Aab providessd me with a cross-reference to this article but the long story(by June Maxam) well merits a thread of its own. She writes: " Police and prosecutorial misconduct seems to be on the increase nationally or perhaps it’s just becoming more visible. Its not just in the small town police departments, it goes all the way up—even into the New York State Police as was evidenced in the 1990s when it was revealed that investigators in Troop C were fabricating fingerprint evidence in order to close cases and get convictions—-a conviction at any cost.
The actions of former Durham County, NC, district attorney Mike Nifong in the Duke lacrosse rape case is one of the most egregious cases of prosecutorial misconduct, willfully making false statements to the court when he said he had given defense attorneys all the results from DNA testing. But Nifong is one of the few who have been held accountable, found guilty of criminal contempt in the malicious prosecution of the three Duke athletes. http://www.northcountrygazette.org/2007/08/31/nifong-guilty-of-contempt-sentenced-to-day-in-jail/
Now four Justice Department prosecutors who gained the conviction of Alaska Sen. Ted Stevens on seven counts of failing to report gifts have been held in contempt for withholding evidence, failing to turn over documents to the Senator’s lawyers as ordered by the court.
Did you know, according to the Center for Public Integrity:
Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences in at least 2,017 cases.
The nature of the questionable conduct includes:
—Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments);
—Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);
—Failing to disclose exculpatory evidence;
—Threatening, badgering or tampering with witnesses;
—Using false or misleading evidence;
—Harassing, displaying bias toward, or having a vendetta against the defendant or defendant’s counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial);
—Improper behavior during grand jury proceedings.
The Center For Public Integrity found that local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules to win convictions. Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges, reversing convictions or reducing sentences in over 2,000 cases. In another 500 cases, appellate judges offered opinions—either dissents or concurrences—in which they found the misconduct warranted a reversal. In thousands more, judges labeled prosecutorial behavior inappropriate, but upheld convictions using a doctrine called “harmless error.” Misconduct by prosecutors led to the conviction of innocent individuals who were later exonerated. Guilty defendants have also had their convictions overturned and are placed back on the street. In addition, the Center found many prosecutors who were cited multiple times for misconduct. "
Barry S. Brown P.O Box 6596 Bloomington, IN. 47408
Designated Special Prosecuting Attorney As of now trial date is still set on June 8,2009
Please forgive the self promotion but does this make sense? ----------------
Remember THE LAW: IC 35-41-3-2 Use of force to protect person or property Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person: (1) is justified in using deadly force; and (2) does not have a duty to retreat; if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary. (b) A person: (1) is justified in using reasonable force, including deadly force, against another person; and (2) does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle. ------------------------------- pg 929 transcript / Final Instructions "The question of the existence of an apparent danger and the amount of force necessary to resist force can only be determined from the stand point of the Defendant at the time and under the then existing circumstances."
pg 930 "Actual danger is not necessary to justify self defense. The question of the existence of such danger, the necessity or apparent necessity to act as well as the amount of force necessary to employ to resist the attack can only be determined from the standpoint of the accused at the time and under all the then existing circumstances. (Now check this out) There has been evidence introduced in this case that the accused was exercising his right of self-defense." ---------------------------------------------- "There has been evidence introduced in this case that the accused was exercising his right of self-defense." No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
The judge admits there is evidence of self-defense, shouldn't it be over as per the LAW?
SC: I don't know what's happening around here.New Innocence reports are flooding in here faster than I can (mis)type them out.Oh well,consider the message, not the media. And, except for Florida's execution of Wayne Tompkins,it is all good news. Bad news:Don Valeska(see Current Cases for this ignominious character) and House's schlepp of a prosecutor want to start the entire process all over again.But both men appear this day to have overstepped themselves .
Ex-death row inmate's DNA not found on evidence
By ROSE FRENCH Associated Press Writer
Posted: Today at 3:17 p.m. Updated: Today at 4:46 p.m.
NASHVILLE, Tenn. — DNA from key evidence in a Tennessee woman's slaying does not match the man who spent more than two decades on death row for killing her, according to new FBI lab tests.
Paul House, 47, who uses a wheelchair because he developed multiple sclerosis in prison, was convicted of killing Carolyn Muncey nearly 23 years ago. But the case against him has been in doubt for years because of DNA testing, which wasn't available then.
House was released last year after the U.S. Supreme Court concluded no reasonable juror would have found him guilty based on DNA tests of semen stains on Muncey's clothing. Authorities had claimed he lured Muncey from her dilapidated cabin, beat her, killed her and then dumped her body in a culvert. There were no witnesses.
The court also said House's lawyers offered new witnesses who provided "substantial evidence pointing to a different suspect" - Muncey's husband, Hubert.
The new FBI tests examined blood from under Carolyn Muncey's fingernails and cigarette butts found near her body and determined the DNA doesn't belong to House or the victim but to an unidentified third party. The DNA also doesn't match Hubert Muncey, who has always denied any involvement in the crime and believes House is guilty.
Still, prosecutor Paul Phillips wants to retry House.
"What the evidence would suggest to us is there may have been other people involved in the crime as well as Mr. House," he said.
Federal public defender Stephen Kissinger, who wants the courts to stop Phillips from retrying House, submitted the lab report to the 6th U.S. Circuit Court of Appeals in Cincinnati on Thursday.
"I think the evidence is overwhelming at this point that Mr. Phillips has no basis to pursue retrial in Mr. House's case, to prosecute him for a murder he clearly did not commit," Kissinger said.
House is to be tried again June 1, nearly three years after the Supreme Court opinion citing doubt about his guilt. The state is no longer seeking the death penalty.
Defense attorneys have complained about the slow pace of settling the charges against House, who was released into his mother's care in July at her home in Crossville, about 100 miles east of Nashville.
A federal judge last year ordered the case to proceed quickly. But the trial date was pushed back to June 1 to give House's state lawyer more time to prepare.
Kissinger says the state has also delayed turning over evidence reports.
"Basically they're stringing this out, just hoping they find some evidence House did it because they don't have any now," Kissinger said.
For further refeerence: Reason's Reporting on Steven Hayne and Mississippi's Criminal Forensics System
February 19, 2009
In October 2006, Reason published an article by Radley Balko about the case of Cory Maye, a man sentenced to death after shooting a police officer during a paramilitary-style drug raid on his home. The conviction was based in part on the testimony of a controversial Mississippi medical examiner named Steven Hayne, who claimed that bullet trajectories extrapolated from the victim contradicted Maye's account of events. Maye was subsequently removed from death row pending a new sentencing hearing.
In January 2007, Balko's reporting was cited by the Mississippi State Supreme Court in tossing out Hayne's testimony in the murder-conspiracy case of Tyler Edmonds, who was 13 at the time of his sentencing. Hayne had claimed that his examination revealed two sets of hands on the murder weapon. Edmonds was retried in November 2008, and acquitted.
In November 2007 Reason published an investigative feature on Hayne himself, revealing that for nearly two decades the questionable examiner had performed the vast majority of the state's criminal autopsies, at a rate of roughly four per day. In January 2008, Mississippi officials announced that two men who had been implicated by Hayne's science, Kennedy Brewer and Levon Brooks, would be released from prison after DNA testing confirmed they didn't commit the rapes and murders for which they were convicted. Trial testimony from Hayne and disgraced Mississippi bite mark analyst Michael West had been critical in securing both convictions.
In August 2008, after mounting public pressure, Mississippi officials announced that Hayne would no longer be performing criminal autopsies. Still, Mississippi officials refuse to investigate prior cases in which Hayne and West have testified, which combined number well into the thousands.
Below is a complete archive of Balko's Reason reporting on Hayne. * At Reason.tv: Mississippi Drug War Blues Takes Honors at Oxford Film Festival!, Nick Gillespie, February 9, 2009
* Mississippi Supreme Court Justice Departs With an Anti-Death Penalty Flourish, Radley Balko, December 18, 2008
* Forensic Experts Aren't Team Players. Nor Should They Be., Radley Balko, November 19, 2008
* Hayne Sues, Radley Balko, November 7, 2008
* Tyler Edmonds Acquitted, Radley Balko, November 1, 2008
* Dirty Tricks in Mississippi, Radley Balko, October 31, 2008
* Scandal in Louisiana's Criminal Courts, Radley Balko, October 28, 2008
* Hayne, West Sued, Radley Balko, October 12, 2008
* Update on Mississippi's Dr. Steven Hayne, Radley Balko, September 18, 2008
* Correction to My Previous Post on Dr. Hayne, Radley Balko, September 9, 2008
* Old File Shows Problems With Mississippi's Dr. Hayne Date Back to Early 1990s, Radley Balko, September 7, 2008
* Mississippi CYA, Radley Balko, August 6, 2008
* Mississippi Official Fires Dr. Hayne, Then Praises Him, Radley Balko, August 5, 2008
* Dr. Steven Hayne Is Done, Radley Balko, August 4, 2008
* Job Opening in Mississippi, Radley Balko, July 5, 2008
* More from Mississippi, Radley Balko, June 26, 2008
* Update in Mississippi, Radley Balko, June 25, 2008
* "In Mississippi, the Cause of Death Is Open to the Highest Bidder", Radley Balko, June 5, 2008
* Updates in Mississippi, Radley Balko, May 5, 2008
* Oliver Diaz, Jr., Radley Balko, May 4, 2008
* Jackson's Clarion-Ledger Confronts Dr. Hayne, Radley Balko, April 28, 2008
* Good News in Mississippi?, Radley Balko, April 15, 2008
* The Case of Henry Moses: Another Dr. Hayne Debacle, Radley Balko, April 13, 2008
* Hayne Responds, Radley Balko, April 9, 2008
* Innocence Project Files Complaint to Revoke Dr. Hayne's Medical License, Radley Balko, April 8, 2008
* Former Mississippi Official Calls for Overhaul of Autopsy System, Radley Balko, March 31, 2008
* Some Movement in Mississippi, Radley Balko, March 28, 2008
* More Autopsy Adventures in Mississippi, Radley Balko, March 27, 2008
* Hattiesburg American Calls for Investigation of Hayne, Radley Balko, March 8, 2008
* Head of Mississippi Prosecutors Association Says He'll Refuse Open Records Request, Radley Balko, March 6, 2008
* More From Mississippi, Radley Balko, March 5, 2008
* Mississippi AG Jim Hood: Forrest Allgood a "Straight Arrow", Radley Balko, March 3, 2008
* Mississippi Supreme Court Considering Two Death Penalty Cases Involving Dr. Steven Hayne, Radley Balko, March 2, 2008
* The A.P. on Mississippi's Forensics Problems, Radley Balko, March 1, 2008
* The Bite-Marks Men
Mississippi's criminal forensics disaster
Radley Balko, February 25, 2008
* Mississippi Gets an "F" in Transparency, Radley Balko, February 24, 2008
* The Hayne, West Taint Spills Into Louisiana, Too, Radley Balko, February 21, 2008
* Jackson's Clarion-Ledger Editorializes on MS Forensics, Radley Balko, February 19, 2008
* Eddie Lee Howard: Mississippi's Next Exoneration?, Radley Balko, February 17, 2008
* President of Mississippi State Medical Association Denounces Dr. Hayne, Radley Balko, February 15, 2008
* Innocence Project Calls for Investigation Into Dr. Hayne, Radley Balko, February 14, 2008
* Big News in Mississippi, Radley Balko, February 11, 2008
* Back to Mississippi, Radley Balko, December 21, 2007
* Innocent in Mississippi, Radley Balko, November 5, 2007
* Death Investigation Deficiencies
Is Mississippi's forensic evidence system dysfunctional?
Radley Balko, October 29, 2007
* Reason's Radley on the Radio, Radley Balko, October 9, 2007
* Jackson News Station Picks Up Hayne Story, Radley Balko, October 9, 2007
* New at Reason, October 8, 2007
* CSI: Mississippi
A case study in expert testimony gone horribly wrong
Radley Balko, November 2007 Print Edition
* "Indeed, and Without a Doubt"
How a Mississippi dentist may be sending innocent people to jail.
Radley Balko, August 2, 2007
* Reason Cited by Mississippi Supreme Court, Radley Balko, January 8, 2007
* The Case of Cory Maye
A cop is dead, an innocent man may be on death row, and drug warriors keep knocking down doors. SC: When will someone do for Joyce Gilmore what Balko is doing for Hayne and Harold Levy is doing on the Charles Smith case in Canada? The lady deserves no whit less.
This is from an Alamama legal site shortly after the reversal. But Valeska is still with us! Oops.So, Would This Count As Desecrating The Flag? »“A Minister of Justice” That is how Alabama’s Rules of Professional Conduct describe the office of prosecutor. Here is another high minded description:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Troy King succinctly states:
Prosecutors do not want someone held responsible for the crime; they want the criminal held responsible for the crime.
Now let us turn to the recently decided case State of Alabama v. Moore. (No link, because Alabama decisions are not available on the web, but if you have Westlaw access, the cite is 2006 WL 2035664). In that case, the following occured:
During the discovery phase of this trial, counsel for the Defendant made repeated requests for copies of statements and other documents in the possession of agents from the Federal Bureau of Investigation. The Court ordered the prosecutor and the investigators to provide the Defendant’s attorney with copies of all documents in their possession of whatever kind relating to the murder of Karen Croft Tipton. Repeatedly, Investigator Mike Pettey and Prosecutors, Don Valeska and William Dill, denied the very existence of any reports or documents prepared or generated by agents from the Federal Bureau of Investigation. The Court believed those representations made by the prosecution and took no further action to require the prosecution to produce the requested documents. This was done over the strenuous objections of counsel for the Defendant.
After the Defendant was tried and convicted, Don Valeska produced to the Court a copy of a five page document that was faxed to him from the Federal Bureau of Investigation. The Court then learned that Mr. Valeska had actual knowledge of this document prior to his fervent denial that any such documents or reports existed. . . .
Investigator Mike Pettey told Don Valeska prior to the trial of the case that he had sent questionnaires to various people connected to the case, had them fill out the questionnaires; and sent the information back to the Federal Bureau of Investigation. None of these materials were ever provided to the Defendant. Mr. Valeska did nothing prior to the commencement of the trial on November 4, 2002, to get a copy of this information from the Federal Bureau of Investigation or furnish it to the defense or inform the Court that he had discovered the documents existed.
“On October 30, 2002, the Court had hearings on motions filed by the defense requesting copies of information about an alleged Federal Bureau of Investigation report. On October 30, 2002, when questioned specifically by the Court regarding a Federal Bureau of Investigation report, Assistant Attorney General Don Valeska, said to the Court, ‘There ain’t no such thing as an FBI report.’
So Don Valeska, who is an Assistant Attorney General in Troy King’s office, lied to the court. In addition to the ideals I’ve quoted already, the Rules of Professional Conduct also have this to say:
A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.
We don’t need rules to know lying is wrong, but it is worse when a prosecutor does it, because prosecutors hold peoples lives in their hands. Mr. Moore was on trial for capital murder. The case was entirely circumstantial. The evidence concealed by Don Valeska undercut some of the state’s arguments. By lying to cover it up, Don Valeska tried to conceal the truth. He wanted a conviction, justice be damned.
In response to this despicable conduct, the trial court dismissed the case. The Court of Criminal Appeals reversed the dismissal and remanded for a new trial. That is probably the correct result. Don Valeska needs to be punished for his actions. But dismissing the case harms many more people than Don Valeska.
My suggestion? Disbarment. This man ought not to be practicing law.
If that is too much, then at the least Don Valeska ought to lose his current job. His actions have humiliated our profession, his office and the state. Never mind the additional costs of a new trial. If Troy King had any integrity whatsoever, Don Valeska would no longer work for his office, never mind continuing to work in his current position as Chief of the Violent Crimes Division. http://alablag.wordpress.com/2006/08/01/a-minister-of-justice/
Justice for Ted Stevens Signs of prosecutorial misconduct.
The headlines are gone, and MSNBC no longer cares. But that's all the more reason to take note of the strange and disturbing turn in the Ted Stevens legal saga.[The same applies to Daniel Wade Moore(see Don Valeska thread this day) whose vindication two weeks ago was likewise ignored by the national press which had pilloried him.] [Review & Outlook] AP
Prosecutors claimed this senior Senatorial scalp last year, winning an ethics conviction a fortnight before the octogenarian Republican narrowly lost his bid for a seventh term from Alaska. Though media interest stopped there, the story has since become one of ambitious prosecutors who at the very least botched the job and may have miscarried justice.
Let's unwind from the end. The Justice Department this week took the highly unusual step of replacing the team handling posttrial litigation in the case. This followed last week's bizarre turn, when the chief of the public integrity section at Justice, William Welch, and his deputy, Brenda Morris -- the federal prosecutors who won the Stevens conviction -- were held in contempt of court. Judge Emmet Sullivan berated the prosecutors for failing to act on his January 21 demand to deliver internal documents to Mr. Stevens's attorneys. "That was a court order, that wasn't a request," he said. "Is the Department of Justice taking court orders seriously these days?"
Those 33 documents relate to a complaint filed December 2 by one of the two FBI agents assigned to the case. Chad Joy claimed prosecutors covered up evidence and tried to keep a witness from testifying. He also said his partner, Mary Beth Kepner, had an unspecified "inappropriate relationship" with the state's star witness, Bill Allen, and other potential witnesses. The government alleged the Senator failed to list on his Senate disclosure forms gifts and home renovation work from Mr. Allen, who ran a large Alaskan oil services company, Veco Corp.
During the trial, Judge Sullivan had also admonished the prosecution for failing to share documents with the defense and redacting exculpatory passages from witness transcripts. Under the so-called Brady rule, Justice isn't obliged to share everything. But in a high-profile case prosecutors usually err on the side of absolute disclosure.
Any one of these prosecutorial missteps may not negate the jury's verdict. Taken together, however, they raise serious questions about possible prosecutorial malpractice. The government's lawyers have angered the judge and given Brendan Sullivan (no relation of the judge) and the rest of the Senator's defense team plenty of ammunition to call for a retrial, if not dismissal. The judge will soon rule on their motion.
One excuse heard at Justice is that prosecutors didn't expect Mr. Stevens to get such a quick trial after his July indictment, and were rushed. That raises the more relevant question -- why was the Senator indicted so close to an election? The Stevens case emerged out of a broader corruption inquiry in Alaska overseen by Alice Fisher, a Bush appointee who headed up the Criminal Division. She left last May. The Stevens indictment was unveiled in July by Matthew Friedrich, tapped by the Bush Administration to run the division. He had served on the Enron task force, helping bring down Arthur Andersen. That verdict was later overturned by the Supreme Court, albeit too late for Andersen. He exited Justice on Inauguration Day, leaving the current mess.
Mr. Welch, the prosecutor, is a career Justice lawyer appointed to his post by Ms. Fisher. In a profile last week in his hometown newspaper, the Springfield, Mass., Republican, he was described as a registered Democrat vying for a promotion to U.S. Attorney in Boston. The day this story appeared, he was found in contempt.
So what we seem to have here are young lawyers eager to make their reputations by bagging a big-name Senator. Justice rules forbid issuing indictments too close to elections. These columns were tough on Mr. Stevens at the time, but the facts that have since come to light cast real doubt on the case. Though Mr. Stevens was a champion earmarker, the government never alleged much less proved that Veco got anything in return from the Senator. The formal charges are a low-grade felony -- in essence, lying on forms. This is not like the charges against William Jefferson or Randy "Duke" Cunningham.
Mr. Stevens will try to overturn the verdict and rebuild his reputation. He is unlikely to get his Senate seat back, even if he wins on appeal or at retrial. But the evidence of prosecutorial malpractice is serious enough to warrant an internal Justice probe, and perhaps judicial sanctions.
On February 5th,Daniel Wade Moore,after ten years, was cleared of all charges in the murder of Karen Tipton by the same judge who once opted to send him to his death.The judge specifically cited the deceitful conduct of Prosecutor Don Valeska as among the primary reasons for not trying Moore a third time. A second jury had deadlocked 8-4 for acquittal.More recently members of the first jury have revealed that they also were deadlocked 8-4 for acquittal but were pressured by a vehement minority into convicting.They join in congratullating Daniel on his narrow escape: SATURDAY, FEBRUARY 5, 2005 HOME | NEWS | FORUMS | ARCHIVES | OBITUARIES | WEATHER
Judge Glenn Thompson, saying prosecutors and police defied his orders to share evidence, freed the man he once sentenced to death in the murder of Karen Tipton.
DAILY Photo by Dan Henry Daniel Wade Moore, center, at the Hanceville Police Department with his stepfather, Gordon Byrd, right. Daniel Wade Moore walked out of the Morgan County Jail on Friday evening, clear of capital murder charges in Tipton's March 12, 1999, stabbing death at her home on Chapel Hill Road Southwest in Decatur.
Unless the state can successfully appeal Friday's ruling, Moore will not stand trial again.
But Moore was not free to go right away. From Decatur, he was taken to the Hanceville City Jail to face a misdemeanor charge from 1999.
Hanceville released him about 7 p.m. after his family paid a $355 fine for a worthless check, according to his attorney, Sherman Powell Jr.
Thompson, who presided over Moore's trial in Morgan County Circuit Court, said another trial would place him in "double jeopardy."
Thompson's 17-page ruling criticized Assistant Attorney General Don Valeska, who tried the case, and Decatur police Sgt. Michael Pettey, who assisted in the investigation.
"When Assistant Attorney General Don Valeska and Investigator Mike Pettey willfully defied this court's orders they chose to defy justice," Thompson wrote.
A jury convicted Moore in November 2002 of capital murder, and Thompson sentenced him to death. But he later overturned the conviction and sentence, granting Moore a new trial. Friday's ruling is in response to a year-old motion to dismiss filed by Powell and co-counsel Catherine Halbrooks.
"The double jeopardy clause (of the U.S. Constitution) protects a criminal defendant's interest in a single, fair adjudication of his guilt or innocence," Thompson wrote. "When the lack of fairness is intentionally caused by the government's overreaching and misconduct, the defendant is entitled to the protections of the constitutions of the United States and the state of Alabama. . . .
"The prosecution had its opportunity to place Daniel Wade Moore on trial, and they squandered that right."
Thompson said Valeska and Pettey denied the existence of evidence, including FBI documents, that might have cleared Moore — evidence to which the defense was entitled.
Thompson said when he questioned Valeska about an FBI report during a hearing in October 2002, he stated, "There ain't no such thing as an FBI report."
"All of the material in question here passed through the hands of the investigators for the Decatur Police Department or the Assistant Attorney General Don Valeska and should have been provided to the defense as ordered by this court," Thompson continued.
Thompson also mentioned statements from people whom police and prosecutors questioned.
He said DNA evidence did not rule out other potential suspects. "In fact, the trial of the defendant was based almost entirely on circumstantial evidence. There is no direct evidence linking the defendant to the scene of the crime."
Chief backs investigation
Decatur Police Chief Joel Gilliam said he was not aware of the judge's ruling, but stood behind the investigation.
"It was before the court, and we disposed of the case," Gilliam said. ". . . We feel our investigation was based on the evidence. It was up to the court and the district attorney to take it from there."
Gilliam said it would be up to the state to reopen the case.
A spokeswoman for the attorney general's office said no one was available for comment.
Powell said the state could file a petition with the state Court of Criminal Appeals claiming that the judge made a mistake in his ruling and ask for its review.
Moore, who has been in jail for 4? years for Tipton's death, appeared to be happy to leave the county jail Friday.
"I'm glad this is over. The truth is finally out, so it's over with now," Moore told reporters as he got into a Hanceville police vehicle.
Powell said he's elated about Moore's freedom and he knew the judge would make the right decision.
"It's what we said all along: If we had the evidence that was withheld, we would've gotten an acquittal at trial," Powell said. "A lot of work and research went into the judge's ruling. It's something you couldn't do in a jury. I think justice has been done."
Moore's mother, Virginia Byrd, his stepfather, Gordon Byrd, and other relatives took him out to eat after his release from jail in Hanceville.
"This was so sudden that we didn't have anything planned," Virginia Byrd said.
Attempts to reach the victim's husband, Dr. David Tipton, were unsuccessful. An acquaintance of the family said the psychiatrist and his daughters have moved to another state.
SC: Unfortunately(see above),Daniel is not the only victim of Valeska's overzealous prosecutions. I fear we shall have occasion ( and perhaps more than once) to return to this reprehensible attorney's activities on some future occasion(I hope Alabama didn't utilize him in the Tommy Arthur Case.)
Here is another Steven Hayne in action story(Ray Kroll was twice convicted solely on Hayne's evidence) courtesy of Mike ZPU. The good doctor Hayne's services are(or were) sought by the state of Arizona and a number of other adjacent territories. Wonder Oklahoma ever called in to corroborate a Joyce Gilmore diagnosis. [This is our third junk bite mark analysis today! See further the alleged case of Captain Douglas Prade of Akron,Ohio,filed under "Raymond Towler" in the Wrongful Convictions section.] Twice Wrongly Convicted of Murder - Ray Krone Is Set Free After 10 Years
By Hans Sherrer
Justice Denied Magazine, Vol. 2, Issue 9
Ray Krone was walking a free man in the bright Arizona sun on the afternoon of Monday, April 8th. That was remarkable because that morning, as every morning for the previous 10-1/2 years, he'd awakened in a prison cell after being convicted twice of 36-year-old Kim Ancona's brutal December 1991 murder in a Phoenix lounge. Ray's conviction in 1992 was primarily based on "expert" testimony that his teeth matched bite marks on Ms. Ancona's breast and throat. After spending four years on Arizona's death row, Ray's conviction was thrown out by the Arizona Supreme Court. The reversal of his conviction was based on the prosecution's concealment from Ray's lawyers of a videotape about the bite mark evidence until just before the trial began. The Court did not rule on the issue in Ray's appeal that the prosecution had also concealed exculpatory test results of a prosecution forensic odontologist that concluded Ray's bite mark wasn't consistent with those found on Ms. Ancona.
Although DNA tests introduced at his second trial proved that blood found on Ms. Ancona didn't belong to either her or Ray, he was again convicted on the basis of "expert" testimony linking his teeth to the bite marks on Ms. Ancona. The prosecution had no other physical "evidence" that it claimed linked Ray to Kim's murder.
After his second conviction in 1996, Ray told The Arizona Republic he was innocent. "I was not there that night. "[This] pretty much rules out any faith I have in truth and justice." The trial judge, Maricopa County Superior Court Judge James McDougall, expressed doubt about the outcome of the trial when he wrote, "The court is left with a residual or lingering doubt about the clear identity of the killer." Judge McDougall also wrote after sentencing Ray to life in prison, "This is one of those cases that will haunt me for the rest of my life, wondering whether I have done the right thing."
Ray Krone, an Air Force veteran with no criminal record, was a postal worker and regularly played darts at the CBS Lounge in Phoenix where Kim Ancona worked. They casually knew each other, and Ray had even given Kim a ride to a Christmas party in his prized 1970 Corvette a week before her brutal murder. Ray's roommate corroborated Ray's statement to the police that he went to bed at 10 p.m. on the night of her murder.
Proclaiming his innocence since the time he first came under suspicion, the April 4th DNA test results of saliva and blood found on Ms. Ancona's clothes and body proved Ray Krone had been telling the truth. Not only did the tests exclude Ray, but they also implicated a man, Kenneth Phillips, currently imprisoned in Arizona for sexually assaulting and choking a 7-year-old girl. At the time of Kim Ancona's murder Kenneth Phillips lived 600 yards from the CBS Lounge and was on probation for breaking into a neighboring woman's apartment and choking her while threatening to kill her. Twenty days after Ms. Ancona's murder Mr. Phillips was accused of assaulting the 7-year-old.
After the DNA test results were obtained on April 4th, Ray's lawyer, Alan Simpson, said: "This proves with certainty that Ray Krone is an innocent man. Every day from this point forward that Ray spends in jail is a day the county acts at their own peril." Four days later Ray was a free man.
Ray Krone, right, leaves prison with lawyer Christopher Plourd. (photo by Charles Whitehouse, AP)
Maricopa County Attorney Rick Romley defended his prosecution of Ray Krone by saying there was "strong circumstantial evidence" of his guilt. In response to the conclusive proof that an innocent Ray Krone spent 10-1/2 years in prison, four of which was spent on Arizona's death row, Prosecutor Romley said, "we will try to do better." He neglected to mention that the prosecution's concealment of the odontologist's report that cast doubt on Ray's guilt prior to his first trial indicates they may have knowingly prosecuted an innocent man.
The prosecution's primary witness, Nevada forensic dentist Dr. Raymond Rawson defended his testimony. In an April 8, 2002 article The Arizona Republic quoted Dr. Rawson as saying, "The bite marks were just one piece of evidence with whatever else the jury considered, that is what convicted him." The callousness of Dr. Rawson towards the horrific wrong he was instrumental in inflicting on Ray Krone is indicated by the fact that the jury in both of Ray Krone's trials stated their guilty verdict was based on the bite mark testimony, not on "whatever else the jury considered."
Dr. Rawson's defense of helping to put an innocent Ray Krone on Arizona's death row is all the more feeble when viewed from the latest research about the unreliability of bite mark analysis. The coauthor of a book on forensic evidence, Arizona State University Law School Professor Michael J. Saks describes bite mark testimony as "classic junk science." The Los Angeles Times reported on April 10, 2002 that 63.5% of bite mark investigations resulted in "false positives" and another 22% resulted in "false negatives," according to a study by the American Board of Forensic Odontologists. Put another way, bite mark testimony may be no more likely to accurately identify the perpetrator of a crime than if the prosecution enlisted an astrologer to link a suspect to a victim by working out their respective astrological charts and plotting a convergence point at the time of the crime. Yet, the prosecution's reliance on "junk" bite mark evidence, and the jury's false belief it was scientific, put Ray Krone on track to have a one way trip to Arizona's death chamber. Professor Saks was quoted in the LA Times' article as saying, "At an absolute minimum, jurors should be informed of the relative accuracy or inaccuracy of these tests so they don't think there is more to them than there is."
Although Ray was twice convicted of the brutal stabbing murder of an attractive woman, his family's unwavering belief in his innocence led them to spend over $300,000 fighting for his exoneration and freedom. A key person was Jim Rix, a cousin Ray had not met before his conviction. After visiting Ray in prison, Mr. Rix, a Lake Tahoe businessman, organized the efforts that culminated in Ray's release. As Ray said the day of his release, "Justice has finally come." He got strength from knowing he was innocent, and "there was the strength I got from my friends and family. They never doubted I was innocent. They did everything they could to help me not get down."
Standing outside the prison in Yuma from which he had just been released, Ray said in an interview with Phoenix's KPNX-TV, "For 10 years I felt less than human. This is certainly a strange feeling, and I think it'll take a while for it to set in." Kim Ancona's mother was quoted in The Arizona Republic as saying after learning of the DNA test results, "My God, I hope he becomes a millionaire, because I can't give him those 10-1/2 years back."
According to the Death Penalty Information Center, Ray Krone is the 100th innocent man in the past 29 years released from prison after spending time on death row waiting to be led to a State's death chamber. Before his prosecution, Ray believed in the death penalty because he thought it was reserved for vicious criminals and mass murders. He knows better now. The Arizona Republic on April 9th quoted him as saying, "They would have executed me. Could I have any faith in it anymore? Absolutely not. I can't be the only one. ... People need to address this issue."
The New York Times echoed those sentiments in an April 10th editorial about Ray Krone's exoneration titled Death is Different. That editorial read in part:
" Given the way death-penalty crimes are prosecuted, as the wrongful-conviction scandals in Illinois a few years back showed, a certain number of mistaken convictions are essentially built into the process." A sad reality of the criminal justice system is that in all too many cases, defendants are convicted of serious crimes on the flimsiest of evidence. Juries often hang guilty verdicts on the word of a single witness, despite numerous academic studies showing that witnesses are frequently unreliable.
Courts admit evidence of dubious quality at trial, and send defendants to prison -- or to death -- on the basis of it. The case against Mr. Krone was largely circumstantial, including expert but apparently inaccurate, testimony that his teeth matched bite marks on the victim.
In the face of this powerful evidence that the system is broken, the courts should be chastened -- and they should be working hard to build in protections against executing the wrongfully convicted. Sadly, however, the Supreme Court appeared unconcerned about the fairness of the death penalty in its ruling in a case two weeks ago involving effective assistance of counsel."
In the case referred to in the Times' editorial, Mickens v. Taylor, Warden, No. 009285 (March 27, 2002), the Supreme Court ruled that it was not fundamentally violative of due process for an accused murderer to be appointed a lawyer that unbeknownst to him was the victim's lawyer at the time he was killed, which was the business day preceding his appointment as the defendant's attorney. In other words, one day the attorney represented the victim and the next business day he was appointed to represent his client's accused killer: all the while concealing that fact from his "new" client who was convicted and sentenced to death for killing the lawyer's previous client. In his dissent, Justice John Paul Stevens noted: "A rule that allows the State to foist a murder victim's lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice." Justice Breyer, with whom Justice Ginsburg joined in dissenting, was more direct in assessing the meaning of the Court's action: "This kind of breakdown in the criminal justice system creates, at a minimum, the appearance that the proceeding will not reliably serve its function as a vehicle for determination of guilt or innocence, and the resulting criminal punishment will not be regarded as fundamentally fair."
Every Court in the country takes its cues from the attitudes expressed by the Supreme Court, and as the New York Times noted in its editorial, the highest court in the land is no longer concerned with whether it even appears a defendant is accorded a fair trial. In the absence of a court acting in a manner that creates the appearance a defendant received a fair trial, it is unlikely he or she received one. That lack of concern by the nation's courts with a defendant's possible innocence nearly condemned Ray Krone to a life in hell, even though he is as innocent of Kim Ancona's murder as you, or any other readers of this report, are. That emphasizes the most troubling aspect of Ray's case and the lesson it has for us to again be reminded of: There are a disturbing number of “Ray Krones,” reliably estimated to number over a hundred thousand people, who have been left to twist in the wind by the Courts of this country to serve a prison sentence for a crime the person didn't commit.
It is heartening that Ray Krone had a happy ending to his gruesome 10-1/2 year saga. Now 45, he has the opportunity to begin life anew on the outside. Without restraint he can drive his Corvette and spend time with the people who cared enough to support him while he was imprisoned.
On the other hand, it is sobering to realize that Ray was blessed in two crucial ways: he had caring relatives with the money to hire a competent lawyer to fight for his freedom; and DNA tests capable of excluding him as Kim Ancona's murderer were developed after his conviction. Otherwise, he would have spent the rest of his natural life imprisoned in the nightmarish hell of Arizona's prison system due to the inability of this country's judicial process to reliably distinguish the guilty from the innocent.
Sources: "DNA good new for convict: Convicted twice in slaying," Beth DeFalco (staff writer), The Arizona Republic, March 23, 2002.
"DNA may free Arizonan: Inmate convicted twice in murder," Beth DeFalco (staff writer), The Arizona Republic, April 5, 2002.
"Doubts plagued trial in '91 killing," Beth DeFalco (staff writer), The Arizona Republic, April 8, 2002.
"DNA frees Arizona inmate after 10 years in prison: 10 years included time on death row," Dennis Wagner, Beth DeFalco, and Patricia Biggs, The Arizona Republic, April 9, 2002.
"DNA Leads to Release of Ariz. Convict," Foster Klug (AP), Seattle Post-Intelligencer, April 8, 2002.
"Death Penalty Foes Mark a Milestone: Crime: Arizona convict freed on DNA tests is said to be the 100th known condemned U.S. prisoner to be exonerated since executions resumed," Henry Weinstein (staff writer), Los Angeles Times, April 10, 2002.
“Death is Different,” Editorial Staff, The New York Times, April 10, 2002.
SC: I can't get over it .Three horrendous bite stories coming in within two hours!
SC: This just came my way and Bill Anderson over at LS deserves the credit for finding one of the astonishing stories yet(just out today).The original by Radley Balko is way too long to reprint(or even adequately summarize )here but please read every word of it with care.A state official appears to be actually caught on camera faking evidence in a capital case! This,if true, appears to be a first. BA This piece by Radley Balko will anger you and again point out just how crooked American prosecutors have become. I keep hearing the "there are just a few bad apples" argument, but this article tells me that the barrel is full of rotten apples.
Manufacturing Guilt? Experts say this exclusive video shows a dental examiner creating the bite marks that put a man on death row.
Radley Balko | February 19, 2009
Editor's Note: The following article contains graphic and disturbing photographs and video excerpts of an examination conducted on the body of a 23-month-old girl. The images are the basis of claims that forensic experts fabricated evidence in a case that put a man on death row, where he awaits exoneration or execution.
For most of the last 20 years, doctors Steven Hayne and Michael West have served as expert forensic witnesses for the state of Mississippi. Until 2008, Hayne served as the de facto state medical examiner, dominating a criminal autopsy market in which prosecutors contract out examinations to favored private doctors. West, a dentist, served one term as the elected coroner in Forest County, Mississippi in the 1990s and partly through his work with Hayne became a popular bite-mark examiner among prosecutors. Both men have come under intense scrutiny for questionable working procedures and dubious testimony—West off and on for 15 years, Hayne mostly in the last two. Reason has been following Hayne's deteriorating career since an October 2006 article that detailed his role in putting a possibly innocent man named Cory Maye on death row (see an archive of our Hayne-related reporting at: www.reason.com/hayne).