*********************
This is the month of recanting state witnesses whose original testimonies under prosecutorial pressure and wheeling and dealing put innocent people in prison for life, and on death row. Most people believe when accusers recant, convictions are overturned. But that is now how our legal system works.
I posted below a summary of an ABC news network's report on a youth who was coerced by the mother into falsely accusing her cousins of sexual assault "to get her father to drop is custody claim." One cousin spent five years in prison and the other is still in a Texas prison with a 20-year sentence. The recanting accuser said, "I am responsible for putting them in prison, and now that I am older and I can understand the consequences of my actions, I need to step up and do what I have to [to] make things right."
When she stepped up, the judge warned her repeatedly that "she could face felony prosecution for perjury and a possible 10-year prison sentence if she recanted her original charges." She is going on with her pursuit of justice anyway. I also included a few very interesting email responses to this very common legal event.
It is common to three prisoners about whom I've been updating you. O, T, and R were convicted on false testimony by people who now want to tell the courts why they implicated the innocent men and how they want the courts to know the truth. Regarding T and R, the judge rejected this "new evidence." So we are onto the appellate division. O continues to patiently wait. Please pray for them and all caught in the tangled sticky web of the legal system. Contact me if you want to know about pro-active things you can do on their behalf.
Larry Peterson has been pro-active, and will be making his second appearance before the NJ Senate Judiciary Committee this week. His case is making an impact on NJ judiciary initiatives. Pray the prosecutor concedes to Larry's innocence, or, at least, to leaving him alone. (Larry's next court hearing is on February 6.)
Digest the implications of the information pasted below and pass it onto others.
********************************************
Texas Girl Says Abuse Claims Were Coerced by Mom
Cousins Jailed for Molestations She Now Claims Never Happened
Jan. 6, 2006 — - Sixteen-year-old Stephanie Arena longs for a normal girl's life, but she is haunted by the fact that she sent her teenage cousins to prison for a crime she now says they didn't commit.
The sordid story began when Stephanie, just 7 years old at the time, was caught in a bitter custody battle between her parents, LaVonna and Stephan Arena. Worried that she'd lose her daughter, LaVonna took Stephanie and her brother from their home in Texas to a Florida homeless shelter. She then justified the abduction by telling social workers her kids were being molested.
Stephanie now says her mother used her as a tool to pry her family apart and to get her father to drop his custody claim.
"I am responsible for putting them in prison, and now that I am older and I can understand the consequences of my actions, I need to step up and do what I have to [to] make things right," she told "20/20" in an exclusive interview.
Her cousin John Arena, 17 at the time of the trial, was released on parole after serving five years of a seven-year sentence. Michael Arena, then 16 years old, is currently serving a 20-year sentence in a Texas prison.
Trying to Make Things Right
Stephanie has been trying to "make things right" since she was 11, writing letters of apology to both brothers in prison.
But perhaps her bravest moment came when she went public with her story and returned to court, two years after accusing her cousins. She faced the same judge and prosecutor and told them she had lied to them when she said her cousins molested her.
She hoped her honesty would bring real justice to her family. Instead, she says, they treated her like a criminal.
She said they were "grilling me on whether I wanted to plead the fifth or not, and just really rude to me. I was like, 'Wait a second. You're a judge. You're supposed to serve justice. And now I'm telling you the truth, and you don't care.'"
In fact, Judge Edward Johnson of Bell County, Texas, warned Stephanie repeatedly that she could face felony prosecution for perjury and a possible 10-year prison sentence if she recanted her original charges. Johnson refused "20/20's" request for an interview.
Even at her young age, Stephanie refused to back down and was willing -- as the judge warned she might -- to go to prison.
"I really do think that two-to-10 years is a small price to pay," she said.
Mother Now Spending Time With Convicted Pedophiles
And perhaps this is the strangest twist in Stephanie's story. While her mom still maintains John and Michael molested her daughter, she allowed a twice-convicted pedophile to live with her and Stephanie. A judge found her mom's judgment so poor he awarded sole custody of Stephanie to her father, Stephan.
When "20/20" caught up with Stephanie's mom, she was living with a boyfriend in Muscatine, Iowa.
She spoke briefly with "20/20" on the street. She said the reports that she exposed her children to a sexual predator are inaccurate.
In her brief sidewalk interview she at first stood by her story that John and Michael Arena had molested her daughter. "I did not frame those boys and my children asked me to take them out of there. In fact, they begged me," she said.
It appears, however, that LaVonna's accusations are part of a troubling pattern. Police records and family testimony suggest that on three different occasions she has falsely accused other family members of abusing her kids, including a charge against Stephanie's father, Stephan Arena.
"I believe it was in 2000 she accused me and John and Michael again -- while they were incarcerated," he said.
LaVonna Arena asked "20/20" not to use its sidewalk interview with her, suggesting a more formal interview later. She apparently decided against that and stopped taking "20/20's" phone calls. Her live-in boyfriend dropped a bombshell, however, explaining to "20/20" by phone that LaVonna would like to tell the truth and explain why she made Stephanie lie. But, her boyfriend said, "LaVonna is afraid she would go to jail."
Stephanie says it's that kind of attitude that leaves her bitter.
"When I realized she manipulated me, that was when I was like, I really don't care about you anymore. ... I can honestly say I hate her," she said.
Boys Need Lawyers or Intervention from Governor
Stephanie's cousin John submits to an annual polygraph test administered by the state as part of his parole agreement.
Peter Heller, who recently conducted the test on John said he feels confident that John is truthful in saying he never had sexual contact with his cousin.
Heller said, "In my opinion he was truthful to the relevant questions. If I was to testify in court, my opinion would be that he did not molest Stephanie."
Despite Stephanie's assertion that she was not molested and other evidence that supports her claim, County Attorney Rick Miller wrote in a letter to "20/20" that "all of these matters were thoroughly vetted on appeal after appeal, and the evidence remained what it was: convincing."
Wrongful conviction expert Paul Ciolino, whose private investigative work has resulted in the release of dozens of death row inmates, says there is just one route for the Arena boys.
"Without a crew of high-priced lawyers, the governor's going to have to step in here and do the right thing. ... These are two kids who don't have resourcesand no one's helping them," he said.
And young Stephanie Arena is a victim too, not of molestation, she says, but of guilt.
She says she thinks every day about the devious plots she says her mother masterminded. Her hope now is that somebody will step in and help her cousins.
"Just for somebody to care," she said. "Just for somebody to realize, 'Hey, what happened to those boys was wrong.'"
Copyright © 2006 ABC News Internet Ventures
Re: Re: Texas Girl Says Abuse Claims Were Coerced by Mom
reply
Posted: Jan 07, 2006 08:27 PM
1 Posts
Registered: Jan 07, 2006
This is not an isolated story of false allegation, but a view of what is happening at epidemic proportions. My son's story is the same as this story; a custody battle, accusations of sexual assault, no physical evidence, and a court that has sentenced him to 13 years in prison.
I am more frightened of the social services and court systems in this country, than any criminal on the street. I have a better chance of my life taken from me by these "social" agencies, than anyone on the street.
I too, thought we lived in a country where if you are innocent and tell the truth, the courts will find you innocent. The false sexual assault accusation is much like the accusation of communism during the days of "McCarthyism".
I now know that women wanting revenge on a male just have to call social services and report child sexual assault. The taxpayers will pay for the "witch-hunt" and the accused does not have a chance.
Be afraid, very, very afraid!! The number of sex offenders has increased dramatically in the last 5 years. Not because of a moral break in society, but because of the new social hysteria called "Assaultism" in this country.
Yollana Re: Re: Texas Girl Says Abuse Claims Were Coerced by Mom
reply
Posted: Jan 07, 2006 11:08 PM
9 Posts
Registered: Sep 04, 2005
This story made me so mad, I wanted to throw something at my TV. I realize that judge may not have much choice - although couldn't he do something now? but what about the prosecutor? what about that doctor who gave "expert" opinion?
I realize this is just one of similar stories and it makes me afraid that just being in the wrong place at the wrong time is enough to be accused of something.
What bugs me is how some of those "experts" often claim that "children don't lie". I know from personal experience of when I was a kid that children do lie and that they are extremely suggestible. When I was 8 years old a group of kids in my class said something happened that hadn't happened simply because the teacher said it did and asked them to confirm it "it did happen, right?", and they wanted to please the teacher. Thankfully that was something innocuous, but every time I hear "children do not lie" I want to ask these "experts" what planet they come from.
**********************************************
Back to the top
| From Thomas, innocent and still in prison
since 1993 Dear John...I received your letter of encouragement, Weekly Reflections and Legal Update on the Texas case. As always, I am thankful. Enclosed is a piece I put together specifically for your posting on the Spiritual Resource Services web site... GUILTY UNTIL PROVEN INNOCENT: [Note from JSH: I edited out references to specific courts and their locations, other than to confirm this is a New Jersey case. Should any reader have the inclinations and resources to aid Thomas in his quest for freedom, please contact me at prayercare@aol.com. Thomas' letter provides references to case law that may be useful to others.] It's been 13 years since I've been wrongly convicted of the crime of murder and robbery, and from day one (January 17, 1993), I have declared my innocence. However, my cries for justice has been ignored. And for 13 years, sentenced to 45 years to life by the Superior Court, I sit here wondering "What do I have to do to prove my innocence?" When I was just a young child, around seven years old, I would often tell my mother, "When I grow up, I'm going to become a lawyer." Due to the high level of poverty, which made for difficult circumstances, I never achieved my childhood dream. Instead, I dropped out of school during the tenth grade. As I child, who knew that one day I would grow up only to have been forced into the legal system where I would be, based on a "do or die" situation, compelled to study the law? Well that is my reality for 13 years. Because I could not afford paid counsel during trial proceedings, or through my appeal process, I am and have been submitting my own legal documents such as motions, briefs, and letters to the courts scuffling through the rough times in my quest to prove my innocence. Today, I can happily say that a break in this case has finally arrived. On May 7, 2001, I submitted to the trial judge a motion for new trial based on newly discovered evidence. To wit, a sworn and signed recanting affidavit from one of the state's key witnesses. An evidentiary hearing was granted by the motion judge who was also the same judge who resided over my trial. For odd reasons, the judge postponed the hearing date on numerous accounts during the years of 2001 until 2004. By this time four more state's witnesses came forward in recanting affidavits submitted to defense investigator. Their affidavits consisted mainly of critical and exculpatory information which the prosecutor withheld from the trial court, jury, my lawyer and me during the course of trial. Hearings were finally conducted on October 17-18 and December 10, 2004, wherein all four recanting witnesses testified consistently with what they mentioned in their post-trial recanting affidavits. Two witnesses testified that they gave false testimony during trial in exchange for promises; that the state offered to help them out on their unrelated criminal matters; that the state offered an "off the record deal" to stop investigating one on an unrelated homicide. Their testimony during trial was that they witnessed me inside of the felony vehicle with the police in pursuit after the murder was committed. They recanted this at the hearing, and the recanted version is clearly verified by the trial record. Another witness testified at the new trial motion hearing that, back in February 1993, he was a juvenile; that at this time a man who told the juvenile that he was a cop, asked him to accompany the impostor cop to a Burger King to get burgers, when, instead, the impostor cop took him to the prosecutor's office. There, the juvenile was interrogated for 7 hours by prosecuting investigators, who showed him 2 photos depicting my codefendant and me. Then the investigator informed the juvenile that my co-defendant and I were involved in a murder. When the juvenile asked to leave, investigators, in a compromise, told the juvenile to sign some papers first. These papers turned out to be a false statement that investigators drew up themselves. At trial, it was discovered that the impostor cop who escorted the juvenile to the prosecutor's office was in fact a prosecution informant. As if this was not enough to prove our innocence at the new trial motion hearings, two more state witnesses came forward during the course of the new trial motion hearings. These two witnesses were the core of the state's case against us. Their pre-trial statements indicated that I made confessions to them of my involvement in the criminal events; that they witnessed me in the felony vehicle prior to the commission of the murder. However, during trial testimony, they recanted critical parts of their statements. One witness was charged and jailed for perjury, and the other witness withdrew his recantation once he learned of the other's incarceration. Prior to giving their incriminating statement to investigators, they told the police and the prosecution investigators that they had no knowledge of the crimes; that only after learning that prosecution investigators suspected them of the murder, did they change their stories. In their post-trial recanting affidavits to the motion judge in November 2004, they both indicated that they lied to investigators out of fear of doing time for the murder; that prosecution investigators placed a light over his hand then told one of them he had scientific evidence to prove he was the murderer. This was never disclosed to the defense at trial. The other witness indicates in his post-trial affidavit that when he gave his incriminating pre-trial statement to prosecution investigators, he failed his polygraph test. Another fact illegally suppressed by the state. More importantly, their recanting version, as fully described in their affidavits, was rejected by the motion judge. The court did not even allow for them to give live testimony. During trial, other than these recanting witnesses, the state introduced no physical evidence. And due to the suspects having hoods and masks covering their face and heads, some of their witnesses were able to positively identify their attackers. In fact, very import state witnesses testified that their attacker was a dark skin black male who weighted about 180 to 189 pounds. Note that we are light skin black males who weighed no more than 140 pounds. We have maintained our innocence for 13 years now, and the evidence, as new as it is and as convincing as it is, fell upon deaf ears when presented to the court. But no justice has come to us. Now we search for the aid and support from the people of the world. We are willing to invite every one who is willing to listen to our cries, into the files and material which prove that "All men are NOT created equal," and that in the court of law, most people are guilty until proven innocent. We have proven our innocence; we have shown how the prosecutor and his investigating team tricked juveniles into making false statements; how they used knowingly false testimony; and how they withheld key information that would have proven our actual innocence. A brief scribe on the legal case law I've provided to the court is in conjunction with the newly discovered evidence listed below: In Ways, the Courts recognized the standards for the grant of a new trial based on new evidence set forth in Carter. That Court held that to qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) Discovered evidence since the trial and not discoverable by reasonable diligence beforehand and (3) of the sort that would probably change the jury's verdict if a new trial were granted. State v. Carter, 85 N.J. Id. at 314 (1981), State v. Artis , 36 N.J. 539 (1962), State v. Henries , 306 N.J. Super. 512 (1997), State v. Ways , Id . at 187 (2004). In regards to new trial motions based on recanting witnesses, the correct standards in evaluating recantation for a new trial is whether it cast serious doubt upon the truth of the testimony given at the trial and whether, if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice. The judge's first duty is, there, to determine whether the recanting statement if believable. Carter, 69 N.J. 427 (1976). Manifestly, the essence of the grant of a new trial motion based on recanting testimony is not that a witness says he lied at trial but whether the new evidence is probably true. State v. Carter , 136 N.J. Super. Id. at 284-285 (1974). We must keep in mind that the purpose of post-conviction review in light of newly discovered evidence is to provide a safeguard in the system for those who are unjustly convicted of a crime. See State v. Afanador , 151 N.J. 41, 49 697 A.2d 529 (199). However difficult the process of review, the passage of time must not be a bar to assessing the validity of a verdict that cast in doubt by evidence suggesting that a defendant may be innocent. State v. Cummins , 168 N.J. Super. 429, 433, 403 A.ed 67 (Law Div. 1979 stating that "manifestly unjust convictions" of innocent persons "should be set aside at any time"). As for the extensive questioning of two juveniles in the absence of their legal guardians, the Court in Presha concluded, "The role of a parent in the context of a juvenile interrogation takes on special significance." In re Carlo, 48 N.J. 224, 225 (1996). In that circumstance, the parent serves as advisor to the juvenile, someone who can offer a measure of support in the unfamiliar setting of the police station. Gallegos v. Colorado, 370 U.S. 49, 54,82, S.Ct. 1209, 1213, 8 L.Ed.2d 325, 329 (1962). Thus, we have emphasized that "whenever possible and especially in the case of young children, so child should be interviewed except in the presence of his parents or guardian." In re S.H., 61 N.J. 108, 114-15 (1972); see also "Regardless of the juvenile's age, police must use their best efforts to locate a parent or legal guardian before beginning the interrogation." In re J.F., 286 N.J. Super. 89, 98 (1995). Quoting State v. Presha, 163 N.J. Id. at 314-16 (2000). In the case at hand, the murder took place on January 16, 1993. The juvenile was tricked into coming to the prosecutors office on February 4, 1993, approximately one month later. Investigators did not make a single effort to try to contact a parent or legal guardian. Instead, it was a knowing a purposeful plot to unjustly coerce the juvenile into making a statement they knew to be false. I have all legal documentation to back my thorough claims of innocence. I am also willing to provide copies of said documentation to anyone who is curious or ready and willing to lend a helping hand in our quest to prove our actual innocence. For years I have written letters to numerous innocence projects and a list of them is available through inquiry to prayercare@aol.com. None of them stated they could provide support since I did not have DNA evidence in my case. Many explained that I had to be from their geographical location, or, that I had to first exhaust all of my legal appeals in order for them to provide assistance...I had to be on my last leg, as it were. With the assistance from Spiritual Resource Services at Prayergear.com, I am blessed to get this scribe on line so that people can hear my cries for justice. To continue with legal arguments that may be of service to the many others in my situation, let me also opine the motion judge displayed this disregard the the US Constitution when he rejected the testimony of the two recanting witnesses to be given at the new trial motion hearings. In Fort, Supra, the Court found "The sixth amendment to the United States Constitution provide that an accused in a criminal prosecution has the right "to have compulsory process for obtaining witnesses in his favor." Through the due process clause of the fourteenth amendment, that right applies to the states. Washington v. Texas, 388 U.S. 14, 17-18, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019, 1022-23 (1967). In virtually identical language to the United States Constitution, the New Jersey Constitution also guarantees the right to compulsory process to a criminal accused. N.J. Constitution of 1947 art. I,, par. 10. Fort Supra. In an adversarial criminal proceeding, the "search for truth" is not well served when the State attmepts to fortify its case "by sealing the lips of witnesses." Fort 101 N.J. Id . at 123, 131 (1985). The basic premise of our justice system is "that the fullest disclosure of the facts will best lead to the truth and ultimately to the triumph of justice." State v. Jamison , 64 N.J. 364, 375 (1974, quoting In re Richardson , 31 N.J. 391, 396 (1960), internal quotations omitted. With that principle in mind, a defendant's due process rights are violated when there is "substantial government interference with defense witness' free and unhampered choice to testify." United States v. Hammond , 598 F.2d 1008, 1012 (5th Cir. 1979, internal quotations omitted), rehearing granted , 605 F.2d 862, 864 (5th Cir. 1979, modifying remand to permit defendant to choose between having new trial or accepting prior judgment); see also Newell v. Hanks, 283 F.3d 827, 837 (7th Cir. 2002): United States v. Vavages , 151 F.3d 1185, 1188 (9th Cir. 1998): Lambert v. Blackwell , 387 F.3d 210, 260 (3d Cir. 2004). ("In order to violate the Constitution, the government's conduct must have 'substantially interfered' with a witnesses' choice to testify" quoting Feaster , Supra .) We have admonished both trial judges and prosecutors when they have improperly interfered with a defendant's right to call witnesses in his own defense. State v. Jamison, 64 N.J. at 374-77 quoting Feaster , Supra. Also in Jamison supra, "We are of course not prejudging the truthfulness of either of Roseboro's version as to what happened on the day of the assault and assume the trial court was not either, as clearly it should not have. But the principle of full disclosure is not weakened by the obvious consideration that witnesses will lie as well as tell the truth. The assumption is that, in the long run, given all available information, the fact finder will generally arrive at the truth." State v. Jamison , 64 N.J. Id. at 376 (1974.) In Webb, supra, the United States Supreme Court reversed a state court conviction on due process grounds "because the trial judge had used such 'unnecessarily strong terms" in warning a defense witness about perjury that he 'effectively drove the witness off the stand." Fort supra , 101 N.J. at 129 quoting Webb, supra , 409 U.S. at 98, 93 S.Ct. at 353, 34 L.Ed. 2d at 333). The Court reasoned that the judge "coerced the only defense witness into refusing to testify" by threatening the witness that if he lied he would be indicted for perjury. Webb, Supra , 409 U.S. at 96-98, 93 S.Ct. at 352-53, 34 L.Ed. at 332-33. In Washington v. Texas, Supra, the United States Supreme Court found violative of the sixth amendment, as applied through the fourteenth amendment, two state statutes that prohibited co-indictees from testifying for one another, although they were free to testify for the state. Chief Justice Warren, writing for the Court, state, "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the accused has the right to confront to prosecution's witnesses for the purpose of challenging their testimony, he had to right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law. 388 U.S. at 19, 87 S.Ct. at 1923, 18 L.d.2d at 1023, quoting Fort, 101 N.J. at 128 (1985). The Courts generally regard recantation testimony as suspect and untrustworthy, and consequently, the burden of proof rests on those presenting such testimony to establish that it is probably true and the trial testimony probably false. Carter, supra, 69 N.J. at 427; State v. Feaster , 184 N.J. Id. 239 (2005). In our quest to prove our illegal incarceration was the product of injustice at the hands of our legal system, we presented the below listed case law to the motion judge who rejected our cries, even in the face of true justice. In Brady, the Court held "that the suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecutor." 373 U.S. at 87, 83 S.Ct. 1194 (1963). The Court have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused. United States v. Agurs, 427 U.S. 97, 107, 96 S.St. 2392, 49 L.Ed.2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id . at 682, 105 S.Ct. 3375. Kyles v. Whitley , 115 S.Ct. 1555 (1995). Mooney v. Holohan , 55 S.Ct. 340 (1935). State v. Cahill , 125 N.J. Super, 492 (1973). Nepue v. Illinois , 79 S.Ct. 1173 (1959). The factors demonstrated in the case law listed throughout this scribe has been thoroughly and fairly presented to the motion judge, but the judge refused to bow down to the clear facts. His refusal to simply "bear witness" results in our continual unjustifiable and illegal imprisonment. I know many people who are too deep in their own pride to ask for a "hand out." I am not one of those people. I know and understand that we, all people of the world, are put here for the positive reasons and purposes of protection, comfort, company, guidance, and the helping hand. In such a predicament, where we are suffering from the negation of life, liberty and human decency, at the hands of a legal system who gets power from its secret injustices, we seek to show the good people of the world who don't know. We believe in the power of the people who can make changes and eventually break the chains of an unjust bondage taking place here. I was taken away from my daughter who was ten months at the time. Today, she is 13 years old and in March she will turn 14. I have missed very important productive stages in her life. You can only imagine my pain and my need for a helping hand to show that we are innocent and was never proven guilty. The state's case consisted of illegal seizures, coercing two juveniles into signing statements known to be false, both on the record and off deals in exchange for knowingly false testifying witnesses. The state had to result to using a prosecution informant who was a known criminal, to trick to juveniles into the prosecutor's office where they signed false statements. At the new trial motion hearings held in 2004, the juvenile witness testified that, prior to taking the stand to testify at trial, he told the state prosecutor that the statement was not true. The witness testified at the new trial motion hearing that, when he explained the falsity of the statement to the prosecutor, that prosecutor told him "when you get on the stand, and I ask is the statement true, you just say yes or else I would charge you with perjury." This fact was never brought out at trial. Rather, the prosecutor allowed for this witness to give incriminating testimony against us without correcting its falsities. As clearly demonstrated throughout this scribe, I am willing to offer any and all documentation to those who are seeking to provide us the support and helping hand that we need in order to see that true justice is done. [Note from JSH: What you have read above is no exception as so many similar renditions of how legal cases are adjudicated are on record. See for yourself by visiting the other resources on our Prison Ministry pages.] |
|
WIN MENTALITY BREEDS UNJUST JUSTICE SYSTEM By Paul Campos, law professor, University of Colorado When I meet him for lunch in downtown Boulder, Colo., I find that Gerry Spence looks exactly like Gerry Spence. This is disconcerting: In my experience, people one sees on TV rarely look the same when one meets them away from the small screen. Spence, who is in town to talk about his new book, "The Smoking Gun," very much looks the part he plays so well in the media: the lone gunslinger from Wyoming, who in half a century of legal work has never lost a jury trial. The American legal system has made Spence rich and famous, but he gives no quarter when describing it inadequacies. "That the average American can get justice in this country is a dangerous myth," he says. "If you're charged with a crime and can't afford your own lawyer - and most people can't - you're going to be represented by an extremely overburdened public defender; who is handling dozens of cases at the same time, and who simply doesn't have the resources to battle the government's prosecutors." In Spence's opinion, prosecutors will do anything to win convictions, "because winning is what turns little fish into sharks." Every prosecutor, he says, uses coercive charging schemes, in which defendants are routinely overcharged, to allow for plea-bargained conviction to a lesser offense. I ask him how often, in his experience, prosecutors refuse to bring cases they think they can win, if they don't believe a fair interpretation of the evidence would prove guilt beyond a reasonable doubt. He laughs: "In 51 years of practicing law, I've never met a prosecutor who would refuse to charge a case he thought he could win, no matter how weak the evidence was. In our system, winning is everything, for both the prosecution and the defense. We really haven't progressed much past trial by ordeal." "The purpose of the law is to keep those with power in power," he says. "It's not to bring about justice. The system wants to get rid of those whom it fails, rather than acknowledging its failure." He relates a harrowing tale of a "totally crazy" client - a paranoid schizophrenic who willed his mother and a 7-year-old child on the day he was released from custody. "Now the state wants to kill him, of course." I ask him what he would change about the system. He suggests that judges should be chosen from all practicing trial lawyers, and rotated in and out of legal practice. He recommends merging the district attorney's and the public defender's office into a single department, with identical budgets and caseloads. Whether a government employee would prosecute a case or defend a client in the context of any particular case would be decided by lot. The department's goal would be to achieve justice, he says, not to secure convictions or acquittals. He speaks of the case that gave birth to his new book. It's a familiar narrative: An overzealous prosecutor, a poor defendant on the margins of society, and "overwhelming" evidence of guilt that falls apart upon closer inspection. He sounds angry, and a little tired. Recently, a Denver-area district attorney told an auditorium full of law students that, in all the years she had been working in that capacity, she was confident her office had never secured a wrongful conviction. More frightening than the statement itself was the fact that she actually seemed to believe what she was saying. On one level, I can't even blame her: After all, we law professors make it out business to encourage students to accept pernicious nonsense as self-evident truth. In regard to that charge, at least, our law schools should be considered guilty until proven innocent. |
| Before Larry Peterson was released on bail, I
alerted you to an New Jersey Public TV and Radio program called Due Process
that featured his case. Many of you wrote to tell me you watched it on TV
and on webcast (which works great if you have a broadband Internet connection.)
Another innocent prisoner for whom we are advocating will be featured on NJN tomorrow (Sunday) morning at 9:30 and in the evening at 6:30, and again Tuesday night at 11:30 (EST.) (Those of you who cannot watch at those times or who are out of broadcast range can see the program via webcast on njn.net. Hit the NJ Public Television and Radio link, then click on Due Process.) Below is pasted the show's description from njn.net's web site. The unnamed prisoner that Due Process calls "one of New Jersey's most prolific jailhouse lawyers" is Ronnie Long, with whom I have been corresponding for several months now. David Shephard, mentioned below, is another innocent man who spent 11 years in prison. It will be interesting to see what the judge and lawyer have to say. Some details on Ronnie's case will be forthcoming. "Unless you’re facing capital charges, there’s just too little affordable legal representation—especially post-conviction. But, at times, the gap is filled by prisoners who spend their time reading law books, and helping fellow inmates to file appeals. In this edition of Due Process, Sandra King goes inside Northern State Prison to meet one of New Jersey’s most prolific jailhouse lawyers. Raymond Brown’s guests in the studio are former Federal Judge Stephen Orlofsky, Criminal Defense Lawyer Paul Casteleiro, and former prisoner David Shephard, who helped overturn his own rape conviction by turning to the prison law library." |
| O's post conviction hearing was held this afternoon
as scheduled. Sadly, the judge denied the PCR. She listened attentively
to O's attorney and the assistant prosecutor. Among many, I was struck by
one particularly revealing comment. The judge stated that the details of
the plea deal between the two people who did the brutal murder and the prosecutor
was none of her concern. (They got sentenced for aggravated manslaughter,
17 years. Even though there was testimony by these two that O was not involved
with the fight that led to murder, O refused to plea bargain in his innocence
and got 30 years for first degree murder.) Now we appeal. Larry Peterson has many unnecessary obstacles to overcome in order to work. (Larry was proven innocent through DNA forensics after 18 years in prison.) The prosecutor still has not decided to drop the case and the hearing that was canceled in the beginning of this month, the December hearing that was postponed to February, has been postponed to May. Meanwhile, Larry continues to inform church assemblies, college students and state legislators of the state of our legal system with prayers for the innocents and wrongly convicted. |
B (Brett), whose letters were full of faith and
inspiraton as examples to us, died in prison on February 15, 2006. He is
now truly free. Here is a sketch of his vision of Christ mailed to us a few
months ago:
|
| Today, at noon, the Burlington Prosecutors Office
informed the Court that all charges and intentions to retry Larry Peterson
have been dropped. Larry was the first in New Jersey to be scientifically
exonerated by DNA forensics and now is the first to be legally exonerated
as an innocent person who served 18 years in prison. Having been released
on bail last August 27, Larry and his family have been waiting 9 months
for this decision. They are spending many hours in joyful tears this afternoon. Watch the South Jersey newspapers and the AP report tomorrow and the local and national TV broadcasts this afternoon, tonight and this weekend. Thank you so much for your support and prayers! I'll continue to be in touch about what Larry will be doing next and the progress of the others still in prison or waiting retrial. (5/26/06) ***************************** The Innocence Project is headquartered in New York, so it's not surprising that the New York Times published the most revealing report concerning the Burlington County Prosecutor's Office tactics. I pasted it below. As you will read, the Innocence Project attorney is calling for an independent investigation of the prosecutor's office. -------------------------------------------------------------------------------- May 27, 2006 Case Dropped Against New Jersey Man After 18 Years By LAURA MANSNERUS Prosecutors have dropped their rape and murder case against a New Jersey man who was cleared by DNA testing after spending almost 18 years in prison and most of the last year awaiting a second trial for the brutal killing of a young woman. The Burlington County prosecutor filed a motion yesterday asking for a dismissal of the original indictment against the man, Larry Peterson of Pemberton Township, in part because a key prosecution witness recanted much of the account he had given at Mr. Peterson's trial when he was interviewed by investigators again last month. Prosecutors had refused to drop the case on the basis of the DNA findings, even after Mr. Peterson's conviction was overturned in July. Prosecutor Robert D. Bernardi cited three witnesses who said Mr. Peterson had confessed the crime to them as they drove to work together the morning after the murder. Judge Thomas S. Smith Jr. of Superior Court in Mount Holly signed the order dismissing the charges. "I was emotional, overwhelmed" by the news, Mr. Peterson said yesterday in a telephone interview. "I have proclaimed my innocence for so long, and now others will know I'm innocent as well." Earlier in the day, Mr. Peterson's lawyer, Vanessa Potkin, reached Mr. Peterson by cellphone on the job at a construction site, a job that he found just last week after what the lawyer, Vanessa Potkin, called "a very difficult year" while he was out of jail on bail. Mr. Peterson plans to apply for compensation under New Jersey's 1997 wrongful imprisonment law. For each year of incarceration he could receive $20,000 or twice the income he earned in the year before he was jailed, whichever is higher. Mr. Peterson's was the first homicide conviction in New Jersey to be overturned on the basis of DNA evidence, although three rape cases in the state have been dismissed. Mr. Peterson is the 180th prison inmate to be exonerated since the advent of DNA testing, said Ms. Potkin, who works at the Innocence Project, a nonprofit legal clinic in Manhattan. "Here we have a man who was charged with capital murder, he went on trial for his life and he could have been executed," Ms. Potkin said. "His case is a perfect illustration of how dangerous snitch testimony is." Mr. Peterson was arrested soon after the mutilated body of Jacqueline Harrison, 25, a neighbor in rural Pemberton Township, was found in a soybean field on Aug. 24, 1987. DNA testing was not available at the time, but a state forensic expert testified that hairs found at the crime scene "microscopically matched" Mr. Peterson's. From prison, starting in 1993, he fought for 10 years to get DNA testing on the hairs, on semen found in Ms. Harrison's mouth and vagina and on blood found under her fingernails. The prosecution opposed the request, but the Appellate Division of Superior Court ordered the testing in 2003. The test results produced the genetic profile of an "unknown male" as the source of semen and fingernail scrapings. In the brief filed yesterday, prosecutors acknowledged that when they once again tracked down the three men who said Mr. Peterson had confessed to them, their recollections and reliability had "eroded substantially." One witness, Robert Elder, said he had "made up" some key facts and based others — which only the killer or the police could have divulged — on conversations among detectives that he heard while he was being questioned. Mr. Elder, who prosecutors said was found in the county jail last month and was not immediately cooperative, was granted immunity for his statements recanting his earlier account. The prosecutor's office said in its filing that Mr. Elder "made no claims that police induced him to fabricate his earlier testimony." The end of the case comes less than two weeks after Douglas R. Warney, also represented by the Innocence Project, had his murder conviction overturned by a court in Rochester on May 16. Mr. Warney, who was retarded and suffered from AIDS-related dementia, had signed a confession and given detectives information that they said only the killer could know. He was freed only after blood found at the scene was linked to another man, who admitted the crime. Ms. Potkin called for an investigation of "how Elder came to learn the details of the crime, details that were held up as proof at trial that Larry Peterson was the assailant. "The officers were people who worked at the Burlington County Prosecutor's Office. So the case calls for an independent look at how they came to get fabricated testimony. I don't think you could rely on the prosecutor's office to investigate their own detectives." Mr. Bernardi, the prosecutor, could not be reached for comment yesterday afternoon. A spokesman for the prosecutor's office, Jack Smith, said he did not know whether the other two witnesses could be prosecuted or whether any investigation was contemplated. Mr. Elder said of the witnesses: "I don't even think about them. The witnesses will have to live with themselves. I'm thinking about getting on with my life." |
Back to the top
| JM NEWSLETTER (Justice & Mercy, Inc.) SPRING 2006 ‘SENATOR GREENLEAF WANTS INNOCENCE COMMISSION - SEES NEED IN “BARS TO BRIEFCASES” FORUM’ BY Jean M. Bickmire “I’m innocent” is a statement from convicted prisoners not taken seriously most of the time. However, citing the increasing number of convicted people being proven innocent across the United States with at least eight in Pennsylvania, State Senator Stewart Greenleaf, Chair of the State Senate Judiciary Committee, is leading the way to create The Innocence Commission which would study why so many people are wrongfully convicted. The goal is to correct and improve the judicial system so the innocent do not serve sentences for crimes they did not commit. A hearing was called by the Senate Judiciary Committee on January 23 at the Harrisburg Capitol to hear testimony on Senate Bill 1069 which establishes The Innocence Commission. The “Bars to Briefcases” forum on November 1 with lead sponsor Justice & Mercy, Inc. inspired the senator, who was also a sponsor along with Senator Vincent Fumo, D-Philadelphia, and Representative Tom Creighton, R-Lancaster, to press for key legislation in the state. The senator said Justice & Mercy, Inc. helps educate the people of Pennsylvania on the issues so they can address them to their legislators. At the forum, Senator Greenleaf spoke not only of amending the DNA testing law to make sure defendants are not denied the right to prove their innocence but he proposed the Eye Witness Identification Act to ascertain that procedural bias does not affect eyewitness results and compensation for the wrongfully convicted to help rebuild their lives. [State Representative Michael McGeehan, D-Philadelphia, is sponsoring House Bill 1473 that would award an innocent person an amount equal to lost wages or the highest a legislator would be able to collect in expense money, whichever is higher, and include $50,000 for each year on death row, medical care and other various expenses.] At the forum, Senator Greenleaf met Steve Saloom, Policy Director of the Innocence Project in New York, who was the luncheon keynote speaker. The Innocence Project began in 1992 at the Benjamin Cardozo Law School using DNA testing to help exonerate 175 inmates in the U.S. to date. Saloom expressed high praise for Senator Greenleaf’s sponsorship of the “Bars to Briefcases” forum as well as for Senator Fumo and Representative Tom Creighton. Saloom said he considered Pennsylvania to be “the cradle of liberty”. “Everyday, each and every one of us determines the justice that we will live with”, Saloom remarked. The Innocence Project helped exonerate Thomas Doswell who spent 19 years in state prison accused of rape. DNA testing proved Doswell did not commit the crime despite the victim testifying that he was the perpetrator. Saloom said eye witness error is a factor in 75% of wrongful convictions with some cases having multiple eye witness errors. Before he was falsely imprisoned, he worked for the Housing Authority of the city of Pittsburgh. But, since his release, he has no medical benefits and has yet to get a job. Last November, Allegheny County District Attorney Stephen A. Zappala, Jr. expunged the criminal record so Doswell does not have to list a felony on his job applications. The expungement was the first among the eight exonerated persons. Current law does not remove convictions from records even if innocence is proven. Typically, people proven innocent must still file for a pardon to remove felony records. Senator Greenleaf has vowed to work to change the law so convicted people who prove their innocence can have their records automatically expunged. Senator Greenleaf also has supported compensating wrongfully convicted people for their time in prison. Saloom agreed saying good will and apologies only go so far and many people exonerated feel their sentences continue beyond release. Doswell testified at the Innocence Commission hearing that SB1069 could have prevented his incarceration of 19 years. The Pa. Board of Probation and Parole turned Doswell down for parole five times as he kept maintaining his innocence. The Board’s policy is that prisoners up for parole must confess to their crimes before release. Doswell said he “stands on principles given that if he didn’t do anything wrong, he shouldn’t confess it”. Doswell credited the Innocence Project with helping him get DNA testing. But the real perpetrator was never found Doswell said. Doswell was one of three people exonerated with DNA testing at the Innocence Commission hearing. Nicholas Yarris, testifying from his home in London through satellite transmission, said he was arrested in 1982 of kidnapping and murder and was sentenced to death. He contracted Hepatitis C in prison, failed treatment and was diagnosed terminally ill. In March 2003, Yarris had an evidentiary hearing and requested either to have a DNA test or to be executed. He agreed if the DNA test came back positively identifying him as the perpetrator that he would not appeal his execution. The DNA test proved his innocence and Yarris was freed in 2004 after serving more than 20 years in prison for a crime he did not commit. Yarris was among many testifying that eye witness identification can be swayed by biased procedures. Vincent Moto spent over ten years in prison for rape and robbery. He was declared guilty with key eye witness testimony which was proven false in 1995 when Moto got DNA testing. Moto said his case was the first in Pennsylvania to use DNA testing to obtain his release and opened the door to other cases. Moto said SB1069 is a great idea but suggested improvements such as amending the Post Conviction Relief Act (PCRA) which has currently has time limits. He also said the judicial system should be educated on DNA testing stating that the judges and attorneys in his case did not know how to use this relatively new technology. Steve Saloom agreed that the court system needs to be educated on new forensic capability. Steve Saloom testified at the Innocence Commission hearing that SB1069 has the potential to be among the best in the nation with Pennsylvania as a model for other states considering the same safeguards. Before DNA testing, eye witness testimony and police interrogation were considered some of the best evidence of guilt or innocence. However, Saloom said DNA evidence is available for testing in only 20% of court cases. Saloom recommended the Innocence Commission study other problems in the judicial system such as interrogation techniques and eye witness identification procedures. He said the arresting officer should not participate in the suspect’s eye witness identification which may create unknowing bias. Many, including Saloom, cited the potential misuse of police interrogations in which suspects may be pressured into false confessions. Law enforcement uses such means as lengthy interviews of suspects for hours at one time and pressure on suspects who are intimidated by authority especially juveniles and the mentally ill. Saloom pointed out that over 20% of exonerations were originally convicted because of false confessions. Interrogations should be recorded on videotape as well as audiotape to prove there is a confession and that it was not coerced. Saloom also suggested that the Innocence Commission study Pennsylvania’s crime labs to make sure the integrity of the evidence is at the highest possible level. Professor John Rago of Duquesne University School of Law agreed with the Innocence Commission’s study and said education is the key to reforming judicial procedures to determine guilt or innocence. Professor Rago works with the Innocence Project and studies post-conviction DNA testing. Rago, who met Senator Greenleaf at the November 1 forum, also was among those who credited the senator with his concern for ascertaining the highest ethical standards exist in the judicial system. Rago claimed that people would be shocked that exonerations could be in the thousands if the judicial system had the necessary resources to investigate the cases. Tom Zeager, President of Justice & Mercy, declared the poor are going to prison at alarming rates and agreed that they falsely confess as they do not have the means to pay for effective legal counsel so plea bargain for lesser sentences. Zeager supports the Innocence Commission in investigating the system to make sure the guilty are prosecuted rather than the innocent. Roger Thomas, Director of United Methodist Witness Team and recently on the SR 149 State Prison Study Task Force, testified at the hearting that he agreed with the Innocence Commission but is concerned it may be too narrow in its scope and asked that the judicial system as a whole be examined. Thomas said only three of the eight people exonerated in Pa. were from DNA testing. Most of the cases dealt with ineffective jury instructions or ineffective counsel. Thomas pointed out that DNA testing points to problems in the judicial system that need to be rectified. Senator Greenleaf’s office agreed and said the purpose of the Innocence Commission is to use the certainty of DNA testing to examine the problems in the judicial system and put procedures in place to correct these faults. Sponsors of the bill are Senator Stewart Greenleaf, R-Montgomery; Senator Charles Lemmond, Jr. R-Luzerne; Senator Jay Costa, D-Allegheny; Senator Michael O’Pake, D-Berks; Senator Lisa Boscola, D-Northampton; Senator John Pippy, R-Montgomery; Senator Robert Wonderling, R-Montgomery; Senator Wayne Fontana, D- Allegheny; Senator Patrick Browne, R-Lehigh; Senator Shirley Kitchen, D-Philadelphia; Senator John Wozniak, D-Cambria; and Senator Constance Williams, D-Delaware. The bill came out of the Senate Judiciary Committee on February 14 and is expected to be considered by the senate this spring. Please contact your state legislators to tell them of your support for Senate Bill 1069 establishing the Innocence Commission. Senator Stewart J. Greenleaf Bio: Senator Stewart J. Greenleaf, R-Montgomery/Bucks, a member of the Senate since 1978, as Chairperson of the Senate Judiciary Committee has participated in the development of recommendations to improve the process of judicial selection and was prime sponsor of constitutional amendment legislation to revise the state’s system of judicial discipline. He was Chair of the study of Geriatric and Seriously Ill Inmates. He achieved passage of legislation to reduce overcrowding in state prisons and county jails through intermediate punishment programs and is also a sponsor of state sentencing reform legislation that provides for addiction treatment for eligible offenders. He also enacted legislation to further protect victims’ rights. Senator Greenleaf has received numerous awards for his service to the state. [Review his bill below.] |
Back to the
top
| PRIOR PRINTER'S NOS. 1468, 1519 PRINTER'S NO. 1714 THE GENERAL ASSEMBLY OF PENNSYLVANIA SENATE BILL No. 1069Session of 2006 INTRODUCED BY GREENLEAF, LEMMOND, COSTA, O'PAKE, BOSCOLA, PIPPY, WONDERLING, FONTANA, BROWNE, KITCHEN, WOZNIAK, C. WILLIAMS, STACK, FERLO, LAVALLE AND WASHINGTON, JANUARY 24, 2006 SENATOR WENGER, APPROPRIATIONS, RE-REPORTED AS AMENDED, APRIL 18, 2006 AN ACT 1 Establishing the Innocence Commission of Pennsylvania; providing 2 for its duties; and providing for the powers and duties of 3 the Joint State Government Commission. 4 The General Assembly of the Commonwealth of Pennsylvania 5 hereby enacts as follows: 6 Section 1. Short title. 7 This act shall be known and may be cited as the Innocence 8 Commission Act. 9 Section 2. Definitions. 10 The following words and phrases when used in this act shall 11 have the meanings given to them in this section unless the 12 context clearly indicates otherwise: 13 "Commission" or "Innocence Commission." The Innocence 14 Commission of Pennsylvania. 15 Section 3. Innocence Commission. 16 (a) Establishment.--The Innocence Commission of Pennsylvania 17 is hereby established. 1 (b) Membership.--The commission shall be composed of 2 approximately 30 members recommended by the Governor, the Chief 3 Justice of the Pennsylvania Supreme Court and the members of the 4 General Assembly. Using their recommendations, the Joint State 5 Government Commission shall invite members to participate on the 6 commission based on competence, experience and anticipated 7 commitment. Invitations shall be further based on the need for 8 the commission to be diversely representative of the criminal 9 justice system and geographically representative of 10 Pennsylvania. Representation must include at least one member 11 from the following constituencies: prosecution, defense, law 12 enforcement, corrections, judiciary and victim assistance. In 13 addition, the commission may include representatives of 14 academia, private and public organizations involved in criminal 15 justice issues and other criminal justice experts. 16 (c) Chairperson and vice chairperson.--The members shall 17 elect, by a majority vote of the voting members, a chairperson 18 and a vice chairperson. 19 (d) Quorum.--The members present and voting at any announced 20 meeting shall constitute a quorum for the purpose of transacting 21 business. 22 (e) Work of the commission.--The commission may establish 23 subcommittees to conduct research, to consider and make 24 recommendations on specific topics and to report back to the 25 full commission. Whenever possible, members of a subcommittee or 26 the commission shall reach a consensus on the findings and 27 recommendations of the commission. 28 (f) Compensation.--The members shall not receive a salary or 29 per diem allowance for serving as commission members but shall 30 be reimbursed for actual and necessary expenses incurred in the 20060S1069B1714 - 2 - 1 performance of their duties. 2 (g) Staff.--The Joint State Government Commission shall 3 provide staff services to the commission. These services may 4 include organizing meetings, conducting research and drafting 5 reports and legislation. 6 Section 4. Purpose and duties. 7 (a) Purpose.--The purpose of the commission is to study the 8 underlying causes of wrongful convictions so that it may make 9 recommendations intended to reduce or eliminate the possibility 10 that in the future innocent persons will be wrongfully convicted 11 in this Commonwealth. 12 (b) Powers and duties.--The commission shall have the duty 13 to: 14 (1) Review cases in which an innocent person was 15 wrongfully convicted and subsequently exonerated. 16 (2) Identify the most common causes of wrongful 17 convictions. 18 (3) Identify current laws, rules and procedures 19 implicated by each type of causation. 20 (4) Identify through research, experts and discussion 21 potential solutions in the form of legislative, rule or 22 procedural changes or educational opportunities for 23 elimination of each type of causation. 24 (5) Consider potential implementation plans, cost 25 implications, including possible savings, and the impact on 26 the criminal justice system for each potential solution. 27 (6) Issue interim reports and/or a final report 28 recommending solutions for each causation issue identified, 29 including recommending implementation plans, identifying cost 30 implications, including possible savings, and discussing the 20060S1069B1714 - 3 - 1 potential impact on the criminal justice system of the 2 recommendation. 3 Section 5. Subpoena power, oaths and affirmations. < 4 On behalf of the Innocence Commission, the Joint State 5 Government Commission may issue subpoenas duces tecum and other 6 necessary process to compel attendance of witnesses and the 7 production of any books, letters or other documentary evidence 8 desired by the Innocence Commission. The chairman of the 9 SECTION 5. OATHS AND AFFIRMATIONS. < 10 THE CHAIRMAN OF THE Innocence Commission may administer oaths 11 and affirmations in the manner prescribed by law to witnesses 12 who shall appear before the commission for the purpose of 13 testifying in any matter about which the commission may desire 14 evidence. 15 Section 6. Subsequent proceedings. 16 The findings and recommendations of the commission shall not 17 be binding in any subsequent civil or criminal proceeding. 18 Section 7. Expiration. 19 The provisions of this act shall expire five years from the 20 effective date of this section unless further extended by act of 21 the General Assembly. 22 Section 8. Effective date. 23 This act shall take effect in 60 days. A3L42RLE/20060S1069B1714 - 4 - |
See
Page 1