Day: March 31, 2012

Demand “Justice” But Beware The Rush To Judgment In The Trayvon Martin Case

march 31, 2012 source :

There are many disturbing questions surrounding the shooting of Trayvon Martin, many of them outlined here.  A rigorous independent investigation geared towards answering these questions and determining the extent to which George Zimmerman committed criminal acts is essential.  But as rallies today by civil rights groups and others “demand justice” and call for Zimmerman’s “immediate arrest,” I want to urge caution.

I remain very uncomfortable with the demands and petition drivescalling for Zimmerman’s prosecution (not to mention the vigilante response) based only on the selected facts to which we, the public, have become privy.

There are very good reasons to doubt the good faith of local law enforcement and the prosecuting agencies in this case, and we should certainly be demanding justice.  But we can’t know yet what a just response is.  We should await the findings of the special prosecutor — which may very well spur more legitimate questions and demands — rather than rush to judgment now based on the limited information filtered down to us from the media.

Far more often than not, in the wake of a tragic death it is the suspicious-looking African American in the hoodie for whom there is this kind of clamor for “swift justice.”

Released From Prison, but Never Exonerated, a Man Fights for True Freedom

march, 31, 2012  source :

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

Mr. Cook has always claimed to be innocent of the murder of Ms. Edwards, a woman who lived in the same Tyler apartment complex. The case against him was largely circumstantial, including the words of a jailhouse informant who said that Mr. Cook had confessed to him and the recollections of a man who said that on the night of the murder, he and Mr. Cook had had sex and watched a movie that involved a cat torture scene.

The prosecution’s theory was that Mr. Cook, aroused by the torture scene in the movie, had left his apartment to rape and kill Ms. Edwards.

In the years after, every piece of evidence used to convict Mr. Cook was revealed to be bogus. The informant admitted he had lied as part of a deal with prosecutors, and the witness who claimed to have had sex with Mr. Cook told a grand jury that there was no sex and that Mr. Cook had not paid any attention to the movie. The prosecution had also suppressed evidence showing that Mr. Cook and Ms. Edwards had known each other casually, which explained a fingerprint found at the scene.

Mr. Cook’s verdict was overturned on a technicality in 1988. When District Attorney Jack Skeen of Smith County tried him again in 1992, the case ended in a mistrial. Another trial in 1994 resulted in a guilty verdict and a new death sentence, but two years later the Court of Criminal Appeals, the state’s highest criminal court, reversed that conviction, noting that “prosecutorial and police misconduct has tainted this entire matter from the outset.”

Mr. Cook was released on bail in 1997, but the state prepared to try him for a fourth time. He was presented with an option: plead guilty in exchange for 20 years, which he had already served, and the charges would be dropped. He refused. As the trial date approached, in early 1999, Ms. Edwards’s underwear was sent to a lab for modern DNA testing. Mr. Cook, certain he would be exonerated, gave a blood sample.

On the morning of jury selection, the district attorney made another offer: if Mr. Cook pleaded no-contest with no admission of guilt, the case would be dismissed and he could go on with his life. Mr. Cook considered the deal. He had suffered terribly during his 19 years in prison — he had been stabbed, raped repeatedly and had tried to kill himself, once slitting his own throat after severing his penis, which was reattached.

He took the plea deal. Two months later, the DNA results returned. The semen belonged to James Mayfield, a married man with whom Ms. Edwards had been having an affair.

By then Mr. Cook was trying to move on with his life, but it was harder than he had imagined. The physical and emotional abuse he endured in prison causes nightmares and suicidal urges. And the murder conviction made him a second-class citizen.

“I couldn’t get a job, couldn’t sign a lease,” he said. “We’ve had to move five times because people would find out about me. One woman threatened to put up posters in the neighborhood saying ‘Convicted murderer lives here.’ ”

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Meanwhile, Mr. Cook waits. He dresses only in black (he swears he will not wear any other color until he is exonerated), and with his dark eyes and white hair, he cuts a striking figure. What he wants more than anything else are life’s simplest things.

“All I want is to be able to put my name on a lease,” he said. “I want to be able to walk my dog and have my neighbors over for cookouts. I want to live a normal life.”

State Court Allows False-Confession Experts, but Bar Is High

march, 30  source :

ALBANY — New York’s highest court said for the first time on Thursday that expert testimony about false confessions should be allowed at trial if it is relevant to the facts of a case.

But the court also seemed to set a high bar for determining that relevance: In a 5-to-2 decision, the judges upheldthe conviction of a defendant, Khemwatie Bedessie, in the rape of a 4-year-old boy, arguing that the testimony of her expert witness was not germane to the specifics of her confession.

Still, the decision by the New York Court of Appeals was a welcome sign for defense lawyers and innocence advocates who have argued that police interrogation tactics can lead people to admit to crimes they did not commit. About a quarter of the convicts exonerated by DNA evidence nationwide gave false confessions, made self-incriminating statements or pleaded guilty, according to the Innocence Project.

“That the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom,” Judge Susan P. Read wrote in the majority opinion.

Vincent M. Bonventre, an Albany Law School professor, called the ruling “a big step.”

“The kind of evidence, which in the past people relied on more heavily than anything else, now the Court of Appeals is saying, ‘Yeah, we understand a lot of these confessions might be false,’ ” he said.

In her 21-page opinion, Judge Read also acknowledged what has become a hot-button issue at the Capitol: the videotaping of police interrogations.

“While electronic recording of interrogations should facilitate the discovery of false confession and is becoming standard police practice, the neglect to record is not a factor or circumstance that might induce a false confession,” she wrote.

Peter J. Neufeld, a co-director of the Innocence Project, said he hoped that acknowledgment would spur the State Legislature to act on a proposed measure to require the videotaping of all interrogations, one of the key pieces of legislation that defense lawyers are promoting.

“We’ll never know what actually happened there, because there was no videotape of the interrogation,” Mr. Neufeld said of the Bedessie case. (In fact, she confessed twice, and the second one was videotaped.)

Not surprisingly, Chief Judge Jonathan Lippman joined Judge Theodore T. Jones in his dissent, because both thought that the expert in the Bedessie case should have been allowed to testify. Judge Lippman has long advocated for greater protection againstwrongful convictions through things like the videotaping of confessions and changes in the way lineups are conducted. Judge Lippman commissioned a taskforce, co-chaired by Judge Jones, that in January recommended legislation to put those measures in place.

Although the court refused to overturn the conviction of Ms. Bedessie, who is serving a 20-year sentence, “It’s a wonderful decision for defendants in the future,” said Ronald L. Kuby, who represented her in the appeal.

Ms. Bedessie, a teacher’s assistant, was charged in 2006 with performing sexual acts on a 4-year-old boy under her supervision.

At her trial the following year, Ms. Bedessie testified that she did not do the things she had described doing with the boy, and had confessed to them only after a police detective told her she could either tell the truth and go home or “go to Rikers Island jail, where she would be beaten,” according to Judge Read’s decision.

Before her trial started, Ms. Bedessie’s lawyer asked the court to allow Dr. Richard J. Ofshe, an expert on false confessions who interviewed the defendant, to testify. The trial judge denied the request, declaring, among other things, that Dr. Ofshe’s testimony would not be of value to the jury.

The Court of Appeals ruled that Dr. Ofshe’s testimony would not have been relevant to this case, after examining a report he had submitted on behalf of Ms. Bedessie. “The body of his report was filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant’s version of her interrogation,” Judge Read wrote.

For instance, Judge Read wrote, Dr. Ofshe provided an analysis suggesting that the boy was coerced into the allegations, but that had nothing to do with whether Ms. Bedessie falsely confessed. Dr. Ofshe also failed to show any link between studies of false confessions and some of the tactics that the detective was said to have used to get Ms. Bedessie to confess, the judge wrote.

Judge Jones, in the dissenting opinion, called the majority’s conclusion “curious.” The report, he wrote, “involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession.”

Bill Would Make Wrongful Conviction Awards Tax-Free

march, 29 source

Congressmen Sam Johnson (R-TX) andJohn Larson (D-CT) have introduced legislation to prohibit the IRS from taxing compensation awarded to anyone wrongfully convicted of a crime and later exonerated. Is this bill necessary or a good idea? Yes on both counts.

More and more prisoners are being exonerated based on DNA or other evidence. Under statute, by lawsuit or even by legislative grant, exonerees may receive compensation for their years behind bars. See Ex-Inmate Struggles to Cash In on Texas Law That Pays for Years of Wrongful Imprisonment. In fact, are you ready for some shocking figures?

Since the first DNA exoneration in 1989, wrongfully convicted persons have served more than 3,809 years in prisons across 35 states before being exonerated. The nearly 300 DNA exonerees served an average of 13.5 years in prison, ranging from less than one year to 35 years. Whether you look at an individual case or at the averages, these are some astounding numbers. See Congressmen Sam Johnson and John Larson Press Release.

The tax issues have been surprisingly cloudy. In the 1950s and 1960s, the IRS ruled prisoners of war, civilian internees and holocaust survivors received tax-free money for their loss of liberty. In 2007, the IRS “obsoleted” these rulings suggesting the landscape had changed. The IRS now asks whether a wrongfully jailed person was physically injured/sick while unlawfully jailed. If so, the damages are tax free, just like more garden variety personal physical injury recoveries.  See IRS To Collect on Italian Cruise Ship Settlements.

What if an exoneree isn’t physically injured? In IRS Chief Counsel Advice 201045023, the IRS said a recovery was exempt, but the IRS sidestepped whether being unlawfully incarcerated is itself tax-free. The Tax Court (and Sixth Circuit) in Stadnyk suggest persons who aren’t physical injured may be taxed. See Why the Stadnyk Case on False Imprisonment Is a Lemon.

There are usually significant physical injuries and sickness but not always. Besides, what about the money just for being locked up?  What if an exoneree gets $50,000 for physical injuries and $450,000 for being unlawfully behind bars?

The loss of physical freedom should be tax-free in its own right. Many exonerated individuals experience severe hardship acclimating to society, finding jobs, housing and reconnecting with family. The Wrongful Convictions Tax Relief Act proposes to allow exonerees to keep their awards tax-free.

According to Congressman Larson, “Though we can never give the wrongfully convicted the time back that they’ve had taken from them, they certainly shouldn’t have to pay Uncle Sam a share of any compensation they’re awarded. This bill will make sure they don’t have to suffer that insult on top of their injury.”

The two Congressmen are right. It is bad social justice and bad tax policy to tax these recoveries.  It is also unfair to leave the tax law murky so some people are paying tax.

For more, see:

Freedom after nearly 25 years of wrongful imprisonment

Wrongful Imprisonment Tax Ruling Stirs Controversy

Tax On Wrongful Imprisonment Needs Reform

Tax-Free Wrongful Imprisonment Recoveries

Should False Imprisonment Damages Be Taxable?

Why False Imprisonment Recoveries Should Not Be Taxable

A ‘Get Out of Jail’ Card That’s Far From Free

Are False Imprisonment Recoveries Taxable?

Robert W. Wood practices law with Wood LLP, in San Francisco.  The author of more than 30 books, including Taxation of Damage Awards & Settlement Payments (4th Ed. 2009 with 2012 Supplement, Tax Institute), he can be reached at  This discussion is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional.

Mark Farley Grant: freedom but not exoneration

march, 29 source :


When Renee Hutchins, the University of Maryland law professor, got her client on the phone Thursday afternoon and told him the news — that the governor was going to commute his life sentence — Mark Farley Grant was “largely speechless and completely stunned.”

Hutchins said she will visit her client at the state prison in Hagerstown on Monday. By then, Grant should have a complete understanding of what’s happening: freedom after nearly 30 years in prison, but no exoneration and no pardon.

This was never simply a case of a convicted killer asking for parole as he approached middle age. There are plenty of such cases.This was a young man — 14 years old at the time of his arrest in a fatal shooting of another teenager in Baltimore in 1983 — with a credible claim of innocence. He had exhausted all his appeals over two decades since his trial.

Then, as a last resort, he’d asked Gov. Martin O’Malley to look at the facts of his case and consider his petition for clemency. Hutchins, together with another professor, Michael Millemann, and students at the University of Maryland law school (the governor’s alma mater) spent four years researching Grant’s 1984 conviction. They filed a report with the governor’s office in 2008. I caught wind of it a year later, and I first visited Grant in prison in September 2009. My first column on this case, drawing to the public’s attention the disturbing facts raised by the law school’s impressive investigation, appeared that month.

Each time I asked, a member of the governor’s staff said the case was “being reviewed.”

But it is clear by now that the governor never acted on the report. He never made a judgment about whether Grant had been wrongfully convicted.

Time went on, month after month, year after year.

From prison, Grant wrote several letters, asserting his innocence and stating his hope that Mr. O’Malley’s heart would be turned.

“Remember this, if nothing else,” Grant wrote me from prison in November 2010, “our creator, God, Lord of the Universe, created the sun, the moon and the Earth, and gave Earth life and everything in it. God is the turner of hearts.”

Still, nothing happened with regard to his claim of innocence.

And with Thursday’s executive order, O’Malley remains silent on the question of whether Mark Farley Grant ever belonged in prison.

All the governor has done is commute Grant’s sentence — something that would have happened on March 30 in the absence of gubernatorial action. The General Assembly made it so.

Legislators changed the law that gives the Maryland governor final say on parole recommendations for lifers. As of last Oct. 1, when the new law took effect, the governor had to act within 180 days of a Maryland Parole Commission recommendation or the recommendation automatically took effect. Grant’s was among those that were still pending on Oct. 1.

O’Malley denied 57 other recommendations.

So, in that regard, I guess Grant should be grateful. He has claimed his innocence since the night of his arrest 29 years ago. He had the help of law professors and students, who put in long hours to investigate the case and to locate witnesses, one of whom said he testified against Grant under threat of death from the real killer’s family. Grant’s advocates got the governor’s attention. Considering that the politically ambitious O’Malley has embraced the “life means life,” no-parole policy begun (but since disavowed) by the state’s previous Democratic governor, Parris Glendening, Grant is lucky.

But minus action by the governor, who has the authority and power to independently investigate Grant’s claim of innocence, Grant leaves prison under a cloud. It is disingenuous of Mr. O’Malley to say he is being just and fair in commuting Grant’s sentence while not acting on — perhaps even ignoring — his credible claim of innocence.

California – Judge rejects Raymond man’s request for new trial

march, 31 source

BRENTWOOD — A judge rejected a Raymond man’s argument for a new trial, which was based on claims he was wrongfully convicted of raping a 41-year-old woman in 2009.

Raymond Payette, 55, a former Raymond public works employee, claimed he received ineffective assistance from his defense lawyer and that prosecutors engaged in misconduct.

He alleged prosecutors should have never allowed the victim to testify about DNA found on her underwear.

Chief Justice Tina Nadeau heard testimony from Payette’s former lawyer at a hearing in February before reaching her decision on March 22.

Payette is serving 7 to 15 years in state prison after being convicted by a jury of aggravated felonious sexual assault.

Defense lawyer Tom Gleason argued that Payette’s former attorney, Gerard LaFlamme, should have objected to testimony about DNA samples found on the woman’s underwear. The DNA did not match Payette, according to Gleason.

LaFlamme testified he made a tactical decision to not object to the woman’s testimony about the DNA as a means to question her veracity.

Nadeau agreed LaFlamme’s decision was a sound tactic to use at trial.

“Even objectionable testimony can help a defendant’s case,” Nadeau wrote in a five-page order.

During the trial, Payette even argued the sex he had with the woman was consensual, lessening the importance of the testimony, Nadeau noted.

Nadeau also rejected the contention that Payette was barred from testifying in his own defense. LaFlamme testified in February that after analyzing the evidence against his client before and toward the end the trial, he advised against Payette taking the stand, Nadeau wrote. LaFlamme was concerned that Payette was not hold up under questioning by prosecutors.

But the decision whether to testify was ultimately left up to Payette, Nadeau wrote.

The sexual assault happened on the night of July 16, 2009. Payette made his way into the woman’s home by asking to wash his hands after petting horses that were behind her home, prosecutors said.

Payette was recently completed a 1-to-2 year prison sentence on a witness tampering conviction related to the sexual assault case. He will be eligible for parole in July 2016 on the sexual assault sentence.

FLORIDA – Carl Dausch – Judge sets date to decide on death sentence

march, 31 2012 source :


A Sumter County judge has set a date to decide whether to approve the jury’s death recommendation given to a hitchhiker last year who stood trial on sexual battery and murder charges of a Lake Panasoffkee motorist.

Carl Dausch 53, of Indiana, will be sentenced April 26 at the Sumter County courthouse in the first-degree murder conviction in the 1987 death of Adrian Renard Mobley .

“I’m hoping everything will go as planned,” said prosecutor Pete Magrino, who started seeking the death penalty shortly after Dausch was brought back to Sumter County to face the charges.

A pre-sentencing hearing Tuesday included a letter submitted by Dausch’s daughter in support of her father’s character. Magrino said the court may give the letter some consideration but he doesn’t expect it to block the jury’s suggestion.

The hearing also comes after Judge William Hallman denied a list of motions by the defense in their arguments for a new trial.

The body of Mobley, 27, an electronics manager at the Walmart in Bushnell, was found stomped to death and hog-tied on July 15, 1987, off County Road 475 in Bushnell.

Mobley‘s legs were tied to his hands and arms behind him with a bed sheet. His jeans were partially pulled down.

And, Mobley‘s 1981 red Honda Accord and wallet were missing.

Sumter County Office sheriff’s detectives initially ran cold on the case. In 2004, a cigarette butt retrieved from the Honda was tested for DNA, which pointed to Dausch, an Indiana prison inmate at the time who was serving 60 years on an unrelated rape and battery convictions.

Magrino said DNA on anal swabs taken of the Mobley also linked Dausch to the crime.

The statue of limitations had run out for any robbery charges. But Dausch was indicted on murder and sexual battery charges. In December, a jury found Dausch guilty of murder, but downgraded the sexual battery charge to aggravated battery.

case  progress docket : read here 

05/10/2006 Circuit Felony CASE OPEN
1 782041a1 MURDER FIRST DEGREE 12/13/2011 Court: Adjudicated Guilty
2 7840451a1 AGGRAVATED BATTERY GREAT BODILY HARM 12/13/2011 Court: Adjudicated Guilty
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