History > 2011 > USA > Justice > States (II)

Justice

and Prosecutorial Misconduct

December 28, 2011

The New York Times

Michael Morton was exonerated by DNA evidence this month after being wrongfully convicted of murdering his wife and serving nearly 25 years in prison in Texas. In seeking to prove Mr. Morton’s innocence, his lawyers found in recently unsealed court records evidence that the prosecutor in the original trial, Ken Anderson, had withheld critical evidence that may have helped Mr. Morton.

The judge reviewing the case allowed Mr. Morton’s lawyers, including those from the Innocence Project, which represents prisoners seeking exoneration through DNA evidence, to gather facts about the prosecutor’s conduct. The Innocence Project’s report makes a compelling case that Mr. Anderson, now a state judge, disobeyed “a direct order from the trial court to produce the exculpatory police reports from the lead investigator” in the case.

Mr. Morton’s lawyers have asked that the judge recommend a “court of inquiry” to investigate whether Mr. Anderson violated the law and should be charged in a criminal proceeding. While this process is an urgent matter for Mr. Morton, it is also a test of American justice — whether a prosecutor who flouts his duty under the Constitution to disclose crucial evidence to a defendant is subject to any meaningful sanction.

Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor “to oppose all of Mr. Morton’s postconviction motions for DNA testing.” If a court confirms these findings, it must hold Mr. Anderson accountable — or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.

There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.

Courts should more closely supervise prosecutors by using pretrial conferences where prosecutors must say what they are disclosing under the Brady rule and what they are withholding. Prosecutors must understand that they will be held accountable — with strong criminal sanctions — when they violate their constitutional duties.

    Justice and Prosecutorial Misconduct, NYT, 28.12.2011,
    http://www.nytimes.com/2011/12/29/opinion/justice-and-prosecutorial-misconduct.html

Injustice in Murder Cases

December 24, 2011
The New York Times

In most American counties, some indigent criminal defendants are represented by a public defender, and others by a private court-appointed lawyer. A new RAND study focusing on Philadelphia exposes a vast difference in how clients fare depending on the kind of lawyer they are assigned.

The startling findings show that merely providing an indigent defendant a lawyer, as the Constitution requires in felony cases, is not enough to secure justice. If that lawyer is not screened for quality, trained to handle the client’s type of case or paid enough to cover the time required, the client is unlikely to get fair treatment — whether in the Philadelphia system or anywhere else.

The study examined murder cases of indigent defendants with similar profiles in the city from 1994 to 2005. The conviction rate of clients represented by staff lawyers working for the public defender association, a nonprofit organization that the city pays for its services, was 19 percent lower than those represented by court-appointed lawyers working alone. Their expected time served in prison was 24 percent lower, and they were far less likely to get a life sentence.

Philadelphia’s public defenders, who are randomly assigned to represent one out of every five indigent defendants accused of murder, are paid decent salaries, have money to hire expert witnesses and work in experienced teams. Court-appointed lawyers, representing the rest, are poorly paid, tend to take on more cases than they can handle and generally practice without feedback from other lawyers. As a result, the study concludes, defendants with court-appointed lawyers often get inadequate counsel, in violation of the Constitution’s Sixth Amendment, and are vulnerable to greater punishment, in violation of the Eighth Amendment.

It is well-known that Pennsylvania — and Philadelphia in particular — provides inadequate counsel in cases for which the death penalty can be imposed. But clearly, the problem is broader. One solution would be to pay court-appointed lawyers more or to have public defenders represent all indigent murder defendants. Money may be hard to find, since Pennsylvania is the only state that provides no support to local government for indigent defense.

But as the RAND study pointed out, if the state helped to improve the quality of counsel, it would achieve fairer outcomes, and possibly reduce prison costs by over $200 million. The citizens of Pennsylvania would benefit, as well as the indigent defendants.

    Injustice in Murder Cases, NYT, 24.12.2011,
    http://www.nytimes.com/2011/12/25/opinion/sunday/injustice-in-murder-cases.html

Calif Teen to Be Sentenced for Killing Gay Student

December 19, 2011
The New York Times
By THE ASSOCIATED PRESS

VENTURA, Calif. (AP) — A Southern California teenager faces 21 years in state prison when he's sentenced for killing a gay student during a computer lab class three years ago.

Brandon McInerney is scheduled to receive his sentence in a Ventura courtroom Monday, after the 17-year-old agreed to plead guilty to second-degree murder as well as one count each of voluntary manslaughter and use of a firearm.

McInerney had just turned 14 when he shot and killed 15-year-old Larry King at E.O. Green Junior High School in Oxnard.

A mistrial was declared in September when jurors couldn't reach a unanimous decision on the degree of guilty. Several jurors said after McInerney's trial that shouldn't have been tried as an adult.

    Calif Teen to Be Sentenced for Killing Gay Student, NYT, 19.12.2011,
    http://www.nytimes.com/aponline/2011/12/19/us/AP-US-Gay-Student-Killed.html

Death Penalty for 2nd Man

in Connecticut Triple-Murder Case

December 9, 2011
The New York Times
By WILLIAM GLABERSON

One of Connecticut’s most agonizing courtroom dramas came to an end on Friday as a jury voted to impose the death penalty on the second of two killers of three family members after an ordeal of violence and sexual assault that challenged suburban ideals of safety.

Lawyers for the second convicted killer, Joshua Komisarjevsky, 31, had waged an aggressive fight to avoid a capital sentence since Oct. 13, when he was convicted of the crimes, which drew national attention in 2007. But the jury in New Haven unanimously voted for capital punishment on each of the six capital counts he faced.

Mr. Komisarjevsky’s trial in Superior Court followed the trial of his co-defendant, Steven J. Hayes, who was sentenced to death last year. The two men burst into the home of the Petits in Cheshire, Conn., beat and tied up the father, Dr. William A. Petit Jr., and wreaked havoc for hours before setting the house on fire with the family’s two girls tied to their beds.

The crime and the long court proceedings, attended by Dr. Petit, the lone survivor, brought legal reforms, played a central role in the failure of an effort to repeal the death penalty and seemed to rivet the state until, in recent months, a kind of mass fatigue with the depressing details of the crime and its punishment appeared to set in.

“I believe God’s will has been done,” Dr. Petit said to a crowd outside the courthouse just after the verdict. But, he added, “The pain is there forever.”

One juror, Timothy Anderson, said jurors were sobbing on Friday as they reached the verdict. Mr. Anderson said he was the last to decide to vote for death, “but when you look at the whole thing, it’s so horrific.”

The defense lawyers presented a series of misfortunes that they said Mr. Komisarjevsky had suffered in his life as they worked to change perceptions of him that had been forged by revulsion at the killing of Jennifer Hawke-Petit, and her daughters, Hayley, 17, and Michaela, 11.

Mr. Hayes was convicted of raping and strangling Ms. Hawke-Petit and killing the daughters, who died of smoke inhalation. At his separate trial, Mr. Komisarjevsky was convicted of the killings and a host of other crimes, including sexually assaulting the 11-year-old and making prurient photographs of her on his cellphone.

In weeks of testimony, the defense lawyers worked to cast Mr. Komisarjevsky as a damaged person worthy of life, though one that would certainly be lived behind prison bars.

The lawyers said that Mr. Komisarjevsky was sexually abused as a child, suffered mood disorders and head injuries, abused drugs and cut himself with glass, knives and razors, and that his evangelical Christian adoptive parents denied him proper care, relying instead on religion.

On Friday night, Mr. Komisarjevsky’s family issued a statement: “From the very beginning, we have spoken out about the horror of the crime and taken the position that whatever verdict the jury reached was the right verdict. With today’s jury decision, our view is the same. The crime was monstrous and beyond comprehension. There are no excuses.”

The killings dominated the state’s front pages and airwaves for so long that some in Connecticut said they had grown weary of Mr. Komisarjevsky’s trial..

Colin McEnroe, one of the state’s best-known columnists and commentators, wrote during the trial that he avoided articles about it because he felt he already knew what he needed to know about the case.

“It is not possible to have lived in this state since 2007 and not know the Petit case,” Mr. McEnroe said. “It enters our night dreams and day musings. There is no vaccine against it.”

 

Elizabeth Maker contributed reporting.

    Death Penalty for 2nd Man in Connecticut Triple-Murder Case, NYT, 9.12.2011,
    http://www.nytimes.com/2011/12/10/nyregion/joshua-komisarjevsky-gets-death-for-cheshire-killings.html

The Prosecution’s Case Against DNA

November 25, 2011
The New York Times
By ANDREW MARTIN

By the time Juan Rivera was taken to Lake County for questioning on Oct. 27, 1992, the search for Holly Staker’s killer had gone cold. Two and a half months had passed since the 11-year-old girl was raped and stabbed while baby-sitting for two little children, and with the killer still at large, neighborhood-watch groups had formed and wary parents kept their children indoors. The Lake County police had pursued nearly 600 leads and interviewed about 200 people but were not close to making an arrest when they hooked Rivera up to a polygraph machine and began questioning him about his whereabouts on the night of the murder.

A 19-year-old with a ninth-grade education and a history of psychological problems, Rivera was interviewed by the police a few weeks earlier and told them that he was at a party near the crime scene and that he noticed another partygoer there acting strange. This time around, he repeated the same story for two days before finally admitting it was a lie. Still, he denied murdering the girl.

What followed was 24 hours of near constant interrogation, and around 11:30 on the morning of Oct. 30, after banging his head on a cell wall, pulling out a clump of his hair and being handcuffed behind his back and placed in leg shackles, Rivera finally provided investigators with a detailed confession.

In his sworn statement, Rivera detailed how, on Aug. 17, the morning of the killing, he bought two joints and a half gram of cocaine, snorted the cocaine and smoked one of the joints and then headed across town, at which point he came upon Holly standing in front of a two-story apartment building on Hickory Street, just north of downtown Waukegan.

“Ain’t you Rebecca’s brother?” Holly asked him. His younger sister once introduced him to Holly, and he couldn’t believe this girl, a striking blonde with an identical twin sister, was only 11. She was baby-sitting a 5-year-old boy and a 2-year-old girl, and Rivera said she told him that she was lonely and invited him up to the second-floor apartment to keep her company.

“I played with a little boy and little girl, because I really like kids,” Rivera told police. When the 2-year-old got tired, he took her to the bedroom to rest, and the boy left the apartment to play. Soon, Rivera said, he was naked and trying to have sex with Holly, but he was unable to get an erection, and she began making fun of him. When the 2-year-old started crying and he went to the bedroom to comfort her, Holly followed him and grabbed his crotch and insulted him again. “Is that all you got?” she said.

“This is when I got really mad, and she kept making fun of how small I was and that I could not get hard,” he said. He ran to the kitchen, grabbed a knife from a dish rack and returned to the bedroom. Holly grabbed his wrists and tried to fight him off.

“If she would have stopped yelling and fighting me, I would have stopped cutting her, and she would not have gotten hurt anymore,” he said. Rivera described how he pushed her onto a bed and had intercourse with the bleeding girl, whom he stabbed 27 times. He did not remember if he ejaculated. When he was finished, he washed the knife and his hands in the kitchen sink and ran out the back door. On the way out, he grabbed a mop and bashed the door to make it look like a robbery, then wiped the mop with a towel to remove his fingerprints. Once outside, he broke the knife, tossed it in the backyard and ran home.

Rivera’s grisly, three-page confession became the key piece of evidence against him in his murder trial in 1993 — and again in two subsequent re­trials, the latest in 2009. Each time, Rivera was convicted, and he is now serving a life sentence at Stateville Correctional Center near Joliet, Ill. His lawyers are seeking an outright reversal or a fourth trial before the Illinois Appellate Court, arguing that there is no physical evidence and no witnesses linking Rivera to the crime; that his confession was coerced; and, perhaps most significant, that DNA testing in 2005 definitively ruled him out as the source of the semen found inside Holly Staker’s body. (At the time this article went to print, a decision from the appellate court was imminent.)

“This is a rape and murder of an 11-year-old child, and the semen found inside the girl excludes Juan Rivera,” Jeffrey Urdangen, one of Rivera’s lawyers, said. “According to the state’s perverse theory, the girl, the unfortunate victim, was having sex with another man who was not the murderer. It’s ludicrous.”

In the years before DNA evidence was introduced to the legal system, little was known about the extent of wrongful convictions and the situations in which they occurred. That changed in 1986, when an English scientist used DNA testing to help exonerate a man accused of raping and killing two teenage girls (the evidence also led the police to the real killer). Since then, DNA testing has helped exonerate 280 convicted felons in the United States and has exposed deep flaws in our legal system, including misconduct by the police and prosecutors and egregious mistakes made by witnesses and forensic scientists. In his 2011 book, “Convicting the Innocent,” Brandon Garrett, a law professor at the University of Virginia, examined most of the case files for the first 250 DNA exonerations. Garrett found that 76 percent of wrongly convicted prisoners were misidentified by a witness and half the cases involved flawed forensic evidence. The testimony of an informant, often a jailhouse cellmate of the accused, was pivotal in 21 percent of the cases. Perhaps most surprising, 16 percent — virtually all of whom were subjected to interrogations lasting several hours and, in many cases, days — confessed to crimes they didn’t commit. Garrett pointed out another, striking detail in the false confessions: in 38 of 40 false confessions, the authorities said defendants provided details that could be known only by the actual criminal or the investigators, thus corroborating their own admissions of guilt by revealing secret information about the crime that could only have been provided by them.

The issues raised by DNA exonerations have led to an overhaul of the criminal-justice system. Some states now require that evidence be preserved; others require mandatory videotaping of interrogations. Several states, including Illinois, New Jersey and New York, abolished the death penalty largely because of concerns about executing an innocent person. North Carolina, meanwhile, has created an independent commission to review innocence claims. And some prosecutors’ offices, including those in New York and Dallas, have created conviction-integrity units.

More often, though, the fate of an inmate with powerful new evidence of innocence still rests with local prosecutors, some of whom have spun creative theories to explain away the exculpatory findings. In Nassau County on Long Island, after DNA evidence showed that the sperm in a 16-year-old murder victim did not come from the man convicted of the crime, prosecutors argued that it must have come from a consensual lover, even though her mother and best friend insisted she was a virgin. (The unnamed-lover theory has been floated so often that defense lawyers have a derisive term for it: “the unindicted co-­ejaculator.”) In Florida, after DNA showed that the pubic hairs at the scene of a rape did not belong to the convicted rapist, prosecutors argued that the hairs found on the victim’s bed could have come from movers who brought furniture to the bedroom a week or so earlier.

“They essentially argued that there were naked movers,” said Nina Morrison, a senior staff lawyer at the Innocence Project, a New York-based group that seeks to exonerate wrongfully convicted inmates.

Why prosecutors sometimes fight post-conviction evidence so adamantly depends on each case. Some legitimately believe the new evidence is not exonerating. But legal scholars looking at the issue suggest that prosecutors’ concerns about their political future and a culture that values winning over justice also come into play. “They are attached to their convictions,” Garrett says, “and they don’t want to see their work called into question.”

Few offices have fought post-conviction evidence with as much gusto as the Lake County state’s attorney’s office, which is coming under increased scrutiny for what defense lawyers and law professors suspect is an alarming number of wrongful convictions. One murder case has unraveled, and several other rape and murder convictions are now being challenged. “They can never admit a mistake,” said Kathleen Zellner, a lawyer who is suing Lake County on behalf of a man named Jerry Hobbs, who spent five years in jail for killing his daughter and her friend; he was released last year after sperm found inside one of the girls was linked to a convicted rapist and accused murderer. “They have to solve cases quickly, and if a problem develops or doubt develops about a person’s culpability, they feel like they have to press on,” she said. “It’s a self-defeating philosophy.”

Lake County encompasses some of Chicago’s wealthiest suburbs, like Lake Forest and Mettawa, but Waukegan, which sits along Lake Michigan on the eastern edge of the county, is a world apart from those communities. It is a once-thriving factory town that in recent years became known for its noxious Superfund sites: remnants of an asbestos plant and an outboard-motor manufacturer. The county legal system is controlled by a relatively small group, almost all Republicans. The state’s attorney is Michael Waller, who has held the job since 1990, when he was appointed to fill out the term of his predecessor. Until recently, Waller’s wife, Jane, was a long-serving Lake County judge. (Waller declined to be interviewed for this article.) Of the three dozen sitting judges in Lake County, three are Democrats. Two-thirds are former prosecutors, mostly from the office of the Lake County state’s attorney. The current sheriff is a Republican and also a former Lake County prosecutor.

In 2009, when the former head of the county’s Republican Party, Tom Adams, was sentenced for the possession of child pornography, he received 30 days in jail and 30 months’ probation as part of a plea agreement, prompting complaints that he received light punishment. “There is no challenge to the orthodoxy,” said David Rutter, who was editor of the local paper, The Lake County News-Sun, from 2006 to 2008. “No one is going to run and challenge a judge or prosecutor on reform grounds.”

Jed Stone, a local defense lawyer, described the legal community as “an echo chamber.” “The problem with everyone coming from the same background, from the same state’s attorney’s office, from the same narrow political spectrum, is there is a failure to see the other side,” he said. “You begin to view people as others. And when you begin to see people as other than you, they begin to become expendable.”

Lake County certainly isn’t the only county in the United States dominated by one party and an insular political and legal culture. (Neighboring Cook County, for instance, has long been controlled by Democrats and has its own ignoble history of wrongful convictions.) It may be the only place, however, with a prosecutor as obstinate and as gifted as Mike Mermel. A 60-year-old widower, Mermel joined the state’s attorney’s office in 1990, after a stint as a prosecutor in Cook County. The first time I contacted him and said that I was from The New York Times, Mermel immediately announced that he was conservative. He agreed to speak with me on the phone, and later in the lobby of the state’s attorney’s office, but he refused requests for subsequent interviews and sought to retract all statements from our previous conversation.

Defense lawyers described Mermel’s office to me, with a photo of Charlton Heston and a book by Ann Coulter on display. “The first time I was in his office, he played me a videotape of Rush Limbaugh,” Stone said. “It was a diatribe on Bill Clinton.”

While some of Mermel’s tactics have drawn the ire of defense lawyers, others give him grudging respect for his skill in the courtroom. “He’s a very effective trial lawyer,” Stone said. “But his view of the world is very narrow.” In the case of Juan Rivera, Lake County prosecutors have been able to convince juries, not once but three times, that he was the murderer, despite DNA evidence in the last trial that powerfully suggested otherwise. (Mermel was the lead lawyer on the third trial and assisted in the second.)

“We don’t fold our tents and run,” Mermel told me when we spoke this spring. “We don’t quaver because somebody holds up three letters: DNA.”

When I asked him specifically about the Rivera case, Mermel said that sometimes post-conviction evidence is irrelevant. “The example I like to give people is next time you go to a motel room, bring a plastic bag, because the dirtiest thing in that room is the remote control. Everybody has sex and then rolls over and goes, ‘I wonder what’s on?’ ” he said. “O.K., so you can find DNA in the form of sperm from 10 different people in that room from that remote control or even on a person who has touched it. And that woman gets murdered in that room tonight, and you are going to have a lot of DNA. Is it all going to be forensically significant?”

His theory for why there was sperm that did not come from Juan Rivera inside 11-year-old Holly Staker on the day she was murdered is, to his mind, simple and straightforward. She and her twin sister, Heather, were sexually active, Mermel argues, and Holly must have had sex with someone else before Rivera came along and raped (but didn’t ejaculate) and murdered her. There was scant evidence to support this sexual-activity theory, but Mermel dismissed that objection. “Nobody is going to admit to having sex with an 11-year-old girl, even if the statute of limitations has run out,” he told me. “But there was a lot of evidence that came to our office that these two girls were sexually active.”

It was not the first time prosecutors in Lake County offered such a theory. In one case, Mermel is fighting efforts by a convicted rapist to clear his name after DNA testing excluded him as the source of sperm found inside the victim. Though Lake County prosecutors initially argued that the sperm came from the rapist, Mermel is now arguing just the opposite: that it came from an unnamed lover. In another case, Mermel opposed a new trial for a man convicted of killing an unidentified woman. When her identity became known years later, it turned out that her former husband once admitted that he killed her. Mermel dismissed statements from the husband, who is mentally disturbed, as the rants of a “one-armed Cuban feces-covered masturbator.” When asked about the case last year, he told The Chicago Tribune: “The taxpayers don’t pay us for intellectual curiosity. They pay us to get convictions.”

But few cases have damaged Lake County’s credibility as much as the one against Jerry Hobbs. In the spring of 2005, Hobbs arrived in Lake County after a two-year stint in a Texas prison for chasing a rival for his girlfriend’s affections with a chain saw. His plan was to reconcile with the girlfriend, who was now living in Zion, Ill., and to become reacquainted with their three children.

A few weeks after he arrived, his daughter, Laura, went outside to play with a friend, Krystal Tobias, who was 9. The girls never returned, and that evening the family began looking for them and eventually called the police. After a frantic night of searching, Hobbs said he came across the girls’ bodies in a remote wooded area around 6 a.m. They were lying on their backs, fully clothed, with multiple stab wounds and bruises, particularly around their necks and faces.

Hobbs was brought back to the Zion police station by 7:30 that morning, and the questioning began. Investigators thought it was suspicious that an ex-convict who was new to the area discovered the bodies before local residents and the police, and they thought his reaction to finding the bodies was also odd. According to police reports: “Hobbs referred to his daughter Laura and Krystal Tobias as ‘them girls’ and didn’t use Laura’s name. Hobbs also didn’t show any emotion and avoided looking at us when we talked about Laura.” After maintaining his innocence for about 20 hours, Hobbs finally relented and signed a confession stating that when he went to get Laura to come home, the girls resisted, then Krystal pulled out a small knife, and the two girls attacked him. Hobbs said he hit them both and eventually got the knife from Krystal and began stabbing her, then stabbed Laura. “Things just got out of hand, and I lost it,” he said.

He was charged with the murders, and prosecutors vowed to seek the death penalty.

An initial examination found no evidence of sexual assault in the case, and Hobbs never mentioned it in his confession. Two years after his arrest, though, a private laboratory hired by his lawyers discovered that there had been sperm in Laura’s vagina, anus and mouth, and they tested a sample. The defense lawyers immediately announced that DNA analysis showed the DNA did not match Hobbs’s.

When Mermel heard about the findings, he dismissed them and suggested that Laura could have got the sperm on her while playing in the woods, where couples might have sex.

Hobbs remained in jail, awaiting trial, for more than two years before the DNA was found to match a friend of Krystal’s older brother named Jorge Torrez, who was already serving a sentence in a Virginia jail for attacking three women, one of whom he raped, choked and left for dead. (He was eventually sentenced to life in prison for those crimes; currently he is also being charged for the 2009 murder of a 20-year-old naval officer.)

In August 2010, Michael Waller, the state’s attorney, told reporters he was releasing Hobbs because they could no longer prove his guilt beyond a reasonable doubt.

Lake County has yet to charge Torrez for the murders of Laura and Krystal, and Mermel said he still suspected that Hobbs was the killer and that the sperm was not related to the crime. One plausible scenario, he says, is that Torrez masturbated while visiting Krystal’s brother, and then Laura got it on her hands and unknowingly transferred it elsewhere.

“They have popcorn-movie night, and the little girl is in the same bed where this guy did it,” Mermel said by way of explanation. “How do we get colds? We touch our mouths, we touch our nose. What does a woman do after she urinates?” We were in the lobby of the prosecutor’s office, and Mermel answered his own question by standing and pulling his hand between his legs, as if wiping himself. “Front to back, O.K.?”

Hobbs, who is now 41 and lives in Texas and trims trees for a living, told me he confessed to the crime because he hadn’t slept in days and figured the truth would come out. “I found my daughter,” he said. “She didn’t even have eyes in her head. I was already broken. They didn’t have to break me.”

He said that he didn’t understand why Lake County wasn’t pursuing Torrez for the crime, and that he had filed a lawsuit against the county for wrongful prosecution.

“Why haven’t they charged him as fast as they railroaded me?” he said.

I met Juan Rivera this spring in a stark conference room at the State­ville Correctional Center near Joliet. He wore dark blue prison pants, a light blue work shirt and white unlaced high-top sneakers. His black hair was slicked straight back, and he had a trim goatee.

He was bigger than he was the last time I saw him, 18 years ago. He’s 39 now, 6-foot-3 and 200 pounds, his arms decorated with menacing prison tattoos. Once we started talking, though, Rivera smiled easily and became relaxed, almost serene, a fact that he attributes to a religious conversion in prison. “The only thing that is incarcerated is my body,” he said. “My mind is free here.”

The first time I met Rivera was in April 1993, when I interviewed him at the Lake County Jail. At the time, I was the police reporter for the newly opened Lake County bureau of The Chicago Tribune. Holly’s murder came to dominate much of my reporting over the next year, and as the story unfolded, I began to have doubts about the case against Rivera.

For one thing, a prosecution witness, who claimed Rivera confessed to him in jail, tried to sell me case documents at a local McDonald’s.

“I never touched that girl,” Rivera told me when I first interviewed him. Despite the claim in his statement that he had met her through his sister, he now said: “I don’t even know her or her family. I’ll keep saying I’m innocent, because I am.”

Seven months later, on Nov. 19, 1993, Rivera was convicted of murder. While I was hardly convinced of his guilt, I moved on to other jobs and largely forgot about him. Occasionally, though, his incarceration would nag at me, and last fall, after reading stories about Jerry Hobbs, I began checking in with lawyers again and asked Rivera if I could speak with him in prison.

In the small concrete-block conference room, behind two sets of locked gates, Rivera sat across from me as a prison official hovered nearby. When I asked him why he confessed, Rivera said he blacked out and doesn’t remember the specifics. “Coercion is just not physical, but it’s also mental,” he said. “There’s different ways to actually break a person down.” He added: “I know that it is easy to overbear a person’s mind if you continuously barrage them with questions and accuse them. And that’s exactly what they did with me.”

Rivera moved to Waukegan about a year before Holly’s murder, and while he worked a few jobs, he mostly hung around on the streets and got high. He had a minor criminal record and twice tried to commit suicide. On the night of the murder, he was confined to his home by an electronic leg monitor for stealing a car stereo. The monitoring system was supposed to alert authorities if Rivera left his house, though the system was prone to malfunction. He said he routinely violated his home confinement, infractions that were noted by Lake County authorities, who eventually sent him to prison for them. On the evening of Aug. 17, however, records for his monitor show he was at home.

Rivera said he learned about the murder from a friend who was at a party that night near the crime scene. She was the one who noticed one of the partygoers leave and then return later, acting strange. When he was sent to jail that September for violating his home confinement, Rivera repeated his friend’s story, putting himself at the party to protect her, because she had an outstanding warrant. His cellmate contacted police, and Lake County detectives arrived to question him in prison on Oct. 2. Later that month, on Oct. 27, with all their leads turning into dead ends, they took Rivera to Lake County and began questioning him intensively.

Three days later, on Oct. 29, investigators directly accused Rivera of Holly’s rape and murder. He became agitated and swore and tried to leave the room. Over the course of that night, detectives continued to press him about inconsistencies in his story. Just after midnight, Sgt. Charles Fagan asked Rivera, “Juan, you were in that apartment with Holly Staker, weren’t you?” Rivera nodded and began sobbing. He then told detectives that he killed Holly, but only after she attacked him with a knife because he refused to have sex with her. (Fagan did not respond to requests for comment.)

Shortly after detectives left the room at 3 a.m., Rivera began banging his head against the wall. One jail official later testified that he was unresponsive and stared straight ahead afterward. He was moved to a padded cell, and a nurse who went to check on Rivera later said he was pacing back and forth, speaking incoherently. The nurse testified that he was in a psychotic state and was “not in touch with the reality of what was going on around him.”

Around 5 a.m., investigators called Holly’s mother and woke her up with news that they had caught the killer. The rest of the Lake County task force was informed of the confession and told to report to work. When Fagan returned to talk to Rivera shortly after 8 a.m., he described the suspect as handcuffed and shackled but nonetheless coherent and cooperative. The detectives read back the confession that Rivera had made earlier, and he signed it.

But there were problems. Even though Rivera admitted to killing Holly, many of the details in his confession didn’t match the crime scene, and investigators thought it was implausible that Holly was the aggressor. They gathered in Waller’s office at 9 a.m. on Oct. 30, four days before his election as state’s attorney, to figure out what to do next. They decided a fresh team of detectives was needed to interview Rivera again to resolve the discrepancies in his statement.

When Lou Tessmann retired from the Waukegan police in 2005, the Illinois House of Representatives passed a resolution praising his two decades of service. The resolution noted that Tessmann, a former Marine, is “well known for his interrogation techniques on suspects of crimes.”

Since then, Tessmann has traveled the country offering seminars to police officers on how to investigate homicides and interrogate potential suspects. “Mr. Tessmann has obtained over 80 homicide confessions during his career with only three instances where he was unable to obtain a confession from a homicide suspect” — a 96 percent success rate — according to the Web site of his employer, Wicklander-Zulawski & Associates.

It was Tessmann who was sent in to interrogate Rivera around 11:30 a.m. on Oct. 30, along with Sgt. Michael Maley of the Illinois State Police. In the hour or two before the interview began, Rivera was hitting his head against a glass window and was then on the floor with his wrists and ankles cuffed behind him. Tessmann, however, described Rivera as “very comfortable, very relaxed” during the interview.

Though Tessmann arrived at the police station roughly seven hours before the interview, he testified that he wasn’t aware of Rivera’s previous confession. (One of his colleagues testified that he gave Tessmann the statement that morning.) He said that Rivera willingly recounted the crime, which then cleared up many of the issues that prosecutors considered problematic. He described how Rivera borrowed a pen to show how he stabbed Holly, and in what was portrayed as a smoking gun, Rivera confessed that he used a mop to bash in the back door to make it look like a burglary. Tessmann said this was the first he had heard of the mop, but a polygrapher testified that Tess­mann told him about it prior to Rivera’s confession.

The confession was not recorded, but investigators typed it up and presented it to Rivera, who, according to police, corrected several typos before affixing his signature.

In his closing argument in the third trial, Mermel told jurors that the case basically came down to whom they believed: the police or the DNA evidence? “Is there anything in the makeup of any of those men that would lead you to believe that they were the kind of people who had dedicated their lives to this profession, yet just decided to just frame this poor innocent Juan Rivera because they were tired of investigating and wanted to go home?” he said.

What the jury didn’t know was that Mermel had already successfully argued against the admissibility of any evidence that might cast doubt on Tessmann’s credibility. For instance, Tessmann said in a 1990 deposition and in an official biography that he earned an English degree from the University of Wisconsin. But the school’s 13 four-year colleges have no record of him ever attending. (In fact, he graduated from Northeastern Illinois University.) In 1989, Tessmann and four other police officers were sued for allegedly breaking into the wrong home during a police raid and injuring a woman who was seven months pregnant. The woman’s lawyer accused the police of writing reports to cover up their conduct and charged that Tessmann “took the lead in creative drama.”

According to documents provided by defense lawyers, a judgment was entered against Tessmann and the other officers for $48,500 in that case, and two years later, another judgment of $71,500 was entered against Tessmann in a case brought against him by a man who was wrongfully arrested for robbery.

A decade later, in 2001, a woman named Colleen Blue was charged with murder after she confessed to killing her newborn. Tessmann, then a commander, said to a reporter for The Chicago Daily Herald, “She told us she had six kids already and just did not want to deal with another one.” He added: “She said she gave birth to the baby when she was all alone, put him in the bag and walked off. She told us she could hear the baby crying until she got close enough to the street that the passing cars drowned out the sound.”

Charges against Blue were dropped when DNA testing revealed it wasn’t her baby.

When I called to speak with him about the Rivera case, Tessmann said that three different juries found Rivera guilty. “The guy is guilty as the day is long,” he said, before abruptly hanging up. He did not respond to a written request to answer subsequent questions. Sergeant Maley, Tessmann’s fellow interrogator, agreed with Tessmann’s assessment. “I can tell you 100 percent that Juan Rivera did the murder,” he said. “He told us things that we later investigated that were found to be true that only the killer would have known.”

In the spring I went twice to visit Heather Staker, Holly’s twin sister. In the first visit, in her apartment on the second-floor above some offices in downtown Waukegan, Staker, a slight blonde, now 30, wore a bright pink sleeveless shirt, a pink headband and pink pajama bottoms covered with images of Tinkerbell. It was, of course, like looking at a grown-up version of Holly, a fact that Heather knows all too well. “I’ve never been known as Heather Staker,” she said. “I’m known as Holly Staker’s twin.” She described how she and Holly were best friends when they were kids, that they slept on a bunk bed and shared everything. “We always played games on people because they could never tell us apart unless they saw the mole on my back,” she said. “April Fool’s, we’d switch classes.”

By her own admission, Heather has led a troubled life. She left home at 15, has been arrested multiple times, spent time in prison and battled heroin addiction. Recently, she suffered a stroke, which she says may have been brought on by her unhealthful lifestyle. Her two children are being raised by her mother. She told me that she was the one who was supposed to baby-sit on the evening her sister was murdered, but Holly volunteered to take her place. “I’ve been a screw-up my whole life because of it,” she said. “I just try to live day by day.”

Heather was an important witness in Rivera’s 2009 trial, testifying that she and Holly were forced to perform oral sex on a friend’s brother when they were 8. She also told jurors that they had shown each other how to masturbate. Prosecutors did not present other evidence that Holly was sexually active.

When we talked, though, Heather said it was simply not true. “We were not sexually active,” she told me, although she did not deny that they were abused earlier. Still, she made it clear that she had no doubt that Rivera killed her sister. When I asked about the sperm that doesn’t match Rivera’s, she suggested that maybe someone else was involved along with him, or maybe her sister was raped by another man before the murder.

“Why would you confess?” she said. “If I am getting charged with murder, I am not going to fess to something I did not do and then explain the whole night and how I did it and why I did it and everything like that if I didn’t do it.”

Earlier this year, Heather got a tattoo on the back of her neck, next to the mole that distinguished her from her sister. It says, “My Missing Half” and “Holly,” with wings on the side and a halo above it.

“I think about her a lot,” she told me the last time I saw her. She had dyed her hair pink since my previous visit. “I wonder how it would have been if she were here. You know, right now. The two of us running around, you know what I mean?”

On a chilly May morning, on a street not far from where Holly was murdered, Jennifer Linzer, from the Center on Wrongful Convictions at Northwestern University, and Cynthia Estes, a private investigator, visited the home of a man who was arrested for sexually assaulting a boy shortly before Holly was killed. They began by asking what he remembered about the evening of Holly’s murder, which wasn’t much. They talked about his criminal record, and he pointed out that he liked boys, not girls. Then they asked him if they could get a saliva sample in order to eliminate him as a possible suspect through DNA testing.

“I said, ‘This case is probably coming around again, and we are going to give a list to the cops of people who they should look at and test,’ ” Linzer said. “He said: ‘Great. I’ll do it.’ ”

Rivera’s lawyers would like to obtain a new trial with a different judge. They believe the judge who presided over the previous three trials unfairly favored the prosecution and should not have allowed prosecutors to introduce evidence about Holly’s alleged sexual past, among other supposed judicial errors. But even if Rivera is granted a new trial, with a new judge, there is a realization among his supporters that he could once again be convicted. The crime is simply too heinous, the confession too powerful.

Perhaps the only way to win Rivera’s freedom is to prove that someone other than Rivera killed Holly Staker. Which is where Linzer comes in. The wife of Northwestern’s provost, Linzer began working as a volunteer at the center a decade ago, after she grew restless as a stay-at-home mom. Before the end of the year, she was working full time, organizing files, directing student volunteers and reviewing innocence claims from inmates. She heard about Rivera’s case and eventually began speaking regularly to him on the telephone.

When Rivera lost his third trial, Linzer compiled a spreadsheet of potential suspects and, along with Estes, set about trying to find a killer by asking potential subjects for DNA samples. There are plenty of leads within blocks of the murder. Police reports show that at least two other men told friends that they killed Holly, one of them saying he stabbed her so many times he got tired. There were also at least three convicted sex offenders in the neighborhood, one of whom was convicted of molesting his 11-year-old stepdaughter, and around the corner was a boarding house full of transients. An elderly man a few blocks away supposedly drove around the neighborhood naked and masturbating. When police arrived to interview him, there was a picture of Holly and an envelope with her name on it in his house. A high-school senior had a picture of Holly, too, tucked in his wallet.

“Either this crime touched a lot of people, or there is an inordinate number of perverts in town,” Linzer said.

Typically, she and Estes show up at a suspect’s home and simply ask them for a saliva sample. If that doesn’t work, they resort to other measures. In one instance, they retrieved a cigar butt that a suspect discarded in an alley. In another, they saved a plate of discarded chicken wings that someone had eaten.

Even if Rivera’s defenders don’t find the killer, Rivera told me he remains optimistic that he will ultimately be freed. “I believe in God,” he said. “I believe that everything comes around. . . . Things should come correct. I don’t know when it will happen, but I do have faith that one day I will go home.”

If Mermel is worried about Rivera’s walking free, he doesn’t show it. He says that Holly Staker’s killer is already in prison, that the sperm found inside her is a red herring. “People love to link the murder and the sex,” he said. “It’s like peanut butter and jelly.” It was his job, though, to separate sex and death, to “look at the evidence,” as he put it, “and go, ‘What does this add up to?’ ”

 

Andrew Martin is a reporter for the Business Day section of The Times.

This is his first article for the magazine.

 

Editor: Joel Lovell

    The Prosecution’s Case Against DNA, NYT, 25.11.2011,
    http://www.nytimes.com/2011/11/27/magazine/dna-evidence-lake-county.html

Richard H. Kuh, Ex-Manhattan Prosecutor, Dies at 90

November 18, 2011
The New York Times
By WOLFGANG SAXON and PAUL VITELLO

Richard H. Kuh, a lawyer and former Manhattan prosecutor who jousted in celebrated cases with the likes of Lenny Bruce and Claus von Bülow, died on Thursday in Manhattan. He was 90.

The cause was complications of Parkinson’s disease, his son, Michael, said.

Mr. Kuh (pronounced cue) was briefly the Manhattan district attorney in 1974, serving between the resignation of Frank S. Hogan and the election of Robert M. Morgenthau, who held the office until his retirement in 2009.

But it was Mr. Kuh’s role in the trial of Mr. Bruce, the stand-up comedian and social satirist, that first brought him to public attention. Mr. Kuh was the chief assistant to Mr. Hogan in 1964 when Mr. Hogan decided to prosecute Mr. Bruce on obscenity charges stemming from a performance in a Greenwich Village nightclub. The act was laced with language that was considered unacceptably obscene at the time but that can now be heard nightly on HBO and Comedy Central. Mr. Hogan picked Mr. Kuh to argue the case.

Mr. Kuh won a misdemeanor conviction, and Mr. Bruce was sentenced to four months on Rikers Island. He died in 1966, and Gov. George E. Pataki pardoned him posthumously in 2003 in the interest, he said, of free speech.

The six-week trial, before a three-judge panel in Criminal Court, became a cause célèbre. A petition on Mr. Bruce’s behalf was signed by luminaries like Richard Burton, Rudy Vallee and the theologian Reinhold Niebuhr. The case also became Mr. Bruce’s obsession in later years. Mr. Kuh’s hard-nosed role in it would be immortalized in the comedian’s film of a 1966 performance and in the 1974 biographical film “Lenny,” in which Mr. Bruce, played by Dustin Hoffman, reads aloud from the trial transcripts of Mr. Kuh’s cross-examinations.

“Are you familiar with the script of the April 1 performance that deals with sodomy, sex with animals, dogs and cats and, I think, hippopotamuses?” Mr. Kuh asks a witness. The witness replies affirmatively.

In 1980, Mr. Kuh, then in private practice, was hired by members of the family of Martha von Bülow, who was known as Sunny, after she fell into an irreversible coma in Newport, R.I. He gathered evidence that helped in the prosecution and conviction of her husband, Claus von Bülow, on charges that he had tried to kill her with insulin injections.

Mr. von Bülow was sentenced to prison, but the verdict was overturned on appeal in a case that was dramatized in another film, “Reversal of Fortune,” in 1990. A second trial ended with an acquittal, in 1985. Mrs. von Bülow died in 2008.

Mr. Kuh later became involved in the labyrinthine legal maneuvers that followed the death in 1993 of Doris Duke, the reclusive tobacco heiress, who had deeded most of her $1.2. billion estate to charity and had named her butler, Bernard Lafferty, and the United States Trust Company as executors. The designation of the butler was challenged on probate, and a surrogate in Manhattan asked Mr. Kuh to investigate accusations that Mr. Lafferty, who was barely literate, was unfit to be an executor.

Mr. Kuh’s inquiry led the surrogate to remove Mr. Lafferty as executor, but an appeals court faulted both the surrogate and Mr. Kuh’s investigation and ordered a new hearing. Before it could take place, however, Mr. Lafferty, by now a millionaire, died in Los Angeles. After four more years of legal wrangling, the Doris Duke Charitable Foundation was established, in 1996.

Richard Henry Kuh was born in Manhattan on April 27, 1921, the second of two children of Joseph and Fannie Kuh. His father was a traveling salesman of children’s apparel.

Richard Kuh graduated Phi Beta Kappa from Columbia in 1941 and magna cum laude from Harvard Law School in 1948. In between, he served as a combat infantryman in Europe in World War II.

Mr. Kuh went into private practice in New York in 1948. He was an assistant district attorney from 1953 to 1964, serving as chief of the Criminal Court Bureau and Mr. Hogan’s administrative assistant. Mr. Kuh was among the first prosecutors to support a softening of the state’s tough antidrug statutes promoted by Gov. Nelson A. Rockefeller, and he championed laws to end discrimination against gay men and lesbians in housing and employment.

Malcolm Wilson, who briefly held the governor’s office after President Gerald R. Ford appointed Rockefeller vice president, nominated Mr. Kuh in early 1974 to replace the ailing Mr. Hogan. At the time, Mr. Kuh was in private practice, with Kuh, Shapiro, Goldman, Cooperman & Levitt. Mr. Hogan died shortly thereafter.

As district attorney, Mr. Kuh established the sex-crimes unit in that office. He was later defeated by Mr. Morgenthau in a Democratic primary election. His critics attributed the loss to an abrasive style that set him apart from Mr. Hogan and Mr. Morgenthau.

Most recently, Mr. Kuh was of counsel to Warshaw Burstein Cohen Schlesinger & Kuh, where he handled civil litigation.

He was the author of “Foolish Figleaves? Pornography in — and Out of — Court” (1967) and contributed to professional and popular periodicals. Mr. Kuh, who lived in Greenwich Village, was a founder of the Village Independent Democrats.

Besides his son, Michael, Mr. Kuh is survived by his wife since 1966, Joyce Dattel Kuh; a daughter, Jody Kuh; and a brother, Dr. Joseph R. Kuh.

Mr. Kuh’s role in the 1964 Bruce trial drew scant attention at the time. But it was widely considered the cause of his defeat by Mr. Morgenthau in the 1974 primary election. His candidacy had galvanized the opposition of a local literary pantheon, including Norman Mailer, Nat Hentoff and others, who thought his prosecution of Mr. Bruce had been excessively harsh. Humorless, even, they said. During the trial, Mr. Hentoff, who testified on Mr. Bruce’s behalf, likened Mr. Kuh to Torquemada, the leader of the Spanish Inquisition.

“I’ve handled many cases,” Mr. Kuh told The New York Times in 2004, “some that got attention, some that didn’t.” In 1964, he said, “we had a state obscenity statute” and it was the duty of the district attorney’s office “to live by and enforce the statute.”

    Richard H. Kuh, Ex-Manhattan Prosecutor, Dies at 90, NYT, 18.11.2011,
    http://www.nytimes.com/2011/11/19/nyregion/richard-h-kuh-former-manhattan-prosecutor-dies-at-90.html

Queens Woman Who Killed Husband

Is Sentenced to 5 Years on Gun Charge

November 10, 2011
The New York Times
By DAN BILEFSKY

A Queens woman who killed her husband after suffering years of abuse at his hands was sentenced on Thursday to five years in prison, less than the maximum sentence of 15 years, but short of her request for further leniency.

The woman, Barbara Sheehan, had shot her husband, Raymond Sheehan, 11 times in their home in Howard Beach in February 2008; although she used two guns, she claimed that she fired in self-defense after he had first threatened her life with one of the guns. Ms. Sheehan was acquitted of murder, but convicted of gun possession — the second gun that she used that day.

Acting Justice Barry Kron of State Supreme Court in Queens acknowledged that Ms. Sheehan was no doubt affected by the cumulative toll of two decades of domestic abuse, but he said the sentence had to reflect the crime committed during the course of the killing. Jurors had found Ms. Sheehan guilty of gun possession because she had used the weapon after he no longer posed a danger, since she had already shot him several times with a different gun.

Before the sentence was given, Linda Sheehan, the wife of Raymond Sheehan’s twin brother Vincent, urged the judge to remember that Barbara Sheehan was the criminal, not the victim in this case.

“We are heartbroken that the jury lost sight of the real victim in this crime; it was not Barbara Sheehan,” Linda Sheehan said. “It was Raymond Sheehan. She took the life of Raymond Sheehan, the only victim.”

Judge Kron had the discretion to send Ms. Sheehan to prison for as little as 27 months. The sentence included two and a half years of supervised release.

Ms. Sheehan was allowed to remain free on $1 million bail while her appeal of her verdict is pending. After the sentencing, she walked out of the courthouse in State Supreme Court in Queens and headed straight for the subway to go to her job as a school secretary.

As she walked, a passer-by hugged her.

“Keep praying for me,” Ms. Sheehan said.

    Queens Woman Who Killed Husband Is Sentenced to 5 Years on Gun Charge, NYT, 10.11.2011,
    http://www.nytimes.com/2011/11/11/nyregion/barbara-sheehan-sentenced-to-5-years-in-prison.html

Doctor Is Guilty in Michael Jackson’s Death

November 7, 2011
The New York Times
By JENNIFER MEDINA

LOS ANGELES — Michael Jackson, among the most famous performers in pop music history, spent his final days in a sleep-deprived haze of medication and misery until finally succumbing to a fatal dose of potent drugs provided by the private physician he had hired to act as his personal pharmaceutical dispensary, a jury decided on Monday.

The physician, Dr. Conrad Murray, was found guilty of involuntary manslaughter nearly two and a half years after Jackson’s shocking death at age 50. The verdict came after nearly 50 witnesses, 22 days of testimony and less than two days of deliberation by a jury of seven men and five women. The trial had focused primarily on whether Dr. Murray was guilty of abdicating his duty or of acting with reckless criminal negligence, directly causing his patient’s death.

Dr. Murray, 58, faces up to four years in prison and the loss of his medical license. He sat stoically as the verdict was read and did not react as he was led out of the courtroom in handcuffs. Judge Michael Pastor ruled that he should be held without bail until his sentencing, set for Nov. 29.

Jackson, who had become a star as a child in Gary, Ind., singing with his siblings in the Jackson 5, grew into one of the best-known performers in the world. Though increasingly eccentric in his later years, often living on a secluded California estate he called Neverland, Jackson always had a fervent core of fans and, despite scandals, his lavish lifestyle and persistent money woes, always seemed just a comeback away from a return to the top.

Hundreds of fans showed their devotion by gathering outside the downtown courthouse throughout the trial — many of them sporting Jackson’s signature single white glove. On Monday, they chanted “Justice, justice” and spent hours after the verdict dancing to his hits, from “Beat It” to “I Want You Back.” Huge crowds had also gathered outside the California court where Jackson was tried, and acquitted, on child molesting charges in 2005.

The singer’s parents, Joe and Katherine Jackson, and siblings La Toya, Jermaine and Randy were in the courtroom for the verdict. The family left the courthouse without speaking to the hordes of reporters gathered outside, simply saying they were “very happy” with the verdict and flashing a thumb.

Dr. Murray, a Houston cardiologist, was paid $150,000 a month to work as Jackson’s personal physician as he rehearsed in Los Angeles for “This Is It,” a series of 50 sold-out concerts in London that he needed to pay off hundreds of millions of dollars in mounting debts.

Testimony showed that Dr. Murray had stayed with Jackson at least six nights a week and was regularly asked — and sometimes begged — by the insomniac singer to give him drugs powerful enough to put him to sleep. Jackson, Dr. Murray told the authorities, was especially eager to be administered propofol, a surgical anesthetic that put him to sleep when other powerful sedatives could not. Testimony indicated that propofol, in conjunction with other drugs in the singer’s system, had played the key role in his death on June 25, 2009.

Prosecutors tried to paint Dr. Murray as a money-hungry physician who would do things no reputable doctor would do — including improperly and recklessly administering an anesthetic normally given only in a hospital. The full retinue of drugs given to Jackson while he was under Dr. Murray’s care was so beyond normal practice, prosecutors said, that it amounted to a “pharmaceutical experiment.”

For its part, the defense tried to portray Jackson as a man so desperate to make his comeback concerts a success that he was willing to take wild chances and grew terrified that he would not be able to perform to his own exacting standards without more rest and less stress.

The morning Jackson died, Dr. Murray told investigators during a recording played in State Superior Court here, the singer told him, “Just make me sleep; it doesn’t matter what happens.”

When Jackson died, he was more than $400 million in debt, but since his death, his estate has prospered, generating more than $310 million and paying off most of his debts.

The estate has struck several lucrative deals, including a movie, video games, a new recording contract and two productions by Cirque du Soleil.

Shortly after Jackson’s death, Dr. Murray told investigators that the pop star would routinely plead with him to administer more propofol, calling it his “milk.” The defense argued that Jackson gave himself the fatal dose of the drug. The Los Angeles County coroner ruled that Jackson’s death was caused by “acute propofol intoxication,” in combination with two other drugs in his system.

Two days after Jackson’s death, Dr. Murray told investigators that he had been using propofol almost nightly for two months to help the singer sleep.

In their closing arguments, prosecutors repeatedly invoked Jackson’s three children to a jury that included nine parents, saying that the singer wanted to perform, in part, so that they could see their father on stage. David Walgren, the deputy district attorney in charge of the case, described the frantic moments after Dr. Murray realized that Jackson was not responsive and as the pop star’s children watched him lie lifeless on his bed.

Prosecutors sought to show that Dr. Murray veered significantly from acceptable medical practice at nearly every turn: by administering the propofol, not having proper monitoring equipment and failing to call 911 right away, among other things. They said Dr. Murray had not kept any records of administering propofol but had taken time to record Jackson’s voice on his iPhone.

He did not tell the paramedics who arrived at Jackson’s home about the propofol, which prosecutors said showed that he knew he was responsible for the singer’s death. Just one day before the trial ended, Dr. Murray decided he would not testify.

Steve Cooley, the Los Angeles County district attorney, said that he hoped the trial would send a message to other “unscrupulous, corrupt” doctors who help fuel patients’ reliance on powerful drugs.

“In Los Angeles we see many examples of high-profile people losing their lives because of their addiction to prescribed medication,” Mr. Cooley said. “To the extent that someone dies as a result of their playing the role of Dr. Feelgood, they will be held accountable.”

Mr. Cooley said that he doubted that Dr. Murray would serve a full four-year sentence because of the state’s chronically overcrowded prisons.

In one of the most dramatic moments in the trial, prosecutors played the iPhone recording Dr. Murray made of Jackson toward the end of his life and the court heard the singer rambling about his dream of building the world’s largest children’s hospital.

“I’m going to do that for them,” Jackson is heard saying in slurred speech. “That will be remembered more than my performances. My performances will be up there helping my children and always be my dream. I love them. I love them because I didn’t have a childhood. I had no childhood. I feel their pain.”

When his voice trailed off, Dr. Murray waited several seconds before asking, “You O.K.?”

After several more seconds, Jackson answered, “I am asleep.”

Ben Sisario contributed reporting from New York, and Ian Lovett from Los Angeles.

    Doctor Is Guilty in Michael Jackson’s Death, NYT, 7.11.2011,
    http://www.nytimes.com/2011/11/08/us/doctor-found-guilty-in-michael-jacksons-death.html

Life Sentence for Possession of Child Pornography

Spurs Debate Over Severity

November 4, 2011
The New York Times
By ERICA GOODE

Does downloading child pornography from the Internet deserve the same criminal punishment as first-degree murder?

A circuit court judge in Florida clearly thinks so: On Thursday, he sentenced Daniel Enrique Guevara Vilca, a 26-year-old stockroom worker whose home computer was found to contain hundreds of pornographic images of children, to life in prison without the possibility of parole.

But the severity of the justice meted out to Mr. Vilca, who had no previous criminal record, has led some criminal justice experts to question whether increasingly harsh penalties delivered in cases involving the viewing of pornography really fit the crime. Had Mr. Vilca actually molested a child, they note, he might well have received a lighter sentence.

“To me, a failure to distinguish between people who look at these dirty pictures and people who commit contact offenses lacks the nuance and proportionality I think our law demands,” said Douglas Berman, a law professor at Ohio State University, who highlighted Mr. Vilca’s case on his blog, Sentencing and Law Policy.

Sexual offenses involving children enrage most Americans, and lawmakers have not hesitated to impose lengthy prison terms for offenders. In Florida, possession of child pornography is a third-degree felony, punishable by up to five years in prison. Mr. Vilca was charged with 454 counts of possession, each count representing one image found on the computer.

Steve Maresca, the assistant state attorney in the case, said that in his view, Mr. Vilca “received a sentence pursuant to the sentencing guidelines.”

“Too many people just look at this as a victimless crime, and that’s not true,” he said. “These children are victimized, and when the images are shown over and over again, they’re victimized over and over again.”

But Lee Hollander, Mr. Vilca’s lawyer, called the sentence ridiculous.

“Daniel had nothing to do with the original victimization of these people; there is no evidence that he’s ever touched anybody improperly, adult or minor; and life in prison for looking at images, even child images, is beyond comprehension,” he said.

Mr. Hollander said Mr. Vilca had consistently said he did not know the images were on his computer. He refused a plea bargain of 20 years in prison, after which the state attorney increased the charges. The sentence will be appealed, Mr. Hollander said.

Troy K. Stabenow, an assistant federal public defender in Missouri’s Western District, noted that most people assume that someone who looks at child pornography is also a child molester or will become a child molester, a view often mirrored by judges.

But a growing body of scientific research shows that this is not the case, he said. Many passive viewers of child pornography never molest children, and not all child molesters have a penchant for pornography.

“I’m not suggesting that someone who looks at child pornography should just walk,” he said. “But we ought to punish people for what they do, not for our fear.”

State and federal laws, which generally increase penalties based on the number of pornographic images, reflect the idea that acquiring child pornography requires extensive time and effort and thus is a measure of a defendant’s involvement and interest. But with the rise of the Internet, it is possible to download hundreds of images in a matter of minutes, making the size of a stash a less than reliable indicator, Mr. Stabenow and other criminal justice experts said. It is now a rare case that does not involve the possession of hundreds, or even thousands, of images.

As a result, many federal judges have issued sentences lower than those called for by federal guidelines, which add months for multiple images and other aggravating factors. And even when such sentencing enhancements are enforced, the sentences — which can sometimes be 18 or 20 years — are often well below what Mr. Vilca received. The federal guidelines, for example, recommend a minimum of 57 to 71 months in prison for possession of 600 or more images of very young children.

Paul Cassell, a former federal judge who is now a law professor at the University of Utah, said there was no question that “consumers of child pornography drive the market for the production of child pornography, and without people to consume this stuff there wouldn’t be nearly as many children being sexually abused.”

Mr. Cassell is involved in efforts to get restitution for victims of child pornography, and has filed a petition in one case with the Supreme Court. But he said that while he was not familiar with Mr. Vilca’s case and did not know what other facts might be involved, “in the abstract, a life sentence for the crime of solely possessing child pornography would seem to be excessive.”

“A life sentence is what we give first-degree murderers,” he said, “and possession of child pornography is not the equivalent of first-degree murder.”

    Life Sentence for Possession of Child Pornography Spurs Debate Over Severity, NYT, 4.11.2011,
    http://www.nytimes.com/2011/11/05/us/life-sentence-for-possession-of-child-pornography-spurs-debate.html

Ricky Wyatt, 57, Dies; Plaintiff in Landmark Mental Care Suit

November 3, 2011
The New York Times
By DOUGLAS MARTIN

Ricky Wyatt was a rambunctious Alabama teenager who had broken windows, overturned a school desk or two, and been in and out of group homes. His probation officer decided he needed to be committed to a mental institution. His aunt, his legal guardian, agreed.

So Ricky found himself at 14 in a crowded and understaffed hell, the Bryce State Hospital in Tuscaloosa, Ala. Among more than 5,000 patients, he was the youngest by a decade. Though he was never found to have any illness, he was given large doses of Thorazine and other psychoactive drugs regularly.

Mr. Wyatt, who died on Tuesday at 57, became the lead plaintiff in a landmark class-action federal lawsuit protesting conditions in the hospital. The suit led to a judgment in 1971 that gave the federal government control of Alabama’s mental institutions and set national guidelines for mental care that came to be called the Wyatt Standards.

“The enormity of what this case accomplished cannot be overstated,” Judge Myron Thompson of Federal District Court in Montgomery, Ala., said when he returned Alabama’s mental health system to state control in 2003. “The principles of humane treatment of people with mental illness and mental retardation embodied in this litigation have become part of the fabric of law in this country and, indeed, international law.”

James Tucker, the legal director of the Alabama Disabilities Advocacy Program, said Mr. Wyatt had died in a Tuscaloosa hospital. He did not know the cause, he said.

Ricky J. Wyatt was born in Tuscaloosa in 1954 and reared by his great-grandmother because his mother, Sylvia Hunter, “got in trouble,” he said in 2009 in an interview with Listen, an Alabama Department of Mental Health newsletter. Sylvia Hunter was in prison for forgery when the landmark suit was filed on his behalf, she told The Decatur Daily, an Alabama newspaper.

Ricky described himself as a “hell-raiser” who had been sent to reform school. While he was living at a children’s home, he said, his probation officer decided he needed to be committed to Bryce and his aunt, Mildred Rawlins, beset with problems of her own, agreed.

Paul Davis, a journalist who covered the case, wrote in Law and Psychology Review in January this year that Alabama law had made it easy to put people in mental institutions at the time. “If Aunt Bessie regularly burned the biscuits, or if Grandma Smith said the same things over and over again, a relative could simply go to a doctor and tell him their kin needed to go to the mental hospital,” he said. In a sense, Ricky was coming home when he was committed to Bryce. He counted 56 relatives who had worked there, starting with his great-great-grandfather. Mildred Rawlins worked there. Ricky played there as a child.

Being a patient was different. Ricky, 15 at the time of the trial, testified that he had been made to sleep on wet floors and locked in a cell-like room. He told of supervisors making people fight so they could bet on the winners. He was awakened by being poked with a broom. Hot water was thrown on him, he said. He was placed in a rehabilitation program for drugs and alcohol, though he had used neither.

“The worst thing was that I knew there was nothing wrong with me,” he told Listen.

The lawsuit began after the hospital laid off workers, leaving only one nurse for every 250 patients. Workers, including his aunt, decided to file a class-action suit and asked Ricky to be its human face.

Judge Frank M. Johnson Jr., who had earlier ordered that Alabama’s schools and prisons be placed under federal control on civil rights grounds, heard the case. He threw out the issue of the layoffs, saying the state had the right to hire and fire. But he let the claim of patient mistreatment go forward.

Judge Johnson’s ruling required humane treatment of patients, sufficient staffing, individualized treatment plans and as little reduction in patient freedom as practicable. It set 35 specific standards in areas like diet and nutrition.

Mr. Wyatt’s survivors include his mother; his sister, Kathy King; and his brother, Ronnie.

After the case, Mr. Wyatt found jobs in Florida and other states. He fell from a ladder while working as a painter and afterward used a walker or a wheelchair. He lived his last years in a trailer next door to his mother’s house in Cottondale, Ala.

When federal control of Alabama’s mental health programs ended on Dec. 5, 2003, there were 1,500 patients in state institutions, compared with more than 10,000 when it began. The next day, Mr. Wyatt visited Bryce. “It changed so much I couldn’t believe it,” he said.

    Ricky Wyatt, 57, Dies; Plaintiff in Landmark Mental Care Suit, NYT, 3.11.2011,
    http://www.nytimes.com/2011/11/04/health/ricky-wyatt-57-dies-plaintiff-in-landmark-mental-care-suit.html

Jury Hears a Final Round of Finger-Pointing

in the Trial of Michael Jackson’s Doctor

November 3, 2011
The New York Times
By JENNIFER MEDINA

LOS ANGELES — Michael Jackson’s death was caused by a doctor who was more concerned with making money and protecting himself than caring for his patient, prosecutors said in closing arguments on Thursday in the trial of the man who served as the pop singer’s private physician in the final months of his life and is now charged with manslaughter.

After 22 days of testimony over six weeks, the trial of Dr. Conrad Murray came to an end with closing statements from prosecutors and defense lawyers, who painted dramatically different pictures of the legendary pop star and the doctor caring for him. The jury is expected to begin deliberations on Friday.

The defense lawyer, Ed Chernoff, said that Mr. Jackson was a man desperate to prepare for a series of 50 sold-out concerts in London and relied on a cocktail of drugs to keep him going. Mr. Chernoff argued that prosecutors were asking the jury to convict Dr. Murray for something that Mr. Jackson had done. The defense argues that Mr. Jackson self-administered the dose of the drug that killed him.

“We’ve been dancing around this for six weeks, maybe two years,” Mr. Chernoff told the jury. “If it were anybody else besides Michael Jackson — anybody else — would this doctor be here today?”

The Los Angeles County coroner ruled that “acute propofol intoxication” in combination with two other drugs in his system caused Mr. Jackson’s death.

David Walgren, a Los Angeles County deputy district attorney, said that Murray had “grossly corrupted” the doctor-patient relationship with Mr. Jackson and knew that his actions had led to his death.

“Conrad Murray sought payment for services rendered, the services rendered being the provision of propofol,” Mr. Walgren said. “It was an employer-employee relationship. Conrad Murray sought payment for services rendered, not for proper medical care, not for the sake of doing no harm.”

During the trial, the jury heard testimony from medical experts, as well as Mr. Jackson’s former aides and several of Dr. Murray’s former patients. One expert for the defense testified that Mr. Jackson was most likely addicted to drugs that made it difficult to sleep and caused his own death by injecting himself with propofol when Dr. Murray was out of the room. A prosecution witness said that the defense’s argument that Mr. Jackson injected the drug himself was “crazy.”

Two days after Mr. Jackson’s death on June 25, 2009, Dr. Murray told detectives that he had been using the surgical anesthetic propofol nearly daily for the last two months to help Mr. Jackson sleep. But he said that he had been trying to wean Mr. Jackson off the drug and had tried sedatives instead.

After those drugs did not work and he had spent 10 hours trying to fall asleep, Mr. Jackson begged for propofol, Dr. Murray told investigators.

Prosecutors said that this statement alone amounted to enough of an admission of gross negligence to convict Dr. Murray of manslaughter. But prosecutors also called several expert witnesses who testified that Dr. Murray lied to the police.

Before the closing arguments began, Judge Michael Pastor of the Superior Court of California instructed jurors that they had to come to a unanimous agreement on one of two theories in order to convict Dr. Murray on the charge of involuntary manslaughter: either that Dr. Murray was acting legally but in a criminally negligent way or that he failed to perform his legal duty as Mr. Jackson’s doctor.

Dr. Murray decided late in the trial that he would not testify on his own behalf. If convicted, he faces up to four years in prison and the loss of his medical license.

    Jury Hears a Final Round of Finger-Pointing in the Trial of Michael Jackson’s Doctor, NYT, 3.11.2011,
    http://www.nytimes.com/2011/11/04/us/prosecutors-say-doctors-greed-caused-jacksons-death.html

A Killing Better Kept Out of Court

October 6, 2011
The New York Times
By JIM DWYER

Near the end of the cross-examination of Raymond Sheehan, whose mother, Barbara Sheehan, was on trial in Queens for killing his father, one of the jurors appeared to have had enough of the prosecution’s efforts to discredit his testimony about the torments the father visited on the family.

The assistant district attorney, Debra Pomodore, was asking Mr. Sheehan about an e-mail account that he shared with his mother, which happened to be issued by his college.

“You gave your mom that password?” Ms. Pomodore asked.

“I trusted her,” Mr. Sheehan said. “Yes.”

“Did you give your mother that e-mail password?” she pressed.

“Yes,” he said.

Ms. Pomodore pushed on. That account from his college was not his only e-mail address.

“Did she also have access to your home e-mail?” she asked.

“No,” he said.

“So,” Ms. Pomodore said. “You didn’t trust her with that.”

At that moment, a woman seated in the back row of the jury box looked down and slowly shook her head.

Ms. Sheehan’s trial, which ended Thursday with her acquittal on a murder charge, had no business in court. It should and could have been settled with a plea bargain long before a trial.

The evidence was unequivocal on two points. First, Ms. Sheehan killed her husband, a retired police officer also named Raymond Sheehan, shooting him 11 times with two of his guns. Second, she had been battered physically and emotionally for years. Testimony from her children, co-workers and friends filled a scrapbook of misery.

Ms. Sheehan claimed she acted out of fear for her life, as her husband’s furies were reaching new heights with their youngest child away at college. On the morning of his death, she testified, he pointed a gun and threatened to kill her when she refused to go with him to Florida for a vacation.

“Within a month of her arrest, I met with the prosecutors to see if we could work out a plea, and they wanted her to do 10 years out of the box,” said Michael G. Dowd, who with Niall MacGiollabhui defended Ms. Sheehan. “And during the trial, I asked if there was any chance that we could work this out with a rational plea. The answer was no.”

Instead, the Queens district attorney, Richard A. Brown, brought Ms. Sheehan to trial on a charge of second-degree murder. “Think of where we would be if only a fraction of abused women took the law into their own hands, as Barbara Sheehan allegedly did,” Mr. Brown said after the verdict.

That is a good reason for prosecuting her, because society has an essential interest in limiting the use of deadly physical force, but that could have been accomplished through a plea bargain, without the emotional violence of a trial.

Trying to show that Ms. Sheehan didn’t really fear for her life, the prosecution poor-mouthed her injuries. The bloodied head seen by friends did not involve a large head wound, but one that was just an inch or so. Maybe she had too much to drink and fell. A bashed-in nose that she went to an emergency room for was probably not broken.

And where were pictures of the bruises? Wasn’t the family really after his life insurance money?

Ms. Pomodore is a skilled prosecutor, but to paint the late Mr. Sheehan in anything but the darkest colors required her to uncoil his acts of tenderness from his violence, an impossible task unless the children — and friends and co-workers, a banker, a sanitation worker, a school security guard and a secretary — were treated as liars and fabulists.

After the jury returned with a verdict of guilty on a single gun count, the district attorney, Mr. Brown, called the case “terribly sad and tragic” and pointedly mentioned that Ms. Sheehan faces a three-and-a-half-year minimum sentence. He did not care to discuss his reasons for not finding a plea bargain that would have avoided a trial and spared the young Mr. Sheehan and his sister, Jennifer Joyce, from being treated not as victims, but as collaborators with their mother. Or worse, with their father.

“Over the course of time, you never once confronted your father?” Ms. Pomodore asked.

“I never confronted my father,” Mr. Sheehan said.

“And you never once told one person, in your entire life, about one bit of abuse that you claim you had seen in your home,” Ms. Pomodore asked. “Is that correct, yes or no?”

Mr. Sheehan did not answer yes or no. “I told friends my father was a monster,” he said.

    A Killing Better Kept Out of Court, NYT, 6.10.2011,
    http://www.nytimes.com/2011/10/07/nyregion/barbara-sheehans-case-shouldnt-have-gone-to-trial.html

Sentencing Shift Gives New Leverage to Prosecutors

September 25, 2011
The New York Times
By RICHARD A. OPPEL Jr.

GAINESVILLE, Fla. — After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.

Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation.

Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said. But the prosecutor’s response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year.

Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.

The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.

The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.

But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances. And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades. They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.

 

The ‘Trial Penalty’

In the courtroom and during plea negotiations, the impact of these stricter laws is exerted through what academics call the “trial penalty.” The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.

In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.

“Legislators want to make it easy for prosecutors to get the conviction without having to go to trial,” said Rachel Barkow, a professor of law at New York University who studies how prosecutors use their power. “And prosecutors who are starved for resources want to use that leverage. And so now everyone acts with the assumption that the case should end with a plea.”

“When you have that attitude,” she said, “you penalize people who have the nerve to go to trial.”

Prosecutors say they are giving defendants options and are merely charging them based on what is allowed under the law for those who turn down pleas.

While legal experts say the effect is clear in persuading more defendants to forgo trials, the trial penalty is hard to quantify without examining individual cases and negotiations between prosecutors and defense lawyers.

That is because threats of harsher charges against defendants who reject plea deals often are the most influential factor in the outcome of a case, but this interplay is never reflected in official data.

“How many times is a mandatory sentence used as a chip in order to coerce a plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United States District Court in Denver, who believes that prosecutors have grown more powerful than judges. But it is very common, he added. “That’s what the public doesn’t see, and where the statistics become meaningless.”

But one result is obvious, he said: “We hardly have trials anymore.”

In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.

Here in Florida, which has greatly toughened sentencing since the 1990s, felony defendants who opt for trial now routinely face the prospect of higher charges that mean prison terms 2, 5, or even 20 times as long as if they had pleaded guilty. In many cases, the process is reversed, and stiffer charges are dismissed in return for a plea.

Before new sentencing laws, the gap was narrower, and trials less risky, veteran lawyers here say. The first thing Denis deVlaming, a prominent Florida criminal defense lawyer, does with a new client is pull out a calculator to tally all the additional punishments the prosecutor can add to figure the likely sentence if the client is convicted at trial.

“They think I’m ready to charge them a fee, but I’m not,” he said. “I tell them in Florida, it’s justice by mathematics.”

No matter how strongly defendants believe they are innocent, he said, they could be taking dangerous risks by, for example, turning down a one-year plea bargain when the prosecutor threatens additional charges that carry a mandatory sentence 10 times as long.

 

A Power Shift

The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

Without question, plea bargains benefit many defendants who have committed crimes and receive lighter sentences than they might after trial. It also limits cases that require considerable time and expense in court.

But many defendants who opt for trial effectively face more prison time for rejecting a plea than for committing the alleged crime.

In Mr. Guthrie’s case, he was initially charged with aggravated battery on a pregnant woman and false imprisonment. But after he rejected the plea bargains, the prosecutor, more than a year later, filed the more serious charge of first-degree felony kidnapping, based on the girlfriend’s accusation that he pulled her by the arm inside her home and, once outside, grabbed her hair and pulled her on her feet the distance of several parking spaces.

Nobody is suggesting that Mr. Guthrie, previously incarcerated for 18 months on gun, assault and drug charges, is a sympathetic figure. According to a police report, he punched and kicked his girlfriend, left her with a bruised and bloody nose and a face that “appeared to be swollen,” and threatened to cut her stomach with a knife.

The assistant state attorney handling the case, Frank Slavichak, did not return calls. The chief investigator for the office, Spencer Mann, said Mr. Guthrie’s choices dictated the course of the case.

But his lawyer, Craig DeThomasis, hired after the plea rejections, said he was “plainly being punished for exercising his right to trial.” According to Mr. Guthrie’s mother, Claudia Guthrie, the prosecutor told her son at a hearing this spring that if he did not plead guilty and take a five-year sentence, higher charges would be filed that mean “you’re going to get life.” Mr. Mann did not dispute that some sort of warning of new charges was presented.

Mr. DeThomasis said that there was no evidence the girlfriend was pregnant, and that she started the altercation by hitting him in the forehead with a pipe, landing him in the jail infirmary for a week. He pointed out that she was arrested in 2009 for attacking Mr. Guthrie after telling the police he had struck her, leading police to say in a report that she had “changed her story several times and could not explain her actions.” He also said she had a history of involuntary hospitalizations, which she declined to address in a 110-page sworn deposition in February.

Mr. Mann declined to comment on the girlfriend’s background but said none of it affected the credibility of the case.

Judges in many cases can set aside verdicts that they believe are unsupported by the evidence, but they generally have no power in mandatory-minimum cases to reduce punishments below levels established through legislation.

While the Guthrie case may be a particularly stark example of how much power one prosecutor can have over a defendant’s fate, many places have given district attorneys similar influence.

“There have been so many laws passed in the various states that just about always there is some enhancement available to the prosecutor that can be used as leverage in negotiations,” said Scott Burns, executive director of the National District Attorneys Association.

Mr. Burns, a former Utah prosecutor, did not dispute that sentencing-law changes had made trial riskier for defendants and helped drive down the percentage of cases taken to a verdict. He also acknowledged that the plea-bargain process “clearly is coercive” when defendants face harsher or more numerous charges for rejecting deals.

But he said plea bargains were also “extremely lenient in many instances because prosecutors are taking several criminal acts off the table.” He emphasized that lawmakers time and again have given prosecutors more leverage and said it was “grossly unrealistic” to criticize district attorneys for enforcing laws that they are duty-bound to uphold — even those that are ill-advised.

“There are a lot of criminal laws that are passed that we all kind of roll our eyes at,” he said. “Sometimes they are just repetitive; sometimes they are knee-jerk responses to some high-profile case, and therefore politically motivated.”

Though national statistics are not readily available, the trend toward lower trial rates is evident in a number of places.

The National Center for State Courts in Williamsburg, Va., found that the percentage of felonies taken to trial in nine states with available data fell to 2.3 percent in 2009, from 8 percent in 1976.

The number of jury trials rose slightly, while nonjury trials, where a judge decides guilt or innocence, fell sharply — all while caseloads nearly tripled. The states account for more than a third of the American population, and most have mandatory minimums or sentencing guidelines or have passed toughened sentencing laws.

The Bureau of Justice Statistics, after studying partial data on state-court felony prosecutions nationwide, found that from 1986 to 2006 the ratio of pleas to trials nearly doubled.

The shift has been clearer in federal district courts. After tougher sentencing laws were enacted in the 1980s, the percentage of criminal cases taken to trial fell to less than 3 percent last year, from almost 15 percent, according to data from the State University at Albany’s Sourcebook of Criminal Justice Statistics. The explosion of immigration prosecutions, where trials are rare, skews the numbers, but the trend is evident even when those cases are not included.

Nearly nine of every 10 cases ended in pleas last year, the federal data show, while one in 12 were dismissed (the percentage of dismissed cases was substantially higher a generation ago).

The number of acquittals dropped even further. Last year, there was only one acquittal for every 212 guilty pleas or trial convictions in federal district courts. Thirty years ago, the ratio was one for every 22.

 

More Plea Bargaining

Experts like Ronald Wright, a former federal prosecutor and now a professor of law at Wake Forest University, say they fear that the steep decline in acquittals stems partly from more defendants, who might have winnable cases, deciding not to risk trials and reluctantly accepting plea bargains instead.

Some federal prosecutors worried that their power would be weakened by a 2005 Supreme Court ruling that made sentencing guidelines advisory only. But academics say the ruling had much less effect than what some predicted as many judges still largely follow the guidelines, and the ruling did not affect other laws that have given prosecutors more power.

While sentencing changes allowed legislators in this state to take credit for being tough on crime, they have also worked against their goal of trimming prison costs, leaving prosecutors caught in the middle.

“There is a big disconnect,” said Bill Cervone, the state attorney in Gainesville and the chief prosecutor in six counties that make up Florida’s Eighth Judicial Circuit. “There is subtle and not so subtle pressure” to reduce the numbers sent to prison.

Mr. Cervone, who was head of the Florida Prosecuting Attorneys Association, added, “Our position is, ‘Please don’t pass any new crime laws while you are also cutting our budgets.’ ” His budget has been cut 20 percent in four years.

The fiscal strains extend to judges, who face pressure to keep dockets moving. Some do not appreciate defendants who refuse pleas and then lose a time-consuming trial, he and other lawyers say.

“There are some judges who will punish you for going to trial,” Mr. Cervone said. “Legally, you cannot impose a longer sentence on someone because they exercised their right to trial,” he said, speaking of judges. “Factually, there are ways to do it.”

In some cases, he added, he wished judges had more discretion, instead of having to automatically impose an inflexible punishment.

So, too, do many judges faced with cases where legislatively mandated penalties do not square with their idea of justice.

Like the one in Polk County, Fla. that began when Orville Wollard said he fired his registered handgun into his living room wall to scare his daughter’s boyfriend out of the house after he repeatedly threatened his family.

In Mr. Wollard’s view, he was protecting his family and did not try to hurt the boyfriend, who was not hit, though the judge said the bullet missed him by inches. But after Mr. Wollard turned down a plea offer of five years of felony probation, prosecutors won a conviction two years ago for aggravated assault with a firearm. Because the gun was fired, a mandatory-minimum law required a 20-year term.

At his sentencing, Mr. Wollard said he felt as if he were in “some banana republic” and described the boyfriend as a violent drug dealer. But prosecutors said the judge had “no discretion” because of the state law.

Reluctantly, the judge agreed. “If it weren’t for the mandatory minimum aspect of this, I would use my discretion and impose some separate sentence,” he told Mr. Wollard, adding that he was “duty bound” to impose 20 years.

    Sentencing Shift Gives New Leverage to Prosecutors, NYT, 25.9.2011,
    http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html

Cleared of Rape but Lacking Full Exoneration

September 24, 2011
The New York Times
By JOHN SCHWARTZ

RICHMOND, Va. — One Sunday morning in February 1984, Thomas Haynesworth’s mother sent him to the Trio supermarket to pick up some bread and sweet potatoes.

He never got there. Instead, he was stopped and questioned in connection with a recent rape. That began a 27-year odyssey through false accusation, arrest, prison and pain.

Mr. Haynesworth, then 18 and never in trouble with the law, had been mistakenly identified by the victim as her assailant. He was arrested on suspicion of having committed five rapes and assaults in his neighborhood, and was tried for four of them. He was convicted in three and sentenced to 84 years in prison.

DNA has since proved that he did not commit two of the rapes he was tried for. The DNA from those two cases pointed to another man, in prison for having committed multiple rapes in the same neighborhood that occurred after Mr. Haynesworth’s arrest. That man, Leon Davis, who identified himself to victims as “the Black Ninja,” is serving multiple life terms plus 100 years.

Now Mr. Haynesworth, 46, is asking for full exoneration on all of the rape convictions, although DNA from the other two cases is not available. But the circumstantial evidence supporting Mr. Haynesworth’s claims of innocence is so powerful that along with his own lawyers, the prosecutors from both jurisdictions where the rapes occurred support his efforts, as well as the attorney general for the commonwealth, Kenneth T. Cuccinelli.

With no one arguing against exoneration, most judges would be expected to congratulate Mr. Haynesworth on his new life, perhaps with an apology as well, and send him into daylight and freedom. But in July, a three-judge panel of the Court of Appeals of Virginia said, in essence, “Not so fast.” The court called for additional briefs in the case, which will be heard again on Tuesday by all of the judges of the court.

It is a move that has left legal experts astonished. “It’s very rare for a court to set a case for argument when all the parties are agreed,” said Stephen J. Schulhofer, an expert in criminal justice at New York University law school, adding that “it’s essentially unheard of” for a court to take matters into its own hands, instead of appointing a special advocate to argue on behalf of the interests that they believe are unrepresented.

It is a case, then, that might seem quirky, even unique. But experts like Professor Schulhofer say the case raises broader questions about the lengths that defendants must sometimes go to clear their names, and even raises fundamental questions about the administration of justice. “What I worry about is, if Haynesworth is having trouble getting his conviction set aside, what kind of judicial relief is available to your run-of-the-mill case where your arguments are not quite so slam dunk?”

Mr. Haynesworth’s fight for freedom began in 2009, when the state’s department of forensic evidence tested the DNA from the first rape as part of a broad review of old case files. The results cleared Mr. Haynesworth of that rape, and he received an exoneration on that charge later that year. Mr. Haynesworth’s lawyers at the Mid-Atlantic Innocence Project and the Innocence Project in New York, along with private lawyers, filed legal papers for Mr. Haynesworth with the Court of Appeals of Virginia to get a writ of actual innocence on the remaining convictions. Subsequent testing of the DNA from the trial in which Mr. Haynesworth was acquitted eliminated him — and again implicated Mr. Davis.

Virginia’s parole board released Mr. Haynesworth from prison in March, on his 46th birthday. But he is still pressing for exoneration — “to clear my name, you know what I’m saying?” He is classified as a paroled sex offender, and has to appear on public registries of rapists and other sexual miscreants. He has to inform the authorities in order to move from one home to another, and even had to request permission to visit his nieces.

“I’m out, but still not totally free,” he said. “It puts a cloud over your life.”

Mr. Cuccinelli said in an interview that he and his staff reviewed the evidence in the Haynesworth case in great detail. “It was a complex decision,” he said, “but it wasn’t a hard decision.” The thought of the wrongful conviction haunted him. “It’s hard to describe how painful it is to me that somebody would suffer what he has.”

He explained that the law that allowed writs of actual innocence was crafted with a very high standard of proof in mind. It places a premium on preserving the finality of the judicial process and attempts to avoid endless appeals. “I would say it’s cultural to the state,” he said. “You get your shot, you take your shot, and we’re not going to muck around with it anymore.”

Mr. Cuccinelli has built a reputation as a conservative firebrand and was among the first attorneys general to challenge the Obama administration’s health care law in the courts. His libertarian sensibility, he said, leaves him “healthily suspicious of government in all circumstances, including when criminal charges are considered and then levied.”

He voted for an earlier version of the law creating the writ of actual innocence when he was a member of the State Senate. So he knows the law well, and said, “This is intended to be a rare award, but not impossible.”

The court, however, seems to be trying to interpret the statute more strictly than the legislature intended, and asked in its demand for additional briefs for discussion of whether the exonerating evidence should be “conclusive,” a standard suggested in a concurring opinion to an earlier case on the law.

Mr. Cuccinelli argued that raises the standard of proof too high. “If you want conclusive, that’s DNA,” he said; conclusive proof is virtually impossible with other forms of evidence.

In his brief to the appeals court, Mr. Cuccinelli argued that requiring conclusive evidence was not the standard set by the legislature. The language of the statute calls for the evidence to be sufficiently strong that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” The brief stated, “It is important to resist unconsciously raising well-established evidentiary standards just because sometimes, in some cases, spectacularly accurate and reliable evidence exists.”

In a particularly arch footnote, Mr. Cuccinelli’s team added that since the state had disposed of the DNA evidence in the other cases, “it seems paradoxical to demand ‘conclusive’ evidence from Haynesworth when the commonwealth has deprived him of the opportunity to produce such evidence.”

Whatever might happen in court on Tuesday, Mr. Haynesworth is out in the world again and said he found it sweet. He has not gone back to that supermarket because “the store burned down.” A lot can change in a quarter-century.

And while many of those released from prison have trouble finding work, Mr. Haynesworth quickly found employment in Richmond.

He is working in Mr. Cuccinelli’s office.

    Cleared of Rape but Lacking Full Exoneration, NYT, 24.9.2011,
    http://www.nytimes.com/2011/09/25/us/man-cleared-of-rapes-but-a-court-balks-at-full-exoneration.html

In Connecticut, Gruesome Case Set to Be Relived Again

September 19, 2011
The New York Times
By WILLIAM GLABERSON

NEW HAVEN — It began again on Monday, in a claustrophobic courtroom here, and in coming days there will be photographs of two girls killed in a fire, witnesses fighting back tears and testimony about the night and day a family endured horror.

It is the second trial in the 2007 home invasion in Cheshire, Conn., that ended with the killing of a mother and her two daughters and drew national attention as an archetype of nightmarish suburban crime.

The first, highly publicized, trial began a year ago last week. After a litany of gruesome testimony, it resulted in a death sentence for one of the attackers, Steven J. Hayes.

On Monday, prosecutors began their quest for a death sentence against the other middle-of-the-night intruder, Joshua Komisarjevsky, 31, a serial burglar and drug abuser once described by a judge as a “calculated, cold-blooded predator.”

Walter C. Bansley III, one of the defense lawyers, began his opening statement conceding many of the facts but blaming Mr. Hayes for turning the crime into a homicide. "Joshua Komisarjevsky never intended to kill anyone," he said.

Mr. Bansley described Mr. Hayes as deciding on his own to rape the mother of the family, to kill her and to burn the house down to kill the rest of the family. He said Mr. Komisarjevsky had cognitive difficulties and was unable to make quick decisions in stressful situations. "Not to be used as excuse," Mr. Bansley added. He quoted Mr. Komisarjevsky’s confession to the police in which he claimed he had told Mr. Hayes "no one is dying by my hand today."

Mr. Komisarjevsky sat quietly between his lawyers looking heavier and considerably older than the wiry young man arrested outside the Petit house on July 23, 2007.

A prosecutor, Michael Dearington, spoke for a few minutes, telling the jurors simply: "We choose to present the evidence and we know that you will follow it."

The crime provoked criticism of the legal system here because the two men charged were parolees who had met at a Connecticut halfway-house. The widespread revulsion at the crime is also widely believed to have stalled what had seemed to be a potent campaign to repeal the death penalty in Connecticut.

Despite the intense media attention that the trial of Mr. Hayes attracted, there is little sign that people here have grown weary of the case. Mr. Komisarjevsky has been cast by some, including his co-defendant, as the smarter and more manipulative of the two, so the new trial is expected to tell an even darker tale. “I am not the monster that Josh is,” Mr. Hayes once wrote.

Shortly after Judge Jon C. Blue of State Superior Court took the bench here on Monday, Jeremiah Donovan, the chief defense lawyer started on a provocative note, taking note on the record of the fact that many people in the "Petit posse" were wearing Petit foundation pins within feet of the jury box, which the defense has long argued is an unfair message in favor of the prosecution.

The defense lawyers for Mr. Komisarjevsky have signaled that they will wage a more aggressive defense that may include a searing portrait of the defendant’s life in an effort to avoid a verdict that could lead to a death sentence. They have described their client, who was raped as a child, as “a damaged human being” who did not intend to kill anyone when he burst into the Petit family home on Sorghum Mill Drive.

Mr. Komisarjevsky, like Mr. Hayes, does not contest that he played a role in the crime. Each offered to plead guilty in exchange for a life sentence. By now the stomach-turning details of what happened inside the Petit home are achingly familiar: The mother of the family, Jennifer Hawke-Petit, 48, was raped and strangled, and her 11- and 17-year old daughters died of smoke inhalation after the intruders tied them to their beds and set their house on fire.

The father of the family, Dr. William A. Petit Jr., was beaten with a baseball bat and tied up but escaped and survived. He testified at Mr. Hayes’s trial and is expected to take the stand again before a different jury here.

Mr. Komisarjevsky and Mr. Hayes have each blamed the other for turning what they said was a search for valuables in the home of a successful doctor into a twisted multiple murder.

Mr. Hayes’s lawyers argued during his trial last fall that it was Mr. Komisarjevsky who changed the nature of the crime when he sexually assaulted the 11-year-old, Michaela Petit. Mr. Hayes has claimed that Mr. Komisarjevsky directed him to “get rid of” Mrs. Hawke-Petit after Mr. Hayes had raped her.

But Mr. Komisarjevsky, in chilling prison journals that were read at Mr. Hayes’s trial, claimed that it was Mr. Hayes who changed the nature of the crime by strangling Mrs. Hawke-Petit. “He brought us both to a whole different level,” Mr. Komisarjevsky wrote.

Mr. Komisarjevsky’s prison writings may play an important role in the new trial as well. Though they may well be cited by both sides, all of the lawyers are likely to concede that they are bleak.

Mr. Komisarjevsky wrote that he considered killing Mr. Hayes. He gratuitously attacked the surviving victim, Dr. Petit, as a “coward.” He went to extraordinary effort, bringing up his own history of as a victim of abuse, to assert that he did not rape the 11-year old girl, but merely sexually assaulted her.

“I know what rape is, no one need explain it to me,” he wrote. He added that “enduring month upon month of merciless abuse at the age of 5 and 6 have gained me an insight of complete clarity.”

Mr. Komisarjevsky faces 17 counts, including kidnapping, burglary, arson, assault and capital murder. If he is convicted, a second phase of the trial would be held before the same jury to determine whether he would be sentenced to death.

    In Connecticut, Gruesome Case Set to Be Relived Again, NYT, 19.9.2011,
    http://www.nytimes.com/2011/09/20/nyregion/2nd-trial-in-cheshire-conn-home-invasion-to-begin.html

Sidney H. Asch, a Judge and a Scholar, Is Dead at 92

September 10, 2011
The New York Times
By PAUL VITELLO

Sidney H. Asch, a New York judge with a Ph.D. in sociology who wrote scholarly works about civil liberties and made notable decisions about landlord-tenant law, employment of gay people and a man’s right to get his hair cut in a women’s beauty salon, died on Sept. 1 in a nursing home in North Carolina. He was 92.

The cause was complications of Parkinson’s disease, his daughter Dr. Jane Asch said.

Judge Asch, who wrote eight books, was modest about his academic credentials when he began his public career as a member of the State Assembly in 1952, and he seemed almost apologetic about them when interviewed a few years later, after he had won election to a Democratic Party leadership position in the Bronx.

“I had lots to overcome in politics with my academic background,” he told The New York Times at the time. “But I feel I convinced the people in my district that I understand their problems.”

Notwithstanding his effort to blend in, The Times found a scholar’s rise in city politics so unusual that it put its article about his election on the front page under the headline “Democrats Pick Ph.D. Egghead as District Leader in the Bronx.”

In his decade in the Assembly, Judge Asch, who earned his doctorate from the New School for Social Research, promoted legislation to ban corporal punishment in schools and to require that cigarette packaging carry health warnings. Neither bill passed — though the objectives would later be met — before he left in 1961 to accept appointment as a New York City municipal court judge.

As a justice of the State Supreme Court beginning in 1970 and of the court’s Appellate Division beginning in 1982, Judge Asch found himself at the center of politically sensitive cases with long-term implications for the city.

In 1978, weighing in on an issue that would remain contentious for years, he quashed a law passed by the City Council requiring future city employees to live within the city limits. The issue remained unresolved until the 1980s, when the State Legislature adopted a law permitting most uniformed workers to live outside the city but imposing a residency requirement on most other city workers.

In 1983, Judge Asch joined the appellate court majority in upholding the right of tenants to assign or sublease an apartment during the term of a lease.

In 1985, he wrote the majority decision upholding the authority of Mayor Edward I. Koch to ban employment discrimination against homosexuals by any private agency doing business with the city, including church-run groups. The ruling was later overturned by the state’s highest court, the Court of Appeals.

But the decision that may have affected the broadest spectrum of the population — among the city’s long-haired, style-conscious men, at least — was a 1975 ruling in which Judge Asch overturned a 1947 statute that permitted barbers to cut women’s hair but prohibited women from cutting men’s.

The challenge was brought by hairdressers, The Times wrote, so that men could “go to beauty salons openly, without fear that the joint may be raided.”

Beginning in 1968, Judge Asch also wrote books about civil liberties, citizens’ rights in the criminal justice system and the legal problems of the mentally disabled, among other topics. Another volume was titled “The Supreme Court and Its Great Justices,” on the 15 justices he considered most influential in American history.

Sidney Howard Asch was born on May 30, 1919, the elder son of Bernard and Mildred Asch. His father was in the garment business. His brother, Stuart, a professor of clinical psychiatry at Weill Cornell Medical College, died in 2002.

Judge Asch, after graduating from City College and Columbia Law School, served as a military lawyer in the United States during World War II.

His wife, Amy Cohen Asch, a social worker, died in 2004. Besides his daughter Jane, of Manhattan, he is survived by another daughter, Nancy, of Asheville, N.C.

    Sidney H. Asch, a Judge and a Scholar, Is Dead at 92, NYT, 10.9.2011,
    http://www.nytimes.com/2011/09/10/nyregion/sidney-h-asch-judge-and-author-dies-at-92.html

Defense Tack in Family Killings

Promises More Harrowing Jolts

August 29, 2011
The New York Times
By WILLIAM GLABERSON

For weeks last fall, until Steven J. Hayes was sentenced to death, Connecticut was riveted by testimony describing the nightmarish fate of the Petit family in Cheshire. The mother was strangled in 2007 after an ordeal that began when two men burst into the home, and her two girls, 11 and 17, died after being tied to their beds and the house was set ablaze.

Mr. Hayes’s co-defendant, Joshua Komisarjevsky, goes on trial on Sept. 19. But as harrowing as the first trial was, it is becoming clear, almost unbelievably, that the second will be even more disturbing.

The reason is a widely known Connecticut defense lawyer and lanky raconteur named Jeremiah Donovan. He has been conducting an aggressive defense in court filings and pretrial hearings that has included attacks on any number of people, including the jury, the judge, the news media, the victims’ family — even the surviving victim, Dr. William A. Petit Jr., the father.

Mr. Donovan and his fellow defense lawyers have said the “Petit posse” and a judge’s order directing him not to make out-of-court statements have created a “farcical situation of Shakespearean dimensions” fostering a “lynch-mob mentality.”

Their claims against Dr. Petit included assertions that he was “shopping his point of view around” and orchestrating a public relations campaign for a death-penalty verdict. They also charged that Dr. Petit used an alias to post Internet comments, including some that attacked lawyers as “part of the problem.” Dr. Petit declined to respond to the accusation.

The defense strategy is markedly different from the gentlemanly tack of Mr. Hayes’s lawyers. Thomas J. Ullmann, his chief lawyer, said the change was necessary.

“You’d be a fool to adopt the same strategy that we had,” Mr. Ullmann said, “because it was a failed strategy.”

During Mr. Hayes’s trial, Mr. Donovan, 63, gave a flavor of his tactics, and of just how sordid the coming case may become. He made a widely quoted statement that testimony had created a “misimpression” that Mr. Komisarjevsky (pronounced ko-mi-sor-JEFF-ski) had sodomized the 11-year-old, Michaela. Instead, he said his client, now 31, had claimed only to have “ejaculated upon” the girl, a distinction that he called “probably very small solace” to the Petit family.

His remarks drew wide derision and a threat of being held in contempt of court.

The defense has signaled it will also reveal striking detail about the life of Mr. Komisarjevsky — “a damaged human being,” the defense says, with a mental disorder who endured “years of trauma and abuse.”

Mark Dubois, a veteran Connecticut lawyer and law professor, said the “scorched-earth defense” seemed intended to provoke mistakes by the trial judge or others that would lead to a new trial and a new chance to avoid a death sentence years from now.

The provocations seem aimed largely at the judge, Jon C. Blue of Superior Court in New Haven. Mr. Donovan tried but failed to have him removed from the case with claims that Judge Blue lacked objectivity and had an “unsuitable temperament,” evidenced by an incident in which the judge gave spectators chocolate-chip cookies he had baked.

Mr. Donovan said the court order barring him from speaking prevented him from granting an interview for this article. But he has said previously that he and his co-counsel, Walter C. Bansley III and Todd A. Bussert, were — with their client — the “most hated men in Connecticut.”

Other lawyers say Mr. Donovan has taken the provocative approach partly to change the subject from the crime and reminders that Mr. Hayes received a death sentence.

Mr. Donovan seems at home as chief provocateur. People who know him say he savors legal combat, and the more unpopular the cause, the more he enjoys it.

“This is something Jerry became a lawyer to do: Jerry is looking for the challenge,” said H. James Pickerstein, who worked with him as a federal prosecutor years ago.

Mr. Donovan and the other defense lawyers were court-appointed, at a cost to the state so far of $470,000.

After 11 years as a prosecutor, Mr. Donovan has been a defense lawyer for more than 20 years and made a name for himself representing high-profile mobsters, murderers and scam artists. A graduate of Harvard College and Yale Law School, with a touch of a Boston accent from his native Massachusetts, he has been known to quote the classics.

He is a courtroom storyteller so adept that a law professor, Philip N. Meyer, wrote a scholarly article comparing the dramatic effect of his trial narratives to the films “Pulp Fiction” and “Casablanca.”

But he also has a record as a brawler. In his prosecutor days, an appeals court said there had been “misstatements of important facts” due to his prosecutorial zeal. The court overturned the conviction in one of his drug cases, saying “the ends cannot justify the means.”

His affinity for underdogs has been no secret. He once told The Hartford Courant that one of his favorite literary characters was the lawyer in “To Kill a Mockingbird” who defended a black man charged with raping a white woman in a small Southern town.

Mr. Donovan described the character, Atticus Finch, as “a learned man who could stare down an angry crowd and shoot a mad dog.”

Mr. Donovan has already had a few opportunities to stare down an angry crowd in the Cheshire case. Connecticut newspapers regularly carry outraged reader comments like one calling him “a soulless piece of trash.”

Cynthia Hawke-Renn, the sister of the murdered woman, Jennifer Hawke-Petit, said in an interview that Mr. Donovan was “trying to make his claim to fame with this trial” and that “some of the stunts they have already pulled have been way below the belt.”

One of those offended is a Democratic state senator, Edith Prague. After she drew widespread attention in May by saying Mr. Komisarjevsky should be hanged “by his penis from a tree,” the defense unsuccessfully tried to delay the trial, saying her remarks were prejudicial.

Asked to comment on the request for the delay, Senator Prague said, “Mr. Donovan is, I think, a disgrace to the bar.”

But some lawyers argue that his willingness to stand by Mr. Komisarjevsky upholds the highest traditions of their profession.

Diane Polan, a New Haven defense lawyer who tried a murder case with Mr. Donovan a few years ago, said many lawyers recognized the challenges he faced when he agreed days after the crime to step into the Cheshire case. “There were a lot of people,” she said, “who wouldn’t touch that case.”

    Defense Tack in Family Killings Promises More Harrowing Jolts, NYT, 29.8.2011,
    http://www.nytimes.com/2011/08/30/nyregion/signs-of-provocative-defense-in-cheshire-triple-murder-case.html

Money Is Now at Fore of Strauss-Kahn Case

August 24, 2011
The New York Times
By JOHN ELIGON

When Dominique Strauss-Kahn was arrested more than three months ago on sexual assault charges, the sensational accusations carried an intriguing subplot: money.

Some asked whether Mr. Strauss-Kahn would find a way to pay off the woman who accused him of sexual assault. Others wondered whether the woman, Nafissatou Diallo, was trying to exploit the wealth of Mr. Strauss-Kahn, a former managing director of the International Monetary Fund.

Now, with the criminal charges dismissed against Mr. Strauss-Kahn at the prosecution’s request, money has become the central theme in the story.

Ms. Diallo, 33, filed a lawsuit against Mr. Strauss-Kahn, 62, this month, seeking unspecified monetary damages. It seems clear that the criminal case, in which her credibility was damaged, will have some impact on the civil lawsuit, which was filed in State Supreme Court in the Bronx.

But several lawyers said that the burden of proof was much lower in a civil case. Criminal prosecutors must prove guilt beyond a reasonable doubt, while the plaintiffs in civil cases must prove it by a preponderance of the evidence.

“If you take the evidence and look at it as if it were on a scale, and it appears to be even, and add one feather to one side and it slightly tilts,” said Michael G. Dowd, a lawyer who regularly handles civil cases involving sexual abuse, “that’s a preponderance of the evidence.”

Kenneth P. Thompson, one of Ms. Diallo’s lawyers, said their advantages in the civil case included being able to compel Mr. Strauss-Kahn to give his account of what went on inside the Sofitel New York suite in May, and subpoenaing other witnesses and evidence.

“Now with the civil case we are determined to make sure that the truth about what happened in that hotel room gets out,” Mr. Thompson said.

Still, the matter of Ms. Diallo’s weakened credibility must be overcome.

In asking to drop the charges against Mr. Strauss-Kahn, the office of Cyrus R. Vance Jr., the Manhattan district attorney, said Ms. Diallo consistently lied to investigators about matters in her personal life and background. While prosecutors said that there was evidence of a sexual encounter, Ms. Diallo’s repeated lies prevented them from accepting her story that Mr. Strauss-Kahn tried to rape her and forced her to perform oral sex.

Benjamin Brafman, who is representing Mr. Strauss-Kahn along with William W. Taylor III, said he believed that the civil case would suffer because of Ms. Diallo’s damaged credibility.

“I doubt very highly that any jury in any forum is going to find her to be trustworthy or credible, including a Bronx jury,” Mr. Brafman said. “And to suggest otherwise would be offensive to the people of Bronx County.”

Although the prosecution’s findings that Ms. Diallo was not credible may not be admissible in the civil case, other lawyers agreed that the information could sway potential jurors.

“I think any civil lawyer, because of the high visibility of this case, they’re going to see this as a major problem,” Mr. Dowd said.

Most civil cases end in settlement, but it remained unclear whether this case would go to trial. One thing that could push Mr. Strauss-Kahn to settle is the threat of embarrassing details of his sexual history being revealed in court, lawyers said.

Mr. Taylor has said that the defense was considering trying to move the civil case to federal court in Manhattan. The conventional wisdom among legal experts is that such a move would give Mr. Strauss-Kahn a more favorable jury pool, because Bronx jurors may tend to side with the working-class immigrant woman over the wealthy French banker.

But one disadvantage for the defense of moving the case to federal court is that federal laws are more flexible in allowing prior, unrelated accusations of sexual misconduct to be entered as evidence, said Stephen Gillers, a professor at New York University Law School. That means that the testimony of other women who claimed that Mr. Strauss-Kahn sexually assaulted them may be permissible in a civil case in federal court. He is now facing an inquiry in France, brought about by the complaint of a woman who says he tried to rape her in 2003.

Still, the federal judges do have the discretion to exclude such evidence, Professor Gillers said. And Mr. Strauss-Kahn’s lawyers could argue that the case should follow state laws and rules because the allegation of sexual assault is a state crime.

Ms. Diallo may also have other outstanding legal issues.

Prosecutors have said that she lied to the grand jury, but a law enforcement official said it was unlikely that prosecutors would charge her with perjury.

Ms. Diallo also admitted to lying on her application for asylum, prosecutors said. While officials with Immigration and Customs Enforcement could not comment on whether there was an investigation, they said the agency “has the responsibility to investigate potential cases of immigration and benefit fraud.”

Mr. Thompson declined to comment on Ms. Diallo’s immigration status.

 

William K. Rashbaum contributed reporting.

    Money Is Now at Fore of Strauss-Kahn Case, NYT, 24.8.2011,
    http://www.nytimes.com/2011/08/25/nyregion/money-is-now-at-the-fore-of-strauss-kahn-case.html

Addressing the Justice Gap

August 23, 2011
The New York Times


Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.

In civil proceedings like divorces, child support cases, home foreclosures, bankruptcies and landlord-tenant disputes, the number of people representing themselves in court has soared since the economy soured. Experts estimate that four-fifths of low-income people have no access to a lawyer when they need one. Research shows that litigants representing themselves often fare less well than those with lawyers. This “justice gap” falls heavily on the poor, particularly in overburdened state courts.

There is plenty the government, the legal profession and others can do to improve this shameful state of affairs. With the economic downturn, only around two-thirds of law school graduates in 2010 got jobs for which a law degree is required, the lowest rate since 1996. That leaves the other third — close to 15,000 lawyers — who, with financial support from government and the legal profession, could be using their legal expertise to help some of those who need representation.

While the Constitution requires that defendants in criminal cases be provided a lawyer, there is no such guarantee in civil cases. The Legal Services Corporation, created by Congress, gives out federal grants that provide the bulk of support for legal aid to the poor. Over the decades, that budget has shrunk — it was $404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. The House Appropriations Committee has proposed reducing that to $300 million for 2012. The cut would be devastating; the budget should, instead, be increased.

Half of the people who seek help from legal aid offices are already turned away. Some offices are so understaffed that they must engage in triage, so that in, say, domestic abuse cases, they will only assist someone seeking a restraining order against a violent partner if that person is in immediate danger of being hurt again.

State bar associations could help address these needs by requiring lawyers to report their pro bono service — such disclosure would likely increase many lawyers’ service to the recommended 3 percent to 5 percent of their paid work. Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.

Legal education must also change. The Carnegie foundation recommends that all law students be given experience in public advocacy, of which providing legal services is one kind. At the same time, law schools should expand loan forgiveness programs for legal services lawyers. A few have such programs, but most schools do not — and not enough schools view tuition as a source to help support future legal-services lawyers.

The justice gap is widening. Government, law schools and the profession need to work together to redesign and fortify the grossly deficient legal services system.

    Addressing the Justice Gap, NYT, 23.8.2011,
    http://www.nytimes.com/2011/08/24/opinion/addressing-the-justice-gap.html

District Attorney Asks Judge to Drop Strauss-Kahn Case

August 22, 2011
The New York Times
By WILLIAM K. RASHBAUM and JOHN ELIGON

Prosecutors from the Manhattan district attorney’s office formally moved on Monday to dismiss the three-month-old sexual assault case against Dominique Strauss-Kahn, filing a 25-page motion that serves as their intricate and devastating anatomy of a case collapsing.

The document laid out how prosecutors went from characterizing Mr. Strauss-Kahn’s accuser as a credible woman whose account was “unwavering” to one who was “persistently, and at times inexplicably, untruthful in describing matters of both great and small significance.” Because eventually prosecutors could no longer believe her, they wrote, they could not ask a jury to do so.

Prosecutors said they had accumulated enough evidence to show that Mr. Strauss-Kahn, who was managing director of the International Monetary Fund at the time of his arrest, “engaged in a hurried sexual encounter” with his accuser, a housekeeper at the Sofitel New York, a hotel near Times Square.

Because none of the evidence established force or a lack of consent, the motion said, the case would hinge on the testimony of the woman, Nafissatou Diallo.

Ms. Diallo’s account of what happened during and after the alleged assault began to develop inconsistencies, however. Even more troubling to prosecutors was what they said was a “pattern of untruthfulness” about her past.

That included a convincingly delivered story of being gang raped by soldiers in her native Guinea; she later acknowledged that she had fabricated the story, and prosecutors characterized her ability to recount a fictionalized sexual assault with complete conviction as being “fatal” to her credibility.

Another issue was that she had denied that she was interested in making money from the case, despite a recorded conversation that prosecutors said captured her discussing just that with her fiancé, a detainee in an immigration jail in Arizona, shortly after the encounter in the hotel.

The document, filed in State Supreme Court in Manhattan, asks Justice Michael J. Obus to dismiss the seven-count indictment against Mr. Strauss-Kahn. Justice Obus is expected to comply with the request on Tuesday.

The recommendation for dismissal also, in practical terms, ends a tumultuous relationship between the office of the district attorney, Cyrus R. Vance Jr., and Ms. Diallo, a 33-year-old immigrant who said Mr. Strauss-Kahn, 62, attacked her when she went to clean his suite.

Her lawyer, Kenneth P. Thompson, said the motion was “a hatchet job on Ms. Diallo’s credibility.”

“The prosecutors have basically adopted the defense arguments,” he said. “They appear to bend over backwards to try to excuse their decision to run away from this case.”

Mr. Strauss-Kahn’s lawyers, William W. Taylor III and Benjamin Brafman, said in a statement that they had maintained that their client was innocent. “We also maintained that there were many reasons to believe that Mr. Strauss-Kahn’s accuser was not credible,” the statement said. “Mr. Strauss-Kahn and his family are grateful that the district attorney’s office took our concerns seriously and concluded on its own that this case cannot proceed further.”

The prosecutors’ treatise on the case seemed meant for an audience beyond Justice Obus. The case has attracted worldwide attention, largely because of Mr. Strauss-Kahn’s stature, as the leader of the fund and the front-runner for the Socialist nomination for French president, and the lurid story line of a privileged man being accused of taking advantage of a hotel housekeeper.

In laying out the circumstances in such detail, Mr. Vance also was giving a domestic audience, including Manhattan voters, an explanation for his decision. He may also have sought to address criticism from black leaders and women’s groups that he should proceed to trial.

In the document, prosecutors say they do not necessarily shy away from using as a witness someone who has lied or committed crimes in the past.

But they said “the nature and number of the complainant’s falsehoods leave us unable to credit her version of events beyond a reasonable doubt, whatever the truth may be about the encounter” at the hotel.

“If we do not believe her beyond a reasonable doubt,” they added, “we cannot ask a jury to do so.”

Indeed, in a footnote, the assistant district attorneys handling the case, Joan Illuzzi-Orbon and John McConnell, wrote that the motion explained the basis for their request that the charges be dismissed, but made no factual findings.

“Rather,” they said, “we simply no longer have confidence beyond a reasonable doubt that the defendant is guilty.”

The motion noted the lack of physical and medical evidence to support a claim of a forcible or nonconsensual attack. Ms. Diallo and Mr. Strauss-Kahn did not have the other’s DNA underneath their fingernails; its presence could have supported the notion of a struggle. Prosecutors also said that presenting the case to a jury, despite their own growing doubts, would violate the custom in their office: that prosecutors must themselves be convinced of a defendant’s guilt before bringing a case to trial.

Ms. Illuzzi-Orbon, Mr. McConnell and a third prosecutor, Ann Prunty, met with Ms. Diallo and Mr. Thompson on Monday afternoon to inform them of the decision to drop the case. The meeting lasted 20 or 30 seconds, and the prosecutors accused her of lying but would not answer her questions, Mr. Thompson said.

He immediately held a news conference, saying Mr. Vance had denied the right of a woman to get justice in a rape case.

Mr. Thompson has filed a lawsuit for Ms. Diallo against Mr. Strauss-Kahn, seeking unspecified damages. He also filed a motion on Monday seeking the appointment of a special prosecutor in the case.

Mr. Vance’s office has come under some criticism for the decision shortly after Mr. Strauss-Kahn’s arrest on May 14 to reject an agreement that would have freed him on bail and allowed them more time to investigate, and to learn more about Ms. Diallo, before bringing an indictment.

While that more deliberative course might have had the same ultimate result, it could have helped avoid the early pronouncements that she was credible and “unwavering.”

The new motion shed no light on the bail decision.

After the brief meeting between prosecutors and the accuser’s team, a chaotic scene unfolded outside, with reporters and onlookers mixing with representatives from women’s groups and elected officials.

Sonia Ossorio, the executive director of the New York City chapter of the National Organization for Women, said Ms. Diallo had presented a complicated case that had been “mishandled by many people, including the victim’s lawyer.” But she said, “The prospect of Dominique Strauss-Kahn simply walking away scot-free is appalling.”

Reaction in France to the news on Monday was mixed, with many expressing pleasure with Mr. Vance’s decision but noting that Mr. Strauss-Kahn’s reputation had been damaged, especially among female voters.

Mr. Strauss-Kahn faces another investigation in France. A writer, Tristane Banon, claims he attempted to rape her in 2003. French prosecutors are investigating the charge.

 

Steven Erlanger contributed reporting from Paris,
and Jim Dwyer and Colin Moynihan from New York.

    District Attorney Asks Judge to Drop Strauss-Kahn Case, NYT, 22.8.2011,
    http://www.nytimes.com/2011/08/23/nyregion/strauss-kahn-case-should-be-dropped-prosecutors-say.html

A Study in Judicial Dysfunction

August 19, 2011
The New York Times

Harsh state judicial campaigns financed by ever larger amounts of special interest money are eating away at public faith in judicial impartiality. There are few places where the spectacle is more shameful than Wisconsin, where over-the-top campaigning, self-interested rulings, and a complete breakdown of courthouse collegiality and ethics is destroying trust in its Supreme Court.

On Monday, a special prosecutor was named to investigate an altercation between two justices on opposite sides of the court’s bitter ideological divide. Ann Walsh Bradley, a member of the court’s liberal wing, has charged that David Prosser, a conservative, put her in a chokehold during a heated exchange shortly before the court upheld the new state law eliminating most collective-bargaining rights for public employees.

Justice Prosser has disputed Justice Bradley’s version of what occurred, and the facts remain unclear. What is certain is that Justice Prosser should have recused himself from that ruling. His vote to uphold the law occurred shortly after his re-election campaign in which he benefited from heavy anti-union independent spending.

Justice Prosser won the April election by a very small margin, prompting a recount. The Milwaukee Journal Sentinel reported that he then raised more than $270,000 for the recount, much of it in $50,000 chunks. (The contribution limits that apply under Wisconsin’s public financing system for judicial races do not extend to recounts.) Some $75,000 of the haul was used to pay fees to a law firm led by an attorney representing conservative groups in a case challenging state campaign disclosure rules, which is scheduled to be heard by the court next month.

Given the lawyer’s role in Justice Prosser’s recent recount success, a reasonable person might well question the judge’s impartiality on that case, too. After first saying he had no intention of recusing himself, Justice Prosser on Thursday asked the parties in the campaign finance case to file memos stating their views about recusal. It should not take a formal request for him to step aside.

A contentious 4-to-3 decision by the court last month declared recusal decisions by the justices to be unreviewable. In another sign of the court’s dysfunction, the deciding vote came from Justice Patience Roggensack, whose involvement in an earlier case was the subject of the disqualification motion that the court was reviewing. Like the ruling itself, Justice Roggensack’s participation in judging her own conduct showed astounding disregard for legal ethics and every litigant’s right to impartial justice. The problems don’t even stop there. A year ago, by another 4-to-3 vote along ideological lines, the court weakened the recusal standard by adopting a rule saying that campaign fund-raising or expenditures can never be the sole basis for a judge’s disqualification. The rule was largely written by a business group that has spent lavishly in judicial campaigns.

Members of Wisconsin’s top court need to focus on restoring civility and public trust. For starters, they should scrap last year’s decision on campaign money in favor of strict disclosure requirements for lawyers and litigants. They should also adopt an appeals process for recusals, so the final decision is no longer left to the judge whose impartiality is being questioned. The court’s credibility, and justice in Wisconsin, are on the line.

    A Study in Judicial Dysfunction, NYT, 19.8.2011,
    http://www.nytimes.com/2011/08/20/opinion/a-study-in-judicial-dysfuntion.html

Deal Frees ‘West Memphis Three’ in Arkansas

August 19, 2011
The New York Times
By CAMPBELL ROBERTSON

JONESBORO, Ark. — Three men convicted of killing three 8-year-old boys in a notorious 1993 murder case were freed from jail on Friday, after a complicated legal maneuver that allowed them to maintain their innocence while acknowledging that prosecutors had enough evidence to convict them.

A district court judge declared that the three men — Damien W. Echols, 36, Jason Baldwin, 34, and Jessie Misskelley Jr., 36, known as the West Memphis Three — who have been in prison since their arrest in 1993, had served the time for their crime. The judge also levied a 10-year suspended sentence on each of the men.

With his release Friday, Mr. Echols became the highest-profile death row inmate to be released in recent memory.

The agreement, known as an Alford plea, does not result in a full exoneration; some of the convictions stand, though the men did not admit guilt. The deal came five months before a scheduled hearing was to be held to determine whether the men should be granted a new trial in light of DNA evidence that surfaced in the past few years. None of their DNA has been found in tests of evidence at the scene. The Arkansas Supreme Court ordered the new hearing in November, giving new life to efforts to exonerate the three men.

In May 1993, the bodies of the boys, Christopher Byers, Steve Branch and James Michael Moore, were found in a drainage ditch in a wooded area of West Memphis, Ark., called Robin Hood Hills. The bodies appeared to have been mutilated, their hands tied to their feet.

The grotesque nature of the murders led to a theory about satanic cult activity. Investigators focused their attention on Mr. Echols, at the time a troubled yet gifted teenager who practiced Wicca, a rarity in the town of West Memphis. Efforts to learn more about him, spearheaded by a single mother cooperating with the police, led to Mr. Misskelley, a passing acquaintance of Mr. Echols, who has an I.Q. in the low 70s.

After a nearly 12-hour interrogation by the police, Mr. Misskelley confessed to the murders and implicated Mr. Echols and Mr. Baldwin, though his confession diverged in significant details with the facts of the crime known by the police.

Largely on the strength of that confession, Mr. Misskelley was convicted in February 1994. Mr. Echols and Mr. Baldwin were convicted soon after in a separate trial, largely on the testimony of witnesses who said they heard the teenagers talk of the murders and on the prosecution’s theory that the defendants had been motivated as members of a satanic cult. Mr. Misskelley’s confession was not admitted at their trial, though recently a former lawyer for the jury foreman filed an affidavit saying that the foreman, determined to convict, had brought the confession up in deliberations to sway undecided jurors.

An award-winning documentary, “Paradise Lost: The Child Murders at Robin Hood Hills,” was released after their convictions, bringing them national attention. Benefit concerts were held, books were written, a follow-up documentary was made and the men’s supporters continued to pursue their freedom. Many residents of West Memphis resented the presumption that outsiders knew the details of the horrific case better than they did. But in recent years some, though not all, of the victims’ families have begun to doubt the guilt of the three men.

    Deal Frees ‘West Memphis Three’ in Arkansas, NYT, 19.8.2011,
    http://www.nytimes.com/2011/08/20/us/20arkansas.html

Husband Is Charged in Wife’s Killing in New Jersey

August 19, 2011
The New York Times
By JAMES BARRON and TIM STELLOH

The husband of a 27-year-old woman who was gunned down Tuesday night as they walked to their car in Boonton, N.J., has been arrested and charged with murder, the Morris County prosecutor said on Friday.

The prosecutor, Robert Bianchi, said that a second suspect, arrested in Boston, had also been charged in the death of the woman, Nazish Noorani, an emergency medical worker. That suspect, identified as Antoinette Stephen, 26, was being held on $5 million bail and was waiting to be extradited, Mr. Bianchi said at a news conference.

Mr. Bianchi said “there’s obviously a relationship” between Ms. Stephen and Ms. Noorani’s husband, Kashif Parvaiz, 26, who was also wounded in the shooting. Mr. Bianchi said that investigators were working to pin down the nature of the relationship, adding, “I’m not saying it’s physical, that they’re girlfriend, boyfriend.”

According to a police arrest report, Mr. Parvaiz admitted that he had been involved in the shooting. In the report, Mr. Parvaiz is said to have acknowledged during questioning by detectives that “there were issues in his marriage and that he was angry at his wife, the victim, for allegedly speaking negatively about his family.”

Mr. Parvaiz was hospitalized after the shooting, and prosecutors declined to say where he was on Friday, citing concerns for his safety.

The report said that Ms. Noorani had recently sent a text message to her brother that said, “He abuses me ... I’m so tired of this ... Someday U will find me dead, but it’s cuz of Kashi ... he wants to kill me.”

Mr. Bianchi said at the news conference that Mr. Parvaiz’s account of the incident had “changed considerably” in the days since the shooting. The arrest report said that Mr. Parvaiz first told the police that he and Ms. Noorani had been shot by three men who were shouting slurs about “terrorists.”

Mr. Parvaiz maintained that one of the men was black and another was white, according to the arrest report, adding that Mr. Parvaiz had told investigators he did not know the third assailant’s race. Mr. Parvaiz said two of the three were armed. Mr. Parvaiz said they ran off after firing at him and Ms. Noorani, Mr. Bianchi said.

Investigators concluded within hours that this version of events was not true, the prosecutor said.

According to the arrest report, Mr. Parvaiz eventually admitted to meeting Ms. Stephen and to “having contracted” with her to kill Ms. Noorani. The report did not spell out whether Mr. Parvaiz had promised to pay Ms. Stephen. Nor did it make clear how Mr. Parvaiz and Ms. Stephen had met.

The report said that Mr. Parvaiz had described telling Ms. Stephen about turbulence in his marriage and that Ms. Stephen promised to “think of something” to deal with the situation.

They agreed, according to the report, that Mr. Parvaiz “would go out for a walk with the victim” and that Ms. Stephen “would kill the victim and wound the suspect.”

The walk took Mr. Parvaiz and Ms. Noorani from her sister’s house — where Ms. Noorani had broken her daytime Ramadan fast — to her father’s house a few blocks away. Mr. Parvaiz’s car was parked there, and he had left his laptop computer inside. They left their 5-year-old son with Ms. Noorani’s sister, Lubna Choudhry. They took their 3-year-old son and a sister with them.

Ms. Choudhry said she heard noises in the street a few minutes later — noises she at first figured were fireworks. But when she ran outside, she found her sister, dead.

From the beginning, Mr. Bianchi seemed to rule out the possibility that the shooting had been either random or accidental. On Wednesday, he issued a statement that said it had been “target specific,” adding, “There is not a continuing danger to the public at large.” But he did not say who the target had been — Ms. Noorani, Mr. Parvaiz or both.

Later, investigators towed Mr. Parvaiz’s car from his father-in-law’s house, and detectives huddled outside his own father’s home in Brooklyn, where Mr. Parvaiz had run a contracting business.

On Thursday, conflicting stories emerged about Mr. Parvaiz, who grew up in Brooklyn and lived with Ms. Noorani in East Boston, Massachusetts. He had told relatives that he was studying in a doctoral program at Harvard, but a Harvard spokesman said it had no record that he had been a student.

    Husband Is Charged in Wife’s Killing in New Jersey, NYT, 19.8.2011,
    http://www.nytimes.com/2011/08/20/nyregion/husband-is-charged-in-wifes-killing-in-new-jersey.html

Threadbare American Justice

August 17, 2011
The New York Times


It is an American article of faith that the path to justice runs through the courts. State courts, which handle a vast majority of civil and criminal cases, are in a state of crisis. Across the country, deep budget cuts and increased caseloads have created long delays and a denial of basic access to justice.

More than 48 million cases, excluding traffic cases, were filed in state courts in 2008. Since then, courts have been flooded with thousands of new foreclosures, credit card cases and other lawsuits driven by economic hardship. At the same time, the recession and the deepening budget crunch have led states to lay off judges, law clerks and other courthouse personnel, which means longer waits for trials and delays even for recording judgments so that cases can be resolved.

Swamped by this huge docket, no state court system now delivers justice as it needs to. In Massachusetts, budget cuts have drastically reduced the number of court-appointed guardians for children who need to have their legal interests represented. In Oregon, cuts have reduced critical support staff, slowing the processing of cases. And these are two of the best-run systems in the country.

An American Bar Association task force led by David Boies and Theodore Olson, the former solicitor general, took on this issue in a valuable report issued last week, called “Crisis in the Courts: Defining the Problem.”

The report rightly says that “even the most eloquent constitution is worthless with no one to enforce it.” As they cut spending on the courts, state legislatures are degrading public safety by delaying the resolution of criminal cases; hurting vulnerable populations like children and the elderly, who need the courts’ protection; and damaging our system of government by weakening the judiciary, a separate and co-equal branch.

The courts in Georgia, the report says, have seen their financing shrink by 25 percent the last two years, so their budget (which also pays for prosecutors) now constitutes less than 1 percent of the state’s overall budget. Most state systems have had significant cuts in the past three years.

The report offers some worthy recommendations that could help provide adequate budgets and increase alternative ways to resolve conflicts. For instance, it calls on states to adopt judicial financing formulas that recognize changes in caseloads. Without these and other reforms, access to justice will continue to contract.

Even this sober report barely begins to convey to national and state policy makers how much cuts to the judiciary have harmed individuals and democracy. As budget-starved courts become more dysfunctional, they lose the confidence of the public, which counts on them for relief, adding to the institutional crisis.

These courts may continue to process cases, but they will be less and less able to deliver justice.

    Threadbare American Justice, NYT, 17.8.2011,
    http://www.nytimes.com/2011/08/18/opinion/threadbare-american-justice.html

Polygamist Leader Gets Life in Prison for Assault

August 9, 2011
The New York Times
By THE ASSOCIATED PRESS

SAN ANGELO, Texas (AP) — Polygamist leader Warren Jeffs was sentenced to life in prison on Tuesday for sexually assaulting an underage follower he took as a bride in what his church deemed a "spiritual marriage."

The head of the Fundamentalist Church of Jesus Christ of Latter Day Saints also received a 20-year sentence for the sexual assault of a 15-year-old girl.

He stood quietly Tuesday as the decision of the Texas jury was read, giving him the maximum sentence on both counts. They are to be served consecutively. Texas Department of Criminal Justice spokesman Jason Clark said the 55-year-old will be eligible for parole in 35 years.

Prosecutors had asked the jury for the life sentence after presenting their painstaking and sometimes graphic case, and rejected Jeffs' contention that he was being persecuted for his religious beliefs.

"The evidence in this case shows that this isn't a prosecution of a people," prosecutor Eric Nichols said in his closing argument. "This is a prosecution to protect people."

During the trial, prosecutors used DNA evidence to show Jeffs fathered a child with the 15-year-old and played an audio recording of what they said was him sexually assaulting the 12-year-old.

Jeffs, who had insisted on acting as his own attorney during the earlier part of the trial, was convicted Thursday.

He asked to be excused under protest during the sentencing phase, which ended Tuesday with him refusing to answer when the judge asked if he wanted to make a closing statement. A defense attorney told the judge Jeffs had instructed his attorneys not to speak for him.

Jurors deliberated less than half an hour.

During the trial, prosecutors played other tapes in which Jeffs was heard instructing as many as a dozen of his young wives on how to please him sexually — and thus, he told them, please God.

"If the world knew what I was doing, they would hang me from the highest tree," Jeffs wrote in 2005, according to one of thousands of pages of notes seized along with the audio recordings from his Texas ranch.

Nichols referred to that in his closing.

"No, Mr. Jeffs, unlike what you wrote in your priesthood records ... we don't hang convicts anymore from the highest tree. Not even child molesters," Nichols said.

Jeffs claimed his religious rights were being violated. Representing himself after burning through seven high-powered attorneys, he routinely interrupted the proceedings and chose to stand silently in front of jurors for nearly half an hour during his closing arguments. He called just one defense witness, a church elder who read from Mormon scripture.

The Fundamentalist Church of Jesus Christ of Latter Day Saints, a radical offshoot of mainstream Mormonism that believes polygamy brings exaltation in heaven, has more than 10,000 followers who consider Jeffs to be God's spokesman on Earth.

He spent years evading arrest — crisscrossing the country as a fugitive who eventually made the FBI's Ten Most Wanted list before his capture in 2006, said Nichols.

Several former members of the church testified that Jeffs ruled the group with a heavy and abusive hand. Jeffs also allegedly excommunicated 60 church members he saw as a threat to his leadership, breaking up 300 families while stripping them of property and "reassigning" wives and children.

In an audiotape played during the sentencing phase, Jeffs was heard softly telling five young girls to "set aside all your inhibitions" as he gave them instructions on how to please him sexually. Jeffs is heard telling the girls that what "the five of you are about to do is important."

Prosecutors suggested that the polygamist leader told the girls they needed to have sex with him — in what Jeffs called "heavenly" or "celestial" sessions — in order to atone for sins in his community. Several times in his journals, Jeffs wrote of God telling him to take more and more young girls as brides "who can be worked with and easily taught."

FBI agent John Broadway testified that fathers who gave their young daughters to Jeffs were rewarded with young brides of their own. Girls who proved reluctant to have sex with Jeffs were sent away, according to excerpts from Jeffs' journals that prosecutors showed to the jury.

Police raided the group's remote West Texas ranch in April 2008, finding women dressed in frontier-style dresses and hairdos from the 19th century as well as seeing underage girls who were clearly pregnant. The call to an abuse hotline that spurred the raid turned out to be a hoax, and more than 400 children who had been placed in protective custody were eventually returned to their families.

Jeffs is the eighth FLDS man convicted since the raid on Yearning For Zion, in the town of Eldorado, 45 miles south of San Angelo. Previous sentences ranged from six to 75 years in prison.

The church's traditional headquarters is along the Utah-Arizona border, but it established the Texas compound in 2004. Jeffs once faced criminal charges in Arizona and was convicted of accessory to rape in Utah in 2007. But that was overturned by the state Supreme Court and he was extradited to Texas in December.

Willie Jessop, a former FLDS spokesman, who railed against the raid but has since disavowed Jeffs, said the first priority of the church would be tearing down the guard tower and the gate at the ranch.

    Polygamist Leader Gets Life in Prison for Assault, NYT, 9.8.2011,
    http://www.nytimes.com/aponline/2011/08/09/us/AP-US-Polygamist-Leader.html

After Budget Cuts,

Defendants’ Wait to See a Judge Often Exceeds 24 Hours

July 19, 2011
The New York Times
By JOSEPH GOLDSTEIN

In Brooklyn, a night in jail often lasts longer than one night. Sometimes it can drag out over two or even three nights.

Last month, the city’s criminal courts reduced their weekend hours, shortening shifts in response to state budget cuts. Court officials promised to monitor the dockets “hour by hour and day by day” to ensure that prisoners were arraigned promptly.

But the result has been what defense lawyers feared: People arrested may wait for days before appearing in front of a judge, particularly in Brooklyn Criminal Court, which handles the highest volume of arraignments.

State law requires that the authorities bring defendants before a judge “without unnecessary delay,” which the state’s highest court has interpreted to mean 24 hours under normal conditions.

But in Brooklyn, many defendants arrested on relatively minor charges are waiting far longer. The backlog grows on weekends, when arrest numbers climb and the courts scale back their hours.

Andre Parker, 45, a construction worker, was arrested Friday evening for tossing a lottery ticket to the ground and then refusing a police officer’s order to pick it up or show his identification, according to the officer’s account. Mr. Parker said he was not arraigned until Sunday afternoon. While waiting in a holding cell in the courthouse, another person “was throwing up blood,” Mr. Parker said.

When Mr. Parker was finally arraigned, the judge said his case would be dismissed if he stayed out of trouble for six months, a common disposition for low-level offenses.

“It took me three days,” Mr. Parker said of the time he spent waiting to see a judge. “It was ridiculous.”

On Tuesday, court officials pledged to add more hours to weekend shifts to increase the number of arraignments in Brooklyn Criminal Court. “We recognize that it was certainly not acceptable to continue on the current path,” David Bookstaver, a spokesman for the state’s Office of Court Administration, said.

On average, the time between arrest and arraignment in Brooklyn during recent weekends was just under 31 hours, according to statistics provided by the mayor’s office. Last summer, before the courts reduced their hours, the average time was just over 24 hours on the same weekends.

By Monday morning, 170 of the 292 defendants waiting to see a judge in Brooklyn Criminal Court had been arrested more than 24 hours earlier, according to statistics provided by the Legal Aid Society. Some had been arrested on Friday.

“People shouldn’t be spending two or three days in jail” waiting to see a judge, the mayor’s criminal justice coordinator, John Feinblatt, said in an interview.

Mr. Feinblatt has been urging the court system since last month to schedule more time for arraignments.

“It’s not working,” he said of the courts’ reduced hours. “We’re left reaching the obvious conclusion that we need to go back to a schedule that we had before so that we can meet our legal obligations.”

Mr. Feinblatt added that the problem was not confined to Brooklyn.

“We’re seeing problems elsewhere, as well,” he said. The average arrest-to-arraignment time on the weekend in all city courts was just over 26 hours.

Legal Aid lawyers said that abiding by the 24-hour arrest-to-arraignment time limit was especially important in light of the large number of people arrested for minor infractions that rarely result in prosecutors’ seeking jail time. In one recent week, 294 people arraigned in Brooklyn Criminal Court had their cases immediately dismissed or were given adjournments in contemplation of dismissal, meaning their cases, like Mr. Parker’s, would be dismissed if they stayed out of trouble for six months, according to statistics provided by Legal Aid.

In such cases, each day spent waiting in jail is one more day of incarceration than the judge would have imposed.

“A lot of these people should never even spend an hour in central booking,” said one lawyer, Julie Fry, who is vice president of the Brooklyn division of the union representing Legal Aid lawyers.

In many instances, the police can decide whether to send someone they arrested before a judge or to issue the person a court summons called a desk-appearance ticket, thereby freeing the person after several hours of arrest.

In police slang, the tickets are dismissively referred to as “disappearance tickets” because of the risk that the recipients will not show up for their court dates. In Brooklyn, the number of desk-appearance tickets issued rose 39.5 percent between 2009 and 2010, according to statistics provided by the mayor’s office.

 

Noah Rosenberg contributed reporting.

    After Budget Cuts, Defendants’ Wait to See a Judge Often Exceeds 24 Hours, NYT, 19.7.2011,
    http://www.nytimes.com/2011/07/20/nyregion/new-york-budget-cuts-lead-to-longer-waits-for-arraignment.html

Software Designer Reports Error in Anthony Trial

July 18, 2011
The New York Times
By LIZETTE ALVAREZ

MIAMI — Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

According to Mr. Bradley, chief software developer of CacheBack, used by the police to verify the computer searches, the term “chloroform” was searched once through Google. The Google search then led to a Web site, sci-spot.com, that was visited only once, Mr. Bradley added. The Web site offered information on the use of chloroform in the 1800s.

The Orange County Sheriff’s Office had used the software to validate its finding that Ms. Anthony had searched for information about chloroform 84 times, a conclusion that Mr. Bradley says turned out to be wrong. Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.

Mr. Bradley’s findings were not presented to the jury and the record was never corrected, he said. Prosecutors are required to reveal all information that is exculpatory to the defense.

“I gave the police everything they needed to present a new report,” Mr. Bradley said. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of accessibility to the data.”

Mr. Bradley, chief executive of Siquest, a Canadian company, said he even volunteered to fly to Orlando at his own expense to show them the findings.

Cheney Mason, one of Ms. Anthony’s defense lawyers, said it was “outrageous” that prosecutors withheld critical information on the “chloroform” searches.

“The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.”

“This was a major part of their case,” Mr. Mason added.

The State Attorney’s Office in Orlando did not return messages seeking comment.

Capt. Angelo Nieves, media relations commander for the Orange County Sheriff’s Office, said Mr. Bradley had a vested interest in coming forward since his software was used in the investigation.

“We’re not going to relive the trial again,” Captain Nieves said. “We are not prepared to do that nor are we going to participate in that.”

A former Canadian police sergeant who specializes in computer forensic analysis, Mr. Bradley said he first became suspicious of the data after he testified on June 8. He said he had been called to testify by the prosecution about his CacheBack software. Instead, he was asked repeatedly about the Sheriff’s Office report detailing the 84 search hits on “chloroform,” which he had not seen.

“I had translated the data into something meaningful for the police,” he said. “Then I turned it over to them. The No. 1 principle for them is to validate the data, and they had the tools and resources to do it. They chose not to.”

Soon after giving testimony, Mr. Bradley learned during the defense portion of the case that the police had written a first report in August 2008 detailing Ms. Anthony’s history of Internet searches. That report used NetAnalysis, a different software.

Despite his appearance as a witness, Mr. Bradley said he was never told about that first report either by the police, with whom he had been in contact, or the prosecution.

Of the search results in both reports relating to chloroform, only one hit was found for sci-spot.com. That site was visited once, according to NetAnalysis, and visited 84 times, according to the CacheBack analysis.

Concerned that the analysis using CacheBack could be wrong and that a woman’s life might be at stake, Mr. Bradley went back to the drawing board and redesigned a portion of his software to get a more accurate picture.

He found both reports were inaccurate (although NetAnalysis came up with the correct result), in part because it appears both types of software had failed to fully decode the entire file, due to its complexity. His more thorough analysis showed that the Web site sci-spot.com was visited only once — not 84 times.

Mr. Bradley, fearing that jurors were being given false information based on his data, contacted the police and the prosecution the weekend of June 25. He asked Sergeant Stenger about the discrepancy, and the sergeant said he was aware of it, Mr. Bradley said. He waited to see if prosecutors would correct the record. They did not.

“They needed to get that right,” Mr. Bradley said.

    Software Designer Reports Error in Anthony Trial, NYT, 18.7.2011,
    http://www.nytimes.com/2011/07/19/us/19casey.html

Casey Anthony Freed From Jail, Slips From View

July 17, 2011
The New york Times
By THE ASSOCIATED PRESS

ORLANDO, Fla. (AP) — Casey Anthony was freed from a Florida jail early Sunday, 12 days after she was acquitted of murder in the death of her 2-year-old daughter Caylee in a verdict that drew furious responses and even threats from people across the U.S. who had followed the case with rapt attention.

Wearing a pink Polo T-shirt and blue jeans, Anthony left the jail at 12:14 a.m. with her attorney, Jose Baez. After three years behind bars, Anthony was given $537.68 in cash from her jail account and escorted outside by two sheriff's deputies armed with semi-automatic rifles. Neither Anthony nor Baez said anything to reporters and protesters gathered outside.

Anthony, looking somber with her eyes cast downward, said "thank you" to a jailer in the few seconds it took to escort her to the waiting SUV.

"It is my hope that Casey Anthony can receive the counseling and treatment she needs to move forward with the rest of her life," Baez said in a statement released to reporters.

News helicopters briefly tracked the SUV through Orlando's streets, but she quickly vanished from public view.

"This release had an unusual amount of security so, therefore, in that sense, it would not be a normal release," Orange County Jail spokesman Allen Moore said. "We have made every effort to not provide any special treatment for her. She's been treated like every other inmate."

Moore said there were no known threats received at the jail. Officials had a number of contingency plans in place, including plans in case shots were fired as she was being released.

After Anthony left the jail, the news helicopters followed the SUV to a covered parking garage at a downtown Orlando office building. The SUV never reemerged and other cars left that area, but it could not be seen if Anthony was in any of them.

A short time later, there was police activity as two vehicles pulled up to a twin-engine private jet at Orlando Executive Airport but no one saw Anthony get out and onto the plane. The news helicopter shots showed only some middle-aged men with luggage and golf travel bags. That plane took off shortly after 1 a.m. Sunday for Ohio, the home state of Anthony's parents.

As midnight approached, upward of 100 spectators had gathered outside the jail's booking and release center, where plastic orange barricades had been erected. The crowd included about a half-dozen, sign-carrying protesters who had gathered despite a drenching thunderstorm earlier. Onlookers had varied reactions to her release from the jail, where seven or eight deputies in bullet-proof vests patrolled the area. At least one officer carried an assault weapon and about five officers patrolled on horseback.

"She is safer in jail than she is out here," said Mike Quiroz, who drove from Miami to spend his 22nd birthday outside the jail. "She better watch her butt. She is known all over the world."

Lamar Jordan said he felt a pit in his stomach when he saw Anthony walking free.

"The fact that she is being let out, the fact that it is her child and she didn't say what happened, made me sick," Jordan said.

Not all of those who gathered condemned the 25-year-old.

"I'm for Casey," said Kizzy Smith, of Orlando. "She was proven innocent. At the end of the day, Caylee is at peace. We're the ones who are in an uproar."

Since her acquittal on murder charges on July 5, Anthony was finishing her four-year sentence for telling investigators several lies, including an early claim that Caylee was kidnapped by a nonexistent nanny. With credit for the nearly three years she's spent in jail since August 2008 and good behavior, she had only days remaining when she was sentenced July 7.

The case drew national attention ever since Caylee was reported missing. Cable network HLN aired the entire trial, with pundit Nancy Grace dissecting the case nightly. Vitriol poured into social networking sites after the acquittal, with observers posting angry messages on Twitter and Facebook's "I Hate Casey Anthony" page.

Outraged lawmakers in several states responded by proposing so-called Caylee's laws that would allow authorities to prosecute parents who don't quickly report missing children. And many still speculate about what really happened to Caylee: Was she suffocated with duct tape by her mother, as prosecutors argued? Or did she drown in an accident that snowballed out of control, as defense attorneys contended?

Now that she is free, it's not clear where Anthony will stay or what she will do next.

Her relationship with her parents, George and Cindy, has been strained since defense attorneys accused George Anthony of molesting Casey when she was young. They also said George Anthony made Caylee's death look like a homicide after the girl accidentally drowned in the family pool.

Caylee's remains were found in December 2008 in woods near the home Casey Anthony shared with her parents. George Anthony has adamantly denied covering up his granddaughter's death or molesting Casey Anthony when she was a child. Baez argued during trial that the alleged abuse resulted in psychological issues that caused her to lie and act without apparent remorse after Caylee's death. But defense attorneys never called witnesses to support their claims.

Prosecutors alleged that Anthony suffocated her daughter with duct tape because motherhood interfered with her desire for a carefree life of partying with friends and spending time with her boyfriend. However, some jurors have told various media outlets that the state didn't prove its case beyond a reasonable doubt as required for a conviction — though some have said they believe she bears some responsibility in the case.

Defense attorneys and sheriff's officials have declined to say where Anthony was headed. What Anthony will do to make a living also remains unknown. Anthony, a high school dropout, hasn't had a job since 2006.

One of her attorneys, Cheney Mason, said Friday that Anthony was scared to leave jail, given the numerous threats on her life and the scorn of a large segment of the public that believes she had something to do with the June 2008 death.

Her attorneys have said she has received numerous threats, including an email with a manipulated photo showing their client with a bullet hole in her forehead.

Security experts have said Anthony will need to hole up inside a safe house protected by bodyguards, perhaps for weeks, given the threats.

Greene also said Friday that Anthony was emotionally unstable and needed "a little breathing room" after her draining two-month trial.

The lies that were the basis of her conviction on the misdemeanor charges began in mid-July 2008, about a month after Caylee was last seen alive. Around the time the girl disappeared, Casey Anthony had begun staying with friends and not with her parents. When Anthony's mother Cindy began asking about Caylee, Anthony told her she was staying with a nanny named Zanny.

In mid-July, George and Cindy Anthony were notified that their car had been impounded after it was abandoned in a check-cashing store's parking lot. When the picked up the car, George Anthony — a former police officer — and the impound lot manager both said it smelled like a dead body had been inside.

Cindy Anthony then tracked down her daughter at a friend's apartment and when she couldn't produce Caylee, called the sheriff's office on July 15, 2008. The court found she lied to investigators about working at the Universal Studios theme park, about leaving her daughter with a nanny, about telling two friends that Caylee had been kidnapped and about receiving a phone call from her.

Mike Silva, 26, a makeup artist from Orlando, came to the jail Saturday night with a friend. Silva said he was surprised how there was not chaos. He said it was probably in her best interested to leave Orlando. "Why would she stay here? Everyone in Orlando knows her damn face."

Tad Campbell, a 50-year-old personal trainer from Orlando is glad the trial is over. But, he added, "I think the general consensus is that she got away with murder."

    Casey Anthony Freed From Jail, Slips From View, NYT, 17.7.2011,
    http://www.nytimes.com/aponline/2011/07/17/us/AP-US-Casey-Anthony.html

Watching a Trial on TV, Discussing It on Twitter

July 5, 2011
The New York Times
By BRIAN STELTER and JENNA WORTHAM

As the lawyers for Casey Anthony gathered at a restaurant in Orlando, Fla., on Tuesday afternoon, two hours after a jury found their client not guilty of killing her daughter, Caylee, the television host Nancy Grace was sequestered in a studio one block away, delivering her own verdict of sorts.

“Now I know it is our duty as American citizens to respect the jury system,” said Ms. Grace, who selected juries in her past life as a prosecutor. “But I know one thing: as the defense sits by and has their champagne toast after that not-guilty verdict, somewhere out there, the devil is dancing tonight.”

Thanks in large part to Ms. Grace and her cable channel, HLN, the viewing public was captivated by Caylee Anthony’s death and Casey Anthony’s trial to a degree that has not been seen in years, even drawing comparisons in some quarters to the O. J. Simpson trial. Thanks to social networking Web sites like Facebook, members of the public reacted to every moment of the televised testimony in real time, driving even more coverage on national morning news programs and on local newscasts.

“The O. J. trial may have had broader media attention; however, social media platforms were not in place at that time, so the collective echo chamber has been unprecedented,” said Brent Idarola, a Frost & Sullivan analyst who follows social media.

The trial, Mr. Idarola said, raised a question of whether “this makes for a good case against cameras in the courtroom.”

Most trial watchers, it seemed, suspected that Ms. Anthony was responsible for her daughter’s death. As the verdicts were read on Tuesday, Facebook, Twitter and other such sites were flooded with reactions from viewers expressing their disbelief and outrage. Some Twitter messages openly wished for Ms. Anthony’s death.

The collective skepticism about her innocence and shock over the verdict all but guarantees that the case will remain fodder for tabloids and traditional media alike. On Tuesday evening, CBS News rushed to complete a prime-time special about the case; ABC News flew Terry Moran, an anchor, and Dan Abrams, a legal analyst, to Orlando in time for “Nightline.”

Ms. Grace has been a guest almost every morning on ABC’s “Good Morning America,” leading the charge against Ms. Anthony, whom she disparagingly calls “Tot Mom.” HLN covered the trial much more extensively than any other channel, and was rewarded with record-level ratings; by July 1, five weeks into the trial, it was garnering 1.2 million viewers at any given time of day, even more than the normally first-place Fox News Channel.

On Tuesday, Ms. Grace bitterly concluded that, “In the end, Tot Mom’s lies seem to have worked.” The channel quickly scheduled a weekend special called “Justice for Caylee.”

James Poniewozik, the media columnist for Time magazine, wrote on Twitter that the lesson of HLN’s trial coverage was a lesson shared by cable news over all: “The reward goes to those who pick a side.”

CNN said that from 2 p.m. to 3 p.m. Tuesday, when the verdict was read, its Web site registered one million live-video users, 30 times as high as the site’s previous four-week average.

Ray Valdes, an analyst with Gartner Research, said the real-time reactions to the trial and the verdict reflected the gradual adoption of the Web as a primary mode of communication throughout the day.

Services like Facebook and Twitter “are the modern-day equivalent of the office cafeteria, a local bar or the coffee shop,” Mr. Valdes said. “Those venues have diminished some in modern times and to some extent been replaced by social media.”

Before the defense lawyers headed to the restaurant, Terrace 390, they criticized what they called the media’s bias against their client.

“I think we should all take this as an opportunity to learn and to realize that you cannot convict someone until they’ve had their day in court,” said the lead lawyer, Jose Baez.

Ms. Grace took offense. The lawyers attacked the media “like we had something to do with it,” she said. “We didn’t have anything to do with it. This was all Tot Mom.”

Ms. Grace then went live outside the restaurant, where another anchor, Jane Velez-Mitchell, interviewed passers-by about their fury at the jury’s decision. Their fury had extended even to the restaurant, which was harangued by online commenters, prompting the posting of a disclaimer on its Twitter account and on its Web site: “We would like to remind everyone that we do not dictate who walks through our doors.”

    Watching a Trial on TV, Discussing It on Twitter, NYT, 5.7.2011,
    http://www.nytimes.com/2011/07/06/business/media/06coverage.html

Casey Anthony Not Guilty in Slaying of Daughter

July 5, 2011
The New York Times
By LIZETTE ALVAREZ

ORLANDO, Fla. — Casey Anthony, the young mother whose seeming heartlessness at the disappearance of her daughter transfixed America for three years, was found not guilty on Tuesday of killing the girl, Caylee Marie.

After nearly six weeks of testimony, a jury of seven women and five men rejected the prosecution’s contention that Ms. Anthony had murdered Caylee, 2, by dosing her with chloroform, suffocating her with duct tape and dumping her body in a wooded area. They did, however, find her guilty of lesser charges of providing false information to law enforcement officers.

In a sign that jurors had little difficulty reaching a verdict, the jury did not ask to review any evidence and reached a decision in fewer than 11 hours. Jurors, who were imported from the Clearwater area and had been sequestered for six weeks, declined to talk with reporters and returned home to Pinellas County.

When the verdict was read, Ms. Anthony, 25, who faced a possible death sentence, cried quietly, the relief made plain on her face. After the jury left the courtroom, she broke down and sobbed, hugging her lawyer, Jose Baez, tightly. She has spent about two and a half years in jail awaiting trial. She is expected to be released soon because she is not likely to serve any more time for misdemeanors. Ms. Anthony was also found not guilty of aggravated child abuse.

Her parents, George and Cindy, who lost a granddaughter and then listened in court as Mr. Baez blamed the family for Caylee’s death, sat stone-faced after the verdict was read. Prosecutors, who had entered the courthouse with broad smiles and to cheers, sat stunned.

The defense had argued from the start that Caylee drowned accidentally in the family swimming pool and that the death was concealed by a panicked George Anthony and Casey Anthony.

It was unclear if that version of Caylee’s death swayed jurors. But the circumstantial nature of the prosecution’s case seemed to be insurmountable. There was no direct evidence tying Ms. Anthony to the death of her daughter. Forensic evidence was tenuous, and no witnesses ever connected her to Caylee’s death. Investigators found no traces of Ms. Anthony’s DNA or irrefutable signs of chloroform or decomposition inside the trunk of Ms. Anthony’s car, where prosecutors said she stashed Caylee before disposing of her body. The prosecution was also hurt by the fact that nobody knows exactly when or how Caylee died; her body was too badly decomposed to pinpoint cause of death. And it permitted Mr. Baez, Ms. Anthony’s lawyer, to create a reasonable doubt in jurors’ minds — despite the prosecution’s relentless portrayal of her as a callous liar who sought to kill Caylee so she could lead a carefree life of boyfriends and bars.

“The best feeling I have today is I know I can go home and my daughter will ask me, ‘What did you do today?’ and I can say, ‘I saved a life,’ ” Mr. Baez said at a news conference.

Mr. Baez also denounced the death penalty, saying Ms. Anthony’s acquittal is an example of why “we all need to stop and look and think twice about a country that decides to kill its own citizens.”

This case was widely reported in real time through Twitter and cable television, and outrage over the verdict came swiftly as did criticism of the news media. But the public was equally captivated by the trial, with some people flying in to grab a hard-to-get seat in the courtroom.

Cheney Mason, Mr. Baez’s co-counsel, sharply criticized reporters and pundits for “media assassination” in maligning Ms. Anthony and sprinting to an assumption of guilt.

“I can tell you that my colleagues coast to coast and border to border have condemned this whole process of lawyers getting on television to talk about cases they don’t know a damn thing about,” Mr. Mason said.

Outside, Lawson Lamar, the state attorney for the Ninth Judicial Court, praised prosecutors for their meticulous work but added that it was a tough trial because it was a “dry bones case,” a reference to Caylee’s decomposed state, with “no smoking gun.”

Caylee was last seen June 16, 2008. Her remains were found Dec. 11 in a wooded lot near the Anthony home. Ms. Anthony failed to report Caylee missing for 31 days and created a tangle of lies, including that a baby sitter kidnapped Caylee, to cover up the absence.

The defense conceded Ms. Anthony’s lies, but said they happened for one reason: she had been sexually abused by her father and had been coached to lie her whole life.

Prosecutors argued all along that Ms. Anthony killed her child so she could carouse with her boyfriend, go clubbing and live the “bella vita” — beautiful life — as her tattoo, done after Caylee’s disappearance, proclaimed. They used jailhouse recordings of Ms. Anthony and photographs of her reveling with friends to show she was clearly not grieving.

One prosecutor, Jeff Ashton, called it “absurd” that Mr. Anthony, a former homicide detective, would find Caylee dead in the swimming pool and, rather than call 911, cover up the drowning, wrap dead Caylee’s face with duct tape and dump her body.

“It is a trip down a rabbit hole into a bizarre world where men who love their granddaughters find them drowned and do nothing,” Mr. Ashton said.

Mr. Anthony, who had testified tearfully during the trial, denied abusing his daughter and finding Caylee in the swimming pool.

Prosecutors failed to offer evidence or testimony that showed Ms. Anthony was actually a bad or negligent mother.

From the start of the trial, Mr. Baez, who began his law career in 2005 and three years later landed Ms. Anthony as a client, was often pilloried for his risky opening argument — the drowning and sexual abuse theories — and his failure to bolster that defense during the trial.

Mr. Baez delved lightly into the idea that Caylee drowned and said nothing more about the sexual abuse after the first day of the trial. Judge Belvin Perry Jr., the presiding judge who also heads the Ninth Circuit Court, barred Mr. Baez from mentioning the abuse accusation during closing statements because there was no evidence to support his claim.

Yet Mr. Baez successfully hammered away at the nearly 400 pieces of evidence that were recovered, including Ms. Anthony’s car. He also accused prosecutors of relying on faulty science to bolster their case and labeled the state’s work “fraud.”

As the trial continued, Mr. Baez cast Mr. Anthony as the villain who covered up the drowning and allowed Ms. Anthony to take the blame. And he detailed what he viewed as the Anthony family’s dysfunctional behavior.

The sheriff’s office also faced criticism for failing to find Caylee’s remains in August 2008, when a meter reader, Roy Kronk, reported a suspicious item for three consecutive days. On the third day, deputies met the reader at the crime scene, where he pointed to the area from a distance. Mr. Kronk testified that deputies found nothing and were dismissive. Caylee’s body decomposed over six months.

In closing statements, Mr. Baez reminded jurors that the burden of proof rested entirely with prosecutors and pleaded that they keep their emotions in check during deliberations.

“This case should not be decided for or against anyone because you feel sorry for anyone or are angry at anyone,” Mr. Baez told the jury.

    Casey Anthony Not Guilty in Slaying of Daughter, NYT, 5.7.2011,
    http://www.nytimes.com/2011/07/06/us/06casey.html

Still a Case for Trying Strauss-Kahn

July 5, 2011
The New York Times
By JIM DWYER

What is so wrong with the original plan to hold a trial for Dominique Strauss-Kahn to decide if he committed an act of sexual violence against a hotel housekeeper?

After all, it’s not as if the case against Mr. Strauss-Kahn, the former head of the International Monetary Fund, has simply dissolved with the discovery that the woman who accused him has lied about her past, and had shady connections and a bank account with irregular cash deposits.

To begin with, there is evidence in the case that other people can provide, notably, crime lab results that show the semen of Mr. Strauss-Kahn was found on her clothing.

But that is only the beginning.

In the moments after the encounter between Mr. Strauss-Kahn and the housekeeper, four employees at the Sofitel New York each spoke to her, one after the other, and each was convinced that she was “shook up” and “in distress,” according to a person involved with that part of the investigation. “You had two former police officers who didn’t think she was making it up,” the person said.

Hotel records show the housekeeper had never before cleaned a room that Mr. Strauss-Kahn occupied during any of his visits. On the morning of May 14, records of her card-key entries show that she spent about an hour cleaning Room 2820, which was around the corner from the rooms occupied by Mr. Strauss-Kahn. Just after 12 p.m., a room service employee knocked on his door several times, got no answer, then entered to collect a room service wagon.

The housekeeper was told by the room service worker that there was no one in the suite, and she used her card key to enter at 12:06.

This would appear to undercut any theory that the housekeeper had chosen Mr. Strauss-Kahn because of his prominence.

During the next 20 minutes, the housekeeper and Mr. Strauss-Kahn had the encounter that is the subject of the criminal charges.

The housekeeper’s key was next used at 12:26 — when she returned to Room 2820, the same room that she had already cleaned. But she did not stay there long. Her supervisor arrived on the floor, she was met by the housekeeper, and the card-key records show that they then went into 2806, the Strauss-Kahn suite, also at 12:26. (The card-key records are accurate to the minute, not to the second.)

By then, Mr. Strauss-Kahn was on his way to the front desk, where he was seen checking out about 12:28. Hotel video turned over to the authorities shows him with toothpaste residue on his lips, and then entering a yellow cab.

His lawyers maintain that whatever happened between Mr. Strauss-Kahn and the housekeeper did not involve force or criminal behavior. They have also said that videotape of him at lunch, just after he left the hotel, would show a calm demeanor. With last week’s revelations about the housekeeper, the lawyers for Mr. Strauss-Kahn have said the case should be dismissed.

There is little question that the police and Manhattan prosecutors had probable cause to arrest Mr. Strauss-Kahn: they believed a crime had been committed, and he had been involved.

Prosecutors do not have to abandon criminal cases simply over problems with witnesses’ backgrounds, said Bruce Green, a law professor at Fordham and an authority on legal ethics.

“If you think the case is still tryable, that the jury will understand that although the person has not been truthful about things in the past, you can proceed,” Mr. Green said.

With a jury trial, 12 people would decide the most important questions, which do not include who will run for president of France next year or if Cyrus R. Vance Jr., the Manhattan district attorney, messed things up. Bringing charges and then dropping them is not a dishonorable act. Letting criminals get away with ugly crimes is another story.

In the end, the only thing that matters is if Mr. Strauss-Kahn assaulted the housekeeper. His lawyers say he is innocent, a status he maintains until a jury finds otherwise. The housekeeper insists that she was the victim of a crime, said her lawyer, Kenneth P. Thompson. He disputes the translation of a taped phone call, made the day after the encounter, that the authorities believe shows her to be thinking about exploiting Mr. Strauss-Kahn’s wealth.

“She wants to testify to the world what Mr. Strauss-Kahn did to her, and she is willing to be hammered on cross-examination,” Mr. Thompson said. “You don’t have to come over on the Mayflower to be the victim of a crime.”

    Still a Case for Trying Strauss-Kahn, NYT, 5.7.2011,
    http://www.nytimes.com/2011/07/06/nyregion/still-a-case-for-trying-strauss-kahn.html

Pay Frozen, More New York Judges Leave Bench

July 4, 2011
The New York Times
By WILLIAM GLABERSON

There is perhaps no more fitting finale to a long legal career than a judgeship. Ascending the bench after years appearing before it can bring power, respect, personal satisfaction, reasonable hours and, often, free parking. There have traditionally been few steps beyond: Retirement. Or death.

But across the country — and in New York, more than most places — being a judge has in recent years come with one big negative: the salary. New York judges have not had a raise in 12 years, making the state one of the more extreme examples of a growing pay gap nationally between judges and other professionals, including partners at top law firms, who can earn 10 times the salary of the judge before whom they are arguing a case.

Now, for the first time in memory, judges are leaving the bench in relatively large numbers — not to retire, but to return to being practicing lawyers. Turnover in New York has increased rapidly in the last few years: nearly 1 in 10 judges are now leaving annually, a new study shows.

In New York State, at least a dozen have resigned and explicitly cited the pay. The latest is James M. McGuire, a judge on the intermediate state appeals court in Manhattan, who last week resigned his position at the white marble courthouse on Madison Avenue. His judicial salary was $144,000. He stepped down to be a partner at a law firm, Dechert LLP, where average partner pay is $1.4 million.

New York, as the state with what officials say is the longest judicial pay freeze, is the focus of a national debate about whether controversial rulings, court corruption and politicized judicial campaigns have so eroded support for courts that there is no constituency for increasing judges’ pay. “I never expected to get rich as a judge, but I never expected to get poor either,” said Robert A. Spolzino, who resigned as an appellate judge in Brooklyn two years ago to return to law practice.

Judges in New York were the best paid nationally in the 1970s. But their salaries now are ranked 46th in the country when measured by the cost of living, according to the National Center for State Courts.

Critics contend that some judges do not work very hard and that many of them would never earn the profession’s top pay. Eric A. Posner, a University of Chicago law professor, argued in a law review article in 2009 with two other law professors that there was no evidence that better-paid judges did a better job.

“The absence of raises,” he wrote in a recent e-mail exchange, “is a problem only if judges weren’t overpaid to begin with.”

Indeed, in a series of interviews, judges acknowledged that it could be difficult to make the case for a judicial pay raise in hard economic times. Justices of New York’s highest-level trial court, the State Supreme Court, make $136,700. The chief judge of the state makes $156,000. Across the country, “there is a devaluing of the job that judges do,” so there is little pressure to pay them well, said Seth S. Andersen, the executive director of the American Judicature Society in Des Moines, which studies and evaluates judicial systems.

Current and former judges described the pressures they felt in fending off offers and trying to pay for mortgages and tuition bills. Mr. Spolzino, 52, said he had expected that he would remain until retirement, as judges did in the past.

“It’s very heady when you walk into a room and everybody rises, people laugh at your jokes,” he said.

Emily Jane Goodman, a State Supreme Court justice in Manhattan, said the practical effect of her stalled pay was that she had to sell a summer home in the Hamptons and was having trouble paying for increasing fees on her two-bedroom apartment in the city.

“Here I am,” Justice Goodman said, “in a position where I’m working to achieve justice for other people and I don’t feel that I’m experiencing justice.”

On one of his final days at the Appellate Division on Madison Avenue, Justice McGuire, who was once chief counsel to Gov. George E. Pataki, said he had grown increasingly dismayed as the state failed year after year to raise judicial pay.

“I tormented myself for the longest period of time about whether I should go, because I love the work,” he said. “And then I realized, ‘I’ve got no choice. The only responsible thing for my family is to go.’ ” Justice McGuire, 57, has two children, ages 5 and 3.

In New York, the financial pressures are particularly intense because top law firms compete to hire lawyers — and, now, judges. In response to questions for this article, the state’s Office of Court Administration studied judicial attrition. The analysis found that in 1999, 48 of the 1,300 state judges left their positions. Last year, 110 judges left, with the number of departures increasing sharply over the last five years.

New York’s chief judge, Jonathan Lippman, said in an interview that the departures showed only part of the problem. “Why would a talented lawyer,” Judge Lippman asked, “want to join an institution that hasn’t had even a cost of living increase in 12 years?”

The State Legislature’s failure to increase judicial pay since 1999 was the subject of bitter political disputes and court battles before legislation passed in November creating a commission on judicial salaries. It is expected to decide by September whether state judicial salaries will increase and by how much.

Nationally, many judicial salaries have lagged behind the pay not only of top lawyers, but also of some academics, school administrators, elected officials and even some courthouse employees. In New York City, some law clerks earn more than the judges they work for.

The chief justice of the United States, John G. Roberts Jr., has noted that federal judicial salaries have slipped below the pay of top law school deans and other law professors and has said the pay gap could undermine the strength of the federal courts.

The salaries of state trial judges nationally rose 34 percent to a median of $116,100 in the decade ending in 2005. But during the same period, the median partners’ share of profits at large law firms jumped 141 percent to $957,500, Roy A. Schotland, an emeritus law professor at Georgetown, showed in a law review article. In an interview, Professor Schotland, who studies state courts, said that, nationally, stagnant pay was “the single most important problem for our courts.”

    Pay Frozen, More New York Judges Leave Bench, NYT, 4.7.2011,
    http://www.nytimes.com/2011/07/05/nyregion/with-salary-freeze-more-new-york-judges-are-leaving-the-bench.html

Strauss-Kahn Is Released as Case Teeters

July 1, 2011
The New York Times
By JOHN ELIGON

Dominique Strauss-Kahn, the former head of the International Monetary Fund, who is accused of sexually assaulting a hotel housekeeper, was released from house arrest on Friday as the case against him moved closer to dismissal after prosecutors told a Manhattan judge that the credibility of his accuser was in serious question.

Prosecutors acknowledged that there were troubling revelations and glaring inconsistencies in various accounts given by the housekeeper, who accused Mr. Strauss-Kahn of trying to rape her in May. In a brief hearing at State Supreme Court in Manhattan, prosecutors did not oppose his release; the judge then freed Mr. Strauss-Kahn on his own recognizance.

The development represented a stunning reversal in a case that reshaped the French political landscape and prompted debate about morals, the treatment of women and the American justice system. Prosecutors said that they still believed there was evidence to support the notion that Mr. Strauss-Kahn had forced the woman to perform oral sex, but that inconsistencies in her past and in her account of the moments following the episode could make it extremely difficult to persuade jurors to believe her.

The comments that followed the quick court action illuminated the complex, often shifting relationship among the three legal interests in the case. Lawyers for Mr. Strauss-Kahn on Friday praised the Manhattan district attorney, Cyrus R. Vance Jr., for “doing what is appropriate”; Kenneth P. Thompson, a lawyer for the housekeeper, accused Mr. Vance of being “too afraid” to try the case; and Mr. Vance defended how his office had handled the case, which is by far the highest-profile of his year-and-a-half tenure.

In a letter sent to Mr. Strauss-Kahn’s lawyers and filed with Justice Michael J. Obus on Friday, prosecutors outlined some of what they had discovered about Mr. Strauss-Kahn’s accuser, poking holes in her account and in her background.

The housekeeper admitted to prosecutors that she had lied about what happened after the encounter on the 28th floor of the hotel, the Sofitel New York. She initially said that after she had been attacked she waited in a hallway until Mr. Strauss-Kahn left the room. She now admits that after the episode, she cleaned a nearby room, then returned to Mr. Strauss-Kahn’s suite to clean there. Only after that did she report to her supervisor that she had been attacked.

What precisely occurred between the woman and Mr. Strauss-Kahn — whether it was an attack or a consensual encounter, as his defense team has suggested — remains known only to the woman and to Mr. Strauss-Kahn.

Prosecutors disclosed that the woman had admitted lying in her application for asylum from Guinea. According to their letter, she “fabricated the statement with the assistance of a male who provided her with a cassette recording” that she memorized. She also said that her claim that she had been the victim of a gang rape in Guinea was a lie.

The woman also acknowledged that she had misrepresented her income to qualify for her housing, and that she had declared a friend’s child as a dependent on tax returns — in addition to her own daughter — to increase her tax refund.

Mr. Thompson, the woman’s lawyer, gave a lengthy retort outside the courtroom in which he conceded that there were problems with her credibility, but insisted that she had still been the victim of an attack and that her version of it had never wavered. He said some evidence, like bruising she had sustained, was consistent with a nonconsensual encounter. And he said her decision to clean a room afterward was consistent with someone who was confused and upset.

“Our concern is that the Manhattan district attorney is too afraid to try this case,” Mr. Thompson said. “We believe he’s afraid he’s going to lose this high-profile case.”

The prosecutors have not completed their investigation, one official briefed on the matter said, and thus have not made a final determination whether the housekeeper was sexually assaulted. The official said that an examination of the woman after the alleged assault did find vaginal bruising, but that it was not conclusive evidence of a forcible sexual encounter. The woman’s account of what happened inside the hotel suite has been consistent, the official said, aside from minor details of the kind that sometimes vary in the numerous retellings of the same story.

Questions are sure to be raised about how swiftly and vigorously prosecutors proceeded with the case, as many in France questioned whether there was a rush to judgment. Mr. Strauss-Kahn, 62, was considered a strong contender for the French presidency before his arrest. He subsequently resigned his position as managing director of the International Monetary Fund.

From Mr. Strauss-Kahn’s first court appearance on May 16, Mr. Vance’s office expressed extreme confidence in its case. At that hearing, an assistant district attorney said, “The victim provided very powerful details consistent with violent sexual assault committed by the defendant.”

The case has the potential to affect Mr. Vance’s political fortunes. Outside the courthouse on Friday, he stressed that his office did what it was required to do.

“We believe we have done nothing but to support her,” Mr. Vance said. “Our duty is to do what is right in every case. Our office’s commitment is to the truth and the facts.”

Mr. Strauss-Kahn will now be able to move about the country freely. (He had dinner Friday night at Scalinatella, an upscale restaurant on the Upper East Side.) Although prosecutors will retain his passport, most of his restrictive bail conditions have been lifted. Under those rules, he was required to stay in a Lower Manhattan town house under armed guard and to wear an ankle monitor. He could leave only for certain reasons and had to notify prosecutors when he did.

Benjamin Brafman, a lawyer who has represented Mr. Strauss-Kahn along with William W. Taylor III, said: “I want to commend Cy Vance for doing what is appropriate, for doing what I think took some great courage and personal integrity, to stand up and say this case is not what we thought it was. We are absolutely convinced that while today is a first giant step in the right direction, the next step will be to make a complete dismissal of the charges.”

The letter from the prosecutors did not include everything their investigators had learned about the woman. According to two law enforcement officials familiar with the prosecutors’ inquiry, the woman had a phone conversation with an incarcerated man within a day of her encounter with Mr. Strauss-Kahn in which she discussed the possible benefits of pursuing the charges against him. The conversation was recorded.

That man, the investigators learned, had been arrested on charges of possessing 400 pounds of marijuana. He is among a number of individuals who made multiple cash deposits, totaling about $100,000, into the woman’s bank account over the last two years. The deposits were made in Arizona, Georgia, New York and Pennsylvania.

The investigators also learned that the woman was paying hundreds of dollars every month in phone charges to five companies. She had insisted she had only one phone and said she knew nothing about the deposits except that they were made by a man she described as her fiancé and his friends.

After his hearing, Mr. Strauss-Kahn emerged from court, smiling at the assembled crowds, the expression brightening with each step. Later, at the town house on Franklin Street where he had been under confinement, a gift arrived of over a dozen red, white and blue balloons, accompanied by an inflatable Statue of Liberty.

A note was attached, according to Sean Hershkowitz, of Balloon Saloon in TriBeCa, that said, “Enjoy your freedom on Independence Day.” He added that he had been by a few weeks earlier with a different delivery: an inflatable shark with a chew toy. That gift, Mr. Hershkowitz said, was refused at the door.

 

Matt Flegenheimer, Colin Moynihan and Anahad O’Connor contributed reporting.

    Strauss-Kahn Is Released as Case Teeters, NYT, 1.7.2011,
    http://www.nytimes.com/2011/07/02/
    nyregion/new-yorkers-and-french-await-latest-dominique-strauss-kahn-legal-turn.html