Welcome, Guest. Please login or register.
April 23, 2017, 12:40:08 AM
75132 Posts in 1768 Topics by 359 Members
Latest Member: nic4real
Home Help Login Register
Pages: 1 2 3 4 5 6 7 [8] 9 10
 on: February 13, 2009, 06:31:36 PM 
Started by Sydney Carton - Last post by Sydney Carton

       “In my entire career, I’ve never heard of anything remotely approaching this,” said Senior Judge Arthur E. Grim, who was appointed by the State Supreme Court this week to determine what should be done with the estimated 5,000 juveniles who have been sentenced by Judge Ciavarella since the scheme started in 2003. Many of them were first-time offenders and some remain in detention.

A fellow Luzerne County judge has disclosed that the magnitude of corruption involving his disgraced colleague is much greater than previously reported. It turns out that Judge Mark Ciavarella, sentenced to seven years in prison this week, ran an operation that freed inmates prematurely without the knowledge of the judges who sentenced them.

Outraged Luzerne County Judge Paul Olszewski exposed the scheme, calling it a secret probation parole program that no other county jurist knew about. Judge Olszewski says it put dangerous people on the street, including violent felons who in the past had probation and parole revocations. The judge issued several court orders this week demanding those inmates be brought back to prison.






 on: February 13, 2009, 06:22:48 PM 
Started by Sydney Carton - Last post by Sydney Carton
   Federal prosecutors have found a new reason to apologize over misleading information they've provided to the judge in former Sen. Ted Stevens' trial, and this time Stevens' lawyers are saying the government should be held in contempt.

In a letter to the judge dated Jan. 30 and made public Thursday, William Welch, head of the Justice Department's Public Integrity Section, said he erred when he said in January that government employees cited in an FBI agent's complaint alleging improprieties by government officials "want their story to be made public."

In fact, he wrote, not all of them gave their consent to having their names released Jan. 14 in a publicly filed copy of the eight-page complaint, though he didn't identify which ones.

In the complaint, agent Chad Joy accused a fellow agent and prosecutors of violating FBI policy and fair-trial rules in the wide-ranging public corruption investigation in Alaska and in Stevens' trial last year.

The new apology comes on top of a series of errors and misstatements made by prosecutors in connection with the complaint and other issues that arose during and after Stevens' trial.

In fact, Welch started his letter with an apology for an earlier "misunderstanding and misuse" of the phrase "whistle-blower" in connection with Joy's complaint -- and that was before he even revealed the newest misstatement.

How serious are the government's current problems? U.S. District Judge Emmet Sullivan hasn't expressed an opinion beyond obvious annoyance.

The basic facts of the case remain largely unassailed: that Stevens got tens of thousands of dollars' worth of gifts and services, primarily from the oil field service company Veco Corp. and its chief executive Bill Allen, didn't report them, then schemed to cover up his omissions.

But in a new motion filed Thursday on the collateral issues, Stevens' lawyers cited the latest material from prosecutors as additional grounds for their demand that Stevens' charges be dismissed over government misconduct, or that he at least get a new trial. And they added a new wrinkle: a request to Sullivan that the government be held in contempt.

"The government still does not get it. Over and over again, it has been caught red-handed making false representations to the Court and the defense," defense attorney Robert Cary said in his motion, filed publicly Thursday after initially having been submitted under seal Monday.

Not only did the government admit another error, Cary said, but it failed to comply with Sullivan's order of Jan. 21 to produce every communication in its files about Joy's complaint and to share that material with the defense.


In the court documents put on the record Thursday, prosecutors acknowledged they weren't complying with the literal words of Sullivan's order but said they thought "other, more specific statements" by Sullivan required only a disclosure of communications related to whether Joy was a protected government whistle-blower.

That issue has been a subplot in the ever-growing post-trial din. Initially, when prosecutors sought to keep the complaint secret, they said he was a protected whistle-blower. When they sought to make the complaint public, they said he wasn't.

"The Government deeply regrets that the proceedings surrounding the Joy Complaint have escalated to this stage," said the most recent filing.

In explaining the shifting positions, prosecutors say now that the complaint was the sort that could lead to protection. But since Joy hasn't alleged any reprisals, he doesn't fall within the law that protects whistle-blowers, they said.

If the judge wants a larger disclosure or if he demands that sensitive attorney work-product documents be shared with the defense, the prosecutors asked they be given a two-week stay so they could decide whether to appeal.

In a new order docketed this week, Sullivan said he wasn't ready to determine whether the government filing conformed to his order. But he didn't seem very willing to give prosecutors more time.

"Moreover, for the reasons already stated by the Court in previous Orders and because much of the recent litigation is in response to the government's requests for relief and admitted misrepresentations, intentional or not, the Court will review further requests for extensions of time with disfavor," Sullivan wrote.


Stevens' trial concluded Oct. 27. Even before the verdict, prosecutors got into trouble with the judge for not turning over evidence to the defense and for producing an inflated accounting of free work done for Stevens by Veco. Sullivan imposed sanctions on the government, stripping it of a small part of its case, but the jury appeared to have found more than ample evidence to convict Stevens on all seven disclosure counts.

Since then, Stevens' attorneys have taken two main approaches. They have said an accumulation of errors by the judge in interpreting the law and by the prosecution in its handling of the case should be sufficient for Stevens to get a new trial. And they've argued that government misconduct was so extreme that the judge should dismiss the case entirely. Now the latest filing adds a contempt citation to Stevens' proposed remedies.

"The government's excuse for this umpteenth alleged misunderstanding makes absolutely no sense," Cary said.

Prosecutors have acknowledged making mistakes but they said none were deliberate.

Joy's complaint, filed with the Justice Department in late November, has fueled the defense's post-trial effort, and Stevens' lawyers are demanding a full accounting in open court -- especially assertions by Joy that the government deliberately hid evidence favorable to Stevens.

Welch's letter also gives some insight about the internal fallout of Joy's complaint when a heavily edited version became public in December. It had a "negative impact" in the Anchorage FBI office, he said.

Many of Joy's complaints were against his co-case agent, Mary Beth Kepner, the lead agent in the corruption investigation.

"Special Agent Kepner has expressed her desire to have her name public and more importantly to release any and all information related to the allegations against her," Welch said.

During the first week in January, FBI agents from Washington, D.C., interviewed personnel in Anchorage, Welch said. The Washington agents told the interviewees that their statements eventually would be submitted publicly in court. But some Alaska personnel complained they didn't consent to their names being used in the Joy complaint when a less-edited version was refiled publicly Jan. 14 with the names of all government officials exposed, Welch said.


Judge holds Stevens prosecutors in contempt
  updated 3:38 p.m.

WASHINGTON — A federal judge held Justice Department attorneys in contempt Friday for failing to deliver documents to former Sen. Ted Stevens' legal team.

U.S. District Judge Emmet Sullivan said it was "outrageous" that government attorneys would ignore his deadline for turning over documents.

Last month, Sullivan ordered the Justice Department to turn over all the agency's internal communications regarding a whistleblower complaint against the FBI agent leading the investigation into the former Alaska senator.

The agent, Chad Joy, bitterly complained about some Justice Department tactics during the trial, including not turning over evidence and an "inappropriate relationship" between another agent working the case and the prosecutor's star witness.

Stevens was convicted in October of lying on Senate disclosure documents about hundreds of thousands of dollars in gifts and home renovations from an Alaska businessman. In November, Stevens lost his bid for re-election to the Senate seat he had held since 1968.

Stevens and his lawyers complained during the trial about prosecutors withholding information. In December, they asked for his conviction to be tossed out. As part of their request, they asked for the documents related to Joy.

During Friday's hearing, Sullivan repeatedly asked three Justice Department attorneys sitting at the prosecution's table whether they had some reason not to turn over the documents. They finally acknowledged they did not, and Sullivan exploded into anger.

"That was a court order," he bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. ... Isn't the Department of Justice taking court orders seriously these days?"

He said he didn't want to get "sidetracked" by deciding a sanction immediately and would deal with their punishment later. But he ordered them to produce the material by the end of the day.

"That's outrageous for the Department of Justice - the largest law firm on the planet," he said. "That is not acceptable in this court."

Sullivan held all three attorneys sitting at the table in contempt and demanded repeatedly to know who else was involved in withholding the information. Another government attorney sitting in the back of the courtroom stood up and gave her name.

    Thanks to Clowns

 on: February 12, 2009, 06:57:57 PM 
Started by Sydney Carton - Last post by Sydney Carton

February 11, 2009
Selena Roberts and the Duke case

Those who choose to come to Alex Rodriguez's defense by shooting the messenger -- in this case Sports Illustrated reporter Selena Roberts -- are using her coverage of the Duke lacrosse rape case as their ammuntion.

Looking back to the Duke situation, in late-winter 2006/07, it's clear Roberts was heavily criticized for the columns she wrote while working for the New York Times.

This isn't to say she's right or wrong in the case of Rodriguez.

From the blog TimesWatch: "As columnist Selena Roberts reportedly leaves the Times to write for Sports Illustrated, her execrable treatment of the Duke lacrosse team should not be forgotten. Three players were falsely accused of raping a stripper, a hoax Roberts not only fully embraced but used to tar the entire athletic department as a racist, woman-hating bastion of white privilege."

More from TimesWatch: "Times sports columnist Selena Roberts attacks innocent Duke players with sarcasm and accusations of white privilege: 'Don't mess with Duke, though. To shine a light on its integrity has been treated by the irrational mighty as a threat to white privilege....lay off the lacrosse pipeline to Wall Street, excuse the khaki-pants crowd of SAT wonder kids.'"

From the blog Fanhouse: "Sports columnist Selena Roberts is a gifted writer who usually sounds just the right notes in writing about the way sports intersects with issues like race, class, politics and the law. But she was dead wrong about the Duke lacrosse case."

 on: February 12, 2009, 06:43:53 PM 
Started by Sydney Carton - Last post by Sydney Carton

No Longer Villain, McFadyen Fires Up Duke 'D'

by Matt DaSilva | Lacrosse Magazine Online Staff

Defenseman Ryan McFadyen says he learned how to hit harder as a special teams player for Duke’s football team, a skill that could translate to big impact on the lacrosse field.

Ryan McFadyen knows the e-mail was a wretched thing to write. That’s why he wrote it, to get a yuk out of what he thought was a private audience by quoting a book (and movie) whose protagonist makes Marilyn Manson look like Mother Theresa – shock value.

Little did he know that e-mailing teammates in jest about skinning and killing strippers (among other vulgarities) would become national news in the Duke lacrosse nightmare.

“You Google my name, there are all these links to the e-mail saying this kid’s a psychotic lunatic,” said McFadyen, whose e-mail paraphrased a passage from American Psycho. “Dialogue is the best way to overcome any preconceived notions people have about my character. Talk to me for 10 minutes. I’m not that person.”

Vilified publicly when Durham police released the contents of the e-mail as part of District Attorney Mike Nifong’s “tragic rush to accuse,” as the false rape allegations against three of his teammates were later declared, McFadyen could hardly be blamed if he bolted campus. But he didn’t.

Instead, when reinstated following a brief suspension, McFadyen rededicated himself to the university and Blue Devils. The last two seasons, he helped anchor Duke’s defense in runs to the NCAA championship game and semifinals, respectively.

“I could never play lacrosse for another school,” he said.

In the fall, McFadyen took it a step further, earning a scholarship as a walk-on to Duke’s football team in part because of a challenge issued unintentionally by men’s lacrosse coach John Danowski.

In a sports psychology exercise last spring, Danowski told the team about his life, and how much he regretted quitting football as a third-string quarterback his senior year at Rutgers, where he also played lacrosse.

“I told them how I got consumed with my ego – what a jerk,” Danowski said. “What Ryan heard was the no regrets part.”

McFadyen had always been told he’d make a good football player. And despite no previous gridiron experience, he wanted to prove it to himself. He also felt guilty asking his parents to pay for him to return to Duke for an NCAA-granted fifth year of eligibility without the scholarship he previously had in lacrosse.

At 6-foot-6, 245 pounds, but with the shiftiness of a lacrosse player, McFadyen got playing time as a tight end and on special teams. He helped block a kick against Vanderbilt and made a fair catch against Miami.

But he was a man amongst beasts.

“I go from being the strongest guy on my team to not even being in the top 10,” he said. “Guys are benching 500 pounds, and I’m like, ‘Do you need a spotter?’”

Now he knows how Max Quinzani feels.

Already the enforcer of Duke’s defense, McFadyen said the most important skill he gleaned from football was learning how to hit the right way.


“I’m used to a kickoff return or cover, running down and throwing my body full speed into someone,” he said. “If anyone on our lacrosse team complains, I’ll tell them to do a Bloody Tuesday session. It speaks for itself – full pads, and you’re not holding anything back.”

The Blue Devils, ranked No. 8 in Lacrosse Magazine's preseason poll, host No. 20 Bucknell in both teams' season-opener Saturday.

 on: February 12, 2009, 06:28:30 PM 
Started by Sydney Carton - Last post by Sydney Carton
   This is as bad as the recent McDonalld appeal.
   There were only three witnesses in the case(1)The mother whose testimony was purely indirect(2)The schoolmate(who showed  up some fifteen months later) and whom the Florida Court itself described as "thoroughly impeached" by the original cross-examination and (3) the stoolie.
  In the earlier appeal the Florida Court further stated  that it was rejecting the newly discovered evidence(as it then stood) because none of the three original  witnesses  had recanted.
   Now the witness recants and they say in a one page decision that planting an admittedly perjured witness(the only remaining unimpeached witness ) on the defendant  constitutes a "harmless error"!
   Well,at least one out of five did dissent the final time around. A bitter solace  to know  a single judge in the end showed a belated sense of decency.

STARKE, Fla. (AP) -- A rapist convicted of murdering his girlfriend's teenage daughter 26 years ago was executed Wednesday after the courts refused to reconsider his claims of innocence.

Wayne Tompkins, 51, was pronounced dead at 6:32 p.m. at Florida State Prison. The execution started at 6:24 p.m. He had been condemned for the murder of 15-year-old Lisa DeCarr, who disappeared from the Tampa home she shared with Tompkins and her mother on March 24, 1983.

"I'm good," Tompkins replied when officials asked if he had any last words.

At the start of the execution, Tompkins breathed deeply and closed his eyes and then opened them again.

The victim's mother, Barbara Wallace, and three of her daughters and her son witnessed the execution, as did Tompkins' attorney Neal Dupree.

"It didn't bring her back," Wallace said of the execution.

DeCarr's sister, Michelle Hayes, said she had hated Tompkins for many years, saying "I have wanted to do it myself many, many times."

"We are glad this long journey is over now. We feel it was humane. Lisa can now rest in peace. That's what this day was about, justice for her, not anybody else," Hayes said.

Tompkins requested a sedative before the execution by lethal injection.

"Some of the family thought it was too easy," Hayes said.

Wallace and others thought DeCarr had run away, but her body was found a year later under the home's porch. She had been strangled with the belt of the pink bathrobe she had been wearing.

Tompkins, who had been arrested in early 1984 after he robbed and sexually assaulted two convenience store clerks in separate attacks, was charged with her murder. A cellmate testified that Tompkins confessed, saying he had strangled the girl after she kicked him in the groin while rebuffing his advances.

That cellmate, Kenneth Turco, now says a prosecutor told him to lie to the jury. The state Supreme Court has ruled Turco's recantation a harmless error that would not have affected the outcome of the trial.
Attorneys Martin McClain and Neal Dupree filed an appeal with the U.S. Supreme Court and an application for a stay of execution Wednesday morning, but it was denied.

The appeal raised many of the same issues already turned down by Florida courts, including whether Gov. Charlie Crist had the right to schedule the execution because he let four years pass before setting a new execution date. Tompkins also had appealed the Turco action.

Tompkins had a final visit with his mother, Gladys Staley of Brooksville, on Wednesday morning and ordered a final meal of fried chicken and banana split ice cream, said Gretl Plessinger, a spokeswoman for the Florida Department of Corrections.

Across a highway outside the prison, about 40 death penalty opponents gathered for a prayer vigil.

The Florida Supreme Court, in a one-page order, denied all of Tompkin's appeals Wednesday morning. His attorneys had asked the court to delay the execution, saying more time was needed to complete testing on DNA evidence found on and near the girl's body. The court said it would not entertain any motions for rehearing.

Also turning down Tompkins was the trial court in Tampa, which denied his motion to vacate his judgment and sentence and his motion for a stay of execution.

Crist was the third Florida governor who has sought to execute Tompkins. He did not have to sign a death warrant because the state moved to a non-expiring death warrant, so the final warrant signed by Gov. Jeb Bush was still in effect. Gov. Bob Martinez signed two in 1989 and Bush signed a third in 2001. Courts stopped each one.

The Innocence Project of Florida had filed a motion Wednesday to preserve the evidence in Tompkin's case, arguing that more DNA testing is needed to "banish all doubt." It asked that a robe, sash and samples of the victim's bones be preserved for additional DNA testing.

On Tuesday, the Innocence Project had asked the governor to delay the execution so more testing could be done.


 on: February 11, 2009, 04:06:57 PM 
Started by Sydney Carton - Last post by Sydney Carton
   Here is the state of the case(according to the defense) prior to the recent developments.
I can't understand why practically no one has heard about this one.

In March of 1983, Wayne Tompkins was living in Tampa with Barbara DeCarr and her three children, including 15-year-old Lisa. On the morning of March 24, 1983, between 8:30 and 9:00, Barbara went to Wayne’s mother’s house to help her move. When she left home, Lisa was there wearing a pink bathrobe. Meanwhile, Wayne dropped off Barbara’s son at school and arrived at his mother’s to help. At some point, Barbara sent him back to their house to get newspapers. When he returned he reported Lisa was on the couch watching TV. Later at 3:00 pm., Wayne reported that Lisa had run away. Barbara went home, could not find Lisa, and contacted the police. Barbara questioned Wayne about his last sighting of Lisa, and he said the last time he saw her she was going out the back door wearing blue jeans and a maroon-colored blouse. About a month later wiht Lisa still missing, Barbara and her family moved.

In June of 1984, Barbara employed the services of a psychic to help find Lisa who was still missing. The psychic directed a search of the residence occupied in March of 1983 be conducted. Under the house, a shallow grave was found. The body recovered was identified as Lisa’s through dental records.

At trial, the State relied on the testimony of Kathy Stevens. Kathy had been a classmate of Lisa’s at the time she disappeared. According to Kathy’s testimony at trial, she had a arrived at Lisa’s house at around 6:00 am., on March 24, 1983. The two had made plans to run away. At that time, Lisa announced she had changed her mind. Kathy left, but forgot her purse. Around 9:00 am., Kathy returned to get her purse. When she arrived, Kathy heard a loud crash, so she opened the front door. She saw Lisa and Wayne struggling on the couch. Wayne was on top of Lisa trying to get her clothes off. Lisa asked Kathy to call the police, and Wayne told Kathy to get out. Kathy also noticed another man sitting in a chair in the living room watching. She left and did not call the police. She claimed to have told Lisa’s boyfriend who did not seem upset. So she went to school and never told anybody else. A couple weeks later, she had a conversation with Barbara and told her that Lisa had left for New York. She testified that this was a lie but that she believed at the time that Lisa may have run away. Until the body was discovered, Kathy believed that Lisa had run away.

The State also relied upon the testimony of a jailhouse informant, Kenneth Turco. After a previous jailhouse informant committed suicide, Turco came forward and claimed that Wayne had confessed to strangling Lisa and burying her body under the house.

On the basis of this evidence, Mr. Tompkins was convicted of having murdered Lisa DeCarr on March 24, 1983, between the hours of 8:30 am. and 5:00 pm. At the penalty phase, evidence of two prior sexual assaults was introduced in aggravation (although it should be noted that the victim of one of the priors reported in her statement that Mr. Tompkins could not go through with it, dropped her off a block away from where she requested, and gave her change so she could call the police). A death sentence resulted.

However, Mr. Tompkins’ jury did not hear significant exculpatory evidence. First, the day that Lisa was reported missing the police interviewed Wendy Chancey, another schoolmate of Lisa’s. Wendy reported seeing Lisa getting in a car at 3:00 pm on March 24, 1983, at the intersection of 12th St. and Osbourne. She also reported that Lisa was wearing jeans and a maroon blouse.

Second, school records indicated that in April "students said the child called from N.Y. is pregnant."

Third, a police report dated April 26, 1983, indicated Barbara had reported that her son had spoken to Kathy Sample (Kathy Stevens had testified that she was never known as Kathy Sample) who reported that Lisa had called her. Barbara then called Kathy Sample who reported Lisa had called saying she was in New York and pregnant.

Fourth, a police report dated June 22, 1983, noted that Barbara had called indicating a neighbor had allegedly seen Lisa getting into a green car in the area of 15th and Osbourne.

Fifth, a police report dated September 2, 1983, reported that Lisa had been sighted some six months after the day she was first reported missing.

Sixth, at Mr. Tompkins’ trial the prosecutor told the jury that Kathy Stevens had no reason to lie. However, a undisclosed memo to the file prepared by that prosecutor revealed that he had two conversations with her before she told him that she had witnessed a struggle between Mr. Tompkins and Lisa. On March 7, 1985, Kathy indicated that the day before her disappearance Lisa had told Kathy she was going to run away. At that time, Kathy said she had no further contact with Lisa and her subsequent statement to Barbara reporting a phone call from Lisa was false. On March 12, 1985, Kathy changed her story and reported seeing the struggle between Mr. Tompkins and Lisa. After this change in her story, the prosecutor "arranged a visit" between Kathy and her boyfiend who was then in jail and who she had not been able to get in to see.

Seventh, the jury did not know that Kenneth Turco would be allowed to withdraw a guilty plea to an escape charge within two weeks after his testimony. At trial, Turco told the jury that he had pled guilty to an escape and expected to serve a lot of time. Two weeks after Mr. Tompkins received the death penalty, however, the prosecutor in Mr. Tompkins’ case replaced the prosecutor in Turco’s case, and went to court and agreed to allow Turco to withdraw his guilty plea to the escape. The prosecutor then dropped escape charge against Turco completely.

 on: February 11, 2009, 03:27:53 PM 
Started by Sydney Carton - Last post by Sydney Carton
  I am taking this over directly  from the front board .For some reasoon the Innocence Project has never sent me anything about this case,otherwise you would heard about it long before now.
  As it is, please spend five minutes sending the Governor an e-mail and/or phone call.There is no time to check this out but it appears(a)There is no firm evidence that this is the alleged victim's body and (b) he has been seen very much alive quite recently.
   Even if it proves a false alarm, the Governor should certainly hear these people before killing a man.
     Wayne Tompkins is scheduled to be executed tonight in Florida. From the Florida Innocence Project(via e-mail):

We believe there are very serious doubts about whether Tompkins is guilty of murder – because the body in the case might not be that of the alleged victim, meaning no murder even took place. Several individuals have signed affidavits saying they have seen the victim alive since the alleged murder, but the Governor has failed to stay the execution.

Yesterday, we sent a letter to Governor Charlie Crist (pdf). Today, we filed a motion to preserve the evidence in the case, signaling our intent to go ahead with DNA testing, even if Tompkins is executed. One day soon, the truth will come out, and perhaps Governor Crist will become the first in US history to execute a man who was proven to be innocent.


From a Florida Innocent Project Press Release:

Mr. Tompkins was found guilty of murdering Lisa DeCarr in 1983. The evidence against him was circumstantial and consisted of three witnesses, including one jailhouse snitch. The nature of this case is also uncommon because the identity of the victim herself is also in doubt.

The victim’s alleged identity was supported at trial by a comparison with dental records which Miller says was “wholly unpersuasive.” Since then, several individuals have signed affidavits claiming to have seen her alive since the murder.

“Because the dead body’s identity is an issue, [late last year] you ordered DNA testing on bones from that dead body as well as a robe and sash found with the dead body,” Miller wrote to Crist.

"We presume you did so in order to remove any remaining questions about whether the State of Florida was about to execute an innocent man.” That round of testing came back inconclusive, says Miller. But he adds that, “the facts of the case have not changed. The uncertainty surrounding the identity of the alleged victim that led to the last round of DNA testing still exists. There should be clarity about the identity of the alleged victim before we execute a potentially innocent man. That clarity is obtainable in Mr. Tompkins’ case.”

IPF believes that a new round of DNA testing, involving methods that have not yet been tried in this case, would likely yield results.

Miller pledged to work with Governor Crist to “answer these remaining questions and finally obtain closure in this case,” urging patience in order to avoid executing a potentially innocent man on Wednesday.

On the preservation of evidence issue, from another of their press releases, not yet online:

“The Governor should remember two other cases, Frank Lee Smith and Ricky McGuinn,” said Miller. Frank Lee Smith died on death row in Florida before DNA testing proved he was innocent. In Ricky McGuinn’s case, his Texas execution was stayed, then DNA testing proved his guilt, and his execution was reset. In both cases, DNA testing proved vital to the establishment of culpability.

IPF is moving a court to notify the appropriate institutions that they have a statutory obligation to preserve all evidence pertaining to Tompkins’ case for 60 days, even if he should be executed. IPF wants a robe, a sash, and samples of the victim’s bones to be preserved, with confidence that a new round of DNA testing, using methods that have not been used in this case, will likely yield the identity of the victim.

What can be done? The IPF, via e-mail, writes:

The troubling aspects of this case are myriad. Involved are bad eyewitness testimony, changing stories after interrogations, a questionable jailhouse snitch, bad forensic science, DNA testing's unprecendented probative value being ignored, and the possibility of actual innocence coupled with an impending execution.

It's hard to imagine a more convoluted and unreliable process of justice playing out in our system. Please take this opportunity to call or email Governor Crist. Florida could become the first state to execute an innocent man. Concerned citizens everywhere should act now.

Contact Governor Charlie Crist
Phone: 850-488-7146
Fax: 850-487-0801

Email: Charlie.Crist@myflorida.com

 on: February 11, 2009, 03:15:49 PM 
Started by Sydney Carton - Last post by Sydney Carton
   This actually does have its humorous side:

Opinion by Judge Reinhardt

After pleading guilty to a multiple-count indictment charg-
ing, inter alia, two independent firearms counts under 18
U.S.C. § 924(c), Jose and Abraham Beltran-Moreno benefit-
ted from the district court’s erroneous construction of that
statute at sentencing. They should have quit while they were

This was
error, the result of which was the calculation of a mandatory
minimum sentence of twenty years, which was twenty years
lower than that required by statute, a sentence that would
seem quite reasonable, but for the Court’s decision in Deal.
Remarkably, the defendants’ good fortune did not stop
here. Under the United States Sentencing Guidelines, each
defendant’s offense conduct established an offense-level score
of over forty-two points. Regardless of a defendant’s criminal
history, the Guidelines recommend that someone convicted of
so high an offense level be sentenced to no less than life in
prison. See U.S.S.G. § 5A. However, as has been clear since
United States v. Booker, 543 U.S. 220 (2005), the Sentencing
Guidelines are now merely advisory. The Beltrans were fortu-
nate enough to be sentenced by a district judge who appears
to have taken Booker’s mandate to heart. Taking into account
the defendants’ characteristics, the nature of their crimes, and
other relevant factors, the district judge exercised his discre-
tion under 18 U.S.C. § 3553(a) to depart downward from the
Guidelines recommendation, sentencing the defendants to
thirty-five years in prison instead of imprisoning them for the
rest of their lives as the Guidelines suggest, but no longer
In the end, the defendants did not just avoid life sentences.
Because of the district court’s unawareness of Deal, they
received sentences five years below the mandatory minimum.
Such good fortune does not come often in our criminal justice
system, especially in prosecutions under § 924(c), which fre-
quently result in extremely harsh sentences. Cf. United States
v. Hungerford, 465 F.3d 1113, 1119 (9th Cir. 2006) (Rein-
hardt, J., concurring in the judgment) (criticizing a sentence
of 159 years imposed pursuant to § 924(c) on “a 52 year-old mentally disturbed woman with no prior criminal record” who
never touched a gun and believed herself to be actually inno-
cent); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.
1998) (“urg[ing] Congress to reconsider its scheme of manda-
tory consecutive minimum sentences”). As a result of the dis-
trict court’s exercise of discretion and its separate statutory
miscalculation, the Beltrans dodged two bullets: the Guide-
lines’ recommended life sentence, and the mandatory mini-
mum sentence required by § 924(c).
[1] The Beltrans’ trial counsel had the good sense not to
object to the district court’s sentence, which — given that it
was lower than legally permitted — was certainly better than
they could have possibly imagined. Their appellate counsel,
however, have exhibited anything but good sense. For reasons
beyond our understanding, the Beltrans have appealed their
sentences, arguing that instead of imposing a mandatory mini-
mum of twenty years, the district court should have consoli-
dated the two § 924(c) sentences into a single five-year term
and imposed a fifteen-year minimum sentence for each of
them. This argument is squarely foreclosed by decades-old
circuit precedents.

Counsel do not
urge us to reconsider any of these precedents; rather, they
appear simply to be ignorant of the controlling law.

[2] In short, if the Beltrans’ sentences were to be altered,
there appears to be only one direction in which they could go,
and that is up — by at least five years. Fortunately for the
defendants, in a decision issued one year after they filed their
notices of appeal, the Supreme Court held in a case with simi-
lar facts to this one that an appellate court cannot raise a
defendant’s sentence if the government has not appealed,
even to raise the sentence to the statutorily required minimum.
See Greenlaw v. United States, 128 S. Ct. 2559, 2562 (2008).
Here, the government has for some reason — we would like
to think out of a sense of justice or mercy — exercised its dis-
cretion not to seek on appeal the additional years of incarcera-
tion for which the statute provides. This decision alone has
saved one of the Beltrans, Abraham, from a higher sentence,
despite his counsel’s efforts to the contrary.
[3] The other appeal, Jose’s, is more brazen, and accord-
ingly holds more potential for self-immolation. Jose does not
simply challenge the computation of the mandatory minimum
sentence under § 924(c), but also challenges the district
court’s exercise of its discretion in imposing a thirty-five year
sentence instead of the recommended term of life in prison.
Jose believes the thirty-five year sentence is unreasonably
high as well as procedurally invalid and asks us to vacate it
and remand for resentencing. Although the Supreme Court
has observed that, were we to remand the matter, the district
court would not be permitted to raise Jose’s mandatory mini-
mum sentence sua sponte following the government’s failure
to appeal, see Greenlaw, 128 S.Ct. at 2570 n.8, it is hard to
imagine that were we to vacate the sentence and instruct the
district court to start its reasonableness analysis anew, as Jose
asks, it would ignore the fact that its original sentence was
statutorily impermissible. In other words, were Jose to prevail
on his challenge to the substantive and procedural validity of
his sentence, we cannot imagine that he would receive a more
favorable sentence, although he might very well receive a
higher one. Compare id., with id. at 2576 n.2 (Alito, J., dis-
senting) (discussing Booker remands resulting in higher sen-
[4] The odd posture of Jose’s appeal brings to mind Oscar
Wilde’s oft-noted adage: “When the gods wish to punish us,
they answer our prayers.” Judges, however, are not gods, and,
fortunately for Jose, there is no basis in the law to grant his
prayer for “relief.” The district court’s sentence was procedur-
ally sound under § 3553(c), as it adequately explained the
rationale for its discretionary decision to depart downward
from the recommended life sentence. Nor could the sentence
possibly be unreasonably high as a substantive matter, as it
was lower than legally permitted. Cf. United States v. Valente,
961 F.2d 133, 134 (9th Cir. 1992) (“[D]istrict courts do not
have discretion to depart downward from mandatory mini-
mum sentences imposed by statute.”). Thus, Jose’s appeal
fails on both grounds, thereby sparing him from the adverse
consequences he likely would have suffered had he suc-


We hope that this case will serve as a strong warning for
the defendants’ appellate counsel. Only by the unanticipated
fortuity of Greenlaw, combined in Jose’s case with a failure
to present persuasive arguments on the merits, have counsel
avoided a disposition that would have raised their clients’
terms of incarceration by at least five years and, at least in
Jose’s case, likely far more. Moreover, at the time the Bel-
trans filed their appeal they did not know whether the govern-
ment would file a cross-appeal, cf. Fed. R. App. P.
4(b)(1)(B)(ii); if it had, its success would have been inevitable
and the imposition of higher sentences unavoidable.

[5] “The right to counsel plays a crucial role in the adver-
sarial system embodied in the Sixth Amendment, since access
to counsel’s skill and knowledge is necessary to accord defen-
dants the ‘ample opportunity to meet the case of the prosecu-
tion’ to which they are entitled.” Strickland v. Washington,
466 U.S. 668, 685 (1984) (emphasis added) (quoting Adams
v. United States ex rel. McCann, 317 U.S. 269, 275-76
(1942)). We remind counsel that the professional norms that
establish the constitutional baseline for their effective perfor-
mance indisputably include the duty to research the relevant
case law and to advise a client properly on the consequences
of an appeal. While it is ultimately the client’s right to pursue
an appeal, we seriously question the quality of counsel’s
advice when an appeal with essentially zero potential benefit
and a significant opportunity for harm is pursued in such a
manner as this one has been. We also remind counsel of their
ethical obligations not to present arguments to this court that
are legally frivolous. Fortunately, in this instance, counsel did
no serious harm to their clients, and have escaped this appeal
without the imposition of sanctions. However, in the future,
we caution counsel to be more diligent, for their own sakes
and, more important, for their clients’.
  Selected by tidbits.

 on: February 10, 2009, 08:54:16 AM 
Started by Sydney Carton - Last post by MarkRougemont
 Here is the article on Greer, SC:


 A lesson in loyalty?  I wonder about the source of Machtly's information on Brodhead and how it relates to his comments.

 on: February 09, 2009, 05:19:32 PM 
Started by Sydney Carton - Last post by Sydney Carton
   Judge clears dead Texas man of rape conviction
Associated Press Writer

Posted: Feb. 6, 2009

AUSTIN, Texas — A man who died in prison while serving time for a rape he didn't commit was cleared Friday by a judge who called the state's first posthumous DNA exoneration "the saddest case" he'd ever seen.

State District Judge Charles Baird ordered Timothy Cole's record expunged.

Cole was convicted of raping a Texas Tech University student in Lubbock in 1985 and was sentenced to 25 years in prison. He died in 1999 at age 39 from asthma complications.

DNA tests in 2008 connected the crime to Jerry Wayne Johnson, who is serving life in prison for separate rapes. Johnson testified in court Friday that he was the rapist in Cole's case and asked the victim and Cole's family to forgive him.

"I'm responsible for all this. I'm truly sorry for my pathetic behavior and selfishness. I hope and pray you will forgive me," Johnson said.

The Innocence Project of Texas said Cole's case was the first posthumous DNA exoneration in state history.

"I have his name," Cole's mother, Ruby Cole Session, said after the hearing. "That's what I wanted."

Cole and his relatives for years claimed he was innocent, but no one believed them until evidence from the original rape kit was tested for DNA. Cole had refused to plead guilty before trial in exchange for probation, and while in prison, he refused to admit to the crime when it could have earned him release on parole.

The Innocence Project pressed for a hearing to start the process of clearing Cole's name. Cole's family now wants Gov. Rick Perry to issue a formal pardon.

Michele Mallin, the rape victim in the case who originally identified Cole as her attacker, said she felt guilty that the wrong man went to prison. The Associated Press does not typically identify rape victims but Mallin, now 44, has come forward publicly to help clear Cole's name.

Confronting Johnson after his testimony, Mallin told him she was "going to try to forgive you, but it's going to take a long hard time. ... No woman deserves it. No person deserves what that man got. He could have been a father, he could have been a grandfather right now."

Mallin picked Cole out of a photo lineup that included at least six other pictures. All were standard jail mug shots except for Cole's photo, which was a Polaroid. Mallin later identified Cole in a live lineup and again at trial.

She said Lubbock officials had portrayed Cole as a violent criminal and a thug while investigating her case. The Lubbock County district attorney's office did not participate in the hearing.

Gary Wells, an Iowa State University professor and expert in witness testimony, said Friday that improperly conducted lineups could be manipulated and that witnesses tend to select the person who looks most like the perpetrator.

"If the real perpetrator is not in the lineup, it's a horrible strategy," Wells said.

Pages: 1 2 3 4 5 6 7 [8] 9 10

Advertise Here