm supposed to say, encouraged to say on the stand, because to me that's committing perjury. What happened to me was rape, it was not sex," said Tory Bowen of Nebraska. . . . So now, while trying to fight the pain of her attack, she also has to fight the judicial system. . . . Bowen has brought in her own attorney from Boston to fight the judge's order, and she says that she's willing to go to jail for ignoring it.


Mother's Wait for Justice Drags On

20 Years and Counting

Posted by Dennis Turner WREG-TV

7-11-07 -- Shelby Circuit Court -  The case boils down to this:  There's a legal cap, which limits how much the city can pay in damages to 130-thousand bucks.  But this case has run now, nearly 20 years, and the cost of fighting the city has gone WAY beyond that. . . . It's a case of big bucks, versus no bucks.  Attorney Ernest Jarrett says the City of Memphis is out to break him and his client. "The city, armed with the cap, can drive a litigant to the point where they can no longer litigate." Jarrett argued in court. . . . 20 years ago this December, a Memphis police officer shot 16 year old Marcus Norris after mistaking his toy gun for the real thing.  20 years later, his mother, Faye Black still can't get a dime from the City of Memphis for what happened. . . . She and her attorney believe the city intentionally dragged the case on, filing appeal, after appeal. . . . The private attorney for Memphis says, no way. "Never would I attempt to purposefully delay a case to frustrate somebody else's efforts." said Henry Klein. . . . But yet, here we are, almost two decades later. . . . After hours of argument and painstaking testimony detailing every twist and turn in the case, Circuit Judge Rita Stotts could come to only one conclusion. "I am bound by the law as the law is." said the judge.  In other words, the "cap" stands.


Bail review issue may impact murder cases

Pre-indictment jurisdiction of Superior Court questioned

By David E. Frank

7-7-07 -- A recent decision by a Superior Court judge to consider a bail review in a first-degree murder case pending in District Court could significantly impact the way similar requests are handled across the state. . . . As a result of a government appeal, Lawyers Weekly has learned that the Supreme Judicial Court will be asked to decide whether a Superior Court judge has the authority to set bail, pre-indictment, for a defendant charged with first-degree murder. . . . On June 28, Suffolk County prosecutor Holly V. Broadbent told Superior Court Judge Carol S. Ball that she lacked jurisdiction to disturb a lower court bail based on a 2002 SJC single justice opinion. . . . Ball responded that to prevent Superior Court judges from hearing such requests would represent a "major change" in the way the court usually operates.


Independent reviews needed to fix justice system failures

Statesman Editorial Board  

7-7-07 -- When the justice system errs, society benefits from timely correction. . . . Texas has made its share of mistakes, but advanced DNA testing has allowed the state to correct many of those errors, and that is welcome progress. . . . In death penalty cases, however, errors cannot be corrected after a person is put to death. We can and should learn from them to prevent any future miscarriages of justice. That requires a fair and thorough search for the truth when legitimate questions are raised. . . . That is what should have happened in the case of convicted teen killer Ruben Cantu, who was executed in 1993. But instead of getting answers after a lengthy investigation, we're left with the same doubts about the case: Did Cantu rob and murder a San Antonio construction worker, Pedro Gomez, in 1984? Did Texas execute the wrong person for that crime? . . . We should have learned the truth from a disinterested review — and would have — if the state had an independent entity to conduct reviews when questions arise in criminal cases. Instead, we have a system that leaves the search for truth up to Texas' district attorneys, who more often than not are deeply invested in the outcome. . . . Last week, Bexar County District Attorney Susan Reed concluded that Cantu committed the crime. But Reed's history and role in the case cast doubts on those findings. Reed is a former judge in the case who denied an appeal by Cantu and set his execution date. That involvement is a heavy burden to bear, particularly if Cantu was innocent. We've made repeated calls for Reed to turn over the investigation to an outside examiner. The public deserved an independent, objective review.

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"The Prison Was in Lockdown" Excuse For Tardy Filing About As Successful as "The Dog Ate My Petition"

New York Lawyer, By Mark Hamblett, New York Law Journal

7-5-07 -- A prisoner who sought to excuse his tardiness in filing a petition for a writ of habeas corpus by the fact that he had lost access to the prison law library during a facility lockdown has been rebuffed by the U.S. Court of Appeals for the Second Circuit. . . . Addressing a question of first impression in Belot v. Burge, 05-6875-pr., the circuit set the standard for reviewing a lower court's exercise of discretion to grant equitable tolling of the one-year limitations period for filing petitions. . . . The circuit ruled that the district court's finding that the prisoner had waited too long to begin preparing his petition was a reasonable exercise of that discretion. . . . Judges Ralph Winter, Pierre Leval and Jose Cabranes decided the appeal. Judge Leval wrote for the panel. . . . Jean Belot is serving a sentence of 20 years to life in the Auburn Correctional Facility imposed after his conviction of third-degree criminal possession of a weapon and his designation as a persistent felony offender.


Lawyers for Poor Facing Cuts in Pay

INDIGENT CLIENTS / New law sharply limits the amount the state will pay to defense lawyers.

By Dana Willhoit, The Ledger

7-2-07 -- Lynn Rhodes became a lawyer so she could work with the poor. . . . "I focused solely on serving the indigent. That was my ministry," said Rhodes, a former pastor. "My interest was never to become a high-powered, high-priced attorney." All of the court cases she took were state-appointed. . . . But because of a new law taking effect today, she will close up shop. She has put her house up for sale and may take the bar exam in another state. . . . The law will sharply limit the amount defense lawyers such as Rhodes will be paid by the state to represent indigent defendants, even those who may be facing the death penalty. It also will create a new bureaucracy of state lawyers to take many of the cases previously handled by private lawyers. . . . "I foresee pandemonium in the court system here," Rhodes said.


Jailing of Key Witness in Judicial Bribery Case May Discourage Cooperation, Some Say

Daniel Wise, New York Law Journal

7-2-07 -- A judge's decision to disregard the prosecutor's recommendation for probation and instead impose the maximum one-year jail term for Paul Siminovsky, the ex-lawyer who played a key role in convicting former Brooklyn Justice Gerald P. Garson, could discourage potential cooperating witnesses in the future, several veteran defense lawyers said Wednesday. . . . On Tuesday, Acting Supreme Court Justice Jeffrey G. Berry of Orange County, N.Y., sentenced Siminovsky to a year in jail, citing the serious nature of his role in corrupting the judicial system. . . . Even the attorneys who claimed the sentence could have negative consequences said they recognized the judge's concern that serious misdeeds involving the corruption of the judiciary were appropriately punished.

Night at the Museum

June 2007

Justice system broken, as Duke case proves

William Scott Spotsylvania

6-27-07 -- It was very good to see the prosecutor in the Durham, N.C., "rape" trial being brought to justice ["Duke prosecutor disbarred," June 17]. . . . Unfortunately, this was just a high-profile example of the sort of things that go on all over the country. . . . Even exonerating DNA evidence did not save these young men from [the prosecutor's] avid pursuit of another term in office. Most accused persons do not have the resources to pursue their own investigations and hire highly experienced defense lawyers to protect their rights. . . . All over this country, sheriffs, chiefs of police, detectives, district attorneys, prosecutors and judges must achieve indictments and convictions to maintain and advance their careers. . . . While we all applaud diligent effort and understand that these individuals are not supposed to make judgments about defendants, we also know that that isn't how it works. . . . Unfortunately, even in a day and age of DNA, when a convicted person is exonerated, the various departments that participated in the original conviction continue to maintain that they "did nothing wrong" and that they are still convinced of guilt of the individual. . . . This country needs to step back and take a long, hard look at its "justice" system. Our country was founded on the principle of liberty and justice for all. It is critical to have this become a reality if we are to avoid a police state.


Federal Judge Speaks Out Against Mandatory Minimum Sentencing

Tony Mauro, Legal Times 

6-27-07 -- The House Judiciary Committee heard some powerful testimony Tuesday against mandatory minimum sentencing -- and not only from Families Against Mandatory Minimums and the Sentencing Project. Offering a sharp critique was Paul Cassell, the noted Utah federal district judge who chairs the criminal law committee of the Judicial Conference, which has long opposed mandatory minimums. . . . In his prepared testimony, Cassell spoke of the "bizarre" 55-year sentence he felt compelled to give Weldon Angelos, a first-time offender convicted of selling marijuana in 2004. Angelos was founder of Extravagant Records, a rap and hip-hop label that produced records for Snoop Dogg among others. Angelos' marijuana offenses alone would have netted him six to eight years in prison, but because he carried a gun during the deals, Cassell said that mandatory minimums for gun possession left him no other choice but to bump the sentence up to 55 years.


Appeals Panel 'Reluctantly' Tosses Child Porn Case

Alyson M. Palmer, Fulton County Daily Report 

6-27-07 -- Judges of the Georgia Court of Appeals last week said they must "reluctantly" issue an opinion that may make it more difficult for the state to prosecute people who look at child pornography. . . . A three-judge panel on June 21 reversed the conviction of a North Georgia man on 106 counts of sexual exploitation of children because, the judges found, prosecutors didn't prove that the man knew he had pornographic images stored in his computer hard drive. . . . In what it said was an issue of first impression in Georgia, the panel of Judge M. Yvette Miller, Chief Judge Anne Elizabeth Barnes and Presiding Judge J.D. Smith narrowly construed what it means to "knowingly" possess child pornography under the state's sexual exploitation law. It's not enough, wrote Miller for the panel, to prove a defendant has pornographic images in the inaccessible cache files of his computer. . . . The district attorney whose office prosecuted the case, Herbert E. Franklin Jr. of Walker County, said the ruling will make his job harder.

DA, defense spar over meaning of new DNA test on dog hairs in Atlanta child murder case

By Harry R. Weber, Associated Press

6-27-07 -- A prosecutor Tuesday rebutted defense claims that DNA testing of animal hairs found on some of the bodies in the notorious Atlanta child killings case are inconclusive, and he insisted the evidence links Wayne Williams to the slayings. . . . District Attorney Paul Howard said at a news conference that seven dog hairs from five of the murder cases were compared to hairs that had been gathered a quarter-century ago from Williams' dog, Sheba. . . . “All seven hairs tested are the same as Sheba's, the dog of Wayne Williams,” Howard said. “The test was not inconclusive as some have already started to spin.” . . . He added, “This testing finally settles the debate over whether Wayne Williams was the Atlanta child killer. He is.” . . . But the director of the University of California, Davis, lab that conducted the testing, Elizabeth Wictum, told The Associated Press that while the results are “fairly significant,” they don't conclusively point to Williams' dog as the source of the hair. . . . “We didn't individualize,” Wictum said.


N.Y. investor pools $1M for bond in Ga. teen sex case

Strangers pledge cash to free man while state appeals release order

By Emily Bazar, USA TODAY 

6-26-07 -- A New York investment manager and 10 of his friends have pledged $1 million in cash to try to win the release of a Georgia man imprisoned for a consensual sex act. . . . Genarlow Wilson, 21, is serving a 10-year sentence for receiving oral sex from a 15-year-old girl when he was 17. He has been behind bars for more than 28 months. Two weeks ago, a Monroe County judge ordered his release. . . . Because Georgia Attorney General Thurbert Baker appealed, however, Wilson remains in prison. . . . "A miscarriage of justice has occurred here, yet he's still in jail," says Whitney Tilson, a mutual and hedge fund manager who will commit $100,000 of his own money to a bond fund for Wilson.


Duke case involved societal prosecutorial abuse
Michael Gaynor

6-25-07 -- George Washington University Law School Professor Jonathan Turley, in a Washington Post article entitled "Lots of Prosecutors Go Too Far. Most Get Away With It," described the decline and fall of suspended Durham County District Attorney Michael B. Nifong at his ethics trial this way: "It was an extraordinary scene when Michael B. Nifong, the district attorney in Durham, N.C. took the stand to defend his law license after his failed crusade to convict innocent Duke University lacrosse players of gang rape. He had no more success with his own defense. After being disbarred for 'dishonesty, fraud, deceit and misrepresentation,' he was suspended from his job last week and now faces a possible lawsuit in civil court.". . . Mr. Nifong also faces possible criminal contempt and should face other criminal charges, but fair enough. . . . Professor Turley: "What's most remarkable about the whole scene, though, is how rare it is. Nifong's misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles — maybe even rewarded with a cable television show."

Recanted Testimony Fails to Overturn Conviction in a 1991 Murder

By Paul von Zielbauer

6-25-07 -- The United States Court of Appeals for the Second Circuit has denied the appeal of a man convicted of murder in 1992 on the strength of testimony from five eyewitnesses who later recanted under oath. . . . A lawyer for Fernando Bermudez, 38, serving a sentence of 23 years to life for the fatal shooting of a teenage boy in Greenwich Village, said the denial ended any hope that a federal court would re-examine the case. . . . Last year, a federal judge denied a writ of habeas corpus by Mr. Bermudez, who has maintained his innocence since his arrest in August 1991. He has made several appeals in the state and federal courts to overturn his conviction or win a new trial. . . . In its one-paragraph ruling, the circuit panel found that Mr. Bermudez had not made “a substantial showing of the denial of a constitutional right.” . . . “I’m not closing the door on Fernando,” said William E Hellerstein, a Brooklyn Law School professor and director of the school’s Second Look Clinic. He and another lawyer, Marjorie Smith, represented Mr. Bermudez before the Second Circuit. . . . “I just cannot accept the proposition that an innocent man is consigned to prison because the gods did not favor him,” said Mr. Hellerstein, who is reviewing options for another state appeal.


Blinded by the law

Teen sex case shows that focusing on the letter of the law doesn’t always spell justice
By Radley Balko, senior editor for Reason magazine and publisher of the Web log
6-25-07 -- Earlier this month, a Georgia judge threw out the 10-year prison sentence of 21-year-old Genarlow Wilson. Wilson had been convicted of molestation for engaging in consensual oral sex with a 15-year-old girl at a New Year's Eve party. He was 17 at the time. Wilson was convicted under a Georgia statute (since revised) that, strangely, would have resulted in only a misdemeanor charge had Wilson and the girl engaged in vaginal sex. The sentence generated outrage across the country, including from such unconventional sources as ESPN magazine (Wilson was a high school athlete) and former President Jimmy Carter. . . . But one person was more outraged by the revocation of Wilson's sentence than by the sentence itself. He is Georgi Writing in the Atlanta Journal-Constitution, Baker explained that he would appeal the judge's decision, not because he thought Wilson's sentence was just but because the girl was under the age of consent of 16, and, "It is my responsibility to follow the laws of Georgia as they are written, not how some may wish they were written." . . . In other words, as the Charles Dickens character Mr. Bumble famously proclaimed in "Oliver Twist," "the law is a ass." And it's Thurbert Baker's job to slavishly follow that ass wherever it may lead. Atty. Gen. Thurbert Baker. And his opinion, unfortunately, is one of the few that really matter.


Supreme Court Sets Rules for 'Reasonable' Prison Sentences

Mark Sherman, The Associated Press 

6-22-07 --The Supreme Court made it harder Thursday for most defendants to challenge their federal prison sentences. . . . Appeals courts that review prison terms imposed by trial judges may deem them reasonable if they fall within federal sentencing guidelines adopted in the mid-1980s, the high court said. . . . The justices upheld a 33-month sentence given to Victor Rita for perjury and making false statements. Rita is a 25-year military veteran and former civilian federal employee. . . . The prison term falls within the guidelines range and was upheld by the 4th U.S. Circuit Court of Appeals, posing the question of whether sentences within the guidelines ordinarily will be considered reasonable. . . . The vast majority of federal prison sentences fall within the guidelines.

Study Says Juries Screw Up One Verdict Out of Eight

New York Lawyer, By Lynne Marek, The National Law Journal

6-20-07 -- Northwestern University professor Bruce Spencer has conducted an analysis of 271 state court cases, spanning various judicial jurisdictions, and found that juries gave "wrong" verdicts in at least one out of eight cases. . . . He came to his conclusions by comparing the verdict of the jury with responses from judges who were overseeing the cases and who responded to a questionnaire asking for their opinion on the correct verdict. Facts from the cases that he used in his study were gathered in a U.S. National Center for State Courts survey. . . . "This study strongly suggests that DNA or other after-the-fact evidence is not the only way to know how often jury verdicts are correct," said Spencer, who is a professor of statistics at Northwestern's Institute for Policy Research, in a press release.


Your Honor, wake up

The wheels of justice often grind so slowly in Ohio that it's difficult to tell whether they're moving at all

The Plain Dealer

6-20-07 --The tortoise-like pace of Ohio's Supreme Court makes a mockery of the term "justice." . . . And since the judges themselves won't require a quicker turnaround from oral argument to issued order, someone else must do it for them. As much as the justices insist they need ample time to deliberate on complex matters, chances are they would operate much more quickly if they were locked in a cell as long as some inmates have waited for their orders. . . . We're not suggesting that members of the Ohio Supreme Court face jail time for tardiness. But it would be understandable if Robert Gondor and Randy Resh, two Portage County men whose convictions for rape and murder the court unanimously overturned, thought the 335 days Justice Paul Pfeifer took to issue that 22-page order exceeded all bounds of reason.


Contrasting Cases Show Murkiness of Sex Law

Genarlow Wilson's win made the news, but another teen sex case looms

Alyson M. Palmer, Fulton County Daily Report 

6-15-07 --Mercer University law professor Sarah Gerwig-Moore represents a young man few know but whose plight will sound very familiar. . . . Like Genarlow Wilson, whose highly publicized case this week reached a new level of drama, Joshua Widner was sentenced to 10 years in prison for a sexual encounter with a fellow teenager that his lawyers say today would be considered a misdemeanor. In both cases, courts have found that neither girl was forced to give oral sex. . . . But while a Monroe County judge Monday tossed Wilson's sentence as "a grave miscarriage of justice," the state Supreme Court last year said Widner's sentence "does not unconstitutionally shock the conscience." . . . Gerwig-Moore said in an e-mail that she's rooting for Wilson, for his sake and that of her client. . . . But she called the Widner ruling of the high court -- called upon to hear Attorney General Thurbert E. Baker's appeal of Wilson's case -- "a big hurdle for Genarlow."


3rd Circuit Overturns Lifetime Computer Ban

Federal appeals court rules sentence too harsh in pornography case

Shannon P. Duffy, The Legal Intelligencer 

6-11-07 -- Issuing a stern rebuke to a trial judge for imposing too harsh a sentence on a man who confessed to receiving child pornography, the 3rd U.S. Circuit Court of Appeals has ruled that the facts of the man's case did not justify a lifetime ban on using computers and accessing the Internet. . . . The unanimous three-judge panel also expressed dismay that the case marked the third time that the appellate court was forced to reverse the same judge -- U.S. District Judge Alan N. Bloch of the Western District of Pennsylvania -- on similar issues. . . . "It is indeed unfortunate that we have had to review a sentence that mirrors one that this same judge previously imposed that we had to vacate not once, but twice," U.S. Circuit Judge Theodore A. McKee Jr. wrote in his 45-page opinion in United States v. Voelker. . . . McKee, who was joined by Judges Dolores K. Sloviter and Marjorie O. Rendell, found that the sentence imposed by Bloch on Daniel Voelker fell "woefully short" of the statutory requirement that any restrictions imposed on criminal defendants after their release from prison be "narrowly tailored to impose no greater restriction than necessary."

Judge's role in plea overturns sentence

By Jim McElhatton, The Washington Times

6-11-07 -- A federal appeals court overturned a prison sentence of more than four years given to a local investment consultant on money-laundering charges, saying the judge in the case was improperly involved in plea talks. . . . A ruling last week by the U.S. Court of Appeals for the D.C. Circuit gives Kenneth C. Baker, 44, the right to a new trial on charges he schemed to steal an 88-year-old woman's life savings last year. . . . The appellate court's ruling says that despite "good intentions," U.S. District Court Judge Emmett G. Sullivan committed an error in Baker's case that "reflects badly on the fundamental fairness of the judicial process." . . . At issue were statements made by Judge Sullivan in March 2006 after he requested an update on plea talks between prosecutors and Baker's defense attorney. . . . Prosecutors told the judge that they were offering 21 to 27 months if Baker, a former SunTrust Bank employee, pleaded guilty to bilking his client of her $96,000 life savings.


Judge Rules In Genarlow Wilson Teen Sex Case

Submitted by Candace Thompson

6-11-07 -- Georgia judge voided a ten-year sentence today for Genarlow Wilson for having oral sex with a 15-year-old girl when he was 17. . . . Instead, the judge gave him a 12-month misdemeanor sentence with credit for time he has already served. . . . The state is likely to appeal the ruling from Monroe County Superior Court Judge Thomas Wilson. Genarlow Wilson who has already served more than 27 months is expected to remain behind bars while the appeal proceeds is on going. . . . Wilson petitioned a the judge in Monroe County last week for an early release. . . . Now 21, Wilson is serving ten years without the possibility of parole after a jury found him guilty in 2005 of aggravated child molestation for having oral sex with a 15-year-old girl during a 2003 New Year's Eve party involving alcohol and marijuana.


Inmates Sue Over Ban on Religious Texts

By Associated Press

6-11-07 -- Inmates at the federal prison camp in Otisville, N.Y., were stunned by what they saw at the chapel library on Memorial Day — hundreds of books had disappeared from the shelves. . . . The removal of the books is occurring nationwide, part of a post-September 11 federal directive intended to prevent radical religious texts, specifically Islamic ones, from falling into the hands of violent inmates. . . . Three inmates at Otisville, about 80 miles north of Manhattan, filed a lawsuit over the policy, saying their Constitutional rights were violated. They say all religions were affected. . . . "The set of books that have been taken out have been ones that we used to minister to new converts when they come in here," inmate John Okon told a judge last week. . . . Okon said it was unfortunate because "I have really seen religion turn around the life of some of these men."


Perverted Justice: Updating The Genarlow Wilson Tragedy

The Time Has Come For Georgia To End This National Farce

By: Emil Steiner

Monroe County To Hears Genarlow's Appeal (AP)

6-7-07 -- Though America's history is littered with tales of perverted justice, few have captured the national spotlight like that of Genarlow Wilson, the 17-year-old sentenced to ten years in prison because he had consensual oral sex with a 15-year-old. Today, amid intense criticism from human rights groups, the media, even former presidents, a Georgia appeals court is examining whether this promising young man, who has spent the last 27 months behind bars, deserves his freedom. And come Monday, if reason somehow manages a shocking comeback in the Peach state, he could be released, but I'm not holding my breath. Here is the background of the case: . . . "In 2003, Wilson was a 17-year-old senior at Douglas County High with a 3.2 GPA and football skills that had caught the attention of a several Ivy League schools. He was popular among students and teachers and had been voted Homecoming King. That all changed after a New Year's Eve party during which he received oral sex from a 10th grader. She was 15 and by all accounts the initiator. At the time, Georgia law stipulated that it was "a misdemeanor for teenagers less than three years apart to have sexual intercourse," but a felony for them to have oral sex.


Integrity Of Cuyahoga Justice System At Issue

North Country Gazette

6-2-07 -- The integrity of the criminal justice system in Cuyahoga County is at issue as the result of the handling of the Raymond Williams case, Ohio’s ex-Mr. Football,  and in particular, the actions of Common Pleas Court Judge Shirley Strickland Saffold. . . . Strangely enough, the Williams case in which the former football star has been convicted for involuntary manslaughter but seems to be getting preferential treatment from Saffold, has a directly bearing to the case of judicial whistleblower Elsebeth Baumgartner and pits Saffold in direct conflict with the Cuyahoga County prosecutor’s office. . . . Perhaps even the race card might be in play as it appears that there’s a disparity in sentencing and the handling of cases between blacks and whites by Saffold who’s black. . . . Thomas Cahill, the original prosecutor in the Williams case when he was an assistant in the Cuyahoga County prosecutor’s office of Bill Mason, called Saffold “a judge gone wild” after she refused to find that Williams in violation of his probation in May after he had violated several of the release conditions.

May 2007


2nd Circuit Clarifies Right of Testifying Defendant to Consult Lawyer

Mark Hamblett, New York Law Journal

5-31-07 -- A federal appeals panel has clarified the law on attorney-client communications during the defendant's ongoing testimony at trial. . . . Addressing a case of first impression in the 2nd U.S. Circuit Court of Appeals related to witness coaching, the panel held that a "restriction on communication during a long recess can violate the Sixth Amendment even if the restriction bars discussion only of the defendant's testimony." . . . In United States v. Andrews, 05-2630-cr, Judge Guido Calabresi wrote for the circuit that a "defendant's constitutional right to consult with his attorney on a variety of trial-related issues during a long break, such as an overnight recess, is inextricably intertwined with the ability to discuss his ongoing testimony. Thus, a ban on discussing testimony during a substantial recess does materially impede communication of a 'constitutional quality.'" . . . Judges Barrington Parker and Rosemary Pooler joined the opinion. . . . But the decision did not help Ben F. Andrews, who was convicted in 2005 of bribery, fraud and other charges in connection with a scandal involving the illegal investment of state pension funds by former Connecticut Treasurer Paul Silvester. . . . At the close of Andrews' first day of cross-examination, defense attorney Jeremiah Donovan of Old Saybrook, Conn., told the district court that he wanted to talk to his client about his testimony.


Let federal judges use judgment in sentencing

Sioux City case highlights iron-fisted rules.

DesMoines Register Editorial

5-30-07 -- Two years ago, the U.S. Supreme Court struck down federal criminal sentencing rules as unconstitutional. Some in Congress, fearing bleeding-heart federal judges would go soft on criminals, vowed to override the ruling. They needn't worry - if all federal appeals courts behave like the one that covers Iowa, at least. . . . Last week, the U.S. Court of Appeals based in St. Louis for the second time ordered that an Iowa man convicted of distributing methamphetamine be sentenced to a term at least twice as long as the two years set by U.S. District Judge Mark Bennett in Sioux City. Just to be safe, the court reassigned the case to a different federal judge in Iowa, because it didn't trust Bennett to follow its dictate. . . . The result, in this case, is that Jason Pepper - now working and going to school in Illinois, after completing is original two-year sentence - will be going back to prison. He will likely serve at least two more years, perhaps more. Federal prosecutors in the case recommended a sentence of nearly seven years.


Cameras in the courtroom?
By: Joleene Des Rosiers

5-30-07 -- Judge James Tormey said, "I think it is long overdue, and I think it's very important, and I think it will pass." . . . The Honorable James C. Tormey, the 5th Judicial District Supervising Judge, has always been an advocate of allowing the public inside a courtroom using technology. . . . Tormey said, "Remember, these are public trials. And the courtrooms, the most they can hold is 100 people. With modern technology, that doesn't translate to a public trial."


Can What You're Reading Prove Intent to Commit a Crime?

Howard J. Bashman, Special to

Related: Bashman Archive

5-29-07--A man is arrested in Las Vegas on federal criminal charges of traveling across state lines with intent to engage in a sexual act with a minor and using an interstate communication facility to attempt to persuade a minor to engage in sexual acts. The evidence against the man consists of the transcripts of multiple online chats between the man and a police officer posing as a 14-year-old girl. On the date selected for their meeting, the man traveled from his home in Anaheim, Calif., to Las Vegas, where police apprehended him at the designated meeting place. . . . At trial, the man seeks to defend against the charges by maintaining that he believed that he was chatting with a 30- to 40-year-old woman who had been pretending to be an underage girl, and that he was expecting to meet that woman at the designated location in Las Vegas. When the man was arrested, he was carrying a personal digital assistant (PDA) containing more than 140 stories that described adults having sex with children. The prosecution sought to introduce many of these stories into evidence at trial, to rebut the man's defense that he was not intending to meet an underage minor for sex. . . . In April 2006, the majority on a divided three-judge panel of the 9th U.S. Circuit Court of Appeals, when faced with these facts in a case captioned United States v. Curtin, ruled that an earlier 9th Circuit decision prohibited the stories from being used as evidence of the man's intent at his criminal trial. The dissenting judge, Stephen S. Trott, argued, among other things, that the earlier precedent was wrong and should be overturned. . . . Thereafter, the full 9th Circuit ordered rehearing en banc. And just last week, a sharply divided 15-judge en banc panel ruled 8-7 that the earlier 9th Circuit precedent should be overturned and that the stories were admissible to rebut the man's defense that he was not in fact traveling to Las Vegas with the intent to have sex with a minor.


American justice? Isn’ t that a contradiction?

The extradition law is more than unfair, it’s probably illegal

William Rees-Mogg

5-29-07 -- Americans are well aware of the horrid faults of their legal system, but they still like to think that it is the best in the world. Its abuses include plea bargaining, class actions, Hollywood actions, Guantanamo Bay, racism, elected district attorneys looking for votes, hick justice in states such as Arkansas, federal patronage of prosecutors and judges, the politicisation of the Supreme Court, the squalor and brutality of big federal and state prisons and the aggressive ruthlessness of tax and regulatory authorities. In the United States, you can be ruined by the cost of doctors if you get sick and by the cost of lawyers if you get into court. . . . There are, of course, honourable lawyers and distinguished judges, some of whom are among the best in the world. It is the downside of US law that terrifies Americans and should terrify foreign businessmen. . . . A British businessman should never become a nonexecutive director of an American company, since the legal fees, in the event of trouble, can be a multiple of the board fees. If threatened with a legal action in the US, one should hire a lawyer who frightens the other side and settle as quickly as possible. If necessary, go to live in a country, such as Russia, which has not signed an extradition treaty with the United States; President Putin will protect you, but you can be sure that the British Government will not.


Judge sentences youth to yoga

By Pamela Dickman, (Loveland) Reporter-Herald

5-29-07 -- Eric Campbell was not particularly enthusiastic when he learned that, as part of juvenile drug court, he would have to attend weekly yoga sessions. . . . "I thought it was crap," he said, quickly apologizing for his language. "It wasn't going to help me. I was just going to go and mess around." . . . Six months later, the 18-year-old feels differently. . . . "It's cool," he said. "It's like a mental and physical thing. Right now, I wouldn't know what to do without it." . . .His concentration was evident earlier this month during the half hour he and 14 other teens followed the direction of yoga teacher Cathy Wright. . . . She asked her students to keep their spine straight, roll their arms in and breathe. . . . "You come to yoga to learn to relax your tensions, but you have to be able to perceive it to relax it," she told the young men, who are all dealing with some form of substance abuse and were ordered to attend the class by Magistrate Mary Jo Berenato. . . . A year after Berenato became the juvenile magistrate for the 8th Judicial District and took over juvenile drug court, she launched the yoga program.


Trial By Ambush

Shirley Lowery

5-29-07 -- Many times I hear something that I take with a grain of salt. But when the same information starts coming from many unrelated sources it begins to take on new meaning. . . . When suspects are arrested they are read their Miranda Rights. At that time suspects often request an attorney. The officers ask if they have an attorney. Most do not so they ask that one be appointed for them. They are told that no determination has been made that they are indigent so an attorney cannot be appointed for them. During these multiple exchanges with one officer, the assisting police officer types up a confession. The suspect is told the only way he will see an attorney is to sign the confession which is a mere formality that can be thrown out once the suspect is released and arranges for an attorney. While all of this is taking place the audio and video equipment sits in a corner covered with dust First time arrests are so easy. The suspects know that signing a confession is something they should not do but, especially someone who is innocent, wants nothing more than to beat a path to an attorneys office and get this nightmare taken care of. Once attorneys are told about signed confessions the real nightmare begins.


Conn. Supreme Court rules indigent convicts have right to a lawyer

5-22-07 -- (Hartford-AP) The state Supreme Court has ruled that indigent convicts have a right to a lawyer to determine if they may challenge the legality of their sentence. . . . The unanimous ruling released yesterday also applies to whether indigent convicts can be represented in legal proceedings. . . . The court expanded its interpretation of a state law granting indigent defendants and convicts a court-appointed lawyer in "any criminal action."


Prosecutors Feeling Impact of 'Duke Effect'

Many defense counsel are using Duke rape case to sway jurors

Tresa Baldas, The National Law Journal

5-18-07 -- New Jersey prosecutor Paul DeGroot knew it wouldn't take long for the Duke University lacrosse rape case to wreak havoc on prosecutors. . . . "It's becoming a tool and a buzz word for defense attorneys to say, 'Look what happened at Duke,'" DeGroot said. . . . He speaks from experience. . . . Shortly after the rape charges were dropped against the three lacrosse players -- and the prosecutor, Durham County, N.C., District Attorney Mike Nifong, was hit with ethics charges for allegedly withholding DNA evidence -- a defense lawyer in a recent drug case tried to use the Duke case against DeGroot. . . . "He said to the jury, 'We all know a prosecutor can indict a ham sandwich. Just look at what happened in that case down in Duke,'" recalled DeGroot, senior assistant prosecutor in Passaic County, N.J. "I objected as soon as that came out. And I made sure I added to say, 'In this county, we don't try cases like that.'" . . . NATIONAL FALLOUT . . . Prosecutors across the country are seeing fallout from the Duke case, as defense attorneys use it to discredit other criminal cases and paint them as overzealous prosecutors with something to prove.


Rush Guitarist Alex Lifeson Fights For Florida Justice
By Staff of The Post Chronicle

5-7-07 -- Rush star Alex Lifeson is appealing a ruling that cleared Florida sheriff's deputies who arrested him and his son at a New Year's Eve party in 2003 of brutality, because he's sick of heavy-handed police operations in the area. . . . Lifeson, real name Alex Zivojinovich, was shocked when Judge Paul Magnuson ruled last month (Apr07) the officers were "objectively reasonable" in their behaviour - even though they tasered Lifeson and his son Justin and broke the guitarist's nose in a fight at the Ritz-Carlton Hotel in Naples, Florida. . . . The rocker is now fighting back after collecting video evidence and witness testimony, which will prove the police officers and the judge were wrong.


Justice: Ruling could ‘turn drug dealers loose’

Maynard believes decision serious obstacle for police

By Amelia A. Pridemore, Register-Herald Reporter

5-7-07 --A state Supreme Court justice and local narcotics officers are incensed after the high court decided not to reconsider a ruling they say could set drug dealers free to plague neighborhoods. . . . The court voted 3-2 on April 19 to reject a petition by the state attorney general’s office that sought a new hearing on the Feb. 28 ruling in State vs. Eddie Mullins. In February, the court ruled police could not use informants to make electronic recordings of alleged criminal activity in a suspect’s home without a court order. . . . Justices Robin Davis, Larry Starcher and Joseph Albright were in the majority in rejecting the petition, and Justices Elliott “Spike” Maynard and Brent Benjamin dissented. Maynard and Benjamin cast the two dissenting votes in the February ruling. . . . Maynard said he wanted to make sure every West Virginia citizen was aware the ruling would create a serious obstacle for police working to clear drugs from neighborhoods. . . . “This is to let the guy on the street in West Virginia see what is going on,” he said during a visit to Beckley last week to honor local police officers. “This could affect hundreds and hundreds of cases — and the prosecuting attorneys association has estimated 1,200 to 1,400. This could turn a lot of drug dealers loose.”

Treaties apply to foreign prisoners, too

The Supreme Court should uphold a treaty granting consular visitation rights to foreigners on Death Row.


5-3-07 -- IT ISN'T OFTEN that the Supreme Court can lend a helping hand to the president in easing international tensions. But that could be one result of the court's welcome agreement to hear the appeal of Jose Medellin, a Mexican inmate on Texas' death row whose rights under an international treaty have been violated. . . . If the court eventually rules — as it should — that Medellin is entitled to a new trial or sentencing hearing, it will be doing more than helping President Bush out of a diplomatic jam. It also will be sending the timely message that when the United States signs an international agreement, it actually means something. . . . Three years ago, the International Court of Justice in The Hague ruled that Medellin and 50 other Mexicans sentenced to death in this country — including 28 in California — were entitled to reconsideration of their convictions and sentences because they hadn't been given access to representatives of their home countries. Such contacts are required under the Vienna Convention on Consular Relations, a treaty ratified by the U.S. . . . Medellin petitioned the Supreme Court for a writ of habeas corpus. But in 2005, the court dismissed the case after Bush, in a goodwill gesture to Mexico, promised that the U.S. "will discharge its international obligations … by having state courts" adhere to World Court rules.


Mentally ill man's 3-strikes sentence upheld

Thief received term of 25 years to life for stealing liquor

Bob Egelko, Chronicle Staff Writer

5-3-07 -- A federal appeals court upheld a mentally ill man's three-strikes sentence of 25 years to life Wednesday for shoplifting two bottles of liquor from a Southern California market, a sentence that a dissenting judge called "barbarous.'' . . . In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco affirmed a Los Angeles County judge's sentencing of Cornel Ray Joshua, who walked out of a West Covina market with $62 worth of liquor in July 1999. He ran when a store employee approached but was grabbed and pulled to the ground, according to testimony cited by his lawyer. . . . Joshua, diagnosed as a paranoid schizophrenic, had been convicted of robbery five times since 1974 and had been in and out of prisons and mental hospitals in the decades before his shoplifting conviction, said his attorney, Jerry Sies. He argued that a three-strikes sentence in such a case would violate the constitutional ban on cruel and unusual punishment. . . . But the court majority said federal judges, under a 1996 law, can overturn state criminal sentences only if they clearly violate constitutional standards that have been established by the U.S. Supreme Court. The high court has ruled that judges and juries in death penalty cases must consider a defendant's mental illness, but has made no such rulings in other cases, the appeals court said.

Yesterday's non-precedential ruling of the U.S. Court of Appeals for the Ninth Circuit consists of a three-page majority opinion and a sixteen-page dissenting opinion.

April 2007


Georgia’s Shame

New York Times Editorial

4-30-07 -- Every day that young Genarlow Wilson remains in prison for consensual sexual activity is a further indictment against the prosecutors, lawmakers and judges of the Georgia legal system. Lawyers for Mr. Wilson have applied for a writ of habeas corpus to challenge his cruel and unusual 10-year sentence. The Superior Court should grant it. . . . When he was 17, Mr. Wilson received oral sex from a 15-year-old girl. For that, he has served over two years of a strict minimum decade-long prison term. He was convicted of aggravated child molestation, a charge intended for adult sexual predators. If Mr. Wilson had engaged in sexual intercourse with the same girl, it would have been a misdemeanor under an exemption for contact between minors. Oral sex was left out. Legislators have since corrected the unintended trap. If Mr. Wilson engaged in the same action today, it would be a misdemeanor. . . . The Board of Pardons and Paroles is legally prohibited from granting clemency for this offense. And the State Senate adjourned for the year without taking up a bill that would have allowed judges to review sentences in cases like Mr. Wilson’s.


For $82 a Day, Booking a Cell in a 5-Star Jail

By Jennifer Steinhauer

4-27-07 -- Anyone convicted of a crime knows a debt to society often must be paid in jail. But a slice of Californians willing to supplement that debt with cash (no personal checks, please) are finding that the time can be almost bearable. . . . For offenders whose crimes are usually relatively minor (carjackers should not bother) and whose bank accounts remain lofty, a dozen or so city jails across the state offer pay-to-stay upgrades. Theirs are a clean, quiet, if not exactly recherché alternative to the standard county jails, where the walls are bars, the fellow inmates are hardened and privileges are few. . . . Many of the self-pay jails operate like secret velvet-roped nightclubs of the corrections world. You have to be in the know to even apply for entry, and even if the court approves your sentence there, jail administrators can operate like bouncers, rejecting anyone they wish.


Lawyer: Ill inmate dies after being left alone

The Associated Press

4-27-07 -- A diabetic jail inmate who lost control over his lower body died after being left alone covered in his own feces for a week, and officials failed to get him medical treatment despite knowing of his condition, his attorney said Thursday. . . . Attorney David Kubiliun said Rodolfo Ramos, 41, was left in a solitary cell in Miami-Dade County jail even though a correctional officer there wrote that "I have made several attempts to (contact) medical staff to try and resolve this situation but to no avail. . . . "Inmate Ramos should not be housed in general population, he needs to be in a medical housing unit,'' the lawyer quoted the report as saying. "This situation needs to be addressed immediately in order to prevent a tragic, unforeseen incident.''


Missing Transcript in Mich. Murder Trial Highlights Controversy Over Handling Vital Records

Tresa Baldas, The National Law Journal 

4-20-07 -- A missing court transcript of a Michigan murder trial has highlighted a frequent problem encountered by the courts: What happens when transcripts, or crucial portions of them, go missing? . . . That's at the heart of a recent controversy brewing in Detroit, where convicted murderer Elroy Jones is seeking an appeal. . . . But there's a problem: The only transcript of his murder trial was recently stolen by someone who broke into a court reporter's vehicle in a drugstore parking lot. The thief took her briefcase, which contained tapes from the defendant's 2006 murder trial. . . . "We don't have the real details that exist here. It's just impossible to pursue the [appeal]," said the defendant's appellate lawyer, Craig Tank of Tank & Jelalian in Macomb Township, Mich., who is seeking to have the conviction reversed. People v. Jones, No. 06-007202 (Wayne Co., Mich., Cir. Ct.). . . . According to Tank, the stolen tapes contained 80 percent of the trial transcripts. All that's left on record, he said, is the prosecutor's opening argument. Tank filed motions last week in the appeals court to have the case remanded back to the lower court for retrial. . . . "What has taken place here with the missing transcripts is that [defendant] Elroy Jones has been deprived of his right to seek an appeal," said Tank, who disputed claims that the robbery was a setup. "This was simply a random criminal act."


Dropped Duke Charges Renew Hope in Georgia

By Shaila Dewan

Genarlow Wilson is serving 10 years in prison for a sex act that would be a misdemeanor today.

4-16-07 -- When North Carolina’s attorney general said last week that an overreaching prosecutor lacked the evidence to support charges of rape against three former Duke University lacrosse players, some in this neighboring state hoped that tremors from his pronouncement would help free a former star high school football player. . . . But as Georgia’s legislative session neared a close, the odds were against them. . . . The former football player, Genarlow Wilson, is serving 10 years without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting even though he was 17 at the time. . . . The mandatory sentence shocked even the jury that convicted him. State law has since been changed to make most consensual sex between teenagers a misdemeanor.


Moratorium Placed on New Cases for Overloaded Fla. Drug Court

Forrest Norman, Daily Business Review 

4-13-07 -- Miami-Dade's overwhelmed felony drug court will stop taking new cases, thrusting hundreds of defendants into mainstream criminal court to face possible prison time instead of treatment and rehabilitation options. . . . Miami-Dade Chief Judge Joseph Farina confirmed in an e-mail that he declared the moratorium and that it will last no more than 120 days. . . . "At this time, the existing caseload has exceeded the court's ability to provide Drug Court services for all those in need, thereby necessitating a temporary moratorium," Farina wrote. "As cases are closed, new participants will be enrolled in the Drug Court program." . . . The Miami-Dade Circuit Court's drug court -- established in 1989 -- became a national model. It has been mimicked by more than 400 communities throughout the country. The goal is to give drug users treatment and counseling instead of sending them to prison.


Defendant acts as own attorney, delaying trial for four years

Natalie Andrews - Daily Herald

4-9-07 --  Four years after Amador Santonio allegedly reached for a Utah County Sheriff's deputy's weapon and assaulted him -- breaking his finger -- then ran and stabbed another officer, he's still in jail. And there's no end in sight for his case. . . . Since then, he's been filing motion after motion in court. They started with chicken-scratch handwriting on a yellow legal pad. Now he writes his motions neatly on college-ruled paper. He's learned to list his case number and address. And he refers to himself in third person, as he is acting as his own attorney. . . . "Santonio contends barriers at the jail are interfering in his ability to secure an attorney," he writes in the most recent memorandum he filed, Feb. 2. He writes that he wants access to a law library, and he wants to meet with a counselor. . . . One of his latest motions was a request to appeal his case to the state Court of Appeals. The court rejected that request in March because it lacked jurisdiction. Now everyone involved with the case is awaiting a ruling on Santonio's competency to stand trial. . . . The prosecutor in the case says Santonio is wasting time and tax dollars, sitting in the jail filing motion after motion. It's also becoming frustrating for the alleged victims in the case. . . . Defendants representing themselves -- known in the legal world as pro se -- aren't unusual, said Brent Johnson, general counsel for the administrative office for the court. But it can become tricky for a person in jail. Santonio has reported finding it difficult to access all of the materials necessary for his case.


Restorative Justice making an impact in county
Cookie Brigade just one of the area non-profit organizations getting the help it needs.
Todd Beckmann, Sentinel News Editor
4-4-07 -- Giving back. . . . Whether it's inmates from the county jail or drug and alcohol offenders, community service is all about giving back to and helping restore the community in which they committed their crime. . . . Fittingly, then, Burnett County Restorative Justice Response has taken over the community service program for inmates, initiated last year by Jail Captain Terry Nesvold and Judge Michael Gableman, as well as providing work sites for those in drug and alcohol court who need to complete 40 hours of community service as part of their treatment. . . . "We just took over these programs in early March," Lisa Johnson, director of programming, explained. "We have the Siren Senior Center, the Cookie Brigade, Meenon Township, the Burnett County Housing Authority and the Humane Society of Burnett County signed on as work sites and are working with many more," she continued. . . . "Dave Kopecky of Siren is serving as an intern with Restorative Justice and is working very closely with the community service project for the drug court participants," Johnson said. . . . She said the work varies from cleaning apartment units and cleaning kennels to serving meals and walking dogs.

Defense Lawyers Dismayed by 9th Circuit Ruling on Willful Ignorance

Justin Scheck, The Recorder 

4-3-07 -- The question of how to determine whether someone knew they were committing a crime has long been an epistemological briar patch. As 9th Circuit Judge Alex Kozinski put it in a Monday opinion, "we've seen a proliferation of narrow, heavily fact-dependant and at times contradictory opinions that have been difficult for both judges and litigants to navigate." . . . So, in his majority opinion for a 15-member en banc panel, Kozinski set out to "clear away the underbrush" surrounding how juries should be told to treat a defendant who claims she didn't know that what she was doing was a crime, even if she probably should have. . . . Writing for a 10-judge majority, Kozinski said trial judges should have broad discretion in instructing a jury that a defendant's willful ignorance amounted to knowledge of criminal activity. . . . It was the second time Kozinski has addressed the issue: In October 2005, he dissented from a three-judge panel's decision that reached the opposite conclusion. . . . Judge Susan Graber, in a dissent from the en banc opinion, said the instruction in the case could have confused the jury.


'They broke his jaw, busted his eye'
Mother describes attacks on son in
Texas Youth Commission custody
By Jerome R. Corsi, © 2007

4-3-07 -- Outraged parents are telling the Texas Legislature and others about abuses their children suffered within the Texas Youth Commission system, and Genger Galloway is leading the charge, telling how her son was forced to perform oral sex by female prison staff, sodomized by an older inmate in an incident arranged by a guard and suffered a broken jaw and concussions in physical attacks. . . . Galloway's story is about her son Joseph, now 19, who has been in the system for more than four years. He had been raped by a friend's older brother when he was eight, but his parents did not learn of the attack until he was 15, after he had started touching his siblings inappropriately, and they called for help. . . . "I reported this to the authorities thinking that they were going to get us some help," Galloway told WND. . . . As WND reported earlier, authorities including U.S. Attorney Johnny Sutton and the Criminal Section of the civil Rights Division of the Department of Justice apparently were aware of the attacks going on with the Texas state juvenile prison system – but declined to get involved. A spokesman for the Texas Gov. Rick Perry now says the tragic situations are prompting a top-to-bottom review of the agency. . . . Galloway said authorities first responded to her family's plea for help by dispatching a sheriff's deputy to the Galloway home to take statements, and then the next day the children were interviewed at a safe house.


La. judge frees 42, calling indigent defense a 'mockery'

By Ann M. Simmons, Los Angeles Times

4-2-07 --Calling the Orleans Parish program for defending indigent clients "a mockery" of what a criminal justice system should provide, a criminal court judge has ordered 42 defendants released and their prosecutions halted. . . . Judge Arthur Hunter, who has been outspoken in his criticism of the public defender's office's performance, charged that the financially strapped and overburdened program had failed to adequately represent poor defendants. . . . Hunter's order to release the inmates won't be finalized until April 18, but he said on Friday that he would no longer appoint the Orleans public defender to represent poor people in his courtroom. . . . Hunter also ordered that the public defender's office show at that time why it should not withdraw from the remaining 122 indigent defendant cases assigned to his courtroom and stop accepting such cases in his courtroom altogether. He also requested a financial accounting from the indigent defense program.


Fast cars, slow justice: Plea bargain ban bogs down courts, cops

By Patricia Doxsey, Freeman staff

4-2-07 --SEVEN MONTHS after the New York State Police stopped offering plea bargains on the traffic tickets they issue, critics say the concerns they had about the new policy have come to pass. . . . Judges are conducting significantly more traffic trials than ever; it's taking months longer than it had to adjudicate tickets; and, perhaps most disconcerting, there is an unequal application of justice, opponents of the policy say. . . . SINCE Sept. 1, 2006, state police have been unable to offer to motorists they ticketed an opportunity to resolve the case without trial by pleading to a reduced charge. . . . That means, in most counties across the state, a speeding ticket stays a speeding ticket - at least if it's issued by the state police. . . . Other police agencies continue to offer traffic violators plea deals, which means that, in many counties, two people with the same driving record issued tickets for the same violation are dealt with differently by the judicial system, depending on who issues the ticket. . . . STATE police spokesman Sgt. Kern Swoboda defends the state police policy, saying it "pulls a variable out of the system that puts integrity back into the process of writing a court summons." . . . "Our primary responsibility is enforcement of vehicle and traffic laws," Swoboda said.


Black Teen Who Pushed Hall Monitor Freed From Juvenile Prison

4-2-07 -- (AP) Shaquanda Cotton, whose yearlong stay in a juvenile prison for pushing a hall monitor made her a symbol of alleged racial bias and the troubled Texas Youth Commission, was released Saturday, a state lawmaker said. . . . The 15-year-old was freed from the Ron Jackson Correctional Complex and picked up by her mother, said Rep. Harold Dutton, chairman of the House juvenile justice committee who lobbied state officials for Cotton's release. . . . Dutton said Cotton and her family headed back to Paris, her East Texas hometown near the Oklahoma border where civil rights activists have held two protests in as many weeks calling for her release.

March 2007


Florida Supreme Court finalizes DNA rules, rejects defenders' objection

By Associated Press

3-30-07 -- The Florida Supreme Court adopted a permanent rule Thursday on DNA testing of prison inmates and criminal defendants after turning aside an objection from public defenders at least for the time being. . . . The rule replaces an emergency rule the justices approved last year to conform with a new law that requires judges to ask defendants, their lawyers and prosecutors about possible DNA evidence before accepting guilty or no-contest pleas. . . . The Florida Public Defenders Association argued against that requirement on grounds that such an inquiry is outside the Legislature's purview, places undue burden on the defendant and would result in the waiver of a defendant's right to a valid post-conviction appeal.


Victim's Picture Is Part of Sentence

By Dana Willhoit, The Ledger

3-27-07 -- Arthur Pierce won't be able to forget Chelsi Gregory after he gets out of prison. . . . Circuit Judge Robert Doyel on Friday ordered that a large photograph of Gregory be displayed in a prominent place wherever Pierce is living. . . . Below the photograph, Doyel said must be "respectful lettering that says: 'I'm sorry I killed you.'" . . . Pierce, who pleaded guilty to vehicular homicide for the death Gregory, a 17-year-old Winter Haven resident, received a sentence that the judge, prosecutor, and victim's family all agreed was very lenient - two years in state prison. . . . However, Judge Robert Doyel granted the unusual request by Mothers Against Drunk Driving advocate Elizabeth Sheetz to have Gregory's picture, at least two feet wide, in Pierce's residence. His residence will be subject to search by his probation officer at any time, and if he does not have the photograph in place, it will be considered a probation violation, Doyel said.


National Commission To Hear Prison Rape Testimony

3-27-07 --  A national commission to prevent prison rape will hear testimony from those investigating the Texas Youth Commission and family of inmates Tuesday. . . . "It's quite disturbing that so much has come out recently," said Kathy Hall-Martinez, co-executive director of Stop Prisoner Rape. "And it does give the commission a really excellent opportunity to press officials here in Texas to get more information and also to learn from what's happened here in Texas." . . . The commission focused Monday on police and jailings.


Defense Lawyer Serra Sues Over His Prison Pay

Class action targets inmate wages

Matthew Hirsch, The Recorder

3-22-07 -- The government got 10 months of J. Tony Serra's freedom for his long-running tax boycott. This week, the rebel lawyer from San Francisco struck back with an attempt to get more money for the hours he worked behind bars. . . . Standing in his office before a life-size painting of an orange-clad inmate and two shadowy guards on a cellblock, Serra talked Wednesday about the class action he just filed against officials who run the federal prison where he made his extremely humble home for much of the past year. . . . The criminal defense lawyer wants at least the minimum wage for himself and other inmates who've worked in prison industries at the Lompoc low-security federal prison, located about 55 miles northwest of Santa Barbara, Calif. . . . Because of Serra's age and physical condition -- he's 72 years old -- he escaped some of the less desirable jobs at Lompoc. Instead, he was assigned to water the flowers on the prison grounds. Though Serra called it "an aesthetic experience" that enabled him to stand under eucalyptus trees and watch hawks flying overhead, he complained that the job paid less than a quarter an hour.


Forum targets prison system
By Misty Autumn Seemans, Delaware State News

3-22-07 -- More than 100 people including experts, legislators, nonprofits and relatives of prisoners attended Wednesday’s conference, “Correction System: Rehabilitation vs. Containment” at the Sheraton Dover Hotel. . . . “When the prisoner goes to jail, the family goes to jail,” said Sherese Brewington Carr, director of Delaware Department of Labor’s Prison to Work Initiative. . . . But the correction system affects more than just convicts and their relatives, as witnessed at the symposium: It also impacts lawmakers and taxpayers.


Right to lawyer affirmed in sentencing

The Associated Press

3-19-07 -- A prisoner who was denied a lawyer for a hearing on whether he should serve a deferred sentence is entitled to a new hearing, the state Supreme Court ruled Friday. . . . The ruling came in the case of Darin Parker, who pleaded guilty to second-degree murder in 1990 and was sentenced to 25 years to life in prison, with seven years suspended. . . . In 2004, he petitioned the Superior Court for a lawyer to represent him at his hearing on the suspended sentence. Judge Edward Fitzgerald denied the request, and Parker represented himself. . . . The judge later ruled that Parker's record in prison was not good enough to merit suspending the rest of his sentence, and Parker appealed. . . . The high court said Friday that under the state constitution, anyone who faces prison is entitled to an attorney at "critical stages" of the case.


Late appeal allowed after counsel's error

Civil standard won't apply in criminal case

By David E. Frank

A criminal defendant whose notice of appeal was not timely filed was properly granted an extension, where the late submission was the result of his lawyer's error and done completely without his knowledge, the Appeals Court has ruled. . . . The commonwealth argued that the extension was improper because the rules of appellate procedure only allow for late filings on a showing of good cause. . . . But the court disagreed, holding that the good-cause standard is applicable only in civil cases, while a filing extension may be granted in a criminal case if the lack of a timely appeal resulted from an act or omission of counsel to which the defendant did not knowingly assent. . . . "[The] rules ... will be interpreted one way in civil cases and a different way in criminal cases," wrote Judge James F. McHugh on behalf of the court. . . . "The difference, while unusual, rests on constitutional implications of finality in criminal cases that are not present in civil cases and on the most efficient way to deal with procedural missteps in light of those implications," he continued. . . . The 13-page decision is Commonwealth v. Trussell, Lawyers Weekly No. 11-055-07. Click here to read the full text of this opinion. . . . Suffolk County prosecutor John P. Zanini declined to comment, citing the possibility of his office taking the matter up for further appellate review.Geoffrey S. Waller II of Boston, who represented the defendant, could not be reached for comment prior to deadline.


Beyond The Prison Bars

Daniel King, Chronicle Staff Writer

3-14-07 -- There are many ways her early 20s could have shaped up, but this isn't one she imagined. . . . In the past few years, the woman onstage has been choked, drugged and brought to prison. She has been abandoned by her parents and assaulted by an ex-boyfriend whose madness and addictions brought an end to her late-term pregnancy. . . . Exhausted from prison and nearly unable to walk, she sits under the bright lights of a cell and the watchful eyes of a guard. This is Liliane's incarceration in "A Place to Stand," the provocative and eye-opening production at Intersection for the Arts that stages the writing of Ntozake Shange and Jimmy Santiago Baca. . . . Liliane, a character from Shange's novel of the same name, is captive not only physically, but also to her memory and imagination: the pain she suffers after being treated so destructively that her unborn child never stood a chance. . . . Like many prisoners, Liliane struggles for a chance herself. . . . That's the idea behind "Stand," a powerful look at prison's effects on body and mind, and it's part of Intersection's yearlong Prison Project, an ambitious series of performances and writing workshops that depict and indict the California prison system.


Scaring Students Straight

Imprisoned veterans reach out to troubled teens

Sande Snead Chesterfield Observer

3-14-07 -- They served their country, and then for whatever reason, they committed crimes, but now the members of Vietnam Veterans of America Incarcerated Chapter #682 are giving back again - this time to high school students under the tutelage of Gray Taylor, special education teacher at Thomas Dale High School. . . . Taylor, along with Rev. Bob Floyd, a retired army chaplain, is working with a group of incarcerated veterans at the Powhatan Correctional Facility to encourage them to bring their stories to teenagers who are headed down the wrong path. . . . "I take kids to the prison as often as I can," Taylor said. "These are ninth and 10th graders who are making poor choices and they get to see what happens to men who made some of the same poor choices. They are told by these incarcerated men, 'I see myself in you when I was 18. I didn't stop on the path I was on, and here I sit.' It's a very powerful message for these kids to hear."


Update: Man Jailed for Life for Joint to Be Freed

Following 20/20 Report, Dallas Voters Ousted Judge from Bench

By Jim Avila & Joan Martelli

3-13-07 -- Its official: Tyrone Brown, the man sentenced to life in prison for violating probation with a single marijuana cigarette, will be a free man. . . . ABC News' "20/20" documented this story in November 2006. Brown is African American, poor and without connections. His harsh sentence was contrasted with the mercy shown a white criminal who murdered someone, then repeatedly violated his parole with cocaine. . . . The privileged criminal, who was the son of a Baptist minister and the brother-in-law of a U.S. congressman, was never sent to jail, and now even his probation has been lifted. . . . Brown was involved in an armed robbery that yielded $2. He, too, was first sentenced to probation, but when he violated it just once with a marijuana joint, he was sentenced to life. He has served 17 years. . . . Both men were sentenced by the same judge, Keith Dean. . . . After the "20/20" report, Dallas voters ousted Dean from the bench, and Friday Tyrone Brown was granted a "conditional pardon" by Texas Gov. Rick Perry.


Prisoners May Cut Jail Time by Donating Organs

New York Lawyer, By Seanna Adcox, The Associated Press

3-9-07 -- Inmates in South Carolina could soon find that a kidney is worth 180 days. . . . Lawmakers are considering legislation that would let prisoners donate organs or bone marrow in exchange for time off their sentences. . . . A state Senate panel on Thursday endorsed creating an organ-and-tissue donation program for inmates. But legislators postponed debate on a measure to reduce the sentences of participating prisoners, citing concern that federal law may not allow it. . . . "I think it's imperative that we go all out and see what we can do," said the bills' chief sponsor, Democratic Sen. Ralph Anderson. "I would like to see us get enough donors that people are no longer dying." . . . The proposal approved by the Senate Corrections and Penology Subcommittee would set up a volunteer donor program in prisons to teach inmates about the need for donors. But lawmakers want legal advice before acting on a bill that would shave up to 180 days off a prison sentence for inmates who donate. . . . South Carolina advocates for organ donations said the incentive policy would be the first of its kind in the nation.

February 2007


Suit Over Fees for Inmates’ Phone Calls Is Revived

By Danny Hakim

2-20-07 -- The State Court of Appeals said on Tuesday that a lower court must hear a suit alleging that the state had illegally placed exorbitant charges on collect phone calls made by prison inmates. . . . The 4-to-2 ruling overturns decisions by lower courts that dismissed the case. It also comes a few weeks after Gov. Eliot Spitzer reversed the Pataki-era policy of adding state fees that more than doubled the rates charged to people who receive collect calls from inmates in the state corrections system. . . . The suit, brought by families and lawyers of inmates, alleges that the State Department of Correctional Services overstepped its authority by essentially imposing a tax without legislative approval. The suit also contends that the fees violated state constitutional provisions related to taxation, free speech, due process and equal protection. . . . Rachel Meeropol, a lawyer with the Center for Constitutional Rights, a group that represented the plaintiffs, said they would move to seek class action status in the case. . . . “We will seek certification soon on behalf of everyone who has received a collect call from a prisoner in New York State,” she said, adding that the state had been making from $15 million to $23 million per year from the surcharges. “We will have the right to seek damages for about three years of contract payments.”


Building a new prison is unpopular, but necessary

THE ISSUE: A nationwide report estimates that Hawaii's prison population will increase significantly by 2011.

OPINION Honolulu Star-Bulletin

2-19-07 -- WITH Hawaii's prison population expected to jump by 21 percent in the next five years, state lawmakers and Gov. Linda Lingle should confront the prickly issue of building more facilities sooner rather than later. . . . Continuing to send inmates to mainland detention centers is cheaper in dollars, but more taxing in social costs, which both the Legislature and governor acknowledge. . . . A study conducted by the Pew Charitable Trusts' Public Safety Performance Project estimates that the number of prisoners Hawaii will have to find space for in its already-crammed facilities will grow by about 1,100 by the year 2011.


Olson backs prison bills

2-19-07 -- A state program to reduce prison sentences would be curtailed under a series of bills backed by several Republicans in the Oregon House. . . . Rep. Andy Olson, R-Albany, is one of the supporters of the package to limit the so-called Alternative Incarceration Program. . . . He said in a statement the bill would provide truth in sentencing. . . . “Having 29 years with the Oregon State Police, I can tell you first hand how frustrating it is to spend months working on a case, going to trial, finally getting a conviction and thinking you’ve put away a really bad criminal for a long time. Then a few months later, you see them back on the street,” Olson said.


Self-defense law change ruled not retroactive

By Howard Fischer, Capitol Media Services

2-12-07 -- A man accused of the 2004 murder of a woman at his Tucson apartment will have to prove to a jury he acted in self-defense if he hopes to escape prison. . . . In a unanimous decision Friday, the Arizona Supreme Court said a change in self-defense laws approved last year affects only those charged with crimes committed after the change took effect. . . . Friday's ruling most immediately affects the case of David Rene Garcia, who is awaiting trial in the murder of Alexis Samaniego. Garcia told police he was forced to use his gun when she attacked him. . . . It also dims the chances that Harold Fish, found guilty of the murder of a hiker in Coconino County, will be able to get his conviction overturned. . . . The law in effect when both shootings occurred said people charged with crimes who claim self-defense have to prove they had no choice but to use force. The new law, signed into effect April 24 reversed the obligation. Now, once a self-defense claim is raised, prosecutors must prove it's untrue.

You can access the ruling at this link.

Prison Overcrowding Cartoon

"Thanks For Toughin'": Mark Fiore has this animated cartoon on the issue of prison overcrowding. -- Reported By: Howard Bashman

Justice reviewing border agents' transcripts
Snow says that's one step in process of evaluating pardon eligibility
© 2007

2-7-07 -- The White House says that there are procedures to follow in considering any request or suggestion for a presidential pardon, and that's what is going on right now in the case involving Ignacio Ramos and Jose Compean, two U.S. Border Patrol agents sentenced to prison for shooting at a fleeing drug smuggler. . . . The comments came in response to questions from Les Kinsolving, WND's correspondent at the White House, about the case following a beating Ramos suffered allegedly at the hands of illegal aliens being held in the same prison where he is. . . . "The Fort Worth Star Telegraph quotes President Bush of Fox TV network as saying that he is bound by strict federal guidelines on pardons, and cannot immediately grant a pardon to Border Patrol agents Ramos and Compean because, quote, 'there is a series of steps that are analyzed in order for the Justice Department to make a recommendation as to whether or not a president grants a pardon,'" Kinsolving said.

Police Lineups Becoming Suspect

Many States Are Considering Scrapping Side-By-Side Lineups In Favor Of One-At-A-Time Variety

(Christian Science Monitor) This article was written by Patrik Jonsson.

2-7-07 -- More than two decades ago, a sexual-assault victim from Sandy Springs, Ga., pointed to a picture of her attacker in a photo lineup.  . . . "From zero to 100 percent, how sure are you?" a detective asked.  . . . "I'm 120 percent sure," the woman said, as stated in court testimony.  . . . It now appears that she was 100 percent wrong, according to the Fulton County district attorney. The result of DNA testing led to the release of Willie "Pete" Williams on Jan. 23 after nearly 22 years in a south Georgia prison for a crime he did not commit. Her mistake and his exoneration have revived a debate about the accuracy of eyewitness identifications — and their central role in persuading juries to convict. . .. But even as a handful of police departments from Boston to Minneapolis have voluntarily changed lineup procedures to help reduce such tragic errors, resistance to top-down reform from the majority of American police chiefs and prosecutors is pushing the debate into the legislative chamber. Last week, Georgia introduced a bill that would scrap the side-by-side police lineup, and would instead require police departments to present suspects one by one – either in person or by photo. Georgia joins Texas, New Mexico, West Virginia, and Vermont, which have similar bills pending.


Judge OKs Pulling Plug on Jailhouse Rock

Shannon P. Duffy, The Legal Intelligencer

2-7-07 -- A public furor erupted when musical groups formed by Pennsylvania's Graterford Prison inmates were featured on the television show "Music Behind Bars" on VH-1, and then-Gov. Mark Schweiker quickly vowed to silence the jailhouse rock. . . . Now a federal judge has ruled that the new limits imposed on inmate musicians in the wake of the controversy are not unconstitutional -- even though groups performing religious music are accorded more freedom. . . . The controversy began when the mother of a murder victim whose assailant was featured on the show launched a campaign to condemn the broadcast for glorifying criminals. . . . Soon after, Schweiker appeared on Fox News Channel's The O'Reilly Factor and said he believed the prison officials who allowed the program "ought to have their heads examined," and that he was calling for an immediate cancellation of the program. . . . But when prison officials instituted new rules that imposed limits on the performing convicts, one inmate filed a federal civil rights suit, claiming the new rules illegally favored religious music over secular.


Judge Cited For Refusing To Release Dying Man

© 2007 North Country Gazette

2-7-07 -- A judge who refused to release a dying man from jail and then allegedly entered a misleading order in the case which appeared to be in response to a newspaper article is the subject of an ethics investigation by the Florida Judicial Qualifications Commission. . . . In a formal complaint served on Broward County Circuit Court Judge Cheryl Aleman Tuesday, the commission alleged that the judge had violated judicial canons through a "pattern of arrogant, discourteous and impatient conduct toward lawyers and others".. . . The commission's investigative panel found that during a hearing on July 1, 2003, Aleman had denied the request of inmate Jean Felix for a medical furlough despite the assistant public defender and assistant state attorney appearing both stipulated that Felix was suffering from an incurable fatal disease and that his life expectancy was approximately two months according to medical personnel at the jail.

Click for .pdf Notice of Formal Charges


Blogger jailed for defying grand jury sets record
U.S. journalist imprisoned longest in contempt of court

Bob Egelko, Chronicle Staff Writer

2-6-07 -- Josh Wolf, a blogger who refused to give a videotape of a San Francisco anarchist protest to a federal grand jury, achieves an unwanted distinction today, when he becomes the longest-imprisoned journalist for contempt of court in U.S. history. . . . Wolf, 24, is spending his 169th day at the Federal Correctional Institution in Dublin, surpassing the imprisonment of Vanessa Leggett, a Texas freelancer who defied a grand jury's subpoena in 2001 for notes from a book she was writing about a murder case. . . . Leggett was freed when the grand jury's term expired. The grand jury in Wolf's case, which is investigating an alleged arson attempt on a San Francisco police car, is scheduled to adjourn in July. But a prosecutor said in court papers last month that the term could be extended six months. . . . U.S. District Judge William Alsup held Wolf in contempt of court in August, denied furloughs for him for the Thanksgiving and Christmas holidays, and turned down his latest bid for freedom in a one-paragraph order Jan. 30 without holding a hearing.

A Time Limit on Rape

By Jeninne Lee-St. John

2-5-07 -- If a woman consents to having sex with a man but then during intercourse says no, and the man continues, is it rape? . . . The answer depends on where you live. The highest courts of seven states, including Connecticut and Kansas, have ruled that a woman may withdraw her consent at any time, and if the man doesn't stop, he is committing rape. Illinois has become the first state to pass legislation giving a woman that right to change her mind. But in Maryland--as well as in North Carolina--when a woman says yes, she can't take it back once sex has begun--or, at least, she can't call the act rape. . . . That was the recent ruling by Maryland's Court of Special Appeals in a case that may soon make its way to the state's highest court and that has captured the attention of feminists and legal experts across the country. Advocates for victims' rights insist it's not just a matter of allowing a woman to have a change of heart. If the law doesn't recognize a woman's right to say no during sex, they say, there is no recourse for a woman who begins to feel pain or who learns her partner isn't wearing a condom or has HIV. Those who are wary of these measures say they're not arguing against having a man stop immediately when a woman no longer wants to have sex, but with how to define immediately.


Law vs. justice

Norman Roberts

2-5-07 -- While Blair sits on death row, Ashley Estell's killer remains free. . . . I wish he hadn't said that. The Dallas Morning News quoted Collin County Assistant District Attorney John Rolater saying that Michael Blair's attorney is "the one who needs to prove that someone else did it." This after DNA testing proved false all the principal evidence used to convict Mr. Blair of the 1993 murder of 7-year-old Ashley Estell. . . . With what's left, if this had not yet been taken to trial, no responsible prosecutor would charge Mr. Blair with the crime, no reasonable jury would convict him, and no conscientious police force would stop looking for the killer. . . . Mr. Rolater seems to be saying the state's only responsibility now is to see that Mr. Blair's death sentence is carried out as expeditiously as possible, to resist vigorously all efforts to chip away at the case that convicted him and to insist the few remaining shreds of evidence are enough to prove guilt beyond a reasonable doubt. . . . I suppose he is right in some sense. In our system, once an accused person has been convicted, the burden of proof shifts. He is now guilty until proven innocent. But to most of us, there is more to it than that. We still expect the state to see justice done. . . . When it becomes apparent or even questionable that the wrong person has been convicted of a crime, the state has two moral obligations. One is to see that any wrong to the accused is put right. The other is to see that the genuinely guilty are brought to justice. The state may get a pass on both of those under the law, but not from the people. Their representatives will have some answering to do when they are forced to acknowledge that they were not only wrong, but that they willfully perpetuated the wrong for many years while a criminal went free.

January 2007


DNA Databases May Be Growing Too Quickly

Vesna Jaksic, The National Law Journal

1-31-07 --As state DNA databases expand, a growing number of "cold cases" are getting solved, but that's leading to a new problem: Local jurisdictions can't keep up with their burgeoning caseloads. . . . "I see it nationally as becoming a major problem," said Ted Hunt, chief trial assistant in the Jackson County Prosecutor's Office in Kansas City, Mo. "We're lucky to have a cold case homicide unit and a branch of sex crimes that works on cold cases, but many jurisdictions lack those resources." . . . And DNA databases are certain to grow even more in several states. . . . While all states now require that samples be collected from convicted felons, a growing number of states -- including Texas and Virginia -- collect samples from certain arrestees, such as those picked up for violent crimes. Kansas and New Mexico are scheduled to expand their databases to include arrestees this month. California is expected to do the same in 2009. . . . As of October 2006, the FBI's national database contained profiles for more than 3.7 million convicted offenders, which helped with more than 40,000 investigations. Florida topped the list with 4,907 investigations aided, followed by Illinois, New York and Virginia, according to the FBI.


Tainted trials: one year later

Evidence Of Reform In Wake Of Series On Troubling Treatment Of Defendants

By Fredric N. Tulsky, Mercury News

1-28-07 -- One year after the Mercury News published ``Tainted Trials, Stolen Justice,'' its examination of problems in the Santa Clara County criminal-justice system, there are widespread signs of change. . . . A new district attorney has vowed to end a ``win at all costs'' culture in the office. . . . An independent state commission is recommending measures to reduce the risk of wrongful convictions. And the county bar and the California Supreme Court have acted to address longstanding problems in the system. . . . In the past year, six defendants who were sentenced to prison had convictions overturned or were released from custody in cases the newspaper examined. . . . And the decisions of the 6th District Court of Appeal, which oversees cases in Santa Clara and three neighboring counties, appear to demonstrate a new forcefulness. In the past year, the court has increasingly chastised local judges, prosecutors and defense attorneys for mistakes and misconduct. The court is reversing criminal cases at a rate higher than at any time in at least 18 years, a new Mercury News analysis shows. . . . ``I think what you are seeing at the 6th District is remarkable, and over time has to impact what happens in the conduct of trials,'' said Gerald Uelmen, a Santa Clara University law professor and expert in California's appellate courts. . . . Visible changes


Attorney takes up inmate's cause

By Marcia Lane 

1-28-07 -- Recently minted Jacksonville attorney Charlie Douglas flipped on his television set on a Friday night in November 2006 and caught the end of a segment on ABC's 20/20 news magazine about justice in Texas -- specifically, how two men sentenced by the same judge were treated when they violated probation. . . . One was a white man who had killed a prostitute, been sentenced to probation and was then caught several times with cocaine. He came from a well-to-do family with political connections and had a private lawyer. His probation was lifted and he only had to send a letter to the judge once a year -- postcard probation, as it's called. . . . The other was a black man sentenced to probation after an armed robbery that netted him $2. The charge was lowered to aggravated robbery. While on probation he tested positive for marijuana, and the judge sentenced him to life imprisonment. He was poor and had a court-appointed attorney.


Ga. Bill Takes Aim at Sentencing That Resulted in 10-Year Term for Teen Sex

Alyson M. Palmer, Fulton County Daily Report

Georgia's highest court gave no explanation when it refused to hear the appeal of Genarlow Wilson, a young man whose case made headlines after he was convicted of aggravated child molestation for having what he says was unforced oral sex with a 15-year-old girl when he was 17. . . . But in a concurring opinion, Presiding Justice Carol W. Hunstein said that although she was sympathetic to Wilson, who is serving a 10-year sentence, the court couldn't help him because the Legislature had refused to make retroactive a new law that would downgrade Wilson's actions from a felony to a misdemeanor. . . . State Sen. Emanuel Jones, D-Decatur, said he took Hunstein's words as an invitation. Last week he introduced legislation that he said he hopes would allow a judge to re-sentence Wilson under the more lenient sentencing provision. . . .Since the state Supreme Court issued its Dec. 15 ruling, the case has become a bit of a cause célèbre, with The New York Times publishing an editorial calling for Wilson's release and the The Atlanta Journal-Constitution saying Wilson deserves "justice," not "condolences." Thursday morning,'s top story was an in-depth report on the legal case of the former high school football player, headlined "Outrageous Injustice."


Are Prisons Driving Prisoners Mad?

By Jeffery Kluger

1-28-07 -- There's no such thing as a good day for a prisoner at the highest level of security within the Ohio State Penitentiary, a 504-bed supermax prison in Youngstown, Ohio. Every inmate lives alone in a 7-ft. by 14-ft. cell that resembles nothing so much as a large, concrete closet, equipped with a sink, a toilet, a desk and a molded stool and sleep platform covered by a thin mattress. The solid metal door is outfitted with strips around the sides and bottom, muffling conversation with inmates in adjacent cells. Three times a day, a tray of food is delivered and is eaten alone. The prisoner may spend 23 hours a day in lockdown, emerging to exercise once a day. The lights in the cell never go off, although they may be dimmed a bit at night. . . . If there's not much to like about the conditions in Youngstown, there's not much to like about the people confined there either. These are the men corrections folks like to call "the worst of the worst," the kind of felons who dealt drugs or led gangs or killed on the outside and continued to do so in prison. For them, maximum security would not be enough--only supermax would do. And say what you will about the draconian environment, it keeps them under control. . . . But that level of control may be counterproductive. It's possible that the very steps we're taking to keep society safe and such prisoners in check are achieving just the opposite. The U.S. holds about 2 million people under lock and key, and 20,000 of them are confined in the 31 supermaxes operated by the states and the Federal Government. That may represent only 1% of the inmate population, but it's a volatile 1%. Push any punishment too far and mental breakdown--or at least a claim of mental breakdown--is sure to follow. When that happens, a constitutional challenge can't be far behind.

Correctional Billing Services-Phone Extortion

Commentary © 2007 North Country Gazette

"This is Correctional Billing Services. Please press 5 to receive an important message", the recording blared in my ear as I answered the insistent ringing phone, the fourth such call within six hours. . . . "Your calls from correctional facilities served by Evercom have been blocked", I was told. . . . Not surprising. Such is routine for Evercom, the system used by Ottawa County Jail in Ohio for collect inmate telephone calls and at dozens of other facilities across the country. . . . Talk is not cheap. . . . Evercom is in dire need of a federal investigation as they are engaging in virtual extortion of an inmate's family and friends, charging $17.34 for a 15 minute phone call and arbitrarily setting a threshold of $130. Once they claim that you have reached your threshold, although Correctional Building Services refuses to tell you their criteria for setting that amount, you're blocked and can't receive any phone calls from an inmate for the next 90 days. Think about it, how'd you like to go 90 days without being able to talk to your loved ones. Just because you made a mistake and are incarcerated doesn't mean that the government and Evercom should rape you and your family by imposing outrageous costs. . . . Evercom doesn't reach out and touch you, they slam you into debt.

Raising shackles

by News Hits staff

1-19-07 -- As soon as a federal judge declared unconstitutional Michigan's law preventing prisoners from suing for violations of their civil rights — as in when they're sexually assaulted — the state of Michigan appealed the decision. . . . "We believe the judge incorrectly applied the law in the case," says Matt Frendewey, a spokesman for Michigan Attorney General Mike Cox. . . . Sounds to us like Cox is being a real dick on this one. . . . The case involves a group of women prisoners who say they were sexually abused by prison guards and didn't get any justice through the Michigan Department of Corrections grievance system. They wanted to do what any other group of citizens could do: Sue. . . . Except that under a 2000 provision of Michigan civil rights law, they can't. So they challenged the provision as unconstitutional. . . . And U.S. District Judge John Corbett O'Meara agreed. . . . "It appears that the state Legislature has not attempted to deter frivolous lawsuits, but rather preclude meritorious ones," the judge wrote. "Given the state's abhorrent and well-documented history of sexual and other abuse of female prisoners, the court finds this amendment particularly troubling."


The Harsh Wages of Sin: Why Genarlow Wilson is Languishing in Prison
By Sherry F. Colb

1-10-07 -- Last month, the Supreme Court of Georgia denied a motion to reconsider the criminal conviction of Genarlow Wilson, a young African-American man who is serving a mandatory ten-year prison sentence for aggravated child molestation. . . . Such a development would not ordinarily signal a gross injustice. When people are convicted of crime, and no procedural errors precede the convictions, appeals (along with motions to reconsider) routinely fail. The crime of conviction, moreover, appears - by its name - to be a serious one for which a ten-year prison sentence could well be appropriate. . . . Appearances, however, can be deceptive. . . . Based on the evidence - which included a videotape of the crime while in progress - the conduct for which Wilson now spends his days behind bars was consensual oral sex with a 15-year-old girl when he, Wilson, was himself only 17 years old. . . . Readers may recall the case of Marcus Dixon, an 18-year-old African-American man who was originally sentenced to ten years' imprisonment for aggravated child molestation in connection with having intercourse (which the jury did not conclude was rape) with a 15-year-old girl.


Costs of Inmates' Calls Cut

By Jacob Gershman Staff Reporter of the Sun

1-11-07 -- In what some are calling the first tax cut of the Spitzer administration, New York is slashing the cost of phone calls between prison inmates and their families, friends, and lawyers by more than half. . . . Governor Spitzer said yesterday that starting April 1, the state will no longer collect a share of the gross revenue generated by the state prison collect call service operated by Verizon Communications. . . . Critics of the contract said the commission paid to the state is tantamount to a kickback and the extra collect call fees passed on to the families of inmates is a backdoor tax on one segment of the population. People calling inmates and the 68,000 prisoners calling the outside world must use the collect service and pay the fees. . . . State prisons in New York charge the highest fees among correction facilities in the nation — about five times the 7-cents-a-minute rate it costs to contact federal inmates. . . . Under the current terms, the cost of a 20-minute phone call is $6.20, which includes a $3 connection fee. Spitzer officials said the total charge would drop to about $3 under a renegotiated contract.


Bentonville judge says inmate complaints too late about lawyer

1-10-07 -- (AP) A judge says a man serving a life term for kidnapping and murder waited too long to complain about his lawyer and dismissed an attempt to set aside the convictions. . . . Albert Kieth Smith, 58, is serving a life term for the slaying of David Douglas Howard, the former manager of the Loch Lomond Marina in Bella Vista. Smith also was sentenced to 40 years for kidnapping. . . . Circuit Judge Tom Keith rejected Smith's appeal last week. The state Supreme Court last year had dismissed a separate appeal from Smith. . . . Howard's body was found Sept. 15, 1999, along Interstate 40 in McIntosh County, Okla. He had been shot twice with a .22-caliber handgun. Prosecutors said Smith shot Howard because Howard was dating Smith's estranged wife. . . . Jurors were told that Smith lured Howard by posing as a marina developer, then killed him, but prosecutors offered no direct evidence that linked Smith to Howard.





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