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JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 1 ISSUE 34 - FALL 2006

The Magazine for theWrongly Convicted

Was Executed Man Telling The Truth That Anthony Graves Is Innocent Of Murder?

$1.67 Mil. To Richard Karling For Murder Conviction Based On False Lab Test!

Robbery Charges Dropped Against Christopher Parish – He Was 110 Miles Away!

James Love Wins New Trial For Cincinnati Rapes Committed When He Was In Mexico!

Daughter Awarded $315k For Father’s Wrongful Murder Conviction!

Third Trial Ordered For Derek Tice -- One Of The ‘Norfolk Four’! Issue 34Fall 2006

$3Retail

SEE P. 20

Leslie Vass

Haunted by 1975wrongful convic-tion that Marylandofficials defy courtorders to expunge.

See page 5

Larry Mayes

Awarded $9 millionafter 19 yearswrongful imprison-ment for rape.

See page 8

Kirstin Blaise Lobato

Twice wrongly convictedof a Las Vegas murderwhen there is no evidenceshe was within 170 milesof the crime scene.

See page 24

Oleg Shcherbinsky

Conviction after threepeople killed in trafficcrash overturned afterhuge protests through-out Russia.

See page 14

Judith Scruggs

Connecticut SupremeCourt orders her ac-quittal of contribut-ing to the suicide ofher 12-year-old son.

See page 16


Message From The PublisherTwo men whose stories were featured in Justice:Denied were recently award-ed new trials, and the charges were dismissed against a third man. Derek Tice,one of the Norfolk Four convicted of rape and murder was awarded a new trial(his third) because of ineffective assistance of counsel, James Love wasawarded a new trial because new evidence proves he was out of the countryat the time he allegedly committed rapes in Cincinnati, and the charges weredismissed against Christopher Parish for a non-existent robbery and attempt-ed murder. (See pages 18-19. )

A significant development in 2006 that enables large numbers of people tolearn from observation how wrongful convictions occur, is Court TV’s “Extra.”Extra broadcasts notable state trials from across the country live and withoutcommercials via Court TV’s website. So from any Internet connection a vieweris a courtroom spectator. A viewer can typically choose from two live trialbroadcasts. Video clips are also posted of a trial’s highlights. Kirstin BlaiseLobato’s month-long retrial was broadcast live by Court TV Extra. (See p. 24.)

Among Extra’s many values is it provides a birds-eye view of the nationwideprevalence of prosecutions based on shaky evidence, and the susceptibility ofjurors to accept such cases as sufficient to convict a defendant. Those factorswork together to ensure that wrongful convictions occur with regularity.

Extra’s monthly subscription fee is only $5.95 for unlimited access. Theyoffer a 30-day free trial at, http://courttv.com/extra. I can’t recommend Extrahighly enough. It is a prime example of a commercial enterprise providing areasonably priced service that has great public interest value.

Hans Sherrer, PublisherJustice:Denied - the magazine for the wrongly convictedhttp://justicedenied.org - email: [email protected]

Information About Justice:DeniedSix issues of Justice:Denied magazine costs $10 for prisoners and $20for all other people and organizations. Prisoners can pay with stampsand pre-stamped envelopes. A sample issue costs $3. See order formon page 39. An information packet will be sent with requests thatinclude a 37¢ stamp or a pre-stamped envelope. Write: Justice De-nied, PO Box 68911, Seattle, WA 98168.

DO NOT SEND_JUSTICE:DENIED ANY LEGAL WORK!Justice:Denied does not and cannot give legal advice.

If you have an account of a wrongful conviction that you want toshare, send a SASE or a 37¢ stamp with a request for an informationpacket to, Justice Denied, PO Box 68911, Seattle, WA 98168. Casesof wrongful conviction submitted in accordance withJustice:Denied’s guidelines will be reviewed for their suitability to bepublished. Justice:Denied reserves the right to edit all submittedaccounts for any reason.Justice:Denied is published at least four times yearly. Justice:Deniedis a trade name of The Justice Institute, a 501(c)(3) non-profit organi-zation. If you want to financially support the important work ofpublicizing wrongful convictions, tax deductible contributions can bemade to:

The Justice InstitutePO Box 68911

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logo represents the snake of eviland injustice climbing up on the scales of justice.

Justice:Denied - Issue 34, Fall 2006Table of Contents

Justice:Denied volunteers directly contributing to this issue:Karyse Phillips, Editor; Natalie Smith-Parra, Editor; Terri Smith, Mailing;Katha McDonald, Mailing; Trudie Dvorak, Typing; and Hans Sherrer.

Capital Conviction Tossed Because Prosecutors Concealed Evidence — The Anthony Graves Story.........................................3Two Men Awarded $1 Million After False Arrest For Baseball Game Explosion — Third Man Fights Wrongful Conviction...........4Leslie Vass Haunted By Unexpunged 1975 Wrongful Conviction................................................................................................5U.S. Supreme Court. Restrictively Interprets Federal Habeas For State Convictions...................................................................6U.S. Citizen’s Conviction For Reentering The U.S. Vacated........................................................................................................7Larry Mayes Awarded $9 Million For 19 Years Wrongful Imprisonment....................................................................................8Mother Refunded Money Paid To Shyster Lawyer Hired To Defend Her Innocent Son............................................................10Michael Evans Loses Lawsuit Against Officers After 27 Years Of Wrongful Imprisonment.....................................................12Illinois Legislature To Review Wrongful Conviction Compensation..........................................................................................13Wrongful Conviction Compensation............................................................................................................................................13Migalka Under Attack In Russia – Innocent Driver’s Conviction Overturned After Thousands Protest....................................14Daughter Awarded $315,000 For Deceased Father’s Wrongful Murder Conviction..................................................................15State of Connecticut v. Judith Scruggs.........................................................................................................................................16$1.67 Million To Man Wrongly Convicted Of Murder Based On False Positive Lab Test........................................................17Ineffective Trial Counsel Finding Results In Order For Third Trial For Derek Tice – One Of The ‘Norfolk Four’...................18Charges Dismissed Against Christopher Parish...........................................................................................................................19New Evidence In Mark Kirk Case................................................................................................................................................19James Love's Rape Convictions Vacated — New Trial Ordered.................................................................................................19Federal Judge Order BOP To Deliver Justice:Denied To Federal Supermax Prisoner...............................................................19North Carolina Innocence Inquiry Commission Created.............................................................................................................20House Bill 1323 — North Carolina Innocence Inquiry Commission.........................................................................................20Analysis of NC Innocence Inquiry Commission Statutory Provisions........................................................................................21Worse Than Nothing — Justice:Denied Editorial.......................................................................................................................22Man Convicted Of Murder After DNA Cleared Him, Awarded $706,000..................................................................................23Possibility Of Guilt Replaces Proof Beyond A Reasonable Doubt — Kirstin Blaise Lobato’s Serial Rape By The Legal System.....24Lobato Jurors Engaged In Misconduct............................................................................................................................................33Innocence Projects Contact Information......................................................................................................................................35Justice:Denied’s Bookshop..........................................................................................................................................................37


Reeling from serious prosecutorialmisconduct allegations, the Bur-

leson County District Attorney's Of-fice quit Anthony Graves’ murdercase in December 2006. A specialprosecutor was appointed to take overGraves’ case.

In March 2006 the federal Fifth CircuitCourt of Appeals overturned Graves’ 1994murder conviction and death sentence. TheCourt ruled that prosecutor’s egregious Bra-dy violations of failing to turn over exculpa-tory witness statements deprived Graves ofhis right to a fair trial. (Graves v. Dretke,442 F.3d 334 (5th Cir. 03/03/2006)) Theappeals court ordered the state to retryGraves or release him outright. Graves hadbeen convicted, along with another man,Robert Carter, of killing a family of six inSommerville, Texas in 1992.

Pretrial proceedings were underway in Bur-leson County, where the case was originallytried, when, at a hearing on November 30,2006, defense lawyers argued for theremoval of Assistant District Attor-ney Joan Scroggins. Scroggins wason Graves’ original prosecutionteam. In their effort to have Scrog-gins recused, Graves’ lawyers citedthe federal appellate court’s findingthat Burleson County prosecutorssuppressed exculpatory witnessstatements in the 1994 trial. CountyJudge Reva Towslee-Corbett, whosefather presided over Graves’ firsttrial, granted the recusal motion oneweek later. Burleson County DistrictAttorney Renee Meuller then filed amotion stating she could not proceed with-out Scroggins’ and voluntarily disqualifiedher entire office from the case.

A court-recognized expert on state laws gov-erning professional ethics called the Gravescase the most “outrageous” case of prosecu-torial misconduct he had seen in 30 years ofpracticing law in Texas. Bob Bennett, aHouston attorney, testified for the defense atthe November 30 hearing. “[Scroggins]knew what was going on. She knew falsetestimony was being offered. She knew thatsubornation was happening and she decidedto ignore it,” Bennett said at the hearing.

In response to the prosecutorial misconduct,Graves’ attorneys have argued their clientwould never receive a fair trial in BurlesonCounty, but the same judge presides over fourcounties, and a change of venue outside thelocal area would not likely be granted. Burle-son County is 95 miles northwest of Houston.

The state’s evidence against Graves consistedof Carter’s eyewitness testimony that Graveshelped him commit the murders. There wasno other evidence linked Graves to Carter orthe murder scene. The night before he was totestify, Carter told prosecutors he lied aboutGraves’ involvement and admitted to killingall the family members himself. Carter said,“I did it all myself, Mr. Sebesta. I did it allmyself.” Scroggins’ trial partner was then-District Attorney Charles Sebesta, and neitherprosecutor disclosed to Graves’ lawyers thatCarter recanted before those prosecutors elic-ited Carter’s trial testimony implicatingGraves. Carter was eventually executed, in-sisting on Graves’ innocence right up to thetime his lethal injection was administered.

A decade after the Sommerville murders,Professor Nicole Casarez’s investigativejournalism class at the University of St.Thomas in Houston took an interest in theGraves case. The journalism class consti-tutes the UST Innocence Project, which is apart of the Texas Innocence Network. Casa-rez and her students uncovered the constitu-tional violations by the Burleson Countyprosecutors after several years of digging.The new evidence attracted the attention ofHouston media, and eventually led to theappeals court order that Graves be releasedor retried.

After Graves’ conviction was overturned bythe federal court, Sebesta made frequentappearances in the local media to defend hisreputation. Sebesta claims he never toldGraves’ lawyers about Carter’s exculpatorystatement because he did not believe him.Sebesta has explained he thought Cartersimply had “cold feet” about testifying atGraves’ trial.

However, testimonyat the November 30hearing contradictsDA Sebesta’s story.Former St. Thomasstudents of Casarezwho attended thehearing said they

were stunned when one ofGraves’ primary accuserschanged his story after more than a decade.Senior Captain Ray Coffman of the TexasRangers, admitted he heard Carter confesssole responsibility for the murders numeroustimes. Coffman, who lead the 1992 investiga-tion against Graves, originally testified that,although Carter frequently changed his storyabout what happened the night of the mur-ders, he claimed to have acted alone only once.

At the November 30 hearing one of Graves’attorneys asked Coffman if Carter told pros-ecutors that Graves was innocent. Accord-ing to transcripts, Coffman answered, “Oh,sure. Several times.” Coffman also testified

that he always informed Sebestawhen Carter told him that Graveswas innocent, but said he never doc-umented the statements in any of hiswritten reports.

In the appellate ruling issued evenbefore Coffman’s latest disclosure,the Fifth Circuit Court questioned hisinvolvement in DA Sebesta’s mis-conduct.

“Although there is no factual findingregarding whether Ranger Coffmanknew of Carter’s statement that he

committed the crimes alone, Sebesta clearlyknew of the statement and used RangerCoffman as well as Carter to present a pic-ture of Carter’s consistency that Sebestaclearly knew was false,” the court stated.

One of Casarez’s former students, Gia Gusti-lo, who first began investigating the Gravescase five years ago, said she was not surprisedthat Coffman knew of Carter’s statements butsaid she was surprised that Coffman finallydecided to tell the truth. She said that bypresenting false testimony in Graves’trial,Coffman and Sebesta “cheated” Graves out ofhis right to properly defend himself.

“It should have been the jury’s job, notRanger Coffman’s, to say if Robert Carter’sstatements were credible. And it shouldhave been Mr. Graves’ right to have thatinformation so that he could show the jurythat Carter was lying on the stand,” Gustilosaid. “But then again, a lot of things hap-

Capital Conviction Tossed BecauseProsecutors Concealed Evidence— The Anthony Graves Story

By Erika McDonald

Graves cont. on p. 4

The special prosecutor appointed to take over AnthonyGraves’ case, Navarro County Criminal District Attorney

Patrick Batchelor, is experienced in securing a wrongfulconviction based on shaky evidence. He was the prosecutorof Cameron Todd Willingham, convicted of setting a fire thatkilled his three children in 1991. As Willingham’s executiondate approached the Chicago Tribune reported that his con-viction was based on outmoded theories used to identifyarson. Five arson experts signed a report that found the trialtestimony the jury relied on to convict Willingham was basedon out-of-date assumptions. In spite of the new evidencesupporting Willingham’s possible innocence, Governor RickPerry declined to intervene and he was executed in 2004.

Anthony Graves


Clinton Oliver, Donald Krieger andAndrew Mendez, felt they had a stroke

of luck when Oliver’s younger sister gavethem three tickets to attend a June 2002Cleveland Indians baseball game at JacobsField. Oliver’s sister had won the tickets forbeing the MVP on her softball team at ElyriaHigh School. Unable to attend the game, shegave the tickets to her older brother. Littledid her brother and his friends know, as theybounced into the stadium, that they wouldbe subjected to a false arrest, wrongfulprosecution, and for at least Mendez, whatnow appears to be a wrongful conviction.

On June 11, 2002, Oliver, Krieger and Mendezentered Jacobs Field and began watching thegame from the upper level. After the gamebegan Oliver and Krieger moved to box seatsat ground level, while Mendez stayed in theupper deck. In the top of the ninth inning, an

explosion in the lower-levelsmoking area shook the stadiumand injured four people.Witnesses providedcontradictory statements aboutthe device causing theexplosion. One witnessdescribed it as a “small soupcan,” thrown from the upperlevel. No one saw who threw it,

but Mendez was seated in the upper deckabove the explosion. Stadium authoritiesarrested all three young men because theirtickets had adjoining upper level seat numbers.

Oliver and Krieger were held for four days inthe Cuyahoga County Jail in Cleveland, Ohiobefore a stadium security camera tape showedthat they were seated at ground level whenthe explosion occurred. They were released,but Mendez wasn’t as fortunate. Even thoughno one saw him throw the explosive device,he was charged and convicted after a benchtrial of aggravated arson, assault, threecounts of negligent assault, and sentenced tospend three years in the Ohio prison system.He was paroled after seven months.

Krieger and Oliver filed a civil suit in theCuyahoga County Common Pleas Courtagainst the city of Cleveland that alleged

malicious prosecution, false arrest andintentional infliction of emotional distress.

During the trial in November 2006, Olivertestified he was a Marine home on medicalleave when he was arrested, and he wasprevented from re-enlisting because of thecharges. Now an auto salesman, Oliver toldthe jury, “'I was devastated. They took mycareer.” Testimony at the trial was the threemen were kept in a holding cell that smelledlike urine and they had to sleep with toiletpaper in their ears to keep roaches fromentering their ears. In addition they weredeprived of showers, toothbrushes, soap,mattresses, blankets or pillows, and given papercoveralls to wear. They slept on bare steelbunks, and the cell they were held in was sofilthy their feet stuck to the floor when theywalked. Oliver testified that the time he spentin the holding cell was the longest 96 hours ofhis life.

John Spellacy, Krieger’s attorney, told thejury that the men “were falsely accused, butwhat happened to them in jail compoundedthis miscarriage of justice.” Oliver’sattorney, John Chambers, compared themen’s jail stay to a “prisoner of warsituation” that the police hoped wouldsqueeze confessions out of them.

On November 9, 2006, the jury deliberatedfor an hour and a half before awarding bothOliver and Krieger $400,000 in compensatorydamages and $600,000 in punitive damages.The jury forewoman said of the eight personjury as she left the courthouse, “We were allin agreement that the plaintiffs were wronged.”Spellacy expressed his thoughts, “The juryspoke loud and clear about how these innocentguys were treated. Obviously, they weredisgusted and wanted to send the message sothis doesn’t happen to other people.”

Ohio’s Court of Appeals affirmed Mendez’sconviction in June 2004. Among Mendez’smany arguments was that a stadiumsurveillance video filmed the explosive devicefalling 16 feet in one second. In his briefMendez included physics calculations that if it

upper level where he was sitting, it would havebeen falling at four times that velocity – thus ithad to have been thrown from the level belowwhere he was sitting. The Court rejected thatscience based argument without evenconsidering it, stating that the calculationsMendez provided “requires explanation inorder to apply. It contains terms that are notgenerally known such as “final velocity,”“average velocity,” and the “acceleration ofgravity.” The Court then stated, “Judicial notice

Two Men Awarded $1 MillionEach After False Arrest For

Baseball Game Explosion — ThirdMan Fights Wrongful Conviction

By James F. Love

pened in this case that shouldn’t have andthat’s why Anthony Graves has been ondeath row for more than a decade.”

After the state did not act to retry Graves ormove for a bond hearing within 120 days ofthe 5th Circuit’s decision, in October 2006,U.S. District Judge Samuel Kent set Gravesbond at $50,000, with a $5,000 cash pay-ment. His pro bono attorneys posted thebond, but the Texas Attorney General’s Of-fice appealed to the 5th Circuit Court ofAppeals. Although the appeals court upheldKent’s authority to set the bond, they stayedGraves’ release until January 4, 2007, to givethe AG the opportunity to request a statecourt bond hearing . On December 20, with-out holding a hearing, Burleson County Dis-trict Judge Reva Towslee-Corbett set Graves’state bond at $1 million. One of Graves’attorneys, Jeff Blackburn, said the bond was,“a ridiculous amount designed to do nothingbut keep him locked up.”

Graves attorneys petitioned the U.S. Dis-trict Court to order his release on thegrounds that the federal bond had been paidand the state bond was excessive. On Janu-ary 5, 2007, U.S. Magistrate John Froesch-ner decided that the federal court lacked

jurisdiction to interfere the state bond, “Ican agree with you that it sounds prettyexcessive and pretty oppressive, but that’sthe business of the state court.”

Graves is being held in Burleson County’s jailawaiting a decision by the special prosecutoron whether he will be retried, or released of acrime that he has unwaveringly claimed hedidn’t commit, and that Carter went to hisgrave insisting he was innocent of committing.

• This article is primarily based on the first-hand information of Erika McDonald, a formerstudent of Professor Nicole Casarez’s investi-gative journalism class at the University of St.Thomas that researched Anthony Graves case.Secondary sources:Judge calls bond for former death-row in-mate ‘excessive’, by Harvey Rice, HoustonChronicle, January 5, 2007.New prosecutor named to retry anthonygraves, by Melissa Phillip, Houston Chron-icle, January 10, 2007Texas prisoners claiming innocence canwrite the Texas Innocence Network at:Texas Innocence NetworkUniversity of Houston Law Center100 Law CenterHouston, TX 77204

Graves cont. from p. 3

Baseball cont. on p. 9


Leslie Vass’ odyssey is a horrifyingtale of how Maryland’s criminal

justice system fails the innocentthroughout their lives. More thantwenty years after his release fromprison, Vass is still struggling with theaftereffects of his wrongful 1975 con-viction that just won’t disappear fromMaryland’s law enforcement records, inspite of two court orders for its expungement.

Vass was 16 when he was arrested andjailed in 1974 for an armed robbery he didnot commit. He was sentenced to 20 yearsimprisonment after his 1975 conviction inthe Baltimore City Circuit Court. AfterVass was imprisoned for almost ten years,the South Baltimore robbery victim cameforward to say he had identified the wrongman to police, and that Vass did not committhe robbery. Vass’ conviction was vacatedand he was freed in 1984.

Vass sued various state agencies for hiswrongful imprisonment. In 1987 he settledwith the State of Maryland for $250,000 tobe paid in installments over eight years.

Maryland had no statute for compensating awrongly convicted person when Vass wascompensated in 1987; his was a case of firstimpression. After Kirk Bloodsworth wasreleased in 1993 from nine years of wrong-ful imprisonment for a rape-murder hedidn’t commit, Maryland’s $300,000 pay-ment to him was based on the compensationprecedent established in Vass’ case.

Unknown to Vass at the time of his settle-ment, was that state officials would addinsult to the injury of his wrongful impris-onment by failing to comply with the orderof two judges for expungement of the armedrobbery conviction from Vass’ criminal re-cord. So anyone inquiring about Vass’criminal record – whether they were a po-tential employer, a member of the public, alaw enforcement officer, or a court employ-ee – would be mislead to believe that Vasswas a potentially dangerous ex-con, whenin fact he was the survivor of a terriblemiscarriage of justice.

In 1999 Vass sued the state for the failure ofstate agencies to erase his erroneous crimi-nal charges and conviction from his crimi-nal record. Vass was paid $50,000 to settlethat lawsuit. After the settlement, Vass toldthe Washington Post during an interview, “Iam not happy at all about this,” explainingthat he agreed to the state’s low offer so hecould quickly get money to pay off bills andavoid eviction from his home. He also said,“I just hope no one else ever has to go

through what I’ve been through because ofmistakes made by the state.” On a morehopeful note he said, “I want to help otherpeople. If I be positive, I’ll do positive.”

Unfortunately for Vass, Maryland officialsdidn’t share his desire to do right by people.Even after two judges had ordered expunge-ment of Vass’ criminal record and Marylandpaid $50,000 to Vass for failing to do so,state officials still did not correct his record.

Vass found that out the hard way in March2004, when he was arrested after his es-tranged wife accused him of stabbing her.He learned that his 1975 conviction re-mained on the books when the judge re-fused to grant bail because of his criminalrecord as a dangerous felon. The stabbingcharge was false, and the jury showed itbelieved his testimony by acquitting him inJuly 2005. But that wasn’t until Vass hadlost another 16 months of his life to falseimprisonment, and he had also lost the com-pany of his children who were placed infoster care. Those bad things happened toVass solely because the judge relied on hiserroneous criminal record to deny bail whileVass awaited trial.

During an interview with Baltimore’s WJZ-TV after his acquittal and release from jail,Vass said about his unexpunged 1975 con-viction, “This has been going on for years,and I’m tired of it. Why keep holding it overme and using it against me?”

This latest example of egregious behaviorby the state against Vass may be immunefrom suit or compensation. Why? When in1999 Vass accepted the settlement of$50,000 for Maryland’s failure to expungethe 1975 conviction, he signed an agreementbarring him from seeking further relief. Thatprovision would be an honest and legitimatebar from further litigation if Maryland hadcomplied in good faith with the very subjectof the 1999 compensation settlement. Yetthe two judicial orders for expungement ofVass’ wrongful conviction still have notbeen honored or fulfilled to this day, manyyears after the 1999 settlement.

Vass has experienced periods of very toughtimes since his release from prison in 1984,and it hasn’t helped that he has been unfair-

ly burdened by having an erroneouscriminal record as a violent ex-con.Former Baltimore Sun columnistMichael Olesker wrote that Vasswas homeless, jobless, and penni-less at various times in the 1990s.

Vass was hopeful that he had turnedthings around for himself when he graduat-ed with a BA in Sociology, and obtainedcertificates in Paralegal Studies and Com-puter Office Specialist Training. Thosequalifications landed him a full-time job in1999 as a placement specialist with theMaryland Job Service, a part of the Mary-land Department of Labor, Licensing, andRegulation. He enjoyed his job for fiveyears, earned numerous awards, and thoughtthe bad times were over. But his positionwas eliminated in 2003 when the office wasphased out, and that was followed by thefalse stabbing charges.

Now almost 50, Vass lives with his parentsand hits the pavement with his resume tolooking for a living wage job that will en-able him to get his own place, get his chil-dren out of foster care, and once againrestart his life. Ironically, even though hewas employed with the State of Maryland asa job placement counselor, he has had diffi-culty placing himself in a job, largely due tothe ghostly criminal conviction that hasnever vanished in spite of multiple courtorders. Vass’ vacated conviction turns uplike an apparition when a prospective em-ployer runs a criminal background check onhis name.

In recent story about Vass’ case,Baltimore’s WJZ-TV reporter Richard Sherdescribed Vass’ unexpunged conviction asa “nuisance” to him, but it has been muchworse than that.

So the saga goes on, with Leslie Vass repeat-edly victimized for more than three decadesby Maryland’s system of “justice,” with noend in sight. Edgar Allen Poe, who died inMaryland, was the author of classic horrortales. While Poe’s tales were fiction, Mary-land has written a true-life horror tale forLeslie Vass that shows no signs of ending.

Sources:“After stay in hospital, man back in the cold,” bycolumnist Dan Rodricks, Sun-Sentinel, Fort Lauder-dale, Florida, February 20, 2006“Still Struggling with Wrongful Conviction after 31years,” truthinjustice.org, January 31, 2006, citingWashington Post and WJZ-TV as sources.“Wrongfully convicted,” by Leslie Vass,mdwrongfullyimprisoned.org, September 17, 2005“Wrongfully convicted Maryland man gets paid againfor State’s mistake,” Jet magazine, January 18, 1999

Leslie Vass HauntedBy Unexpunged 1975Wrongful Conviction

By Douglas Scott Arey


Carey v. Musladin,127 S.Ct. 649 (U.S. 12/11/2006)

[1] SUPREME COURT OFTHE UNITED STATES

[3] 127 S.Ct. 649,2006.SCT.0000193< http://www.versuslaw.com>

[4] December 11, 2006

[15] Thomas, J., delivered theopinion of the Court ...

[16] On Writ Of Certiorari ToThe United States Court Of Ap-peals For The Ninth CircuitCourt: 427 F. 3d 653

[19] This Court has recognizedthat certain courtroom practicesare so inherently prejudicial thatthey deprive the defendant of afair trial. Estelle v. Williams,425 U. S. 501, 503-506 (1976);Holbrook v. Flynn, 475 U. S.560, 568 (1986). …

[21] On May 13, 1994, respon-dent Mathew Musladin shot andkilled Tom Studer outside thehome of Musladin’s estrangedwife, Pamela. At trial, Musladinadmitted that he killed Studer butargued that he did so in self-de-fense. A California jury rejectedMusladin’s self-defense argumentand convicted him of first-degreemurder and three related offenses.

[22] During Musladin’s trial, sev-eral members of Studer’s familysat in the front row of the specta-tors’ gallery. On at least some ofthe trial’s 14 days, some membersof Studer’s family wore buttonswith a photo of Studer on them.Prior to opening statements,Musladin’s counsel moved thecourt to order the Studer familynot to wear the buttons during the

trial. The court denied the motion,stating that it saw “no possibleprejudice to the defendant.” …

[23] Musladin appealed his con-viction to the California Court ofAppeal in 1997. He argued that thebuttons deprived him of his Four-teenth Amendment and SixthAmendment rights. At the outsetof its analysis, the Court of Appealstated that Musladin had to showactual or inherent prejudice to suc-ceed on his claim and cited Flynn,supra, at 570, as providing the testfor inherent prejudice. … the courtconcluded, again quoting Flynn,supra, at 571, that the buttons hadnot “branded defendant `with anunmistakable mark of guilt’ in theeyes of the jurors” because “[t]hesimple photograph of Tom Studerwas unlikely to have been taken asa sign of anything other than thenormal grief occasioned by theloss of [a] family member.” …

[24] At the conclusion of the stateappellate process, Musladin filedan application for writ of habeascorpus in federal district courtpursuant to §2254. In his applica-tion, Musladin argued that the but-tons were inherently prejudicialand that the California Court ofAppeal erred by holding that theStuders’ wearing of the buttonsdid not deprive him of a fair trial.The District Court denied habeasrelief but granted a certificate ofappealability on the buttons issue.

[25] The Court of Appeals for theNinth Circuit reversed and re-manded for issuance of the writ,finding that under §2254 the statecourt’s decision “was contrary to,or involved an unreasonable appli-cation of, clearly established Fed-eral law, as determined by the

Supreme Court of the UnitedStates.” §2254(d)(1). According tothe Court of Appeals, this Court’sdecisions in Williams and Flynnclearly established a rule of federallaw applicable to Musladin’s case.… We granted certiorari, 547 U. S.___ (2006), and now vacate.

[27] Under the Antiterrorismand Effective Death Penalty Actof 1996, 110 Stat. 1219:

[28] “(d) An application for awrit of habeas corpus on behalfof a person in custody pursuantto the judgment of a State courtshall not be granted with respectto any claim that was adjudicat-ed on the merits in State courtproceedings unless the adjudica-tion of the claim —

[29] “(1) resulted in a decisionthat was contrary to, or involvedan unreasonable application of,clearly established Federal law,as determined by the SupremeCourt of the United States.” 28U. S. C. §2254(d)(1).

[30] In Williams v. Taylor, 529U. S. 362 (2000), we explainedthat “clearly established Federallaw” in §2254(d)(1) “refers tothe holdings, as opposed to thedicta, of this Court’s decisionsas of the time of the relevantstate-court decision.” Id., at 412.Therefore, federal habeas reliefmay be granted here if the Cali-fornia Court of Appeal’s deci-sion was contrary to or involvedan unreasonable application ofthis Court’s applicable holdings.

[32] In Estelle v. Williams andFlynn, this Court addressed theeffect of courtroom practices ondefendants’ fair-trial rights. InWilliams, the Court considered“whether an accused who is com-pelled to wear identifiable prisonclothing at his trial by a jury isdenied due process or equal pro-tection of the laws.” 425 U. S., at502. The Court stated that “theState cannot, consistently with theFourteenth Amendment, compelan accused to stand trial before ajury while dressed in identifiableprison clothes,” id., at 512, butheld that the defendant in that casehad waived any objection to beingtried in prison clothes by failing toobject at trial, id., at 512-513.

[33] In Flynn, the Court ad-dressed whether seating “fouruniformed state troopers” in therow of spectators’ seats immedi-ately behind the defendant at trialdenied the defendant his right toa fair trial. 475 U. S., at 562. TheCourt held that the presence ofthe troopers was not so inherentlyprejudicial that it denied the de-fendant a fair trial. Id., at 571. …

[34] Both Williams and Flynndealt with government-sponsoredpractices: In Williams, the Statecompelled the defendant to standtrial in prison clothes, and in Fly-nn, the State seated the troopersimmediately behind the defendant.Moreover, in both cases, this Courtnoted that some practices are soinherently prejudicial that theymust be justified by an “essentialstate” policy or interest. …

[36] In contrast to state-sponsoredcourtroom practices, the effect ona defendant’s fair-trial rights ofthe spectator conduct to whichMusladin objects is an open ques-tion in our jurisprudence. ThisCourt has never addressed a claimthat such private-actor courtroomconduct was so inherently preju-dicial that it deprived a defendantof a fair trial. …

[38] Given the lack of holdingsfrom this Court regarding the po-tentially prejudicial effect of spec-tators’ courtroom conduct of thekind involved here, it cannot besaid that the state court“unreasonabl[y] appli[ed] clearlyestablished Federal law.”§2254(d)(1). No holding of thisCourt required the California Courtof Appeal to apply the test of Wil-liams and Flynn to the spectators’conduct here. Therefore, the statecourt’s decision was not contraryto or an unreasonable applicationof clearly established federal law.

[40] The Court of Appeals improp-erly concluded that the CaliforniaCourt of Appeal’s decision wascontrary to or an unreasonable ap-plication of clearly establishedfederal law as determined by thisCourt. For these reasons, the judg-ment of the Court of Appeals isvacated, and the case is remandedfor further proceedings consistentwith this opinion.

U.S. Sup. Ct. Restrictively InterpretsFederal Habeas For State Convictions

The U.S. Supreme Court sent a clear message in its December 2006decision in Carey v. Musladin, 127 S. Ct. 649, that federal courts

were to strictly interpret the requirement in the Antiterrorism andEffective Death Penalty Act of 1996, that habeas relief was only to begranted to a state prisoner’s claim if the state court’s adjudication:(1) resulted in a decision that was contrary to, or involved an unrea-sonable application of, clearly established Federal law, as determinedby the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1).

The following are excerpts from the Court’s decision.


Duarnis Perez was deported to the Do-minican Republic in 1996 after a

felony drug conviction. At the time the23-year-old Perez had lived in the UnitedStates for more than a dozen years.

Perez was arrested four years later at a NewYork border checkpoint while trying to enterthe U.S. from Canada. Perez pled guilty toone count of illegal reentry after deportation(8 U.S.C. 1326). He was sentenced to 57-months federal imprisonment to be followedby three years of supervised release. Afterserving his prison sentence Perez was re-leased from the federal Bureau of Prison’scustody on April 9, 2004.

He met the next day with an Immigrationand Customs Enforcement (ICE) officer,because he was being held in custody on animmigration detainer. The ICE officer toldPerez he couldn’t be deported because hewas a U.S. citizen. Unbeknownst to Perez,his mother, or his lawyers in 1996 or 2000,he automatically became a U.S. citizen atthe age of 15, when his mother was natural-ized in 1988. Released from ICE custody,Perez was subsequently issued a Certificateof Citizenship dated July 2, 2004.

Based on the new evidence that he had beena U.S. citizen since 1988, in January 2005Perez filed a writ of error coram nobis tovacate his conviction for illegal reentry.Due to his supervised release status thatsubjected him to the custody of the federalgovernment, the U.S. District “Court or-dered that Perez recharacterize his applica-tion as one for a writ of habeas corpus,pursuant to 28 U.S.C. § 2255.” 1

In October 2005 Perez filed a § 2255 peti-tion requesting that his conviction be vacat-ed and his supervised release terminated.His petition relied on the argument that as aU.S. citizen he had been wrongfully deport-ed in 1996, and thereafter wrongfully con-victed of illegal reentry in 2000.

The U.S. Department of Justice (DOJ) re-sponded to Perez’s habeas corpus petition byclaiming his conviction should stand, becauseit was his responsibility to know his citizen-ship status, not the federal governments. TheDOJ also asserted that Perez could have dis-covered he was a U.S. citizen if he had exer-cised “due diligence,” so they contended hewas procedurally barred from filing his habeaspetition, because the one-year time periodbegan tolling after his sentencing in 2000.

Perez countered that neither he nor his mother,nor his lawyers knew he automatically be-came a U.S. citizen in 1988 when his mother

was naturalized, because he was a minor un-der the age of 16 living legally in the U.S.under her sole custody. His mother had evenerroneously told him he wasn’t a U.S. citizen.Since he didn’t know of his correct citizenshipstatus until an officer of the federal govern-ment (ICE) informed him of that fact on April10, 2004, Perez contended the one-year filingperiod began tolling on that date under the“new evidence” exception to the deadline im-posed by the Antiterrorism and EffectiveDeath Penalty Act of 1996 (AEDPA).

The DOJ also contended that since Perezhad pled guilty he was barred from chal-lenging (collaterally attacking) his convic-tion. Perez countered that an exception tothat rule is when a petitioner presents newlydiscovered evidence that establishes his orher actual innocence of the crime. He ar-gued that being informed by an officer ofthe federal government after he pled guilty,that he was a U.S. citizen, satisfied the“newly discovered evidence” exception.

A third contention by the DOJ was thatPerez was procedurally barred from attack-ing his conviction by a habeas petition, be-cause his direct appeal only challenged hissentence. Perez countered that the miscar-riage-of-justice exception to procedurallydefaulting on a defense claim applied to hiscase, because at the time he filed his directappeal he did not know he was a U.S. citizen.

On August 15, 2006, U.S. District CourtJudge Lawrence Kahn issued his ruling onPerez’s habeas petition.

In regards to the DOJ’s first argument, thatPerez’s petition was time barred, Judge Kahnwrote: “The Court … finds that it was notunreasonable for Petitioner, once he had al-ready been deported [in 1996], to assume that

he was not a United States citizen. … De-portation is, in effect, notice, by the Gov-ernment, to the deportee that he is not aUnited States citizen. … The Court findsthat the statute of limitations did not beginuntil Petitioner was informed of his citizen-ship status by the ICE agent on April 10,

2004. As a result, the instant petition, whichwas filed on January 13, 2005, is timely.” 2

In regards to the DOJ’s second argument, thatPerez couldn’t collaterally attack his convic-tion by a guilty plea, Judge Kahn ruled: “Insum, a petitioner may challenge his guiltyplea if, in light of all new evidence providedby both the petitioner and the Government,the petitioner can show that a reasonable jurorwould have a reasonable doubt as to his guilt.… In support of his actual innocence claim,Petitioner advances his Certificate of Citizen-ship as newly discovered evidence to provethat he is, in fact, a United States citizen. …[T]he Court finds that Petitioner’s Certificateof Citizenship properly serves as new evi-dence to support his actual innocence claim.… Petitioner may advance a § 2255 petitionto challenge his guilty plea.” 3

In regards to the DOJ’s third argument, thatPerez had procedurally defaulted on hisdefense that he was a U.S. citizen chargedwith an offense reserved for non-citizens,Judge Kahn ruled, “The Supreme Court has,however, recognized a miscarriage-of-jus-tice exception to the general bar. Murray v.Carrier, 477 U.S. 478, 495 (1986). … [T]heCourt may review the petition on its meritsbecause Petitioner has established his actualinnocence, as the Court previously noted,based on newly discovered evidence.” 4

Having determined that he could considerPerez’s petition on its merits, Kahn wrote:

“A federal prisoner may move the court thatsentenced him to vacate his conviction andsentence when imposed in violation of theConstitution or laws of the United States. …The criminal justice system of the UnitedStates fundamentally serves to ensure that“the guilty be convicted and the innocent gofree.” Yet, … the Government opposes the §2255 petition while simultaneously concedingthat Petitioner is a United States citizen and,therefore, could not be properly prosecutedpursuant to 8 U.S.C. § 1326. … In effect, theGovernment is arguing that an innocent manwho was wrongly convicted should not bereleased from the custody of the United States.Moreover, the Government, in opposing apetition that would correct the wrongful con-viction of an innocent man, has wasted limitedjudicial and prosecutorial resources. Because

U.S. Citizen’s Conviction ForReentering The U.S. Vacated

By Hans Sherrer

“The Government is arguing that aninnocent man who was wrongly con-victed should not be released from thecustody of the United States. … Be-cause the prosecutor is the representa-tive of the Government in a criminalprosecution, his role is more than amere adversary; he is charged with en-suring that an accused receive dueprocess—that is, a fair trial.”U.S. District Court Judge Lawrence Kohn

Perez cont. on p. 8


An 18-year-old gas station attendant wasrobbed, abducted and raped in Ham-

mond, Indiana on October 5, 1980. Twomen, James Hill Jr. and Larry Mayes, werearrested for the crime and prosecuted asco-defendants. Both were convicted, withHill sentenced to 80 years in prison andMayes to 108 years.

In 2001 Mayes was excluded as the rapist byDNA testing unavailable at the time of hisconviction. His conviction was overturnedand he was released after a total of 21 yearsimprisonment. Hill had been released onparole in 1999 after serving 19 years, and his

petition to overturn hisconviction is pending asof late 2006.

Mayes filed a federal civilrights lawsuit in 2003seeking $19 million indamages for his more thantwo decades of false im-prisonment. The defen-

dants included the Hammond PoliceDepartment and several officers. Among thelawsuits’ allegations were that the officersfailed to take any notes during the investiga-tions first six-weeks, and they withheld fromMayes’ trial counsel the exculpatory evidencethat they pulled the victim off to the side andasked her to reconsider her identification ofanother person during a suspect line-up thatdid not include Mayes; and they used hypnosistechniques to “enhance” the victim’s memorybefore she selected Mayes from a photo lineupthat included multiple photos of him.

Mayes’ burden of proof in the civil suit wasextremely high. He had to show that the policedepartment’s overall procedures constituted asystemic failure resulting in negligent conducttowards the constitutional rights of suspects.

In a 106-page decision issued in July 7, 2006,U.S. District Judge Paul Cherry ruled againstthe defendant’s summary judgment motion,and allowed the case to proceed to trial. Heruled that Mayes had met his burden of show-ing there were material issues of fact requiringa jury’s determination in regards to whether ornot the Hammond Police Department hadfailed to provide even the most basic oversightand training for the detectives in Mayes’ case.

Mayes’ civil attorneys were Cochran, Neufeldand Scheck of New York City, the private forprofit law firm of Peter Neufeld and BarryScheck, co-directors of the non-profit Inno-

the prosecutor is the representative of theGovernment in a criminal prosecution, his roleis more than a mere adversary; he is chargedwith ensuring that an accused receive dueprocess—that is, a fair trial.” 5

The Supreme Court has, therefore, estab-lished that it is a violation of the accused’sconstitutional right to due process for theGovernment, in good faith or in bad faith, towithhold any material, exculpatory evi-dence whether or not the defendant explicit-ly requests this evidence. See Brady v.Maryland, 373 U.S. 83, 87 (1963). 6

The prosecutor, moreover, is obligated to dis-close any material, exculpatory informationthat is in its constructive possession—that is,any information that is in the possession of an“arm of the prosecution.” … Thus, the Courtmay impute, to the prosecutor, the knowledgeof any exculpatory evidence that is known toany government agent or agency involved inthe prosecution of a criminal case.” 7

…As the Government’s representative, theprosecutor has the responsibility to be awareof all information in the possession of theGovernment and ensure that this informa-tion, if favorable to the defendant, is dis-closed to the defense. Otherwise,government agents and agencies would beencouraged to withhold exculpatory evi-dence from the prosecutor in order to avoiddisclosing such information to the defense.Such a system would be manifestly unjustsince exculpatory information possessedsolely by a government agent or agency

would never come to light. Innocent defen-dants could face conviction since such de-fendants would not have access to theinformation that would exonerate them. 8

…No competent defense attorney would ad-vise his client to plead guilty to a charge onwhich the Government would be unable toconvict the accused. Therefore, if theprosecution’s failure to disclose evidencecould have, with reasonable probability,resulted in an inability to convict the ac-cused, that is grounds for vacating a convic-tion pursuant to 28 U.S.C. § 2255. 9

… [T]he evidence supporting the fact thatPetitioner is a United States citizen, if im-properly withheld, is material. 10

The Government had constructive knowl-edge of the fact that Petitioner was a UnitedStates citizen when he was prosecuted pur-suant to 8 U.S.C. § 1326. In 2000, when theGovernment prosecuted Petitioner for ille-gal reentry, the INS was the governmentagency that handled legal and illegal immi-gration and naturalization. … 11

The INS’s knowledge of Petitioner’s citi-zenship status may be imputed to the prose-cutor because the INS acted as a part of theprosecution team. … 12

In sum, the Government was obligated todisclose to Petitioner that he was a UnitedStates citizen because (1) that informationwas in the constructive possession of theprosecutor and (2) that information was ma-terial. Because the Government did not dis-close the material, exculpatory information

to him, Petitioner suffered a constitutionaldue process violation. … 13

… To deny a United States citizen the priv-ilege to reenter and remain in the UnitedStates, and the immunity from being con-victed for doing so, would be “repugnant tothe Constitution.” … 14

In the present case, because Petitioner has es-tablished that he is a United States citizen, it isa constitutional violation to convict him forreentering the United States. As a result, theCourt finds that Petitioner’s conviction and, inturn, his sentence should be vacated pursuantto 28 U.S.C. § 2255. 15

The vacating of Perez’s conviction may aidhis position in a federal civil rights lawsuitfor wrongful imprisonment he filed. Thedefendants include the federal BOP, theDOJ, and the Legal Aid Society in Albany,New York that represented him on the ille-gal reentry charge in 2000. That lawsuit ispending as of December 2006.

Endnotes:1 Perez v. United States, No. 1:05-CV-1294(N.D.N.Y. 08/15/2006); 2006.NNY.0000291 ¶13 <http://www.versuslaw.com>2 Id. at ¶¶24-26.3 Id. at ¶¶28, 30-31.4 Id. at ¶¶34-35.5 Id. at ¶¶37-38.6 Id. at ¶39.7 Id. at ¶40.8 Id. at ¶42.9 Id. at ¶44.10 Id. at ¶45.11 Id. at ¶46.12 Id. at ¶47.13 Id. at ¶48.14 Id. at ¶49.15 Id. at ¶50.

Larry Mayes Awarded $9Million For 19 Years

Wrongful ImprisonmentBy James F. Love

Perez cont. from p. 7

Mayes cont. on page 9

Photo by Jennifer Linzer


cence Project that aided in having the DNAtests conducted that led to Mayes’ release. 1

They presented evidence that when FrankDupey was appointed police chief in 1976, hewas a former patrolman without any experi-ence in supervising police or investigatingcrimes. He had been a clerk for Hammond CityJudge Ed Raskosky, and when Raskosky waselected mayor, he had asked Dupey to head thedepartment of 200 employees. Knowing he hadno experience, Dupey passed his responsibili-ties to oversee the department down the line toa captain, also without experience, who thenpassed the responsibilities down to Detective(Lieutenant) Mike Solan. Solan had been incharge of the investigation into the crimesMayes was convicted of committing.

None of the detectives involved in the rapeand robbery investigation, had any trainingin identification procedures to be used in arape case. In a lawsuit deposition given bySolan, he stated in response to a question byMayes’ counsel, “Identification procedure isso common. I mean, its not something that I

have to sit there and tell my detectives, youknow, get six pictures that are similar andmake sure they’re all the same race. I mean,we don’t have to go to 101 academics here.They know this stuff counselor.”

Yet the procedure Solan defended was that thewitness was asked to reconsider identifying aperson in a regular line-up who wasn’t Mayes,and the witness was then hypnotized beforefinally identifying Mayes in a six-picture pho-to-lineup that included several pictures of him.So contrary to Solan’s claim that the detec-tives involved in the investigation did not needa course in “101 academics,” Mayes’ misiden-tification was predictable because the proce-dures used by the detectives are well known toresult in an unreliable identification. In spiteof the shady identification procedures used inMayes’ case, there use wasn’t disclosed tohim until his conviction was overturned in2001 – 19 years after his trial.

Prior to the start of Mayes’ civil trial, lawyersfor the city of Hammond unsuccessfully at-tempted to call into question the certainty ofthe DNA evidence that freed him. They sug-gested that before the DNA testing in 2001,the evidence may have been compromisedwhile stored in the court evidence vault. It isnot well known to the general public, butpolice and prosecutors who are only too ea-ger to use DNA evidence to convict a crimi-nal suspect, have for the past 15 yearsattempted to call that same certainty of DNAevidence into question when it exonerates aperson convicted by non-DNA evidence.

Jury selection for Mayes’ civil trial began onAugust 7, 2006. The potential jurors wereasked if they would have any difficultyawarding millions of dollars in damages to anAfrican-American who had been wrongfullyimprisoned for several decades.

Mayes took the stand on August 16. He de-scribed what it was like to be confined for 19years in a maximum security prison convictedof a rape and robbery he had not committed –which had followed him being jailed for twoyears awaiting trial. The jurors were not per-mitted to hear evidence that Mayes had a priorconviction for rape and robbery. That priorunrelated conviction was why Mayes wastargeted by police for the crimes against thegas station attendent that he didn’t commit.

Two weeks after the trial began, the casewas submitted to the jury on August 22.After only 4-½ hours of deliberation the juryreturned a verdict against the city of Ham-mond and retired Detective Solan. Theyawarded Mayes $9 million.

Hammond’s attorney announced the citywould appeal the jury’s decision based onthe exclusion of evidence about Mayes’prior convictions.

In the years since Mayes’ conviction Solanhas been promoted from lieutenant to captainin Hammond’s Police Department. Before thecivil trial the city of Hammond told Solanthey would pay any damages awarded againsthim, and they paid for his attorney during thetrial. After the jury’s verdict they reneged andsaid they would only pay the first $300,000 ofhis portion of the award. Solan’s lawyer NickBrustin said of the city, “They have neverdisciplined him, never investigated him (formisconduct in Mayes’ case). Now, rather thanpay Larry Mayes, they are going to force(Solan) into bankruptcy.”

On December 8, 2006, a hearing was held inthe U.S. District Court to determine howmuch of the $9 million award Solan wasliable to pay. Solan testified his assets werevery modest. After the hearing Hammond’smayor, Thomas McDermott Jr., said the citywould have to sell municipal bonds to paytheir portion of the award, which would belevied as a small tax on city residents. Inaddition to the judgment, the city’s legalfees continue to mount. They totaled morethan $788,000 before their appeal was filed.Although it is unknown if they will be suc-cessful, Mayes’ attorneys are likely to re-quest that their legal fees and expenses beadded to the money he was awarded. Ifgranted, that would add an additional $3.6million plus to the award. Otherwise thelegal fees will be paid out Mayes’ $9 million.

After the jury returned the $9 millionaward, the 57-year-old Mayes said that hestill remembers Solan taunting him 25 yearsago, telling him that he “would be an oldman before he ever saw the outside again.”Mayes told reporters, “I just want to let himknow: ‘How you like me now?’”

Sources:“Hypnotism, withheld evidence highlighted in $21M law-suit,” by Joe Carlson, The Times (Munster, IN), July 17, 2006.“Hammond defends police practices,” by Joe Carlson,The Times (Munster, IN), August 9, 2006.“Defense firm fights to include DNA evidence in Ham-mond trial,” by Joe Carlson, The Times (Munster, IN),August 10, 2006.“Mayes takes stand in suit against copes,” by SusanBrown, The Times (Munster, Indiana), August 17, 2006.“Jury says city must pay $9 million in wrongful con-viction suit,” by Joe Carlson, The Times (Munster, IN),August 23, 2006.“Police officer faces paying part of $9 million law-suit,” By Andy Grimm, Post-Tribune (Merrillville,IN), December 9, 2006.1 Scheck and Neufeld publicize themselves as co-di-rectors of The Innocence Project at the Benjamin N.Cardozo School of Law at Yeshiva University, but TheInnocence Project’s IRS Form 990 (2005)doesn’t list them as having any official associ-ation with the organization.

Mayes cont. from page 8

will not be taken of such scientific facts andmatters, however, unless they are of suchuniversal notoriety and so generally understoodthat they may be regarded as forming part of thecommon knowledge of every person.”

Although Mendez’s argument that it isscientifically impossible for him to havethrown the firecracker relied on theunderstanding of physics pioneered by Sir IsaacNewton in 1679, the Court decided thatbecause Mendez relied on a scientific formulabeyond a layperson’s expected knowledge, “wedecline to take judicial notice. Consequently,Mendez’s first assigned error is overruled.” 1 InNovember 2004 the Ohio Supreme Courtdeclined review of Mendez’s conviction.

Oliver is so convinced of Mendez’sinnocence that after the jury awarded him $1million, Oliver said he was going to use themoney to hire an attorney for his friend’sfight to exonerate himself. Oliver said ofMendez, “I swear on my life he didn’t do it,”he said, “No, I take that back – I swear on myMarine reputation.”

Endnote and Sources:1 (State v. Mendez, 2004 -Ohio- 3107 (Ohio App. Dist.806/17/2004); 2004-ohio-3107, 2004.OH.0002907 ¶¶43-45< http://www.versuslaw.com>)

“Two win Jacobs Field bomb suit. Jury awards each $1million for false accusation,” By James F. McCarty,Cleveland Plain Dealer, November 10, 2006.“Jury Awards Fan $1 Million,” by Matt Suman,Cleveland Morning Journal, November 11, 2006.

Baseball cont. from p. 4


Her name is Catherine Williams. I want totell you about Catherine because she is

someone who, over the last four years, I havecome to know well, and who has taught memuch about perseverance, persistence, endur-ance and faith.

Catherine Williams is an African Americanwoman in her mid-forties. She is a singlemom. She lives in Americus, Georgia andworks at a nursing home.

In April 2001, Catherine Williams called me onthe telephone asking for the Prison & JailProject’s help. The story she shared with mewas this: Two years earlier in 1999, CatherineWilliams’ then-18-year-old son Tacoma hadbeen arrested and charged with several crimi-nal offenses — falsely so-she believed. Cathe-rine, who is not a wealthy woman by anymeans, scraped up $750 to hire an Americusattorney. The $750 was the amount this lawyerrequired to take Tacoma’s case and to file thenecessary paperwork and motions to beginrepresenting the young man. Then severalmonths later, in early 2000, the lawyer calledCatherine demand another $1,500 because hewas “going to take the case to trial” and neededthe money to do that. It was money she didn’thave, but convinced of her son’s innocence andthe lawyer’s legal abilities, she found the$1,500 and handed it over to the attorney.

Months went by and she heard nothing morefrom the lawyer. Later that year, 2000, thelawyer’s office called her and said they weregoing to need even more money from her,that the case was going to trial and theyneeded to hire an investigator to check oncertain matters. Catherine was unable toraise any additional money; the lawyer toldher that the $1,500 she had paid him earlierwould not be sufficient.

Then in October, 2000, Catherine was visit-ing neighbors when the grandmother of thecodefendant in the case against Tacomacalled out to her: “Hey, did you hear the goodnews? The DA’s office dropped the chargesagainst my grandson and Tacoma!” Cathe-rine was puzzled. She had just days earliertalked to Tacoma’s lawyer who was demand-ing more money from her because“Tacoma’s case was going to trial.”

Catherine called thelawyer’s office tofind out if the caseagainst Tacoma hadindeed been dis-missed. The attorneysaid no, and again de-manded more moneyfrom Catherine.

A confused but determined Catherine Wil-liams then went in person to the districtattorney’s office in Americus and askedabout her son’s case. “We dismissed thosecharges last month,” the district attorneysaid, handing a copy of the indictment toMs. Williams that had stamped “nol-prossed” on the paper, dated October, 2000.

Catherine returned home and immediatelyput in a call to the lawyer’s office. She toldhis secretary that she had a copy of the legaldocument showing that Tacoma’s case hadbeen dismissed. The secretary denied thatthe case was dismissed. Catherine hung upthe phone. Minutes later the lawyer himselfcalled her back to tell her that, yes, the DAhad decided to dismiss the case.

Catherine was incensed. “You knew thiscase had been dismissed and yet you weretrying to get more money from me. Youhave been lying to me.” The lawyer claimedignorance. Catherine demanded that he re-turn the $1,500 she had paid him a yearearlier, telling him, “You didn’t do anythingat all on this case.” The lawyer refused torefund Catherine Williams any of the money.

Catherine told me all this in that April 2001phone call to me and then, several dayslater, in person, when I first visited her inher home. She showed me the receipts shehad for both the $750 retainer fee, and the$1,500 additional fee the lawyer had initial-ly demanded of her. I was astonished. I toldCatherine that in all likelihood she wasentitled to be refunded at least the $1,500she had forked over to the attorney.

On April 13, 2001 a determined CatherineWilliams and I sat down and drafted a letter tothe lawyer, formally requesting that he refundthe money to Catherine. We waited threeweeks but there was no response to our letter.

She and I then filed a grievance against theattorney on May 7, 2001 with the GeorgiaBar Association, asking that the Bar investi-gate the matter. The Bar in turn notified thelawyer that our grievance had been filed; thelawyer responded to the Bar, and in hisresponse actually fabricated invoices andother documents to make it appear as though

he had properly represented Tacoma Wil-liams in the early stages of the criminal case.In June 2001, Catherine and I filed a rebuttalto the lawyer’s statement, taking him onpoint-by-point-by-point.

More time went by. In December 2001 wegot word that the lawyer had been disbarred.He was disciplined by the Bar not because ofhis shoddy representation of Tacoma Wil-liams but because of other, even more seriouscomplaints filed against him. It was duringthis period of time that the attorney had beenindicted locally for cocaine possession. “Sothose who are last will be first, and those whoare first will be last, “ Catherine told me onemorning when I visited her at her home.

Although the bar gives aggrieved clients likeCatherine a chance to recoup money takenfrom them by shyster lawyers and ex-lawyers,the lawyer in question had been disbarred. Soit was uncertain that the Bar had any furtherauthority over whether or not he made thingsright with any of the clients he’d ripped off.

It was also at this time that Catherine re-ceived a package from the Georgia Barasking that she fill out a pile of forms so thatshe could apply for reimbursement of the$1,500 from the Bar’s “Clients’ SecurityFund.” Catherine filled out this set of formsand we sent them to the Bar.

More time went by. In June 2002, Catherinecalled me to ask what more, if anything, shecould do. I was not very encouraging to her,but I did call the Bar for an update. I wastold Catherine could still file a request tohave the matter “arbitrated” by Bar-chosenarbitrators. We did make that request, re-quiring Catherine to fill out yet more forms,swear out an affidavit, and so on.

We then heard nothing for quite some time.Catherine would call me on occasion, or stopat my office, to ask about her grievance, butmore significantly, let me know she was notgoing to give up the fight. She must havesensed that I was having serious doubts aboutprospects for success in her quest for justice.Indeed, I was getting weary, and very cynical.I didn’t tell her this, but I was starting to feelthat there was no way the high and mightylegal system was going pay serious attentionto one African American women in Americus,Georgia complaining about losing what was tothem a piddly $1,500. It felt futile to me.

I remember visiting one time and wonder-ing aloud to Catherine if the Georgia BarAssociation really cared about the misbe-havior of Georgia’s lawyers, if it was inter-

Mother Refunded MoneyPaid To Shyster LawyerHired To Defend Her

Innocent Sonby John Cole Vodicka

Mother continued on p. 11

Catherine Williams holdingrefund check


ested in the consumer at all. Catherinelooked dead at me across her kitchen tableand said. “Jesus looked straight at his disci-ples saying, ‘This is impossible for humanbeings, but for God everything is possible.’”

Eighteen months later the Bar notified Cathe-rine that a fee arbitration hearing had been setup and that on December 18, 2003, she was toappear in Americus before three arbitrators.

I was not available to be with Catherine onDecember 18, 2003, having committed toother matters on that day. So Catherine Wil-liams went into a conference room in anAmericus law office to sit in front of threewhite male arbitrators, with the offendinglawyer and his attorney present. She confront-ed the lawyer face-to-face and demanded thatshe be refunded the $1,500 he “swindled”from her 4-1/2 years earlier! She told herstory. The lawyer became belligerent at thishearing, Catherine said, and called her names,made false accusations against her, and, atone point, had to be restrained by his lawyer.Catherine said she sat upright throughout thehearing, looked each of the men in that roomin the eye, and told them that she was confi-dent “truth would win the day.” “It’s in God’shands,” she said, “and God knows the truth.”

Six months later, in June 2004, Catherinereceived word that the arbitration panel hadvoted 2-1 to award her the $1,500! We wereelated. But not long after, we were informedthat the lawyer had refused to be bound bythe arbitrators’ decision, since he was nolonger licensed to practice law. There wouldbe no money coming her way. Her onlyoption, according to the Bar official, was totake the now-disbarred lawyer to court overthe arbitration, something that would takeeven more time, require legal assistance,and, in all likelihood, not be successful.

I was disappointed, mostly for Catherine. I wasalso assuming that it was time to throw in thetowel. You gave it your absolute best shot,Catherine. I told her. You forced people in highplaces to at least take notice about what hap-pened to you; maybe in the future others willgain from your trailblazing effort. Catherine’sresponse was to quote to me a scripture passagefrom Luke’s gospel: “The seeds that fell in agood soil stand for those who hear the messageand retain it in a good and obedient heart, andthey persist until they bear fruit.”

Catherine continued to hold out hope, and wepetitioned the Bar Association once again toconsider appointing her an attorney to file thearbitration litigation against the lawyer. To

my absolute surprise, the Bar agreed to do justthat! Catherine received a letter from the Barin April 2005 telling her that not only wouldthey appoint an attorney to represent her, butthat the lawyer they chose for her was theGeorgia Bar Association’s General Counsel!

“If you believe, you will receive whateveryou ask for in prayer,” Catherine told me onthe telephone that day.

Then, one month later, on May 9, 2005,Catherine called me early that morning. Inher voice I could detect the smile on her faceand the sparkle in her eyes as I listened toher words to me: “John, I got another letterfrom the Bar people, that Clients’ SecurityFund we applied to back in December 2001.They’ve agreed to send me $1,500.” Cathe-rine chuckled. “But I have to fill out somemore forms first, and get them notarized.”

I cradled the phone on my shoulder and wipedtears from my eyes as I listened to Catherineread to me the letter she’d just received fromthe Bar’s representative. I jumped into my carand drove out to her house to look at the lettermyself, to celebrate with this courageous, per-severant woman this monumental victory shehad achieved. We filled out the forms, I put mynotary stamp on the documents and we mailedthe material back to the Bar that very day.

Two weeks later a certified check for$1,500 in Catherine Williams’s mailbox.Catherine gave me permission to come backout to her house to take a picture of her,proudly holding the check with outstretchedhands. (See photo on page 10.) We celebrat-ed all over again! It had been four years,almost to the day, since Catherine Williamshad called me to ask what she could do tomake a wrong right, and would I help her.

“You have been my ram in the bush,” Cath-erine said as we hugged goodbye. I brushedoff her compliment and praised her for herdetermination and her gumption. I told herhow much she had taught me about humandignity in the four years we spent fightingthe system. And finally winning!

Reprinted with permission. Originally publishedin FreedomWays, Issue 78, July/August 2005.John Cole Vodicka is director of the Prison & JailProject in Americus, GA. The P&JP limits itsactivity to monitoring jail and prison conditions,and courtroom and law enforcement behavior ina 33-county region of southwest Georgia. Theyhave a 33 page booklet, “Rule of Law: Citizens’Rights in a Georgia Court of Law”, that is avail-able at no charge for Georgia prisoners ONLY.All others please enclose at least a $1 donation(stamps OK). Write: Rule of Law, P&JP, POBox 6749, Americus, GA 31709.

Mother continued from p. 10

This is the story ofKarlyn Eklof, ayoung woman de-livered into thehands of a psychot-ic killer by traf-fickers in porn andmind control. Shewitnessed a murderand is currentlyserving two lifesentences in Ore-

gon for that crime. Improper Submission byErma Armstrong documents: The way the killer’s psychotic braggingwas used by the prosecution against Karlyn.

The way exculpatory evidence was hid-den from the defense.

The way erroneous assertions by the pros-ecution were used by the media, judgesreviewing the case, and even by her ownlawyers to avoid looking at the record thatreveals her innocence.

Paperback, 370 pages, Send $10(postage paid) (check, m/o or stamps) to:

Justice DeniedPO Box 68911

Seattle, WA 98168Or order from JD’s website, http://justicedenied.org

“If one really wishes to knowhow justice is administered in acountry, one does not question thepolicemen, the lawyers, the judges,or the protected members of themiddle class. One goes to the un-protected — those, precisely, whoneed the laws protection most! —and listens to their testimony.”

James BaldwinNo Name in the Street (1972)

The new face of bigotryand injustice in the South

www.southerninjustice.com

To ensure delivery, please notifyJustice:Denied promptly of a change ofaddress! Write: Justice Denied

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Michael Evans and Paul Terry were 17-years-old in 1976 when they were

arrested for the rape and murder of 9-year-oldLisa Cabassa on Chicago’s South Side.Detectives from Chicago’s notorious Area 2violent crime division, led by Detective JonBurge, investigated young Cabassa’s murder.

Twenty-seven years later, Evans and Terrywere exonerated in 2003 by DNA evidenceand released from prison. Two year laterIllinois Governor Rod Blagojevich pardonedthe men on January 5, 2005. Evans and Terrywere then paid $160,000 by the State ofIllinois for the 27 years they spent wrongfullyimprisoned, which is the maximum allowed bya state law passed in the mid-1990’s. That lawis now under review as being inadequate. (See,Illinois Legislature To Review CompensationFor Wrongfully Convicted, on page 13.)

Evans filed a civil rights lawsuit in federalcourt that included the Chicago PoliceDepartment and a number of police officers asdefendants. The suit claimed that to obtainEvans’ wrongful conviction the officersfabricated evidence and withheld exculpatoryevidence from his attorneys. Evans alsoclaimed that the police told him that if hecooperated he would be released to his mother.At the time of his arrest Evans was not only aminor, but he could barely read and write dueto a learning disability. Evans asked for $60million dollars in damages and an additional$2 million dollars for unspecified damages.

The civil trial began on July 11, 2006.

During the trial Kenneth Adams, who spent18 years wrongfully imprisoned as adefendant in the infamous “Ford HeightsFour” case, testified regarding the violenceand squalor that prisoners are forced to livewith every day. Adams had been imprisonedin both the Menard and Danville prisonswhere Evans had been imprisoned.

Adams testified, “You have to be cold. Youhave to be heartless at times. You feel noemotion at all.” He also testified about whensoon after his imprisonment he saw aprisoner stabbed: “The thing that struck methe most about that was no one else seemedto notice. It seemed no one cared about this

individual. I learned rightaway that you have tosurvive the best you can.No one’s going to cometo your aid or assistance.”

The judge called a halt tothe trial and recessed untilthe following day whileEvans was describing theordeal he had suffered

through while wrongfully imprisoned for therape and murder of a child. He testified, “Mymother was experiencing something sheshouldn’t have been experiencing. I wastrying to be strong for my mother,” before hebroke down sobbing on the witness standabout an hour into his testimony.

Andrew Hale, an attorney for the defendants,asserted the police had acted reasonably,pointing to the fact that Evans had advancedthree different alibis for his whereabouts atthe time of the crime. In 1976, Evans had toldpolice he was in his cousin’s basement at thetime of Cabassa’s abduction. He later said hewas at 86th and Saginaw playing with a7-year-old niece. Then in Evans’ applicationfor a pardon, his attorney claimed Evans hadbeen home with influenza. Evans testified atthe civil trial that he couldn’t remember theexact time of the latter two of those alibis, inrelation to the time of the crime.

What the defendant’s lawyer tried to obscureis that Evans’ lack of certainty about where hewas at a specific time – in this case when LisaCabassa was a crime victim – is not unusual.In general, only people who know they aregoing to need an alibi have all the times anddates of when they were at particular placesorganized in their mind and ready to presentto the police if questioned. Except perhapswhen working, a person does not normallykeep careful or deliberate track of where theywere at a specific time during the day. Whenasked later to account for their whereaboutson a particular day, the person has toreconstruct their past from records, memory,and from the memory of other people.

Given time, an alibi may be reconstructed indetail, but when an innocent person is in theheat of a first confrontation with police who aremaking what seems to be an outrageousaccusation — such as happened to the 17-year-old Evans — it is extremely difficult under thestress of the moment to think clearly, quicklyand accurately. When asked for an alibi on thespur of the moment, the answer is usually aconfused best guess that is vague and lackingin detail. It is not unusual for the person to givealternative answers, consisting of, “Well, Imight have been here – no wait – I went over

there first, and then I think I...,” and so on.This is especially true when an accused isasked to provide an alibi for a short period oftime several months in the past.

Yet frequently prosecutors argue before juriesthat the first answer given by an accused is a“false” alibi that evidences a guilty mind.Although such practices are unfair becausethey disregard normal human behavior, theyare nevertheless used to prejudice the jury bysubstituting an unfair and inaccurateinsinuation of deceptiveness for proof of guilt.

Cook County State’s Attorney RichardDevine testified during the civil trial that itwas the DNA evidence, not allegations ofpolice misconduct, that gave rise to thedecision by his office not to retry Evans. In2003 Devine wrote a letter to a localnewspaper that expressed his opinion thenew DNA evidence “undercut” the evidencein the case against Evans.

The only “eyewitness” in the case, JudyJanuczewski, testified that she had beenrepeatedly subjected to marathoninterrogations for six weeks by police beforeshe named Evans as the person she claimswas “wrestling on a street corner” withCabassa. However, Januczewski didn’tcome forward until five days after Cabassa’smurder, when she learned a group of peoplewere offering a reward for information. It isunknown if Januczewski saw anything or ifshe made up her “recollection” in an effortto collect the reward.

On August 8, 2006, the jury found againstEvans and denied all of his claims fordamages. Unless Evans can prevail onappeal, that will mean that for over 27 yearsof wrongful imprisonment he will onlyreceive the state paid compensation of$160,000, which amounts to a mere $6,000per year while imprisoned for what theprison population considers the most horridof all crimes .

Locke Bowman of the MacArthur JusticeCenter at Northwestern University toldreporters in regards to the jury decidingagainst Evans’ claim, “30 years ago amiscarriage of justice took place at 26th andCalifornia.” (The Cook County CriminalCourt where Evans was convicted.).Bowman then added, “Another miscarriageof justice took place here today.”

Burge and other detectives of Chicago’sArea 2 are presently awaiting disposition ofnumerous civil suits brought against them bycitizens claiming they were tortured as

Michael Evans LosesCompensation Lawsuit

After 27 Years OfWrongful Imprisonment

By James F. Love

Evans cont. on p. 13


criminal suspects. Court appointed specialprosecutors have found evidence that dozensof suspects might have been beaten, dunkedin water, and hooded with a typewriter coverto simulate suffocation, in the interrogationroom of Area 2 headquarters. Although thespecial prosecutors found there wassufficient proof of criminal conduct by theofficers to support their prosecution, thecases were “too old” for charges to be filed.

The degree of wrongdoing by the Chicago PDis indicated by the fact that eight of the tenofficers named as defendants in Evans’ civilsuit invoked their Fifth Amendment right toremain silent and not incriminate themselvesduring the court ordered depositions.

Even though Evans did not claim thedefendant officers personally subjected him

to torture, the practice is now documentedas having been widespread in Area 2. Suchpractices become well known throughoutthe communities where they are practiced.So it is little wonder Evans testified he wasin great fear of his interrogators whenquestioned as a 17-year-old in 1976.

Evans’ attorney, Jon Loevy, told reportersthat evidence of the practice of torture onsuspects by the Area 2 detectives had beenordered by the judge to be withheld fromEvans’ civil jury. Loevy said Evans willappeal that the judge’s evidentiary rulingsprejudiced Evans and unfairly affected theoutcome. Loevy added that he believes that“at the end of the day when all the evidenceis heard, we will prevail.”

Paul Terry, Evans’ co-defendant, has afederal civil rights lawsuit pending that hasnot yet come to trial.

Previous JD article about Evans and Terry,“DNA tests may prove yet another quartercentury injustice in Illinois,” Snapshots,Justice:Denied, Vol. 2, Issue 9.Sources:27-year inmate in tears at wrongful conviction trial, byFrank Main, Chicago Sun-Times, July 12, 2006.DNA results precluded retrial, prosecutor says. Sayspolice misconduct had no influence. Associated Press,July 30, 2006.1 of Ford Heights 4 helps former inmate, by Jeff Coen,Chicago Tribune, August 2, 2006.Ex-inmate’s $60 million suit against city denied, by RudolphBush and Jeff Coen, Chicago Tribune, August 8, 2006.“Wrongly convicted, but he gets zilch,” by NatashaKorecki, Chicago Sun-Times, August 9, 2006.

Wrongful ConvictionCompensation

Comment By James Love

While the question of what monetary com-pensation is adequate is extremely com-

plicated, a flat “daily” or “yearly” rate ofcompensation does not take into account theprogressive harms caused by lengthy imprison-ment. Compensation should be determinedbased on a geometric progression, as opposedto a linear flat-line increase. What is the firstday of wrongful imprisonment worth com-pared with the last day of a 20-year wrongfulimprisonment – due to the harm that has accu-mulated between the first and last day?

The longer the period of wrongful imprison-ment, the greater the harm personally andpsychologically. Friends and family die. Ac-quaintances who may have initially supportedthe wrongfully convicted person’s battle forfreedom, fade away as time passes. Thewrongfully convicted person still unexonerat-ed after years of effort, finds him or herselfmore or less alone in the battle for justice, andfaced with greater and greater skepticism, notonly from fellow prisoners, but also fromsociety in general. Most of society firmlybelieves that if a person is truly innocent, thecourts would have already corrected the errorthat led to the wrongful conviction before 10,15 or 20 years have passed. Even thoughDNA exonerations of people after their im-prisonment for years shows this common be-lief to be untrue, it is still a reaction peoplehave to a prisoner’s claim of innocence.

What price should be placed on a wrongfullyconvicted person’s loss of hope, as the yearspass, that vindication will ever happen? Whatprice should be placed on a person preventedfrom attending a parent’s funeral? What pricecan be placed on a person being wronglybranded as a criminal and forcibly separatedfrom a child whose mind is poisoned by abitter ex-spouse, or family or friends, or anew step-parent? What price can be placedon a person’s personal and professional loss-es, the loss of years in which to live and in thequality of life left in those years?

A flat per diem or annual rate of compensationdoesn’t account for the cumulative effect oflosses a wrongly convicted person experienc-es. The amount paid should increase for eachyear of imprisonment, and the annual increaseshould not be flat-lined. The multiple harmscaused by long-term wrongful imprisonmentincrease geometrically as the years pass, andshould be compensated accordingly.

One day after Michael Evans’ federalcivil rights lawsuit seeking $60 million

dollars for 27 years wrongful imprisonmentwas rejected by a jury, Illinois legislatorsbegan discussing increasing the $160,000compensation cap set by a state law passedin the mid-1990’s.

Illinois House Majority Leader BarbaraFlynn Currie stated her belief the $160,000the state awarded Evans was inadequatecompensation. She stated she hoped theIllinois Legislature would re-address theissue. State Rep. Mary Flowers (D-Chica-go), said she would reintroduce a bill, whichhas twice before been rejected, to increasethe compensation paid to a person found tohave been wrongfully convicted.

Karen Daniel, a senior staff attorney at theNorthwestern University School of Law’sCenter on Wrongful Convictions, said, “Itdoesn’t matter whether police acted wrong-ly or a prosecutor acted wrongly, it’s thesame damage for the innocent person whowent to prison. You’re harmed regardless ofhow you got there. You’re still losing thatpart of your life.”

DNA exonerations nationwide have contribut-ed to state legislatures addressing or revisitingcompensation for the wrongfully convicted. Inthe past seven years at least eight states haveenacted compensation laws, or raised theamount of compensation. California allows$100 a day; New York has no limit; Ohiorecently doubled its amount of compensationto over $43,000 per year; Tennessee has a $1million cap on an award. Twenty-one statesand the federal government have some lawproviding for compensation.

Source: “More pay sought in wrongful jail-ings.” by Michael Higgins, ChicagoTribune, August 10, 2006.

Illinois Legislature ToReview Wrongful

Conviction CompensationBy James F. Love

Evans cont. from p. 12

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The hazardousnessof living in the for-

mer Soviet Union(1917-1991) is attestedto by that regime’smurder of more than 61million men, womenand children innocentof any wrongdoing.1 (The methods usedincluded shooting, starvation, working todeath, freezing, etc.)

Stalin was the most prolific of the SovietUnion’s murderers, and depending on thesource, he is either ahead or behind Commu-nist China’s Mao Tse-tung as history’s mostprolific mass murderer. While Stalin andother top communist leaders had the mostprivileges, people throughout the SovietUnion with political connections sharedtheir elitist attitude that they were superiorto everyone else in society.

The Soviets’ elitist attitude that commonfolk were disposable second-class citizenswas so deeply ingrained in the psyche ofRussians that after the dissolution of theSoviet Union in 1991, certain Soviet prac-tices granting special privileges to highgovernment officials and politically con-nected persons were allowed to continue.

One of those privileges is known as migalka– which is a flashing blue light on the roofof a vehicle that in conjunction with a sirenand a special license plate allows a vehicle’sdriver to disregard all traffic law, and givesthat vehicle the right of way over all trafficgoing in both directions. Migalka is differ-ent than the disregard of traffic laws byemergency personnel and police – since it isa perk unrelated to assisting public safety.

Thirty government agencies have the author-ity to issue migalka privileges, and fifteenyears after the Soviet Unions dissolution,more than 5,000 people in Moscow alonehave migalka privileges. Nationwide the to-tal in Russia is many thousands more.

The number of privately owned cars in Russiahas increased significantly since 1991 and sotraffic jams, which were unknown under theSoviets, are now common in Russia’s largercities. That has resulted in the illicit sale ofmigalka privileges to wealthy private citizensby corrupt government officials. The goingbribe is about $50,000 for basic migalka priv-ileges – the use of the blue light, a siren and thespecial license plate to avoid the traffic laws.However, for a bribe of $200,000 or more, aperson can obtain a migalka and a predisaniye– which is an official document forbidding thepolice from even visually inspecting the insideof a vehicle through an open window.

Since few people in the Soviet Uniondrove cars, most people saw migalka asa perk of government position thatdidn’t affect their daily life, and even ifthey didn’t like it, they couldn’t do anythingto change it. Its continued use, however, hasbred deep resentment among the tens ofmillions of Russian who now drive and seegovernment workers and politically con-nected business persons legally disregard thetraffic laws with impunity as they careendown congested city streets and highways.

The large number of traffic related deathsand injuries in Russia is attributed in part tothe many thousands of recklessly drivenvehicles sporting the migalka.2

This widespread resentment of migalka cameto a head in February 2006, when a Siberianrailway worker, Oleg Shcherbinsky, wasconvicted of “failing to yield” to the Mer-cedes of Mikhail Yevdokimov, the governorof Russia’s Altai region in SE Siberia.

On August 7, 2005, Yevdokimov’s Mer-cedes was traveling at 80 miles per hourgoing in the same direction as Shcherbinsky,but it was being driven on the wrong side ofthe two-lane road with its blue migalka lightflashing. The Mercedes crashed into a treeafter sideswiping Shcherbinsky’s car thathad just begun making a left-hand turn. Gov-ernor Yevkokimov, his bodyguard and hisdriver were killed. His wife was seriouslyinjured. Criminal charges were filed againstShcherbinsky in the death of Yevkokimov.

Shcherbinsky’s defense was he didn’t seethe fast moving Mercedes in his rear viewmirror when he began making the left turn.His defense was rejected by the judge whoruled Yevkokimov had the right of way soShcherbinsky was responsible for the acci-dent and the governor’s death. He was con-victed on February 3, and sentenced to fouryears imprisonment in a labor colony.

The reaction to Shcherbinsky’s convictionwas swift and intense among Russian’s fed-up with the class structure of Russia’s drivers– one class being the common folk required tofollow the law, and the other the elite lawlessclass of politically connected people grantedmigalka privileges. A grass roots organiza-tion, the Free Choice Motorists’ Movement,

used the Internet to quickly organize a nation-wide protest of Shcherbinsky’s conviction.

Vyacheslav Lysakov, head of the FreeChoice Motorists’ Movement, said severaldays before the protest was scheduled totake place, “Shcherbinsky’s sentence hasreally shocked people, because it shows thatin this country anyone can be put in jail,even if he is innocent.”3

On February 12 (only nine days afterShcherbinsky’s conviction), thousands of mo-torists in 21 cities throughout Russia partici-pated in the protest by tying black and orangeribbons to their cars and slowly driving inconvoys through their respective city. Theprotestors displayed signs and waved placardswith messages that included: “TodayShcherbinsky – Tomorrow You!” and, “Wewant the law to be equal for everyone!”4

One of the protestors in Moscow, a 30-year-old man, told a reporter, “The situation isgetting absurd. This cannot be tolerated anylonger. The Shcherbinsky trial showed yetagain that the authorities view ordinary citi-zens as nothing more than cattle.”5

Another protester said, “The Shcherbinskycase has resonated throughout Russiansociety.”6

The police didn’t just stand by and let theprotestors clog city streets. They applied aheavy hand in an effort to disrupt the pro-tests, which had been publicly announced inadvance, by stopping participating driversfor “document checks and purported trafficviolations.”7 In Moscow alone, hundreds ofdrivers were harassed.

The car convoys were the most organizedpublic protest in Russia since the early1990s, and it sent shockwaves through theKremlin and Russia’s regional govern-ments. The black and orange ribbons on thecars was highly symbolic. The black repre-sented the “death of justice” and the orangesymbolized Ukraine’s 2004 “Orange Revo-lution” when masses of protesters forced a

Migalka Under Attack In Russia –Innocent Driver’s Conviction

Overturned After Thousands ProtestBy Hans Sherrer

Russians protesting Oleg Shcherbinsky’s conviction

Migalka cont. on page 15


Kremlin backed candidate to step downafter he had won a rigged election.

Russia’s central government recognized theyneeded to quickly deal with the furor causedby the Shcherbinsky case and the attention itfocused on the trafficking in migalka privileg-es. They promptly announced a migalka wouldonly be available to emergency services(police and ambulances), senior governmentofficials, judges and mem-bers of Russia’s parliament.

Another development afterShcherbinsky’s convictionwas one of Russia’s mostprominent lawyers, Ana-toly Kucherena, agreed tohandle his appeal at nocharge. Also, petitionssigned by tens of thousands

of people across Russia were delivered to theAltai Regional Court that was consideringShcherbinsky’s appeal.

Expedited consideration was given toShcherbinsky’s appeal, and less than sixweeks after the nationwide protests, his con-viction was set aside on March 23, 2006. Thecourt ruled Shcherbinsky had acted lawfullywhile the governor’s driver had “grossly vio-lated” several traffic laws. He was releasedlater that day after seven months in custody.

He left the jail in a car thathad one of the proteststickers that cars all overRussia displayed — “Allof us are Shcherbinsky.”His wife was overjoyedthat he wouldn’t be spend-ing years at hard labor inprison, “We had faithfrom the very beginning tothe end.”8

It was speculated in the Russian media thatShcherbinsky benefited from a combinationof excellent legal representation on appealand the nationwide outrage over the unfair-ness of his conviction.

Endnotes:1 Death By Government, by R.J. Rummel, TransactionPublishers, New Brunswick, N.J., 1994. Chapter 4:61,911,000 Murdered: The Soviet Gulag State.2 In 2003, 36,000 Russian deaths and 250,000 injurieswere related to traffic “accidents.” Road traffic injuriesin the Russian Federation. See, Facts and figures,World Health Organization,www.euro.who.int/violenceinjury/injuries/20060425_2.htm3 Russian drivers to jam streets in protest,NewKerala.com, February 10, 2006.4 Angry motorists protest russian VIP traffic rules,Australian Broadcasting Corp., February 12, 2006,www.abc.net.au/news/newsitems/200602/s1568037.htm5 Id.6 Id.7 Police Pull Over Cars During Drivers' Protest, byCarl Schreck, Moscow Times, February 13, 2006, p. 3.8 Siberian Court Overturns Ruling, Frees Driver, byJudith Ingram (AP), St. Petersburg Times (St.Petersburg, Russia), March 24, 2006.

Migalka cont. from page 14

Sixteen-year-old Thai-Ameri-can Sherry Ann Duncan was

found murdered in scrublandoutside Bangkok, Thailand inAugust 1986.

Four construction workers andtheir employer were soon arrest-ed on suspicion of being involvedin the schoolgirl’s murder. Theemployer, Winai Chaipanit, wassoon bailed out by his girlfriend,socialite Suwimon Pongpat.

Physical brutality by the policeduring interrogations resulted ina confession by all four workers.The police also intimidated oth-er people to provide witnessstatements implicating the menin the abduction and murder ofDuncan, who had an Americanfather and a Thai mother.

During their trial all four defen-dants retracted their confessions,claiming they were false and hadonly been provided to stop thepolice’s brutal interrogation tac-tics. They also claimed theprosecution’s witnesses weren’t

being truthful about see-ing them with Duncan.

After the CriminalCourt rejected the men’sdefense and found themguilty, they were all sen-tenced to death.

As the men languished ondeath row while their appeals wereconsidered, defense lawyer Penna-pa Thamrungroj encountered po-lice opposition and intimidation asshe doggedly pursued leads toprove that the prosecution’s wit-nesses hadn’t been truthful, andthat other people were responsiblefor Duncan’s murder. After highpolice officials intervened and as-signed a new officer to head areinvestigation of Duncan’s mur-der, new evidence surfaced thatother men had committed thecrime.

Relying on the fresh evidence ofthe four condemned men’s inno-cence, in 1993 Thailand’s Su-preme Court overturned theirconvictions and ordered theirimmediate release.

The seven years in Thailand’sworst maximum-security prisonwhile awaiting execution were notkind to the men’s well being. Onedied in prison before his exonera-tion, another died shortly after hisrelease, another was permanently

disabled from a beat-ing by guards, andthe fourth, ThawatKitprayoon, died ofcancer in 1999.

The new evidencediscovered duringthe reinvestigationof Duncan’s murder

resulted in the 1995 prosecutionof Suviboon Patpongpanich as themastermind of the crime. She wassubsequently convicted of hiringtwo hit men to murder Duncan fordating her two-timing boyfriend.In 1999 Thailand’s SupremeCourt overturned Suviboon’s con-viction on the ground of insuffi-cient evidence.

It was eventually revealed thatDuncan had also been a two-timer. She had been dating bothSuviboon’s boyfriend andChaipanit, the 42-year-old busi-nessman who had been arrestedin 1986 on suspicion of beinginvolved in her murder.

After the men’s exoneration, asuit for compensation was filedin the Civil Court naming theRoyal Thai Police Office as theprimary defendant. In October2003 $1 million (26 millionbaht, Thailand’s currency) wasawarded to the lone survivor andthe relatives of the three de-ceased wrongly convicted men.

The case then took a new twistwhen Thawat’s former employerChaipanit, filed a claim forThawat’s share of the $1 millioncivil award. In support of hisclaim he produced Thawat’s willthat named Chaipanit as sole ben-eficiary of any award to Thawatfrom the civil suit. Thawat’sdaughter, Ratchanee Kitprayoon,responded by filing a complaintwith Thailand’s Crime Suppres-sion Division alleging Chaipanitfalsified the will, and her legalchallenge to his claim blockedany payment to him pending res-olution of the dispute.

The Civil Court decided in favorof Thawat’s daughter when itruled that the purported will wasinvalid because it didn't bear therequired authenticating signa-tures of witnesses. Chaipanit ap-pealed, and on July 28, 2006,Thailand’s Supreme Court up-held the lower court’s ruling. Italso ordered the payment of$315,000 (11.9 million baht) bythe Royal Thai Police as compen-sation to Thawat’s daughter. Shesaid that she had spent $16,000opposing Chaipanit’s false claim(which is three to four years wag-es for a typical Thai).

As of the fall of 2006 SherryAnn Duncan’s 1986 murder re-

Sherry Ann Duncan

Daughter Awarded$315,000 For Deceased

Father’s WrongfulMurder Conviction

By JD Staff

Daughter cont. on p. 16

Oleg Shcherbinsky with his daughter after his release


[12] ... In late 2001, Ju-dith Scruggs was a singleparent living in a threebedroom apartment withher two children, KaraMorris (Kara) and Daniel.Kara was seventeen andDaniel was twelve. The

defendant worked approximately sixty hoursa week at two jobs-one as a full-time employ-ee of the school that Daniel attended, the otheras a part-time employee at Wal-Mart. Danielwas bullied relentlessly at school and, fromSeptember through December, 2001, was ab-sent on many days. He frequently exhibitedpoor hygiene and occasionally defecated inhis pants. At home, he slept in his bedroomcloset, where he kept knives and a homemadespear to protect himself. The state departmentof children and families (department) wasaware of Daniel’s problems, and had beenworking with the defendant to have himplaced in a different school. At some point in

late 2001, the departmentconducted an inspection ofthe defendant’s apartment inconnection with its investi-gation of Daniel’s situation.On December 27, 2001, thedepartment closed its file onDaniel. In the early morninghours of January 2, 2002,Daniel hanged himself in hisbedroom closet. During theinvestigation into Daniel’sdeath, Officer Michael Boo-

throyd and Detective Gary Brandl of the Meri-den police department, Pamela Kudla, a crisisintervention specialist called in by the policeto assist Daniel’s family, and Ronald Chase,an investigator for the state medicalexaminer’s office, entered the defendant’sapartment. They observed that it was extreme-ly cluttered and that it had an unpleasant odor.

[14] Thereafter, the state filed a four countinformation [charging Scruggs with childneglect or endangerment violations.]

[16] The jury found the defendant guiltyunder the first count ... only [“willfully orunlawfully causing or permitting a childunder the age of sixteen years to be placed insuch a situation that the health of such childwas likely to be injured ... [by] providing ahome living environment that was unhealthyand unsafe” in violation of § 53-21 (a) (1).]

[22] The trial court rejected the defendant’sclaim that expert testimony was required toestablish that the conditions in the apart-ment likely would result in injury to themental health of a child.

[27] On appeal, the defendant claims that: (1)§ 53-21 (a) (1) is unconstitutionally vague asapplied to her conduct because the statute pro-vides no notice that poor housekeeping may bea criminal offense; and (2) the evidence wasinsufficient to support the defendant’s convic-tion for risk of injury to a child under § 53-21(a) (1) because, without expert testimony,the jury had no basis upon which to concludethat the conditions in her apartment were likelyto cause a mental health injury to a child.

[28] The defendant argues that § 53-21 (a) (1)is unconstitutionally vague as applied to herconduct because it does not require the stateto prove that she had the intent to injureDaniel, She further argues that, even if thestatute includes a knowledge requirement, thestatute is vague because she could not haveknown that her conduct violated the statute.

[29] “A statute ... [that] forbids or requiresconduct in terms so vague that persons of com-mon intelligence must necessarily guess at itsmeaning and differ as to its application violates

the first essential of due process. . . . Laws mustgive a person of ordinary intelligence a reason-able opportunity to know what is prohibited sothat he may act accordingly.” ... [T]he void forvagueness doctrine embodies two central pre-cepts: the right to fair warning of the effect ofa governing statute ... and the guarantee againststandardless law enforcement.

[33] We agree with the defendant that the intentrequirement of § 53-21 (a) (1), which, on itsface, requires the state to prove only that thedefendant had the general intent to commit anact that was likely to injure the health of a child,would be unconstitutionally vague as applied tootherwise lawful conduct that no reasonableperson could have known to have posed such athreat. [W]e conclude that the statute is uncon-stitutionally vague as applied to the defendant’sconduct. The state has pointed to no statutes,published or unpublished court opinions in thisstate or from other jurisdictions, newspaperreports, television programs or other publicinformation that would support a conclusionthat the defendant should have known that theconditions in her apartment posed an unlawfulrisk to the mental health of a child. Rather, thestate implicitly relies on an “I know it when Isee it” standard. Jacobellis v. Ohio, 378 U.S.184, 197 (1964) (Stewart, J., concurring)(stating that, although it is difficult to defineobscenity, “I know it when I see it”). We recog-nize that there may be generally acceptedhousekeeping norms and that it may be com-mon knowledge that, all things being equal, aclean and orderly home is preferable to a dirtyand cluttered home. The same could be said ofany number of conditions and actions that affecta child’s well-being. It may be common knowl-edge, for example, that drinking milk is health-ier than a constant diet of soft drinks, readingbooks is preferable to constant exposure to tele-vision programs, large cars are safer than smallcars, playing computer games is safer than rid-ing a bicycle, and so on. All of these compari-sons, however, involve virtually infinitegradations of conduct, making it extremely dif-ficult, if not impossible, for an ordinary personto know where the line between potentiallyharmful but lawful conduct and unlawful con-duct lies or, indeed, whether that line exists atall. Not all conduct that poses a risk to themental or physical health of a child is unlawful.Rather, there is an acceptable range of risk.

[45] Moreover, … the evidence showed thatemployees of the department had inspectedthe defendant’s apartment during late 2001,and had closed its file on the family only daysbefore Daniel’s suicide, ... the only experts inchild safety who had knowledge of the condi-tions in the defendant’s home during the rele-vant period apparently had concluded that

Scruggs cont. on page 17

State of Connecticut v. Judith ScruggsNo. SC 17587 (Conn. 09/05/2006);

2006.CT.0000448< http://www.versuslaw.com>

The Connecticut Supreme Court ordered the ac-quittal of Judith Scruggs from her conviction ofcontributing to the suicide of her 12-year-old sonby keeping a “messy” home. The following areexcerpts from the September 2006 opinion.

mains an unsolved crime. A 2001 movieabout the case, Sherry Ann, received excel-lent reviews for its production values, actingand faithfulness to the facts.

Duncan’s murder was one of the most pub-licized crimes in Thailand’s history, and theunprofessional conduct of the police duringthe initial investigation of the case, includ-ing the brutal interrogations that caused allfour defendants to falsely confess, resultedin changes to the country’s criminal code.

Note: As of December 2006, the DVD of Sher-ry Ann has only been released in REGION 0PAL FORMAT, which is incompatible withthe DVD players sold in the United States.

Sources:Our Man in Asia Pacific, by Mike Thomason, July 17,2005.Daughter of wrongfully convicted man gets b11.9m,Bangkok Post, July 29, 2006Outcome in Sherry Ann Case, Thai News, Issue 59, Octo-ber 2003, p. 2Kin win case for compensation, The Nation,Bangkok, Thailand, July 29, 2006

Daughter cont. from page 15


they were not so deplorable as to pose animmediate threat to Daniel’s mental health. ...

[46] There were several possible explanationsfor Daniel’s state of mind and behavior, how-ever, including the relentless bullying that heendured at school and his inherently fragilepsyche. When a defendant knows that he isengaged in conduct that is sufficiently danger-ous to be criminalized, the defendant is onnotice that exposure to that conduct could in-jure a child’s mental health. In the present case,the state concedes that being messy is not, inand of itself, unlawful, and points to no objec-tive standards for determining the point atwhich housekeeping becomes so poor that anordinary person should know that it poses anunacceptable risk to the mental health of a child.

[49] ... Moreover, the trial court found that theconditions were not so bad that they wouldpose a threat to a child’s physical health. The

evidence showed only that the apartment wasextremely cluttered and had an unpleasant odorof uncertain origin. We cannot conclude thatthe defendant was on notice that these condi-tions were so squalid that they posed a risk ofinjury to the mental health of a child within themeaning of § 53-21 (a) (1). Accordingly, weconclude that the statute is unconstitutionallyvague as applied to the defendant’s conduct.

[50] The judgment is reversed and the caseis remanded to the trial court with directionto grant the defendant’s motion for judg-ment of acquittal.

[52] BORDEN, J., with whom PALMER,J., joins, concurring.

[53] I fully agree with and join the wellreasoned majority opinion. ....

[56] The record reflects that … only daysbefore Daniel’s death, the agency of the stateof Connecticut that is dedicated to protectingchildren from abuse and neglect, had, by its

conduct and words, sent a clear message to thedefendant that the department saw no signifi-cant cause for concern regarding Daniel’shealth and welfare. Indeed, the department’smessage was that the defendant should keepDaniel home from school in the very condi-tions that the same state of Connecticut,through its criminal prosecutorial arm, latercharged created an unreasonable risk to hismental health. Although, of course, the lawenforcement arm of the state is not bound by aprior determination, express or implied, of thedepartment, from a standpoint of fair notice,the defendant reasonably cannot be expectedto make the legal distinction between the twoagencies’ subject matter jurisdictions. Fromthe viewpoint of the ordinary citizen, it is notfair, and does not comport with adequate no-tice, for the state to say, in effect, we have noconcern for Daniel’s health by virtue of hisliving conditions, and then to say, but we willprosecute the defendant criminally for main-taining those same living conditions.

Scruggs cont. from page 16

Richard Karling met with an ex-girl-friend, Dorothy Niven, at a Glasgow,

Scotland coffee shop in 1995. After shebecame ill and he took her home. He leftwhile she was resting. The next day he wentto see how she was doing. He found herdead and called the police.

Karling told police about the events of theprevious day. Police investigators inter-viewed witnesses at the cafe who describedthe couple as genially talking until Nivenseemed to become ill. She was described asbeing unsteady and weak-kneed when thecouple left together.

A sample of Niven’s blood was tested atGlasgow University for the presence ofdrugs. The test produced a negative result.But a retest resulted in a positive test fortemazepam: a commonly prescribed water-soluble drug that helps a person fall asleep.

Police theorized that Karling drugged theorange juice Niven was drinking at the cof-fee shop with temazepam to make her weakand groggy, and then took her home andsmothered her.

Prosecuted for Niven’s murder, the mediasensationally dubbed Karling as the

“Pancake Place” murderer, since thatwas the name of the coffee shopwhere he allegedly drugged her.

The centerpiece of the prosecution’scase was the positive test result fortemazepam. It was used as the basis fortheir theory that Karling smothered

Niven, since her official cause of death wasruled to be suffocation. Karling’s lawyers re-tained a pathologist to render an opinion onNiven’s cause of death, and he also deter-mined she almost certainly died of suffocation.

At trial, the defense expert was called as awitness by the prosecution to bolster theirtheory of the crime. Karling’s lawyers ar-gued that the expert opinions about Niven’scause of death could be mistaken, and thatall that was known for certain was the 33-year-old woman’s heart had stopped.

Karling was convicted by a majority juryverdict and sentenced to life in prison.(Scotland allows a murder conviction by amajority jury vote.)

While working on his appeal, Karlinglearned that prior to his trial the police hadalso sent a sample of Niven’s blood toGuy’s Hospital in London that has expertisein detecting poisons. No temazepam wasdetected during multiple tests of that sample.

In addition, expert analysis of Niven’s post-mortem examination determined there wasno scientific evidence to base a conclusionthat she died from suffocation.

Based on the exculpatory blood tests theprosecution had not disclosed to Karling,and the new evidence that Niven didn’t diefrom suffocation, in 2000 Scotland’s Courtof Appeal ordered Karling’s release on bailpending the outcome of his appeal.

Karling’s conviction was quashed by theCourt of Appeals in 2001. The Court ruledKarling’s conviction was a miscarriage ofjustice because the Guy’s Hospital test re-sults were “completely contradictory of theevidence that was placed before the jury.”

The prosecution dismissed the chargessince the new evidence left them withoutthe pretense of a viable case against Karling.

Cleared of being the Pancake Place murder-er, Karling filed a lawsuit against the Strath-clyde (Glasgow) Police for their role inconcealing the toxicology report by Guy’sHospital.

Karling also filed a lawsuit against the pa-thologist his lawyers retained prior to histrial, but who in fact testified for the prose-cution. Karling’s suit alleging “breach ofcontract” and “negligence” claimed in part:

“The pursuer [Karling] has suffered lossand damage as a consequence of breachof contract on the part of the defender[pathologist]. The defender was em-ployed on behalf of the pursuer to un-dertake a post mortem examination andto advise the pursuer’s defence team on

$1.67 Million To Man WronglyConvicted Of Murder BasedOn False Positive Lab Test

By JD Staff

Karling cont. on p. 18


In Norfolk, Virginia, in 1997, seven menwere arrested for the rape and murder of a

young Navy wife. Three of the men werereleased after charges against them weredropped for lack of evidence. Derek Tice wasone of the four men charged with the rapeand murder of 18-year-old Michelle Moore-Bosko. Three of those men, including Tice,were convicted of all the charges andsentenced to life in prison without possibilityof parole. One defendant, Eric Wilson, wasconvicted only of rape and sentenced to 8-1/2years in prison. He was released inSeptember 2005 after serving his sentence.

The Virginia Court of Appeal overturnedTice’s conviction in May 2002, and ordereda retrial. Tice was re-convicted in January2003 after a retrial, and again sentenced tolife in prison without parole.

Virginia’s Court of Appeals affirmed Tice’sreconviction in August 2003, and the stateSupreme Court denied Tice’s appeal in July2004. Tice subsequently filed a state habeaspetition. On November 27, 2006, state CircuitCourt Judge Everett Martin Jr. ruled that Ticehad received ineffective assistance of counselduring his retrial, vacated his convictions andsentences, and ordered a new trial.

Judge Martin found that Tice’s trial counsel,James Broccoletti and Jeffrey Russell, failedto file a motion to suppress Tice’s statementand confession that was made during a policeinterrogation after his June 1998 arrest. Ticemade the statement after he clearly assertedhis right to remain silent under the FifthAmendment, but his assertion wasdisregarded by the police who continuedinterrogating him. Notes included in Tice’scase file show Norfolk Police InvestigatorRandy Crank memorialized that Tice statedto him, “He told me he decide (sic) not to sayany more; that he might decide to after hetalks with a lawyer or spends some timealone thinking about it.” Judge Martin heldthis was an “unambiguous and unequivocal”invocation of Tice’s right to remain silentthat should have been honored by the police.

Judge Martin noted that except for Tice’sstatement, the only evidence pointing to hisguilt is the testimony of co-defendant JosephDick Jr. No physical, forensic or scientificevidence was adduced against Tice at either ofhis two trials. Judge Martin held that, without

the unconstitutionally obtained confession,there was a reasonable probability the jurywould have acquitted Tice of the charges.

Stephen McCullough, from the StateAttorney General’s Office, stated JudgeMartin’s decision will be appealed. At aDecember 20, 2006, bail hearing, JudgeMartin ruled in favor of the state’s positionthat Tice should remain in custody while theState appeals the order for Tice’s new trial.

Omar Ballard, one of the five men convictedof charges related to Moore-Bosko’s rapeand murder, has confessed multiple times(first in February 1999) that he acted alone.Tice and the other three convicted men haveclaimed their confessions were false andcoerced by police. Supporting their claimsof false confessions and Ballard’s repeatedvoluntary admissions of guilt, is that all thecrime scene evidence (including DNA

assailant. None of the other four men’sconfessions are consistent with details ofMoore-Bosko’s murder or the crime scene.

Deborah Boardman, one of the attorneysrepresenting Tice, said in response to JudgeMartin’s ruling, “We are thrilled. This isterrific news. James Broccoletti, one of thetrial attorneys found as ineffective, statedthat he had always thought Tice wasinnocent and expressed his hopes that nowTice would get the chance to prove it.

Tice’s father, Larry Tice, told MichelleWashington, a reporter from The Virginian-Pilot, during a telephone interview, “I’m stillabout three-feet above the ground,” he said,“I’m still in a state of disbelief that we won it.”

The four defendants claiming theirconfessions were coerced, including Tice,have filed petitions for clemency withVirginia Governor Timothy M. Kaine. Aspokesman for Governor Kaine stated theVirginia Parole Board was monitoring Tice’scase as part of it’s clemency review process.

The most recent of several JD articles aboutthe ‘Norfolk Four’ is: The ‘Norfolk Four’Convicted of Brutal Rape And MurderCommitted By Lone Assailant, by Larry Tice,Justice:Denied, Issue 30, Fall 2005, pp. 6.

The Norfolk Four’s website is:http://norfolkfour.comSource:“Judge: Man convicted in rape could be released fromprison,” by Michelle Washington, The Virginian-Pilot,November 30, 2006.Tice v. Johnson, No. CL05-2067-00, Fourth JudicialCircuit of Virginia – Circuit Court of the Cityof Norfolk, November 27, 2006.

Third Trial OrderedFor Derek Tice

By James F. Love

the forensic evidence. In carrying outthese instructions, the defender requiredto advise whether the pathological evi-dence enabled a cause of death to beestablished with any degree of certainty.The defender required to advise onwhether further investigations were ap-propriate to ascertain or confirm thelikely cause of death....It was his duty to advise of other poten-tial causes of death including epilepsy.It was his duty to emphasise the lack ofany pathological signs of suffocation. Itwas his duty to advise that the toxicolo-gy tests should be independently veri-fied .... It was his duty to advise thatfurther investigations were required.... .”...The pursuer has suffered loss and dam-age as a consequence of fault and negli-gence on the part of the defender. ... Incarrying out his instructions, he owed aduty of care to the pursuer.” Karling vPurdue [2004] ScotCS 221 (29 Septem-ber 2004)

In September 2004, Karling’s suit againstthe pathologist was dismissed on the gener-al defense that irrespective of any provablebreach of contract or negligence, “... a fo-rensic expert is immune from suit where heis engaged in the course of ongoing criminalproceedings.”

Then about a year later, in late 2005, ascompensation for Karling’s miscarriage ofjustice, the Scottish government agreed toan ex-gratia payment of $1,670,584(£891,717 English pounds). Karling wassatisfied with the award: “I am really happythe Executive did the right thing. They gaveme a really good settlement that reflects thelevel of the miscarriage of justice.”

In June 2006, Karling requested dismissalof his suit against the police. The 52-year-old Karling indicated to the Glasgow DailyRecord that the ongoing legal fees and thelawsuit’s uncertain outcome were why hedecided to end it. He said, “a fair chunk” ofhis compensation had “disappeared in le-gal” expenses. He also said, “I just have tolive on the interest from what’s left.”

Sources:Pancake Murder Accused Got £900K, Daily Record(Glasgow, Scotland), June 7, 2006.Wrongly convicted man wins £490 For Each Day InPrison, The Scotsman (Glasgow, Scotland), June 72006.Karling v Purdue [2004] ScotCS 221 (29 September2004).

Karling cont. from p. 17


New Evidence InMark Kirk Case

Mark Kirk’s story of being convicted ofarson in 1997 was in Justice:Denied’s

Fall 2004 issue. Kirk was convicted of start-ing a fire in his Delaware home by allegedlypouring Captain Morgan rum on an electricstove’s burner. Captain Morgan rum is 70proof, which means it is only 35% alcohol.Kirk has long believed that Captain Morganwon’t ignite because of its low alcohol con-tent, so it couldn’t have started the fire.

John Lentini, has been associated with theFire Investigation division of Applied Tech-nical Services since 1978. He has conductedmore than 2,000 fire origin and cause inves-tigations. Lentini is recognized by one ofthe leading fire investigation experts in theUnited States.

On September 16, 2006, Lentini conductedthree controlled experiments of the flamma-bility of Captain Morgan rum by pouringsignificant quantities of it on an electricstove’s red-hot burner. At no time did Cap-tain Morgan rum give any indication of anyflammability. Lentini filmed the entire ex-periment and it can be viewed in its entiretyfrom a link on JD’s website at,http://justicedenied.org/mark_kirk_09-13-06.mpg

John Lentini holding bot-tle of 70-proof CaptainMorgan rum.

John Lentini pouring 70-proof Captain Morgan rumon red hot electric burner.

Charges Dismissed AgainstChristopher Parish

Christopher Parish’s story of being sen-tenced to 30 years in prison after being

convicted in 1998 of a phantom robbery andnon-existent attempted murder based on afake Elkhart, Indiana crime scene, was inJustice:Denied’s Fall 2005 issue. Adding in-sult to the injury of Parish’s wrongful convic-tion was that multiple witnesses corroboratedhis alibi of being 110 miles away in Chicagoat the time the alleged crimes occurred.

On December 6, 2005, Indiana’s Court ofAppeals relied on new evidence to vacateParish’s convictions and order a new trial.(Parish v. State, No. 20A03-0502-PC-74

(Ind.App. 12/06/2005). After eight years ofimprisonment, Parish was allowed to bondout of prison in July 2006 while awaitinghis new trial.

On December 1, 2006, Elkhart SuperiorCourt Judge Evan Roberts granted theprosecution’s motion to dismiss all chargesagainst Parish.

See: Phantom Robbery And Fake CrimeScene Leads To 30-Year Prison Sentence— The Christopher Parish Story, by Chris-topher Parish, Justice:Denied, Issue 30, Fall2005, p. 7.Not where he left off, by Ellen Lechlitner,The Truth (Elkhart, IN), December 18, 2006

James Love’s story of being convicted in1996 of four counts of rape in Cincinnati

when at the time of the alleged crimes he was2,000 miles away in Belize and Mexico, wasin Justice:Denied’s Fall 2005 issue. On No-vember 22, 2006, the Ohio Court of Appealsvacated Love's convictions and ordered anew trial. In their unanimous decision thethree-judge panel wrote in part:

{¶1} Defendant-appellant James Love ap-peals the trial court’s denial of his motionfor a new trial based on newly discoveredevidence. Love argues that the state failedthrough the bill of particulars to identifythe times for the crimes alleged. Thus, heargues that he was surprised at trial whenthe victim testified about dates when, hecontends, he was not in the country.

{¶2} Since being imprisoned,Love has worked to prove hisinnocence by tracking down wit-nesses and documentation to con-

firm that he was not in the United Stateswhen the alleged offenses occurred.And he has done so. The evidence of apassport application, photographs, apersonally signed book, medical re-cords, and four independent witnesses,three of whom are foreign nationals, allshow that Love was not in the UnitedStates when the alleged crimes oc-curred. The trial court erred by denyingLove’s motion for new trial. We nowreverse that decision and remand for anew trial.” State v. Love, 2006-Ohio-6158 (Ohio App. Dist.1 11/22/2006)

The full decision can be read, printed ordownloaded from JD’s website at,http://justicedenied.org/state_v_love_2006-ohio-6158.pdf

James Love's Rape ConvictionsVacated — New Trial Ordered

Mark Jordan is a prisoner at the UnitedStates’ highest security prison — the

federal ADMAX in Florence, Colorado. Jor-dan was mailed Justice:Denied back issuesprinted from JD’s website. When the prisonrefused to deliver the issues, he filed a griev-ance. After being ruled against by the BOPall the way up the ladder to its Washington,DC headquarters, Jordan filed a lawsuit prose in federal District Court in Denver. OnOctober 26, 2006, U.S. District Judge

Phillip S. Figa ruled that it was anunconstitutional violation of Jordan’sFirst Amendment rights for the BOP towithhold “unbound printed pages suchas newspaper or magazine clippings,photocopies of newspaper or maga-

zine articles, and internet printouts.”Judge Figa also enjoined the BOP fromrefusing to deliver those items whenmailed to Jordan. Figa’s decision was re-ported nationally from a wire service story.

Judge Figa’s 13-page decision can be readon JD’s website at http://justicedenied.org.Or mail $2 (stamps OK) with a request for“Jordan Decision” to: Justice Denied,PO Box 68911, Seattle, WA 98168.

Federal Judge Orders BOPTo Deliver Justice:Denied

Copies To ADMAX Prisoner

Freeing The InnocentA Handbook for the

Wrongfully ConvictedBy Michael and Becky Pardue

Self-help manual jam packed with hands-on - ‘You Too Can Do It’ - advice explain-ing how Michael Pardue was freed in 2001after 28 years of wrongful imprisonment.Soft-cover. Send $15 (check, m/o orstamps) to: Justice Denied; PO Box 68911;Seattle, WA 98168. (See Order Form onp. 39). Or order with a credit card fromJD’s website, http://justicedenied.org.“I congratulate you on your marvel-

lous book Freeing the Innocent.”P. Wilson, Professor of Criminology, Bond University


GENERAL ASSEMBLY OFNORTH CAROLINA

HOUSE BILL 1323

SECTION 1. Chapter 15A ofthe General Statutes is amendedby adding a new article to read:

North Carolina Innocence In-quiry Commission.

§ 15A-1460. Definitions.(1) “Claim of factual innocence”means … complete innocence ofany criminal responsibility for thefelony for which the person wasconvicted … and for which thereis some credible, verifiable evi-dence of innocence that has notpreviously been presented at trialor considered at a hearing grantedthrough postconviction relief.

§ 15A-1462. Commission es-tablished.(a) The North Carolina Inno-cence Inquiry Commission shallbe an independent commissionunder the Judicial Departmentfor administrative purposes.

§ 15A-1463. Membership;chair; meetings; quorum.(a) The Commission shall consistof eight voting members as follows:(1) One shall be a superior courtjudge.(2) One shall be a prosecutingattorney.(3) One shall be a victim advocate.(4) One shall be engaged in thepractice of criminal defense law.(5) One shall be a public mem-ber who is not an attorney andwho is not an officer or employ-ee of the Judicial Department.

(6) One shall be a sheriff hold-ing office at the time of his orher appointment.(7) The vocations of the tworemaining appointed votingmembers shall be at the discre-tion of the Chief Justice.

The Chief Justice of the NorthCarolina Supreme Court shallmake the initial appointment formembers identified in subdivi-sions (4) through (6) of this sub-section. The Chief Judge of theCourt of Appeals shall make theinitial appointment for membersidentified in subdivisions (1)through (3) of this subsection. ……(b) The superior court judge whois appointed as a member undersubsection (a) of this section shallserve as Chair of the Commission.The Commission shall have itsinitial meeting no later than Janu-ary 31, 2007, at the call of theChair. The Commission shallmeet a minimum of once every sixmonths and may also meet moreoften at the call of the Chair. …

§ 15A-1464. Terms of mem-bers; compensation; expenses.(a) … The Chief Justice mayremove members, with cause. …(b) The Commission membersshall receive no salary for serv-ing. …

§ 15A-1465. Director and otherstaff.(a) The Commission shall em-ploy a Director. The Directorshall be an attorney licensed topractice in North Carolina … theDirector shall employ such otherstaff and shall contract for ser-vices as is necessary to assist the

Commission in the performanceof its duties, and as funds permit.…§ 15A-1466. Duties.The Commission shall have thefollowing duties and powers:…(2) To conduct inquiries intoclaims of factual innocence,with priority to be given to thosecases in which the convictedperson is currently incarceratedsolely for the crime for which heor she claims factual innocence.…(5) To prepare written reportsoutlining Commission investi-gations and recommendations tothe trial court at the completionof each inquiry.…§ 15A-1467. Claims of inno-cence; waiver of convictedperson’s procedural safeguardsand privileges; formal inquiry;notification of the crime victim.(a) A claim of factual innocencemay be referred to the Commis-sion by any court, person, oragency. The Commission shallnot consider a claim of factualinnocence if the convicted per-son is deceased. …(b) No formal inquiry into a claimof innocence shall be made by theCommission unless the Directoror the Director’s designee firstobtains a signed agreement fromthe convicted person in which theconvicted person waives his orher procedural safeguards andprivileges, agrees to cooperatewith the Commission, and agreesto provide full disclosure regard-ing all inquiry requirements of theCommission. The waiver underthis subsection does not apply to

matters unrelated to a convictedperson’s claim of innocence. …(c) If a formal inquiry regardinga claim of factual innocence isgranted, the Director shall useall due diligence to notify thevictim in the case and explainthe inquiry process. …(d) … The Commission may …issue process to compel the at-tendance of witnesses and theproduction of evidence …(f) All State discovery and disclo-sure statutes in effect at the timeof formal inquiry shall be en-forceable as if the convicted per-son were currently being tried forthe charge for which the convict-ed person is claiming innocence.…§ 15A-1468. Commission pro-ceedings.(a) At the completion of a formalinquiry, all relevant evidenceshall be presented to the fullCommission. … The determina-tion as to whether to conductpublic hearings is solely in thediscretion of the Commission. …(b) The Director shall use alldue diligence to notify the vic-tim at least 30 days prior to anyproceedings of the full Commis-sion held in regard to thevictim’s case. … the victim ispermitted to attend proceedingsotherwise closed to the public …(c) After hearing the evidence,the full Commission shall voteto establish further case disposi-tion as provided by this subsec-tion. All eight voting membersof the Commission shall partici-pate in that vote.

Except in cases where the convict-ed person entered and was convict-

After several high-profile exonerations the North Carolina ActualInnocence Commission was created in 2002 to investigate how

they had occurred and what could be done to make future miscarriag-es of justice less likely. Although the NCAIC suggested reforms inpolice practices, such as eyewitness identification and evidence stor-age, they also recognized that the direct and post-conviction appealprocess failed to correct known cases of wrongful conviction. TheNCAIC proposed creation of a new organization to analyze claims ofinnocence by prisoners based on evidence not previously consideredat trial or during that person’s post-conviction relief process.

North Carolina Governor Michael Easley signed legislation onAugust 3, 2006, creating the North Carolina Innocence Inquiry

Commission. The Commission is an alternate legal process thatexclusively considers a claim of “factual innocence” by a convict-ed person for possible referral to a three-judge panel empoweredto dismiss all or any of the charges.

Accompanying this are three articles about the North CarolinaInnocence Inquiry Commission: A condensed version of the legislation’s highlights An analysis of NC Innocence Inquiry Commission StatutoryProvisionsJustice:Denied’s editorial about the NC Innocence InquiryCommission

North Carolina Innocence Inquiry Commission Created

Highlights cont. on p. 21


ed on a plea of guilty, if five ormore of the eight voting membersof the Commission conclude thereis sufficient evidence of factualinnocence to merit judicial review,the case shall be referred to thesenior resident superior courtjudge in the district of originaljurisdiction … In cases where theconvicted person entered and wasconvicted on a plea of guilty, if allof the eight voting members of theCommission conclude there is suf-ficient evidence of factual inno-cence to merit judicial review, thecase shall be referred to the seniorresident superior court judge in thedistrict of original jurisdiction.

If … the Commission shall con-clude there is insufficient evi-dence of factual innocence tomerit judicial review. The Com-mission shall document thatopinion, along with supportingfindings of fact, and file thosedocuments and supporting ma-terials with the clerk of superiorcourt in the district of originaljurisdiction, with a copy to thedistrict attorney and the seniorresident superior court judge.…(d) … Evidence favorable to theconvicted person disclosedthrough formal inquiry or Com-mission proceedings shall be dis-closed to the convicted person andthe convicted person’s counsel, ifthe convicted person has counsel.

(e) All proceedings of the Com-mission shall be recorded andtranscribed as part of the record.… all files and materials consid-ered by the Commission and a fulltranscript of the hearing before theCommission, shall become publicat the time of referral to the supe-rior court. Commission recordsfor conclusions of insufficient ev-idence of factual innocence tomerit judicial review shall remainconfidential, except as provided insubsection (d) of this section.

§ 15A-1469. Postcommissionthree-judge panel.(a) If the Commission concludesthere is sufficient evidence of fac-tual innocence to merit judicialreview, the Chair of the Commis-sion shall request the Chief Jus-tice to appoint a three-judgepanel, not to include any trialjudge that has had substantial pre-vious involvement in the case, …to convene a special session ofthe superior court of the originaljurisdiction to hear evidence rele-vant to the Commission’s recom-mendation. …(b) The senior resident superiorcourt judge shall enter an ordersetting the case for hearing …and shall require the State to filea response to the Commission’sopinion within 60 days of thedate of the order.(c) The district attorney of thedistrict of conviction … shallrepresent the State …(d) The three-judge panel shallconduct an evidentiary hearing. At

the hearing, the court may compelthe testimony of any witness, in-cluding the convicted person. Theconvicted person may not assertany privilege or prevent a witnessfrom testifying. The convictedperson has a right to be present atthe evidentiary hearing and to berepresented by counsel. …(e) The senior resident superiorcourt judge shall determine … ifappropriate, enter an order forthe appointment of counsel. ……(h) The three-judge panel shall ruleas to whether the convicted personhas proved by clear and convincingevidence that the convicted personis innocent of the charges. Such adetermination shall require a unan-imous vote. If the vote is unani-mous, the panel shall enterdismissal of all or any of the charg-es. If the vote is not unanimous, thepanel shall deny relief.

§ 15A-1470. …(a) … the decisions of the Com-mission and of the three-judgepanel are final and are not subjectto further review by appeal, certifi-cation, writ, motion, or otherwise.(b) A claim of factual innocenceasserted through the InnocenceInquiry Commission shall notadversely affect the convictedperson’s rights to other postcon-viction relief.”…SECTION 4. G.S. 15A-1411reads as rewritten:§ 15A-1411. Motion for appro-priate relief.

…(d) A claim of factual innocenceasserted through the North Caro-lina Innocence Inquiry Commis-sion does not constitute a motionfor appropriate relief and doesnot impact rights or relief pro-vided for in this Article.”…SECTION 7. G.S. 132-1.4reads as rewritten:§ 132-1.4.(a) Records of … investiga-tions conducted by the NorthCarolina Innocence InquiryCommission, are not public re-cords as defined by G.S. 132-1.…SECTION 11. … No claims ofactual innocence may be filedwith the Commission until No-vember 1, 2006. No claims ofactual innocence where the con-victed person entered and wasconvicted on a plea of guiltymay be filed with the Commis-sion until November 1, 2008.

SECTION 12. This act is effec-tive when it becomes law andapplies to claims of factual inno-cence filed on or before Decem-ber 31, 2010.

In the General Assembly readthree times and ratified this the27th day of July, 2006.

Approved this 3rd day of Au-gust 2006, by Michael F. Eas-ley, Governor

Highlights cont. from p. 20

Innocence InquiryCommission

Good Points

1) No time limit on when newevidence was obtained.15A-1460(1)2) Commission conducts inves-tigation and writes report offindings.15A-1466(2)-(5)3) Claim can be referred by any“person” or “agency.”

15A-1467(a)4) Provision for ap-pointment of counsel15A-1467(b)5) Subpoena power to

compel production of docu-ments and attendance of wit-nesses.15A-1467(d)

Bad Points

1) Relief is based on “FactualInnocence,” which is defined tomean “complete innocence.”(Note: This is a new legal con-cept. Lack of culpability in acrime is based on theprosecution’s failure to meet itsburden of proving the defendant’s

guilt beyond a reasonable doubt.Historically relief after a convic-tion is based on some form of adefendant’s undermining of thereliability of the prosecution’s ev-idence used to prove his or herguilt beyond a reasonable doubt.)15A-1460(1)2) Mandated vocational compo-sition of commission members.Four members can be expectedto likely have a pro-prosecution,anti-defendant tendency. Thoseare “a prosecuting attorney”; “avictim advocate”; “a sheriff”;and “a superior court judge.”15A-1463(a)3) Chief Justice of the SupremeCourt and the Chief Judge of theCourt of Appeals make commis-

sion member appointments.15A-1463(7)4) The commission’s superiorcourt judge member is the Chairof the commission.15A-1463(b)5) Supreme Court Chief Justicecan remove commission members.15A-1464(a)6) The commission’s director“shall be an attorney licensed topractice law in North Carolina.”15A-1465(a)7) The applicant must waive hisor her constitutional protectionsand provide full disclosure“regarding all inquiry require-ments of the Commission.”15A-1467(b)

Analysis of NC InnocenceInquiry CommissionStatutory Provisions

Analysis cont. on p. 22


8) Five of the eight membersmust vote to refer a case forjudicial review when there wasnot a guilty plea.15A-1468(c)9) The eight members mustunanimously vote to refer a casefor judicial review when a de-fendant pled guilty.15A-1468(c)10) Victim is assumed throughoutthe statute to be the person againstwhom the original crime was per-petrated, when the purported pur-pose of the Innocence InquiryCommission is to determine if theapplicant is a wrongly convictedperson, which makes him or her a

victim of the legal system.

Three-Judge Panel

Good Points

1) Any witness can be subpoe-naed to testify.15A-1469(d)2) Public evidentiary hearingheld.15A-1469(d)3) Provision for appointment ofcounsel.15A-1469(e)4) Charges are dismissed if thepanel decides unanimously togrant relief. (The dismissal ofcharges is good, but see BadPoints No. 5.) 15A-1469(h)

Bad Points

1) Three-judge panel can includetrial judge(s) with previous in-volvement in the case.15A-1469(a)2) Supreme Court Chief Justiceappoints the three-judge panel.15A-1469(a)3) Panel can include superiorcourt (trial judges), appealscourt judges, and supreme courtjustices. (It isn’t explicitly set-forth in the statute that any statejudge is excluded.)15A-1469(a)4) The applicant can be com-pelled to testify and cannotclaim the Fifth Amendmentright against self-incrimination.

15A-1469(d)5) Unanimous panel decision nec-essary for determination that appli-cant is “innocent of the charges” by“clear and convincing evidence.”15A-1469(h)6) No appeal of panel’s decision.15A-1470(a)

Other1) Claim of factual innocence,whether denied at the Commis-sion level or by the three-judgepanel doesn’t affect other rightsto post-conviction relief.15A-1470(b)2) Period for filing claims sun-sets on December 31, 2010.Section 12

The North Carolina Innocence InquiryCommission (NCIIC) was signed into

law by Governor Michael Easley on August3, 2006. Its stated purpose is to provide“postconviction review of credible claims offactual innocence supported by verifiable ev-idence not previously presented at trial or at ahearing granted through postconviction re-lief.” (For details about the NCIIC, see twoarticles in this JD issue beginning on page 20.)

Sounds laudatory. As with much legislation,however, the devil concealed by a flowery titleand introduction is in the details. The follow-ing is a sampling of seven NCIIC’s details thatindicate the PR spin that it is for the benefit ofwrongly convicted people is not accurate:

1) The NCIIC is not an independent agency,but is subject to judicial influence and over-sight.

2) A judge involved in an applicant’s prose-cution, direct appeal, or state habeas peti-tion can not only be involved in the judicialreview phase of the NCIIC process, but thatjudge can make critical decisions.

3) A case is reviewed under the heretofore-unknown legal standard that a defendant’s“complete innocence” must be establishedbefore he or she will be accorded relief froma conviction.

4) An applicant must agree to a waiver ofhis or her constitutional rights during theNCIIC’s investigatory process, and if ap-proved for referral, during review of theapplicant’s case by a three-judge panel.

5) Five of eight commission members mustvote to refer a case for judicial review thatinvolves an applicant convicted after a trial.However, the designated vocation or ex-pected self-interest of four commissionmembers suggests that they will tend tohave a pro-prosecution bias.

6) All eight commission members must voteto refer a case for judicial review that involvesan applicant convicted by a guilty plea. Thehigher standard for referring the case of anapplicant who pled guilty is contrary to thefact that a person who did not commit a crimeis far more likely to falsely plead guilty thanto be convicted after a trial.

7) The NCIIC has a built in bias against anapplicant by designating the person(s) thecrime was committed against as the“victim,” and involving that person(s) (ifalive) throughout the process. Yet the“victims” sole relevance to the NCIIC’s in-quiry is the same as any other person: what,if any, evidence that person can provide.

The foregoing and other areas of concernabout the NCIIC provide a reasonable basisto make several conclusions:

1) Relief after a conviction, historically, isbased on some form of a defendant under-mining the reliability of the prosecution’sevidence relied on by a judge and/or jury toprove his or her guilt beyond a reasonabledoubt. Modern language such as the phrase“actual innocence” used in the federal habe-

as statutes does not change that, since itrefers to whether new evidence makes itmore likely than not that a reasonable jurorwould find the defendant not guilty. (Seee.g., House v. Bell, 126 S.Ct. 2064 (U.S.06/12/2006.)) Under that standard it is notnecessary that new evidence establishes thedefendant’s innocence in any objective way,but merely that it sufficiently underminesthe government’s ability to meet its burdenof proving the defendant guilty beyond areasonable doubt. The NCIIC turns that stan-dard on its head by reversing the burden tothe defendant to prove his or her “completeinnocence” by “clear and convincing” evi-dence in order to be granted relief.

2) The NCIIC is not modeled after the Unit-ed Kingdom’s Criminal Case Review Com-mission (CCRC), except in the most generaland non-specific ways. A few of the signif-icant differences between the NCIIC andthe CCRC are:

The CCRC is an independent organiza-tion distinctly separate from the judicia-ry, the prosecution, defense attorneys, orvictims rights advocates.

The CCRC does not inquire into anapplicant’s possible innocence, and it isper se unconcerned with an applicant’sinnocence. Rather, it seeks to determineif there is credible new evidence or argu-ments supporting that the applicant’sconviction is a miscarriage of justice.

The CCRC refers a case to the Court ofAppeals after determining specific evi-dence supports that the applicant’s con-viction is “unsafe,” and the samestandards apply to review of the case asfor any other appeal.

Justice:Denied Editorial

Worse Than NothingThe North Carolina Innocence

Inquiry Commission is a huge stepin the wrong direction

Analysis cont. from p. 21

Editorial cont. on p. 23


The CCRC, and the Court of Appeal’sreview of a case referred by the CCRC,does not alter the prosecution’s burden ofproof beyond a reasonable doubt.

The CCRC reviews applications that asentence is a miscarriage of justice, evenif the applicant doesn’t claim the under-lying conviction is erroneous.

3) The assertion that the NCIIC provides aviable mechanism for a person claiminginnocence to successfully challenge his orher conviction is based on rhetoric, and notthe reality of the review and judicial processthe legislation creates. The byzantine rulesunder which the NCIIC and the three-judgepanel appointed to review a case referred bythe commission operates, raises the ques-tion: Who will be successful in having erro-neous charges dismissed against him or her?

4) North Carolina has 38,000 adult prisoners(Dec 2006), so if perchance several of thema year overcome the NCIIC’s procedures andsucceed in having their charge(s) dismissed,they will likely be used as examples of thelegal system’s effectiveness, and how rarelyit errors by convicting the wrong person.

The perceived need for the NCIIC (or anysort of extra-judicial review of criminal con-victions) is a backlash to procedural imped-iments in habeas proceedings, such as ‘timelimit’ and ‘due diligence’ rules that must besatisfied before “new” exculpatory evidencewill be considered. In the absence of com-pelling scientific evidence, discovery of ev-idence sufficient to undermine a convictioncan be a cumulative and non-linear processthat can take an extended period of time tocomplete. Present day artificial federal andstate time limits for filing a challenge to aconviction after discovery of new evidenceis inconsistent with how non-scientific evi-dence is gathered in the real world.

Consequently, if all revisions to habeas rulesin the federal Anti-Terrorism and EffectiveDeath Penalty Act (1996) were repealed, andall states repealed procedural impediments tothe introduction of new evidence in habeasproceedings – an inquiry commission (such asthe NCIIC) would be somewhat redundant.Consistent with that observation is that stateand federal post-conviction habeas proceed-ings following exhaustion of a defendant’sdirect appeal don’t have a parallel in the Unit-ed Kingdom (England) – and the CCRC pro-cess was created to fill that void.

The current enshrinement in federal and statehabeas laws of procedure over substancemeans that untold numbers of defendant’s arebeing deprived of a judge considering the mer-its of the person’s claim of being illegallyconvicted. Repealing the federal and state pro-cedural bars prohibiting those people from hav-ing access to judicial review could be expectedto result in hundreds of overturned convictionseach year – that today are going uncorrected.

The gulf is wider than the Grand Canyonbetween the hopes raised by the talk of a bodyin North Carolina to review claims of wrong-ful conviction, and the reality of what wascrafted under the influence and watchful eyeof judicial, prosecution, and so-called“victims” rights advocates and lobbyists. TheNCIIC adds additional layers of complexity tothe legal process, when reducing layers iswhat is needed to aid the wrongly convicted.

The NCIIC is worse than nothing. It canonly be hoped that no other state relies on itas a model to establish a comparable statuto-ry scheme, and that the deadline for submit-ting a claim to the NCIIC is not extendedbeyond its sunset date of December 31, 2010.

Editorial continued from page 22

Man Convicted Of MurderAfter DNA Cleared Him,

Awarded $706,000

In June 2000, 10-year-old Nienke Kleisswas raped and murdered in Schiedam,

Netherlands. Her 11-year-old male friend,Maikel, survived by pretending to be deadafter being severely beaten.

Schiedam is a suburb of Rotterdam, Nether-lands second largest city.

A 28-year-man, Cees B., was seen near thescene of the crime. He was arrested becausehe fit the police profile of a potential pedo-phile. After some hours of intense interro-gation, Cees confessed to Nienke’s murderand rape, and the assault of her friend. Im-mediately afterward he retracted his confes-sion, claiming it was coerced by the police.

Cees’ protestations of innocence during histrial fell on deaf ears. The prosecution reliedon his confession to obtain his conviction ofmurder, rape and assault. He was sentencedto 18 years in prison with mandatory TBS(behavioral modification) psychiatric treat-ment. His conviction was affirmed on appeal.

Then, in the summer of 2004, a man, Wik H.,

was arrested for attempted sexual assault.During his questioning he admitted commit-ting a very violent rape in The Hague in2002, and killing Nienke and assaulting herfriend in 2000. Wik’s confession was con-firmed when a DNA test of sperm found onNienke did not exclude him as her assailant.

Cees began proceedings to overturn his con-viction based on the new evidence of hisinnocence. The Court of Appeals orderedhis release in January 2005, after 4-1/2 yearsof wrongful imprisonment. He subsequentlyfiled a damage claim against the police andprosecutors for their mishandling of his case.

After Wik was convicted of the same crimesCees’ had previously been convicted ofcommitting, he was sentenced to 20 years inprison with mandatory TBS psychiatrictreatment. Wik’s sentence was reduced to18 years in November 2005, when the Courtof Appeals ruled the prosecution had notpresented evidence that Wik assaulted Mai-kel to prevent being identified.

In September 2005, a memo was leaked tothe Dutch news media revealing that prior toCees’ trial, Netherlands’ National ForensicService (NFI) had notified the prosecutionthat DNA tests excluded him as the sourceof evidence left at the crime scene by Nienkeand Maikel’s assailant. The prosecution did

not disclose the exculpatory DNA test re-sults to Cees’ lawyer prior to his trial, nor tothe Appeals Court that freed him in January2005. The leaked memo stated in part, “TheNFI let it be known during a discussion withthe officer in charge of this case that therewere doubts about [Cees] B’s guilt.”

Although the prosecutors responded by vigor-ously denying they had concealed evidence ofCees’ innocence at the same time they wereprosecuting him, 70 percent of the Dutch peo-ple polled said they believed that was exactlywhat the prosecutors did. One newspaperwrote, “To the majority of the Dutch publicthis equates to a murderer caught standingover a dead body with a knife in his hand.”

Cees’ claim for damages was greatlystrengthened by the surfacing of the exclu-sionary DNA report, since it supported hisclaim that police interrogators had coercedhim into falsely confessing. In November2005, Cees was awarded $706,000 by Neth-erlands’ government to settle his false im-prisonment damages claim.

Sources:Appeal Court Cuts Sentence On Nienke’s Killer, Ex-patica News (Netherlands), November 22, 2005.Mugging The Messenger, Expatica News(Netherlands), November 24, 2005.Dutch Pay For Wrongful Conviction, Science Daily,November 28, 2005.


On the hot, arid evening of Sunday, July 8,2001, a man was ‘dumpster diving’ in a

trash enclosure several blocks west of the LasVegas strip. Around twilight he lifted a trashcovered piece of cardboard next to the dump-ster and saw a man’s torso. He called 911.

Police at crime scene

The first police officers arrived at 10:36 p.m.One of the officers went inside the trashenclosure and saw a human foot exposedwith the rest of the person’s body buriedunder a pile of trash. He also saw still moistbloody shoeprints leading away from thebody toward the trash enclosure’s opening.

After medical personnel arrived, one ofthem lifted the trash covered cardboard anddetermined the body was that of a dead man.

Several crime scene analysts arrived and theybegan systematically removing piece bypiece the large number of trash items cover-ing the body. Only a few items were collect-ed as evidence, while the rest of the evidencewas discarded. When the body was fullyuncovered it was apparent that the man hadmany wounds, including an amputated penis.

It appeared that the man had been living inthe trash enclosure.

It wasn’t until 3:50 a.m. on Monday the 9th,that the coroner’s investigator examined thebody at the scene. At 8 p.m. that night theFBI identified the dead man as Duran Bai-ley from his fingerprints.

When the man who found Bailey’s bodywas questioned, he said he hadn’t stepped inBailey’s blood, which was completely cov-ered by trash. His shoes were examined andthere was no blood on their soles.

Autopsy determines Bailey’s cause ofdeath was “blunt head trauma”

Clark County Chief Medical Examiner LarySimms performed Bailey’s autopsy. He found

that while alive,Bailey experi-enced a plethora of serious injuries to hisneck, face, head and upper body, includingdefensive wounds to his arms and right hand.Simms also determined that followingBailey’s death he was stabbed several times inhis abdomen, his penis was severed at itsbase, and his anus area was stabbed andsliced. Simms determined Bailey’s cause ofdeath was “blunt head trauma,” and “a signif-icant contributing condition was multiple staband incised wounds,” including a severedcarotid artery. 1

A month after Bailey’s autopsy, Simms ex-pressed his opinion during a preliminaryhearing for the person charged with Bailey’smurder that it was “more likely than not” hisdeath occurred within 12 hours from whenthe first officer arrived at the scene – or noearlier than 10:36 a.m. on Sunday, July 8. 2

Non-investigation of prime suspects

Las Vegas Metro PD (LVMPD) HomicideDetectives Thomas Thowsen and Jim LaRo-chelle were assigned to investigate the case.

Thowsen and LaRochelle immediately hada prime suspect. While the crime scene wasstill being processed on the morning of July9, a woman named Diann Parker ap-proached one of the police officers and toldhim, ‘I might know who that guy is. I wasthe victim of a rape a week ago and thatmight be the guy that did it.’ The informa-tion was relayed to the detectives.

The detectives went to Parker’s apartment onthe 9th to informally question her. She toldthem that Bailey and her were acquaintances,and that she had on occasion exchanged sexwith him for crack cocaine that he bought.

During their conversation Parker said thatseveral “Mexican” men in her apartment com-plex saw Bailey slap and threaten her on July1 while she was drinking beer with them. TheMexicans talked with Bailey and told him toleave Parker alone. When she left, they were“watching” to make sure she got back to herapartment safely. Later that day Bailey re-

turned. He became enraged when she told himshe didn’t want anything more to do with him.After forcing his way into her apartment hebeat and kicked her, and raped and tried tosodomize her while holding a knife to herneck and throat and threatening to kill her.

Afraid to go to the police because ofBailey’s threats, she did call 911 three dayslater when he returned and tried to breakinto her apartment.

She told the officer who responded that report-ing Bailey’s assault and rape of her was going“to get me killed.” She also told the police, “Ifyou all don’t catch him, I will be dead.” 3

When she asked the officer for protection hetold her, “you got to do what you got to do toprotect yourself the best you can.” 4 She wasreluctant to give him too much informationabout the Mexicans because she thought theycould have been in the country illegally.

Parker also told the officer the homeless Bai-ley “stayed behind the … Nevada State Bank”at “Flamingo and Arville.” That is whereBailey’s body was found three days later.

Parker told Thowsen the two apartmentnumbers where the Mexicans lived. He talk-ed with the apartment complex’s managerand learned the names they used to rent theapartments. The manager also told Thowsenthey didn’t cause any trouble. Thowsen rana criminal background check on the names.No record showed up for any of them so hedid not interview the Mexicans.

Thowsen and LaRochelle not only knew thatParker had a significant motive to want to seeBailey harmed or killed, but the photographsof her extensive injuries from the beatingBailey inflicted and his knife wielding wereeerily similar to the wounds about Bailey’sface and neck. Bailey even cut her neck withthe knife near her carotid artery, just as hewas cut days later by his murderer(s).

In spite of the strong circumstantial evidencesuggesting Parker and/or the Mexicans mayhave been were involved in Bailey’s murder,the detectives didn’t pursue investigating themby interrogations or obtaining warrants tosearch their apartments and vehicles to look forthe murder weapon(s), bloody shoes or cloth-ing, or any other possibly incriminating physi-cal evidence that could link them to the crime.

When asked later why on July 9 he didn’tinterview the Mexicans after talking withParker, Thowsen said words to the effect, ‘Itwas a long day and we were getting tired andat some point you just have to call it a day.’

Possibility Of Guilt Replaces ProofBeyond A Reasonable Doubt

Las Vegas Detectives, Prosecutors AndJudge Orchestrate Kirstin Blaise Lobato’sSerial Rape By The Legal System

By Hans Sherrer

Lobato cont. on page 25

Kirstin “Blaise” Lobato as a H.S.senior before her July 2001 arrest

See companion article on page 33,Lobato Jurors Engaged In Misconduct.


Laura Johnson provides detective with“third-hand” tip about Las Vegas stabbing

On July 20, twelve days after Bailey’s death,Thowsen received a phone call from LauraJohnson, the juvenile probation officer forLincoln County, Nevada. Johnson’s officewas in the county seat of Pioche – more than170 miles north of Las Vegas. Johnson in-formed Thowsen that Dixie Tienken, a Lin-coln County teacher, told her that a formerstudent of Dixie’s told Dixie that she had cutoff the penis of a man who attacked her inLas Vegas. Johnson told Thowsen that theyoung woman’s name was Kirstin BlaiseLobato, and she was living with her parentsin Panaca, a small town about ten milessoutheast of Pioche. (Kirstin goes by, and isknown by her middle name, so this articlewill refer to her as “Blaise”.) Johnson alsotold Thowsen she checked and learned thatBlaise owned a red 1984 Pontiac Fiero witha custom license plate. She also said she hada Lincoln County sheriff deputy drive by thehome of Blaise’s parents and her car wasparked in front on the public street.

Thowsen ran a background check on Blaiseafter talking with Johnson. He learned shewas 18, and when she was 6-years-old hermother’s boyfriend had sexually assaultedher for nine months in Las Vegas.

Detectives Thowsen and LaRochelletravel to Lincoln County to arrest Blaise

Thowsen arranged for LaRochelle andcrime scene analyst Maria Thomas to travelto Lincoln County, and he called the countysheriff’s office to notify them the threewould be arriving that afternoon. Thomaswas told that she would be impounding acar – Blaise’s Fiero.

Within an hour or so after receivingJohnson’s phone call, Thowsen, LaRochelleand the crime scene analyst headed north onUS Hwy 93 in two vehicles to arrest Blaisefor Bailey’s murder.

Johnson’s statement toThowsen and LaRochelle

After the nearly three hour drive to Pioche,Johnson gave a taped interview to the detec-tives. She reiterated what she told Thowsenon the phone. However, she added that thedetectives shouldn’t contact Dixie – thesource of Johnson’s third-hand informationabout what Blaise had allegedly told Dixie –because she thought Dixie would warn Blaisethat they were coming to arrest her.

Compounding Johnson’s implicating ofBlaise in Bailey’s murder without any person-al knowledge of anything Blaise said, or whatshe did or didn’t do in Las Vegas, was the factthat Johnson made the false declaration in herstatement that Blaise had been in trouble withthe law in Lincoln County and sentenced toprobation with Johnson supervising her. 5

However, the detectives didn’t know Johnsonmade-up that inflammatory assertion, becausethey didn’t verify her claims before decidingBlaise was Bailey’s murderer. 6

After arranging for a Lincoln County sheriffdeputy to accompany them to where Blaisewas living, and arranging for a flat-bed towtruck to transport her car to Las Vegas,Thowsen and his colleagues headed to near-by Panaca to arrest Blaise.

Detectives unaware the incident Dixie toldJohnson about wasn’t Bailey’s murder

What Thowsen and LaRochelle didn’t knowbefore forming their opinions about Blaise’sguilt, was that the incident Blaise told Dixieabout was an attempted rape that she fendedoff with a knife six weeks prior to Bailey’smurder. Shortly after midnight on or aboutMay 25, a “really big” black man over 6' and200 pounds grabbed the 5'-7" and 100 poundBlaise as she got out of her car at the BudgetSuites motel near Sam’s Town casino onVegas’ east side. He threw her onto theground and as he knelt over her with his pantspulled down, she pulled out a butterfly knifeher dad gave her for self-protection and triedto stab or cut his groin area. She was able toget away from him, and she heard him cryingand saw him getting up as she drove off. 7

If the detectives had conducted even a per-functory investigation into the details of whatBlaise told Dixie, they would have learnedthat prior to Bailey’s murder Blaise had toldmultiple people about the attack on her thatoccurred just before the Memorial Day week-end – eight miles from where Bailey waslater murdered on Vegas’ west side. 8 Theyalso would have learned from investigatingthat at least ten people would swear they sawBlaise in Panaca on July 8 at times from veryearly in the morning, to throughout the day,to late that evening. The detectives alsowould have discovered much more evidence,including medical and telephone records, thatexcluded Blaise from even cursory suspicionof being involved in Bailey’s murder.

However, the detectives didn’t have any ideathey were targeting the wrong person be-cause they decided to arrest Blaise withoutconducting an investigation into the sub-stance of Johnson’s conversation with Dixie.

Blaise’s July 20, 2001 interrogation

When the detectives arrived at the home ofBlaise’s parents, Larry and Becky Lobato,Blaise was in the shower and they were letin by her younger sister Ashley. Neither ofher parents were home. The first thingThowsen said to Blaise when he beganquestioning her at 5:55 p.m., was they knewshe had been sexually molested by hermother’s boyfriend when she was a child.Blaise began sobbing and continued to doso, even after she signed a Miranda waiver12 minutes later at 6:07 p.m., which waswhen Thowsen turned his tape recorder on.

Blaise thought they were interrogating herabout the Budget Suites assault in May, be-cause at no time before or after the taperecording began did Thowsen or LaRochelletell Blaise they were investigating the murderof a man who had been savagely beaten andsexually mutilated, its location in Las Vegas,or the day it happened. Consequently, shehad no way of knowing the details of the Mayassault she told the detectives about bore norelationship whatsoever to the circumstancesor details of Bailey’s death six weeks later onJuly 8. There are 16 significant details inBlaise’s 26-minute recorded statement in-consistent with specific details of Bailey’sdeath that Thowsen and LaRochelle wouldhave known at the time of her interrogation.There are eight additional significant detailsin her statement inconsistent with the detailsof Bailey’s death that the detectives wouldhave been aware of shortly after her arrest,due to forensic testing, expert evidence anal-ysis, or subsequent witness interviews. 9

No matching points between Bailey’smurder and Blaise’s statement

That Bailey, and Blaise’s assailant were black,both events occurred in Las Vegas, and a cut-ting instrument was involved, were the onlythree general areas of intersection between theundisputed circumstances of Bailey’s deathand Blaise’s statement. However, those didn’tremotely “match,” because Bailey was a small-er man – shorter and much lighter than Blaise’sassailant; Bailey was killed eight miles west ofwhere Blaise was assaulted; and Blaise onlydescribed attempting to cut her assailant onceto get free and flee, while Bailey was beatenseverely, and stabbed and cut many times be-fore being sexually dismembered.

Thus there are no actual matching pointsbetween Blaise’s statement and the detailsof Bailey’s death. The logical explanationfor the dissimilarity is because they weredifferent events.

Lobato cont. from page 24



Blaise’s arrest

True to the detective’s purpose of travelingto Panaca to arrest Blaise on the basis ofJohnson’s third-hand “double hearsay” in-formation – the detectives abruptly termi-nated Blaise’s interrogation after she toldthem she had been attacked “over a monthago,” and placed her under arrest forBailey’s murder. Her car was loaded on theflatbed tow truck to be taken for examina-tion by the LVMPD Crime Lab.

She was booked into the Clark County De-tention Center that night and three days later(7-23) she was charged with, “murder withuse of a deadly weapon.” 10 Three days laterthe DA added the charge of “sexual penetra-tion of a dead human body,” based on MESimms belief that Bailey’s “anal openinghad been cut after his death.” 11

It is indicative of how sloppy, hasty, andincomplete Thowsen and LaRochelle’s in-vestigation was that they didn’t even dis-cover how to correctly spell Blaise’s firstname before arresting her for Bailey’s first-degree murder. In her statement theyspelled her first name Kirsten — not Kirstin.

Six days after Blaise’s arrest, Thowsen re-turned to Lincoln County and interviewedDixie and several other people. Dixie’s tapedstatement of Blaise’s conversation with herdiffered in important details from Johnson’sclaims of what Dixie said Blaise said to her.Particularly, Dixie said that Blaise was stay-ing with her parents – not hiding out, andDixie did not say her parents were doinganything to hide or get rid of her car, orcamouflage it by painting it. Nor did Blaiseask her not to tell anyone about the assaultshe described. Dixie told Justice:Denied dur-ing an interview that Thowsen talked to herfor quite some time before turning on his taperecorder. While the tape recorder was off,Dixie said Thowsen tried to pressure her toshape her statement to what he wanted her tosay Blaise told her, not what she recollected.

People in Lincoln County learn Baileywas killed when Blaise was in Panaca

The Las Vegas Review-Journal publishedan article on July 25 that reported Blaisewas charged with murdering Bailey on July8. That article was the first that the Lobatofamily and other people in Panaca knew thatJuly 8 was the date of the incident Blaisewas accused of being involved in.

Blaise’s dad Larry called Thowsen and lefta message. When Thowsen returned the call,Larry told him they had charged the wrongperson because Blaise had been in Panacaall day on the 8th. Thowsen’s response was“that as far as he was concerned he hadarrested and charged the right person anddid not need any further information.” 12

Crime lab tests exclude Blaise

Almost a week after Blaise’s arrest, and daysafter she was charged, the physical evidencerecovered from the crime scene that included,fingerprints and tire treads, as well asBlaise’s car and personal effects, were exam-ined by the LVMPD Crime Lab. Blaise wasexcluded as the source of four identifiablecrime scene fingerprints. Her metal baseballbat with a porous rubber handle tested nega-tive for the presence of blood. A spot on theinterior of her car’s driver’s side door paneland on her car seat cover tested weakly posi-tive after a presumptive luminol test for thepresence of an unknown iron bearing sub-stance (blood contains iron), but both spotstested negative as being blood when subject-ed to a precise confirmatory test.

Somewhat remarkably, the single most im-portant piece of evidence recovered fromthe crime scene – Bailey’s severed penis thatwas handled by his killer – wasn’t tested forthe presence of identifiable foreign DNAbefore being buried with his body.

The crime lab did not analyze the bloodyshoeprints leading away from Bailey’sbody, so Blaise’s public defenders retaineda nationally renowned shoeprint expert,William J. Bodziak. He wrote in his reportof March 27, 2002:

“Based on the corresponding dimen-sions of comparable portions of otherbrands of footwear having this genericdesign, it was determined the Q1-Q2impressions most closely correspond toa U.S. men’s size 9 athletic shoe of thistype. …… Using a standard Brannock foot-mea-suring device, the length of the LOBA-TO right foot equates to U.S. men’s sizesbetween 6 to 6-1/2. … The right foot sizeof KIRSTIN LOBATO would thereforebe at least 2 1/2 sizes smaller than theestimated crime scene shoe size.” 13

Prosecution’s lack of evidencesolved by jailhouse informant

On the eve of Blaise’s trial, ten months afterher arrest, the prosecution had no physical,forensic or scientific evidence, eyewitness

or confession linking her to Bailey’s mur-der. Neither did they have a single witnesswho saw her or her car in Las Vegas on theday of Bailey’s death or for nearly a weekpreceding it. In contrast, numerous witness-es said she and her car had been in Panacaon the 8th and the six days preceding it.

What the prosecution did have was a“jailhouse informant” – Korinda Martin.Martin claimed that while they were both inthe Clark County Detention Center, Blaisewas loudly “bragging” on several occasionsin the open area of the jail module (wherethe prisoners watch television and social-ize), “That she was there for murder andthat she had cut a man’s penis off andstuffed it down his throat.” 14 The accuratedetails about Bailey’s murder that Martinclaimed Blaise described were included in aJuly 25, 2001, article about Blaise’s arrestin the Review-Journal, Las Vegas’ mostwidely read newspaper that was delivered tothe jail. While Martin’s inaccurate details,such as her claim that Bailey’s penis wasstuffed in his mouth, were not in the paper.

Blaise’s trial

Blaise’s trial began on May 8, 2002, in thecourtroom of Clark County District CourtJudge Valorie Vega. Blaise’s attorneyswere Clark County Public Defenders GloriaNavarro and Phillip Kohn. The prosecutorswere Assistant D.A.s Sandra DiGiacomoand William Kephart.

The prosecution tried to influence the juryby generally focusing on a series of prongsthat they represented during closing argu-ments were “proven” by the evidence. Theprosecution’s case during Blaise’s trial canbe understood by explaining several of thekey prongs they argued. The following areeight of those prongs, followed by a rebuttal




of why each one didn’t implicate Blaise inBailey’s murder.

First prosecution prong

It was too coincidental that a knife would beused to stab at a man’s groin in two separateincidents in Las Vegas six weeks apart.

Response

The prosecution ignored that Las Vegas wasa crime haven in 2001. According to theFBI’s 2001 Uniform Crime Report (UCR),Las Vegas had one of the highest rates ofrape in the country, 30% above the nationalaverage, 15 and murder was so common-place that it was double the national aver-age, with almost three per week. 16 Alsoundermining the prosecution “coincidence”claim is that in 2001, almost two out of fivemurders were committed by cutting or beat-ing – the causes of Bailey’s death. 17

Consequently, it wasn’t unusual for Baileyto be beaten and stabbed to death, and sixweeks earlier for Blaise to have used a knifeto fend off a sexual assault eight miles awayin east Las Vegas.

Blaise explained in her statement that shedidn’t report the May 2001 attack becauseshe had reported previous sexual assaults andthe police “basically blew me off. It’s beenmy experience that it doesn’t do any good.”18 Her non-reporting of the attempted rape isthe norm. The U.S. Dept. of Justice estimatesthat in 2001 only 39% of rapes and/or sexualassaults nationwide were reported. 19

Second prosecution prong

The Budget Suites assault Blaise describedand Bailey’s murder were the same event.

Response

The prosecution’s attempt to transpose the twoevents ignored that none of the details inBlaise’s statement and during her trial testimo-ny matched the crime scene or the circumstanc-es of Bailey’s death. Not the time, the size ofher attacker, the type of attack, the injuriesinvolved … nothing. There are at least 24 spe-cific details in her 26-minute statement that areinconsistent with the facts of Bailey’s murder.

Third prosecution prong

The prosecution’s “theory of the crime” wasBailey’s murder resulted from “A drug dealgone bad.” 20

Response

The prosecution’s “theory of the crime” wasnon-fact based speculation for many rea-sons, including:

Bailey used crack cocaine, which was inhis system at the time of his death, andwitnesses testified he didn’t use metham-phetamines.

There was no testimony Bailey ever solddrugs of any kind.

There was no testimony that Bailey andBlaise had ever met, or that she knewBailey was living in the trash enclosure.

Multiple witnesses testified that Blaiseused methamphetamines when staying inLas Vegas.

There was no testimony why Blaisewould drive 170 miles to Las Vegas solelyto get meth as the prosecution alleged,when it was available within walking dis-tance of her parent’s Panaca house.

Fourth prosecution prong

Korinda Martin testified that Blaise braggedat the Clark County Detention Center aboutkilling Bailey.

Response

Undermining Martin’s claims is that the accu-rate details about Bailey’s death that Martintestified Blaise said, were included in a LVReview-Journal article published five daysafter Blaise’s arrest. The inaccurate detailsMartin testified about weren’t in the media.

Fifth prosecution prong

The prosecution portrayed Blaise as a badperson of low moral character who grew up inthe sticks of Lincoln County, used metham-phetamines, and on two occasions engaged inamateur exotic dancing in Las Vegas.

Response

Contrary to the prosecution’s intimations,there was no testimony supporting that be-cause of her upbringing, experiences orlifestyle Blaise would ever harm anyoneexcept in self-defense.

Sixth prosecution prong

To explain how Bailey’s extensive injuriescould have been inflicted by a person ofBlaise’s slender physique, the prosecutionspeculated that after she stabbed him whilehe was standing, she repeatedly hit him withthe aluminum baseball bat that she kept in theback seat of her car for self-protection.

Response

That speculation was unsupported by testi-mony. ME Lary Simms testified that Bailey“didn’t have any skull fractures that weredepressed like, you know, a bat would de-press somebody.” 21

Thomas Wahl, a technician with theLVMPD Crime Lab, testified, “There wasno blood, hairs or tissue recovered from thealuminum baseball bat or detected on thatitem.” 22 The bat has a porous rubber handlethat had no trace blood residue.

George Schiro was a forensic scientist ofnational repute retained by Blaise’s publicdefenders to expertly analyze theprosecution’s physical evidence. He wrotein his Forensic Science Report:

“There is no documentation of bloodspatter above a height of 12 inches onany of the surrounding crime scene sur-faces. ...The confined space of the crimescene enclosures and the lack of [blood]cast-off indicate that a baseball bat wasnot used to beat Mr. Bailey. The beatingwas more likely due to a pounding orpunching type motion.” 23

Judge Vega, however, did not allow the juryto hear Schiro’s exculpatory blood ‘spatter’and ‘cast off’ testimony. She sustained theprosecution’s objection that Blaise’s law-yers had not provided them with propernotice of the scope of his expert testimony.

Seventh prosecution prong

Since Blaise described stabbing at her assail-ant as he hovered over her, the prosecutionargued that Bailey was standing with hispants down when he was stabbed in his groin.

Response

Schiro’s analyzed the evidence for‘vertically dripped blood’:

“The photographs of his pants also donot indicate the presence of any vertical-ly dripped blood. This indicates that hedid not receive any bleeding injurieswhile in a standing position.” 24

Judge Vega, however, did not allow the juryto hear Schiro’s exculpatory blood drippingtestimony. She sustained the prosecution’sobjection that Blaise’s lawyers had not pro-vided them with proper notice of the scopeof his expert testimony.




Eighth prosecution prong

To fit Bailey’s murder with Blaise’s statementthat she was on a methamphetamine binge andawake for the three days preceding being as-saulted, the prosecution speculated she droveher car from Panaca to Las Vegas on July 6.They further speculated that after murderingBailey early on the morning of the 8th, Blaisedrove back for Panaca, arriving around 10 a.m.

Response

The prosecution presented no evidencewhatsoever that Blaise was in Las Vegas onJuly 6, 7 or 8; numerous people saw Blaisein Panaca on July 6, 7 or 8; and multiplepeople saw Blaise’s car was parked in frontof her parent’s house from July 2 to July 20.

Furthermore, the prosecution’s argumentcompletely ignored that Blaise also said shewas out of her mind on meth for a weekbefore and after she was assaulted. Yet,Blaise’s blood sample taken at the CalienteClinic on July 5 didn’t test positive for meth,her urine sample was collected on July 7, andmany people saw she was tired and lethargicfor four or five days after arriving in Panacaon July 2 – not hyped up on meth. Blaise’sboyfriend Doug Twining has testified that heand Blaise only smoked marijuana while shewas in Las Vegas from July 9 to 13, when herdad picked her up and took her back to Panaca.

The jury, however, was unaware of some ofthe alibi testimony corroborating Blaise’spresence in Panaca from July 2 through July9. Citing inadequate notice to the prosecu-tion, Judge Vega barred the jury from beingexposed to that exculpatory information.

Defense expert Schiro’s testimony limited

Vega did not allow the jury to hear themajority of defense witness Schiro’s pro-posed expert testimony that would haveundermined that the prosecution’s case hadany pretense of a scientific basis.

The jury also did not hear Schiro’s crimescene reconstruction based on his analysisof the evidence that Bailey’s murder was apremeditated methodically executed event.

Schiro was allowed to testify about the testingfor the presence of blood in Blaise’s car. Hediscussed that both presumptive luminol andphenolphthalein tests were subject to a highincidence of false positives, and that negativeconfirmatory tests indicated to him that hu-man blood did not cause the weakly positive

presumptive tests for two spots in Blaise’s car.

After he had given his very limited testimo-ny, Schiro, who had spent the overwhelmingmajority of his career as a prosecution wit-ness identifying crime scene evidence thatinculpated an accused person, told reportersin the courthouse hallway what Judge Vegabarred him from telling Blaise’s jurors:“There is no evidence to tie Ms. Lobato tothe crime scene. I feel the evidence is evenexclusionary on her behalf.” 25

The prosecution’s case didn’t implicateBlaise in Bailey’s death

At the point that the prosecution and de-fense rested their cases, none of theprosecution’s prongs supported implicatingBlaise as Bailey’s killer.

Conclusion of Blaise’s trial

The closing arguments were made on Fri-day, May 18, 2002. DA DiGiacomo’s argu-ment was based on a multitude ofspeculations about how and why Blaise hadmurdered Bailey.

Blaise’s lawyer Kohn, emphasized that thedetectives did not identify the date of theman’s stabbing they were talking about whenthey interrogated Blaise. Furthermore, hepointed out that the detectives and prosecutorswere wrongly assuming she was talking aboutBailey, when none of the details of the inci-dent she described matched those of his death.Kohn told the jury, “Two people talking abouttwo different incidents.” 26 He compared theprosecution of Blaise to the Salem Witch Tri-als, during which many innocent women wereput to death, “Women who were different,who were odd and who said stupid things.” 27

DA Kephart asserted in his rebuttal argumentthat Blaise’s acknowledgement during her in-terrogation that she stabbed at a man’s groinarea to fend off his sexualassault constituted a con-fession to Bailey’s murder.

Verdict and sentence

Judge Vega finished read-ing the jury instructions at9 p.m. The jury began de-liberations immediately.After five hours they an-nounced they had arrivedat a verdict. At 3 a.m.their verdicts of guilty toboth counts were read incourt, and Blaise, whohad been free on $50,000

bond, was taken into custody.

Her lawyer Navarro told reporters, “Sheplaced her belief in the justice system, andshe ended up being convicted of a crimethat she did not commit.” 28

On July 2, 2002, Blaise was sentenced toserve a minimum of 40 years before becom-ing eligible for parole.

Blaise’s conviction reversed by NevadaSupreme Court on September 3, 2004

On September 3, 2004, the Nevada SupremeCourt reversed Blaise’s conviction and re-manded her case for a new trial. Lobato v.State, 96 P.3d 765 (Nev. 09/03/2004) Thereversal was based on Judge Vega’s failureto allow Blaise’s lawyers to cross-examineKorinda Martin about letters suggesting le-niency that she wanted sent to her sentenc-ing judge. The Court noted, “The profferedletters and extrinsic evidence relating tothem confirmed Martin’s desperation to ob-tain an early release from incarceration andher willingness to adopt a fraudulent courseof action to achieve that goal.” 29 The Courtalso ruled that it was prejudicial error forVega to bar Blaise’ lawyers from examiningthe woman the letters were mailed to, aswell as introducing the letters themselves.

New defense lawyers for Blaise’s retrial

After reviewing her case and becoming con-vinced of her innocence, San Francisco basedlawyers Shari Greenberger and Sara Zalkinagreed to represent Blaise pro-bono duringher retrial as co-counsel to her lead lawyer,David Schieck, with the Clark County Spe-cial Public Defenders Office. In December2005 Blaise was released pending her retrialon a $500,000 bond posted by supportersbelieving in her innocence. For reasons un-known, Blaise’s attorneys did not move torecuse Vega from the case in spite of her

known bias against Blaise.

Vega’s pretrial rulings favor theprosecution

The Nevada Supreme Court wasbluntly disappointed with the preju-dicial effect of a number of JudgeVega’s prosecution favorable rul-ings during Blaise’s trial. The pretri-al motions hearings for Blaise’sretrial were the first opportunity forVega, a former Clark County, Ne-vada prosecutor, to indicate if shewas going to continue to openly fa-vor her former colleagues. At the


Lobato cont. on page 29Blaise after her pretrial release

on bail in December 2005.


conclusion of those hearings in May 2006,there was no doubt she was not going to bemore balanced. Vega did not grant any de-fense motion in limine or suppression out-right. The following are some of her rulings.

The prosecution could introduce as one ofthe murder weapons, the bat found inBlaise’s car when it was searched on July20, 2001, even though it had no knownconnection to Bailey’s murder.

The prosecution could introduce picturesand testimony about Blaise’s custom li-cense plate, even though her car was notfound to have any connection whatsoeverwith Bailey’s death. Her tire tracks didn’tmatch those found at the crime scene andconfirmatory scientific tests excluded thepresence of any blood in her car.

The prosecution could introduce the“double hearsay” testimony of Laura John-son about what she alleged Dixie Tienkensaid that Blaise had said. The defense ar-gued, “By seeking to introduce this imper-missible hearsay the State is trying tocircumvent the rules of evidence.” 30 JudgeVega denied the defense’s motion withoutprejudice as premature, since Johnson hadnot yet testified, but the defense couldobject for the record when Johnson testi-fied. Thus, Vega cleverly sided with theprosecution by allowing Johnson to testifyabout the “double hearsay” statementswithout making a ruling on the motion’smerits.

The prosecution could introduce Blaise’s Ju-ly 20, 2001 statement, even though her law-yers argued that its details had no relevanceto Bailey’s death, and she advised Thowsenand LaRochelle in the statement that theincident she described occurred more than amonth prior to the interrogation, and thusmore than two weeks prior to Bailey’s death.

The prosecution could introduce presump-tive tests of two spots on Blaise’s car thatweakly tested positive (indicating the pos-sible presence of an iron bearing substance,one of which is blood.), even though themuch more sophisticated and precise con-firmatory tests returned negative results forthe presence of blood. Blaise’s lawyersargued in vain that the jury would be mis-led that the weakly positive presumptivetests inferred the presence of blood inBlaise’s car, when the spots were disprovenas blood by the negative confirmatory tests.

The prosecution could introduce whatamounted to about 140 photographs of thecrime scene and Bailey’s autopsy photos.Blaise’s lawyers argued unsuccessfullythat the cumulative effect of the photos,many that were near duplicates, would

have “the principle effect of inciting andinflaming the jury, due to graphic depic-tions of the victim’s body, the horror ofthe crime and the cumulative effect ofunnecessarily duplicative photographs.” 31

Judge Vega also denied the defense motionto dismiss the charges based on “the state’sfailure to preserve and collect exculpatoryevidence.” Blaise’s lawyers argued the fail-ure to collect and/or preserve potentiallyexculpatory crime scene evidence for testingwas a fatal due process violation caused bythe “bad faith,” or at a minimum the “grossnegligence” of the police. Judge Vega ruledthat in July 2001 the crime scene investiga-tors and police could not have been expectedto know that fingerprints and scientific test-ing such as DNA, could possibly identifyBailey’s murderer(s) from their handling ofany particular item, so they couldn’t haveacted in “bad faith” in failing to collect andpreserve the crime scene evidence.

Judge Vega also denied a defense motion todismiss the charges on the basis that theprosecution “cannot establish the corpusdelicti of the crime with evidence indepen-dent of defendant’s extrajudicial admis-sions.” 32 Just weeks before the motion washeard, the Nevada Supreme Court reiterated,“It has long been black letter law in Nevadathat the corpus delicti of a crime must beproven independently of the defendant’sextra-judicial admissions.” Edwards v.State, 132 P.3d 581 (Nev. 04/27/2006). Dueto the absence of any evidence independentof her July 20, 2001, statement and her otherpurported extra-judicial statements, Blaise’slawyers argued that contrary to the prohibi-tion by the Nevada Supreme Court, the pros-ecution relied solely on her extra-judicialstatements “to prove the corpus delicti ofBailey’s homicide.” 33 Although Vega wasaware that there must be independent evi-dence of Blaise’s alleged guilt apart frominterpretations and recollections of her pur-ported extra-judicial statements, she never-theless denied the motion.

It was evident from Vega’s pre-trial rulingsthat she was going to allow the prosecutorsfree-reign to run a replay of Blaise’s first trial.

Pubic hair DNA tests excluded Blaisein Sept 2006

Several weeks before Blaise’s retrial wasscheduled to begin on September 11, 2006,the prosecution disclosed that it had finallyordered DNA testing of a pubic hair foundduring a combing of Bailey’s pubic hair onthe day his body was discovered. The hairhad remained untested for years in his rapekit, even though the defense had repeatedlyasked for it to be tested.

The DNA test excluded Blaise and Bailey asthe hair’s source, but it did reveal that it camefrom an unidentified male. That finding wasconsistent with ME Simms’ testimony duringBlaise’s May 2002 trial that the manner ofBailey’s murder had homosexual overtones.

Prosecution Surprise – No KorindaMartin Testimony During Retrial

The prosecution had let it be known duringpretrial proceedings that they intended topresent the same case during Blaise’s retrialas during her first trial. That, however,wasn’t true. The defense found out duringopening statements that Korinda Martinwouldn’t be called as a prosecution witness.The prosecution may have been influenced toomit Martin as a witness because the defensecontended in a pretrial motion to excludeMartin’s testimony that allowing her testimo-ny would constitute subornation of perjuryby prosecutors DiGiacomo and Kephart. 34

The prosecutors also knew that based onVega’s pretrial rulings they didn’t needMartin’s testimony.

Prosecution strategy

Since there was no physical, forensic, scien-tific, circumstantial, documentary, eyewit-ness or confession evidence linking Blaise,her car, or any item of hers within 170 milesof Las Vegas at the time of Bailey’s murder,the prosecution’s primary strategy was toargue: ‘It is possible she did it.’ The defensehad timely filed its notice of an alibi defense,and over a dozen witnesses were scheduledto testify who would place Blaise in Panacafrom July 2 to 9. So the success of theprosecution’s ‘It is possible’ strategy depend-ed on their success at blocking anyone fromtestifying about their knowledge of the attackon Blaise six weeks before Bailey’s murder.

Dixie Tienken testifies

Dixie had been Blaise’s adult educationteacher when she earned her GED at 17 in2000. Blaise considered Dixie her friend andduring a three hour conversation in early July2001 that covered many topics, Blaise men-tioned she had fended off a sexual assaultwith her knife when she had been staying inLas Vegas. Dixie didn’t provide any testimo-ny specifically linking Blaise to Bailey’s mur-der, and she actually provided testimonysupporting that the attack Blaise describedhad occurred between one and two monthsprior to their conversation. Although the pros-ecution treated Dixie as a hostile witness, hertestimony was necessary to lay the foundationfor “Star Witness” Laura Johnson’s “double




hearsay” testimony about what Johnsonclaimed Dixie told her Blaise had said.

“Star Witness” Laura Johnson testifies

During Laura Johnson’s “double hearsay”testimony, she testified that Dixie said Blaisesaid that when she was coming out of a stripclub where she worked in Las Vegas, a manattacked her while his penis was hanging outof his pants and she cut it off. Johnson alsosaid Dixie said Blaise said she was “hidingout” at her parents house and her parentswere trying to get rid of her car, or get itpainted to hide it. Thus Johnson provided themagic phrases suggesting Blaise had a ‘guiltymind’, which Dixie denied Blaise told her.First, that Blaise had been “hiding out” inPanaca, and second, with the help of herparents she wanted to “get rid” of her car or“hide” it by painting it.

ME Simms “Games” Bailey’sTime of Death

During Blaise’s Preliminary Hearing in Au-gust 2001, ME Simms’ testified that Baileydied no earlier than 10:36 a.m. on July 8.That didn’t jibe with Blaise’s statement thatshe was attacked during very early morninghours, so at Blaise’s first trial he “gamed”Bailey’s time of death by expanding it sixhours to the pre-dawn time of 4:36 a.m.That allowed the prosecution to argue thatthe nighttime assault on Blaise and Bailey’sdeath were the same event. During Blaise’sretrial Simms further “gamed” Bailey’stime of death to as early as 3:50 a.m. 35

Detective Thowsen testifies

During Detective Thowsen’s direct testimo-ny and cross-examination, he described in-formally visiting Diann Parker after beingtold she had been at Bailey’s murder sceneasking about him. Thowsen also describedher telling him that Bailey beat and raped heron July 1, after several Mexicans in her apart-ment complex told him earlier that day toleave her alone after he slapped and threat-ened her while she was drinking beer withthem. Thowsen then talked to the apartmentmanager who provided him with the namesused by the Mexicans. He said they didn’tcause any trouble. After Thowsen ran a back-ground check on the names that returnednothing, he didn’t question the Mexicans.

Although Bailey’s murder was rich withfertile leads, Thowsen did no more“investigating” into Bailey’s case until get-ting a call from Johnson on July 20 about her

conversation with Dixie. He described doinga background check on Blaise, and contact-ing the Lincoln County Sheriff that he wouldbe driving up that afternoon with anotherdetective and a crime scene analyst to inter-view a witness and arrest a murder suspect.

During defense attorney David Schieck’scross-examination, Thowsen was asked whyhe didn’t investigate the Budget Suites attackBlaise described in her statement before ar-resting her, Thowsen replied, ‘Because itdidn’t happen.’ Thowsen elaborated that ev-ery detail in Blaise’s statement that is incon-sistent with Bailey’s crime scene or manner ofdeath is explainable as “minimizing.” Whichhe described as a guilty person’s technique ofreducing the seriousness of what he or she did.

Thowsen’s testimony about Blaise’s alleged“minimizing” was critical to the prosecution,because nothing in her statement identified heras involved in Bailey’s murder. What Schieckdidn’t know during his cross-examination wasthat Thowsen fabricated his explanation thatshe had “minimized” her involvement. Ac-cording to the FBI and other experts in policeinterrogation techniques, “minimizing” iswhat a detective does to induce a suspect whohas already admitted to an identifiable level ofinvolvement in a crime to further incriminatehim or herself by confessing to more specificdetails. The following are excerpts from anarticle in the August 2005 issue of the FBILaw Enforcement Bulletin, titled, “Reducing aGuilty Suspect’s Resistance to Confessing”:

The investigator presents the acceptablereasons to confess, usually in one of three… categories: rationalizations, projectionsof blame, and minimizations. … investi-gators can try to reduce, or minimize, theheinous nature of the crime so it producesless guilt or shame for the suspect.. ……Because the focus of the rational choicetheory is centered on self-interest, pro-jecting the blame on anything else isappropriate to reduce the suspect’s feel-ings of guilt. … the investigator canminimize the woman’s shame by ac-knowledging her righteousness ……To make the crime more acceptable, theinvestigator can minimize the suspect’sdeviant actions by explaining how hehas seemingly overcome overwhelmingnatural circumstances……Regarding minimizations, the investiga-tors could suggest that engaging inproperty crimes to obtain the Americandream offers a much more acceptableroute than committing violent crimes.

…To minimize the crime, the investigatorcan convince the suspect that his actionswere minor offenses … 36

The preceding explanation of “minimization”in an official FBI publication clarifies thatduring Blaise’s interrogation neither Thows-en nor LaRochelle “minimized” her involve-ment in the assault she described. Furtherundermining Thowsen’s credibility about“minimization” is that Blaise said nothing toreduce her involvement in the assault shedescribed in her statement.

Thowsen’s false testimony about “minimizing”to explain away the absence of similarity be-tween Blaise’s statement and the details ofBailey’s death wasn’t a minor infraction. It wasthe cornerstone of his testimony.

Prosecution’s case lackedevidence implicating Blaise

There were several dozen witnesses duringthe prosecution’s nearly three-week case.Those witnesses included police officers,several crime lab technicians, medicalexaminer’s office personnel, relatives of Bai-ley, and friends and acquaintances of Blaise.What is notable about those witnesses is thatnot a single one provided any testimony link-ing Blaise to any involvement in Bailey’smurder, or that on July 8 she had been within170 miles of Las Vegas, or that she had evermet Bailey. Not even the two key witnesses,Johnson and Thowsen, provided any testimo-ny that was anything more than conjecturethat Blaise possibly could have been refer-ring to Bailey’s death when she describedfending off a sexual assault with her knife.

That lack of testimonial evidence wasbacked up by the absence of any physical,forensic or scientific evidence that Blaise orher car was present at the crime scene. Herinvolvement was in fact undermined by thecrime scene fingerprints that excluded her,the DNA test of the pubic hair found onBailey’s body that excluded her, the bloodymale shoeprints that excluded her, the tiretracks that excluded her car, and the DNAon chewing gum found on the cardboardcovering Bailey’s body that excluded her.

During cross-examination of law enforcementwitnesses, the defense was repeatedly able toexpose the multiple deficiencies in the collec-tion, preservation, and/or testing of crime sceneevidence. The portrait painted by the defense’scross-examination was that with a few excep-tions, the LV Metro PD handled Bailey’s crime




scene and investigation like they were a crossbetween the Keystone Cops and rank amateurs.

Two defense experts

The defense did not retain Schiro for Blaise’sretrial, but it did enlist two experts who testi-fied, Dr. Michael Laufer and Brent Turvey.

Dr. Michael Laufer testifies Bailey waslikely murdered with scissors

Dr. Michael Laufer is associated with Stan-ford Medical School and the nationally rec-ognized inventor of more than 100medically related products.

In the course of reviewing the autopsy report,and autopsy and crime scene photos, Lauferbegan doubting that Bailey’s stab and slash-ing wounds were caused by a knife, as he hadbeen told when he agreed to review the case.He noticed they resembled scissors woundshe had treated during his years as an emer-gency room doctor. So he proceeded to con-duct a photographed controlled experiment tosee if he could duplicate Bailey’s wounds bystabbing scissors into a flesh substitute –foam rubber tightly covered with ultra suede.

In his final report, dated September 24,2006, Laufer determined that Bailey’s stabwounds were consistent with being causedby scissors, and that barber scissors with afinger hook were the most likely type usedto inflict Bailey’s wounds. He also conclud-ed that scissors were likely used to snip hiscarotid artery, and “The penile amputationwas most likely performed with scissors.” 37

Laufer’s experiment that duplicated a woundto Bailey’s abdomen disclosed “a “ring dis-tance” between the inside of the second fingerand the inside of the fifth finger of theassailant’s hand of at least 5.8 cm.” 38 The“ring distance” of Blaise’s hand was measuredto be 4.3 cm. Thus Laufer concluded her handis much smaller than Bailey’s assailant.

Laufer also determined that because the bleed-ing of Bailey’s blood stopped at the waist levelof his pants, the wounds above his waist wereinflicted while his pants were pulled up.

Laufer testified to his findings about Bailey’swounds and cause of death on direct exami-nation. The prosecution, however, success-fully blocked his testimony about the case’sextensive blood evidence. Judge Vega agreed

with the prosecutors that the defense had notprovided the required notice about the extentof Laufer’s expert testimony.

Kephart was taken aback during his cross-examination, when Laufer testified that heprovided his expertise in Blaise’s case probono. Laufer said, “The first thing I was told[by defense lawyer Greenberger] was, “Wedon’t have any money.””

Brent Turvey testifies no physical evidenceimplicates Blaise in Bailey’s murder

The other defense expert was Brent Turvey,a forensic scientist and criminal profiler.After analyzing a large number of case reportsand documents, Turvey completed a reportdated October 17, 2005. His findings were:

1. There is no physical evidence associat-ing Kirstin “Blaise” Lobato, or her vehicle(a red 1984 Fiero), to the crime scene.2. The offender in this case would havetransferred bloodstains to specific areas ofany vehicle they entered and operated.3. The failure of Luminol to luminesce atany of the requisite sites in the defendant’svehicle is a reasonably certain indicationthat blood was not ever present, despiteany conventional attempts at cleaning.4.There are several items of potentiallyexculpatory evidence that were present onor with the body at the crime scene butsubsequently not submitted to the crimelab for analysis.5. A primary motive in this case is direct-ed anger expressed in the form of brutalinjury, overkill and sexual punishment tothe victim’s genitals.6. The wound patterns in this case may beused to support a theory of multiple assail-ants. 39

Turvey testified to his findings on directexamination. Key points of his testimonyrevolved around forensic science’s“exchange principle,” which is that “everycontact leaves a trace” and, “no evidencemeans no proof of contact.” 40 The “exchangeprinciple” is the basis of his conclusion thatthere is no physical evidence Blaise wasinvolved in Bailey’s murder.

Turvey’s cross-examination was muchmore contentious than Laufer’s. The biggestfireworks occurred when Turvey resistedDiGiacomo’s attempts to pressure him toacknowledge that the two spots in Blaise’scar that weakly tested positive after a pre-sumptive test, “possibly” could be blood.Turvey repeatedly responded that the muchmore precise confirmatory testing of thespots were negative for blood, so the idea itwas blood “had to be let go.”

Four witnesses not allowed to testify attackon Blaise was before Bailey’s death

The prosecution knew that prior to Bailey’smurder Blaise talked with at least five peopleabout the May 2001 Budget Suites assault.Those five people are Steve Pyszkowski,Kathy Renninger, Michelle Austria, HeatherMcBride, and Blaise’s dad, Larry Lobato.

During Blaise’s first trial Vega had allowedPyszkowski, Austria and McBride to testifythat they were told about the assault againstBlaise in Las Vegas on days that rangedfrom a month to six days preceding Bailey’smurder on July 8. Larry was told by Blaiseabout the attack in late June 2001, but hewasn’t called as a witness by the defense.

Four of those people, Pyszkowski, Austria,McBride, and Larry testified at Blaise’sretrial, but Judge Vega blocked all of themfrom testifying about their knowledge of theMay assault, by sustaining the prosecution’sobjections it was hearsay.

Alibi witnesses

Thirteen people testified that they saw Blaisein Panaca between July 2 and July 9. 41 Tenof those people testified they saw her on theweekend of July 7 and 8. All of the relatives,acquaintances, and neighbors who also testi-fied about seeing Blaise’s car parked in frontof her parents house said they never saw itmoved or parked in a different position on thecity street behind a utility trailer, after shearrived from Las Vegas on July 2, until thepolice took it away on July 20.

Kristina Paulette

During LVMPD Crime Lab technician Kris-tina Paulette’s testimony on September 25 asa prosecution witness, she described the



7-1/2” Barber Scissors

A nationwide Westlaw search of stateand federal appellate cases revealedonly 16 homicides where an adult

victim’s penis was actually cut off. In allbut one case it was a male, or a group oftwo or more males, who committed themurder and the ultimate removal of thevictim’s penis:…Notably, the alleged circumstances inonly one case involved a female actingalone to attack, subdue, and remove thepenis of an adult male victim – Nevadav. Kirstin Blaise Lobato.

Forensic Examination Report, Brent E.Turvey, MS, October 17, 2005, p. 3.


DNA test results of a pubic hair combedfrom Bailey’s public hair that remained un-tested in Bailey’s rape kit for more than fiveyears. The test not only excluded Blaise, butit was from an unidentified male. After theretrial began DiGiacomo instructed the po-lice crime lab to perform DNA testing ofthree cigarette butts found on Bailey’s body.That DNA report was issued two days afterPaulette testified for the prosecution, so shewas called as a defense witness on October2. She testified that one butt did not haveisolatable DNA, another had Bailey’s DNA(from his blood) and the DNA of an uniden-tifiable person, and the third only had theDNA of an unidentified male. Paulette testi-fied that Blaise was conclusively excludedas a source of the DNA on the second andthird cigarette butts.

Closing arguments

The personality differences between the twoprosecutors and Blaise’s lawyer conductingthe closing, David Schieck were stark. Prose-cutor DiGiacomo has the bearing and manner-isms of a spoiled, petulant child. ProsecutorKephart has a forceful personality and themannerisms of a snake-oil salesman. WhileSchieck has an earnest, low key manner.

DiGiacomo’s closing argument

DiGiacomo’s closing revolved around thetheme: It is possible Blaise killed Bailey.

To support her ‘It’s possible she did it’ claim,DiGiacomo speculated about numerous alle-gations that were unsupported by any trialevidence. She even had a PowerPoint presen-tation laying out her supposition that Blaisewas Bailey’s killer. Although DiGiacomomade her arguments without caution or re-straint, Blaise’s lawyers didn’t object.

Schieck’s closing argument

Schieck’s closing was built on several inter-related themes: the crime scene evidencethat was collected and tested excludesBlaise; there is nothing in her statement thatincriminates her in Bailey’s murder; noth-ing in her possession or her car links her toBailey’s murder; the unrebutted alibi testi-mony of nearly a dozen people establishesshe was in Panaca the entire day of July 8;and because of the complete absence ofinculpatory evidence, the prosecution wasseeking to have Blaise convicted on theirspeculation it was possible she killed Bailey– and not proof beyond a reasonable doubt.

He described the prosecution’s case as: “It’spossible it happened this way;” “somehowBlaise came into contact with Mr. Bailey;”“Somehow, somehow, somehow, it goes onand on.”

Schieck explained that the prosecution wassupporting their scenario of the crime withthe argument, “There is nothing to disprovethis so it must be true.” He told the jurors,“The prosecution is actually defendingthemselves from the lack of evidence andtrying to convince you that somehow theyhave proved anything in this case.”

Schieck plainly asked the jury, “Isn’t itpossible that she wasn’t there and that’swhy they have no evidence? Isn’t it possiblethey are prosecuting an innocent person?Isn’t that a possibility if they want to talkabout possibilities?”

Schieck emphasized, “What happened inthis case is a snap judgment was made toarrest Blaise Lobato in Panaca, Nevada, andfor the next five years the state and thedetectives have attempted to prove theircase after they made their arrest instead ofdoing it the right way of getting your factsstraight before you arrest someone andcharge them with murder.”

He encouraged the jurors to listen toBlaise’s taped statement, telling them,“There is no evidence in that statement thatis going to convict her in this case.”

He also told the jury that when the defensepresents an alibi defense, the burden is on thestate to disprove the alibi beyond a reasonabledoubt. Yet the prosecution presented no testi-monial or documentary evidence rebuttingBlaise’s alibi of continuously being in Panacafrom the afternoon of July 2 until the earlymorning of July 9. So she wasn’t even in LasVegas when Bailey was murdered on the 8th.

Schieck gave the jury a bit of a historylesson by telling them that the prosecution’sburden of proving a defendant guilty beyonda reasonable doubt was embedded in the Billof Rights to prevent a person such as Blaisefrom being convicted without any evidence.He explained, “The burden of proof is be-yond a reasonable doubt, not, it’s possible.”

Kephart’s rebuttal closing argument

Kephart is an experienced prosecutor whoknows from more than 100 jury trials thatevidence of a defendant’s guilt isn’t neces-sary to win a conviction, as long as he isable to push the jurors emotional buttonsthat make them bypass the thought process

and feel a defendant is guilty without beingable to coherently articulate why.

Since the prosecution had no direct or cir-cumstantial evidence upon which to base anargument for the jury to find Blaise guilty,Kephart resorted during his rebuttal to usinghis forceful personality to command thejury’s attention while he made an emotionladen zealous argument for a guilty verdictbased on the theme that it was too coinci-dental for a man to be non-fatally woundedby having his groin area stabbed or cut asBlaise described in her statement, and sixweeks later for another man across town tohave his penis severed after he was dead.

Kephart’s argument bet that the all-whitemiddle-class jury could be induced to disre-gard that no evidence tied Blaise to Bailey’smurder if they could be convinced that inJuly 2001 she was a thoroughly bad anddepraved young women who would do any-thing to satisfy what he alleged was her methcraving. Kephart’s wild-eyed ranting aboutBlaise during his closing was in some waysreminiscent of old film clips of fevered de-nunciations by Hitler and other Nazis of Jewsas subhuman and deserving of punishment.

Kephart’s closing emotional appeal to thejury was showing them a large blow-up ofBlaise’s picture taken when she was arrest-ed in Panaca on July 20. He thundered thatthe short-haired bleach blond 18-year-oldwith no make-up shown in the picture iswho the jury was judging and should con-vict – not the attractive 23-year-old brunettewith long “swept-back” hair sitting at thedefense table. As with DiGiacomo’s clos-ing, the defense allowed Kephart to run-offhis mouth unrestrained by objections.

Jury’s verdict

After Kephart’s fire-breathing evangelicalclosing, some trial observers might havebeen concerned the jury would rush out likea lynch mob and convict Blaise in short orderwhile in a fevered state of mind. The jurybegan deliberating at 6:45 p.m. on Thursday,October 5, and when they requested to gohome at midnight, it was known that at leastone juror wanted to at least consider theevidence. The jury resumed deliberating at8:30 a.m. on Friday, the day before the begin-ning of the Columbus Day holiday weekend.In mid-afternoon, after more than ten hoursof deliberation, they notified the bailiff theyhad reached a verdict.

The jury convicted Blaise of voluntary man-slaughter with a deadly weapon and sexual




penetration of a dead body. Schieck moved forcontinuation of Blaise’s release on $500,000bond. Kephart opposed it, arguing she was aflight risk because she hadn’t personally putup the bond money. Vega adopted Kephart’sposition and Blaise was taken into custody.

After the verdict, both Kephart and Schieckpublicly expressed the opinion that it was acompromise: some jurors wanted to acquitBlaise, and others wanted to convict her offirst or second-degree murder. But on theeve of a holiday weekend, the jurors settledin the middle rather than continue deliberat-ing through the holiday, and possibly eventhen be unable to reach a unanimous non-compromise verdict.

Judge Vega went along with the recommenda-tion of her former colleagues in the ClarkCounty DA’s office and sentenced Blaise tothe maximum of 13 to 45 years in prison onFebruary 2, 2007, even though she was eligi-ble for probation, she received a positive psy-chological evaluation from both a prosecutionand a defense expert, and there was no evi-dence presented during the sentencing hearingthat she poses any danger to the community.

Conclusion

Almost six years after Duran Bailey’s murder,all the physical evidence and evaluation of thecrime scene points exclusively to one or moremales as the perpetrator. Yet Blaise has twicebeen convicted in this death without any evi-dence whatsoever she was within 170 miles ofLas Vegas at the time of his murder.

An examination of Blaise’s case revealsdeep flaws in the collection and testing ofevidence, and the investigation, prosecutionand adjudication of serious crimes in ClarkCounty, Nevada, and in a larger sense, juris-

dictions all across the United States. That isbecause the same bureaucratic police, pros-ecution and judicial processes and influenc-es involved in Blaise’s case are typical ofthose that prevail throughout the country. Itis sobering to consider, but there is everyreason to think Blaise could have been con-victed – twice – anywhere else under thesame circumstances of an underfunded de-fense, detectives unconcerned about thetruth, prosecutors obsessed with “winning atall costs,” and an overtly prosecution friend-ly judge who is a former assistant DA. 42

Endnotes:1 Autopsy Report: Pathologic Examination On The Body Of Duran Bailey,Clark County Coroner, July 9, 2001 (Las Vegas, NV).2 Simms expressed that opinion during Kirstin “Blaise” Lobato’s PreliminaryHearing on August 7, 2001, based on the fact that when examined by thecoroner’s investigator at the crime scene, “The body wasn’t manifesting anysignificant degree of decomposition, so I would say he had died a lot closer tothe time he was discovered than not.” See, State v. Lobato, Case No. C177394,Reporter’s Transcript of Preliminary Hearing, August 7, 2001, 32-33.3 The State of Nevada v. Kirstin Blaise Lobato, No. 40370, Transcript Vol.5, 45, Testimony of Diann Parker, May 14, 2002.4 Id., 465 Statement to Las Vegas Metropolitan Police Department by Laura LinnJohnson, Event #010708-2410, July 20, 2001, pp. 2-3.6 Contrary to Johnson’s assertion, Lincoln County District Attorney GregBarlow reports that Blaise has never been investigated, arrested, convict-ed, sentenced, or served any probationary term for any alleged violation ofany law in Lincoln County. District Attorney Barlow provided that infor-mation in a letter dated January 4, 2007, to The JusticeInstitute/Justice:Denied, in response to a Public Records Law request.7 This relating of events is a composite of Blaise’s statement to DetectivesThowsen and LaRochelle on July 20, 2001, and conversations she had withother people. See, Statement to Las Vegas Metropolitan Police Departmentby Kirsten Blaise Lobato, Event #010708-2410, July 20, 2001, (hereinafter,“Blaise’s Statement”).8 The testimony of Doug Twining establishes the assault occurred on May23, 24 or 25, just before the 2001 Memorial Day weekend.9 These 24 details are documented in two charts at,http://justicedenied.org/issue/issue_34/statement_differences.htm10 The State of Nevada v. Kirstin Blaise Lobato, No. 01F12209X, Dept.2, Criminal Complaint, July 23, 2001.11 The State of Nevada v. Kirstin Blaise Lobato, No. 01F12209X, Dept. 2,Amended Criminal Complaint, July 26, 2001.12 Larry Lobato testimony on October 3, 2006, at retrial of Kirstin BlaiseLobato.13 William J Bodziak, Footwear Examination Report, Forensic Consul-tant Services, March 27, 2002.14 The State of Nevada v. Kirstin Blaise Lobato, No. 40370, Transcript Vol.3, 169, Testimony of Korinda Martin, May 10, 2002.15 Crime in the United States 2001, Uniform Crime Reports, FBI, U.S.DOJ, Washington D.C., Table 6, Index of Crime (There were 447reported rapes in Las Vegas in 2001.).16 Id. (There were 133 identifiable murders in Las Vegas in 2001).17 Crime in the United States 2001, Uniform Crime Reports, Federal Bureauof Investigation, U.S. Department of Justice, Washington D.C., Table 2.9,Murder, Types of Weapons Used. (A sharp object (knife, scissors, etc.) wasinvolved in 13% of all murders, and 24% of murders were committed with fistsor an unknown weapon.)18 ‘Sensitive’ Defendant Denies Mutilation Slaying Charge, Glenn Puit,Las Vegas Review-Journal, May 16, 2002.19 “Reporting to the police,” 2001 National Crime Victimization Sur-vey, Bureau of Justice Statistics (U. S. Department of Justice), p. 10. At,http://www.ojp.gov/bjs/pub/pdf/cv01.pdf.20 Kephart didn’t just argue this in court, but explained it to journalistsduring the jurors deliberations and then after Blaise was sentenced onAugust 28, 2002. See, Homeless man's killer sentenced, Las Vegas

Review-Journal, August 28, 2002; Jurors Deliberate Severed Penis Slay-ing, Glen Puit, Las Vegas Review-Journal, May 17, 2002.21 The State of Nevada v. Kirstin Blaise Lobato, No. 40370, TranscriptVol. 2, 38, Testimony of Lary Simms, May 9, 2002.22 The State of Nevada v. Kirstin Lobato, No. 40370, Transcript Vol. 4,124, Testimony of Thomas Wahl, May 13, 2002.23 Crime Scene Reconstruction and Forensic Science Interpretation inState v. Lobato, Case No. C177394. Forensic Science Resources, CaseNo. FSR2-02, May 31, 2002, p. 3. (Bold in original.) This report wascompleted after Blaise’s trial.24 Id., p. 3. (Bold in original.)25 Expert’s Testimony Limited, Las Vegas Review-Journal, May 17,2002. (emphasis added)26 Jurors Deliberate Severed Penis Slaying, Glenn Puit (staff), Las VegasReview-Journal, May 17, 2002.27 Id.28 Convicted Killer Turned Down Plea Deal, Las Vegas Journal-Review,May 29, 2002.29 Lobato v. State, 96 P.3d 765 (Nev. 09/03/2004)30 Defendant Lobato’s Notice Of Motion And Motion In Limine ToExclude Testimony Of Laura Johnson, State v. Lobato, No C177394,District Court, Clark County, NV, p. 12.31 Defendant Lobato’s Notice Of Motion And Motion In Limine ToExclude Inflammatory and Cumulative Photographs, State v. Lobato,Case No. C177394, Dept II, District Court, Clark County, Nevada, p. 4.32 Kirstin Lobato’s Motion To Dismiss Because The State Cannot EstablishThe Corpus Delicti Of The Crime With Evidence Independent OfDefendant’s Extrajudicial Admissions, State v. Lobato, Case No. C177394,Dept II, District Court, Clark County, Nevada.33 Id. at 6.34 Defendant Lobato’s Notice Of Motion And Motion In Limine ToExclude Witness Korinda Martin’s Testimony …, State v. Lobato, CaseNo. C177394 (“…the presentation of said testimony is tantamount tosuborning perjury.”)35 Simms has twice revised his estimate of Bailey’s time of death, eventhough the information upon which he based his initial estimate remainsunchanged.36 Reducing a Guilty Suspect’s Resistance to Confessing: ApplyingCriminological Theory to Interrogation Theme Development, By BrianParsi Boetig, M.S., FBI Law Enforcement Bulletin, August 2005 Volume74 Number 8, United States Department of Justice Federal Bureau ofInvestigation Washington, DC 20535-0001. (Emphasis added to original.)37 Report Re: Lobato, Michael D. Laufer, MD , September 24, 2006,Interpretation of findings, No. 8., p. 3.38 Id., Conclusions, No. 5., p. 4.39 Forensic Examination Report, Brent E. Turvey, MS, October 17,2005, p. 2.40 Brent Turvey’s testimony on October 2, 2006, at Kirstin “Blaise”Lobato’s retrial.41 A chart of the alibi witnesses is at,http://www.justicedenied.org/issue/issue_34/ alibi.htm42 For a discussion of the dominance of bureaucratic processes in theUnited States, see, The Inhumanity of Government Bureaucracies, HansSherrer, The Independent Review, Vol. 5, No. 2, Fall 2000, 249-264.


Affidavit of Hans SherrerState of Washington ) ) SS:County of King )

I, Hans Sherrer, first duly sworn, deposeand say that the foregoing is true and cor-rect to the best of my knowledge and belief:1) On Friday, September 29, 2006, I was aspectator at the trial of Kirstin Blaise Loba-

to in the courtroom of Judge Valorie Vegaon the 16th floor of the Clark County Court-house in Las Vegas, Nevada.2) At about 1 p.m. that afternoon the prose-cution rested its case in chief and the de-fense began presenting its case.3) At about 3:30 p.m., during the trial’safternoon “stretch” break, I was in themen’s public bathroom on the 16th floor.

4) My attention was drawn to two men inthe bathroom, when one referred to“differences of opinion.”5) The other man responded to the firstman’s comment by saying, “Deliberationsare going to take a long time.”6) I noticed that both men were jurors in theKirstin Lobato trial.

Jurors continued on page 34

Possibility of Guilt Available!Possibility of Guilt in this JD issue is heavi-ly condensed from the complete 28,000word version that includes charts of thedifferences between Blaise’s statement andthe details of Bailey’s death, and her alibiwitnesses.Order complete version for $12 (postagepd.) softcover:

Justice DeniedPO Box 68911Seattle, WA 98168

Or order with a credit card from JD’s onlinebookshop at, http://justicedenied.org

Lobato Jurors Engaged In Misconduct

The following is a copy of the notarized affidavit mailed on November 9, 2006, to David Schieck, Kirstin Blaise Lobato’s lead lawyer. Itdocuments that a week before jury deliberations began, jurors were discussing the case and appear to have formed opinions without

consideration of the defense’s case, the presentation of which began only hours before the events related in the affidavit. Querying the jurors duringan evidentiary hearing could flesh out the degree of their discussions and opinions formed prior to commencement of deliberations on Oct. 5, 2006.


7) I recognized the man whomade the response about“deliberations” was the samejuror I had observed dozing (oractually sleeping) in the court-room for about fifteen minuteson the afternoon of Tuesday,September 26, 2006, during thetestimony out of turn by defensewitness Dr. Michael Laufer.8) In regards to the September 26incident involving that juror, onthe morning of Wednesday, Sep-tember 27, 2006, I informedClark County Deputy District At-torney William Kephart that I hadsomething I wanted to jointly in-form the prosecution and defenseattorneys about, and later thatmorning I jointly informed themwhat I had observed the juror do-ing, and showed Mr. Kephart thewritten note I had made about theincident the preceding day at thetime of the incident.

9) Based on the comments of thetwo jurors on the afternoon ofSeptember 29, 2006, I had rea-son to believe that after com-plete presentation of theprosecution’s case, but after on-ly partial presentation of thedefense’s case, the jurors weredeeply divided in their opinionabout the impact of the evidencepresented as it affected Ms.Lobato’s conviction or acquittal.10) After Ms. Lobato’s convictionon the afternoon of October 6,2006, I read an article on CourtTV’s website about the trial’s out-come, and that story included theanalysis by both Ms. Lobato’s at-torney David Schieck and DeputyDA Kephart that the verdict was a“compromise” by jurors dividedbetween wanting to acquit her, andwanting to convict her of morethan voluntary manslaughter.11) After reading the news re-ports about the verdict, I knewthat the jurors’ conversation

concerning the differing opin-ions formed by the jurors that Ioverhead in the bathroom sixdays before the jury began delib-erating accurately reflected thatthe jurors were sharply dividedabout the case, and that they hadresolved being a “hung jury” bysettling on what both the defenseand prosecution attorneys recog-nize was a compromise verdict.12) While attending the trial Iwitnessed that prior to an ad-journment for lunch, a “stretchbreak,” or after a day’s proceed-ings, Judge Vega admonished thejury with words to the effect thatjurors were not to talk amongstthemselves about the trial or formor express any opinion on anysubject related to the trial untilthe case was submitted to them.13) On the morning of October 9,2006, the Monday after the Fridayafternoon verdict in Ms. Lobato’scase, I called the office of theClark County Special Public De-

fender and asked for Mr. Schieck,whereupon the woman answeringthe telephone informed me that hewas in Carson City, Nevada, andwould return the following day.14) On Tuesday, October 10,2006, at about 10 a.m., I calledthe office of the Clark CountySpecial Public Defender andasked for Mr. Schieck, whereup-on the woman answering the tele-phone informed me he wasn’tavailable but I could leave a mes-sage on his voice mail.15) After being transferred to Mr.Schieck’s voice mail, I left a mes-sage that I had information con-cerning juror conduct during Ms.Lobato’s case, and that I would besending him an affidavit.BY:_________________________Hans SherrerSubscribed and sworn to beforeme, this 9th day of November,2006.

Dehumanization IsNot An Option

An Inquiry Into LawEnforcement and Prison Behavior

By Hans Sherrer

This compilation of essays and reviewsexplains that the dehumanization charac-teristic of institutionalized law enforce-ment processes is as predictable as it isinevitable. The beginning point of thinkingabout alternatives to the dehumanizing as-pects of bureaucratic systems is under-standing their causes. The essays include:

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Office Of The Public DefenderCarvel State Building820 French Street 3rd FloorWilmington, DE 19801

DELAWARE CasesNo Web Site

U. of Houston Law Center Innocence Network100 Law CenterHouston, TX 77204-6371

TEXAS Caseswww.law.uh.edu/faculty/ddow2/dpage2/innocence.html

Midwestern Innocence Project6320 Brookside PlazaKansas City, MO 64113

IOWA, KANSAS, MISSOURI,NEBRASKA and OKLAHOMA Caseshttp://www.innocenceprojectmidwest.org

Ohio Innocence ProjectUniversity of Cincinnati College of LawP.O. Box 210040Cincinnati, OH 45221-0040

OHIO Caseshttp://www.law.uc.edu/clj/index.htm

Wesleyan Innocence ProjectTexas Wesleyan University Law School1515 Commerce St.Fort Worth, TX 76102

TEXAS Caseshttp://law.txwes.edu/Default.aspx?tabid=324

New England Innocence ProjectGoodwin Procter LLPExchange Place53 State StreetBoston, MA 02109Connecticut, Maine, Massachusetts, NewHampshire, Rhode Island and Vermonthttp://www.newenglandinnocence.org

Oklahoma Indigent DefendersDNA Forensic Testing ProgramP. O. Box 926Norman, OK 73070

OKLAHOMA Caseshttp://www.state.ok.us/~oids

West Texas Innocence Project1304 Texas AveLubbock, TX 79401-4034

WEST TEXAS Caseshttp://www.law.ttu.edu

New York State Defenders Association194 Washington Street, Suite 500Albany, NY 12210

NEW YORK CasesNo Web Site

Palmetto Innocence Projectc/o J. M. McCullochP.O. Box 11623Columbia, SC 29211

SOUTH CAROLINA CasesNo Web Site

Wisconsin Innocence ProjectFrank J. Remington CenterUniversity of Wisconsin Law School975 Bascom MallMadison, WI 53706-1399IOWA and WISCONSIN Caseshttp://www.law.wisc.edu/fjr/innocence

New Mexico Innocence & Justice ProjectUniversity Of NM School Of Law1117 Stanford NEAlbuquerque, NM 87131

NEW MEXICO CasesNo Web Site

Rocky Mountain Innocence Center358 South 700 East B235Salt Lake City, UT 84102

NEVADA, UTAH and WYOMING Caseshttp://www.rmicorg.com/

Assoc. in Defence of the Wrongly Convicted85 King Street EastSuite 318Toronto, OntarioCANADA M5C 1G3CANADIAN Cases Onlyhttp://www.aidwyc.org

Northern Arizona Justice ProjectDepartment of Criminal JusticeNorthern Arizona UniversityPO Box 15005Flagstaff, AZ 86011-5005ARIZONA Caseshttp://jan.ucc.nau.edu/~d-najp/mission.html

Second Look ProgramBrooklyn Law School250 Joralemon StreetBrooklyn, New York 11201

NEW YORK CasesNo Web Site

Northern California Innocence ProjectSanta Clara University Law School900 Lafayette Street #604Santa Clara, CA 95050

CENTRAL and NORTH CALIFORNIA Caseshttp://www.ncip.scu.edu

Texas Center for Actual InnocenceUniversity of Texas School of Law727 E. Dean Keeton StreetAustin, TX 78705

TEXAS Cases (DNA and non-DNA)www.utexas.edu/law/academics/clinics/innocence

Innocence Projects Contact Information


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Freeing The InnocentA Handbook for the Wrongfully Convicted

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SSRI antidepressants are known to causesuicidal and violent behavior in otherwisepeaceful people. “Stop Antidepressant Vi-olence from Escalating” (S.A.V.E.) is of-fering an SSRI Information Packet to anyprisoner who believes that their convictionwas the result of SSRI intoxication. Re-quest the “SSRI Info Pack” by writing:

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