innocence blog

A Web log for the Innocence Institute of Point Park University

Wednesday, November 08, 2006

Woman's husband may get out of prison

This article appeared in Washington state's South Bend Tribune on October 30, 2006:

South Bend woman's husband may get out of prison after witness admits lying

MARTI GOODLAD HELINE
Tribune Staff Writer

Rose Marie Kaseweter has been waiting for 10 years.Waiting, hoping and praying that her husband will be released from prison and come home to her and their daughter in South Bend.But her longest wait may be from now to Thanksgiving.

That is when the Bremen High School teacher expects to learn if a judge may free her husband based on new evidence in his case. The hearing was last week in Vancouver, Wash.

The judge heard testimony from a man who said he lied to save himself from a long prison sentence when he claimed Bob Kaseweter was behind an attempted abduction and shooting in 1992.

Bob Kaseweter has always said he was not involved in the 1992 incident for which he was convicted. He was accused of conspiring to kidnap a woman and a man, who was wounded in the hand as the couple drove away.

"It went wonderfully," Rose Marie Kaseweter said in a telephone interview of the hearing she'd been waiting for since 2003."

He said he wanted to clear his conscience," she said of James Shirk, the key witness.

She said Shirk told law students working on the case from the University of Washington's Innocence Project that he did not realize until 2003 he had put an innocent person behind bars because of his brother's lies.

It was the work of law professor and Innocence Project Director Jacqueline McMurtrie and her students that took Bob Kaseweter's case this far, Rose Marie Kaseweter said.

For the hearing, James Shirk was flown in with his wife from Twin Falls, Idaho. He admitted he had implicated Bob Kaseweter to avoid a 25-year-sentence, according to Rose Marie Kaseweter. Shirk served only nine months in jail.Shirk's brother, Donovan, is still serving a prison sentence in Washington for his role in the 1992 crimes.

Donovan Shirk, who worked for Kaseweter in a Vancouver auto parts store, at first implicated his boss, but since has said from prison that Kaseweter was not involved in the case, Rose Marie said.She and 11-year-old Mikhala were on their 26th trip out west since their husband and father began his prison term in June 1996, after an unsuccessful appeal.

Rose Marie and Bob met in the summer of 1992 on a mission trip to Mexico and continued their romance long distance. After Bob was arrested, tried and convicted in 1993, the couple married while he was free on bond during the appeal.

Last week was the first time Mikhala could remember that she had ever seen her father with a clean-shaven face, according to her mother, and somewhere other than in a prison.

Going to court and seeing her father without "face fuzz," as she usually does during semi-annual trips to Washington at Christmas vacation and in July, "made a huge impression," Rose Marie said.

"The week has been exhausting but good," Rose Marie said from Portland, Ore., where she and her daughter stayed with one of Bob's brothers. Mother and daughter were to return Saturday to South Bend.

After hearing the testimony of James Shirk, his wife and two other character witnesses, the judge asked questions of her husband's public defender and McMurtrie, and even the prosecutor, Rose Marie said.

She said the district attorney told the judge that if the conviction is overturned, the prosecution has virtually no case left."I was thrilled to hear it," Rose Marie said.

The judge in Clark County took the matter under advisement for 30 days.

If the judge orders a new trial, her husband's lawyers will seek his immediate release if the district attorney does not plan to try it again, Rose Marie said.

She hopes both things happen soon. Otherwise, her husband must remain in prison four more years.After the Shirks testified, Rose Marie said that she thanked James' wife, "for being the good woman behind the man." Rose Marie said she shook James' hand.

"I told him we've forgiven him and had no ill feelings for him."

Reflecting two days later, she said. "I had to do it. It was cleansing. I had say it when I saw him. It was a powerful, emotional day."

Rose Marie and her daughter were bolstered at the hearing with the attendance of her brothers-in-law, a sister-in-law, two pastors and one of the pastor's wives.

Plus there were law students McMurtrie brought from the Innocence Project.

Rose Marie said she appreciates all the prayers and support her family has received through their churches and from friends and colleagues.

Staff writer Marti Goodlad Heline:mheline@sbtinfo.com(574) 235-6327

Comal to start long-delayed rape response program

This article appeared in the San Antonio Express-News on October 26, 2006:

Comal to start long-delayed rape response program

Roger CroteauExpress-News Staff Writer

NEW BRAUNFELS — After years of delays, the final contracts and protocols have been signed to begin a Sexual Assault Response Team program at McKenna Memorial Hospital.
The breakthrough came Thursday after county officials and members of the nonprofit board pushing for the program expressed frustration at the slow pace of progress and prepared to run the program out of the Comal County Health Department instead of the hospital.

Until now, rape victims in Comal County have been sent to San Antonio to have the sexual assault examination done. The delay sometimes led to the loss of crucial evidence, officials said.
Sexual assault victims are not supposed to disrobe, urinate, bathe or smoke before the exam, which gathers evidence to help prosecute the case. And often victims simply did not have transportation or want to drive 45 miles, which left some rape cases without enough evidence to go to trial.

Nearby Seguin and San Marcos have had the programs for years, and supporters of starting the program in Comal County said the absence of a local program was an inexcusable hardship on rape victims.

Members of the team said the Sexual Assault Nurse Examiners were trained months ago, the equipment needed for the program was purchased, the room at the hospital made available and everything was ready to go. But they blamed McKenna Hospital officials for neglecting to work with them on the protocols and memorandum of understanding needed to get the program up and running.

Hospital officials committed to getting the program started in November 2004, predicting it would be a reality by spring 2005. But roadblocks, including insurance concerns and finding a room at the hospital that could be dedicated to the program, caused some of the delay, board members said.

McKenna did not send a representative to several meetings in a row of the board trying to set up the program, leading to more months of delays, they said.

"They quit going to our board meetings months ago," said board member Pat Keyes. "So we would be on hold and on hold and waiting and waiting. It's just been dragging their feet and there is no excuse for that."

County Commissioner Jan Kennady complained that hospital officials "haven't done a thing," and Commissioner Greg Parker said hospital officials "say all the right things at meetings, but then nothing happens."

County commissioners considered a motion to move forward without the hospital Thursday, but then voted 3-2 to give one more week to iron out a deal with the hospital.

Within an hour, Patty Toney, McKenna Hospital vice president of nursing, met with county officials and board members and came out with the contracts signed and the program ready to start.

"I'm very excited," Toney said. "It's a great moment. There was just a lot of work to be done on both sides. We're glad it's done and signed and we have a program."

Toney said there are a few "housekeeping duties" that should be ironed out by next Friday and then they will do a mock run-through to see if there are any other issues to work out before offering the exams at McKenna Hospital.

Again, DNA frees a convict

This article appeared in the Dallas Morning News on October 30, 2006:

Again, DNA frees a convict
Activists demand to know why Dallas County near top in exonerations



By ROBERT THARP / The Dallas Morning News

DNA testing is unlocking prison doors for another wrongfully convicted Dallas man on Tuesday, bringing to 10 the number of felony exonerations in the county after such tests in the last five years.

After maintaining his innocence for more than 25 years, Larry Fuller, 58, is expected to be released from custody without any opposition from prosecutors after an afternoon hearing. He was convicted of aggravated rape in 1981 and sentenced to 50 years in prison based on a sexual assault victim's identification of him.

National leaders of the DNA exoneration movement are traveling to Dallas for the hearing and say they will demand that the county immediately investigate why the string of wrongful convictions occurred and ask area police departments to change their investigative techniques.
Lawyer Barry Scheck, co-director of the Innocence Project, compared the series of exonerations in Dallas County to an airport that has had multiple plane crashes. The county's rate of exonerations is among the highest nationwide, he said.

"When you've got 10 plane crashes in the last five years, you'd get an investigation," he said.
Mr. Fuller is the most recent man to be freed after petitioning to have microscopic physical evidence from his case tested using DNA analysis techniques that were not available at the time of his trial.

All but one of the 10 wrongful convictions took place in the 1980s, and most hinged on eyewitness testimony.

The case

Mr. Fuller, a Vietnam veteran, was 32 in April 1981 when he was arrested on a charge of sexually assaulting a 37-year-old woman inside her Oak Lawn apartment.

After his return from Vietnam, where he served as a helicopter gunner and was shot down several times, he had been convicted of robbery in 1972 and served three years in prison.
After his release from prison, Mr. Fuller attended Dallas Baptist University and Dallas Art Institute and was living less than a mile away with his girlfriend and her two young children when he was arrested in the rape.

The victim told police that she woke up before dawn with her attacker on top of her, threatening her with a butcher knife. When she tried to resist, the man cut her on the hand, neck and back.

The woman initially told police that she could not provide a detailed description of the man beyond a vague idea of his skin tone, race and height. The attack occurred about an hour before sunrise, and the only light in the room came from a window and the dial from a small clock radio.
Mr. Scheck said Dallas police investigators used flawed procedures when they asked the woman to examine a photo lineup to try to identify the attacker. About a week after the attack, a detective showed the woman photos of six men, including an image of Mr. Fuller.

The woman told police that Mr. Fuller's photo "looks a lot like the guy," but she was not positive. At that point, a detective wrote in a report that the case should be "suspended" unless new information surfaced, according to court files.

A detective returned a few days later with another photo lineup that included a more recent photo of Mr. Fuller with a beard. The woman identified Mr. Fuller's image but said she did not think her attacker had facial hair.

Mr. Scheck said the use of a second lineup after the victim failed to make a positive identification the first time was irresponsible.

"He was a victim of unreliable procedures," he said. "There may be other lessons from these cases, but there's one we already know about. We already know mistaken eyewitness identification is a problem."

Dallas police declined to comment specifically about Mr. Fuller's case. Assistant Chief Ron Waldrop, a longtime supervisor over major investigations, said that in general, a suspect's photo would not show up in a second lineup unless the person was at least tentatively identified in the first lineup.

"If we show someone a lineup and they do not make an ID, do we show them a second one with the same person? No. The person might see a common picture in two different lineups. I just wouldn't do it."

The trial

During Mr. Fuller's trial, the victim testified that she was certain he was the man who raped her.
In hours of questioning, a forensic scientist provided complicated and confusing testimony that ultimately could not rule out any male as a possible source of the semen recovered by investigators. And in closing arguments, according to the writ of habeas corpus seeking Mr. Fuller's immediate release, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime.

Jurors deliberated 35 minutes before returning a guilty verdict. In the punishment phase of the trial, Mr. Fuller maintained his innocence and expressed disbelief that he had been convicted.
"I come here believing in the word of justice, justice with eyes, not justice that would be blind," he testified. "I felt that I would receive a fair trial, or I felt that justice would be done; and I felt that me being innocent, it could be proven. I just felt beyond all shadows of any doubt, I could be excluded from the matter."

A prosecutor then used Mr. Fuller's refusal to admit his guilt as proof that he could not be rehabilitated. "The first step to being rehabilitated is to admit that you have made a mistake and that you need help," the prosecutor argued. "He has not done that. He will not do that, apparently."

Former District Judge Marvin Blackburn Jr. sentenced Mr. Fuller to 50 years in prison.
Mr. Fuller maintained his innocence throughout his incarceration and after he was paroled in 1999. His parole was revoked and he was sent back to prison after a routine urinalysis found traces of drugs in his system.

The numbers

DNA exonerations have increased in the last five years as a result of a state law that gives Texas convicts the ability to petition the courts for DNA analysis.

Although there is no governmental agency that keeps an official compilation of exoneration cases, the Innocence Project has reported at least 185 nationwide.

Mr. Scheck said an Innocence Project analysis, aided by a Dallas Morning News story that identified some cases that were not on the Innocence Project's lists, places Dallas County among jurisdictions with the highest number of DNA exonerations.

Comparing lists is difficult because of reporting variations. But Mr. Scheck said the number of wrongful convictions in Dallas County is troubling.

"This is as high as any jurisdiction in the United States," he said.

Dallas County Assistant District Attorney John Rolater said the recent exonerations are the result of practices that are no longer in use.

"I don't think 10 is really a cause for concern," he said. "These are the kinds of cases that nowadays we do DNA testing during the investigation stage. Just because someone says 'That's the guy who did it,' the investigation doesn't stop. And if the DNA doesn't match the suspect, it's going to stop."

Prosecutors also instruct police agencies to work harder on cases that rely on eyewitness accounts and lack physical evidence, Mr. Rolater said. "We expect, and the agencies know, that we expect them to go back and work the case as hard as they can," he said.

But even today, many cases will boil down to an eyewitness account, and those must still be prosecuted, he said.

"Sometimes that's what we have," he said. "Justice calls for us to go out and prosecute it even when we have one person's word against another's."

Chief Waldrop agreed that police investigations are less reliant today on eyewitness testimony.
"You have a lot of forensic evidence today that you didn't have then," he said. "We don't want to base a case on an eyewitness ID. We want other evidence that connects a person. Sometimes that's not possible."

He said the Police Department's aim is to put criminals, not innocent people, behind bars.

"We want them [eyewitnesses] to be objective and accurate and don't want to do anything that would skew the process," Chief Waldrop said. "Everything we do is geared toward that."

Staff writer Jason Trahan contributed to this report.
E-mail rtharp@dallasnews.com

CLEARED BY DNA IN DALLAS COUNTY
The Dallas County district attorney's office receives about 60 requests a year from convicts seeking a DNA test to challenge their convictions. In many cases, either no DNA evidence was collected or the evidence cannot be found to test. Still, DNA testing has freed at least nine Dallas County men in the last five years, including:

David Shawn Pope: Sentenced to 45 years in prison in the 1985 rape of a Garland woman at knifepoint. Pardoned in 2001 after DNA tests exonerated him.

Wiley Fountain: Sentenced to 40 years in prison in the rape of a pregnant woman in 1986. Exonerated through DNA testing and released in 2002.

Keith E. Turner: Sentenced to 20 years in prison in the 1982 rape of a co-worker. Exonerated by a DNA analysis and pardoned in December 2005.

Entre Nax Karage: Sentenced to seven years in prison in the 1994 murder of his girlfriend. Pardoned in December 2005 after DNA analysis pointed to a man who had been previously convicted of a similar crime.

Eugene Ivory Henton: Sentenced to four years in prison in a 1984 sexual assault. Exonerated through DNA testing in 2005.

Donald Good: Sentenced to life in prison in the 1983 sexual assault of an Irving woman. He was paroled in 1993 as a sex offender, but his parole was revoked in 2002 and his life sentence was reinstated because of a minor property crime. He was exonerated by DNA analysis in 2004, but he's still serving a five-year sentence for the property crime.

Billy Wayne Miller: Served 22 years of a life sentence before a DNA test cleared him of the 1983 sexual assault of a Dallas woman. Mr. Miller was released in May.

Billy James Smith: Sentenced to life in prison in an aggravated sexual assault. He was released from custody this month after a DNA test cleared him.

Greg Wallis: Sentenced to 50 years in prison in a case where an Irving woman identified him as the man who raped and assaulted her in 1988. He was released after being exonerated by a DNA test in March.

Richland sheriff's DNA lab wins national honor

This article appeared in South Carolina's The State on November 2, 2006:

Richland sheriff's DNA lab wins national honor

By RICK BRUNDRETT
rbrundrett@thestate.com

By early December of last year, Richland County Sheriff’s detectives suspected they were dealing with a serial rapist.

Three women reported being raped within a three-month period on Hilltop Road, a secluded dirt road in the county.

In each case, a man picked up a woman walking alone on Farrow Road, drove her to Hilltop Road, raped her and then drove off, leaving her to find her way home, investigators said.

What linked Andrew Hingleton to the crimes was his DNA, detectives said. The department’s DNA laboratory matched crime-scene DNA to Hingleton, 41, who was charged in January with the three assaults and a fourth rape.

The lab, which opened in November 2004, was recognized Wednesday with a national certification that only two other local police agencies in the country — in Florida and Ohio — have obtained.

“We’re solving cases that we never could have solved two, three years ago,” Sheriff Leon Lott said. “It’s really making our job more effective and a lot more easier for our officers on the street.”

The certification was awarded by the American Society of Crime Laboratory Directors and required compliance with more than 300 standards.

The six-member forensics team in the department’s DNA lab works quietly behind the scenes to crack cases that otherwise couldn’t be solved.

They will tell you their work isn’t as glamorous as what’s portrayed on television.
Demi Garvin, the lab’s director, said her lab is one of only a few in the nation that analyzes samples from violent and nonviolent crimes.

“We’re probably doing about 500 (cases) per year — 80 percent are burglaries,” said Gray Amick, the lab’s DNA technical leader.

Lab analyst John Barron said suspects from as far away as Texas and Florida have been charged with crimes in Richland County based on DNA samples analyzed by the lab.

The county’s DNA profile database is hooked to a statewide database maintained by the State Law Enforcement Division, which regularly sends its information to the FBI’s national database.
Lott said his lab can obtain DNA profiles “within 24 hours” compared to SLED’s lab, which can take months to process samples because of larger caseloads.

So far, the Richland County lab has a “hit” or match rate of about 45 percent, Lott said.

Reach Brundrett at (803) 771-8484.

Former Pa. death row inmate freed from prison

This article appeared on CentreDaily.com on October 18, 2006:

Former Pa. death row inmate freed from prison

Associated Press

ALLENTOWN, Pa. - A former death row inmate accused of setting a house fire that killed his three sons was freed from prison after entering a plea Wednesday to three counts of third-degree murder.

Dennis Counterman, 46, who spent a decade on death row before his conviction was overturned by a Lehigh County judge in August 2001, entered an Alford plea, in which he did not admit wrongdoing but acknowledged that prosecutors would likely win conviction at trial.

Judge Lawrence J. Brenner sentenced Counterman to nine to 18 years in prison, plus five years of probation. Because he has already served more than the maximum sentence, Counterman was immediately released, and walked out of the courthouse with his friends and family.

Brenner had earlier ruled that prosecutors withheld key information from Counterman's lawyers during his 1990 trial. Prosecutors continued to insist that Counterman started the fire on July 25, 1988, in his Allentown home that killed Christopher, 6, James, 4, and 10-week-old Scott.




A Crisis at Tulsa's Crime Lab

This article appeared on the website of KOTV in Oklahoma on November 1, 2006:

A Crisis At Tulsa's Crime Lab

The Tulsa Police crime lab is in a position it's never been in before, with a 6-month backlog for DNA results. That means even violent cases, like rape and murder, are in limbo while victims wait for answers.

News on 6 crime reporter Lori Fullbright says Tulsa's only DNA analyst predicted to us 18 months ago that this crisis was coming, that's because, even in a city with more crime than Oklahoma City, they have five people working on DNA and Tulsa has one.

Walter and Grace Brown [pictured] were murdered in their Tulsa home in April. Police had no suspects until a series of violent attacks targeted older people.

The clerk of J&J was beaten and robbed, the owner of Grandpa's furniture, beaten and robbed. Then, 68 year old Alonzo Tibbs was beaten and killed in his home on North Hartford.

Tulsa Police arrested Billy Marshall, a convicted criminal now charged with murder and robbery. It's only logical, detectives would wonder whether Marshall was connected to the Brown's murders, so they sent DNA to the lab in early summer and waited, and are still waiting, even though it's now November.

Tulsa Police Sgt. Mike Huff: "it doesn't give much hope to a family that's hanging by every piece of information."

There are close to 20 murder cases on hold, awaiting DNA results as well as rape cases and other violent crimes. That pushes property crimes like burglaries to the bottom of the pile. "Technology is wonderful, but, you need to have people to feed the technology."

Dr. Valerie Fuller is Tulsa's only DNA analyst and even though she is doing four times as many DNA cases as the national average, the caseload is just too great.

She told the News on 6, 18 months ago, the city must hire more people or the lab would be in a crisis. Now, it's here.

Part of the backlog is due to the serial rapist investigation. The lab can do 36 DNA samples a month. 177 men were eliminated as serial rape suspects, which put the lab nearly five months behind. The lab does work for Tulsa Police, the Tulsa County DA, the public defender's office and has had to stop assisting other agencies recently, like Broken Arrow and Sand Springs.
Tulsa does now have two DNA analysts in training; one will be ready to begin hands-on testing in January, the other, by summer. But Tulsa will still be behind other comparable cities in the number of active DNA analysts.

Could they send these DNA tests to labs elsewhere? Officials say it costs Tulsa less than $100 per sample to test here. It would cost a $1,000 a sample to send out, plus, the expense of flying that person to Tulsa to testify.

The lab says DNA in the Brown murders should be back in a few weeks.

New crime lab needed

This article appeared in the Rochester Democrat & Chromicle on October 30, 2006:

New crime lab needed

Backlogs on DNA testing slow efforts toward justice

Prosecuting a case that puts an innocent person behind bars is one of the great fears a district attorney faces. So Monroe County District Attorney Mike Green is right to advocate for an expanded crime lab.

A county task force on public safety laboratory needs is expected to release a report soon. The state, federal and county governments should be ready with resources for a modern lab.

The county's current public safety lab was built in 1962. It has long outgrown its cramped office space, which lacks proper temperature controls for sensitive scientific work. There is currently a 1,200-case backlog for firearms work and a 600-case backlog for DNA testing.

That makes it difficult to evaluate DNA evidence for all of the cases that are about to go to trial, let alone review DNA evidence from old cases that may reveal wrongful convictions. That's worrisome considering the case of Jeffrey Deskovic of Westchester County, who was recently released from prison after DNA testing evidence revealed he was innocent of a murder for which he had been convicted. He lost 16 years of his life. How many other cases are there like his?

If the state's DNA database is expanded, as many legislators demand, there will be even greater need for a modern lab.

Scientific advances can make the criminal justice system much fairer and more efficient if counties such as Monroe receive the resources to make use of them. Greater use of DNA evidence, for example, can help relieve the burdened court system. If a criminal defendant knows a jury will see DNA evidence that the odds are one in a quintillion that someone else committed the crime, he will be more likely to plead guilty. Innocent people will be spared costly and stressful trials.

For the sake of justice in Monroe County, a new crime lab must be a priority.

Statehouse power at stake in '06

This article appeared on Stateline.org on October 30, 2006:

Statehouse power at stake in '06
By Eric Kelderman
Stateline.org Staff Writer

The fight for control of Congress is dominating the Nov. 7 election, but a high-priced battle for control of the nation’s statehouses also is being waged and promises to be a nail-biter in at least 14 states.State legislatures – much like the American public – are almost evenly divided politically. A shift of five seats or fewer could cost Republicans their majority in one or both chambers in seven states -- Indiana, Iowa, Michigan, Minnesota, Nevada, Tennessee and Wisconsin. Democrats also are clinging to control by a handful of seats in seven states -- Colorado, Kentucky, Maine, Montana, North Carolina, Oklahoma and Oregon.The Iowa Senate and the Montana House are currently deadlocked, so the flip of just one seat there would decide political control.

Overall, 6,119 of the nation’s 7,382 seats in state legislatures will be on the ballot in 46 states. Nearly 37 percent of those lawmakers are running unopposed, but the razor-thin margins in so many state legislatures raise the competitive stakes on Election Day.The outcome will determine which party sets the policy agenda in state legislatures for the next two years and which has the upper hand heading toward all-important redistricting of legislative and congressional districts after the 2010 census – if not before. But the outcome will be telling in other ways, too.

Election Day will show whether national discontent with the Iraq war and the GOP-controlled Congress and White House trickles down to local races, and if so, whether it tars just Republicans -- or incumbents more generally. It will determine whether Democrats can build on their 2004 victories in statehouses and regain ground the party has lost to Republicans between 1994 and 2002.

It also will test efforts by rich donors, in states such as Colorado, Michigan and West Virginia, to single-handedly shape control of their home-state legislatures.

Currently, the GOP controls both chambers in 20 state legislatures, compared to Democratic majorities in both chambers in 19 states. Ten statehouses are split between the parties (Nebraska has the nation's only nonpartisan, unicameral Legislature). Out of 7,382 state legislative seats, Democrats now have a tiny, 21-member majority.

Among the most competitive states is Iowa, where Democratic wins two years ago tied the state Senate, and left the GOP clinging to a 51-49 majority in the House. Democrats also gained seats in 2004 to tie the Montana House and won a 27-23 majority in the state Senate.

Also closely watched this year is Colorado, where the governor’s seat also is open. Surprise victories in 2004 gave Democrats majorities in both legislative chambers for the first time in more than four decades. Political analysts look to Colorado as a bellwether of Democrats' future success in the West.

Republicans had their own surprise victory in 2004, winning control of the Georgia Legislature and sparking a flurry of Democrats to switch parties in the Peach State.

But Republicans will have to overcome several built-in disadvantages to make gains at the statehouse level in 2006. The first is history. Only once since 1938 has the president's party won state legislative seats in a mid-term election. That was in 2002, when the nation rallied behind President Bush and Republicans in the wake of terrorist attacks on New York and the Pentagon. In that year, Republicans finally gained a nationwide majority of seats in state legislatures.

Another problem is that many more Democratic state legislators than Republican lawmakers are running unopposed, according to data from the National Conference of State Legislatures. Democratic state House candidates are unchallenged in nearly 64 percent of races across the country, compared to a little more than 36 percent of Republicans, NCSL elections expert Tim Storey said.

More than 56 percent of Democratic state Senate candidates have no challenger for the Nov. 7 election, compared to nearly 44 percent of Republicans, NCSL found.

On top of that, the public's growing disdain for the war in Iraq, congressional ethics and sex scandals and federal inaction on illegal immigration and other issues are overshadowing the entire political landscape, said NCSL Executive Director William Pound.

"There is, I think, a general sense of dissatisfaction ... that the country isn't going the right way, and in many places it's a vote against the Republicans -- whoever's in control. It may affect the Democrats that way in places where they're in control," Pound said.

Pound said several factors could limit Democratic gains, including sophisticated redistricting after the 2000 elections that employed computer technology to ensure that districts remained safe for incumbents.

State legislative races in 2006 have attracted unprecedented amounts of money from national party groups, business and labor interests and even wealthy individuals who aim to tilt the political playing field, Pound said.

The largest portions of money flowing into statehouse races are coming from the Democratic Legislative Campaign Committee and Republican State Leadership Committee. Both are in the top 10 of all so-called 527s -- nonprofit political advocacy groups that can use unlimited contributions for issue advertising or get-out-the-vote efforts but that are prohibited from directly advocating for the election or defeat of a specific federal candidate.

The Republican State Leadership Committee (RSLC) has spent nearly $14 million in this election cycle, including expenditures supporting lieutenant governor and attorney general candidates, according to the nonpartisan Center for Responsive Politics.
The Democratic Legislative Campaign Committee (DLCC), which backs only statehouse candidates, has spent more than $6 million, the Center reported.

Both groups are funded primarily by corporate or labor interests and have surpassed their spending totals for the 2004 elections, when roughly the same percentage of lawmakers was up for election.

While similar groups have sprung up in key states across the country, a growing number are backed by wealthy individuals specifically to help state legislative committees. In Michigan, for example, Kalamazoo billionaire Jon Stryker has spent a record $4.7 million to help Democrats try to erase their four-seat minority in both chambers of the state Legislature.

In Colorado, Stryker's sister was a key founder of the Coalition for A Better Colorado, which spent $574,368 and is credited with helping the Democrats gain control of the state Legislature in 2004. Since then, more than a dozen dueling 527s have formed to influence state-level races in the Rocky Mountain State, including the Trailhead Group, which is backed primarily by beer magnate Pete Coors and has spent more than $1.5 million to support Republican state legislative candidates and the GOP gubernatorial contender, U.S. Rep. Bob Beauprez.

In West Virginia, coal magnate Don Blankenship has spent at least $700,000 in a long-shot bid to give Republicans a majority in the state Legislature, where they are heavily outnumbered. Because West Virginia caps the amount individuals can give to 527s, Blankenship has simply financed his own political advertising blitz.

The amount of campaign dollars invested in state legislative races has grown as states find themselves at the forefront of a wide range of policy innovations and regulation on the environment, international trade and even illegal immigration.

In addition, states are handing out larger amounts of money as their budgets continue to rebound from the recession earlier this decade and as the federal government provides greater flexibility for spending grants given to the states for programs such as Medicaid.

But the big political prize for this year's elections may not pay off until after the 2010 U.S. Census, when lawmakers will redraw the boundaries of their state legislative and congressional districts.

Although the U.S. Supreme Court approved a mid-decade redistricting plan by Texas Republicans, no partisan groups have stepped forward since that ruling to test early redistricting possibilities in other states.

Convicted Rapist Supports Patrick

This article appeared in Massachusetts' Sentinel & Surprise on October 30, 2006:

Convicted rapist supports Patrick

Editorial / Opinion Sentinel & Enterprise

My name is Ben LaGuer. I am one of the men at the center of Lt. Governor Kerry Healey's political campaign ads attacking Deval Patrick. The truth about my care of who I am cannot be found anywhere in Kerry Healey's disingenuous campaign ads. In 1983, after just getting out of the Army and with no criminal record, I was charges and subsequently wrongly convicted of rape and sentenced to life in prison. I was initially offered a two-year sentence under a plea bargain; however, I could not plead guilty to a horrendous crime that I did not commit. During the past 23 years in prison, I have maintained my innocence which has only kept me in jail longer. However, I continue to have faith in our judicial system and pray that the truth will some day prevail. In a short time, The Supreme Judicial Court will hear my case.

For years the Worcester District Attorney John J. Conte's office has waged a scurrilous prosecution against me. Due process of law required that the prosecutor timely disclose evidence in his possession that could materially aid in my defense. The prosecutor withheld for almost two decades fingerprints lifted from crucial crime scene evidence- fingerprints that excluded me. In addition, the widely held view that the DNA test "further linked LaGuer to the rape" is not accurate. Personal articles taken from my bedroom were sent for DNA testing, but were misrepresented to lab technicians as being taken from the crime scene. A group of independent forensic experts, including prominent scientists from Harvard and John Jay College of Criminal Justice, has concluded that the DNA testing in my case has no forensic value. There are numerous other irregularities that challenge the integrity of the prosecutor's case against me, all of which should be of concern to any fair-minded individual- especially to someone holding public office.

As the Kerry Healey campaign continues to run smear and fear ads featuring me, I am hopeful that the people of Massachusetts will choose a Governor based on real issues that affect their daily lives. I only with that Republicans and Democrats could come together and act for the greater and common good of all people.

Ben LaGuer

Judge favors DNA testing for lifer

This article appeared in the Patriot Ledger on October 31, 2006:

Judge favors DNA testing for lifer;
Man must prove tests ‘could raise serious doubts’

By Sue Reinert
The Patriot Ledger

A mildly retarded man who confessed to a torture murder in Plymouth, only to be acquitted, now has a second chance to prove he did not rape and murder an elderly woman in Lakeville.

A federal judge has raised the possibility of DNA testing that could free Robert Wade, 57, from a sentence of life without parole for first-degree murder.

U.S. District Court Judge Nancy Gertner has ruled that Wade might be entitled to have the elderly woman’s clothing and bed sheets tested for DNA if he can show the tests ‘‘could raise serious doubts about the original verdict.’’

‘‘In accordance with the State’s interest in doing justice, exculpatory DNA evidence may allow the state to both free the innocent and convict the guilty,’’ Gertner wrote.

It is the first time a judge in New England has said that prisoners have a constitutional right to the sophisticated tests after conviction.

The ruling did not order DNA tests on evidence in Wade’s case. He must first show that the tests could exonerate him, that he didn’t wait too long to appeal, and meet other standards, Gertner said.Although DNA evidence has exonerated 183 people nationwide, Gertner’s decision is the first to give prisoners the right to DNA testing after conviction if it might prove them innocent.Wade’s appeal lawyer, Lenox attorney Janet H. Pumphrey, said she has sought DNA testing for five years.

‘‘It could exonerate him,’’ she said.Blood tests used in Wade’s conviction were ‘‘elementary,’’ she said.Pumphrey said the Innocence Project, a group of lawyers and law students based in New York city, who have won freedom for prisoners across the country on the basis of DNA tests, helped her in Wade’s appeal.

She called Gertner’s ruling ‘‘an important decision both in the area of civil rights litigation and in particular, post-conviction DNA testing.’’Wade, who lived in Lakeville, confessed in 1986 to killing a disabled 23-year-old Plymouth man, Paul Rober Jr. Wade and Kurt Kegler beat and tortured Rober for six hours before they strangled him with rope provided by a Carver woman, prosecutors said.

A Plymouth Superior Court judge threw out Wade’s confession, ruling it was not voluntary because he is mildly retarded and was drunk when police questioned him. A jury acquitted Wade.

The second murder accusation came in 1993. Police arrested Wade for raping Johanna Francescon, 84, the mother of the man who employed Wade on a Lakeville pig farm. Wade was charged with murder after Francescon, who had advanced Alzheimer’s disease, died of pneumonia in a hospital after the attack.

Wade denied raping the elderly woman, although she was found in his cabin on the farm with fractures and abrasions.

Tests on blood and semen found on the victim’s clothes suggested that it might have come from a second person as well as Wade, Gertner wrote in her decision.

Wade’s defense attorney at his trial did not seek DNA tests, which were not widely used at the time. Instead, the lawyer argued that Francescon consented to have sex with Wade. The jury convicted him of murder as a result of the rape.

Lower state courts and the state’s Supreme Judicial Court have denied Wade’s appeals for DNA testing. Wade filed an appeal in federal court in 2004.

Terence Burke, spokesman for Attorney General Thomas Reilly, who opposed DNA tests for Wade, said Reilly’s office is reviewing the ruling.Bridget Norton Middleton, spokeswoman for Plymouth County District Attorney Timothy Cruz, referred questions to Reilly’s office.

Relatives of Paul Rober Jr. were angry when Wade’s first conviction was overturned. Rober’s father, Paul Rober Sr., who moved his family to Braintree after the murder, co-founded the Boston chapter of Parents of Murdered Children.The elder Rober died of cancer in 2000. His son, James Rober of Brockton, took up the campaign for murder victims.

Sue Reinert may be reached at sreinert@ledger.com
Copyright 2006 The Patriot Ledger

Death penalty defines contest

This article appeared in the Baltimore Sun on November 1, 2006:

Death penalty defines contest
Baltimore County prosecutor rivals split on selectivity

By Jennifer McMenamin
sun reporter


As the two men campaigning to be Baltimore County's top prosecutor drop in on retirement communities, candidate forums and political club gatherings, the questioning inevitably turns to one topic: the death penalty.

In a county that has drawn national notice for how many convicted killers it has sent to death row, voters will choose next week between a veteran prosecutor who says he will continue his boss's policy of seeking a death sentence in virtually every eligible case and a career litigator who says he will evaluate each case before deciding what sentence to pursue.

The issue presents a stark difference between Republican Stephen Bailey, the handpicked successor of longtime State's Attorney Sandra A. O'Connor, and his Democratic opponent, Scott D. Shellenberger, a former county prosecutor who has spent the past 13 years with the law firm of Peter G. Angelos."

Like it or not, Sandy O'Connor has had this legacy," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "If you take her time as state's attorney and what she did with the death penalty out of the picture, that takes out more than half of the [death row] cases. It's a huge chunk of Maryland's history of the death penalty."

O'Connor is retiring this year at the end of her eighth term -- and her 32nd year -- as the county's top prosecutor. This year marks the first time there has been a contested election for the job since 1982, when a Democratic challenger lost to O'Connor, receiving only 32 percent of the vote.

Her stated policy of seeking death sentences in all eligible murder cases -- with the exception of those that would depend on a co-defendant's testimony and those in which the victim's family objects -- has attracted national attention and death penalty opponents' criticism.

In 2002, researchers from Columbia, Rutgers and New York universities ranked Baltimore County second among large counties nationwide in the rate at which convicted murderers are sentenced to death. A year later, a state-funded University of Maryland study found racial and geographic disparities in the state's use of capital punishment, including the fact that Baltimore County prosecutors sought death sentences more often than any others in the state.

Bailey and Shellenberger describe themselves as death penalty supporters, and both have prosecuted capital cases. They also both characterized the task of standing before a jury and asking 12 men and women to sentence someone to death as an "awesome responsibility."

Bailey, 44, of Towson, has spent his entire 20-year career in the county prosecutor's office. He describes capital punishment as "something I wrestled with."

In 1988, within months of becoming a prosecutor, Bailey served as second chair in his first death penalty case -- a case that also happened to be his first jury trial. Kenneth L. Collins was convicted and sentenced to death for the 1986 robbery and shooting of a banker from Towson. The sentence was later overturned.

After the trial, Bailey said he asked O'Connor not to assign him to any more capital cases.

"It wasn't that I didn't think it was an appropriate sentence in that case, because I absolutely did," Bailey said in an interview. "But I had never been thrust into that situation before. People think they know what they believe about the death penalty until they're called upon to participate in a trial like that or serve as a juror. It takes it out of the realm of theory."

In 1993 or 1994, Bailey said, after several years of prosecuting serious, noncapital crimes, watching victims' families struggle with the criminal justice system and "feeling like they hadn't received a full measure of justice with a life sentence," he told his boss that he would again handle capital cases.If elected, Bailey says, he would continue O'Connor's policy.

Under Maryland law, prosecutors have discretion in seeking punishments but generally can pursue a death sentence for a convicted killer -- not an accomplice -- in cases with a so-called aggravating factor, such as the killing of a police officer or multiple victims, a killing by a prisoner, or a killing committed during a robbery, kidnapping or rape.

Bailey, now one of O'Connor's two deputies, has repeatedly defended her practice as the best way to ensure the process is not discriminatory. He stresses that prosecutors' decision to file notice of intent to seek a death sentence means only that death will be one option for the judge or jurors to consider when deciding a defendant's sentence. And he has often criticized his opponent's promise to abandon O'Connor's approach and evaluate cases individually.

"That sounds like a pretty good idea," Bailey told a gathering of voters at a Republican club event. "But that's like saying, 'I'm going to put my pants on before I go to work in the morning.' The question is, what standard will you use? Saying you're going to decide on a case-by-case basis is like having no standard at all.

"Shellenberger, 47, of Parkville spent 11 years in the county prosecutor's office before joining Angelos' firm to do criminal defense work and plaintiffs' cases. He says he has supported capital punishment for as long as he can recall.

"I can specifically remember, at the age of 22, as a law clerk in the state's attorney's office, being asked if I wanted to work on a death penalty case, and I had absolutely no hesitation," he said.

On the campaign trail and in his mailings, Shellenberger frequently promotes his role in prosecuting Steven H. Oken, who was convicted of sexually assaulting and killing three young women in 1987. The mother of one victim has campaigned for him. After years of appeals, Oken was put to death in 2003.

Shellenberger, who has prosecuted four men in capital cases, says a state's attorney should evaluate each eligible murder case on its merits before deciding whether to seek a death sentence.

"Every day, the state's attorney makes decisions as to what charges to pursue and what sentence to ask for in every criminal case that gets prosecuted," he said in an interview. "Why is it that when it comes to whether to seek the ultimate punishment, the state's attorney doesn't do that?"

Shellenberger has, on occasion, blended his stated intention of taking a different approach to capital cases by pursuing death sentences "for those who commit the most heinous murders" with a promise to "continue" O'Connor's policy -- a pair of seemingly contradictory claims. Asked to explain, Shellenberger said that he used the word "continue" to signal that he would "be a strong advocate for the death penalty."

Supporters of both men say the death penalty issue is important."

Scott's got the right read on that," said Baltimore County Executive James T. Smith Jr., who oversaw a dozen capital cases during his 16 years as a judge. "I think a policy of pursuing the death penalty in every case that technically allows for it is not even consistent with the legislation that sets up the death penalty.

"You shouldn't just turn it over to a judge or jury to decide," added Smith, who appears in Shellenberger's TV and print ads and has indirectly contributed $315,000 from his own election coffers. "There is a first level of responsibility, and I think Scott is accepting that level of responsibility."

Lisa Dever, a county prosecutor who has contributed financially to Bailey's campaign, countered that O'Connor and Bailey's approach is the fairest way to handle the imposition of the nation's most serious punishment.

"People who oppose the policy say it should only be applied to the most heinous crimes," she said. "Who are we to tell that family that the loss of their family member is not a heinous crime? It's not for us to decide. ... If you do go for it in every eligible case, you take away all the bias and prejudice that's inherent whenever you start choosing."

jennifer.mcmenamin@baltsun.com

DNA pioneer voices concern over database

This article appered in Yahoo News on November 1, 2006:

DNA pioneer voices concern over database

By Astrid Zweynert

LONDON (Reuters) - A pioneer of Britain's DNA database said on Wednesday it may have grown so far beyond its original purpose that it now risks undermining civil rights.

Professor Alec Jeffreys told BBC radio that hundreds of thousands of innocent people's DNA was now held on the database, a disproportionate number of them young black men.

The database, set up in 1995, has expanded to 3.6 million profiles, making it the largest in the world.

Everyone who has ever been arrested by the police, even if not charged, is obliged to provide a DNA sample for the database, which also includes victims of crime and others who have volunteered a sample to help a criminal investigation.

"The real concern I have in the UK is what I see as a sort of 'mission creep,"' said Jeffreys, who developed the techniques for DNA fingerprinting and profiling. When the database was initially established, it was meant to hold DNA from criminals, he added.

"Now hundreds of thousands of entirely innocent people are populating that database, people who have come to the police's attention for example by being charged with a crime and subsequently released."

The samples were "skewed socioeconomically and ethnically," he said. "In my view that is discriminatory."

Civil rights campaigners say a third of black males in England and Wales are on the database. They are also concerned about the lack of public consultation about the database.

DNA sampling has helped considerably in improving crime detection, helping to clear up cases that had remained unsolved for years.

For all recorded crime, the detection rate is 26 percent when there is no DNA evidence, but 40 percent when there is a sample, according to government data.

Jeffrey's comments coincided with the launch of a consultation on Wednesday to ask members of the public about their views on whether the laws allowing police to take, store and analyze DNA should be revised amid concern about a lack of public consultation on the database.

The study by the Nuffield Council on Bioethics, an independent research body, follows comments by British Prime Minister this month that a maximum number of people should be included in the database as it was vital for catching serious criminals.

The Council said that police have powers, "unrivalled internationally," to take DNA from an arrested person without consent.

"We want to hear the public's views on whether storing the DNA profiles of victims and suspects who are later not charged, or acquitted, is justified by the need to fight crime," said Professor Bob Hepple, chairman of the Council.

Deal on Wrongful Conviction

This article appeared in the Chicago Tribune on October 31, 2006:

Deal on wrongful conviction
City panel approves $2 million settlement

By Maurice Possley and Gary Washburn
Tribune staff reporters

The Chicago City Council's Finance Committee unanimously approved a $2 million settlement on Monday of a wrongful-conviction lawsuit alleging that police coerced a false confession from a 15-year-old youth, then falsified and destroyed reports to cover it up.

The settlement, which was forwarded for full City Council approval on Wednesday, came in a lawsuit filed on behalf of Eric Kittler, who was 15 when he was arrested. Kittler, who had never been arrested before, was charged as an adult with the robbery and murder of Abdel Khalil, a candy salesman who was in Adam's Grocery, 2625 W. 59th St., when two men robbed it on March 9, 1997.

At the time, police said that Kittler confessed. Convicted in 1999, Kittler was sentenced to 35 years in prison.However, his trial attorney, Steven Greenburg, appealed to the Illinois Appellate Court and won a new trial after the appeals court ruled that Kittler's arrest was illegal and therefore, any alleged confession was improper.

Kittler was acquitted at a retrial and released after 5 years in prison. Greenburg contended that Kittler had been falsely implicated by another youth, Thomas Harvey, who was 17 at the time. Harvey was ultimately charged with the crime, convicted of it and is serving a 25-year prison term.

At the time of trial, police officers contended that Harvey told them only that someone named Eric was involved in the crime. The officers said they went to Kittler's home and he voluntarily came to a police station and confessed almost immediately, according to court documents.

However, attorney Michael Kanovitz, who filed the civil lawsuit, said Kittler signed a statement prepared by the officers after being held in an interrogation room for 12 hours.

Kanovitz also found records that showed the officers actually were looking for another man named Eric with a different last name who lived less than a block from Kittler.

Kanovitz said that after Kittler signed a statement admitting involvement, the officers created false reports to show that they were looking for Kittler all along, Kanovitz said.

The civil lawsuit alleged that Detectives Steven Buglio and Thomas Coughlin improperly coerced the confession and that other officers, including Detective Sergio Rajkovich, suppressed evidence that showed Kittler was innocent, destroyed notes of interviews and created false police reports.

The lawsuit alleged that after the detectives obtained a confession through interrogation tactics that "crossed the line," they "fabricated a story about how they had [Kittler] as their suspect all along and then buried independent proof that contradicted their account."

"Nobody with a brain on either side of this case believes Eric Kittler had anything to do with this crime," Kanovitz said Monday. "And those detectives knew they weren't sitting in a room with a murderer, but they didn't care."

Kent Sinson, who was a Cook County prosecutor at the time of the arrest, testified in a deposition that he took the statement directly from Kittler, that he took a Polaroid photograph of Kittler and that Kittler signed the back of the photograph.

A handwriting expert examined a signature and determined it was not Kittler's handwriting, Kanovitz said."Sinson took down a confession that the detectives gave him and falsely claimed that Kittler was the source of the confession," Kanovitz said. "Kittler was innocent, and the Sinson statement was riddled with errors."

Sinson was initially named as a defendant in the case but was later dismissed. Efforts to reach Sinson on Monday were unsuccessful.

mpossley@tribune.comgwashburn@tribune.com
Copyright © 2006, Chicago Tribune

Unasked Questions

This article appeared in the Daytona Beach News on October 30, 2006:

Unasked questions
Tonight's debate should dig deeper


When you watch tonight's gubernatorial debate -- if you watch it, and we all should -- think about the slogans and carefully thought-out position statements you're hearing.

Then think about what you're not hearing. Think about the issues that neither campaign is addressing, issues that are certainly important enough to merit attention. Look at the performance of Attorney General Charlie Crist and U.S. Rep. Jim Davis, not just in the actions each man boasts about (or jabs the other for) but in issues that matter to Floridians: Poverty. Justice. The struggle between man and nature.

These issues received short shrift in Tuesday's heated debate. Floridians deserve to hear more, and tonight (with Reform Party candidate Max Linn joining the fray) they should.

One moment from Tuesday's debate demands more attention. Crist had just fired off a question about Davis' refusal, while serving in the state Legislature, to support compensation for Freddie Pitts and Wilbert Lee. The two men spent 12 years in prison for a murder they did not commit. They waited another 23 years for the Legislature to approve a bill to compensate them for that lost time. Davis replied that he had asked both men for forgiveness. He noted that Pitts was in the audience supporting him. And, then, they moved on.

Left behind was a question that many expected Davis to bring up. The nightmare faced by Pitts and Lee is by no means unique, as the emergence of scientific evidence like DNA proves.

Yet under Crist, the Attorney General's Office has fought aggressively against DNA testing, and even battled efforts to release inmates after DNA testing proved them innocent. Lawyers in Jacksonville are still warring over the case of Chad Heins, convicted 10 years ago of raping and murdering his sister-in-law. DNA evidence obtained since then points to another assailant, yet, Crist's office is fighting court action that would result in Heins being freed. Prosecutors did the same in the case of Wilton Dedge, a Brevard County man who spent 22 years in prison for a rape he didn't commit.

When is Crist going to apologize to Wilton Dedge and Chad Heins? We'd like to know, and Davis should ask.

The two men should also account for their respective parties' inability to stop the slow slide of many Floridians into poverty. Welfare reform -- once presented as a chance for people to work their way off the dole and into a productive life -- has turned into a sorry sham. Too many people are shuffled into low-paying jobs, missing out on the help they need. Many others are afraid to ask for help.

And the state deserves to hear what Davis and Crist plan to do to preserve the remaining vestiges of Florida's once-abundant natural beauty. "Planned growth" received a brief mention Tuesday, but most Floridians have seen through that buzz-phrase as bulldozers continue their march across forestland and pasture. As a steward of Florida's natural environment, Florida's next governor should have a plan that focuses on preservation, not development.

These issues might not be as highly charged as those debated last week. But voters deserve to know where the candidates stand on each.

Settlement reached in Broward wrongful arrest lawsuit

This article appeared in the South Florida Sun-Sentinel on October 13, 2006:

Settlement reached in Broward wrongful arrest lawsuit

Associated Press

FORT LAUDERDALE, Fla. - A settlement has been reached in a lawsuit filed against the Broward County Sheriff's Office by a man who was wrongly convicted and faced the death penalty for a 1986 murder he did not commit.

Broward County Circuit Judge Thomas M. Lynch IV has scheduled a hearing Oct. 27 on whether the settlement agreement with Carl Stephen Rosati should remain confidential. Rosati, 46, had rejected an offer of $500,000 to settle the case three years ago.

The lawsuit against the sheriff's office claimed that Sgt. Thomas Murray and former detectives Dominick Gucciardi and Steven Wiley illegally coerced a confession from Peter Dallas that implicated Rosati and Peter Roussonicolos.

The suit contended that investigators ignored a tape recording pointing to different men who ultimately were charged with the 1986 murder of Joe Viscido Jr., of Deerfield Beach. An independent prosecutor cleared Rosati and Roussonicolos after they spent 16 months in jail.

Mistrials were declared in Rosati's lawsuit in October 2003 and April 2004. Dallas settled for an undisclosed amount and a separate lawsuit filed by Roussonicolos is still pending.

Bruce Jolly, attorney for the sheriff's office and the two detectives, declined to acknowledge that a settlement had been reached.

"Pending the conclusion of the litigation, anything about any settlement remains confidential," Jolly said.

Rosati returned to his native Rhode Island after his release from jail. A message left on his answering machine seeking comment was not immediately returned Friday.
---
Information from: South Florida Sun-Sentinel
http:// WWW.SUN-SENTINEL.COM

Innocent man exonerated after 22 years in prison

This article appeared in the Greenwich Time on November 2, 2006:

Innocent man tells of ordeal
Exonerated after 22 years in prison

By Martin B. Cassidy
Staff Writer

If not for the interest of the Innocence Project, Alan Newton's quest for the DNA evidence needed to reverse his rape conviction might have stalled forever, he said yesterday."Nobody wanted to take the time to deal with a convicted armed felon until the Innocence Project helped," said Newton, who spent 22 years in New York state prisons for a rape he didn't commit.

Newton, who was freed in July, spoke to the Greenwich Retired Men's Association yesterday morning about the New York-based group affiliated with the Benjamin N. Cardozo School of Law, which has so far freed 185 prisoners nationwide through retesting of crime-scene DNA.

For 11 years Newton was told the cache of evidence, including the attacker's DNA, had been misplaced or destroyed. But in November 2005, the Innocence Project got a Bronx prosecutor to unearth the materials in a storage barrel in a Queens warehouse, the very same spot where it had been inventoried and catalogued. The test results ultimately set Newton free.

Newton said he never completely lost hope that the truth would someday be known.

"They gave me all kinds of excuses and I kept hope that they would find it," said Newton. "I kept my hope up. Well, it was sitting in the same barrel, but nobody wanted to take the time to deal with it."

In June 1984, Newton said he was living in New York City, working as a salesman for Bell System and engaged to be married. Then a rape victim picked his mug shot -- taken because of a 5-year-old misdemeanor assault conviction -- out of a book of hundreds, and later she and a convenience store clerk identified him as her assailant.

In May 1985, Newton was convicted of rape, robbery and assault and sentenced to 13 to 30 years for sexually assaulting the woman in an abandoned building in the Bronx. The prosecution based its case on the flawed identifications, Newton said.

At his trial, Newton's fiancee testified she was with Newton watching a movie the night of the attack, he said.

"I was keeping my nose clean and trying to bank some money for college," Newton said of that time. "The things I did when I was young came back to haunt me."

In 1994 he requested post-conviction DNA testing, but the court and police officials said the evidence was lost, he said.

He did the "New York tour" of the prison system, living among hardened criminals in Sing Sing and Attica, earning dozens of college credits but also suffering disciplinary consequences for getting into fights, he said.

Newton said he struggled to maintain his hope that he would prove his innocence.

"When you're an innocent man it's harder than being a guy who is trying to get out on a technicality," Newton said.

"My mother died in 1986 of a broken heart and my dad died five years ago. Neither of them saw my exoneration, but I hope they are smiling down."

The investigative flaws which lead to wrongful convictions include shaky witness identifications and confessions gained by pressure or physical abuse, while forensic foul-ups with fingerprints or biological evidence are often egregious, Audrey Levitin, the Innocence Project's director of development, told the audience.

Levitin cited the case of Stephan Cowans, whose 1997 conviction for shooting a Boston police officer was overturned in 2004 when the Innocence Project established that the gunman's fingerprint was somehow transposed onto a card labeled as Cowans' prints.That case spurred a massive internal investigation in the Boston Police Department and a $3.2 million civil settlement for Cowans.So far 22 states have adopted legislation governing compensation for the exonerated, Levitin said.

State Sen. Andrew Mc-Donald, D-Stamford, head of the Judiciary Committee, said in a telephone interview that the Connecticut legislature will draft a bill in January to establish a system for compensating the wrongly convicted. Lawmakers have been considering the systems adopted in other states to try to determine what type of compensation is fair based on factors that contributed to the conviction.

After Newton's talk, Chuck Standard, 87, said he would probably donate to the Innocence Project, and that Newton's fortitude impressed him."I didn't know about this group until today, but now I want to learn more about it," Standard said. "I don't know how that man isn't more bitter after 22 years in jail."

Barry Nova, 73, said he imagines there are thousands of wrongly convicted prisoners in the justice system trying to prove their innocence."If they've freed 185 individuals, how many do you think are out there?" Nova asked.Newton said he was exploring a lawsuit for damages, but had yet to file it. He said he hopes to become a lawyer after he graduates from Medgar Evers College in Brooklyn, which he is attending on a scholarship from the Thurgood Marshall Scholarship Fund.

Newton said that giving presentations about his wrongful conviction helps him deal with it."It's very important for me," Newton said. "It's like if you have a wound or cut, it's good to let it have some air."

Copyright © 2006, Southern Connecticut Newspapers, Inc.

Robbery Charges Dropped in Rap Sheet Mixup

This article appeared in the Mercury News on October 27, 2006:

Robbery charges dropped in rap sheet mixup case
Salinas Widower Victim of Clerical Error


By Fredric N. Tulsky
Mercury News

Larry Lashere Adams, a Salinas widower who became a robbery suspect because of a bizarre error in state records, was cleared of the crime Friday when charges were dropped in Santa Clara Superior Court.

Adams became a suspect in a 2005 home invasion largely because state records showed he had committed a similar crime in Contra Costa County 15 years earlier. But Adams had done no such thing. Instead, a man named James Adams was convicted of the crime and officials have been unable to explain how that conviction wound up on Larry Adams' rap sheet.

Defense attorney Allen H. Schwartz said the error was one of a series of ``uncanny coincidences,'' which ended in Adams' arrest seven months ago after police surrounded his car while he was on a lunch break from his job as a supervisor at Mervyn's.

``He was an unfortunate victim of circumstances,'' said Schwartz, after Judge Jerome Nadler Friday granted a prosecution motion to dismiss the case based on insufficient evidence during a hearing that lasted less than a minute. ``But today justice was served,'' Schwartz said, crediting deputy district attorney Victor Chen for moving to dismiss the charges.

Chen said simply, ``The continuing police investigation led to the conclusion that the evidence was insufficient.''

Adams was not in court Friday and could not be reached for comment. But Walter Wilson, a Silicon Valley NAACP official who is Adams' uncle, said the real lesson is that ``the system failed again.''

Wilson said officials were notified about the mistaken rap sheet well before his nephew was charged with robbery. ``But instead they went ahead and charged him and locked him up,'' Wilson said. ``It's just not right.''

The case unfolded amid increased attention to the potential for wrongful convictions. The Mercury News series ``Tainted Trials, Stolen Justice'' reported that questionable conduct repeatedly mars Santa Clara County jury trials and that such conduct increases the small but significant potential for wrongful conviction.

In Adams' case, the clerical error was compounded by a suspect eyewitness identification that occurred more than a year after the robbery. Adams spent three weeks in jail on charges and initially faced a life sentence. Because authorities saw a prior robbery on Adams' record, as well as a domestic violence conviction, he was originally charged with under the state's strict ``Three Strikes, You're Out'' law.

Police had been seeking the ringleader of a group of robbers who burst into a San Jose home not far from Monterey Road and Capitol Expressway shortly after midnight Jan. 23, 2005. A group of teenagers were present; some had been drinking, one had a bag of marijuana, according to police reports. The intruders separated two brothers who lived in the house and asked each where the valuables were hidden.

Police soon arrested two men in the crime. By monitoring visitors to the jail, they later came up with Adams' name -- his former girl friend was the mother of one of the men charged and she listed a cell phone registered to Adams on jail records. When police discovered that Adams met the general description -- a large black man 39 years old -- and that he had a prior robbery conviction, officers showed the brothers a photographic lineup.

Because identification is subject to the frailties of human memory, Santa Clara County police agencies have enacted safeguards to reduce the chances of wrongful identifications -- safeguards that a state commission believes agencies throughout the state should adopt. Those safeguards include showing photographs to victims sequentially, rather than in a group and having the lineup administered by an officer who does not know the suspect's identity.

In their reports, detectives Ronnie Lopez and Ramon Avalos noted that they followed county protocols. But they described administering the lineups themselves instead of relying on an officer who did not know the identity of their suspect.

It took weeks before Adams was released from custody in April after his bail was lowered to $75,000.

Court records show that he was convicted of domestic violence after a 1991 incident in which his girlfriend withheld his car keys to prevent him from driving while drunk. He also has been convicted of driving under the influence of alcohol in the past.

Adams has said the rap sheet error came up when he was arrested for domestic violence and again during a recent custody dispute with his wife, who has since died.

Adams' aunt, Brenda Wilson, works in the Santa Clara County public defender's office, and has helped him obtain documents to show he did not commit a robbery in Contra Costa. She again notified officials of the error after his arrest in March.

The Wilsons noted that the family had to spend thousands of dollars to win Adams' release on bail. Furthermore, ``If it hadn't been for where I work, he would have lost his job and his kids would have been taken away,'' said Brenda Wilson. ``This just should not have happened.''

Contact Fredric N. Tulsky at rtulsky@mercurynews.com.

DNA at center of trial in '72 slaying

This article appeared in the Los Angeles Times on October 30, 2006:

DNA at center of trial in '72 slaying

The rape and murder case uses `abandoned' genetic evidence: saliva from a cup and napkin discarded by the suspect.

By Andrew Blankstein
Times Staff Writer

Los Angeles police detectives had been trailing a serial murder suspect for about a month during the summer of 2003 when they finally got their needed break.

Adolph Theodore Laudenberg, then 77, thought police wanted to question him as a witness in an unrelated car theft case and agreed to meet with an LAPD investigator at a Torrance doughnut shop. As they talked, Laudenberg sipped coffee out of a Styrofoam cup and occasionally paused to wipe his mouth with a napkin.

This week, the former cabdriver goes on trial in the 1972 strangulation and sexual assault of a San Pedro woman. The DNA from saliva he left behind on the discarded cup and napkin will provide the foundation for the state's case against him.

The use of "abandoned DNA" in criminal cases is a relatively new law enforcement practice, but one that legal experts said has broader implications for constitutional issues linked to privacy and protections against unreasonable searches and seizures.

UC Davis law professor Elizabeth Joh, who is following the trend, said law enforcement agencies generally have not adopted standards dealing with the collection of abandoned DNA and worries that that could pave the way for future abuse.

"We leave traces — skin, saliva, hair and blood — of our genetic identity nearly everywhere we go," Joh said in a 2005 Northwestern University Law Review article. "Should the police be permitted, without restriction, to target us and collect the DNA that we leave behind?"

In an interview, she said that although investigators in the Laudenberg case claimed they took DNA only for investigative reasons, "that's a constraint imposed by the police themselves, not the law."

Albert E. Scherr, a professor at the Franklin Pierce Law Center in Concord, N.H., said the abandoned DNA debate is only in its infancy, and will linger long after the Laudenberg case is concluded.

"It's old behavior for police to surreptitiously obtain a fingerprint by inviting a suspect for a cup of coffee or a cigarette," Scherr said. "But it's only recently that you can use a cup of coffee to get a sample of their DNA, which is much more powerful, much more personal and more multifaceted than the ridges in a fingerprint."

Prosecutors and police contend that a person's DNA is no different than any other clue inadvertently left behind in the public domain, whether it's a fingerprint or, in this case, saliva.

When it comes to identifying criminals, "there is no legal distinction between a genetic fingerprint and fingerprint in the traditional sense," said Deputy Dist. Atty. Lisa Kahn.

Suspects "don't have an expectation of privacy in abandoned property. And that would definitely apply to a cup left behind at a McDonald's or Denny's."

Police usually can recover DNA from suspects in several ways.

In a search warrant, police typically ask a judge for approval to seize personal objects that could contain genetic material, including toothbrushes, combs and utensils. A suspect also may voluntarily turn over a sample of his or her DNA. This can be compared to genetic material retrieved from a crime scene.

Authorities also can compare the genetic evidence from a crime scene with previously existing DNA reference samples contained in national and state forensic databases known as "cold-hit cases."

Still, case law on abandoned DNA is evolving.

Earlier this year, the Washington Supreme Court heard arguments about the legality of using DNA lifted from a self-addressed stamped envelope. In that case, authorities used the ruse of a class-action lawsuit over parking tickets to get suspect John Athan to lick and send in a selfaddressed, stamped envelope. The DNA collected from the saliva on the stamp helped to convict him of the 1982 rape and murder of a 13-year-old Seattle girl.

Among the issues before the court is whether police violated Athan's privacy when they collected his DNA.

In California, the legality of abandoned DNA has not yet come to a Supreme Court test.

However, Laudenberg's attorney, Harvey Sherman, filed Los Angeles County Superior Court briefs this month arguing that privacy issues should require judicial approval before DNA is seized from a public setting.

In the Laudenberg case, the officer who interviewed him quietly placed the napkin in his pocket, poured out the coffee and set the cup next to a trashcan. An undercover officer then retrieved the cup, according to court documents.

Police justified their actions, saying they took Laudenberg's genetic evidence from a public place where he had no expectation of privacy, according to court papers. Also, if they had obtained a search warrant, they risked tipping off the suspect to their investigation.

Superior Court Judge Anita Dymant agreed with police and ruled that authorities did nothing improper. She ruled that all DNA evidence against Laudenberg will be admissible in trial.

Authorities said in court documents that they also will use that DNA to link Laudenberg to another killing in the San Francisco Bay Area during the 1970s. He has not yet been charged with that crime.

The current Laudenberg case revolves around the slaying of Lois Petrie, who was found strangled in her San Pedro home the day after Christmas in 1972.

In addition to the DNA evidence, prosecutors said in court documents that they plan to call witnesses who will testify that Laudenberg confessed to relatives in 1975 and then again in 2002 that he killed four women. Both times, police were contacted after he talked to his relatives, generating police reports, but not his arrest.

In 2002, Laudenberg allegedly told his daughter-in-law that when he was a San Pedro cabdriver in the early 1970s, he often would pick up merchant marines and their dates, according to court documents. Laudenberg would end up driving the women home and sometimes they would ask him for money, the court papers state.

"This would upset Adolph," who got so angry that "he would strangle the women," his daughter-in-law told police.Police also were told that "the reason he killed those women was because they either said something or did something that reminded him of his wife," according to the documents.

Both of the police reports eventually made their way to Det. Rich Bengston of the Los Angeles Police Department's cold-case homicide unit, who tracked Laudenberg and ultimately set up the 40-minute meeting at the doughnut shop.*

andrew.blankstein@latimes .com

Wrongly convicted O.C. man is free

This article appeared in the Los Angeles Times on November 2, 2006:

Wrongly convicted O.C. man is free -- and out of state

He says he's been scared straight by the experience of 10 months in prison, and he's left town to start fresh.

By H.G. Reza
Times Staff Writer

Three days into his trial for carjacking and armed robbery, James Ochoa weighed his options. He had turned down the prosecution's offer of a guilty plea in exchange for two years in state prison because he knew he was innocent.But Orange County Superior Court Judge Robert F. Fitzgerald had threatened him with a life sentence if convicted. Unwilling to risk life in prison, the 20-year-old ended his trial and pleaded guilty in December 2005.

Ten months later, Ochoa walked out of Centinela State Prison an innocent man, cleared by the same DNA evidence Orange County prosecutors had brushed aside. The DNA at the crime scene was linked to Jaymes T. McCollum, a 20-year-old inmate locked up in a Los Angeles County jail on carjacking charges, said Ochoa attorney Scott A. Borthwick.

Susan Kang Schroeder, spokeswoman for Dist. Atty. Tony Rackauckas, said her office "feels terrible" about Ochoa's wrongful conviction. "As soon as we found out the guilty plea was no longer reliable, we did everything we could to get him out of custody," she said.

In most cases where DNA is used to free someone wrongly convicted, the evidence is uncovered after trial. In Ochoa's case the Orange County district attorney's office knew beforehand that DNA in the case did not come from Ochoa but went ahead anyway.

Ochoa's case was first reported last year by the OC Weekly, which called it a miscarriage of justice. Prosecutors and police harshly criticized the paper for taking up the case.

Ochoa was accused of robbing two men with a pellet gun May 23, 2005, in Buena Park and stealing one of their cars. The Volkswagen was found around the corner from his Buena Park home. The gunman had left a black baseball cap and long-sleeved gray shirt in the car. The gun, hidden in the rear bumper, fell out when the car was towed.

At the time, Ochoa was on parole and had been out of prison two weeks after serving six months for possession of methamphetamine.

One victim identified his mugshot. The other two photos were of young-looking teenagers. He then picked out Ochoa from the back seat of a police car that drove by while Ochoa stood outside his home, handcuffed, barefoot and wearing only boxer shorts. The other victim also identified Ochoa, but he was less certain, Borthwick said.

Tests done by the sheriff's forensic lab about a month later found no link between Ochoa and the DNA recovered from the cap and shirt. A print lifted from the Volkswagen's gear knob did not match Ochoa's either. Still, the Orange County district attorney's office took the case to trial, basing it largely on eyewitnesses.

On Oct. 13, the California Department of Justice lab linked McCollum's DNA to evidence left at the crime scene during a routine check. Six days later, Orange County prosecutors acknowledged that the wrong man had been convicted and asked Fitzgerald to sign an order freeing him.

In an interview last week at his lawyer's Santa Ana office, Ochoa, 21, talked about his frightening experience with a justice system that ignored evidence pointing to someone else along with his repeated claims of innocence.

Tall and muscular with a shaved head, Ochoa said he spent much of his time in prison working out. Several times during a three-hour interview he broke into a wide grin as he paused to remember details of his case, occasionally turning to his father, Ubaldo, for help.

Ochoa said he took the prosecution's deal against his attorney's advice because he was afraid of what would happen if the jury found him guilty. Borthwick was so convinced of his client's innocence that he offered to represent him for free if Ochoa would reject the offer.

"I don't want to go to prison for something I didn't do, especially for life," he said. "I'm thinking: How did it get this far? The DNA. The print. They weren't mine."

Judge Fitzgerald had made it clear before the trial what would happen if he was convicted, warning that he would show no mercy and impose a life sentence, Borthwick said.

The judge's remarks at sentencing, when he sent Ochoa to prison for two years, were no more reassuring.

"He looked down at [Ochoa] and said, 'All right. You're off to prison. See you later, kid,' " Borthwick recalled.

Fitzgerald declined to comment.

Borthwick said the prosecution went out of its way to ignore the DNA evidence. "The prosecutor had an ethical duty not to prosecute someone who's innocent," he said.

Monday, November 06, 2006

Supreme Court Weighs Man's Delayed Suit

This article appeared in the New York Times on November 6, 2006:

Supreme Court Weighs Man's Delayed Suit

By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The lawyer for a man whose illegal arrest led to more than eight years behind bars pleaded with the Supreme Court on Monday to allow his client to sue the police who arrested him.

To do otherwise, lawyer Kenneth Flaxman said, the justice system would be saying, ''It's just tough. You're seized for 8 1/2 years and you can't go to state court and you can't go to federal court.''

Flaxman's client, Andre Wallace, was freed from prison in 2002, after Illinois courts ruled his arrest was illegal, reversed his murder conviction and caused prosecutors to drop charges against him. He had been in custody since his arrest in 1994 for the killing of John Handy.

Yet when Wallace filed a federal civil rights lawsuit a year later against the Chicago police officers who arrested him, federal judges told him he had waited too long and dismissed the suit.
On Monday, justices expressed some sympathy for his predicament, but also some skepticism that he would prevail.

What about the police officers, wondered Chief Justice John Roberts? If Wallace had the right to sue so long after his arrest, the officers wouldn't know ''if they're going to be sued for 10 years, 12 years,'' Roberts said.

Wallace had two years in which to file his civil rights claim. The question before the justices is whether the two-year clock began running at the time of Wallace's arrest in 1994, when he was released from custody in 2002, or some point in between.

The 7th U.S. Circuit Court of Appeals said Wallace should have taken some action in the two years following his arrest. In similar cases in other parts of the country, appeals courts have said false arrest claims can't be filed until convictions are nullified.

Wallace was 15 when Chicago police officers Kristen Kato and Eugene Roy brought him in for questioning in the murder of John Handy in January 1994. In the course of an interrogation that went through the night, Wallace said he was subjected to a ''good cop/bad cop'' routine that included being slapped and kicked. In the officers' account, Wallace was free to leave at any time.

Eventually, Wallace confessed. He tried and failed to have his statements thrown out on the grounds that he was arrested without probable cause and that his confession was coerced.
He was convicted of first degree-murder in 1996 after a trial in which Wallace claimed he shot Handy in self defense or, alternatively, in mutual combat, attorneys for the officers argued in court papers.

Wallace appealed the conviction. The Illinois Appellate Court ruled in 1998 that the arrest was made without probable cause, but still ordered a lower court to determine whether the confession could stand.

The court said it could, affirming the conviction. The Illinois Appellate Court considered the case again and this time, reversed the conviction.

Prosecutors at that point decided not to try Wallace again, but would reinstate the murder charge against Wallace if they get additional evidence, the officers' lawyers said.

The case is Wallace v. Chicago Police Officers, 05-1240.