USA > History > 2010 > Justice > States (I)

Sister's Kidney Donation

Condition of Miss. Parole

December 29, 2010
Filed at 8:49 a.m. EST
on December 30, 2010
The New York Times
By THE ASSOCIATED PRESS
 

JACKSON, Miss. (AP) — For 16 years, sisters Jamie and Gladys Scott have shared a life behind bars for their part in an $11 armed robbery. To share freedom, they must also share a kidney.

Mississippi Gov. Haley Barbour suspended the sisters' life sentences on Wednesday, but 36-year-old Gladys Scott's release is contingent on her giving a kidney to Jamie, her 38-year-old sister, who requires daily dialysis.

The sisters were convicted in 1994 of leading two men into an ambush in central Mississippi the year before. Three teenagers hit each man in the head with a shotgun and took their wallets — making off with only $11, court records said.

Jamie and Gladys Scott were each convicted of two counts of armed robbery and sentenced to two life sentences.

"I think it's a victory," said the sisters' attorney, Chokwe Lumumba. "I talked to Gladys and she's elated about the news. I'm sure Jamie is, too."

Civil rights advocates have for years called for their release, saying the sentences were excessive. Those demands gained traction when Barbour asked the Mississippi Parole Board to take another look at the case.

The Scott sisters are eligible for parole in 2014, but Barbour said prison officials no longer think they are a threat to society and Jamie's medical condition is costing the state a lot of money.

Lumumba said he has no problem with the governor requiring Gladys to offer up her organ because "Gladys actually volunteered that as part of her petition."

Lumumba said it's not clear what caused the kidney failure, but it's likely a combination of different illnesses over the years.

Barbour spokesman Dan Turner told The Associated Press that Jamie Scott was released because she needs the transplant. He said Gladys Scott will be released if she agrees to donate her kidney because of the significant risk and recovery time.

"She wanted to do it," Turner said. "That wasn't something we introduced."

Barbour is a Republican in his second term who has been mentioned as a possible presidential contender in 2012. He said the parole board agreed with the indefinite suspension of their sentences, which is different from a pardon or commutation because it comes with conditions.

An "indefinite suspension of sentence" can be reversed if the conditions are not followed, but those requirements are usually things like meeting with a parole officer.

The Scott sisters have received significant public support from advocacy groups, including the NAACP, which called for their release. Hundreds of people marched through downtown Jackson from the state capital to the governor's mansion in September, chanting in unison that the women should be freed.

Still, their release won't be immediate.

Mississippi Department of Corrections Commissioner Chris Epps said late Wednesday that he had not received the order. He also said the women want to live with relatives in Florida, which requires approval from officials in that state.

In general, that process takes 45 days.

Mississippi NAACP President Derrick Johnson said the Scott sisters' release will be "a great victory for the state of Mississippi for two individuals who received an excessive sentence" and he has no problem with the kidney donation requirement because Gladys Scott volunteered.

"I think it's encouraging that she's willing to share a kidney so her sister can have a better quality life," Johnson said.

National NAACP President and CEO Benjamin Todd Jealous said the suspension of the sentences represents the good that can come with the power of governors.

"It's again proof that when people get engaged, keep the faith, we can win," Jealous said.

(This version deletes incorrect reference to Barbour granting a suspended sentence to student's killer.)

    Sister's Kidney Donation Condition of Miss. Parole, NYT, 29.12.2010, http://www.nytimes.com/aponline/2010/12/29/us/AP-US-Sisters-Pardon-Kidney.html

Sentence Commuted

in Racially Charged Killing

December 23, 2010
The New York Times
By COREY KILGANNON

Gov. David A. Paterson announced on Thursday that he had commuted the prison sentence of a black man who fatally shot an unarmed white teenager outside the man’s house in August 2006, weighing in on a case where the issue of race on Long Island became as much fodder for debate as the man’s innocence or guilt.

The trial of the man, John H. White, had racial overtones, as defense lawyers suggested that the tension associated with the Deep South in the civil rights era was alive in 2006, in a New York suburb with good schools, high property values and privileged children.

Mr. White, 57, was convicted of manslaughter for shooting Daniel Cicciaro, 17, point-blank in the face after Daniel and several friends had left a party and showed up late at night at Mr. White’s house in Miller Place, a predominantly white hamlet in Suffolk County.

The white teenagers had arrived to challenge Mr. White’s son Aaron, then 19, to a fight. The white teenagers used threats, profanities and racial epithets outside the house. Mr. White, who had been asleep, grabbed a loaded Beretta pistol he kept in his garage.

In a statement, Mr. Paterson, who leaves office next week, said, “My decision today may be an affront to some and a joy to others, but my objective is only to seek to ameliorate the profound suffering that occurred as a result of this tragic event.”

Mr. White, reached by phone at his home on Thursday night and asked for his reaction to the commutation, said, “I’m blessed and highly favored, brother.”

“I thank the Lord God most of all — he’s my savior,” he added. “Every day I thank my savior I am alive.”

Asked about the governor’s decision, he said, “I won’t get into all that; I’ll just say that Jesus is the reason we celebrate Christmas.”

Mr. White, who had served five months at an upstate New York prison for the killing, was convicted of second-degree manslaughter and of criminal possession of a weapon. He had remained free on bail during an appeal, but after the appeal was rejected, a judge gave him a sentence of 20 months to 4 years in prison, a spokeswoman for the State Division of Parole said. The maximum sentence, under legal guidelines, would have been between 4 and 11 years.

In July, Mr. White began serving his sentence at the Mount McGregor Correctional Facility, in Saratoga County. He would have been eligible for parole roughly two months after his first hearing date, next October.

Frederick K. Brewington, a defense lawyer who represented Mr. White during the trial, said a group of advocates for Mr. White made an application to Mr. Paterson for a pardon, “outlining the reasons, what the particulars were and the value to the community.” He added that supporters of Mr. White had organized a letter-writing campaign to urge the governor to consider Mr. White’s case.

A commutation lessens the severity of the punishment. A pardon excuses or forgives the offense itself.

At the trial, Mr. White testified that his son woke him from a deep sleep the night of the shooting, yelling that “some kids are coming here to kill me.” Mr. White said he considered the angry teenagers a “lynch mob.”

Mr. White said their racist language recalled the hatred he saw as a child visiting the segregated Deep South and stories of his grandfather’s being chased out of Alabama in the 1920s by the Ku Klux Klan. He testified that his grandfather taught him how to shoot and bequeathed him the pistol he used.

But Mr. White said the shooting happened accidentally after he began turning to retreat and Daniel lunged at the gun.

Thomas Spota, the Suffolk County district attorney, said in a statement, “I strongly believe the governor should have had the decency and the compassion to at least contact the victim’s family to allow them to be heard before commuting the defendant’s sentence.”

Reached at his auto body shop in Port Jefferson Station, the teenager’s father, Daniel Cicciaro, reacted with annoyance when a reporter identified himself.

“Yeah, what do you need? An oil change?” he said. “We got nothing to say about it.”

Mr. Brewington said that Mr. White was released from prison at 8 a.m. on Thursday, and that the White family was happy with the decision.

“They’re all very thankful, particularly at this time of year for the blessings bestowed upon them and the thoughtful approach by the governor’s office,” Mr. Brewington said.

Mr. Paterson has granted nine pardons, three commutations and one clemency, and plans to make more pardons in immigration cases before leaving office on Dec. 31, officials in his office said Thursday.

The governor began a special clemency process in the spring intended to help permanent legal residents who were at risk of deportation because of long-ago or minor convictions. This month, he pardoned six of those immigrants, including a financial administrator at the City University of New York.

In the case of Mr. White, his lawyer, Mr. Brewington, acknowledged that race had played a big role in the trial, but he cautioned against viewing the commutation as racially based, especially because Mr. Paterson is black.

“He reviewed this matter as he reviews any other matter,” he said. “People have to be careful not to fan the flames of racism. If the governor happened to be white and he commuted the sentence of a white person, would that be an issue?”

Angela Macropoulos contributed reporting.

    Sentence Commuted in Racially Charged Killing, NYT, 23.12.2010, http://www.nytimes.com/2010/12/24/nyregion/24commute.html

Proposed Amendment Would Enable States to Repeal Federal Law

December 19, 2010
The New York Times
By KATE ZERNIKE

The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.

Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.

The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.

Like any constitutional amendment, it faces enormous hurdles: it must be approved by both chambers of Congress — requiring them to agree, in this case, to check their own power — and then by three-quarters of, or 38, state legislatures.

Still, the idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago — but last week, a federal judge agreed with that argument. Now, legal scholars are handicapping which Supreme Court justices will do the same.

The repeal amendment reflects a larger, growing debate about federal power at a time when the public’s approval of Congress is at a historic low. In the last several years, many states have passed so-called sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.

Tea Party groups and candidates have pushed for a repeal of the 17th Amendment, which took the power to elect United States senators out of the hands of state legislatures. And potential presidential candidates like Mitt Romney and Sarah Palin have tried to appeal to anger at Washington by talking about the importance of the 10th Amendment, which reserves for states any powers not explicitly granted to the federal government in the Constitution.

“Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives,” Mr. Cantor said this month. “Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care and intrusions into the private sector like the auto bailouts have threatened the very core of the American free market. The repeal amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach and get the government working for the people again, not the other way around.”

Randy E. Barnett, a law professor at Georgetown who helped draft the amendment, argued that it stood a better chance than others that have failed to win ratification. “This is something state legislatures have an interest in pursuing,” he said, “because it helps them fend off federal encroachment and gives them a seat at the table when Congress is proposing what to do.”

Professor Barnett, considered by many scholars to be the intellectual godfather of the argument that the health law is unconstitutional, first proposed the repeal amendment in a column published by Forbes.com in 2009.

Tea Party groups in Virginia contacted him. Virginia’s governor, attorney general and speaker of the House, all Republicans, then expressed their support. The speaker, William J. Howell, joined Professor Barnett in an op-ed article proposing the amendment in The Wall Street Journal in September.

Virginia was a particularly ripe place to start the argument. The attorney general, Kenneth T. Cuccinelli II, was among the first attorneys general to try to overturn the federal health care law, filing a lawsuit minutes after President Obama signed the measure last spring.

Mr. Cuccinelli argued that the federal provision establishing a health insurance mandate was against a law the legislature had recently passed decreeing that no resident could be required to have health insurance. The judge who declared the mandate unconstitutional last week was ruling in that case.

This month, Mr. Cuccinelli wrote to the attorneys general of every state for their support of the repeal amendment.

The measure was introduced in the House by Representative Rob Bishop, Republican of Utah, who was a founder of the Western States Coalition, which advocates states’ rights.

Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence.

“There’s not the slightest chance it would get through Congress” or be ratified by the states, he said. “You can bet the ranch that there are enough state legislators in the large states who will not consider it a good idea to reinforce the power of small parochial rural states in which most Americans do not live.”

Even if it were approved, it would be extremely unlikely to have any practical effect, Professor Levinson said. “Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states,” he said.

Marianne Moran, a lawyer in Florida who runs RepealAmendment.org, said that legislative leaders in Florida, Georgia, Indiana, Iowa, Minnesota, Missouri, Montana, New Jersey, South Carolina, Texas and Utah, as well as Virginia, were backing the amendment.

“Considering we’ve had 12 states get on board in the last two or three months that we’ve been pushing this, I think we’re getting some speed,” she said. “No amendment has ever been ratified without a broad national consensus — it’s an uphill battle — but we’ve done it 27 times as a country, and I think we can get enough states to agree.”

Proponents say their effort is not directed at any one law or set of laws. “Our desire is to have it in place so we can repeal as things come up,” Ms. Moran said. “What we’re trying to do is to draw a line in the sand saying the federal government has gone too far.”

    Proposed Amendment Would Enable States to Repeal Federal Law, NYT, 19.12.2010, http://www.nytimes.com/2010/12/20/us/politics/20states.html

Transplants Cut, Arizona Is Challenged by Survivors

December 18, 2010
The New York Times
By MARC LACEY

PHOENIX — First, it was distraught patients awaiting organ transplants who protested Arizona’s decision to no longer cover such operations under its Medicaid program.

Now, Arizonans who received such transplants, and are alive and well as a result of them, are questioning the data that lawmakers relied on to make their controversial benefit cuts.

“They say it’s too expensive,” said Star Boelter, 52, who had a stem cell transplant that was paid for by Arizona’s Medicaid program in 2009 after suffering from leukemia. “Well, how much is life worth? They say most people die. Well, I’m alive because of my transplant.”

When Arizona lawmakers voted last spring to cut some state-financed transplant coverage, they relied on data provided by state health officials showing that the procedures were rarely successful. But transplant experts and some patients who have undergone the now-discontinued procedures question the state’s numbers.

For bone marrow transplants, the legislators were told that 13 of 14 patients covered by the state’s Medicaid program who underwent that procedure died within six months. The 14th patient could not be tracked, state health officials told the Legislature, and might have died as well.

But Kim Marie Urick, a leukemia survivor, wants the state’s leaders to know that she is able to ride her three horses outside Sedona and spend time with her husband and son thanks to a bone marrow transplant that Arizona’s Medicaid program paid for on June 4, 2009.

“I was about five days away from dying,” she said in a telephone interview. “I essentially had no immune system. If it wasn’t for the bone marrow transplant, I wouldn’t be here right now.”

The cure rate for bone marrow transplants cited in the report to the Legislature was either zero or 7 percent, depending on whether that unidentified 14th patient lived. But transplant experts put the actual survival rate, based on national studies, at over 40 percent.

Dr. Jeffrey R. Schriber, medical director of the Blood and Marrow Transplant Program at Banner Good Samaritan Medical Center in Phoenix, has written to Gov. Jan Brewer and state lawmakers telling them that their decisions were based on incomplete data that gave the wrong picture. His data show the success rate for bone marrow transplants covered by Arizona’s Medicaid program at slightly higher than the national average. Of 20 operations performed at Banner in recent years, 9 patients have survived, he said.

State Representative John Kavanagh, a Republican and chairman of the House Appropriations Committee, has said that if new data was presented, he would be willing to reconsider at least some of the cuts to the Arizona Health Care Containment System, as the Medicaid program is known, when the Legislature returns to session next month to tackle the state’s budget crisis.

But Ms. Brewer has not acknowledged that the cuts she signed into law might have been based on incomplete data. She repeated the figure that 13 out of 14 bone marrow transplant recipients died in Arizona while discussing the issue with Greta van Susteren on Fox News last week. “Because Arizona has been hit with a devastating budget deficit, we have had to do some difficult decisions,” she said, adding later, “We have no other choices.”

But Democrats disagree, especially State Representative Anna Tovar, who underwent a bone marrow transplant herself a decade ago, although not as part of the state Medicaid plan. She has been among the most vocal critics of the transplant cuts, calling for a special session this month to reconsider the decision.

Ms. Tovar’s body rejected the bone marrow transplant in 2001, and she then underwent a stem cell transplant the next year. “I’m living proof that these transplants do work,” she said.

Ms. Urick, 53, still remembers when she learned that she was being considered for a transplant that might extend her life. “To be told there’s a way you can live is one of the most wonderful things you can ever hear,” she said. “I can’t imagine what those who are waiting for transplants now and can’t afford them are going through.”

As for her, Ms. Urick said, “I plan on living another 20, 30 or 40 years.”

Ms. Boelter, a massage therapist, is back to providing relief to others. “I’m working,” she said. “I’m paying taxes, just as I’ve done for most of my life.”

Another leukemia survivor, Michael Cheshaek, 27, who underwent a bone marrow transplant in 2008, remains on disability but still credits the operation with allowing him to live.

“We send money all over the world to help people, and those who are suffering at home are not getting the help they need,” said Mr. Cheshaek, whose operation was covered under his private insurance coverage, which his mother supplemented with money from her retirement plan.

Bone marrow transplants are not the only ones in which legislators used questionable data to make their decision, transplant experts say. The American Society of Transplant Surgeons called Arizona’s transplant cuts “decisions with no medical justification.”

Liver transplants for those with hepatitis C, which the state also discontinued, have a survival rate exceeding 80 percent after one year and 60 percent after five years, the transplant group said. Arizona’s study of such procedures was far more pessimistic, saying such transplants “do not significantly affect the diseases they are intended to cure.”

For lung transplants, the transplant society called them “life saving, not palliative,” in response to the Arizona study, which labeled them “more palliative than curative.”

James Healy, 25, a student at Arizona State University, had a state-financed bone marrow transplant in 2009 and is back at school part time studying applied psychology. “I’m well on my way to recovery,” said Mr. Healy, who suffered from leukemia. “I’ve started school again, and I’m getting out and about. I’ve seen other people go through it, and I’ve gone through it. We’re very much alive.”

    Transplants Cut, Arizona Is Challenged by Survivors, NYT, 18.12.2010, http://www.nytimes.com/2010/12/19/us/19transplant.html

Ex-Driver Acquitted in Conn. Developer's Killing

December 16, 2010
Filed at 1:43 p.m. EST
The New York Times
By THE ASSOCIATED PRESS

STAMFORD, Conn. (AP) — A former chauffeur was acquitted Thursday of murder in the killing of his boss, a millionaire real estate developer who was found stabbed at his rented Connecticut mansion just days before he was scheduled to plead guilty in a fraud case.

Carlos Trujillo, 49, of Bridgeport, was found not guilty Thursday of murder in the April 2006 killing of Andrew Kissel, the Greenwich Time reported.

The Stamford Superior Court jury could not reach a verdict on a separate attempted murder charge, and a mistrial was declared on that count. It was not immediately clear if prosecutors planned to retry Kissel on that charge.

They have alleged Trujillo hired his cousin to kill Kissel for money.

The cousin, 24-year-old Leonard Trujillo of Worcester, Mass., awaits sentencing after pleading guilty to murder conspiracy and manslaughter.

Kissel was a partner in the Stamford real estate investment company Hanrock Group LLC. The FBI arrested him in July 2005 on a bank fraud charge, saying he stole $34 million in mortgage money from banks and $7 million in real estate proceeds from 30 private investors.

He signed a plea deal in March 2006 and was to plead guilty to bank and mail fraud on April 8, 2006, five days after he was found stabbed and bound in his home.

In the six months before he was killed, Kissel began an effort with Carlos Trujillo and two other of his employees to liquidate his assets and hide them from federal authorities, Greenwich police said in arrest warrant affidavits. Kissel gave the workers about $357,000 in cash and valuables, but the employees never returned any of the assets to Kissel, police said.

State prosecutor Paul Ferencek told the jury during closing arguments Monday that money was at the heart of the murder-for-hire, the Time reported.

"In this case there seems to be a very good motive, and that is the motive of greed," Ferencek told jurors.

Ferencek said the state was not alleging that Carlos Trujillo was the person who stabbed Kissel, and it's still not clear who the actual killer was, the newspaper reported.

Leonard Trujillo admitted that he helped plan Kissel's killing with the goal of stealing $10,000 from his cousin, but insisted he didn't follow through on those plans and wasn't involved with the murder.

Carlos Trujillo's lawyer, Lindy Urso, said his client was innocent and there was no evidence linking him to the killing. He questioned the credibility of Leonard Trujillo's testimony, alleging there was a feud within the Trujillo family and Leonard Trujillo's father in Colombia told his son to implicate Carlos Trujillo.

The murder case was another tragedy for the Kissel family. Kissel's brother, Robert, was a wealthy banker who was poisoned and beaten to death in Hong Kong in 2003 in a case known as the "milkshake murder."

Robert Kissel's wife, Nancy, was convicted by a jury of sedating him with a laced milkshake and bludgeoning him to death, but Hong Kong's highest court overturned her conviction earlier this year, saying prosecutors improperly cross-examined Nancy Kissel. She said she killed her husband in self-defense.

    Ex-Driver Acquitted in Conn. Developer's Killing, NYT, 16.12.2010, http://www.nytimes.com/aponline/2010/12/16/us/AP-US-Greenwich-Mystery.html

Madoff Lawsuits Are Headed for Court

December 12, 2010
The New York Times
By GRAHAM BOWLEY and PETER LATTMAN

With the final deadline for litigation having passed at midnight on Saturday, at least 1,000 individual civil lawsuits will now go forward to try to recover more than $50 billion for the victims of the global Ponzi scheme orchestrated by Bernard L. Madoff.

David J. Sheehan, the counsel for Irving H. Picard, the trustee charged with recovering the assets, said on Sunday that he expected that “hundreds” of those suits — many against individuals, some of them prominent — were likely to be settled in negotiations before or soon after they reach court in coming months. But the remainder were likely to be contested and would proceed to trial, he said.

Mr. Sheehan said the death on Saturday of Mark Madoff, the older of Bernard Madoff’s two sons, would not affect the complaints against him, his brother, Andrew, and other relatives.

“We have to proceed with that and stay the course,” Mr. Sheehan said.

Mark Madoff, 46, was found dead Saturday morning in his Manhattan apartment, hanging from a dog leash while his 2-year-old son slept in an adjoining room.

The medical examiner’s office conducted an autopsy on Sunday and confirmed that the official cause of death was hanging, and labeled it a suicide.

As the shock of his death set in, people close to him continued to shed light on his emotional state, saying he had been increasingly upset in recent weeks by the extensive scrutiny the Ponzi scheme was receiving as the second anniversary of his father’s arrest approached.

He was particularly troubled by a series of lawsuits against him and his family as the bankruptcy trustee approached the Saturday deadline, and by the weight of media speculation about whether or not he played a role in his father’s fraud and whether he could be the subject of criminal charges, they said.

No immediate funeral arrangements were made public. But relatives have expressed the view that excessive media attention will make a funeral difficult to hold, according to two people close to the family, who insisted on anonymity because the family had not authorized them to speak on its behalf.

Another person close to the family said that Mark Madoff’s wife, Stephanie, had returned to New York from Florida, where she and her mother had taken the couple’s 4-year-old son to Disney World, leaving Mr. Madoff and their 2-year-old son in New York.

According to two of the people close to Mr. Madoff, in the days running up to his suicide he had been particularly anxious about an article that was due to run in The Wall Street Journal.

One of these close friends, who said he had spoken with Mr. Madoff frequently over the last two years, talked to him on Friday on his cellphone for 10 minutes.

There was nothing particularly foreboding about the conversation, this person said. He said Mr. Madoff told him that The Journal was running an article about him the next day, and even though he believed it would not contain new information, he expressed concern and frustration about the coverage.

This wasn’t unusual, the friend said. Mr. Madoff had always been acutely sensitive to media coverage connecting him to his father’s fraud.

A spokeswoman for The Journal declined to comment.

“Andy was always tougher than Mark,” said the friend, referring to Mr. Madoff’s younger brother. “Mark was much more sensitive and took all the press coverage very personally.”

“He loved his wife and his kids so much,” this friend added. “The only way to accept this is that he was in so much pain, and that pain outweighed the love he had for his wife and his kids. And I guess he thought this was the only way out.”

Mr. Madoff was hoping to get a job, and had looked for work over the last two years as a professional securities trader, talking to people in the industry, two of the people close to him said.

But he had gradually become less and less optimistic about that possibility. In recent months, Mr. Madoff had been doing work for a friend who ran a business, the close friend said.

“He seemed to be looking to the future and trying to get his life together,” said the friend. “He was looking for ways to support himself and his family.”

Mr. Madoff had also been working on the publication of an online newsletter on the real estate industry. But he realized that whatever he distributed he would not be able to attach his name to it, the friend said.

The lawyer for Bernard Madoff, Ira Lee Sorkin, would not comment Sunday on whether Bernard Madoff, who is serving a 150-year sentence for his crimes at a North Carolina prison, had been told of his son’s suicide.

Mr. Madoff was found at his apartment at 158 Mercer Street, on the edge of the SoHo section of Manhattan. A law enforcement official confirmed that Mr. Madoff had sent two e-mails to his wife in Florida after 4 a.m. Saturday. He had asked her to get someone to check on their son, the police said earlier. The police have seized Mr. Madoff’s computer and were searching it for further information, the official said.

On Sunday, Pedro Romero, 39, a parking garage attendant where Mr. Madoff parked his two cars — a late model Chevrolet Suburban and a Land Rover — said he last saw Mr. Madoff on Friday night while Mr. Madoff was walking his dog.

“I said thank-you for the gift,” Mr. Romero recalled, referring to $400 that Mr. Madoff had given the garage’s half-dozen workers for Christmas. “He looked happy,” Mr. Romero said. “He didn’t look depressed.”

A friend at the building who said he knew Mr. Madoff fairly well said that recently Mr. Madoff had seemed to be coming out of his depression of the last two years and that he seemed fine as he was taking a walk Friday morning.

Mr. Picard issued a statement on Saturday extending sympathy to Mr. Madoff’s family, calling his death a “tragic development.”

Mr. Sheehan, counsel for Mr. Picard, said that most of the civil lawsuits had been filed in federal bankruptcy court in Manhattan in the last three weeks, and that he was now prepared for a barrage of legal challenges trying to stop the complaints over the coming six months. Mr. Picard has recently sued more than a dozen major banks.

There may be yet more lawsuits filed by the trustee, he said. Although the initial two-year deadline for litigation had passed, the trustee still has one more year to trace the money he is trying to recover from the current roster of defendants, and to file complaints against anyone else to whom those funds may have been transferred, he said.

The trustee has already reached deals with some major defendants, including a recent $500 million settlement with Union Bancaire Privée, and this month, Carl Shapiro, one of the early investors with the Madoff firm, agreed with Mr. Picard and federal prosecutors to forfeit $625 million that will go toward returning money to victims of the fraud.

That agreement also settled claims against many members of Mr. Shapiro’s family, including his son-in-law Robert Jaffe, whom the trustee has sued separately as an executive of Cohmad Securities, the small brokerage firm that shared space with Bernard Madoff in the Lipstick Building.

On Friday, Mr. Picard announced that he had reached settlement with a “number of charities and nonprofit organizations,” including a $45 million settlement with the American Jewish volunteer women’s organization, Hadassah.

Mr. Picard is also negotiating with business entities connected to Fred Wilpon, the owner of the New York Mets baseball team, and the estate of Jeffry Picower, a longtime Madoff investor who died last year.

Ron Stein, president of the Network for Investor Action and Protection, a group set up to assist victims, said many of the legal actions were aimed at people unfairly, because many of the so-called clawbacks were at the expense of smaller investors who had already suffered. “Why does he go after innocent victims,” Mr. Stein said.

Mr. Picard has said he will dismiss any cases filed against defendants who seek and qualify for “hardship” status because of their financial circumstances.

Diana B. Henriques, Al Baker, Tim Stelloh and Mosi Secret contributed reporting.

    Madoff Lawsuits Are Headed for Court, NYT, 12.12.2010, http://www.nytimes.com/2010/12/13/business/13madoff.html

With Video Everywhere, Stark Evidence Is on Trial

December 8, 2010
The New York Times
By JOHN SCHWARTZ and KATIE ZEZIMA

In a world that is always on camera, the centuries-old courtroom experience is becoming a lot more complicated.

The advent of video-in-your pocket camcorders and cellphones, and the proliferation of surveillance cameras, mean that events that once would have gone unrecorded are preserved for posterity — and, inevitably, for trial.

Legal experts say the technology shift could lead to harsher experiences for jurors, and could put pressure on judges to re-examine the balancing act that they have long used to determine what kind of evidence makes its way into court.

Videos, some quite grisly, are increasingly a major feature of cases. Just Tuesday, a judge in a Massachusetts manslaughter trial said that video of an 8-year-old boy accidentally shooting himself in the head with a submachine gun at a gun show could be shown to jurors.

In the case of a former Oakland, Calif., transit police officer convicted in July of involuntary manslaughter in the shooting death of an unarmed man on a subway platform, jurors watched widely disseminated cellphone video of the shooting. And in Stockton, Calif., this month, jurors saw video of an emaciated, dirt-caked 16-year-old boy wearing only boxer shorts and a leg shackle, running into a gym in Tracy, Calif. The boy had escaped from a home where he had been burned, beaten, cut and tortured for a year.

“There’s no doubt it can be helpful,” said Jake Wark, a spokesman for District Attorney Daniel F. Conley of Suffolk County, Mass., whose office prosecuted cases in Boston involving surveillance video of the shooting of a 15-year-old boy waiting for a school bus and a shooting in a convenience store. “It’s a powerful tool for us in determining the truth.”

But it also leads to greater resistance from defense lawyers, he said. “With every new type of evidence comes a new type of evidence-suppression motion,” Mr. Wark said.

Being subjected to such images could make jury service a brutal experience. Last year, Las Vegas jurors wept as prosecutors played a 15-minute video of a man molesting a 2-year-old girl. A juror said showing the tape was not necessary to convict the defendant, Chester Stiles, on 22 counts of sexually assaulting a minor and other charges.

“It’s absolutely horrific, there’s no other way to put it,” said the juror, who asked not to be identified. The experience left him with “post-traumatic type things,” he said. “For a regular citizen to have to watch that, it’s too much.”

Some jurors require counseling for post-traumatic stress after a particularly grueling trial, including some of those involved in the recent case involving a triple murder in Cheshire, Conn.

Video evidence can spark responses that surpass those of oral testimony and still images, said Clay Shirky, a new-media expert at New York University. “It seems like it’s happening as you’re watching,” he said. The widespread use of such powerful evidence, he predicted, could also shift the balance of justice.

“My guess is that other things being equal, the availability of video evidence will lead juries to make harsher decisions,” he said.

That is where judges come in, said Greg Hurley, an analyst for the National Center for State Courts. “Judges are worried that jurors’ passions and sympathies will be excited, and they won’t be judging cases solely on the facts and the law,” he said.

Paul G. Cassell, a former federal judge who teaches at the University of Utah college of law, said most judges choose to allow disturbing evidence into trial. “The law generally places a thumb on the side of admissibility of evidence like this, requiring the opponent of admission to show a particularly good reason for exclusion.”

Professor Cassell, who is an advocate for victims’ rights, said judges must also be mindful of weakening the information for a jury. “You cannot deprive the other side the moral force of its evidence simply by stipulating to the facts,” he said.

The rise of video technology, he predicted, will not change the principles behind the balancing act, but will force judges to grapple more directly with the technology and become innovators themselves. They may need to employ tools for editing and changing resolution and masking parts of a frame to ensure that a video presented has “a laserlike focus on probative parts of the tape and exclusion of irrelevant parts of the tape.”

Prosecutors predict that there will be more challenges to introducing video evidence. Scott Burns, executive director of the National District Attorneys Association, said such challenges were increasingly likely “but if the goal is to seek the truth and you have compelling evidence that shows what happened, it’s fairly important,” he said.

Stephen B. Bright, the president of the Southern Center for Human Rights, said he did not expect the greater number of challenges to cause the judicial balance to shift. “Every law student learns that there is a delicate balancing test to see if the prejudicial impact outweighs the probative value before such evidence is admitted,” but “they quickly learn that in practice the balance always comes out in favor of admitting gruesome crime-scene photos, autopsy pictures, 911 calls, everything.”

Many judges, Mr. Bright said, favor the prosecution side, and so emotionally charged evidence is rarely excluded.

Valerie Hans, a law professor at Cornell, said the power of video evidence has to become part of jury selection — to find people who can withstand the emotional battering of the evidence and still do the job before them and not be “dominated by vengeful thoughts.”

“We really ask our jurors to do a lot,” Professor Hans said.

    With Video Everywhere, Stark Evidence Is on Trial, NYT, 8.12.2010, http://www.nytimes.com/2010/12/09/us/09jury.html

With Appeals, an Execution, if It Happens, May Be Many Years Away

November 8, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — The death sentence voted by jurors on Monday for Steven J. Hayes, the man convicted of the Cheshire, Conn., killings, does not mean he is likely to be executed any time soon. In fact, it has merely started a new chapter that may last far longer than the response, investigation, hearing and trial touched off by the events of July 2007.

Mr. Hayes will be the 10th inmate on death row in Connecticut — including one who was convicted just over two decades ago.

“Only the trial is over; the legal process is just beginning,” said Eric M. Freedman, a law professor at Hofstra University who was a defense lawyer in another Connecticut death penalty case.

Mr. Hayes’s trial, like virtually all capital cases in other states that have the death penalty, included any number of legal issues that judges and lawyers are likely to dissect in appeals in state and federal courts. The trial judge, Jon C. Blue of State Superior Court in New Haven, repeatedly made it plain that appeals were inevitable.

“Let’s face it,” Judge Blue said in court last month, legal issues in Mr. Hayes’s case “are likely to be litigated for years on end.”

The issues raised by defense lawyers beginning soon after the killings of Jennifer Hawke-Petit, 48, and her daughters, Hayley, 17, and Michaela, 11, included broad challenges to the death penalty itself and claims that extensive news media coverage of the crime would prejudice the jurors.

Apart from the specifics of Mr. Hayes’s case, Connecticut and other Northeastern states have been notably measured about carrying out those death sentences that have been voted by jurors. Since 1960, Connecticut has executed only one inmate, a serial killer, Michael B. Ross, in 2005, and that was after he very publicly pressed for his own execution after years of appeals. New York no longer has a death penalty law.

Connecticut has detailed procedures for carrying out executions that include provisions for an execution team, telephone lines to the execution chamber in the event of a last-minute stay and the final meal of death-row lore (“reasonable efforts may be made to provide a last meal of the inmate’s choosing”).

According to the Connecticut regulations, death sentences are to be carried out by lethal injection.

Connecticut’s death row, at the Northern Correctional Institution in Somers, currently houses nine inmates, including men convicted of ordering the killing of an 8-year-old witness, killing a police officer and bludgeoning a 13-year-old. One of the nine was sentenced to die 21 years ago, in 1989, for killing his wife and son.

Mr. Hayes was held on death row for a time while he was awaiting his trial. According to testimony during the proceedings, it was a bleak existence, under intense security, with few amenities and little human contact. It was there that Mr. Hayes, according to the testimony, had an altercation with a guard and threatened to kill him. “I have nothing to lose; I’m already on death row,” a disciplinary report quoted him as saying.

The likelihood that Mr. Hayes will ever walk to the execution chamber could also be affected by a long-running political debate about the future of capital punishment in the state. The state legislature voted to repeal capital punishment last year.

The departing governor, M. Jodi Rell, vetoed the measure, citing the Cheshire killings, and the death penalty was a volatile issue in the election last week. Some proponents of abolishing capital punishment in Connecticut have urged a repeal for future murderers, so that capital punishment would still apply to Mr. Hayes; his co-defendant, Joshua Komisarjevsky, who is to be tried next year; and the prisoners already on death row. But capital punishment lawyers say that if such a measure ever became law, it would be challenged in the courts, adding yet another legal issue that could take years to resolve.

    With Appeals, an Execution, if It Happens, May Be Many Years Away, NYT, 8.11.2010, http://www.nytimes.com/2010/11/09/nyregion/09execute.html

Cheshire Case Jurors Speak on Death Verdict

November 8, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — Day after day since Sept. 13, they sat in the jury box. They had to look at photographs of children who were burned while tied to their beds. They sat feet from grieving family members.

On Monday, the jurors had their verdict for the defendant, Steven J. Hayes, who had wreaked havoc at the Petit house in Cheshire, Conn. It had almost been expected from the start of the home-invasion trial: Death by lethal injection.

As the jurors began to talk publicly about their verdict on Monday night, they said they were certain of it and unified. They said there had never been a deep division on the panel and that the three and a half days of deliberation were to solemnly consider when capital punishment was warranted and then to work through the complexities of the pages of legal questions they had to answer.

But several of them said in interviews that sitting in the Cheshire home-invasion case had been a harrowing experience, thinking for weeks about the two parolees who broke into a suburban home in the middle of the night and killed a mother and her two daughters, beat and tied up the girls’ father and committed countless other offenses.

“It was a challenge to me to see if I have the courage and the strength of character,” said Diane N. Keim, 59, a special-education teacher from Madison. “Other than what you see in movies, I have not seen children burned.”

Herbert R. Gram, 77, also of Madison, said it was the hard-to-hear facts of the home invasion by two intruders with disturbing criminal pasts and the horrifying crime-scene photographs that made the case for capital punishment.

“I’ve seen a lot, and been a lot of places,” Mr. Gram said. “I’ve certainly seen death before.” Then he paused. “This was not easy. There was nothing easy about it.”

Some jurors mentioned that it was impossible to be in the courtroom day after day and not wonder, as they looked at Mr. Hayes, how many more people like him were out there willing to break all the rules and ruin people.

Elizabeth Burbank, 45, an interior designer from New Haven, said she could not help wondering how safe she and the people she loved truly were. “The idea of being invaded while you’re asleep, when you’re vulnerable — we can’t help but worry about it now,” she said.

She used to work in a prison, Ms. Burbank said, and she thought she had a thick enough skin to handle this case. But, she said, “Nothing can ever prepare you for this kind of thing.”

The daily inundation in topics most people do not have to think about took a toll, said Delores A. Carter, a retired health care worker from Hamden. “It was life changing,” she said. “You see everything in a whole new light after you’ve been through something like this.”

As the weeks of testimony went on, the toll on the jurors grew. “The weight just got heavier and heavier,” said Ian Cassell, 35, of New Haven, who was the jury foreman in the penalty phase of the trial.

By the time they had agreed on the death verdict, “all the jurors were really emotional,” Mr. Cassell said. It was a verdict based on the law, he said. “No one is happy. Nothing is better. Nothing is solved.”

The jurors said that reporters had completely misinterpreted the notes they handed court officials during deliberations on Friday and Saturday that seemed to suggest some of them were leaning toward accepting a defense argument that Mr. Hayes should be spared because of a defense claim that he was mentally impaired at the time of the crime.

They said those notes had been purely hypothetical, as they tried to work through confusing legal instructions about the many questions they were required to answer.

They said the jurors worked agreeably, and that three or four seemed particularly upset early in the deliberations at the prospect of voting for an execution. But they said they spent some of Friday and much of Saturday talking philosophically about when capital punishment was warranted.

Mr. Gram said the conversation veered broadly and included discussion of whether society had the right to take a life. In the end, he said, all the jurors agreed that if there was ever a case in which the death penalty was appropriate, the Cheshire case was it.

The sentiment was unanimous, he said. “It was just so heinous and just so over the top and depraved. Here is a case where somebody doesn’t deserve to remain on the face of the earth.”

After the verdict, most of the jurors met with Dr. William A. Petit Jr., who was beaten by the intruders and tied up while his wife and daughters were tormented and killed. After some of the jurors asked for the meeting after the verdict Monday, court officials quietly arranged for it in an out-of-the-way spot in the court building where the jurors and Petit family members had crossed paths for weeks.

Ms. Keim said the meeting was emotional, with jurors hugging members of the family, and Dr. Petit and members of the extended family thanking the jurors for the grueling task they had undertaken.

Ms. Keim said that on the worst days of the trial she had often had a sensation that she would never be able to do what she wanted to do for the Petits and their daughters, Hayley, 17, and Michaela, 11, who were killed after the worst night of their lives.

In the jury box, Ms. Keim said: “I just wanted to hold the girls. I wanted to take whatever they experienced before they died and take it away. But it wasn’t in my power.”

Ms. Keim said she would not forget something one of the girls’ grandmothers had said in the jurors’ meeting with the family members. The elderly woman told the jurors, “We’re so sorry we had to put you through this.”

Robert Davey and Elizabeth Maker contributed reporting.

    Cheshire Case Jurors Speak on Death Verdict, NYT, 8.11.2010, http://www.nytimes.com/2010/11/09/nyregion/09jurors.html

Jurors Vote for Death in Conn. Triple-Murder Case

November 8, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — A jury in Connecticut voted on Monday to impose the death penalty for a long-time criminal convicted for his role in a home invasion in Cheshire, Conn., that left a mother and her two daughters dead. The panel had deliberated just more than three full days.

The jurors stood in the jury box, some looking drawn, as the clerk of the court read through the long verdict form they had filled out. Some members of the victims’ family rested their heads on the benches in front of them. The defendant, Steven J. Hayes, sat motionless at the defense table.

The 2007 crime horrified, fascinated and repelled from the start. It was called one of the worst in Connecticut history and was compared with the grisly family murder that was the centerpiece of Truman Capote’s account of a 1959 family killing in Kansas, “In Cold Blood.”

The details were stark: two habitual criminals invaded the quiet suburban home of a doctor and his family after spotting them in a shopping center parking lot the day before. In a night and morning of unimaginable terrors, they beat and tied up the doctor, forced the mother to withdraw $15,000 from a bank, before sexually abusing her and her youngest daughter, then strangling the mother and setting a blaze that killed her two daughters and blackened the home.

The killings brought a searching review of criminal justice and corrections practices in the state and, particularly during the recent election, came to be the prism through which the state viewed a debate about the future of the death penalty.

Mr. Hayes, a parolee at the time of the 2007 crime, has spent much of his adult life as a prisoner.

Connecticut provides for execution by lethal injection. But because of appeals, death penalty lawyers said it would probably be many years before Mr. Hayes faced execution, if he ever does. A serial killer, Michael Ross, was executed in Connecticut in 2005 after he decided to forgo further appeals, but he was the first inmate executed in New England since 1960.

Mr. Hayes and Joshua Komisarjevsky, who has yet to be tried, entered the home of the Petit family in a bucolic Cheshire neighborhood on July 23, 2007.

By the time they left with a squeal of rubber from the family’s stolen minivan, the family’s two daughters, Hayley, 17, and Michaela, 11, as well as the mother of the family, Jennifer Hawke-Petit, 48, were dead in a house that had been set ablaze with gasoline the intruders had spread.

More than three years later, the trial — which began on Sept. 13 — featured graphic details of the beating of the father, Dr. William A. Petit Jr., who survived, as well as descriptions of arson, children tied to their beds, the forced trip to a bank where the mother vainly tried to placate the intruders by withdrawing $15,000, and sexual assaults of Ms. Hawke-Petit and the younger of the Petit girls.

But it also featured a catalog of arguments by the defense to try to defeat a potential death sentence. The claims included assertions that Mr. Hayes “can’t live with himself,” and was suicidal and remorseful. The defense lawyers also brought out testimony portraying Mr. Hayes as a klutz of a criminal, while a witness called by the defense described Mr. Komisarjevsky as “the devil,” a comparison the defense lawyers fostered through weeks of testimony.

Mr. Komisarkevsky’s prison journals, read into evidence at the request of Mr. Hayes’s lawyers, made him a central character of Mr. Hayes’s trial, though he was never present. The journals presented a chilling view of Mr. Komisarjevsky as a man who thrived on the excitement of the crime and had hoped to kill himself and Mr. Hayes by crashing into a police roadblock not far from the Petit’s blazing home.

In excruciating detail, Mr. Komisarjevsky described beating Dr. Petit and sexually assaulting 11-year old Michaela. He is expected to be tried next year.

The trial was an emotional journey for the jurors, who were sometimes tearful as they reviewed photographs of the burned bodies and heard testimony about matter-of-fact confessions made both by Mr. Hayes and Mr. Komisarjevsky. Each man said the other had taken the night and morning on an unexpected path toward violence that had not been planned.

Mr. Hayes claimed Mr. Komisarjevsky busied himself trying to send cell-phone photographs displaying the child he had abused to his friends during the crime. Mr. Komisarjevsky said Mr. Hayes’s rape and strangulation of Ms. Hawke-Petit “brought both of us to a whole different level.”

The story of the crime “will break your hearts,” the chief defense lawyer, Thomas Ullmann, told the jurors in his opening statement at the start of the trial.

    Jurors Vote for Death in Conn. Triple-Murder Case, NYT, 8.11.2010, http://www.nytimes.com/2010/11/09/nyregion/09cheshire.html

Officer’s Extortion Conviction Prompts Calls for Full Exoneration of ‘Norfolk Four’

November 5, 2010
The New York Times
By SABRINA TAVERNISE

WASHINGTON — The recent conviction of a Virginia police officer supports the case for full exoneration of the “Norfolk Four,” former sailors convicted of rape and murder, who received conditional pardons from Virginia’s governor last year, lawyers for the men said.

In legal briefs filed in Virginia this week, the lawyers argued that last week’s conviction of Robert Glenn Ford, a police officer in Norfolk, Va., and the main investigator in the case of the Norfolk Four, raises new evidence showing the men were wrongly convicted. The men received partial pardons in 2009, but their convictions still stand, and the lawyers argue that they should now be overturned.

The men were convicted in the 1997 murder case of Michelle Moore-Bosko in Norfolk. None of the four sailors had prior criminal records, and the case against them was based almost entirely on confessions they gave to Mr. Ford, who pursued the investigation despite DNA evidence linking the crime to another man, Omar Ballard.

But Mr. Ford’s conviction — for extortion and lying to the Federal Bureau of Investigation — covered a period that began in 2003, long after the Norfolk Four were convicted, and in a letter last month, Judge Everett A. Martin Jr., expressed skepticism that the conviction was relevant for the Norfolk Four case.

But Donald P. Salzman, a lawyer for Danial J. Williams, one of the former sailors, argued in a response filed this week that Mr. Ford’s indictment and conviction was new information that substantially changed the facts of his client’s case.

Specifically, Mr. Salzman said, a source has come forward asserting that Mr. Ford had stated he believed the men were not guilty of the crime. But in Mr. Salzman’s view, Mr. Ford did not back off the case because he was trying to protect his position. Earlier in his career, Mr. Salzman said, Mr. Ford was caught in what prosecutors said was an effort to elicit false confessions from juveniles, and Mr. Salzman argued that another instance could have endangered his job.

“A detective who was the driving force behind these convictions has now been convicted for manipulating the justice system,” said Mr. Salzman, of the law firm Skadden, Arps, Slate, Meagher & Flom. “He had a motive to continue to pursue these cases.”

A lawyer for Mr. Ford, whose sentencing is scheduled for February, did not return calls seeking comment.

Though Mr. Williams, 38, is no longer in prison, his conviction still stands along with its consequences. He is required to wear an ankle bracelet so his parole officer can monitor him. He is a registered sex offender and was given a dishonorable discharge from the Navy. He is now living with his parents in Michigan, washing dishes at a restaurant and taking night classes, Mr. Salzman said.

The three other men — Joseph Dick Jr., Derek Tice and Eric Wilson — are also trying to overturn their convictions.

    Officer’s Extortion Conviction Prompts Calls for Full Exoneration of ‘Norfolk Four’, NYT, 5.11.2010, http://www.nytimes.com/2010/11/06/us/06norfolk.html

Violence After Sentence in Oakland Killing

November 5, 2010
The New York Times
By JESSE McKINLEY and MALIA WOLLAN

OAKLAND — Protesters vandalized storefronts and clashed with the police here on Friday night after a white former transit police officer was given what they considered to be a light sentence for the killing an unarmed black man. But protests initially seemed less violent than others that have surrounded the controversial case.

The authorities said one officer was hit by a car — perhaps by a police vehicle — and another officer’s gun was stolen and turned on him. That protester was arrested, Police Chief Anthony W. Batts said, and a police police spokesman said 152 people had been arrested. “You have a very aggressive crowd,” Chief Batts said.

The demonstrations started after Judge Robert Perry of Superior Court in Los Angeles sentenced the former officer, Johannes Mehserle, to two years in state prison. But the judge dismissed a component of the charges that would have led to more prison time.

With time already served, Mr. Mehserle could be released from prison as early as next year. He was convicted in July of involuntary manslaughter in the death of Oscar Grant III, who was shot while lying face down on New Year’s Day 2009. He had been removed from a Bay Area Rapid Transit train after a fight, and Mr. Mehserle said that he had mistaken his gun for a Taser. He was acquitted of the more serious charge of second-degree murder.

The jury found that Mr. Mehserle was eligible for additional prison time because he had used a gun in the crime. But Judge Perry rejected that finding.

The shooting and subsequent verdict drew an angry reaction from Mr. Grant’s family, who thought Mr. Mehserle should have been convicted of murder, and sparked riots in Oakland.

The crowd on Friday initially assembled for a peaceful rally in front of Oakland City Hall, which had closed early, as had many businesses. But after the rally wrapped up, several hundred of the protesters began to roam downtown Oakland, vandalizing vehicles and businesses.

In Oakland, tensions between the city’s sizable black population and its police force are longstanding, even though the city has a black mayor and police chief. The mayor, Ron Dellums, had pleaded for calm, and police officers were out in force, with days off canceled and police helicopters hovering overhead.

But frustrations seemed present nonetheless. At the rally, Michael Johnson, a 26-year-old graduate student and medical case manager, said the sentence was a part of historic inequality.

“I’m indignant today,” Mr. Johnson said.

Malia Wollan contributed reporting.

    Violence After Sentence in Oakland Killing, NYT, 5.11.2010, http://www.nytimes.com/2010/11/06/us/06transit.html

Jurors Deliberate Death Penalty in Connecticut

November 5, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — The jury began deliberations on Friday morning to decide whether to impose the death penalty at the trial of the man convicted of killing three members of a family in a 2007 home invasion in Cheshire, Conn.

“Obviously we’re ready for a long day," Judge Jon C. Blue told the jurors as they briefly took their seats in the jury box at 10:15 a.m.

The defendant, Steven J. Hayes, was convicted of 16 charges, including six capital counts, by the same jury on Oct. 5. The 12-person jury must navigate through a complex set of questions before making a choice between the two possible sentences: life in prison without the possibility of release, or death by lethal injection.

But, despite the series of specific questions that must be answered on six separate verdict sheets, one for each of capital felonies, Judge Blue of State Superior Court, told the jurors in his final instructions on Thursday that the verdict must be a unanimous “reasoned moral judgment.”

If there is no verdict Friday, Judge Blue has said deliberations will go through the weekend. Only one person has been executed in Connecticut in the last 50 years.

    Jurors Deliberate Death Penalty in Connecticut, NYT, 5.11.2010, http://www.nytimes.com/2010/11/06/nyregion/06cheshire.html

She’s 4 Years Old and Lives in Litigation Nation

November 5, 2010
The New York Times

To the Editor:

Re “One Year, She’s a Defendant; the Next Year, a Kindergartner,” by Susan Dominus (Big City column, front page, Oct. 30):

Surely there is a better way for the family of 87-year-old Clare Menagh to honor her memory than by filing a lawsuit against the 4-year-old girl who accidentally ran into her with her training wheels. Has our litigation-happy society really come to this?

What could any reasonable person possibly hope to gain from such a lawsuit? Justice? It wasn’t a crime — it was an accident.

Restitution? I hope they like stuffed animals.

Satisfaction? Well, they can have the satisfaction of knowing that they may be scarring a little girl for life.

Talk about a Pyrrhic victory. Accidental thoughtlessness is forgivable. Calculated thoughtlessness is not.

Joanne Lessner
New York, Oct. 30, 2010

•

To the Editor:

With all due respect to the memory of the late Clare Menagh, who died at age 87 of causes unrelated to her unfortunate collision with a 4-year-old bicyclist three months earlier, both Ms. Menagh’s heirs, now suing the child and others for negligence, and the judge who has permitted this absurd lawsuit suit to proceed should be ashamed of themselves.

It is such craven litigiousness and nonsensical interpretation of the law that help crowd New York court dockets at great taxpayer expense and otherwise contribute to the city’s well-deserved reputation as a judicial swamp.

More broadly, this sue-first-think-later mind-set continues to cost the city and state dearly as longtime taxpaying residents, educated young people and businesses by the score pack up and move to less litigious states.

Darren McKinney
Director of Communications
American Tort Reform Association
Washington, Nov. 2, 2010

•

To the Editor:

As an older woman and longtime safe travel activist, I am more afraid than ever of youngsters bicycling — and now more often “scootering” — on sidewalks and park paths because of their often total disregard for those sharing pedestrian territories.

Of course, it is the fault of parents and other adult caregivers who I find are totally unconcerned about their children’s reckless riding or scootering.

I know of two cases in which older women were struck by children on wheels and seriously injured. One was a previously vigorous and independent 75-year-old who ended up in a nursing home and died some months later.

Recent years have brought an avalanche of kids on wheels to the sidewalks of New York City. I am so grateful for the judge’s decision to allow the lawsuit against the girl on the bicycle to go forward and just hope it sparks concern that is long overdue.

Bette Dewing
New York, Oct. 30, 2010

The writer was the founder in 1982 of the now dormant Pedestrians First and is a columnist for Our Town and The West Side Spirit.

•

To the Editor:

A 4-year-old included in a negligence suit over a bicycle accident? This case brings up painful memories — and a question about the relative judgment of children and adults.

My 90-year-old grandmother was knocked to the ground 20 years ago by a 7-year-old girl careening down a park path on a bicycle. The accident broke her hip, precipitating her death a few weeks later. The medical examiner’s office wanted to rule it a homicide, but we prevailed and had it called an accident.

The little girl was immediately apologetic to my injured grandmother. There would have been little economic advantage to a lawsuit for a 90-year-old’s death.

But it would have been nice if her parents hadn’t been so cowed by the fear of legal action that they never offered an apology to match their 7-year-old’s. Nancy M. Lederman
New York, Oct. 30, 2010

The writer is a lawyer.

    She’s 4 Years Old and Lives in Litigation Nation, NYT, 5.11.2010, http://www.nytimes.com/2010/11/06/opinion/l06lawsuit.html

In Iowa, Voters Oust Judges Over Marriage Issue

November 3, 2010
The New York Times
By A.G. SULZBERGER

DES MOINES — In a rebuke of the state supreme court with implications for judicial elections across the country, voters here removed three justices who participated in a ruling last year that made the state the first in the Midwest to permit same-sex marriage.

The close vote concluded an unusually aggressive ouster campaign in the typically sleepy state judicial retention elections that pitted concerns about judicial overreaching against concerns about judicial independence. Years of grumbling about “robed masters,” conservatives demonstrated their ability to target and remove judges who issue opinions they disagree with.

Each of the three judges received about 45-46 percent support with 91 percent of precincts reporting, according to The Associated Press, marking the first time members of Iowa’s high court had been rejected by voters. Under the system used here, judges face no opponents and simply need to win more yes votes than no votes to win another eight-year term.

Financed largely by out-of-state organizations opposed to gay marriage, those pushing against the judges were successful in turning the vote into a referendum on the divisive issue.

“I think it will send a message across the country that the power resides with the people,” Bob Vander Plaats, a Republican who led the campaign after losing the republican nomination for governor, told a crowd of cheering supporters at an election night party peppered with red signs declaring “No Activist Judges.” “It’s we the people, not we the courts.”

Though the Iowa election was the most prominent, similar ouster campaigns were launched in other states against state supreme court justices running unopposed in retention elections whose rulings on matters involving abortion, taxes, tort reform and health care had upset conservatives.

Together they marked the rapid politicization of judicial races that had been specifically designed to be free of intrigue. Over the last decade, just $2 million was spent on advertising in retention elections, less than 1 percent of total campaign spending on judicial elections in that period, according to data compiled in a recent report released in part by the Brennan Center for Justice at New York University Law School. More than $3 million was spent on retention election races this year, easily eclipsing the figure for the previous decade, according to the Brennan Center.

The defeat was a bitter disappointment to much of the legal community here, which rallied behind the three justices arguing that judicial standards require judges to follow their interpretation of the law and not their reading of public opinion. They had urged voters to consider issues like competence and temperament rather than a single issue when casting ballots.

The three justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — did not raise money to campaign and only toward the end of the election did they make public appearances to defend themselves.

“We wish to thank all of the Iowans who voted to retain us for another term,” the judges said in a statement. “Your support shows that many Iowans value fair and impartial courts. We also want to acknowledge and thank all the Iowans, from across the political spectrum and from different walks of life, who worked tirelessly over the past few months to defend Iowa’s high-caliber court system against an unprecedented attack by out-of-state special interest groups.

“Finally, we hope Iowans will continue to support Iowa’s merit selection system for appointing judges. This system helps ensure that judges base their decisions on the law and the Constitution and nothing else. Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”

Though several groups formed to support their retention, they were significantly outspent by the organizations that bankrolled the ouster effort, including the National Organization for Marriage and the American Family Association.

“We’re concerned about the precedent this has set tonight and what it means for the influence of money and politics on the judicial system,” said Dan Moore, co-chair of Fair Courts for Us, which supported the judges.

The judicial races were perhaps the most hotly anticipated item on the ballot this year, a dramatic contrast from years past in which the election were so low profile that more than a third of those who cast ballots left the section blank. “That’s the main reason I came out,” said Michelle Kramer, 36, a college student from Des Moines. “People can do what they want to do, they can love who they want to love.”

Her friend and neighbor Cathy Hackett, 38, took the opposite view. “I voted no for every single one of them,” said Ms. Hackett, a customer sales representative who described herself as a conservative Christian. “I’m not anti-gay. I love everybody. But I believe that if two people are going to marry they should be a man and a woman.”

The outcome will have no affect on the ruling that triggered the campaign, a 7-to-0 decision that found that a law defining marriage as between a man and a woman represented unlawful discrimination under the state constitution.

But those who led the ouster campaign said they were more focused on highlighting to judges elsewhere, including those on the U.S. Supreme Court, the risks associated with leapfrogging public opinion on the issue of same-sex marriage. They noted same-sex marriage has been initially approved by supreme courts in four states and by legislators in only three.

Jeff Mullen, lead pastor at the Point of Grace Church, who helped organize religious leaders in opposition to the judges, said the vote should send a message to judges nationwide. “They weren’t supposed to legislate from the bench,” he said. “They did. They’re out of a job.”

Depending on the speed with which new candidates are nominated the replacement justices could be appointed either by Gov. Chet Culver, a democrat who lost reelection on Tuesday, or Terry Branstad, a republican who previously served as governor. Each appointed one of the departing justices to the Supreme Court and Mr. Branstad appointed Ms. Ternus to a lower court. Mr. Branstad has called for changing the selection system.

    In Iowa, Voters Oust Judges Over Marriage Issue, NYT, 3.11.2010, http://www.nytimes.com/2010/11/03/us/politics/03judges.html

Judges and Money

October 29, 2010
The New York Times

This fall’s round of state judicial elections is setting records of the wrong kind. Extravagant spending by interest groups out to influence judicial decisions and snarling television and radio attack ads have long become routine. This year, the virus has spread to retention elections, in which states ask for a yes-or-no vote on whether to grant sitting justices another term.

This is especially troubling because retention ballots were supposed to limit politicization by sparing sitting judges from having to compete in regular multicandidate contests.

The retention campaign of Justice Thomas Kilbride of the Illinois Supreme Court (the chief justice as of this week) is a depressing standout. More than $3.1 million has been raised — $2.5 million by the judge’s supporters, and $650,000 by his opponents.

The bulk of the pro-Kilbride war chest comes from plaintiffs’ lawyers, unions and other interests channeling money through the Illinois Democratic Party, which has an obvious stake in how the state’s top court comes down in future legal battles over redistricting.

Chief Justice Kilbride drew the ire of big business and insurance interests this year after he voted, with the majority, to overturn a state law that capped damage awards in medical malpractice cases. A political action committee trying to oust him has gotten $150,000 from the United States Chamber of Commerce, $180,000 from a group closely aligned with the National Association of Manufacturers and nearly $90,000 from the American Tort Reform Association.

His opponents’ ads are particularly noxious. Rather than focusing on the comparatively dry issue of whether the Legislature or juries and judges should decide negligence awards, they use his procedural rulings in other cases to portray him — unfairly — as soft on crime. In the ads, actors playing violent felons describe their atrocious crimes in detail and then say the justice “sided with us over law enforcement or victims.”

Chief Justice Kilbride is an able jurist, and Illinois voters should retain him. But the huge amounts of money in this campaign and others around the country are doing huge damage to the courts’ reputation for impartiality — and underscores the urgent need for basic reforms. States that hold judicial elections must adopt public financing as well as strict rules that bar judges from sitting on cases involving major financial supporters.

    Judges and Money, NYT, 29.10.2010, http://www.nytimes.com/2010/10/30/opinion/30sat2.html

Reflecting on a Lawsuit Against a 4-Year-Old

October 29, 2010
The New York Times
By SUSAN DOMINUS

That children under the age of 5 make it through the day, more often than not, without grievous bodily injury is something of a miracle, one of the many that present themselves to people once they become parents. But even young children have an instinct for self-preservation, which is why I find it even more mystifying how rarely those creatures — stick-wielding, stone-chucking, body-flinging — actually harm others.

The inevitable close calls leave even watchful parents in a guilty cold sweat, praying in gratitude to whatever playground deity intervened before push turned to shove-that-preschooler-right-off-the-slide.

And then, every once in a while, the magic of close calls fails. The stick meets eye, the sled careens into shins — or, as happened in April 2009 on East 52nd Street, a 4-year-old on training wheels collides with a woman using a walker. That woman, Claire Menagh, broke her hip (and, several months later, died of unrelated causes, at age 87). Her estate sued not only the two mothers whose 4-year-olds had been riding their bicycles on the sidewalk, but the children as well, for negligence.

This month, a judge ruled that the case against the 4-year-old girl involved could proceed (the family of the boy named in the suit did not file a motion for dismissal). Reading the judge’s ruling — which cites cases dating to 1928, and suggests that a 4-year-old could be held to the standard of some mythical “reasonable child” of that age — I kept flashing back to images from my college-era art history class: medieval baby Jesus, looking more like miniature adult Jesus, a representation of children as small adults so outdated as to seem almost incomprehensible through the lens of modernity.

Even as we expect our children to be ever more precocious — bilingual before kindergarten; too old at 4 for picture books, thank you; capable of showing us around our iPhones — somehow we never expect them to be ever more adult; certainly not so adult as to be potentially liable for negligence. One of my own 4-year-old twin sons not only believes Batman lives and breathes, but assumes he will someday grow up to be Batman. I have little fantasy that he is “reasonably” anything in particular when it comes to his judgment.

On Friday, parents and others in the neighborhood where the accident occurred shook their heads at the absurdity of suing someone so young, even as they acknowledged that the sidewalk was, as Meg Chamberlin, who lives on the block, put it, “a gray zone.”

In the condensed spaces of New York, where bedrooms double as playrooms and kitchens as home offices, the sidewalk is both throughway and backyard, which city officials recognize: it is indeed legal for children 12 and younger to ride bikes on the sidewalk. One resident of the apartment complex, who said she did not want to be quoted because of tensions there, said the community had long been divided between parents and nonparents over issues like how late children could play in the back of the building and how loudly.

Ms. Chamberlin, a mother of children ages 3 and 5, said the lawsuit had only heightened her own sensitivities about how she parents in the city.

“You don’t want to be superhovering parents,” she said; but she no longer feels she can take the chance that her child will veer unexpectedly into those shared spaces. Caught up in conversation, Ms. Chamberlin did not notice that an older woman and her companion had halted, blocked in their path by her stroller. “Excuse me,” the older woman said loudly, at which point Ms. Chamberlin hastily stepped aside, pulling the stroller. Resolution reached; lawsuit avoided.

The sheer density of New York — all that crowding, all those eyes — is what makes parenting often feel like a hotly contested performance. “On playgrounds, I mostly spend my time having imaginary arguments with other parents who are secretly judging me,” the singer Jonathan Coulton, a Brooklyn parent, recently posted on Twitter.

Self-consciously, a mother or father intervenes in children’s disputes at the risk of being deemed a helicopter parent; or maybe that parent does not hover, indulging in a rare moment of conversation, or God forbid, a complete train of thought, at the risk of being judged a bad caregiver — or, worse, having a child sued for negligence.

At MacArthur Park on East 49th Street, the closest playground to where the accident occurred, a yellow ribbon had been strung around the gate on Friday, with a surprisingly lawyerly caveat: Enter at Your Own Risk. The ribbon had a Halloween twist — spooky images in black were printed there as well — but it seemed, that day, appropriate for any playground at any time of year. Young children, so fragile, so tender, can also be a menace, a force of nature, like a tornado — and wholly unpredictable, like tornadoes.

Accidents happen; we all try not to get carried away.

    Reflecting on a Lawsuit Against a 4-Year-Old, NYT, 29.10.2010, http://www.nytimes.com/2010/10/30/nyregion/30bigcity.html

4-Year-Old Can Be Sued, Judge Rules in Bike Case

October 28, 2010
The New York Times
By ALAN FEUER

Citing cases dating back as far as 1928, a judge has ruled that a young girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.

The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three weeks later.

Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence.

In legal papers, Mr. Tyrie added, “Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence.” (Rachel and Jacob Kohn did not seek to dismiss the case against them.)

But Justice Wooten declined to stretch that rule to children over 4. On Oct. 1, he rejected a motion to dismiss the case because of Juliet’s age, noting that she was three months shy of turning 5 when Ms. Menagh was struck, and thus old enough to be sued.

Mr. Tyrie “correctly notes that infants under the age of 4 are conclusively presumed incapable of negligence,” Justice Wooten wrote in his decision, referring to the 1928 case. “Juliet Breitman, however, was over the age of 4 at the time of the subject incident. For infants above the age of 4, there is no bright-line rule.”

The New York Law Journal reported the decision on Thursday.

Mr. Tyrie had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.

“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.

In Ms. Menagh’s case, however, there was nothing to indicate that Juliet’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here,” he wrote. He concluded that there was no evidence of Juliet’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.”

Mr. Tyrie, Dana Breitman and Rachel Kohn did not respond to messages seeking comment.

    4-Year-Old Can Be Sued, Judge Rules in Bike Case, NYT, 28.10.2010, http://www.nytimes.com/2010/10/29/nyregion/29young.html

NY Restaurateur's Sentence: Deliver Pizza to Poor

October 19, 2010
Filed at 11:54 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

BUFFALO, N.Y. (AP) — A Buffalo, N.Y., restaurateur will be feeding pizza to the poor as punishment for cheating the state out of sales tax.

Casa-Di-Pizza owner Joseph Jacobbi could have been sent to prison after pleading guilty to third-degree grand larceny. But The Buffalo News reports a state Supreme Court judge thought the city would be better served if Jacobbi fed its neediest.

He sentenced Jacobbi to deliver 12 sheet pizzas from his popular restaurant to the City Mission once a week for a year.

The 57-year-old Jacobbi has repaid about half of the $104,000 in sales tax authorities say he withheld from New York over the course of four years. He must make monthly payments to cover the rest.

He declined to comment after his sentencing Monday.

    NY Restaurateur's Sentence: Deliver Pizza to Poor, NYT, 19.10.2010, http://www.nytimes.com/aponline/2010/10/19/us/AP-US-ODD-Pizza-Sentence.html

Boston Man Convicted of Killing Boy at Bus Stop

October 19, 2010
Filed at 11:54 a.m. ET
The New York Times
By THE ASSOCIATED PRESS


BOSTON (AP) — A Boston man who police say might have thought he was targeting a rival gang member has been convicted of fatally shooting a 15-year-old boy as he waited for a bus to school.

A jury found 19-year-old Xzeniyeju Chukwuezi (zen-YAY'-zhoo chuk-WAY'-zee) guilty Tuesday in Suffolk Superior Court first-degree murder and unlawful possession of a firearm.

Authorities say Chukwuezi shot eighth-grader Soheil Turner in the back of the head in the Roxbury neighborhood on May 7, 2009. Police say the boy had no gang affiliations.

Police identified Chukwuezi through witnesses and surveillance video. His lawyer says the person in the videos was not his client.

    Boston Man Convicted of Killing Boy at Bus Stop, NYT, 19.10.2010, http://www.nytimes.com/aponline/2010/10/19/us/AP-US-Bus-Stop-Shooting.html

‘So Utterly Inhumane’

October 12, 2010
The New York Times
By BOB HERBERT

You have to believe that somebody really had it in for the Scott sisters, Jamie and Gladys. They have always insisted that they had nothing to do with a robbery that occurred near the small town of Forest, Miss., on Christmas Eve in 1993. It was not the kind of crime to cause a stir. No one was hurt and perhaps $11 was taken.

Jamie was 21 at the time and Gladys just 19. But what has happened to them takes your breath away.

They were convicted by a jury and handed the most draconian sentences imaginable — short of the death penalty. Each was sentenced to two consecutive life terms in state prison, and they have been imprisoned ever since. Jamie is now 38 and seriously ill. Both of her kidneys have failed. Gladys is 36.

This is Mississippi we’re talking about, a place that in many ways has not advanced much beyond the Middle Ages.

The authorities did not even argue that the Scott sisters had committed the robbery. They were accused of luring two men into a trap, in which the men had their wallets taken by acquaintances of the sisters, one of whom had a shotgun.

It was a serious crime. But the case against the sisters was extremely shaky. In any event, even if they were guilty, the punishment is so wildly out of proportion to the offense that it should not be allowed to stand.

Three teenagers pleaded guilty to robbing the men. They ranged in age from 14 to 18. And in their initial statements to investigators, they did not implicate the Scott sisters.

But a plea deal was arranged in which the teens were required to swear that the women were involved, and two of the teens were obliged, as part of the deal, to testify against the sisters in court.

Howard Patrick, who was 14 at the time of the robbery, said that the pressure from the authorities to implicate the sisters began almost immediately. He testified, “They said if I didn’t participate with them, they would send me to Parchman and make me out a female.”

He was referring to Mississippi State Prison, which was once the notoriously violent Parchman prison farm. The lawyer questioning the boy said, “In other words, they would send you to Parchman and you would get raped, right?”

“Yes, sir,” the boy said.

The teens were sentenced to eight years in prison each, and they were released after serving just two years.

This is a case that should be repugnant to anyone with the slightest interest in justice. The right thing to do at this point is to get the sisters out of prison as quickly as possible and ensure that Jamie gets proper medical treatment.

A number of people have taken up the sisters’ cause, including Ben Jealous, the president of the N.A.A.C.P., who is trying to help secure a pardon from Gov. Haley Barbour of Mississippi. “It makes you sick to think that this sort of thing can happen,” he said. “That these women should be kept in prison until they die — well, that’s just so utterly inhumane.”

I have no idea why the authorities were so dead set on implicating the Scott sisters in the crime and sending them away for life, while letting the teens who unquestionably committed the robbery get off with much lighter sentences.

Life sentences for robbery can only be imposed by juries in Mississippi, but it is extremely rare for that sentencing option to even be included in the instructions given to jurors. It’s fair to think, in other words, that there would have to be some extraordinary reason for prosecutors and the court to offer such a draconian possibility to a jury.

Chokwe Lumumba, a lawyer representing the sisters, captured the prevailing legal sentiment when he said: “I don’t think Mississippi law anticipates that you’re going to be giving this instruction in a case where nobody gets hurt and $11 is allegedly stolen. In the majority of robbery cases, even the ones that are somewhat nasty, they don’t read that instruction.”

The reason for giving the jury the option of imposing life sentences in this case escapes me. Even the original prosecutor, Ken Turner, who is now retired and who believes the sisters were guilty, has said that he thinks it would be “appropriate” to offer them relief from their extreme sentences. He told The Clarion-Ledger in Jackson, Miss., “It was not a particularly egregious case.”

The appeals process for the women has long since been exhausted. It is up to Governor Barbour, who is considering petitions on the sisters’ behalf, to do the humane thing.

A pardon or commutation of sentence — some form of relief that would release Jamie and Gladys Scott from the hideous shackles of a lifetime in prison — is not just desirable, it’s absolutely essential.

    ‘So Utterly Inhumane’, NYT, 12.10.2010, http://www.nytimes.com/2010/10/12/opinion/12herbert.html

Convictions on 16 Counts in Triple-Murder Case

October 5, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — A former parolee with a long history as a petty criminal was convicted of capital crimes on Tuesday for his part in a nighttime home invasion in Cheshire, Conn., three years ago that left a woman and her two daughters dead. The jury deliberated less than one full day.

The defendant, Steven J. Hayes, who, the testimony showed, described his eager anticipation of the crime with an “LOL” — laughing out loud — text message hours before taking part in murder, rape, kidnapping and assault at the home of the Petit family, was convicted of 16 of 17 crimes in all; he was acquitted of arson.

Six of the crimes he was convicted of make him eligible for the death penalty. The same jury that sat during the three-week trial must soon determine, in a penalty phase that could last a month, whether Mr. Hayes is to be sentenced to death. The penalty phase is to begin on Oct. 18.

“There is some relief, but my family is still gone,” Dr. William A. Petit Jr., whose wife and two daughters were killed, said after the verdict. “It doesn’t bring them back. It doesn’t bring back the home that we had.”

The testimony in Judge Jon C. Blue’s courtroom in State Superior Court here showed that Mr. Hayes and Joshua Komisarjevsky, a friend from a Connecticut halfway house for parolees, entered the house on July 23, 2007; beat and restrained Dr. Petit, now 53; and wreaked havoc, including the rape and strangulation of Dr. Petit’s wife, Jennifer Hawke-Petit, 48. The two daughters, Michaela, 11, and Hayley, 17, died of smoke inhalation in a fire the intruders were accused of setting.

The news that there was a verdict came to the sixth-floor courtroom with a quiet knock from the jury room door about 12:25 p.m.

In a case featuring extensive evidence, including confessions from the defendant, there was never much suspense. Still, as the families of Dr. Petit and his murdered wife filed into the room, there was tension.

After a few preliminaries, the foreman rose and began answering the court clerk’s questions by repeatedly saying, “Guilty.” He spoke without a tremor, and without notes. The answer was the same until he reached the 16th of the 17 counts, this one for arson. “Not guilty,” he said.

The jurors, who may not speak publicly until the penalty phase of the case is complete, offered no explanation.

Finally, the foreman announced a final “guilty” for the last count, the assault of Dr. Petit with a baseball bat.

Mr. Hayes, 47, stood between his two lawyers, smaller than both of them. He was convicted of the murders of all three victims, kidnapping, burglary, the rape of Ms. Hawke-Petit and all six of the capital felony counts he faced.

The judge sent the jurors home with instructions: “Think of yourselves as jurors in the middle of a trial.” Then the marshals handcuffed Mr. Hayes, and he was taken out through a side door.

Dr. Petit fought back tears as he huddled with the chief prosecutor, Michael Dearington. Then, moments later, he emerged from the courthouse into a chill drizzle with members of his family and his wife’s family lined up behind him.

He was asked how he had the strength to keep going through the court ordeal. Speaking calmly, and with his father clutching his arm tightly, he looked around the crowd and said that each of them would do the same thing “if your family was destroyed by evil.”

The acquittal on the single arson count seemed to perplex the defense lawyers, Thomas J. Ullmann and Patrick Culligan.

Little more than two hours after they started deliberating on Monday, jurors sent a note asking the judge to define what it meant in the law to start a fire, and whether the pouring of gasoline would be considered starting a fire. Testimony suggested that Mr. Hayes bought gasoline in plastic containers the morning of the killings and, in a jailhouse confession to another inmate, he said he had poured gasoline “on the stairs” in the Petit home.

But it was unclear how much of the gasoline may have been spread by Mr. Komisarjevsky, who still faces trial. The chief prosecutor told the jury that the evidence suggested Mr. Hayes had started the fire as the two ran from the house.

    Convictions on 16 Counts in Triple-Murder Case, NYT, 5.10.2010, http://www.nytimes.com/2010/10/06/nyregion/06cheshire.html

More States Allowing Guns in Bars and Restaurants

October 3, 2010
The New York Times
By MALCOLM GAY

NASHVILLE — Happy-hour beers were going for $5 at Past Perfect, a cavernous bar just off this city’s strip of honky-tonks and tourist shops when Adam Ringenberg walked in with a loaded 9-millimeter pistol in the front pocket of his gray slacks.

Mr. Ringenberg, a technology consultant, is one of the state’s nearly 300,000 handgun permit holders who have recently seen their rights greatly expanded by a new law — one of the nation’s first — that allows them to carry loaded firearms into bars and restaurants that serve alcohol.

“If someone’s sticking a gun in my face, I’m not relying on their charity to keep me alive,” said Mr. Ringenberg, 30, who said he carries the gun for personal protection when he is not at work.

Gun rights advocates like Mr. Ringenberg may applaud the new law, but many customers, waiters and restaurateurs here are dismayed by the decision.

“That’s not cool in my book,” Art Andersen, 44, said as he nursed a Coors Light at Sam’s Sports Bar and Grill near Vanderbilt University. “It opens the door to trouble. It’s giving you the right to be Wyatt Earp.”

Tennessee is one of four states, along with Arizona, Georgia and Virginia, that recently enacted laws explicitly allowing loaded guns in bars. (Eighteen other states allow weapons in restaurants that serve alcohol.) The new measures in Tennessee and the three other states come after two landmark Supreme Court rulings that citizens have an individual right — not just in connection with a well-regulated militia — to keep a loaded handgun for home defense.

Experts say these laws represent the latest wave in the country’s gun debate, as the gun lobby seeks, state by state, to expand the realm of guns in everyday life.

The rulings, which overturned handgun bans in Washington and Chicago, have strengthened the stance of gun rights advocates nationwide. More than 250 lawsuits now challenge various gun laws, and Gov. Rick Perry of Texas, a Republican, called for guns to be made legal on campuses after a shooting last week at the University of Texas, Austin, arguing that armed bystanders might have stopped the gunman.

The new laws have also brought to light the status of 20 other states — New York, New Jersey and Massachusetts among them — that do not address the question, appearing by default to allow those with permits to carry guns into establishments that serve alcohol, according to the Legal Community Against Violence, a nonprofit group that promotes gun control and tracks state gun laws.

“A lot of states for a long time have not felt the need to say you could or couldn’t do it,” said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence. “There weren’t as many conceal-carry permits out there, so it wasn’t really an issue.” Now, he said, “the attitude from the gun lobby is that they should be able to take their guns wherever they want. In the last year, they’re starting to move toward needing no permit at all.”

State Representative Curry Todd, a Republican who first introduced the guns-in-bars bill here, said that carrying a gun inside a tavern was never the law’s primary intention. Rather, he said, the law lets people defend themselves while walking to and from restaurants.

“Folks were being robbed, assaulted — it was becoming an issue of personal safety,” said Mr. Todd, who added that the National Rifle Association had aided his legislative efforts. “The police aren’t going to be able to protect you. They’re going to be checking out the crime scene after you and your family’s been shot or injured or assaulted or raped.”

Under Tennessee’s new law, gun permit holders are not supposed to drink alcohol while carrying their weapons. Mr. Ringenberg washed down his steak sandwich with a Coke.

But critics of the law say the provision is no guarantee of safety, pointing to a recent shooting in Virginia where a customer who had a permit to carry a concealed weapon shot himself in the leg while drinking beer at a restaurant.

“Guns and alcohol don’t mix; that’s the bottom line,” said Michael Drescher, a spokesman for Governor Phil Bredesen of Tennessee, a Democrat, who vetoed the bill but was overridden by the legislature.

The law allows restaurant and bar owners to prohibit people from carrying weapons inside their establishments by posting signs out front. But many restaurateurs are reluctant to discourage the patronage of gun owners, often saying privately that they do not allow guns but holding off on posting a sign.

“I’ve talked to a lot of restaurants, and probably 50 to 60 percent of them have no clue what’s going on,” said Ray Friedman, 51, who has created a Web site listing the firearms policies of area restaurants.

Previously, states like Tennessee did not allow its residents to carry concealed weapons unless they had a special permit from the local authorities. That began to shift in the mid-1990s, as the gun lobby pushed states to adopt policies that made permits for concealed weapons more accessible.

The new law passed with broad legislative support, despite opposition from the Nashville Chamber of Commerce and the Tennessee Hospitality Association.

So far, the law has been challenged only once. Filed by an anonymous waiter, the complaint contended that allowing guns into a tavern creates an unsafe work environment for servers. His complaint was denied by the state’s Division of Occupational Safety and Health.

“A loaded concealed weapon in a bar is a recognized hazard,” said David Randolph Smith, a lawyer who represents the waiter and is preparing to appeal the decision. “I have a right to go into a restaurant or bar and not have people armed. And of course, the waiter has a right to a safe workplace.”

Down at Bobby’s Idle Hour, however, Mike Gideon said he did not believe that guns in bars were unsafe. As he sipped a beer in the fading afternoon light, Mr. Gideon, who characterized his 19-gun collection as “serious,” said that having a few permit holders around made any public space safer and that he boycotts any business that does not allow him to carry a weapon.

“People who have gun permits have the cleanest records around,” said Mr. Gideon, 54. “The guy that’s going to do the bad thing? He’s not worried about the law at all. The ‘No Guns’ sign just says to him, ‘Hey, buddy, smooth sailing.’ ”

    More States Allowing Guns in Bars and Restaurants, NYT, 3.11.2010, http://www.nytimes.com/2010/10/04/us/04guns.html

Legal Debate Swirls Over Charges in a Student’s Suicide

October 1, 2010
The New York Times
By WINNIE HU

Dozens of Rutgers University students wore black on Friday to remember Tyler Clementi, a freshman who killed himself after his roommate, according to prosecutors, secretly streamed over the Internet his intimate encounter with another man.

But even as students conducted quiet rituals of mourning, a vehement legal debate swirled over whether prosecutors, who have charged the roommate and another freshman with invasion of privacy, should — or would — raise the stakes by also pressing hate-crime charges.

Though bias charges are generally hard to prove, lawyers and civil rights experts said, New Jersey has one of the toughest state laws on hate crimes. Its so-called bias intimidation law allows prosecutors to lodge separate charges and seek greater penalties against anyone who commits a crime against someone because of the victim’s sexual orientation. The law does not specify that the crime be violent.

The Middlesex County prosecutor, Bruce J. Kaplan, said Thursday that his office was considering whether to press hate-crime charges against Mr. Clementi’s roommate, Dharun Ravi of Plainsboro, N.J., and Molly Wei of West Windsor, N.J. As of Friday, no additional charges had been filed and a court hearing date had not been set.

But on talk shows and blogs, people outraged by the suicide of Mr. Clementi, an accomplished violinist from Ridgewood, N.J., demanded that the defendants face stiff penalties.

In a statement released through a lawyer, Mr. Clementi’s parents, Jane and Joe Clementi, said: “We understand that our family’s personal tragedy presents important legal issues for the country as well as for us. Regardless of our legal outcomes, our hope is that our family’s personal tragedy will serve as a call for compassion, empathy and human dignity.”

On Sept. 19, Mr. Ravi messaged his Twitter followers that he had gone to Ms. Wei’s dormitory room and activated a webcam in his own room, showing Mr. Clementi as he was “making out with a dude.” Prosecutors said the images were streamed live on the Internet.

On Sept. 21, the authorities said, Mr. Ravi tried to stream more video and invited friends to watch. But Mr. Clementi apparently discovered the camera and complained to school officials. The next day, he jumped from the George Washington Bridge.

“It is crystal clear that the motive was to intimidate and harass that young man based on his sexual orientation, whether actual or perceived,” said Steven Goldstein, chairman of Garden State Equality, a gay rights group.

Malcolm Lazin, a former federal prosecutor who is executive director of Equality Forum, a national gay rights advocacy group, called on prosecutors to charge the two students with reckless manslaughter. “Clearly, what they did was premeditated,” Mr. Lazin said. “This was not a visceral response. This was something that was well thought out, executed and then put on the worldwide Internet.”

But several lawyers said it was hard to imagine that prosecutors could make a case for manslaughter, which would require them to show that Mr. Ravi and Ms. Wei foresaw that their actions would lead to a death.

“I think it would be hard to show that their conduct reached a level of recklessness that caused Tyler Clementi to commit suicide,” said Jay V. Surgent, a criminal defense lawyer in Lyndhurst, N.J.

Instead, these lawyers said, it was more likely that prosecutors would pursue bias charges.

Robert A. Mintz, a criminal defense lawyer in Newark and a former federal prosecutor, said, “What prosecutors will be looking at is whether this is a prank that had gone horribly wrong, or whether this was an orchestrated scheme to intimidate the victim based on his sexual orientation.”

Mr. Mintz said that prosecutors would likely review the students’ e-mail and Twitter messages, read any essays or blog entries, and interview friends about what they might have said. “If there’s an accumulation of circumstantial evidence, that can be very powerful,” he said.

If the students are charged and convicted of a hate crime, they could face up to 10 years in prison, instead of 5 years for the privacy charge alone. State Senator Shirley K. Turner has proposed legislation to raise the top sentence for invasion of privacy to 10 years.

Student vigils are planned over the weekend for Mr. Clementi.


Nate Schweber contributed reporting.

    Legal Debate Swirls Over Charges in a Student’s Suicide, NYT, 1.10.2010, http://www.nytimes.com/2010/10/02/nyregion/02suicide.html

Defendant Ignited Fire, Cheshire Prosecutor Tells Jury
 

October 1, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — A prosecutor at the trial of one of the two men accused of invading a home and murdering a woman and her two daughters contended on Friday for the first time that it was the defendant, Steven J. Hayes, who ignited the fire that killed the girls.

In his closing argument, the prosecutor, Michael Dearington, reminded jurors of testimony that Mr. Hayes ran from the house following the other suspect, Joshua Komisarjevsky.

“The last one out is the one who lights the fire,” Mr. Dearington said.

In a courtroom darkened so jurors could see slides of the victims and their home in Cheshire, Conn., which was ruined by an arson fire after a home invasion, rape and murder in 2007, Mr. Dearington repeatedly emphasized that no matter how much of a role Mr. Komisarjevsky had in the crime, Mr. Hayes played a crucial role and personally committed many of the acts involved.

Mr. Komisarjevsky has been a central focus of Mr. Hayes’s trial, though he has not been in the courtroom.

The two men face the possibility of the death penalty. Mr. Komisarjevsky is to be tried later.

Mr. Dearington, speaking unemotionally but somberly, reminded jurors that soon after his arrest Mr. Hayes told an officer that “things got out of control.”

“It wasn’t ‘things,’ ” he continued. “It was two people acting together.”

Mr. Dearington also reminded the jurors that Mr. Hayes admitted to having had sex with and then killing the mother of the family, Jennifer Hawke-Petit.

“Hayes had sex — having sex is not the right term — brutally raped” her, the prosecutor said.

In his summation, Mr. Hayes’s lawyer, Thomas J. Ullmann, offered a defense that seemed geared toward saving his client from the death penalty, but not establishing his innocence, while putting the blame on Mr. Komisarjevsky.

Mr. Ullmann conceded many of the charges against his client, including those that he raped and killed Ms. Hawke-Petit.

Speaking softly and occasionally shaking his head at the acts his client committed, he also said Mr. Hayes had committed arson, burglary and larceny.

And Mr. Ullmann conceded that Mr. Hayes took part in the kidnapping of all four members of the family, including the two girls, Michaela, 11, and Hayley, 17, who died from smoke inhalation, and their father, Dr. William A. Petit Jr., who was beaten but survived.

But Mr. Ullmann said that Mr. Komisarjevsky was the one controlling events; he portrayed Mr. Hayes as someone who never could have committed the crimes.

He said Mr. Hayes had not known that Mr. Komisarjevsky would change what he said had been their plan: break in, tie up the family, take money and get out.

Instead, Mr. Ullmann argued, Mr. Komisarjevsky changed the plan first by beating Dr. Petit and then by raping Michaela.

“The psychopath in this case is Joshua Komisarjevsky, not Steven Hayes,” Mr. Ullmann said.

“He should pay the price for what he did,” Mr. Ullmann argued about his client, “but not for what he did not do.”

Connecticut law generally requires what lawyers call “death plus” for a crime to warrant capital punishment.

As a result, Mr. Hayes could be sentenced to life in prison for killing Ms. Hawke-Petit, but committing a murder during the course of the rape would be a capital offense.

Mr. Ullmann argued that the rape of Ms. Hawke-Petit that Mr. Hayes confessed to might have been separate from his later strangulation of her.

Killing Michaela would make Mr. Hayes eligible for the death penalty because it is a capital offense under Connecticut law to kill a person who is younger than 16.

Mr. Ullmann devoted a good deal of his remarks to arguing that Mr. Komisarjevsky had a motive to kill the child: to cover up his sexual assault.

The 12 jurors and 2 remaining alternates were attentive to both arguments. In keeping with the reserved tone of the lawyers, they appeared unemotional.

A few of them nodded as lawyers for both sides pieced together narratives from what has often been disjointed, emotional testimony during the three-week trial.

Deliberations are to begin on Monday after the judge, Jon C. Blue of State Superior Court, gives the jurors legal instructions.

If Mr. Hayes is convicted of capital offenses, the same jury will hear a separate penalty phase of the trial.

The lawyers for both sides acknowledged the wrenching nature of the case.

Mr. Dearington displayed a family photograph of Ms. Hawke-Petit and her daughters for the jury on a large screen. But he referred to other photographs in evidence, like those of burned bodies.

He thanked the jurors for enduring “what has been indescribable evidence.”

Mr. Ullmann said the “the tragedy of this incident has affected us deeply — all of us.”

When he claimed that Mr. Hayes had killed Ms. Hawke-Petit “at the behest of” Mr. Komisarjevsky, Mr. Hayes, who was slumping at the defense table, did not stir.

In the end, Mr. Dearington argued, it did not really matter precisely which intruder took which action. Both were responsible, he said.

And, he said, both men had a problem because of the series of crimes they had committed.

“The solution was to destroy the house,” the prosecutor said to the jurors, “and, you may find, the people in it.”

    Defendant Ignited Fire, Cheshire Prosecutor Tells Jury, NYT, 1.10.2010, http://www.nytimes.com/2010/10/02/nyregion/02cheshire.html

Fair Courts in the Cross-Fire

September 28, 2010
The New York Times

Holding elections to fill important state judgeships is one of those ideas that may sound good in theory but works terribly in practice. As spending in state judicial races by special interests has vastly escalated in recent years, so has the threat to public confidence in judicial neutrality that is fundamental to the justice system.

Now the lavish spending by interest groups and the politicization of state court judgeships is spreading from races between two or more judicial candidates to the “retention” ballots that were supposed to shield judges from the rough-and-tumble of the election cycle.

More than two dozen states are having active judicial elections this fall. A total of 18 seats are being contested in multicandidate races in 11 states, while 37 sitting state justices are seeking voter approval in up-or-down “retention” elections in 15 states.

Between 2000 and 2009, state supreme court candidates collected more than $206 million in donations, more than doubling the record of the previous decade. States that previously have been home to some of the most expensive and raucous judicial races — Michigan, Alabama, Ohio and Texas — will again have competitive contests this fall.

The stage seems set for record-shattering spending wars, dominated by interest groups bent on influencing judicial decisions and by mud-slinging attack ads that were once limited to contested campaigns for executive or legislative offices. In Michigan, where two seats on the closely divided court are being contested, spending could top $10 million, according to some reform groups.

The exact impact of January’s ruling by the United States Supreme Court allowing free corporate and union spending in political campaigns, including judicial races, will not be known for some time. But the notorious ruling seems destined to further drive up independent expenditures on behalf of judicial candidates and exacerbate conflicts of interest on the bench.

Perhaps the most troubling new development concerns the so-called retention elections. To try to insulate judges from electoral pressures, some states ask voters to cast yes-or-no ballots on whether to grant them another term, in lieu of having judges face opposing candidates in regular multicandidate contests.

The idea is to give voters a say in choosing judges while making the election as apolitical as possible. To date, with a few noteworthy exceptions, retention elections have tended to be less bitter and partisan than contests where two candidates compete. That is changing.

In Iowa, three Supreme Court justices on the November ballot are the targets of a well-financed campaign by right-wing interests for voting in a case to allow same-sex marriage. The aim is to send a chilling message to judges beyond Iowa’s borders to beware of rendering opinions that some voter blocs might dislike.

In Kansas, anti-abortion activists are trying to defeat a sitting justice. In Illinois, business interests are campaigning to defeat the chief justice following a case that removed a cap on malpractice liability. And in Colorado, a conservative outfit called Clear the Bench Colorado is citing several decisions to try to rile up voters to oust the full slate of justices up for retention there. The group’s efforts may be impeded by a new court ruling that requires the group to register as a campaign committee and abide by certain limits on spending.

In all, the money spent on retention elections this year could surpass the total for the entire previous decade, said Adam Skaggs, a lawyer with the Brennan Center for Justice at the New York University Law School.

The nation’s system of justice depends on having judges who are fair-minded, independent and unafraid to make unpopular decisions. The onslaught coming this fall will not help.

    Fair Courts in the Cross-Fire, NYT, 28.9.2010, http://www.nytimes.com/2010/09/29/opinion/29wed1.html

Lax State Gun Laws Tied to Crimes in Other States

September 26, 2010
The New York Times
By ERIC LICHTBLAU

WASHINGTON — Nearly 600 mayors nationwide, led by Mayor Michael R. Bloomberg of New York and other city leaders, are mounting a new campaign to identify states with lax gun laws and push for tighter restrictions to prevent the trafficking of guns used in crimes.

A study due to be released this week by a coalition called Mayors Against Illegal Guns uses previously unavailable federal gun data to identify what it says are the states that most often export guns used in crimes across state lines. It concludes that the 10 worst offenders per capita, led by Mississippi, West Virginia and Kentucky, supplied nearly half the 43,000 guns traced to crime scenes in other states last year.

The study also seeks to draw a link between gun trafficking and gun control laws by analyzing gun restrictions in all 50 states in areas like background checks for gun purchases, policies on concealed weapons permits and state inspections of gun dealers. It finds that, across the board, those states with less restrictive gun laws exported guns used in crimes at significantly higher rates than states with more stringent laws. An advance copy of the study was provided to The New York Times.

“There are 12,000 gun murders a year in our country, and this report makes it perfectly clear how common-sense trafficking laws can prevent many of them,” said Mr. Bloomberg, who is the co-chairman of the coalition with Mayor Thomas M. Menino of Boston. “For mayors around the country, this isn’t about gun control. It’s about crime control.”

The gun trafficking issue provides Mr. Bloomberg, often mentioned as a possible presidential candidate in 2012, with another national platform. He has been the face of the mayors’ coalition since it was created in 2006 in opposition to a Congressional amendment that restricted the sharing of federal gun data with the local police.

Since its inception, the group, which now includes 596 mayors nationwide, has expanded into other gun-related issues, including the exporting of guns from the United States to Mexican drug cartels.

The mayors plan to use the new trafficking data to push for more stringent gun restrictions at the state and federal levels. Among the targets, coalition officials said, will be closing the so-called gun show loophole. The loophole allows people to buy firearms at gun shows without going through the usual background checks that weed out felons and other banned buyers.

Gun control advocates have fought a losing battle against the loophole for more than a decade, but neither Congress nor the Obama administration has shown any inclination to revisit the issue, particularly since the Supreme Court and lower courts have issued a series of rulings affirming Second Amendment rights.

The mayors’ push to identify and crack down on states with high rates of gun trafficking is sure to face stiff opposition from gun rights advocates, who have been buoyed by the court rulings.

Chris W. Cox, the National Rifle Association’s chief lobbyist in Washington, dismissed the upcoming report as “a cute little P.R. stunt.” When told of the main findings, Mr. Cox said the report appeared to have relied on “flawed assumptions” about how guns flow across state lines and are traced back to their original purchasers.

“It’s completely bogus for a group with a clear political agenda to release some study based on selective statistics,” he said. “This is not a serious discussion. But this is what we’ve come to expect from Mayor Bloomberg and his gun control agenda.”

Authors of the study, however, said they had conducted a careful analysis of reams of gun “trace” data from the Bureau of Alcohol, Tobacco, Firearms and Explosives — showing the path of guns confiscated at crime scenes — in reaching their conclusions. They said the study provided the deepest look to date at how states export guns used in crimes and how that relates to gun restrictions in those states.

James Alan Fox, a criminology professor at Northeastern University who was not involved in preparing the study, said the findings were likely to attract wide interest from academics and policymakers. Of particular significance, he said, will be the study’s data linking the laxity of gun laws in some states to the exporting of guns used in crimes in other states.

“What this does is help refute some of the statements that people make on the pro-gun side in saying that tougher gun laws are unconnected to reducing crime,” he said.

“A state’s gun laws are only as good as the weakest link in the national chain,” Professor Fox said. “A state with weaker gun laws becomes a supplier for states with stronger laws.”

Indeed, the authors of the mayors’ study, which was prepared largely out of Mr. Bloomberg’s office, said the findings suggested that gun traffickers had sought out states with less restrictive gun-purchase laws.

“What this really shows is that bad laws really do equal more gun trafficking,” said John Feinblatt, Mr. Bloomberg’s chief policy adviser, “and that gaps in the law really do make a difference.”

The study found that Mississippi, the state with the highest rate of crime-gun exports, supplied 50 out-of-state guns per 100,000 residents — more than three times the national average.

It also found that Mississippi, like all of the other states with the highest export rates, had relatively lax laws for bringing gun prosecutions, conducting background checks on buyers and preventing illegal purchases and transfers of guns. Officials at the Mississippi attorney general’s office declined to comment on the findings.

But Mr. Cox, of the N.R.A., said that the best way to prevent illegal trafficking was for the police and prosecutors to crack down on criminals, not to enact further restrictions that, he said, serve only to make it tougher for law-abiding citizens to purchase weapons. He predicted the new data from the mayors’ coalition would have no real impact on public policy.

“Do I think Mayor Bloomberg and his group are desperate for relevancy in a debate where they have no legitimate role? Sure,” Mr. Cox said. “Do I think their approach will continue to be rejected by the American people and Congress? I do.”

    Lax State Gun Laws Tied to Crimes in Other States, NYT, 26.9.2010, http://www.nytimes.com/2010/09/27/us/politics/27guns.html

Florida Court Calls Ban on Gay Adoptions Unlawful

September 22, 2010
The New York Times
By JOHN SCHWARTZ

A 30-year-old Florida law that prohibits adoption by gay men and lesbians is unconstitutional, a state appeals court ruled on Wednesday, and the state’s governor said the law would not be enforced pending a decision on whether to appeal.

The decision by Florida’s Third District Court of Appeal said that Florida’s adoption law, which bans adoption by gay men and lesbians while allowing them to be foster parents, had “no rational basis” and thus violated the equal protection clause in the State Constitution. Judge Gerald B. Cope Jr. wrote the opinion, which affirmed a 2008 decision from a lower court.

At a news conference on Wednesday afternoon, Gov. Charlie Crist applauded the decision, saying: “It’s a very good day for Florida; it’s a great day for children. Children deserve a loving home to be in.”

Because the decision applies statewide, he said, “We are going to immediately stop enforcing the ban.”

The state, however, has 30 days to appeal. The governor said that he had spoken with the secretary of Florida’s Department of Children and Families, but did not say whether there would be an appeal.

A spokeswoman for Bill McCollum, the state attorney general, who has voiced support of the adoption ban, said his office was representing the department in the case, “and will be in discussions with our client as to whether or not they plan to appeal.”

A spokesman for the department said, “The primary consideration on whether to appeal is finding the balance between the value of a final ruling from the Florida Supreme Court versus the impact on the Gill family.”

Judge Cope wrote that “our ruling is unlikely to be the last word.”

The case involved the efforts of Martin Gill, a gay man, to adopt two brothers he took in more than five years ago as foster children when one was 4 years old and the other 4 months old. They had ringworm at the time, and the younger child had an untreated ear infection. The older boy did not speak for the first month with Mr. Gill and his partner.

“When they came in the door, we were kind of shocked at what bad condition we were in,” Mr. Gill said Wednesday in an interview. “We realized we had our work cut out for us.”

He added, “I would say today they are two happy, healthy, normal kids.”

In a concurring opinion, Judge Vance E. Salter wrote that the steps taken to heal and raise the boys “are nothing short of heroic.”

Evidence presented at the trial by opponents of the ban found no difference in the well-being of children raised by gay parents versus heterosexual parents.

Judge Cope wrote that at the trial, the state presented only two expert witnesses, one of whom undercut the state’s case by disagreeing with the idea of a blanket ban on gay adoption, stating instead that adoptions should be considered case by case. The other expert called by the state, Dr. George A. Rekers, was criticized by opposing experts as having provided research that was rife with “errors in scientific methodology and reporting” and that “did not meet established standards in the field.”

The court did not comment on the fact that Dr. Rekers, who was paid $120,000 for his work in the case, has since been enmeshed in a scandal after he was discovered to have taken a 10-day trip to Europe with a young man who advertised sexual services on a site for gay escorts.

According to the lower court decision cited in the opinion on Wednesday, “Florida is the only remaining state to expressly ban all gay adoptions without exception.”

Howard Simon, the executive director of the A.C.L.U. of Florida, which represented the Gill family, hailed the decision on Wednesday as a blow against discrimination that means all potential adoptive parents “will be judged on their individual fitness to provide a loving, stable, permanent adoptive home.”

That means, he said, that “some gays will be disqualified, and some heterosexuals will be disqualified,” but that “nobody is going to be categorically excluded because of who they are.”

Conservative organizations attacked the decision. Mathew D. Staver, founder of Liberty Counsel and dean of the Liberty University School of Law, said in a statement, “Common sense and human history underscore the fact that children need a mother and a father.”

Mr. Gill said that during the long trial process he had been careful to shield the boys from news that might make them fear further disruption in their lives, including threats about being removed from their home.

“I try to keep it all positive, and try to insulate them from the negative,” Mr. Gill said. But, he added, “I’m certainly going to tell them we have a victory today.”

    Florida Court Calls Ban on Gay Adoptions Unlawful, NYT, 22.9.2010, http://www.nytimes.com/2010/09/23/us/23adopt.html

Missouri Tells Judges Cost of Sentences

September 18, 2010
The New York Times
By MONICA DAVEY

ST. LOUIS — When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.

The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.

But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime.

“Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.

The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison.

“There is no average case,” Mr. McCulloch said. “Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right.”

Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into a numerical equation.

“This is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the 13th Judicial Circuit Court and a member of the sentencing commission. “But it is almost foolish not to look at it. We live in a what’s-it-going-to-cost? society now.”

The shift here comes at a dire time for criminal justice budgets around the country, as states try to navigate conflicting, politically charged demands: to keep people safe and also cut costs. Michigan has closed prisons. Arizona considered putting its prison system under private control. California has searched for ways to shrink its incarcerated population.

Legal scholars predict that policies similar to the one in Missouri — which, unlike some other measures, might encourage cutting costs before inmates are already in prison — may soon emerge elsewhere.

Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.

Judge Michael A. Wolff of the State Supreme Court, chairman of the sentencing commission, said judges had been asking for such data. By last month, Judge Wolff said, the computer algorithm was up and running, and the commission made note of it to the legal community in its August newsletter, “Smart Sentencing.”

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

Judge Wolff said that some judges might never look at the price tags (though they are available to anyone, and some defense lawyers have begun mentioning them) and that judges ultimately did whatever they wished (within statutory limits) on sentences. Missouri’s sentencing commission makes recommendations only. And as Judge Wolff sees it, sentencing costs would never be a consideration in the most violent cases, just in circumstances where prison is not the only obvious answer.

“This is just more information,” Judge Wolff said.

Fewer than half the states have sentencing commissions like Missouri’s. In many cases, the commissions grew out of concerns, starting in the late 1970s, about racial and geographic disparities in sentences.

Now, however, the groups find themselves also weighing fiscal issues, like everyone else. Consider the theme of a meeting of the national association of sentencing commissions in August: “Sound Sentencing Policy: Balancing Justice and Dollars.”

Leaders of several commissions in other states said they had yet to consider a plan like Missouri’s. Some voiced concern about the ramifications, the methodology — even the price tag of calculating sentencing price tags.

Lots of states measure the costs of imprisonment and of new criminal laws, but on a generic scale. Many states, for instance, calculate the average cost of housing a prisoner, but that is rarely mentioned with down-to-the-dollar figures for a specific person as a judge picks a sentence.

To some, the concept sounds crass, and carries the prospect of unwanted consequences. Might a decision between life in prison and a death sentence be decided some day by price comparison? (Absolutely not, Missouri officials say, and besides, the computer model does not attempt to compute the cost of capital punishment.) Could the costs of various sentences become so widely known as to affect the decisions of jurors?

Numerous legal experts on sentencing issues said Missouri’s new policy made sense. Economic considerations play roles in all sorts of legal decisions, Rachel E. Barkow, a law professor at New York University, said, so why not let judges understand the cost of their choices?

Douglas A. Berman, a law professor at The Ohio State University, said: “One of the flaws in the operation of our criminal justice system is not only the failure to be attentive to cost but an arrogance that somehow you can never put a price on justice. Long missing has been a sober realization that even if we get significant benefits from incarceration, that comes at a significant cost.”

Others, like Paul Cassell, a law professor at the University of Utah, argue that Missouri’s plan counts certain costs but fails to measure others — the societal price, for instance, if someone not incarcerated commits another crime.

“No one can put a price tag on being a victim,” said Scott Burns, executive director of the National District Attorneys Association.

Still, money worries loom. This year, in an annual address, even the chief justice of Missouri’s Supreme Court, William Ray Price Jr., warned that the system would be threatened if budget cuts persisted.

“Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders,” he said.

Mr. McCulloch, the prosecutor, said the state’s prisons were filled with anything but harmless people. “You show me the college kid with a perfect record and a dime bag of weed who has been sent to prison, and I’ll get him out,” he said. “Find me him.”

When Missouri lawmakers meet next year, Mr. McCulloch says that he expects he and others may push to abolish the sentencing commission.


Emma Graves Fitzsimmons contributed reporting from Chicago.

    Missouri Tells Judges Cost of Sentences, NYT, 18.9.2010, http://www.nytimes.com/2010/09/19/us/19judges.html

Ind. Teen Showed Police How He Killed Brother

September 17, 2010
Filed at 3:12 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

RISING SUN, Ind. (AP) -- Prosecutors seeking life in prison for an Indiana teenager who pleaded guilty to murdering his brother are expected to wrap up their case.

Prosecutors have shown 18-year-old Andrew Conley on videotape describing to police how he strangled his 10-year-old brother. He also told authorities he later stood over his sleeping father with a knife and fought the urge to kill him.

The prosecution is expected to finish Friday. Defense attorneys will then present their case.

Several experts are expected to testify about Conley's mental state.

Conley could face from 45 years to life in prison. He can't face the death penalty because he was 17 when the murder occurred last November.

    Ind. Teen Showed Police How He Killed Brother, NYT, 17.9.2010, http://www.nytimes.com/aponline/2010/09/17/us/AP-US-Indiana-Boy-Strangled.html

30 Years Later, Freedom in a Case With Tragedy for All Involved

September 16, 2010
The New York Times
By CAMPBELL ROBERTSON

HATTIESBURG, Miss. — A little after 10 o’clock on Thursday morning, it was all up to Phillip Bivens. Just like that. The judge adjourned the hearing and Mr. Bivens, standing in a red jumpsuit in the corner of the courtroom, could all of a sudden do anything he wanted. After 30 years in prison, he was not sure what that was.

“Take it easy, I guess,” he said. “Try to ease my mind.”

Mr. Bivens, 59, and Bobby Ray Dixon, 53, two men who were serving life sentences, were exonerated by a judge on Thursday morning, their guilty pleas to the charge of murder erased. The judge said it was likely that another man, Larry Ruffin, would soon be cleared for the same murder.

There was no special hurry in his case. Mr. Ruffin died in prison eight years ago.

The expected ruling would be one of only a handful of posthumous exonerations nationwide, and taken with Thursday’s events, a rare triple exoneration.

Nonetheless, said Emily Maw, the director of the Innocence Project of New Orleans, the law center that pressed for the men’s release, the case has been nothing but a series of tragedies.

On a warm night in early May 1979, a man broke into the home of Eva Gail Patterson, raped her and cut her throat in front of her 4-year-old son. Ms. Patterson, whose 2-year-old was sleeping in the next room and whose husband was working offshore on an oil platform, stumbled to her neighbor’s carport, where she collapsed and died. The 4-year-old, Luke, told the police that a single man, “a bad boy,” had killed his mother.

Larry Ruffin, 19 at the time, was picked up a few days later. The night of the murder he had been on leave from a halfway house, where he was sent after stealing some beer from a store. Over the next few weeks, he gave several statements, contradictory on many points but all conforming to the same basic storyline: He had raped and killed Ms. Patterson, and he had acted alone.

Mr. Ruffin soon recanted, however, saying that he had been physically coerced by law enforcement officials into confessing, and maintained his innocence. Over a year later, just before Mr. Ruffin’s trial was set to begin, the police interviewed Mr. Dixon, who had been with Mr. Ruffin at the halfway house at the same time. Mr. Dixon told them that Mr. Ruffin had killed Ms. Patterson, but said that he had been with him that night. Mr. Dixon, who pleaded guilty to murder, apparently said Mr. Bivens was with them as well, though no records exist of that first interview.

Mr. Bivens, who had returned to his home in California several months earlier, was arrested by police officers who showed up at his door one night.

“I’d never been on a airplane before,” he said on a car ride out of Mississippi after the hearing. “I thought they were going to kill me. I thought they were going to get me up there and push me out.”

Back in Hattiesburg, he was told he could be facing the death penalty unless he pleaded guilty. Law enforcement officials showed him pictures of the crime scene and asked what he remembered, he said. He had never met Mr. Dixon before, he said, but, fearing for his life, he backed up Mr. Dixon’s account.

“All of these things, it’s hard to push them out of my mind,” he said on the car ride, staring out the window. “I don’t like to think about it. I feel like I should have been stronger than that.”

The trial, in the winter of 1980, was based almost exclusively on the three statements.

On the stand, Mr. Dixon, who described himself as a “hard learner” who could barely read, began to contradict his own testimony. Finally, he said that he had not been with the other two that night and that he did not even know what Ms. Patterson looked like. He said that he had been kicked in the head by a horse as a child and ever since had suffered seizures.

“I don’t have the right mind,” he said on the witness stand. “My mind comes and goes, and I don’t like to see nobody took away for nothing they ain’t done.”

Mr. Ruffin was convicted, though a hung jury prevented a death sentence. He was sentenced to life in prison and died of a heart attack in 2002.

Mr. Dixon, whose seizures were so frequent in prison that guards gave him a baseball batting helmet, developed lung cancer last year, which has since spread to his brain.

A couple of years earlier, lawyers for the Innocence Project had received an application for help from Mr. Dixon through a corrections officer. The lawyers, pointing to studies that show the frequency of false confessions, requested a DNA test of the evidence from the rape kit.

In July, the results came back. They implicated a man named Andrew Harris, who had lived just up the road from Ms. Patterson. In 1982, he was convicted of a rape outside Hattiesburg and is now serving a life sentence.

Law enforcement officials are now investigating his connection to the Patterson case.

Mr. Dixon was granted medical parole after the test results came in and has been out of prison since. Only Mr. Bivens remained.

The courtroom on Thursday was full of people who last came together 30 years ago. Mr. Ruffin’s family members wore “Free at Last” T-shirts, maintaining that freedom is a state that can be still achieved by the dead.

Mr. Dixon was there, smiling and leaning on a cane carved by his brother. The Patterson family, including Luke, now in his 30s, was sitting the front row. The district attorney, the same man who had been in the post in 1979, represented the state.

After the hearing, Mr. Dixon was taken by his brother a few dozen miles out of town to a sun-dappled clearing among pine trees, the site of Mr. Ruffin’s grave. The Ruffin family prayed, sang hymns and released balloons, and Mr. Dixon broke into sobs.

Earlier, Mr. Bivens stood across the street from the courthouse, in brand-new clothes still bearing the creases of the display shelf. He carried his belongings in a pillowcase: two Bibles, a pair of flip-flops, some shampoo, some socks. The lawyers took him to lunch and then drove him to New Orleans.

He was planning to stay in housing there that was set up especially for exonerated prisoners. Maybe, he said, he could find a job gardening. And he was thinking about looking up his old girlfriend, the one he was about to marry before the police arrived at his door that night.

It is important to have people around you, he said. They keep you from thinking about things too much. And they serve as an alibi, just in case.

    30 Years Later, Freedom in a Case With Tragedy for All Involved, NYT, 16.9.2010, http://www.nytimes.com/2010/09/17/us/17exonerate.html

At 103, a Judge Has One Caveat: No Lengthy Trials

September 16, 2010
The New York Times
By A. G. SULZBERGER

WICHITA, Kan. — Judge Wesley E. Brown’s mere presence in his courtroom is seen as something of a daily miracle. His diminished frame is nearly lost behind the bench. A tube under his nose feeds him oxygen during hearings. And he warns lawyers preparing for lengthy court battles that he may not live to see the cases to completion, adding the old saying, “At this age, I’m not even buying green bananas.”

At 103, Judge Brown, of the United States District Court here, is old enough to have been unusually old when he enlisted during World War II. He is old enough to have witnessed a former law clerk’s appointment to serve beside him as a district judge — and, almost two decades later, the former clerk’s move to senior status. Judge Brown is so old, in fact, that in less than a year, should he survive, he will become the oldest practicing federal judge in the history of the United States.

Upon learning of the remarkable longevity of the man who was likely to sentence him to prison, Randy Hicks, like many defendants, became nervous. He worried whether Judge Brown was of sound enough mind to understand the legal issues of a complex wire fraud case and healthy enough to make it through what turned out to be two years of hearings. “And then,” he said, “I realized that people were probably thinking the same thing 20 years ago.”

“He might be up there another 20 years,” added Mr. Hicks, 40, who recently completed a 30-month sentence and calls himself an admirer of Judge Brown. “And I hope he is.”

The Constitution grants federal judges an almost-unparalleled option to keep working “during good behavior,” which, in practice, has meant as long as they want. But since that language was written, average life expectancy has more than doubled, to almost 80, and the number of people who live beyond 100 is rapidly growing. (Of the 10 oldest practicing federal judges on record, all but one served in the last 15 years.)

The judiciary has grown increasingly reliant on semiretired senior judges — who now shoulder about a fifth of the workload of federal courts. But recently, some courts have also started taking steps that critics call long overdue to address the challenges that accompany jurists working to an advanced age.

“Attention to this area is growing in the judiciary,” said Judge Philip M. Pro, a district court judge in Las Vegas. Judge Pro leads the Ninth Circuit Wellness Committee in California, which focuses on age- and health-related issues facing judges. A similar committee is being established in the 10th Circuit, which includes Kansas.

“Most judges take pride in their work,” Judge Pro said. “They certainly want to be remembered at the top of their game. But a lot of time you’re not the best arbiter of that — it’s hard to see it in yourself if you’re having difficulties.”

Lawyers and colleagues who work with him say that is certainly not the case with Judge Brown.

True, the legal community here has grown protective of him over the years. In his younger days, he was so well known for his temper — lateness, casual dress and the unacceptably imprecise word “indicate” would all set him off — that before hearings one prominent defense lawyer used to take a Valium, which he called “the Judge Brown pill.”

Now, lawyers use words like “mellowed,” “sweet” and “inspirational” to describe him, and one longtime prosecutor began to cry while talking about his penchant for gallows humor. “Sorry,” she said. “It’s just I can’t imagine practicing without him.”

A few years ago, when they noticed that while speaking in court Judge Brown would occasionally pause, sometimes for what seemed like minutes, lawyers, clerks and fellow judges worried that they were witnessing the beginning of a decline that would make him incapable of doing his job. But he began using an oxygen tube in the courtroom, and the pauses disappeared. (During an hourlong interview in his chambers, he paused briefly just once while trying to recall the last name of Earl Warren, the former chief justice of the United States, but he was without his oxygen tank.)

The consensus is that Judge Brown is still sharp and capable, though colleagues acknowledge that his appearance can be startling. “Physically he’s changed a lot, but mentally I haven’t noticed any diminution of his ability,” said Judge Monti L. Belot, the former law clerk who now has his own courtroom in the same building, “Which has to be pretty unique.”

Nevertheless, Judge Brown has begun making a few concessions to his age. He still hears a full load of criminal cases, but now he takes fewer civil cases, and he no longer handles any that may result in lengthy trials. He spreads his hearings throughout the week to keep his strength up, and he no longer takes the stairs to his fourth-floor chambers.

Though most federal judges could resign outright and continue to receive their full salary once they reach 65, a majority — like Judge Brown — elect to move to senior status, a type of semiretirement that allows them to continue to work at a full or reduced level. The courts have become deeply reliant on such judges to handle the caseload, but they have also struggled with how to ease out judges whose desire to keep working no longer matches their ability.

In rare circumstances, a panel of judges can vote to remove another judge because of disability, which has happened only 10 times — most recently in 1999. Or, the chief judge of the court can stop assigning the cases to the judge. More often, a trusted colleague will be enlisted to suggest retirement or reassignment to ceremonial duties, said Judge Marcia S. Krieger, a district court judge in Denver who has been surveying judges in the 10th Circuit about aging issues.

Judge Brown has taken the step of asking a few trusted colleagues, including his longtime law clerk Mike Lahey, to tell him when they believe he is no longer capable of performing his job. “And,” the judge said, “I hope when that day comes I go out feet first.”

Born on June 22, 1907, in Hutchinson, Kan., Judge Brown, who had become a prominent local Democrat, first sought appointment by President Harry S. Truman to the federal bench while serving as a lieutenant in the Navy during World War II (at 37, he was the oldest man in his unit). He failed, but in 1962, after a stint as a bankruptcy judge, he was appointed to the district court by President John F. Kennedy. He earned a reputation as a pragmatic jurist whose middle-of-the-road rulings reflect a desire to apply rather than make the law.

Judge Brown is one of four Kennedy appointees still on the bench and the oldest federal judge in the country by six years, according to the Federal Judicial History Office. The only judge to serve at a later age was Joseph W. Woodrough, who was on the Eighth Circuit until 1977, when he died at 104.

For his part, Judge Brown is dismissive of talk of his place in the record books and tired of all the fuss over his birthdays. “I’m not interested in how old I am,” he said. “I’m interested in how good a job I can do.”

    At 103, a Judge Has One Caveat: No Lengthy Trials, NYT, 16.9.2010, http://www.nytimes.com/2010/09/17/us/17judge.html

Witnesses Tell of Finding Victims in Conn. Killing

September 15, 2010
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — At the end of a second-floor hallway still hot from the flames that had engulfed the house, a lieutenant from the Police Department in Cheshire, Conn., could see that there was someone on a bed.

“That’s where I found Michaela Petit,” the lieutenant, Jay Markella, told jurors on Wednesday at the trial of Steven J. Hayes, who is accused of arson in addition to murder in the triple killing at the Petit family house on Sorghum Mill Drive in Cheshire three years ago.

The jurors, some looking stricken, listened as Lieutenant Markella went on. “Her hands,” he testified in the silent courtroom, “were bound with like a string or a rope and they were over her head.”

She was tied to the headboard. The lower half of her body was off the bed. She was 11.

He said he knew even from a distance what he would find. But he went close enough to be sure. She was not alive.

In the courtroom’s front row, tears ran down the face of Michaela’s father, Dr. William A. Petit Jr., who had testified dry-eyed on Tuesday, describing his own harrowing night and day in the house.

More or less the same procedure took place three times on Wednesday. Witnesses told how they found the victims.

A volunteer firefighter, Rick Trocchi, described finding Hayley Petit, who was 17, at the top of the stairs on the second floor.

Timothy Wysoczanski, who was the first firefighter at the scene, described blinding smoke and scalding heat beating the men back again and again. He finally made it into the sun room, where he found the girls’ mother, Jennifer Hawke-Petit.

After each of the Cheshire officers described his discovery, a prosecutor formally introduced photographs of the bodies. Each of the photographs was placed in a separate file folder so as to avoid casual sightings and passed slowly from juror to juror.

The juror in the first seat in the first row of the jury box covered her face with her hand. A court marshal handed her a tissue. In the second row, a broad-shouldered young man who looked a little like one of the Cheshire officers wiped away tears.

The jurors had obviously worried about this courtroom moment. Just before it, one of them sent a note to the judge in State Superior Court here, Jon C. Blue. It asked for advance warning when they were going to see the graphic photographs that the lawyers had warned them would be an unavoidable part of a murder case in which the death penalty is being sought.

When the last of the pictures had made its last round in the jury box Wednesday afternoon, Judge Blue told the jurors that it had been a harrowing day, the worst part, he said, of any homicide case. He had agreed with the lawyers that there would be no more testimony for the day.

“If it’s any consolation,” Judge Blue said, “you’ve been through the roughest part. Not that it’s going to be any bed of roses.”

It had already been an intense day in the windowless courtroom, where the crowd of onlookers and reporters who pushed into the rows at the start of the trial on Monday began to thin. Officers described the chaotic escape attempt of Mr. Hayes and the other man accused of the crime, Joshua Komisarjevsky, who is to be tried separately.

In the Petit family’s stolen Chrysler van, the two suspects screeched out of the driveway and across the lawn as the flames in the house began to sprout through the windows. They crashed into two police cars and skidded to a halt.

Once out of the car, with officers shouting questions and orders, Mr. Hayes made his first statement, Detective Joseph Vitello of the Cheshire police testified. He said he asked Mr. Hayes if there was anyone still in the Petit house.

“I don’t know,” he said was the answer. “Things just got out of control.”

The detective said he took what looked like a 9-millimeter pistol out of Mr. Hayes’s belt. It turned out to be a BB gun. He said Mr. Hayes was wearing a green cap with “Miss Porter’s School Crew” embossed across the front. Hayley Petit had been on the rowing team at Miss Porter’s School.

A Cheshire police captain, Robert E. Vignola, was cross-examined by a defense lawyer, Thomas Ullmann, who suggested that there were police delays in responding to emergency calls that morning. “Not excusing what happened in any way,” Mr. Ullmann said, “but the fact is you were too late. Correct?”

The events that day in Cheshire were “very confusing,” Captain Vignola answered.

“The entire incident made no sense,” he said. “It still makes no sense today.”

    Witnesses Tell of Finding Victims in Conn. Killing, NYT, 15.9.2010, http://www.nytimes.com/2010/09/16/nyregion/16cheshire.html

Confessing to Crime, but Innocent

September 13, 2010
The New York Times
By JOHN SCHWARTZ

KANSAS CITY, Mo. — Eddie Lowery lost 10 years of his life for a crime he did not commit. There was no physical evidence at his trial for rape, but one overwhelming factor put him away: he confessed.

At trial, the jury heard details that prosecutors insisted only the rapist could have known, including the fact that the rapist hit the 75-year-old victim in the head with the handle of a silver table knife he found in the house. DNA evidence would later show that another man committed the crime. But that vindication would come only years after Mr. Lowery had served his sentence and was paroled in 1991.

“I beat myself up a lot” about having confessed, Mr. Lowery said in a recent interview. “I thought I was the only dummy who did that.”

But more than 40 others have given confessions since 1976 that DNA evidence later showed were false, according to records compiled by Brandon L. Garrett, a professor at the University of Virginia School of Law. Experts have long known that some kinds of people — including the mentally impaired, the mentally ill, the young and the easily led — are the likeliest to be induced to confess. There are also people like Mr. Lowery, who says he was just pressed beyond endurance by persistent interrogators.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”

The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld said. “They should look at whether they are reliable.”

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

Of the exonerated defendants in the Garrett study, 26 — more than half — were “mentally disabled,” under 18 at the time or both. Most were subjected to lengthy, high-pressure interrogations, and none had a lawyer present. Thirteen of them were taken to the crime scene.

Mr. Lowery’s case shows how contamination occurs. He had come under suspicion, he now believes, because he had been partying and ran his car into a parked car the night of the rape, generating a police report. Officers grilled him for more than seven hours, insisting from the start that he had committed the crime.

Mr. Lowery took a lie detector test to prove he was innocent, but the officers told him that he had failed it.

“I didn’t know any way out of that, except to tell them what they wanted to hear,” he recalled. “And then get a lawyer to prove my innocence.”

Proving innocence after a confession, however, is rare. Eight of the defendants in Professor Garrett’s study had actually been cleared by DNA evidence before trial, but the courts convicted them anyway.

In one such case involving Jeffrey Deskovic, who spent 16 years in prison for a murder in Poughkeepsie, prosecutors argued that the victim may have been sexually active and so the DNA evidence may have come from another liaison she had. The prosecutors asked the jury to focus on Mr. Deskovic’s highly detailed confession and convict him.

While Professor Garrett suggests that leaking facts during interrogations is sometimes unintentional, Mr. Lowery said that the contamination of his questioning was clearly intentional.

After his initial confession, he said, the interrogators went over the crime with him in detail — asking how he did it, but correcting him when he got the facts wrong. How did he get in? “I said, ‘I kicked in the front door.’ ” But the rapist had used the back door, so he admitted to having gone around to the back. “They fed me the answers,” he recalled.

Some defendants’ confessions even include mistakes fed by the police. Earl Washington Jr., a mentally impaired man who spent 18 years in prison and came within hours of being executed for a murder he did not commit, stated in his confession that the victim had worn a halter top. In fact, she had worn a sundress, but an initial police report had stated that she wore a halter top.

Steven A. Drizin, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, said the significance of contamination could not be understated. While errors might lead to wrongful arrest, “it’s contamination that is the primary factor in wrongful convictions,” he said. “Juries demand details from the suspect that make the confession appear to be reliable — that’s where these cases go south.”

Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent.

“You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

Mr. Trainum has become an advocate of videotaping entire interrogations. Requirements for recording confessions vary widely across the country. Ten states require videotaping of at least some interrogations, like those in crimes that carry the death penalty, and seven state supreme courts have required or strongly encouraged recording.

These days Mr. Lowery, 51, lives in suburban Kansas City, in a house he is renovating with some of the $7.5 million in settlement money he received, along with apologies from officials in Riley County, Kan., where he was arrested and interrogated.

He has trouble putting the past behind him. “I was embarrassed,” he said. “You run in to so many people who say, ‘I would never confess to a crime.’ ”

He does not argue with them, because he knows they did not experience what he went through. “You’ve never been in a situation so intense, and you’re naïve about your rights,” he said. “You don’t know what you’ll say to get out of that situation.”

    Confessing to Crime, but Innocent, NYT, 13.9.2010, http://www.nytimes.com/2010/09/14/us/14confess.html

Budget Woes Hit Defense Lawyers for the Indigent

September 9, 2010
The New York Times
By MONICA DAVEY

OZARK, Mo. — Some public defenders in Missouri say the stressed state budget is interfering with their ability to provide poor defendants with their constitutional right to a lawyer.

They say they are so overworked and underfinanced that they have begun trying to reject new cases assigned to them late in the month, when, they say, their workloads are already beyond capacity.

Concerns about a deteriorating, overwhelmed public defender system in this country have been around for decades, but they have ballooned recently as state budgets shrink and more defendants qualify for free legal counsel.

“This has been a problem in good economic times, and now it’s only worse,” said Jo-Ann Wallace, president and chief executive of the National Legal Aid and Defender Association. “What you have is a situation where the eligible pool of clients is increasing, crime rates are potentially increasing, while the resources often for public defenders are going down.”

Missouri’s per capita spending on public defense ranks 49th in the nation (only Mississippi spends less), Ms. Wallace’s group says. State officials say the defenders system, with its 570 employees, is expected to receive more than $34 million this year. The state public defender’s office says a true solution would require 125 more lawyers, 90 more secretaries, 109 more investigators, 130 more legal assistants and more space — all of which would cost about $21 million a year — a seemingly impossible suggestion, given the fiscal climate.

In the meantime, they say, fiscal constraints are colliding with the requirement set forth in a 1963 Supreme Court decision, Gideon v. Wainwright, that poor people accused of serious crimes be provided with lawyers paid for by the government.

Last week, Jared Blacksher found his case sent to the Missouri Supreme Court — not over the accusations that he had stolen prescription pain pills and a blank check, but over the issue of whether the state’s public defender system is in such dismal shape that it ought not be forced to represent him.

The public defender’s office had pleaded with the judge, repeatedly, not to assign it Mr. Blacksher’s case. It was just the latest example of public defenders, charged with representing the poor and indigent, saying they cannot take a case because they have too many already and not enough staff to handle them all. Public defenders in jurisdictions from Florida to Minnesota to Arizona have either sued over their caseloads or refused to take new cases.

The judge in the Blacksher case rejected the public defender’s pleas not to be forced to take it. “It flies in the face of our Constitution,” Judge John S. Waters told his Christian County courtroom here last month. “It flies in the face of our culture. It flies in the face of the reason we came over here 300 and some-odd years ago to get out of debtors’ prison.”

“I’m not saying the public defenders aren’t overworked,” Judge Waters said, but, “I don’t know how to move his case and how to provide him what the law of the land provides.”

But last Friday, the Missouri Supreme Court issued an order temporarily rescinding the assignment of public defenders in Mr. Blacksher’s case, at least until the court can consider legal briefs on the question of the public defenders’ latest demand to refuse cases.

Mr. Blacksher’s case, which could now be delayed for several months, has become the center of a debate that long predates it in this state. To some, the signs of stress on the public defender system here have become overwhelming, even frightening: almost all the public defenders’ 35 trial division offices lately carried caseloads that would require more than the total number of staff hours available in a month — in some cases, more than two times the hours available, said Cat Kelly, deputy director for the Missouri State Public Defender System.

“Missouri’s public defender system has reached a point where what it provides is often nothing more than the illusion of a lawyer,” an outside report asked for by the Missouri Bar concluded last year.

Yet some county prosecutors here are deeply skeptical of the defenders’ complaints. With the state facing $550 million less in general fund revenues than a year ago, they say, defenders are no more burdened than the next department.

“They say this every year,” said Ron Cleek, the prosecuting attorney in Christian County, which includes Ozark, adding that he wondered whether some at the defenders offices might “want to think about what time they come in and when they go home.”

“We all work hard,” Mr. Cleek said. “They just need to suck it up and get out there and get it done.”

Missouri’s state auditor has announced her office will examine the public defender system to determine whether it is, indeed, overburdened.

Around the country, the indigent are defended by a hodgepodge of systems and financing sources. In some places, private lawyers are appointed by judges; elsewhere, statewide public defender networks (like Missouri’s) have been created. Other jurisdictions use some combination of methods.

The public defenders in Missouri and elsewhere all ultimately pose a larger question: How far can defenders be stretched before they no longer provide poor people with the legal help ensured by Gideon?

“Is someone in prison who might have been acquitted if we had had more resources?” Rod Hackathorn, the public defender for a three-county district that includes Ozark, asked the other day. “You don’t know. I’m sure that it’s happened, and I don’t know who it has happened to. And that’s the scariest part of this all.”

Mr. Hackathorn’s district is one of two in the state to begin announcing this summer that it was turning down cases, including Mr. Blacksher’s. Nine others are taking steps to do the same.

So far, results for poor defendants are murky. In cases involving those not in custody, some judges have sidestepped the entire question, quietly advising defendants to wait for the start of a new month (and a fresh monthly caseload count) — at which point their cases will be assigned to a public defender once more. In more serious cases, like Mr. Blacksher’s, judges have rejected the public defenders’ claims of “unavailability.”

Hours after the State Supreme Court’s decision in Mr. Blacksher’s case, Mr. Blacksher, who is charged with burglary and forgery, seemed oblivious to what had happened and mystified by his brush with the debate over public defenders.

From the Christian County Jail, where he has been held since July, unable to afford bail, Mr. Blacksher, 22, said he had heard nothing of the delay in his case and was still expecting to be called from his cell for a hearing — which had once been set for last Friday — on its merits.

Just a day earlier, he had met with his assistant public defender and had agreed, he said, to plead guilty in exchange for a prison sentence that would most likely run several months. So far as he knew, he said, the public defender was still his lawyer, and his hearing might come any minute.

    Budget Woes Hit Defense Lawyers for the Indigent, NYT, 9.9.2010, http://www.nytimes.com/2010/09/10/us/10defenders.html

Officer Guilty in Killing That Inflamed Oakland

July 8, 2010
The New York Times
By JESSE McKINLEY

A white Bay Area transit officer was found guilty of involuntary manslaughter on Thursday by a Los Angeles jury in the shooting death of an unarmed black man on Jan. 1, 2009, ending a closely watched trial that percolated with racial tension and cries for peace in the city of Oakland, Calif., where the killing occurred.

The officer, Johannes Mehserle, 28, had been accused of a more serious charge, second-degree murder, in the death of Oscar Grant III, 22, a butcher’s apprentice who was shot while lying face down on a platform after being removed from a Bay Area Rapid Transit train during a fight.

City officials were worried about a reprise of the 2009 riots that erupted in downtown Oakland, with crowds burning cars and smashing storefronts after Mr. Grant’s shooting, which was captured on cellphone video and widely disseminated on the Internet.

Initial reaction on Thursday was not promising: several hundred people gathered near Oakland City Hall early in the evening, and were seen to be taunting police officers in riot gear and throwing bottles. At least one person was either hit by a vehicle or injured by the surging crowd. But a heavy police presence seemed to be keeping the peace, and hundreds of others were listening peacefully to speakers who had gathered downtown.

Mr. Mehserle, who contended that the shooting was an accident caused when he mistook his sidearm for his Taser, faces up to four years in prison, and additional prison time because a gun was involved in his crime. Sentencing is scheduled for Aug. 6.

Mr. Grant’s family seemed disappointed with the verdict, which came after just a day and a half of deliberation by the case’s final jury. “We thought the jury was dismissive,” said John Burris, a lawyer for the Grant family. “It’s a small victory, but it is not a fair representation of what happened, an officer standing over him with his hands tied and shooting him.”

The verdict, announced to a packed courtroom at Los Angeles Superior Court, was preceded by anxious moments in downtown Oakland, where some merchants were boarding up storefronts in recent days in expectation of civil unrest.

Yolanda Mesa, 31, who said she was Mr. Grant’s sister-in-law, arrived downtown after the verdict and criticized the absence of blacks on the jury in Los Angeles. “We are not happy with this at all,” she said. “This is not justice.”

But for some, the very fact of a conviction of a police officer — a member of the Bay Area Rapid Transit police, not the Oakland force — was some solace. Black residents in Oakland, who make up a large portion of the population, have long had an uneasy relationship with the city’s police, whose past episodes of brutality and malfeasance have led to a long period of oversight by independent monitors and a federal judge.

“We’ve been suffering police brutality for generations,” said Lesley Phillips, a longtime Oakland resident. “We want it to end.”

City officials and the police in Oakland had been preparing for the verdict for several weeks as arguments were under way in Los Angeles, where the trial had been moved because of worries about impaneling an impartial jury in Alameda County. Reaction in front of the Los Angeles courtroom was calm, but officials in Oakland closed City Hall and sent city workers home soon after word that a verdict had been reached.

Mayor Ron Dellums and Police Chief Anthony W. Batts had been urging calm as the jury began deliberating. The police had also been put on alert, practicing antiriot maneuvers and coordinating with representatives of several local agencies in case of civil unrest. City officials had argued that much of the violence from earlier riots had been caused by “outside agitators.”

That message was echoed by a group called Oakland for Justice, which organized an evening rally to create “a safe space” where youths wouldn’t be “exposed to the risk of arrest because of the actions of others.”

But Arnold Lucas Jr., 19, said he was depressed by the verdict and thought it was unfair. “It’s the same thing as Rodney King,” he said. “Its 2010. The same thing is going on. There’s never going to be peace on earth.”

City Councilwoman Jean Quan said: “I don’t think anyone is really happy with the verdict. At least we’re pleased he didn’t get total acquittal.”


Rebecca Cathcart contributed reporting from Los Angeles Carol Pogash and Tad Whitaker from Oakland.

    Officer Guilty in Killing That Inflamed Oakland, NYT, 8.7.2010, http://www.nytimes.com/2010/07/09/us/09verdict.html

Prosecutors Using Broad Definition of Hate Crimes

June 22, 2010
The New York Times
By ANNE BARNARD

In the public’s imagination, the classic hate crime is an assault born of animus against a particular ethnicity or sexual orientation, like the case of the Long Island man convicted in April of killing an Ecuadorean immigrant after hunting for Hispanics to beat up.

But in Queens since 2005, at least five people have been convicted of, or pleaded guilty to, committing a very different kind of hate crime — singling out elderly victims for nonviolent crimes like mortgage fraud because they believed older people would be easy to deceive and might have substantial savings or home equity.

And this month, Queens prosecutors charged two women with stealing more than $31,000 from three elderly men they had befriended separately after noticing them walking alone on Woodhaven Boulevard, using their credit to pay for dental work and, in one case, asking for money to buy a kidney on the black market. The women, Gina L. Miller, 39, and Sylvia Johns, 23, of Flushing, were charged with grand larceny as a hate crime.

This approach, which is being closely watched by prosecutors around the state, has won Queens prosecutors stiffer sentences, including prison for criminals who could otherwise go free, even after draining an elderly person’s savings. Without a hate crime, theft of less than $1 million carries no mandatory prison time; with it, the thief must serve for a year and may face 25.

The legal thinking behind the novel method is that New York’s hate crimes statute does not require prosecutors to prove defendants “hate” the group the victim belongs to, merely that they commit the crime because of some belief, correct or not, they hold about the group.

“Criminals that prey on the elderly, they love the elderly — this is their source of wealth,” said Kristen A. Kane, a Queens assistant district attorney.

Led by Ms. Kane, who runs a specialized elder fraud unit, the efforts have made the Queens district attorney, Richard A. Brown, a leader in finding new uses for hate crime laws, prosecutors in other jurisdictions say. Scott Burns, executive director of the National District Attorneys’ Association, said he had not heard of another office using hate crimes as Queens does.

Neither had Kate Hogan, president of the state District Attorneys Association. But she looked into the efforts after hearing about it from a reporter, called it “an epiphany” and said she would suggest it to the group’s committee on best practices. Some New York prosecutors, who asked not to be named because they did not intend to criticize colleagues, said that while the approach intrigued them, they were waiting to see if convictions were overturned on appeal before trying it.

The strategy has never been tested in appellate court; many of those charged have pleaded guilty, waiving their right to appeal. But Queens trial judges have upheld it against defense lawyers who argue that the hate crime charges are inappropriate.

Some people concerned about the prevalence of more classically understood bigotry say that new uses of the hate crime law could ultimately dilute its power. The main purpose of the law, said Steven Freeman, legal affairs director at the Anti-Defamation League, is to stiffen penalties for crimes that inflict additional fear on marginalized groups like ethnic or religious minorities or gays; tougher penalties for crimes against the elderly, pregnant women or children can be imposed with separate “vulnerable victims” laws.

New York’s law is ambiguous. It says prosecutors must prove only that a crime was committed “because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person.”

But the language that opens the legislation clearly focuses on hate: “Crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs.”

For Ms. Kane, there is no debate. “We don’t have a whole lot of tools,” she said. “We should utilize what the legislature has given us.”

It all started with Sunshine. That was the nickname of Nancy Jace, who bilked five elderly men out of $250,000, pretending to romance them and persuading them to pay for fictitious family emergencies. Ms. Kane was frustrated when Ms. Jace, 37, pleaded guilty in 2004 and served just six months in jail.

When a similar defendant came along, Ms. Kane had an idea. Shirley Miller, 43, who hoodwinked four elderly men out of $500,000, became the first New Yorker charged with grand larceny as a hate crime against the elderly. She pleaded guilty and served four months, but would have faced one to three years if she had not paid $175,000 in restitution. In 2006, Sherry Kaslov, 30, pleaded guilty to similar charges; she served four months and was hit with 10 years of probation.

Those sentences may not sound huge, Ms. Kane said, but the hate charge gave her extra leverage in plea bargaining. By winning felony pleas and probation, prosecutors ensured that repeat offenders would receive strong sentences.

The cases kept coming. In 2006, Natasha Marks, 20, was convicted of swindling more than $1 million from an 86-year-old man as a hate crime, including taking out a $550,000 mortgage on his house; a fugitive, she faces two to six years. Wando Delmaro was sentenced to 10 years after pleading guilty to a hate crime: posing as a water-company employee and distracting elderly people while accomplices burglarized them.

The next year in Brooklyn, a high-profile case bolstered Ms. Kane. Michael Sandy, a gay man, died after robbers chased him into traffic. One defendant testified that he was gay. The judge ruled that he could still be charged with a hate crime since prosecutors said he went after Mr. Sandy believing gay men were easier to rob. Jurors convicted him but later complained that they did not think the hate crime applied.

Then there was Alexandra Gilmore, 37, who took $800,000 from Artee McKoy, 93, a retired barber and old friend of her late father who had Alzheimer’s disease. She stole his house and tricked him into refinancing another, taking the money and eventually sending both properties into foreclosure. She pleaded guilty last year and is serving two to six years.

Maria Thompson, Mr. McKoy’s daughter, wanted Ms. Gilmore to get even more time. Her father died in 2008, and she is still struggling in court to get control of his estate. In the meantime, the house where she grew up is foreclosed and padlocked. She cannot enter to sort her father’s possessions or find a photograph to remember him by. She has no idea if she and her four siblings will ultimately inherit any equity in the home, which had been fully paid off before the scheme.

Mr. McKoy’s own kindness inspired the scheme, said Ms. Thompson, 69, who works as a greeter at Wal-Mart. When Ms. Gilmore’s father died, he lent her money to avoid foreclosure of her own house, revealing that he had savings, “and then she ripped him off,” Ms. Thompson said.

Ms. Kane got another crack at Ms. Jace. She is now serving 8 to 24 years for defrauding a series of landlords, a sentence stiffened by her plea to the earlier hate crime. Ms. Kane did not charge one this time.

“Most victims were elderly,” she said a bit ruefully, “but not all.”

    Prosecutors Using Broad Definition of Hate Crimes, NYT, 22.6.2010, http://www.nytimes.com/2010/06/23/nyregion/23hate.html

Records: Girl's Killer Had Calm, Calculating Mind

June 19, 2010
Filed at 12:15 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

STOCKTON, Calif. (AP) -- The evidence against her mounted, but Melissa Huckaby stuck to her story as police questioned her in April 2009: She had nothing to do with the abduction, rape and murder of an 8-year-old neighbor girl.

''She's the type of person that thought she could always explain her way out of situations,'' Tracy Police Det. Nate Cogburn told the grand jury that would charge Huckaby in Sandra Cantu's death. ''And that was clearly what she thought she was going to do in this case.''

More than 1,800 pages of grand jury transcripts and other documents were released Friday, shedding some light on the young Sunday school teacher who eventually pleaded guilty to kidnapping and murdering her daughter's playmate. Huckaby, 29, has never revealed her motive and investigators have been at a loss to explain why she did it.

''There are so many unanswered questions that we will never know,'' prosecutor Thomas Testa said.

What emerges from the documents is a portrait of a depressed woman with a troubled past and a penchant for cutting herself, her family said.

According to a probation report, she described her childhood as ''kind of rough'' and said she was raped by a police officer when she was 19. She said she was diagnosed as bipolar and suffering from post traumatic stress syndrome.

Dr. Bennet Omalu, the forensic pathologist who conducted the autopsy, testified that Sandra's killer showed a ''calm, calculating mind at work.''

The way the body of 8-year-old victim was placed in the suitcase after the killing showed the work was likely premeditated, Omalu said during the July 2009 hearings. He testified that Sandra suffered mightily before she died of suffocation and was undoubtedly sexually assaulted.

''This was not something heat of the moment,'' Omalu said.

That calculating mind also on display the night of March 28, 2009, when Sandra was still missing and neighbors held a candlelight vigil in the mobile home community where Huckaby and Sandra lived.

During the vigil, a hyperventilating and tearful Huckaby ran up to investigators clutching a misspelled note she claimed to have found wedged in a nearby wall, according to the transcripts. The note said Sandra had been ''stolin'' and dumped in a nearby pond.

The girl, clad in a Hello Kitty T-shirt and Hannah Montana slippers, was indeed found stuffed in a suitcase submerged in the pond. It turned out that Huckaby wrote the letter, prosecutors said.

Two days before the suitcase containing Sandra's body was pulled from an irrigation pond, Huckaby checked herself into a hospital after swallowing a razor blade.

The documents showed Huckaby told investigators she accidentally swallowed the blade while sleepwalking. Prosecutor Testa contended the action showed the ''consciousness of guilt.''

Police quickly zeroed in on Huckaby as the prime suspect after Sandra's body was found.

Still, she kept up her innocence claim.

''Why would someone want to take her,'' Huckaby told police from her hospital bed. ''Why do people hurt other people...because they are sick in their heads...disgusting.''

She even tried to bamboozle her grandmother during her hospital stay.

''I hope she wasn't sexually assaulted,'' she said in a text message to the grandmother on April 6, 2009.

She still equivocated once she was arrested and confronted with overwhelming evidence that she committed the murders, including video surveillance, a witness spotting her in the remote area where the body was found and numerous inconsistencies in her interviews with investigators.

Her new story was that Sandra perished during a game of hide-and-go-seek gone wrong.

According to court documents, she finally told investigators that she urged Sandra to climb into the suitcase during the game with her daughter. Huckaby said she zipped Sandra into the suitcase and then forgot about her until it was too late, finding a lifeless body when she finally returned.

She said she ''freaked out'' and dumped her body in the irrigation pond.

Huckaby still maintains she did not sexually molest Sandra. The doctor who performed the autopsy testified otherwise in the transcripts released Friday. But a judge Friday barred release of the actual autopsy report at the family's request.

Sandra's uncle, Joe Chavez, later blasted The Associated Press, Bay Area News Group and The Record of Stockton who have jointly filed court motions seeking its release. He compared their actions to ''nothing less than trying to look up the skirt of a dead 8-year-old little girl.''

''They should be ashamed of themselves!'' Chavez said. ''This is irresponsible journalism run amok.''

The news organizations said it is in the public interest to release the information so the plea deal and the court's determination about sentencing can be evaluated.

    Records: Girl's Killer Had Calm, Calculating Mind, NYT, 19.6.2010, http://www.nytimes.com/aponline/2010/06/19/us/AP-US-Girl-in-Suitcase.html

Governor Rebuffs Clemency Board in Murder Case

June 14, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — Ronald Kempfert was a young boy in 1975 when his father was sent to prison for murder, and they had no contact for 28 years.

Then, in 2003, Mr. Kempfert heard from a lawyer who had been looking into the case. “Your father is innocent,” said the lawyer, Larry A. Hammond. “And we’re pretty sure your mother framed him.”

That would seem a lot to digest, but Mr. Kempfert, 42, said he felt no hesitation. “My reaction was that it didn’t surprise me,” he said. “She’s my mother, and I love her. But I think she’s capable of anything.”

Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed.

But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.

The case against Mr. Macumber began in 1974 as his marriage was disintegrating. His wife, Carol, who worked in the local sheriff’s office, went to her superiors with a surprising story. Her husband, she said, had recently confessed to the unsolved murders of a young couple shot to death a dozen years before, in 1962, in the open desert north of Scottsdale, Ariz.

Largely on the strength of his former wife’s testimony, Mr. Macumber was convicted and sentenced to life without the possibility of parole.

But the jury did not hear a significant piece of evidence.

In 1967, five years after the murders in the desert, a drifter named Ernesto Valenzuela was charged with a similar double homicide. He told his lawyer that he had also killed the couple in the desert.

“He was just making a point about bragging about the people he killed,” the lawyer, Thomas W. O’Toole, said. “He was a cold-blooded killer who relished committing the murders.”

Mr. O’Toole, who went on to serve 24 years as a state judge, said his client was dead serious about claiming responsibility for the 1962 murders. “There is no doubt in my mind that Ernesto Valenzuela committed those crimes,” Mr. O’Toole said.

For years, Mr. O’Toole kept his client’s secret, as he was required to do by the canons of legal ethics. But after Mr. Valenzuela was himself murdered in prison in 1973, and with the permission of Mr. Valenzuela’s mother, Mr. O’Toole offered to testify at Mr. Macumber’s trial.

The judge refused to let the jury hear from Mr. O’Toole, saying his account was unreliable hearsay. The judge also excluded testimony from a second lawyer and a psychiatrist who had heard similar confessions from Mr. Valenzuela.

The jury did hear about two kinds of physical evidence — a partial palm print and bullet casings — that prosecutors said connected Mr. Macumber to the killings.

Mr. Kempfert said he believed his mother, who worked in the sheriff’s office, had done more than lie.

“I can fully see how my mother could have set him up and framed him,” Mr. Kempfert said. “She had access to the evidence. She was doing fingerprint courses at the time.”

Last year, the five members of the Arizona Board of Executive Clemency unanimously recommended to Ms. Brewer that Mr. Macumber be released after 35 years in prison “to correct a miscarriage of justice.”

But Ms. Brewer rejected the board’s recommendation without explanation in November. It is possible that politics played a role in her decision; Ms. Brewer, a Republican who became governor last year, is running for a full term in November.

“She denied the application right after she announced that she was running for governor,” said Katherine Puzauskas, a lawyer with the Arizona Justice Project at the Sandra Day O’Connor College of Law at Arizona State University. The project, which was founded by Mr. Hammond and works to overturn wrongful convictions, has represented Mr. Macumber since 2000.

There is little political upside to granting clemency, but there is a substantial risk, as Mike Huckabee learned when a man whose sentence he commuted as governor of Arkansas in 2000 killed four police officers last year.

P. S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., has been fuming about Ms. Brewer’s handling of the Macumber case. “I have been following state clemency for 30 years, and this is easily, easily the most disturbing,” he said. “It’s borderline despicable.”

“Common-sense notions of justice should compel a governor to provide an explanation for imprisoning a man deemed innocent by an official board created to make such judgments,” he added. “You don’t imprison a man for no reason.”

A spokesman for the governor said Ms. Brewer had reviewed the case thoroughly, but he provided only boilerplate concerning her reasoning.

“Every executive clemency case is carefully scrutinized as the governor balances the very real and important concepts of public safety, justice and mercy,” the spokesman, Paul Senseman, said in an e-mail message.

Mr. Macumber is 74 and in failing health, with heart problems and arthritis, and the threat he poses to public safety is not obvious.

But Mr. Macumber’s former wife, now known as Carol Kempfert, said he was a dangerous sociopath who deserved to die in prison. She denied making up his confession and tampering with the evidence used to convict him.

It is her former husband, she said, who is a pathological liar. “I was in law enforcement for almost 20 years, and no one came close to being able to manipulate like Bill,” she said. “This man could sell water to a drowning person.”

Mr. Macumber, she said, would have said anything to save their marriage.

For instance, she said, he once falsely claimed to have a heart condition. “He intimates that if I hang around long enough, he’ll die and I’ll get the insurance money,” she said. “Well, I hung around and he didn’t die.”

Then he threatened to kill himself. “If you’re going to do it, go outside” she recalled telling her husband. “I don’t want blood on the walls.”

In the course of a half-hour conversation, Ms. Kempfert accused Mr. Macumber of terrible and disturbing crimes beyond the killings in the desert. Asked if he deserved clemency, she said, “absolutely not.”

“Actually,” she added, “I think he’s lucky. If he had been caught sooner, he would have gotten the death penalty.”

Ms. Kempfert and her son no longer speak. Ronald Kempfert, who took his stepfather’s last name when he was a child, is in the process of changing it back to Macumber.

    Governor Rebuffs Clemency Board in Murder Case, G, 14.6.2010, http://www.nytimes.com/2010/06/15/us/15bar.html

Teenager Gets 25-Year Sentence in Hate Crime Killing on Long Island

May 26, 2010
The New York Times
By ANDY NEWMAN and MANNY FERNANDEZ

A white teenager who fatally stabbed an Ecuadorean immigrant on Long Island in 2008 was sentenced on Wednesday to 25 years in prison, the maximum sentence.

The teenager, Jeffrey Conroy, had been convicted last month of manslaughter as a hate crime for the death of Marcelo Lucero, 37, who was attacked in a parking lot of the Patchogue train station.

Just before his sentencing by Justice Robert W. Doyle of State Supreme Court in Riverhead, Mr. Conroy, 19, apologized. “I’m really sorry for what happened to Mr. Lucero,” he told the judge. “Every day I wish it never happened.”

Mr. Lucero’s sister Isabel told Mr. Conroy she wished he had been present the day she and her mother learned of Mr. Lucero’s death.

“My mother and I, we hugged, we cried, because we felt at that moment that something had been ripped out of our lives,” said Ms. Lucero, who lives in Ecuador but attended the sentencing. She spoke in Spanish, her words translated through an interpreter.

Justice Doyle told Mr. Conroy that he was guilty of “senseless and brutal crimes.” Mr. Conroy was acquitted of second-degree murder as a hate crime, which could have brought him a life sentence.

Mr. Conroy’s father, Robert Conroy, unleashed a profanity-laced tirade at the judge and burst out of the room. “This is mercy, for crying out loud?” Mr. Conroy shouted.

    Teenager Gets 25-Year Sentence in Hate Crime Killing on Long Island, NYT, 26.5.2010, http://www.nytimes.com/2010/05/27/nyregion/27patchogue.html

Online Talk, Suicides and a Thorny Court Case

May 13, 2010
The New York Times
By MONICA DAVEY

The seemingly empathetic nurse struck up conversations over the Internet with people who were pondering suicide. She told them what methods worked best. She told some that it was all right to let go, that they would be better in heaven, and entered into suicide pacts with others.

But the police say the nurse, who sometimes called herself Cami and described herself as a young woman, was actually William F. Melchert-Dinkel, a 47-year-old husband and father from Faribault, Minn., who now stands charged with two counts of aiding suicide.

Mr. Melchert-Dinkel, whose lawyer declined an interview request on his behalf, told investigators that his interest in “death and suicide could be considered an obsession,” court documents say, and that he sought the “thrill of the chase.” While the charges stem from two deaths — one in Britain in 2005 and one in Canada in 2008 — Mr. Melchert-Dinkel, who was indeed a licensed practical nurse, told investigators that he had most likely encouraged dozens of people to kill themselves, court documents said. He said he could not be sure how many had succeeded.

The case, chilling and ghoulish, raises thorny issues in the Internet age, both legal and otherwise. For instance, many states have laws barring assisting suicide, but rarely have cases involved people not in the same room (much less the same country) or the sharing of only words (not guns or pills).

The case also brings up questions about the limits of speech on the Internet: How does one assign levels of culpability to someone who shares thoughts with people who say they are already considering suicide? And for some who counsel against suicide, it points to a growing area for worry, an online world where the most isolated and vulnerable might be touched in a way that they would not have in the past.

Groups that work to prevent suicide compare suicide chat rooms to “pro-ana” sites, Internet sites that portray anorexia as a lifestyle as opposed to a disease. Anti-suicide advocates say that there has been more than one instance recently where a person killed himself on a Webcam as others watched. Papyrus, a charity in Britain that works to stop young people from killing themselves, says it has tracked 39 cases in that country alone where young people committed suicide after visits to “pro-suicide” chat rooms.

It was the untrained, unpaid Internet sleuthing by Celia Blay, a 65-year-old from a tiny community in Britain, that helped lead to charges in April against Mr. Melchert-Dinkel. “He was practically invisible,” she said. “I tried to talk to any police I could, and most of them would have nothing to do with it. The first one I talked to told me, ‘If it bothers you, look the other way.’ And that really bothered me, because by then I was pretty sure people had died.”

About four years ago, Ms. Blay, who describes herself as a “computer illiterate,” became friends online with a young, depressed woman who had entered into a suicide pact. Ms. Blay persuaded her not to proceed, but the incident sent Ms. Blay searching for the other member of the pact. It was someone who called herself Li Dao, another screen name that the police later said Mr. Melchert-Dinkel used.

Making inquiries on a Web site aimed at people talking about suicide, Ms. Blay said she found at least half a dozen people who had similar pacts with Li Dao, a name that popped up on all sorts of suicide Web sites. She and a friend uncovered Mr. Melchert-Dinkel’s name and e-mail address after setting up a sting in which her friend posed as someone preparing for suicide and was, she said, approached by Mr. Melchert-Dinkel.

By then, the police in Minnesota say, Mr. Melchert-Dinkel had already aided the suicide of Mark Drybrough, 32, of Coventry, England. A coroner’s report found that Mr. Drybrough, who was suffering from a psychiatric illness, hanged himself from a ladder in his home in July 2005. His computer showed that he had posted a question in a suicide chat room about how to hang oneself without access to something high to tie a rope to, and that Li Dao — Mr. Melchert-Dinkel, the police say — had offered details on how to use a door.

In March 2008, Nadia Kajouji, 18, disappeared from her college in Ottawa. The Canadian authorities investigating her disappearance searched her laptop and discovered that she had been talking online with a person who used the screen name Cami. In e-mail messages, the authorities say, the pair agreed to a pact in which Ms. Kajouji would jump from a bridge into a river (to avoid, at Cami’s suggestion, the police say, creating a mess) and Cami would hang herself a day later. In April 2008, Ms. Kajouji’s body was found in the Rideau River.

Around the same time, Ms. Blay contacted the St. Paul Police Department through an acquaintance in Minnesota. By then, she said, she had grown frustrated with what she described as the authorities’ unwillingness to study the huge file she had amassed with the stories of 20 to 30 people who had been approached online. Over time, she said, she had tried to tell the story to a police department near her home, a member of parliament and even law enforcement in the United States.

Since at least the 1970s, many states have barred assisted suicide, though criminal charges are rarely filed. Physician-assisted suicide is allowed under certain conditions in Oregon and Washington.

In Minnesota, 12 charges of aiding suicide have been brought since 1994, when the state began keeping track, and about half of those have resulted in convictions. That state’s law, a felony, applies to “whoever intentionally advises, encourages or assists” another in taking his or her own life; convictions carry sentences of up to 15 years in prison.

Barbara Coombs Lee, the president of Compassion and Choices, who has advocated for laws like the one in Oregon, said she found it “perfectly appropriate” that Mr. Melchert-Dinkel faces such charges. “This is so egregious, so clearly wrong, that I’ll be very disappointed if assisted-suicide statutes do not reach this,” she said. “There is a bright line between aid in dying and assisting in suicide like this.”

Still, legal experts suggested that there may be room for challenges. The Minnesota law itself, some suggested, could be seen as too ambiguous or too broad to include protected speech that falls short of actually leading someone to suicide. The deaths occurred in other jurisdictions, posing potential issues, other lawyers said.

Terry A. Watkins, a lawyer for Mr. Melchert-Dinkel, said it was premature to describe what defense he intends to present but made it clear that he had questions about the law itself, as well as the dissection of causes that lead to any suicide. “As a society, we need to be careful when we start putting together laws that prohibit things like ‘encouragement’ without a really clear definition of what in God’s name you’re talking about,” he said.

Mr. Melchert-Dinkel, who is scheduled to be arraigned on May 25 in Rice County District Court, has had his nursing license revoked. He had held it since 1991, despite a record that included repeated discipline for complaints of leaving a nursing home patient unattended, being too rough, sleeping on duty, failing to take vital signs and failing to track a patient’s medications.

But Mr. Watkins said his client was basically a good person. “This is not a monster,” he said.

Shortly after the police interviewed Mr. Melchert-Dinkel last year, he checked into a local emergency room, state records show, saying that he was dealing with an addiction to suicide Internet sites and feeling guilty over advice he had given to people to end their lives.

    Online Talk, Suicides and a Thorny Court Case, NYT, 13.5.2010, http://www.nytimes.com/2010/05/14/us/14suicide.html

Man Who Killed 2 in Mich. Town Gets Life Sentence

April 22, 2010
The New York Times
By THE ASSOCIATED PRESS
Filed at 11:16 a.m. ET

CORUNNA, Mich. (AP) -- A trucker has been sentenced to life in prison for the fatal shootings of an abortion protester and a businessman in a small Michigan community.

Harlan Drake apologized before being sentenced Thursday in Shiawasee County Circuit Court, about 20 miles west of Flint. The life term was automatic under Michigan law.

A daughter and granddaughter of anti-abortion activist James Pouillon (POOL'-yuhn) spoke about their loss. The judge also heard from a brother of the second victim, Mike Fuoss (FOOSE).

    Man Who Killed 2 in Mich. Town Gets Life Sentence, NYT, 22.4.2010, http://www.nytimes.com/aponline/2010/04/22/us/AP-US-Activist-Killed-Mich.html

Guilty Verdict in Long Island Race Killing

April 19, 2010
The New York Times
By MANNY FERNANDEZ

RIVERHEAD, N.Y. — The Long Island teenager accused of stabbing and killing an Ecuadorean immigrant in a racially motivated attack was convicted on Monday of manslaughter as a hate crime, a less serious crime than the initial murder charge — saving him from spending the rest of his life behind bars.

Seventeen months after the stabbing in 2008 and 24 miles from the parking lot in Patchogue where the victim left a 370-foot trail of blood, the jury forewoman rose in State Supreme Court here to read the verdict, ending four days of deliberations. The teenager, Jeffrey Conroy, was found guilty of first-degree manslaughter as a hate crime and gang assault in connection with the death of the immigrant, Marcelo Lucero, and guilty of attempted assaults on three other Hispanic men. He was acquitted of the most serious of the 20 charges against him, second-degree murder as a hate crime.

On the manslaughter charge alone, Mr. Conroy, 19, faces a minimum of eight years and a maximum of 25 years when he is sentenced on May 26. As the verdict was read, the courtroom was virtually silent. When Mr. Conroy sat down, he bowed his head for a few moments.

Mr. Lucero’s death had become a symbol of the anti-Hispanic harassment and assaults that Latinos on eastern Long Island said they had been victims of for years, and it helped spark an ongoing federal investigation into the Suffolk County Police Department’s handling of reports of racially motivated attacks against Hispanics. The Lucero family and their supporters, including a representative of the Ecuadorean government’s National Department of the Migrants, had expressed confidence in recent days that the prosecution had indeed proven that Mr. Conroy was guilty of murder.

The verdict came 11 days after Mr. Conroy took the stand to proclaim his innocence and blame the stabbing on another teenager, the most dramatic and puzzling moment in a trial that began nearly seven weeks ago with jury selection on March 2. Mr. Conroy said that moments after the stabbing, the other teenager, Christopher Overton, told him that he was the one who stabbed Mr. Lucero and had asked him to take the knife.

At the time, Mr. Overton was out on bail awaiting sentencing on a felony conviction for a 2007 home-invasion burglary in which the homeowner was shot and killed. Mr. Conroy said Mr. Overton told him, “I’ll be screwed if I get caught.”

Mr. Conroy testified that his five-page written confession to the police, in which he admitted stabbing Mr. Lucero as part of an attack he carried out with six friends, was a lie. He said in court that he lied to protect Mr. Overton, whom he had met for the first time earlier that evening, and because he did not realize at the time he was being questioned by the police that Mr. Lucero had died.

The 12-member jury was made up of seven men and five women. One was black, one was Hispanic and the rest were white.

The jury’s manslaughter verdict meant that they had agreed with one of the arguments made by Mr. Conroy’s lawyer – that his client did not intend to kill Mr. Lucero – and discounted the prosecution’s allegation that Mr. Conroy stabbed him in the chest seeking not to injure but to kill. To convict Mr. Conroy of second-degree murder, the jury had to have found that he intended to kill Mr. Lucero, and to convict on first-degree manslaughter, they needed to find that Mr. Conroy caused Mr. Lucero’s death while intending to cause only serious physical injury, not death.

Mr. Lucero was stabbed once in the chest, and the knife did not penetrate the chest cavity, did not strike any major organs and ran parallel to the skin, cutting his right axillary artery and an adjacent large vein.

In his closing argument, Mr. Conroy’s lawyer, William Keahon, told the jury that if Mr. Conroy had intended to kill Mr. Lucero, then there should have been multiple stab wounds, and Mr. Lucero would not have been allowed to walk away as the altercation ended, as he did, though the lead detective in the case described it earlier in the trial not as walking but as staggering away. In her summation, the Suffolk County assistant district attorney prosecuting the case, Megan O’Donnell, said that Mr. Conroy’s intent to kill was evident, because the entire blade went into Mr. Lucero’s chest area and was stopped only by the handle, and because the knife went in, came partially out and went back in, in two separate thrusts.

Prosecutors said Mr. Lucero, a 37-year-old worker at a dry cleaning shop from Gualaceo, Ecuador, was surrounded and attacked by Mr. Conroy and six other teenagers in a parking lot of the Long Island Rail Road train station in Patchogue shortly before midnight on Nov. 8, 2008. Mr. Lucero and his friend were walking to another friend’s house. Mr. Conroy and his six friends were out walking, too, on the hunt, prosecutors said, for Hispanic men to beat up, a frequent activity that they referred to as “Mexican hopping” and “beaner hopping.”

Mr. Lucero took off his belt and began swinging it after one of the seven teenagers punched him in the face. Mr. Conroy said in his written statement to the police that the belt struck him on the head, and, as Ms. O’Donnell said, Mr. Conroy lunged at Mr. Lucero with a knife because he was angry and because Mr. Lucero had the audacity to fight back. Mr. Lucero died of a stab wound to the chest about an hour later.

    Guilty Verdict in Long Island Race Killing, NYT, 19.4.2010, http://www.nytimes.com/2010/04/20/nyregion/20patchogue.html

A Muslim Son, a Murder Trial and Many Questions

February 17, 2010
The New York Times
By JAMES DAO

MEMPHIS — When Monica Bledsoe spoke to her younger brother late last May, he seemed his old upbeat self. He had just led his first sightseeing tour of Little Rock, Ark., for their father’s new tour bus company and all went well. The tips had flowed.

A week later, her brother, Abdulhakim Mujahid Muhammad, opened fire with a semiautomatic rifle on a military recruiting center in Little Rock, killing one soldier and wounding another.

Ms. Bledsoe was stunned. “I would never have thought this could happen,” she said.

Eight months after the shooting, Mr. Muhammad’s family is still sorting through the confusing pieces of his shattered life. A gentle, happy-go-lucky teenager, he had become a deeply observant Muslim in college, shunning gatherings where alcohol was served. He traveled to Yemen to study Arabic, married a Yemeni woman, was imprisoned and then deported for overstaying his visa. After returning to Memphis last year, he stewed with anger about the wars in Iraq and Afghanistan.

Recently, Mr. Muhammad, 24, thrust himself back into the news by claiming in a note to an Arkansas judge that he was a member of Al Qaeda in the Arabian Peninsula, a terrorist group based in Yemen. He asked that he be allowed to plead guilty to capital murder, a request that will probably be denied.

The note has renewed questions about his case, which had been nearly forgotten in the wake of subsequent attacks, most notably the shooting rampage in November at Fort Hood, Tex., and the attempted bombing of an airplane on Christmas Day. Like both of those cases, Mr. Muhammad’s involved a Yemeni connection and the failure by the authorities to anticipate an attack, despite having clues.

In Mr. Muhammad’s case, the same F.B.I. agent interviewed him twice before the shootings: once while he was in prison in Yemen and then again in Nashville soon after he returned. But the Federal Bureau of Investigation did not place Mr. Muhammad under surveillance, law enforcement officials have said, apparently believing that he did not pose a threat.

In January, Senator Frank R. Lautenberg, Democrat of New Jersey, sent a letter to Attorney General Eric H. Holder Jr. requesting information about the F.B.I.’s interviews with Mr. Muhammad before the shootings, raising questions about why someone possibly suspected of extremist ties was allowed to buy a firearm.

But no one is more vocal about shining light on Mr. Muhammad’s radicalization than his father, Melvin Bledsoe. Though he has hired a lawyer for his son, visits him in his cell in Little Rock on weekends and contributes to his defense, Mr. Bledsoe, 54, says he has no illusions about his son’s guilt.

“My heart bleeds for the families of the victims,” he said.

What he wants, Mr. Bledsoe says, is to understand how “evildoers” brainwashed his son, as he puts it. And he wants the F.B.I. held accountable for what he considers its negligence in preventing the attack.

“They didn’t pull the trigger, but they allowed this to happen,” Mr. Bledsoe said. “It is owed to the American people to know what happened. If it can happen to my son, it can happen to anyone’s son.”

The F.B.I. said it could not discuss Mr. Muhammad on orders from the judge.

It also appears that Mr. Muhammad’s trial, set for June, will answer few questions about his radicalization. Prosecutors say that they consider it a straightforward murder case and that they intend to try it without delving into Mr. Muhammad’s religious conversion, political beliefs or possible ties to terrorists.

“If you strip away what he says, self-serving or not, it’s just an awful killing,” said Larry Jegley, the lead prosecutor for Pulaski County, which includes Little Rock. “It’s like a lot of other killings we have.”

Pvt. William A. Long of Conway, Ark., was killed in the shooting, and Pvt. Quinton Ezeagwula of Jacksonville, Ark., was wounded.

Despite Mr. Muhammad’s claim to be a Qaeda soldier, Mr. Jegley said “it looks to me like he was acting alone,” a view supported by some law enforcement experts. Those experts, and Mr. Bledsoe, also say there is no evidence that Mr. Muhammad was ever in contact with Anwar al-Awlaki, a radical Yemeni-American cleric who exchanged e-mail messages with the accused Fort Hood gunman, Maj. Nidal Malik Hasan.

Why Mr. Muhammad might fabricate links to Al Qaeda is a subject of debate. Mr. Bledsoe suggests that his son may be trying to fulfill a sense of martyrdom; some experts say it may be a form of self-aggrandizement.

But whether Mr. Muhammad is a lone-wolf jihadist or a Qaeda soldier, his case underscores the immense challenges of identifying homegrown extremists, experts say.

Mr. Muhammad was born Carlos Bledsoe in 1985. Raised a Baptist, he was by all accounts a sunny child who loved playing basketball and telling jokes. After graduating from high school in 2003, he went to Tennessee State University in Nashville to study business, saying he wanted to take over his father’s company someday.

In his freshman year, he was arrested for possessing an illegal weapon. Though the charge was later expunged, the incident caused him to explore religion more deeply, his father said. He considered Judaism, attended a speech by Louis Farrakhan, the Nation of Islam leader, and then, to his parents’ dismay, decided to become a Sunni Muslim.

He dropped out of college at the end of his sophomore year and began working odd jobs in Nashville hotels and restaurants. He was also becoming more religiously devout, spending time in Nashville’s Somali community, praying regularly at the Islamic Center of Nashville, wearing Arab-style clothing, forswearing alcohol and changing his name.

In 2007, wanting to learn Arabic and visit Mecca, he decided to move to Yemen and signed a contract to teach English for $300 a month in the southern port city of Aden, records show.

Before he left, he told his sister that he hoped to marry in Yemen and move to Saudi Arabia. When she expressed concerns about Islamic terrorists, she recalled, “He looked me in the eye, held my hand, and said, ‘I’m not one of those Muslims.’ ”

Details of his life in Yemen remain sketchy. In addition to teaching, he took Arabic at The City Institute in the capital city, Sana, the Yemeni government has said. And a year after arriving, he married one of his students, Reena Abdullah Ahmed Farag, in Aden, according to a copy of the marriage license.

On about Nov. 14, 2008, just two months after his wedding, he was arrested in Sana for overstaying his visa. What might have been a simple immigration case turned complicated when the police found fake Somali identification papers on him.

Somalia is considered a training ground for Islamic extremists by American counterterrorism officials. The Yemeni government threatened to put Mr. Muhammad on trial.

Mr. Bledsoe says that although the F.B.I. interviewed Mr. Muhammad soon after his arrest, he did not learn of his son’s detention until two weeks later, when Mr. Muhammad’s wife contacted him. Under prodding from the American Embassy in Sana, the Yemeni government deported Mr. Muhammad on Jan. 29, 2009.

Mr. Muhammad told his father that while in prison he met Islamic radicals who told him that the American government had forsaken him. “We are your real brothers,” they said, according to Mr. Bledsoe.

Back home, Mr. Muhammad often seemed uneasy, his sister said, fuming sullenly when he saw news reports about the wars in Iraq and Afghanistan.

Mr. Bledsoe decided to open an office in Little Rock to give his son a job so that he could bring his wife to the United States. By April, Mr. Muhammad was living in a spare apartment less than three miles from the recruiting center.

These days, Ms. Bledsoe said, her brother can seemed relaxed one moment, but strident the next.

“He gives a history of what the meaning of paradise is,” she said. “That’s where he wants to go. He wants to go to paradise.”

    A Muslim Son, a Murder Trial and Many Questions, NYT, 17.2.2010, http://www.nytimes.com/2010/02/17/us/17convert.html

Jackson’s Doctor Pleads Not Guilty

February 9, 2010
The New York Times
By RANDAL C. ARCHIBOLD

LOS ANGELES — Nearly eight months after Michael Jackson died, his personal physician was charged Monday with involuntary manslaughter for providing him with a powerful anesthetic that was ruled a primary factor in his death.

At his arraignment at a Los Angeles County courthouse, witnessed by several Jackson family members and a crush of news media from around the world, the doctor, Conrad Murray, pleaded not guilty through his lawyer, Ed Chernoff. The filing of the charges capped an investigation that revealed Mr. Jackson’s heavy reliance on narcotics and propofol, an anesthetic normally used in surgery but administered to Mr. Jackson, 50, as a sleep aid.

Mr. Jackson’s use of the drug brought attention to so-called Hollywood health care, in which the rich and famous manage to persuade doctors to treat their maladies, real or perceived, with specific prescription medicines.

Dr. Murray, a cardiologist with offices in Houston and Las Vegas, acknowledged giving Mr. Jackson the drug shortly before he was found unconscious on June 25 in a rented mansion here, according to police affidavits. The coroner determined that Mr. Jackson had died from “acute propofol intoxication,” and an autopsy report released Monday said the level of propofol he received had been similar to that used in major surgery. He had also been given other sedatives.

“The standard of care for administering propofol was not met,” the report said.

Dr. Murray, 56, who arrived in Los Angeles last week trailed by paparazzi, has maintained through his lawyer that nothing he gave Mr. Jackson should have caused his death. If convicted, he faces a possible maximum four-year state prison term.

In a 20-minute hearing, Judge Keith L. Schwartz of Los Angeles Superior Court said he planned to treat the case like any other, despite the presence of several members of one of the most famous families in the world and more than two dozen satellite and television trucks in the parking lot downstairs. Such was the frenzy that at one low point the news media swarm nearly engulfed Mr. Jackson’s mother, Katherine, as she left the courthouse, appearing to say “Oh, my!”

Inside the courtroom, Judge Schwartz rejected prosecutors’ request for $300,000 bail, saying it was far above the standard $25,000. But he agreed to $75,000 bail, in part because Dr. Murray does not live in the state. Dr. Murray posted the bail and, his lawyer said, planned to return to Houston.

The judge also granted the prosecutors’ request that he confiscate the defendant’s passport — Dr. Murray’s mother lives in Grenada, and one of his children in Trinidad — so he cannot leave the country.

Judge Schwartz paid little heed to prosecutors’ claims that Dr. Murray’s financial and civil legal entanglements — he has been sued several times for failing to pay child support and has missed court hearings in those matters — made him less inclined to show up for his criminal case.

The judge did forbid him to administer anesthetics. “I don’t want you sedating people,” he said.

The California Attorney General’s Office served notice at the hearing that the state’s medical board would seek to revoke Dr. Murray’s license. Mr. Jackson’s autopsy report said the use of the anesthetic did not meet professional guidelines.

After the proceedings, Mr. Jackson’s father, Joseph, who attended along with other members of the Jackson family, was asked his reaction to the charge. “We need justice,” he said..

The charge came after a week of negotiations between Dr. Murray’s lawyers and prosecutors bogged down over whether Dr. Murray should be handcuffed and arrested, as opposed to surrendering in a more low-key way.

In the end, he walked in wearing a light gray suit and red tie, without handcuffs. He said little besides the occasional “Yes” to the judge’s routine questions, as Mr. Jackson’s parents and siblings Jermaine, La Toya, Randy and others looked on.

It is another high-stakes case for the District Attorney’s office here, which has had mixed results in celebrity trials (the acquittals of O. J. Simpson and the actor Robert Blake and the conviction — after an initial mistrial — of the music producer Phil Spector.)

The investigation has offered a tantalizing behind-the-scenes glimpse of Mr. Jackson, who zealously guarded his privacy. He was on the verge of a comeback tour at the time of his death.

The charge against the doctor came during a resurgence of Mr. Jackson’s popularity, which had waned in recent years after accusations that he molested young boys during their overnight visits to his Neverland Ranch near Santa Barbara.

He was acquitted of child molesting charges in 2005, but, along with intrigue over his ever-changing appearance and bizarre behavior, the charges left a stain on his reputation, and he never recovered the adulation he enjoyed at the pinnacle of his career with the 1982 album “Thriller.”

Still, Mr. Jackson seemed to find new and renewed fans after his death. He was the best-selling artist of 2009, and a film, “Michael Jackson’s This Is It,” made from recordings of rehearsals for his final concert tour planned for London and other material, has grossed nearly $260 million worldwide. His children Prince Michael, 12, and Paris, 11, received a sustained standing ovation when they appeared at the Grammy Awards last week in Los Angeles to accept a lifetime achievement award on their father’s behalf.

Dr. Murray, according to police affidavits, was administering propofol to Mr. Jackson, which the singer called his “milk,” to help him sleep on the morning of June 25. Dr. Murray left the room for approximately two minutes to use the bathroom, he said, and found that Mr. Jackson had stopped breathing when he returned. The police have said in court papers that it appears Dr. Murray was on his cellphone for 45 minutes before an ambulance was called.

Dr. Murray began working as Mr. Jackson’s personal physician in May, after meeting him through an acquaintance in Las Vegas. His representatives said he was promised $150,000 a month and had planned to accompany Mr. Jackson on his comeback tour.

 

Rebecca Cathcart contributed reporting.

    Jackson’s Doctor Pleads Not Guilty, NYT, 9.2.2010, http://www.nytimes.com/2010/02/09/us/09jackson.html

Op-Ed Columnist

Kids in Crisis (Behind Bars)

January 28, 2010
The New York Times
By NICHOLAS D. KRISTOF

We all have blind spots, and I think one of mine — shared by many other Americans, perhaps including you — has to do with prisons.

Over the years, I’ve written many columns about Guantánamo Bay, Abu Ghraib and torture, not to mention the abuses that go on in Chinese and North Korean prisons. But I’ve never written about the horrors that unfold in American prisons — especially juvenile correctional facilities — on a far larger scale than at Guantánamo.

Consider Rodney Hulin Jr., who was a 16-year-old when he was convicted of arson. A first-time offender and a slight figure at 5 feet 2 inches tall and some 125 pounds, he was sent to a men’s prison. There, he was the smallest person around. Within a week, he was raped, according to an account by Human Rights Watch, an advocacy group. The prison doctor ordered an H.I.V. test, since up to one-third of the inmates were H.I.V.-positive.

Rodney asked to be placed in protective custody, but he was denied. His father, Rodney Hulin Sr., picks up the story: “For the next several months, my son was repeatedly beaten by the older inmates, forced to perform oral sex, robbed, and beaten again. ... He could no longer stand to live in continual terror.”

Rodney Jr. hanged himself.

Maybe Rodney would have been safer in a juvenile correctional facility, but then again maybe not. A stunning new Justice Department special report, released just this month, underscores how widespread rape is in youth correctional facilities. It found that almost one youth in eight reported being sexually assaulted while behind bars in the last year.

That means that a child in custody is about twice as likely to be raped as an adult behind bars, based on similar surveys of adult prisoners. As The New York Review of Books wrote on its blog, we face a “crisis of juvenile prison rape.”

The National Prison Rape Elimination Commission, a blue-ribbon panel that issued its final report last year, described how a 14-year-old boy weighing 98 pounds was assaulted after he was made to share a cell with two older teenagers. Both were 6 feet 2 inches, and one weighed 160 pounds and the other 195 pounds.

Surprisingly, the new survey suggests that the biggest predators are not other inmates but prison staff — and female staff members offend as much as the males do. More than 10 percent of boys in juvenile correctional facilities said that they had had sex with staff, most of whom were women.

Among girls, almost 5 percent said that they had engaged in sexual activity with staff, most of whom were men.

Reggie Walton, a federal judge in the District of Columbia who led the prison rape commission, said that the figures may even be an undercount because of the stigma of rape. “I was shocked at the level of abuse,” he said.

One lesson from the surveys is that we should rethink the way male guards are sometimes assigned to female inmates, and female guards to male inmates, without sufficient respect for inmates’ privacy or dignity. That won’t stop same-sex violence or inmate-on-inmate abuses, but it would address one important component of the abuse problem.

By some accounts, the majority of guards at women’s prisons are now men. Investigators at one juvenile correctional facility found that a male guard watched as girls showered, while a woman watched over boys showering.

Jamie Fellner of Human Rights Watch, also a member of the prison rape commission, described a Virginia prison where men were stripped naked and asked to spread their buttocks in front of a female officer. When a male inmate asked to be searched in front of a man instead, Ms. Fellner said he was Tasered.

In the last few years, a growing number of states have limited the ability of guards to strip-search members of the opposite sex or watch them showering. And a landmark law, the Prison Rape Elimination Act, created Judge Walton’s commission, which has made excellent recommendations to reduce violence and abuse behind bars. The Obama administration should quickly implement those recommendations.

Surveys have found that well-managed prisons and correctional facilities with strong accountability have almost no rape, by guards or inmates. Others have astonishingly high levels. If we want to rehabilitate young offenders and help them get their lives in order, a starting point is to end the criminal abuse of them.

The legacy of Rodney Hulin Jr. should be a concerted drive to end the way inmates are raped with impunity behind bars. The survey results indicating the ubiquity of sexual assault behind bars, often by guards, should be an awakening — and an end to this blind spot that so many of us have shown. We need to be as alert to human rights abuses in our youth correctional facilities as to those at Guantánamo.

•

I invite you to visit my blog, On the Ground. Please also join me on Facebook, watch my YouTube videos and follow me on Twitter.

    Kids in Crisis (Behind Bars), NYT, 28.1.2010, http://www.nytimes.com/2010/01/28/opinion/28kristof.html

NYC Trial Opens in Punk Pioneer's Slaying

January 25, 2010
Filed at 1:11 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

NEW YORK (AP) -- A personal assistant is on trial in the bloody killing of her boss, a New York real estate powerhouse with punk-rock roots.

Opening arguments began Monday in the Manhattan murder case against Natavia (na-TAY'-vee-uh) Lowery. Prosecutors say she stole more than $30,000 from Linda Stein and then clubbed her to death with a piece of exercise equipment to silence her.

Lowery denies killing Stein. Her lawyers say police browbeat her into confessing to the October 2007 killing by questioning her for hours.

The 28-year-old Lowery faces 25 years to life in prison if convicted.

Stein co-managed influential punk rockers the Ramones before turning to real estate. Her clients included Madonna, Sting and other entertainers.

    NYC Trial Opens in Punk Pioneer's Slaying, NYT, 25.1.2010, http://www.nytimes.com/aponline/2010/01/25/us/AP-US-Ex-Punk-Manager-Slaying.html

Prosecutors Build Case in Kan. Abortion Trial

January 25, 2010
Filed at 4:32 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

WICHITA, Kan. (AP) -- Prosecutors are expected to present evidence Monday that a Missouri man meticulously planned the murder of one of the nation's few late-term abortion providers by stalking the doctor and gunning him down inside a Kansas church.

Scott Roeder is on trial on charges of first-degree murder and aggravated assault for the May 31 death of Dr. George Tiller, who was shot while serving as an usher at his church. Roeder publicly admitted killing Tiller, saying he did so to save unborn children. He has pleaded not guilty.

Roeder, of Kansas City, Mo., said in a court filing that the trial would be a ''charade'' if he were not allowed to argue that the killing was necessary to save ''preborn babies'' from abortion. District Judge Warren Wilbert banned a so-called necessity defense, which would argue Roeder should be acquitted, and insisted the trial would not turn into a battle over abortion.

But the judge galvanized both sides of the debate when he refused to bar the defense from trying for a conviction on the lesser charge of voluntary manslaughter by arguing Roeder believed Tiller's killing would save unborn children.

Wilbert won't rule on whether to let jurors consider the lesser charge until after the defense rests its case.

The second day of testimony Monday is expected to draw more spectators from both sides of the abortion debate. The trial began with a jury selection that largely occurred behind closed doors.

Security in and around the courthouse has been heavy; a bomb-sniffing dog has been brought in, and spectators must show photo identification and are not allowed to bring coats or purses into the courtroom.

Prosecutors have appeared determined to keep any mention of abortion out of what they portray as a simple case of murder. That led last Friday to what was likely the first of many skirmishes over the use of what attorneys are calling, outside the jury's hearing, the ''a-word.'' The judge warned defense attorney Mark Rudy in cross-examining one witness that he should not use the word abortion unless the witness first used it himself.

Key to the government's murder case will be presenting evidence of premeditation. Prosecutors said Roeder meticulously planned the killing, stalked the doctor at his church in Wichita, and practiced firing his newly purchased gun at his brother's secluded home the day before the killing.

On Friday, the prosecution began presenting a murder case focused on emotional eyewitness testimony, recordings of frantic 911 calls and photos of Tiller's body lying in a pool of blood in his church foyer.

DNA evidence linking Tiller to Roeder, forensic analyses of bullet casings and video of Roeder at local hotels are expected to follow -- but no mention of abortion, at least for as long as they can avoid it.

Roeder's public defenders have yet to make their opening statements, but are expected to try to build a case for a conviction of voluntary manslaughter. The judge has warned them that would be difficult because the facts indicate Tiller posed no immediate danger while acting as an usher in church.

In Kansas, voluntary manslaughter is defined as ''an unreasonable but honest belief that circumstances existed that justified deadly force.'' Such a conviction for someone with little criminal history would bring a sentence closer to five years, compared to the life sentence Roeder faces if found guilty of first-degree murder.

------

Associated Press Writer Maria Sudekum Fisher contributed to this report.

    Prosecutors Build Case in Kan. Abortion Trial, NYT, 25.1.2010, http://www.nytimes.com/aponline/2010/01/25/us/AP-US-Abortion-Shooting-Trial.html

A Sentencing Request by Polanski Is Denied

January 23, 2010
The New York Times
By MICHAEL CIEPLY

LOS ANGELES — A state court judge here rejected the director Roman Polanski’s request to be sentenced while he remains under arrest in Switzerland, setting the stage for a renewed legal battle over his extradition to face sentencing on a 32-year-old sex charge.

At a hearing on Friday, the judge, Peter Espinoza of Los Angeles Superior Court, declined to reverse his earlier insistence that Mr. Polanski — who in 1978 fled before sentencing after pleading guilty to having sex with a minor — should return to the United States before being allowed any resolution of his case.

Judge Espinoza said he was not bound by a California Appeals Court suggestion last month that Mr. Polanski could be sentenced in absentia.

“I choose to insist” that Mr. Polanski appear, the judge said.

After the hearing, Bart Dalton, a lawyer for Mr. Polanski, said, “We will seek our remedies in the court of appeal.”

The hearing on Friday became unusually contentious, as lawyers for Mr. Polanski, the Los Angeles district attorney’s office and the victim in the case — Samantha Geimer, who was 13 at the time and has been arguing for Mr. Polanski’s release — traded barbs with each other and the judge.

“I’d rather not inflame this case,” Judge Espinoza said in rebuking David Walgren, a deputy district attorney, for one rhetorical flourish in which Mr. Walgren had referred to Mr. Polanski as “this fugitive,” “this criminal” and “this child rapist.”

Mr. Polanski, in fact, was never tried for rape, but pleaded guilty to a lesser charge under an agreement with prosecutors.

Chad S. Hummel, a lawyer for Mr. Polanski, accused Mr. Walgren of misleading Swiss authorities by leaving crucial information out of an extradition packet sent to them. Mr. Walgren, in turn, charged Mr. Hummel with having stalled justice by returning to the court repeatedly with arguments it had already rejected.

Lawrence Silver, who represents Ms. Geimer, admonished the judge that officers of the court were obligated by a new victims’ rights provision in the California Constitution to honor her request for an examination of official corruption in the case. The judge said he did not “believe anyone anticipated” the victims’ rights provision, called Marcy’s Law, would be used in support of a defendant like Mr. Polanski, and turned down the request.

Lawyers for Mr. Polanski have argued that the judge who originally handled the case, Laurence J. Rittenband, who has since died, never intended to jail him for more than 90 days. They contend that a sentence that short would not qualify Mr. Polanski, who has been held in Switzerland since September, for extradition to the United States under a treaty between the two countries.

Los Angeles prosecutors prevailed on Friday with their standing argument — that Mr. Polanski’s fugitive status deprived him of standing to challenge his treatment by the American courts. Mr. Polanski has argued in court that improprieties committed by Judge Rittenband and others deprived him of justice.

Action by the Swiss is anticipated within weeks, although Mr. Polanski’s lawyers have said in court that officials in Switzerland had been waiting for more clarity about Mr. Polanski’s possible sentence.

    A Sentencing Request by Polanski Is Denied, NYT, 23.1.2010, http://www.nytimes.com/2010/01/23/movies/23polanski.html