Mean Justice

by Edward Humes

  In the same week that it frees Shawn Hill, the California Supreme Court—known as a conservative body that upholds almost every capital conviction—reverses another death sentence, this time ordering a new trial for John Brown, convicted of killing a policeman in Garden Grove, California, in 1980, again because of prosecutorial misconduct. The prosecution failed to disclose a lab report that would have lent support to Brown’s defense of diminished capacity. The supreme court ordered Brown to be retried or to have his conviction reduced to the non-capital offense of second-degree murder.

  In the small town of Linden, Alabama (population 2,500), Goodloe Sutton, the editor of the Democrat Reporter newspaper, withstands death threats, advertising losses, subscription cancellations and other repercussions when he documents extortion, petty theft, drug trafficking, framing of innocents and other misconduct by the most powerful politician in the county, Sheriff Roger Davis. The case demonstrates the difficulty in reining in misconduct by law-enforcement officials. Sutton had complained for years to Alabama authorities, who ignored both his stories and the blatant corruption displayed by Davis’s department, which enjoyed the support of powerful politicians throughout the state. Finally, federal authorities stepped in and prosecuted the sheriff and two of his men, including the county’s chief drug-enforcement officer. Davis received a twenty-seven-year prison sentence after pleading guilty to extortion.

  Five New York City police officers are indicted under federal civil rights statutes in a case that sparked national outrage—the alleged torture and sexual assault in a police station of Haitian immigrant Abner Louima, who was arrested outside a Brooklyn nightclub where a brawl had taken place. Louima was never charged with any offense. However, he required four operations to repair his ruptured bladder and colon from when the policemen sodomized him with a nightstick. A supervisor was indicted for allegedly lying under oath about the incident.

  A study of the quality of government-appointed defense attorneys reveals that minimum-wage employees at McDonald’s often make more money per hour of work than some states pay defense attorneys for the poor in murder cases. According to a study by the Southern Center for Human Rights in Atlanta, the maximum indigent-defense fee in Virginia, for example, is $265 for investigating, litigating and defending a felony charge that carries a punishment of twenty years or less; the fee rises to a maximum of $575 if the potential sentence exceeds twenty years. (By comparison, a top-flight criminal-defense attorney hired privately would earn more than that in one hour of trial in a murder case.) According to the study, an Alabama lawyer who spends five hundred hours preparing for a death-penalty trial will make $4 an hour. The study is replete with case histories of underpaid lawyers who slept through key portions of trials, appeared in court drunk or unprepared, or displayed complete ignorance of the law—and resulting convictions that were allowed to stand.

  In Washington, Benjamin Harris is freed from his conviction and death sentence for the 1984 murder of Jimmie Turner. Harris maintained all along that he had been framed, but his attorney, in preparing for the capital case, only talked to his client for a mere two hours and interviewed but three of thirty-two witnesses. On appeal, Harris was granted a new trial because of his incompetent defense. (A codefendant, more ably represented, had been acquitted.) Prosecutors chose not to retry him, but, unwilling to give up, instead attempted to have him confined as insane despite previously arguing that he was sane enough to be tried for the murder. A jury heard the matter and ordered his release from a mental hospital.

  Robert Hayes, convicted in Florida and sentenced to death for the rape and murder of a coworker, is exonerated at a second trial. He had been convicted on the basis of faulty DNA evidence presented by the prosecution, but was granted a new trial by the Florida Supreme Court. Prosecutors continued to press charges even though the victim was found clutching the hairs of her presumed attacker—which came from a white person. Hayes is black.

  New York City police burst through the door of the home of Ellis Elliott of the Bronx, dragging him naked from bed into the hallway of his apartment building and then force him to sit there for an hour before finally bringing him women’s clothing to wear to the police station. “You’re nothing but an animal, nigger. You don’t deserve any clothes,” he recalls one officer telling him. The police had a warrant to search for drugs, and though they find none, Elliott is still hauled to jail and locked up overnight. Only then did the police realize that they had gone to the wrong apartment and arrested and humiliated an innocent man by mistake. They sent him home, still in women’s clothes, where he found his apartment, minus a front door, filled with police officers watching television and helping themselves to the contents of his refrigerator. Another team of NYPD officers that same day did the same thing in a search for drugs at the apartment of Shaunsia Patterson, who was eight months pregnant and at home with her two young children and teenaged sister when police broke the door down. Once again, they had targeted the wrong apartment in the wrong building. The officers screamed obscenities and abuse at the pregnant woman, who was so terrified by the invading wave that she wet herself. Furniture was destroyed, flooring removed, the refrigerator was broken and Patterson was kept handcuffed in her soiled clothes for several hours. New York Times columnist Bob Herbert, who documented both incidents in successive newspaper columns, wrote, “It is difficult to overstate the terror that is provoked by these inherently dangerous commando-like raids on the premises of innocent people. It is the sort of thing you would expect from a totalitarian state, not the municipal government of a city like New York.” The city has yet to offer an apology or compensation in either case.

  The FBI reaches a $1 million settlement with whistleblower Frederic Whitehurst, who claimed to have been harassed and mistreated for revealing misconduct and shoddy work at the once-vaunted FBI crime laboratory. Under the terms of the settlement, Whitehurst will be given FBI reports and will set up a review panel to examine potential government misconduct in thousands of criminal cases in which the lab’s work and analyses were critical tools for prosecutors. The cases range from mundane drug convictions to murders to the Oklahoma City bombing investigation.

  Forty-four law-enforcement officers from five police agencies in and around Cleveland, Ohio, are charged with taking money to protect cocaine traffickers, hiring themselves out as security guards for criminals, trafficking in drugs themselves, covering up crimes, framing others for their own criminal acts, and other acts of corruption. Dozens of criminal cases handled by the officers were immediately called into question, raising fears of innocents wrongly convicted. The Cleveland case represents the latest in a series of police-corruption cases from around the nation, in which 509 officers in forty-seven cities have been convicted in federal courts in the past three years.

  Murder charges are dropped for good against Earl Rhoney, convicted of a burglary-murder based solely on bloodhound evidence and an experimental “scent-machine,” which was supposed to have extracted the killer’s scent from the murder victim’s clothing. The Orange County, California, judge who overturned Rhoney’s conviction—and then left office to become district attorney—found that the bias of the bloodhound’s handler more than likely led the dog to choose Rhoney, and subsequent rulings have called into question the reliability of the scent machine. Nineteen at the time of his arrest and conviction, Rhoney spent two years imprisoned before being released.

  At age fifty-two, Marilynn Malcom, owner of the Rainbow Christian Day Care Center in Vancouver, Washington, remains in prison despite overwhelming evidence that the massive 1986 ritual-abuse case against her was false. The children questioned by authorities denied being molested, but as has happened so often in similar cases, relentless interrogation led to tales of ritual abuse. The prosecutor on the case ignored the bizarre and disprovable allegations and used only the more conventional allegations of sex abuse as evidence, winning his case. The medical evidence introduced at trial to show the children had been sexually penetrated h
as since been shown to be false. Yet, so far, Malcom has lost all her appeals.

  In Wenatchee, Washington, where claims that a ring of forty-three adults abused sixty children have torn the town and led to sweeping allegations of official and investigative misconduct, two of the key convictions in the case are reversed on appeal, freeing Mark and Carol Doggett from eleven-year prison sentences. The Doggetts had sought help from child-protection officials when they learned that their adolescent son and daughter had been having consensual sex. Questioning the teens in the midst of the town’s high-pressure molestation-ring investigation, therapists soon elicited accusations that the teens’ parents were molesters. The appeals court that overturned the convictions criticized the now-familiar technique of using suggestive and coercive questioning to produce allegations of abuse from children. The chief detective on the case used his own foster daughter to build many of the cases; she later recanted and accused him of coercing her. Throughout the massive Wenatchee case, allegations have surfaced describing coercion, threats from the police detectives and threats against any officials who failed to support the investigation. Indigent defendants were persuaded to plead guilty; those who could afford private lawyers—twenty-six—have been exonerated. Numerous lawsuits are pending and other convictions have been overturned or charges dismissed.

  In another notorious molestation-ring case, Cheryl Amirault LeFave, convicted a decade earlier with her brother and mother in the Fells Acres Day-care Center case in Cambridge, Massachusetts, is granted a new trial and freed by Middlesex County Judge Isaac Borenstein, who found that investigators used such improper and suggestive techniques to interview children that the testimony was “forever tainted.” Secret rooms, magic clowns and other preposterous tales peppered the children’s accounts, while repeated denials of molestation were ignored during the initial investigation. Those children who said nothing happened were simply labeled “Not ready to disclose,” so certain were investigators that abuse had taken place. The investigation began when a child told an uncle that Gerald “Tooky” Amirault, LeFave’s brother, pulled the child’s pants down. Assuming that molestation had occurred, no one bothered to question the child further as to why Amirault had done that. (It turns out, as the boy said much later, that Amirault simply was changing the boy’s diaper after he had wet himself during nap time.) Medical evidence of abuse was introduced to prove vaginal and anal penetration; this evidence has since been proven false. While LeFave was released, her brother remains in prison on a thirty-year sentence, though the evidence against him is identically flawed. Their mother, Violet Amirault, imprisoned for eight years before being released on appeal, died at age seventy-four before she could be cleared. The judge who released LeFave exonerated Violet Amirault posthumously.

  Because of an illegal search by government investigators, an otherwise valid fraud case against a Los Angeles-area defense contractor accused of selling shoddy electrical parts for fighters, missiles, the space shuttle and the as-yet unfinished International Space Station is dismissed by a federal judge. Because of the misconduct involved—defense department investigators read privileged memos between attorneys and clients outlining defense trial strategy and evidence—U.S. District Court Judge Robert M. Takasugi of Los Angeles rules that the charges cannot be re-filed against Solid State Devices, Inc., of La Mirada.

  When two boys, ages seven and eight, were arrested in Chicago for the brutal murder of eleven-year-old Ryan Harris—supposedly so the boys could take her bicycle—a national uproar ensued, in which lawmakers, pundits and many members of the general public expressed revulsion at the fact that children so young could not be tried as adults and sentenced to life in prison for even the most heinous crimes. Lawmakers in Illinois and in other states rushed to introduce legislation to allow adult punishments for the very young because of the Harris murder. The boys were said to have confessed, and the case against them was characterized as ironclad. A month later, however, the Chicago police are forced to admit that, because of the discovery of semen on the victim’s clothes, a culprit older than the prepubescent pair must have committed the crime. Amid admissions that investigators turned a blind eye to several other pieces of evidence that suggested the crime was committed by an adult sex offender, the boys are released. Their confessions, taken outside the presence of the boys’ family, social workers or lawyers had, apparently, been coerced—along with their supposed waivers of their Miranda rights. The department also reveals that the same interrogating officer involved in the Harris confessions had four years earlier coaxed a strikingly similar confession from an eleven-year-old boy accused of murder—an alleged confession that led to his conviction despite the fact that a bloody palm print and footprint at the murder scene were not his. (That case is now the subject of a civil rights lawsuit.) In the end, the primary fallout from the mistaken arrest has been growing support for a requirement that the police videotape all such confessions in the future—something the Chicago Police Department has long resisted.

  After a mere five hours of deliberation, V. James Landano is acquitted of murdering a Newark police officer twenty-two years ago. Originally convicted of the crime and sentenced to life in prison in 1977, he spent twelve years behind bars before he was granted a new trial because the prosecutor hid evidence of two witnesses to the crime who said Landano did not look like the killer.

  In July, the United States Court of Appeals for the 10th Circuit in Denver sends shock waves through the justice system by declaring plea bargains in which leniency is traded for testimony to be a form of bribery. The decision outlaws a prosecutorial practice observed on a nearly daily basis for decades—one that appears in both mundane cases such as Pat Dunn’s and some of the most high-profile cases in the country, from the prosecution of major Mafia figures to the conviction of former Panamanian President Manual Noriega to the failed impeachment case brought by Kenneth Starr against President Clinton. The court found that offering immunity or release from prison in exchange for testimony violates the federal bribery law—on the books for many years but long ignored. The law states that “whoever” offers “anything of value to any person” for testimony commits a crime—seemingly unambiguous wording that sounds as if it should apply to anyone, even government officials. Were a defense attorney to offer, for example, free legal services in exchange for favorable testimony, that lawyer would be guilty of bribery—and the resulting testimony would be untrustworthy. The appeals court, for the first time, said the same standard must apply to prosecutors, and that buying witnesses with freedom from prison led to suspect results. Choosing a mundane drug case to make its point, the court wrote, “The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money.” The Justice Department immediately objected, saying the ruling would make criminals out of every federal prosecutor in the country. The far-reaching decision, issued by a three-judge panel of the appeals court, was later rescinded and nullified by the full twelve-member court within a matter of days.

  Two Reno, Nevada, men serving life sentences since 1990 for child molestation are exonerated and released after their alleged victim told a judge that he had been forced to fabricate his testimony against them by his mother. He said his mother had locked him up and starved him until he agreed to implicate his own father and another man. The testimony by the then-nine-year-old boy had always sounded incredible—allegations that his father and a coworker sexually assaulted him fifty times a night, and that he had been taken to satanic rituals in an underground cavern near the Mustang Ranch, a legal brothel. But, as in so many other such cases, the obvious problems with his testimony were not taken into consideration until the boy, now seventeen, recanted. A judge then overturned the convictions and prosecutors agreed to drop charges rather than seek a retrial.

  1999

  Anthony Porter, imprisoned on death row for sixteen years for the double murder of a Chicago couple in 1982, is freed and exonerated when another man is implicated
in the crime. Northwestern University Professor David Protess and his journalism class investigated the case, found key prosecution witnesses who recanted their testimony—one of whom claimed to have been pressured by authorities to incriminate Porter—and produced a videotape of a new suspect confessing to the crime (while maintaining he killed in self-defense). The new suspect has since been charged with the murders. Porter, who has an IQ of 51, came within two days of being executed, but was spared because a judge questioned his mental competence (raising the possibility that, had he been of normal intelligence, Porter would have been executed before Protess and his class uncovered the new evidence in the case). Porter is the sixth convict to be freed from death row and declared innocent through the work of Protess and his class.

  Steven Smith, convicted and sentenced to death for the 1985 murder of an assistant prison warden outside a Chicago tavern, is freed when the Illinois Supreme Court found prosecutors had won their conviction despite having insufficient evidence that Smith was the actual killer. “When the state cannot meet its burden of proof, the defendant must go free,” the court ruled. The ruling was somewhat unusual in that appeals focusing on the sufficiency of the evidence in a case, rather than on legal flaws in trial, rarely succeed.