History > 2008 > USA > Justice > States (III)

American Exception

U.S. Is Alone

in Rejecting All Evidence

if Police Err

July 19, 2008
By ADAM LIPTAK
The New York Times

Bradley Harrison was driving a rented Dodge Durango from Vancouver to Toronto in the fall of 2004 with 77 pounds of cocaine in the trunk when a police officer pulled him over, found the drugs and arrested him.

A year and a half later, an Ontario trial judge ruled that the officer’s conduct was a “brazen and flagrant” violation of Mr. Harrison’s rights. The officer’s explanation for stopping and searching Mr. Harrison — confusion about a license plate — was contrived and defied credibility, the judge said, and the search “was certainly not reasonable.”

In the United States, that would have been good news for Mr. Harrison. Under the American legal system’s exclusionary rule, the evidence against Mr. Harrison would have been suppressed as the result of an unlawful search.

But both the Canadian trial judge and an appeals court refused to exclude the evidence. Mr. Harrison was sentenced to five years in prison.

“Without minimizing the seriousness of the police officer’s conduct or in any way condoning it,” the Court of Appeal for Ontario ruled in Mr. Harrison’s case in February, “the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission.” The case is now before the Canadian Supreme Court.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of careless record-keeping by another police department.

Elsewhere in the world, courts have rejected what the Ontario appeals court in Mr. Harrison’s case called “the automatic exclusionary rule familiar to American Bill of Rights jurisprudence.”

Australia also uses a balancing test. It considers the seriousness of the police misconduct, whether superiors approved or tolerated it, the gravity of the crime and the power of the evidence. “Any unfairness to the particular accused” in most cases, the High Court of Australia wrote in 1995, “will be of no more than peripheral importance.”

The European Court of Human Rights, a notably liberal institution, refused in 2000 to require the suppression of illegally obtained evidence. Using such evidence to convict a man charged with importing heroin into England, the court said, did not make his trial unfair.

In the United States, by contrast, evidence against criminal defendants is routinely and automatically suppressed when police misconduct is found. In the last week of June, for instance, courts in Georgia, Ohio, Pennsylvania, Virginia and Washington state suppressed evidence in cases involving drugs, guns, burglary and child pornography under the mandatory version of the exclusionary rule.

Some specialists in comparative criminal law say that the decentralized nature of American law enforcement, with thousands of local police departments around the nation, requires a more rigorous and consistent approach to deterring misconduct. The law enforcement systems in Canada and England, by contrast, are notably less fragmented and may be subject to more stringent professional discipline.

But not always. The officer who pulled over Mr. Harrison’s car in Ontario thought the car should have had a front license plate, even though the car was from Alberta, which does not require one. “We respect the decision of the courts,” said Sgt. Pierre Chamberland, a spokesman for the Ontario Provincial Police, but “their criticism alone does not by default lead to an internal complaint.”

Supporters of the American practice say that only strict application of the exclusionary rule can effectively address violations of the Fourth Amendment, which bans unreasonable searches and seizures.

“The exclusionary rule deters police misconduct in a straightforward and effective way,” said a supporting brief filed by the National Association of Criminal Defense Lawyers in the case the Supreme Court will hear in October. “It reduces the value of evidence obtained as a result of Fourth Amendment violations, and thus eliminates what would otherwise be a powerful incentive for police to engage in such violations.”

Several justices have in recent years questioned whether the rule still makes sense in light of what they called the increased professionalism of the police and the availability of alternative and arguably more direct ways to punish misconduct, including internal discipline and civil suits.

Opponents of the rule say it is indirect, incomplete and in a way perverse. Even if it deters unlawful searches, exclusion of evidence, for instance, offers no remedy to innocent people whose rights were violated by unlawful searches.

More important, as Justice Robert H. Jackson wrote in 1954, the exclusionary rule “deprives society of its remedy against one lawbreaker because he has been pursued by another.” Or, in Judge Benjamin Cardozo’s famous mocking formulation in a 1926 decision for New York’s highest court rejecting the rule: “The criminal is to go free because the constable has blundered.”

That reasoning continues to resonate with some experts.

“Lots of scholars argue that the mandatory exclusionary rule ought to be re-examined,” said David A. Sklansky, a law professor at the University of California, Berkeley. “Those scholars are not all on the right of the political spectrum.” Professor Sklansky said he believed that the rule’s benefits continued to outweigh its costs.

Most specialists continue to support the rule, said Orin S. Kerr, a law professor at George Washington University. “The U.S. experience is a consequence of history,” Professor Kerr said. “It’s a response to the police not following the law in the absence of this remedy.”

The idea that exclusion is the proper response to police misconduct is of relatively recent vintage.

“Supporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial,” Akhil Reed Amar, a law professor at Yale, wrote in The Harvard Law Review in 1994.

According to Professor Amar, the framers of the Fourth Amendment assumed that the right it guaranteed would be enforced through civil lawsuits, not exclusion. “Both before and after the Revolution,” he wrote, “the civil trespass action tried to a jury flourished as the obvious remedy against haughty customs officers, tax collectors, constables, marshals and the like.”

These days, law professors and defense lawyers say, civil suits are less likely to be effective. Criminals whose rights have been violated are not attractive plaintiffs, and they may not have the resources to litigate, particularly from behind bars. Civil suits must, moreover, overcome various legal doctrines limiting the liability of police officers and their employers.

The Supreme Court started requiring the exclusion of improperly obtained evidence in 1914 — but only in federal cases.

For many decades afterward, the Supreme Court refused to apply the principle to states, saying they could choose the appropriate remedy for police misconduct — including civil suits and criminal prosecutions — and were not required to suppress evidence. In a 1949 decision, the court justified that position in part with a rationale now disfavored in some circles: a survey of foreign law.

“Of 10 jurisdictions within the United Kingdom and the British commonwealth of nations,” Justice Felix Frankfurter wrote for the majority, “none has held evidence obtained by illegal search and seizure inadmissible.” The right to be free of arbitrary police intrusion is fundamental, Justice Frankfurter wrote, but the legal remedy for the violation of that right can vary.

It was not until 1961 that the Warren Court, in one of its signature decisions, concluded in Mapp v. Ohio that only the mandatory suppression of evidence could adequately address wrongdoing by the police in all cases, state and federal.

Seven Cleveland police officers had broken into and searched Dollree Mapp’s home without producing a warrant, manhandling her and rummaging through her personal papers. Though the Ohio Supreme Court concluded that the search had been unlawful, it affirmed Ms. Mapp’s conviction on obscenity charges based on materials the police found in her home.

That was too much for a majority of the Supreme Court to stomach. “The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold,” Justice Tom C. Clark wrote for the court. Only the exclusion of evidence could do the job, he said; other remedies had proved “worthless and futile.”

The Supreme Court has in recent years whittled away at the exclusionary rule by limiting its applicability and creating exceptions to it. Chief Justice John G. Roberts Jr. and Justice Scalia, neither of whom is enamored with citing foreign law, each noted in recent decisions that the American approach in this area is unique and has been universally rejected elsewhere.

In a third decision two years ago, Hudson v. Michigan, Justice Scalia seemed to say that the exclusionary rule had outlived its original purpose. The case involved a conceded violation of a rule requiring police executing a search warrant to knock and announce themselves.

Much had changed since the exclusionary rule was applied to states in 1961, Justice Scalia wrote. Police departments had become more professional, he said, and various kinds of civil suits against officials and the government had become available. “As far as we know,” Justice Scalia wrote for the court, “civil liability is an effective deterrent.”

Justice Stephen G. Breyer, writing for the four dissenters, said that exclusion remains the best and most reliable deterrent. He added that the logic of the majority’s objections was not limited to “knock and announce” violations but was “an argument against the Fourth Amendment’s exclusionary principle itself.”

    U.S. Is Alone in Rejecting All Evidence if Police Err, NYT, 19.7.2008, http://www.nytimes.com/2008/07/19/us/19exclude.html?hp

No Retrial in ’88 Double Killing on Long Island

July 1, 2008
The New York Times
By BRUCE LAMBERT

RIVERHEAD, N.Y. — A criminal investigation that started two decades ago effectively came to an end on Monday, as the state attorney general’s office said it would not retry Martin H. Tankleff for the murder of his parents.

Though Mr. Tankleff has accused others of being the culprits, and the state conceded that “there is some evidence that others may have committed the killings,” it concluded that the evidence was too shaky to prosecute them. Mr. Tankleff’s convictions were overturned in December after he had spent 17 years in prison.

The developments came in Suffolk County Court here, where the attorney general’s representatives filed a motion to drop the original indictments against Mr. Tankleff “in the interests of justice.” Though the judge, Robert W. Doyle, reserved his decision, both sides said they expected him to grant the motion.

“It’s 20 years overdue,” a smiling Mr. Tankleff, 36, said at a news conference after the court proceeding. “I’m just looking forward to getting on with my life.” Because of the proceeding, he missed his first day of summer classes at Hofstra University, where he is studying to become a defense lawyer.

But the state’s findings disappointed Mr. Tankleff and his supporters on two major fronts. The state did not fully exonerate him, maintaining instead that there was “some evidence” of his guilt, but not enough to convict.

Unless additional new evidence arises, the investigation is now complete, a state official said. A separate inquiry of the entire case is pending at the State Commission of Investigation, but it does not have prosecutorial powers.

Asked about the possibility of a civil suit, Mr. Tankleff said, “This isn’t over for us.” One of his lawyers, Bruce A. Barket, said that although no decision had been made about suing either the county, its law enforcement agencies or the men they believe committed the crimes, Mr. Tankleff “certainly deserves compensation” for 17 years of wrongful imprisonment and his fear that he would never be free again.

Mr. Tankleff’s parents, Arlene and Seymour Tankleff, were slashed and bludgeoned on Sept. 7, 1988, in their home atop a cliff overlooking Long Island Sound in Belle Terre. He was 17 at the time. A jury convicted him in 1990, based largely on a disputed confession that the police wrote but that he repudiated and never signed, and Mr. Tankleff was sentenced to life in prison.

From prison, Mr. Tankleff filed a series of appeals. In December, the Appellate Division of State Supreme Court in Brooklyn unanimously overturned the convictions, saying that a jury would probably acquit Mr. Tankleff if it heard the extensive new evidence, much of it gathered by a private investigator, that he said implicated his father’s embittered business partner and a band of three ex-convicts.

Though the appellate ruling led to Mr. Tankleff’s release, it left the old indictments standing. After the Suffolk County district attorney, Thomas J. Spota, agreed to drop the charges, Gov. Eliot Spitzer appointed Attorney General Andrew M. Cuomo as a special prosecutor to review the case, and the indictments remained.

Mr. Cuomo’s chief trial counsel, Benjamin E. Rosenberg, summarized the state’s findings to Judge Doyle, saying, “After extensive review, the attorney general has determined that although there is some evidence that the defendant, Martin Tankleff, committed the crimes charged, after 20 years the evidence is insufficient to conclude or to prove beyond a reasonable doubt that he did so.”

Thus, Mr. Rosenberg said, the state is unable “to proceed in good faith with this case and ultimately to convince a jury of the defendant’s guilt beyond a reasonable doubt.”

Since the original trial, precedents in other cases would probably exclude the disputed confession from a new trial and would preclude retrying the “depraved indifference” murder charge in the mother’s death, the state said.

The state cast doubt on Mr. Tankleff’s theory of the case, noting that “many, but not all, of the witnesses the defense relied on have recanted their testimony or changed their stories when we interviewed them.” No details were given.

Disputing that, Mr. Barket, the defense lawyer, said, “We have talked to all our core witnesses, and they said they told the A.G. what they told us.”

Although the state said that some witnesses speaking on behalf of Mr. Tankleff were credible, many were unreliable. It concluded, “On balance, the defense theory does not appear to be supported by clear evidence; there are sufficient conflicting pieces that could raise the issue of reasonable doubt.”

One piece of new evidence was a bloody imprint on a sheet in Mrs. Tankleff’s bedroom that appeared to be from a knife — “presumably a murder weapon,” the state said. No matching knife was found, which suggested that someone other than Mr. Tankleff had taken it.

The state said it also discovered that the lead homicide detective in the case, James McCready, violated rules by showing crime-scene photographs to unauthorized persons.

Detective McCready’s credibility has been questioned. He denied at trial that he had known Seymour Tankleff’s business partner, Jerard Steuerman, but two new witnesses testified that they had seen the two men together.

Mr. Steuerman owed $500,000 to Mr. Tankleff, who was demanding repayment, and they fought over control of their bagel business. Mr. Steuerman was at the Tankleff home for a poker game late on the night of the attacks and was the last player to leave. He has denied guilt and “refused to cooperate in our investigation,” the state said.

“There are strong passions on all sides,” the attorney general’s motion said.

The passion was evident among the family, friends, lawyers and other supporters who packed the court, exchanging hugs and kisses.

They burst into applause when the investigator who produced the new evidence, Jay Salpeter, said he had a message for Mr. Tankleff’s parents: “It’s time now that you can rest in peace. Your son is home, and he’s here to stay.”

    No Retrial in ’88 Double Killing on Long Island, NYT, 1.7.2008, http://www.nytimes.com/2008/07/01/nyregion/01tankleff.html

Doubting Case,

a Prosecutor Helped the Defense

June 23, 2008
The New York Times
By BENJAMIN WEISER

The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office’s big cases — the 1990 shooting of a bouncer outside the Palladium nightclub — had been called into question by a stream of new evidence.

So the office decided on a re-examination, led by a 21-year veteran assistant, Daniel L. Bibb.

Mr. Bibb spent nearly two years reinvestigating the killing and reported back: He believed that the two imprisoned men were not guilty, and that their convictions should be dropped. Yet top officials told him, he said, to go into a court hearing and defend the case anyway. He did, and in 2005 he lost.

But in a recent interview, Mr. Bibb made a startling admission: He threw the case. Unwilling to do what his bosses ordered, he said, he deliberately helped the other side win.

He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them.

“I did the best I could,” he said. “To lose.”

Today, the two men are free. At the end of the hearing, which stretched over six weeks, his superiors agreed to ask a judge to drop the conviction of one, Olmedo Hidalgo. The judge granted a new trial to the other, David Lemus, who was acquitted in December.

Mr. Bibb, 53, who said it was painful to remain in the office, resigned in 2006 and is trying to build a new career as a defense lawyer in Manhattan — with some difficulty, friends say, in a profession where success can hang on the ability to cut deals with prosecutors.

Mr. Morgenthau’s office would not comment on Mr. Bibb’s claims. Daniel J. Castleman, chief assistant district attorney, would say only: “Nobody in this office is ever required to prosecute someone they believe is innocent. That was true then, as it is now. That being the case, no useful purpose would be served in engaging in a debate with a former staff member.” The office has said it had good reason to believe that the two men were guilty.

Yet whatever the facts of the murder, the dispute offers an unusual glimpse of a prosecutor weighing the demands of conscience against his obligation to his office, and the extraordinary measures he took to settle that conflict in his own mind.

“I was angry,” Mr. Bibb said, “that I was being put in a position to defend convictions that I didn’t believe in.”

The case also reveals a rare public challenge to one of the nation’s most powerful district attorneys from within his office. As the hearing unfolded in 2005, Mr. Morgenthau, running for re-election, was sharply criticized by an opponent who said he had prosecuted the wrong men.

By then, the Palladium case had become one of the most troubled in the city’s recent history, stirred up every few years by fresh evidence, heralded in newspaper and television reports, that pointed to other suspects.

It is not as if Mr. Morgenthau has refused to admit mistakes. In 2002, in spectacular fashion, his office recommended dismissing the convictions of five men in the attack on a jogger in Central Park, after its reinvestigation showed that another man had acted alone. “It’s my decision,” Mr. Morgenthau said then. “The buck stops here.”

In fact, the prosecutor who led that inquiry, Nancy E. Ryan, was Mr. Bibb’s supervisor in the Palladium case — though Mr. Bibb would not detail his conversations with her or other superiors, saying they were privileged.

Defense lawyers confirmed that Mr. Bibb helped them, though he never explicitly stated his intentions. Some praised his efforts to see that justice was done. Others involved in the case suggested he did a disservice to both sides — shirking his duty as an assistant district attorney, and prolonging an injustice by not quitting the case, or the office.

And some blame Mr. Bibb’s superiors. Steven M. Cohen, a former federal prosecutor who pushed Mr. Morgenthau’s office to reinvestigate, said that while Mr. Bibb should have refused to present the case, his bosses should not have pressed him.

“If Bibb is to be believed, he was essentially asked to choose between his conscience and his job,” Mr. Cohen said. “Whether he made the right choice is irrelevant; that he was asked to make that choice is chilling.”

At 6-foot-6, Mr. Bibb looks every inch the lawman, with a square jaw, a gravelly voice and a negotiating style that lawyers describe as brutally honest. He joined the district attorney’s office right out of Seton Hall Law School in 1982 and went on to handle some of its major murder cases and cold-case investigations.

The Palladium case certainly looked open and shut in 1992, when Mr. Lemus and Mr. Hidalgo were sentenced to 25 years to life. Several bouncers identified them as the men they scuffled with outside the East Village nightclub. Mr. Lemus’s ex-girlfriend said he claimed to have shot a bouncer there.

But the next decade brought a string of nagging contradictions. A former member of a Bronx drug gang confessed that he and a friend had done the shooting. That spurred new examinations by the district attorney’s office, federal prosecutors, defense lawyers, the police and the press.

When Mr. Morgenthau’s office was asked to take another look, Mr. Bibb said, his supervisors gave him carte blanche. “It really was, leave no stone unturned,” he said.

Over 21 months, starting in 2003, he and two detectives conducted more than 50 interviews in more than a dozen states, ferreting out witnesses the police had somehow missed or ignored.

Mr. Bibb said he shared his growing doubts with his superiors. And at a meeting in early 2005, he recalled, after defense lawyers won court approval for a hearing into the new evidence, he urged that the convictions be set aside. “I made what I considered to be my strongest pitch,” he said.

Instead, he said, he was ordered to go to the hearing, present the government’s case and let a judge decide — a strategy that violated his sense of a prosecutor’s duty.

“I had always been taught that we made the decisions, that we made the tough calls, that we didn’t take things and throw them up against the wall” for a judge or jury to sort out, he said. “If the evidence doesn’t convince me, then I’m never going to be able to convince a jury.”

Still, Mr. Bibb said, he worried that if he did not take the case, another prosecutor would — and possibly win.

Defense lawyers said he plunged in. In long phone conversations, he helped them sort through the new evidence he had gathered.

“If I make a mistake in my interpretation of what he said, he’ll correct me,” said Gordon Mehler, who represented Mr. Lemus. “If there’s a piece of evidence that bears on another piece of evidence I’m talking about, he’ll remind me of it. That’s not something that a prosecutor typically does.”

As the defense decided which witnesses to call, he again hunted them down — sometimes in prison or witness protection — and, when necessary, persuaded them to testify in State Supreme Court in Manhattan.

“I made sure all of their witnesses were going to testify in a manner that would have the greatest impact, certainly consistent with the truth,” Mr. Bibb said. “I wasn’t telling anybody to make anything up.”

He told them what questions to expect, both from the defense and his own cross-examination — which he admitted felt “a little bit weird.” Defense lawyers say they first met some of their witnesses on the day of testimony, outside the courtroom.

During breaks, Mr. Bibb confronted the lawyers when he felt they were not asking the right questions. “Don’t you understand?” one lawyer recalled him saying. “I’m your best friend in that courtroom.”

Cross-examining the witnesses, Mr. Bibb took pains not to damage their credibility. Facing a former gang member who had pleaded guilty to six murders, he asked only a few perfunctory questions about the man’s record.

Daniel J. Horwitz, the other defense lawyer, said the help was invaluable. “Did Dan play a useful role in making sure that justice prevailed in that courtroom? The answer is unequivocally yes.”

When the testimony was over, Mr. Bibb said he made one last appeal to his superiors to drop the convictions. They agreed to do so for Mr. Hidalgo, but not for Mr. Lemus — who was still implicated by “strong evidence,” the office said at the time.

“I said, ‘I’m done,’ ” Mr. Bibb recalled. “I wanted nothing to do with it.”

Another prosecutor made final written arguments, and in October 2005, Justice Roger S. Hayes ordered the new trial for Mr. Lemus. Demoralized by the case, Mr. Bibb resigned a few months later.

A close friend, Robert Mooney, a New York City police detective, said that if not for the Palladium case, Mr. Bibb “would have spent his entire professional life at the prosecutor’s office.

“He’s brokenhearted that he’s not doing this anymore.”

In a brief interview after he quit, Mr. Bibb defended Mr. Morgenthau against criticism that the case had been mishandled. “There was never any evil intent on the part of the D.A.’s office,” Mr. Bibb said then.

But around the same time, he distanced himself from the office’s decisions in remarks to “Dateline NBC.” He said that during the hearing, he already believed the two men were not guilty, but proceeded because he had a client to represent: Mr. Morgenthau.

“He was aware of what was going on,” Mr. Bibb told the interviewer. “The decision to go to a hearing was not made in my presence.”

As for Mr. Bibb’s new revelation that he helped the defense, lawyers and others are divided.

Stephen Gillers, a legal ethics professor at the New York University School of Law, said he believed that Mr. Bibb had violated his obligation to his client, and could conceivably face action by a disciplinary panel. “He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case,” Mr. Gillers said. “It entitles him to withdraw from the case, or quit if he can’t.”

On the other hand, he added, Mr. Morgenthau could have defused any conflict by assigning another prosecutor.

John Schwartz, a former detective who worked to exonerate the convicted men, said Mr. Bibb did them no favor by continuing in the case. “He effectively took part in keeping two innocent men in prison an additional year at least, for not going with what he felt was the truth,” Mr. Schwartz said.

But Mr. Mehler, the defense lawyer, said Mr. Bibb acted honorably. While lawyers on both sides must advocate for their clients, he said, “a prosecutor has an additional duty to search out the truth.

“I say that he lived up to that.”

Today, Mr. Bibb says he does not believe he crossed any line.

“I didn’t work for the other side,” he said. “I worked for what I thought was the right thing.”

    Doubting Case, a Prosecutor Helped the Defense, NYT, 23.6.2008, http://www.nytimes.com/2008/06/23/nyregion/23da.html

Grand Juries Become Latest Abortion Battlefield

June 17, 2008
The New York Times
By MONICA DAVEY

WICHITA, Kan. — Opponents of Dr. George Tiller and his clinic here, one of the nation’s few providers of late-term abortions, have tried many ways to stop him over three decades. They have held protests, lobbied lawmakers and complained persistently to state regulators and prosecutors. There have also been several acts of violence, including one in which Dr. Tiller was shot in both arms.

Now his opponents are using a legal tactic that some find startling and others consider inspired. They have turned to an unusual state statute, adopted in 1887, that allows ordinary citizens who gather enough signatures on a petition to demand that a grand jury investigate an alleged crime, a decision usually left to a prosecutor.

Inside a courthouse along Main Street here, 15 grand jurors have been meeting for months, convened under the statute by ordinary Sedgwick County residents to investigate whether Dr. Tiller’s clinic has illegally performed second- and third-trimester abortions. Their deliberations are scheduled to end next month.

Kansas is one of a few states that have laws that allow residents to force a grand jury investigation. Over all, the practice is seldom used, but grand juries by petition in Kansas have recently taken on new life, new targets and a host of new critics who say a law once meant to check official corruption is being twisted into a political weapon.

“This is an abuse of the grand jury system,” said Senator John L. Vratil, a Republican who serves on the Senate Judiciary Committee in Topeka. “It’s being used in a political way to further a political cause, and that was never the purpose of the grand jury system in Kansas.”

The grand jury meeting here is at least the 10th ordered by petition in the state in recent years: two investigated abortion providers, including Dr. Tiller, and the rest investigated misdemeanor obscenity violations by stores selling explicit videos, magazines and other items. Only one has led to a conviction.

Kansas lawmakers adopted the provision allowing grand juries by petition in the late 19th century when state politicians were fighting over which towns would be named county seats and the lucrative railroad industry was blossoming. The law was seen as a check against abuse by those in power.

In those early years, it required the signatures of 200 taxpayers to call a grand jury; now it requires the signatures of 2 percent of a county’s turnout in the most recent governor’s election, plus 100 more signatures.

“This is a measure for the people to get some justice if law enforcement doesn’t do its job, and that’s exactly what we’re doing,” said David Gittrich, of Kansans for Life, which was involved in both grand jury petitions involving Dr. Tiller and helped collect nearly 7,000 verified signatures, more than double the required number, for the current investigation.

Dr. Tiller, 66, who has performed abortions since the 1970s, has long been a focus of controversy in Wichita, where the bland building that houses his clinic belies the debate that has centered around it. Abortion opponents blame Dr. Tiller for drawing women from around the country to have abortions. Abortion-rights advocates point to him as a physician who has persisted even as protesters have gone to his home and church.

His lawyer, Lee Thompson, said such critics were “using the grand jury, I believe, as a tool to harass.” Dr. Tiller declined to be interviewed.

Several legal experts wonder where this will all end — how many more grand juries will be created by petition in response to social or political issues, and at what price to the taxpayers?

“This is an important check, and to the extent that it’s used for political purposes as part of some sort of broader agenda, it threatens the viability of the check itself,” said Douglas E. Beloof, a professor at Lewis & Clark Law School in Portland, Ore.

In recent times, the highest-profile grand jury by petition was called under a similar law in Oklahoma, another of the six states where legal experts say citizens have used the petition process to seat a grand jury. The petition’s authors suspected officials had overlooked a larger plot in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. After meeting for 18 months, at a cost of about $500,000, that grand jury found no conspiracy plot.

About five years ago, the Kansas law was dusted off by pornography opponents who sought to shut down a store selling explicit magazines, videos and toys. Soon, petitions about similar businesses in other parts of the state took off. Of seven grand juries, six brought misdemeanor charges related to obscenity, said Phillip Cosby, an anti-obscenity activist who has led the petition efforts; only one, from Ellsworth County, led to a conviction, he said. Others have been delayed, though Mr. Cosby said the efforts had nonetheless had a powerful effect. Some stores have simply closed.

Soon, abortion opponents began using the same method. Two grand juries have completed investigations of abortion clinics. Neither has returned an indictment. Officials say they are not yet certain about the court costs of the various investigations.

The grand jury investigation in Wichita, which began in January and must complete its work by next month, is the second to involve Dr. Tiller’s clinic, Women’s Health Care Services. In 2006, abortion opponents collected petitions to investigate the death of a 19-year-old woman with Down syndrome who had undergone an abortion there.

When that grand jury failed to return an indictment, abortion opponents last year drew up another petition calling for a new grand jury to look at all late-term abortions at Dr. Tiller’s clinic since July 2003.

Separate from the grand jury investigation, Dr. Tiller is facing 19 misdemeanor counts charging that he received second opinions on abortions from a doctor who was not independent of him, as required by state law. Dr. Tiller’s lawyer, Mr. Thompson, denies the charges.

Under Kansas law, abortions at or after 22 weeks of pregnancy are limited to circumstances where a fetus would not be viable or a pregnant woman would otherwise face “substantial and irreversible impairment of a major bodily function” — words whose interpretation are at the center of the legal debate here. (In 2007, 293 such abortions were performed in Kansas, state records show; in 168 of them, doctors said such an impairment made the abortion necessary, according to the records.)

The Wichita grand jury requested the medical records of some of Dr. Tiller’s patients, an issue that sent the case to the Kansas Supreme Court. There, patients objected to their records being revealed and Dr. Tiller’s lawyers contended that citizen-petitioned grand juries were being used as a form of harassment and were a violation of the separation of powers.

Last month, the State Supreme Court allowed the grand jurors to proceed and permitted them to subpoena some records, under the supervision of a district court judge, but seemed to send a caution: The court “should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition and that the targets were not selected and subpoenas issued out of malice or with intent to harass.”

As the grand jury here proceeds, opponents of abortion put up a billboard in town with the words, “Is Tiller above the law?” Advocates for abortion rights say the billboard is aimed at members of the grand jury; those opposed to abortion deny the claim.

The notion of regular citizens, not just professional prosecutors, taking their concerns directly to grand juries is not unknown historically. Centuries ago, people brought private prosecutions to grand juries, and in some states, residents are still entitled to take information straight to grand jurors, without even gathering signatures from their neighbors.

But in Johnson County, outside Kansas City, earlier this year, a grand jury ended its petition-initiated investigation into Planned Parenthood of Kansas and Mid-Missouri with no indictments. It did issue a statement, however, in which members revealed reservations about the grand jury’s very existence.

“It is the feeling of this grand jury that the current statute that addresses the formation of a grand jury be evaluated as to evidence required to call the grand jury,” the statement said. “The grand jury also feels that the statute also be re-evaluated as to the percentage of the population required to convene a grand jury.”

    Grand Juries Become Latest Abortion Battlefield, NYT, 17.6.2008, http://www.nytimes.com/2008/06/17/us/17jury.html

Op-Ed Contributor

The Working Wounded

May 27, 2008
The New York Times
By DAVID M. UHLMANN

Ann Arbor, Mich.

ON a hot August morning in 1996, Scott Dominguez reported to work at Evergreen Resources, a small fertilizer manufacturing plant in his hometown, Soda Springs, Idaho. The workday began like any other, with gruff commands barked out by the owner of the company, Allan Elias, who was a Wharton graduate, a lawyer and one of the most notorious violators of environmental and worker-safety laws in the state.

Mr. Elias wanted his workers to clean out a 25,000-gallon tank that contained cyanide waste. He refused to test the air or the waste inside the tank. He ignored the pleas of his workers for safety equipment. When the workers complained of sore throats and difficulty breathing, Mr. Elias told them to finish the job or find work somewhere else.

Mr. Dominguez, a 20-year-old high school graduate, wanted to keep his job. Wearing just jeans and a T-shirt, he used a ladder to descend into the tank. Two hours later, covered in sludge and barely breathing, he was removed from the tank, a victim of cyanide poisoning at the hands of a ruthless employer who would blame his “stupid and lazy” employees for the incident.

Mr. Dominguez suffered severe and permanent brain damage. He now has the rigid body movement and stammering speech found in patients with Parkinson’s disease.

The Justice Department opened a criminal investigation of Evergreen Resources. I was one of the lead prosecutors on the case. We quickly discovered that we had a major problem.

Mr. Elias did not commit a crime under the Occupational Safety and Health Act, which is the primary federal worker-safety law in the United States. Why not? Because Mr. Dominguez did not die.

My colleagues and I were shocked to learn that an employer who breaks the nation’s worker-safety laws can be charged with a crime only if a worker dies. Even then, the crime is a lowly Class B misdemeanor, with a maximum sentence of six months in prison. (About 6,000 workers are killed on the job each year, many in cases where the deaths could have been prevented if their employers followed the law.) Employers who maim their workers face, at worst, a maximum civil penalty of $70,000 for each violation.

We ended up prosecuting Mr. Elias for environmental crimes, and he was sentenced to 17 years in prison. I later became chief of the Justice Department’s environmental crimes section, and we started an initiative — based on this case and others like it — to seek justice when workers were seriously injured or killed during environmental crimes. We prosecuted some of the largest companies in America. But in cases where no environmental crimes were committed, we often could not prosecute.

Employers rarely face criminal prosecution under the worker-safety laws. In the 38 years since Congress enacted the Occupational Safety and Health Act, only 68 criminal cases have been prosecuted, or less than two per year, with defendants serving a total of just 42 months in jail. During that same time, approximately 341,000 people have died at work, according to data compiled from the National Safety Council and the Bureau of Labor Statistics by the A.F.L.-C.I.O.

It is long past time for Congress to change the law. First, Congress should amend the Occupational Safety and Health Act to make it a crime for an employer to commit violations that cause serious injury to workers or that knowingly place workers at risk of death or serious injury. Whether good fortune intervenes and prevents harm to workers should not determine whether an employer commits a crime.

Congress should make it a felony to commit a criminal violation of the worker-safety laws, and the penalties for lawbreakers should be stiffened. The maximum sentence ought to be measured in years, not months.

Congress also should change the worker-safety laws so that ignorance of the law is no longer a defense. Employers have a duty to know their responsibilities under the Occupational Safety and Health Act.

Finally, Congress should make clear who can be prosecuted. Some courts have held that prosecution is limited to companies and their owners. Supervisors who order workers to break the law, as well as responsible corporate officers who fail to stop violations that they know are occurring, should also be held criminally responsible, just as they are under most other federal laws.

Most companies care about protecting their workers. But without a serious threat of criminal enforcement, more workers will be put at risk by companies that put profits before safety.

David M. Uhlmann is a law professor at the University of Michigan.

    The Working Wounded, NYT, 27.5.2008, http://www.nytimes.com/2008/05/27/opinion/27uhlmann.html

American Exception

Rendering Justice, With One Eye on Re-election

May 25, 2008
The New York Times
By ADAM LIPTAK

Last month, Wisconsin voters did something that is routine in the United States but virtually unknown in the rest of the world: They elected a judge.

The vote came after a bitter $5 million campaign in which a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist. The challenger unseated the justice with 51 percent of the vote, and will join the court in August.

The election was unusually hard-fought, with caustic advertisements on both sides, many from independent groups.

Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.

“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. “You come out of this completely shattered,” Judge Baissus said.

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

“To the rest of the world,” Hans A. Linde, a justice of the Oregon Supreme Court, since retired, said at a 1988 symposium on judicial selection, “American adherence to judicial elections is as incomprehensible as our rejection of the metric system.”

Sandra Day O’Connor, the former Supreme Court justice, has condemned the practice of electing judges.

“No other nation in the world does that,” she said at a conference on judicial independence at Fordham Law School in April, “because they realize you’re not going to get fair and impartial judges that way.”

The new justice on the Wisconsin Supreme Court is Michael J. Gableman, who has been the only judge on the Burnett County Circuit Court in Siren, Wis., a job he got in 2002 when he was appointed to fill a vacancy by Gov. Scott McCallum, a Republican.

The governor, who received two $1,250 campaign contributions from Mr. Gableman, chose him over the two candidates proposed by his advisory council on judicial selection. Judge Gableman, a graduate of Hamline University School of Law in St. Paul, went on to be elected to the circuit court position in 2003.

The much more rigorous French model, in which aspiring judges are subjected to a battery of tests and years at a special school, has its benefits, said Mitchel Lasser, a law professor at Cornell and the author of “Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy.”

“You have people who actually know what the hell they’re doing,” Professor Lasser said. “They’ve spent years in school taking practical and theoretical courses on how to be a judge. These are professionals.”

“The rest of the world,” he added, “is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American.”

But some American law professors and political scientists say their counterparts abroad should not be so quick to dismiss judicial elections.

“I’m not uncritical of the American system, and we obviously have excesses in terms of politicization and the campaign finance system,” said Prof. David M. O’Brien, a specialist in judicial politics at the University of Virginia and an editor of “Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World.”

“But these other systems are also problematic,” Professor O’Brien continued. “There’s greater transparency in the American system.” The selection of appointed judges, he said, can be influenced by political considerations and cronyism that are hidden from public view.

A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.

“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”

Herbert M. Kritzer, who was until recently a professor of law and political science at the University of Wisconsin, said judicial elections had deep roots in the state and the nation.

“It’s a remnant of the populist Jacksonian image of public office,” he said. “We’re crazy about elections. The number of different offices we elect is enormous.”

There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.

“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”

Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.

In common law countries, judges are generally appointed by executive branch officials, though lately judicial commissions made up of lawyers and lay people are taking a larger role in the initial selection of candidates. Scotland adopted that method in 2002, and England and Wales in 2006.

Alan Paterson, a Scottish law professor who serves on the Judicial Appointments Board for Scotland, said his country’s system was transparent and worked well, though he acknowledged that the idea behind judicial elections was attractive.

“Part of me likes it,” he said. “It follows from the separation of powers. But in practical terms, it’s very difficult. They have to raise a lot of money.”

“The theory is a nice theory,” he said. “The practice of it is unworkable. We’re not going to do it.”

In some nations, of course, the judiciary is neither independent nor accountable to the public.

“Take a country like Vietnam,” Professor O’Brien said. “Those poor judges are controlled by party officials even at the trial level. That’s even worse than we have in Pennsylvania, Ohio and Texas, where the cost of judicial campaigns has just escalated over the last couple of decades.”

Judge Gableman did not respond to phone messages seeking comment. In answer to a question about his qualifications in an online forum on The Milwaukee Journal Sentinel’s Web site, he acknowledged that he had no appellate court experience but said he had argued a case, concerning zoning, before the state Supreme Court.

In the recent election, Judge Gableman’s campaign ran a television advertisement juxtaposing the images of his opponent, Justice Louis B. Butler Jr., in judicial robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year-old girl. Both the judge and the rapist are black.

“Butler found a loophole,” the advertisement said. “Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”

Justice Butler had represented Mr. Mitchell as a lawyer 20 years before and had persuaded two appeals courts that his rape trial had been flawed. But the state Supreme Court ruled that the error was harmless, and it did not release the defendant, as the advertisement implied. Instead, Mr. Mitchell served out his full term and only then went on to commit another crime.

In an interview, Justice Butler — a graduate of the University of Wisconsin law school who served for 12 years as a judge in Milwaukee courts — said the past few months had tested his commitment to elections.

“My position historically has been that there is something to be said for the public to be selecting people who are going to be making decisions about their futures,” Justice Butler said.

“But people ought to be looking at judges’ ability to analyze and interpret the law, their legal training, their experience level and, most importantly, their impartiality,” he continued. “They should not be making decisions based on ads filled with lies, deception, falsehood and race-baiting. The system is broken, and that robs the public of their right to be informed.”

Judge Baissus, the French judge, said his nation had once considered electing its judiciary.

“It’s an argument that was largely debated after the French revolution,” he said. “It was thought not to be a good idea. People seeking re-election would not be independent. They are indeed close to the electorate, but sometimes uncomfortably so.”

    Rendering Justice, With One Eye on Re-election, NYT, 25.5.2008, http://www.nytimes.com/2008/05/25/us/25exception.html?hp

9.30am BST

Florida mother jailed for caging son

Friday May 23 2008
Guardian.co.uk
Haroon Siddique and agencies

A Florida mother has been jailed for 20 years for keeping her teenage adopted son in a cage.

The 17-year-old weighed 22kg (3st 7lb) when child welfare workers found him in 2005.

He suffered from severe medical and emotional problems. His mother, Brenda Sullivan, told a judge at the time that authorities told her to keep the boy in a crib.

In January she pleaded guilty to three counts of aggravated child abuse. Prosecutors agreed to drop lesser child neglect charges.

"There's only one conclusion when you look at the medical evidence in this case, and that is that she literally starved him," said the prosecutor, Julie Schlax.

Sullivan's husband was also arrested but died in January 2007 while awaiting trial.

Two other children, 13-year-old twins the couple adopted as infants, testified that they were kept in similar cages.

Sullivan's lawyer, Charles Fletcher, said prison was not the right option because she did not pose a threat to society. He said they would appeal the sentence.

    Florida mother jailed for caging son, G, 23.5.2008, http://www.guardian.co.uk/world/2008/may/23/usa

Man freed by DNA testing after 27 years

29 April 2008
USA Today

DALLAS (AP) — A Dallas man who spent more than 27 years in prison for a murder he didn't commit was freed Tuesday, after being incarcerated longer than any other wrongfully convicted U.S. inmate cleared by DNA testing.

James Lee Woodard stepped out of the courtroom and raised his arms to a throng of photographers. Supporters and other people gathered outside the court erupted in applause.

"No words can express what a tragic story yours is," state District Judge Mark Stoltz told Woodard at a brief hearing before his release.

Woodard, cleared of the 1980 murder of his girlfriend, became the 18th person in Dallas County to have his conviction cast aside. That's a figure unmatched by any county nationally, according to the Innocence Project, a New York-based legal center that specializes in overturning wrongful convictions.

"I thank God for the existence of the Innocence Project," Woodard, 55, told the court. "Without that, I wouldn't be here today. I would be wasting away in prison."

Overall, 31 people have been formally exonerated through DNA testing in Texas, also a national high. That does not include Woodard and at least three others whose exonerations will not become official until Gov. Rick Perry grants pardons or the Texas Court of Criminal Appeals formally accepts the ruling of lower courts that have already recommended exoneration.

Woodard was sentenced to life in prison in July 1981 for the murder of a 21-year-old Dallas woman found raped and strangled near the banks of the Trinity River.

He was convicted primarily on the basis of testimony from two eyewitnesses, said Natalie Roetzel, the executive director of the Innocence Project of Texas. One has since recanted in an affidavit. As for the other, "we don't believe her testimony was accurate," Roetzel said.

Like nearly all the exonorees, Woodard has maintained his innocence throughout his time in prison. But after filing six writs with an appeals court, plus two requests for DNA testing, his pleas of innocence became so repetitive and routine that "the courthouse doors were eventually closed to him and he was labeled a writ abuser," Roetzel said.

"On the first day he was arrested, he told the world he was innocent ... and nobody listened," Jeff Blackburn, chief counsel for the Innocence Project of Texas, said during Tuesday's hearing.

He even stopped attending his parole hearings because gaining his release would have meant confessing to a crime he didn't do.

"It says a lot about your character that you were more interested in the truth than your freedom," the judge told Woodard after making his ruling.

Blackburn and prosecutors hailed Tuesday's hearing as a landmark moment of frequent adversaries working together.

Since the DNA evidence was tied to rape and Woodard was convicted of murder, Innocence Project attorneys had to prove that the same person committed both crimes. They said they couldn't have done that without access to evidence provided by Dallas County District Attorney Craig Watkins' office.

"You've got to have very good lawyers with a lot of experience and skill ... working on both ends of this case, hard," Blackburn said. "And you've also got to have government power behind what you do."

Under Watkins, Dallas County has a program supervised by the Innocence Project of Texas that is reviewing hundreds of cases of convicts who have requested DNA testing to prove their innocence.

While the number of exonerations on Watkins' watch continues to grow, he said this one was a little different.

"I saw the human side of it, and seeing the human said of it just gives you more courage to advocate for issues like this," said Watkins, who had breakfast with Woodard on Tuesday morning. "It gives me that resolve to go even further to find out who (the killer) is so that we can get him into custody."

Woodard said his family was "small and scattered," although he pointed out a niece in the courtroom. He said his biggest regret was not being with his mother when she died.

"I can tell you what I'd like to do first: breathe fresh, free air," Woodard said during a news conference in the courtroom after the hearing. "I don't know what to expect. I haven't been in Dallas since buses were blue."

    Man freed by DNA testing after 27 years, UT, 29.4.2008, http://www.usatoday.com/news/nation/2008-04-29-dallas-dna_N.htm

Bell’s Family and Friends, With Rising Anger, Say Fight Is ‘Far From Over’

April 27, 2008
The New York Times
By JOHN ELIGON

Nicole Paultre Bell, the woman who was to marry Sean Bell the day he was killed in a hail of 50 police bullets, vowed on Saturday to continue demanding accountability for his death, delivering her remarks in a tone that was a departure from her more familiar gentle demeanor.

Joseph Guzman, who was shot more than a dozen times while sitting next to Mr. Bell, followed her to the microphone and spoke in somber tones of the emotional whiplash of the previous 24 hours.

Ms. Paultre Bell and Mr. Guzman spoke publicly on Saturday for the first time since a judge on Friday acquitted three detectives charged in the shooting of Mr. Bell in November 2006 outside a strip club in Jamaica, Queens, where he had celebrated his bachelor party.

They were among more than 100 people — including Mr. Bell’s parents, William and Valerie Bell — who packed into the Harlem headquarters of the National Action Network, the organization founded by the Rev. Al Sharpton, to denounce the verdict and the judge who handed it down.

“April 25, 2008, they killed Sean all over again,” Ms. Paultre Bell told the audience. “I’m still praying for justice, because this is far from over. Every march, every protest, every rally, I’m going to be right up front.”

Mr. Guzman wore a long chain with a diamond-studded “S” hanging from it, a tribute to Mr. Bell. “Yesterday, I felt defeated,” he said.

Trent Benefield, who was in the back seat of Mr. Bell’s car and was also shot by the police, was not at the meeting because he remained distraught about the verdict, said Michael Hardy, Mr. Benefield’s lawyer.

On Friday, Mr. Sharpton pledged to lead boycotts, protests and acts of civil disobedience. But except for a small march in Harlem on Saturday morning — which Mr. Sharpton did not participate in — there was no visible reaction in the city to the verdict. Extra security was seen outside the Police Department headquarters. Police vehicles were parked outside the Queens home of the judge who presided over the Bell trial, Justice Arthur J. Cooperman, and a police helicopter flew overhead.

Mr. Sharpton said he planned to meet on Monday with Representative John Conyers Jr. of Michigan, the chairman of the House Judiciary Committee, which has oversight over the Justice Department. Federal prosecutors say they are investigating the case.

Mr. Sharpton also said he would meet on Tuesday night with community leaders in Manhattan to plan demonstrations that he said would begin within a week. As he did on Friday, Mr. Sharpton attacked several parts of Justice Cooperman’s statement explaining his verdict. The judge said that prosecutors failed to prove their case and that the wounded friends of Mr. Bell gave testimony that he did not believe.

In Harlem, the relatively small protest started around 11:30 a.m., when a group of more than 100 people marched south on Lenox Avenue from 145th Street. They carried signs with the numerals 1 through 50 written on them.

Inside Mr. Sharpton’s headquarters, those closest to Mr. Bell spoke of their own readiness to march. “We still here, we still in it,” said Mr. Guzman, who spoke so softly at one point that the audience had to ask him to speak into the microphone.

Mr. Guzman showed little of what the lawyers for the detectives — and even Justice Cooperman — suggested was a bellicose demeanor on the witness stand. There were moments when his face turned red, seemingly overcome with emotion. He said he sometimes heard Mr. Bell’s voice when he was in his car.

William Bell showed the most frustration. At one point, while everyone stood and chanted, he sat stiff-jawed in his seat, his elbows on his knees and his fingers interlocking. Later, he stepped to the microphone and said, “Is this 1955 Alabama?”

Valerie Bell spoke of her faith in God and her lingering anguish.

“On May 18, 1983, I didn’t go through labor pains with my son because he was born C-section,” she said. “But on Nov. 25, 2006, that’s when my labor pains started.” That was the day Mr. Bell was killed.

Ms. Paultre Bell, who took Mr. Bell’s name after his death, chose not to make any denunciations after the shooting, deferring to the legal system, said Mr. Hardy, who is representing her, Mr. Benefield and Mr. Guzman in a $50 million lawsuit against the city. That respect had evaporated, he said.

“I think Cooperman’s rejection, his unequivocal rejection, was liberating to Nicole,” Mr. Hardy said. “She now feels unrestrained in her love for Sean and her quest for justice.”

Indeed, on Saturday, Ms. Paultre Bell said, “The justice system let me down.”

At one point during his 30-minute speech, Mr. Sharpton’s voice rumbled to a scratchy crescendo as he spoke of his childhood in Brownsville, Brooklyn, and how his mother fought to keep him out of trouble and make sure he got an education.

Then, with tears streaming down his face, he pointed to Valerie Bell and Ms. Paultre Bell and said: “I’m going to help these two women fight for that little boy. That little boy didn’t deserve to die, and this city is going to deal with the blood of Sean Bell.”

Mathew R. Warren contributed reporting.

    Bell’s Family and Friends, With Rising Anger, Say Fight Is ‘Far From Over’, NYT, 27.4.2008, http://www.nytimes.com/2008/04/27/nyregion/27response.html

Witnesses May Have Been Flawed, but Prosecutor Played Hand He Was Dealt

April 27, 2008
The New York Times
By ALAN FEUER

Five days before the Sean Bell trial began, Richard A. Brown, the Queens district attorney, under pressure to talk about what everyone knew would be a fraught and contentious case, told reporters, “The case should be tried in the courtroom and not on the courthouse steps.”

Now, of course, it has been. And it did not turn out well for Mr. Brown.

The three detectives accused of killing Mr. Bell in a spray of 50 bullets after his bachelor party on Nov. 25, 2006, were acquitted on all counts at the seven-week trial in State Supreme Court in Queens. Moreover, the judge who issued the verdict, Arthur J. Cooperman, criticized the prosecution’s presentation, saying that several inconsistencies had the effect of “eviscerating the credibility” of certain state witnesses. The judge added that the testimony of those witnesses “just didn’t make sense.”

Mr. Brown, 75, who has been the district attorney in Queens for nearly 17 years, is a former judge who has been around the New York law enforcement world so long that in 1977 he presided over the arraignment of the “Son of Sam” serial killer, David Berkowitz.

Still, defense lawyers, former prosecutors and other interested observers have begun the inevitable process of dissecting his handling of the Bell case.

“The case was flawed from the beginning and probably shouldn’t even have been brought to indictment,” said Marvyn M. Kornberg, a defense lawyer with a longstanding practice in Queens. “There was conflict in the testimony, not only internally with each witness, but externally, between the witnesses. Those are the kind of witnesses you put on the stand?”

Monday-morning lawyering is, of course, a significantly painless task, and nothing about the Bell case was painless for those who were directly involved. After the shooting, outside the Club Kalua in Jamaica, the city felt the wrath of a storm of community outrage and racial anger.

Mr. Brown was at its center, monitoring the Internet for updates at 5 a.m. on the day it occurred from his weekend house in Litchfield County, Connecticut. Days later, he met with the Rev. Al Sharpton and Mr. Bell’s relatives to explain the investigative process.

When the indictments were announced, he appeared at a news conference to say that the investigation had drawn on 100 witnesses and 500 pieces of evidence and that the grand jury proceedings were “as thorough and complete as I’ve ever participated in.”

“I think he presented the case he could present,” said Joseph G. Sulik, another Queens defense lawyer, who watched parts of the trial. “He has to put the people who were there on the stand — you have to take them, good or bad.”

And, clearly, they were both. Several witnesses, including some of Mr. Bell’s childhood friends, provided testimony that seemed to better serve the three detectives charged in his killing: Gescard F. Isnora, Marc Cooper and Michael Oliver.

Much of that testimony involved the central defense question of whether there was an armed man present when the police opened fire. Accounts differed about an argument that Mr. Bell had outside the club with a man dressed in black, later identified as Fabio Coicou. Detective Isnora had said that he followed a member of Mr. Bell’s party, Joseph Guzman, from the club because he thought Mr. Guzman was going to retrieve a gun.

One of Mr. Bell’s friends who witnessed the argument from several feet away, Hugh Jensen, testified that the exchange between Mr. Bell and Mr. Coicou was benign. But he said on cross-examination that he believed Mr. Coicou was armed. Another friend, Larenzo Kinred, told investigators that he believed the man was armed or pretending to be armed. And Mr. Coicou contradicted his own grand jury testimony while testifying, recanting a prior statement that he had heard one of Mr. Bell’s friends say he was going to get a gun.

A former federal prosecutor, Alan Vinegrad, who tried the Abner Louima police brutality case, after Mr. Louima was tortured with a broken broomstick in a Brooklyn station house in 1997, said that Mr. Brown’s office had a very difficult job in the Bell case. At the same time, he wondered why so many state witnesses — there were 50 — were called to the stand.

“The prosecution called numerous witnesses to testify about a relatively short sequence of events,” Mr. Vinegrad said. “And doing that created the kind of inconsistency that is basically reasonable doubt.”

Joseph Tacopina, another former prosecutor and a defense lawyer who represented one of the officers in the Louima case, said that Mr. Brown had no choice but to approach the case with the witnesses he had.

“There are facts beyond change, and the best prosecutor in the world can’t do anything about that,” he said. “You’re only as good as the witnesses you’re given.”

It is never comfortable for a district attorney’s office, which relies upon the police to investigate crimes, to prosecute officers. Some lawyers, like Mr. Tacopina, said it was an open question that Mr. Brown might have sought an indictment in the case to quell the political winds and racial tensions that were rising soon after the shooting.

Mr. Kornberg, the defense lawyer, went one step further, suggesting that by taking the case to trial Mr. Brown had forced Justice Cooperman to assume the burden of decision.

“It took the political pressure off Brown, didn’t it?” Mr. Kornberg said. “He could say, ‘Now the court has spoken. I did what I had to do. I presented everything to the judge, and he found against me.’ ”

In a statement after the verdict, Mr. Brown ran down a list of statistics from the trial: 28 days, 60 witnesses, 900 exhibits, a transcript that ran 5,400 pages. While he made no mention of the strategy his office had pursued at trial, he said it was essential to continue the “public debate” that the case had brought about “through passionate and reasoned argument.”

In an interview in December 2006, only days after the shooting, Mr. Brown was asked whether the case might turn out to be a career-breaker rather than a career-maker.

His answer?

“What you’re suggesting is, ‘You’re damned if you do and you’re damned if you don’t,’ ” he said. “But I’m not here because it’s a cushy job. I’m here because I want to do the right thing.”

    Witnesses May Have Been Flawed, but Prosecutor Played Hand He Was Dealt, NYT, 27.4.2008, http://www.nytimes.com/2008/04/27/nyregion/27brown.html

Detroit man out of prison after DNA tests clear him of rape

April 15, 2008
Filed at 2:20 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

MOUNT CLEMENS, Mich. (AP) -- A Detroit man who served 12 years in prison for rape is free after DNA tests cleared him of the crime.

Macomb County authorities dropped charges Monday against 29-year-old Nathaniel Hatchett. He had received a 25- to 40-year sentence after being convicted of raping, carjacking, kidnapping and robbing a woman in 1996.

Detroit police found Hatchett driving the woman's car and arrested him. He admits stealing the car after it had been sitting near his house for a couple of days but says police duped him into confessing to other crimes.

Hatchett was freed in part through DNA evidence with help from the Cooley Innocence Project at Cooley Law School in Lansing.

    Detroit man out of prison after DNA tests clear him of rape, NYT, 15.4.2008, http://www.nytimes.com/aponline/us/AP-Prisoner-Freed-DNA.html

States expand sampling of DNA

13 April 2008
USA Today
By Kevin Johnson

WASHINGTON — States are dramatically expanding controversial DNA sampling beyond convicted felons to include tens of thousands of suspects arrested for felony offenses before they are tried.

Twelve states have laws that permit sampling for some or all felony arrests, up from five in 2006, the National Conference of State Legislatures (NCSL) says. Another 21 are considering such proposals, according to DNAResource.com, which tracks DNA-related laws.

Provisions in most of the new laws call for destroying samples if suspects are acquitted or charges are dropped. After a sample is destroyed, the DNA cannot be matched to other crimes in the database.

The fast-growing legislation, once applied narrowly to sex offenders and convicted felons, worries civil liberties advocates who believe the testing amounts to a clumsy forensic dragnet.

"In our system, you are supposed to be innocent until proven guilty," says Maryland state Sen. Lisa Gladden, a Democrat, who opposed a DNA sampling plan offered by Gov. Martin O'Malley, also a Democrat.

Despite such objections, the technique is gaining popularity as a law-enforcement tool. The expansion "is definitely picking up steam," says Donna Lyons, criminal justice director at NCSL.

Beginning in July, South Dakota and Kansas will require all felony suspects to provide DNA samples. In January, California and North Dakota will do so. In California alone that could double the number of state samples in the federal DNA data bank from 1 million to 2 million, state Attorney General's Office spokesman Gareth Lacy says.

The state actions come as the federal government prepares to issue similar rules for taking samples from thousands of detainees in its custody, including suspected immigration violators, Justice Department spokesman Erik Ablin says.

The DNA samples, which contain an individual's unique genetic code, are compared against nearly 4 million genetic profiles gleaned from crime scenes and other sources as part of a data bank run by the FBI to help investigate crimes. The FBI says the system has aided more than 40,000 investigations since 1990.

This month, the Maryland Legislature approved a less sweeping compromise of its law. It takes effect Jan. 1 and is expected to add 31,000 forensic profiles during the first year, says Kristen Mahoney, executive director of the state Office of Crime Control and Prevention.

North Dakota Republican state Rep. Lawrence Klemin says the expanded sampling program in his state is "a matter of public safety. … If we have a murderer or rapist out there, do we really have to go overboard in trying not to violate that person's privacy?"

    States expand sampling of DNA, UT, 13.4.2008, http://www.usatoday.com/news/nation/2008-04-13-dna_N.htm

Maximum Term for Stepfather

in Death of Girl

April 4, 2008
The New York Times
By ANDY NEWMAN

As he faced the judge about to sentence him for causing his 7-year-old stepdaughter’s death, Cesar Rodriguez said he was sorry. He said he loved his stepdaughter, Nixzmary Brown. He said he would serve his time. Still, Mr. Rodriguez said Thursday before a packed courtroom in Brooklyn, “I can honestly say that I’m being accused of something I did not do.”

Mr. Rodriguez’s assertion carried little weight with Justice L. Priscilla Hall of State Supreme Court. She sentenced him to the maximum term — 26 1/3 to 29 years in prison — for his role in the beating death of Nixzmary in 2006. The minimum was 15 years.

Mr. Rodriguez, 29, who was convicted last month of first-degree manslaughter and unlawful imprisonment, will be in his 50s before he is eligible for parole.

The sentence brought some comfort to prosecutors; they had charged Mr. Rodriguez with second-degree murder, which carries a maximum sentence of life in prison, but had to settle for the manslaughter conviction. Several members of the deeply divided jury have said that although they deplored Mr. Rodriguez’s conduct — he admitted beating Nixzmary daily in the final weeks of her life — they could not agree that he had shown “depraved indifference,” the standard for second-degree murder, in causing her death.

“I must say it is a good day for justice for Nixzmary,” the lead prosecutor, Ama Dwimoh, said outside the courtroom.

Nixzmary’s mother, Nixzaliz Santiago, 29, is also charged with second-degree murder and will be tried later this year. Mr. Rodriguez’s lawyers argued at trial that it was Ms. Santiago, not their client, who struck the blow that killed Nixzmary.

Nixzmary’s death in her family’s apartment on Greene Avenue in Bedford-Stuyvesant, Brooklyn, on Jan. 11, 2006, after a string of missed warning signs and bureaucratic lapses, shocked the city and prompted an overhaul of the city’s child welfare agency. At her death, she weighed only 36 pounds — normal for a 4-year-old — and her body was covered with gashes, bruises, scabs and scars — some fresh, some weeks old.

From the beginning, prosecutors depicted Mr. Rodriguez as the main cause of the child’s death. An out-of-work security guard and Army veteran who was helping Ms. Santiago raise six children, two of them his, Mr. Rodriguez told investigators that he routinely beat Nixzmary and tied her to a chair with duct tape or twine or bungee cords in an effort to correct her misbehavior.

On the last night of Nixzmary’s life, Mr. Rodriguez told detectives and prosecutors, he beat her with particular severity as punishment for jamming his computer printer with toys. He said he held her head under cold running water and left her naked and moaning on the floor.

When paramedics arrived at the family’s apartment, they found Mr. Rodriguez trying to revive Nixzmary. A medical examiner testified at trial that she had been dead for hours.

Mr. Rodriguez’s trial was marked by legal dramatics, and his sentencing was no different. His lead lawyer, Jeffrey T. Schwartz, asked Justice Hall to set aside the verdict “in the interest of justice” and accused prosecutors of tainting the trial by withholding evidence.

Mr. Schwartz’s associate, Barry Deonarine, told the judge that from his talk with a juror after the trial, “it became clear that the jury had let considerations other than the law and the evidence influence its deliberations.”

Several jurors who had come to the sentencing gasped at Mr. Deonarine’s comments. Mr. Deonarine said outside the courtroom that the juror he spoke to told him that the jury could not reach a consensus on any charge higher than criminally negligent homicide, a low-level felony, but that they felt that in order to live with themselves they needed to convict on a higher charge.

Justice Hall denied Mr. Schwartz’s request to overturn the verdict.

In her plea for the maximum sentence, Ms. Dwimoh reminded the judge that Mr. Rodriguez had a record of bad behavior. She noted that he was discharged from the Army in lieu of court-martial for sending sexual pictures of himself to a minor; that he was convicted of assaulting a relative; that he was charged with assaulting a U.P.S. driver; and, recently, indicted on charges of trying to smuggle homemade knives into his cell at Rikers Island.

“There is no end to Cesar Rodriguez’s violent ways,” she said.

Ms. Dwimoh also urged Justice Hall to consider Nixzmary’s five siblings. No sentence, she said, “could bring their sister back to them or the loss of the innocence of their childhood.” She said that Javier, Nixzmary’s older brother, had told prosecutors Wednesday that “he has prayed that when Cesar gets out of jail he is very frail and weak so that he can’t hurt any other children again.”

When Justice Hall asked Mr. Rodriguez if he had anything to say, Mr. Schwartz said he had advised his client not to speak. Justice Hall put the question again directly to Mr. Rodriguez, and he stood, hunching toward the microphone on the defense table to make himself heard.

After thanking the judge and the jury, he said: “I’m just sorry for causing everybody any emotional pain or distorted memories about the child. I’m just sorry. I loved Nixzmary.”

But he said he was wrongly accused, and added, “If in the end, God gives me enough life to show to this court how wrong this makes that judgment, I wish to prove that some day.”

Outside the courtroom, a children’s-rights advocate handed Ms. Dwimoh a bouquet. Another advocate, Awilda Cordero, tearfully expressed her relief to the television cameras.

Mr. Rodriguez’s relatives were nowhere in sight.

“They were afraid,” Mr. Schwartz said. “He wanted them to come, but they were afraid.”

Annie Correal contributed reporting.

    Maximum Term for Stepfather in Death of Girl, NYT, 4.3.2008, http://www.nytimes.com/2008/04/04/nyregion/04nixzmary.html